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Are server-logs reckoned as storing of personal data by website (GDPR)? Well, almost all website have IP logs in "/home/logs/" folder (which is stored by hosting's Apache web-server (or whatever), and not by my site CMS). Should I state that in our privacy policy? | 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. | See Art. 17(2) GDPR: Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data. So the controller must tell all other controllers (like google) to delete the data. The privacy policy must include the fact that data is made public. | Yes, there would still be an obligation to comply with erasure requests – if the data subject can be identified, and if the GDPR applies. This is a case for Art 11 GDPR: processing which does not require identification. The pastebin site is not required to collect identifying info just in order to facilitate later deletion. If the site is unable to identify the data subjects, then the data subject rights (like access, rectification, erasure, restriction, or data portability) do not apply. Other rights like the right to be informed and the right to object do remain, though. But if the data subject provides sufficient additional information that makes it possible to identify their records, then the data subject rights apply again. In practice, this is likely going to mean that anyone with access to a paste will be able to request deletion, since the site would have no ability to verify the identity of the data subject beyond the information in the paste. None of this absolves the site from implementing appropriate technical and organizational measures to ensure the security of this data. Even though the pastes might not be directly identifying, they are personal data and are far from anonymous. Common practices like numbering pastes with a sequential ID or showing recent pastes on a homepage have to be viewed critically. My go-to recommendation is to assign a cryptographically random UUIDv4 ID to the post, so that it is practically impossible for anyone to find the paste unless they were given a link by the uploader. Your idea to delete pastes after a fairly short retention period is also good. This helps with security, and it is in line with the GDPR's data minimization and storage limitation principles: data may only be kept as long as necessary for its purpose. On the other hand, quick deletion might not be in line with the purpose of these pastes – it all depends on context. You mention that this is an US-based site. If so, there's a question whether GDPR would even apply. GDPR will apply per Art 3(2) if the data controller is offering its services to people who are in Europe. Here, “offering” does not mean mere availability of the website, but that the data controller intends the service to be used by such people, in particular if the service is somehow targeted or marketed to such people. | Well actually... I think you'll just need to wait a little more. I monitor the situation quite closely and I can tell you that it's just a matter of time. Microsoft was one of the first (if not the first) to communicate openly about the GDPR and the changes that follow. From the blog post: If your organization collects, hosts or analyzes personal data of EU residents, GDPR provisions require you to use third-party data processors who guarantee their ability to implement the technical and organizational requirements of the GDPR. To further earn your trust, we are making contractual commitments available to you that provide key GDPR-related assurances about our services. Our contractual commitments guarantee that you can: Respond to requests to correct, amend or delete personal data. Detect and report personal data breaches. Demonstrate your compliance with the GDPR. Microsoft is the first global cloud services provider to publicly offer you these contractual commitments. We believe privacy is a fundamental right. The GDPR is an important step forward to further clarify and enable individual privacy rights and look forward to sharing additional updates how we can help you comply with this new regulation and, in the process, advance personal privacy protections. Microsoft has set up an informational site on GDPR here. If your eyes are on any other provider, I think the only way to learn more is getting in touch and inquiring about their progress and process. Hope this helps. | I think that one cannot answer a question such as "Will the personal use exception in the GDPR apply to personal blogs?", because it is unclear if you refer to: personal information published on the blog pages personal information collected from the Website, by way of forms, cookies, server logs, strictly collected and processed for the purpose of operating the Website for your own personal purposes as a blogger (by yourself of through a subcontractor in the sense of GDPR) and not personal information collected from the Website's operation, transferred or provided to third parties for their own purposes (this would include cookies used to identify and track users across multiple domains) Regarding 1., a personal blog wanting to benefit from the exemption should not publish third party's personal information without their consent or another legal basis, and C-101/01 certainly applies here. About 2., if the information is strictly collected and used for the own personal purpose of the operation of the blog, I would tend to agree that it should benefit from the exemption. I feel that C-212/13 would not necessarily be an indication that because the blog is publicly accessible it is then "directed outwards from the private setting" in the sense of this ruling, and should not be considered as "purely ‘personal or household’ activity". C-212/13 case was relating to a camera installed by an individual on his family home for its own security purposes which was also monitoring a public space. The persons filmed on this public space had absolutely no direct connexion with the person collecting their images. In case of a blog, the visitors of the blog interact with the blog for fulfilling the own personal purpose of the operation of the blog of the publisher of the blog. Another argument is given by the Recital 18 which you quote: a personal blog can be viewed as a type of social networking or related online activity. Finally, about 3., there is no doubt for me that, in this case, the publisher of the blog is engaged in an activity which is not personal, since it willingly provides personal information to third parties which they use for their own purposes (and not as subcontractors in the sense of GDPR). There may be other approaches apart from these 3, but that's a start for your considerations. | Yes, phone numbers would generally qualify as Personal Data under GDPR. It would be so irrespective of whether you have also stored other information along with the phone numbers or not, since also information that indirectly could identify a natural person is Personal Data (provided that there are, somewhere else, public or not public, a register of who holds the specific phone number). See Article 4(1) GDPR. (One could possibly argue that the phone numbers would not be considered personal data if there is no actual register of who owns a specific phone number with any other party. Or if such register is in practice not available for anyone. It might be so in some cases, although I would not rely on it.) Whether you have the right to process the phone numbers must be assessed based on its lawfulness (see Article 6 GDPR). It could be based on consent, performance of contract, legitimate interest or any other ground set out therein. | If you merely provide software for your client to use, you are not processing personal data on behalf of the client. But if you have access to systems that store personal data, then you must consider the GDPR. Or more accurately: your client must consider the GDPR. Under what legal basis can they give you access to the data in these systems? The easiest way to solve this is indeed if you act as the client's processor. Processor status is never the default, but requires a binding contract with the data controller. This contract will require you to only process personal data as explicitly instructed by the client, and may require you to take certain security measures as a precaution. Without such a contract you aren't a data processor, but possibly a data controller of your own (with all the compliance obligations that implies). | I think this shows a misunderstanding of the meaning of the GDPR. A data subject has the right to demand information, correction, deletion etc. about some of their data held by some institutions, depending on the legal basis for the data processing. One John Smith does not have the right to see the data of any other data subject named John Smith, and he cannot even demand to know if there are other John Smiths in the database. The data controller has to make reasonable steps to ensure that an individual who seeks account information is in fact the individual who is the data subject. In the case of an email, that's usually easy -- if John Smith can access the mail account [email protected], one can assume that he is the John Smith who opened the account. If not, then not. If the data controller has the birthplace and birthdate in their records, they can possibly match that against some government-issue identity document, too, but why would they have that data? |
Inter-jurisdictional arrest issues (USA, UK) My question centers around this: It may harm your defense if you do not mention when questioned, something you later rely on in court. Which is something I've heard told to arrested suspects in the UK. Here's my question. If an American is arrested in the UK, and keeps his mouth shut despite the warning in the block quote, and (after the red tape with the consulates) stands trial in the UK, is his defense harmed, or is the simple explanation that "He is American, and treated UK officers like US officers," sufficient for the Jury? This Question seems to imply that yes, it ought to be, as the item in the quote is for the defendant's benefit. I'm also interested in the reverse. Suppose a UK suspect is arrested in US, and remembering the UK warning, speaks to the police. However, because he isn't a lawyer, phrases some aspects of his speech in a less than ideal manner, which the officers later use against him in court. How, and to what extent, have the US and UK defendants harmed their defense? | The law applies equally to everyone The fact that the person misunderstood the law is irrelevant irrespective of the reason for it. That said, in both cases the person would have access to a lawyer and consular assistance who could explain the law to them. | 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!). | Most people would refer to this as "defense of others." In North Carolina, though, the relevant statute, G.S. 14-51.3, formally refers to this as "Use of force in defense of person." The statute allows a defense against criminal and civil liability for non-deadly force used "against another when and to the extent that the person reasonably believes that the conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force." Note, however, that the statute does not allow you to invoke the defense when the victim "is a law enforcement officer ... was lawfully acting in the performance of his or her official duties and ... identified himself or herself in accordance with any applicable law." This raises the question of whether the officer in this case was "lawfully acting in the performance of his official duties" when the relative intervened. If he was, the defense would likely be unavailable. | 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. | it would be a lot of work to formulate a bullet-proof response. Wouldn't that defeat the whole purpose of motion for protective order? No. The purpose of objections --and of motions for protective order-- is not to avoid doing "a lot of work", but to protect information the party considers unreasonable or which ought to be protected from discovery. Elaborating on an objection to interrogatories and/or requests does not provide the information sought to be discovered. Therefore, objections do not defeat the purpose of a motion for protective order. The difference (or one difference) between a motion for protective order and an objection is that the adversary can overcome the objection by rephrasing the interrogatory or request, whereas a protective order is intended to preclude all attempts to skirt the substance of that order. I never found anything that "stays" the discovery pending the hearing of motion for protective order Because there is no need to. Complying with the discovery request would render the motion for protective order a moot issue. Therefore, it is understood that that particular item of discovery essentially would be stayed while the judge has the occasion to rule on the matter. This is especially important for "request of admissions" There are three possible answers to each item in a request of admissions: Admission, denial, or objection. Since objections are allowed (with the proper justification therefor), there is no need to stay discovery. The party just needs to file his responses within the deadline. Moving for a protective order is an odd, and seemingly useless, way to address requests for admissions. | No. Refusing to tell the address alone is not a reason to detain somebody. But there are situations where the authorities can demand that a person identifies himself or herself, including such details as the address (or lack of a permanent residency). In such a situation, failure to identify yourself can get you locked up. Also, the tone of your posting seems to question the legitimacy of the UK government and legal system as a whole. That is a box you're putting yourself into, and the company you find there is not very pleasant. | Does this mean all countries law applies to it? Basically yes. If the videos are in english and are about science in general does this mean if some country some day bans ( imprisonment ) science videos or use of a specific colour in videos can they extraterritorialy enforce this imprisonment if they are in some other country like USA or India? With respect to criminal cases, only if it can arrest that person or convince another country to arrest and extradite that person. Generally speaking, countries will only extradite someone if it is a serious offense under the domestic laws of the country of arrest as well as the country requesting that the person be handed over, and also only if the crime occurred in or was targeted at the requesting country. Sometimes the arrest is not legal in the place where it is made. For example, in this case decided by the U.S. Supreme Court (the quote is from the official syllabus to the case): Respondent, a citizen and resident of Mexico, was forcibly kidnapped from his home and flown by private plane to Texas, where he was arrested for his participation in the kidnapping and murder of a Drug Enforcement Administration (DEA) agent and the agent's pilot. After concluding that DEA agents were responsible for the abduction, the District Court dismissed the indictment on the ground that it violated the Extradition Treaty between the United States and Mexico (Extradition Treaty or Treaty), and ordered respondent's repatriation. The Court of Appeals affirmed. Based on one of its prior decisions, the court found that, since the United States had authorized the abduction and since the Mexican government had protested the Treaty violation, jurisdiction was improper. Held: The fact of respondent's forcible abduction does not prohibit his trial in a United States court for violations of this country's criminal laws. U.S. v. Alvarez-Machain, 504 U.S. 655 (1992). I mean can a country just bring to jail any youtuber outside its borders ( using its national language as the language of the video ) who uploads content of international appeal because of some law? If the country can manage to arrest the person, yes. There are high profile cases from Saudi Arabia where that has happened. See, e.g., here and here (a blogger and his sister arrested in Saudi Arabia, while his wife and children flee to Canada), here (journalists for Lebanese periodical arrested in Saudi Arabia in relation to years old publications) here (more journalists arrested in Saudi Arabia), here ("A male Saudi Arabian teenager has been arrested in Riyadh over a series of online videos of conversations between him and a female Californian streaming-video star that went viral."), here (Yemeni blogger), and here (Washington Post journalist tortured and killed in Saudi Arabian embassy in Turkey at the direction of a senior member of the Saudi Arabian royal family). Also can a country just hold liable for youtube's data privacy practices a youtuber outside its borders and enforce the judgement if the practices of both youtuber and their chanell and youtube is legal in their home country? A country can hold anyone liable for anything its domestic laws allow it to hold someone liable for, and can enforce that judgment against any assets it can exert power over. Some countries with similar legal systems recognize each other's court judgments widely. Countries with very different legal systems often don't recognize each other's judgements. For example, most European countries do not recognize U.S. money judgment for torts (i.e. civil wrongs such as personal injury awards). Similarly, the U.S. does not recognize most foreign defamation judgments, and does not recognize most judgments of Saudi Arabian courts. One last thing is wether inclusion of ads make a difference? Usually not. But it can matter for purposes of assertions of lawsuit liability over someone outside the jurisdiction seeking to impose liability for something that harmed someone in their country. If conduct amounts to "doing business" in the country seeking to impose liability or amounts to a "purposeful availment" of the laws of the country seeking to impose liability in some why, an imposition of extraterritorial liability is more likely, and that tends to happen more in cases where there are ads that are commercial targeting the people of the country where the courts seek to impose liability. | The Miranda warning only has to be given to a person being interrogated in custody, and on the premise that the wife is not in custody, the police do not need to read her the warning. Therefore, anything she says can be used against her, or somebody else, unless there is a separate reason why the statement could not be used. The wife may invoke the spousal testimony privilege, in which case she cannot be compelled to testify against the husband. The officer could theoretically testify that the wife said "I washed blood out of his clothing", but this is an assertion made by an out-of-court declarant to prove the truth of the question at hand, i.e. hearsay. There are numerous exceptions to the definition so that in some cases, the statement would not be hearsay. If the wife refuses to testify, that cuts out half of the exceptions, but maybe the wife is a co-conspirator. |
Are any British or English Acts of Parliament still in force in the United States? In Australia, which has a very close legal history with the United Kingdom (diverging completely only as late as 1986), some Acts (or part thereof) of the UK Parliament (and its antecedents, the British and English Parliaments) remain in force in Australian jursidictions. Two examples are sections of the Magna Carta (1297) and the Bill of Rights (1688), which the Australian Capital Territory1 Parliament has republished to confirm their currency. Are there any Acts of the British (or English Parliament) in force before American independence that remain in force either at a federal, state (or other) level in the United States? 1 - This jurisdiction is interesting in itself - laws in force in the State of New South Wales formed the basis for its laws until legislative authority was transferred to the federal (Commonwealth) Parliament in 1911, which was later delegated / devolved back to its own local government in stages throughout the late 20th century. | Early in the history of the US, various states passed laws adopting the then extant common law and at least some of the statutory law of Great Britain (much of which was in origin the Law of England) as law in those states. Such laws would still be valid, unless later acts had amended or replaced particular provisions. Tracing which provisions had since been altered would be a massive task. Basic common law, particularly definitions of crimes such as fraud, theft, murder, and of torts such as conversion, slander, libel, and the like will probably be largely unchanged, with some modifications. Blackstone's Commentaries remained a significant legal text used in training lawyers and in legal practice in the US through much of the nineteenth century. | 1. Are this and similar ordinances constitutionally valid? Yes. Some future court might decide the law is invalid at some future time. But that possibility is hypothetical and speculative. Therefore, as of now, the law is valid unless and until it is challenged and overturned. 2. What defenses could a government make if challenged? It depends on what grounds the law is challenged. Your question about possible defenses is highly dependent on the nature of any challenge — which you have not specified in your question. The U.S. Constitution, for example, prohibits laws respecting a number of things such as freedom of the press, speech, religion, peaceful assembly, bearing arms, etc. to list just a few of the most notable ones. But your question does not assert the law in question violates any specific or particular prohibition against it. Although the question mentions "restricting free movement as well as targeting only a specific demographic," it does not specify any part of any constitution that prohibits these things. Therefore, your question is unclear as to what might present a constitutional problem for the law. It is also unclear which constitution you think might contain prohibitive language. Is it a federal constitutional issue that concerns you? Or is it a state constitutional matter? In either case, which issue specifically concerns you? Your question needs to address these specifics in order to analyze it and respond in a meaningful way. Look at it like this... just as it is impossible to prove a negative, so is it impossible for anyone to conclude with absolute certainty that any law is not unconstitutional because no one can predict with certainty every possible future challenge a law might face. There are just too many possibilities to (pre-emptively) exhaust them all with certainty. Also, no one can predict with certainty how any future court might rule on the future challenges (which themselves are unpredictable as previously argued). Therefore, one can only say I think the law is unconstitutional and here are my reasons. Then others can analyze the law and the reasons; then offer an opinion. Further, based on precedent, would they likely be successful? See above answer to question numbered 2. Laws aren't required to be "justified" by the constitution. Constitutional justification for a law is a meaningless phrase. There is no requirement for a law to be "justified" by any constitution other than that the legislature is empowered by the constitution to make laws. That's all the justification any law needs. Beyond that, however, no law can violate the constitution as determined by a Supreme Court (or the last court to rule) if challenged. | It depends on the language used to pass the statutes, but if in doubt then Spanish prevails. See section 13 of the Civil Code: In case of discrepancy between the English and Spanish texts of a statute passed by the Legislative Assembly of Puerto Rico, the text in which the same originated in either house, shall prevail in the construction of said statute, except in the following cases: (a) If the statute is a translation or adaptation of a statute of the United States or of any State or Territory thereof, the English text shall be given preference over the Spanish. (b) If the statute is of Spanish origin, the Spanish text shall be preferred to the English. (c) If the matter of preference cannot be decided under the foregoing rules, the Spanish text shall prevail. | There is no particular mention in the OSCOLA guidelines for how to refer to laws of England and Wales. In academic papers it is common to see both "English Law" and "English and Welsh Law", usually depending on whether the particular point relates directly to England, Wales or both. However, in the case of Welsh Measures and Statutory Instruments of Wales then it would be correct to only describe the laws as "Welsh Law". | Generally not. Federal court uses a principle known as the enrolled bill rule -- in deference to the coequal status of the three branches of government, the "enrolled bill" (the thing printed on fancy paper that actually went to the President for signature) is irrebuttable evidence that the law was properly passed. The courts cannot deal with inquiries into whether legislative process was followed; it's the legislature's job to decide what the right process is. They can't even look into whether the same text passed both houses -- as a matter of law, the enrolled bill is conclusive evidence that it did. Senate rules are enforceable in the Senate. But the Senate is the body in charge of enforcing them, not the courts. | A law that conflicts with the Constitution is void The enactment of a treaty is still a law. Even though the US has a Constitutional mechanism for ratifying treaties, once ratified, they are the “law of the land”. | In the US, Congress may pass an act, and this creates one kind of law (if it is promulgated: signed, ignored, or re-passed with a super-majority). Some of those acts direct the executive branch to do things, and pursuant to that act, a regulation is promulgated. Together with case law, the whole thing is "law". A bill (in the House, or the Senate) may result in an act being passed by both houses. It may go through a number of drafts between the point when it is first introduced and the time it becomes an act. | Before getting into the technical answer to this question it is worth noting that when matters of a constitutional nature are involved then in practice it is not just a matter of a technical "legal" answer. Students and academics like to pose hypothetical questions such as "What would happen if the Queen refused assent to a Bill?" or "If Parliament is supreme, could it abolish the courts?" etc. The practical reality is that a liberal democracy, such as ours, ultimately relies on those in positions of power to respect the democratic conventions and preserve the constitution. When there is a legal angle to some constitutional issue the courts will play their part but, whatever legal analysis their judgments may contain, they will always have in mind the importance of maintaining our democratic system. It is also worth noting that where an Act contains an "ouster" clause (saying that a certificate of X shall not be questioned in any court of law) the courts always find a way to interpret that so that it does not apply in any case where the courts think they should adjudicate! Those preliminaries out of the way, I think the technical legal answer to your question is that first of all the Speaker decides and provides a certificate under s.2(2). You will see that s.2(1) deals with "any other bill" (your third bullet point) and s.2(2) requires a certificate from the Speaker that "the provisions of this section have been duly complied with" (i.e. that it is indeed in the "any other bill" category). Of course there is a further question of whether, if the Speaker gets it wrong, the courts could intervene and exactly how that might happen (the so-called "John Bercow question" of what if a Speaker goes rogue), but the initial technical answer to you question is "the Speaker of the House of Commons". |
Keeping a Weakness Secret If a company invents a padlock with some obscure weakness that most criminals would not guess, is there anything the company can do (before or after selling it to the public, or within some "user agreement" contract) to legally prevent people from publishing the details of that weakness? For example, this video exposed a weakness, thereby hurting all owners of the padlock: https://www.youtube.com/watch?v=RxM55DNS9CE In principle, the company could now sue the video's owner for negligence, but I doubt that the company would win, so I'm here asking if there is anything the company could have done beforehand to improve its chance of winning. Suppose the company and all customers are in Los Angeles, California. | On the one hand, there are statutes that prohibit the delivery of instructions which distort or circumvent the official/intended use or safety of a device. For a somewhat related example of this, see MCL 750.540c(1)(3). On the other hand, the company/manufacturer is unlikely to prevail under contract law no matter how clearly and conspicuously its EULA prohibits the disclosure of discovered weaknesses. That is because the prohibition in the EULA is outweighed by the severe vulnerability to which all other unsuspecting customers are subjected. From the standpoint of public policy, people's awareness of the discovered vulnerability is certainly in the public's best interest. The disclosure will warn both (1) potential customers not to purchase a product that fails or misses its primary purpose, and (2) current customers to adopt precautions now that the product's reliability has been disproved. Thus, the effectiveness of broadcasting the discovery of such weakness is in stark contrast with the technical deficits and managerial politics that typically hinder a company's ability (or its will) to respond to the issue. If the weakness was known to the manufacturer prior to the disclosure, the release of that product would constitute fraudulent misrepresentation. The details of the demonstration in the video supports the argument that the manufacturer knew --or should have known-- about that weakness, since a padlock design is supposed to pass all kinds of tests of breakability and not be disabled by a screwdriver. It is hard to deny that the notion that "the padlock is secure" induces customers to purchase the product. As such, the misrepresentation violates the contract law principle that a contract --such as a purchase-- be entered knowingly. See Restatement (Second) of Contracts at § 161-167. With respect to the publisher of the weakness, that misrepresentation renders the EULA-prohibition void. See Restatement at § 164(1). Regardless of whether or not the manufacturer incurred misrepresentation, the manufacturer's decision to sue the publisher is only likely to backfire by bringing more attention to the poor design of the product. In all, the manufacturer's best option is to do a product recall ASAP and enhance the design. | From what I can see on the USPTO registry, "tweet" is still not trademarked for the purposes you're talking about. Twitter has been working to secure that trademark, but I can't find any record of them having actually secured it. Just the same, I'd predict that using it will get you at least a cease-and-desist letter, and possibly a lawsuit. Whether you'd win that case seems to be a very open question, but that presumes you have the resources to litigate. | 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. | are there any safeguards you could take to preemptively block such behavior, such as a disclaimer inside the book cover that reads something like The safeguard you outline would be overridden as soon as the author enters any contract that requires assignment of copyright. (I would not delve in the differences between licensing and copyright assignment because that hypothetical author is dealing with a contract of adhesion which readily requires assignment; the author has no option to change the ToS to allow for licensing only) Under contract law, one of the essential prerequisites is that the conditions of a contract be entered knowingly and willfully. By deliberately clicking on a ToS page to move forward with the uploading a copyrighted work, the author is signaling his awareness and acceptance of the ToS. The fact that the author chose not to read the ToS is irrelevant and very unlikely to strike whatever entitlements the website owner formulated in the accepted ToS. For the same reason, the author's safeguard disclaimer does not bind the website owner: It cannot be said that the website owner was aware of that disclaimer at the time of the formation of contract between the author and the website owner. That is, the website owner did not knowingly and willfully accepted the author's safeguard. The website owner is not even expected to know about any safeguards which one of its potential user intends to establish. The length of a ToS document is also irrelevant because the website owner has the valid argument that "the user-author could have skimmed through the ToS or do a search (via Control-Find) of keywords such as 'copyright' or 'property', whence any allegation of 'inadvertent' assignment of copyright is untenable". Is there a way to protect your IP from inadvertently being licensed/stolen/assigned via TOS "agreements", without having to waste your life reading huge one-sided online "contracts" that are "subject to change without notice" anyway? Yes. That consists of not uploading one's works in such platforms. In contract law that would be expressed as "declining an exchange of considerations". There are many other alternatives for an author to promote his work without being required to assign copyright. | In theory, a store can ban you or anyone else for any reason except those protected by law against discrimination. As a practical matter, you potentially have various forms of recourse. The first thing to do is to write the the CEO of the chain, with a long detailed letter describing the incidents, and naming names. Most CEO's don't want to deal with this kind of bad publicity, and will at least order an investigation, and make amends, if the internal investigation is in your favor. This would apply even to the late Sam Walton, if the chain is WalMart, or whoever the current CEO is. If you are a member of a protected minority, or even have dark skin, you can sue the chain on those grounds. There will be a presumption that they barred you on grounds of race or color. Then the burden of proof will be on them to show that they didn't bar you for those causes. As a form of "entrapment," you should take a witness, basically the most influential person you can get hold of that's not a family member, to the store with you to ask them why you were barred. The mayor of your town would be ideal, more llkely it would be a boss, teacher, or clergyman, but in any event, someone who knows you well. If you can get them to accuse you of stealing in front of this third party, you have the makings of a defamation case. And even if you aren't a minority, you can sue them anyway. You can demand "discovery" of all internal documents, videos, etc. relating to your case. Your lawyer will also the right to "depose" (cross examine) all offending managers.There's a good chance that something embarrassing will turn up in the process. (Many defendants settle in connection with discovery.) You might want to hire a second (libel) lawyer to teach you how to publicize the case without running into libel laws. If all this fails, the store can probably bar you, but you want to make it prohibitively expensive for them to do so, meaning that most rational people wouldn't bar you after the above. If they do, they're not rational and you're better off not using the store. | If it was something important to the owner, they would file injunctions/suits against everybody that they find the code in, and make those very public. This isn't unlike what the RIAA did to individual downloaders of pirated music files, filing over 18,000 lawsuits. They could subpoena GitHub for information related to IP addresses for who downloaded the code and go after them. It is unlikely that they would get a financial award but they could have the court order them to stop using it. Eventually the RIAA found that filing these lawsuits was more trouble than it was worth and started going after the internet service providers. These reduced the number of lawsuits and forced ISP's to moderate its own users, blocking some sites and protocols that programs like Napster relied on. Basically they shifted responsibility from themselves to the ISP's. | You would have to look at your contract with the company or the company's rules. Some companies have clauses that say they own things you develop while working for them and some don't. Without knowing your specific company's policy, it is impossible to say. | Unless you have a legally valid IP right related to the specification that statement is meaningless. When a software license is granted it is based on the copyright of the code. The copyright of the spec. just stops people from copying the spec - it does not protect the information in it. You can restrict copying of the spec. under copyright, you can make up a name for the spec (like USB or Bluetooth) and get a trademark and only allow the trademark use in limited cases(doesn’t stop implementation of the spec), or get a patent that would be necessarily infringed if something complying with the spec was created and used, sold, made, etc. or you can keep it secret and only show it to people who contractually agreed with your terms. |
Admissibility of evidence seized from wrong property on lawful warrant (USA) Suppose the Police obtain a warrant to search Alice's house for smuggled diamonds (something really tiny). When they arrive, they knock on Bob's door instead of Alice's. It's a common mistake to make, and each new mailman has made it. Case 1: Bob is not home. The police search the place and find tons of (illegal item). When Bob returns, they arrest him. Case 2: Bob is home. He looks at the warrant, and informs the officers they are at the wrong house. The officers do not believe Bob, and think he's just trying to get them to go away. They search over his objections, find the (illegal thing) and arrest him. This question shows that criminals are always at risk of being busted on unrelated but lawful law enforcement activities, but it seems to me that Bob's 4th amendment right was violated since the officers did not have a warrant to search his house. Is the evidence the officers found at Bob's house admissible? Jurisdiction is USA. | The Evidence Would be Admissible. Under the so-called "good faith exception" to the exclusionary rule the evidence would probably be admitted over Bob's objections in both cases mentioned in the question. Recent US court decisions have limited the exclusionary rule when police officers reasonably but mistakenly believe that a valid warrant exists, and find evidence acting under such an apparent warrant. However, if there is good evidence of intentional falsification by the police, the exception will probably not apply. As to the second case, where Bob is home and protests that an error is being made, police are not required to, and often do not, accept much that suspects or subjects of warrants say in their own defense. If anyone could simply claim there was an error and delay a warrant, perhaps giving time to dispose of evidence, many problems would result. However, the "good faith" exception only applies where the police reasonably and honestly believe that the warrant is valid, or that probable cause exists. If Bob says something such as: This warrant is for 1020 Anne street, where Alice Crook lives. But I live at 1050 Albert street. See the house number is 1050 right here. There must be a mistake. then a reasonable officer would probably double check the warrant, and if the officer unreasonably fails to do so, the search might later be suppressed. But this is going to be a very fact-sensitive inquiry, and none of the cases that I know of on the "good faith exception" rule are exactly on point for this situation. I cannot be sure how a court might rule in such a case. Leon and Evans Cases In United States v. Leon 468 U. S. 897, the US Supreme Court created a "good faith exception" to the exclusionary rule. In that case the Court held that when officers make an objectively reasonable, good faith decision to rely on a warrant later held to be invalid, the exclusionary rule does not apply, and evidence found during a search under such a warrant, or in the course of an arrest under such a warren, is admissible. The basic logic is that when the invalid warrant was the result of an honest mistake, suppressing the evidence would have no deterrent effect on future similar mistakes, as no one intended to make them in any case. In Arizona v. Evans 514 U. S. 1 (1995), this rule was extended to officer who rely in good faith on information mistakenly provided by Court employees. The underlying logic is much the same. Herring v. United States In Herring v. United States, 555 U.S. 135 (2009) this exception was further extended to officers who acted in good faith on the mistaken information of other officers. Evidence found in a search incident to an arrest, although there was no valid arrest warrant or other probable cause, was not suppressed. In this case a warrant had been issued but later recalled. however this recall was somehow not properly entered into the database of warrants maintained by a sheriff's office. When a nearby jurisdiction called to ask if there was an outstanding warrant on Herring, they were told that there was one. Herring was arrested, and drugs and an unlawful firearm found. Minutes later the officers were told that the arrest warrant was not valid. Herring was convicted based on the evidence from the search, and the US Supreme court upheld the conviction. The court wrote in Herring: When a probable-cause determination was based on reasonable but mistaken assumptions, the person subjected to a search or seizure has not necessarily been the victim of a constitutional violation. The very phrase “probable cause” confirms that the Fourth Amendment does not demand all possible precision. And whether the error can be traced to a mistake by a state actor or some other source may bear on the analysis. For purposes of deciding this case, however, we accept the parties’ assumption that there was a Fourth Amendment violation. The issue is whether the exclusionary rule should be applied. The fact that a Fourth Amendment violation occurred—i.e., that a search or arrest was unreasonable—does not necessarily mean that the exclusionary rule applies. Illinois v. Gates, 462 U. S. 213, 223 (1983). Indeed, exclusion “has always been our last resort, not our first impulse,” Hudson v. Michigan, 547 U. S. 586, 591 (2006), and our precedents establish important principles that constrain application of the exclusionary rule. ... the exclusionary rule is not an individual right and applies only where it “ ‘result[s] in appreciable deterrence.’ ... When police act under a warrant that is invalid for lack of probable cause, the exclusionary rule does not apply if the police acted “in objectively reasonable reliance” on the subsequently invalidated search warrant. 468 U. S., at 922 (Leon). We (perhaps confusingly) called this objectively reasonable reliance “good faith.” In a companion case, Massachusetts v. Sheppard, 468 U. S. 981 (1984), we held that the exclusionary rule did not apply when a warrant was invalid because a judge forgot to make “clerical corrections” to it. ... in Evans, 514 U. S. 1, we applied this good-faith rule to police who reasonably relied on mistaken information in a court’s database that an arrest warrant was outstanding. We held that a mistake made by a judicial employee could not give rise to exclusion for three reasons: The exclusionary rule was crafted to curb police rather than judicial misconduct; court employees were unlikely to try to subvert the Fourth Amendment; and “most important, there [was] no basis for believing that application of the exclusionary rule in [those] circumstances” would have any significant effect in deterring the errors ... the abuses that gave rise to the exclusionary rule featured intentional conduct that was patently unconstitutional ... ... To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. ... In Franks v. Delaware, 438 U. S. 154 (1978), ... we held that police negligence in obtaining a warrant did not even rise to the level of a Fourth Amendment violation, let alone meet the more stringent test for triggering the exclusionary rule. ... We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule. In this case, however, the conduct at issue was not so objectively culpable as to require exclusion. In Leon we held that “the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” 468 U. S., at 922. The same is true when evidence is obtained in objectively reasonable reliance on a subsequently recalled warrant. If the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified under our cases should such misconduct cause a Fourth Amendment violation. See the Wikipedia article on Herring and this Leagal Information Institute article on the case | 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. | There isn't an automatic exclusion rule for all forms of improperly acquired evidence in the UK. I can't find the exact quote but there was a judgement from a senior court that said in terms: "it's not the court's job to discipline the police but to see that justice is done." However, judges have the discretion to disallow individual pieces of evidence if they think the interests of justice require it. Section 78 (1) of PACE (1984) has: In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Senior judges have been reluctant to lay down general guidelines, holding the trial judge best placed to make these decisions (although of course, subject to appeal). The foundational principle is the accused's right to a fair trial, so in principle one could appeal to the ECtHR under Article 6. However it generally takes a similar line to courts in the UK: It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence - for example, unlawfully obtained evidence - may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. PACE Section 78(2) is: Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence. The general principle in 78 (1) does not override specific prohibitions: for instance, intercept evidence is never admissable under the Regulation of Investigatory Powers Act 2000. | Police can get a warrant, if the warrant is supported by "probable cause" to believe that evidence of a crime exists. A separate "probable cause" requirement is that to arrest a person, there must be "probable cause" that they committed a crime. However, the Privacy Protection Act makes it unlawful to search "work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication", unless there is probable cause that the person committed the crime in question. There are similar laws ("shield laws") at the state level. Here is a map which gives you an indication what immunities exist in what states. | The primary question is whether you actually committed a crime in signing a credit card receipt, when you are not the cardholder nor are you authorized to sign on behalf of the cardholder: did you commit fraud? It is not possible to accidentally commit fraud, you have to have intended to deceived the other party that you are authorized to sign. For the sake of discussion, I will assume that you had no such intention. Presumably, the person who ordered the stuff will wonder "where is my stuff?", will complain to the vendor, they may then find the signed receipt and some evidence regarding where the goods were delivered. Whether or not they contact you asking for an explanation / return of the goods, the police would have to investigate the situation in light of some allegation that you committed fraud. The police will not just come knocking on the door and nab you (in the US: North Korean law is different). In many jurisdictions, there is a requirement for a warrant supported by probable cause. If the investigation provides sufficient credible evidence proving that you did intentionally falsely sign the receipt, to the point that given those facts you would be convicted of the crime, then there is probable cause for a warrant for your arrest. The fact of signing a receipt is not probable cause to support such an arrest, but other facts could be added to reach that level of evidence. | In addition to compelling a store to produce evidence such as video footage, via a search warrant as described by bdb484, police can request access to information in the possession of such information. The store may voluntarily comply with the request, or not. Especially in the case of online transactions, there may be a privacy guarantee that information about a customer's transaction will not be revealed to a third party unless required by law (ergo, a warrant), but security camera recordings are not protected by such guarantees. | 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. | 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. |
What happens if someone knowingly accepts a contract with some invalid terms? A dispute arose between me and my ex-landlord. Before any litigation, I told him the things I expected that he wasn't doing. His response was to agree to do them, provided I would agree to various unenforceable things. Would such a contract have any effects? If the things he agreed to were enforceable but mine weren't, would he still have to do them even if I didn't? For example, the landlord rented out a storage area to an extra person. He said he would somehow share the money to lower others costs, but the details were never clear and weren't in writing. When he did not share the money, I reminded him he had agreed to. His response was "I will share it if you agree not to undermine my leadership or complain" (these were literally the words he used). If I agreed to these terms what would happen? I give this example assuming undermining leadership isn't legally enforceable. Now that litigation has started, can I present this as evidence of some kind? | A promise that a court would not enforce by injunction can still be valid consideration and be part of a valid contract. Failure to carry out such obligations would lead to some measure of money damages, most likely. On the other hand, provisions specifically barred by law, or against public policy, such as a promise to commit a crime, are void from the start, and form no part of a valid contract. Such provisions may be treated by a court as if they had just been left out, or if they were essential to the contract, or formed the sole consideration, the whole contract might be considered void. If a term is too vague for a court to determine if it has been violated or not, the court may try to clarify it, or may just ignore it. Just what it would mean for a tenant to "undermine the leadership" of a landlord is not clear to me, at least. That might well be held to be "too vague". As to "not complain" it may be that a tenant has a legal right to make official complaints, which cannot be waived by contract. Or it may not, depending on the local laws. | The issue of who pays directly for the items and/or to contractors is irrelevant. The important thing is to memorialize the agreement/arrangement in writing so as to preempt or solve eventual disputes. A clearly written agreement signed by the parties would supersede any presumption of conditions and rights arising solely from the parties' conduct. | 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. | B and C have a contract with A In return for paying 3 months rent, B and C will remove A from the lease. This has all the required elements to be a contract. B and C have fulfilled their obligations and A hasn’t. B & C could sue A for damages. They would need to prove that there was such an agreement and that they agreement was a legally binding contract. Is this agreement written down? Was it witnessed by impartial third parties? What evidence of this agreement do you actually have? If A says they agreed to X, yet B & C say they agreed to Y: what evidence exists to show who is right and who is wrong? Failing to fulfill the obligations of a contract is not fraud. For there to be fraud, B & C would have to prove that A never intended to comply by the terms of the agreement. Given that the terms of the agreement are somewhat ambiguous, this would be very difficult. This seems to be more of a case where [Hanlon's Razor]: "Never attribute to malice that which is adequately explained by stupidity." That is, A's actions are more likely to be the result of a misunderstanding (by A, or B & C, or both) than a deliberate plan of deception. The landlord is not involved - they removed A from the lease at the request of A, B & C; they’ve done what they’re required to do. | In general, "a signed piece of paper" is not "a contract". It may be a record of a contract, but the contract itself is the meeting of minds where an agreement is reached and doesn't depend on the existence of the piece of paper. (Depending on the jurisdiction, some sorts of contract are required to be in writing, but this doesn't usually apply to employment contracts; it's usually contracts involving land.) What is far more worrying to me is that you don't know how much they are going to pay you. That suggests there hasn't been a meeting of minds, and there is no contract. (It might be that "the going rate" is good enough to form a contract - to determine that would require advice from a local lawyer.) I suggest you don't write up a formal agreement, but nag your boss to decide how much they are actually going to pay you. | Probably not Once you and the store have entered into a contract the price in that contract is determinative. However, most online stores' terms are very clear there is no contract when you place your order or when you get their automated reply; the contract comes into existence later when they do something. For example: With respect to products sold by Amazon AU, your order is an offer to us for you to buy the product(s) in your order. ... The Order Confirmation is acknowledgement that we have received your order, and does not confirm our acceptance of your offer to buy the product(s) ordered. We only accept your offer, and conclude the contract of sale for a product ordered by you, when we dispatch the product(s) to you and send e-mail or post a message on the Message Centre of the website confirming that we've dispatched the product to you (the "Dispatch Confirmation"). ... Now, even without these terms, it's unlikely that your offer and the company's automated response created a binding contract because the company (as in, an actual person acting for the company) did not consent to the formation of the contract. Consent is fundamental: see What is a contract and what is required for them to be valid?. What you received was an "order confirmation" - a reiteration of your offer to the company, not an acceptance of your order. Consumer protection Most jurisdictions have consumer protection laws that make it illegal to display an incorrect price. However, in most, that does not oblige the retailer to honour the price, it just exposes them to fines from the regulator. | 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. | Can you have valid Terms and Condictions when there is no entity mentioned? No, but the example you post is inapplicable because the terms clearly state in the beginning that the agreement is between "you" and "Binance operators". The latter is defined shortly thereafter. Thus, it certainly identifies the entity. A contract does not need to exhaustively list all information such as parties' registration(s) or domicile. As long as a reasonable person is able to grasp who are the entities entering a contract, that contract is binding and enforceable. If it cannot be ascertained from the contract who the counterparty(-ies) is(are), then neither party can prove that he and other entity(-ies) knowingly and willfully agreed to an exchange of considerations or promises thereof. Accordingly, nobody would have standing to sue others for breach of contract. |
illegal Towing in apartment complexes If an apartment complex has a contract with a towing company to tow illegally parked cars does a manager have to be there when the car is the sign for each card is being towed at the time of being towed? | The building manager needs to be there when the car is towed The tow truck driver must be wearing his hat when he attaches the hook to the car The tow truck driver needs a piece of paper which says Authority To Tow These are all urban legends of what is necessary to tow the car legally, and none of them are true. If you park on private property, essentially there are 2 main possibilities: You have a contract with the land owner, or You don't have a contract with the land owner Do you have a contract with the land owner? If there is a sign which says something like "If you park here, we will tow your car away and you will have to pay $200 to get it back", and the sign's placement, fontsize, etc mean that it would be visible to a normal person, then by parking there you are entering into a contract. The landowner likely also has a contract with a towing company allowing them to tow cars from their property. Whether this is a blanket contract covering all cars on the land (they might sign a new contract once a year) or individual contracts for each car (they might call the towing company whenever they need a car towed) is determined by the land owner and the towing company Alternatively, you may have a contract with the landowner allowing you to park there for free. Is there a sign that says "Visitor parking" and were you visiting someone who lives/works on the land? If there is no sign and you have not specifically entered into a contract regarding parking there, then depending on the circumstances the landowner can still have your car towed, but it would be difficult for them to require you to pay a specific amount to get it back. They may need to make a claim against you for their towing costs, and show receipts from the towing company etc, because without a contract they have no right to profit from you parking there, even if you were trespassing. In most cases there will be a sign, you will see it, and you will agree to it by parking. You can report it to the police as stealing, they can investigate by asking the towing company and the land owner, and they will probably discover that the landowner had the right to tow cars and assigned that right to the towing company. If there's a sign, then you may have agreed to it by parking there. If there's no sign, then you may have been trespassing. | The driver of a vehicle is responsible for moving violations, the owner is responsible for other tickets such as parking and vehicle correction notices. California Vehicle Code section 4000 states: A person shall not drive, move, or leave standing upon a highway, or in an offstreet public parking facility, any motor vehicle, trailer, semitrailer, pole or pipe dolly, or logging dolly, unless it is registered and the appropriate fees have been paid under this code or registered under the permanent trailer identification program, except that an off-highway motor vehicle which displays an identification plate or device issued by the department pursuant to Section 38010 may be driven, moved, or left standing in an offstreet public parking facility without being registered or paying registration fees. A ticket for a moving violation, including driving an unregistered vehicle, is issued to the driver; the driver is responsible. Section 40610 of the California Vehicle Code describes what occurs with an unregistered vehicle. If there is no evidence of fraud or persistent neglect then a "Notice to Correct Violation" will be issued and will be the responsibility of the vehicle owner. The correction notice to have the vehicle registered is different than the violation of driving an unregistered vehicle. Non-moving violations, such as parking tickets are the responsibility of the vehicle's owner if the vehicle is being operated with the owner's permission. Section 40200 describes this as it relates to parking tickets: (a) Any violation of any regulation that is not a misdemeanor governing the standing or parking of a vehicle under this code, under any federal statute or regulation, or under any ordinance enacted by local authorities is subject to a civil penalty. The enforcement of those civil penalties shall be governed by the civil administrative procedures set forth in this article. (b) Except as provided in Section 40209, the registered owner and driver, rentee, or lessee of a vehicle cited for any violation of any regulation governing the parking of a vehicle under this code, under any federal statute or regulation, or under any ordinance enacted by a local authority shall be jointly liable for parking penalties imposed under this article, unless the owner can show that the vehicle was used without consent of that person, express or implied. An owner who pays any parking penalty, civil judgment, costs, or administrative fees pursuant to this article shall have the right to recover the same from the driver, rentee, or lessee. (c) The driver of a vehicle who is not the owner thereof but who uses or operates the vehicle with the express or implied permission of the owner shall be considered the agent of the owner to receive notices of parking violations served in accordance with this article and may contest the notice of violation. While the owner of the vehicle is legally responsible for non-moving violations of the vehicle code, a reasonable argument can be made that the person who committed the infraction, such as parking illegally, is morally responsible and may incur a civil liability to the owner of the vehicle as highlighted by bold in section (b) above. | This is an amusing idea, but ultimately it seems frivolous: How does one establish the physical presence of a corporation in a car? Yes, corporations have some of the legal rights and liabilities of people, but they are not people. And there are plenty of rights a person has that a corporation does not. For example (at present) a corporation can't be a party to a marriage. The closest a corporation comes to any corporal presence is the address listed of their agents. | Being Evicted Is Not A Crime It is not a crime to be evicted. So, you will not get a criminal record if you fail to pay your rent and are evicted. Failing to pay rent is merely a breach of contract, and eviction is a remedy for this breach of contract. Damage To Your Credit Rating Being evicted will absolutely hurt your credit rating, however. In the U.S., a bad credit rating can be considered by prospective employers and for many other purposes (e.g. as grounds to charge you higher insurance premiums, or to refuse to rent property to you, or to refuse to extend you credit). I am not familiar with all of the purposes for which a credit rating may be legally used in the U.K. and that would probably need to be the subject of a separate question in any case. At a minimum, a bad credit rating makes it harder to get loans in the future. For example, an eviction could result in your application for a mortgage when you want to buy a house being denied, or could cause you to pay a much higher interest rate on a car loan. Other Negative Consequences Of An Eviction There are other negative consequences of being evicted in addition to harm to your credit rating, which may seem obvious but also bear mentioning. These consequences are all very good reasons to voluntarily leave the premises from which your landlord is trying to evict you and to move to a new residence of some kind before a court order evicting you is carried out if it is at all possible to do so. Homelessness First, if you don't have a place to live immediately, when you are evicted, you become homeless and being homeless is not a good thing. The U.K. has a decent safety net, so eventually you may be able to find public housing if you are evicted, but that often doesn't happen immediately, and in the meantime, you are literally on the street. Even if you can't find any place else that you can afford to rent, you can try to find friends and family that can take you in temporarily, attempt to locate places you can legally camp for a while, and can save up enough money to pay for a motel for a few days at least while you are looking for alternative places to live. Your Stuff Is Tossed On The Street Second, if your stuff is in the property you are being evicted from, then when you are evicted, your stuff will be tossed out on the street and in all likelihood it will be damaged or stolen or otherwise lost. Among the things that can be lost or damaged in an eviction are documents that you need which are hard to replace like birth certificates, passports, professional licenses, college applications, report cards for children, health records, financial records, family photos, immigration documents, etc. Even if you can't afford to rent a new place, you can avoid this harm to your property by putting as much of it as you can in a storage unit. At a minimum, try to find some place (maybe friends or family or work) where you can store your most valuable property before you are evicted. Lost Security Deposits And Money Damages Third, if you are evicted, you will almost certainly lose your security deposit and will probably also have a money judgment entered against you by the landlord for any amounts owed to the landlord for damage to the property, back rent, late fees, interest, lost rent while the property is rerented, attorneys' fees, court costs, etc. to the extent that it exceeds the security deposit which it usually will. This money judgment will further hurt your credit rating and could cause your wages and bank accounts to be garnished and your cars and/or other personal property to be seized to collect this debt. Usually people are evicted because they can't afford to pay rent, so there are limits to what you can do to prevent this, but at a minimum, try not to damage the premises which can result in additional amounts owed. Disruption Of Postal Service Fourth, until you can get change of address arrangements made, you will not receive any postal service, including bills you owe on loans and credit cards (or even worse, demands to respond to small claims court lawsuits up to 100,000 pounds). Failing to pay these bills or to respond to notices can lead to more damage to your credit, late payment penalties, default judgments in court cases, and other problems like disrupted efforts to apply to universities or to meet requirements to obtain scholarships. You can avoid this by obtaining a post office box and redirecting your mail there before you vacate the premises. | Purchasing a lot that contained the keys does not provide any rights to access the locks that those keys would open. What someone who did this would be charged with would vary by both location and also by prosecutorial discretion. The only exception in this scenario would be if the storage locker contained the deed to the property in question. | Yes; While contracts can be made in written and oral form bigger acquisitions normally are in written form. Also consider this: They can't prove that they told you that the balcony is not usable. Thats a big negative in buying a property and they would need to have it documented. If they still refuse consider seeking professional help. In my country lawyers offer "fast help" that isn't legally binding but costs you only 10$ and helps you finding out if your case has any possibility to get accepted/if you're right. EDIT: Regarding the reservation fee: You can dismiss that. You didn't reserved that object, you reserved a house with balcony. | 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. | Generally speaking, what isn't illegal by law is legal. It's possible for law enforcement agencies to share crime rates, maps, and their data, but within any laws regarding access and sharing of that data. Such crime data may be publicly available, but that depends on local and state laws. The local or state agency would have to enter into a legal licensing agreement - if local and state laws allow such sharing - with the GPS company to provide the data, update it, and reasonably assure that it is accurate. The more realistic reason GPS systems might choose to not show crime data may be public relations. If a GPS user lives in an area that has been objectively identified by data as having a higher than baseline crime rate, i.e. for carjackings, that user may not be very happy with that designation. Worse, what happens to public relations when data errors show an area is wrongfully identified as high crime? What kinds of lawsuits could result? Real estate agents suing since bad data from a GPS unit soured the sale of a house? |
Can a party demand you not record their phone call? To my understanding call recording is legal in Canada, even if the other person isn't aware of it. I am going through arbitration, and someone I spoke with said "there is to be no recording of this or any other calls". Must I follow this instruction? If someone expressly states they do not wish to be recorded, is recording the conversation illegal? | 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. | 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. | Yes, there is legal precedent against this that would only apply to a government employee. First, let's discuss the private sector. In this case, you are a private employee that comes to your place of work and accuses you of "stealing the cookies from the cookie jar" which is a serious criminal offense. They wish to talk and your boss is in the room. You plead the 5th, but your boss says you're fired if you don't talk to the cops. This is legal because you still have the right to refuse to talk, you just lose your job. A private employer has the right to free association, and wants nothing to do with cookie thieves, alleged or actual. However, in the government employ, your boss is an agent of the government. This same situation is different because the government pays the boss and the agent... so in essence the government is saying talk or be fired. This is unconstitutional as the government cannot retalitate against you for your refusal to talk. Generally, in order to talk to you, the investigator would need either a signed Garrity Statement or a Signed Kalkines Statement. The former is a statement saying that they are investigating a wrong doing but you cannot lose your job if you refuse to speak to the investigators, where as Kalkines says you must talk but you are granted immunity for your part in the wrong doing, so long as you make truthful statements. For more on this, check this legal blog. There is also the matter that a false accusation (and let me be clear... this is academic, I'm not saying the accusation in the real life topic is false, nor am I saying that the defense is false... we're merely discussing a possibility) is made to your employer and they do not offer the job on the basis of the accusation alone, this is grounds for defamation actions... and in certain jurisdictions, it's criminal defamation, so there could be jail time. It's interesting you mentioned teachers, because this happens alot. Kids do know that there are certain things that get a teacher fired quickly, so teachers do get the occasional false accusation of sexual assault (I know one teacher who has had multiple accusations over the course of her career). One of the few good things I can say about the Teachers Union is they cover the legal defense of accused teachers. The accusations do get the teacher removed from the class for sometime, but they don't lose their jobs over this matter. It's followed up but the accusation doesn't immediately lead to the teacher getting fired.. | In the UK and USA (and I imagine other jurisdictions) there have been laws that explicitly provide for orders obliging entities to (A) provide access or information and (B) keep the order secret. For example, in the USA the Stored Communications Act, Fair Credit Reporting Act and Right to Financial Privacy Act authorise the FBI to issue National Security Letters (Wikipedia, EFF, EPIC, Lawfare). These are an administrative subpoena, without prior approval from a judge, for meta-information (e.g. phone numbers dialed or email recipients addressed but not the content) of communications relevant to national security investigations. They typically contain a non-disclosure requirement prohibiting the recipient of the NSL from disclosing its existence or the FBI's demands. There have been challenges on First Amendment grounds to the non-disclosure aspect but, so far as I'm aware, they have all ultimately failed. Some of their non-disclosure requirements may eventually expire under other laws. In response, so-called 'warrant canaries' (Wikipedia) have been developed (and gone a bit further than the original idea) - these are intended to allow entities to relatively passively warn of such an order having been received if not the detail of the order. However, they can be legally risky in that they might be seen by a court as trying to circumvent the non-disclosure requirement and therefore breaking it. | Podcasts and recorded talks are protected by copyright, because they have already been put in fixed form. An extemporaneous radio text (e.g. from a dial-in talk show) does not have fixed form, until someone makes it permanent (audio-records it or writes the text down). A transcript of a podcast is a derivative work, and only the copyright owner can authorize creating a derivative work. So yes, permission is necessary. | To start off, you appear to be confusing assault and battery. Assault does not require physical contact in order for it to occur. Verbal assault is still a crime, but in your situation it doesn't appear that any verbal assault has occurred - he is not actively threatening you with harm, and you are not in fear of being harmed. Yelling can sometimes qualify as verbal assault, but any form of verbal assault is very hard to prove because it leaves no evidence. Unless someone other than the two parties involved comes forward, it likely won't go anywhere. Assuming this has been going on for some time, what you appear to be experiencing is harassment which usually qualifies as a civil matter, and police will not take any action other than asking one of you to leave in order to resolve the issue. Most often, they will ask you (as the person being harassed) to leave, but that can also be in your benefit. If you can prove the other person's harassment caused you to have to leave in order to be comfortable again, then you can claim damages and can sue that other person for the harassment - basically suing for damages of not being able to live in and enjoy your residence which you pay for, as well as any additional costs you encountered by having to find an alternate place to live because of their actions. Again, this is difficult to prove without someone else who has witnessed the continued harassment stepping forward (e.g. your guest who might have only witnessed it once is probably not an incredibly strong witness, because harassment is often defined as having persisted over time, and they cannot testify to more than what they saw in one night). The case would likely just devolve to a matter of "he-said" between the two of you - he will likely claim you just didn't like him and are making things up to get money out of him. You'd need to make sure you have other evidence that supports your side of the story. As far as claiming self-defense, my completely non-legal and mostly combination of "I wish this were common sense" and "I hate when people try to justify unneeded violence" advice is never rely on the self-defense plea. Unless you are in fear of your life, your best course of action if he threatens violence or actually hits you is to leave and let the police handle it. If you have physical marks on you and he has none on him, the case becomes much more clear-cut. If you fight back, and you both have marks, then it again becomes a case of "he-said" and it's hard to prove who initiated the confrontation without cooperating witnesses, and you'd likely both end up being arrested when the police showed up if they can't determine who the instigator was. Just because you know something was in self-defense doesn't necessarily mean the police, a judge, or a jury will believe you. Ultimately, if you're uncomfortable with the place you're living, you should start planning to move elsewhere immediately (which you appear to be doing). If you can both a) avoid financial damages to yourself by preventing yourself being put into a situation that requires you to move quickly without much planning and b) prevent the continued harassment - then you should. Don't let the pot just keep boiling over until it explodes all over the kitchen. You have the power to make this stop too, and you shouldn't rely on other people making the situation go away for you (e.g. your landlord is bound by a contract, and evicting a tenant based on your word can open them to a lot of legal troubles - they have to be very careful with how they handle such a situation). Yes, it sucks that it's not your fault you have to go through the extra effort or move away to resolve the situation, but getting yourself out of the situation should be your number one priority, and doing it yourself is often the easiest solution. | In all likelihood, the judge's order related to data collection and reselling is not legally enforceable. They weren't parties to the expungement action, so the judge doesn't have jurisdiction over them. And, the First Amendment protects the right to say truthful things pretty absolutely. Arguably, if the sites provided the information without making clear that it might not be current because records were expunged or corrected, there might be a claim for negligent misrepresentation, false light, or even defamation, but I seriously doubt that even those claims would hold up. The language in the order might cause sites to comply out of not legally justified concern, or just a desire to be accurate, even if it is not enforceable. So, it doesn't hurt to bring that information to the attention of such sites and ask them to take down the information. But, when push comes to shove, I very much doubt that you would prevail in court enforcing that order against them. Certainly, if you do nothing, they will do nothing, because they are not psychic and have no idea that the court order related to those records has been entered. Even a valid and enforceable order directed at a party over whom a court has jurisdiction is not effective until the person ordered to comply with it has notice of the order. And, there is no system that gives sites like that notice without you taking action to inform them of an order. | I'll preface this by saying I live in Australia where the lowest jurisdiction that can make an act a criminal offence is the state; local governments simply do not have that power here, Question 1: If I understand this right you have a law that you do not enforce that carries moderate sanctions and you are asking that a law that you do not enforce with greater sanctions will be a greater deterrent? Well ... no (see here). If you want to stop the behavior you have to enforce the sanctions that you have in a fair and impartial way. I would suggest that you make it very clear that starting in early September the laws will be enforced - that gives people fair warning. Then, each weekend in September you bring in enough police (State Troopers?) to enforce the law. Its not going to take many $250 fines to make people stop. Question 2: No comment. Question 3: No comment. Question 4: Sounds like a good way of getting the city sued for negligence; just because people are breaking the law does not make it legal to hurt them. If you are serious then fencing the entire area may be worthwhile but the area would still need to be policed. |
Can I make a sports compilation on Youtube using clips from various broadcasts? I would like to create a "Top 10"-style compilation of clips from a sports event that I particularly enjoyed watching some weeks ago. Since there are literally thousands of content creators on Youtube who publish such highlight reels on a regular basis, without any mention of permission from the broadcasters, I thought I could do it as well. However, it slipped into my mind that doing so would not necessarily be "fair use" legally speaking as I am neither criticizing nor educating anyone, nor is it for purely "personal" use. On the other hand, such a compilation has a "journalistic" nature, i.e., it shows the best moments from a match, or the worst fails from an event. Am I committing copyright infringement by uploading a sports compilation on youtube? If the answer to the above question is "yes", can someone explain to me how those thousands of compilation content creators get away with their videos, even as they're monetizing them? | Unfortunately, the "but everyone does that" (BEDT) argument doesn't hold water as evidenced by prosecutions of looters. Would uploading this video be a copyright infringement? It would be hard to answer this part of the question without knowing where and from whom the clips had come from. If the clips came from a company like ESPN or a YouTuber that doesn't give you permission to be able to use their clips then yes this might be a copyright infringement. If you use video/clips that are labeled as creative commons then nt it wouldn't be an infringement. YouTube has a feature for this. Would my actions be fair use? First, we'll need to understand what fair-use is. Fair use is the ability to use copyright material under certain circumstances without permission. To best determine if using copyright-protected material in your work you should weigh it against the four factors of fair use. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; The nature of the copyrighted work; The amount and substantiality of the portion used in relation to the copyrighted work as a whole; The effect of the use upon the potential market for or value of the copyrighted work. More information about fair-use here Youtube outlines their fair use guidelines here | "Personal use only" does not excuse copyright infringement under US law. The uploader does not hold copyright, and neither gives nor denies permission to copy his creation. The law does not require a copyright holder to deny permission, it requires the user to actually obtain permission. So no matter how you slice it (even as fair use) it is infringement for you to copy that video. | It is any law protecting me from the people that distrubute a video of me falling the stairs and shared without my permision? No. Your permission is not necessary for distributing or watching that video. The recording was from your workplace, where your entitlement to privacy is quite limited unlike few settings such as (1) your attorney's office in the course of obtaining legal advice for which the disclosure was needed, or (2) your home. Even if such an entitlement existed, your decision to share that recording with the person who was with you generally constitutes a waiver of your right to privacy regarding that incident. The waiver would apply even if California had some legislation akin to the EU's GDPR. Your description nowhere indicates that that person had a statutory or equitable duty of confidentiality. It is also highly doubtful that you would wish to block the distribution of the video if people instead of mocking you expressed something pleasant or encouraging to you. people who I don't even know their names come to me to comment about the video and joke about not falling again. That is not unlawful in and of itself. Since the matter does not involve a protected category such as sex, race, religion, or disability, pursuing a claim of hostile work environment would be quite a stretch. It would also be futile because any relief would not cover outsiders who watch the video and feel like joking about it. The notion of harassment entails a pattern of conduct (meaning that a person engages twice or more in that conduct) that causes a reasonable person to feel annoyed or concerned for his safety. Even if someone engages makes a few jokes that cause you to get annoyed, any petition for restraining orders seems unlikely to succeed. Sooner rather than later, the jokes will get old and people will move on. | The subtitles would be protected by copyright, in general. In the US, temporarily downloading the subtitle text to create statistics would, I think, constitute a fair use. It is transformative, it does not serve as a substitute for the original sub titles, and it does not harm the market for the film or for the sub titles. The existence of the API for the subtitles might or might not be evidence for fair use, depending on who supplied the data and under what terms. In other countries that have an exception to copyright for analysis and criticism, such a download might be held to come under such an exception. One cannot be sure until there is case law on the point, and I know of none. The ruling might be different in different countries. Statistics (words and their counts) about the subtitles for a particular film or video would be facts, and as such would not be protected by copyright at all. A text discussing those facts would be protected. | To do so I used some images and Gifs which may be under copyright but since I don't earn money for myself and there is no company backing me I was hoping that there is some protection for private persons like me who just want to showcase the project. Sorry. If your website is public facing (i.e. not password protected and available only to family and close friends), you need to follow copyright law. There is no exception to copyright just because a project is run by an individual for non-commercial purposes. I am also insecure about the GDPR regulations since I give users the ability to create an account and try it out. Your profile says you're in the EU. Then you need to comply with the GDPR. Is there any way to protect me against greedy lawyers and companies? Could I write something like: "This website is a peace of art" and save myself with arguments like "artistic freedom" or "free speech"? Nope. A controversial website run by Peter Sunde had at one point a "free speech" disclaimer (similar to the one you propose) posted. However, Sunde did never use this defense in court: Finnish court slaps Peter Sunde with €350k fine. If he had shown up in court, I am pretty sure the court would have told him that such a disclaimer has no legal merit. The only protection that will make you completely safe is to adhere to the law. | This appears to be very clear to me: "NPR does not allow other websites to post our content..." I cannot think of a more clear way to say "Do not reproduce our content on your site." Since you asked about licensing the right to reproduce their content, and they flatly ignored your request, I think it is safe to assume that they are not interested in licensing that right to you, even for a fee. This is also consistent with their "NPR does not allow [any] other websites to post..." language. It is always the copyright holder's right to refuse to offer any particular person (or all persons generally) a license, no matter what payment they might offer. (With the exception of statutory licenses, which in the U.S. exist only for recording covers of musical works.) They have also ignored your request to recompense them for infringement already performed. If in the future they decide to take legal action against you for your past infringement (hugely unlikely that such a hassle would be worthwhile for NPR) or seek any out of court settlement (again, quite unlikely they will care enough), I'm sure they will let you know. As they've said in their email, you are welcome to link to NPR's content. You are, of course, not welcome to spread misinformation or lies about NPR by claiming something like, "Look at this wonderful article that NPR wrote purely for us, at our personal request," or "NPR thinks that In Home Teaching Agency XXX is a great company, so we built a curriculum around their content," when NPR has never said any such thing. Any legal issue around linking would probably be a trademark offense, by wrongfully suggesting that NPR endorses you, or by misrepresenting yourself as an agent of NPR. If you don't do either of things, and just say, "Here's an article on [subject X] published by NPR," you're probably fine. If you want to be very thorough, you could include a disclaimer on your site like, "In Home Teaching Agency XXX is not a licencee or partner of NPR. Links to NPR articles are included for educational purposes only," or similar. This seems pretty excessive to me, since a reasonable person won't assume that linking to an article from a major news source suggests a partnership, but I suppose it couldn't hurt to include such a disclaimer. | I presume from the fact that you mention "fair use" that you're interested in United States law. In that case, the answer is a clear-cut "no". 17 USC 107: 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— 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. Let's look at your proposed use under these four factors: The purpose of use: Commercial use, selling these movie clips for direct profit. You're not making any sort of transformative use (such as critical commentary), you're just re-using them as is. Big strike against you. The nature of the copyrighted work: a work of fiction; your derivative is also an entertainment product. Another big strike. The portion used: I haven't seen the clips in question, but you mention "famous scenes". That would work in your favor if you were using the clips for something like scholarship, but since you're not, the fact that these are the "important parts" works against you; the fact that they're small is irrelevant. The effect on the potential market for the copyrighted work: This is a huge strike against you: your clips are directly displacing licensed use of the movie clips. If I were a movie company and I caught you doing this, I'd bring out the big guns: I'd sue you for every penny you earned, plus substantial penalties, plus lawyer fees, plus everything else I could think of. And given the strength of the case against you, it's virtually certain you'd lose. You might be tempted to compare what you're doing to animated-gif "image macros", but there's one major difference: the "macros" are generally used to compare a movie situation to an out-of-movie situation, making at least a gesture in the direction of transformative use and commentary. By pre-packinging your gifs, you're not commenting on anything. Your only option for making what you're doing legal is to go to the copyright owners and ask for permission. | Probably not. It sounds like you've copied the complete work without any meaningful transformation. You've reduced the market for the original work by hosting your own copy. The fact that your purpose "is to share the information" doesn't really do you any good, as that is also the purpose of the original work. You're almost certainly outside fair-use territory. If you're looking for a "kosher" way to do this, the generally accepted practice is to link to the article and either paraphrase or excerpt the most relevant portions. That said, the fact that this piece came from a university may help you out. If it's a public university, it may be that its "news" articles are actually public records and not protected by copyright. For more information on how to run a fair-use analysis, see the answer here. |
What does "possible" mean in this compensation context? This article is titled "Paddington station: Commuter gets £27k for 'possible pigeon poo slip'". Later in the article is say the compensation was payed out after "possibly slipping". Finally, it references a "possible lacerated finger" as a cause for compensation payout. What does possible/possibly mean in this context? Is it that cause was possibly the fault of the party making the payout or that it was possible that the slip happened, or some other meaning? | From the news article alone, one cannot tell just what is meant by "possible" here. My guess is that the passenger claimed that the event happened, the railway has not conceded that it did, but would rather settle than pay the costs of defending the case, and take the risk of a large verdict, and the risk of negative publicity. So "possibly" would mean "not proved in court". | The law says don't drive an unsafe vehicle on the road. You disobeyed the law. There were methods of having your tyres fixed without driving on the road (e.g. taking the tyres to the mechanic in a different vehicle, calling a mobile mechanic etc.) so you have no defence of necessity. In all likelihood you will be convicted and penalised. You need legal advice. Whether it's fair or not is a philosophical consideration, not a legal one. | It means that if one party breaks the lease and the other party chooses not to enforce their rights in relation to the breach, it doesn't mean that they won't enforce their rights the next time that provision is breached unless they agree that in writing thereby changing the agreement. Which may just be the longest coherent sentence I have ever written. | In New Zealand, employers have a duty to take all practicable steps to ensure their workplace is safe for employees and for others who come onto the premises (Health and Safety in Employment Act s6). So if there was a wasp nest and they didn't do anything about it, presumably they would be liable. If it was a random bee, I doubt they would be liable, because they couldn't practicably prevent a bee flying in if, say, someone opened the door. The state would have to charge the company as HSEA is a criminal provisions act. If the plaintiff brought a claim based on the tort of negligence, they would have to prove that the company had a duty of care, breached that duty, the breach caused damage, and the damage was not too remote from the breach. The company does have a duty of care to their patrons. The standard for this is what a reasonable person would have done in the circumstances. If they didn't remove a wasp nest they may have breached their duty of care. The breach will have caused damage (a wasp sting). It wouldn't have been too remote since had they removed the wasp nest, the person wouldn't have been stung. However if a random bee flew in, the company probably wouldn't have breached their duty of care, and if the court found that they had, the damage would probably be too remote or not have been caused by them directly. | It will vary by jurisdiction. This is a complicated area of law, but usually an advertisement or a display of goods in a shop is not an "offer" (in the contract law sense of the term), but an invitation to treat (or "invitation to bargain" in the US). The "offer" is the shopper saying "I'd like one of those please" or putting the goods on the band for the till. The "acceptance" is the checkout girl saying "that'll be ..." | I assume you're talking about this case: Bus lane camera mistakes woman's sweater for number plate. No he couldn't just ignore it - because that doesn't actually result in it getting put in front of a human (judge or otherwise). Instead the fine would escalate and ultimately be passed to a collections agency. Only challenging the Penalty Charge Notice (as this person did) would get a human involved. As a bonus, if the automated fine happens to come with a S172 notice to identify the driver ignoring that is an offence in of itself (irrespective of the original alleged offence), and in many cases carries a worse penalty (£1000 and 6 points IIRC). what if this item of clothing became fashionable and was therefore causing this person to receive hundreds of these fines every week? While it's unlikely to get to that stage - the item of clothing on its own wouldn't do it, there needed to be a specific partial-obscurement of the garment as well, it's not impossible, after all perhaps it's their favorite sweater, they always carry their bag like that and cut across the bus lane on their way to work etc. In those circumstances there's nothing legally that changes, I'd expect the poor vehicle owner to be on first name terms with the people at the council enforcement call centre in question sooner rather than later. Re edit: Suppose I want to annoy somebody as much as possible, what's to stop me from printing a t-shirt with their actual number plate on it, then walking around past all sorts of cameras, knowing that they will receive multiple fines every day and have no choice but to keep calling and explaining. After all, the council has no duty to make it easy for someone to get through on the phone, so, potentially, I could walk around bus lanes and car parks all day. I could get some friends to do this all over the country in different local authority areas and the victim could - literally - have not enough hours in the day to have to keep fighting false fines. Would they not have some recourse to sue for harassment or "vexatious litigation"? In all honesty I don't know for sure what would happen in this scenario - I can't think of a similar enough case. But I would expect targeting an individual in this manner would qualify as harassment pretty easily and for which there are both criminal and civil actions that can be taken. I suppose hypothetically you could argue that the "number plate shirt" is effectively being used to make false allegations that the car's registered keeper had committed crimes, which opens up avenues to prosecution for Perverting the Course of Justice or wasting police time. But I have no idea how likely that would be to be pursued. | Is something considered stolen if it possibly could have been lost? Something is considered stolen if it was stolen. You don't have your passport + Someone entered the room where it was ≠ They stole it Can this be brought to small claims court? What damage did you suffer that could be remedied by a monetary settlement? Sure, the landlord entering your room without your permission is probably unlawful but it's not clear that it did you any damage. No damage; no case. Should the police or some other government agency care? Here is a ranking of government cares: Getting reelected National security Economic Management ... 42,567. Murder ... 421,762. Passport Fraud ... 7,656,232. Passport theft ... 58,432,546. Passports that might have been stolen but probably weren't | I can't speak for the US but in Australia this would not be binding. You entered a contract for the vacuum cleaner the terms of conditions of which were made known to you at the time of purchase – the ticketed price, any store or website displayed terms and whatever was written on the outside of the box. Any alleged terms that were not made known when you entered the contract e.g. because they are inside the box are just that: alleged. In addition, the manufacturer would have committed an offence under Australian Consumer Law by misleading you that such terms were binding. This could lead to a fine in the multiple millions of dollars if the breach is widespread and egregious enough. |
youtube video IP I am assuming (please to correct if not true) that copyright is not automatically conferred and that there is a process that must be followed. Assume the venue is the USA Videos are often used to show real-estate properties. How does one know if the video is copyrighted (or any other IP protection)? I ask because I would like to understand if altering the video (removing the realtor info and possibly other mods) for other purposes presents any problems. Any suggestions improve (narrow) the questions are appreciated. | "that copyright is not automatically conferred and that there is a process that must be followed" No, this is completely backwards. Copyright is automatic (in most places), but there is a formal process if you want. Copyright happens the moment that the work is created. In the US, if you want to sue somebody for copyright infringement, you have to register your copyright, but you still have one regardless of registration. Modifying the video is a derivative work and must be licensed/released from the original author/copyright holder. From copyright.gov: When is my work protected? Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device. Do I have to register with your office to be protected? No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section “Copyright Registration.” | A proof can be protected by copyright. The underlying facts of math cannot. But if one has copied details of the order of the proof, or of the selection of theorems to use, and if several other choices would have been possible, then the new proof may constitute a trivially modified copy, or a derivative work, and in either case making of it might be copyright infringement. However, making and distributing a copy, even with no changes at all, for purposes of comment and criticism, might be fair use in the US, fair dealing in the UK or some other parts of the Commonwealth, or fall under an exception to copyright in other countries (these generally vary significantly by country). This is usually a very fact-driven question. | That's copyright infringement, and is illegal under various copyright laws. To take down the content, you'll have to make a claim under the Digital Millennium Copyright Act. The online form for making a takedown notice to YouTube under the DMCA can be found here: https://support.google.com/youtube/answer/2807622?hl=en Remember, that by submitting a takedown notice, that you are initiating a legal process. Take extra care not to abuse it, and to make sure that all information you submit is accurate. | The subtitles would be protected by copyright, in general. In the US, temporarily downloading the subtitle text to create statistics would, I think, constitute a fair use. It is transformative, it does not serve as a substitute for the original sub titles, and it does not harm the market for the film or for the sub titles. The existence of the API for the subtitles might or might not be evidence for fair use, depending on who supplied the data and under what terms. In other countries that have an exception to copyright for analysis and criticism, such a download might be held to come under such an exception. One cannot be sure until there is case law on the point, and I know of none. The ruling might be different in different countries. Statistics (words and their counts) about the subtitles for a particular film or video would be facts, and as such would not be protected by copyright at all. A text discussing those facts would be protected. | The particulars of "actual knowledge" are addressed in Viacom v. YouTube. The ruling from the appeals court states (emphasis mine): Under § 512(c)(1)(A), knowledge or awareness alone does not disqualify the service provider; rather, the provider that gains knowledge or awareness of infringing activity retains safe-harbor protection if it “acts expeditiously to remove, or disable access to, the material.” 17 U.S.C. § 512(c)(1)(A)(iii). Thus, the nature of the removal obligation itself contemplates knowledge or awareness of specific infringing material, because expeditious removal is possible only if the service provider knows with particularity which items to remove... Thus, actual knowledge must be knowledge that is specific enough to allow a service provider to take action against specific infringing content. "General" knowledge of infringement is not specific enough to be actionable, so it cannot qualify as "actual knowledge". (e.g., The general knowledge, "In the past, about 5% of the videos uploaded to our site were infringing, and we expect that trend continues into the present, so some of our videos right now are probably infringing," is not actionable to specific videos, so it does not quality as "actual knowledge".) That ruling also clarifies the distinction between (i) and (ii), which are respectively termed the "actual knowledge" provision and "red flag" provision: In other words, the actual knowledge provision turns on whether the provider actually or “subjectively” knew of specific infringement, while the red flag provision turns on whether the provider was subjectively aware of facts that would have made the specific infringement “objectively” obvious to a reasonable person. Actual knowledge is different from a notification, which the service operator must respond to according to section (c)(1)(C) (whereas your quote is from (c)(1)(A)): (C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity. Expeditious removal is required in either event: the operator has actual knowledge of infringement, per (c)(1)(A)(i), or the operator gets a notification, per (c)(1)(C). Actual knowledge and notifications are different, but they impose similar responsibilities for the operator. | Am I as the user of this site in any way liable if the music turns out to violate copyright? Yes. In a similar way to if I give you “permission” to take my neighbour’s car. Only worse. Because stealing requires intent - you have to mean to do it - while copyright violation is strict liability - if you do it, you’re guilty. If the user that uploaded the item did not have the authority to give the site permission then the site does not have permission and neither do you. If you take reasonable precautions such as performing a reverse image source and verifying that the item appears to be owned by the same person everywhere and, perhaps, reaching out to them then your violation will be an “innocent” infringement which mitigates but does not eliminate damages. The only way to be sure with copyright is to know the provenance of the copyright/licences back to the original creator. | This basically is about the legal responsibility a web-site owner has for user-created content that violate copyright or other laws (such as libel laws). In the USA, this situation is covered by the DMCA. In the EU, this situation is covered by the e-commerce directive. In other jurisdictions, other regulation may apply. The DMCA (USA) is the simplest of those regulations. It stipulates a protocol of Notice and takedown. A web-site owner that complies with this protocol is given Save Harbour. This means that a compliant web-site owner cannot be sued. This goes both for a web-site that is a registered business, and a site run by an individual. The owner of the IP may, however, take the individual who stole and published copyright protected work to court, and will do probably do so if the financial loss was substantial (e.g. a major motion picture was leaked before hitting the cinemas). In the EU, the law is much less explicit than in the USA. Basically, the Notice and takedown protocol works like in the USA, but since it is not part of the law, it is less formal. In the USA, you can safely not act on any complaint that does not strictly follow the protocol (you just have to give feedback so they can fix it). Not so in the EU. And as follows from Delfi AS vs. Estonia, you can be sued even if you take down stuff. In particular if you create an environment for anonymous postings that encourage transgressions and have no means of moderation in place. So if the web-site is located in the EU, the website owner need to exercise more caution when he lets friends publish content, than when a website owner in the USA. | No license can create patent protection for the subject of your videos. Licenses apply to the copyright that is inherently created when you create the video. Patents can only be obtained by applying for them through patent offices. Your video would act as prior art if anyone (including yourself, with some exceptions) later tries to apply for patent protection of any of the inventions shown in the video. For you, the US (and a few other countries) offers a 1 year grace period following your public disclosure, during which you are still allowed to file a patent application on the inventions without the video counting as prior art; in most other countries, the video would immediately disqualify you from protecting the subject inventions, unless you file a patent application before publishing the video. |
What happens if I don't accept cookies? Due to the so-called "cookie law", websites that are owned in the EU or are targeted towards EU citizens are now required to prompt users to store cookies. Most often this takes the form of either a pop-up or a ribbon informing the user what the cookies are used for and a button to accept them. As I've come to notice, however, this doesn't seem to cover all kinds of cookies. Many sites create cookies even when I browse them without accepting to store them. What should a site do when a user doesn't accept cookies and what kind of cookies can it store regardless of consent? | For reference, the cookie law you refer to is officially known as Regulation 6 in the Privacy and Electronic Communications (EC Directive) Regulations 2003. Quotations in my answer are excerpts from public advice on this topic published by the UK data protection authority, The Information Commissioner's Office. If a user has explicitly stated that they do not accept non-essential cookies, then any existing non-essential cookies placed by the website should be immediately removed, and this preference remembered so the cookies are not simply recreated a short while later. While a user may not have explicitly accepted cookies when asked, it is possible that the website is operating on the basis of implicit consent - i.e. assuming you accept unless you take action to state otherwise. The idea of implicit consent being allowed is to help make the implementation of cookie questions/banners less disruptive to end users' website experiences. "Consent does not necessarily have to be explicit ‘opt-in’ consent. Implied consent can also be valid. If you are relying on implied consent, you need to be confident that your users fully understand that their actions will result in cookies being set. However, in some circumstances (for example, collecting sensitive personal data such as health details) it is likely that explicit opt-in consent is more appropriate." Ref: Guide to PECR: Cookies and Similar Technologies - What counts as Consent? There are a few exemptions where consent for cookies is not required, and so a couple of examples for cookies that could be stored regardless of consent might include: (a) a first-party cookie to remember the user's preference approving or disapproving the use of cookies (otherwise every time a new page is opened they would be asked the cookie question again); (b) a first-party session cookie to remember who the user is after they have logged into the website; or upon interacting with an e-commerce website, to remember which products they have added to a cart. These would be considered essential for the website to function. Non-essentially cookies, such as third-party tracking cookies would not be exempt. "There is an exemption if: (a) the cookie is for the sole purpose of carrying out the transmission of a communication over an electronic communications network; or (b) the cookie is strictly necessary to provide an ‘information society service’ (eg a service over the internet) requested by the subscriber or user. Note that it must be essential to fulfil their request – cookies that are helpful or convenient but not essential, or that are only essential for your own purposes, will still require consent. This means you are unlikely to need consent for: (a) cookies used to remember the goods a user wishes to buy when they add goods to their online basket or proceed to the checkout on an internet shopping website; (b) session cookies providing security that is essential to comply with data protection security requirements for an online service the user has requested – eg online banking services; or (c) load-balancing cookies that ensure the content of your page loads quickly and effectively by distributing the workload across several computers. However, it is still good practice to provide users with information about these cookies, even if you do not need consent." Ref: Guide to PECR: Cookies and Similar Technologies - Are there any exemptions? It is worth noting that guidance was not very specific/clear on how this legislation should be implemented, and so there are vast differences in websites approaches to this challenge. Also remember that some websites may actually be non-compliant with this legislation: (a) through poor implementation - even if they ask the question if the website source code behind the scenes doesn't appropriately observe the end-user's preferences, or by appearing to be compliant while storing cookies which are not explained/justified in the privacy policy; or (b) through conscious deliberate decision - deciding they did not want to comply with legislation they do not agree with on the basis that to implement a cookie question/banner might cost them customers by being unnecessarily disruptive to the user experience; (c) through ignorance - there's always the possibility of a website owner being unaware this legislation exists if their webdesign company didn't tell them and they don't follow related news, or perhaps they have forgotten about it, etc. | How to properly ask for consent is an evolving issue. Your general consent flow is very common, but I don't think it's entirely compliant. Legal background on consent Consent is one of the Art 6 GDPR legal bases for processing. The ePrivacy directive (ePD) also mandates consent for accessing information on a user's device, where such access is not strictly necessary for a service explicitly requested by the user. For example, this means that analytics cookies require consent. Consent is defined in Art 4(11) as: any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her Further conditions for consent are given in Art 7, such as that “It shall be as easy to withdraw as to give consent”. The EDPB guidelines 05/2020 on consent provide extensive interpretation of the GDPR that should be considered as effectively binding. First layer: accept / change preferences The first consent layer provides general information about the purposes that consent is being sought for. This seems to be mostly compliant, but I have some doubts. Consent must be freely given, and withdrawing consent must be as easy as giving it. I would therefore recommend having a “continue without consenting” option that is given roughly equal prominence to the alternatives. Consent must be informed. Even in the first layer, you must give basic information. In the EDPB guidelines, the following items are identified: controller's identity purposes of processing what type of data will be collected existence of the right to withdraw consent if relevant: that the data will be used for profiling/automated decision making if relevant: possible risks if international data transfers are made under Art 49(1)(a) I think this makes it difficult to collected an “agree to all” style consent that covers all purposes. It would be better to clearly distinguish between the analytics and advertising purposes even in your first layer. Consent must be specific to a purpose. You try to make this possible via a second layer where granular choices can be made. This isn't entirely bad, since you also need to make the consent flow simple enough as to avoid click fatigue. But since you only have two processing purposes, it would be better to show them separately on the first layer. You cannot generally make access to the app conditional on unrelated consent. The statement “This app uses tracking identifiers” suggests that there is no choice. It would be better to make it clear that the user can voluntarily consent to such processing. Together, this would mean that a design like the following could be more compliant. Text in [brackets] indicates buttons or links. Your privacy choices To support and improve this app, you can choose to give us access for the following purposes: Analytics: understanding how you use this app We would like to collect information on how you interact with the app, and store cookies on your device for this purpose. [more information] [decline / agree] More relevant advertising We will always show ads, but if you want we can build an interest profile to show you more relevant ads. [more information] [decline / agree] You can always change your choices in the app settings, but past use of your data remains legal after withdrawing consent. ExampleApp is provided by ExampleDeveloper Ltd. [full privacy notice] [continue] Second layer: detailed information about all services Your second layer sounds good, as it provides granular controls and more detailed information. As already mentioned, I would move some of this to the first layer. But one of your questions pertains to the defaults on this screen: It is OK if I set all of the options to enabled the first time that the user goes to the preference screen (enabled by default) ? No, this is not OK. Consent means opt-in, and requires an affirmative action by the user. You cannot have pre-checked checkboxes. The default is that no consent was given. If you have an “enable all” button, I would also expect a “disable all” button. Else, consent might not have been given freely. You also cannot rely on the consent until consent has been actually given. So you must not start collecting analytics in the background while the user is still on the consent choice screen. In addition to being non-compliant by itself, loading pre-ticked checkboxes increases the risk that your application accidentally considers the consent as already being given, which could easily lead to illegal processing if there's a bug in your app. You might have processing purposes that are based on a legitimate interest instead of consent. These can be enabled by default, but you generally have to make it possible for the user to object. Your relationship with third parties When using third party services, it is crucial to understand if they are a processor who is contractually bound to only use the data on your behalf, or a separate processor. You must disclose processors (or at least categories of processors) in your privacy notice, but not really during the consent flow. The GDPR does not distinguishing between doing processing activities yourself versus outsourcing them to a processor. In both cases, you are the controller, and only you are asking for consent. Thus, it's also superfluous to show third party privacy notices. It's your obligation as the controller to provide all necessary information. If you are collecting consent for other controllers with whom you have joint processing activities, you must make this much more prominently. You would have to disclose in the first layer that you are sharing the data with other controllers who can use the data for their own purposes. This sharing is part of the processing purpose. This is quite tricky to do correctly when it comes to ad networks, since ad networks generally won't be your data processor and can have many intransparent members. Demonstrating consent As the data controller, it is your obligation to be able to demonstrate that valid consent has been given. This implies process-level obligations such as being able to show that your consent flow is non-coercive and makes it possible to decline consent. This also implies individual-level obligations such as being able to show when a given user has given or withdrawn consent for which purpose. If you have a backend anyway, it could be sensible to store information there about consent/withdraw events. When the user returns to the consent management screen through the app settings, you could show a timestamp like “you consented to this purpose on 2021-08-22 17:14:23”. I have recently written a more detailed discussion about demonstrating consent. | There are a number of misconceptions here. GDPR does not generally impose blanket bans, but things get dicey if you're using data in a way that is not strictly necessary. Consent (freely given opt-in) is a way to continue nevertheless. A website without ads, tracking, or potentially tracking embedded content can probably work without having to ask for consent. Under the GDPR, every processing of personal data needs a purpose. This purpose must be covered by a legal basis. Some processing might be legally mandated or required by a contract with the data subject. It's also possible to base processing on a legitimate interest, but this requires a balancing test that also considers the data subject's rights and interests. As a last resort, consent can be an appropriate legal basis, but this comes with additional restrictions. Once you have a clear purpose that is covered by a legal basis, you can process the minimum data necessary to achieve the purpose. Sometimes, laws prescribe a particular legal basis. This is the case for cookies. You can use cookies (and similar technologies that access information on the end user's device) as strictly necessary to provide a service explicitly requested by the user. If you go beyond that, the ePrivacy Directive says you must obtain consent first. So for example, session cookies, shopping carts, or cookies that remember a “dark mode” preference are all perfectly fine because they are strictly necessary for something the user is trying to do. Also, you can use cookies to remember if the user gave or declined consent. On the other hand, analytics or tracking cookies are not necessary and require consent. If a website embeds third party content, this discloses personal data such as IP addresses to the third party. This disclosure requires a legal basis, most likely consent. There is case law about this regarding Facebook Like buttons on a page (→ Fashion ID case) but the same principle can be generalized to embedded Tweets or Youtube videos, images, or JavaScript files. A common way to handle this is to replace the embedded content with a placeholder, and to only load the embed once the user gives consent. But not all other domains or services are “third party” in the sense of the GDPR. When you engage a company to act as a data processor on your behalf, they are contractually bound to only use the data as instructed by you, and not for their own purposes. The GDPR allows you to outsource processing activities such as serving web content, as long as you have a suitable contract in place. Such “data processing agreements” are common for hosting providers or CDNs. When consent is to be used as a legal basis, it's important to consider the various conditions that the GDPR imposes (see Art 7 GDPR). The core principle is that consent must be freely given. You cannot make access to a site conditional on consent, so a naïve cookie wall or captive portal will be non-compliant. It's fine to force a choice, but “no” MUST be valid and possible. That consent is freely given also means that you must provide enough context for the user to make an informed decision, that the user must give consent through an unambiguous, affirmative action (consent is never the default), and that consent must be specific for a particular purpose (you can't bundle unrelated purposes). That is why modern consent management tools have multiple layers of information and allow the user to give consent for individual purposes (e.g. yes to analytics but no to ad personalization). In your particular context, you could proceed as follows: Figure out what kind of external content you're currently including. Can you enter into a data processing agreement with the external providers? If so, sign that. Can you host the content locally? This can be an easy solution except for video streams. Careful: copyright concerns might make this impossible. Can you replace the content with placeholders that only load if and when the user gives consent? That way, the rest of your site remains accessible without annoying consent walls. If the third party content is an unavoidable and essential part of your page, use an interstitial to inform the user of the risks before they proceed. | Whether consent is necessary depends on the specific processing purposes. For example, general usage statistics about search terms or about the usage of the site likely fall under a legitimate interest. Outside of the GDPR, there can be consent requirements for the use of specific technologies. Per the ePrivacy directive, consent is required for accessing or setting cookies on a user device, unless the cookie is strictly necessary for the service requested by the user (“functional cookie”). This consent requirement also extends to other storage and fingerprinting technologies. A functional cookie could e.g. be used to store a history of search terms on the user device itself. However, ad personalization is not strictly necessary for the search functionality, so setting cookies (or using similar technologies) for ad personalization requires consent, regardless of whether ad personalization itself would require consent. To determine whether a processing purpose falls under a legitimate interest, the data controller must weight the interest against the data subject's rights and freedoms. There are no objective guidelines on this, and ultimately a court would have to decide. However, I would assume that the tracking necessary for ad personalization is an inappropriate infringement on the data subject's rights and freedoms, so that ad personalization cannot fall under a legitimate interest. The data controller would have to choose a different legal basis, which effectively only leaves consent. | A web site that is serious on protecting some content behind a paywall will put the protected content, or a version of the page with both protected and unprotected content, on separate page or pages, so arranged that a user will not be able to follow the link until that user has signed in and been accepted as an authorized user. A site that merely uses CSS to hide "protected" content is not really protecting it. CSS is designed to be modified by the ultimate user -- that is part of its function. If the site chooses to send you content, you are entitled to read it. Even if some of the content has a CSS tag attached which suppresses or obscures the display of that content, they know perfectly well that any user can supersede this with local CSS, and so I don't see how they have any legal claim, nor any way of knowing if you have accessed the "hidden" content or not. If you attempt to bypass or hack a login screen, that might be circumvention under the US DMCA, or "Unauthorized computer access" under any of several laws. | Per Art 3(2), GDPR only applies to non-European companies when their processing activities relate to the offering of goods or services to people in Europe, or when the processing activities relate to monitoring people in Europe. However, the word “offer” of this targeting criterion requires some level of intent. It is not enough for GDPR to apply that they're marketing to someone who happens to be in Europe, but GDPR would apply if they are intentionally marketing to people who are in Europe. I don't know what they are marketing, so I don't know if that would be the case here. Even if GDPR were to apply, it would not be the most appropriate law. Yes, there's the GDPR right to erasure, which applies under some conditions (though there's a pretty absolute right to opt-out from marketing). The EU's ePrivacy Directive provides more specific rules though, in particular that every such marketing email must offer a way to unsubscribe. Other countries have comparable anti-spam laws, potentially also the home country for this online service. | 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. | First of all, although the GDPR is stated to apply to any site which processes the data of any person who is in the EU, it is not clear how a site not located in the EU, does not business in the EU, and does not primarily target EU residents as its audience can be required to comply with the GDPR. To the best of my knowledge, no such case has yet been brought, much less decided. There has also been some debate on whether an IP address constitutes Personal Data under the GDPR, and if it always does so, or only under particular conditions. The European Court of Justice (ECJ) held that (under the predecessor Directive 95/46/EC) that a dynamic IP address was personal data. But in that case the web site was run by the German Federal Government, which surely has wider scope for getting info from a German ISP than a small private US web activist does. There is not yet any case law that I know of on the applicability of the GDPR to IP addresses in any case at all similar to the one in the question. Joe would in my view be wise to at least learn that logs are being kept, and post a disclosure of this on the site. Whether Joe needs to do more than that is less than clear at this time. |
Passing on contractor hours If company A contracts company B to be paid by the hour, and company B contracts an individual C, also paid by the hour, is it legal for company B to pass on the hours their own contractor C billed them for to company A is if the individual C were company B's employee? Real world example: a company is contracting a software development LLC for some development worked paid by the hour. The software development LLC wants to hire a tester via contract to test this software for a few hours. The softwere dev LLC pays their tester, then bills the hours the tester works on the client's project to their client. I know that companies bill their clients for hours their on-payroll employees worked, but my question is specifically whether or not the hours of one contractor can be passed on by another to their client for working on the client's project. Also, the question is regarding United States law. | Yes One of the major factors that distinguishes a contract relationship from an employment relationship is the ability of the contractor to sub-contract. | Not really. If you are doing the same work as an employee and are treated the same as an employee, then the IRS (for purposes like withholding) and the government for other purposes (like wage and hour or antidiscrimination laws) is going to treat you like an employee. There is a multi-factor test to determine if you are an independent contractor or an employee. If you are working as an employee, the test will show that you are one. Failing to treat you like one is illegal and has tax consequences. See, e.g., https://www.irs.gov/publications/p15/ar02.html#en_US_2016_publink1000202292 | 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). | No The intent of the proposed bill is to codify existing case law. You are an employee now and you will be an employee then. You are an employee now because a) you are not free from the company's control and direction or b) the work you are doing is the company's main business. If you read the bill you will find out that c) involves "an independently established trade, occupation, or business" so your business qualifies for this but you need to qualify for all three factors to be an independent contractor. | It seems that this is known as a "working interview". Asking a candidate to do actual work without paying for it is illegal under Texas law. However asking a person to take an extensive, even a multi-day, skills test is not. Asking a prospective web developer to submit a portfolio of prior work, or to design a web site for a fictional company, say for the Acme Company that supplies the Coyote, is legal. Had the applicant created a web site for the actual employer without being paid, the applicant would own the copyright, and the prospective employer would be in violation of Texas minimum wage law, and would have committed copyright infringement if they used the design, without securing permission. Statutory damages for wilful copyright infringement can be as high as $150,000, and as low as $750. A federal suit must be filed to collect such damages. However, if no actual work was done, I doubt that the applicant has a valid claim. One would need to consult a lawyer to see if some other basis for a claim would apply. Many lawyers will offer an initial consultation for free or a nominal charge. Here are some Texas sources on the issues with "working interviews". The page "Are “Working Interviews” Legal?" from the Gay Reed law firm says: If you bring someone in for a working interview you must pay them for their time in compliance with state and federal law and make appropriate withholding. Some believe that since they are only going to be there for a few days, you don’t have to do new-hire paperwork. Just skip the I-9, background check, application, and W-2. Wrong again. If you hire anyone – for 1 day or 1,000, you have to do new hire paperwork. Depending on how long you would like to conduct your interview, we can create a day contract or a week contract for the prospective employee. This will limit your exposure under unemployment compensation laws, and you can even reduce the amount you pay. Where you might pay a good hygienist $20 per hour or more as a full time wage, you can pay them minimum wage during a working interview. The page "What Is a “Working Interview” and How Does It Work? from CEDR HR Solutions says: A “working interview” is the act of assessing a job candidate’s skills and ability to fit with your existing team by bringing them in to perform work for your business temporarily before you officially bring them on board. Traditionally, working interviews take place after a successful verbal interview. ... However, using working interviews does not exempt you from your obligations as an employer, and performing working interviews without understanding their legal implications can actually get you in a lot of trouble. ... If your “interviewee” is performing work for your business that would usually be performed by one of your employees, in a legal sense, that person must be treated as an employee of your business. By testing your applicants’ abilities and knowledge without having them perform actual work for your business, you can get an idea of their skill level without putting your practice at risk. “Skills tests” are especially helpful when it comes to evaluating candidates for clinical positions. ... Instead of performing an unpaid working interview or trying to call someone an independent contractor when they do not fit those requirements, hire them and use a “Getting Acquainted” period to judge whether a new hire will be a long-term fit for your practice (90 days is often a good span of time for this). The Texas Workforce Commission (TWC) has a page on "Interviews" which says: Interviews When interviewing applicants, apply the same standard that is applied to job applications - ask only about things that are directly related to the job requirements for the position under consideration. Watch out for tape-recording - the applicant might be tape-recording the interview without an employer's knowledge, and a video- or tape-recording of an interview would be discoverable in a discrimination claim or lawsuit. Tell the managers who conduct interviews to be extremely careful about note-taking during interviews - anything like that can be discovered in a claim or lawsuit - many discrimination cases have been lost due to careless and/or embarrassing comments written by interviewers. Test for whether something should be written down: would you feel comfortable explaining it in front of a judge and jury? "Working interviews" are not the same as pre-hire interviews at which an interviewee might demonstrate how he or she would carry out a sample task - an "interview" during which the worker performs actual work and receives what most companies would call "on the job" training or orientation to the company is work time - a company must pay at least minimum wage for such training time, satisfy all of the usual new-hire paperwork requirements (W-4, I-9, new hire report, and so on), and report the wages to TWC and IRS. The TWC can be reached at: 512-463-2222 The TWC page on the minimum wage says that Texas uses the federal minimum wage of $7.25/hr. It lists several exceptions, none of which seem to apply to the situation described in the question, or rather the situation that would have occurred had the applicant accepted an "unpaid trial" or "working interview". The actual Texas law is Chapter 62 of the Labor Code The exact section is 62.051. | Since this is a board about law, the legal answer is that New Jersey does not regulate vacation pay: In New Jersey, employers are not required to provide employees with vacation benefits, either paid or unpaid. If an employer chooses to provide these benefits, it is only required to comply with its established policy or employment contract. The specific law cited by that web page is this one, which says that "Nothing in this chapter requires an employer to pay an employee for hours the employee is not required to be at his or her place of work because of holidays, vacation, lunch hours, illness and similar reasons." So whether your boss can count weekend days as part of your vacation will depend on your employment contract and the established policies of your employer. Unfortunately, that's not something this forum can provide advice on. | This seems to fall under the Federal Fair Labor Standards Act, and is defined as "waiting time." From Employment Law Handbook: On-duty waiting time should be counted as hours worked. It is time spent by an employee, typically during normal work hours, waiting for direction from their team lead, supervisor, or manager. These on-duty waiting time periods usually last only for a short time and can be unpredictable as to when they occur and how long they will last. The employee is generally not allowed to leave the workplace during a period of on-duty waiting time. Essentially, because the employer benefits from having the employee available for immediate engagement in work and the employee is not otherwise able to use the time effectively for their own personal purposes, on-duty waiting time must be counted as hours worked. Examples of on-duty waiting time that should be counted as hours worked include a messenger waiting for his or her next assignment, a warehouse worker waiting for a truck to arrive, factory workers waiting for machinery to be fixed, and a firemen waiting for an emergency call. Each of these examples represents a situation where the hallmarks of on-duty waiting time are present: the employee is not engaged in the work for which they were hired; remains subject to the direction of his or her employer; is not able to effectively use the time for themselves; and is unsure as to when the waiting period will occur and/or how long it will last. Employees who work away from their employer’s place of business can also be on-duty while waiting for work. Repairmen for utility companies represent a good example of when workers may experience on-duty waiting time while away from the employer’s workplace. If a repairman must wait for a home or business owner to allow them into their premises or wait for a new service call to come in, that time should be counted as hours worked for purposes of minimum wage and overtime calculations. | The answer to your question is that your manager cannot ask you to undertake training without payment. All employees are entitled to be paid for the work they have done. They are also entitled to be paid if they are ready and willing to work but their employer has not provided them with any work to do, unless your employment contract says otherwise. https://www.citizensadvice.org.uk/work/rights-at-work/rights-to-pay/ Zero hours contracts can be very complicated legal issues, but you are entitled to be paid for the time you spend there doing what your employer has asked you to do. However, if your employment were to be terminated due to a disagreement then you may not be able to make any claim before an Employment Tribunal as you do not yet have a sufficient length of employment. There are many legal complications, and each case is different and individual. Giving general legal advice is beset with all kinds of problems. You may wish to direct your employer to the Citizens' Advice page. If they do not agree to either pay you for your time there or allow you to leave when they do not wish to pay you then your best option might be to seek employment elsewhere. |
Who within the United States would have a legal obligation to report (or stop) a suicide attempt? Since suicide is not a crime in many states is there any requirement for anyone to do something about an individual who is attempting suicide? That is to say does anyone, other then perhaps a therapist, have an obligation to prevent a suicide? Could a police officer, for example, stand by and watch a suicide occur without being guilty of a crime by not acting to prevent it? For that matter could a member of a hospital allow it to occur without violating their legal responsibilities? | A police officer (or any other random person) would not be guilty of a crime or subject to civil liability for standing by and watching a suicide occur when it could be prevented, unless the person attempting to commit suicide was in his custody and he failed to take reasonable care to prevent a suicide in which case the officer could be subject to civil liability. It would not be a violation of the law, however, for a police officer (or in most cases, even a private citizen) to intervene to attempt to stop an attempted suicide. Likewise, prisons and prison guards can have civil liability for failing to prevent the suicide of someone in their custody. Of course, a police officer might still receive a negative employment evaluation from his supervisor for such conduct, or might even be fired for it depending on the rules of a particular department, as it would reflect poorly on the police department and show bad judgment on the officers part. In general, an affirmative duty enforceable by a lawsuit to take reasonable efforts to prevent someone from committing suicide applies in circumstances where the person attempting to commit suicide is in someone else's care and custody and has their liberty constrained. So, there could be liability on the part of a hospital or treating medical personnel (I've actually brought such a case that was dismissed due to malpractice in missing a deadline by local co-counsel who was then disciplined for ethical violations by the State of Illinois for his conduct.) In the absence of such a relationship, a legal duty to take affirmative action to prevent a suicide generally does not arise. Certain medical facilities and providers are required to make anonymized incident reports for the purpose of creating national public health statistics on a periodic basis. In certain extreme circumstances, there are duties to report someone who is a threat to others which may also include a risk of suicide, to authorities, but those are quite narrowly interpreted, and actual legal consequences from failing to warn are very rare. There may be other reporting requirements in educational institutions and for mental health professionals, but I am not personally aware of them and I do not believe that they are national in scope. Usually, for criminal liability, there would have to be actual affirmative acts to aid or to attempt to cause a suicide. | There is an important distinction between moral duty and legal obligation. Even if an officer should arrest a person, given some moral standard, they are not legally obligated to do so. A test for legal obligation is whether an choice results in a negative legal outcome – is the officer sued or criminally penalized for acting or not acting? Unsurprisingly, the answer to the legal question is highly dependent on jurisdiction. I only consider US jurisdiction here (which incidently is not a single coherent jurisdiction, it is a phylum of jurisdictions), though some aspects of the answer extend to other countries. The clearest cases are obligations to not act in a certain way – prohibitions. Police may not beat a suspect in order to obtain information. Period, end of story, no discretion. There is a putative bright line that police cannot cross, namely violating an individual's rights, and that constitutes a major exception to the doctrine of police immunity. If X is a clearly established right, police cannot violate that right and if they do, they can be sued or even prosecuted. Sometimes courts "discover" a particular right in a certain case, so the individual (plaintiff in a civil case) may be vindicated but the officer will not be subject to legal sanctions, since LEOs are not held to be appellate court justices who can divine the future discover of a legal right. 18 USC 242 statutorily describes certain circumstances where a choice is criminally proscribed, and 42 USC 1983 allows for civil suits. This pertains to things that an officer does, saying what an officer does not legally have the discretion to perform an act. Now setting aside proscriptions where "you may not...", the doctrine of sovereign immunity prohibits civil or criminal actions against the government (including LEOs) unless a specific exception has been carved out. I recommend this (open access) journal issue on Discretion in Law Enforcement. There do exist statutory obligations to act imposed on LEOs, for example see this AG legal opinion from Florida, stating that A law enforcement officer, including a police officer, has a legal duty to provide aid to ill, injured, and distressed persons who are not in police custody during an emergency whether the law enforcement officer is on-duty or acting in a law enforcement capacity off-duty. A famous case regarding (non)liability for police inaction is Castle Rock v. Gonzales. In this case, police declined to enforce a Temporary restraining order (TRO) against plaintiff's estranged husband (who then murdered the children). The Supreme Court observes that the Due Process Clause does not “requir[e] the State to protect the life, liberty, and property of its citizens against invasion by private actors” and also noted the lack of express statutory obligation to enforce that law. In Everton v. Willard, the Florida Supreme Court addressed the question of whether discretionary police power authority to make or not make an arrest and whether a decision not to take an individual into custody constitutes a basic judgmental or decision-making function that is immune from tort liability and they do hold that the decision of whether to enforce the law by making an arrest is a basic judgmental or discretionary governmental function that is immune from suit, regardless of whether the decision is made by the officer on the street, by his sergeant, lieutenant or captain, or by the sheriff or chief of police There have been disagreements on sovereign immunity, for example Huhn v. Dixie Insurance Co., 453 So. 2d 70, which held that when an individual suffers a direct, personal injury proximately caused by the negligence of a municipal employee while acting within the scope of his employment, the injured individual is entitled to redress for the wrong done (the relevant action was not arresting a person for DUI). As employees of the government, LEOs are subject to the over-arching rules of their employer. They may be ordered by their superiors to refrain from arresting a law-breaker during a riot, on the grounds that doing so will exacerbate a tense situation. The police department might be sued for such a decision, but it is unlikely that the government will be held liable for an essentially political decision. Likewise, enforcement of "no public camping" laws is highly variable, and the courts will most likely not sanction a city for not arresting homeless people who are camping on public property in violation of the law. | Charged? Of course, the police can charge you with anything at any time Could you be convicted? Maybe. Their best shot is charging you with “Manslaughter by an unlawful and dangerous act” also called constructive manslaughter. The Crown must prove your act: was intentional, was unlawful, leads the reasonable person to realise that some other person is at risk of physical harm, and caused the death. The first two are uncontestable: the protesters are deliberately engaging in an illegal act. No 3 would be up to the jury. No 4 is also up to the jury and would turn on the evidence that the delay to the ambulance caused the death. | united-states This question does not indicate in what jurisdiction the hypothetical events take place. Since they are hypothetical, I am going to assume the United States. Perhaps other answers will be given for other jurisdictions. I would be interested to read such answers. The Officer's Authority In the hypothetical situation described, it would appear that the police officer had no warrant or other court order, and that he did not have any probable cause to believe that any criminal activity was in progress, or that any crime had been committed. Indeed it would appear that the officer did not even have the "reasonable suspicion" required for a so-called Terry stop (named for the case, Terry v. Ohio, 392 U.S. 1 (1968) in which such stops were declared legal). In any case the encounter described is not a Terry stop, because such a stop takes place "on the street" or in a public place, not on private property. So far it seems that the police office is acting without lawful authority. When the man orders the officer to leave his property, the demand is lawful, and by not leaving, the officer becomes a trespasser, unless the officer has some justification not mentioned in the question. The Duty to Comply However, once the officer starts to give orders, the other person must generally treat them as lawful. There are exceptions: Officers cannot compel people to commit crimes, nor to submit to rape or murder. But orders given for the ostensible protection of the officer have particular deference. As the US Supreme court said in Terry v. Ohio (cited above): ... we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is, in fact, carrying a weapon and to neutralize the threat of physical harm. (emphasis added) Resisting the Officer Following the logic of Terry Courts tend to give deference to police assertions of the need to protect themselves. The modern tread is to require citizens to submit to police orders in such cases, even if the citizen believes the order to be unlawful, and even if the court eventually agrees. In many states, violent resistance to such orders would be a crime even if the order was later ruled unlawful. In every US state, he use of deadly force, by drawing and firing a gun at a police officer who has issued possibly unlawful orders, but has not threatened the life or well being of anyone, and has not used any force at all, would be clearly criminal. Nolo Press's article on "Resisting Unlawful arrest" says: Historically, American citizens were legally entitled to use reasonable force to resist unlawful arrest. Some states continue to follow this rule, while others don’t. A statute rejecting the traditional rule might say something like this: “You can’t use force to resist if you know or should know that you’re being arrested by a police officer, regardless of whether the arrest is legal.” ... It’s critical to note that one can be convicted of resisting arrest even without having committed the crime that was the basis for the arrest. It should be understood that even in those US states which follow the "traditional rule" and permit resistance to an unlawful arrest, only "reasonable force" is permitted. Shooting a gun at an officer is deadly force, and will not be reasonable unless the person has a justified belief that the officer is about to kill or seriously injure the arrestee or another person without justification. Also, if the arrest is somehow lawful, even though the arrestee reasonably believed it to be unlawful, the use of even "reasonable" force is no longer permitted, and the arrestee may be convicted of resisting arrestee and other crimes. This makes resistance a dangerous gamble, even in states that follow the traditional rule. In addition, resistance is all too likely to lead to escalation of the conflict, and end with the arrestee shot dead or seriously injured. Even if the officer's actions are later held unlawful, that will not bring the arrestee back to life. Under Color of Law The question asks if the office's actions are taken "under color of law". They are, in US law. This does not mean that the acts are lawful or proper. Rather it means that they are take by means of legal authority. Such acts therefore constitute "state action" subject to the limitations of the 14th Amendment to the US Federal Constitution. The Wikipedia article on this topic (linked above) says: ... just because something is done with the "color of law" does not mean that the action was lawful. When police act outside their lawful authority and violate the civil rights of a citizen, the FBI is tasked with investigating. The well known "section 1983" (42 USC. § 1983) provides a private right of action in such cases, saying: Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress ... Here the hypothetical officer's entry onto private property, his refusal to leave when ordered by the owner, his order to put down the pistol and step away from the other guns (implying an arrest or detention), his order to stop recording and turn over the record, and his drawing of his firearm are all acts taken "under color of law", and had the citizen submitted, he could have subsequently filed a Sec 1983 suit against the officer, although he would have had to establish harm done to collect more than nominal damages. The officer is relying on his authority as a police officer to enforce his orders, and indeed to support his presence on private property. This makes his actions clearly done "under color of law". | The quote doesn’t say they are lawful: just that they aren’t assault Indeed, it specifically says: But there are some specific offences that relate to threats to harm in the future, e.g. there is an offence of threatening to kill in the Offences Against the Person Act 1861. Assault is defined as putting someone in fear of imminent harm. Issuing threats of a more distant kind is a different crime. | It seems like callous behavior which leads to a foreseeable death deserves a bigger punishment than just firing of the administrator. The starting point of the analysis is that no one is legally responsible, civilly or criminally, for a suicide unless that person intended that the person who committed suicide do so, which is almost certainly not true in this case. As a matter of law, a suicide caused by merely callous behavior not intended to cause someone to commit suicide is not foreseeable. And if the only actions brought are civil, then the University would be the defendant and the actual individuals who were involved would not themselves even face any trial. This is not accurate. It would be routine to bring suit against anyone personal involved (probably both the administrator and the gay student who allegedly colluded), as well as the University, and indeed, the likelihood of a recovery against one or both of the individuals would be greater than the chance of recovery against the University. To recover against the University it would be necessary to show that the Title IX violation occurred pursuant to an officially approved policy or practice of the University, but this case seems to have at its heart, a failure to an administrator to follow a policy of the University. It might be possible to sue the University or someone involved in the process for a violation of his civil rights, but generally speaking, his death would not constitute recoverable damages in a such a suit. Also, generally speaking, a Title IX claim requires that any party held liable to have had an intent to violate someone's civil rights, rather than that the person was merely mere inept or negligent in implementation or non-implementation of a bureaucratic policy or dispute resolution procedure. This is alleged by the Plaintiff, probably in part because it has to be to prevent the case from being dismissed on the pleadings, but is quite implausible that this really happened that way, and this is difficult to prove unless there is some really hard evidence backing up the alleged collusion. Generally speaking, the fact that a hearing board comes up with a wrong conclusion after allegedly not following proper procedure, is not actionable for damages and certainly wouldn't constitute fraud. UPDATED RESPONSE TO EDIT 2: there maybe other victims, in similar situations, who are not protected by the criminal justice system if nothing of what is alleged to have transpired is deemed illegal It is a common fallacy that if something is not a crime, that it is not illegal or that there are no remedies. A civil lawsuit is a common and often appropriate remedy for all manner of wrongs, and the compensatory and injunctive remedies for civil wrongs such as a breach of contract and torts such as the intentional infliction of emotional distress are often significant. This said, as a government entity, the University of Texas and its employees are probably immune to many tort causes of action that would be available against a private party engaged in the same conduct. In this case, probably the only viable causes of action against the University of Texas itself, as opposed to the responsible individuals in a particular case, would be for breach of contract for not actually carrying out its policies as impliedly promised, and for injunctive relief under Title IX insisting on new policies that would prevent misconduct in disciplinary proceedings. Generally speaking, a criminal law remedy is less victim oriented than a civil remedy and is outside the control of the victim, which can be traumatic for a victim who would prefer not to be involuntarily dragged into the criminal justice process. The notion that settlement is not possible in the criminal justice system is likewise mostly incorrect. There is a reason why we don't handle rapes (for example) in civil courts. Criminal justice system exists to make sure that, at least in theory, those who commit heinous acts cannot buy their way out of consequences of those actions. In fact, one can bring a cause of action for a rape in a civil court. I've done it. And, the lower threshold of proof, the lack of a right to remain silent without legal consequences under the 5th Amendment, the greater focus on compensation for the victim, and the greater level of control of the victim are all good reasons to pursue this route. Many cases of rape by people able to afford to pay compensation are also cases of actionable sexual harassment. In general, criminal law is the solution that is usually resorted to not so much because the acts committed are heinous, but because the typical person who violates a law that is criminally prosecuted is judgment proof and unable to pay compensation that is even remotely proportionate to the harm done, so a civil remedy does not discourage that behavior. Your typical rapist who is prosecuted in the criminal justice system isn't capable of paying meaningful compensation to a victim, although there are always exceptions. Preventing people from buying their way out of their wrongdoing is almost never advanced by criminal justice scholars as a reason for a criminal justice remedy. And, when I have clients who have been harmed, for example, by fraud, most would far prefer to receive compensation from the wrongdoer, than to see the perpetrator punished without receiving any meaningful compensation for their own injuries, which is the usual result in the criminal justice process. Most people think of the criminal justice system as more of a last resort when all other options fail than as a good first choice which it rarely is even when it is the least bad option. So back to the main question, what, if any, criminal charges can be leveled against the administrator and the false accuser if the alleged facts of the case can be confirmed to be true? In the fact pattern presented, where a public official at the University of Texas conspires with a student with whom the official has a pre-existing personal relationship to produce an intentionally inaccurate result in a University disciplinary hearing harming a defendant in that process, there are several university statutes that might form a basis for criminal action against either the public administrator or the conspiring student on the offense identified or conspiracy to commit the offense identified. In no case are any criminal charges against the University of Texas a plausible option in this fact pattern. Each of the offenses is a misdemeanor under Texas law. The best fit is "improper influence". Texas Penal Code § 36.04. This involves reaching an outcome in an adjudication for a reason other than one legally allowed due to someone's application of influence other than a bribe or kickback. The section states: (a) A person commits an offense if he privately addresses a representation, entreaty, argument, or other communication to any public servant who exercises or will exercise official discretion in an adjudicatory proceeding with an intent to influence the outcome of the proceeding on the basis of considerations other than those authorized by law. (b) For purposes of this section, “adjudicatory proceeding” means any proceeding before a court or any other agency of government in which the legal rights, powers, duties, or privileges of specified parties are determined. (c) An offense under this section is a Class A misdemeanor. Two other possibilities are "abuse of official capacity", Texas Penal Code §39.02, or "official oppression" Texas Penal Code § 39.03. These sections and a related one, read as follows in the pertinent or potentially pertinent parts: Sec. 39.01. DEFINITIONS. In this chapter: (1) "Law relating to a public servant's office or employment" means a law that specifically applies to a person acting in the capacity of a public servant and that directly or indirectly: (A) imposes a duty on the public servant; or (B) governs the conduct of the public servant. . . . Sec. 39.02. ABUSE OF OFFICIAL CAPACITY. (a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly: (1) violates a law relating to the public servant's office or employment . . . (b) An offense under Subsection (a)(1) is a Class A misdemeanor. . . . 39.03. OFFICIAL OPPRESSION. (a) A public servant acting under color of his office or employment commits an offense if he: . . . (2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or (3) intentionally subjects another to sexual harassment. (b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity. (c) In this section, "sexual harassment" means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly. (d) An offense under this section is a Class A misdemeanor . . . Also, in all three of these cases, the fact that someone committed suicide afterwards is basically irrelevant legally. | 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. | No Section 18-1-704.5. (1) says that : The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes. (*emphasis added) Subsections (2), (3), and (4) all refer to "any occupant of a dwelling" as the class authorized to use force by this section. An offie is not a dwelling. Section 18-1-901. Definitions says: (g) "Dwelling" means a building which is used, intended to be used, or usually used by a person for habitation. Section Section 18-1-704 provides that: (1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose. (2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and: (a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or (b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204; or (c) The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203.of person's authored by this law to use force Under that provision, the use of deadly force does not seem clearly justified. It is highly questionable that "a lesser degree of force is inadequate". Any conclusion that the intruder represents an "imminent use of unlawful physical force" seems dubious, but I can't say what a court might find. This law is fairly recent, there may be no published case law for it. |
Is recommending specific medications "practicing with a license"? My wife and I are receiving counseling about some marital issues. We met one time with the counselor, and my wife told him I'm depressed. He took that as fact without investigating, and pressed me to consider medication, listing several. He also did not ask about existing medications to consider interactions. As far as I know, this person has no medical license, but I'm planning to ask. If it's the case there's no license, has this crossed the line into practicing without a license? If so, what's the appropriate action to take? More generally, is there a way to tell when the line is crossed? | There is a world of legal difference between a doctor or counselor "pressing" you to consider meds and even suggesting several and them actually writing a prescription. The line to cross is a non-doctor writing you a prescription for prescription meds; this has not yet happened. And 99.99% of the time, it won't happen. The counselor is licensed by the state and will clearly know their legal limits, which are an important part of their education and licensing; they are not going to risk their license or a lawsuit by doing something illegal. If the counselor is a doctor and is able to write prescription, then they will ask you about medical history and other meds during a formal clinical visit in order to write the prescription. If you feel the counselor may be pressing you too hard to consider meds, he may be crossing an ethical line, but that's entirely different than breaking the law. Determining if he crossed an ethical line is for his licensing board to consider, not you. You can ask the licensing board how to proceed. Ask the counselor for their license number; they will freely give it and tell you who to contact. | health care checks. Hotel check in. Employment? maybe. Background Checks? doesn't matter. It actually does matter, because there is sometimes a law governing the documents that may be shown for a given purpose. For example, the I-9 form, for verifying someone's eligibility to accept employment in the US, has a well defined lists of documents that an employer must accept, and the passport card is one of those documents. A similar situation exists for Transportation Security Administration screening of air passengers. On the other hand, laws concerning proof of age for buying various products will vary from state to state, and retailers may or may not be required to accept any particular document. In the case of alcohol sales in North Carolina, for example, there is a brochure that lists "acceptable forms of identification" on page 17 and explicitly says that "passports may be in the booklet or card form." But that does not seem to create a legal requirement for the retailer to accept passport cards, because page 19 outlines the retailer's right to refuse, saying among other things that "there is no legal recourse by a customer who you have refused a sale." US passport law (22 USC Chapter 4 and 22 CFR parts 51 and 53) doesn't have anything to say about the passport's or passport card's role as an identification document; it speaks only of the more specific role as a travel document. So the general answer to your question, appears to be no. There is no law generally requiring people to accept a passport card if they also accept passports or driver's licenses. But in most specific instances, there may be a general requirement such as "government-issued identification" that includes passport cards in addition to passports and driver's licenses, or there may be a list that explicitly includes passport cards along with driver's licenses and passports. | Any parent may leave a child in the care of another responsible person. There is no special license required. The parent may use sound judgement in selecting the caretaker. Nor does a caretaker even have to be an adult -- teens are often used as baby sitters. If a reasonable parent would have known that a particular person was not a safe caretaker, then selecting that person might be negligence or child endangerment. Nor is there any legal requirement in most US states that a child be under anyone's direct supervision at all times. See "Free range parenting". Again, if in particular circumstances a reasonable parent should know that supervision is needed, failure to provide it might be child neglect or endangerment. Some US states set minimum ages for children to be unsupervised. NJ is not one, to the best of my understanding. | Yes, it’s legal Homeopathic “medicines” contain no active ingredients so they are effectively placebos. Placebo work for some patients some of the time but they don’t work if the patient knows what they are. For them to be effective they have to be kept secret. Most doctors from time-to-time and for various reasons prescribe placebos. The ethics of this practice is debatable but the legality isn’t - it’s totally legal. | Late to the party, but I'll answer anyways. In general, providers have a lot of wiggle room when sharing information with parents, on condition that the patient hasn't explicitly objected despite having opportunity to do so. HIPAA allows the provider to make a judgment call on whether such information can be shared without explicit consent: Quoting Title 45 § 164.510 : (i) Obtains the individual's agreement; (ii) Provides the individual with the opportunity to object to the disclosure, and the individual does not express an objection; or (iii) Reasonably infers from the circumstances, based the exercise of professional judgment, that the individual does not object to the disclosure. HHS does discuss disclosure to family members in their FAQ : A covered entity is permitted to share information with a family member or other person involved in an individual’s care or payment for care as long as the individual does not object. A parent of a child who has just turned 18 is likely still somewhat involved in the child's care, so, absent either an objection or a reason to believe the child would object if asked, sharing is probably not a violation. | We can look at Missouri law as an example. Missouri Statutes §577.029 says A licensed physician, registered nurse, phlebotomist, or trained medical technician, acting at the request and direction of the law enforcement officer under section 577.020, shall, with the consent of the patient or a warrant issued by a court of competent jurisdiction, withdraw blood for the purpose of determining the alcohol content of the blood, unless such medical personnel, in his or her good faith medical judgment, believes such procedure would endanger the life or health of the person in custody. Blood may be withdrawn only by such medical personnel, but such restriction shall not apply to the taking of a breath test, a saliva specimen, or a urine specimen. In withdrawing blood for the purpose of determining the alcohol content thereof, only a previously unused and sterile needle and sterile vessel shall be utilized and the withdrawal shall otherwise be in strict accord with accepted medical practices. Upon the request of the person who is tested, full information concerning the test taken at the direction of the law enforcement officer shall be made available to him or her. "Shall" means "must" – if there is a warrant (we assume there is no consent). Then the question is, what happens if the phlebotomist (etc) refuses? First, §577.031 immunizes the medical-person from legal liability when they act in compliance with a request from a LEO (a simple request, not necessarily accompanied by a warrant). §577.033 says that being dead, unconscious or otherwise incapable of refusing does not constitute withdrawal of consent (which is implied, by law). No specific penalty is prescribed for refusal to administer a court-ordered blood draw. There is no penalty for complying, there is no prescribed criminal penalty for refusing to comply with a court order (there is the possibility of a finding of contempt of court). Not every state is Missouri: I understand that Utah is different. | Not in jurisdictions I am familiar with. A "Power of attorney" is a power to act as an attorney-in-fact, not to act as an attorney-at-law. A layperson practicing law for someone other than herself is usually the unauthorized practice of law and is illegal in most jurisdictions. It would be permissible if a jurisdiction carved out an exception for a particular kind of case, but they generally don't and are very unlikely to do so in a criminal case. For example, in Washington State "Limited Practice Officers" can assist people with one of a very limited set of civil legal forms that do not need modification. There may be some exceptions, but they would be more likely to occur before a matter becomes criminal. For example, the accountant who represents a taxpayer before the IRS, or the agent who files a form containing perjury to a federal agency like the post office or homeland security on your behalf. So it is very unlikely, but if it is important to you you can ask someone familiar with your kind of case in your jurisdiction. | Health care providers in the US may send protected patient records to other health care providers for the purposes of treatment, either of the patient whose information it was or of a different patient (for instance, a doctor could send a chart of a different patient with a similar issue). This can be done without patient authorization, except for two cases: if the patient has requested more restrictions on use of their information and the provider agreed to those restrictions, and with psychotherapy notes. Source: HHS. WhatsApp specifically does not appear to be compliant with HIPAA, which is the US medical privacy law. However, there are many similar systems that are compliant. The body of your question asks about taking a smartphone screenshot; with many secure messaging systems, this is perfectly acceptable, and the principle of a doctor consulting with another doctor about a patient is actually encouraged. HIPAA violations do not by themselves result in any action against a medical license, nor can anyone besides the US government file suit based on a violation (everyone else is limited to complaining to the US government). Private lawsuits and (especially) license consequences are determined by state law, and are state- and situation-dependent. A doctor who calls a press conference to announce that this patient of his has HIV is more likely to face sanctions than a doctor whose violation was just not using a secure enough messaging client. HIPAA violations like this are not that uncommon, and generally result in at most a fine against the practice. |
Best way to provide video of landlord doing something he lied about not doing? I lived in a rental home where my landlord lived in the same building. The landlord had this notion he could "immediate evict" anyone. He told me if I wasn't out he would replace the locks and remove my belongings. Moving homes is a big task and I needed more than 24 hours. I purchased a surveillance camera because I knew the landlord had a key to my suite. One day my surveillance camera recorded the landlord entering my suite. He never gave me notice. I asked my landlord why he entered my suite without notice, he replied "actually no. The contractor entered your suite to see where a water pipe was. He was in there for less than two minutes". This is al lie in the sense the landlord was in there and for more than two minutes. How should I bring this up in court? The dispute is through the Civil Resolution Tribunal. Is my evidence enough or should I try to get him to repeat his lie in front of the tribunal? For example should I question him "did you enter my suite" and then present the video? Right now we're in the "facilitation phase" so I'm guessing it's best to keep the evidence hidden for as long as possible. | I don't know Canadian rental law, but as a general rule in civil cases you don't get to play Perry Mason and bring in evidence at the last minute. If you have evidence that the landlord broke the law then disclose it immediately and use it to pressure him into settling. His later lies to you are less important than the fact that he broke the law in the first place. However you can certainly testify about what he said as evidence that he has acted in bad faith. | 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. | Can a landlord (UK, English law) make a claim from a potential tenant who wants to back out of signing a Tenancy Agreement? No. Your description reflects that in this particular scenario there is no tenancy contract. The only actual contract relates to the holding deposit, and your description suggests that both parties fully complied with their obligations pursuant to that contract. Accordingly, neither party has a viable claim against the other. Regardless of whether verbal agreements are cognizable under UK tenancy law, the meeting of the minds you portray is that this tenancy ought to be formalized only by signing a contract. That supersedes customer's prior verbal expressions of intent about moving in. The landlord incurred expenses that either were covered by the customer's holding deposit or were unreasonable. An example of the latter is the fees "landlord has paid for the dates on the contract to be changed (repeatedly)", a task that any person can perform with a text editor at a negligible cost. Likewise, "turn[ing] down other potential tenants" is covered by the holding deposit the customer paid. As for taking "a detailed inventory", that is a task the landlord would perform with any potential tenant and which would render the same outcome regardless of who the tenant would be. The holding deposit must be associated to a deadline or holding period. Beyond that deadline, it is up to the landlord to grant customer's requests for postponement. But the landlord is not entitled to compensation for a risk he deliberately took without even requiring a [renewed] holding deposit. what's the situation if the tenant still claims they want to move in, but the landlord wants to withdraw because they no longer trusts the tenant's promises? That depends on the deadline associated to the holding deposit. Once the holding period has elapsed, the landlord is entitled to do with his property whatever he wants. The customer would have a claim only if (1) landlord withdraws prior to the deadline and (2) customer provably intended to move in. | If you have an actual lease under which you reside at your parents' place, they must abide by the terms of that lease – presumably that sets the rent that you pay and states how long the lease is good for, Otherwise, if you're just living there, and have been living there for some time, then the courts may treat you as a month-to-month tenant. That means that they can end the tenancy with 30 days notice. Or, they can initiate an eviction proceeding. The less optimal outcome is that the court may treat you as a house guest, in which case no formal eviction proceeding is necessary. One way or the other, it is illegal to physically give a person the heave-ho from their residence, even if it is a family member. One recourse then is to hire an attorney to persuade your parents of at least that aspect of the law, if it is really in doubt. This gent addresses the matter for parents whose children have moved back home. He also mentions hiring a mediator, which could put the situation on a clearer legal ground. As for psychiatrists, anybody can see a psychiatrist; and anybody is free to hire a lawyer to try to force another person to see a psychiatrist. The prospects of getting a court order to force a child or a parent to see a psychiatrist because they are at loggerheads over some matter is extremely remote. The courts only force psychiatric treatment in extreme cases (e.g. threats of violence, actual delusions). | Certainly, "Tortious interference" comes to mind. While it's a difficult one to prove, there are typically 6 elements: The existence of a contractual relationship or beneficial business relationship between two parties (possible problem here). Knowledge of that relationship by a third party. Intent of the third party to induce a party to the relationship to breach the relationship. (or refuse to enter one). Lack of any privilege on the part of the third party to induce such a breach. (no right to do so via some other aspect of law). The contractual relationship is breached. (the normally-accessible-to-anyone transaction is prevented). Damage to the party against whom the breach occurs The only real "stretch" here is that Tortious Interference is written for cases where you already have an existing business relationship or contract in place. You're talking about a situation where a vendor normally proffers its service to any member of the public, and you'd argue there's an implied contract that they do business with any comer. In real estate particularly, it gets a lot more complicated because of Fair Housing laws. The apartment could get in big trouble being caught refusing to do business with someone, if the reason for the refusal was sourced in something related to race, creed, religion, sexual orientation and a bunch of other no-no's. Even if that's not your motive, if they (plural: victim and attorney) can convince a judge or jury that it is your motive, you and the apartment could owe them a lot of money. Fun fact: conspiracy to commit a Federal crime is a felony, even if the crime isn't. Regardless... I think if you are paying the vendor to snub the customer, courts would find that to be a perverse and unjustifiable behavior, and would see harm in that, especially if it was part of a pattern of behavior that constituted harassment. They would tend to assume the worst motives unless you could show other motives. I suspect they could even get a restraining order blocking you from interfering in their business relationships anywhere. You would also be subject to discovery, and would be compelled to disclose anywhere else you interfered, and pretty much anything they want to ask you. You can't refuse to answer ... unless ... your answer would incriminate you of a crime. But that's the kiss of death in a civil trial, because the jury hears that, and infers you are a crook. Game over lol. | Your lawyer will advise you whether to worry, but it is not a crime to not pay the rent. The action that the landlord can take is (a) evicting you and (b) suing you for the unpaid rent. Whether a written lease is necessary depends on which province / territory you are in, since that is the level at which landlord-tenant law is determined. As far as I know, no province allows a person to avoid their rent obligation on the grounds that there was no signed lease. It doesn't matter if you have been living elsewhere most of the time or all of the time. | I did the Googling: Prior to the case described in this article, a notice was to be deemed served if the sender can sufficiently prove that the letter was properly addressed, pre-paid and posted. Law - Section 7 of the Interpretation Act 1978 The case made it clear that the same law also sets a condition, where if the letter was not received at said mailbox, or too late received, the notice is to be deemed not served. The receiver is not required to prove that the letter has not arrived in the mailbox. Also, if your mail has been tampered with, you should contact Royal Mail - they will perform an investigation and put your mailbox in order. I work with tenants and landlords, thus lots of official notices. In this practice, it's often a recommended action to follow up on a notice and make sure the receiver has indeed received and acknowledged the notice. I don't know if it's a legal requirement, but often in disputes (which go to arbitration by a 3rd party), if one party states they did not receive the notice and the other party can't sufficiently prove that they did everything in their power to contact and confirm the delivery of the notice, the notice is regarded as not served. I believe you cannot deny post. If it's in your mailbox, it's your responsibility to check and read it. | The person responsible for the leak pays This is a general principle that if your stuff causes harm, you are responsible for it as well of the costs of doing what’s necessary to stop it. This might or might not be you. Assuming the water is normal “splash” that is making its way into the unit below then it will be the person who is responsible for maintaining the waterproofing in your bathroom - that might be you or it might be the common property owner, you would need to check your by-laws. Of course, this assumes your building is new enough to have waterproofing - older buildings just relied on the tiling. If so, this is almost certainly your responsibility. If instead, it’s a leak from a pipe or fixture, then the owner of that is responsible. That could be you or the building owner or even your downstairs neighbour. Again, check your by-laws. Edit The OP has indicated they are a tenant, not the owner. In this case, it’s nothing to do with you unless your lease says you are responsible for building maintenance or you have been negligent. Residential leases almost never do the former and, unless you did something stupid, like allowing the bath to overflow or having water balloon fights, you probably haven’t been negligent. Refer the matter to your landlord and ask your neighbour to direct all future correspondence to them. |
Does consideration have to have value for someone who is a party to the contract? Suppose person A tells person B, "If you perform (service X) for me, I will donate $1,000 to Save the Whales (but no other compensation)." Neither A nor B has any connection to whales and will not benefit from this donation, but B happens to like whales and agrees anyway. Does this still count as consideration, even though there was never any possibility of B getting anything out of it? (United States) | Does this still count as consideration, even though there was never any possibility of B getting anything out of it? Yes. The sole fact that the promisee and the beneficiary are different and unrelated entities does not invalidate a contract. In terms of the Restatement (Second) of Contracts at § 302(1)(b), what matters is that "the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance". | The contract remains valid. Most contracts don't need to be written at all. Even if yours did need to be written under the Statute of Frauds or some other law, you're saying that it was made in writing, even though you later tore it up. The fact that the contract is missing or destroyed doesn't change the fact that it exists and obligates the parties; it just makes it harder to prove what it said. | There are two cases to distinguish: information that the other party does not want to give without court order, and information that the other party may not give without court order. Only the former case matters, of course, since the latter by definition requires a court order. So, if the other party is legally capable of giving the information, but it's commercially not sensible for them, then you'll need to sweeten the deal. And that's business, not a legal question anymore. In other words: there's no legal instrument that's at the same time equal to a court order but also different from one. When you need a court order, there's no alternative to a court order. | Assuming there is a contract (and it is not clear that there is), this is a purported liquidated damages clause. Alice is trying to dictate what Bob will owe her if he breaches his promise to not share the file. However, there are limits on what can be stipulated in a liquidated damages clause. Super Save Disposal Inc. v. Blazin Auto Ltd., 2011 BCSC 1784: The enforceability of a liquidated damages provision in an agreement engages two competing objectives: freedom of contract versus the right of the courts to intervene in a given case to relieve against an oppressive or unconscionable result flowing from enforcement of the liquidated damages term. It is well settled that the enforceability of such a term turns on whether it is a genuine pre-estimate of the expected loss that a party will sustain in the event of a breach of contract or a penalty clause so oppressive or unreasonable that equitable intervention is justified to prevent an injustice. Judicial interference with a liquidated damages provision will be justified if enforcement of the term results in payment of a sum which is extravagant and unconscionable in comparison with the greatest loss that could conceivably be proved to have followed from the breach Oppressive liquidated damages clauses work against a person's freedom to breach and the possibility of efficient breach. Perhaps if the file were a trade secret like the Coke recipe, the $1,000,000 might be a genuine pre-breach estimate, but without much more information about the nature of the file, I predict a court would find the $1,000,000 to be extravagant and unconscionable in comparison to the greatest loss that could conceivably be proved to have followed from the breach. What follows is less researched. If it is not a contract then I think it is at best a licence, which would make Bob's agreement to pay $1,000,000 a free-standing unenforceable promise. I also agree with Matthew's position on the possibility (and limitations of) a claim in promissory estoppel, especially in jurisdictions following Waltons Stores or similar reasoning. | Can you have valid Terms and Condictions when there is no entity mentioned? No, but the example you post is inapplicable because the terms clearly state in the beginning that the agreement is between "you" and "Binance operators". The latter is defined shortly thereafter. Thus, it certainly identifies the entity. A contract does not need to exhaustively list all information such as parties' registration(s) or domicile. As long as a reasonable person is able to grasp who are the entities entering a contract, that contract is binding and enforceable. If it cannot be ascertained from the contract who the counterparty(-ies) is(are), then neither party can prove that he and other entity(-ies) knowingly and willfully agreed to an exchange of considerations or promises thereof. Accordingly, nobody would have standing to sue others for breach of contract. | It doesn't matter. When a contract is left ambiguous the interpretation that is used is the one that is the most favorable to the party that did not draft the contract, under the logic that if the party that did draft the contract chose all the wording and thus, they could have stated their interpretation in the contract just avoided this whole mess in the first place. A similar rule exists in criminal law, where if the law is ambiguous, the interpretation used is the one most favorable to the defendant, since the state could have drafted it in a way that made their interpretation clear. | The entire purpose of the Entire Agreement clause is to say that this contract is the agreement, and anything previously negotiated is not part of the agreement. I don't know why they would fail to include that in the contract. | If two parties agree to the terms of an exchange, then there exists an enforceable contract. A signature is not needed to create a contract. However, an intent to negotiate a contract is not, per se, a contract. Absent some specific and explicit measures (which for major deals may be codified in an MOU or LOI that itself contains contractual terms), if you can't reach an agreement on terms then there is no contract. It's up to the particulars of "the verbal agreement to start the hiring process" whether an agreement on exchange has been reached, or merely proposed. E.g., "You and I agree that I will pay you $X in exchange for Y due Z" is a contract. "You and I agree that we'd like to work together, and we'll hammer out the terms X, Y, and Z by the end of the week" is merely a proposal to contract, not an actual contract. Of course, this doesn't mean you're immune to liability for failing to reach a contract in this hypothetical: you can always be sued! |
Protocol if juror cannot hear or see something clearly If a sitting juror, or a prospective juror during voir dire, cannot see or hear something clearly, what is the protocol for the juror to alert the court of this? Say something immediately? Raise your hand or number card? Write a note? This happened to me during voir dire: While projecting a sequence of photos of ten witnesses, a court employee stood in front of the projector, blocking the view for some of us. At the same time, the judge read the names of the witnesses in a mumbling fashion. Overall, this made it difficult to know who the witnesses were. Then the judge asked if any prospective juror had various relationships (family, work, social, etc) with any of the witnesses. Some names were repeated more clearly, but we never saw the photos again. | If a sitting juror, or a prospective juror during voir dire, cannot see or hear something clearly, what is the protocol for the juror to alert the court of this? Say something immediately? Raise your hand or number card? Write a note? Saying something immediately or raising your hand or number card are appropriate. Ideally, you get the attention of the bailiff whose job it is to supervise the jury (often also the judge's clerk of court), but if you get the attention of the judge, a lawyer, or the court clerk, they will normally interrupt to fix things as well. | At the federal level, there is no real equivalent to what you're describing. A probable cause hearing evaluates the government's evidence in a similar way, but it doesn't ask whether a reasonable jury would convict. The closest I can think of is a Rule 29 motion, which does ask that question, but not until trial has already begun. You typically make the motion at the close of the government's case, and (if it was not successful) again at the close of your own, though I've heard tales of judges granting the motion at the end of the government's opening statement. The states all have their own rules, but they're generally pretty similar to the federal rules in this respect, as I understand it. I don't know of any state that allows the kind of motion you're talking about, in criminal cases, at least. In civil cases, I think everyone has Rule 12(b)(6) motions, which ask the court for a pretrial determination that there's no set of facts that could establish liability on the plaintiff's theory of the case. | Short Answer This account would be a fairly extreme outlier relative to normal practice in jury selection, but it is certainly something that could possibly happen (except for one small detail that isn't very relevant to the core issues that it raises; this detail is discussed below in the last heading of this answer). The substantive points made in the Facebook post about what the facts recounted say about the state of women's conditions and attitudes about women in our society, and the poster's skepticism that a judge who made decisions like these really acted appropriately, are well founded, fair, and appropriate to raise. These concerns are within the heartland of what the case law on these kinds of issues discusses and struggles with, although because of the procedural posture of this issue, there isn't a lot of case law on this issue. Long Answer My Sources Of Knowledge I have participated in choosing perhaps half a dozen juries in which I was counsel, and I have observed the process in other cases one or twice and have previously been in a couple of jury pools myself (I've never been actually selected to serve). I'm also familiar with accounts of others practitioners regarding their experiences with jury selection, I know what I was taught in law school about the process, and I am familiar with the academic and practitioner oriented literature about the process. I am answering based upon U.S. law, because I don't have intimate familiarity with petite jury selection in other common law countries, although the broad outlines of the process are similar. As a caveat to this answer, however, recognize that judges have very broad discretion in the jury selection process and that not all judges adhere to "best practices". Further, in many states, judges are partisan elected officials who tend to end up in there positions because of, rather than in spite of, their extreme views and positions of legal issues over which they have discretion relative to the average lawyer or judges in places where the judicial selection process is less partisan. Your Questions How often are jury members subject to separate examination by defense counsel (or prosecution counsel) during jury selection? This usually happens in any case more serious than a simple traffic offense. It would be unusual to examine every single member separately in a separate room, but normally quite a few jurors a questioned separately on one point or another. This process is called voir dire (a situation in which U.S. legal terminology borrows from French rather than Latin). How frequently are jury members dismissed in the presence of other members? Jury members are usually dismissed in the presence of other members, but the specific juror responses to the reasons for doing so may or may not be discussed in the presence of the other jurors. Less sensitive questions (e.g., do you still live in this county, are you a U.S. citizen, do you speak English, do you have scheduled health procedures during the anticipated trial or a trip with a non-refundable ticket or similar issue, and a few other "categorical" exclusions) are usually discussed in the presence of other members, as are responses to general questions that are unlikely to be grounds by themselves for a dismissal for cause, but could inform peremptory challeges of jurors. The better and more common practice is for sensitive questions, such as a previous incident of being assaulted, to be discussed out of earshot from the other panel members, but in the hearing of the judge, at least one lawyer for each side and the court reporter who includes the bench conference in the trial transcript. Alternatively, how often are dismissed jury members informed of the selection or elimination of fellow jury members? Normally, jury pool members leave the courtroom and get on with their day once they are dismissed. But, if they choose to stick around, they will learn who is selected to serve on the jury, and who is eliminated from the jury pool. Is the defense counsel able to eliminate (all twelve) jury members from consideration (for cause) without objections by prosecution counsel? Terminology First of all, here and in your prior questions it is important to distinguish between the jury pool (a group of randomly chosen people who might end up being jurors) and the jury (a group of people ultimately selected to decide a case after challenges for cause and peremptory challenges are complete). The Voir Dire Process There is, in principle, no limit on the number of members of the jury pool who can be dismissed for cause, and if they run out, everyone goes home for the day and comes back the next day with a supplemental batch of jury pool members. In an obscure civil case or minor low profile felony case, the jury pool would typically be 30-60 potential jurors. In a death penalty case or case that has famous parties (e.g. a civil case involving Taylor Swift held in Denver recently), the jury pool would typically be several hundred people and the first round of voir dire would happen over the course of several days or even weeks. Any time that either party requests that a juror be dismissed for cause, the other party can choose to not object, or can object and argue that the juror should not be dismissed for cause. The judge doesn't have to dismiss a juror even when both parties agree to strike the juror for cause and not infrequently will refuse to dismiss a juror even when both parties agree to strike a juror for cause. This is because the judge has an institutional incentive to discourage jurors other than the one that a party has moved to dismiss from the jury pool from giving a lame excuse to try to get out of jury duty, even if the parties, who don't have that institutional concern, don't care about that. Why Might A Prosecutor Fail To Object? The downside of objecting to a request to dismiss a juror for cause is that it creates an almost automatic appellate issue for the party seeking to dismiss the juror if the juror is not dismissed. So, a prosecutor might not object to a questionable request to dismiss a juror for cause in order to reduce the likelihood that a conviction obtained by the prosecutor would be reversed on appeal. Giving the defense the jury it wants also makes it more likely that if the case starts going badly that the defendant will agree to a plea bargain mid-trial rather than risking a conviction by the jury, because any conviction obtained is more likely to hold up on appeal. A defendant may appeal a ruling denying a motion to dismiss a prospective juror that is denied after a conviction, if any, is entered. If the jury acquits the defendant (the unfavorable outcome the prosecutor would like to avoid by not having a juror dismissed for cause), the prosecutor can't appeal the case, and if the jury hears evidence, the case can't be dismissed without prejudice or retried unless there is a conviction that is reversed or there is a mistrial (the mistrial rules are bit complicated). So, if the prosecutor was really appalled by the dismissal for cause of so many women and felt that this would impair the prosecution's chance of obtaining a conviction materially, the prosecutor would have to dismiss the criminal charges so as to vacate the trial, before evidence was presented to the jury, and then refile the charges (assuming that this would be possible consistent with statutes of limitation and speedy trial requirements). But, this would be an extraordinary move with high stakes, because the prosecutor has a long term strategic interest in not pissing off a judge in any case because that could cause the judge to exercise the judge's discretion against the prosecutor in future cases. The judge and prosecutor may have to deal with each other in future cases for decades and will do so on a regular basis every few weeks or months. A judge is likely to be pissed off in this situation because dismissing a case ready to go to trial and scheduled for trial with a jury fully selected because the prosecutor was unhappy with the judge's rulings on motions to dismiss jurors for cause would not be appreciated by the judge who naturally believes that the rulings made on those motions were sound even if that belief is unreasonable. I strongly suspect that this was the reason that the prosecutor allowed all twelve women in the jury panel to be stricken for cause in the case that you describe (assuming, of course, that the Facebook account is factually accurate, which is sometimes the case and sometimes not the case – even if the gist of the account was accurate, it wouldn't be surprising if some technical details or nuances were incorrectly recounted). It Would Not Be Normal For A Prosecutor To Not Object In This Case Despite these procedural considerations, it would be very unusual for a prosecutor to not object to striking all twelve women on a jury panel for cause in these circumstances and it would be very unusual for a judge to agree to strike all twelve women on the jury panel for cause in these circumstances whether or not the prosecutor objected. Generally speaking, merely having had a prior experience of having been assaulted would not be sufficient to strike a prospective juror for cause. Normally, the prosecutor and/or the judge would ask the prospective juror if this experience made it impossible for that particular juror to be impartial in this particular case, and normally most of the prospective jurors asked that question would say "no". Usually, in that situation, the judge would not agree to dismiss that prospective juror for cause. Most prosecutors would expect their objections to a request to dismiss a prospective juror for cause in this situation to be taken seriously by the judge and for only a few of these requests that cast the most doubt on the impartiality of a potential juror to be granted. And, most prosecutors would not consider the appellate risk involved in opposing a request to dismiss a prospective juror for cause in the typical scenario that I outlined above very troubling, because a judge has fairly broad discretion on dismissals of jurors for cause in the face of a marginal fact pattern. The fact that the judge allowed this also suggests that the prosecutor may know that the judge is very unenlightened and has misogynist leanings and that fighting the judge's ruling in this case would be a lost cause that is hard to appeal. (Of course, if any of the women had previously been assaulted by the defendant in this particular case and personally knew that defendant well, that would normally cause the potential juror to be dismissed for cause.) After Challenges For Cause Keep in mind also that after dismissals for cause are completed, a certain number of jurors equal to the number of peremptory challenges allowed to the prosecution and defense combined plus the number of jurors who need to be left over to decide the case would be put in the second stage of narrower jury pool. In this second stage, during which the narrower jury pool is honed to the actual final panel of jurors who will hear the case, each side exercises their allocated number of peremptory challenges (normally alternating back one forth, one juror at a time). While peremptory challenges can generally be made without good cause, you can not make a peremptory challenge solely based upon a potential juror's race or sex. If a side dismisses all women, or all men from the jury pool, there is a presumption that this is what was done by the party striking the jurors that must be overcome with convincing reasons not based on race or sex. The same analysis, strictly speaking, doesn't apply to motions to dismiss jurors for cause because in those cases a non-discriminatory reason has been definition been advanced by the party seeking to dismiss the prospective juror and accepted by the judge as convincing based upon the voir dire evidence. One reason not to fight very hard to dismiss a juror for cause is that many of those jurors who seem most favorably inclined to your case, although not necessarily all of them, are likely to end up being dismissed in a peremptory challenge in any case. A Footnote on Ex Parte Proceedings Ex Parte Voir Dire Is Improper The author of the OP also clarified that: When I asked, "How often are jury members subject to separate examination […]?", I meant that only one party (or counsel for one party) is examining the jury at a time. E.g., first the judge and prosecution counsel examines the jury (without defense present) then the judge and defense counsel examines the jury at some other time. Normally, the judge asks boilerplate routine questions first, then one side asks questions, then the other side asks questions. But, it would be almost unheard of (and it would be improper and unethical) for this to happen without lawyers for both sides present to see what transpires during the other side's questioning, even if the prosecution wasn't planning to make challenges for cause, so as to gather up information needed for the preemptory challenge phase of jury selection. To have a proceeding without both sides having a lawyer present is called an ex parte communication with the judge which both the judge and the lawyer doing so have an "ethical" duty to avoid in this part of the jury selection process. An ethical duty means that the judge could be, in theory, kicked of the bench or temporary suspended or public reprimanded or require to take a judicial ethics class for doing so; and that the lawyer could similarly be disbarred or suspended from the practice of law or publicly reprimanded or required to take a legal ethics class for doing so. Conducting the proceeding ex parte could also be grounds for a mistrial ruling that would not prevent the defendant from being retried (because it would have been done at the request of and for the benefit of the defense counsel), or for an appeal in the appropriate cases. (There are ex parte proceedings which are ethical and permitted such as applications for search warrants and arrest warrants, but juror selection is not a proceeding to which an exception to the general rule applies.) The Prosecution Could, In Theory, Waive The Right To Participate In principle, the prosecutor could waive the right to be present while the judge and defense lawyer examine prospective jurors, but this would be almost bizarre conduct that would only happen if someone was calling about an incredibly urgent development that threatened to shut down the courts or put the prosecutor or co-workers or family at immediate risk of physical harm happened. For example, a prosecutor might waive a right to be present if the prosecutor wasn't planning on objecting to any jurors for cause and was learning that the 9-11 attacks were underway, or that a mass shooting at the prosecutor's offices had happened or was in progress, or a prosecutor having a spouse who the person they stepped out to talk with was in a newly discovered hostage situation, or the prosecutor suddenly feeling an intense need to vomit or being on the verge of passing out or feeling like a heart attack might be in progress. Even then, however, it would be more common for a judge to call a recess for a little while in any of those circumstances. The Case Description Is Probably Incorrect Or Misleading On This Point The ex parte examination of prospective jurors, which was apparently described, would be so far outside the norm of typical jury selection conduct, that I suspect that this part of the account is inaccurate or was confusingly worded. For example, the post's wording arguably misleadingly implied that there was an ex parte proceeding as part of the jury selection process, but it wouldn't be necessarily inconsistent with a scenario in which a prosecutor was already present with the female jurors "before the remaining candidates were led into a room to meet the judge and defense attorney." For example, it could be that what really happened was that a member of the prosecutors office was introduced to the in the jury assembly room, and led the prospective jurors to the correct courtroom without making any comments to them, and then they met the judge and defense counsel, which would be entirely proper and not unusual. | A lawyer for either party can claim, during argument, that an adverse witness is not credible, for any reason or none. Often the lawyer will point to matters disclosed during cross-examination, claiming that they are contradictions, show bias, or otherwise indicate lack of credibility. Or the lawyer could point to elements of the primary testimony which the lawyer claims are implausible. If there has be evidence of a prior conviction, the lawyer could refer to this. A lawyer may in general ask a witness about prior convictions. Criminal convictions are generally matters of public record, and can be researched. It is not usual to present reputation or credibility witnesses for any person except the defendant, and failure to do so, even for the defendant, does not lead to any automatic assumption of lack of credibility. Not does the appearance of such a witness grant an automatic assumption of credibility. But a lawyer may point out reasons for thinking a witness not credible. Ultimately it is up to the finder of fact, often a jury, to decide what weight to give the testimony of each and every witness, based on the impression that testimony made, as well as any argument from the lawyer. This is one reason why courts are reluctant to overturn factual assessments by a jury: the reviewing court does not see and hear the manner of a witness and what it may indicate about credibility. | Almost none of this is written down anywhere in official court rules but there are some widely adopted standards for this practice. Most courts require that only one lawyer be in charge of speaking at any given stage of the trial. But, it wouldn't be unusual, for example, for one lawyer to question most of the witnesses and for a different lawyer who is more familiar with the specialized subject matter in question (e.g. electrical specifications), usually a junior lawyer, to question the expert witnesses in a case. Also, if the usually designated lawyer is absent for some reason (stuck in traffic, sick, etc.), the "second chair" lawyer can (and is often required to) take over the case for the client until the "first chair" lawyer is available again. Mostly, second chair lawyers (I've spent plenty of time over the years in this role) do the following (a non-exclusive list): take notes, pay attention to how the judge and jury are reacting to testimony, provide input into jury selection decisions, reminds the primary lawyer of points that still need to be covered in the examination of a witness, reminds the primary lawyer of exhibits that still need to be formally offered into evidence, scrambles to find rebuttal or impeachment evidence for unanticipated testimony, prompts the primary lawyer to make objections if the primary lawyer was paying attention to something else, identifies and has at the ready exhibits needs to present (or to follow the other side's examination), looks up points of law that are relevant or will need to be referenced that come up during trial, handles logistics for witnesses who are not on the stand (keeping them in the hallway if the witness is sequestered, trying to obtain the appearance of no show witnesses or reshuffling their order, saying thank you to witnesses who are no longer on the stand, etc.), carries some of the litigation team's stuff into and out of the court room, provides informed commentary and suggestions during breaks and working lunches, etc. Also, in addition to the usual "first chair" and "second chair" roles, often supplemented by a paralegal or legal assistant, there is a different kind of arrangement in which different lawyers for the same person can fully participate. This far less common arrangement happens when the person showing up in court is wearing "more than one hat" and has a different lawyer in different capacities. For example, suppose that someone is the President of a corporation and both the corporation and the President individually are both sued. There might be one primary lawyer for the corporation and one for the President personally, and both lawyers might participate fully. | Because it's explicitly a jury of your peers That is, every person is entitled to have their guilt or innocence decided by people "like them" - not kings, lords or, heaven forbid, lawyers. The jury doesn't need to know the law and indeed, in many jurisdictions, lawyers are explicitly disqualified from jury service (hint: if you want to avoid jury service, get a law degree). The role of the jury is to decide the facts - what happened and whether that meets the prosecution's burden of proof. The jury is told what the law is by the judge - that's their job. Most law shows on TV skip over the very important role of the judge's instructions to the jury. These usually go along the lines of (greatly abridged and paraphrased) "If you decide that X, Y & Z are true then you must return a guilty verdict but if any of them are not true you must return not guilty." A very brief potted history of the jury system is contained in this answer: Why 12 Jurors, why not 11, 10, 9, 1? Now, this is, according to those from common law traditions, the great truth and beauty of the jury system. To those from civil, sharia and other legal traditions: it's just stupid. | One does not introduce statutes in a trial, criminal of civil. Rather, one introduces facts. The judge will present "the law", and will present it in a digested form in the form of interpreted instructions to the jury about what the law says. Jurors are not required to interpret the meaning of statutes, because jurors are also not expected to know the relevant case law surrounding a statute. A party might make a motion to the judge where the argument depends in part on the wording of a statute. Then there is a standard but jurisdiction-dependent way of referring to s statute, e.g. ORS 164.015, RCW 9A.56.010. For Minnesota there are three interchangeable forms: "Minnesota Statutes 2008, section 123.45, subdivision 6" which is the same as "MINN. STAT. 123.45 (2008)" or "MINN. STAT. ANN. 123.45 (2008)", which is for statutes. You have to look it up on a jurisdiction by jurisdiction basis – here is the answer that Minnesota gives (all legal citations). | A witness can only testify to what they witnessed That means their testimony can only be what they personally saw or heard (or, more rarely, touched, smelled and tasted). They cannot testify to the truth of what someone else told them (although they can testify that they were told it) - that’s called hearsay and it’s inadmissible. A witness cannot learn things after the event and testify to them. |
Claiming my own country Let's say one day, as I sail across the pacific, I come across an uncharted island. This island is not anywhere near the borders of existing countries. It is unoccupied. Can I put up a flag on the island, state I own this piece of land, and run my own country on top of it? | Technically you could stake such a claim in accordance with general principles of public international law, but every country has discretion about whether to recognize you as a sovereign state. Established states would likely have no interest in dealing with you until you have a certain amount of influence and resources. You might have to defend your claimed land and property by force at times from pirates, imperialists, states claiming authority by international agreement, etc. There are a number of microstates and micronations with varying degrees of recognition. | No Because it’s patented in country A, it is not novel anywhere in the world. That is, the patent in country A is “prior art” that would disqualify it from being patented anywhere else. The original patent holder can patent it elsewhere because patent law has an exception for that. | If the U.S. adds a new territory, are the people currently living there able to become president? No. Or does the territory have to become a state in order for the people to be eligible to become president? Not necessarily. What does "natural-born citizen" mean? The meaning of the natural born citizen clause of the constitution is unclear in many respects, but virtually all scholars agree that a person who was a US citizen at birth, and who has remained a US citizen until present, is a natural-born citizen. There is a small minority of scholars who insist that a US citizen at birth is only a natural-born citizen if they were born in the US (for example, Ted Cruz would not be considered a natural-born citizen). There is an even smaller minority who insist that a person must have at least one US citizen parent in order to be a natural-born citizen. But for all practical purposes, these minority viewpoints are irrelevant. The only thing that matters is whether someone was a US citizen when they were born. Citizenship of people living in US territories When a US territory is created, the people living there don't automatically become US citizens, and if Congress eventually gives them US citizenship, the canon of presumption against retroactivity applies: a statute should not be read to be retroactive unless there is evidence that it was intended to apply retroactively. That means the people who get US citizenship under the statute don't become natural-born citizens; they're considered to have been automatically naturalized when the statute went into effect. But if there's a statute saying that people born in the territory are US citizens at birth, then people born in the territory after the effective date of that statute are natural-born citizens, since they are citizens at birth. I will use Hawaii as an example. Hawaii became a territory in 1898. Citizenship was granted in 1900. Statehood was not granted until 1959. 8 USC §1405 governs the citizenship of people born in Hawaii: A person born in Hawaii on or after August 12, 1898, and before April 30, 1900, is declared to be a citizen of the United States as of April 30, 1900. A person born in Hawaii on or after April 30, 1900, is a citizen of the United States at birth. A person who was a citizen of the Republic of Hawaii on August 12, 1898, is declared to be a citizen of the United States as of April 30, 1900. So, Hawaiians didn't become US citizens when Hawaii was annexed. They were granted US citizenship 2 years later. A person born in Hawaii on or after April 30, 1900 is a natural born citizen. Applying the presumption against retroactivity, we see that a person who was born in Hawaii between August 12, 1898 and April 29, 1900, or who was a citizen of independent Hawaii when it was annexed by the United States, was not a natural born citizen and could not have become President. In addition to the presumption against retroactivity, there is also another canon of construction that applies here: Congress could have used the "is a citizen of the United States at birth" language for the other two categories of Hawaiians too, but chose to omit it. Presumably, Congress acted purposefully in doing so, with the intent of granting citizenship at birth to only one of the three categories. (I can't remember whether this canon has a name.) Can Congress grant natural-born citizen status retroactively? If the US were to acquire a new territory and saw fit to bestow citizenship retroactively to birth on some natives of that territory, would those people be eligible for the presidency? No one knows the answer to that question. As an example of when Congress has granted citizenship retroactively, the Immigration and Nationality Technical Corrections Act of 1994 created 8 USC §1401(h), which granted citizenship retroactively to birth to individuals who had been born outside the US to a US citizen mother and alien father prior to May 24, 1934. This act was necessary because, prior to that date, only US citizen fathers could transmit citizenship, not US citizen mothers. A person granted citizenship under this statute would be over the age of 89 now, so we're unlikely to see one run for president. It's an open question whether someone who obtained US citizenship through this statute would be considered eligible for the presidency. One could argue that "natural-born citizen" implies a person who actually was a citizen when they were born and that retroactive grants of citizenship are a mere legal fiction that cannot override the meaning of the constitution. | Yes, and this is very common - Cuba, North Korea and Iran are often excluded. Mind you, this is from a US perspective. The banned country may have other ideas about the legality of the ban under its laws. But if you weren't planning to do business with that country anyway, that's not exactly going to hurt you. | You could almost define a country as, "an entity that can defend itself against invasions." Non-sovereign entities are indeed generally prohibited from deploying lethal autonomous defense systems like booby-traps. But governments and state-like actors, as a matter of practice, choose their own rules. laws-of-war and international-law are not like "regular" law: When it comes down to it, states only follow international conventions and treaties to the extent that they consider it to be in their own interest to do so. If you start mining your property, you will probably be forced to stop by local law enforcement. If a warlord starts mining his borders, he's going to get away with it until someone with more power convinces or forces him to stop. Was it "illegal" for Turkey to shoot down a Russian military aircraft? One could cite all sorts of laws and conventions to answer that question. But in practice the consequences of that act are limited to whatever Turkey allows, or to what Russia and its allies can impose on Turkey. | I think you are very likely wrong in believing that if you return the water further downstream it doesn't count as illegal abstraction. Government guidance says: If you want to build a new hydropower scheme, you need to apply to the Environment Agency for: an abstraction licence - if you divert or take water from a river or watercourse Admittedly, guidance isn't law. However, your position is quite close to arguing that taking and borrowing are two different things, and I wouldn't want to try to argue it. | As for a member of the Universal Postal Union, what repercussions will occur for country B? None. Are they allowed to keep stealing stuff at the sender insurer's expense? Well, country B isn't stealing stuff. Bad actors in the employe of country B are stealing stuff. This is a matter for law enforcement in country B. If country B is endemically corrupt as seems to be implied, then it is likely that the bad actors will continue to be bad actors. As for the insurer, they are in the business of selling insurance against theft (among other things) and they will take this into account in setting their premiums. Will they face any penalties (e.g. banned from the Union) that would encourage them to hold their customs to account? All member countries of the UN are entitled to be members of the UPU and it seems unlikely that such minor issues could lead to expulsion from the UN - nation-states that have committed genocide are still UN members after all. Since the UPU appears to produce more upsides than downsides, being one of, if not the single most successful and universally adopted international treaty in history this is just one of the minor annoyances. | If fish were caught in international waters, should we consider its origin as the closest country or the ship's flag? Neither. The rules in the united-kingdom (which is no longer in the EU, but I assume they are comparable as they have not been substantially changed since leaving) are: Fish caught at sea You must label all fish caught at sea with the Food and Agriculture Organization of the United Nations (FAO) catch area. You must also label fish caught in the Northeast Atlantic, Mediterranean or Black Sea with: the name of the FAO sub-area or division a map or pictogram of the catch area |
GDPR Information and consent I am building a game that stores score/level on the local device and uses non-personalized AdMob. Do I need to inform the user about storing the score locally? Do I need consent for using non-personal AdMob? Do I need to ask for the age? How should I handle kids? Can I disallow a user from using the app if consent is not given? | Do I need to inform the user about storing the score locally? No, there is no need as long as you don't transmit, store or process any personal info. It's doubtful that the score could be considered personal info, but you're not sending it to your servers in any way, so you don't seem to be processing it anyway. Do I need consent for using non-personal AdMob? You have to check this with AdMob, but usually, if it is non-personal, they shouldn't be processing any PI, so you're clear without informing. Do I need to ask for the age? How should I handle kids? Again, you're not processing any PI, so regarding GDPR there isn't any problem. Can I disallow a user from using the app if consent is not given? If you needed consent, no, it would be unlawful to block a user for not giving consent, unless it is impossible to provide the service without it. See recital 43: Consent is presumed not to be freely given 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. | The European Convention on Human Rights has an article about privacy (article 8). Note that this is from the Council of Europe, which is not the same as the European Union: non-EU member states such as Russia, Turkey, and Azerbaijan are also part of the Council of Europe and therefore the ECHR. I'm not sure if you first have to go to a lower court, but the European Court of Human Rights is the authority on this (commonly mistaken for the European Court of Justice, but they are distinct entities). According to this ruling of the ECtHR, it is not illegal to monitor your employees' communications per se. However, the monitoring has to be: for legitimate purposes ("the employer had only accessed the account in the sincere belief that it contained only messages of a professional, not personal, nature"), proportionate ("it was the only possible way available"), and communicated to the employee (or, if the monitoring is not announced, at least the restriction on personal use should be communicated, for example through company policy). In the European Union, there is also the GDPR, but this does not change much. It applies to your employer the same as any other organisation and basically says that they have to be reasonable about it: collect only what they need, for a legitimate purpose, and tell you about it. I think you should be able to request a copy of any data they collected about you, ask a human to review an automated decision, and your other usual rights. They don't need your consent to start collecting data, as Esa Jokinen already commented: "GDPR doesn't even require consent to handle PII data, but the consent is just the last option when there's no other legitimate reason to process the data." In fact, your employer probably cannot ask you for consent: because of the employer–employee imbalance of power, the consent would probably not be considered to be freely given (where this article mentions "The GDPR states", I think they are referring to recital 43). | 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. | 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. | I don't think you would be responsible for whether your software is used in a GDPR-compliant manner. For GDPR compliance, it is important who the data controller is. The data controller is whoever determines the purposes and means of a personal data processing activity, i.e. the why and how. The data controller alone is responsible for their GDPR compliance. When a data controller wants to run some software, it's the data controller's responsibility to ensure that this software is used in a GDPR-compliant manner (or possibly not at all). Determining purposes and means of processing When someone other than the developer runs a software, the question is who might be a controller: you as the developer, they as the operator, or neither, or both? The operator is clearly a controller: they determine a purpose for data processing (e.g. to manage staff) and have determined means to perform that processing (e.g. to use the software). The developer may or may not be a controller. Clearly, the developer has made choices about how the processing of personal data will be performed, i.e. has determined some means of processing. E.g. the developer has developed a particular architecture, chosen a way to store personal data, and has implemented some security measures. But determining some means is not sufficient to be a data controller, see discussion below. Has the developer participated in determining the purposes of processing? I think this will depend on the specific functionality provided by the software in question. If the software just does what it says and processes the data for the operator's purposes, everything should be fine. If the software also processes data for the developer's purposes, that developer might be a controller. For example, if analytics or crash reports are collected by the developer, that would be a clear indication that the developer would be a (joint) controller. So depending on specific factors, the operator might be the sole controller, or the operator and developer might be joint controllers. Essential vs non-essential means What about the developer determining some means? When does this make the developer a joint controller? The EDPB has created a theory of essential vs non-essential means: 40. As regards the determination of means, a distinction can be made between essential and non-essential means. “Essential means” are traditionally and inherently reserved to the controller. While non-essential means can also be determined by the processor, essential means are to be determined by the controller. “Essential means” are means that are closely linked to the purpose and the scope of the processing, such as the type of personal data which are processed (“which data shall be processed?”), the duration of the processing (“for how long shall they be processed?”), the categories of recipients (“who shall have access to them?”) and the categories of data subjects (“whose personal data are being processed?”). Together with the purpose of processing, the essential means are also closely linked to the question of whether the processing is lawful, necessary and proportionate. “Non-essential means” concern more practical aspects of implementation, such as the choice for a particular type of hard- or software or the detailed security measures which may be left to the processor to decide on. – EDPB guidelines 07/2020 on the concepts of controller and processor in the GDPR, added formatting for legibility Looking through that list of essential means, some might be determined by a software's developer, but I wouldn't expect this to be the case for this kind of open source software. types of personal data: the software certainly sets a framework for processing specific kinds of personal data, e.g. by providing database fields for names, contact details, and schedules. But ultimately, the developer does not control which data is actually collected and filled into those fields – the developer does not cause specific kinds of personal data to be processed with the system. duration of processing: unless the software is programmed with a fixed retention schedule, it should be impossible to argue that the developer has determined the duration of processing. Even then, it would also be the operator who has determined this duration to be appropriate, rather than editing the open-source software to change the duration. But typically, no such retention schedule is enforced, and retention would depend solely on the operator (who can use an admin interface or a database console to erase old records). categories of recipients: typically, the developer does not determine to whom the data in the system will be given. But if the system sends data to third parties by itself, this might change. For example, if the system is pre-configured to store data in an existing cloud database instance, or to a specific analytics server, the developer might be acting as a controller. Here, good software engineering and legal risk minimization coincide. Best practices for web apps state that account credentials and connection strings shouldn't be hardcoded or committed to a repository, and should instead be provided externally (e.g. via environment variables). categories of data subjects: this depends solely on how the software is used. The developer has no way to determine whose data the operator will enter into the system. If the developer isn't a controller, might they be a data processor instead? In a GDPR context, a data processor is whoever processes personal data on behalf of a controller. The developer is clearly not a processor in this scenario because both the “processing” and “on behalf” criteria fail. The developer has no access to the data in the operator's instance, so cannot process the personal data. There is no direct relationship between the developer and the operator. The operator has not delegated authority to the developer so that the developer would be acting “on behalf” of the operator. There is a legal relationship between the two roles (the developer has licensed the software to the operator) but that is entirely irrelevant in a data protection context. The GDPR isn't directly about cookies While the GDPR does cover how personal data can be processed with cookies, the famous “cookie law” is actually separate: those cookie consent requirements stem from EU member state's implementations of the ePrivacy directive. Instead of talking about “controllers”, ePrivacy has concepts such as the “provider of an information society service”. While this role fits perfectly to an operator/provider who runs a web app in a publicly accessible manner, it does not fit a developer who merely makes some source code available. Is the developer even subject to the GDPR? The GDPR can only apply to data controllers and processor who process personal data. As discussed above, the developer is probably not processing personal data at all. Even if the developer were processing personal data, it is questionable if GDPR would apply assuming the developer has no “establishment” in the EU (e.g. an office). Then, the question would be whether those processing activities are either related to offering goods or services to data subjects in Europe, or whether the processing activities involve monitoring the behavior of people who are physically in Europe. Unless the developer is actively targeting European businesses with marketing for this software, the answer is very likely “no”. Could the operator sue the developer for providing software that isn't GDPR-compliant? The operator can sue anyone for any reason, but is probably not going to win. As discussed, the operator is a data controller. They are responsible for ensuring that their purposes and means are GDPR-compliant. That involves selecting suitable software. The data controller would be neglecting their own responsibilities if they just download some random software and start feeding personal data into it. Things might be different if the operator specifically advertises GDPR compliance features but you're not going to do that. It's also worth noting that common open source licenses like the Apache License 2.0 include a warranty and liability disclaimer. To which degree they protect the developer ultimately depends on national laws, but they make it difficult for the operator to make a legal argument that they're entitled to a GDPR-compliant product. See also the related question: Do warranty disclaimers in software licenses carry any legal weight? What can you do? First, don't worry too much. Given how much bad software there is on the internet, surprisingly few developer get into legal trouble for writing source code that's buggy or missing some features. Second, consider choosing a license for your project that includes a reasonable warranty/liability disclaimer. Third, make the state of your project clear in your README file. If someone knows that this is alpha-quality software and that no compliance features were implemented, it's their own fault if they actually use that software. | That GDPR Disclaimer is no protection in some jurisdictions: the applicable laws to that situation in germany for example don't care about the GDPR: Cold calling, mailing, or e-mailing private people to advertise services all is handled by the same law: Without the consent it is expressly illegal under §7 of the law against unfair competition (Gesetz gegen unlauteren Wettbewerb UWG) and such cases are rather Slam-Dunk if the origin can be made out. The punishment can be a 300.000 € fine. The fact that to email someone you need their e-mail address and that e-mail addresses and private addresses are by default considered personally identifiable information is making it worse for the advertizer: Without either an exception (there is none available to cold-emailing) or special allowance of the person the data belongs to, you violate §4 of the federal data protection law (Bundesdatenschutzgesetzes BDSG) just by handling their e-mail address. That's a separate crime from the UWG one, adding up to another 300.000 € fine under §43 BDSG - or even up to 2 years in prison under §44 BDSG! Oh, and if the email does not contain a proper sender's address, that's another chance for a huge fine under the UWG... So, GDPR is your least trouble, if you violate the marketing laws of a country, or their own data privacy laws. A disclaimer means nothing as the act of sending the mail, even to an unintended addressee, is what is illegal and the law as written does not give a damn about 'I didn't want to advertise to that person' when in fact you sent them unwanted advertisements. Oh, and the very repository you suggest? It would violate the very same §4 BDSG and be illegal for processing private data if it was not actively asked to do that by the end user. As a result, that database is useless: It does kick back all people not in its database. Its database is incomplete because only few people give their address to that database as people not aware of the database never add their data on their own. So it regularly violates §4 BDSG with every German citizen's e-mail address it gets and kicks back, and claiming those addresses would be OK, it throws the company trying to check the database under the bus because they rely on data that is impossible to be reliable. tl;dr Don't do cold-(e)-mail marketing. You throw yourself into boiling oil with a lit torch in hand. further reading Other laws banning such behavior I had listed here, and I quote myself: The US has the CAN-SPAM-Act, which illegalizes sending unsocialised advertisements. You may NOT send a mail if any of the following is true: it has no opt-out the email was gained by 'harvesting' contains a header not matching the text contains less than one sentence the adressee does not have any relation to you In fact, you are liable for a 5-digit fine per infringing e-mail in the US. The FTC itself suggests to never buy e-mail lists - as E-mail harvesting or generating any possible e-mail adress itself is illegal. | Alice's business sells database management software. Organisations buy or licence the software, deploy it on hardware they control and use the software to help store and, process and analyse 'personal data' within the meaning of GDPR. Alice's business has no access whatsoever to the personal data being stored and processed by those organisations. In respect of that personal data, GDPR is not engaged by Alice's business. The business is neither a 'controller' nor 'processor' of that personal data. Who does the data protection law apply to? - European Commission Who does the UK GDPR apply to? - Information Commissioner's Office | No, a company cannot suspend your GDPR rights – contracts can't override the law. Your rights as a data subject apply as long as your personal data is being processed. However, there is no requirement in the GDPR that they fulfill your data subject rights through a self-service mechanism like a “download my data” button. They can require you to use another support channel. (But Google offers infamously bad support.) In some cases, the service may legitimately decide that they cannot give you access to the data, for example if they believe that you are not the actual data subject (e.g. if they think that you hacked the account). The right to access must not adversely affect other people (Art 15(4)). If they have doubts about your identity, they can require further information to verify you (Art 12(6)). If your requests are excessive or unfounded (if you are spamming them), they can also turn down the requests (Art 12(5)). |
Is chalk on sidewalks/asphalt illegal? I'm trying to determine if chalking a sidewalk or road is illegal, because deep inside my soul, I'm actually a six year old, and would derive no greater pleasure in life than from rolling around on concrete in a pile of chalk and terrible drawings. It looks like the answer isn't exactly clear, either. Some places, it seems, it might be illegal as vandalism; some places, it seems it's totally fine, and some places, it seems, are contingent upon enforcement. Please help me, Law Stack Exchange. Is it safe to unchain my inner six year old? | I have bad news. California's vandalism law prohibits maliciously: defacing property with graffiti defacing property with inscribed material damaging property destroying property Chalking the sidewalk probably doesn't sound very malicious, but maliciousness includes “an intent to do a wrongful act, established either by proof or presumption of law.” So the questions is whether you intended to do a wrongful act -- meaning that you intended to do the act, which happens to be wrongful, not that you intended to act wrongfully. So unless you drew on the sidewalk accidentally, the malicious-intent requirement isn't going to help you. So then you have to ask if your conduct is described by the statute. In Mackinney v. Nielsen, the Ninth Circuit said that sidewalk chalking did not violate the law, but California has since amended the law to add the "deface with graffiti" language. I haven't seen any chalk cases since then, but another case, In re Nicholas Y., from the Second District, dealt with someone who used a marker on a window. He argued that it could be easily erased, but the court said it was still vandalism because: it "mars the surface with graffiti which must be removed in order to restore the original condition" the definition of "deface" "does not incorporate an element of permanence" "marring of the surface is no less a defacement because it is more easily removed." Given that language, I'd argue that the vandalism statute includes sidewalk chalking. But one important element here is that most sidewalks are owned or controlled by the government, so any effort to restrict "expressive conduct such as writing with chalk" (Guilliford v. Pierce County) expressive activity" there must comply with the First Amendment. The government has varying degrees of latitude on the restrictions it can impose, depending on the character of the space involved. So in a courtroom, whose function is incompatible with free-wheeling public debate, a judge can set quite a few rules about how people may speak. But sidewalks are considered a "public forum," where the government's ability to regulate speech is a lot more limited. So how does the First Amendment apply? There's a D.C. Circuit case (Mahoney v. Doe) dealing with abortion protesters who wanted to use chalk on the streets and sidewalks outside the White House. Police told them they would be arrested for violating D.C.'s defacement statute, so they brought a First Amendment challenge. The court upheld the law, saying that it satisfied all three prongs of the public-forum test: The law must be content neutral, meaning that it prohibits conduct without reference to what is being said. The Court said the defacement statute was content neutral because people could be prosecuted regardless of what they wrote or drew. The law must be narrowly tailored, meaning that it serves a significant governmental interest and does not restrict more speech than is necessary to achieve that goal. The Court said the defacement statute was narrowly tailored because it served the government's interest in maintaining the aesthetic appeal of the area in front of the White House and didn't restrict any speech that does not deface public property. The law must leave open ample alternatives for communication, meaning that even if you can't express yourself in the way restricted, you still have meaningful opportunities to express yourself. The Court said the defacement statute law allowed adequate alternatives for communication because the group could still congregate, march, speak, hold signs, and hand out leaflets. There's an interesting wrinkle there in terms of whether the interest in aesthetics is heightened because we're talking about the White House, but generally speaking, aesthetic concerns can still justify speech restrictions. So the bad news is that unchaining your inner six-year-old may subject you to criminal liability. That leaves the question of whether you want to unleash your inner teenager and do it anyway. This could help put you in a frame of mind for making the decision. | 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. | To be very straightforward, yes, a police department would very likely have records of their past interactions with you in the form of police reports. They cannot just throw them away because it's been scrubbed from your public record. They detail the interactions the police officer had with you. That being said, those records would not show up in a general inquiry into your record, because those records are meant to protect the officer and the department as a reference point they can go back to in case some dispute arose in the future. If a police officer really wanted to find them, they'd have to do a bit of digging for them. The difficulty in finding them would depend on what system the particular police department uses to store those records. Smaller departments may just file them in a cabinet somewhere, whereas larger ones may actually have their own searchable database. But a traffic cop out on the street is only gonna see what you're seeing at the DMV - nothing. There is also a formal NCIC database, but traffic violations would never end up in there. That is a national database that basically stores red flag persons of interest (think stolen vehicles, sex offenders, and gang members). Sometimes multiple departments within a state will share their information with each other, but a department's database is usually kept to that department only. Also keep in mind court records. The court case that had a violation removed under such and such conditions is still gonna be a public record. Those records would generally be available to a judge overseeing your case so if you repeatedly end up in court for the same thing, they're gonna know and they're gonna stop scrubbing it from your record or offerring certain options because you're clearly not learning your lesson. Many laws allow you to have one offense stricken per year and similar stuff like that, but that kind of stuff doesn't just permanently disappear. They have to keep record of it in order to know you've already had your once per year etc. Also a note about parking violations: not all of those are actually issued by police. If it was issued by a private firm then that is not something that would ever show up on your record. It would just be in a database somewhere with whatever private firm issued the fine. Those kind of tickets get sent to collections and hurt your credit score if you don't pay them, rather than affecting your driving record. | No one can tell you how the facts are going to line up if you get sued. The attractive nuisance doctrine is alive and you can be found liable if you have, on your property, a dangerous condition which is attractive to children, especially if the danger is not appreciable to the child. Now, I'm a bit skeptical that a child would climb a fence to kick snow, especially if there is other snow outside the fence for them to kick, but stranger things have happened. What can you do? These are ideas, I don't think they are legal advice. Start with the premise that dangerous stuff happens everyday, and kids aren't getting hurt by most of it. Use a fence with barbed wire. In other words, injured the the child with a lesser injury to reduce your liability. Use an opaque fence. Granted, curiosity might be too great and a child will trespass to discover what you are hiding. Use a shed, just one of those thin aluminum structures. Include proximity sensors to set off alarms and lights and whatever. Get your project away from kids; find space in a commercial area. | My general belief is that in the United States entering structures like the ones you've pictured would be considered trespassing regardless of if there is a sign in place or not. This is based on the fact that I'm almost certain that if you become injured while on the premises you could sue the land owner. I believe the trespassing signs are just there to give legal cover to the land owner in case someone does try to sue them. Here are two sources that essentially support my beliefs: General definition: Trespass is defined by the act of knowingly entering another person’s property without permission. More detailed legal definition: § 11.411 Criminal trespass. (a) A person commits an offense if, knowing that he or she is not licensed or privileged to do so, he or she enters or surreptitiously remains in any building or occupied structure. An offense under this subsection is a misdemeanor if it is committed in a dwelling at night. Otherwise it is a petty misdemeanor. As you can see these buildings are clearly owned by someone, and you clearly haven't gotten permission to enter the building. Ergo, you're trespassing. Now if you were talking about ancient Mayan ruins, or an Old West ghost town then this would be more of a gray area, I believe, since those structures have been abandoned for 150+ years. The same goes for structures in National Parks, since a National Park is public land you could make a case that you thought you were allowed to go since you weren't specifically told you can't go (assuming you didn't cross a fence line/no trespassing sign). You should definitely contact a real lawyer though. Now if you do enter then I think the probability that you will be caught and prosecuted would be fairly low. It is your decision if that risk is worth the reward of entering/exploring the structure. | NJ Rev Stat §9:6-1 may be the source of the rumor (since it was in the news), but that law prohibits "the habitual use by the parent or by a person having the custody and control of a child, in the hearing of such child, of profane, indecent or obscene language". The NJ Supreme Court recently declined a First Amendment argument for overturning the law. Otherwise, a candidate is disorderly contact, NJ Rev Stat § 2C:33-2(b), A person is guilty of a petty disorderly persons offense if, in a public place, and with purpose to offend the sensibilities of a hearer or in reckless disregard of the probability of so doing, he addresses unreasonably loud and offensively coarse or abusive language, given the circumstances of the person present and the setting of the utterance, to any person present. N.J. v. Burkett somewhat tests this law, though the specific acts (which were found to be puerile yet legal) are not adequately described to test the limit on this ban on profanity (as a subcase of coarse language). The statute still stands, but seems not to have been otherwise prosecuted. | Is it true that I cannot buy a puppy and smash it deliberately for my perverse amusement (regardless of whether it's in front of them or not)? If I cannot, can you point me to the relevant laws? Is it true that I cannot buy a cow or a pig and throw it into a woodchipper similarly for my perverse amusement? If I cannot, can you point me to the relevant laws? You can't do either of these things. Every state has some sort of law banning cruelty to animals. For example, in Colorado, the laws prohibiting cruelty to animals are codified at Sections 18-9-201 to 18-9-209, Colorado Revised Statutes. The core language of the statute is codified at Section 18-9-202(1)-(1.5) (as of July 1, 2014) which states (in language that is not atypical nationally) that: (1)(a) A person commits cruelty to animals if he or she knowingly, recklessly, or with criminal negligence ovedrives, overloads, overworks, torments, deprives of necessary sustenance, unnecessarily or cruelly beats, allows to be housed in a manner that results in chronic or repeated serious physical harm, carries or confines in or upon any vehicles in a cruel or reckless manner, engages in a sexual act with an animal, or otherwise mistreats or neglects any animal, or causes or procures it to be done, or having the charge or custody or ay animal, fails to provide it with proper food, drink or protection from weather consistent with the species, breed, and type of animal involved, or abandons an animal. (1)(b) Any person who intentionally abandons a dog or cat commits the offense of cruelty to animals. (1.5)(a) A person who commits cruelty to animals if he or she recklessly or with criminal negligence tortures, needlessly mutilates, or needlessly kills an animal. (1.5)(b) A person commits aggravated cruelty to animals if he or she knowingly tortures, needlessly mutilates, or needlessly kills an animal. (1.5)(c) A person commits cruelty to a service animal if he or she violates the provisions of subsection (1) of this section with respect to a service animal . . . whether the service animal is on duty or not on duty. The rest of the statute mostly spells out sentences and other remedies and definitions applicable to these offenses. For what it is worth, the laws against cruelty to animals, and the now obsolete laws prohibiting cruelty to slaves that existed when slavery was legal in the U.S., were quite similar. So, yes, an animal (pet or otherwise, there is almost no formal legal distinction between pets and non-pets, even though in practice, people evaluate what is cruel to a pet and to a farm animal differently) is property. Yes, someone who owns an animal may intentionally kill it or maim it, or have someone acting at the owner's instructions do so. But, an owner must do so humanely under the circumstances and must do so for a good reason (such as for food, to put down a sick or injured or dangerous animal, or for experimental research). Ranking states is a bit difficult. There are some states that have felony cruelty to animals statutes and some that don't. I don't have the time to look for an exhaustive survey of the law state by state (one summary is here). There are some states that are quite specific (like Colorado) and others that are more general in language. Idaho has an express provision that killing animals that are harrying livestock is an acceptable reason. Some of the difference boils down to how the law is applied in practice, rather than to the language of the statutes on the books. The overall gist of the statutes, however, is pretty similar: don't be cruel in how you do it, and don't harm animals if you don't have a good reason for doing so. There is also a lot of conduct (for example, separating mothers and young children, amputating body parts such as claws or tails or reproductive organs without consent, or confining and leashing them) that would cause emotional harm to animals and which would be grave human rights abuses, that is not prohibited as cruelty to animals. Similarly, there are many farming practices that are accepted as not violating these laws like the process of creating veal or foie gras that could be characterized as cruel but are accepted as not violating the laws against cruelty to animals. To a great extent, these exceptions, which are rarely codified, are simply a matter of custom and practice and tradition, rather than having any well reasoned logical derivation from statutory language. | It is illegal to sell alcohol to a minor in Washington (RCW 66.44.270). The seller can get into various kinds of trouble, including losing their license, under liquor board regulations. However, as long as the establishment follows the rules for acceptable ID, they escape liability if in fact they sell alcohol to a minor: the license holder is legally allowed to accept an identification of the specific type. That is the sense in which this is required by law: the customer must have actually presented the identification, in order for the establishment to escape liability (RCW 66.20.210). Looking old enough is not the issue. It is legal to sell alcohol to a person who is over 21, and the law does not require presentation of identification as a condition for a sale. However, under RCW 66.20.180 a person is require to produce ID "upon request of any licensee, peace officer, or enforcement officer of the board". The legal risk attached to sales in an age-marginal situation is very high, and actual presentation of ID is required to escape liability by the establishment, so in that sense, it is "required by law". All requests to produce ID for liquor sales (at least in Washington, and leaving out deliveries which are governed by other laws) are driven by company policy. Typical policies are quite rational, being designed to protect the company's interest in not getting into a heap of trouble for an under-age sale. There is no law saying when you must ask, or when you are protected if you don't ask. Usually, store policy is to use "common sense" so that 90 year olds are not required to produce ID (they may be asked, jokingly). Non-compliance with RCW 66.20.180 carries no legal penalty, that is, there is nothing in the statute that says "if the customer doesn't...". The most obvious would be that the seller would refuse to sell, which the seller can arbitrarily do anyhow. There is no statutory penalty imposed on a licensee if they request ID of a person over 21 and the person fails / refuses to produce the ID. Obviously, the licensee cannot be punished if a customer fails to provide ID (and leaves), especially if they lost it. But the law "requires" them to provide an ID, with ne except "unless you leave / put the bottle back". Somewhat less obviously, if the legislature wants to, it can enact a provision that once a licensee requests ID, they are forbidden to sell alcohol to that customer until ID is provided. But there currently is no such law. "The law" also included regulations, such as WAC 314-17-105. This regulation is a chart, and the relevant entry is PERMIT: Failure to produce permit or identification upon request. See RCW 66.20.310 and 66.20.180. for which the 1st offense consequence is "5-day permit suspension OR $100 monetary option". This is a problematic regulation (potential lawsuit fodder), since it can be interpreted in a number of ways. The question is, of whom is the permit or identification predicated? Only the licensee has a permit, but customers and employees can both have identification. If we interpret this regulation as meaning "Failure by licensee or customer", then we arrive at the absurd conclusion that if a customer fails to produce ID on request, the establishment is fined. It is important to note that this regulation is under a chapter about server training, thus the regulation can only reasonably be interpreted as being about licensee providing identification. |
When is a permission required to attack a system? Never attack something you don't have a permission for! This is one of the golden rules of penetration testing, yet it's surprisingly unclear. What exactly counts as an attack, and when do I need permission? Let's consider some examples: Example 1 I want to log in on example.com, and accidentally type my password incorrectly, yet the website authenticates me successfully. Baffled, I try again, this time with a completely wrong password. Again, the website authenticates me successfully. It seems to me as if the back-end doesn't check the password at all! Would I have needed permission for this? Example 2 I buy myself a set of Bluetooth speakers. They come in a cheap "basic" and a more expensive "premium" variant. The only difference is that the more expensive ones have better sound quality. After opening the cheap ones up, I realize that they are built identically to the expensive ones, and just have a jumper on the circuit board that determines whether the speakers are "basic" or "premium". I change the jumper, and sure enough, the sound is better now. Realizing what I have done, I ask myself whether I needed permission from the vendor for this. Example 3 I use a website like TIO to execute some code. Out of curiosity, I try system("cat /etc/passwd") and sure enough, I get a file in the passwd format. I poke around the system a bit more to find the webroot and write a file into it. Again, I can open this file now. I could basically do anything on the web server, including modifying the website, visible to other users. Did I need permission from the website owners for this? Example 4 My 12 year old cousin shows me a browser game he likes to play. As a joke, I log in as admin'; -- and the admin interface revealed itself to me in all it's unescaped, unprepared glory. Did I need permission from the game's owners for this? As shown in these examples, I didn't do anything malicious, and the difference between legitimate use an an attempted "attack" is difficult to tell - at least on closer inspection. As such, is there a clear line when exactly permission is necessary? This question was originally asked in Security.SE. I am mostly interested in answers relevant to laws in the European Union. | Disclaimer: Not a lawyer or even living in US. I try to write the answer under US law. Other countries law may differ. Make sure you consult a lawyer in your jurisdiction. Here is my understanding of the individual examples: You don't need permission legally, because you are only accessing your own account and your own information. You are the only one damaged by the intrusion and therefore, nobody can really file a lawsuit against you. This is often used by security researchers when the subjects are uncooperative. That being said, if it is an actual pentesting client, you may want to refrain from it regardless. You don't need a permission to modify hardware you own. This is completely legal and not considered an attack. It would qualify as an upgrade, such as replacing a component in your laptop. You are allowed to do that. You should have a permission here. This is an intentional penetration test and you should have permission to do this. The same as 3. This is an intentional penetration test and you should get a permission. Though if you logout immediately and don't mess with the interface, it may not be illegal on the basis that you did not cause any damage or steal any information, or it may be illegal under some circumstances. It may also be impossible to prove that you did not do anything while there. | The Art 15 GDPR right to access is pretty absolute. There are only three grounds under which access to a copy of your data can be denied: Art 12(5): the request is “manifestly unfounded”, e.g. clearly just submitted for trolling Art 12(5): the request is “excessive”, e.g. if you repeat the same request very frequently Art 15(4): access to a copy would “adversely affect the rights and freedoms of others” Thus, I am confident that Twitch would respond to an access request with a copy of all your chat messages. Of course, the chat messages might be useless without context, but providing that context might infringe on the privacy rights of others (see Art 15(4)). There are two caveats to this right. The data need not be machine-readable, unless the more limited Art 20 right to data portability also applies. Twitch is under no explicit obligation to provide access in a self-service manner, e.g. through an app or web interface. It would probably in the best interest of Twitch to provide self-service means, but right now the Twitch privacy policy (permalink) asks you to exercise your rights by emailing [email protected]. Alternatively, their privacy choices page contains an entry to “Obtain access to or a copy of certain personal data we hold about you”, which contains a barely-visible link to a web form where you can request chat data. | are there any safeguards you could take to preemptively block such behavior, such as a disclaimer inside the book cover that reads something like The safeguard you outline would be overridden as soon as the author enters any contract that requires assignment of copyright. (I would not delve in the differences between licensing and copyright assignment because that hypothetical author is dealing with a contract of adhesion which readily requires assignment; the author has no option to change the ToS to allow for licensing only) Under contract law, one of the essential prerequisites is that the conditions of a contract be entered knowingly and willfully. By deliberately clicking on a ToS page to move forward with the uploading a copyrighted work, the author is signaling his awareness and acceptance of the ToS. The fact that the author chose not to read the ToS is irrelevant and very unlikely to strike whatever entitlements the website owner formulated in the accepted ToS. For the same reason, the author's safeguard disclaimer does not bind the website owner: It cannot be said that the website owner was aware of that disclaimer at the time of the formation of contract between the author and the website owner. That is, the website owner did not knowingly and willfully accepted the author's safeguard. The website owner is not even expected to know about any safeguards which one of its potential user intends to establish. The length of a ToS document is also irrelevant because the website owner has the valid argument that "the user-author could have skimmed through the ToS or do a search (via Control-Find) of keywords such as 'copyright' or 'property', whence any allegation of 'inadvertent' assignment of copyright is untenable". Is there a way to protect your IP from inadvertently being licensed/stolen/assigned via TOS "agreements", without having to waste your life reading huge one-sided online "contracts" that are "subject to change without notice" anyway? Yes. That consists of not uploading one's works in such platforms. In contract law that would be expressed as "declining an exchange of considerations". There are many other alternatives for an author to promote his work without being required to assign copyright. | I don't think any appellate court has given an opinion on whether encryption creates a reasonable expectation of privacy. This is not surprising as only recently has it come to light that the government may have weakened encryption protocols and asked for backdoors in order to aid in decryption. However, Orin Kerr, professor of Law at George Washington University School of Law wrote this article in 2001. He argues that encryption does not create a reasonable expectation of privacy. He says: the Fourth Amendment regulates access, not understanding. Once you introduce your communication into third party systems (or the garbage :P), they may give it up to the government. If the government happens to be able to understand that communication, so be it. He shows how this conclusion is consistent with how the courts have ruled on "reassembly of shredded documents, recovery of deleted files, and the translation of foreign languages". Note that the reasonable expectation of privacy test is only one of the tests used to determine whether a search or seizure is reasonable. Another test is the "trespass" test which deems an interaction to be a search per se if there is a trespass on a person's personal effects. It was used before Katz and was reiterated recently in US v Jones (2012). Regardless, your question is still meaningful because the two tests are used alongside each other. | Only if you ask Valve for permission first, and they agree in writing. I'm not a lawyer, but when I was reading through the Subscriber license you linked, this stuck out to me: You are entitled to use the Content and Services for your own personal use, but you are not entitled to: (i) sell, grant a security interest in or transfer reproductions of the Content and Services to other parties in any way, nor to rent, lease or license the Content and Services to others without the prior written consent of Valve, except to the extent expressly permitted elsewhere in this Agreement (including any Subscription Terms or Rules of Use); (ii) host or provide matchmaking services for the Content and Services or emulate or redirect the communication protocols used by Valve in any network feature of the Content and Services, through protocol emulation, tunneling, modifying or adding components to the Content and Services, use of a utility program or any other techniques now known or hereafter developed, for any purpose including, but not limited to network play over the Internet, network play utilizing commercial or non-commercial gaming networks or as part of content aggregation networks, websites or services, without the prior written consent of Valve; or (iii) exploit the Content and Services or any of its parts for any commercial purpose, except as expressly permitted elsewhere in this Agreement (including any Subscription Terms or Rules of Use). The part that I've bolded is probably the part that makes this against the Terms of Service, since in order to post these sorts of automated messages to their service, you'd need to use a "utility program" to "emulate or redirect the communication protocols used by Valve in any network feature of the Content and Services, through protocol emulation, tunneling, modifying or adding components to the Content and Services". I doubt that Valve would ever agree, since such a program could very easily be used to create spam bots that works bombard users with unsolicited advertisements, but maybe Valve would be willing to cut deals with AAA video game companies to let them deploy tools to automatically manage their store pages. | 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. | You do not have to. The burden of proof is on the prosecution to prove that you made the threat. Reasonable doubt exists in the circumstances that you describe, that there are no logs of who accessed what when and how. Your attorney may have to introduce expert witnesses who can explain how it is possible that text from your computer can end up on a web page, and they can testify that there are many ways that data can be entered into the database, only a few of which actually involve you. | Yes a company can be sued (since anyone can sue anyone). But in order to win a lawsuit, you have to have damages as a result of some action, AND you must prove that the action was done with intent to harm or was otherwise negligent. So following your website example, a lot of things would have to happen: The website would have to be hacked. If the passwords are encrypted instead of hashed (which still qualifies as "plain-text" once they email it to you), the hacker would have to figure out how to decrypt the passwords. (Which a good hacker could probably do.) The hacker would have to take those passwords and do something with them that causes damage to their owners. Even if all of those things happened, you would still also have to prove negligence on their part which would be pretty difficult to do because the flaw that was hacked would be the focus of negligence discussions moreso than what was stolen. That being said, if your goal is simply to get them to fix the problem, rather than receive monetary damages, then you could still sue for an action to be taken. You'd have to pay by the hour for the attorney since they wouldn't have a chance of winning monetary damages. But in all likelihood the website owner, upon seeing the lawsuit, would fix the problem before it gets to court, so I could see that having the desired effect. That is if you think it's worth the cost of filing the lawsuit in the first place. Perhaps you could save yourself the cost of an attorney and just threaten to sue if they don't fix the problem. |
Did Kamala Harris obstruct justice, if Tulsi Gabbard's claim is to be taken at face value? Background In the second night of the second 2020 Democratic Primary debate, Rep. Tulsi Gabbard claimed the following: She blocked evidence -- she blocked evidence that would have freed an innocent man from death row until the courts forced her to do so. Question If taken at face value (not saying it is actually true) for the sake of argument, does this fall under obstruction of justice? | Gabbard accusing Harris of obstruction doesn't make Harris guilty of obstruction. There is no legal progression between a statement by one party about the existence or veracity of a fact that could prove a crime by another party, and that other party and the veracity of the facts or the crime itself and forgone guilt, other than the statement by the first party itself could possibly be defamatory by publishing (making public statements) false facts. By saying "If taken at face value (not saying it is actually true)", I think you're confusing obstruction with defamation. If Harris did factually "block evidence", and it rises to the threshold of obstruction as determined by a prosecutor, then Gabbard isn't stating false facts and is not defaming Harris. If Harris did not factually "block evidence", as determined by documents and evidence, then Gabbard could be stating false facts, but both are public figures, so the threshold of defamation is higher in that it requires actual malice by Gabbard knowing her statement is false or by reckless disregard for the truth. To go a step further, to prosecute Harris, a prosecutor has to determine if Harris obstructed according to evidence, and charge her. Harris could have obstructed and not be charged for either political reasons or reasons regarding evidence, but that's a different question. | There are instances when the testimony may still be admitted. For example, a deposition may be admitted at trial either for impeaching or when a witness cannot attend, which involves the circumstance of death (FRCP 32(a)(4)(a)). Additionally, regarding hearsay, there are numerous exceptions. My Evidence professor said in class "If you cannot find a way to get evidence around a hearsay objection, you are not trying hard enough." One such hearsay exception states in the committee notes: Accordingly, the committee has amended rule 803(8) to refer to the provision of [proposed] rule 804(b)(5) [deleted], which allows the admission of such reports, records or other statements where the police officer or other law enforcement officer is unavailable because of death, then existing physical or mental illness or infirmity, or not being successfully subject to legal process. | In the case you link, this was given as an opening statement by the defense. Opening statements do not contain evidence. The defendant may or may not testify on their own behalf during the trial - this testimony, if given, counts as evidence, even if it is somewhat self-serving. And anything which tends to casts doubt as to the defendant's guilt is evidence that they didn't do it, even if it isn't proof. If there is reasonable doubt, then "he didn't do it" is not illogical. And it would seem unfair to allow the prosecution to say "he did it" but not allow the defense to say "no he didn't". | The main legal impediment to such action is that nonviolent political actions are not rebellion or insurrection. Interpreting the meaning of these terms arises in litigating insurance claims (where there is often a clause denying coverage in case of insurrection or rebellion), e.g. Younis Bros. v. CIGNA Worldwide Ins. where the matter was the Liberian civil war. Neither "insurrection" nor "rebellion" are defined under the statute, therefore they have their ordinary meanings. The ordinary meaning of "insurrection" does not include Congress overstepping its authority (if that happened), nor, in general, would it include an illegal act by a public official. Reference to 18 USC 2381, 2382, 2383 2384 is common in suits files under sovereign citizen theories of law, which courts deftly dispose of because the plaintiff has no standing in criminal matters. However, various Freedom of Information cases involving FBI investigations such as Shaw v. FBI, Friedman v. FBI, 605 F. Supp. 306 have suggested that the FBI can investigate a possible violation of 18 USC 2383 which does not involve open civil war. Various cases like Hamdi v. Rumsfeld (Scalia dissent), Padilla v. Hanft have supported the proposition that persons engaged in open war against the US can be prosecuted under this section. As far as I can determine, no case has supported the notion that a nonviolent action exceeding legal authority constitutes violation of that law. In US v. Silverman, 248 F.2d 671 the court mentions that "conspiring to overthrow the Government by force and violence" is prohibited by that statute. Furthermore, since the actions in this specific instance involve stuff that happened on the floor of the House, they are constitutionally completely immune. Article 1, Section 6 of the Constitution says of Congress They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. So while a Congressman can be arrested for racketeering or breach of the peace traveling to a session, they cannot be tried for what they say in session. I think they could be arrested for assassinating the Speaker while in session, but not for advocating assassination in a speech or debate. | If I want to protest for or against President Trump and decide to wear a Trump mask, isn't that speech protected by the first amendment? Probably. The matter of intent, in any event, is for a court to decide (if the prosecutor determines that the question should even be presented to a court). For example, someone seeking to rob a bank in a mask would probably fall afoul of this law, and it's not likely that using a mask of a political figure would enable a successful first-amendment defense. For a political protestor, it could be easy to show that the intent was to make a political statement and not to conceal identity, in which case it would not be necessary to consider the constitutional question, for a critical element of the crime would be missing. That is, if you say "I wasn't trying to hide my identity," and the court believes you, then you haven't violated the statute. That is a separate question from whether the statute is constitutional. For the law itself to be unconstitutional, it would have to be unconstitutional in every application, generally. If some applications of the law are unconstitutional, the law could stand, but prosecutions for the unconstitutional application would not succeed. | The Brandenburg Test This is not a "general test" - it's the test that applies. The prosecution must prove beyond reasonable doubt that: The speech is “directed to inciting or producing imminent lawless action,” AND The speech is “likely to incite or produce such action.” The first goes to mens rea; that the person intended by their speech to incite lawless action. This is a matter of fact based on conduct before, during and after the speech act. That is, intention can be established by what the speaker said and did before they spoke, while they were speaking and after their speech concluded. The second is based on the speech act itself. Here we have no precedent as to whether the incitement must be explicit (Lady McBeth or Iago) or implicit (Marc Antony): Hence, since Brandenburg, the Court has not elaborated on whether words of incitement are a necessary condition for conviction or if, absent words of incitement, a defendant has a First Amendment defense as a matter of law. We are left only with the Court's language in Brandenburg to try to divine whether words of incitement are in fact a necessary condition for conviction. The text is ambiguous. The Court stated that the First Amendment protects a speaker unless the speaker's advocacy is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Professor Gunther's position, that Brandenburg adopts Judge Hand's view, is supported by its self-conscious use of the term "inciting," suggesting that words of incitement are a necessary condition. No doubt, the Court was aware of Judge Hand's use of that term. But, of course, the Court did not state explicitly that a speaker has a First Amendment defense. Rather, it used an additional term, advocacy directed to "producing" the imminent criminal conduct. Arguably, unless the "producing" language was merely surplusage, the Court recognized that language not explicitly inciting lawless conduct may nonetheless be sufficiently dangerous that it should be criminalized. | The plea is entered before the trial. The concession of guilt happens during trial: the lawyer acknowledges that the defendant did the crime, but argues that it should be overlooked in some way. For example, Nixon dealt with a death-penalty case where the lawyer's strategy was to admit during the trial that the defendant had killed the victim, but to use the trial to persuade them that the circumstances did not call for the death penalty. You don't get to make those arguments if you enter a guilty plea, which would then strip you of your right to a jury. | This probably isn't a ground for an appeal. While a party arguing to reverse a trial court's decision must show that the argument that they are making on appeal was "preserved" by that party at trial by making that argument in the trial court, the converse is not true. Indeed, one of the rules of appellate practice is that a trial court's ruling will be upheld for any reason supported by the evidence even if it wasn't made by any party at trial. Generally speaking, a trial court isn't supposed to try a pro se party's case for them, but once the evidence is in, the court is free to do original legal research and come to a conclusions contrary to the arguments made by either of the parties. A judge is supposed to correctly apply the actual law to the facts notwithstanding the efforts of the parties to lead it astray. This doesn't systemically happen in favor of one party or the other in my experience, but is more common when one or both parties is relatively inexperienced in the relevant legal field. Appellate courts also come to conclusions about the law not advanced by either party on a regular basis. If anything, this is even more common in the area of administrative law, where the judge is likely to be a subject area specialist, than in ordinary civil litigation. It is also more common in administrative law because a judge in that context is more focused on the institutional implications of a bad precedent than trial court judges in ordinary courts. (PS is there a technical term for the rules concerning the "role" of the judge in a court, what they supposed to do, and not supposed to do?) Probably, but there isn't any term that comes readily to mind. If I can think of one, I will update this answer. |
Landlord provided photos and information for a different apartment I recently rented a unit sight-unseen (moving across country while working). The building had good reviews from previous tenants and the property manager provided photos of the unit. Upon moving in, the photos I was provided are of an entirely different unit. The unit listed on the lease is missing appliances, shows water damage, and was built to be accessible (very low counters, low toilets, no rim on the shower pan, etc.). I'm frustrated both with having been obviously misled about which unit I was renting and am in constant discomfort from having to work on lowered surfaces. I've browsed local websites and other questions here for a discussion of being misled by a landlord, but can't find what an appropriate action might be. Ideally, I would like to terminate the lease without penalty (and move to a different apartment). Is there a course of action that enables this? | You've signed a lease, which is legally binding, so you need to determine 1) what exactly was stated in the rental offer by the property manager and/or website about the available apartments, if a certain apartment was guaranteed, and if one could be substituted for another by the manager due to availability and other factors; and 2) you need to find out exactly what the lease says that you have signed, i.e. if there are terms that allow you to break the lease without penalty, such as misrepresentation by the landlord or property manager. If it turns out the manager did misrepresent the rental property, you may be able to break the lease. If the property manager stated at some point that the apartment represented by the photos may not be the actual property, you may be out of luck. Before confronting the property manager again, gather up all your emails, documents, photos and any other evidence - such as written descriptions of any phone calls and talks you had with the property manager before and after the move in - and talk to either a legal aid organization that specializes in rental aid (Google for your area in CO), or a lawyer who deals in leases and offers free initial consultations. Other than that, this site is not for specific legal advice, i.e. if you should sue the landlord to break the lease and move; that's your judgement and the advice of any legal representation. | A tenant has a right to "live in a property that’s safe and in a good state of repair". There are additional regulations possibly applicable in your situation if this is a "house in multiple occupation", summarized here. "Hazards" are explained here. However, these rules pertain to the condition of the building, not other tenants (except that "overcrowding" is also a hazard). They also say you should "report anti-social behaviour to your local council". It is legal to rent a room in the UK to a person convicted of a violent crime, so it would also be legal to rent a room to a person who hasn't committed a crime (assuming he is legally in the UK). If the person did not engage in actual anti-social behavior towards you, there is nothing to report to the local council. The landlord has no affirmative duty to disclose such a fact, and it might be illegal to do so under the Data Protection Act, since this is "sensitive personal data". | It depends on what state this is. In Washington state, there is a form that sellers must fill out, and section 3 addresses sewer connections. This matter could have been disclosed – the allowed answers are "yes; no; don't know" (or NA). These are sellers disclosures, and Zillow / Redfin are free to be unreliable (I personally know that they are wrong about square footage). A real estate agent also doesn't become liable for being misinformed. Assuming your state has this or analogous question, "No" means that you were told (doesn't matter if you didn't notice it), and "Don't know" means you're gambling. Let's say that the answer was "Yes". Still, you can't necessarily sue (and win): you would have to prove misrepresentation (fraud or negligence) and not innocent error. You could do this by, for instance, proving that seller had the septic tank cleaned out some years earlier. Perhaps an action against buyer's inspector is possible, since that's nominally what they might have been hired to find out. But that is only true if checking the sewer connection can reasonably be considered part of the deal, so you have to look at the contract with the inspector (and the inspector's report). | Unfortunately, your relative is more in the wrong here First, the COVID situation does not change anyone's rights and obligations under a contract (see What effect does an event like the current Covid-19 pandemic have on contractural obligations?). So the landlord (through their agent) is obliged to provide the property and your relative is obliged to pay the rent and to occupy the premises (most residential leases contain a requirement for the tenant to live in the premises and not leave it empty). Your relative (through you) has indicated that she will be in breach of her contract. The agent has considered her position and has offered two (IMO generous) alternatives: Allow her to continue with the lease without taking possession providing the rent is paid. To release her from her obligations under the contract and return the rent. To put it in perspective, if your relative simply "walked away", she would be liable for the rent until a new tenant was found and, if that new tenant was paying less rent than she was, the difference for the duration of the lease plus the costs of finding a new tenant - advertising, agent's fees (usually 1 month's rent) etc. Now, the landlord has an obligation to minimise your costs so advertising the property could just be prudent. However, if they lease it when your relative's contract has not been properly terminated then it is they who are in breach. Surely they can't take the rent and offer to re-let the property at the same time? Surely they can. What they can't do is relet the property without properly terminating your relative's lease. Would they even be entitled to retain the deposit under these circumstances? Absolutely. The deposit is to cover their losses if your relative breaks the lease - as she has indicated she is going to do (this is called anticipatory breach). Finally, I'd rather not go down this route but is there any protection for my relative for not being forcefully 'evicted' - since she's paid the deposit, rent - and those haven't been returned? Having never taken possession, she is not being evicted. | No illegal eviction took place, if he wasn't a tenant The term of the room rental was specified beforehand. There was no renewable or extension clause in the rental agreement. Bob also is not a tenant: he is a guest in a hotel. The Hotel offers cleaning services, as the OP specified. By overstaying, his items now were trespassing, the removal was legitimate. However, there is a point at which a short term renting of a hotel becomes living at it. Where this is is often dependant on how long or in what way you stay. Where's the line between a Tenant and a Guest? THAT is the operative question. When does a Guest/Lodger become a Tenant and can get eviction protection? In germany a couple of Hotels actually do have renters with a special rental contract - which is vastly different from the normal room rental. For example, the Maritim in Hamburg has year-rentals. These are actual renters with a rental contract and eviction protection, that give up some tenant rights for services (e.g. room cleaning service for limits in remodeling). However, overstaying at a hotel can actually become a crime: Einmietbetrug - obtaining a room in a hotel or a residency but not wanting to pay or mischaracterizing your ability to do so - is a variant of fraud and thus can be punished under §263 StGB; Under the operating law, a hotel guest is not afforded with all rights of a tenant, unless they are explicitly pointed out like with longstay contracts. In california the line is 30 days, in new-york-state it is the same but they also need to not have a different residency. in england-and-wales, the operative case when someone is a lodger or tenant is Brillouet v Landless (1995) 28 H.L.R. 836: a hotel Guest is not a tenant, even after more than a month of stay. In fact, courts following this case argue, that such a person is only licensed to be on the premises, and the license could be revoked without eviction procedures. In fact, the Brillouet v Landless case is very close to the example. Brillouet rented a room in September, and extended the stay. Then he did not pay (or rather, his accommodation services didn't. In October, Landless sought to get rid of Brillouet for non-payment, just telling him to leave. Brillouet applied for an injunction against the eviction and got a temporary one (to preserve the status-quo) till the hearing. Mere days later, and the first instance court handed out judgement against the application of an injunction to protect Brillouet. The Hotel guest, so the court, was not a tenant under the Housing Act 1988: The Protection from Eviction Act depends on premises having been let as a dwelling. The Court of Appeals affirmed the denial of protection from eviction and seeing no tenancy (emphasis mine): It is an essential prerequisite of any tenancy that the tenant should have, so it is said in some of the authorities, exclusive possession. In my judgment the facts of this case particularly when one bears in mind that Mr Brillouet upon his own assertion avails himself of at least some of the facilities (he goes to the restaurant occasionally for his breakfast) — come nowhere near demonstrating that he has or has had within this room exclusive occupation. At best in my judgment he could conceivably be a licensee. One then has to examine once more the terms of the statute to ascertain whether he is a licensee entitled to protection under the 1977 Act. As the section to which I have alluded makes plain, only licensees who occupy as a dwelling premises which they do occupy are entitled to protection. If, as in my judgment the facts here clearly demonstrate, the occupant is no more and no less than a hotel guest properly so-called, then the accommodation is not let to the licensee as a dwelling. Street v Mountford (1985) AC 809 most likely doesn't apply if any hotel services are offered by the hotel. In the case, Mountford was found a tenant because Street did not offer any services beyond the room and furnishings itself. The presence of any service would change the pattern significantly, as the House of Lords decided: It applies against Bob if the hotel offers cleaning service/room service, and by offering service beyond the room and the furnishing within it, it is lodging, not a tenancy: The occupier is a lodger if the landlord provides attendance or services which require the landlord or his servants to exercise unrestricted access to and use of the premises. A lodger is entitled to live in the premises but cannot call the place his own. [...] Street provided neither attendance nor services and only reserved the limited rights of inspection and maintenance and the like set forth in clause 3 of the agreement. On the traditional view of the matter, Mrs. Mountford not being a lodger must be a tenant. Mehta v Royal Bank of Scotland Plc (2000) 32 H.L.R. 45 doesn't apply, as that case revolved around a verbal contract with the manager for 6 month exclusive use of rooms. Mehta became a tenant by that contract and eviction protection applied. In contrast, due to how agreements with hotels are generally written, Westminster CC v Clarke (1992) might apply: If the contact specified that the hotel does have unlimited access (which is typical) and that reassignments of rooms (like, another guest in the room) might apply, then there is no tenancy. Could Bob be a tenant? For Bob to be a tenant under the E&W interpretation (following the pattern established by Street & Brillouet), the facts must be such, that several things must be true: Exclusive possession: No services are offered at all beyond the room. For example, there can't be any shared facilities with the rest of the hotel that Bob has access to, and services such as room cleaning or fresh towels or laundry are not offered either. Not using them is not enough, they can't be offered at all. (both Street, Brillout) If in exclusive Possession, Bob still isn't a tenant if he is what Street calls a service occupier. That's an employee who is given a place to sleep in to perform his duties to the employer, like a Butler or Maid. (Street) Bob is also not an owner in fee simple, trespasser or mortgagee in possession, or an object of charity - for which all other rules apply. (Street) In the alternative, one fact makes them automatically one: There was a contract that in its form stipulates they are a Tenant (Mehta v RBS) | The actual law in BC, the Residential Tenancy Act, guaranteed a tenant's rights to the rental unit and the common areas, and restricts the landlord's right to enter the rental unit. Common areas are distinct from the rental unit. A common areas is "any part of residential property the use of which is shared by tenants, or by a landlord and one or more tenants", and a rental unit is a "living accommodation rented or intended to be rented to a tenant". In this case, that would be the room. There is no restriction at all on landlord's access to common areas, and there is no requirement that landlord access to common areas be for specific purposes. Access to the rental unit, on the other hand, must be for a reasonable purpose. | The right to adequate housing is a political question, the content of which is unclear in the UN's fact sheet. What they say is: All beneficiaries of the right to adequate housing should have sustainable access to natural and common resources, clean drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, food storage facilities, refuse disposal, site drainage and emergency services. Sanitation facilities are not completely ignored, so there is a theoretical basis to start from. However, that list of desiderata is not legally enforceable, so it would depends on the laws of the particular jurisdiction. In the state of Washington (US), a rental that lacked any sanitary facility (toilet) would be a violation of the health code: even hot water is required by law. In other countries, esp. where running water is not ubiquitous, there may be no legal obligation for a landlord to provide a toilet with running water. Whether legal action could be taken against the landlord depends on local law. A property owner can evict a tenant, subject again to local law. Usually, it requires a legal process where the owner petitions the court to evict the tenant, and in case the tenant has a contractual right to be there, the owner has to show cause (tenant breached the terms of the lease). A landlord does not generally have an obligation to find alternative housing for a tenant, but perhaps there is such a law somewhere, related to tenant tenure. The mention of a co-owner is a bit confusing. If A is the sole owner of a property, A can exercise landlord rights. If A and B both own the property, either of them can exercise landlord rights. However, if they disagree, i.e. A wants to evict tenant C and B wants to let C stay, the dispute between A and B must be resolved, and if they cannot come to an agreement then B can cause a delay of the eviction until the dispute is resolved in court. Again, the details on this would depend on the jurisdiction, and in part whatever landlord-tenant laws there are. | You say that you have a joint lease. This means that you and your roommate are jointly (together) and severally (individually) responsible for fulfilling the terms of the lease. From the landlord's position there is only one tenant - both of you together constitute the tenant. If you want to change this so that the tenant from date X is your roommate and someone else you have 2 options: Jointly give notice, ending the current lease and triggering the return of the deposit. Your roommate and your replacement are then free to negotiate a new lease with its own deposit. The landlord would conduct a final inspection on your lease and an initial inspection on the new lease. With the landlord's permission, substitute the new person for you on the existing lease. This does not end the lease and does not trigger the return of the deposit. The landlord is not obliged to do anything. You can negotiate whatever deal you like about the security deposit with whoever you like. |
Could I get around a copyright by changing one small thing I am trying to make a computer program that simulates another computer. I want to simulate something called the Scott CPU (from here). Could I change a small thing about it and not have to ask for permission to use it? | The copyright holder has the rights in whatever he created. If you have created something new based on his idea, the law will generally not be interested; but if your expression is recognisably a copy with a few changes, he can prevent publication or demand royalties. If you are uncertain which side of the line you fall, you should ask a lawyer (or, more cheaply, write to the author and ask if he objects). | The basic principle about copyright protection is that the expression of an idea is protected, but the idea itself is not. So wholesale copying without permission is infringing. But the abstract algorithm is not protected by copyright (and let us assume that it also isn't patented). By way of analog, an insertion sort is a pretty easy concept to grasp, and once you understand it, you can re-create it, independent of how the original example (where from you learned about the sort) is expressed. So the question is whether it is necessary for you to copy that code (copyright protects against copying), or can you independently re-express the algorithmic idea (ideas are not protected)? | I am not a lawyer, and none of the following should be seen as legal advice. While it is always best to assume every image has a copyright.... In your scenario... traditionally if you are selling a product, there's generally no harm in using images of that product to assist in the sale. But even then photographer copyrights should be considered. Images of products may not only contain copyrighted material within the photo, but the photo itself is probably also copyrighted by the photographer. Just blankety taking images from other web sites is a poor practice in general and will customarily just get you into trouble. However, many manufacturers or distributors will actually provide resellers with product images. You can check the product manufacturer's web site for a "press" or "media' section. There are often downloads provided in those areas. I don't know hairdressing.. but as an example, General Motors has a special web site known to GM car dealers where the dealers can download high resolution images of the cars and products for ads, etc. I've done work in the past for a GM dealer who provided me with the web site and log in details so I can get product imagery. In addition, few manufacturers will take umbrage that you are using their images to sell their products. They want their products to look as good as possible wherever they may be displayed. In many cases, they may prefer you use supplied images rather than use your own. Customarily you would include a disclaimer in the footer somewhere: The product names, company names and product images used on this web site are for identification purposes only. All trademarks and registered trademarks are the property of their respective owners. Note, I am referring to images from the manufacturer's web site, not from competing businesses. If you are building a site for "Bob's Hair Styling" it's unethical to take images from "Kate's Hair Dressing" for your use. Stick to the manufacturer... if selling Paul Mitchell products, check the Paul Mitchell web site for available product images. | 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. | Is it legal to do something illegal? No. Those programs are still under copyright and will be for many, many decades to come (for Office 2007 copyright expires 1 January 2127). You can only use them in the way the copyright owner allows which usually includes paying for a license. The owner of a copyright may not want to licence/sell it anymore: that is their right. If the licences they have sold are transferable you may be able to buy one second-hand. | The argument would have to be either a derivative work under copyright, or a trade dress/trademark claim. Neither sounds very solid at all. Neither copyright nor trade dress/trademark protect ideas like a TV format. They can only protect very similar expressions of an idea that necessarily flow one from the other and, for example, the game mechanics can't be protected by copyright. | You automatically have a copyright in any copyritable things you create. So you own copyright over the pictures you sent him (as long as you created them) | 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...). |
Governments interfering with churches since they have tax exemptions and/or tax benefits In most Western nations( especially with a large Christian population), there are usually tax-exemptions for churches and/or some kind of tax-deductible benefits for those who donate to churches. However, based on the Western law system (especially Anglo-Saxon legal systems), would there be a way for governments to argue that they can start interfering with church policies and/or church practices, rituals, etc.? For example, could governments start arguing that churches have to accept same-sex marriages, therefore, ensuring that same-sex marriages take place during church ceremonies, and so on so forth? | I'm just going to talk about the US. The First Amendment to the US Constitution codifies that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;... What is clearly prohibited by this Amendment would be Congress (or any inferior legislature via the 14th Amendment) restricting the ability of religions which refuse to marry same-sex couples from marrying opposite-sex couples, or in general outlawing any kind of religious law about who a particular church is willing to marry (e.g. only marrying if both parties are of the religion). However, legislatures are generally allowed to influence action via government inducements (I'll just use inducements to describe subsidies, tax breaks, etc). The current precedent for determining whether a particular legislative action violates the Establishment Clause is the "Lemon Test," from Lemon v. Kurtzman, which has the following test: Government action violates the Establishment Clause unless it: Has a significant secular (i.e., non-religious) purpose, Does not have the primary effect of advancing or inhibiting religion, and Does not foster excessive entanglement between government and religion. On the first point, I think the law fails - inducing religious establishments to perform same-sex marriage does not have a "significant secular purpose" because ultimately the government doesn't care whether or not you have a marriage ceremony, just that you sign a marriage certificate with an appropriate witness, which can be a government official. The law could survive on the second point if it could be shown to have at least the preponderance of being for social good, if it is argued that the law's purpose is to make church marriage ceremonies more accessible for same-sex couples by inducing more churches to perform them, and not to harm churches that don't perform them. However, this would probably be an uphill battle, since the law has the practical effect of promoting some religions' beliefs over others. The law probably fails on the third point as well, going back to the previous point that it effectively results in the government choosing one religious practice to promote over another. However, the Lemon Test often criticized or entirely disregarded by the current Supreme Court, for example in the case American Legion v American Humanist Association (a case decided by the current Supreme Court): This pattern is a testament to the Lemon test's shortcomings. As Establishment Clause cases involving a great array of laws and practices came to the Court, it became more and more apparent that the Lemon test could not resolve them. It could not "explain the Establishment Clause's tolerance, for example, of the prayers that open legislative meetings, . . . certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving. Even without the Lemon Test, we can look at Walz v. Tax Commission of New York for an idea of when tax breaks for religious establishments is allowed (emphasis mine): The legislative purpose of the property tax exemption is neither the advancement nor the inhibition of religion... New York, in common with the other States, has determined that certain entities that exist in a harmonious relationship to the community at large, and that foster its "moral or mental improvement," should not be inhibited in their activities by property taxation or the hazard of loss of those properties for nonpayment of taxes. It has not singled out one particular church or religious group or even churches as such;... The State has an affirmative policy that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest. This paragraph seems to provide some argument both ways. First, the bolded section would seem to prohibit using government inducements to promote one religious practice over another, and that the government can only assist religious institutions when the assistance is applied equally. On the other hand, states are allowed to grant tax relief to religious organizations "that foster..."moral or mental improvement,"..." A legislature could argue that the law promotes "moral improvement" by encouraging acceptance of same-sex marriage, rather than a particular religious belief. However, I don't think that such an argument would prevail over the general prohibition on promoting any religious exercise over another. Government assistance for religious organizations is very thinly held to be permissible only when it is equal. In my opinion, the Supreme Court already has to use twisted gymnastics to argue in favor of any government assistance of religious organizations granted because of their religious status, so they are unlikely to allow something this far (especially since it is usually the conservative justices arguing in favor of these policies, and they are less likely to do same-sex marriage any favors). On the other hand, a permissible policy may be to have government grants for any organization that performs same-sex marriage ceremonies, whether or not that organization is religious. Whether or not that is allowed is likely going to depend on what proportion of the receiving organizations are religious in nature, but there may be enough hotels and other non-religious venues that would qualify that such a law might survive. | Constitution of the USA, Article IV, Section 1: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. and the Commerce Clause (Article I, Section 8, clause 3): [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; SCOTUS has found the former to mean that states that do not allow same-sex marriages in their laws must recognize same-sex marriages registered by other states - Obergefell v. Hodges. Maybe one could argue that driver licenses are not equivalent among states, but I would expect judges (SCOTUS) to require a very well reasoned explanation. For example, maybe Alaska could refuse to recognize licenses from Florida because Florida drivers do not know how to cope with snowed roads. But even in that case Alaska probably would need to produce data showing that these measures aim to serve the public interest (avoid accidents) and that there are no other ways of getting the same result. OTOH the Commerce Clause has been successfully used to avoid states mandating racial segregation of travellers, so it is quite reasonable to see it being used to prevent a state from trying to limit the mobility of citizens from other states (again, in the supposition that the state restricting it cannot show a compelling reason to do so). AFAIK, only the Federal Government could invoke the Commerce Clause; I would expect a lot more people (in your example, the PA government or maybe even any PA driver) would have standing. | There are only a few areas of law of which I am aware that U.S. law treats people who are engaged to be married differently (although perhaps with more thought I could expand the list). Fiance(e)s come under a special immigration status when applying for a visa. There is a body of law related to whether an engagement ring is an absolute gift or is conditional upon being married (this is not uniform from state to state and I don't recall what the majority rule in those cases is under the common law). In South Carolina, ownership disputes over engagement rings are litigated as breach of promise to marry actions. Pre-marital agreements governing a future marriage can be made by people who are engaged (although a post-nuptial agreement is also equal in effect in most cases). People who are engaged, like spouses, are generally considered to be in a "confidential relationship" with each other which imposes higher duties with respect to fairness in their dealings with each other than strangers, but generally less high duties than fiduciaries. While not strictly arising from the status of being engaged, adult cohabitants are generally agents for service of process of each other at their shared home, and are often considered to have a legally significant relationship for purposes of domestic violence statutes (usually related to either domestic violence crimes or temporary restraining orders). I am not familiar enough with the law of France to fully answer the balance of the question, which someone more familiar with that law can expand upon. But, there is similarly a special immigration status in French law for a fiance(e). And, French law, in a flourish so romantic it could scarcely be any other country's law, also allows people who are engaged a right to marry after one of them has died in certain circumstances: "The legislation that allows posthumous marriages stems back to when a dam burst in 1959 and killed 420 people in southern France." It was most recently invoked in 2014 when a grieving French woman was granted permission by the French President to marry her former fiancé, who tragically died in 2012, just a month before they were due to wed. To be eligible the bride to be had "to convince the President of France that her’s was a special case and that her love for Michael went beyond the grave. It took four letters to the president and 20 months of waiting, desperately hoping for a positive response." The President's discretion in this matter is somewhat similar to the pardon power in U.S. law. This French law was also invoked in 2009. The law in question is set forth at Articles 171 of the French Civil Code. In English translation this states: Article 171 The President of the Republic may, for serious reasons, authorize the celebration of the marriage if one of the future spouses is dead providing a sufficient gathering of facts establishes unequivocally his consent. In this case, the effects of the marriage date back to the day preceding that of the death of the spouse. However, this marriage does not carry with it any right of intestate succession to the benefit of the surviving spouse and no matrimonial regime is considered to have existed between the spouses. I am aware of one documented case where a court entered a post-humous marriage in the United States between people who were engaged, but I am not familiar with any legal authority actually authorizing that action. | The details depend on the state, of course. The common law thing you are looking for is a writ of mandamus -- a court order to a public official to do something (or not do something) that they are required to do under the law. Writs of mandamus were traditionally only applicable to ministerial tasks (i.e. things that are basically paper-shuffling where there is little to no discretion); marriage licenses are typically considered ministerial. With discretionary actions, things are much more complicated because the government official is supposed to have significant ability to decide what should and shouldn't be allowed; mandamus doesn't apply unless there's a right to the action requested. In some cases, mandamus has been replaced with other forms of judicial review, but in Alabama it is definitely still mandamus that's involved (source: mandamus is what's previously been used to stop issuance of licenses). For federal review, which is more likely to get somewhere, the approach to use is the exact same thing that led to DeBoer (the case bundled into Obergefell that was about granting licenses), and Perry, and many of the other gay marriage cases: a lawsuit seeking an injunction or declaratory relief under 42 USC 1983, which allows actions in law and equity whenever anyone denies civil rights to a US citizen (or someone in the jurisdiction of the US) under color of law. The ultimate result of this kind of suit is a federal court order to issue a marriage license, or a declaration that it's illegal to not issue the license (and so anyone who doesn't will be subject to a court order). Violating this order, like any court order, is contempt of court. | In the U.S.: To my knowledge all states and jurisdictions that with a "sales tax" technically have a "use" tax, which means the tax liability falls on the purchaser. However, they require "businesses" (whose exact definition varies by jurisdiction) to collect and remit that tax on behalf of "consumers" (which can also vary, e.g., to exclude businesses that resell). Historically consumers have avoided paying use taxes by purchasing from out-of-state businesses that are not subject to their home states' laws on withholding the use tax: while technically a violation of the tax law neither consumers nor states have had an interest in calculating or auditing use taxes owed, except in the case of very large and unusual transactions. There is a large effort underway by states and "brick-and-mortar" stores that lose business to this virtual "mail order tax exemption" to subject out-of-state businesses to the requirement of collecting use taxes on behalf of the state. A few online businesses (notably Amazon) have acquiesced to this demand. To answer your question: In the U.S., an individual who is not making a "business" of selling items or services is generally exempt from the requirement to collect sales tax. It is the purchaser who has the legal obligation to declare and pay tax on such transactions. But purchasers rarely do. | The First Amendment states Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. It thus protects such videos. An analogous situation is that there is network news coverage of riots, bank robberies, terrorist attacks and assaults. Backpage was seized because it facilitated prostitution, not just reported or even encouraged it. That is basically where the line exists. | 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. | In general, a seller may make different and inconsistent sales terms with different customers on whatever basis the seller chooses. In some jurisdictions, for some kinds of transactions, specific laws may regulate this. They may require similar treatment, or advertised prices, or whatever. I do not know of any such laws governing the sale of oil, but there might be some. This will depend on the exact jurisdiction (country, state/province, and perhaps city or other locality). Please edit the question to specify the jurisdiction if you want a more specific answer. Price discrimination on the basis of membership in a protected class under anti-discrimination laws, such as race or religion under US federal laws, would be illegal. Proving that the basis was unlawful might be hard, however. |
Forgery of video I am 79 years old and a resident of a four storey building in NSW, comprising of 26 units. The multi-millionaire Chairman of our building's Strata Committee, who lives in the fourth floor’s penthouse and owns another two units in the building, acts as if he personally owns the whole building and has publicly verbally assaulted me, calling me a stupid old man who is always complaining. He controls the building's illegally installed security cameras and some months ago compiled and tampered with the cameras’ downloads, within our building, purporting to falsely show me kicking in our building's rear security door and damaging the locking mechanism. He subsequently lodged a complaint with the police accusing me of Malicious Damage (a criminal offence) which, after investigation, was rejected by the police. However, he instructed our Strata Manager to publicly screen the tampered video, without my permission, at the recent AGM causing me, my daughter (who is the owner of our unit) and son in law great humiliation. Our repeated requests for the past months for a copy of the video which we want to have examined by a by a digital forensic examination company to clear my name have been rejected by the Strata Committee, what can I do? | If you are accurately representing the facts, this is a clear case of defamation. Your attorney will point out that you could sue him / them, since he apparently accused you of a crime (the accusation to the police, it's the later public accusation that counts). You can subpoena the video, in connection with a lawsuit. There is no way to force them to turn it over without a court proceeding. | Lying in itself ("of course you will get a wifi signal here") is not a crime. However, if you have proof that the lies were intended to benefit your landlord at your expense ("You won't sign the lease unless there's wifi? No problem") and that they actually did so ("You've signed the lease, it's too late to back out"), he may be guilty of fraud, which is a civil wrong and may be a crime. You would be well advised to consult a lawyer before going amy further, since there are probably ten people believing themselves to be victims of fraud for every one who actually is so in legal terms. The lawyer will also probably tell you that the best you can hope for is restoration to the state before the lies (in my example, the lease is cancelled and you get your deposit back), though the authorities will look at prosecuting the landlord. | YT has certain obligations under Germany’s hate speech law Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken. You can file complaints with a dedicated form. Per se, you are correct: The German penal code § 111 punishes public incitement to commit offences. However, as a prerequisite to any crime, German penal law must be applicable in the first place. Specifically, it is questionable whether the man (when shooting and/or uploading the video) is/was located in Germany at that time, § 3 StGB. Hence YT’s assessment was OK. Since January 1, 2021, (cf. 2020 Federal Gazette Ⅰ p. 2600) posting the same kind of video could be a crime via § 5 No. 5a lit. a StGB if the woman was at that time in Germany, or the man is a German citizen or the man usually resides in the FRG. In your particular case, though, it is irrelevant, because you’re judged by the criminal law that was in effect at that time, § 2 ⑴ StGB. | There are three main aspects to this: Its their website, and their terms of service. They can enforce those terms, or change them (in some appropriate manner). You have no recourse if they remove you, block you, or delete your account, for example. That's the measure that you would probably have, virtually every time. To claim damages, or litigate beyond just website access control, requires a legal claim. But there's a catch there. To claim damages, they need to show actual damage, which they wish to be compensated for. If you misused their website but no actual harm can be shown, the total damage claimable is zero, whether or not you followed their rules. Merely entering dishonest information isn't by itself harm. So they would have to show they suffered damage/harm because of that, which is directly attributable to your behaviour, was foreseeably harmful etc, or similar. They also need to consider legal costs, and ability to enforce, especially if you are in a different country. If for some reason the computer use was also illegal, then a criminal act could be committed and they could notify law enforcement. For example suppose you did this in the little known country of Honestania, where the law says that to prevent trolling and online abuse, anything posted on social media under any but your own legal name is a crime. Or suppose you'd been banned from the system and ignoring/evading such a ban was criminal computer use or criminal trespass due to the forbidden/unauthorised access (which can happen in several places). But this is purely for completeness; I guess you'd know if you were taking it further, into criminal computer use. | I do not have anything official proving that I gave him the 2-months worth deposit What did you do, hand him a wad of cash? Pay by check, and put what it's for on the memo line. You've been there for nine months and there are several other people who can testify that you've been living there, so it would be difficult to claim that you aren't a renter. If you can show that the landlord is aware of your residence, that definitely helps even further, as does receiving mail there, registering to vote or with the DMV with that address, etc. Question 1 : what would be the best course of action to force the landlord to give me the requested lease agreement? You can't "force" someone to give you an agreement. That's kinda part of the definition of the word "agreement". If you find the conditions unacceptable, you can find another place to rent. When I asked the landlord about what he was planning to do regarding that, his answer was that it was not his business. It doesn't seem like it is. You could take the money you would have given to the other roommate, and give it to the power company instead. If paying for the utilities is part of the renters' responsibilities, and the renters are not paying for the utilities, then it's their choice to not have power. In California, landlords are required to make power available, but that just means that they can't interfere with you purchasing it from the power company, not that the landlord has to pay for it (if the landlord had agreed to pay for it, and isn't, then you can deduct the cost from the rent, but you can't simply withhold all rent, and your question indicates that the landlord hasn't agreed to pay for power anyway). Am I protected in any way, or can the landlord just come in my room and throw everything away, or worse just point me with a gun and force me to move? It would be difficult for the landlord to get rid of you, and would probably take several months to do legally. Performing an eviction himself, rather than getting the sheriff's department to do it, would expose him to serious charges, especially if a gun were used. Besides criminal charges, "If this or other unlawful methods, such as locking a tenant out or seizing his possessions before an eviction process has ended, are used to force a tenant to leave a property, a landlord may be subject to fees up to $100 per day of unlawful method use." http://homeguides.sfgate.com/tenants-rights-utility-billing-california-8073.html However, while the legal process will take a long time, at the end you will still be liable for back rent, and you will have an eviction on your record, which will make it harder to rent in the future. | The first thing to notice is that the £100 offer appears to be a legit offer. That is to say, accepting it will create a binding agreement between you and the company. There is no reason yet for the company to believe that you have suffered more damages, and you do have reasonable options to prevent them (ask bank for a new card - that's not going to cost you £100). The second observation is that the GDPR does not really affect the first observation. The GDPR itself does not give rise to additional civil claims or special damages. Yes, the GDPR states that the company is in the wrong, but parties can make agreements how a wrongful deed is made right again. And their offer appears to do so. Note that accepting the offer does not take away your continuing GDPR rights. It just affects their past error. You can still ask them whether they have your card data on file today. | "Revenge" is not a legal concept. If you injure someone other than in self defence or for another legal reason than you are committing assault. Hence dangerous booby traps for trespassers are illegal, so anything that might cause injury, however minor, is definitely out. That includes itching powder. However I would make an analogy with anti-climb paint. This allows you to use a paint that damages clothing provided you put up warning signs. So if you were to leave a parcel coated with anti-climb paint or containing a bag of paint or glitter rigged to spill it over the person opening it then that would be legal as long as there was a warning that tampering may cause property damage. (Note "spill", not "squirt" or "splash": anything ejecting paint or glitter under pressure might get it in someone's eyes, causing injury). So your friend could put a notice up saying that unauthorised tampering with parcels could cause damage to property and then put out parcels that might do exactly that. Your friend could also put a GPS tracker in a parcel to try to find out where they are going. Update Here is someone who did this. The BBC story does not mention any legal issues for him. A former Nasa [sic] engineer spent six months building a glitter bomb trap to trick thieves after some parcels were stolen from his doorstep. The device, hidden in an Apple Homepod box, used four smartphones, a circuit board and 1lb (453g) of glitter. Mark Rober, who is now a Youtuber, caught the original thieves on his home security camera. [...] The former Nasa engineer said: "If anyone was going to make a revenge bait package and over-engineer the crap out of it, it was going to be me." | He was jailed for breaching an injunction imposed on the Shard in 2018 which was intended to prevent anyone from climbing it, according to a news report from the Guardian at the time. The actual offence he committed was contempt of court which is a criminal offence. Double jeopardy does not apply here because the crime he was cautioned for was not the same crime he was prosecuted for. It appears there was no precedent set, prior to this private prosecution, about whether or not someone could be jailed for breaching an injunction in this manner, as opposed to merely being fined, etc. Obviously, since he has been jailed, people in the future will be reluctant to copy his behaviour and a deterrent has been set. |
Is it acceptable to send flowers to a judge after a routine administrative proceeding? I recently filed a petition in my county court. While I'm aware it's a routine proceeding for county judges, the judge's grant of my petition means a lot to me personally, and I would like to send a gift of flowers and a card as a token of my gratitude. Of course, I know there are restrictions regarding gifts to judges, designed to address impropriety and influence (or appearance thereof). I came across the ABA's Model Code of Judicial Conduct: Canon 3 and the Guide to Jucidiary Policy; both seem to have exclusions, notably “Gift” means any gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other similar item having monetary value but does not include: [...] greeting cards and items with little intrinsic value, such as plaques, certificates, and trophies, which are intended solely for presentation Furthermore, the Guide to Judiciary Policy also outlines (emphasis mine) that A judicial officer or employee who has received a gift that cannot be accepted under these regulations should return any tangible item to the donor, except that a perishable item may be given to an appropriate charity, shared within the recipient's office, or destroyed. My questions are thus: Would a bouquet of flowers constitute an item with "little intrinsic value" and or that is "intended solely for presentation"? If the answer to 1 is not a clear-cut and unconditional "yes", could I instead address the gift to the judge's office? Such a bouquet would likely cost around $100, but mitigating factors (as I see them) include the facts that: Flowers are pretty much intended for presentation; according to two examples from the Cornell Legal Information Institute, even though some items might have a "market value" that could trigger restrictions, since they are primarily intended for presentation, they are acceptable, and The gift is being given after the judge's grant, rather than prior to it; I don't expect to be conducting any further business with my county court in the foreseeable future, and these restrictions are specifically applied to gifts from [...] anyone who is seeking official action from or doing business with the court or other entity served by the judicial officer or employee, or from any other person whose interests may be substantially affected by the performance or nonperformance of the judicial officer’s or employee’s official duties. | This is a somewhat tricky one. judges tend to be particularly sensitive to possibly improper gifts, so it is best to err on the side of caution—the low-value side. I would think a very pleasant floral gift could be obtained and delivered for much less than $100. It may well be that a simple card or letter, in which you write a note explaining how much the judge's action meant to you, would actually mean more to the judge than any amount of flowers. Since you don't know the judge personally, after all, you have no idea of his or her taste in flowers. Some people even have allergies. Or you might ask one of the clerks at the court what would be appropriate. If your case or issue was still pending before the court, or you expected to appear again soon, such a gift would be a bad idea, in my view, although probably not actually illegal. | Note: The answer to the question is not the same in every U.S. state and territory. I have provided definitive answers only when there is unanimity or near unanimity. Did the deceased's family obligate themselves by not returning the the first service, that of the Notice of Appeal? No. Unless they expressly agree to do so in writing to be responsible for a decedent's debts (which almost never happens in the U.S.) next of kin of have liability regarding the debts of a decedent (at least by virtue of being next of kin, obviously, if they were, example co-defendant in a case who participated in the wrongful conduct, that could be another matter), except that it may result in a claim against the probate estate which reduces the size of their inheritances (potentially to zero), if timely asserted in the probate estate. As the next of kin are they obligated to receive the mail addressed to the deceased? No. Also, counsel for a decedent are terminated as counsel as a matter of law upon the death of a client. It is customary for a lawyer in the case (often, although not necessarily, the lawyer for the decedent if the decedent was represented by counsel at the time of death) to file a document usually entitled "suggestion of death" in the pending case when someone dies. But, no one is obligated to do so, and if the party is self-represented in the case (a.k.a. pro se), or that party's lawyers have withdrawn from the case, neither the decedent's former lawyers, nor anyone else in the case, may even be aware of that fact that the party to the case has died. What would be a possible remedy to keeping the claim active against this defendant albeit deceased defendant? File a claim in the estate of the decedent if the deadline for filing claims has not lapsed (which two years later, it may very well have). Normally, either a claims deadline that functions by operation of law (e.g. a state law non-claim deadline one year after the date of death), or a claim deadline arising from publication of a notice to creditors in the legal section of a newspaper in the area where the decedent died in a manner prescribed by state statute, would bar the claims, especially if the status quo was that they had been dismissed at the time of the decedent's death, even if there were still undistributed assets left in the probate estate after the deadline for filing claims has expired. It may also be possible to do a substitution of parties of the decedent's probate estate for the decedent in the pending case, if a probate estate has been opened and the deadline for filing claims has not yet lapsed. If a probate estate has not been opened, usually, after a certain amount of time, a creditor may open up the estate without the consent of the next of kin, or a public administrator will be appointed if there are no next of kin who have done so, and there are assets left to be managed in the probate estate. The law governing exactly when a probate estate has liability for the debts of a decedent incurred during life is a matter of state law that varies in significant detail between different states within the United States and is quite technical. I've written a couple of Colorado Bar Association journal articles on that subject applying Colorado law (Andrew Oh-Willeke, "Creditor's Rights In Probate - Part I and II", The Colorado Lawyer, May 2015 and June 2015). Note that the general rules may not apply in all cases to lawsuit brought "in rem" (i.e. adjudicating rights in a particular piece of property) although those kinds of cases aren't very common in federal court and would rarely involve the fact pattern set forth in the original post. Footnote Re Federal Civil Procedure For many years there was a lack of clarity, and/or a split of authority between U.S. Court of Appeals Circuits, over the proper time to appeal a ruling dismissing a party entirely from a case as a matter of federal civil procedure in various circumstances. It was resolved a few years ago, but I don't recall the outcome of that case. The general rule, expressed in Federal Rule of Civil Procedure 54(b) is that the dismissal of a party in a case cannot be appealed unless the trial court certifies that decision as final for purposes of appeal which is a discretionary decision for the trial court judge. | You would probably want to start with the Administrative Office's case-management statistics. I haven't been in there in a while, but I believe they'll have the data you're looking for. Note, though, that even if you can figure out which districts are fastest and slowest, it's still going to be a crapshoot, as there are going to be several judges in most districts, and there's basically no way of controlling which one you get; in my home district, for instance, we have a judge who we expect to do basically nothing with new cases for close to a year, another judge who we know will put us on a "rocket docket," and plenty more at different points along that spectrum. | NO If there were no extenuating circumstances (or they should not have been looked at as they were not presented), the losing party can petition for reconsideration and appeal the decision as a matter of law. The Judge/court of appeals then reviews the case and decides if the verdict stands. But you can't plead new facts at that stage, so if the losing side's lawyer messed up the case, that's up to them, not the judge. If it was a criminal case, the victim can't force the DA to appeal either, though they can try to get an injunction in related civil cases. But no person, or for the matter neither party, can sue the judge at all for misbehavior on the bench because judges have judicial immunity. Even when they did something so out of scope, such as a judge ordering from the bench that a lawyer shall be beaten up by police because they missed a court date, they get immunity as they acted as a judge (Miles v Waco). Indeed, let me quote from the first section of that SCOTUS case (emphasis mine): A long line of this Court's precedents acknowledges that, generally, a judge is immune from a suit for money damages. See, e. g., Forrester v. White, 484 U.S. 219 (1988); Cleavinger v. Saxner, 474 U.S. 193 (1985); Dennis v. Sparks, 449 U.S. 24 (1980); Supreme Court of Va. v. Consumers Union of United States, Inc., 446 U.S. 719 (1980); Butz v. Economou, 438 U.S. 478 (1978); Stump v. Sparkman, 435 U.S. 349 (1978); Pierson *10 v. Ray, 386 U.S. 547 (1967).1 Although unfairness and injustice to a litigant may result on occasion, "it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself." Bradley v. Fisher, 13 Wall. 335, 347 (1872). ... Like other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Accordingly, judicial immunity is not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial. Pierson v. Ray, 386 U. S., at 554 ("[I]mmunity applies even when the judge is accused of acting maliciously and corruptly"). See also Harlow v. Fitzgerald, 457 U.S. 800, 815-819 (1982) (allegations of malice are insufficient to overcome qualified immunity). In the example OP posed nobody, not even the police, becomes liable for the actions of Bob but Bob himself: Police does not need to help you, even if they know for a fact that something is happening right now. There's a huge error in the case as presented by OP You start to work up a case, and points 1 to 3 are fine. But you start to get off the rails starting in point 4: The evidence does not say that someone is to be locked up, it only indicates what the facts of the case (upon which is to be decided) might be. The decision if someone is to go to jail or not is only up to the verdict - which happened in dot 5. Dot 5 however indicates that the judge looked at extenuating circumstances which is also evidence, so point 4 is presented incompletely. Let me present a more complete version of point 4: Evidence from side A was presented, as was other evidence by side B. To the victim, it seemed that side A (either her attorney or the DA, not clear from OP) had the better evidence and might get a conviction on side B. But the Judge did weigh the evidence differently than the observer and declared a verdict favoring B in point 5 to the dissatisfaction of the victim The missing bullet between 5 and 6 (a motion for reconsideration or appeal) does not seem to happen. Assuming it did not happen, because months go by, the verdict becomes final and the case becomes res iudicata - the case is closed. Point 6 is a different and separate crime. The case files of the earlier case can get pulled to show a pattern of behavior, but not to re-adjudicate the earlier case. Finally: Point 7 does not matter before the law: If-Then hypotheticals can't be adjudicated. Because the counterpoint to the presented argument in this point is: Would the lawyer of Side A have filed for reconsideration and/or appeal, the verdict would not have become final and waiting for the verdict from the court of appeals, Bob might still await the next step of the trial. tl;dr As presented, the rundown of the hypothetical case does not present anything that the judge could be liable for but instead shows that side A did not take the necessary steps to ask for reconsideration or file an appeal to the verdict they didn't like. The separate incident opened a new case, the hypothetical that side B would sit in jail is conclusory. | It is the duty of the witness to give the testimony, no matter what their nationality is. As a witness, a German citizen is not different from a French, Uruguayan, or even a stateless. The only letter the judge will usually give them in addition to a verbal thanks is a formal letter recognizing that they have, on suchandsuch day(s), been called as a witness to the court and appeared. This is usually given to any witness and pretty much a form. It does serve as evidence for example in cases of absence from work - and you are entitled to the losses you incurred for appearing in court if you formally request them. It isn't forbidden to request a different letter from a judge, but they might not give such an extraordinary letter of appreciation, because that might taint the case: it could raise the question if the testimony was bought with or made to gain such a letter. | If two parties have a contract, where one party is required to do X in exchange for the other party doing Y, then the terms specified in that contract would determine what happens. You would have to see exactly what it says, especially if the other party has the option to not give you money. A contract might say "A shall at his option give B $5,000 by date X; if A elects not to make payment, notice must be given 60 days before X". Failing to give timely notice is thus breech of contract. However if the clause only says "A shall at his option give B $5,000 by date X", then there is no requirement for advance notice. And this assumes that there is a contract whereby both parties have some obligation to the other. A gift, on the other hand, carries no obligations on the giving party. There may be some social code to the effect that they should have told you by now, but failing to give advance notice is at most rude and certainly not legally actionable. | I think the key word here is "assume". A person, N, who is clearly the next of kin of a recently deceased person D may not assume that s/he is D's sole heir, or indeed is D's heir at all. N must wait until D's will (if any) is known, and an executor or administrator is lawfully appointed. Only the executor may lawfully dispose of D's property, by conveying it to specified beneficiaries, selling it, giving it away, or by any other means. Anyone who does so without the proper executor's authority is probably technically guilty of theft, although in a case like the one in the question, a prosecution would be very unlikely. But N would be liable to any heir H for the value of items properly left to H but disposed of by N. H might not choose to pursue such a claim, but would be legally able to. N should remember that the value, monetary or sentimental, of objects may not be known to N, and may be much greater to H than N is aware of. I suppose that in the case of objects of slight value which must be dealt with promptly, such as perishable food on D's premises, reasonable steps would not be objected to. | While you have correctly stated the usual order of events in a trial, the judge has wide discretion to modify the order if it seems that justice will be served. Even in a serious criminal case, the judge can reopen testimony after closing arguments have started if the judge finds that there is good reason to do so. Traffic cases are generally less formal, and the judge will more freely modify procedure to bring out the facts of the case. I have often seen judges at traffic court ask significant relevant questions, and if they are in fact relevant, i don't think you will get far objecting to their begin asked. I am not a lawyewr, but I also have observed several traffic cases in Maryland and in NJ. |
Forcing a person to remove a picture of me I was riding home on the bus from summer school. A girl and I had a debate and she ended up frustrated and moved seats. The girl then started taking pictures of me. When I told her to stop, she continued to take pictures. At the end of the bus ride, I told the bus driver to keep the doors closed so she can remove the pictures. The bus driver asked why, and I told her that I have a restraining order against my biological father. My question is if the girl can be forced to remove the photos and more generally, can you force a person to delete a photo of you if you do not consent to it? I live in northwest United States. | The United States has a fairly strict definition of where you have an expectation of privacy, a public bus certainly isn't a private place. In public, anyone can take pictures and video of anyone or anything else. You may have some sort of case if the girl were to use those photos to knowingly help your father violate the restraining order, but it doesn't sound like you believe that was the case. | You would need a court order to force them to take it down. There is virtually no chance a court will order them to take it down, because it would be almost impossible to do so without violating the First Amendment. You would have to prove that forcing a publisher to stop saying that you teach at the university would advance some compelling governmental interest, and that there isn't a better way to advance that interest. It's not clear what you mean by "cyberstalking," but if you're talking about someone sending you harassing messages, then the court would probably conclude that the better option would be to punish the harasser, rather than limit the publisher's speech. You could try paying them off or sending a threatening legal demand, but I doubt either would go far. I suspect that the best course would be a persistent campaign to escalate up their chain of command to find a sympathetic person willing to help. Even that, though, I would expect to be tough, because I'm sure you wouldn't be the first person trying this. | Maybe, maybe not. The answer is implicit in the restraining order, which I assume you have a copy of. If the wording is unclear, you can ask your attorney. The order will state the consequences for violating the order, so you have some idea what the risk factor is. A person may also petition for a new restraining order to include bill-paying, which may or may not be granted. | There are not enough facts to draw a conclusion First, it’s not clear that the document you signed amounts to a contract. For example, what consideration did the school give you in return for the permission you gave them? Providing you with an education doesn’t count - they were legally obliged to do that already. If it is a contract then whether and how it can be revoked would depend on the terms of that contract witch I’m guessing you don’t have a copy of. Notwithstanding, as a minor, you have the right to void the contract until a reasonable time after you turn 18. Even if it is now many years since that happened, it might be reasonable since you only just discovered the website. If it isn’t a contract, then it would be revocable at any time. Practicalities Make a fuss and they may take the photos down even if they are not obliged to. They presumably have plenty of photos of kids who aren’t you and aren’t complaining and if you make it so it’s easier to change the website than to deal with you, thy’ll change the website. I suspect their inertia is because they once paid a web developer to create the site, it has never since been updated, they don’t know how to do it, and they don’t want to have to pay someone to find out. Otherwise, why would they have photos of ex-students rather than current students? If so, an offer by you to cover the costs, might solve your problem. | 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. | In all likelihood, the judge's order related to data collection and reselling is not legally enforceable. They weren't parties to the expungement action, so the judge doesn't have jurisdiction over them. And, the First Amendment protects the right to say truthful things pretty absolutely. Arguably, if the sites provided the information without making clear that it might not be current because records were expunged or corrected, there might be a claim for negligent misrepresentation, false light, or even defamation, but I seriously doubt that even those claims would hold up. The language in the order might cause sites to comply out of not legally justified concern, or just a desire to be accurate, even if it is not enforceable. So, it doesn't hurt to bring that information to the attention of such sites and ask them to take down the information. But, when push comes to shove, I very much doubt that you would prevail in court enforcing that order against them. Certainly, if you do nothing, they will do nothing, because they are not psychic and have no idea that the court order related to those records has been entered. Even a valid and enforceable order directed at a party over whom a court has jurisdiction is not effective until the person ordered to comply with it has notice of the order. And, there is no system that gives sites like that notice without you taking action to inform them of an order. | There is nothing illegal about the child asking for nude images, but, depending on jurisdiction and circumstances, there is quite likely to be a serious legal problem with the adult providing such nudes. The exact laws that might be violated would depend a lot on the jurisdiction. The detailed facts would also be significant. But such a situation is fraught with danger, for the adult. Even if there is no ill-intent, such actions could easily be misinterpreted, and might be technically unlawful regardless of intent. Of course, not all nudes are obscene, or even "inappropriate for children". Which are so classified depends on the laws of the particular jurisdiction. | The relevant law is not so specific. It prohibits child abuse and child neglect which are defined only as general standards and not as specific rules. This doesn't appear to be child neglect, indeed, the opposite to the extent that there is such a thing. So, would it be child abuse? This would be up to the finder of fact to determine, and might depend upon the manner in which this is done (for example, what is said to a child about it) and the reason that it is done (e.g. a history of self-harm) and more generally in light of the total context of the situation. But it is not obviously child abuse, unless, for example, recorded video was used for child pornography purposes, which there is nothing in the question to indicate. A comment suggests that the criminal offense of voyeurism (F.S. § 810.140) or video voyeurism (F.S. § 810.145) might be implicated, but both of those statutes apply to "secretly" observing someone or "secretly" setting up cameras, while in this case, the cameras and viewing are anything but secret. So, even if it were child pornography, it would not be voyeurism or video voyeurism under state law in Florida. As a general rule, a child is not entitled to privacy from a parent except in certain specifically defined circumstances (e.g. certain privileged communications). |
Do we have to take down the material for 14 days even if the DMCA notice is erroneous? A very large site and my site are both licensed to use product images created and photographed by the same vendor. Now the large site comes after my site and sends a DMCA notice to my hosting provider, asking us to take down quite some of our most popular products. While it's absolutely a false claim and it's possible that they had no idea we were licensed just as they were, it seems I have to take down the infringing materials and send back a counter-notice and wait for 14 days? My question is is this fair? 14 days are enough for Google to de-index the page and for it to lose all the ranking juices. Not to mention the sales losses. What if they actually know we are licensed but just wanted to ruin our site rankings and keep coming after us in future? Do we still have to follow the legal procedures to take down whatever products they claim infringing for 14 days? What better options do we have here? Update After I first posted this question, my host restored the allegedly infringing product after 14 days of my providing the counter DMCA notice. Now the same complaint is after us again on another of our popular products. This is really annoying and stupid. How can I end this once and for all? We are not physically in United States, can we still find someone to win the lawsuit for us? Or is there any other way to stop them? | There is a slight confusion here: The large company sent the DMCA notice to your host, not to you. You are not taking down anything. The host does that. If the DMCA takedown notice is following all the rules, then your host has two choices: Take down your content, or be willing to be part of a copyright court case. Assuming that the host doesn't want to go to court and potentially lose tons of money, they will take down your content. Until you send a counter notice. Now you can only legally create a DMCA notice as the copyright holder or their agent. Whoever sends the takedown notice must under threat of perjury declare that they are the copyright holder of material that they believe you are infringing upon. It seems that company is not the copyright holder, therefore perjury. (If they make a mistake, and your material is not their copyrighted material, that's legally Ok. But if they are not copyright holder, that is perjury). If you are sure that happened, a good lawyer will love to take them apart. | DMCA applies as long as the the website is being hosted inside the U.S. The location of the copyright holder is irrelevant. For step-by-step help drafting a valid DMCA notice, see Step 2 of https://nppa.org/page/5617. If the site fails to comply with a valid notice, they lose the benefit of DMCA's safe harbor provisions and become themselves liable for continuing to host the infringing work, and you can sue them. (Prior filing suit, though, I imagine a letter from a lawyer that says, "Hey, my client sent you a valid DMCA notice a while ago; kindly comply at once, or we will actually sue you," should be sufficient.) The requirement to submit a photo appears to be totally unnecessary. A valid DMCA notice includes a signature (electronically including your name in an email is sufficient) and an assertion, under penalty of perjury, that the writer is authorized to control the copyright work and that the work is being used illegally. Beyond a signature and contact information, no further identity verification is necessary. The DMCA handles this by opening the submitter to perjury charges if the takedown was submitted illegally. Of course, any site might choose to ignore your DMCA takedown, at their own peril. They might bet that you won't actually hire a lawyer and follow through on your legal right to file suit, or they might not understand that identity verification is not a legal requirement listed in 17 U.S.C. § 512(c)(3). Your options are either: follow the law as written and file a valid takedown notice, and then hire a lawyer when they don't don't comply with the rules written in 17 U.S.C. § 512 follow their additional rules to get them to comply, which may be more difficult but might not require hiring a lawyer | There's no "common law copyright" in the US. There's common law trademark, but copyrights and trademarks are different things. All copyright is based on federal copyright statutes, and an unregistered copyright is just called an unregistered copyright. What an unregistered copyright gives you is almost the same thing as a registered copyright: the exclusive right to exercise various rights (reproduction, distribution, public performance/display, etc.) Registration is required before you can actually file an infringement lawsuit, but it's OK if you only registered it after learning about the infringement. The main reason to register the work early is that you might be able to collect higher damages if it was registered before the infringement. If the work was unregistered when the infringement happened, you can only collect actual damages. If it was already registered, you can instead opt to collect statutory damages. Statutory damages don't require you to show actual loss; instead, the court awards between $750 and $30,000 per work based on what it considers fair. The lower limit can go down to $200 if the infringer had no reason to think they were infringing, and the upper limit can go up to $150,000 if the infringement was willful. You can also collect attorney's fees if it was already registered. In the comments, the question was raised of whether someone else might be able to register the copyright for your work before you and what would happen then. When I say "registration is required before filing a lawsuit," the requirement is that you submit the registration paperwork properly, pay the fee, and wait for the Copyright Office to act on the application. If they accept the registration, you're all set. Even if they refuse, though, you can still file an infringement claim -- you just have to also serve the head of the Copyright Office, who has the option of jumping into the case to argue about whether the work could legally be registered. You can also sue the Copyright Office to get judicial review of a denial under the Administrative Procedure Act (refusal still lets you file infringement lawsuits, but you can't get statutory damages or attorney's fees against an infringer unless the Copyright Office actually accepted the registration). | In all likelihood, the judge's order related to data collection and reselling is not legally enforceable. They weren't parties to the expungement action, so the judge doesn't have jurisdiction over them. And, the First Amendment protects the right to say truthful things pretty absolutely. Arguably, if the sites provided the information without making clear that it might not be current because records were expunged or corrected, there might be a claim for negligent misrepresentation, false light, or even defamation, but I seriously doubt that even those claims would hold up. The language in the order might cause sites to comply out of not legally justified concern, or just a desire to be accurate, even if it is not enforceable. So, it doesn't hurt to bring that information to the attention of such sites and ask them to take down the information. But, when push comes to shove, I very much doubt that you would prevail in court enforcing that order against them. Certainly, if you do nothing, they will do nothing, because they are not psychic and have no idea that the court order related to those records has been entered. Even a valid and enforceable order directed at a party over whom a court has jurisdiction is not effective until the person ordered to comply with it has notice of the order. And, there is no system that gives sites like that notice without you taking action to inform them of an order. | 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. | I'm curious to know, because Google allowed their ownership of the domain to expire, why do they still have the rights to it even when it was bought by another individual. You're making an incorrect assumption here. The domain was never allowed to expire. An error in Google's domain registration interface allowed him to make an order for the domain. The domain was never actually purchased, but the act of ordering the domain gave Mr. Ved access to the domain in Google's Webmaster Tools. As the domain was never actually available for purchase, Mr. Ved had no rights to it. (The domain is not even registered through Google's domain registration interface; it's under a completely separate company, MarkMonitor, that specializes in high-value domains.) | 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; | In general, using content provided by another who incorrectly posted it under a permissive license, such as a CC license, does not grant a valid license from the real copyright holder. That is, if A writes some code (or a song, or creates an image, or whatever else), it is protected by copyright. If B then posts it to the web, with a statement that it is released under a particular license, without having obtained permission from A, then B's "release" is of no value, because B had no rights to grant. If C downloads and uses this content, relying on B's license, then A could take legal action against C. C would probably be considered (in the US) an "innocent infringer" which reduces the minimum statutory damage amount, but does not otherwise change C's legal position. A could, if it chose, bring suit and possibly obtain a judgement including some damages. But to return to the practical case of code posted on one of the SE sites. Given the comparatively short code sections usually posted, and that they do not usually form a complete working program, and given further the stated educational purpose of SE, it is likely that in US law such a posting would constitute fair use, and in the law of other countries fall under one or another exception to copyright. That is a general conclusion, the details would matter. I have not heard of a case similar to that suggested in the question. I find it unlikely that an SE poster would post copyright-protected code without permission, that is valuable enough to be worth an infringement suit, and substantial enough and having enough effect on th market for the original to be outside the protection of fair use. Such a situatiion is, of course, possible, even if unlikely. Note that a cease-and-desist letter is not a court order, and is really only a threat of court action. its only legal effect is to put the recipient on notice, so that continued infringement is not without awareness of the copyright claim. To have legal effect the claimant must actually bring an infringement suit, which is not without cost. |
Exclusion based on Ethnicity, a Private event in a Public Space I was sitting in a bar when a social event sponsored by a certain ethnic group's club began. Accompanied by the bar's owner, the event organizer requested that I leave because I was not [of that ethnic origin]. Was this request legal? Does the legal interpretation of this situation depend on the ethnic groups involved? | "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. | Under U.S. federal law, and under the few state laws of which I am aware, it is not unlawful to expand a pool of applicants based on a protected class such as race, age, sex, etc., but it is unlawful to select an applicant for employment based on a protected class. An advertisement could lawfully encourage applications by persons having certain protected attributes (e.g., born and raised in South America; Native American; Veteran; transgender) in order to diversify the workforce, but it could not lawfully suggest that hiring preference would be given to applicants with those protected attributes. That's a fine line, and it's easy for an employer to cross it, either willfully or inadvertantly. It's best--from both a practical and a legal perspective--to determine the hiring criteria and process before seeking applicants; and to separate that screening process from the advertising process. The advertising process could, for example, target underrepresented groups as long as it did not preclude other persons/groups from learning about or applying for the opportunities. | tl;dr My assumption: the U.S. government is considering whether to accept refugees and immigrants (given your Syria comment). The background section talks about State attempts to restrict entry. The answer is nuanced since there are different standards for an entrance decision than there are for someone who is already in the U.S. This is because foreign nationals in their home nations aren't "persons within the jurisdiction of the United States," and so laws like the Civil Rights Act only apply in spirit. What does that mean? We wouldn't expect to see the federal government discriminate based on religion, but we might expect to see decisions made about groups that incidentally share an common religion. This is because the federal government has wide latitude when it comes to alienage---which is just a formal name for policies related to non-citizens. While religion is afforded a high degree of protection, the federal government's alienage policies are governed by the lowest level of judicial scrutiny. This implies a practical challenge: things like religion and national origin can be very difficult to disentangle from questions that pertain to the alienage category. For example, a policy might restrict some group's entry "because of" a particular alienage reason and "in spite of" the fact that most of the affected people happen to share a common religion. Background The Equal Protection Clause U.S. Const. Am. XIV § 1 prohibits States from denying any person within its jurisdiction "equal protection of the laws." The Clause is often applied to the federal government as well, via the Due Process Clause U.S. Const. Am. V. See, e.g. Bolling v. Sharpe, 347 U.S. 497 (1954). In relation to the clause, laws are reviewed for their constitutionality using either strict, intermediate, or rational basis scrutiny. Strict scrutiny would mean that in order to distinguish based on a particular trait, the government has to have a compelling, narrowly tailored interest, and no less restrictive alternative available. Rational basis just means the government's interest is subject to a lower level of scrutiny (e.g. benefits exceed costs, or don't let in felons). Things like, race, religion, national origin, and some forms of alienage are suspect classes that merit strict scrutiny. This bit about alienage is important. As we'd expect from the above, when States enact alienage statutes, they're subject to strict scrutiny, and when those statues cross the line, the courts have found that State attempts to restrict resident or non-resident aliens encroach upon the federal government's exclusive control over entrance of aliens. Graham v. Department of Pub. Welfare, 403 U.S. 365 (1971). In other words, the federal government, not the States, decides whether various "aliens" are admitted. Note: State scrutiny levels when dealing with undocumented immigrants may be context specific. See, e.g. Plyler v. Doe, 457 U.S. 202 (1982) (children and education). The federal government's authority over immigration is further solidified by the Supremacy Clause of the U.S. Const. Article VI. See Mathews v. Diaz, 426 U.S. 67 (1967). As such, the courts have applied rational basis scrutiny to the federal government's immigration policy. One reason alienage is interesting is that it tends to encompass things like national origin and religion. This doesn't imply the federal government makes its decisions on the basis of religion. In fact, it'd be hard to make an argument that they do. However, since the categories can be so closely entwined, many scholars have argued for a change in standard. Edit In hindsight, this topic seems quite forward looking. A couple weeks after the OP's question a U.S. presidential candidate (Donald Trump) came out in favor of a ban on entry into the U.S. by Muslims. That led to a flurry of activity, and to this insightful blog post by Professor E. Posner. | There are a couple of indications that a bouncer may not confiscate an ID. This policy document adopting licensing policies to Require licensees with fake ID violations to temporarily or permanently hire on-site law enforcement or certified security guards who are properly trained to check IDs during regular or peak hours to deter the use of fake IDs and give gatekeepers the opportunity to pass suspected fakes to an officer or guard for a second opinion and potential confiscation. Where appropriate, jurisdictions could empower the gatekeeper to confiscate fake IDs so they are not returned to the underage drinker and sent back into circulation. To ensure compliance with legal issues (e.g., property rights, bailment issues), arrange for the on-call or on-site presence of local law enforcement. Local bar and restaurant associations, especially those in concentrated entertainment zones, can join together to share the expense of law enforcement resources. That implies that the bouncer does not already have that authority, and also indicates that the confiscation should be performed by the police. This bouncer training manual says that Even though you may consider the ID to be fake, it is not considered the server's property. Therefore servers and sellers should not confiscate IDs they suspect to be fake. Rather... follow up with a call to the police to verify suspected false IDs. However, a jurisdiction may grant servers that power, as in the case of Colorado. Washington doesn't do that, so bouncers would need to call the police (not that they always do, since passing a fake ID is somewhere between a misdemeanor and a felony). The general principle is that you may not confiscate another person's property, but the police can seize property if it is reasonable to do so. A state may pass a law authorizing a licensee to do likewise (though it does raise questions about the bouncer's understanding of "reasonable cause to believe"). The Colorado statute is restricted to licensee and their employees, and does not apply to "anyone who suspects an ID", nor does it allow civilian confiscation of other property such as an automobile that is suspected of being stolen. | As a adult of sound mind, you are responsible for your actions. Background checks for job applications are common place to determine suitability. The employers have the right (and responsibility) to choose what is in their best interest. If through your previous and present actions, they come to the conclusion that you will become a liability to their interests, they will determine that you are not suitable for the position. Not being suitable for a position is not a discrimination, but a determination of fact. Rights and responsibilities go hand in hand. The same is true for the employers. They too have the obligation to act in their own that of their other employees that of their clients interests. In cases where a judge comes to a conclusion that the rights of others are being impeaded, they will most likely decide for that party. It is unlikely that a judge will assume that an individual is the center of the universe and that everyone else must revolve around that individual. | The employer might be liable for a discrimination claim, under the doctrine of disparate impact. See Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc and references cited therein. The idea is that an employer can be liable absent proof of intentional discrimination when a practice disproportionately affects protected classes of individuals, and the practice is not justified by reasonable business considerations. So it would depend on why this particular state of affairs in employment came about. There is a test known as the 80% rule which attempts to quantify the notion of "under-representation" as evidence of discrimination. This test (not widely respected by the courts these days) might constitute evidence of discrimination, if a protected class is demonstrably under-represented. The current standard seems to be by comparison to random selection. In EEOC v. Sambo's of Georgia, Inc., 530 F. Supp. 86, the court found that a grooming policy had a disparate impact on members of a religion (Sikhism), and was thus contrary to Title VII of the Civil Rights Act of 1964, although a requirement to shave does not obviously discriminate on the basis of religion. This points to an important element of a successful disparate impact claim, that there has to be a policy with a causal effect. In the above scenario, there is no proposed policy that has this effect. Note that the burden of proof is on the person suing for relief – they must have a theory of something the company does that causes this hiring pattern, a practice that is discriminatory. The identified policy (whatever it might be) could be justified by a business necessity defense (Griggs v. Duke Power Co., 401 U.S. 424), by showing that the practice has a demonstrable relationship to the requirements of the job. That, b.t.w., would not excuse a racially or religiously discriminatory hiring policy for a factory manufacturing menorahs or kinaras. If a company recruiting locally in Boise ID had a 75% black work force, it would be reasonable to suspect that something was up. But legally, without showing that this results from a unjustified policy of the company, mere statistically anomalous distribution is does not sustain a claim of discrimination. | Is this interpretation correct? YES Encounters such as this should normally fall within the non-statutory stop & account which covers police-initiated conversations with members of the public to ask general questions about their activities when there are no reasonable grounds to suspect an offence. The terminology varies from Force to Force, but can be summarised as: What are you doing? Why are you in the area? Where are you going? What are you carrying? There is no legal requirement or obligation to answer any of these questions, and the police cannot lawfully detain anyone to ask them - unlike the statutory powers under Stop & Search and Arrest covered by the OP. | The statute in question is section 26708 (13)(B): A vehicle equipped with a video event recorder shall have a notice posted in a visible location which states that a passenger's conversation may be recorded. It doesn't require it be visible to all passengers and doesn't make any provision for visually impaired passengers. I am not licenced to practice in California but know of no cases clarifying how "visible" the notice needs to be. I wouldn't suggest trying to hide the notice, though. |
What is “open-source software licensed under the MIT license” I wanted to use laraspace as my laravel boilerplate. It says in the license area "Laraspace is now an open-sourced software licensed under the MIT license." Does this mean I can use this however I wanted? | No It means you can use it in accordance with the terms of the MIT license. | Yes you can. What you do is called mere aggregation. Your app and the GPL container run isolated and do not share memory space: they are clearly separate programs vs parts of one program, so your app does not get infected by GPL. | 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. | As the copyright holder you are free to license your work however you want. The fact that you have licensed your work under a CC license to one group does not prevent you from licensing it to someone else under a different license with different terms. This is true even if the CC license could apply to this other person. The CC license doesn't restrict what you can do with your own work. It only restricts what other people can do when they choose to use your work under the terms of the CC license. | 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. | They have copyright in their additional text, and possibly in things like their visual design choices (fonts, layout etc). They may also have introduced a few deliberate typos to detect any literal copies from their version (rather as mapmakers add a few imaginary features to their maps). None of this creates any rights to the original text. You are still free to produce your own copies of the original text. Just get it from some other source so you can be sure not to include anything of theirs. | You give SE 2 licences The CC-BY-SA one and the one that goes “the perpetual and irrevocable right and license to access, use, process, copy, distribute, export, display and to commercially exploit such Subscriber Content … as reasonably necessary to, for example (without limitation):”. SE can choose which one it uses. Even though the enumerated cases are “without limitation”, they indicate the general area where the 2nd licence would be “reasonably necessary”. If SE used it outside that domain and did not comply with CC-BY-SA they would arguably be in copyright violation. | The web site appears to be interacting with a copy of the MIT-licensed code, which I will call "M". Neither the site nor the code that displays the site is a copy, but if a copy of M is on Bob's server, it might be considered to be a part of the code that supports or "powers" the site. In general, calling a separate program does not make that program part of the calling program. Bob must make sure that the local copy of M contains the required copyright notice and "as-is" notice. As Bob is "using" and not "distributing" M, that ends his obligations. It would be good practice and courteous of Bob to include on his web page where M can be invoked "Powered in part by M, written by {M-author}" or some similar notice, but the MIT license does not impose any such requirement. A license could impose such a requirement, but MIT does not. |
Can text message be used against me in court My daughter's father has petitioned the court for custody modification and is using text messages he downloaded against me. The text messages in question were not sent to him but, rather, were conversations that I had with other people. conversations that I would have with my girlfriends, boyfriends etc. He went back as far as two years ago. In addition he made the statement that they are real time. I sat there while his attorney read them out loud. None were real time nor was there any time or date stamp on them. I have friends that are horrified that their conversations are out there. There is nothing illegal in the text messages - just private conversations. And of course some steamy conversations. Does he have the right to use them against me? Am i protected by the privacy law? Are the admissible in court? | Any written communication is generally admissible Subject to all the normal rules for admissibility of course. For texts between you and a third party the major issue that springs to mind is relevance. As in, how are they relevant to the dispute between you and this man? If they are not, your lawyer should have objected to them on this basis, however, its too late now. I'm curious as to how he obtained these and whether it was done legally or not. Illegality will not affect their admissibility as the exclusionary rule doesn't apply to civil matters, however, it does speak to the gentleman's character. | There are several elements working in your friend's favor. The first is "guilty beyond a reasonable doubt." In an entrapment case, the police have recordings or documents claiming that the "girl" was underaged. If there is no such smoking gun from the (real) girl, the case (probably) would not be prosecuted in the U.S. He doesn't have to prove that she told him she was 18; "she" (or the police) has to prove that she told him she was "not." The second factor is "remoteness" in time, and distance. Two years after a U.S. state sent me a "nasty letter," I asked my lawyer if the state would ever come after me. He answered, "If they were going to do this, you would have heard further by now." The other factor, distance and cross border, (three countries: Turkey, the U.S., his home country) further militates against prosecution except for highly aggravating circumstances such as drug dealing, gambling, or sex for pay. A third factor is that your friend would not come close to qualifying as a "serious offender." This would be someone like a drug dealer, or the head of a "call girl" ring. The cops concentrate their effects on big "busts" like this that make their careers, not "small fry" like your friend. But of course they use the publicity from the big catches to scare everyone else. While there is no "guarantee" against "the worst possible consequences," the chances of them happening are similar to his getting hit by lightening, and less than his chances of being hit by a car crossing the street. No one stresses out about those chances. He shouldn't either. I am not a lawyer but I have done paralegal work in a law office. | 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. | 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. | There are three kinds of restraining orders in Minnesota, but what they have in common is that a person petitions the court to order a person to e.g. stop the harassment and have no further contact. This order if granted by the court will be served on the respondent, and all actual restraining orders are valid. A forgery which was not actually ordered by the court is not a restraining order, and of course it is not legally valid. But you don't seem to be claiming that this is a forgery. In principle, a person can obtain a copy of a restraining order under The Minnesota Data Practices Act. However, there are limits on access to certain records. Minnesota Court Rule 4 restricts access to domestic abuse and harassment records, blocking disclosure until the respondent has been served with the order. If someone fails to obtain a record in such a case, it could be because the request was made before the order was served. Even if the request was improperly denied, that does not invalidate the court order. Subsequent comments by OP indicate the possibility that he was not given the restraining order, as required by law, which would substantially impact the validity of the arrest. This handbook from the courts spells out the rules for handling these orders. If it is impossible to personally serve the notice on respondent (he can't be found), then it is possible for the court to order notice by publication, where an item is placed in the newspaper (legal notices, which nobody reads). In other words, you can be "served" in the legal sense, but not know it (however, the police will know it, so if BCA is saying "we can't find any restraining order", this would be a plainly improper arrest). | I will try to answer some of my questions based on recent developments and other information I've seen. Yes. 2. No. On page 23 of this Commerce Dept. memo on TikTok, it describes: This prohibition would remove the TikTok app from U.S.-based mobile app stores, preventing mobile users from being able to download the app to their devices or receive updates. As scoped, this prohibition would only apply to app stores accessible in the United States, thus users would still be able to download the app while outside the United States. On page 15 of this Commerce Dept. memo on WeChat, it describes: This prohibition would remove the WeChat app from U.S.-based mobile app stores, preventing mobile users from being able to download the app to their devices or receive updates. As scoped, this prohibition would only apply to app stores accessible in the United States, thus users would still be able to download the app while outside the United States. 3,4,5. No for WeChat. In letters sent to the opposite party in a lawsuit and filed with the court, the US government has provided assurances that WeChat users will not have any civil or criminal liability for downloading or using the app for personal or business communication. we can provide assurances that the Secretary does not intend to take actions that would target persons or groups whose only connection with WeChat is their use or downloading of the app to convey personal or business information between users, or otherwise define the relevant transactions in such a way that would impose criminal or civil liability on such users. In other words, while use of the app for such communications could be directly or indirectly impaired through measures targeted at other transactions, use and downloading of the app for this limited purpose will not be a defined transaction, and such users will not be targeted or subject to penalties. I'm not entirely sure for TikTok, but the same may be true for TikTok since the prohibited transactions for both are essentially the same. No. The regulations on prohibited transactions do not require the blocking of traffic from the apps. Simply carrying the traffic of the app is not one of the prohibited transactions, as long as the company does not have a contract for internet transit or peering with ByteDance/Tencent, nor are providing hosting or content delivery services to ByteDance/Tencent. On page 23 of the Commerce Dept. memo on TikTok linked above, it says: User data could still be served by data centers, [redacted] operating outside of the United States. On page 7 of this declaration by a Commerce Dept. official further explains that WeChat traffic will still flow through the US: Moreover, this prohibition would not affect Internet transit or peering services in the United States that are not “directly contracted or arranged” by Tencent, and thus would leave the overwhelming majority of Internet traffic, including WeChat data, untouched. | The question actually asked, "what legal theories would support or harm...", is somewhat unclear. But what the questioner seems to be asking is, basically, what would happen if you tried it? The answer, it seems to me, is pretty straightforward. In the hypothetical case, you have been publishing a notice for years, saying "I have not been served with a subpoena." You then get served with a subpoena that includes a gag order. The gag order, presumably, includes wording prohibiting you from revealing the existence of the subpoena. You then cease publication of the warrant canary. By doing so, you have revealed the existence of the subpoena, and you are in violation of the gag order. You will be subject to whatever penalties you would be subject to if you violated it in some other way; for example, by publishing a notice that said, "Hey! We got a subpoena! It's a secret!" The distinction between revealing the existence of the subpoena by action, rather than by inaction, is a false one. It's exactly the kind of cutesy legal formality that non-lawyers love to rely on, but real judges ignore. If you tell someone: "Hey, you know John Smith's three sons, Joe, Ted, and Bill? Joe and Ted are good people; they have never molested any children. As for Bill--well, I don't have anything to say about Bill." If Bill is not a child molester, you have defamed him, and you are not going to convince a judge otherwise. The EFF link you link to tries to claim it'll "work" because courts are reluctant to enforce speech. Even if that were true, that might mean your canary would be effective in the sense of giving the public notice of the subpoena. That doesn't mean you wouldn't be liable for giving the public notice. For example: I put up a billboard saying "Bill Smith is a pedophile." Even if the court can't force me to add the word "not", that doesn't mean the billboard isn't defamatory. Realistically, though, courts compel speech all the time. Court-ordered apologies, disclosures, and notices are not unusual. And if ever a court would be inclined to compel speech, it would be in a situation like this one, where a company intentionally set out to get around a gag order with this kind of convoluted sea-lawyering. | 47 USC 227 forbids anyone to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice...to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call, unless such call is made solely to collect a debt owed to or guaranteed by the United States where an automatic dialing system is equipment which has the capacity— (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers. This prohibition covers voice calls, SMS and MMS, see Satterfield v. Simon & Schuster, Van Patten v. Vertical Fitness and Facebook v. Duguid. I assume that the messages are send automatically, not by hiring hundreds of people to enter numbers and send individual texts. Since businesses have been sued for doing this, a lawsuit is one of the consequences. |
Can I sue the U.S. Post Office for delivering Certified Mail that was open? A couple of days ago, I went to my local post office and mailed a large envelope with paperwork inside of it and I had addressed it to me and my home address. The reason I did this was to do a 'poor man's patent' in which I could prove at a later date that I came up with an inventive idea/invention before a certain date. When I was at the post office I had removed the plastic film from the envelopment to expose the sticky strip and then I closed the envelope and then firmly pushed the flap of the envelope against the body of the envelope and I did this several times to make sure that it was sealed. I then took the envelope to the counter and the post office representative put the postage stamp on it and also put a Certified Mail label on the envelope. Well, when I removed the envelope from my mail box today, the flap of the envelope was open and there was no Certified Mail label on the envelope. This makes me believe that my envelope was tampered with. The odd thing about it is that when I pushed the open flap back down onto the envelope, waited a minute, and then pulled up on the flap, it was stuck to the envelope and would not budge. Can I sue the U.S. Post Office for delivering this envelope opened and without a Certified Mail label? | No. The government enjoys sovereign immunity, meaning that it cannot be sued unless it consents to being sued. The Federal Tort Claims Act (28 U.S.C. § 1346) generally permits negligence actions against federal agencies, including the U.S. Postal Service. But 28 U.S.C. § 2680 carves out an exception for "any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." The Supreme Court looked at that exception in 2006 and concluded that it covers cases where "mail either fails to arrive at all or arrives late, in damaged condition, or at the wrong address." Dolan v. Postal Service, 546 U.S. 481 (2006). Your situation seems to fall pretty squarely in that description. Upon request, a court would dismiss it almost immediately. | 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. | At least in theory an end user could be sued for infringing on a patent, especially a method claim. Given the cost of a patent lawsuit, this strikes me as extremely unlikely to happen though, unless the user in question were an extremely large company, or something on that order. Theoretically, the only difference between open-source software and proprietary software would be that availability of the source code makes it easier to prove use of a patent in open-source software. Releasing the software as open-source doesn't confer any immunity from patent law or anything like that though. Realistically, however, the chances of being sued for infringement if you're basically giving away the software in question are fairly remote. It rarely makes sense for a patent holder to spend millions of dollars on a lawsuit where they stand no chance of even recovering their cost (but no, that certainly should not be taken as legal advice that you're free to infringe on patents, or anything similar--in fact, none of this should be taken as legal advice at all). If you can actually prove that a technique was published or publicly known and used (e.g., in a product that was offered for sale) well before the patent was applied for, the patent is probably invalid (and if proven so in court, the case would normally be dismissed with prejudice, which basically means the patent holder wouldn't be able to sue anybody else for infringement of that patent). I'd note, however, that in my experience this is much less common than most people imagine--many look at (for example) the title of a patent, and assume it lacks originality because it refers to some well-known technique, and ignore the claims where it details the precise differences between the previously known technique and what the patent really covers. Just for example, the EFF used to have a web page talking about a (now long-since expired) patent on how to draw a cursor on screen. In an apparent attempt at scaring the unwary, they showed code they claimed infringed in the patent--despite the fact that the patent's "background of the invention" specifically cited the technique they showed as being previously known, and not covered by the patent. | I gather that you either a) don't want the bike or b) are physically unable to retrieve it. You are acting like a spectator here. You ARE involved. By doing nothing, you are creating trouble for others, and failing to create a good. They must go through an extensive process to protect the rights of an owner they don't know who even is. What you should do, is to send a paper letter to the landlord at that complex. Dear landlord, You may have a bicycle at Location Here inside Apartment Complex Name Here. I am the owner of the bicycle. I had to leave the region, and I had to leave the bicycle behind. I cannot come back and claim it. Perhaps you know someone who could use a bicycle. Please give the bicycle to them, or dispose of it as you see fit. Here is the key to the lock. Signed, Your name Why a paper letter? Because you can't email a key! If you sent an email and key separately, they'd get confused. Plus, the signature on paper is legally binding, so they don't have to worry about it being a trick. Tape the physical key to a piece of paper, to keep it from rattling around and chewing a hole in the envelope. (it could be the paper the letter is written on, note that a printout of a Word document is fine). Paper letters have gone out of style, I know; you can work out how to send them, but an older person will help you do that faster, since well, we used to do everything that way. Now if you do want the bicycle, that gets harder. You will have to have one of your roommates give a key to someone who can retrieve it for you and store it for you. And you/they may need to coordinate with the landlord to even get access to it / find out if it's still there. This is probably a waste of your time. | The USPS and other postal services have created a service called Digital Postmarks or EPCM (Electronic Postal Certification Mark) to address exactly this problem. Basically you can upload any document that you want to be "unalterable and time stamped". The service computes a hash (a number that will change if the contents change), and store the time stamp and the hash on a secure server. If, at some time in the future, you want to confirm the authenticity of the document, you can upload another copy - the fact that it produces the same hash proves it's not been tampered with. | The court clerk was right. A judge is not supposed to interact with a party (at least not in the absence of the adversary) except during court hearings for which the adversary was notified and given an opportunity to attend. Also, there is no need for you to prove the mere fact that you went to court. That in itself is either inconsequential or palpable from the hearing transcripts. When you file in court papers such as a motion or a response to a motion, you may --and should-- bring an extra copy for the clerk to stamp it. That a clerk does with no objections. The stamp reflects the date on which you file your document(s). That stamp incidentally evidences that you or someone on your behalf went to court but, again, that sole fact is inconsequential. There is no such thing as "motion to appeal". A litigant may initiate an appeal, or appellate process, once the judge has decided a case in its entirety or in part. If the ruling to be appealed does not close the case, the upper court might refuse to review the issue(s) appealed until the whole case has been decided (that refusal is known as denial of the appellant's leave to appeal). Your description nowhere indicates that the judge has already made any rulings or that there have been any hearings on your matter. Your mention of prior motions suggests that you should gain acquaintance with the Texas Rules of Civil Procedure and of Appellate Procedure. Those rules cover several aspects of litigation, including motion practice, the allowed methods of service, and the requirements to file an appeal in upper courts. | No, this is not an acknowledgement of guilt or liability. It offers a "discount" some sort of reduction in price. This could be an offer of settlement without admission of liability, or even just advertising for repeat business (unlikely as that may seem). Without the rest of the communication, there is no way to tell. Unless there are specific admissions, this statement alone is not likely to have much significance in such a case. Edit: There is still not enough context to tell exactly what the sender of this communication wanted to accomplish with the offer of the discount, but since the OP now says "the party does not take the responsibility" this is not an admission of guilt, whatever else it is. It sounds like some sort of backdoor form of settlement offer without admission, but that is far from clear to me. My original answer is not significantly hanged here. | Update: I've filed a complaint with the CA Attorney General. They automatically forwarded the complaint to Comcast and sent me a notice in the mail. If you have filed a complaint against a business, we will forward your complaint to that business and request that it contact you promptly to resolve the issues you raised. Please note that we cannot represent you, advocate for you with the business, or force the business to satisfy individual requests for relief. Please contact the business directly to discuss your complaint. While we cannot provide specific legal advice, please see the information below, which may help address your concern. For more information about the CCPA, please see https://oag.ca.gov/privacy/ccpa and https://cppa.ca.gov/. [...] If a business has violated the CCPA, you may notify the Office of the Attorney General by filing a consumer complaint. While we cannot file an action on behalf of an individual consumer over an individual violation, consumer complaints are an important source of information for the office. We will review consumer complaints to identify patterns of misconduct and to determine what law enforcement actions to take. You can sue a business under the CCPA only if your unencrypted and un-redacted personal information was stolen in a data breach as a result of the business's failure to maintain reasonable security procedures and practices to protect it. You must generally give the business written notice of its violations and 30 days to fix the violations before you can sue. For more information about when you can sue for a CCPA violation, visit https://oag.ca.gov/privacy/ccpa If you want to consult an attorney, you can obtain a referral to a certified lawyer referral service through the State Bar at (866) 442-2529 (toll-free in California) or (415) 538-2250 (from outside California), or online at https://www.calbar.ca.gov. If you cannot afford to pay an attorney, contact your local legal aid office to see if you qualify for free or reduced-rate legal assistance. For a referral to local legal aid offices, visit https://lawhelpca.org/ and click on the Search for Legal Help tab. Comcast responded immediately to the forwarded complaint and appears to have deactivated my login, but nearly a month later have still not confirmed whether any personal information has been deleted. I'd strongly recommend anyone in a similar situation to file a complaint as well. There's no guarantee the Attorney General or California Privacy Protection Agency will act on it, but it can increase the civil penalty to the company by $5,000 per complaint (see section 1798.155) and makes it more likely they will comply. Don't waste your time with any unnecessary calls from the business or obfuscating information yourself as a commenter here mentioned. Just submit your CCPA request in writing, complete the identity verification, wait the 45 days as allowed by the law (or 90 if an extension is requested, see section 1798.130), and file a complaint if it's not completed. Update 2: I received a forwarded letter from Comcast to the Attorney General in response to my complaint. They lied and backdated their alleged completion date of the deletion request to fall within the 45 day deadline, despite emails I sent past their claimed date repeating the request as I was still able to login. Before filing a complaint, make sure to take screenshots showing you logged into the account and email it to the business in order to document it. |
When does medical privacy start? In a conversation between, say, Alice and Bob, if Bob shares his medical history with Alice, under which conditions is this information considered private medical information? If Alice is a physician? If Bob knows that she is a physician? If Bob asks for medical advice/treatment specifically (as opposed to, say, simply complaining about his health)? Generally speaking, is medical information shared in an informal context (e.g. chatting with a family friend who happens to be a doctor) as protected as information provided in official medical contexts (e.g. during an appointment in a hospital)? | (Since no jurisdiction was given this answer will apply to US federal law) Hipaa lays out the standards for medical information privacy. The language of Hipaa is written in a way that clearly defines the relationship that two parties must have for the privacy of medical information to be protected. Party A: "Health Care Provider" (Could be more then one person) Party B: "Patient" If Alice is not acting as bob's Health Care Provider then Alice has no obligation to protect Bob's medical information. In addition, if Alice were to share Bob's medical information with Bob's friends, then Bob wouldn't have grounds to sue Alice under the Tort of "invasion of privacy" because Bob broke his own exception of privacy by willfully ,and intentionally disseminating his medical information. Alice is safe from both criminal and civil action. | The regulations known as HIPAA are here. A good place to start is with who the regulations apply to. §160.10 lays that out: a health plan, health care clearinghouse, care provider, their business associates, and the Inspector General. Family members are not regulated entities. Subpart E regulates individually identifiable health information (such as "person X has condition Y") – this is protected information. §164.502 states that A covered entity or business associate may not use or disclose protected health information except as permitted or required by this subpart or by subpart C of part 160 of this subchapter. The first permitted use / disclosure is that the information may be revealed to the individual (the individual). Under 164.502(a)(2)(1) they are required to reveal information to an individual "when requested under, and required by §164.524 or §164.528" (you have a right to see your own record; you have a right to know who knows). 164.502(g) requires the covered entity to treat the "Personal Representative" as the same as the individual, and then there is a list of conditions surrounding being a personal representative, reducing to being empowered under law to act on behalf of the individual in making health decisions (it gets complicated in dealing with minors). 164.510 covers disclosure in emergencies, and under (b)(2) allows disclosure to a family member with advance consent of the individual. And so on. There is no general rule "and the covered entity may / must reveal private information to an interested individual", even a spouse, without consent of the individual. In other words, the doctor has an obligation to not disclose this information, unless permitted by the individual. | united-states Is a personal text (like a diary), submitted without the consent of the author, admissible evidence? Usually, it is admissible evidence. There is no legal right to keep your diary private. Production of a diary may be compelled by subpoena and admitted into evidence subject only to general considerations regarding whether particular entries in the diary are inadmissible for some other reason (e.g. lack of relevance, they recite the contents of an otherwise privileged discussion, they contain hearsay, they recite the terms of a settlement offer, the recite inadmissible prior act evidence, etc.). If the diary revealed information that could place the diarist at risk of criminal prosecution, the 5th Amendment privilege against self-incrimination could arguably be claimed even in a civil case, but at the risk of an adverse inference to be drawn from that decision in civil matters. I haven't ever seen how that issue is resolved legally. | The relevant legal requirement to have accurate records is 45 CFR 156.526, where An individual has the right to have a covered entity amend protected health information or a record about the individual in a designated record set for as long as the protected health information is maintained in the designated record set. The request can be denied if the record is accurate and complete. A simple and pointed solution is to print that page and circle the section, in a letter requesting an amendment. A somewhat more costly and much more effective solution would be to get a lawyer to write a letter in legalese. It is hard to imagine that the provider would not comply. You will notice that they have 60 days to comply (+30 days extension if requested). If for some reason they insist on leaving the record as is, you have the right to insert rebuttal statements into the record (basically, prove that the record is false). There is no realistic hope of compensation for annoyance, but you can hope for a correction. | 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. | Can you anonymise people It is valid to anonymise the data of people, instead of deleting all of the records. The principles of data protection should apply to any information concerning an identified or identifiable natural person. Personal data which have undergone pseudonymisation, which could be attributed to a natural person by the use of additional information should be considered to be information on an identifiable natural person. To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly. To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments. The principles of data protection should therefore not apply to anonymous information, namely information which does not relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable. This Regulation does not therefore concern the processing of such anonymous information, including for statistical or research purposes. Source As long as the person is not identifiable, then you do not need to treat the data as personal under the GDPR. You do have to inform a person once they are no longer identifiable, and be able to identify them if they provide the missing information: If the purposes for which a controller processes personal data do not or do no longer require the identification of a data subject by the controller, the controller shall not be obliged to maintain, acquire or process additional information in order to identify the data subject for the sole purpose of complying with this Regulation. Where, in cases referred to in paragraph 1 of this Article, the controller is able to demonstrate that it is not in a position to identify the data subject, the controller shall inform the data subject accordingly, if possible. In such cases, Articles 15 to 20 shall not apply except where the data subject, for the purpose of exercising his or her rights under those articles, provides additional information enabling his or her identification. Source The articles covered by this are: 15 - Right of Access 16 - Right to rectification 17 - Right to erasure 18 - Right to restrict processing 19 - Right to be informed 20 - Right to data portability | I don’t understand why you think this is a “3rd party communication” - as I read it it says it’s an email from you. You are most definitely not a third party. Notwithstanding, communication between 3rd parties is not prima facie excluded. For example, correspondence between your company and your accountant (who are both third parties) is likely to be extremely relevant to a family law case. Assuming that it is relevant (which is hard to say without context) and that it doesn’t fall foul of one of the evidentiary rules (hearsay, opinion, privilege etc.) there is no reason why it wouldn’t be admissible. | Storing medical data in cloud services can be legal, but isn't necessarily so (as with any other kinds of data). The GDPR considers health-related data as “special categories” of data per Art 9. Processing such data is forbidden, unless an exception applies. Per Art 9(2)(h) such processing is allowed when it is […] necessary for the purposes of preventive or occupational medicine, for the assessment of the working capacity of the employee, medical diagnosis, the provision of health or social care or treatment or the management of health or social care systems and services on the basis of Union or Member State law or pursuant to contract with a health professional and subject to the conditions and safeguards referred to in paragraph 3 Paragraph 3 requires that processing under 9(2)(h) only occurs under the responsibility of someone who is subject to an obligation of secrecy per Union or member state law, e.g. a doctor. Paragraph 4 allows individual member states to add further conditions, including limitations, to such processing. Assuming that electronic storage or processing of health data is in fact necessary, the GDPR does not make a strong distinction between in-house processing, and processing via Data Processors. Of course, the usual conditions for using data processors and performing international transfers apply. However, a data controller processing medical data will almost certainly have to first perform an Art 35 Data Protection Impact Assessment. This DPIA must consider various risks. Transferring data into third countries is risky. Using data processors is risky. But processing data in-house can also be risky, so using an external service could improve things. There is a lot to be balanced here. Where the planned processing has high risks, the responsible supervisory authority has to be consulted first (Art 36). The authority can provide “advice”, or even ban the processing per Art 58. |
What can I do about my neighbor's aggressive dog? My neighbor has a massive German Shepard. Every time I walk past their property with my terrier, and sometimes when I'm in lot and alley behind the neighboring apartment buildings, their dog leaps up, barks like crazy, and then starts throwing itself against the fence or the transparent glass door. (I regretfully don't mean pawing so much as outright slamming.) The first forty or so times this occured my dog just stared at me like she couldn't figure out what the heck was going on, but now she barks right back and tries to charge him, even though her body is just a little bigger than his head. All this makes me very nervous. The owner sometimes lets their dog off leash in the back alley. I know this is illegal, but don't know what to do about it because I rarely catch them at it, and she's never let offleash for more than ten minutes. Today, as I was passing the fence, their dog managed to shove their whole head and neck through the space underneath it and take a snap at my dog's legs. I heard my neighbor call "bad dog" once from a distance and then do nothing. I would like to ... Ensure that the neighbor's dog is never off-leash in the back alley again. Get it home to my neighbor that this is a serious thing that requires their attention. If there was a way to insist she not be left unattended or off a lead in the front lawn (as the fence is clearly not foolproof) that would be ideal, but I'll take what I can get. I live in Chicago. I've considered contacting animal control, but don't know what my rights are or if I should prepare evidence (photo? testimony?). I've also considered talking to my neighbor, and probably will, though I get a strong sense from him that this would go nowhere without a good sense how to approach him and my other options. Thanks for your time. | The applicable law is here. Any animal that crosses its owner's property line in the slightest must be restrained. Chicago law also requires fences to be physical fences, not electronic ones. So you can report the situation to the police. This may or may not result in a fine for the owner: that's at the discretion of the city. From a legal perspective, reporting violations to the police and to animal control is almost all you can do. There is, unfortunately, no guarantee that the police will investigate; but if that is not satisfactory, there are political solutions involving your alderman. Theoretically, you could sue the owner, but that would be expensive and probably less effective compared to reporting the violation. | The terminology used may vary some by jurisdiction, but in many it will be said that Bob provoked the confrontation, or that Bob was the aggressor, or that Bob was engaged in a felony and so cannot claim self-defense. This fact patter is highly unlikely to arise in real lie, because if Bob has even a half-competent lawyer, the issue of self-defense, sure to fail, will not be raised. Doing so only wastes the court's time, and may well make them think worse of Bob, which may cost him. In less open-and-shut cases, the general rule is that one who provokes a confrontation, or who is the aggressor, may not claim self-defense. But the exact rule varies by jurisdiction, and the line will be drawn in different ways in different jurisdictions. In some one who seeks a confrontation may be denied a right of self-defense. | Gated communities are generally part of homeowner's associations that have covenants, rules and regulations regarding how you can use your property. In all likelihood, blocking sidewalk, and perhaps even parking in your driveway, is prohibited by these HOA limitations. HOA's have the right to ticket and fine you for violating its rules. The fines, if not paid, can be converted to liens and used to foreclose upon your property. You can also be banned from using HOA common areas if you do not refrain from violating HOA rules and/or don't pay your fines. This is perfectly legal. If you live in gated community, you are required to follow their rules. Even if you didn't live in an HOA, blocking a sidewalk is usually a violation of municipal ordinances and is tortious activity that can be the basis for a lawsuit against you. | Good fences make good neighbors :) https://www.poets.org/poetsorg/poem/mending-wall But seriously, hedges were planted to form property boundaries between counties, church lands, private lands, communal grazing lands, etc. A tall, thick hedge obviously and clearly marks a boundary, stops grazing animals from straying, and provides privacy between farms. Hedges were fairly cheap, could not be carted off like a lumber fence, and required little maintenance. I'm also sure you saw freestone rock walls; same property line function, different effort and effect. There may have been laws that required property boundaries to be marked by hedges in years past. (Someone with more knowledge of UK laws can respond). But it may simply have been form follows function. There are current laws that protect hedges from being cut down without good justification, as well as laws that only permit trimming of hedges during certain times of the year to protect the wildlife that inhabit the hedgerows. | You can trim bushes at your property line, as you have done. There is little hope for forcing a neighbor to cut more radically on their side. It is possible that a fire ordinance could be an issue, so it the bushes are a credible fire-related threat to property, the fire department might intervene (your belief that the bushes pose a threat is countered by their presumed belief that there is no threat). There may be local plant-height ordinance, but perhaps bushes are restricted by local regulations, so check whether they are in violation there (a rather remote possibility). Finally, there could be view-protecting ordinances or CCRs, but again those are rare. | Not successfully It is not required that a person knows they are dealing with an agent of the principal rather than the principal directly - an agent speaks with the principal’s voice. Robert has consented to allow Elizabeth to act as his agent. It actually doesn’t matter if he consented before she acted or afterwards, he has agreed to be bound by Elizabeth’s actions. Rachel & Jared have agreed to enter the lease and indicated as much by signing the document. It doesn’t matter who signed it for the landlord or even if it was signed - leases have to be in writing but there is no common law rule that they need to be signed. | Do flight attendants have an unlimited leeway of forcing the passengers to listen to their gibberish that are completely unrelated to their duties? Pretty much, I'd say. It may not be a good customer experience, but the flight attendant certainly isn't doing anything illegal. You don't have a legal right not to hear speeches that offend your IP sensibilities. I don't think it's legally any different than if they were showing an in-flight movie that you didn't like. If you try to forcibly stop him, you are likely to be found in violation of 49 USC 46504, which prohibits "assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties". Even if making speeches about Mickey Mouse is not part of his duties, anything physical you did to try to stop him would likely tend to also lessen his ability to perform his actual duties. Violation of 49 USC 46504 is a felony and carries a prison term of up to 20 years. If you try to shout him down, you might be charged with disorderly conduct under state or local law, like this guy. You could probably push your call button to summon another flight attendant, and politely state that you object to the loquacious crew member's behavior, and could they please ask him to stop. Alternatively, you can put on your noise-cancelling headphones and turn up the volume on your music. Anything beyond that and you're in a bad legal position. Of course, you can certainly file a complaint with the airline after the fact. There's a fair chance you'll get an apology, maybe some extra air miles, and the flight attendant might be disciplined or fired. But that's an internal customer service or personnel matter; nothing to do with law. | You are not obliged to say anything to a police officer during a traffic stop, in fact you are generally better off staying silent. This is your Fifth Amendment right to silence. The only exception to this is that the officer could ask for your name and you are obliged to give it under Arizona Laws 13-2412, but the answer to that is language-independent and is usually already answered with your driver's license in a traffic stop. If you did choose to communicate only in German, this may have the effect of frustrating the officer's investigation but if you only make truthful statements in German it is unlikely to be obstruction of their investigation. Arizona Laws 13-2409 is I believe the relevant section (emphasis mine): A person who knowingly attempts by means of bribery, misrepresentation, intimidation or force or threats of force to obstruct, delay or prevent the communication of information or testimony relating to a violation of any criminal statute to a peace officer, magistrate, prosecutor or grand jury or who knowingly injures another in his person or property on account of the giving by the latter or by any other person of any such information or testimony to a peace officer, magistrate, prosecutor or grand jury is guilty of a class 5 felony, except that it is a class 3 felony if the person commits the offense with the intent to promote, further or assist a criminal street gang. In general, a law that required you to give answers to a police officer during an investigation in English if you understand English and have waived your right to silence would violate your First Amendment right to free speech (as it is in effect "forced speech"). However, you would need to be careful not to tell the police officer that you do not understand English if that is not true, as it could be misrepresentation. Police officer training likely includes instructions for detaining someone that cannot understand them and the police can detain you and wait for an interpreter to continue their investigation if they determine that is necessary. You may actually be shooting yourself in the foot by doing this, because the time it takes for them to get an interpreter likely extends the amount of time the detainment can last while remaining "reasonable," so you may be waiting by the side of the road longer than you would have if you had simply told the officer that you were invoking your right to silence and followed the officer's instructions without speaking. As an aside, as more people are educated on their rights via the Internet and understand why they should always invoke their right to silence when detained, police officers will get more used to people they pull over immediately and politely telling them that they are going to invoke their right to silence. I doubt most police officers will hold it against you as long as you are otherwise cooperative and don't yell at them or berate them. |
GDPR Compliance - notification of data breach In Art. 33, the GDPR specifies that a controller must notify a personal data breach to the supervisory authority after having become aware of it. Case 1: A database dump with personal data is hosted for a period of time on a server that is accessible from the internet. The file can be downloaded without authentication from anyone knowing the url. The controller has no evidence of someone downloading the file because the web server hosting the file keeps no logs, or not all logs for the full period of time that file was available for download are kept on the server because they get automatically rotated. In this case, does the controller need to notify the supervisory authority? Even if there is no evidence of a breach? Case 2: say a web application available from the internet grants access to some users to sensitive personal data. This is the primary use case for this web app. The website uses https to encrypt data in transit. For some configuration error on the web server, https gets disabled and all traffic to this website is in clear for a period of time. In this second case, does the controller need to notify the supervisory authority? Even if there is no evidence of a breach because no man in the middle attack was detected? | 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. | How can I truly say that I 'consent' to data collection and processing when I am coerced, so to speak, by the threat of failing my courses if I do not use this novel software? There is no need for you to "consent". Consent is just one of the reasons that allows a data processor to collect your data. There are other reasons that allows the data processor to capture your data. In this case, it seems of application the "legitimate interest clause", as it is in your university's legitimate interest to capture your activity in order to evaluate you. Of course, that covers only the data collected that is relevant to that interest. They will certainly capture your identity and your answers, they may log your sessions and may try to gather some data to detect if you are somehow cheating, but they would not be allowed to check which are your favorite pornhub videos because that is not relevant for the university's legitimate interest. Art. 6 of the GDPR states: 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. This page also provides some in-depth analysis | 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. | 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"). | As @gnasher729 has commented, "a merely hashed password database is criminally insecure. Salted + hashed is the standard, and protecting your database is also required." GDPR Paragraph 78 says (inter alia) In order to be able to demonstrate compliance with this Regulation, the controller should adopt internal policies and implement measures which meet in particular the principles of data protection by design and data protection by default. Hash without salt is hardly good design. | If you are purely a designer (and not contracted for the daily operation of the site), the answer is "no". GDPR Article 4 defines the "roles" responsible for complying with GDPR, and there are two: Controller and Processor. The Controller is the one who calls the shots. In particular: Decides what personal data to process. This is usually the owner of the web site. The Processor is the one that actually does the processing. This is usually some company providing some sort of data processing service (e.g. SaaS, PaaS, etc.). The relationship between the Processor and the Controller must be contractual. The contract is called a DPA (Data Protection Agreement or Data Processing Addendum). As a designer, you don't fit into any of these roles. If your contract with the client is silent on liability for GDPR compliance, then you have no liability. This goes for projects completed both before and after the May 25 deadline. Of course, if there are GDPR clauses in your contract, then you must fulfil them just as have to fulfil any other contractual obligation. But unlike the controller and the processor, there are no automatic legal liability for a designer or programmer. | 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. | Art.5(1)(f) contains: Personal data shall be: (f) processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (‘integrity and confidentiality’). Art. 25 and Art. 32 also contain similar requirements. What is appropriate has to be determined, as the GDPR does not contain an exact definition. However as processor you don't have to worry about that, as Art.5(2) Contains: The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 (‘accountability’). But you need to inform the controller if you think an instruction violates the GDPR. But it is up to the controller to decide what to do. Art. 28(3) requires a contract between controller and processor which requires the processor to: (...) that the processor: (c) takes all measures required pursuant to Article 32; (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. With regard to point (h) of the first subparagraph, the processor shall immediately inform the controller if, in its opinion, an instruction infringes this Regulation or other Union or Member State data protection provisions. But again, the controller is responsible for this contract. |
Including geometry dervied from copyrighted fonts in open source software I'm developing a open source software that (internally) uses font glyph identification. The glyphs I'd like to detect come from copyrighted fonts, to which I have personal use licenses. By font glyph detection, I mean the following: Let's say a user of my software has a font file. A brief technical primer on fonts Broadly, a font file is a table which says "draw the character a like this" for each character supported by the font. We'll call a character X the abstract idea of the letter X and the glyph "X" a visual representation of how to show that abstract idea of that letter. These "draw" instructions are usually vector artworks (like SVG, which allow for resizing of the art without the pixelation you get if you were to, say, enlarge a desktop background JPEG to twice its size). These draw instructions can be fed into some math which produces a rasterized version of the glyph, which is a format that can directly inform pixels on a screen or dots printed by a printer. Usually, the glyph that a font file has for the character a actually draws an "a". But, in this case, the user's font file has been compressed. For example, let's say only the a and c characters are used. In the user's font, instead of saying: character a is drawn like "a" character b is drawn like (nothing) character c is drawn like "c" They remove the b and move the c up one: character a is drawn like "a" character b is drawn like "c" Given the letters "abba" to be drawn, the only way to recognize that that actually corresponds to (draws) the letters "acca" is to recognize that the b character in the user's font actually draws a "c". This recognition is what I mean by glyph identification. To do this glyph identification, I understand that I can't just include copyrighted fonts in software that I plan to open source. I also don't need to include the entire fonts. I just need some information about how the glyphs are drawn to be able to do identification. To this end, my plan is to derive information from each copyrighted glyph and only include this derived information in my software. The derivation would work as follows: Take a glyph from a copyrighted font and draw it at a small size. Place dots around the edges of the drawn glyph and record their coordinates. These coordinates (in order) would be the derived information. What's (potentially) important to note is that from these coordinates you cannot derive the original font (it's a similar problem to scaling an SVG vs scaling a JPEG, except the pixelation with glyphs would make them unreadable—likely undiscernible—at most sizes). The only thing that could potentially be derived is a rough rasterization of the glyphs rendered at that small size, but this would require significant technical effort (eg. it's not as easy as opening an image or installing a font on your computer). Would including such derived information be a violation of the copyright on the font? Does my method of derivation make my work a derivative work of the copyrighted fonts? I believe their may be an argument for fair use here as one of the factors for evaluating fair use says: Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread. Because it is impossible to recover the original font from my derived information, this software would likely have no impact on sales of the original work (because the only way to obtain the copyrighted font would be to buy it). Would this constitute fair use? tl;dr I have an open source software program which needs to use points derived from copyrighted fonts to perform part of its function. The points need to be included with the software, but they can't be used to reproduce the copyrighted font file. Is a violation of the fonts' copyright? A quick aside: This problem has some parallels to Optical Character Recognition (OCR), for which they are many open source libraries. These libraries include machine learning models (of which my software could be considered a gross simplification), which have been trained on copyrighted text. The same idea holds that you couldn't reconstruct the copyrighted fonts from the open source OCR libraries. Unfortunately, using an OCR library is not well suited for my specific problem. | The US does not provide copyright protection for font design. As long as you dont distribute font generating programs, that would themselves be copyrighted, you are not infringing. Your derived information is okay because it is derived from a non-copyrightable work and is therefore not a derivative work. https://law.stackexchange.com/a/25673/1340 | What SE can do is controlled primarily by the Terms of Service. What most matters is the section on Subscriber Content, which says: You agree that any and all content, including without limitation any and all text, graphics, logos, tools, photographs, images, illustrations, software or source code, audio and video, animations, and product feedback (collectively, “Content”) that you provide to the public Network (collectively, “Subscriber Content”), is perpetually and irrevocably licensed to Stack Overflow on a worldwide, royalty-free, non-exclusive basis pursuant to Creative Commons licensing terms (CC-BY-SA), and you grant Stack Overflow the perpetual and irrevocable right and license to access, use, process, copy, distribute, export, display and to commercially exploit such Subscriber Content, even if such Subscriber Content has been contributed and subsequently removed by you... This means that you cannot revoke permission for Stack Overflow to publish, distribute, store and use such content and to allow others to have derivative rights to publish, distribute, store and use such content. The CC-BY-SA Creative Commons license terms are explained in further detail by Creative Commons, but you should be aware that all Public Content you contribute is available for public copy and redistribution, and all such Public Content must have appropriate attribution. This part has not changed: the purported license is still "CC-BY-SA", and the TOS does not explicitly specify a version. What apparently has changed in the relevant section is one "helpful information" link, which now points to https://creativecommons.org/licenses/by-sa/4.0/. So the interesting question arises whether that would constitute an unpermitted post-hoc change in the terms by which SE has license to my older stuff. This matter came up in a reviled Meta question; as I pointed out, the TOS also included a merger clause that This Agreement (including the Privacy Policy), as modified from time to time, constitutes the entire agreement between You, the Network and Stack Exchange with respect to the subject matter hereof. This Agreement replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof. Because of that, the TOS is self-contained and stuff found on other web pages are not part of the agreement. This in itself is a bit of a problem because you can't both say "we're not bound by stuff outside of this page" and say "the specific terms of the license are outside this page". That particular clause is gone, but there is an analog in the current TOS: These Public Network Terms represent the entire agreement between you and Stack Overflow and supersede all prior or contemporaneous oral or written communications, proposals, and representations with respect to the public Network or Services or Products contemplated hereunder. Furthermore, the TOS contains the following "we can change it" clause: Stack Overflow reserves the right, in its sole discretion, to modify or replace these Public Network Terms, as our business evolves over time and to better provide Services and Products to the Stack Overflow community, or to change, suspend, or discontinue the public Network and/or any Services or Products at any time by posting a notice on the public Network or by sending you notice via e-mail or by another appropriate means of electronic communication. I assume but do not know for a fact that a similar clause existed in prior versions of the TOS. So I conclude that the change is legal. | In general, the output of a program is not copyrighted by the author of the program. When you write a novel in Word, Microsoft doesn't own any copyright in your novel. When you prepare financial statements with Excel, Microsoft doesn't own any copyright in those either. There can be exceptions. Some programs (like GNU Bison, a parser generator) actually do output parts of their own source code, and their source code is copyright to the author. To clarify things, GNU made a statement in the license for Bison that officially says they don't have copyright to what it outputs. You should expect programs of this type to have such an exception, and if they don't, maybe ask the author or don't use them. | The question of whether publishing a document that uses a font is a violation of the copyright of that font depends on the method used for publication, but leaving that aside, in the specific case of the font Times New Roman, the answer is a qualified yes. Times New Roman was one of the fonts included in Microsoft's Core Fonts for the Web package in the late 1990s. This was a package of specific fonts which Microsoft made available for free distribution. The license that was used specifically allowed redistribution of the fonts as long as they remained in their original form and were not sold or bundled for profit. Microsoft discontinued the project a few years later, and newer versions of the fonts are no longer available under the same license, however the original font license remains in effect for the specific versions which were released under it. This version of Times New Roman is quite old and has a limited character set, but it's still usable. As long as you distribute the original font package unchanged with the EULA intact, and do not sell it, you are allowed to distribute an unlimited number of copies of the font. | It's possible that CAD has a separate licence from the authors of ABC that allows them to produce a closed source copy. If not, they have no right to distribute CAD. However two wrongs don't make a right, and so you don't get to violate the copyright of CAD.* Unfortunately, unless you are one of the authors of ABC, you have no standing to sue the authors of CAD. You can only notify the authors of ABC and hope they do. If the authors of ABC don't have the resources to pursue the matter, you may be out of luck. That's one of the reasons the FSF gets copyright assignments for their projects. * It turns out that this is a much more debateable issue than I first thought. Some courts have held that an unauthorized derivative work is not copyrightable. | If the typography is a significant aspect of the overall art of a song title - wherever the song title may be reproduced, i.e. poster, CD cover, etc. - than I'd say that's part of the copyright of the artwork as a whole and not simply the title, and is under copyright. Further, individual type faces can be under copyright themselves. And band names can be trademarked; you will need permission to use the name for products and advertising, since using the name will imply an endorsement from that band. | Yes, it is legal to do that More exactly, it is not copyright infringement. Reverse engineering has been found to be a fair use under US copyright law in: Sega Enterprises v. Accolade 977 F.2d 1510 (9th Cir. 1992); Sony Computer Entertainment v. Connectix 203 F.3d 596 (9th Cir. 2000).; and Atari Games Corp. v. Nintendo of America, Inc. 975 F.2d 832 (Fed. Cir. 1992). In general pure reverse engineering is fair use when the reuser has not agreed to a contract limiting reverse engineering and has not obtained a copy through deception. But a file format is considered to be an idea or a method of operation, and so is not protected by copyright at all, and nothing that is done with it could ever be copyright infringement. See https://social.msdn.microsoft.com/Forums/windows/en-US/3269d4f3-8b39-4a2c-8205-1a55e0c6774d/are-file-types-copyrighted?forum=Vsexpressvcs and "Does copyright protect data file formats?" from Lexology, the latter citing EU law and the case of SAS Institute Inc. v World Programming Ltd in the Court of Justice of the European Union (CJEU). Thus there is no copyright infringement in reverse engineering a file format, or in then writing and distributing code to read, write, or, modify files in such a format. If a valid patent applies, that may prevent creating or using such software without a license from the patent holder. But my understanding is that in most cases a file format will not be subject to a patent. | The words "proprietary format" are important. Are you sure the format is proprietary? If it is, then it's likely protected in which case they might have grounds to sue (but that does not mean they would definetly win). If the format is not proprietary, and so long as you don't share data which is proprietary then I believe you fine. I'm not a lawyer - but I cite GIF files as an example. They were still protected by the US and some other countries until at least the late 90s and there were various threats to open source linux companies who shared code that used the file format. I'm not aware of anything other than threats and never heard of any company being sued, let alone winning or losing. Another example that comes to mind is the RedHat ISO format. My understanding is RedHat could not stop anyone from sharing open source, but they could prevent folks from sharing the format they assembled and shared the open source. Again, I am not sure if it was ever tested in any court of law anywhere. |
Is it error of law to judge on less relevant case law when there is much more relevant one? A judge in a civil case makes a judgment justifying it by similar decision made in somewhat relevant case. A party to the case is dissatisfied with the judgment. They find a more recent and, more importantly, much more closely related case (same court) in which the decision was the opposite. Can what the judge did be called "error of law" for the purposes of appeal? | On an issue of pure law, an appellate court decides if the trial judge got it right or wrong from scratch, and if there is a case that is a better match than the one that the judge used that leads to a different outcome in the case, then an appellate court is likely to find that the trial court's ruling is a reversible error. On an issue of mixed fact and law, or on a legal issue where a judge has more discretion in how the law is applied (like many evidentiary issues), a judge is given more deference, and the judge will generally only be reversed if no reasonable judge could have applied the correct law to the facts viewed in the light in which the judge saw them, and then, only if an application of the correct law to the facts viewed in the light in which the judge saw them would have changed the outcome of the case. There are a couple of ways that this standard of review is described, one of which is called "abuse of discretion" review. | 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. | None of the above! What you describe almost never happens. That's not because statutes never contradict each other. Statutes contradict (or appear to contradict) each other all the time – lawyers take advantage of this, arguing the statute that seem to favor their client is the relevant one. What almost never happens is that a court finds that two statutes (or even two parts of the same statute!) really do contradict each other. Courts can do this because almost every statute can be interpreted in different ways. When statutes appear to conflict, courts interpret those conflicts away. The logic that courts use to justify interpreting statutes this way is simple. They start by assuming that it would be insane for a legislature to pass laws that conflict. Imagine what would happen in Massachusetts if the legislature said, "In Massachusetts, divorce is legal and illegal." To prevent such chaos, courts presume that legislatures are not insane, so they "presume" the laws only appear to contradict each other because they are being misinterpreted. Court use this presumption to correct those misinterpretations by showing that, when interpreted correctly, the statutes are consistent, not contradictory. To do this, the courts make use of what are known as canons of statutory interpretation. As one law professor put it, "Canons are simply interpretive guidelines which, by dint of judicial repetition, take on the appearance, if not the reality, of a legal rule." There are canons explaining how to deal with everything from the words in a list to conflicts between statutes. Some canons are so commonly used that they are known by their nicknames, such as the “canon against superfluity" or the "last-antecedent rule." (Many are in Latin: "expressio unius," "noscitur a sociis" or "ejusdem generis". As Amon and Trish point out in the comments to the OP, there are two canons that are often used when statutes appear to conflict: Generalia specialibus non derogant: If there is a conflict between a general law and specific rule, the specific rule prevails. Newer laws amend older laws. What if two laws really are contradictory? In that case, the court should refuse to enforce either law. If the court picked one of the laws, it would effectively by making law. Under our system of separated powers, legislatures, not courts, legislate. How to find out more about canons The canons are a hot topic in law right now, largely because of Justice Scalia's insistence on the primacy of the text. His last book, "Reading Law: The Interpretation of Legal Texts," discusses the canons at length. (You can see a list of the canons he discusses here.) Unfortunately, reading a list of canons, or articles about them, without seeing how they are used, is about as helpful as reading the rules of baseball without ever watching a game. The best way to learn how canons are actually used is to read a law school casebook. For canons, the best choice is Williams Eskridge's "Legislation" casebook. It devotes an entire chapter to the canons, including many (edited) examples of real decisions using them. And, since the canons change only slowly, you don't need the latest edition -- earlier editions are available for almost nothing ($3.51) online! | When it is a mistake of memory, and not intentional (as this question is asking), there are no clear standards, and it is largely up to prosecutorial discretion. This means that whatever factors affect prosecutorial discretion (such as the prosecutor knowing who they have to work with on other days) can become significant in the determination. A prosecutor who announced this decision also specifically noted that it's up to the prosecutor to decide each case separately, with no guidance on fact patterns that could influence the decision either way. The Washington Post Magazine covered this question somewhat in depth several years ago, arriving at that conclusion. This was a surprise to me, but the article seems like a good resource on this - the question turns out to be more interesting and less resolved than it first appeared to be. | That depends what the issue is. On constitutional issues, and on issues of federal law (which do come up in state cases) , they are binding precedent, at least in that circuit for an appeals court opinion, and in the whole US for a Supreme court opinion. District court opinions are not generally binding unless upheld on appeal. On matters of state law, the state's own highest court is the final word, but a federal opinion could be at least as persuasive as one from a different state. to the best of my understanding one does not use the term "estoppel" to describe the effect of a previous judgement by a different court. If it is in the same case and not on appeal, the term is Res judicata ("A thing (already) judged"). If it is a general matter of adhering to clear precedent, the term Stare decisis (“to stand by things decided.” ) would be used. | You are quoting standards that are applicable during an appeal. So in this case, the defendant was brought to trial, was found guilty by a jury, and is now appealing that conviction. During that initial trial, the evidence was supposed to have been weighed neutrally. In an appeal, the appellate court is not attempting to re-litigate the entirety of the case. That would be costly and slow in addition to burdensome on witnesses that might have to be called again to testify. Instead, it defers to the trial court for things like the determination of facts. The standards you quote show that an appellate court is only going to overturn a lower court's verdict as insufficient if the lower court's ruling is manifestly unjust. The prosecution and the defense presented evidence on a particular element of the crime at trial. The jury determined that the prosecution met its burden, and proved the element beyond a reasonable doubt. The appeals court is not going to substitute its judgement for that of the jury particularly when the jury had the opportunity to assess the credibility of different witnesses that may not be possible from a simple text-based transcript. If the trial court convicted and the appeals court determines that the conviction was reasonable if the evidence was viewed from the standpoint most favorable to the prosecution, then the sufficiency standard would be met and the appeal would be denied. The appeals court would only overturn the verdict as insufficient if no reasonable juror could possibly have concluded that the state met its burden of proof given the evidence presented. | Yes. Juries aren't terribly accurate. There is an irreducible chance that no matter how clear the outcome should be that the jury will get it wrong. Based upon a review of the academic literature on wrongful convictions and inaccurate acquittals, I generally tell my clients that this is about 10%. Many people think that this is a low end estimate. Also, sometimes a jury will acquit a defendant in a case where they think that the defendant was actually legally guilty because of extraordinary circumstances, and so the jury will disregard the law and acquit. This practice is called "jury nullification." And, as other answers have noted, sometimes the prosecution or the judicial system screws up for reasons that are unforeseeable, after a not guilty plea, in a way that makes proving your guilt difficult or impossible. Basically, if you "roll the dice" there is some non-zero chance you will be acquitted, while if you plead guilty, there is none. Also, sometimes court decisions will change the law in way favorable to you after the trial, and as long as your case is still on direct appeal from the conviction, you can benefit from those changes in the law, which you cannot if you simply plead guilty without any concessions. Likewise, if you are innocent and the evidence is currently strongly against you, but you wish to preserve the ability to later attack the conviction based upon future newly discovered evidence, not pleading guilty is generally necessary to preserve that option. Another circumstance where going to trial but losing can still be worth it, is where there are extenuating circumstances that make your conduct understandable, even if it is not a legally valid defense. Getting these facts in front of the judge in a fuller fashion, as a trial can make possible, can convince the judge that while you are legally guilty, that you deserve leniency. Going to trial typically results in a longer sentence, even without a plea bargain, however, so going forward with a hopeless trial is rarely a good move. | I will only address this part of the question: Who would be able to authoritatively decide the constitutionality of such a question, with all Supreme Court justices having clear conflict of interest on the matter? The Supreme Court could still hear such a case, as the justices make their own decisions about when to recuse themselves. In particular, they might decide to hear the case based on the "Rule of Necessity", which says roughly that a biased judge is better than none at all: a judge can hear a case, even in the presence of a conflict of interest, if there is no other way for it to be heard. See United States v. Will, 449 U.S. 200 (1980), in which the Supreme Court ruled 8-0 that federal courts could try a case related to the salaries of federal judges. Another possibility is that the case could be brought in a lower federal court, say District Court. There is a question here: the Supreme Court has original jurisdiction in "all Cases affecting Ambassadors, other public Ministers and Consuls" (US Constitution, Article III, Section 2), and I do not know whether Supreme Court justices are "public Ministers". However, if a lower court did have jurisdiction, it could rule on the constitutionality of the question, since a District Court judge would not have a significant conflict of interest. The relevant Circuit Court of Appeals could presumably hear an appeal. If the Circuit Court's ruling was appealed to the Supreme Court, and the Supreme Court felt that they all had conflicts of interest (and decided not to invoke the Rule of Necessity), then they could simply not vote to grant certiorari, in which case the Circuit Court's ruling would stand. |
Telecom fee that is mentioned in the lease but no mention of exact amount (U.S.) My apartment lease says that the Internet has a telecom fee but there's no mention of how much the telecom fee is anywhere in the contract. In this case, am I obligated to pay this fee? Does it not invoke an issue where they can arbitrarily set the price? Does this fall under the category of lease addendum? | am I obligated to pay this fee? Yes. You entered the lease despite been aware of the existence of that fee. That meets the contract law tenet that an agreement be entered knowingly and willfully. Does it not invoke an issue where they can arbitrarily set the price? If the landlord requires a fee that is unreasonably high, that would violate the contract law covenant of good faith and fair dealing. As such, that part would be unenforceable, meaning that the landlord may only charge a reasonable fee. Likewise, unless the lease clearly entitles the landlord to decide the telecom fee arbitrarily, the lease would fail to meet that extent of the aforementioned tenet of a contract being entered knowingly. Does this fall under the category of lease addendum? The form (or format) in which the requirement of telecom fee was mentioned --and agreed upon-- does not matter. The landlord only would need to prove that the tenant was --or should have been-- aware of that fee. Usually the landlord can prove that by showing/producing in court the lease with tenant's signature. | Is it worth it to contact a lawyer? No. The amount at issue indicates that the matter would have to be litigated in Small Claims court, where typically parties are not allowed to be represented by a lawyer. Furthermore, litigating in Small Claims court will give you some exposure to judicial proceedings. Being able to advance your legal arguments in court is useful, and this seems to be a great occasion to gain experience of that sort. The rental company's uncooperative behavior is unreasonable and can forfeit its entitlement to at least a sizeable portion of its actual expense. In many jurisdictions, the legislation provides treble damages in claims of fraud. Although claims of fraud and breach of contract oftentimes overlap, your entitlement to treble damages is not something to rule out. At the outset, the company's initial promise to give you the final statement most likely supports a finding of reasonable reliance, one of the prima facie elements of fraud. It is unclear whether the rental company made the aforementioned promise in writing. For evidentiary purposes, make sure that all your subsequent interactions with the rental company are in writing. That will make it harder for the company to disavow its verbal representations. | Sounds a lot like a bad-luck, move-on situation. I can't imagine any reason why the complex would have any duty to watch your bike for you or otherwise ensure that no one steals it. The fact that you bought it knowing that the bike shed had not yet been built and that the security gates were broken would probably count against you. If you know who stole your bike, you'd have a much better case against them, but it doesn't sound like that's the case. If you're looking for a typical contingency-fee arrangement, in which the attorney takes a fee from your winnings, I'd imagine you're going to be especially out of luck, based on two hard facts: The total damages you can collect is probably going to be equal to the price of your bicycle: £400. The average hourly rate at national firms for the most junior lawyer is already more than £200. If you sat down with such a lawyer, explained your situation, discussed your options, and then tasked the lawyer to write a threatening letter to the apartment complex, you'd already have incurred more fees than the value of the bicycle. Probably no attorney is interested in that arrangement -- especially since it's highly unlikely the complex would pay. So unless you're actually willing to pay hourly rates, I can't imagine any lawyer taking this case. Even if you were, no one may take it just because lawyers don't like taking cases that they're going to lose. | Per GDPR Art 12(5), “any actions taken under Articles 15 to 22 and 34 shall be provided free of charge”. The right to rectification is Art 16 and reads in its entirety: The data subject shall have the right to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her. Taking into account the purposes of the processing, the data subject shall have the right to have incomplete personal data completed, including by means of providing a supplementary statement. Thus, I think it would be invalid to charge a fee for an address change if that change was made in exercise of your data subject rights. If you didn't invoke this right, it's debatable whether charging a fee would be proper. On the one hand, they can charge whatever service they want (provided that this was part of the contract you entered). On the other hand, they have an obligation to assist you with your exercise of data subject rights. This includes recognising a data subject request even if you didn't explicitly invoke the specific GDPR article. For example, refusing a request for erasure just because you didn't invoke some magic GDPR words would be clearly noncompliant in my opinion. If the company offers multiple customer service options, charging for some of them may be all right. Typically, the lowest-cost solution for a company to deal with GDPR requests is to offer an online self-service option. An email to the data protection officer would typically also be free. Charging for phone support might be fine though. In an insurance context, there could also be a legitimate claim that updating your address is not a mere correction of your personal data, but a modification of the contract (depending on what you're insuring). Another possible counterpoint (which I think is not valid though) would be that the company never stored inaccurate data and therefore doesn't have to satisfy a rectification request. | 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. | Once your rental contract starts, your landlord must give you access to the rented flat. If he doesn't do so he is in breach of contract. You could sue him, but that would be a bad start for a longer term contractual agreement. It might be less time and effort to look for a new flat. And do you really want to be in a long term contract with someone who breaches contract right from the start based on arbitrary reasons? In any case, you can and you should cut the rent proportionally for every day without access to the flat. Your landlord has by no means a right to check your luggage. Even if there would be such a regulation in the contract, it would be void, because of invasion of privacy. It looks to me that you are in for some bad times with such a landlord. I can assure you that most landlords are not like this. Another reason to probably look for a new flat. Legally you are right, but what does that help you if your landlord is trouble? | First of all, the amount involved is probably a few hundred dollars, maybe a thousand: if you do not pay it is extremely unlikely that your roommate will attempt to recover. Even if they do, they will probably fail - 30 days notice is 30 days notice: unless last month was February, the 8th to the 8th is either 30 or 31 days, you have complied with the terms of the lease. If the lease had said "one named months notice" then your roommate may have a case; as it is, they don't. Is he right? No. Is there ever a case where I'm liable for pro-rated rent beyond the 30 day notice period? Only if it says so in the lease. Do I owe him rent for each day in November that the room is vacant beyond the 8th? No Would a judge make an exception in his favor since I didn't tell him I was looking for a new place to live? Judges don't make exceptions, particularly not in anybody's favour. The role of a judge is to enforce the law - not to make exceptions to it. A judge would give effect to the terms of the contract except where those terms are prohibited or against public policy. | I got and answer from lawyer in Netherlands. To rent out to the company is not without risks. You rent out to the company and the company rents out to the actual user of the apartment. That is subletting. The sub-lessee is protected by law. So when the company fails to pay, you can end the contract with the company (you have to go to court for this), but then you will become the lessor to the actual user (=sub-lessee) then. If you feel that that is against your interests, you have to start a court procedure within half a year to end the contract with the actual user. Also note: it is forbidden to rent out to people that don't have a legal status. So you make sure you trust the company very well if you are going to rent out to them. I recommend to seek help from a real estate agent that is well known and member of NVM or other trustworthy organisation. |
Self-deportation of American Citizens from US It is conceivable that US citizens detained at CBP will self deport to exit overcrowded CBP detainment facilities avoid lengthy detainments (>20 days). How would a US citizen's self-deportation affect one's ability to cross borders and return home? Update: "Food for thought" for responses: Upon deportation, why would CBP allow you to re-enter the country with the questioned documents? Would CBP not confiscate the questioned documents before deportation? Citizen is held incommuncado. There is a claim that 2 of 3 Americans live in the 100-Mile border zone patrolled by CBP: | 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. | 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. | So, what happens when the American parent tries taking the baby with them to the U.S.? If the child has proper documents, the specifics of which depend on the child's citizenship and the purpose of entering the US, nothing will happen. If the visit is temporary, the child needs the same documents as any temporary visitor with the same citizenship. If the parent intends to remain in the US indefinitely, the child should have an immigrant visa, in which case the child will become a US citizen on arrival. | You were trespassing The community college is a public institution but they can decide what part of their land you can walk on and in what circumstances. Just like the military is a public institution but they don’t let you walk across their shooting ranges. To be clear, in the absence of clear “no dogs allowed” signage, you were not trespassing until you were told about the policy. At that point, you were legally obliged to remove yourself (or more precisely, your dog) from the campus as soon as possible. When you refused to do so, you became a trespasser. It’s trivially easy to find out who you are. One photograph, one reverse image search they’ll know everything about you right down to your shoe size. Even if you don’t use social media, I’m sure some of your family and friends do. In most US states, trespass is a misdemeanour and also in most states members of the public can arrest someone who is committing a misdemeanour in their presence. They can use reasonable force to do so and can hold the arrestee until they can transfer them to the custody of a law enforcement officer. Admittedly, this seems unlikely but it is possible. If you have caused damage, you can be sued. It seems that your discussion with the college staff was somewhat protected so the loss of productivity of those staff members is a loss that the college suffered and that they could sue you for. Again, not likely but possible. Alternatively, they could just report you to the police who may or may not bring charges. Note: this assumes the dog is a pet. If it’s a disability assistance animal, it can’t be excluded. See: Are sidewalks on a university public or private property? Can a local government charge a fee to enter a public downtown area during an event? Trespassing or Public Property? Is a mall considered a "public place" for copyright purposes? | If the purported husband (PH) has not attempted to enter the UK under false pretenses, and has not submitted documents containing false statements to the UK government, it is hard to see how he might be charged with a crime by the UK in connection with the invalid marriage. But since the PH is now said to have submitted an application for entry clearance based on the bigamous marriage, a marriage that it appears that he knew or should have known was invalid, he has submitted an official document based on a false statement. That is presumably an offense under UK law, and may well affect the PH's future immigration treatment. If the deceived wife has not knowingly made false statements to the UK government, it is hard to see how she would be charged in the UK. She would be wise to promptly inform the UK government that the marriage was invalid, to withdraw any statements or applications based on its validity, and to take legal steps to correct the record so that the marriage does not show as valid. This might be by annulment or some other procedure, probably depending on the law in the Bahamas where the purported marriage took place. (Under chapter 125, section 21(b) a prior marriage is valid grounds for an annulment or decree of nullity.) She might also want to notify the US authorities. The purported husband might have been guilty of bigamy in the Bahamas, depending on just how their law is written. Whether the authorities there will seek to extradite and prosecute him one cannot say. | The order refers in sec. 3(c) to "immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12)". That section specifically names Iraq and Syria, plus "points to" potential areas of concern, as identified by the Sec'y of State and Sec'y of Homeland Security. The full list extends to Iran, Libya, Somalia, Sudan, and Yemen, and is set forth at 81 FR 39680. The cited authority is 8 USC 1182(f), a section about inadmissible aliens, which says Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Thus he has authority to exclude permanent residents from re-entry (they are aliens, and re-entry is a subcase of entry), and has done so for 90 days. In the case of Syrian nationals, under sec 5(c) of the order, they are excluded until the order is changed. Sec. 5(c) of the order specifically declares Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest. The long-term ban on Syrians also specifies "as refugees", so "such entry" might not be interpreted to refer to entry of refugee or non-refugee Syrian nationals who are permanent residents. The 90-day ban in 3(c) ("immigrant and nonimmigrant entry into the United States of aliens") does not include any further restrictors, apart from the various government-official visas that are exempted, so there would be no basis in the order for excluding permanent residents. Whether this will be strictly enforced is a separate question, though in the period when the order was active (a day), it was applied to permanent residents. Sec. 3(g) allows exceptions "on a case-by-case basis, and when in the national interest". A recent (Saturday the 28th) White House briefing says that green card holders "will need a case by case waiver to return to the United States". The ban includes immigrants and non-immigrants, so it doesn't particularly matter how "immigrant" is defined – what matters is what an alien is. Still, "immigrant" is defined in 8 USC 1101 (15) as any alien, except a bunch of categories such as diplomats, tourists, business visitors, people in transit, students, and fashion models and similar, working temporarily here. Any permanent resident has an immigrant visa (but at any rate is an alien, and is either an immigrant or a non-immigrant). Returning to the words of the order, neither 3(c) nor 5(3) limit the ban to issuance of visas, it refers to entry. Not all entry by foreign national requires a visa. The word "visa" is mentioned, so it is possible to construe that mention as contextually restricting the ban to visas, however 3(a) which is entitled "Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern" orders the review "to adjudicate any visa, admission, or other benefit under the INA" which indicates that there is no such limitation. 8 USC 1101(a)(13)(C) does say that a permanent resident is not "regarded as seeking an admission into the United States". Admission itself is defined in 8 USC 1101(a)(13)(A), when applied to an alien, as "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer". While a permanent resident is not seeking admission (and is not applying for admission), it would still be consistent with the law to forbid admission (legal entry). If you read 8 USC 1101(a)(13)(C) as granting permanent residents widest latitude to enter without restriction, then that has the absurd consequence that permanent residents are subject to no scrutiny at all. The absurdity is avoided if "seeing admission" is a step prior to and is distinct from "being admitted" i.e. "lawfully entering". | Yes, they still have to go through the normal eviction process and must still provide the minimum number of days required by their local jurisdiction in order to vacate the property. By moving in and establishing residency, the tenant and landlord form an implied lease - the tenant does not need anything in writing in order to establish their legal rights to tenancy. More information: No written lease--Am I in trouble? | Does this mean that anyone who is born in the US is automatically a US citizen, whether they want it or not? Yes (subject to a couple of exceptions, namely the children of diplomats with full immunity and the children of a hostile foreign occupier). Or does this amendment just offer the possibility of requesting citizenship? In other words: is there an action to be made in order to become a US citizen when born in the US (and therefore one is not before this action is performed)? No. For someone who falls under the 14th amendment's citizenship clause, the only way to avoid being a US citizen is to relinquish or renounce it, which generally means that one is stuck with the US citizenship for at least 18 years. Most countries' citizenship laws, or at least all of those with which I am familiar, operate this way—automatically—for "normal" cases of acquisition of citizenship by virtue of the circumstances of birth. This is true whether the citizenship derives from the place of birth or from the parents' citizenship. |
Duty to rescue injured police officer during traffic stop? [USA] Hypothetical here. Suppose Alice is pulled over by Officer Bob. Bob gets out of his car, and on his way to Alice's car is struck by vehicle C, sending Bob to the ground. Bob does not rise immediately, so Alice decides this is her lucky day and drives away, without alerting anyone as to what transpired. The police later catch up with Alice. What will she be charged with? Link to a similar question, where the person in the officer's custody was struck | 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. | It depends. The police and only the police decide what are and are not police matters. However, although it might not be a police matter, you still have lots of options at your disposal. For example, does your jurisdiction (city, town, municipality, etc.) have an animal control division? i.e., City dog catcher. Most do. If so, I would call the animal control division and file a report. They might possibly do a field visit and take the animal into custody if the animal is still roaming loose. If you sustained bodily injuries, you should get checked by a doctor and have those injuries documented in a medical report. If possible, you could drive by the property and take photos of the unchained dog roaming loose. Then, armed with your evidence consisting of: police report medical injury report animal control report and photographs of the scene You could (with the help of a licensed attorney) file a civil suit against the pet owner. You might be able to win an award for damages, pain and suffering and possibly punitive damages as well (check with your attorney). Also, your attorney could advise you if you might have a cause to move for an enforcement action against the dog and/or its owners that might or might not include having the animal removed from the owners custody or in extreme cases of negligence and bad behavior possibly "put to sleep." Your suit might focus on collecting from the homeowner's insurance policy of the pet owner and you could potentially collect a lot of money with the right set of facts and evidence on your side. You might want to look for an attorney who specializes in personal injury. Most PI attorneys work on a contingency. Meaning they don't charge an up front fee and will only get paid if you win your case or settle. In which case their fee is typically about 1/3 of what you get awarded in settlement or judgment. | Charlie is not a party to the contract between Alice and Bob Alice and Charlie have no contractural relationship and Alice cannot require him to do anything nor is he liable to Alice in any way. Alice’s issue is with Bob who has clearly breached his contract. Alice can sue Bob for damages and may be able to end the lease. There is no trespass because Charlie is there with the permission of the leaseholder. From Charlie’s position there is no reason to believe that Bob does not have the authority to give this permission so Charlie is not in breach of the law. The police will see this as a civil matter and won’t intervene. | Depends on where you are, and what law would be broken and why. In germany, there is the concept of rechtfertigender Notstand (justifying emergency). If there is a present danger to a Rechtsgut (legally protected interest), one can take necessary and proportional steps against another legally protected interest. Say I walk through a winter landscape and there is a person who has broken through the ice of a lake (a present danger of the loss of life). Nearby is a yard with a ladder leaning on a shed. I would be allowed to enter the yard (normally trespas) and take the ladder (normally theft) in the rescue attempt (life counts for more than a ladder, using a ladder is necessary/appropriate for an ice rescue). The details are, as usual for Law SE, complicated. | The legality of the stop may be somewhat up in the air, but it would seem that the vehicle is not in the Texassure database, so it is reasonable to think that the person driving is not insured, and therefore is breaking the law. And that is all that is required: that the suspicion is reasonable. Until someone makes a sufficiently persuasive legal stink about this, it is probably a legal stop. This article gives some legal discussion. One applicable case is US v. Broca-Martinez, a Texas case where a person was pulled over for being "unconfirmed" w.r.t. the insurance database: the court held that this was a reasonable suspicion. Thereafter, a charitable interpretation is that you misunderstood the request in providing your sister's information when he asked for your license and insurance: but you are expected to understand that when they request your license and proofs of insurance, they mean you the driver, and not the car owner. That they is even more suspicious, although I understand your confusion. At your hearing you cane explain why you didn't comply with the first officer's request, and the judge may they chalk this up to a simple misunderstanding rather than intentional deception. The problem is that you are expected to know – whether or not you've ever been pulled over before – that you have to provide license, registration, and proof of insurance. You will have a hard time making it believable that you didn't understand what the officer told you and what the law requires. | What is the correct way to handle this situation? Strictly speaking, each driver exceeding the speed limit is in violation of the traffic sign even if everybody else also infringes it. Thus it is completely valid for the police to pull & fine anyone from among those drivers. Statutes like the one you mention are intended for scenarios where a driver departs significantly --and for no apparent [lawful] reason-- from the speed limit, such as driving at 20 mph in a 55 mph zone. Typically a driver would not get pulled over in the scenario you mention (driving at 62 mph where everybody else drives at 65 mph). The exception would be some police department(s) requiring its cops to meet a quota of fines per week, but that would be quite a questionable practice having nothing to do with the legislative intent. Speed limits are supposed to represent normal and reasonable movement of traffic. If informed consensus is that a particular speed limit is inconsistent with that principle (for instance, where limit is artificially low and raising it would not compromise safety), then a request could be submitted to the Oregon Department of Transportation. | It's called police and prosecutorial discretion to discern when to arrest and prosecute; and that situation in particular is also the result of a decision of the jury of the court of public opinion. Permits are required to sell on the street in Oakland. But not everyone who sells has a permit, and not everyone who is confronted about not having a permit is arrested and prosecuted. There are simply too many potential cases to prosecute. And, the police officer has the discretion to ticket or not. When you get pulled over while driving or riding a bike, you don't always get a ticket, since the officer has the option of discretion. When the officer responded and found an eight year-old selling water, he obviously was aware of the fact that it was a violation. But he was also aware of the court of public opinion. What is it going to look like if he arrests an eight year old and their parent? Allison Ettel was right, in a purely legal sense, to make the report. And technically, the child (and adult) needed a permit. And could have been ticketed and prosecuted. But it was Ettel was tried and convicted in the court of public opinion, and she lost her case. Happens a lot. | 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. |
Can a US President, after impeachment and removal, be re-elected or re-appointed? This answer in its present form states If Donald Trump were impeached and blocked from running again (which is one of the things that impeachment can do, disqualify from office)... Is that true? Does impeachment by the House of Representatives, with or without subsequent removal from office by the Senate, actually disqualify one from being re-elected to the same Presidential office? Before the present time, this might have seemed politically impossible regardless of the law, but impeachment and even removal from office does not seem as likely to hinder the viability of a candidate supported by the base of voters supporting the current US President. This question is intentionally on Law.SE instead of Politics.SE as the focus is intended to be on law rather than political viability. As an example of a similar case, consider Roy Moore, who in 2001 was elected as Alabama's 27th Chief Justice, removed from office in 2003, was again elected chief justice in 2013, again forced out, then won a Republican primary for Senate in a heavily Republican state, earning Trump's endorsement, and is again a candidate for the US Senate. As a closely related question, does impeachment by the House of Representatives, with or without subsequent removal from office by the Senate, actually disqualify one from being re-appointed as Vice President or elsewhere early in the line of succession, and re-reaching the same Presidential office by resignations or otherwise? | Impeachment of a president does not on conviction automatically disqualify the convicted party from becoming president again. However, after conviction, the Senate can vote to add to the punishment of removal from office "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States." This requires only a simple majority vote. Does impeachment by the House of Representatives, with or without subsequent removal from office by the Senate, actually disqualify one from being re-elected to the same Presidential office? See above. It requires impeachment by the House, conviction by the Senate, and a separate vote by the Senate to impose the punishment of disqualification. It's conceivable that the Senate could disqualify the convicted party only from becoming president, though it looks like in the two prior instances where this punishment was imposed it was the broader disqualification. But if a person disqualified only from being president is in an office that would normally be in the line of succession, that person is simply omitted from the line of succession. This happens routinely with naturalized citizens, and there's no reason to think it would be any different for a former president who had been disqualified only from the office of the president after being convicted on articles of impeachment. | I think we're talking about In re Hennen, which dealt with the removal of the clerk of the district court in Louisiana: It all these departments power is given to the secretary, to appoint all necessary clerks; 1 Story, 48; and although no power to remove is expressly given, yet there can be no doubt, that these clerks hold their office at the will and discretion of the head of the department. It would be a most extraordinary construction of the law, that all these offices were to be held during life, which must inevitably follow, unless the incumbent was removable at the discretion of the head of the department: the President has certainly no power to remove. These clerks fall under that class of inferior officers, the appointment of which the Constitution authorizes Congress to vest in the head of the department. The same rule, as to the power of removal, must be applied to offices where the appointment is vested in the President alone. The nature of the power, and the control over the officer appointed, does not at all depend on the source from which it emanates. The execution of the power depends upon the authority of law, and not upon the agent who is to administer it. And the Constitution has authorized Congress, in certain cases, to vest this power in the President alone, in the Courts of law, or in the heads of departments; and all inferior officers appointed under each, by authority of law, must hold their office at the discretion of the appointing power. Such is the settled usage and practical construction of the Constitution and laws, under which these offices are held. In re Hennen, 38 U.S. 230, 259–60, 10 L. Ed. 138 (1839) (emphasis added). | No. The relevant provision of the United States Constitution is Article II, Section 2, Clause 1 which states in the pertinent part: The President . . . shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. The correct conclusion flows pretty directly from the definition of a "reprieve" and a "pardon", both of which, in the ordinary senses of these words refer to granting forgiveness for acts that have already occurred. One of the leading cases on point which supports this view is Ex parte Garland, 59 U.S. (18 How.) 307, 380 (1855), which states: The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions. Despite its antiquity, this case remains good law and has been applied repeatedly in subsequent cases (although few on the right of a President to pardon future crimes which just hasn't come up). Other Observations The President's pardon power is limited to federal crimes, so no President may pardon or commute a state or foreign conviction. The nature of the pardon power, if any, with respect to state and local crimes is governed by each respective state constitution and varies rather considerably. The power in the U.S. Constitution is broader than that is some state constitutions. For example, the corresponding provision of the Colorado Constitution, applicable to convictions entered by the state of Colorado, does not allow crimes to be pardoned prior to a conviction. Article IV, Section 7, of the Colorado Constitution provides: "The governor shall have the power to grant reprieves, commutations and pardons after conviction, for all offenses except treason * * *." The History Of The Pardon Power One of the most thorough and up to date reviews of the scope and nature of the federal pardon power can be found in the law review article, Todd David Peterson, "Congressional Power Over Pardon and Amnesty: Legislative Authority In The Shadow of Presidential Prerogative" 38 Wake Forest L. Rev. 1225 (2003). In particular, it has an interesting historical overview of the power at pages 1228-1235 (pagination and footnotes omitted): The President's pardon power derives from the authority that had been invested in English kings since the end of the first millennium. Although the King possessed plenary power to grant pardons, over the years Parliament imposed specific limitations on the pardon power in order to avoid perceived abuses. For example, the Habeas Corpus Act of 1679 made it an offense for any person to imprison an English subject outside of the country and, in order to avoid an evasion of the writ, Parliament prohibited the King from granting a pardon for violation of the statute. Nevertheless, English courts frequently took an absolutist view of the King's pardon power. Thus, in Godden v. Hales, the Lord Chief Justice upheld a royal pardon on the ground that the Kings of England were absolute sovereigns; . . . the laws were the King's laws; . . . the King had a power to dispense with any of the laws of Government as he saw necessity for it; . . . he was sole judge of that necessity; that no act of Parliament could take away that power. The Parliament, however, persisted in its efforts to rein in the pardon power and, in 1700, adopted the Act of Settlement, which stated that "no pardon under the great seal of England [shall] be pleadable to an impeachment by the commons in Parliament." This limitation was enforced against the King, although it did not apply to pardons granted to relieve punishments imposed after the impeachment of an official. The royal pardon prerogative was imported into the American colonies whose charters gave the leaders substantial authority to pardon offenses. At the Constitutional Convention of 1787, neither the Virginia plan nor the New Jersey plan contained a pardon power. Nevertheless, at the insistence of Charles Pinckney, Alexander Hamilton, and John Rutledge, a pardon clause similar to the English Act of Settlement of 1700 was added to the draft constitution. Thus, the first report of the Committee on Detail proposed that the clause read: "He [the President] shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment." The issue of legislative control over the pardon process was addressed directly by an amendment proposed by Roger Sherman of Connecticut. James Madison's journal notes that "Mr. Sherman moved to amend the power to grant reprieves and pardon' so as to readto grant reprieves until the ensuing session of the Senate, and pardons with consent of the Senate.'" George Mason argued that the Senate already possessed too much authority, and the proposed amendment was rejected by a vote of eight to one. The convention did approve a motion to insert "except in cases of impeachment" after pardon and remove the words "but his pardon shall not be pleadable in bar." Luther Martin then sought to limit the President's power to grant pre-conviction pardons by inserting the words "after conviction," following the words "reprieves and pardons." Martin, however, withdrew his motion after James Wilson argued that "pardon before conviction might be necessary, in order to obtain the testimony of accomplices." Edmund Randolph then offered an amendment to exclude "cases of treason" from the pardoning power. This proposed amendment was defeated, although its exclusion was later to prove controversial. Thus, although the framers realized that the pardon power was subject to potential abuse by the President, they declined to place any limitations on the President's pardon power or grant the legislature any authority to check potential presidential abuses. The debates following the convention's passage of the Constitution reveal more about the framers' views on the pardon power. In the Federalist 74, Alexander Hamilton attempted to respond to the criticism that the President could pardon his accomplices in a case of treason. Hamilton acknowledged that "there are strong reasons to be assigned for requiring in this particular the concurrence of [the legislative] body or of a part of it." Hamilton argued, however, that the reasons against such legislative authority outweighed any in its favor: "[i]t is not to be doubted that a single man of prudence and good sense, is better fitted, in delicate conjunctures, to balance the motives, which may plead for and against the remission of the punishment, than any numerous body whatever." In particular, Hamilton argued, in the case of large scale seditions that attracted significant popular support, we might expect to see the representation of the people tainted with the same spirit, which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. Thus, Hamilton argued not only that the power was properly reposed in the President, but that it would be dangerous to grant such power to Congress. Finally, Hamilton argued that it was appropriate to grant the President pardon power in order to ensure that the authority could be exercised with appropriate dispatch: "In seasons of insurrection or rebellion, there are often critical moments, when a well timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the Legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed that a discretionary power with a view to such contingencies might be occasionally conferred upon the President; it may be answered in the first place, that it is questionable whether, in a limited constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic before-hand to take any step which might hold out the prospect of impunity." There was little debate about the pardoning power during the state ratifying conventions. George Mason continued to argue that the power should not be given to the President. An opponent in New York suggested that pardons for treason should not be allowed without congressional consent. Ultimately, the Constitution was adopted without any express limitation on the President's pardoning power. The Supreme Court has on a number of occasions discussed the general scope of the pardoning power. For the most part, with exceptions to be discussed later, these decisions contain broad dicta concerning the unfettered nature of the President's power and the inability of Congress to impose any legislative restrictions on it. For example, in United States v. Wilson, the Court held that a pardon must be pleaded in order to be effective. Chief Justice Marshall wrote that the [C]onstitution gives to the [P]resident, in general terms, "the power to grant reprieves and pardons for offences against the United States." As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. Marshall further defined the pardon as an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court. In Ex parte Wells, the Supreme Court considered whether the President could grant a conditional pardon in the form of commutation of a death sentence to a sentence of life imprisonment. The Court noted that pursuant to the Pardon Clause, the President has granted reprieves and pardons since the commencement of the present government. Sundry provisions have been enacted, regulating its exercise for the army and navy, in virtue of the constitutional power of [C]ongress to make rules and regulations for the government of the army and navy. No statute has ever been passed regulating it in cases of conviction by the civil authorities. In such cases, the President has acted exclusively under the power as it is expressed in the [C]onstitution. The Court noted, however, that "[t]here are also pardons grantable as of common right, without any exercise of the king's discretion; as where a statute creating an offence, or enacting penalties for its future punishment, holds out a promise of immunity to accomplices to aid in the conviction of their associates. When accomplices do so voluntarily, they have a right absolutely to a pardon . . . ." Thus, at least in dicta, the Court recognized Congress's authority to regulate clemency in the military and to adopt statutes granting immunity for cooperation in a criminal investigation. In Ex parte Garland, the Court spoke in sweeping dicta about the exclusive power of the President over pardon and amnesty. In Garland, the Court considered the issue whether a former Confederate senator would be permitted to be a member of the Supreme Court Bar without taking the statutorily required oath that he had never voluntarily given aid or comfort to the confederacy. The petitioner had received a presidential pardon and argued that the pardon exempted him from the requirements of the oath to which he could not truthfully subscribe. The Court held that it was "not within the constitutional power of Congress thus to inflict punishment beyond the reach of executive clemency," and therefore, the petitioner was entitled to membership in the Bar. In the course of the opinion, the Court broadly defined the President's pardon power: "The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions." In Ex parte Grossman, the Court considered whether the President's pardon power extended to criminal contempts of court. The Court upheld the President's power to issue such pardons based on the history of royal pardons for contempt in England. The Court also looked to the long history of presidential pardons of criminal contempts of court. In responding to the argument that a presidential pardon of contempt of court would interfere with the ability of the federal courts to protect their own decrees, Chief Justice Taft noted that the Constitution provides a number of powers to the branches which give them the ability to check the other branches of government. With respect to the pardon power, the Court stated: "[t]he executive can reprieve or pardon all offenses after their commission, either before trial, during trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress." The Court also noted that the President exercised the pardon power without any significant judicial check on his pardoning authority: "It is a check entrusted to the executive for special cases. To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to pervert it; but whoever is to make it useful must have full discretion to exercise it. Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it. An abuse in pardoning contempts would certainly embarrass courts, but it is questionable how much more it would lessen their effectiveness than a wholesale pardon of other offenses. If we could conjure up in our minds a President willing to paralyze courts by pardoning all criminal contempts, why not a President ordering a general jail delivery?" In Biddle v. Perovich, Justice Holmes wrote an opinion for the Court in which he upheld the President's conditional pardon of a convict sentenced to death on the condition that his sentence be commuted to life imprisonment. Justice Holmes suggested a different rationale for the pardon power than Chief Justice Marshall had enunciated early in the 19th century. Rather than being a private act of grace that must be accepted and proffered to the court by the one pardoned, Justice Holmes saw the President's pardon as serving public policy ends: "A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. . . . Just as the original punishment would be imposed without regard to the prisoner's consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determines what shall be done." | The US courts (including the US Supreme Court) do not have an army or even a police force under their direct control, except for a few court bailiffs. Ultimately, if the executive simply defies the courts, the only remedy is a political one. A court can order a person held unlawfully to be released from detention, but the jail/prison authorizes might ignore such an order. A court might order DACA applications to be accepted, and if they are not, might rule that deportations or other negative actions are unlawful. A court might hold persons who defy its orders in contempt, and send marshals to jail such persons. But if the executive branch in an organized way defies such orders, there is no judicial power to compel obedience to court orders. This is why the judiciary has famously been called the "least dangerous branch" of the government: it cannot actually do anything without at least the tacit cooperation of the executive. Cherokee Case (Worcester v. Georgia) There was a reference in the comments above to the the Cherokee Indians case, Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). In that case the US Supreme Court, in a decision written by Chief Justice Marshall held that the Georgia laws purporting to seize Cherokee lands were invalid as violations of Federal treaties. President Jackson was strongly displeased by this ruling. He was supposed to have said: John Marshall has made his decision, now let him enforce it. It appears that President Jackson probably did not say that, at least not publicly. But in fact Jackson did not take any steps to enforce the decision, and the decision was in fact not enforced. The lands were seized, and the Cherokee were forcibly relocated across the infamous trail of tears. This event shows that a court ruling (proper or improper) may have no effect if the executive branch refuses to obey or enforce it. | Donald Trump did not waive executive privilege: it was denied to him. In Trump Loses Big on Executive Privilege (Thursday, January 20, 2022) the Lawfare Institute says The Supreme Court Wednesday evening denied a motion by former President Trump to block the National Archive from turning White House materials to the House Select Committee on the January 6 Attack. The peculiar, four-page order, is a complicated document, but in combination with the broad and underdiscussed D.C. Circuit opinion it leaves in place, it has profound implications for Trump’s ability, and that of his allies, to make executive privilege claims in response to demands for testimony and information from the committee. On its face, the Supreme Court’s order yesterday appears to mitigate the consequences for Trump of a D.C. Circuit opinion that rejects a number of his key claims in resisting the committee. The D.C. Circuit opinion has been hanging around since early last month with little notice or discussion—probably because the Supreme Court was poised to jump in any time. But in fact, the Supreme Court action does not mitigate the matter for Trump. Put simply, the former president, whether he knows it or not, is now in a dramatically weaker position than he was only recently with respect to the committee. The new legal landscape, for example, almost certainly means that two top Trump officials—former White House Chief of Staff Mark Meadow and former top adviser Steve Bannon—can no longer argue that the privilege prevents them from cooperating with the committee. The same applies to other potential witnesses, and to the former president himself, should the committee seek his testimony. All, of course, may well continue to resist anyway—but if so, they proceed at much greater risk to themselves. | Different people have suggested different things as to what constitutes, "the unitary executive theory". The US Supreme Court is not likely to simply adopt such a theory in general terms. It will, instead, rule on a specific case that comes before it, and state the principles behind that ruling. There are a number of Supreme Court rulings saying that a President must abide by laws limiting presidential authority, perhaps the most famous is Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) in which the Court rules that the President did not have authority to seize steel mills to put a stop to a labor dispute that was allegedly endangering national security during the Korean War. Congress had passed a law providing a different method of dealing with such situations, and President Truman did not follow the method established by that law. The President has broad power over the operations of executive branch agencies, possibly including the right to order an investigation halted for whatever reasons seem good to the president. If such a case came before the courts and they supported the President, presumably they would hold that the President's actions did not constitute obstruction of justice or any other crime. I find it highly unlikely that the Supreme Court would rule that the President may "act against the rule of law", but they might rule that in particular cases the law implicitly grants the President power to take certain actions that others may not take. | There is no current authorization to bar any member of the house from the floor, so the answer depends heavily on what actually happens. Since remote voting was approved, no constituency would be disenfranchised. But we could imagine the house adopting a rule barring remote participation, and also barring entry to the House floor for any person not wearing a mask. The House is constitutionally allowed to set its own rules. The House did bar Adam Clayton Powell from being seated, and he did indeed sue. SCOTUS, most importantly, asserted that this is a justiciable question, and most importantly "In judging the qualifications of its members under Art. I, § 5, Congress is limited to the standing qualifications expressly prescribed by the Constitution". This could be overcome by expelling the member who refuses to wear a mask (Congress has the power to expel, but not exclude). There would be a significant conflict of rights in this case. Residents of the district has a right to representation (equal protection clause), but Congress has the right to expel members. But Congress has expelled 5 members, and most recently, Ohio's 17th district was without representation in the US House for a half a year after Traficant was expelled. That did not prevent the House from exercising its right to expel a member. | While I am not a lawyer, this is fairly well settled in US constitutional theory. The framers thought of impeachment is something very much like a legal process, which is shown, among other things by the procedure in the Senate being referred to in the Constitution as a "trial" and a vote to remove being described as a "conviction". The use of the term "High Crimes and Misdemeanors" also suggests a legal process. In The Federalist, Hamilton took the view that the trial was to determine "guilt or innocence", but would be inherently political.[A] But there is no supervising authority, and the Congress (and each house of it) is a very political body. Procedures for drafting and passing Articles of impeachment in the House are whatever the House chooses them to be on each particular occasion. Procedures and rules of evidence in a Senate trail are whatever the Senate chooses them to be on each occasion. There is no standard format which is binding, or even customary. Thus in practice an impeachment will be a political issue whenever the Congress treats it as one. Early in the history of the US there was an opinion among some legislators and politicians that an impeachment was simply a statement that "we want your offices to give them to better men"[B], suggesting that it be treated much like a vote of no-confidence in the UK parliament. In the impeachment of Justice Chase the Senate did not vote to convict, and this was held to establish the principle that actual wrong-doing, not mere political dispute, must be the basis of any impeachment. In the impeachments of Federal Judges, the procedure has been essentially legal, with accusations of actual crime, such as bribery or malfeasance in office, being the basis of impeachments, and Senate trials being quite similar to criminal trials. This was perhaps particularly apparent in the impeachment and trial of Justice Chase. The articles of impeachment drafted in the case of president Nixon also looked very much like an indictment for ordinary crime. The trial never took place, but discussions of its format at the tiem suggested that it would have also been somewhat like a criminal trial. But the impeachments and trials of Presidents Clinton and Trump had a much more political aspect to them. While accusations were made of actions alleged to be not just politically unacceptable but unlawful, the Senate essentially inquired not into the truth of the accusations, but into whether they were improprieties deserving of removal at all. This was essentially a political, not a legal decision, and was made in a quite partisan way in each case. The US Supreme Court has held that it has no authority to approve or disapprove the outcome of any impeachment proceeding (not does any other federal court). An "impeachable offense" is whatever the House choose to list in an Article of Impeachment, and a "removable offense" is whatever the Senate chooses to vote for removal on the basis of. Thus those preparing proposed articles or advocating them in a Senate trial will be as legalistic or political as they think the occasion demands. Notes and sources The Federalist on Impeachment [A] Essay number 65 of The Federalist (by Alexander Hamilton) begins: THE remaining powers which the plan of the convention allots to the Senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. As in the business of appointments the executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. We will, therefore, conclude this head with a view of the judicial character of the Senate. A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt. ... What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? It seems that Hamilton's ideal was that of a legal proceeding, a court, which was to determine "guilt or innocence". But he was well aware of th importance that political factors (and factions) might assume in any impeachment trial, and regarded this as inherent in the nature of such a proceeding. Most constitutional scholars seem to have followed this line of thought. Giles [B] Senator William Branch Giles, leader of the Senate forces favorable to the Administration of President Jefferson, is reported by John Quincy Adams to have said: Impeachment was not a criminal prosecution ... and a removal by impeachment was nothing more than a declaration by Congress to this effect: "You hold dangerous opinions, and if you are suffered to carry them into effect, you will work the destruction of the Union. We want your offices for the purposes of giving them to men who will fill them better." quoted from Memoirs of John Quincy Adams (J.P.Ipperncot & Co; 1874) Volume 1, page 322; quoted in Grand Inquests By Chief Justice William H. Rehnquist (William Morrow & Co; 1993) page 27 (Chapter 1) The Wikipedia article on Giles (linked above) says: Giles strongly advocated the removal of Justice Samuel Chase after his impeachment, urging the Senate to consider it as a political decision (as to whether the people of the United States should have confidence in Chase) rather than as a trial. |
Selective Enforcement vs. Equal Protection Does Selective Enforcement contradict Equal Protection? Obviously, it may be impractical for police officers to issue traffic tickets to every driver they observe exceeding the speed limit, so they may have no choice but to limit action to the most flagrant examples of reckless driving On the other hand No State shall ... deny to any person ... the equal protection of the laws so, technically, the argument that "the officer ticketed me but not this other guy driving next to me at the same speed" should cause the ticket to be thrown out (or this other guy to be immediately ticketed right then and there). Of course the judge will laugh and dismiss this argument (otherwise everyone would use it to get out of a ticket), but on what logic? Would the officer saying something like "he was also driving dangerously but I did not write him the 'reckless driving' ticket because I am nice, but I will now if that would make him happy" be a sufficient explanation for the judge? Can the defense in a criminal case point out to numerous similar un-prosecuted cases and have its own case dismissed based on the 14th amendment? Has it ever happen? E.g., Mr.X is being prosecuted for jaywalking. Defense: here is a video of Ms.A jaywalking and an officer watching and doing nothing Prosecution: we don't prosecute women for jaywalking because "a valid argument" D: here a video of Mr.B jaywalking and an officer watching and doing nothing P: Mr.B is 7 feet tall and we don't prosecute tall people for jaywalking because "a valid argument" D: here a video of Mr.C jaywalking (and he is the same height as the defendant Mr.X) and an officer watching and doing nothing P: Mr.C is wearing a blue suite and we don't prosecute blue suites for jaywalking because "a valid argument" D: here a video of Mr.D jaywalking (and he is the same height as the defendant Mr.X and is wearing a similar jacket to Mr.X's) and an officer watching and doing nothing P: Mr.D is smiling and we don't prosecute smiling people for jaywalking because "a valid argument" D: here a video of Mr.E jaywalking (and he is the same height as the defendant Mr.X and is wearing a similar jacket to Mr.X's, and is not smiling) and an officer watching and doing nothing P: Mr.E is wearing glasses and we don't prosecute people with glasses for jaywalking because "a valid argument" Wayte v. United States 470 U.S. 598 (1985) In our criminal justice system, the Government retains "broad discretion" as to whom to prosecute. [...] This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Does this mean that the courts can/will never challenge "decision to prosecute"? (Again, I am interested in theory and logic more than practicality). | A sufficient explanation would be that the ticketed driver was caught and the unticketed driver was not because the officer was already responding to a situation. Had the officer caught the unticketed driver, he would have ticketed him for the same offense. Courts would accept that it would be impossible for the officer to deal with both offenses at the same time. Selective enforcement is done properly when the prosecutor evaluates the risk verses reward of perusing a criminal prosecution against an individual based on the evidence, the nature of the crime, and the likely-hood of a conviction if it goes to trial. For example, while using illict substances is a crime, the government will usually only prosecute on that charge if they find your use while in possession with intent to sell (or in connection to another crime). In this instant, the high school stoner is not going to be as instrumental in the case as the dealer, who can lead to suppliers if he cooperates OR is removed from distributing in his territory if he does not. If the stoner is picked up on a minor offense and carrying a small amount on his person, the police might arrest him for the crime but agree to not press charges if he gives them information to who the dealer who sold him the substance is. Again, the risk here is putting a small time criminal into jail at cost of society, when society would benefit more if that cell was housing the bigger fish (a criminal record can prevent getting certain jobs, which will more likely turn stoner high schooler into jobless loser, which would be a drain on public welfare in and of itself, and that's not including the possibility that joining in drug trafficking as a seller would fix his lack of income). Conversely, in cases such as espionage, the death penalty is on the books but is rarely pursued in favor of lesser sentences. Here, the pay off is that they dangle the death penalty over the spies head unless he tells them about all his spying activities, which benefits the spy agency in filling in security gaps and potentially finding more spies. The use of lighter charges in exchange for a guilty plea is also favored as trials are costly. If a criminal pleads guilty to a crime that the government has them dead to rights for, the prosecution will reward them with lighter offenses for saving their office the price tag of a full blown trial. All this is on condition that selective enforcement is not used as a basis of discrimination, which is illegal for the prosecutors to do. | Perjury is not 'not telling the truth'. It requires (in most jurisdictions) being proven to have deliberately lied under oath. As Xavier pointed out, you are not on oath when entering a plea (among other reasons, you would be required to incriminate yourself). Secondly, "I am not guilty" could mean anything from "the prosecution wrongly think that what I did is illegal" to "this law is unconstitutional" even if the facts are not in dispute; either may be mistaken without being a lie. If the facts are in dispute, the jury will have to deliver a verdict that implies (it does not state, let alone prove) that they disbelieve one party; deliberate falsehood, whether by a defendant or a police officer, would be several steps beyond that. | It appears that Plummer v. State is still valid, but only in a very limited fact pattern. It is often quoted on the internet to justify the idea that a person may resist any unlawful arrest with force. That may have been true when Plummer was decided, and it was the clear holding of Bad Elk v. United States, 177 U.S. 529 (1900) But Bad Elk is bad law today -- the wide adoption of the Model Penal Code starting in 1962 removed the right to resist a merely unlawful arrest. The right to use self-defense against excessive force by an officer remains, but is narrowly limited, and courts rarely find such resistance justified. In State v. Mulvihill 57 N.J. 151 (1970) The Supreme Court of New Jersey held: If, in effectuating the arrest or the temporary detention, the officer employs excessive and unnecessary force, the citizen may respond or counter with the use of reasonable force to protect himself, and if in so doing the officer is injured no criminal offense has been committed. However, the Mulvihill court cautioned: State v. Koonce, 89 N.J. Super. 169 (App. Div. 1965) held that "a private citizen may not use force to resist arrest by one he knows or has good reason to believe is an authorized police officer engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances obtaining." (89 N.J. Super. at 184.) The opinion put to rest the notion that the common law rule existing in some jurisdictions, which permits a citizen to resist, even with reasonable force, an unlawful arrest by a police officer, was applicable in New Jersey. ... Accordingly, in our State when an officer makes an arrest, legal or illegal, it is the duty of the citizen to submit and, in the event the seizure is illegal, to seek recourse in the courts for the invasion of his right of freedom. The Mulvihill court explained the difference in the two csase by saying: Despite his duty to submit quietly without physical resistance to an arrest made by an officer acting in the course of his duty, even though the arrest is illegal, his right to freedom from unreasonable seizure and confinement can be protected, restored and vindicated through legal processes. However, the rule permitting reasonable resistance to excessive force of the officer, whether the arrest is lawful or unlawful, is designed to protect a person's bodily integrity and health and so permits resort to self-defense. Simply stated, the law recognizes that liberty can be restored through legal processes but life or limb cannot be repaired in a courtroom. And so it holds that the reason for outlawing resistance to an unlawful arrest and requiring disputes over its legality to be resolved in the courts has no controlling application on the right to resist an officer's excessive force. People v. Curtis, 70 Cal. 2d 347, 74 Cal. Rptr. at 719. The Mulvihill court further warned that: [A citizen] cannot use greater force in protecting himself against the officer's unlawful force than reasonably appears to be necessary. If he employs such greater force, then he becomes the aggressor and forfeits the right to claim self-defense ... Furthermore, if he knows that if he desists from his physically defensive measures and submits to arrest the officer's unlawfully excessive force would cease, the arrestee must desist or lose his privilege of self-defense. The court said that the duty to desist and submit if that would stop the excessive force is analogous to the duty to retreat rather than use force in self defense when this is feasible. The Nolo Press page "Resisting Arrest When Police Use Excessive Force" says: It’s rare that someone being placed under arrest has the right to forcefully resist. But in most states, if the arresting officer uses excessive force that could cause “great bodily harm,” the arrestee has the right to defend him or herself. That’s because most states hold that an officer’s use of excessive force amounts to assault or battery, which a victim has a right to defend against. ... An officer’s use of force is “excessive” if it is likely to result in unjustifiable great bodily harm (serious injury). Most states consider whether a “reasonable person” under the circumstances would have believed that the officer’s use of force was likely to cause great physical harm (including death). If the answer is “yes”—if a reasonable person would have felt it necessary to resist in self-defense, and if that person used a reasonable degree of force when resisting, then the resistance is typically justified. But this is a very high standard to meet, such that courts hardly ever find that an arrestee’s forceful resistance was defensible. This article from policeone.com citing California law, says that forceful resistance to an arrest is almost never justified. It does agree that resistance to excessive force can be used; Section 693 requires that even if the officer were committing a public offense (crime), only that "self-defense" force that is sufficient to prevent the offense may be used. In other words, the subject may only use force to simply stop the assault/battery under color of authority and never any more than that. and says that: It is a rare circumstance when this assault/battery under color of authority actually occurs and an officer is charged, not because of some great law enforcement driven conspiracy but because it rarely happens. In short, Plummer is still valid, but limited to the fact pattern when the person being arrested is actually being subjected to excessive force likely to cause great bodily harm, or death, and only justifies sufficient force to prevent such harm. The lawfulness of the arrest does not matter, it the the danger caused by the excess force that justifies possible resistance. As a practical matter, if resistance is likely to escalate rather than prevent harm, it is highly unwise. When Plummer is cited, often with Bad Elk, to justify resistance to an unlawful arrest because of its unlawfulness, that is no longer valid law and has not been for decades. Note that is a person who is not a law enforcement officer (LEO) but who is pretending to be one, tries to make an "arrest" this would not be an arrest at all, but an assault or an attempted abduction, and the victim would be justified in using reasonable force in self-defense, although not excessive force. This is not the Plummer rule, but the normal law of self-defense. However any arrestee should be careful. Claiming that the arresters are impersonators when they are in fact plainclothes LEOs will not go well. If a reasonable person should have known that they were LEOs, there is no right to resist unless excessive force is used. Note further that if non-LEOs attempt to make a "citizen's arrest", not impersonating officers, the right to self-defence only applies if excessive force is used, or there is a reasonable fear of excessive force likely to cause great bodily harm or death. Basically the Plummer rule still applies. Also, all of this is a matter of state law, and while Plummer should be good law in most if not all states, the exact rule may vary by state. In 2012 a few US states retained the common-law rule that any unlawful arrest justified resistance, according to the Nolo page linked above. That may have changed, or may change when a case arises. The question does not specify a state, and a precise answer depends on the specific state. | No, it is generally not legal. In most (maybe all) states, this would be vandalism. For example, see California Penal Code Section 594(1)(a): Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: (1) Defaces with graffiti or other inscribed material. (2) Damages. (3) Destroys. For another example, see Kansas Statutes 21-5813. In your hypothetical, the pedestrian absolutely hit the vehicle, not the other way around, so the "fine line" you mention doesn't effect this conclusion. The practicality of proving the case against the pedestrian is a separate matter but the law favours neither the pedestrian nor the driver. The standard is the same no matter who the charges are filed against: proof beyond a reasonable doubt. | I've contested many of my own traffic tickets in a state where traffic tickets are also considered misdemeanor criminal violations. I would appear in court before the time limit on your ticket. I'd plead not guilty, and I would not waive any rights- which means I would request a trial by jury. Under Georgia law you do have the right to a jury trial IF your ticket is not considered a petty offense. Otherwise you can have a bench trial. If your case starts in a Municipal Court and you request a jury trial, the case will be sent to the State or Superior Court of that county. Jury trials on traffic citations are rare, but it is probably a good tactic because you might be able to work out a better solution than you can in Municipal court. Once the court accepts your plea, then I would make sure the court set a pre-trial hearing. At this hearing make a motion to the judge that you would like the dash-cam video of the officer and the vehicle he stopped you in. If the prosecutor argues that it's not relevant (and they might) explain to the judge why they are relevant (the officer didn't realize exactly what intersection you were at). IMPORTANT: Introduction of your own evidence requires that you 'lay the foundation' of the evidence. This usually means that you must declare officially in court, in front of the prosecution, that your evidence (pictures you take, etc.) are taken by you, and that they are 'true and correct' representations of the location where the alleged offense took place, and that the date and time was (whatever it was). You usually must state this while under oath. OTHERWISE, the prosecution will object to your evidence most likely on the grounds of no foundation. Please read up on how to lay the foundation in either a trial or in a pre-trial setting. For something like this you might need to just present the evidence and lay your foundation at trial. So you'll need to read up on how to lay foundation and present your evidence at trial. You could get lucky and the officer won't show up at trial. So in that case I would make a motion to dismiss for lack of prosecution (you can't cross examine a witness that didn't show up) You'll get to choose jurors, etc. in a process called Voire Dire. So read up on that too. You will not be forced to testify if you don't want to (because of the constitutional right to not incriminate yourself) but if you do choose to testify, the prosecution can ask you questions). | That is not a valid assumption. Many states have laws that let you presume someone is a threat to your life if they forcibly enter your house. Simple trespass on your land does not let you reasonably presume someone is a murderer. An autonomous killer drone is not a comparison you want to make: those may be illegal entirely, and are likely to seriously hurt any claim of justifiable force. “You forfeit your right to live when you set foot on my property” is not justifiable. If the dogs are trained to be a hazard to the community, that’s an argument in favor of having them confiscated and destroyed. Dogs are not people. Under normal circumstances, they cannot be protected under self-defense or the defense of others. Those doctrines only apply when a person is in danger. Deadly force is sometimes allowed to protect property, but this tends to be strictly limited. To start with, you can only ever use force to prevent illegal damage to property. If your concern is “this animal control officer will destroy my dogs within the scope of their duty,” that’s not protecting against an illegal use of force. Deadly force in defense of property is also normally limited to particular crimes that are inherently dangerous, like arson, robbery, or burglary. Even in Texas, simple theft only justifies deadly force during the nighttime. Deadly force is also not justifiable if there were reasonable other options. Shooting an animal control officer is unlikely to be the only way to temporarily stop them from destroying a dog. Threatening violence in order to influence a judge’s decision is terrorism. This hypothetical man is a terrorist. He may well find himself on death row for murder, but he’s also going to face separate charges for terrorism. | I have bad news. California's vandalism law prohibits maliciously: defacing property with graffiti defacing property with inscribed material damaging property destroying property Chalking the sidewalk probably doesn't sound very malicious, but maliciousness includes “an intent to do a wrongful act, established either by proof or presumption of law.” So the questions is whether you intended to do a wrongful act -- meaning that you intended to do the act, which happens to be wrongful, not that you intended to act wrongfully. So unless you drew on the sidewalk accidentally, the malicious-intent requirement isn't going to help you. So then you have to ask if your conduct is described by the statute. In Mackinney v. Nielsen, the Ninth Circuit said that sidewalk chalking did not violate the law, but California has since amended the law to add the "deface with graffiti" language. I haven't seen any chalk cases since then, but another case, In re Nicholas Y., from the Second District, dealt with someone who used a marker on a window. He argued that it could be easily erased, but the court said it was still vandalism because: it "mars the surface with graffiti which must be removed in order to restore the original condition" the definition of "deface" "does not incorporate an element of permanence" "marring of the surface is no less a defacement because it is more easily removed." Given that language, I'd argue that the vandalism statute includes sidewalk chalking. But one important element here is that most sidewalks are owned or controlled by the government, so any effort to restrict "expressive conduct such as writing with chalk" (Guilliford v. Pierce County) expressive activity" there must comply with the First Amendment. The government has varying degrees of latitude on the restrictions it can impose, depending on the character of the space involved. So in a courtroom, whose function is incompatible with free-wheeling public debate, a judge can set quite a few rules about how people may speak. But sidewalks are considered a "public forum," where the government's ability to regulate speech is a lot more limited. So how does the First Amendment apply? There's a D.C. Circuit case (Mahoney v. Doe) dealing with abortion protesters who wanted to use chalk on the streets and sidewalks outside the White House. Police told them they would be arrested for violating D.C.'s defacement statute, so they brought a First Amendment challenge. The court upheld the law, saying that it satisfied all three prongs of the public-forum test: The law must be content neutral, meaning that it prohibits conduct without reference to what is being said. The Court said the defacement statute was content neutral because people could be prosecuted regardless of what they wrote or drew. The law must be narrowly tailored, meaning that it serves a significant governmental interest and does not restrict more speech than is necessary to achieve that goal. The Court said the defacement statute was narrowly tailored because it served the government's interest in maintaining the aesthetic appeal of the area in front of the White House and didn't restrict any speech that does not deface public property. The law must leave open ample alternatives for communication, meaning that even if you can't express yourself in the way restricted, you still have meaningful opportunities to express yourself. The Court said the defacement statute law allowed adequate alternatives for communication because the group could still congregate, march, speak, hold signs, and hand out leaflets. There's an interesting wrinkle there in terms of whether the interest in aesthetics is heightened because we're talking about the White House, but generally speaking, aesthetic concerns can still justify speech restrictions. So the bad news is that unchaining your inner six-year-old may subject you to criminal liability. That leaves the question of whether you want to unleash your inner teenager and do it anyway. This could help put you in a frame of mind for making the decision. | can you hire a witness as your lawyer to exclude their testimony? That is pure fiction and misleading. Unfortunately scenes like that contribute to keep people ignorant about the law, which then makes it easier for courts to dissimulate their recurrent miscarriage of justice. But Purdue University v. Wartell, 5 N.E.3d 797 (2014) is an example where the Indiana courts did the right thing, and is pertinent to your question. There, Purdue University first assigned an investigator in regard to plaintiff's grievance, and thereafter the University tried to withhold information under pretext that the investigator was also its lawyer and thus that the information was protected by the privilege. Because that person hitherto had been portrayed only as an independent investigator, the Indiana courts concluded that Purdue University was estopped from invoking the attorney-client privilege (as well as the work-product doctrine). Thus, the guy in the film or series who said to be "screwed on Kardashian" reflects pure cluelessness about how the law supposedly operates. I have not seen the plot of that film or series, but the information that the friend-lawyer obtained prior to becoming O.J.'s attorney would not be protected by the privilege because it was not obtained in preparation for O.J.'s defense. If there were one star witness on the opposing side and they happened to be a lawyer, could you simply pay them off by hiring them as your lawyer? This question is somewhat unclear to me, but I will mention that lawyers have a duty to disclose to their potential or actual client any conflict of interests. The rules of so-called "professional conduct" discourage lawyers to ignore conflict of interests in that this conflict may impair their "services". And, as I explained previously, any information that a lawyer obtains as witness rather than as attorney in the matter is not protected by the privilege. Thus, as for If you committed a crime at a law-firm and everyone who witnessed it was a lawyer, is there any rule preventing you from just hiring all of them? the answer is: Nothing prevents the criminal from hiring all of them, but that information is not protected. |
Can I use race track information in my application? I`m developing a comercial app and I'm going to include some information about racetracks to it. I'm going to use follow information: a name of racetrack, a distance of one lap, names of turns. The app isn't a game. I couldn't find any rules for using racetraks names. Some racetrack like Nürburgring belongs to commercial firms, so it names can be trademarks. What about are racetracks belong to goverments? Should I ask about licens for it? | 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. | My opinion is that the copying of a single API endpoint, "run" that takes a function as an argument is not infringement. I can think of several lines of argument that get to this same conclusion: Originality: It doesn't exhibit the modicum of creativity required by the originality test. (Feist) Short phrases doctrine: It is a short word or phrase, which both the copyright office (Copyright Office Circular, 37 CFR 202.1) and courts (e.g. Hutchins v. Zoll) have declared ineligible for copyright. Merger: The merger doctrine allows reuse of an expression if it is one of only a very few number of ways of expressing an idea. I can't think of many other ways to express a function intended to run a function other than with the verb "run". Scènes à faire: It is not infringement to use an expression if it has become standard, stock, or common in a particular setting. Naming a function "run" is common in the programming community. Any one of these alone would be enough to rule out copyright infringement by taking this individual component of Excel's API. Note: Whether merger and scènes à faire are part of the originality/copyrightability analysis or part of the infringement analysis is not uniform across circuits. For example, the 6th circuit considers both merger and scènes à faire part of the copyrightability analysis. But, the 2nd and 9th circuits treat them as part of the infringement analysis and in the 9th circuit, they are affirmative defenses. | 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. | Doing this is OK according to the GDPR and other European laws. The relevant bit is GDPRs rules for Lawfulness of processing, and in particular Article 6 (1)b, which says that it is legal to do this if processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; In your particular case, signing up for using your app is "entering into a contract" and it is the data subject who has requested to use your app that is subject to this processing. | If not, how can I keep the game's name in the app title? Pay them a licence fee. Of course, they may not be willing to licence their trademark to you or you may not be willing to pay what they ask - that’s their prerogative; you can’t force people to sell you their stuff. Hasbro’s, sorry, I mean [CROSSWORD GAME NAME] owner’s lawyers, have explained the trademark law very well and while nothing is impossible, your chance of winning a lawsuit is as close to 0 as makes no difference. Here’s another point of view about similar circumstances. If you lose you will have to change the name anyway and pay damages (everything the game has earned is typical) and, probably, [CROSSWORD GAME NAME] owner’s costs. They are offering you a really good deal in allowing you to change the name and not suing you. If I remove the game's name from my app title, I'm afraid people won't be able to find my app anymore. Tough. The fact that people are finding your app because of [CROSSWORD GAME NAME] only strengthens the case against you. How is it different from a book entitled like "Become an expert in [GAME NAME]" ? It isn’t because the publisher almost certainly paid them a licence fee. | There is ample reason to conclude that "non-commercial" would include a church, as well as advocating a political cause or candidate. The hard part of "personal". In the context of (Canadian) bankruptcy law, it can mean "non-business use"; in the context of "personal use property", it can be "A type of property that an individual does not use for business purposes or hold as an investment. In other words, property that an individual owns for personal enjoyment". US tax law takes "personal purposes" to refer to non-business purposes. But in the context of copyright (especially music downloading / copying), it is taken to refer to the use of or by an individual. Distributing free copies of a protected work does not get legally sanctioned due to the copying being non-commercial. The alternative term "private" is much clearer, in identifying "just you", but is probably avoided in this kind of context so as to avoid the wrong inference that you can only play Pokemon in the privacy of your own home. So the slightly less clear term "personal" is used instead of "private" especially in copyright-related contexts. "Personal" and "private" are not exactly the same, but when it's about use, I don't see any difference, and I think there is no question that use to attract to a church or political candidate is not "private", it is public. Since the license does not define "your own personal purposes" and there is not an existing crystal-clear definition of "personal purposes", the phrase could be given its "ordinary (plain) meaning". Of course, plain meaning has to give way to contractual intent, so we have to figure out what the parties intended. Except, you don't have a contract with Niantic, but still, plain meaning surely has some place in the law of licenses. At this point, in a lawsuit, both sides would hire an expert witness like a linguist or English teacher to make the case that a church or other non-commercial non-private use is / is not included in the meaning of "personal purpose". A silly argument could be made to the effect that if you personally have an interest in doing something then it is a personal purpose (if specifically commercial, it would be precluded by the term "noncommercial"). What makes this silly is that everybody does things for personal purposes (even acting in a way that benefits others, since you do so for the personal reason that you should do so), and thus "personal" would not mean anything. That is, "personal purposes" does not mean "whatever motivation or interest you personally have". You can also gain a certain understanding of what "personal purposes" means by looking at similar licenses. In the context of academic publishing, authors are typically granted license to copy "for personal, professional, or teaching purposes". Professional purposes and teaching purposes are things that the person has an interest in, so by mentioning these things separately, we must conclude that "teaching" is not a "personal purpose". And so: I would conclude that a court could find that using a product to support a political campaign, philosophy, or religion, is a "public" purpose, not a "personal" purpose. At the same time, at least as I understand it, a lure module is a thing that others besides yourself personally can see (I admit, I don't go), which implies that the purpose of the thing is not entirely private. In addition, there is a fair amount of buzz out there about how a lure could be good for business, which is (1) clearly in contradiction of the license terms and (2) clearly a golden opportunity for Niantic, perhaps in a few weeks after everybody gets hooked and then they will offer non-personal licenses. Their license terms also say that you will not "use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in a manner not permitted by these Terms". I would say that that definitively says "No don't do it", and it also means that you can't be nice to a neighbor. So what they literally say and what they really intend are probably completely different things. | Under GDPR Article 6 section 1(f), a lawful basis for processing is: processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. It seems that informing a data subject of the availability of a possibly better-focused related site would be a "legitimate interest", and merely doing a broad geo-locate on the IP does not seem to impact the "interests or fundamental rights and freedoms of the data subject" so it would seem this could be done without specific consent in advance. I don't know of any legal case on this specific point, however. | Building off @DigitalFire's answer, I looked into the TOS related requirements that Google Analytics puts out and I found this on Google Analytic's TOS: You will have and abide by an appropriate privacy policy and will comply with all applicable laws relating to the collection of information from visitors to Your websites. You must post a privacy policy and that policy must provide notice of your use of a cookie that collects anonymous traffic data. Apparently, Google themselves also requires you to notify users when you are using their service to track people (That's pretty good of Google). Here is a simple example of what a privacy policy would look like. There doesn't appear to be any issues with laws in other countries either. For my purposes, I'll just implement an agreement that pops up during installation that users will have to accept. |
City laws and ordinance I'm trying to find out if the city of Oklahoma has the right to tow my car out of my drive way even if it's not in running condition | Yes, it can do that. A city can constitutionally ban having an inoperable vehicle in your privately owned driveway, and can remedy a violation of its city ordinance by towing the vehicle, after providing you with the due process steps outlined in the ordinance below. The relevant municipal ordinance is as follows: ARTICLE II. - ABANDONED, WRECKED, ETC., VEHICLES § 35-36. - Definitions. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: (1) Junk vehicle means any vehicle, as defined herein, which is wrecked, dismantled, partially dismantled, inoperative, deteriorated, decayed, lacks necessary repairs or maintenance, abandoned, bearing no State license plate or bearing a State license plate that is more than three months out of date, or discarded. (2) Vehicle means a device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices designed to be moved by human power or used exclusively upon stationary rails or tracks, the term shall include, but not be limited to, automobiles, buses, motorbikes, motorcycles, motor scooters, trucks, tractors, go-carts, golf carts, boats and trailers. (3) Owner means any person, firm, or corporation having a legal or equitable interest in the property, including an officer, guardian, executor, administrator, mortgagee in possession, managing or leasing agent of such person, firm, or corporation. (4) Private property means any real property which is not public property. (5) Public property means that property which is dedicated to the public use and over which the Federal, State or municipal government or any political subdivision thereof exercises control and dominion. § 35-37. - Prohibited; nuisance declared. (a) It shall be unlawful and an offense for any person to park, store, leave, or permit the parking, storing, or leaving of any vehicle of any kind which is in an abandoned, wrecked, dismantled, inoperative, rusted, junked, or partially dismantled condition whether attended or not, upon any public or private property within the City for a period of time in excess of 72 hours. The presence of an abandoned, wrecked, dismantled, inoperative, rusted, junked or partially dismantled vehicle or parts thereof on private or public property is hereby declared a public nuisance which may be abated as such in accordance with the provisions of this article. (b) The provisions of Subsection (a) shall not apply to any vehicle enclosed within a building on private property or to any vehicle held in connection with a lawful business enterprise, and property operated in the appropriate zone, pursuant to the zoning ordinance or to any vehicle in operable condition specifically adopted or designed for operation on drag strips or raceways or any vehicle retained by the owner for antique collection purposes in a storage place in an enclosed building on private property maintained in a lawful place and manner. § 35-38. - Order of abatement. In all cases where it shall have been determined that any nuisance shall be abated, and the nuisance is not abated within the time specified in the notice, an order of abatement shall be entered by the Director or designee who shall assign a value to the vehicle and cause the vehicle or its parts to be removed and stored in a proper place for not more than 30 days. § 35-39. - Responsibility for removal. (a) Upon proper notice and opportunity to be heard, the owner of the private property on which the abandoned, wrecked, dismantled or inoperative vehicle is located, shall be responsible for its removal. In the event of removal and disposition by the City or its designee, the owner of the private property where the vehicle is located shall be liable for the expenses incurred. (b) The owner of any vehicle so removed may regain possession thereof by making application to The Department of Neighborhood Services within 30 days after its removal. The owner shall pay the designated wrecker service all reasonable costs of towing and storage liens which shall have accrued to such vehicle. If the vehicle is not reclaimed within 30 days, it may be sold without further notice from the City. § 35-40. - Notice to remove. (a) The City Manager, the Director or designee, shall give notice of removal to the owner of the private property where a nuisance as defined by this article is located. At least ten days notice shall be given to the owner of the property by mail at the address shown by the current year's tax rolls in the county treasurer's office before the City takes action. It shall constitute sufficient notice, when at the time of mailing of the notice to the property owner, the Director shall obtain a receipt of mailing from the postal service, which receipt shall indicate the date of mailing and the name and address of the mailee and if such person or entity cannot be found, then a copy of the notice may be served by posting a copy in some conspicuous place on the premises upon which the vehicle is located, at least ten days prior to any abatement action by the enforcement official. (b) The notice shall order the property owner to abate the nuisance and shall further state that unless such abatement is performed within ten days of the date of the notice, the nuisance may be abated by the City. § 35-41. - Hearing. (a) The owner may give written consent authorizing the City to abate the nuisance under Section 35-42 hereof. Such consent shall waive the right to a hearing under Subsection (c) hereof. (b) At any time within ten days from the date of the notice and order provided for in this article, the owner may request, in writing to the Director, a hearing to be conducted for the purpose of contesting the determination that a nuisance exists upon his property. The Director shall conduct such hearing as soon as may be practicable but not earlier than five days after receipt of the owner's request for such hearing, and not later than 15 days after such receipt. (c) At such hearing, such owner shall have the right to be represented by counsel, to present testimony, or evidence and arguments, and to cross examine witnesses. All testimony shall be taken under oath. If the Director, after such hearing, shall determine that the inoperative vehicle or junked vehicle constitutes a growing blight or a substantial detriment to health and safety of the residents of our community, he/she shall file, in writing, findings of fact, and order that such nuisance be abated within ten days, and shall cause such finding and order to be served upon such owner at the conclusion of the hearing. § 35-42. - Removal of motor vehicles from property. If the violation described in the notice served pursuant to this article has not been remedied within the ten-day period of compliance, or in the event that a notice requesting a hearing has not been timely filed, and the existence of the violation is affirmed by the Director, then the City Manager, Director or designee may continue to recommend prosecution of criminal charges on a daily basis for failure to abate the nuisance and/or shall have the right to take possession of the inoperative or junked vehicle and remove it from the premises. It shall be unlawful for any person to interfere, hinder, or to refuse to allow such person or persons to enter upon private property for the purpose of removing a vehicle under the provisions of this article. § 35-46. - Collection of City's costs of removal. (a) Upon the failure of the owner or occupant of property from which abandoned vehicles have been removed by the City to pay the unrecovered expense incurred by the City in such removal, the amount of the unrecovered cost may be added to the municipal utility bills of the private property from which removed and recovered in the same manner as such bills. (b) If the private property is not served by municipal utilities or if collection efforts are not successful, the cost may be certified by the City Clerk to the county treasurer of the county in which the property is located who shall add the same to the ad valorem taxes assessed against the property, until paid, and such costs shall be collected in the same manner as ad valorem taxes assessed against the property, and when collected shall be paid to the City. § 35-47. - Penalty. In addition to the procedures for removal of vehicles, any person who shall violate any of the provisions hereof shall, upon conviction, be deemed guilty of a Class "b" offense against the City. Each act in violation of any of the provisions hereof shall constitute a separate offense and may be chargeable as such. Each day's continued violation of any of the provisions hereof shall constitute a separate offense and may be chargeable as such. This statute has stayed on the books for roughly fifty years without being struck down for being illegal or unconstitutional, and many municipalities have similar ordinances. | Very few terms have a single "legal" definition or meaning that applies to all laws, and can be looked up as if in a dictionary. Rather, when a specific meaning is needed in connection with a particular law, that law will include a definition. But that definition will often not apply to the use of the same term in other laws or other contexts. Here I suspect that the OP has found the definition section of a US Federal law regulating commercial transport in interstate commerce. Obviously in such a law, those terms would be defined in the context of commercial transport. That does not mean that the same meanings will be applied in other laws. Driver's licenses and other traffic and motor vehicle regulations are largely matters of state law in the US. Definitions from a federal law, or indeed any law but that state's Motor Vehicle Code (or whatever a given state calls such a body of law) will simply not be relevant. The argument sketched in the question simply does not follow. | A "police car" doesn't necessarily have a special legal status, so a police officer can theoretically drive a beat-up pickup truck and "be legal" (but not in Washington, see below). What matters is whether others have to give special attention to the vehicle. The pertinent question is, what are the requirements for being an authorized emergency vehicle. I'll give you Washington state law, and you can apply this to other states fairly easily. RCW 46.37.190(1) mandates that Every authorized emergency vehicle shall, in addition to any other equipment and distinctive marking required by this chapter, be equipped with at least one lamp capable of displaying a red light visible from at least five hundred feet in normal sunlight and a siren capable of giving an audible signal. (3) Vehicles operated by public agencies whose law enforcement duties include the authority to stop and detain motor vehicles on the public highways of the state may be equipped with a siren and lights of a color and type designated by the state patrol for that purpose. The state patrol may prohibit the use of these sirens and lights on vehicles other than the vehicles described in this subsection. Given these restrictions, a driver knows whether they must get out of the way, and whether they have to "pull over" (stop driving and get ready for a brief traffic detention). The manner of attachment of "stuff" on the outside of the vehicle falls under general state patrol safety rules, whereby for example you can't balance a rocking chair on the roof and speed down the highway. The state patrol has reasonable discretion to deem that a particular mode of attachment is "unsafe" – this won't be like building-code minutia. Duck tape would probably be deemed to be an insecure means of attachment. There can be some statutory provisions regarding use of private vehicles, for example RCW 46.37.185 allows green lights on firefighter's private care: Firefighters, when approved by the chief of their respective service, shall be authorized to use a green light on the front of their private cars when on emergency duty only. Such green light shall be visible for a distance of two hundred feet under normal atmospheric conditions and shall be of a type and mounting approved by the Washington state patrol. The use of the green light shall only be for the purpose of identification and the operator of a vehicle so equipped shall not be entitled to any of the privileges provided in RCW 46.61.035 for the operators of authorized emergency vehicles. Flashing blue lights are prohibited by WAC 204-21-230(c)(4) "other than a law enforcement vehicle as defined in WAC 204-21-020", which is "a publicly owned or leased vehicle operated by a law enforcement agency and which is used for the law enforcement functions of the agency". That means that in Washington, the town sheriff cannot use his personal car as a law enforcement vehicle. I expect there to be some variation on that point across the US. The lights-and-sirens law is what keeps ordinary people from putting lights and sirens on their vehicles. | Ask the local government to enforce the littering ordinances against customers. But, if the trash is put in trash cans and blows out, there is little that you can do legally. In the law there are some bad things that happen for which someone is legally responsible due to their fault or circumstances, but there are many bad things that fall in the category of "shit happens" and for the most part, this is one of them. | The only really authoritative source of answers is a court interpreting the laws on an as applied basis (and there are many U.S. traffic laws, one in every state and sometimes additional local ones, not a single U.S. traffic law). An answer from a government official or police department is not authoritative, although it may be informative of how the official in question would enforce the law. | No, it is generally not legal. In most (maybe all) states, this would be vandalism. For example, see California Penal Code Section 594(1)(a): Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: (1) Defaces with graffiti or other inscribed material. (2) Damages. (3) Destroys. For another example, see Kansas Statutes 21-5813. In your hypothetical, the pedestrian absolutely hit the vehicle, not the other way around, so the "fine line" you mention doesn't effect this conclusion. The practicality of proving the case against the pedestrian is a separate matter but the law favours neither the pedestrian nor the driver. The standard is the same no matter who the charges are filed against: proof beyond a reasonable doubt. | I am not a lawyer, I am not your lawyer, I am unfamiliar with the jurisdiction I demand you give me your hat! You're not going to, are you? The point of that is that you are not obliged to do anything just because someone demands that you do. Now, if I had a court order that required you to give me your hat ... It appears that there is some confusion over who owns some land in Nebraska. This is a problem; it is not your problem. From my understanding which is entirely based on this: A warranty deed is a type of deed where the grantor (seller) guarantees that he or she holds clear title to a piece of real estate and has a right to sell it to the grantee (buyer). you would be extremely unwise to sign such a deed since it is in no way clear that you (or anyone) does have clear title. Now I take it that you are not interested in owning land in Nebraska and even less interested in getting into a legal battle over it. If that is the case then I suggest that you consult a local lawyer and ask for his advice on the following plan of action: You and your wife will renounce any claim that you may have if: You do not guarantee that you have any claim or title, The person to whom you are making this grant indemnifies you against any legal action that may result, They will prepare the documents, Your lawyer will review them, They will reimburse you for your lawyer's fees. Come back and tell us how this works out. Edit to address subsequent questions Can you be responsible for costs? Well, anything is possible but it would be extremely unlikely. If there was any wrongdoing it was many years ago by someone else! If you approach this in a reasonable way and attempt to assist in reaching a resolution (so long as it doesn't cost you time or money) then it is highly unlikely a court would award costs against you. What about background checks? This would be a civil case. It would not appear in your criminal history. While it is a matter of public record all it really means is that you and someone else had a dispute that required a court to settle; happens all the time. | 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) |
state statute violate 4th If ny state vehicle statute declares it to be a misdemeanor for failing to update ones home address marked on the drivers license, punishable up to 250 dollar fine and or 15 days imprisonment, after more than 10 days of address change- does it violate the federal 4th amendment against unreasonable search or seizure of one's person. It seems that to me if it weren't for the fact that one takes physical action to acquire the drivers license it would be in contradiction to the 4th amenent. So if say this law applied for non drivers license, requiring one to have a valid ID, as well as current address, then this would be in violation, as given no other premises than the existence of a person and no further physical action a person would automatically be in violation and thus in plainest assumptions a person is not protected from seizure. I understand that though the Constitution is a legal document, it's wording should be able to correctly navigate law given basic reasoning and logical rules that the layman can use. | Since there is no search or seizure involved in having a driver's license, requiring a person to update their address is not a violation of the 4th Amendment. It is also not "testifying against oneself in a criminal case", so it does not violate the 5th. As has been repeated many times, driving is a privilege and not a right, meaning that there is no fundamental constitutional right to drive. Strict scrutiny would not render the requirement to have a license unconstitutional, and it certainly would not invalidate the requirement to give a correct address and update that address as necessary. There may be issues regarding a requirement to produce identification, but there is no legal precedent for the idea that an ID law law and a federal "must show" statute would violate the 4th (that is not to say that the courts could not find there is such a basis if the question arises, but it has not yet been found). Since there is no national ID law, one can only conjecture what the outcome of judicial review would be, but if such a law survived strict scrutiny, it would be inconceivable that a portion of the law requiring you to keep your address current would fail such scrutiny. A curiosity search would still be barred. | The question is oddly phrased: The law does not give allowances for its violation. Many laws have exceptions. E.g., the law against killing endangered animals contains an exception for defensive killings. Perhaps you are thinking of safe harbors? For example, there are general provisions in the law like "exigent circumstances" that allow police to proceed with actions that, absent those provisions, would constitute violations of law. "Permission" to violate a right can be granted explicitly in the form of a warrant, which allows law enforcement to "violate" specific property and freedom rights. Finally, one might consider an executive pardon or jury-nullification to be ex post "permission to break the law." | 1-3: This would be prohibited under Article VI, paragraph 2 of the US Constitution, which provides that federal law, and the ability to enforce that law, has supremacy over state law. As summarized by Cornell Law, the Supremacy Clause: establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions. It prohibits states from interfering with the federal government's exercise of its constitutional powers... 4: Not legally; see above. 5: Yes, probably a lot of laws. Those charges could range anywhere from interfering with a federal investigation, wrongful imprisonment, assault, or kidnapping. I think it's important to point out that it is highly unlikely the situation would ever escalate to 4, let alone 5. The federal government is incredibly well resourced with regards to being able to move its law enforcement officers throughout the country. And that's not withstanding that the FBI and other agencies (CBP, TSA) are already stationed in any particular state. A non-zero number of those agents are also residents of the state they're stationed in, which would complicate things further. | 2201.4 Upon a roadway so designated for one-way traffic, a vehicle shall be driven only in the direction designated at all or such times as shall be indicated by official traffic control devices. I'm failing to see the "... except when pulling over for the police" subclause. Equally there is no "... unless you think you should" subclause. If you choose to have a hearing the evidence will show unambiguously that you drove the wrong way in a one way street and you will testify as to your reasons for doing so. For you to avoid the violation you would need to convince the examiner that a) you are telling the truth and b) that your mindset is in any way relevant. Unless the officer clearly directed you to pull into that spot, the decision to do so appears to be yours. I'd pay the fine if it was me. | There is no basis for the view that requiring a driver's license is unconstitutional. First, it's critical to realize that a right to travel has nothing whatsoever to do with licensing drivers. A right to travel does not in any way mean there's a right to travel in a particular way. Likewise, using a car does not mean you're traveling. Schactman is about the right to obtain a passport, which is a requirement to travel overseas. Kent is likewise about international travel. Freedom of movement means the government cannot, without good cause (like being on parole), prevent you from traveling within the US, living where you choose, or working where you choose. Likewise, there's a right to international travel that means that without good cause, the government can't stop you from leaving the US or re-entering if you're a citizen. Requiring a drivers license to use public roads doesn't stop you from doing that -- there are other ways to travel. The Thompson v. Smith decision explicitly supports the idea that requiring drivers licenses is allowed. To quote a more representative section from the case: STREETS AND HIGHWAYS -- Right of Citizen of Travel and Transport Property -- Use of Ordinary Vehicles. -- The right of a citizen to travel upon the public highways and to transport his property thereon in the ordinary course of life and business is a common right which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety. It includes the right in so doing to use the ordinary and usual conveyances of the day. This right is not a mere privilege which a city may permit or prohibit at will. STREETS AND HIGHWAYS -- Right of Citizen to Travel and Transport Property -- Use of Ordinary Vehicles -- Police Power. -- The right of a citizen to travel and transport property and to use the ordinary and usual conveyances of the day may, under the police power, be regulated by the city in the interest of public safety and welfare; but the city may not arbitrarily or unreasonably prohibit or restrict it, nor may it permit one to exercise it and refuse to permit another of like qualifications, under like conditions and circumstances, to exercise it. AUTOMOBILES -- Drivers' Permits -- Arbitrary Revocation. -- The regulation of the exercise of the right to drive a private automobile on the streets of the city may be accomplished in part by the city by granting, refusing, and revoking under rules of general application permits to drive an automobile on its streets; but such permits may not be arbitrarily refused or revoked, or permitted to be held by some and refused to others of like qualifications, under like circumstances and conditions. While Chicago Motor Coach doesn't seem to be available online, searching it finds other sites stating that the real issue was a commercial operator licensed by the State of Illinois, and whether Chicago, as a municipality within Illinois, could require them to also be permitted by the city. Another line from it seems to be "Even the Legislature has no power to deny to a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with the public interest and convenience." To quote more recent precedent, Miller v. Reed from the 9th Circuit (a federal court of appeals, not a state court) states that The plaintiff's argument that the right to operate a motor vehicle is fundamental because of its relation to the fundamental right of interstate travel is utterly frivolous. The plaintiff is not being prevented from traveling interstate by public transportation, by common carrier, or in a motor vehicle driven by someone with a license to drive it. What is at issue here is not his right to travel interstate, but his right to operate a motor vehicle on the public highways, and we have no hesitation in holding that this is not a fundamental right. (incidentally: Drivers licenses are not required by federal law. They are required by state laws.) | Very few terms have a single "legal" definition or meaning that applies to all laws, and can be looked up as if in a dictionary. Rather, when a specific meaning is needed in connection with a particular law, that law will include a definition. But that definition will often not apply to the use of the same term in other laws or other contexts. Here I suspect that the OP has found the definition section of a US Federal law regulating commercial transport in interstate commerce. Obviously in such a law, those terms would be defined in the context of commercial transport. That does not mean that the same meanings will be applied in other laws. Driver's licenses and other traffic and motor vehicle regulations are largely matters of state law in the US. Definitions from a federal law, or indeed any law but that state's Motor Vehicle Code (or whatever a given state calls such a body of law) will simply not be relevant. The argument sketched in the question simply does not follow. | According to Virginia law, Every person convicted of reckless driving under the provisions of this article is guilty of a Class 1 misdemeanor. That speed easily qualifies as reckless driving: A person shall be guilty of reckless driving who drives a motor vehicle on the highways in the Commonwealth (i) at a speed of twenty miles per hour or more in excess of the applicable maximum speed limit or (ii) in excess of eighty miles per hour regardless of the applicable maximum speed limit. The punishment for a class 1 misdemeanor is "confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both." But wait! An airplane is heavy, so this may also apply: If it is found by the judge of a court of proper jurisdiction that the violation of any provision of this title (i) was a serious traffic violation as defined in § 46.2-341.20 and (ii) that such violation was committed while operating a vehicle or combination of vehicles used to transport property that either: (a) has a gross vehicle weight rating of 26,001 or more pounds or (b) has a gross combination weight rating of 26,001 or more pounds inclusive of a towed vehicle with a gross vehicle weight rating of more than 10,000 pounds, the judge may assess, in addition to any other penalty assessed, a further monetary penalty not exceeding $500. By the way, I couldn't find a general reckless endangerment statute (unrelated to specific objects like firearms or specific results like injury or death) in Virginia law. The closest thing I could find was disorderly conduct, which is also a class 1 misdemeanor. It's possible I just don't know where to look. | For starters, you can't "use the antitheft law" because you are not a criminal prosecutor. I'm not sure that the criminal statute would support a civil action for replevin, at least until you've paid all the fees that the towing company is explicitly authorized to charge and they still refuse to release the vehicle. And if that was the case, you wouldn't need the criminal statute — the title to your vehicle should be sufficient. See Baltimore County Code (2003) §18-2-203 for the police department's authority to remove and store cars with expired registration "by contract." See also §§ 21-16-111.1 et seq. and §§21-16-123 et seq. regarding police initiated towing and licensing of towing companies. The latter set of statutes and the fee schedule fixed by the county are available here. |
Annexation and becoming US president Imagine I was born in country X at xxxx. At xxxx+20 years country X is annexed to the United States. (Freely or forcefully) At xxxx+40 years I am elected to be the next president of the United States. Can I legally be elected? | At the time of annexation of country X someone would have to decide the status of the countries citizens: If all citizens of X are now citizens of the USA, and whether they are legally citizens from the date of annexation or since they were citizens of X, and if they are considered residents in the USA since the day they became residents of X, and if they are retrospectively "born in the USA" if they were born in X. And other things, like whether non-citizen legal residents of X are now non-citizen legal residents of the USA. That has to be decided for many reasons, and the answer to your question follows naturally from this. Maybe you could check on a history site if anyone knows how this worked with Hawaii. | Why has this never been interpreted by SCOTUS? It has never been interpreted by any court, because the interpretation you're advocating is nonsensical, and nobody has ever tried to advance it in any court. Therefore, no court has had an opportunity to rule on it. Congress, however, has (at least implicitly) interpreted this clause to mean that all natural-born citizens are eligible to be president if they also fulfill the other requirements, regardless of when they were born, so that is the prevailing interpretation unless someone manages to challenge the interpretation either before congress or in a court. If such a challenge is made then there will be an explicit ruling. | There are two models for citizenship, by location of birth and by the nationality of the parent. The US chiefly follows the first model, which is why only your grandma's father is American, and your grandma is not. By the same logic, you are not. Countries like Spain are far more lenient, and do allow you to request Spanish citizenship if you can show any of your direct ancestors are Spanish. That's possible because each country can make its own laws within reason. The international norm is that everybody should get at least a citizenship at birth; statelessness should not happen. | I was initially going to vote to close this as a political rather than a legal question, however, I think there is scope for separating out the two dimensions. Our society makes a distinction between children and adults by giving them different legal rights, obligations and protections. If you think about it, there are a lot of things beyond sexual activity where the law does this: voting, drinking, military service, compulsory schooling, legal culpability etc. What things are subject to legal restriction is a political distinction. Now, there is no reason politically why these laws could not have been drafted to say "children can do this, adults can do that" and leave it to the courts to decide who is a "child" and who is an "adult". Biologically and emotionally people reach maturity at different ages so this is perfectly sensible. It might even be more just. However, justice is only one thing that we require of our legal system. Among the others are certainty and efficiency. Providing a bright line based on birth date gives certainty. Not requiring the court to deal with this on a case-by-case basis increases efficiency - justice is not free. This is why jurisdictions use age as a proxy for adulthood. As to why they choose any particular age, that is a political question. | Nobody so far has discussed Electoral law e.g. Representation of the People Act 1983 There are various clauses that may be relevant, one of which is: A voter shall be guilty of bribery if before or during an election he directly or indirectly by himself or by any other person on his behalf receives, agrees, or contracts for any money, gift, loan or valuable consideration, office, place or employment for himself or for any other person for voting or agreeing to vote or for refraining or agreeing to refrain from voting. Subsection 2 similarly makes it an offence to offer employment to induce any voter to vote or refrain from voting but somewhat less concisely. I believe this would make such a contract unenforceable. | At least one such person was naturalized, according to Wikipedia, in 1868, a time at which I believe naturalization was conferred by district court judges. Although this doesn't perhaps constitute a court case, as asked by the question, it does show that formerly enslaved people who has been born outside the United States were not automatically granted US citizenship. Wikipedia says: Although native-born American former slaves became citizens upon the passage of the Fourteenth Amendment to the United States Constitution in July 1868, this change in status did not apply to the members of the Clotilda group, who were foreign-born. Cudjo Kazoola Lewis became a naturalized American citizen on October 24, 1868. The passage cites Dreams of Africa in Alabama: The Slave Ship Clotilda and the Story of the Last Africans Brought to America by Sylviane A. Diouf | What could be the consequences of this wedding? They would be married For example, if they break up and end their PACS in France, would they still be officially married in the USA? Yes, and also in France. And if after that they marry other partners, could this be a problem for them when applying for an American visa? Yes, bigamy is illegal in both the USA and France. Does France and the USA exchange information on wedding of foreign citizens on their soil? Don't know, probably not. Could they even end up being officially married in France even without doing any paperwork themselves? Most definitely. France recognises US marriages so they would be married in France (and the U.K., and Australia, and Germany, and ...). This is true even if the French government doesn't know they are married. | Can I choose to not register my child as a US citizen? No. Your child will be a US citizen regardless of whether you register anything, and (unless you have spent less than 5 years in the US, or less than 2 years after you turned 14) regardless of the place of birth, because (in that case) even if the child is born outside the US he or she will be a US citizen under 8 USC 1401(g). Can I register them with an 18yoa deadline for them to choose citizenship? No. Your child probably (depending on your wife's citizenship, and assuming birth in the US) will be a dual citizen from birth without the need or the ability to choose. On turning 18, the child will be able to renounce either citizenship, but will not be required to renounce US citizenship and will probably not be required to renounce the other citizenship either. (I am not familiar with all EU countries' citizenship laws, so the law of that country might have a requirement to choose, but there is no such requirement in the countries whose laws I am familiar with. If the other country is the Netherlands, the child will risk losing Dutch citizenship on turning 28 unless he or she takes steps to avoid that or unless the law changes.) As pointed out in a comment on Putvi's answer, if you successfully avoid letting the US know about your child's birth, you would be in the awkward position of needing to get a visa for the child if you ever want the child to leave and reenter the country. Otherwise, the child would be an illegal alien in the eyes of the US (this assumes you've managed to hide the child's place of birth). There is no process available to get visas in the US for (non-diplomatic) children born in the US, of course, because such children are citizens of the US. |
Copying an existing HTML page and use it, is that against any copyright law? I found an online calculator that determines certain parameters I need. However, that calculator can be improved and more information added. I have improved it and now I want to make it public on my new website, however, I don't know anything about online copyright as this is my first attempt to do something similar. I have copied the HTML page and javascript and customized it to make it better. On the original online calculator and downloaded files, there isn't any copyright claim. Does it mean I have the right to use these newly modified files and publish the improved calculator on my website? | There doesn't need to be any copyright claim for there to be copyright protection. The protection is given automatically whenever someone authors a work. If you make money off of your improved version, the owner of the page may sue you for royalties. The only way to avoid this is to ask him for permission, or to create your page without using any of the source code of the original page. | This may well be infringement, but I agree that you should start by reaching out to the instructor. You don't want to pay a lawyer if the matter can be be adjusted peacefully. In the US there is a special limited exemption to copyright for "use in classroom instruction" which might apply in such a case. I am not sure if there is a similar provision in Canadian copyright law. But the instructor is likely to change his practice if you notify him of your objection, even if he has the technical right to use the photo. At least it is worth finding out. If he won't, then you can always consult a lawyer. | Content posted to the web is usually openly accessible to all (unless protected by a password, paywall, or similar restriction). But that does not mean it is freely copyable by all. Such content is protected by copyright in just the same way as if it had been published in a book of essays by various contributors. Unless the copyright holders (who are likely to be the original authors, but might not be) give permission, or an exception to copyright applies, copying such content would be clear and obvious copyright infringement, and any copyright holder could sue for damages. Permission could be given by publishing the content under a permissive license, such as a CC-BY-SA license, or any of many other available permissive licenses. Or a would-be reuser could find the copyright holders and ask for permission. If the holder cannot be found or identified, or does not respond, then no permission has been granted. In the US the main exception to copyright is fair use. See this answer and other threads with the fair-use tag here for more on fair use. Since the question seems to contemplate using the whole of the posted content, since it might well damage any potential market for that content, and since the use does not seem to be "transformative", nor used for criticism or comment, a finding of fair use for this situation seems unlikely. But Fair use findings are very much fact-driven, and the exact facts do matter. Thus I cannot be at all sure whether a court would find this toi be fair use or not. In other countries there are a variety of exceptions to copyright, and I have not come close to reviewing them all. But none of the ones I know of seem to apply to the situation described in the question. Many are narrower than the US concept of fair use. I fear that without permission, copying this content would be infringement. However, it would not be infringement to create a site that includes a link to the existing content, and a summary or description of that content, along with new content, including comments on the old, with brief quotes to indicate what is being commented on. | Yes So far so good. This is a copyright violation but it is probably fair use - certainly there is case law permitting a copy of a backup digital asset to be made so I don’t see why a similar argument wouldn’t work with backing up a physical book. Clear copyright violation. Alice can rent out the original under the first sale doctrine but the ‘backup’ is not so protected. It’s not fair use because it’s use is commercial, the work is a type of work the author expects to profit from, the entire work has been copied and the use is deleterious to the market i.e. the renters are less likely to buy an original - it falls foul of all four factors of the fair use test. | No. The images are copyrighted, and you are using them in a way that would leave you with virtually no argument for fair use. The factors for fair use are set out in 17 USC 107, and they indicate that the courts would reject your use: The purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes: There's no indication that your use would be for nonprofit or educational purposes. The nature of the copyrighted work: Works of fiction and art are highly creative works at the heart of the policy for copyright protection. The amount of the portion used in relation to the copyrighted work as a whole: You are apparently copying entire images, though I suppose you could argue that each image is just one small portion of a larger book or website. The effect of the use upon the potential market for or value of the copyrighted work: You are trying to create a board game, putting yourselves basically in direct competition with the makers of D&D. I generally prefer a pretty liberal interpretation of what constitutes fair use, but this just has virtually nothing that would make me comfortable arguing in your favor. | Whoever "derived" the illegal derivative work most likely has copyright in his derivations, unless they are not worth copyright protections. Say I take the Harry Potter books and add a few chapters and try to sell it - that's copyright infringement of course, but I have the copyright on these additional chapters. However, I don't have the right to allow you to copy the derived work. And even if you have the right to copy the original work, you don't have the right to copy the derived work because it is a different work. I could extract my changes, and allow you to take them and do with them what you like. You could then create an illegally derived work yourself. I couldn't sue you, but the original copyright holder could. To the comments: One, a work and a derivative of the work are not the same, so even if you have the right to make a copy of a work, that doesn’t give you any right whatsoever to copy a derivative work - they are not the same work. Two, the copyright holder has the exclusive right to control copying and the creation of derivative works. If the copyright holder doesn’t want derivatives to exist, then creating them, copying them etc. is always copyright infringement. | is contract text itself subject to copyright? What are my options? It largely depends on the originality of your contract. C & J Management Corp. v. Anderson, 707 F.Supp.2d 858, 862 (2009) points to multiple references against preclusion of "a copyrightable interest in a contract". But you would need to prove that your competitor copied "original elements" of your contract including "a minimum degree of creativity and originality required to support a valid copyright". See Donald v. Uarco Business Forms, 478 F.2d 764, 766 (1973). Your post provides no information that would help identifying or ruling out this issue in your matter. Without realizing, you might have paid dearly for boilerplate language that your lawyer copied from somewhere else. Indeed, there is so much regurgitation and copy/pasting in the legal "profession" (judges included, as is notorious in judicial opinions they release and in the similarities --verbatim-- among the procedure law of many, many U.S. jurisdictions). That regurgitation is not bad in and of itself, though, since what matters is the expeditious administration of justice and the protection of your rights, rather than obtaining creative expressions authored by some lawyer. You might end up wasting valuable energy and money if you went after the competitor for something like this without first assessing the extent of originality in your contract. Focus instead on the much more detrimental fact that your competitor "plays dirty in general". | The following answer is based on US-law. I am not a lawyer; this is not legal advice. If the book you read is in the public domain* you should be fine. Otherwise what you are doing is copyright infringement and probably not protected by fair use**. One of the rights granted to copyright holders is to control derivative works, and transference to different mediums, which is what your recordings would be. Under US law, whether an instance of copyright infringement is fair use is evaluated on a case-by-case basis, weighing four points: the purpose and character of one's use the nature of the copyrighted work what amount and proportion of the whole work was taken the effect of the use upon the potential market for, or value of the copyrighted work In my non-lawyer evaluation, point 1 depends on what you do in your video (unless you monetize your Youtube video, in which case it is likely to be decided against you), but if you are merely reading the book out aloud, it is unlikely to be in your favor (although it may not be against you as an "educational tool"). Point 2 depends on what is being read, with a informative work (e.g. a textbook) being more likely to be fair use than a creative work (e.g. a novel). Point 3 depends on how much and what proportion of a work you use; since you are presumably reading a whole book, this would most likely be ruled against you. Point 4 would almost certainly be decided against you, as you are essentially creating an unauthorized audiobook. In summary, you can read a book aloud. You can record your reading of it for your personal use. You should NOT upload it to Youtube, or other sharing sites. *Note that different countries have differing rules on when a book enters the public domain, and since the internet crosses borders, multiple rule sets may apply. |
Is it legal to pay a ransom? While kidnapping and extortion are illegal, is it legal to pay such criminals for the release of the person or thing being held? Are there particular circumstances of the payer or payee that make it legal in some circumstances and illegal in others? | In the UK, broadly speaking it is not illegal to pay a ransom. However, there may be circumstances such that arranging or paying a ransom constitutes a terrorist financing offence - although a prosecution might be deemed against the public interest. I'm not aware of any such prosecutions. Section 15 (3) of the Terrorism Act 2000 makes it an offence for a person to provide money or other property if he knows or has reasonable cause to suspect will or may be used for the purposes of terrorism. Section 17 makes it an offence for a person to enter into or become concerned in an arrangement as a result of which money or other property is made available or is to be made available to another, and the person knows or has reasonable cause to suspect that it will or may be used for the purposes of terrorism. Section 17A makes it an offence for an insurer to make a payment under an insurance contract against kidnapping and ransom if he knows or has reasonable cause to suspect that the money or other property has been, or is to be, handed over in response to a terrorist demand. Section 18 makes it an offence for someone to enter into or become concerned in an in an arrangement which facilitates the retention or control by or on behalf of another person of terrorist property. If a person becomes aware in the course of his trade, profession or business (e.g. the banker assembling the money) that someone may be arranging a ransom to pay a terrorist, section 19 makes it an offence for that person to not disclose to a constable as soon as reasonably practicable his belief or suspicion and the information on which it is based. In terms of maritime piracy kidnappings in the area of Somalia for example, although the Government has tried to link them to terrorism there is no direct evidence of systematic links. But if it became known that such a connection exists, then the knowledge or suspicion element of the terrorist financing offences might be provable. In Masefield AG v Amlin Corporate Member [2011] EWCA Civ 24 (a case partly about whether ransom payments by shipowners to pirates were as a matter of English law against public policy) the Court of Appeal was not aware of illegality in the payment of ransoms under international law. The UK Government supported the adoption of UN Security Council Resolution 2133 in January 2014, which among other things "Calls upon all Member States to prevent terrorists from benefiting directly or indirectly from ransom payments or from political concessions and to secure the safe release of hostages". | Yes When you enter the jurisdiction of a country, you are subject to its laws. You are not, in general, subject to punishment for things you did before you entered its jurisdiction but if possession of bitcoin (or anything else) is illegal in that country, then possessing that thing makes you subject to prosecution. | The section you quote as clearly saying a thing is not clearly saying the thing. However: you cannot pass on or resell any license keys seems to say a thing clearly. However, one could argue that it's the sharer of the account who is in the wrong, and not the person receiving and passing on the account. I'd say that that piece of the agreement, combined with this: must not... let other people get access to anything we've made in a way that is unfair or unreasonable says that, yes, they are out of bounds. | When a person unlawfully kills someone else they have committed a crime against the state (murder, manslaughter etc.) and a civil wrong (a tort) against the victim (specifically, the tort of wrongful death). The state responds with charging the perpetrator with a crime and attempting to prove that they did the deed "beyond reasonable doubt". If convicted the criminal is "punished" by incarceration or death or a fine or community service etc. The victim (through their estate) or other affected people (family, dependents etc.) can respond by suing the perpetrator for compensation (money) for the damage they caused. If the plaintiff proves their case "on the balance of probabilities" the perpetrator will owe the plaintiffs whatever damages the court awards. There are many crime/tort mirrors (many have the same name): theft and conversion, trespass and trespass, fraud and fraud, kidnapping and false imprisonment etc. Because of the different threshold of proof between criminal and civil liability, it is much easier to win a civil case. | 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). | What are our possibilities here? You could be sued for damages in Mexico, the country of origin of the copyright or any of the other signatories of the Berne Convention. You could also be charged with a criminal offence but that is less likely. how much can we get away with? Not a legal question. What you are proposing is illegal - how likely your getaway plan is to work is not for me to say. Is there any advantage on us being on México? No Is there any advantage on picking any either Dragon Ball or League of legends because of the country they are in? No Can they stop us from doing it? Yes | I don't know precisely what the default rate is, but I represented a bail bondsman for several years so I do have a good sense of the economics of that business. Basically, bail bond business make very little profit after their expenses (rent, payroll, licensing, cost of use of money put up as bonds, etc.) on the non-refundable fees that they charge for the bonds themselves (typically about 10% of the bond amount although prices vary on a case by case basis). Additional fees are charged for security measures taken by the bail bond company to insure the client's attendance such as ankle bracelets or fees paid to bounty hunters to recover the client if he absconds. The profits come almost entirely from seizing collateral (often motor vehicles, firearms and homes) that someone paying for a bond pledges in the event that the bail bond is forfeited, for example, because the criminal defend absconds rather than appearing at a hearing or trial, in addition to the non-refundable fee charged to provide the bond in the first place. (It is a bit like movie theaters which break even on their movie ticket revenues and make their profits by selling food and drinks.) A typical bail bond business owner will sell the motor vehicles and firearms pledged as collateral to pawn brokers and independent used car sales lots, and will keep the (typically very bottom of the market) real estate and rent it to low income tenants. In other words, most bail bond company owners eventually build wealth by becoming slum lords with real estate pledges as collateral for bonds that go bad. Another revenue stream for a bail bond business is bounty hunter work, partially for their own absconded clients which can result in a partial or full restoration of the funds provided by the bail bond company that often does not result in a refund to the client whose collateral was seized as a result of the default, and sometimes for other wanted felons upon whom law enforcement has placed a bounty because they are not set up to recover the subject of some of their outstanding warrants in an economically viable way. Usually, bounty hunting one's own absconding clients is more profitable than chasing reward money from law enforcement agencies for other people subject to arrest warrants. Default rates are ultimately a function of how selective a bail bond company is about the clients for whom it posts bonds and about how closely the company supervises the client who is out on bond to make sure that he (or she) complies with his (or her) pre-trial release order terms. But, even if the client absconds and the bail posted by the bail bond company is forfeited and can't be recovered within any applicable grace period, the bail bond company can still avoid losses by having collateral securing the risk of a forfeiture of the bond that is worth significantly more that the amount of the bond posted by the bail bond company. As a typical bail bond company website (which sounds more clear than it is when you really try to pin down what they are saying and for what it is worth is not my former client's website) explains: Most of the time bail collateral takes the form of property. If the court is collecting on a property-based bail collateral because of a failure to appear in court, it typically involves the seizure and sale of the individual’s home. Property bail takes weeks to collect on, and equity in the estate being sold must be determined to equal at least 150% of what is owed the court. Collateral will be returned when the case is completed, whether the the person is found innocent, the charges are dropped, the person is sentenced or bail is exonerated. If the individual for whom the bail collateral was offered fails to appear in court at the agreed upon time and date, the collateral will be seized or collected by the court or the bail bond company. The full amount of the collateral may not be returned to the individual if a premium has been put in place when using a bail bond agent. This premium is negotiated between the bail agent and the arrested party or person bailing the arrested person out. Bail collateral will typically be returned within five business days after the individual has paid off all financial obligations and their case has been concluded. Until this happens a bail bond agent can hold the bail collateral. A financial website explains the situation this way: When a defendant uses a bail bond agent to post bail, the defendant must pay the bondsman’s fee, and may also have to hand over collateral or sign a security agreement. Should the defendant comply with bond conditions, the bond agent will return the collateral or release the lien created by the security agreement upon the conclusion of the case. However, the bond agent’s fee (the 10% to 15% of the total bail amount) is not returned no matter the outcome. Bond Forfeiture and Bounty Hunters Should a defendant who used a bond agent’s services fail to appear in court or otherwise violate bail terms, the agent can usually try to find the defendant, take that person into custody, and physically take the defendant back to police custody. Courts typically grant bond agents a grace period after a defendant violates bail terms. If the agent can return the defendant to court within that grace period, the court usually will not require the agent to pay the full bail amount. As part of this process the bail bond agent can employ bounty hunters, also called bail enforcement agents, to track down and apprehend the defendant. Bounty hunters, like bail bond agents, are not government employees or law enforcement officers. They do not have general arrest powers, but can arrest a defendant who used the bail bond agent’s services. This is because as part of the contract defendants sign with the bail bond agent, defendants typically agree to allow the bond agent, or bounty hunters working for the agent, to enter their home, arrest them, or take other actions that would typically be illegal without the defendant’s consent. Note that state laws on both bail agents and bounty hunters can differ significantly, and not all states allow for bail bond agents or bounty hunters. For example, suppose that son is arrested for a felony and released prior to trial on a $20,000 bond for which his parents pay a non-refundable $2,000 non-refundable premium and sign off on a $20,000 second mortgage on their house with a $200,000 fair market value which is also subject to a $160,000 first mortgage. If son defaults in a way that triggers his parents' obligation to pay the $20,000 placed at risk by that default, and the parents don't have the money, the bail bondsman takes the house subject only to the $160,000 first subprime mortgage and nets $40,000 of equity (the $20,000 surplus would rarely be enough to cause another buyer to bid at the foreclosure sale). The bail bondsman then refinances the $160,000 first mortgage at the much lower interest rate he qualifies for with his higher net worth and better credit rating, and then rents it (often initially back to the parents who pledge the house as collateral in the first place) at a market rate, which, for a house like that is probably on the order of $2,000 a month, until he decides to resell it (perhaps assembling many similar houses on the same block over time and then selling the entire block to a developer who wants to scrape the houses to build an apartment building on the entire block instead, at a significant premium). Even if I a mistaken and the collateral can only be seized when the bond is actually forfeited and not merely when it is placed in peril by a failure to appear when the grace period has not yet run, or if the actual amount of the bail bond debt is repaid after the collateral has been foreclosed upon and sold to a third party, insuring that there is sufficient collateral to back the full amount of the bond if it has to be repaid to the bail bondsman, this still prevents the bail bondsman from losing any money in the worst case scenario if the bond is forfeited. Indeed, this will usually make the bail bondsman a healthy profit because the value of the collateral is generally significantly in excess of the value of the bond, at the cited bail bond company at least 150% of the amount potentially owed (also providing a cushion if the fair market value of the collateral has been overestimated), but not so high relative to the value of the bond that another bidder will bid at a foreclosure sale. So the bail bondsman will sometimes make a profit on the collateral seizure and sale to a third-party, even if the bond debt ($20,000 in this example) is ultimately repaid to the sponsors of the client because the client is returns to court custody before the grace period expires. Sometimes a bail bondsman will also take a guarantee of repayment of the bond amount if there is a default, in place of some or all of the collateral if the guarantors' incomes are sufficient to comfortably be able to pay the full bond amount, at least in installments over time, even if the guarantor has few assets of value to pledge, but this is much more common for small bonds of, for example, $500 or $1,000 or $2,000 than it is for a medium bond amount for a felony of about $10,000 or a higher amount of $25,000 or $100,000 for serious felonies when the court is worried that the client is a flight risk, where the bail bondsman will typically post bond only of the client's supporters can offer sufficient collateral to cover the full amount. This is very similar to the reason that a hard money lender doesn't worry too much about the ability of the people borrowing from the hard money lender to pay during the typically short loan term because any unpaid loan balance can be recovered by seizing collateral for the hard money loan which is worth significantly more than the value of the loan. The New Yorker interviewed a bail bondsman who claimed that less than 1% of his clients defaulted, in 2013, but in my experience this is highly implausible and unusual (as the story notes, even prime secured mortgage loans have a higher default rate than that most of the time), even though it certainly isn't impossible if one is very selective about who one takes on as a client. The more likely possibility is that the bail bondsman is actually talking about clients who abscond or violate bond conditions who are not returned to the court within the grace period, or about the percentage of transactions in which the bail bondsman actually loses money after foreclosing on collateral and collecting from guarantors, if necessary. A New York Times in a 2018 article does not provide a forfeiture rate figure, but does explain that as long as the client is returned to law enforcement authorities within a grace period that can vary from a few months to two years on a state by state basis, the forfeited bond will usually be returned to the bail bond company. One company cited in the 2018 New York Times article with $800 million of revenues had zero losses as a result, a data point that I strongly suspect reflects not a zero bond forfeiture rate but a complete recovery of forfeited bonds from bond collateral and guarantors, with profits on some bond collateral seizures exceeding, on average, losses from bonds extended with insufficient collateral or with guarantors who can't make good on their obligations or go bankrupt. According to this 2018 New York Times article, California is one of the only states that requires a premium refund when a client is re-incarcerated voluntarily during the grace period. This policy white paper from the Obama Administration notes that: Though failure-to-appear rates declined from 25 to 17 percent between 1992 and 2009, pretrial re-arrest rates actually increased from 14 to 16 percent for released felony defendants in large counties. This 15-17% failure to appear rate is a much more accurate estimate of bond defaults prior to before considering grace periods. A law review article from 1994 explores the economics that drive the bail bond industry in more detail than is possible in a Law.SE answer. | This is a good example of the life of the law being experience and not reason. While there is a logical argument that this isn't theft, in reality, this conduct would universally be considered an open and shut case of shoplifting and anyone who tried this would surely be convicted of a crime with consequences far more severe than creating a tort debt for conversion of the property. Also, you do intend to permanently deprive the store of its property. The fact that you intend to remedy that by paying for it doesn't change that. You aren't borrowing the property with an intent of returning it. |
Do I have to pay gift tax if I'm put on a house deed? I've lived in the home ever since it was purchased. Purchased out right but did not make the signing with my significant other. Now 20 some years later, he wants to add me to the deed. We paid with a loan from a family member which I helped to pay back. I also paid for work done on the home. Please help with an answer to this question. | The transaction you describe is a "taxable gift" to the extent that it exceeds $15,000 in fair market value (as of 2019) and that your significant other is not your U.S. citizen spouse now (special rules apply to non-U.S. citizen spouses and an unlimited amount of gifts can be made without being taxable to a spouse, including a same sex spouse). The first $15,000 of fair market value per donor per donee per year doesn't count, however (there is a $100,000 of fair market value per donor per donee exemption per year for gifts to non-citizen spouses, if a qualified domestic trust is not the true recipient of the gift). This means that the donor is required to report the gift on IRS Form 709 by April 15, of the year following the year in which the gift is made (or later if the donor files for an extension). But, each person is entitled to make up to $11,400,000 of tax free gifts (during life and at death combined) that would otherwise be taxable per lifetime, and this amount is indexed for inflation, so it goes up each year. So, in your situation, it is highly unlikely that any tax would actually be due in connection with your filing of Form 709, even though the donor is required to complete and file that form. In the event that both the annual and lifetime gift exclusions have been exceeded, the tax rate would be 40% of the fair market value of the gift (net of the mortgage debt to which the house is subject. For example, if the house were worth $40,000,000 and had a $10,000,000 mortgage and you were given a 50% interest in it, the amount of the taxable gift would be $14,985,000 of which at least $3,485,000 would be subject to a 40% gift tax, i.e. $1,394,000), if you didn't get married (the tax would be $1,360,000 if you were a non-citizen spouse of the donor). At one time there were some states with their own state gift taxes that had to be considered, but as of 2019, there are no such states. Also, upon a sale of the house, the donee would be subject to one half of the capital gain that the donor would otherwise have owed taxes upon (this is called a "carry over basis"). We paid with a loan from a family member which I helped to pay back. I also paid for work done on the home. This could arguably reduce the amount of the gift (which would ordinarily be valued at fair market value as of the date of the gift), but given the amount of the lifetime exclusion, that detail is probably irrelevant unless your home is a world class mansion or castle. | From a legal perspective co-signing a loan isn't the same thing loaning the money to the other co-signer. When you co-sign a loan with someone else both you and the other person are equal parties in the loan, both jointly responsible in fully paying off the principle and interest. If loan is defaulted on, the bank can pursue legal remedies to try to recover its money against either or both of you. If you end up having to pay part or all of the loan, then whether or not you can recover any of that money will depend on whatever agreement you made with the other person. Given that you probably wouldn't a have a signed written agreement with the other signer in case like this, it'll probably come down to whether or not you can prove (on the balance of probabilities) that the other party promised to you to pay off the full amount of the loan. It will help if the loan is specifically tied to a car, a house or other property that the other party benefits from but you don't. Note that you'd have to give serious consideration to whether the other party can actually pay the amount owed. There's no point going to court to obtain an unenforceable judgement. I also should say that from a financial perspective it does make some sense to think of it as if you were loaning out the money yourself. While there's a big and significant difference between the two, in that your bank account isn't affected unless the other person defaults, if they do the result is going to be pretty much the same. Indeed in that case it's not much different than just giving the other person the money. When co-signing a loan you really need to trust that other person. | It primarily depends on the title that you have to the house: are you "joint tenants with right of survivorship". This could have happened when you bought the house; it also could have been done after the fact in various ways. In that case, the house is outside of your wife's estate (which, under the circumstances, is divided between children and you). The lender might be confused about the status of the property, but they might be right, so the question is, what is your legal "interest" in the house, that is, does the title document say "tenants in common"? Assuming that the property is not recorded as JTWROS, then there are two matters to attend to. First, the lender may need to be satisfied, somehow, that they aren't taking a risk by refinancing when you aren't really the full owner. The second is clarifying actual ownership. Estates Code 201.0002-.003 govern intestate succession with a surviving spouse, where the dividing question is whether it is a community estate or not, which then implies shares for children. In that case, the children are part-owners, so you need their consent to e.g. sell the house (that is, this is a complication that needs to be fixed). Basically, you have to get a lawyer, and straighten this out. | Normally, a recorded deed is taken at face value. If Bob acquires a house and conveys the house to Bob and Clark, his cousin, a joint tenants with right of survivorship, or pays for 99% of the price of a house and directs that it will be deeded to Bob and Clark as joint tenants with right of survivorship, the normal interpretation of that transaction is that Bob made a gift of an undivided one half interest in the property with right of survivorship to Clark. It sounds like the fact pattern is that Bob dies before Clark, giving Clark 100% title of record to the house subject to the mortgage, and Bob's heirs are not cool about that fact and would like to escape that consequence. This is a tall order for Bob's heirs. Normally, at least two important rules of evidence will preclude admission of testimony to the contrary. One is the parole evidence rule. This excludes as a matter of law evidence of discussions entered into prior to execution of an unambiguous written instrument that is not on its face incomplete, even if other evidence, called "extrinsic evidence" is available. The other is the dead man's statute, which is quite tricky in its technical application, but is basically designed to prevent an interested party from offering self-serving testimony that economically benefits them about what a deceased person said. The classic examples would be "I'll sell you these gold bars for $10", or "I'm giving you this painting", or "I agree to let you live in my house after I die rent free for 11 months." A statement regarding an intended ownership interest in joint tenancy with right of survivorship real estate asserting that it is not 50-50 when nothing on the face of the deed suggests that this is case might be barred by the dead man's statute since these are statements of a dead man that favor the person offering the evidence. But, as I say, the application of the rule is quite technical. Also, to the extent that any third-party like a lender or a judgment creditor of the surviving joint tenant gets a lien or other property right in the property that is recorded, and that person had no knowledge of the claims of ownership outside real property records of the relative rights of the joint tenants, that evidence couldn't be used to impair or reduce the third-party's rights in the property by virtue of the recording statutes. If a dispute arose while the co-owners were alive at a time when there were no disputed claims of third-parties to the property, the joint tenancy would be easy to severed into a tenancy-in-common, and the actual relative contributions and right of the parties could be litigated in court with the testimony of those parties. But, usually, the four unities are in practice, a consequence of a joint tenancy with right of survivorship deed being prepared and recorded, rather than primarily being a condition precedent to it. If a single deed is executed that says that grantee are two or more people who are described as joint tenants with right of survivorship, then the legal consequence of that deed is that the co-owners become equal owners with a right of survivorship and unlimited right to possession of the whole. Also, even though it isn't standard, it isn't impossible for property to be in a tenancy-in-common which a side agreement to make a transfer upon death to the remaining tenant-in-common, even if it isn't a true joint tenancy with right of survivorship. So, if one proved by some competent and admissible evidence that a 50-50 ownership was not intended and that it wasn't a true canonical joint tenancy, this wouldn't necessarily invalidate the survivorship provisions on the face of the deed. A judge would be more likely to treat the deed as a non-standard non-probate transfer at death than to treat it as a tenancy-in-common without a right of survivorship, despite language of survivorship on the face of the recorded deed. Now, something other than equal co-ownership might be admissible for some purposes, like tax consequences, but that wouldn't go to who gets the property when a co-owner of the property dies. From an evidentiary standpoint, the case would [be based upon] . . . non-will ledgers, third party banking transactions, and letters of evidence that show the decedent undertook full responsibility for expenses related to the acquisition and maintenance of the property. The joint tenant was involved in the deed and mortgage issuance by the decedent for the sole purpose of mortgage qualification (i.e. credit requirements) This doesn't sound very convincing. First, there is nothing inconsistent with a joint tenancy with right of survivorship with one co-owner being the person who provides the funds for purchasing the home and handling all of the maintenance and expenses. This is more common than not in the case of a married couple or pair of unmarried domestic partners that own the real property as joint tenants with right of survivorship and it used to be even more common. Second, a lender would almost always require that all people obligated on the mortgage be owners of the property, and that all owners of the property be obligated on the mortgage. (Strictly speaking, in California, it would probably be a deed of trust rather than a mortgage, but that is functionally equivalent.) But, it wouldn't be very common as a commercial requirement to insist on joint tenancy with right of survivorship as opposed to tenancy-in-common ownership. Also since providing credit to a transaction is something of value, getting an ownership interest in the property in exchange isn't beyond the realm on possibility and plausibility in a deal that isn't entirely arms length but isn't entire a gift either. Providing credit is probably sufficient consideration to support the deal as a binding contractual agreement. Now, the best strategy might be a letter or exchange of letters that amount to an agreement. This wouldn't bind the mortgage company, but might have some relevant. Still, if the letters predate the execution of the joint tenancy deed, the parole evidence rule might keep the letters out of evidence. Some sort of express trust theory, treating the letters as a trust agreement, might if the language was right, be a stronger legal argument. I'm trying to wrap my head around how a court would interpret documentation vs. intent with regard to the joint tenancy ownership of real property. The key point being that the decedent didn't 'generally' pay for the property, but always paid for it. This is almost completely irrelevant. It is consistent with the alternative characterization of the transaction, but it is also consistent with the deed terms. In particular, if the decedent described the remaining joint tenant as a 'renter' during an interval of co-habitation, and no financial transactions between the two took place subsequent to that. I could imagine bringing a legal action to reform the deed, but the threshold of proof to win that action is pretty high. Absent some sort on undue influence or abuse of a confidential relationship, I have a hard time seeing a deed like this being reformed by a court to reflect a different kind of transaction, even if that was the original intent of the parties, but it isn't impossible if the right facts and evidence were available (which the dead man's statute, again, heavily constrains). If Bob was defrauded by Clark, I could also imagine some sort of legal remedy being available. But it is hard to think that Bob who was the primary mover in the deal would have been defrauded by Clark in this fact pattern. In California, the relevant case law seems to be Kershman v Kershman, Milian v DeLeon, and Cosler v Norwood Kershman v. Kershman is not on point. It is a divorce case dealing with the issues of marital v. separate property under California's community property regime which is an entirely different body of law that doesn't apply to unmarried co-owners of property. Milian v. De Leon is more on point, involving unmarried people with unequal contributions to the property who take title by a deed that says joint tenancy. it found that, “once the court in a partition action has determined that a true joint tenancy exists, it may not order reimbursement or contribution on account of differences in the amounts the parties have paid toward the initial acquisition of the property.” Milian v. De Leon (1986) 181 Cal.App.3d 1185, 1195. (Source) This holding is the standard common law rule. It isn't isn't really relevant here, however, because that case applies in the context of a partition action while the co-owners are alive, and not after death when the survivorship feature causes the surviving co-owner to be sole owner by operation of law. Cosler v. Norwood is a much older case, from 1950, and seems to stand for the proposition that the language of the deed regarding equal ownership that flows from calling the co-owners joint tenants can be overcome by extrinsic evidence in the context of a partition action, although it is arguably implicitly repealed by Milian v. De Leon. But it isn't on point for the same reason that Milian v. DeLeon in not on point - it considers the rights of two living parties in a partition action dispute (i.e. a lawsuit to untangle co-ownership of property), not concerning the validity of a survivorship provision in the deed in the presence of unequal contributions to the acquisition price. Changes to the survivorship rights do not obviously at all flow from the existence of unequal contributions. | Certain things are your separate property, and only you can sell them (but you are also responsible for them). That would include things acquired before the marriage; also anything inherited by just one of you, or gifts provably given to just one of you. Other things are community (marital) property, including your pants and probably your dog. Writing your name on the object or a piece of associated paper doesn't really matter, what matters is how it was acquired. One party can sell their half-interest in joint property, but nobody (?) would buy a property interest in a dog, they would buy the dog. For another person to actually buy a dog, they would have to buy a 100% interest in the dog, meaning that you would have to agree to the sale. When it comes to property with a solid title system, such as real estate, one party cannot sell the whole property without the consent of the co-owner. However, a co-owner could petition the courts to force a partition of the property, where the courts would order that the proceeds be divided equitably. Ohio law on division of marital property is spelled out here. Getting a lawyer is really the only reasonable solution. You can't just "put a block" on selling stuff. If you want the tools, somebody has to collect the tools and take care of them, and they can't just break in to the house in the middle of the night to do this. | There is nothing wrong with paying in cash; there is something wrong about hiding a transaction that relates to a taxable event. Cash makes that easier. | 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. | Neither of those clauses has anything to do with whether a tax on the use of Whatsapp is legal: The first clause tells users that they are responsible for any taxes that may be owed. It says nothing about whether such a tax is or is not legal. The second clause says that users may not charge for Whatsapp services. It says nothing about whether the government may impose a tax for the use of the services. That is all beside the point, though. Even if the TOS explicitly said, "No one may tax the use of our services," that would have no legal effect. Saying that you're exempt from taxation does not make you exempt from taxation. |
Can we get charged for felony for opening a parcel accidentally? Can you get charged for felony for opening a parcel accidentally? Some incompetent delivery guy put a $1000 parcel in the lobby of my apartment, and not realizing that only 1 of the 2 boxes was mine, I took them both to my apartment as quickly as possible and opened them, then I realized only one of the parcels was mine. I put it back to the lobby. Question is if I can get charged for felony. | Theoretically you could, but that's highly unlikely if what you say is all there is to it. The prosecutor would have to have good evidence that you had a criminal intent, for example intended to make off with the goods. You could even attach a note of explanation to overcome any suspicion of criminal intent. | Is there any way I can defend myself against penalties when mistakes are made in my favor? Another option, in a similar vein to your suggestions, is to make a contemporaneous record of the conversations. Then send an email* to the public official detailing what was said and agreed, along with a request that they reply with any observations or amendments within a certain time frame. That way you have a date-stamped document properly addressed to the other party to use as evidence or leverage. *or a recorded delivery letter etc | What do I do? Contact the police, and henceforth make sure that all your interactions with the business owner are in writing. That evidence will facilitate the police investigation in this fact-intensive matter. Can I actually be arrested? Yes, you are at risk of getting arrested regardless of whether you eventually prove the business owner is the one who broke the law. Hence the importance of contacting the police before it proceeds on the basis of his fraudulent accusations. The business owner has committed crimes including --but not limited to-- forgery, larceny, and attempted extortion (People v. Ramos, 34 Misc.3d 914, 920 (2012) and Matter of Spargo, 68 A.D.3d 1242 (2009) reflect that also the attempt of extortion leads to being charges and convicted, respectively). The timing of events could be indicative of the extent to which the business owner's criminal conduct was premeditated. For instance, it is unclear whose idea was keep the vehicle in his company's name notwithstanding that you had not acquired the company yet. If it was his idea, this will tend to weaken his denials of mens rea (given his subsequent course of action). Likewise, it is unclear what dissuaded you from purchasing the business. You need to assess whether he lured you in order to get your money for the car, and thereafter cause you to change your mind about the business. | Well ... the crime of fraud and the tort of deception. If you say you will do X and enter a contract on that basis knowing that you won't then that is fraud and it carries gaol time. Your bank could also revoke your contract and sue for damages. | 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. | Do not throw away mail that is not addressed to you. If you receive misaddressed mail, write "Not at this address" on the envelope and put it in a mailbox, or give it to the mailperson (source: United States Postal Service - Reporting / returning misdelivered mail). Also, if you contact USPS they may redirect the misaddressed mail for you. 18 U.S. Code § 1702 - Obstruction of correspondence Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined under this title or imprisoned not more than five years, or both. | 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. | Two questions. Since the answer to the second answers the first I will go out of order If a person did that could he be found liable for damages in a civil action? Or does it run afoul of any criminal statute? As far as the post office is concerned, per Domestic Mail Manual 505 1.3.1 your heavy boxes shipped Business Reply Mail (BRM) are considered waste. Mailing the box with BRM as a label would not be a crime as long as you did not improperly ship prohibited items, like ammunition, or were trying to commit another crime such as sending a bomb or drugs through the mail, but it would be thrown out or returned to you. See: customer support ruling If a person did that could he be found liable for damages in a civil action? Or does it run afoul of any criminal statute? Unless you wasted the post offices time with excessive bulk mailings of junk or any of the reasons given before, not likely. |
Is it illegal to hack twitter accounts and websites belonging to ISIS? In particular, ISIS twitter accounts, networks, and propaganda sites. Would the US government condone such cybercrime? Would they even encourage people to try? I have heard stories of ISIS defaming western websites, and I am more than confident people in the US would possess the technical skill. I personally would not attempt it for the record, but is this legal in the US or other countries? | It is unlikely that the US, or any government, would condone any kind of crime. The reason for this is that the law must be seen to be impartial and applied fairly to all those subject to it. What happens if tomorrow, the government decides they don't like you? It is possible that this type of activity, or activity amounting to it, would be sanctioned in specific, authorised cases. But the government throwing a lynch mob at anyone is a bad idea for order and a peaceful society. | Yes The relevant legal concepts are copyright, contract law and the Computer Fraud and Abuse Act. You are liable to be sued by the people affected for damages and/or be prosecuted by the government for the felony under either or both laws. Let's start here: "I bought a game". No, you didn't; you bought a licence to use the software in accordance with the terms of service (licence) that you freely agreed to. All modern ToS will not allow you to reverse engineer the software. If you breach those terms of service then you have broken a contract - that is what allows them to sue you. They will no doubt argue that the prevalence of cheat routines developed by people like you reduce the number of people willing to play the game - say 100,000 users x $10/month * 12 months = $12,000,000. They will also ask the court to impose punitive damages to discourage this sort of thing. Which brings us to the copyright violation. You are allowed to copy their software provided you comply with the ToS. But you didn't. Therefore you are in breach of the Copyright Act and subject to additional civil and criminal sanctions. Finally, your "cheats" access their servers in a way that the ToS doesn't authorize. This puts you in breach of the CFFA - breaking this carries serious jail time penalties. Not to mention that in the US, a criminal conviction will preclude you from many jobs, including, naturally, any with access to company computer systems. Putting aside the illegalities, cheats are unethical and ruin the game experience for hundreds of thousands of people who don't use cheats. You are a criminal - stop being one! | 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. | "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). | There are a few ways that this could be illegal, but barring those, there is nothing per se illegal in doing what you describe. It could be a TOS/contact/licence violation to sniff the traffic: Use third-party software that intercepts, collects, reads, or "mines" information generated or stored by the Battle.net Client or the Game(s) The protocol could be protected by patent. (U.S. Patent 5,883,893) The use of the reverse engineered protocol could be illegal (fraudulently connecting to a company's server while posing as an authorized client). | In such a case the person who bypasses the terms knows that use of the site is conditioned on agreement to the terms, and has taken an explicit action to continue past the terms and use the site. I suspect that if a dispute were to arise where this is relevant, it would be held that taking such action was legally equivalent to clicking "I agree". But I don't know of any court case on this point, and i can't be sure what a court would do. If having intentionally bypassed the terms, such a person tried to raise his or her lack of consent to the terms as a defense to some obligation imposed by those terms, such equitable concepts as "unclean hands" and estoppel might be raised, since such a person, in effect, leads the other party, the site owner, to believe that s/he has accepted the terms, I suspect that such a person will be treated as having accepted them. If this becomes at all common, I suppose that the designers of such sites will in future store a record of such consent being given, and not allow the user to proceed unless it has been. | One way in which it holds legal water is that if you use the website in violation of the terms, then you may forfeit your right to take civil action against the company. Analogous language especially regarding the age of the user may protect the site against actions by third party governmental entities (COPPA-like laws), though nothing patently obvious springs to mind (insofar as this deals with firearms and there is also an age 21 restriction both on the web site and in terms of US firearms law, this is not a totally crazy idea). The citation of 18 USC 1030 non-probatively points to an issue which may be disposed of by SCOTUS in US v. van Buren, that knowingly violating the terms of service is a crime (a proposition rejected by lower courts, see US v. Valle). Facebook v. Power Ventures in particular clarifies how "being put on notice" may make such unauthorized access indeed "unauthorized access" in the statutorily-relevant sense. This does not prevent a legally-authorized law enforcement investigation, pursuant to para (f), but if the "violation of TOS = unauthorized access" theory is upheld, it limits how LEOs can legally access the website (and the limitations extend past LEOs). It is a separate and potentially interesting question whether there actually are any legal limits on the investigative powers of the government – if any law enforcement officer has the liberty to investigate anyone they want, with no supervision or requirement of justification, then this would be a rather gaping loophole in their legal strategy. Web pages involve massive copying of copyright-protected data, and the function of terms of use is in part to conditionally grant access to that copyright-protected content. When a person copies protected material from someone's web page having been explicitly denied permission to copy, they run the risk of an infringement lawsuit. | Yes. In the United Kingdom it is illegal under the Computer Misuse Act 1990. In other jurisdictions there may not be a law directly aimed at computer crime but if you sell it knowing that a crime is going to be committed with it that makes you an accomplice. Most computer crime is prosecuted under laws not directly aimed at computer misuse. |
Accident with borrowed car -- whose insurance will apply to satisfy legal requirements? Assume my friend and I are both licensed and have insurance for our own cars, but we're (obviously) not listed under each others' insurance plans. Let's say one of us borrows the other one's car (with permission) and has an accident. Whose coverage is responsible at that point to satisfy the legally mandated insurance coverage? I am trying to figure out whether I would have all the insurance that I would be required to have if I borrowed another driver's car instead of using my own, and if so, who would be providing it. I assume that's only coverage against damage to others (which should go under liability insurance?) but if I'm wrong please correct me. Is the lender's insurance supposed to cover it? If so, wouldn't this not make sense? Insurance companies look at your driving history (& risk) when they offer you a plan, and if the borrower has a poor history, you've increased the company's risk without their knowledge, right? It would seem to open insurance rates to abuse. Is the borrower's insurance supposed to cover it? If so, wouldn't this not make sense? Insurance companies charge you differently based on what and how many vehicles you want covered, so wouldn't borrowing someone's Lamborghini suddenly open your insurance company to a massive risk without their knowledge again? My guess would be that only my own insurance should matter for this regardless of what car I use, but I don't know how insurance companies do their risk modeling. If they think people might be riskier with different cars (e.g. maybe I'm riskier with stick-shift than with automatic transmission, I don't know...) then I could see this not automatically being the case, since suddenly I have a higher chance of having an accident and harming someone else, and they might demand more to protect against that. Or maybe the other driver's insurance comes into play too, maybe because, who knows, insurance companies might think risky people are more likely to lend to risky people. | Let's say one of us borrows the other one's car (with permission) and has an accident. Whose coverage is responsible at that point to satisfy the legally mandated insurance coverage? I assume that's only coverage against damage to others (which should go under liability insurance?) but if I'm wrong please correct me. There are different types of insurance that may be required: liability insurance - pays damage to others (usually including your own passengers) which you are responsible for. This is legally required almost everywhere (both in the USA, where this depends on the state, and elsewhere). Rules vary on the required minimum amount, and the exact coverage (e.g. whether lost wages are covered in case of injury). uninsured motorist coverage - pays damages you or others suffered, which are the responsibility of another driver who is not insured. This is mandatory in some states of the USA. In some other countries, these damages are covered by a public insurance or trust (such as the Verkehrsopferhilfe in Germany). personal injury protection - pays your own medical costs, no matter who is at fault. Required in some states of the USA. Is the lender's insurance supposed to cover it? This depends on the insurance policy, but in almost all cases the policy is for the vehicle (and often has to be, under the laws requiring insurance). So if yes, if you lend your car to someone else, your insurance will cover them. Note, however, that some insurance policies restrict your right to lend your car - read the fine print! There is one situation where your own policy may be relevant: If the damages exceed the limit of the vehicle's insurance policy, your own policy may pay the rest - again, this will depend on the policy. If so, wouldn't this not make sense? Insurance companies look at your driving history (& risk) when they offer you a plan, and if the borrower has a poor history, you've increased the company's risk without their knowledge, right? It would seem to open insurance rates to abuse. Yes, exactly. That is why many (if not most) insurance policies place limits on lending your car. You may only be allowed to lend it to people over 21 years of age, or only to people who you have registered as car users with the insurance company. Is the borrower's insurance supposed to cover it? If so, wouldn't this not make sense? Insurance companies charge you differently based on what and how many vehicles you want covered, so wouldn't borrowing someone's Lamborghini suddenly open your insurance company to a massive risk without their knowledge again? No, the borrower's insurance does not usually apply. Making the borrower's insurance apply would be problematic because the risk is based on the vehicle (type), too. Also, the borrower may not have insurance (e.g. may not own a car). In particular, enforcing the mandatory liability insurance is easier in practice if it is per vehicle, because you can check the insurance at vehicle registration (which practically all countries already require). If the liability insurance were per driver, it would be difficult to prevent a person w/o insurance to borrow a car (as in your example). Finally, sometimes after an accident there is a dispute about who was driving the car (especially with hit-and-run accidents), but there is usually clear evidence (collision damage) what vehicle was involved. If insurance applies to the vehicle, a dispute over who was driving will not interfere with the victim's restitution.Thanks to supercat for pointing this out. | First off, the fact that they stopped you on private property is irrelevant. The traffic offense - you driving the vehicle with a suspended license - occurred on public property en route to the station. That offense does not simply disappear because you are now on private property, nor do the police need to wait for you to leave private property in order to stop or arrest you. So... forget the gas station even exists in this scenario. The real issue at hand here is whether or not the officer needs to actually see you driving the vehicle in order to make an arrest. The answer is no. There isn't any other valid reason your car would be where it is now other than it was driven there. If you are the only person with the car, then it's reasonable to assume that you were the one that drove it there. Plenty of people get arrested for this "connect the dots" way of proving they drove, especially in DUI cases. But the officer doesn't even need to assume that second part either. It all comes down to the actual definition of "driving" in the law books. Most citizens would interpret the word as meaning actually moving in a vehicle. That's wrong. Defining a driver and what constitutes driving is actually way, way broader in the eyes of the law. In Kansas, a driver is defined in such a way: 8-1416. "Driver" defined. "Driver" means every person who drives or is in actual physical control of a vehicle. Essentially, having physical control over the vehicle is generally enough to label you as the driver or that you are driving the vehicle. In a lot of states, having possession of the keys to the vehicle is enough for a court to say you had physical control of the vehicle, because "physical control" is more broadly defined as "capable of making it move and within close proximity" to the vehicle. Thus, you can be arrested for traffic-related offenses. It does not matter if the car is parked, if you're filling it with fluids, or just taking a nap in the front seat. | 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. | The Straßenverkehrsordnung(Translation) in Germany says this: § 34 Accidents (1) Any person involved in a traffic accident must: stop immediately; take the necessary steps to ensure traffic safety and, if there is only minor damage, move their vehicle to the edge of the carriageway; ascertain the consequences of the accident; assist injured persons (section 323c of the Penal Code); to other persons present at the scene of the accident who were involved and have suffered damage: a) state that they (i.e. the person referred to in the first clause) were involved in the accident; and b) if requested to do so, provide their own name and address, present their own driving licence and vehicle registration document and, to the best of their knowledge, provide details of their third-party insurance; a) remain at the scene of the accident until, by virtue of their own presence, it has been possible to identify their personal details, their vehicle and the nature of their involvement to the benefit of the other persons who were involved in and have suffered damage in the accident; or b) wait for a reasonable length of time and leave their own name and address at the scene of the accident if nobody was prepared to perform the identification; immediately facilitate subsequent identification if they have left the scene of the accident legitimately, after giving a plausible excuse or upon expiration of the waiting time (paragraph 6(b)). For this purpose, they must inform at least the persons referred to above (paragraph 6(a)) or a nearby police station that they were involved in the accident and must provide their own address, their present whereabouts as well as the registration number and location of the vehicle that was involved in the accident, which must be kept available for immediate investigation for a reasonable length of time. For minor accidents (no injuries, no suspected criminal offence, no major disagreements between involved parties, ...) you do not have to call and wait for police (you have a right to call them but they might try to discourage you from requesting that they come to the scene). For normal traffic accidents insurance doesn't come and collect evidence at the scene, instead an appraiser will document damage to your car and look at statements and witness reports and other documentation. You can just exchange all necessary information with the other party/ies and then leave with your car (possibly using a towing service). However, OP might refer to the specific case of an accident with a rented car. In that case, the contract with the rental service often mandates that you call police and request an official police documentation and report in case of an accident. | Under U.S. law, when you hire someone and they are injured while doing work for which you hired them, the ordinary tort law regime does not apply. Instead, you are in the worker's compensation regime, under which the employer is strictly liable for the injury. Whether the employee or the employer was at fault in any way (negligent, grossly negligent, reckless, or intentional) is largely irrelevant (except that worker's compensation insurance does not cover the employer's intentional harm to workers which is the employer's responsibility to pay on an uninsured basis). This applies to all injuries on the job, whether or not they are related to the work, and whether or not anyone involved with the employer actually did anything wrong. For example, an employer has strict liability for the injuries of a convenience store clerk sustained by the clerk in an armed robbery of the convenience store where the clerk is working undertaken by felon who escaped from prison hours before due to the carelessness of the prison guards. Usually, that injury is fully insured if the employer has the legally required worker's compensation insurance in place, but the penalty for not having it in place is most commonly that the employer has liability to the full extent, if not greater, than the employer's worker's compensation insurance would have if it was in place. Worker's compensation recoveries are limited to actual economic damages like lost wages and medical expenses, without regard to non-economic harms like pain and suffering and worker's compensation plans also have a very limited death benefit when the worker has no dependents. But these limitations on damages don't always apply when the employer fails to have worker's compensation insurance in place. Worker's compensation liability varies from place to place, but in most states it applies to independent contractors who have not put in place worker's compensation insurance for themselves as well. In your example, Fred has full liability for Barney's injuries. Uriah does not have liability for Barney's injuries due to his good faith belief that he was acting in self-defense or defense of others. But note that Fred's strict liability for Barney's injuries does not preclude a third-party from having liability as well, both to Barney (for damages for which there is not employer liability under the worker's compensation regime such as pain and suffering, and/or in the case of an intentional tort like the armed robbery of the convenience store, punitive damages), and to the employer/worker's compensation insurer for a subrogation claim to recover the amounts paid to Barney as a result of the third-party's negligence or intentional acts. | There is a reasonable chance that the amount that you are borrowing and paying interest on is through a third party, so the dealer can't just waive the interest for the period when they are fixing the car. Legal responses would include canceling the sale, and suing for damages. The problem with suing for damages is that this isn't costing you an extra $15/day (the loan gets paid off at a fixed time, regardless of how much you get to actually drive the car). It would be a considerable stretch to argue that you were deprived of a week's worth of enjoyment for the car because of the wrongful acts of the dealer, and should be compensated. Your attorney would be in a good position to tell you, based on the facts and Texas law, whether that approach would be futile. The legality of the situation primarily depends on what the contract says. It is likely that the contract has clauses that maximally disclaim responsibility to the maximum extent allowed by law. There will be some clause that says something about taking delivery of the car, so you can check whether they have breached the contract on that point: it is possible that there is some escape hatch like "as soon as possible, upon receipt of payment". It seems pretty clear that they concealed a material fact, in order to induce you to buy the car. For example, the manufacturer may have installed a defective veblitzer which had to be replaced, and a reasonable person would not buy a car with a defective veblitzer, thus the veblitzer is a material fact. Or: the veblitzer may have been damaged in a flood. The fact that the car is, by their representation, not safe to drive in its current state, the mind of fact that would push most people into the "no thanks" category. To pursue the fraud angle, you need to be more specific about the defective part in your complaint. The only way to force them to reveal the nature of the missing part is to sue them and compel disclosure of the relevant facts during discovery. Again, your attorney would deal with this. You should bear in mind that if the sale is simply cancelled, you may not be able to recover the loan application or processing fee, and the trade-in will no doubt have been sold, so you can't get the old car back. There are laws against deceptive trade practices which might be applicable, depending on whether they said anything deceptive in their disseminated advertising. Section 17.46 may be applicable, if they patched the car together temporarily with a counterfeit veblitzer. | Is it legal in the US for a company that rents out car parking spaces, to bundle the renting of a parking space to buying insurance for the content of the parked car? Yes. Honestly, I'm a little surprised that I've never see this practice in real life. All things not prohibited are allowed, and there is nothing, per se illegal about bundling services and requiring them to be purchased as a package deal (there may be some licensing issues for insurance sales involved, but those would probably be easily overcome). Sometimes bundling gives rise to an anti-trust violation, but neither the parking lot operation business nor the car insurance business are so consolidated that this would fairly be viewed as some kind of anti-competitive practice. | This is a context where you need to lawyer up. There are two issues, his share of the costs, and his permission to construct in part on his property. You mother has the same rights, so she likewise can refuse to sign off on his scheme (the lawyers negotiate a resolution). Assuming both parties are insured and (to make it more complex) have different insurance companies, the companies limit how much they will contribute for their part of the damage. Normally, you find a contractor who will do it for a given price, let's say $10,000, and the parties split the cost. Both parties have an interest in the choice of contractor because of cost issues, and quality of product and service (though the insurance company cares about the cost). If one of the parties is a contractor, they too can legitimately submit a bid, and then the parties can decide which is the best bid. It is not fraud if a contractor, who is an insured, submits a bid and makes a profit on the job. It would be fraud if that party withheld material facts from an insurance company. In the context of massive disaster insurance claims, the insurance companies may not perform a rigorous investigation (e.g. may not ask for multiple bids). It would then be a material fact that one of the insureds stood to profit from this arrangement, so the insurance companies would likely wish to see evidence that the costs were not unreasonably inflated. If the neighbors bid is in line with industry standard (and the insurance companies know who the contractor is), there is nothing fishy about the arrangement. This assumes that both parties are being cooperative with each other. When that is not the case, lawyers are good at getting cooperation (not letting the other party push their client around). |
Is this Intellectual Property clause over-reaching? Here's an extract from my (employee) contract All rights to any material and results, and all intellectual property rights related thereto, made, written, designed or produced by Nathan Cooper during the term of his/her employment shall be vested in the Company. For the avoidance of doubt, the Company shall have a right to freely develop and alter such material, results and intellectual property rights and to license and assign them to a third party. Is this over-reaching? Ie, is it all-encompassing, does it hypothetically lay claim to unrelated intellectual property produced on my own time? More specifically. Is the "term of employment" similar to "course of employment", which I understand is limited in scope to work related duties (... I think) ? If it is over-reaching. What would be better language? Is there something that protects non-work related IP (for me), and protects the company's IP from potential bad behavior from me. Has anyone any experience in negotiating their IP language? Perhaps a change to "course of employment" would do the trick, or something more specific to scope the IP to work "created as part of, or in connection with his/her duties". NB. I'm not concerned by this language at my current employer, but I'd like to have something prepared in future that makes everyone happy. | That is a very broad clause, broader than the default US rule for copyright, for example. (I know the question asked about the UK, I just happen to know the US copyright rule.) It would seem on the face of it to include independent research on a subject totally unrelated to the person's employment, done off the company's premises and not during normal work hours, but while the person was an employee.. Indeed it would arguably include the copyright to a novel written off premises and during off hours. Use of "course of employment" (instead of "term") would improve the provision. so would "as a part of his or her employment" or "closely related to the subject of his or her employment". Another possible restriction would be "Using the Company's facilities and/or equipment, or during normal working hours". However, my experience is that an employer will have drafted whatever language it uses through its company lawyer, and will be quite unwilling to alter it in any way. A prospective employee will probably be faced with a take-it-or-leave-it choice unless that person is a nearly indispensable figure to the company. One could send the company a certified letter saying, "When i signed the contract agreeing to {company language} I did not intend to include any developments made off company premises, not using company equipment, and unrelated to the subject or scope of my employment. I retain full rights to any such developments." Such a letter would help establish that there was no meeting of the minds to assign such non-employment-related developments or IP to the Company. How much weight it would have if the rights to such developments were the subject of a court case I am not sure. | It is mildly hard to say. First, one has to determine if he was an employee hired to do something like invent the WWW. He "spent time" at CERN, but was an independent contractor in his first period (1980), then took up a fellowship in 1984. "Fellowship" is generally not an "employment" relationship in the relevant sense, and academics are rarely "employees" in the common law work-for-hire sense. It is reported that he "began creating the software and standards for the web on his own as an informal project within CERN". So if anyone holds IP rights (to what?), it would be him. Given where CERN is, it is not self-evident whose copyright law would be applicable. He reports that he wrote the code in CERN Building 31, which appears to be in France, though CERN appears to be in Switzerland (CERN is, in fact, in France and Switzerland). Article 17 of Swiss copyright law says Where a computer program has been created under an employment contract in the course of discharging professional duties or fulfilling contractual obligations, the employer alone shall be entitled to exercise the exclusive rights of use. and otherwise, "work for hire" is not an applicable concept under Swiss law. France, which has the same basic droit d'auteur concept, also have the software exception in Intellectual Property Code Article L113-9: Unless otherwise provided by statutory provision or stipulation, the economic rights in the software and its documentation created by one or more employees in the execution of their duties or following the instructions given by their employer shall be the property of the employer and he exclusively shall be entitled to exercise them. In either venue there is a very narrow path for CERN to hold the copyright to the original software, one that is not likely to match the facts of Berners-Lee's relationship with CERN. It is also true that CERN created a version of web software (the usable version), which was released into the public domain Apr. 30 1993 (p1, p2). It is likewise known that he approved of, and propagated the release of the IP that we associate with the WWW into the public domain. The idea underlying the web is not subject to copyright protection (the text of the proposal would be), but the original code that he wrote would be. It is unknown what relationship exists between that original code any current code, but it highly unlikely that any current code copies original code. Further speculation about the relationship between the original code and anything that exists now would have to be addressed in a History of Computing SE (if there were such a thing). As for patents, since he did not patent the method, it is ipso facto unprotected and out in the open. From the legal POV, the world wide web is not a single thing, so it is meaningless to ask who has dominion over it. | 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. | "Reasonableness" is meant to be vague, because what is reasonable in one case or contract or industry is not always reasonable in another. Generally, though, you'll probably find courts interpreting it to take into account normal practices in your geographic area, in your industry, and between you and the other party. If one party looks like they're trying to unjustly enrich themselves or is asking for something that people just don't agree to in the real world, it's probably going to be unreasonable. If people are asking for the fair value of their work on terms that are normally agreed to when they're the subject of negotiations, it's probably reasonable. Dropping the reasonableness language would probably leave the assigning party in a bad position, as they're not required to make the assignment, with no qualifications as to the terms. The assignee could argue that they're free to take the IP on any terms whatsoever, though courts often read in a reasonableness requirement anyway. This answer is based on U.S. law, but there will be probably be pretty strong parallels if you're in a common law jurisdiction. | 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. | The fact that the employer has vicarious liability for acts of its employees "within the scope of employment" does not mean the employees are not also liable for their own acts. In reality, however, the employer is more likely to have insurance for such "acts or omissions" of employees. The plaintiffs can "sue everyone in sight" and let them figure out who actually pays when they are found liable. That way, when the employee's actions are (for instance) ruled a "personal frolic" or otherwise outside the scope of the employer's liability (in tort or contract), the case doesn't get dismissed for failure to name all the proper parties. One policy goal is to place financial liability as close as possible to the person most likely to have been able to avoid the harm, thus discouraging such risks, without placing the entire burden on individuals employed in hazardous occupations and without artificially limiting potential sources of compensation. | An employer owns the data on a cell phone provided to its employee if the employer has made that a condition of employment. The employer might own the data independently (e.g. the employer created it). Or, the employer might own it if the employee created it in the course of their employment. It's not where the data is that determines ownership, it's who created it. It is also possible that an employee could create data on a phone which is not in the course of their employment, but was also contrary to company policy (don't put your data on our phone). If you violate company policy on use of equipment, the simplest course of action that will follow is getting fired, or losing some company benefit. Conceivably you might get sued, but that would require more than simply getting an unauthorized text message. If we assume that the phone contains company intellectual property, copying that content would be a violation of copyright or patent law, so the employee can be sued for that. If there is a specific employment-related agreement (a non-disclosure agreement), the employee could suffer other consequences including being sued for something. | Ideally a specific contract for the limited purpose of the interview would determine this. Such a contract could assign such "test" works to either the prospective employer or to the prospective employee, as the parties choose. In the absence of a specific written agreement (to effect a transfer of copyright, an agreement must be in writing and signed) the copyright on such a work will belong to the prospective employee under 17 USC 201 (a) unless the work counts as a work made for hire. 17 USC 201 reads in relevant part: (a) Initial Ownership.—Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work. (b) Works Made for Hire.—In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. According to 17 USC 101 A “work made for hire” is— (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned ... if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. ... Since we are assuming the absence of a written agreement, only part (1) of this applies. Thus the status of the work depends entirely on whether the programmer is an "employee". The mere fact that a person recessives compensation does not make that person an employee. For copyright purposes, agency law applies. Specifically: The US Copyright office Circular 09 "Works Made for Hire" states: To help determine who is an employee, the Supreme Court in Community for Creative Non-Violence v. Reed identified factors that make up an “employer-employee” relationship as defined by agency law. The factors fall into three broad categories. Control by the employer over the work. For example, the employer determines how the work is done, has the work done at the employer’s location, and provides equipment or other means to create the work. Control by employer over the employee. For example, the employer controls the employee’s schedule in creating the work, has the right to have the employee perform other assignments, determines the method of payment, or has the right to hire the employee’s assistants. 3 Status and conduct of employer. For example, the employer is in business to produce such works, provides the employee with benefits, or withholds tax from the employee’s payment. These factors are not exhaustive. The Court left unclear which of these factors must be present to establish the employment relationship under the work-for-hire definition. Moreover, it held that supervision or control over creation of the work alone is not controlling. However, all or most of these factors characterize a regular, salaried employment relationship, and it is clear that a work created within the scope of such employment is a work made for hire (unless the parties involved agree otherwise). Examples of works made for hire created in an employment relationship include: A software program created by a staff programmer within the scope of his or her duties at a software firm [Emphasis added] ... The closer an employment relationship comes to regular, salaried employment, the more likely it is that a work created within the scope of that employment will be a work made for hire. But because no precise standard exists for determining whether a work is made for hire under part 1 of the definition in section 101 of the copyright law, consultation with a lawyer may be advisable. If a work is made for hire, the employer or other person for whom the work was prepared is the author and should be named as the author on the application for copyright registration. Respond “yes” to the question on the application about whether the work is made for hire The Wikipedia article aboutCommunity for Creative Non-Violence v. Reed 490 U.S. 730 (1989) describes the case, in whioh a charity hired a sculptor to produce " statue that depicted the plight of homeless people for a Christmas pageant in Washington DC". CCNV claimed that the statute's copyright was theirs as a work made for hire (WMFH). Sculptor Reid claimed the copyright as being the author Justice Thurgood Marshall wrote in the majority opinion [Footnotes omitted]: The Copyright Act of 1976 provides that copyright ownership "vests initially in the author or authors of the work." 17 U.S.C. § 201(a). As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection. § 102. The Act carves out an important exception, however, for "works made for hire." < ... [Page 490 U. S. 740] In the past, when Congress has used the term "employee" without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common law agency doctrine. See, e.g., Kelley v. Southern Pacific Co., 419 U. S. 318, 419 U. S. 322-323 (1974); Baker v. Texas & Pacific R. Co., 359 U. S. 227, 359 U. S. 228 (1959) (per curiam); Robinson v. Baltimore & Ohio R. Co., 237 U. S. 84, 237 U. S. 94 (1915). Nothing in the text of the work for hire provisions indicates that Congress used the words "employee" and "employment" to describe anything other than "the conventional relation of employer and employe.'" Kelley, supra, at 419 U. S. 323, quoting Robinson, supra, at 237 U. S. 94; ... On the contrary, Congress' intent to incorporate the agency law definition is suggested by § 101(1)'s use of the term, "scope of employment," a widely used term of art in agency law. See Restatement (Second) of Agency § 228 (1958) (hereinafter Restatement). ... We thus agree with the Court of Appeals that the term "employee" should be understood in light of the general common law of agency. ... [Page 490 U. S. 751-2] In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. See Restatement § 220(2) (setting forth a nonexhaustive list of factors relevant to determining whether a hired party is an employee). No one of these factors is determinative. See Ward, 362 U.S. at 362 U. S. 400; Hilton Int'l Co. v. NLRB, 690 F.2d 318, 321 (CA2 1982). Conclusion An applicant being given a "test project" as part of an employment interview is probably not an employee under agency law. Thus the work is not a WMFH, an, in the absence of a written agreement to assign the work created as part of the test to the prospective employer, the copyright would belong to the prospective employee. I have not found a case specifically relating to this interview fact pattern, and it could be that a court would rule otherwise in this specific pattern. |
Is it legal for private citizens to "impound" e-scooters? This recent article from The Verge claims that two men in San Diego have create a repo company that impounds e-scooters from companies like Lime, Bird, Lyft, Uber and Razor. However as far as I can tell these guys are doing this entirely on their own accord. They don't have a license from the city. They write "tickets" in their own system and charge their own rates. They are called not by police but by random business owners. To me this sounds like straight theft and extortion. Is this something they are legally allowed to do? The article claims that they are now being sued by all these big corporations, but it's unclear to my why this is being treated as a civil matter and not a criminal one. | 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. | The ultimate question is whether an obviously joke enterprise constitutes a real offering of securities or just performance art (a Ponzi scheme is one of many types of securities fraud). An unregistered offering of securities that does not fall within an exception is per se unlawful under federal law, but a security is generally defined as something offered with at least a prospect of making a potential profit for the investor which is not something that is true of this offering. (And if less than $1,000,000 are sold it might even be within an exemption to securities laws). State securities laws are divided into two categories. Most allow any offering of securities so long as proper disclosures are made and the offer is restricted to the right kind of investors. A minority impose substantive quality standards on offerings and this offering might violate the law in those states (although this still would present the question of whether a known money losing opportunity is really a security since there is no evidence of an intent to potentially make a profit from the investment). I do not believe that California imposes substantive quality of investment standards on public or private offerings of securities. Any deal whether or not it is a security is actionable if it is fraudulent. Normally an element of any claim for fraud is justified reliance upon a representation or upon a failure to disclose information. But, in this case, it is hard to see how anyone could say that they were justified in relying on any representation in making a purchase because they were told that they were being cheated. So, it is hard to see how a fraud claim would be sustained here either. I'm not sure that this cleanly falls into the category of gambling either, even though there is money at stake and the outcome isn't entirely certain. This doesn't really seem like a game of chance to me. Indeed, viewed as performance art, this scheme might even be entitled to First Amendment protection. Ultimately, I would not prioritize a civil or criminal action against this enterprise either from the perspective of a private lawyer representing an investor, or from the perspective of a government enforcement authority. And, while I would be a little nervous about running this enterprise, I wouldn't be quaking in my boots. In a civil lawsuit, any award would probably be minimal, and in a criminal case there would probably be an extremely generous plea offered. | There are a number of existing legal sites that do this, for free or for pay. The main concern for a website operator pertains to the DMCA "safe harbor" provisions, which protect against vicarious liability for infringement. A "report piracy" option is not sufficient; see this answer to a related question. | Yup, it's illegal. You want something, they have something you want. They let you have the thing provided that you do certain things, otherwise they won't give it to you. So providing a credit card is material to the contract. You know that the credit card number is false, you are representing that it is true, the card is a material fact, you intend to get them to allow you in using this false representation, they don't know it is false and they rightfully rely on your truthfulness. They have been harmed by your false representation (maybe: it would cost you a lot in attorney fees to try to challenge on this point). This is fraud. | What §670 BGB basically says is that the default is that companies have to reimburse you for expenses that you incurred for interviewing with them. If they don't want to reimburse you, they have to tell you so in writing before you incur any costs. That way it's your decision if you still want to go if you have to pay for expenses yourself. It does not mean your expenses have to be paid, it means you should know beforehand whether they will be paid. So what I take from your story is that you never actually asked the company for reimbursement, expecting the Agentur für Arbeit to pay that for you. Well, no company is going to pay your expenses if you don't ask for it. And that's not a crime. You also never told the Agentur für Arbeit that you were not informed beforehand that your expenses would not be paid. They asked for proof, you delivered proof. It's not their job to find out how or when you got handed this written statement and if that constitutes a violation of §670. And as a little reality check: paying your expenses (probably something along the lines of a cab fare or bus ticket?) is way more cost effective for the AA than suing a small company for the same amount. Just the time of the lawyer filing the suit will probably cost more than your public transportation ticket for the next year. | In this answer, I address title question: "If someone catches a Pokemon that is on my property, is that theft?"1 The Pokémon is an entry in a database, presented by Nintendo to users in their mobile app and can be included in a user's collections after that user completes some in-game actions. It isn't your property. It isn't even their (the users') property. Further, a Pokémon appears for all users can be captured again and again by multiple users until it disappears for all users. One user capturing a Pokémon doesn't make it unavailable for others. The Pokémon doesn't "become subject to" any property rights of the owner of the real property that it happens to be virtually overlaid on. Said another way, it doesn't "incur" any of their property rights. Capturing it in-game is not theft. 1. The question in the question body is "does [a Pokémon] incur any kind of property right for the property owner". Incur means "to become subject to". That is different than the broader verb "implicate". This question does not ask (and this answer doesn't answer) whether the Pokémon can implicate the property owner's property rights (e.g. via attractive nuisance, trespass, etc.). Some of that is addressed at a separate question. | This is likely to be a matter of policy rather than law That is, it’s not likely there is a law prohibiting it but it is highly likely that the person’s training and their employer’s policy on the matter is that they must complete a ticket once they start it. It’s a pretty universal anti-corruption measure - it prevents the situation where they are writing the ticket, the owner appears and offers them half the value of the fine in cash to stop: well, they can’t stop so they can’t be tempted by the bribe. Of course, the bribe can be offered before they start but, when fighting corruption, you minimise the opportunities rather than eliminate them. I know that police and rangers (private people can’t issue tickets) in new-south-wales are so restricted. | A "police car" doesn't necessarily have a special legal status, so a police officer can theoretically drive a beat-up pickup truck and "be legal" (but not in Washington, see below). What matters is whether others have to give special attention to the vehicle. The pertinent question is, what are the requirements for being an authorized emergency vehicle. I'll give you Washington state law, and you can apply this to other states fairly easily. RCW 46.37.190(1) mandates that Every authorized emergency vehicle shall, in addition to any other equipment and distinctive marking required by this chapter, be equipped with at least one lamp capable of displaying a red light visible from at least five hundred feet in normal sunlight and a siren capable of giving an audible signal. (3) Vehicles operated by public agencies whose law enforcement duties include the authority to stop and detain motor vehicles on the public highways of the state may be equipped with a siren and lights of a color and type designated by the state patrol for that purpose. The state patrol may prohibit the use of these sirens and lights on vehicles other than the vehicles described in this subsection. Given these restrictions, a driver knows whether they must get out of the way, and whether they have to "pull over" (stop driving and get ready for a brief traffic detention). The manner of attachment of "stuff" on the outside of the vehicle falls under general state patrol safety rules, whereby for example you can't balance a rocking chair on the roof and speed down the highway. The state patrol has reasonable discretion to deem that a particular mode of attachment is "unsafe" – this won't be like building-code minutia. Duck tape would probably be deemed to be an insecure means of attachment. There can be some statutory provisions regarding use of private vehicles, for example RCW 46.37.185 allows green lights on firefighter's private care: Firefighters, when approved by the chief of their respective service, shall be authorized to use a green light on the front of their private cars when on emergency duty only. Such green light shall be visible for a distance of two hundred feet under normal atmospheric conditions and shall be of a type and mounting approved by the Washington state patrol. The use of the green light shall only be for the purpose of identification and the operator of a vehicle so equipped shall not be entitled to any of the privileges provided in RCW 46.61.035 for the operators of authorized emergency vehicles. Flashing blue lights are prohibited by WAC 204-21-230(c)(4) "other than a law enforcement vehicle as defined in WAC 204-21-020", which is "a publicly owned or leased vehicle operated by a law enforcement agency and which is used for the law enforcement functions of the agency". That means that in Washington, the town sheriff cannot use his personal car as a law enforcement vehicle. I expect there to be some variation on that point across the US. The lights-and-sirens law is what keeps ordinary people from putting lights and sirens on their vehicles. |
Why are college hacking treated differently then outside hacking? I have notice that college hacking is often treated differently and with even shorter sentences if they are strictly modifying their on situation or posting security wholes. Numerous examples in the media Ryan Pickren no jail sentence modifying on grades Kevin Mitnick 5 years Daniel Beckwhitt no jail sentence modifying on grades Omar Khan 69 felonies 38 years in Prison college hacking Do these fall into differently qualities as academic fraud? If its academic fraud shouldn't it be treated differently in real life? Real hackers get often much longer sentences but there is discrepancy on what happens. | It's naive to assume a college age hacker (or a hacker who bases his/her attacks from an academic institution) is treated differently than a "real" hacker, whatever a real hacker might be. The sentence any convicted hacker receives depends on many factors: the prosecutor, the evidence, veracity of witnesses, jurisdiction (academic or not), previous criminal records, the actual laws the person is being charged under, the judge, the jury, the lawyers, plea bargains, media coverage, etc. There are so many factors that the outcomes of the prosecutions of "hacking" crimes can be very different, re: your examples. Read about each case and you'll find many differences. Academic fraud or any form of fraud are completely different crimes. Hackers can commit fraud, but not all fraud involves hacking. Being convicted of fraud can sometimes happen if the evidence for a hacking charge is weak, or other factors. Again, that involves the specific case, the prosecutor, laws, the evidence, etc. | Forget about copyright or EULAs. In the UK this would be illegal under the Computer Misuse Act (1998) and you could be jailed for up to a year - specifically Unauthorised access to computer material. (1)A person is guilty of an offence if— (a)he causes a computer to perform any function with intent to secure access to any program or data held in any computer, or to enable any such access to be secured; (b)the access he intends to secure, or to enable to be secured, is unauthorised; and (c)he knows at the time when he causes the computer to perform the function that that is the case. This law has been applied even to simply altering parameters in a GET request to a website, so it is incredibly broad. Other jurisdictions have similar wording, so be aware! | 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. | There are great jurisdiction by jurisdiction differences in the statutes of limitations that apply to crimes. Some jurisdictions have no statute of limitations for any serious crime (e.g. Canada and if I recall correctly Virginia). Others have statutes of limitations for almost all serious crimes other than murder (e.g. Colorado). Where there is a statute of limitations, the primary issue is that the ability of the prosecution and defense to secure reliable evidence that will allow a jury to enter an accurate verdict. This potential to conduct a fair trial can be compromised by a delay in pressing charges. Alibi witnesses can die or disappear to someplace that they can't be located, the location of the alleged crime can change in ways pertinent to proof, memories of witnesses in general can fade. Records or correspondence that could show intent can be destroyed. This is particularly a burden for an innocent criminal defendant who did not know that he or she needed to prepare a defense and gather evidence to respond to criminal charges. Some states toll statutes of limitations during a period of a victims minority or incapacity when brining charges may not be feasible. Other states have a long statute of limitations in rape cases where there is DNA evidence available that can conclusively tie a defendant to the scene of the crime (lack of consent would still have to be established), but a shorter statute of limitations in other rape cases. Murder and fraud are the most common offenses to lack a statute of limitations, in the first case, because it is considered the most serious crime and because the victim is unable to report the crime, and in the latter case, because fraud, by its nature and by the perpetrator's design, may go undiscovered for very long periods of time. Is there a line of reasoning to decide which classes of crime have a limited window for prosecution? While I've given some examples of the considerations that apply, ultimately, this is a legislative and political decision and not a legal one. You can't determine by reason alone which classes of crimes will have a limited window for prosecution. Different legislative bodies make different decisions on the same issues at different times and in different places. | The legislation in question is section 3A of the Computer Misuse Act 1990 (this section was added to the original text of the CMA by section 37 of the Police and Justice Act 2006): 3A Making, supplying or obtaining articles for use in offence under section 1 or 3 (1) A person is guilty of an offence if he makes, adapts, supplies or offers to supply any article intending it to be used to commit, or to assist in the commission of, an offence under section 1 or 3. (2) A person is guilty of an offence if he supplies or offers to supply any article believing that it is likely to be used to commit, or to assist in the commission of, an offence under section 1 or 3. (3) A person is guilty of an offence if he obtains any article with a view to its being supplied for use to commit, or to assist in the commission of, an offence under section 1 or 3. (4) In this section “article” includes any program or data held in electronic form. (Sections 1 and 3 refer to unauthorised access and impairing the operation of computer) In England and Wales, prosecutions are brought by the Crown Prosecution Service, there are guidelines produced by the CPS for section 3A: Prosecutors should be aware that there is a legitimate industry concerned with the security of computer systems that generates 'articles' (this includes any program or data held in electronic form) to test and/or audit hardware and software. Some articles will therefore have a dual use and prosecutors need to ascertain that the suspect has a criminal intent. ... Prosecutors dealing with dual use articles should consider the following factors in deciding whether to prosecute: Does the institution, company or other body have in place robust and up to date contracts, terms and conditions or acceptable use polices? Are students, customers and others made aware of the CMA and what is lawful and unlawful? Do students, customers or others have to sign a declaration that they do not intend to contravene the CMA? For Section 3A (2): In determining the likelihood of an article being used (or misused) to commit a criminal offence, prosecutors should consider the following: Has the article been developed primarily, deliberately and for the sole purpose of committing a CMA offence (i.e. unauthorised access to computer material)? Is the article available on a wide scale commercial basis and sold through legitimate channels? Is the article widely used for legitimate purposes? Does it have a substantial installation base? What was the context in which the article was used to commit the offence compared with its original intended purpose? Original answer from Sec.SE by Tom77 | Just to expand on what others have answered: It's important that each crime is also given its own sentence as it's possible that prisoners can be cleared of crimes if new evidence is found. This could make a significant difference to the amount of time the prisoner is serving. For example if a person was convicted for kidnap, murder, and stealing a car, all adding up to a total of 120 years, but later was found to be a car thief who was in the wrong place at the wrong time, and proven innocent of the kidnap and murder charges, that person would then only face the sentence from the car theft. If one life sentence had been issued for the three crimes, a new sentence would have to be worked out. | If a person A, speaking by telephone to an election official B in Georgia, attempts to influence that official to improperly alter an election result in a way that would constitute frauds or otherwise be a violation of Georgia law, then the person A has committed a crime in Georgia. There are various ways to commit a crime in a place without being physically present in that state. Since there is no question what was said on the telephone call in question (because it was recorded) the question to be determined would seem to be whether it constituted a crime under Georgia law, and whether the Georgia officials think it is worth prosecuting. It is true that a trial for a criminal accusation is normally held in the state where the crime was committed (or allegedly committed). But that need not be in a state where the person was ever physically present. If a person living in State C does business is state D, and is requires to file a tax return with the authorities in D, and it is alleged that the return was false, then the person is being accused of a crime in D, committed when the false return was received in D. | There are two reasons for jail: Applying the sentence Denying the accused the opportunity of fleeing, destroying evidence or doing the same felonies again. The last part is always a difficult one, as the accused has still not received a veredict but has his rights severely curtailed. In general it is intended as a last ditch measure, and the circumstances of the case must be considered. In this case, after Assange spent several years holed in at Ecuador's embassy in the UK, and given that he did not surrender himself voluntarily, it is not that unreasonable to believe that he would try again to flee, as the matter is not still settled and he is still at risk of being extradited. I do not know about England, but in some countries (e.g. Spain) if you are kept in preventive custody but later found to be innocent you are automatically entitled to an indemnity. Also, for the larger question, that is not true either at least in some countries. After a guilty veredict a judge may postpone incarceration while appeals are reviewed (again considering things like flight risks). Of course, if you have condemned someone who has not been given bail due to being considered too risky, they remain in jail during the process. Also Presumably, his jail term began immediately upon sentencing. In many jurisdictions, the time served before the sentence is counted towards the sentence. If you spent 4 weeks in jail before the sentence, you have already passed 4 weeks of your sentence. If the time already spent is close to the time you would have been sentenced, the sentence specifies that you are condemned "to time served" and released immediately. |
How do I get my property back? Someone moved my things out of my apartment for me while I was out of the country. They then kept my things at their place and since I’ve returned they have refused to return my things to me. Can I get the police involved? | One option is to bring a civil lawsuit to obtain a court order for the return of your property, something that usually proceeds on an expedited schedule (often one to three weeks from filing to an order). The traditional name of such a lawsuit is "replevin" although the modern and minority terminology for this kind of lawsuit is civil action for "claim and delivery." You could ask the police to intervene, and they might do so, but are not required to do so without a court order. This can take the form of a criminal theft charge, or could take the form of what is called a "civil assist" when the individual comes to the place where the property is held in the presence of law enforcement which assures a peaceful transfer. Sometimes a court in another matter such as a divorce, or domestic violence criminal case, will enter an order authorizing or directing that a civil assist take place. The appropriate remedy depends to some extent upon the reason given for not returning the property. One valid defense to not returning property is that a lease created a lien in the personal property left at the premises for unpaid rent, or a lien for moving and/or storage charges. The availability of such liens varies from jurisdiction to jurisdiction and based upon the precise details of the situation. Another valid defense would be that the person in possession of the property was not satisfied that they knew who owned it. | Your problem is not just that you don't have a working stopcock, but that you now know that you don't have one. Of course it's not illegal by itself, the problem is what is going to happen if you have an insurance case. Your home insurance most likely has to pay for accidental damage. But any damage that would be caused by not being able to close the stopcock, when you knew it wasn't working, they could claim that this is due to gross negligence. Whether they would succeed with that claim or not, I don't know, but fixing the stopcock seems to be a much, much cheaper solution. PS. Seems I made a wrong assumption here - that it was your home, owned by you. The same reasons that would have made it a good idea for you to fix the stopcock obviously make it a good idea for the landlord as well. So I would make sure that you tell the landlord as soon as possible. If something goes wrong, and the insurance doesn't pay, your landlord would be responsible for the damage. Whether it's legal to not fix the stopcock - that's a different matter. I thought you were the owner. You would have endangered yourself and your property. Nothing illegal with that. But with the landlord it's different; he wouldn't be endangering himself but someone else's property. | You could do that online, this website will help you with that: http://www.online-strafanzeige.de/ Also, just go to the police... They must accept your complaint and will check it. Also they can tell you wether it is likely that the complaint will lead to a lawsuit or not. | As indicated here, throwing away mail is the crime of obstructing mail. There is no exception for "junk mail" i.e. standard mail. It is possible (virtually guaranteed) that an individual postmaster or the USPS has a different disposition of the two kinds or mail when returned, but that is about USPS and not you. It is highly unlikely that you will find an official statement to the effect that it is "okay" to violate the law in the case of disposition of returned standard mail, even if in fact there is virtually no chance of being prosecuted for recycling. I assume that the junk mail is not addressed to "or current resident", or simply "Resident", because then the letter is addressed to you and you can do what you want. | The security deposit goes with the lease, so he will transfer the deposit to the new owner, who will return it to you when the time comes. Unless, in your state, security deposits are put in escrow accounts, and again you will get it back at the end of the lease.. | a gutter cleaner drops a leaflet with phone number, and as my gutters needed to be cleaned I called him, we met and I gave him a deposit for the work in cash. The gutter cleaner put everything in writing at the back of the leaflet and signed it. In other words, you have a written contract which you fulfilled but the other party did not fulfill, so they now either owe you a service or your money back. This is a civil law matter which you can bring to a county court. You have a telephone number, so it should be possible to identify the other party. lure him into a trap. But then- how do I turn him into the police and keep everything legal? Was thinking of using pepper spray, but I live in Newcastle, and it's illegal to use it in the UK. Any ideas? This is a very bad idea! Apprehending suspects is the job of the police, not yours. Well, there is the concept of a citizen's arrest, but this is only an option in a very limited number of cases, specifically when you catch a criminal in the act and need to prevent the suspect from getting away before the police arrives. And even then you are on very shaky legal ground if the suspect claims you used more force than necessary or if the court doubts that a citizen's arrest was necessary in this particular case. And in this case a court probably won't believe that a citizen's arrest is justified, because the gutter cleaner probably didn't even commit a crime. They just violated a contract. That's a civil matter, not a criminal matter. It might be a criminal matter if they never intended to fulfill the contract (fraud), but you don't know that. If you use violence on a person just because they owe you money, you are very likely committing a crime yourself. | My questions are, where does this put me legally and what are my options? . . . Also, if I want to keep the tenants, how should I proceed? And if I don't want to keep them, do I have that option? Your Rights With Respect To The Tenants If the agency is telling the truth and the agreement made with the agent was for four tenants but their records and document only listed three by accident, you probably can't insist on additional rent or evicting the fourth tenant because if your agent does something on your behalf, that is binding on you just as much as if you had signed them up personally in that manner. This is true even if the agent didn't actually have the authority to rent the place to four people based upon your communications with the agent, because the agent has "apparent authority" to bind you in your agent's dealings with the prospective tenants. You probably have the right to insist that the fourth tenant sign the lease to conform to the actual agreement that was reached (four tenants in exchange for the rent stated in the lease). If the fourth tenant refuses to do so, that would be a repudiation of the lease/contract and would prevent him from claiming that he is a valid tenant of the property pursuant to the agreement reached with landlord through his agent. If the fourth tenant refused to sign, you could therefore insist that the fourth tenant pay additional rent or be evicted if you wanted to. On the other hand, if the agent is not accurately relating the facts, and there was never any agreement to have more than three tenants (as your communications with them and the written lease suggest), then you would have the right to evict the fourth tenant or insist on additional rent from that tenant. But, it might be hard to prove that the agent is not being accurate because it sounds like the agent and the tenants will testify consistently with each other and there were probably no other witnesses to the discussions between them. The Fourth Tenant Might Have Liability Anyway Also, at common law, you could sue the fourth person for unpaid rent during the period that the tenant was actually there anyway, since the fourth tenant was in "privity of estate" with you. (If someone actually signs the lease then they are in "privity of contract" with you.) England abolished the doctrine of privity of estate in most circumstances for residential tenancies in 1995. But, it is possible that this fact pattern is one of the situations in which the privity of estate doctrine remains in force since the 1995 reforms largely apply to assignments of leases by people who are tenants on the original lease, rather than occupants of a rented property who never signed a lease and never received a formal assignment. I don't have the legal research tools to confirm that accurately. But, none of the U.K. Landlord and Tenant Acts currently in force that I could locate addressed that issue, so the common law rule may still apply in this situation. If the doctrine of privity of estate does allow a suit against the fourth tenant based on occupancy without signing a lease, the incentive to even try to get the fourth tenant to sign a lease is very small indeed - you get no benefit at all from it other than slightly easier proof in an unpaid rent collection lawsuit if the agent's story is believed. If it doesn't the considerations earlier in this answer still apply. Practical Considerations All of this being said, there is also a practical consideration to consider. It you try to kick out the fourth tenant or impose additional rent on the fourth tenant, if the fourth tenant refuses to sign the lease, or if you believe that the original agreement did not include the fourth tenant, you still have to weigh the pros and cons of bringing an eviction or unpaid rent lawsuit. The lawsuit will cost you money (requiring you to advance money even if you are awarded attorneys' fees which may be impossible to collect from the tenants). You won't get your attorneys' fees for the lawsuit if you lose and will also have to pay their attorneys' fees if you lose. Tenants whom you are suing are unlikely to be cooperative on any other matter upon which you want their cooperation, and may bad mouth you, for example, in online consumer reviews. Unlike a typical eviction where the rent is not paid, it is very likely that the eviction will be contested, and if it is, the court could order the fourth tenant to sign the lease, but provide you with no other remedy if the court believes the story put forward by the tenant and the agent. If you don't sue, you won't incur attorneys' fees, you can still evict everyone if the rent isn't paid, you can still try to collect unpaid rent from three other people, and you are much less likely to have a dispute with or non-cooperation from the tenants. The only benefit you get from having a fourth person on the lease if that was the original deal (or if you can't prove that it wasn't the original deal) is that you have one more person you can sue for back rent if the rent isn't paid. If I decide to break my agreement with the agency, do I have grounds to do that? Terminating The Agent Often you can terminate an agreement with an agency without cause. If the agency agreement says that you can, you are free to do so and probably should because at a minimum they are sloppy and poor communicators. Generally speaking, even if you can't terminate the agreement without cause, you can terminate the agreement for cause, and the contradiction between their prior communications with you and their current communications with you probably constitute good cause to terminate the agreement both if they are telling the truth not, and if they are not accurately recounting the facts now. But, to be clear, terminating the agent won't affect the rights of the tenant. Suing The Agent If you clearly do lose money because the three tenants on the lease don't pay rent and for example, you get a judgment against them which can't be collected due to bankruptcy or them moving abroad to a place where it is not economical to collect a money judgment from them, or just not having any assets or income (or some combination thereof), and it turns out that the law does not allow you to sue the fourth tenant, and the fourth tenant was not judgment proof, you would probably have a right to sue the agent for the lost rent caused by the agent's negligence in failing to get all four tenants to sign the lease. But, the cost of proving that in a typical case would not be worth the money since this would be much harder to prove than simply proving that someone signed a lease agreeing to pay rent and didn't pay rent as agreed. If the agent didn't agree to pay for your losses voluntarily it might not be worth the time, trouble and risk of not prevailing in that lawsuit to pursue, even if you could get attorneys' fees for your suit against the agent if you won (which you probably could in England). The risks of doing that include paying the agent's attorneys' fees is you lose. | Your landlord has an obligation to allow "quiet enjoyment" of the premises. Essentially this means that, unless they are damaging his or her property, the tenants are entited to act as though it were their own property. Many people take drugs at home. Between the tenants and the landlord this is not something the landlord is allowed to get involved in. If you believe there is criminal activity going on, you can but are not obliged to report it to the police. |
What is a leading question? What constitutes a leading question? Until recently, I assumed it was the same as a "loaded question" in a casual context, like a question in a push polls designed to bias the answer. But through answers here, it's become clear to me that the legal meaning of a leading question is something with much more nuance. I understand that leading questions generally aren't allowed on direct examination, with a few exceptions, but are fine on cross-examination. But I am not understanding the difference between these two formulations: Leading: You were at Seagull’s Pub the night of October 31st, right? Not leading: Where were you the night of October 31st? The former introduces the idea that they were at Seagull's Pub. Is that the only difference? Would it still be a leading question if it was rephrased as, "Were you at Seagull's Pub the night of October 31st?" If the answer is specific to a jurisdiction, I am especially interested in US law and how it is most often practiced at both the federal and state levels. | A "leading question" is a question whose form suggests a possible answer. A non-leading question cannot be answered solely based upon knowledge of the language of the question, instead, a meaningful answer to it must contain facts that are not present in the language of the question. Hence, for example, "Is your name Andrew?", is a leading question. "What is your name?" is a non-leading question. Usually, but not always, a leading question can be answered "yes" or "no." | Q1 and Q2 are definitely not copyright violations. Copyright protects original expression. Your questions are yours; the only things you are using are the names, and copyright doesn't cover them on their own. The quotation in Q3 might conceivably come under copyright. However in practice it is very likely to be fair use (unfortunately nothing is definitely fair use until a court rules on it, but I can't imagine a short quotation in a quiz being an issue). | This is largely congruent with* the doctrine of laches. The basic idea, under common law, is that you can lose rights by failing to assert them. This is generally important for many reasons, but specifically in the case of appeals: The argument should have been brought before the trial court. Justice is not a game, but it's important to recognize that the party trying to raise the argument had an opportunity to do so already. They have given up their right to raise this argument, and extending them the privilege of doing so is (for the following reasons) not good for the system. Courts of appeals are typically not well-equipped to evaluate factual evidence. It is not their area of expertise. Witnesses or evidence may be less available. It's just not practical to try to adjudicate factual issues on appeal, most of the time. If anyone could get an appeal by bringing new factual arguments, then everyone would do that. You'd bring your strongest argument before the district court, and then if that fails, bring the second strongest before the circuit court. That way, you get an extra trial. This is inefficient. Allowing factual arguments on appeal would encourage attorneys and their clients to strategically bring different facts before different courts. This kind of forum-shopping is harmful because it has little to do with who has the stronger overall case, and more to do with who has the better lawyer. * "Congruent with" is not the same as "an instance of"; this rule is not formally an application of laches. It just happens to share the same justification. | 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. | This is a perfectly common question. "What is your full name?" "Do you have any aliases?" "What other names do you go by?" Like any other question, though, it must be relevant, and you should be prepared to explain why it is relevant. If the court allows the question, the defendant must answer. | No. It means the existence of reasonable doubt is in doubt... One cannot conclude the question of guilt in either direction, so one must try again to see if a different jury can answer the meta-question, to then answer the legal question of guilt. ... or is not being addressed If only one person is voting against the consensus, or as many as are allowed by the jurisdiction, they are overruled. That's the allowance made for bias that has somehow reached the jury despite the filtering done beforehand. If more people are voting against the majority so that consensus is not possible, it is potentially because someone has made up their mind on the question of guilt regardless of what (some significant part or the weight of) the evidence indicates, defeating the purpose of the trial and providing all the evidence. A person not accounting for all the evidence can't be said to have reasonable doubt of guilt, since the doubt may be excluded by the remaining evidence. Similarly, guilt beyond reasonable doubt cannot be supported by only partial evidence, as exculpatory evidence may be among the part not accounted for. ... or cannot be addressed by that jury at all. Finally, a jury split on the decision of how to weigh the evidence cannot claim either to have or to have dismissed reasonable doubt, because they cannot agree on what a reasonable doubt is, in the first place. | How would this scenario play out in the legal system? Prosecutor brings charges against EQM or tries to use that conviction to enhance a subsequent conviction. Defendant EQM raises the pardon as a defense. Prosecutor responds that the pardon was intended to cover EQM Prime, not EQM. The Court holds an evidentiary hearing to determine whether the President intended to pardon EQM Prime or EQM. The Court decides who the President intended to pardon based upon the evidence presented at the hearing, and rules accordingly. The burdens of proof are tricky. Usually affirmative defenses have a preponderance of the evidence burden on the proponent of the defense, but sometimes the defense must be disproved beyond a reasonable doubt. I don't know that part of the law well enough to know without lots of research and the outcome might not be uniform across the U.S. To my knowledge, there has never been a case that got this far in which the true identity of the beneficiary of the pardon was ambiguous. It is possible, but a vanishingly rare possibility. Almost always, someone gets a pardon by asking for it and determining whether EQM or EQM Prime asked resolves it, or a reference to the crime resolves it. If the Court concludes that both asked the same President to be pardoned for the same crime (e.g. if the same crime was committed jointly by father and by son who is named after father and doesn't use Jr. day to day) and the Court concludes that the President was probably confused and didn't realize that there were two requests from different people and not one, the judge would probably give them the benefit of the doubt and treat both as pardoned as that would still reflect the President's intent. | The parenthesized part means that if you are being compelled by law to disclose some confidential information, you must promptly notify the company of that fact. They could they respond by trying to get you excluded as a witness, or to limit your testimony, but you don't have to care what they do once they've been notified that you were subpoenaed. It may well be that every time the opposing side asks you a question, "your" side will object, and the judge will decide whether to sustain or overrule the objection. The only way in which you would defer to the company lawyer is by not answering the question before the question is finished (i.e. give the attorney 2 seconds to voice an objection). You would not have to "bring" the employer's lawyer along to a deposition, but that lawyer would probably be present and would similarly raise objections, if he felt like it. Your duty is simply to tell the company that you are being compelled to testify. In case the police or a detective agency are investigating the matter and they come to interview you, you are not compelled by law to answer (or to hand over documents), therefore you are supposed to decline to answer (and you are not obligated to inform the company that someone asked a question). As for an administrative subpoena, the perhaps tricky part will be knowing whether you are being compelled to testify, or invited to testify. The wording of the paperwork should inform you whether this is compulsory. |
Using IP(Internet Protocol address) to calculate Tax I understand that if I sell things online, I need to calculate Taxes based on customer location. Can I use IP(Internet Protocol address) to locate customer or should I ask them explicitly? If it is fine to use IP to identify customer's Country, is it fine to locate customer State/Province. I need it because Canada has different taxes in different Provinces. | You ask them explicitly, maybe adding that you need that info specifically to calculate tax. IP address is not reliable because your customers could be using VPN, Tor, or be on vacation overseas. (By the way, "IP" on a website about law would more likely be understood as "Intellectual Property", not "Internet Protocol address".) | It could be. Accessing any web page is subject to whatever the terms of use are for the page, and if those terms state that the page may only be accessed from within the US, then accessing the page from outside the US is a violation of the TOS (hence use is infringing): see 2.4(h) of the Netflix EULA. There are EU rules that override such terms, within the EU. The usual way to circumvent technological location-restrictions (where the web page says "I'm sorry, I can't let you do that") is to use a VPN and pretend to be somewhere else. Use of a VPN is not per se illegal in most countries (there are exceptions), but using it to circumvent geo-blocking may be. Again returning to the point that the TOS may itself say "No you may not", the interesting question is what to conclude if there is no such statement, for example I did not see anything in the PBS TOS that restricts access to the US (I didn't look very deeply). Terms of service can't be secret: you can't be held to following rules that you cannot reasonably know of. If you attempt to access a page that uses un-announced geo-blocking technology and it informs you that you can't use the page because of your location, then you have effectively been put on notice that there is a rule. If you happen to be using a VPN and access an un-announced, (reasonably) undetectable geo-blocked site, that would not be a breach of the terms (because you have not been put on notice that location is a term of use). | Likely not, unless A finds a jurisdiction with sufficiently lax accounting and taxation standards. As described in the question, A, B, and C are distinct legal entitites. For each entity, the tax office would want to know what the revenue, expenses, and net income are. By providing a service (use of the house) free of charge between two entites of the shell construct, profits are moved from C to A. This is usually illegal. The required paperwork might not have to look like a normal rental contract between a tenant and a landlord, since many questions are resolved by the ownership, but it would have to specify payments. The tax office should complain if they differ too much from the going market rate. Consider that C might be a LLC, and that C might be a civil judgement against C. Someone would look at the assets owned by C, and that includes the house D. | Question 1. Are technical identifiers personal data? Yes. If they identify a person. For example an IP Address is considered personal data, because a person or household can be identified by an IP. Yes, I know that technically there are a lot of exceptions. But in general, if you have an IP, you can identify the subscriber given the right databases. So if your identifier, lets say a generated GUID, identifies a customer or something the customer can be linked to, it is personal data. Question 2. Can technical identifiers be stored in measurement devices? Just because something is personal data, does not mean you are forbidden from using it. As long as you need it to do your job, you can store it. The internet would not work, if everybody was forbidden from storing any IP address. So to summarize it: yes, it is personal data since it identifies a subscriber. However, it is needed for the job your subscriber asked you to do. So for as long as the job takes, it is legal to store it. Once your job is done, you would be required to delete it. But consent trumps everything. If your subscriber consents to you keeping all data of such incidents to improve your network and handle future incidents better, then it's legal. Just let them sign it with your other legal paperwork. Done. No problem. You could just periodically delete all records that have no consent for long term storage beyond the current incident. Lets say every 24h or 48h. You should get the details on the wording of the paperwork and the period that it is legal to keep the data as "current incedent related" from your data protection officer or legal department. | Since sales are in dollar and the OP does not specify a jurisdiction, I will assume Washington state US. You may need a business license, depending on the municipality. There are various permits required for sale of certain wares, such as food, explosives or poisons, but otherwise no special municipal permits are required. A state money transmitter license is required, and there are a number of bond and auditing requirements that also have to be obeyed. The state has a website which implies the pertinent restrictions, but does not actually explain them or how to comply: you would need to hire a lawyer to determine what you have to to to be legal. Those restrictions are not limited to flea markets, they regulate all bitcoin sales in the state, including internet and yard sale. | Generally speaking, in U.S. law, a provider of a service via the Internet, such as a VPN, is immune from liability for user generated content pursuant to Section 230, so long as a copyright take-down notice is in place is complaints are lodged. So, you do not default to liability or have liability merely as a result of running a VPN. But, there is a second problem. If the VPN is very small and you can't be distinguished from other users, you could conceivably face risk not as a VPN operator, but as a user of the VPN who is confused for someone engaging in illegal activity. For example, suppose that there were five users, and that two could be ruled out due to being in places with no Internet access or being sick in the hospital, etc., leaving three possible suspects, and some weak circumstantial evidence pointed to you. You could easily become a prime suspect and maybe even end up on a terrorism watch list, even if it might be difficult or impossible to actually prove any wrongdoing on your part. | An IP ban prevents a user from accessing a website if they are using a certain IP address. This is done by the website- your IP is needed to connect. There is no need to inform your ISP, law enforcement, or your parents. Even if there was a chance of you being IP banned from Reddit, which there isn't, this would affect nothing besides making you unable to access Reddit. | I think this shows a misunderstanding of the meaning of the GDPR. A data subject has the right to demand information, correction, deletion etc. about some of their data held by some institutions, depending on the legal basis for the data processing. One John Smith does not have the right to see the data of any other data subject named John Smith, and he cannot even demand to know if there are other John Smiths in the database. The data controller has to make reasonable steps to ensure that an individual who seeks account information is in fact the individual who is the data subject. In the case of an email, that's usually easy -- if John Smith can access the mail account [email protected], one can assume that he is the John Smith who opened the account. If not, then not. If the data controller has the birthplace and birthdate in their records, they can possibly match that against some government-issue identity document, too, but why would they have that data? |
Are Police legally allowed to confiscate a Camera and Phone over "suspicious activity"? A photographer is recording from a public sidewalk when he is confronted by Police. He refused to give his information because he had committed no crime. The Police then tried to claim that he was loitering in order to arrest him. Under threat of arrest, he gave his name and information to the Police. Afterwards the Police confiscated his camera and phone under "suspicious activity". Did the Police act legally when they confiscated his property? Since the photographer was conducting a 1st amendment protected activity. Could he have been charged with loitering? Here is the video for reference: https://www.youtube.com/watch?v=OWOtUDf0elQ | The district court judge, as reported in this news story has held that there was probable cause to arrest Daniel Robbins in this case, and that his rights were not violated. If this ruling stands, officers acted legally, although they might still be required to return the phone with the images. Whether there is probable cause for an arrest (or a search) is always a very fact-based issue. I have not found the judge's actual decision, only a news summary of it, which can often be misleading. Specific facts about exactly what Robbins did or said may be important in determining whether there was in fact probable cause. It appears that Robbins intends to appeal this decision. If he does there may be an opinion from a Circuit Court of Appeals expanding on whether there was probable cause or any violation of rights, and why. Previous cases have established that normally there is no reasonable expectation of privacy for acts performed in public; that one my photograph or video record such public acts legally from anywhere that one may legally be; that there is a right photograph or record police officers engaged in official actions or the use of police powers; and that laws attempting to forbid such recording are unconstitutional when so applied. However, it seems from the news story that here the police officers were off-duty and not engaging in any official acts or use of police powers. That might change the ruling. I rather expect the district court's decision to be overturned, but there is no case exact;ly on point that i know of, and one can never be absolutely sure what a court will do in a particular case. I can see why police officers may have felt threatened, and why the Judge may have been inclined to sympathize with them, although I think the decision was incorrect. But a Judge of the Appeals Court might possibly feel the same way. Until the Appeals Court rules, one cannot be sure what the law in this matter will finally be. (It is possibly, but statistically a bit unlikely, there there will eventually be a ruling from the US Supreme Court on this case.) This article from Nolo Press discusses the issue of recording police, primarily in the context of police who are performing their official duties. It says: Almost every court to consider the issue has determined that the First Amendment gives you the right to record (pictures, video, and audio) police officers in public while they are performing their duties. But that doesn’t mean you’re allowed to record if you’re doing so surreptitiously (secretly), interfering with the officer, or otherwise breaking the law. The courts' primary rationale for allowing police officer recording is that the First Amendment includes the right to freely discuss our government, and the right of freedom of the press and public access to information. Given the prevalence of personal filming devices, more and more “news” is being gathered and disseminated by members of the public. The courts have found that freedom of the press applies to citizen journalists and documentarians just as it does to formal members of the press. (See, for example, Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).) The Nolo article goes on to discuss whether a Section 1983 Federal suit against police officers who arrest someone recording their actions will succeed, indicating that this will depend on the specific facts of the case. The Nolo article mentions that one is not allowed to interfere with an officer during process of recording. What exactly constitutes "interference" is not fully clear, and will depend on the facts of a specific case. The Nolo article mentions other circumstances when recording an officer may not be legal. | Your appraisal is unjustly harsh, though not incomprehensible. A surprising number of lawyers are legally illiterate, in the same sense, even Supreme Court justices have to be told what the law is in a certain sense, and they often have to discover the law rather than recite it. Bear in mind that the typical education requirement for being a police officer is graduation from high school, and not a law degree. The educational requirements for the FBI are stiffer. They learn certain basics in a training course that lasts a few months, which covers everything. There is no law prohibiting a police officer from "harassing" a person who wants to film them. The line in the sand is that they cannot prevent a person from filming them. It would be interesting to know how many officers are actually unaware that they cannot force a person to stop filming. Also, the statement that they "can't" stop a person from filming them is a bit of an over-statement – they actually are capable of doing that, but what are the consequences? Given qualified-immunity, their own concern reduces to two issues: personal liability (getting sued) and department procedures manual (getting fired). It is invalid to infer ignorance from a particular pattern of behavior. | NO It is decided state-by-state (for state-wide agencies like state troopers), and county by county, and city-by-city whether or not to buy and use cameras. Also, they are not usually always running. Policies as to when officers are required to turn them on vary as well as when the public and the involved officers get access to the recordings. | Anyone can be arrested, as long as the police (and in some cases, anyone) have probable cause to do so. This generally includes two points: You are in the process of committing a criminal act The police have probable cause, generally through evidence, that you are in the process of, about to, or have committed a criminal act. This usually requires obtaining a warrant for the arrest. However, it's important not to conflate searches with arrest. Arrests are when you are being taken into custody for the reasons mentioned above. Searches are when your personal belongings (i.e. property), are searched to collect evidence. It is not up to police to convict someone. This is the job of the judicial system. There's a bit of terminology here: convictions basically mean being found guilty of an offence. Police don't have the ability to convict someone of an offence. They do have the ability to arrest, and charge with an offence. To charge someone with a crime basically means to accuse them of having done something. Now let's get to the actual crime. Since you haven't mentioned a specific jurisdiction, I'm going to use Canadian cases and law, but in general, it should apply worldwide. If the police have reason to believe that you are engaging in unlawful hacking-related behaviour, then they have the authority to arrest you. They simply need to have a reasonable belief that you are engaged in the crime. Something such as connecting you with an IP address and connecting that you were online at the time is enough. If the police need to find out more information (which they generally do, to investigate further into the matter) - they can obtain a search warrant afterwards. With this, they can legally search into your computer, and investigate. Any evidence that they collect can be used in court. I've recently done some research into cyber crimes. One rather infamous case involved the attack on multiple large scale websites, including Dell, Yahoo, and Amazon, in 2000. This sparked a large scale investigations, between the RCMP (Royal Canadian Mounted Police) and the FBI. The attacks were claimed by some to cause nearly 1.7 billion dollars of damage. The hacker was charged with 58 different offences. You can imply from the linked article that he was arrested before his computer was searched. | In the US, does a person photographing private property (houses, farms etc.) while standing on public ground (road, park etc.) commit any offence? No. In general, while standing on public land, it is legal for your eyes to glance onto everything around you. You cannot be arrested and imprisoned for allowing your gaze to pass over your neighbours lawn. It is legal for you to take out a tripod, canvas and paintbrushes and paint the general scene, even if it includes, for example, a tree standing on private land. Instead of a paintbrush, you may use a camera to create a picture of the scene. There are a few exceptions Some military installations Some installations operated by the department of energy (e.g. some nuclear power stations) You cannot photograph people where they have a "reasonable expectation of privacy" - Note that this is not dependant on how the people feel about it. You can photograph a couple kissing at a bus stop, you probably can't legally point a telephoto lens at their bedroom window through a broken privacy-fence. will they commit any offence by publishing the photos They may need copyright permission from the owners of any identifiable works of art included and may need model releases from identifiable people included. There are specific exceptions allowing the publishing of photographs of sculptures and buildings that are visible from public spaces. See The Photographer's Right | There are two issues, one is the legal issue of whether what you are doing is a crime, and the other is the evidentiary issue of proving that that is what happened. If you take the phone home with the intention of keeping it ('finders keepers') then you have committed larceny (sometimes called 'theft', sometimes correctly). This specific type is called 'larceny by finding'. If you take the phone home with the intention of finding the owner then you have not committed larceny because you have not committed the mental element ('mens rea') of the offence: you don't intend to permanently deprive the owner of their rights. However, and this is the evidentiary issue, if hypothetically you were found in possession of the phone then the police might not believe your explanation and a court might well convict you of larceny. P.S. Firefox has marked 'evidentiary' as a spelling error and suggested 'penitentiary' instead. :s | This has yet to be specifically decided in the federal courts. The Post Office can set "rules of conduct" for its facilities. Prohibiting photographing is plainly a restriction on one's First Amendment rights, and it is established beyond question that a government cannot issue / enforce a blanket prohibition of public photographing. Someone would have to take a case to court to determine whether this limitation on First Amendment rights passes the relevant level of judicial scrutiny. The rationale (as set forth by the USPS) is that such photographing may be "disruptive". One can perhaps analogize the right to film police with a new-found right to film post office, following from a right to public oversight over the government. DHS gives general guidance of its own (with a pile of redacted stuff), directing you to 41 CFR 102-74.420. Permission is thus required, until the courts find that to be an unconstitutional restriction (I would not expect there to be such a finding). But it is not unthinkable that the courts could at some point so rule. The YouTube aspect of the question is irrelevant: if you have the right, you have the right, and it doesn't derive from nor is it blocked by an intent to distribute on YouTube. | No, they cannot confiscate anything. They say they can just to minimise the percentage of people who will disobey the filming prohibition. A sensible percentage of those who would otherwise ignore the prohibition will not question the legality of possible confiscation and will just obey the rules. |
Is dumping a bucket of water on a police officer assault? In NYC, headlines include locals dumping buckets of water on the police officers. https://www.washingtonpost.com/nation/2019/07/23/new-york-cops-throwing-water-de-blasio-unions/ | In New York State it is not assault. Third degree assault (the least degree) is defined as: A person is guilty of assault in the third degree when: With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or He recklessly causes physical injury to another person; or With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument. It might be menacing in the third degree, defined as when one by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury. The jury would decide based on these instructions, which does not clarify the situation much, but clearly the officer(s) would have to think that there was more to it than just water. | 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. | No. There are plenty of Quebecois laws covering what you must have water for (food prep, bathrooms, etc) and that if you are using the water in any fashion that it might come in contact with a human mouth (i.e. food preparation, etc) it must be drinking water (as defined in the document I linked), but no such laws requiring free distribution of drinking water on request by restaurants. It's worth noting, I suppose, that tap water must be provided by restaurants in their bathrooms for the washing of hands and that said water must be of drinking water quality, but they are not required to offer it in a glass, free of charge. Anecdotally, I will also note that there are laws in several other Canadian jurisdictions that DO require free drinking water on request, but those laws also do not stipulate the glass must be provided for free. | Are police required to contact a real lawyer if you ask? give opinions from a number of lawyers and police in different jurisdictions. The basic consensus is that in most jurisdictions, such behavior will get the case thrown out of court and often get the police officer who tried this fired. HOWEVER there was a case where this was tried and while the case was thrown out on appeal, it was not as simple as the postings in the above article may have made it appear. This story shows a case where the Tennessee police actually did this. While the lower court allowed it because the defendant was "gullible", the appeals court rejected this argument. [T]he conduct of the law enforcement officers in this case, and in particular Detective Henry, is so egregious that it simply cannot go unchecked. That Detective Henry would illegally pose as an attorney and arrange the circumstances of the defendant’s case to make it appear as though he had successfully undertaken legal representation of the defendant is abhorrent. That the detective would specifically instruct the defendant not to communicate the relationship to his appointed counsel, in what we can only assume was an effort to enlarge the time for the detective to gain incriminating information from the defendant, renders completely reprehensible the state action in this case. Given the unconscionable behavior of the state actors in this case and the fact that the defendant was essentially prevented from proving prejudice through no fault of his own, we have no trouble concluding that the only appropriate remedy in this case is the dismissal of all the indictments. | Assuming that all of these locations are in the same state, this is not an issue of federal law and is not governed by the U.S. Constitution. The geographical jurisdiction of state and local law enforcement officers is exclusively a matter of state law and has no single correct resolution. Different states handle the issue differently. Even if state law or the state constitution prohibited the arrest, this violation of state law or the state constitution, would not give rise to a federal claim for violation of civil rights under 42 U.S.C. § 1983, which may vindicate only federal rights, and could not form a basis for a collateral attack on a state court conviction in a federal court habeas corpus petition which is likewise limited to vindications of federal law rights. Any remedy would have to be secured in the state court system invoking state law rights (assuming for sake of argument that state law provides such a remedy), or in a diversity lawsuit in federal court applying state substantive law, if the defendant was from another state and the amount in controversy was in excess of $75,000. | There was a case like that in 2010 in germany tl;dr synopsis of the German article: The police raided the private home of an alleged member of a criminal gang. This was performed as a no-knock raid. The police officers did not announce themselves as such when they started to break open the door. The suspect had reason to believe that a rival gang was planning an attempt on his life. So the suspect believed that the people trying to break into his home were actually members of said gang trying to murder him. The suspect used a firearm to shoot at the intruders through the door, lethally injuring a police officer. When the police officers then identified themselves as such, the suspect surrendered immediately. A court later ruled that killing the police officer was self-defense, because they were reasonably convinced that the defendant was unaware that he was dealing with police officers, believed to be in a situation where his life was in danger and where lethal violence was the only way to save his life. Here is the verdict. [In German, of course] | I did not perform a complete survey but The Jurisdictional Limits of Campus Police reports that, "subject to jurisdictional constraints, campus police officers had virtually the same powers as their municipal counterparts." (Internal quotes omitted.) Generally speaking, police are police not administration. Here are some statutes: ILLINOIS HIGHER EDUCATION (110 ILCS 1020/) Private College Campus Police Act. The Board of Trustees of a private college or private university, may appoint persons to be members of a campus police department.... Members of the campus police department shall have the powers of municipal peace officers and county sheriffs. MASSACHUSETTS General Laws PART I TITLE II CHAPTER 22C Section 63. The colonel may... at the request of an officer of a college, university, other educational institution... appoint employees of such college, university, other educational institution or hospital as special state police officers. Such special state police officers shall... have the same power to make arrests as regular police officers for any criminal offense committed in or upon lands or structures owned, used or occupied by such college, university, or other institution or hospital. Oklahoma 74-360.17 ...certified campus police officer shall have the authority to enforce... State criminal statutes. Campus police departments formed by private institutions of higher education pursuant to this act shall be deemed to be public agencies in the State of Oklahoma Here is a case: People v. Boettner, 362 N.Y.S.2d 365 (N.Y.Sup., 1974) is a case where school officials at a private school tried to get the cops to come execute a search. While the cops were dragging their feet obtaining a warrant, the school officials did their own search, found marijuana which they turned over to the police. Suspect was arrested and convicted. When the cops can't go into the room, send in the administration. Sort of. present search and seizure was conducted by college officials in a private capacity without government knowledge or participation and concludes that as such it is not subject to fourth amendment constraints. While it is true that a student does not lose his constitutional rights at the school house door or at the entrance to the college campus neither does he become cloaked with greater protection than any non-student who is the subject of a seizure of evidence by a private citizen. BUT the judge makes sure we understand that "State Police had no knowledge of and did not participate, directly or indirectly, in the search conducted by RIT officials on the 15th." So "it cannot be said that the RIT officials who decided on their own to search defendants' rooms were acting as agents, either actual or implied, of law enforcement.... Nor can it be said that the present search was only one incident in a close and continuing relationship between RIT and local law enforcement officers.... In the final analysis, RIT acted on its own, for its own reasons, and to further its own purposes." Regarding a written policy: The fact that the rules of the college regarding room searches were not complied with is of no consequence in determining the admissibility of the evidence for purposes of a criminal proceeding. Public schools are an entirely different animal. In those cases the university staff are public employees and their searches can be fourth amendment violations but they ARE allowed to conduct searches subject to the "reasonable exercise of University supervisory duties." "Even though the special relationship that existed between these petitioners and Troy University officials conferred upon the University officials the right to enter and search petitioners' dormitory rooms, that right cannot be expanded and used for purposes other than those pertaining to the special relationship." Piazzola v. Watkins, 316 F.Supp. 624 (M.D. Ala., 1970) Moore v. Student Affairs Committee of Troy State Univ., 284 F.Supp. 725 (M.D. Ala., 1968) | Let me give you a simple, even if rather silly example: You take me to a civil court. You tell the judge "gnasher regularly parks his blue car in front of my home, and the color blue violates my sense of beauty. Judge, make him stop it. " A question of fact would be: Is my car actually blue? Not green, or red? And do I actually park my car in front of your home, and do so regularly? A question of law would be: Am I allowed by law to park my car in front of your home, even when my car has a color that you don't like? If this goes to a civil court, the judge would look at it and probably say: "Even if all the facts that 'Gimme the 401' claimed are true, as a matter of law there would be no case for gnasher to answer, since these actions would be permitted by law". If the judge decided that it is illegal to park cars in offensive colours in front of someone else's home as a matter of law, the court would then have to decide the facts: Whether what you claimed is actually the truth. (And while this example is silly, there have been people claiming that the neighbour's use of WiFi interfered with their health. And by law it is illegal to interfere with someone's health, so the facts would have to be examined). |
Is it legal to sell products whose design uses titles of copyrighted songs? There are some similar questions here, but I believe mine is a little different. Is it legal to sell products (t-shirts, mugs, etc.) that use typography art of the titles of famous songs. Also, can these be legally advertised by me, non-copyright holder, with the name of the band, or artists? | If the typography is a significant aspect of the overall art of a song title - wherever the song title may be reproduced, i.e. poster, CD cover, etc. - than I'd say that's part of the copyright of the artwork as a whole and not simply the title, and is under copyright. Further, individual type faces can be under copyright themselves. And band names can be trademarked; you will need permission to use the name for products and advertising, since using the name will imply an endorsement from that band. | 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. | 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 | Yes Both melody and lyrics source back to the middle ages, as for instance described here. The difficulty could be to make sure you rely your derived work on a variant that is really in the public domain. E.g. if you use notes or lyrics from the Simon & Garfunkel version and derive from there, you might violate their copyright. | With respect to the Table of Contents - in the US: https://www.copyright.gov/circs/circ01.pdf What Is Not Protected by Copyright? Copyright does not protect • Ideas, procedures, methods, systems, processes, concepts, principles, or discoveries • Works that are not fixed in a tangible form (such as a choreographic work that has not been notated or recorded or an improvisational speech that has not been written down) • Titles, names, short phrases, and slogans • Familiar symbols or designs • Mere variations of typographic ornamentation, lettering, or coloring • Mere listings of ingredients or contents For more information, see Works Not Protected by Copyright (Circular 33). In the UK (here) : Copyright protects only the expression of ideas, not the ideas themselves. For example, two artists may paint the same scene but portray them in ways that are slightly different, without infringing each other’s copyright. At the same time, the fact that the series Lost is copyright protected does not prevent you from writing a story about a number of people who are forced to live on a remote island after a plane crash. Taking inspiration from someone else’s work is therefore acceptable, but in order to have copyright in your work and avoid infringement you need to create something original by using your own skill, labour, judgement and effort. Using another’s work is copyright infringement when ‘the work as a whole or any substantial part of it’ has been copied. Unfortunately, the precise meaning of these concepts is defined on a case-by-case basis. In deciding cases like this, courts will weigh the potential impact upon the originator’s ability to market their work with the concern that other people should be able to use it in order to draw inspiration for future work. Now - just to dive a bit further in and have a thought experiment. Using those titles in your question as your titles, would be fairly anodyne and would likely NOT constitute a breach of copyright as they are merely describing what most study guides have at the beginning of their contents page! Substantial material has not been copied. However - if we engage our law heads and accept that this may not be a criminal issue, but rather a civil tort/wrong that could lead to a law suit if the book owner were to discover your copying of their exact titular layout in order to structure your course. If you made a full course, with say 50 topics that are mapped exactly to the same topics, in the same order - it could be argued by a lawyer that you are stealing someone's creative structuring of a study guide. They would then have to persuade the court that this was the case. You might argue that these topic headings were common to most study programmes for Python and represent fair communal use - see [here][2]. It is also hard to argue 'creativity' and expression in a fairly standard TOC page. There are exceptions to copyright in some educational circumstances ([here][3]). I would have said that a simple remedy would be to rename and restructure the titles as much as possible to prevent such a link from being made - thus showing you have put your own effort into constructing your own course outline. However you have also included "and the main ideas" - this might take us down another road entirely if you mean the main ideas from within the chapters themselves.... see [here][4]. When creating new work, it is natural to be inspired by the work of others. However, there is an important distinction between simply being inspired and unlawfully copying. In order not to infringe someone else’s copyright – meaning that you trespass on or otherwise interfere with their rights – you need to make sure that your work is substantially different to the work that inspires you. According to UK copyright law, your work is considered original – and thus protected by copyright – if you use your skill, labour, judgement and effort to create it. Using another’s work is copyright infringement when ‘the work as a whole or any substantial part of it’ has been copied. The meaning of ‘substantial’ changes is defined on a case-by-case basis. Usually the court focuses on the quality of the parts taken, not necessarily the amount, and the circumstances of each case. [2]: https://www.bl.uk/business-and-ip-centre/articles/fair-use-copyright-explained#:~:text=The%20concept%20of%20fair%20usage,s)%20or%20infringing%20their%20interest. [3]: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/375951/Education_and_Teaching.pdf [4]: https://www.copyrightuser.org/understand/rights-permissions/using-reusing/ | When you license your IP (like a song) you can specify the terms and conditions of its use by the licensee, including revenue shares from any derived work. However, if, as your comment suggests, you grant an "informal" license, and later decide that you want to "firm things up" with a license having different terms, that's a matter you would have to either negotiate or litigate with your counterparty. If you want a common reference point for negotiation of this sort of license, you might have a look at compulsory license terms. | Those posts are talking about making a modified copy of a copyrighted work. The key word is copy. You are not making a copy. Copyright is not about how a physical embodiment of a copyrighted work is treated. You can burn a book and shred a newspaper. Neither of those actions is making a copy. Also, cutting up a newspaper and pasting a picture on your wall has nothing to do with any “derivative works” issue. | Copyright law doesn't say the art isn't copyrighted if it was made unlawfully. It seems the art can be copyrighted and the act of making it can be a criminal offence. I'm not aware of any such copyright cases that have gone to trial. A fairly well known case that settled out of court is that of Jason “Revok” Williams and H&M. Williams noticed his art in a photograph used in an H&M marketing campaign. His lawyer sent a cease-and-desist letter to H&M. In response, H&M applied for a court order stating that the product of an unlawful act could not be copyrighted. Following some bad publicity H&M relented and settled with Williams. H&M stopped using the photograph and withdrew the application for the court order. (News source) ... The debate over street artists’ copyright privileges has entered courtrooms quite a bit over the past few years, according to Philippa Loengard, deputy director of Columbia Law School’s Kernochan Center for Law, Media and the Arts. ... The [H&M] claim wasn’t surprising, Loengard said, but it also doesn’t hold up. At its core, a copyright requires only two things: that the work is original and that it is a tangible medium of expression. [Loengard said,] “ … Copyright is not a legal or illegal sanction of the activity that was done to produce the work. Copyright is a separate entity.” Another case settled out of court is that of Joseph "Rime" Tierney and Moschino. Tierney sued Moschino for using his art on its designs. One day before the court was notified of the intention to settle, Moschino sought to have the case dismissed on the grounds that unlawfully made art could not be copyrighted. (News source) "As a matter of public policy and basic logic, it would make no sense to grant legal protection to work that is created entirely illegally." |
Is the statement "I/we am/are pressing charges" incorrect? In the media and in everyday life it is common to hear things like: "Are you going to press charges?" "Did Bob Press charges?" "I am going to press charges against that jerk" Or something along those lines. These statements make it seem like individual citizens have some ability and all mechanisms at their disposal to bring a charge upon someone or something. I am wondering if what is really being said in these statements is more like: "I am going to press the District Attorney to charge my assailant" Or "I heard Jan and Bob feel very wronged by Mike and they will be speaking with the DA today in hopes that charges will be filed" So the question is this: Is pressing charges the act of convincing or informing the true authority that can do such a thing to indeed take the action? Or is there some mechanism/action that takes place when a person says they are going to "press charges" that I am unaware of? | The General Rule: The Prosecutor And Not The Crime Victim Decides You are correct that this is mostly wrong. Pressing charges is something that happens. But, this simply consists of making a report to law enforcement about an incident and asking that the prosecutor either directly, or indirectly through a request directed to the law enforcement officer to whom a report is made, to pursue criminal charges in the case. But, this request has no binding or legal effect, even though many law enforcement agencies and prosecutors offices have a formal or informal unwritten policy of honoring a crime reporting victim's wishes whenever possible. In the United States, a prosecutor can commence a criminal case against someone without consulting a victim of a crime, or over the objections of the victim of the crime, and can even (and sometimes does) incarcerate the victim of the crime to force the victim to testify against a criminal defendant (this most often happens in cases of statutory rape, domestic violence and cases involving organized crime or gangs). Likewise, a prosecutor (in the United States) can choose to decline to prosecute a criminal case despite irrefutable evidence tied up with a bow and the pleas of the victim and lots of other members of the general public. (Not all countries are like this. For example, in Germany, some crimes can only be prosecuted with the victim's consent, and within reason a prosecutor is required to prosecute every case in which there is clear evidence that a crime was committed and the victim's consent, if necessary, is present. While Germany is something of an extreme case, it is much closer to the norm than the U.S. is in countries that do not have a common law legal tradition, while the U.S., while an extreme case, is closer to the norm of countries in the common law tradition of British law.) A crime victim's wishes aren't entirely irrelevant in practice. Many states have a "victim's bill of rights" that requires a prosecutor to confer with a victim when possible over whether a criminal case will be commenced against a defendant, and in practice, many prosecutors in ordinary type cases come to think of the victims of crimes, rather than "the People" as their client, even though that isn't technically correct from a legal perspective. Most of the time, a crime victim's wishes will be respected by prosecutors whether conveyed directly to a prosecutor, or indirectly through a law enforcement officer. But, nothing requires either a law enforcement officer or a prosecutor to do so. Law enforcement officers in some ways have even more discretion than prosecutors do and simply don't pass on information about myriad crimes that they have knowledge of and could prove, every day. But, prosecutors can choose to disagree with a law enforcement officer's exercise of discretion when they do know about an incident, either by declining to prosecute a crime, or by prosecuting a crime that law enforcement officers didn't want to prosecute. And, law enforcement officers as a matter of practical reality can be forced by prosecutors to execute search warrants and arrest warrants. Also, it is true that when neither law enforcement or prosecutors know a crime has been committed that they can't prosecute it, and usually, the way that they learn of a crime is that a crime victim reports the crime to law enforcement. The decision to report or not report a crime not known to law enforcement is, in practice, what "pressing charges" or "not pressing charges" usually means and this does, in practice, constitute a veto power over further criminal proceedings arising from an incident, even though the language used implies a more formal step in a legal process than it does. Exceptions To The General Rule N.B. Notwithstanding the foregoing, there are a few exceptions to the general rule. A handful of U.S. states, so far as I know, all on the East Coast (and also England and South Africa), allow individuals who are crime victims to directly commence the prosecution of minor crimes in a court of law without the intervention of law enforcement or a prosecutor, or grand jury, often without an attorney. Usually, if this is done, the prosecuting attorney's office can take over the case from the private individual litigant if they choose to do so. A discussion of the historical practice with case citations can be found here. In the roughly half of U.S. states and in the federal system, where felony criminal charges must be brought via a grand jury indictment before they can be tried, a so called "runaway grand jury" can bring criminal charges that the prosecutor has a duty to make a good faith effort to prosecute, without the request of the prosecutor convening the grand jury. For example, in a recent Alabama case, prosecutors went to a grand jury seeking felony charges against someone who shot a pregnant woman, and the grand jury decided to indict the woman who was shot for manslaughter on the theory that she caused the death of her unborn child by starting a fight that led to the shooting. The prosecutor's office once it had control of the case, and had observed the public outrage over the decision, then dismissed those charges. There are a few states where a crime victim who is dissatisfied with a prosecutor or law enforcement officer's exercise of discretion can apply to a court to have a disinterested and uninvolved attorney appointed as a special prosecutor to review the facts of an alleged crime and decide independently regarding whether criminal charges should be pressed in a case where law enforcement and the prosecutor's office declined to do so. This is most frequently invoked when the alleged perpetrator of the crime is connected to law enforcement or the prosecutor's office. Also, just become a prosecutor declines to bring a criminal case despite a crime victim's desire to "press charges", this doesn't mean that the victim can't sue the person who committed the crime for money damages (including punitive damages in many cases) from the same conduct that constituted the crime. In big dollar cases involving fraud or theft from a small number of affluent victims (a kind of case I frequently handle in my law practice), this happens all the time. | I have not read the news report so cannot comment on the alleged offences and police conduct, but what I can say is that the information to given on arrest may be found at section 28 Police and Criminal Evidence Act 1984 (PACE): (1) Subject to subsection (5) below, where a person is arrested, otherwise than by being informed that he is under arrest, the arrest is not lawful unless the person arrested is informed that he is under arrest as soon as is practicable after his arrest. (2) Where a person is arrested by a constable, subsection (1) above applies regardless of whether the fact of the arrest is obvious. (3) Subject to subsection (5) below, no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as is practicable after, the arrest. (4) Where a person is arrested by a constable, subsection (3) above applies regardless of whether the ground for the arrest is obvious. (5) Nothing in this section is to be taken to require a person to be informed— (a) that he is under arrest; or (b) of the ground for the arrest,if it was not reasonably practicable for him to be so informed by reason of his having escaped from arrest before the information could be given. Note the provisions at subsection (3) do not require anyone else to be told the grounds (reasons) at the time of arrest - including members of the public, protesters, bloggers or the press. Kerb-side debates can seriously or significantly distract the officer from ensuring e.g. public safety or preventing e.g. an escape from custody. Also, depending on what else is going on e.g. say in a dynamic and volatile crowd control or public order situation, the person under arrest does not need to told immediately if it would be impractical to do so. The operative phrase being as soon as is practicable, which is not defined by statute as each case needs to be considered individually according to its own set of circumstances. The relevant case law is DPP v Hawkins [1988] 1 WLR 1166, but the only detailed commentary I can find online is behind the PNLD paywall1. Succinctly, the magistrates initially dismissed the case against Hawkins for assaulting four police officers who kept him under arrest without giving the grounds as required by s.28(3) PACE. The DPP appealed, and the Court of Appeal sent the case back to the magistrates saying, inter alia, although there is an obligation under s.28(3) to tell a prisoner of the reason for his arrest as soon as possible (sic) after his arrest, a constable was also under an obligation to maintain that arrest until it was practicable to do so. 1Or free to law enforcement officers | Police officers can lie to you He asked to search your car. He’s allowed to do this. You said no. You’re allowed to do this. He lied to you when he said he would get the K9 to search the car - this would not be legal. But he’s allowed to tell you lies. You made an admission of criminal activity. He now has probable cause to search. He legally searched, confirmed your admission and booked you. Seems legit to me. | In Massachusetts where I live, here are the general guidelines: In re G.L. c. 268, § 32B(b). A person can be charged with resisting arrest only when the officer is acting under the color of his official position (meaning he is on duty and acting according to those duties). The Commonwealth must also prove that the defendant knew that the person seeking to make the arrest was a “police officer.” The Commonwealth may do so by proving that the officer was in uniform or, if not in uniform, identified himself (herself) by exhibiting his (her) credentials as a police officer while attempting to make the arrest. Such credentials would include such things as a badge, insignia, identification card, police radio, or other police equipment such as a clearly identified police vehicle. Thus, in Massachusetts according to usual legal interpretation: (1) The officer must be on duty and acting in an official capacity. (2) The officer must be provably known to be a police officer by some means to the person charged. Resisting arrest must be ancillary to some other charge. You cannot just be charged with "resisting arrest" unless you are actually being arrested on some other charge (or interfering with someone else being arrested). So, as far as a search is concerned, even if the resisting arrest charge were thrown out, the real question would be why was the person being arrested in the first place? That would determine the admitability of the evidence. | Nothing is typical Investigators have wide discretion on how (and if) they pursue an investigation of an alleged crime. When they make an arrest is part of that discretion. Making an arrest starts all sorts of clocks running on the legal process and investigators may not want to do that for all sorts of legitimate reasons. | In closing arguments, an attorney should only refer to evidence that was admitted at trial. In opening arguments, an attorney may refer to evidence that the attorney reasonably believes will be admitted at trial, and if the attorney has grounds to admit the transcript as an exhibit, could do so. If not, the attorney could still reasonable state: the evidence will show that an arresting officer described Mr. Jones as "crazy" without showing a transcript or explaining where it comes from (on the theory that the officer will either testify to that effect at trial or will be impeached at trial with the transcript for testifying in a contrary manner). Usually the transcript can usually be admitted only for impeachment, so usually it wouldn't be admissible absent contrary testimony at trial. But there are exceptions that apply to that rule which could make it admissible and hence proper to reference or show in opening arguments. | Yes The rule against prosecuting a sitting President is not a law, it is a Justice Department opinion and policy. The justification for it is that dealing with a criminal case would be severely distracting to the President, and thus harmful to the nation. Besides, the opinion goes on, any serious issue can be dealt with by impeachment. That reasoning obviously does not apply to a former President. Article I, section 3, paragraph 7 of the US constitution says: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. (emphasis added) This clearly contemplates the criminal prosecution of a former office holder, after such a person was removed by an impeachment. There is no exception for a President. Therefor a President can be criminally charged and prosecuted for actions during the presidency, provided that the evidence to establish probable cause is there, and that a Grand Jury indicts said former President. So far as I know there has never been a case where such a thing was done. President Ford's pardon of President Nixon stopped any Federal prosecution of him. I think there have been cases were former US Judges, after impeachment, were criminally prosecuted. But that is not quite the same thing -- no one claims that sitting judges are immune to criminal charges. To be clear this would not apply just to issues that a President had been impeached for. A former President is no different from anyone else in this respect. Any such person can be prosecuted if there is probable cause, and convicted if there is proof beyond a reasonable doubt of criminal violation of some law, even if the violation occurred while the president was in office. | Perjury is not 'not telling the truth'. It requires (in most jurisdictions) being proven to have deliberately lied under oath. As Xavier pointed out, you are not on oath when entering a plea (among other reasons, you would be required to incriminate yourself). Secondly, "I am not guilty" could mean anything from "the prosecution wrongly think that what I did is illegal" to "this law is unconstitutional" even if the facts are not in dispute; either may be mistaken without being a lie. If the facts are in dispute, the jury will have to deliver a verdict that implies (it does not state, let alone prove) that they disbelieve one party; deliberate falsehood, whether by a defendant or a police officer, would be several steps beyond that. |
ability to eat bacon as a job requirement Let's say, I'm starting my own company and consider to hire some people. May I or may I not put the ability to eat bacon as a job requirement for every employee? If I did so, how many lawsuits would I get? If some candidates don't meet this requirement for some reason, would that be considered a discrimination or would it just look like these candidates do not fit the company's culture? | This potentially (i.e. almost certainly) runs afoul of laws against religious discrimination. However, you can have such a requirement provided you make an accommodation for those with sincerely held religious beliefs or practices against bacon-eating. You can also have such a requirement (despite the beliefs) if not having the requirement imposes an undue hardship on the business. For example, if the job is "bacon taste-tester", then there's no reasonable accommodation. This applies to religious objections, since religion is protected class, but not "I don't like bacon" as an objection; nor does this apply to people who object to meat-eating on economic grounds. | Note: IANAL Does the placement of a sticker stating, "We accept XYZ credit cards," essentially obligate a business to accept that card? It depends on whether you mean whether they are obligated to provide goods/services to someone who presents the card, or whether, having provided goods/services, they are obligated to accept the card as payment. For the first question, the answer is "no". The credit card brand could theoretically go after them, however, as names of credit networks are trademarks, so claiming to accept a card but not doing so is trademark infringement. For the second, the answer is "pretty much". Since they misrepresented their establishment, there is no mutual assent and therefore no contract. If they try to use "defrauding the innkeeper statutes", those require fraudulent intent. If you fully intended to pay for you meal by a credit card, and it was their choice to refuse payment, then you have no fraudulent intent. The only avenue I can see for them is some sort of equity argument, but that would be problematic, especially if they ask for the retail, rather than wholesale, price, and not worth the hassle of collecting. So, legally, you can just walk out, but in practice if they have a bouncer they might make trouble for you. | I found a mention of this issue here, where the case Rhonda Eddy v. Ingenesis was cited. Eddy worked from home in West Virginia, but had signed her contract with a company headquartered in Texas. The link is the decision of The State of West Virginia Supreme Court of Appeals, which upheld the decision of the Circuit Court of Jefferson County, namely, that the Circuit Court did not have the authority to hear Eddy's petition against her employer because she was out of the Circuit Court's jurisdiction. The circuit court found that it did not have personal jurisdiction over respondent under West Virginia’s personal jurisdiction statutes, and that respondent did not have sufficient minimum contacts with West Virginia to satisfy federal due process considerations. The circuit court also found that it did not have subject matter jurisdiction over petitioner’s WPCA claim because petitioner’s employment contract contained a valid choice of law clause that mandated Texas law would govern any dispute between the parties. Emphasis mine. It all depends on stipulations made in the employment contract. This (in the United Kingdom) states 4. Place of Work Allows the employer to specify the location where the employee will work. However, it also allows for the employer to specify any other location in the future. This gives the employer much greater flexibility. That would seem to indicate that (at least in the U.K.) the place is specified in the contract. | The first part of the question is trivial to answer - if all men consider the salary on offer to be insufficient, even though it's the same salary that's paid to the (female) employees, then that's the voluntary choice of those men. Bob in all likelihood cannot insist on the presence of a male employee in the meeting. Some countries might have rules for the gender of doctors; many have rules for police officers doing pat-downs. But those are much more personal interactions than meetings. | Probably not. The impediment is the claim that you have a genuinely held religious belief. Changing the context a tiny bit, your employer is statutorily required to make an accommodation for the requirements of your religion, therefore they cannot fire you for refusing to work on the Sabbath, unless it would impose an unreasonable burden on them. If they fire you, you complain to the EOC and the EOC sanctions them. The employer's defense would be that you did not request a reasonable religion-based accommodation (you failed to explain that this was about Sabbath). The employer does not scrutinize the validity of your claim (does not demand proof of what your religion requires). In your planned announcement, you are not requesting a statutory accommodation from the government, analogous to requesting an accommodation from an employer, you are offering a defense in the case the government takes action against you for violating the law. There is a statutory exception to the prohibition against employment discrimination based on religion, that (roughly speaking) a church is not required to hire a rabbi instead of a mullah to deliver sermons. There is no statutory exception w.r.t. public accommodations and religious discrimination. Therefore, to implement your plan, you would have to have the law or the EOC's interpretation of it overturned as unconstitutional. To succeed in your argument, you would have to show that the law unconstitutionally restricts your free exercise of your religion. One part would be a demonstration that your religion prohibits... The least likely scenario is that your religion prohibits doing business with a person outside of your religion. I don't of any religion that maintains a requirement of absolute religious segregation, but that is hypothetically a path to argue – that you will burn in hell forever if you do business with a Christian, or a Muslim. I am maximally skeptical that the courts would ever take such a claim seriously. A more likely possibility would involve "compelled speech" as well, where you are forced under the law to express a viewpoint that contradicts your fundamental religious beliefs. You cannot be compelled by law to express a viewpoint. What is less clear is what constitutes expressing a viewpoint, see this. For example, there is a federal law withholding federal funds from schools which discriminate against military recruiters. Some law schools argued in Rumsfield v Forum for Academic and Institutional Rights that allowing military recruiters amounts to forcing the schools to express a viewpoint, but the court held that "the Solomon Amendment regulates conduct, not speech". The upshot of 303 Creative LLC v. Elenis is that "The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees". A proposal to refuse to service Christians plainly does not fall within the penumbra of that ruling. Nor does a refusal to print books containing religious material (which you already created). You have to cater to Christians, but you do not have to create Christian messages. You could draw a line between a simple ISP who you pay to make available your religious website (you create it), versus hiring a company to design the website, which clearly involves "expression". The issue is simplified if you don't make a claim based on a specific belief system, instead rely on simple "compelled speech" doctrine. General beliefs do not enjoy the same "Free Exercise" protections that religions enjoy. What matters is what you are "expressing", not what you are doing (like, printing). | Is blocking certain people while allowing everybody else to view some content discrimination Yes. and violate anti-discrimination laws Probably not, at least in the US. There is no federal law prohibiting "discrimination" in general. There are specific laws regarding discrimination against certain groups in certain contexts. They would probably not apply to an individual determining who is allowed to view their social media posts. That said, there are some specific contexts where this might be illegal. They would generally involve non-personal use of the account. The courts recently ruled that Donald Trump may not block people on his Twitter account, because he's using it in an official presidential capacity rather than just his individual capacity. Also, racial discrimination in housing is illegal, so if you're selling your house and you block all black people from viewing your house photos, that would probably be illegal as well. Also is not being able to consume information available on a public platform a violation against right to freedom. I'm not sure what you think a "right to freedom" would entail. But I don't think you have the right to demand that a person allow you to access their social media accounts. | 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). | A store owner may ban any person from that store that s/he chooses, provided that the ban is not for a reason forbidden by applicable anti-discrimination law, such as banning all people of a particular race or religion. That does not appear to be the case in this situation, from the description. Since this is a franchise, the store has a local owner who is not the chain company. The company will have a franchise contract with the local owner, which will specify in what ways the company can and cannot control the store. They might or might not have the power to require the store owner not to ban you, or not to engage in verbally abusive behavior in the store. In any case, you, or any third party, cannot force them to exercise such power, even if they have it under such a contract. It is very unlikely that law enforcement the authorities will treat the verbal harassment as a crime based on a customer report. You could publicize the situation, as by an online review, which might cause the chain company to take some action, for fear of bad publicity. But be careful. You have already learned that your initial understanding of the situation was significantly incomplete. If any public statements you make are untrue, and harmful to reputation, you could be accused of defamation and sued, perhaps successfully. |
Is employer responsible for tree damage to car parked in their lot (New Jersey, USA)? During high winds a tree branch fell on my car while parked at my workplace. The cops were called, but the responding officer said that it was private property and my employer's responsibility. He told me to take pictures and I got the impression that it wasn't "an act of god" kind of situation. It seems there were at least 2 similar incidents in the past few years with previous employees. The store manager was unhelpful and said it was my problem. This makes me wonder in a situation where a tree falls on a car in a private lot is it considered an act of nature? or does liability fall to the owner? | Probably not In order to establish negligence as a Cause of Action under the tort of negligence, a plaintiff must prove that the defendant: had a duty to the plaintiff, breached that duty by failing to conform to the required standard of conduct (generally the standard of a reasonable person), the negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged. What standard of conduct do you think your employer failed to conform with? Owning a tree or a parking lot is not, of itself, negligent. Further, the branch fell "during high winds" - the wind is not within your employer's control. Now, if you can prove that your employer knew that the particular tree was ill and likely to drop branches in high winds and failed to do anything about it, that might be considered negligent. I know of a case where a council who had refused permission for a tree to be removed because it was "healthy" was found negligent when that tree latter (in calm winds) dropped a branch on Jaguar. | Acme is bound by Bob's actions so long as they were conducted with "apparent authority" from the perspective of Client C and involved his work duties, even if he carried them out contrary to company policy - unless Client C knew for a fact that Bob was violating company policy and didn't have authority within the company to do so when he was doing these things. Acme, directly, or Acme's insurance carrier, in a subrogation suit after it has settled the claim from Client C, could probably sue Bob, especially if he willfully violated company policy for the purpose of harming client C. This is rarely done, but ultimately Bob owes duties to Acme which he violated which probably give rise to liability, although proving that and collecting the judgment would both be difficult. If Bob had authority within the organization to deviate from company policy, however, which he would have a good cause to claim that he did, this would be a full defense to such a suit, since Bob was always acting as a disclosed agent of Acme. Client C probably cannot sue Bob directly, whether or not it sues Acme. In contract matters (which this would include) a disclosed agent is not responsible for the acts he carries out on behalf of his principal. For example, an employee who signs a promissory note on behalf of a company in an official capacity as a disclosed agent of the company isn't responsible for paying the note. This is different than the rule in tort cases where the principal and anyone whose actions personally caused the tort caused the problem is liable. For example, if the employee got into a car accident that was his fault while he was driving on the job for the company, both the company and the employee would be liable to the person who was hurt. The circumstances that you describe sound more like a breach of contract than they do like a tort, so Bob would probably not have any personal liability to Client C. Could Bob or Acme (or both) face any criminal liability? Unless Bob was the CEO or other senior officer of the company, Acme wouldn't face criminal liability, because he is too far down the chain of command to cause Acme the entity to have the requisite criminal intent. Realistically, failing to "verify that equipment rental invoices match delivery records before notifying the client to approve the invoices for payment" does not amount to a crime no matter who does it. This might be careless or a breach of contract, but it is not fraud or theft because it lack the necessary criminal intent. If Bob actively photoshopped equipment rental invoices with a specific intent to defraud Client C, he would probably be criminally liable for fraud, although even that isn't an open and shut case as it still basically involves failure to perform a contract according to its terms and a mere breach of contract is generally not a crime unless you intended not to perform it in the first place, when you entered into the contract. | No. Theft is, in most jurisdiction, an action by which the offender takes another person's property with the intent to permanently deprive them of it. The clerk isn't taking any property from the store, and she doesn't have any intent to deprive the store of anything. She is therefore not guilty of theft. If she were doing this intentionally -- either in league with the customer or even without the customer knowing -- she could likely be held liable for the theft, either on a conspiracy theory or perhaps an innocent-agency theory. The lack of criminal liability of course does not mean that there can be no accountability. The employer is free to terminate the employee, and it will have different options -- depending on jurisdiction -- to recover the value of the uncharged printers, perhaps by docking her paycheck or through a negligence action. | The person who is changing lanes has the responsibility to make sure that they have space to move into. Suppose there was a person in front of you in the destination lane who hit the brakes suddenly - if you change lanes and rear-end them, that's your fault, because you failed to leave enough distance. I don't see how it's any different in this case, where the person is behind you and accelerates suddenly. A turn signal doesn't give you the right to change lanes at will, you are responsible for making the maneuver safely. It's poor driving etiquette for the other guy to cut you off like that, but it's up to you to ensure there's space as you move over. From your description of the incident, it sounds like your actions initiated the sequence of events, and it was also your actions that prevented the accident. From that, it seems highly likely you'd be found at fault if the accident had happened - in that scenario, your actions would have created the situation, and you also would have failed to take action to avoid the accident. | There are only two rules I am aware of that apply to rear-end collisions on a roadway (in which all vehicles are properly headed in the same direction): The first vehicle that hits another in the rear is at fault for the collision, and any collateral collisions. The preceding rule is always true unless there is evidence that the vehicle that was struck did something reckless or intentional to cause the collision. For example, "cutting" in front of a truck and decelerating unnecessarily and faster than the truck can brake. (Before dashcams became widespread this was a common tactic of fraudsters, who would subsequently sue the "rear-ender's" insurance company for "whiplash" injuries.) You seem to be asking whether there is a law or rule against coming to a stop too close to a vehicle in front. Tailgating is generally illegal, but I have never heard of the concept being applied to vehicles that are not moving. (Clarification on your question: "Stop far enough behind the car in front of you so that you can see the bottom of their back tires" is a safety heuristic that allows you to pull around the vehicle in an emergency without shifting into reverse. It's a "rule" of defensive driving, but I have never heard it written into law.) | Is there any type of California labor law that would allow for him to ask for compensation for lost wages? Your family member might have a claim of [intentional?] misrepresentation. Simply put, it is unjustifiable for a well-known transportation company to misrepresent for too long the requirements its drivers must satisfy. Assessment of other legal theories such as breach of contract or promissory estoppel requires a detailed knowledge of the interactions and terms between the parties. Freeman & Mills, Inc. v. Belcher Oil Co., 11 Cal.4th 85, 107 (1995) points out that "courts will generally enforce the breach of a contractual promise through contract law, except when the actions that constitute the breach violate a social policy that merits the imposition of tort remedies". Misleading and belatedly avoiding a hiree who relied on the company's conduct contravenes public policy because of the ensuing disruptions and uncertainty the company could and should have avoided. Accordingly, see Robinson Helicopter Co., Inc. .v Dana Corp., 22 Call Rptr. 352, 361 (2004) ("[A] plaintiff advances the public interest in punishing intentional misrepresentations and in deterring such misrepresentations in the future."). Generally speaking, the doctrine known as economic loss rule bars claims of negligent misrepresentation involving no property damage or personal injury. That is in order to preempt a party from sidestepping contract law. However, the extent of the company's conduct as you describe it might forfeit the protections embodied in the doctrine of at-will employment. | A company is liable for the actions of its agents This is known as vicarious liability and some well-established situations where this happens is in employer-employee and company-officer, "executives", if senior enough, would be both employees and officers. Without it, the concept of a company just doesn't work - a company is only a record in a database, it can only act through human agents. So, if an employee or officer of the company by act or omission causes harm in the course of executing their duties, then the company has caused the harm. It is not enough for a company to have adequate "internal procedures", it (which is to say the people with the power to act for it) must ensure that those procedures are followed and actually work. The allegations include that at least some senior personnel were aware that breaches of the law were occurring and they did not take steps to stop them - what they know, the company knows; what they do or don't do, the company does or doesn't do. | Almost everywhere, in any circumstances, it is the driver's responsibility to operate their vehicle so as not to get in an accident. When two drivers collide, responsibility can be divided among them depending on the details. However, when a driver hits a stopped object (including another vehicle), it is always the driver's fault for not operating his vehicle safely. It is possible the other vehicle may also receive a minor parking ticket or similar infraction for stopping on a shoulder or other invalid place. But that citation will not do anything at all to relieve your responsibility to operate your car without hitting obstacles. |
Categories of US law Considering US law (federal, state and local), are there any laws which fall outside of the following categories (pulled from Wikipedia)? Criminal Law Tort Law Contract Law Property Law Constitutional and Administrative Law International Law As I am not versed in law, it may be that the term 'law' itself is ambiguous or perhaps I have not been precise or accurate in the naming of these categories. For instance, I'm not sure if military law is properly included as a subset of the bodies I've listed or if it is maintained as separate within our legal institutions. The long and short of the question intends whether there are any actions (including the null action -- inaction) that can be committed by a person (human or corporate) that, under the jurisdiction of the US, can fall afoul of the law and can't be incorporated into one of the above categories. To say 'no' would mean than any action (if that term is not itself legally ambiguous) that contravenes the law, criminal or civil, would fall into one of these categories. I suppose it may also be incoherent to consider law merely as a collection of impositions or prohibitions of 'actions'. | Yes Probate law, consumer protection law and family law spring to mind. | Yes More exactly, nations will not regard places outside of their physical limits as outside of their jurisdictions. Overview Traditionally, a nation has regarded any ship flying its flag as under its jurisdiction, and a place where it may enforce its laws. More recently, many nations will undertake to enforce laws in cases where their citizens are the victims, or in some cases the perpetrators of crimes even within other nations, and more freely on the high seas outside the physical limits or territorial waters of any country. Historically, all nations undertook to enforce laws against piracy wherever they might be committed. Several countries, including the UK and the US, now treat the UN Law of the Sea convention as part of their national law, which defines as piracy: "illegal acts of violence or detention ... against persons or property on board such ship or aircraft" This would include the situation described in the question. Therefore such actions could and quite likely would be prosecuted by any of several countries, depending on the registry of the vessel and the nationalities of those involved. Sources 18 U.S. Code § 7 provides that: The term “special maritime and territorial jurisdiction of the United States”, as used in this title, includes: (1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State. ... (7) Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States. (8) To the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States. This US DOJ page says: Among the offenses within the special maritime and territorial jurisdiction of the United States are the crimes of murder, manslaughter, maiming, kidnapping, rape, assault, and robbery. Pursuant to 18 U.S.C. § 7(1) there is also jurisdiction over such offenses when they are committed on the high seas or any other waters within the admiralty and maritime jurisdiction of the United States that is out of the jurisdiction of any particular state. See JM 9-20.000 et seq. The page "Maritime Offenses" from the law offices of Trombley and Hanes says: The Federal government also exercises jurisdiction over certain maritime offenses. There is Federal jurisdiction for offenses committed on American vessels in the territorial waters, harbors and inland waterways of foreign nations. See United States v. Flores, 289 U.S. 137 (1933). ... A number of Title 18 sections specifically declare certain conduct to be a Federal crime if committed “within the special maritime and territorial jurisdiction of the United States.” See, e.g., murder, 18 U.S.C. § 1111. In some instances, the Assimilative Crimes Act, 18 U.S.C. § 13, is also applicable. See also, 15 U.S.C. § 1175; 15 U.S.C. § 1243; 16 U.S.C. § 3372. 18 U.S. Code § 1111 (b) provides that: (b) Within the special maritime and territorial jurisdiction of the United States, Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life; Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life. The Britannica Article on "Piracy" says: Because piracy has been regarded as an offense against the law of nations, the public vessels of any state have been permitted to seize a pirate ship, to bring it into port, to try the crew (regardless of their nationality or domicile), and, if they are found guilty, to punish them and to confiscate the ship. The UN page on Piracy says: The 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides the framework for the repression of piracy under international law, in particular in its articles 100 to 107 and 110. The Security Council has repeatedly reaffirmed “that international law, as reflected in the United Nations Convention on the Law of the Sea of 10 December 1982 (‘The Convention’), sets out the legal framework applicable to combating piracy and armed robbery at sea, as well as other ocean activities” (Security Council resolution 1897 (2009), adopted on 30 November 2009). Article 100 of UNCLOS provides that “[a]ll States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.” The General Assembly has also repeatedly encouraged States to cooperate to address piracy and armed robbery at sea in its resolutions on oceans and the law of the sea. For example, in its resolution 64/71 of 4 December 2009, the General Assembly recognized “the crucial role of international cooperation at the global, regional, subregional and bilateral levels in combating, in accordance with international law, threats to maritime security, including piracy”. The UK Piracy Act of 1837 defined as a crime: Whosoever, with intent to commit or at the time of or immediately before or immediately after committing the crime of piracy in respect of any ship or vessel, shall assault, with intent to murder, any person being on board of or belonging to such ship or vessel, or shall stab, cut, or wound any such person, or unlawfully do any act by which the life of such person may be endangered, shall be guilty of felony... The more modern UK law, the Merchant Shipping and Maritime Security Act of 1997 embodies the UN law of the Sea convention, including its article 101, which says: Piracy consists of any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed— (a) (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (a) (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; | tl;dr No, it won't be a viable defense. Background Touch has an established interpretation at common law. The common law is judge-made law. If an offense involving touch existed at common law, then the meaning of touch is "defined" by the judicial opinions themselves. As the comments have noted, you'll be able to find hundreds of years worth of opinions where judges have, by example, determined what qualifies as touching. Putting your hand on someone, yes. Spitting on someone, yes. Blowing from a distance, no. These examples make up the common law definition of touch. But how, you may ask, would the common law evolve to include new information? The answer is clear. Say Jill purposely hits Jack in the face with a shovel. When appearing before the judge, she says, "we have a new understanding of atomic proximity, so technically the atoms in the shovel never made contact with the atoms in Jack!" The judge will say, "that's interesting, but it seems irrelevant to what we're trying to accomplish with the law: Jack still had to go to the hospital. Judgment for Jack." Now the common law has incorporated the new information (...at Jill's expense). Touch isn't defined at the atomic level when interpreting a statute. Some offenses are defined, not by judges, but by statutes enacted by legislatures. If the language in the statute is ambiguous, courts have to interpret its meaning. This is often done by looking at the purpose of the statute or by looking at the plain meaning of the language. Statutory interpretation: purpose Where a court does not employ the plain meaning approach, it will often look for evidence of the drafter's intent. In this case, the court would ask what the purpose of a law like battery is. They'd probably conclude it has to do with preventing harm and offense. In fact, they probably included things like that in the statute itself. So they'd wonder if defining contact at an atomic level would help to prevent harm and offense; that seems unlikely. In so doing, the court may analyze the legislative history. It may look at events that happened around the time the law was enacted: did the legislature propose it because people were hitting each others' faces with shovels? It might even appeal to the state of the common law at the time the statute was enacted for the proper definition. Statutory interpretation: plain meaning First, it might help to look at an example from District of Columbia v. Heller, 554 U.S. 570 (2008). There the Court was tasked with interpreting some Second Amendment text. In doing so it said, "we are guided by the principle that '[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.' Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings." Id at 576-77. Statutory interpretation also makes use of this plain meaning approach. As stated by the Court, "where the language of an enactment is clear, and construction according to its terms does not lead to absurd or impracticable consequences, the words employed are to be taken as the final expression of the meaning intended.” United States v. Missouri Pacific R.R., 278 U.S. 269, 278 (1929); see also Black's Law Dictionary (10th ed. 2014). This is bolstered by the practice of explicitly defining words with technical meanings in a definitions section of the statute. For example, Article 9 of the Uniform Commercial Code employs a number of terms in a technical sense, and 9-102(a) defines 81 words that are intended to take on a technical meaning. Another example is the Illinois battery statute, 720 ILCS 5: Sec. 12-3. Battery. (a) A person commits battery if he or she knowingly without legal justification by any means (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual. The statute doesn't have a technical definition for "physical contact." So under plain meaning we'd construe it in its common sense. Merriam-Webster's Dictionary (a favorite of U.S. courts) defines touch as, "to bring a bodily part into contact with especially so as to perceive through the tactile sense." That definition implies that tactile sensation is what triggers (2), not any atomic concept of proximity. If you're interested in further reading, proper interpretation of the term "physical contact" came up in the insurance contract setting in Mount Vernon Fire Ins. Co. v. Busby, 219 Cal. App. 4th 876 (2013). united-states | Yes. And also no. See What is the difference between Common Law and Civil Law in the U.S.? A common law system is a common law system and that obviously encompasses criminal law. But that’s not the only definition of common law. In most common law jurisdictions, most crimes are now statutory crimes. That is, what they are and the punishment for them is detailed in an Act of Parliament (or local equivalent). However, the codification of what were once common law crimes is not (and arguably cannot) be complete. There still exist common law crimes which can be pulled out when needed. For example, in DPP v Pusey, the defendant was pulled over by several police officers and, while this was happening, a large truck collided with the stopped cars and the police officers were killed. While they were dying Pusey took out his phone and recorded their deaths while mocking and taunting them. This was not against any statutory criminal code in Victoria. So, the Director of Public Prosecutions pulled out the archaic common law offence of outraging public decency. In addition, statutory crimes are necessarily interpreted by judges and aggregate a collection of common law rulings around them. | It's a bit of an oversimplification. You're correct that there is a federal law against murder, 18 USC 1111. However it applies only to a murder committed in the special maritime and territorial jurisdiction of the United States. This covers situations like crimes committed on federal lands such as national parks or federal buildings, or crimes on US-flagged ships at sea, aircraft in flight, or in space. It does not apply to "ordinary" crimes committed at most locations within the US. 18 USC Chapter 51 covers a few other situations, such as murder of a federal officer, foreign diplomat, by incarcerated or escaped federal prisoners, US nationals murdering each other while abroad, and so forth. The idea is that these restrictions keep the laws within the enumerated powers of Congress as stated in Article I Section 8 of the US Constitution. A federal statute covering all murders throughout the US would probably be unconstitutional for this reason. So while what he says is not strictly correct, it is true that in the vast majority of cases, murders are covered by state laws and not by federal laws. Even if one was to agree with Ramaswamy that medical abortions are a form of murder, even still, no federal murder law currently on the books would apply to a typical abortion, except under very unusual circumstances. | So my understanding is that the phrase "common law" can refer to either the concept of laws established by court precedent or it can refer to a specific body of laws that have been established that way. Yes. Should I just be inferring that from context? Yes. Is there a single body of "common law"? No. Are there distinct bodies of "U.K. common law" and "U.S. common law" for example? Yes, furthermore there is different common law in England/Wales, Northern Ireland & Scotland and each state of the US. Further, Scotland and Louisiana are not straightforward common law jurisdictions but rather a blend of common and civil law. If so, how are they related? They are related in that they all: have a common source, middle English common law evolve in the same way - judges interpreting the current common law and the statutes of the legislature follow an appeals system through higher levels of courts. They do not all go in the same direction though. Do judges in common law countries cite court decisions in other common law countries? Sometimes; it depends on the "distance" of the other jurisdiction. A judge in New South Wales is quite likely to consider how judges in Queensland and Victoria have considered similar laws, less likely to look at the UK and Canada and extremely unlikely to look at the USA. This has a lot to do with how far back it is since the "last common ancestor" of the law; the longer the corpus of law has been separated the more likely that the principles have diverged, partly this is cultural drift but mostly this is differences in statutes that actively modify the common law. Usually, jurisdictions within the same country are quite close to each other; partly due to common culture but often because of a genuine effort to "harmonise" laws across borders. There are occasions, however, where legislatures "steal" laws from other jurisdictions, in which case they often look to each other for early development of common law on those laws. For example, the Alberta (Canada) Builder's Lien Act 2000 and the NSW (Australia) Building and Construction Industry Security of Payment Act 1999 both address the same "wrong" and both had a common and parallel genesis pre-enactment; early cases in each jurisdiction were watched by the other. | 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). | States have a general police power, meaning that they can pass laws about whatever they want unless there's a specific reason they can't. A state does not have to give special justification for why something is in the realm of stuff they can regulate; someone challenging it has to say what specific section of the Constitution it violates. For a time, the Due Process clause of the US Constitution was considered to imply freedom of contract. This time ended in the 1930s. The doctrine of a constitutionally protected freedom of contract is pretty much completely dead. A state can't abridge the freedom of contract for no reason, but that's because just about any law needs some reason to be allowed. The level of review is that the law is rationally related to a legitimate state interest; this is not a very demanding level of review. Source State bar associations are given power by laws making it illegal to practice law without being a member of the bar and requiring licensed lawyers to comply with bar rules. State bars that control admission to practice are generally government agencies (specifically, agencies of the court system). When the state bar is not a government agency, attorney discipline and licensing is handled by a government agency (lawyers might have to join the bar, but the bar has to accept licensed lawyers as members; the bar's power in these cases is limited to recommendations to the courts). |
Why do tech companies have an easier time avoiding taxes than non tech companies? First of all, is this true? I mean it's one of the claims of one US presidential candidate. I suppose that the reason is because IT company can shift their profit to offshore companies. Why can't normal companies do the same? Why can't all restaurants set up corporation in Seychelles and pay "royalty" to their Seyschelles company? What is so special about tech companies that allows them to avoid taxes? Some source: https://www.youtube.com/watch?v=nzPoDCmYmwI he claims here that tech companies are hard to tax I also know that Microsoft, Google, and Apple pay very little taxes. I also know that tech companies do not need infrastructure as much as non tech companies. However, that would make sense if government tax land, or gasoline for example. If government tax income, I do not see why normal companies have a harder time avoiding tax. We also need to take into account tax evasion. While normal companies often deal with many other companies around, tech companies often deal globally with people around the world. However, I am not seeing that tech companies are evading tax illegally. It seems that they legally avoid paying taxes. | A substantial part of the value of the goods and services provided by tech companies is in intangibles. For example, this analysis suggests that approximately 1/3 of the price of an iPhone is in materials and labour and the rest is in the patents, copyrights and brand value that the names "Apple" and "iPhone" provide. If these intangibles are owned by, say, Aplle (Ireland) then Apple (USA) will have to pay them to use them - whatever amount those two companies agree on will reduce Apple (USA)'s profit and raise Apple (Ireland)'s profit - the tax rates in each of these countries is not the same. Now, tax law says that such transfers have to be at fair market value. So, what is the fair market value of all the IP needed to build an iPhone? Or the value of the names "Apple" and "iPhone"? You don't know, I don't know, Apple doesn't know and the tax authorities don't know. Whatever figure they pick is defensible as "fair market value" because there isn't actually a market - fair or otherwise. Resteraunts can do this too - McDonald's (Australia) pays a licence fee to use the name "McDonalds" but this is the only intangible McDonalds have - there is no patent on how to make a hamburger - so the scope for them to take advantge of this is less than for tech companies. | By putting their finances into a complicated legal structure, moving assets and income through various jurisdictions, and lobbying to make that legal. They also employ highly skilled lawyers who understand the tax code and possible loopholes very well. I'm pretty sure that a "normal" person with average income could reduce their taxes to close to zero by hiring specialist lawyers, but the cost of those lawyers would exceed the tax savings. For a billionaire, the ratio between legal costs and tax savings is different. | what taxes or fees does he need to pay? According to this glimpse of Austrian tax law, Franz would still have to pay income tax on any non-monetary compensation he gets from the company. See section of "Vermietung und Verpachtung [...]". Non-monetary compensation is typically known as benefits. The term serves to distinguish that compensation from (1) any cash flows from the company to Franz, which you ruled out in your description, and (2) any expenses the company incurs for business purposes involving Franz. Your mention that "nor does he take money out of the company in any other way" might mean that you ruled out benefits as well. I just wanted to be safe and preclude any misunderstanding in case you had in mind only cash flows from the company to Franz. | So these are the basic rules of the tax game: The taxpayer (employee, in this case) is liable for tax on income earned by him. On occasion, the payor of the income to be received by the taxpayer is required to withhold tax on the payment, remit the withheld tax to the IRS/state/local tax authority and pay the balance over to the taxpayer. If that happens, the taxpayer is entitled to a credit against his taxes for the amount withheld by the payor. Failure by the payor to withhold the required amount of tax does NOT excuse the taxpayer from paying tax on the income he earned. So company B is right. | You don't explicitly say (this being an internationally visited and populated site), but based on your question, I will assume that you are in the US. For the question you asked: Is the company the government? If not, then NO, you cannot successfully sue a company (or person for that matter) for violating the freedom of speech granted by the First Amendment to the US Constitution in any circumstances whatsoever. (Sorry, this is a pet peeve of mine). The US Constitution does not bind or restrict any private* individual or company, in any way. (Here "private" means "non-governmental; a "public(ly traded) company" is still considered a "private" entity in this context). The US Constitution exclusively deals with four things: How the US Federal Government operates, powers of the government, and restrictions of the government, and the definition of treason (which arguably is itself a restriction on the power of the government, by denying them the ability to define treason themselves). The First Amendment itself is explicit about this restriction: Congress shall make no law ... abridging the freedom of speech (emphasis mine). Note that, while the First Amendment does not mention acts of the President, this is because the President's Constitutional powers are quite weak and limited; What powers the President does have and usually uses are granted to the office by laws passed by Congress, and so the restriction comes with them, as Congress cannot delegate to the President powers that Congress themselves do not possess). As such, no company can be sued for violating the First Amendment (or any portion of the Constitution, really) because it does not apply to them. Now, there may be laws passed by relevant legislatures, but these are dependent on your jurisdiction (e.g. state). However, as a general rule of thumb this would be legal. Turning down a candidate based on what they say in an interview is the point of having an interview; Turning down an candidate for saying something in an interview that could potentially leave the company liable for a lawsuit under the theory of vicarious liability is only good common sense. | You mean like Unilever, and countless others do? Yes. Many, many companies control a stable of brands, often of competing products. This is particularly prevalent in grocery lines (cleaning, food, beauty products) and motor vehicles (there are dozens of brands of motor vehicle but only a handful of automotive companies). Clearly, these products have different features (improvements) – you are entitled to segment your market anyway you like. If they are actually produced by the same company, keeping that secret would be virtually impossible. If they were separate companies (even with licencing agreements etc.), well, they are not the same company even if they have common ownership. As for having a monopoly: if you hold a patent you are allowed to have a monopoly, if you don't, expect to see knock-off rocket boots on the shelf in a week. | The key difference is that Best Buy is a corporation, and you are probably thinking of a painter who does not do business as a corporation. (They might be a sole proprietor, for instance.) As far as I know, the $600 rule isn't about Form W-9 itself. Rather, the rule is that when your business pays more than $600 for services, you may be required to file Form 1099-MISC. One of the boxes on that form asks for the recipient's Taxpayer Identification Number (TIN), so you have to get that from them somehow, and a common way (though not the only way) is to give them a Form W-9 and ask them to fill it out and return it to you. Form W-9 also asks the recipient to state whether they are subject to backup withholding; if they are, or if they won't give you their TIN, then you have to withhold taxes from the payment and send it to the IRS, reporting this on the 1099-MISC as well. Now, if you look at the section "Exceptions" on the 1099-MISC instructions: Payments for which a Form 1099-MISC is not required include all of the following. Generally, payments to a corporation (including a limited liability company (LLC) that is treated as a C or S corporation). However, see Reportable payments to corporations, later. Best Buy is a corporation, and none of the exceptions under "Reportable payments to corporations" apply when you are paying them for computer repair services. Therefore, you do not have to file a 1099-MISC when you make such payments to Best Buy. As such, you have no need to get their TIN, and therefore no need to ask them to fill out a W-9. | 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. |
Correct way to ask written questions of an expert witness I am the defendant in a case and the claimant has submitted evidence from an expert witness. I have been told I have the ability to question the expert witness in writing. What is the appropriate way to go about doing this? | Judging from your question, you are most likely referring to putting written questions to an expert witness who has given an expert report. (This would be the only time you would be putting written questions to an expert, if an expert is giving oral evidence there would be no written questions involved, your counsel would be asking questions orally). Please clarify if this is the situation. In most circumstances, these written questions are for the purposes of clarification only. If an expert report says one thing on a matter, you cannot (subject to court approval), pose a question in conflict to that fact. For example: if the report says "It is my opinion that the house is valued at 1 million pounds", you cannot say "You're lying, aren't you?" or "The house is actually worth 2 million, isn't it?". You may, however, ask questions such as "how did you come to your conclusion on this point?", "can you clarify the process in which a person values a house?". As for the correct procedure, please see CPR Rule 35.6: | The appellate court reviews based upon the trial court record. To the extent that it turns on questions of law, including interpretations of written documents whose authenticity is not in question, this review is de novo. Likewise, decisions on this issue made on a paper record and argument of counsel, without an evidentiary hearing that resolved material disputes of fact between the parties, are reviewed de novo. So are procedural question, like whether an evidentiary hearing should have been held. But, in cases where there is a mixed issue of fact and law, the appellate court defers to all findings of fact made in the trial court from an evidentiary hearing held in the trial court that are supported by admissible evidence in the trial court record. Since the material facts relating to the enforceability of arbitration are frequently not in dispute in a case like this and arbitration rulings are often made without evidentiary hearings, as for example, in this case and in this case, an appellate court often does engage in de novo review. But, the appellate court is not permitted to re-weigh the credibility of witnesses, for example, in a manner contrary to the trial court's findings of fact supported by admissible evidence in the record, if an evidentiary hearing was held and this was necessary to resolve disputed issues of fact that were material to the question of whether arbitration could be compelled. While what I have said above is somewhat different than the standards, for example, in New Jersey as stated in this document quoted below, this is to some extent a function of the facts of the referenced cases. None of which involve a refusal to compel arbitration following an evidentiary hearing involving disputed findings of fact. Appellate courts "review de novo the trial court's judgment dismissing the complaint and compelling arbitration." Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 131 (2020). See Skuse v. Pfizer, Inc., 244 N.J. 30, 46 (2020). "Under N.J.S.A. 2A:24-7, either party may move to confirm an award within three months of the date of its delivery. Once confirmed, the award is as conclusive as a court judgment. N.J.S.A. 2A:24-10." Policeman's Benevolent Ass'n, Loc. 292 v. Borough of N. Haledon, 158 N.J. 392, 398 (1999). N.J.S.A. 2A:24-8 provides a court may vacate an arbitration award for: 1) corruption, fraud or undue means; 2) evident partiality or corruption in the arbitrators; 3) misconduct in refusing to postpone the hearing, upon sufficient cause being shown, or in refusing to hear evidence, pertinent and material to the controversy, or of any other misbehaviors prejudicial to the rights of any party; or 4) the arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made. "Judicial review of an arbitration award is very limited." Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017) (quoting Linden Bd. of Educ. v. Linden Educ. Ass'n ex rel. Mizichko, 202 N.J. 268, 276 (2010)). "To foster finality and 'secure arbitration's speedy and inexpensive nature,' reviewing courts must give arbitration awards 'considerable deference.'" Borough of Carteret v. Firefighters Mut. Benevolent Ass'n, Loc. 67, 247 N.J. 202, 211 (2021) (quoting Borough of E. Rutherford v. E. Rutherford PBA Loc. 275, 213 N.J. 190, 201-02 (2013)). "[A]n arbitrator's award resolving a public sector dispute will be accepted so long as the award is 'reasonably debatable.'" Borough of Carteret v. Firefighters Mut. Benevolent Ass'n, Loc. 67, 247 N.J. 202, 211 (2021) (quoting Borough of E. Rutherford v. E. Rutherford PBA Loc. 275, 213 N.J. 190, 201 (2013)). "An arbitrator's award is not to be cast aside lightly. It is subject to being vacated only when it has been shown that a statutory basis justifies that action." Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017) (quoting Kearny PBA Loc. # 21 v. Town of Kearny, 81 N.J. 208, 221 (1979)). Certain statutes, including the Alternative Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-1 to -30, set "strict limits on the appeal of an arbitration award." Riverside Chiropractic Grp. v. Mercury Ins. Co., 404 N.J. Super. 228, 235 (App. Div. 2008). In support of a contrary view that even the findings of fact of the trial court are subject to de novo review are statements like this one (from this case): The existence of a valid and enforceable arbitration agreement poses a question of law, and as such, our standard of review of an order denying a motion to compel arbitration is de novo. Hirsch v. Amper Fin. Servs., L.L.C., 215 N.J. 174, 186 (2013); Frumer v. Nat'l Home Ins. Co., 420 N.J. Super. 7, 13 (App. Div. 2011). But, the cited cases don't mean precisely what they are purported to say in the rare case where the decision rests, for example, on resolved a disputed credibility decision between two witnesses over whether the purported arbitration document is authentic in an evidentiary hearing. Those cases are merely dicta as applied to that fact pattern. The case containing this quote was decided at the trial court level on the pleadings alone without receiving any testimony or documents in an evidentiary hearing (see footnote 1 at page 2). Hirsch was decided in motion practice without an evidentiary hearing (see page 184) and the case itself says (at page 186): Orders compelling arbitration are deemed final for purposes of appeal. R. 2:2–3(a); GMAC v. Pittella, 205 N.J. 572, 587, 17 A.3d 177 (2011). We review those legal determinations de novo. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995) (“A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.”). The decision in Frummer was similarly qualified and also relied upon interpretation of written instruments whose execution was undisputed that was resolved in motion practice without any mention of an evidentiary hearing. The Court in Frummer said at page 13: We review the denial of a request for arbitration de novo. See Alfano v. BDO Seidman, LLP, 393 N.J.Super. 560, 572-73, 925 A.2d 22 (App.Div. 2007). "A `trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Id. at 573, 925 A.2d 22 (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995)). See also this case stating that: The existence of a valid and enforceable arbitration agreement poses a question of law, and as such, our standard of review of an order denying a motion to compel arbitration is de novo. Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013); Frumer v. Nat'l Home Ins. Co., 420 N.J. Super. 7, 13 (App. Div. 2011). Again, however, I would question whether this holding is dicta because it involves the interpretation of written instruments whose authenticity is in doubt, and not, for example, a dispute over whether the person who signed the documents is the same person who is a party to this litigation and not someone else with a very similar name that was resolved in an evidentiary hearing. | These questions are typically left to the discretion of the judge in whose courtroom the presentation is happening. It is very common to see these types of devices in trial courts, but they are much less common in appellate courts, and I doubt you'd ever see one in the United States Supreme Court, where the arguments are essentially limited to oral presentations. | Only if counsel challenged the point during the trial Difficult as it might be, you can’t allow the judge to be wrong during the trial without calling them on it: very, very politely. For example, there is case law that says you can’t successfully appeal because the judge was asleep through significant parts of the trial; appeals courts are clear that you have to wake them up. If you don’t then you accepted that you didn’t want the judge to hear the parts of the case they slept through, it’s your choice how you present your case. Frankly some cases are better if the judge misses half the evidence. Of course, if the error of law makes it through to the oral or written judgement then you can appeal even if you didn’t take issue with it. | The judge's instructions state: You have been allowed to take notes during the trial. You may take those notes with you to the jury room. You should not consider these notes binding or conclusive, whether they are your notes or those of another juror. The notes should be used as an aid to your memory and not as a substitute for it. It is your recollection of the evidence that should control. You should disregard anything contrary to your recollection that may appear from your own notes or those of another juror. You should not give greater weight to a particular piece of evidence solely because it is referred to in a note taken by a juror. There is a pattern instruction in Washington that addresses requests to rehear testimony: In making this decision, I want to emphasize that I am making no comment on the value or weight to be given to any particular testimony in this case. The testimony you requested will be [read to you] [replayed for you] here in the courtroom. You will hear it only one time. After you have heard the testimony, you will return to the jury room and resume your deliberations. When you do, remember that your deliberations must take into account all the evidence in the case, not just the testimony that you have asked to rehear. The notes on use state "Although judges have discretion in responding to these requests, the case law disfavors repeating trial testimony for deliberating jurors", followed by the state of the relevant case law. The central point in that discussion is: The concern addressed in the case law is that rereading requested selections from a trial transcript can lead jurors to give undue emphasis to the selected testimony. and an additional concern is that reading the trial transcript selections to the jurors could constitute an unconstitutional comment on the evidence. and finally jurors often request the testimony of a single witness rather than requesting balanced testimony from multiple witnesses that more accurately reflects the positions taken by both parties. If the judge grants such a limited request, then one party's version of the case might be unduly emphasized, yet if the judge expands on the request by repeating the requested testimony along with other relevant testimony, then the judge runs the risk of improperly commenting on the evidence. Minnesota criminal procedure rule 26 Subd. 20(2) addresses the matter of rehearing evidence, saying that the court can allow a hearing of specific evidence: (a) If the jury requests review of specific evidence during deliberations, the court may permit review of that evidence after notice to the parties and an opportunity to be heard. (b) Any jury review of depositions, or audio or video material, must occur in open court. The court must instruct the jury to suspend deliberations during the review. (c) The prosecutor, defense counsel, and the defendant must be present for the proceedings described in paragraphs (a) and (b), but the defendant may personally waive the right to be present. (d) The court need not submit evidence beyond what the jury requested but may submit additional evidence on the same issue to avoid giving undue prominence to the requested evidence. This rule where judges have discretion is a change from an earlier rule where judges had an obligation to allow rehearing. When there is no obligation to allow rehearing, the "safer" path is to not allow rehearing. In State v. McDaniels, 332 N.W.2d 172, the appeals court notes that The judge reasoned that to read the requested portions of the two police officers' testimony would give undue prominence to that portion of the evidence. The prosecutor argued that three or four other witnesses had testified regarding Fifth and Royalston. The testimony was widely scattered throughout the transcript between direct and cross-examination. To locate all references would be burdensome and impractical thus reflecting the reasoning underlying the Washington instruction. In State v. Rean, 421 N.W.2d 303, 306 (Minn. 1988), the court turned down a request to rehear testimony, saying "You will have to rely on your memory of the testimony". The Supreme Court concludes that "To avoid giving undue prominence to the testimony requested, and in light of the difficulty of providing all relevant testimony, the jury's request was rejected". It then observes that "Simply because the jury apparently felt that it was at an impasse did not mean that the trial court was obligated to grant the jury's requests". The court rejected "the wooden approach of always granting a request, even an unreasonable one, if the jury says it is at an impasse" We do not know what objections the prosecution and defense raised regarding the request to rehear, but if one side would likely benefit from a rehearing, the other side is entitled to a "balancing" rehearing (the rules allow the jury to be directed to consider testimony that they did not request a rehearing of); and tit might have been onerous to assemble that evidence. | You present ordinary fact testimony regarding how the winner was actually selected and then you hire an expert witness to conclude that this process is sufficiently close to random for the purposes for which it is being used. In some cases of "safe harbor" random selection methods like rolling dice, drawing cards, drawing lots, pulling the short straw, flipping a coin, activating a random number generator, pulling a slip out of a hat, etc., you could dispense with the expert testimony because there is case law already establishing that the method in question counts as a random method of selection. | Your question slightly misrepresents what the article says: Yes, the judge denied the motion which led to the collapse of the case, he did not make a ruling on the substance of the case. The distinction is significant to my mind as the judge was using non-evidentiary knowledge (i.e. what he read in the paper) to make a decision on process; in this case a process that would have put a lot of people to a lot of inconvenience. It would not be proper for the judge to have used such knowledge to inform a judgement. It is also not clear from the article if the academic paper in question was actually introduced by the defendant as evidence. If that was the case then it is only right and proper for the judge to consider it. As to why a judge is allowed to read the news and a jury is not, I can offer several ideas: A judge must document their reasoning process in a judgement which is subject to review - if they were to make a decision based on matters not supported by the evidence then an appeals court could correct it. Alternatively, juries are specifically prohibited from revealing their reasoning process to anyone. Judges do their jobs for years, perhaps a whole career - to prohibit them from consuming media is a) unworkable and b) a serious impediment on their lifestyle. Juries are empaneled for weeks or months - such sacrifices are more reasonable. Judges are (supposedly) trained and impartial professionals who are more readily able to make the distinction between evidence and news. Newsworthy cases are relatively rare | No Experts’ time is valuable. Courts would not be able to get qualified experts to testify if they were not compensated. As per your previous question, the crucial point is that they are paid to tell the truth, not to be an advocate for one side. But Sometimes Yes There have been scandals where a cottage industry of experts sprung up, based solely on there being a market for expert witnesses. These witnesses knew that the way to keep getting hired was to always confidently testify that they could prove the defendant’s guilt beyond a reasonable doubt. Bite-mark analysis is an entire field which is now held to have operated as a pseudoscience, and where some prolific “expert witnesses” were caught committing fraud. Similarly, the Texas Forensic Science Commission conducted a review of numerous wrongful convictions for arson in 2012, although there the motive was not money. They were not being paid to testify one way and not the other. Forensic examiners in Texas were simply basing their testimony on myths and old wives’ tales handed down by their predecessors, which turned out to be false when tested under the scientific method. When put to the test, accidental fires could cause all the signs that Texas forensic examiners had sworn were proof of the use of an accelerant to commit arson. Again, though, these “experts” got their jobs by always giving the prosecution the evidence of guilt it wanted. I have listed examples of experts shilling for the prosecution, mainly because most of the cases that come to mind of highly-compensated experts shilling in defense of someone work for corporations on what are more political than legal controversies. Even Then, not Really Even in those examples of misconduct (or incompetence), the false experts were caught because the defense was allowed to hire experts of their own. If the only experts allowed to testify had been the state’s forensic examiners, no one would ever have tested their claims about the difference between arson and accidental fires scientifically. Even though they had no direct financial incentive to testify, they saw their jobs working for the state as working for the prosecution. Removing the financial motive would not remove all possible bias or suspicion of bias, either. For example, in the wrongful-conviction reviews of both bite marks and arson, one of the most common counterarguments were that the experts arguing to overturn the convictions of people who had no money to pay them were passionate opponents of the death penalty, and therefore supposedly biased. |
Does a 16yo without a work permit have rights to the code he was paid to develop? I am sixteen, and I have a summer job for a software company. In my state (Maine), a work permit from school is required for someone of my age to have a job but it was never filled out. I assume someone forgot. I am also aware that minors can void contracts. However, I am unsure whether or not that extends to employment contracts. I, along with one other employee, am currently putting work towards a ~$100,000 contract, and am being paid the same as I would be had I worked at the local McDonalds. During the course of the job, I wrote software on computers provided by the company. Can I void the contract, and claim the work I did as my intellectual property? Am I even technically employed given I never submitted a work permit? | No As a 16 year old you do not need a Child Work Permit - these are required for "[a] minor under 16 years of age". Notwithstanding, minor's contracts can be classified as valid, voidable or void. There are two types of valid contracts: Contracts for "necessaries", and Employment, apprenticeship and training contracts. Your employment contract is binding and any IP you produced in the course of it belongs to your employer. | Your boss is totally wrong. Legally, there is no such thing as a "probation period" in the UK. You have the right to your holiday payment, according to the days that you worked. What can happen: The legal minimum is I think 28 days per year including bank holidays, but most companies give 23 or 24 days PLUS eight days bank holiday. Your contract may say that the first three months are called probation period, and during that time you only get the legal minimum, and after that the much more common higher amount. That would be legal. But even so, you would be entitled to seven days, minus any bank holidays where you didn't work. | No. You cannot be held liable for violating the EULA if you have never used the software and are only reporting what people who did use it told you. Of course, people bring groundless lawsuits all the time and you might have to defend such a lawsuit if you are sued. In some places you could be subpoenaed to disclose your sources, and in others, a reporter's privilege would allow you to quash such a subpoena. | If it's patented then it doesn't matter that you independently came up with it. Most software is not patented, though. Most developers do not even think about patents when writing code. In theory you could spend your time keeping up to date on software patents so that you avoid infringing. But this probably only makes sense for specialists who would want to read the latest patents in their field anyway. All software is protected by literary copyright, though. In this case they will try to prove that you did not independently created it, and did copy it. Whelan v. Jaslow in 1986 ruled that structure, sequence and organization of a computer program were protected by copyright. So you could be liable even if you did not just copy and paste sections of code. But even if you're worried the court would get things wrong and think you copied a program when you never even saw it in the first place, there is really nothing you can do about it. | Ideas aren't property Your employer does not own your ideas. However, neither do you. Ideas are not something that is protected by intellectual property law. To be IP, you need more than an idea. What is IP? The most common types are: Patents - protect inventions and new processes Trade marks - protect logos, words and other branding Copyright - protects art, writing, music, film, and computer programs Registered designs - protects the visual design of a product Circuit layout rights - protect layout designs or plans of integrated circuits used in computer-generated designs Plant breeders rights - protect the commercial rights of new plant varieties. The normal operation of IP law is that if a person is engaged under a contract of service (e.g. an employment contract) then their employer owns all the IP they make which includes progress towards something that might be IP (e.g. all the work that leads up to a patentable invention). However, if they are engaged under a contract for service (e.g. an independent contractor), then the worker owns the IP. The work the employer owns is generally limited to work in the course of the employment. So if you are a software developer they will generally own all code you write that is useful for their business but won't own the romantic novel you write in your spare time. In either case, the specific contract can override the default assumption. What can you do? You can certainly use the idea for the app but you can't use anything that is subject to your employer's IP. That means you can't use any code or copy the user interface - it all has to be redeveloped from scratch. You also can’t develop something that would be of use to their business while you are still an employee. | The real question isn't whether there is a law, but whether you want to keep your job. If you want to do something that you believe will affect your company negatively, and you ask whether it's legal or not, the question alone should show you it's a bad idea. And another question is whether you can be sued, and what it will cost you even if you can win a case, and the answers to that are "yes" and "a lot". | 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. | For cases where this occurred within the United States, with works created on or after January 1, 1978: (the OP has since clarified that their scenario occurred elsewhere) By default, the author (the actual creator) of a work is the owner of the copyright. However, this is not the case if the work is a "work made for hire" for an employer. In that case, the company is considered the author of the work, and owns the copyright. From US Copyright Office Circular 09: If a work is made for hire, an employer is considered the author even if an employee actually created the work. The employer can be a firm, an organization, or an individual. Works are considered to be made for hire in two situations, as described by that circular (emphasis added): a) a work prepared by an employee within the scope of his or her employment or b) a work specially ordered or commissioned...if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. If no written agreement was signed and no employment relationship existed, then ownership of the copyright to the software would go to the person who wrote it, and they would be able to do anything that a copyright holder could do with a work, including using it however they want or selling it. Do note that this would only apply to software or changes made by the person in this situation. They could not, for example, sell or distribute any other piece of the software written by other people without the copyright holder's permission, even if these pieces are necessary to use the software that this person created. |
Is it a 5th amendment violation to set a person up to be arrested? It strongly appears that the State of Florida has in place an operation, or device, to make sure that you are arrested for driving while license suspended ("DWLS"). The scheme is as follows, 1) FL DMV suspends your license for some reason not even related to driving safety, 2) the FL DMV fails to send you the required notification letter so you are unaware that your license is suspend, 3) the FL DMV sends your suspension information to the National Driver Register ("NDR") so that if you are stopped in another state you will also be arrested, 4) you have to pay $150.00 to get the suspension lifted even if you can prove that the FL DMV suspended your license without just cause. My theory is that FL is depriving me of my 5th Amendment rights by setting in motion a chain of events that will guarantee that I am arrested if I am ever stopped thus depriving me of my freedom without due process because I was never given due process to defend against the charges. | There are two primary parts to the question. The first is, is it a violation of the due process clauses to deprive you of property or liberty without following the law: the answer is, it is. If you did not violate any law, you cannot legally be punished. That does not mean that you understand the law correctly, e.g. you may not be aware that non-payment of child support or writing rubber checks is grounds for license suspension. The second part is, can they follow a secret process where you are not informed of the charges or the results of the legal proceeding? That too is a requirement (known as procedural due process), see this article. You must be made aware that your license is subject to suspension and has been suspended. Your attorney would have to advise you, based on the details of your specific circumstance, whether your procedural due process rights had been violated. For example, if you write a rubber check, you will be ordered to appear in court (there's your notice). If you fail to show up, they can suspend your license. However, under F.S. 322.251, they do have to "notify" you that your license was suspended. The law says that Such mailing by the department constitutes notification, and any failure by the person to receive the mailed order will not affect or stay the effective date or term of the cancellation, suspension, revocation, or disqualification of the licensee’s driving privilege. This kind of "we sent it" definition of giving notice is probably universal in the US: no jurisdiction allows the "I never got it" defense. | Yes. At international borders and international airports (because those are the equivalent of a border), US customs officers may do searches of people and belongings without a warrant and without any particular reason to think they'll find contraband. This includes the authority to do some level of disassembly of the car, if they then reassemble it. See United States v. Flores-Montano, 541 U.S. 149. This is known as the "border search exception." Moreover, police normally don't need warrants to search your car if it was mobile when they found it and if they have probable cause to believe they'll find contraband. This is known as the "automobile exception" or the "motor vehicle exception." It was established in Carroll v. US, 267 U.S. 132. Individual states may have stricter requirements on police searches, but the Fourth Amendment doesn't require police to get a warrant to search your car if, say, you drove it up to a checkpoint and they have probable cause. The difference at a border is that they don't need probable cause and the car never had to be mobile: they can search you on a hunch. | Pennsylvania is one state sometimes cited as having such a law, but the law does not refer to "keys in the ignition", instead, An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol... Similarly in Washington, A person is guilty of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug if the person has actual physical control of a vehicle within this state... California law is narrower, since It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle and this does not include being in physical control. See Mercer v. DMV which affirms that the person must have been driving, but it is not necessary to witness the person driving. Keys in the ignition can be evidence that you were driving, likewise a warm engine or tires, car is in gear, you're in the middle of the road. I doubt that any law is stated in terms of "keys in the ignition", more likely it reduces to actual driving, or being in control of the vehicle. | You will still have to pay A ticket can be ammended if the state so chooses (they can look up what color and model your car is). The car is probably on video. The officer can testify if they wrote your car info down somewhere else. And if they identified you inside the car as the violator, the car's color hardly matters. The idea that minor mistakes or omissions on tickets can get you off is a myth. From an actual lawyer | An interrogation isn't necessarily a sit-down-in-a-room thing. Miranda v. Arizona clarifies what they mean by "interrogation" for the purposes of that opinion: By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. If any post-arrest questioning might happen, it is prudent to inform the defendant of their rights. Miranda also reminds us that: Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. [...] Volunteered statements of any kind are not barred by the Fifth Amendment, and their admissibility is not affected by our holding today. The police are not required to give a Miranda warning in order to make use of statements that the defendant volunteers while in custody. But, police generally can't predict when they might ask the defendant a question (or otherwise make the defendant feel compelled to answer). | What is one supposed to do if they want to take an extended trip somewhere? Or is one basically not allowed to take such trips if they are a US citizen eligible for Jury Duty? In the US you are not required to seek permission to travel, or prove your past whereabouts to the government if you happen to miss some civic duty. They generally call up way more people than they need for this sort of reason. The length of time you are gone or where you choose to travel is irrelevant. In my experience you are given about a month heads up. If you didn't receive the notice until you returned from out of town, and they send a follow up, simply inform them of the fact that you were gone and didn't receive the notice until you returned. Jury duty is an obligation to some extent, but it is also a right and a privilege. It isn't a criminal offence you are liable for if you didn't get the notice. If it were that important to verify your availability ahead of time the notification would be sent registered mail with a signature required. | UK seat belt law is here. What you were doing is illegal and carries a fine of £500. As to your specific questions: How illegal is this? It is not a criminal offence in any way. What is the possibility of me getting caught? If a police officer notices you will almost certainly be booked. What is the possibility of being noticed? Depends where you are. If I'm caught what fines and / or penalties can I expect? £500 What's the absolute worst that could happen as a consequence of my actions? You could crash and your passengers could die, you would then go to jail for dangerous driving occasioning death. Having 2 people in a seat belt is extremely hazardous - it would be far safer (but still illegal) to have one person in the seat belt and the other one unrestrained. Could it be possible for me to get away with a warning? No Could I get my licence revoked? (:/) Seat belts offences do not carry a points penalty so, of itself, it would not lead to loss of your licence. | if the child exchange time and locations are fixed, and the husband can no longer legally drive, does this effectively nullify his visitation rights? No. He can get a ride from someone or get an Uber or Lyft or Taxi or take a bus. The drop off location is near her house, not his, and even if public transportation were an option he would not be the type to use it. He's more the type that would ignore the suspension of his license and go pick up the kids in his car anyway. He is also the kind to try to attempt to manipulate the wife into doing what he wants regardless of what a court order says. Emotional abuse and manipulation were a big part of his game, but fortunately she has gotten much better at ignoring it. What he is inclined to do and why have nothing to do with whether or not it is legal. If he has his license revoked and attempts to pick up the children as always, are there any potential legal repercussions for her if she allows him to pick up the kids? Practically speaking, no, particularly in light of a court order to transfer custody. Theoretically, it is remotely possible, even though it is very unlikely. In theory, she could be held liable for negligent child neglect by allowing this to happen, particularly if the children were then harmed in an automobile accident. If he was visibly drunk or intoxicated at the time of the transfer, however, her risk of criminal liability would be considerable. Would there be any potential legal repercussions for her if she refuses to allow him to pick up the children himself with a suspended license/registration? Potentially, she could be held in contempt of court for refusing to follow a court order. Her better course would be to call the police when he arrived to report that he is driving with suspended license, to not transfer the children and wait until they arrive (seeking cover inside a home and advising the 911 operator again if the situation starts to escalate into a potentially violent situation), and to explain to the police that he is also attempting to endanger the children by trying to drive with them on a suspended license. There is a good chance that he would be arrested and that the police would leave her with the children. The police might, rather than arresting him, drive him home with the kids and tell him not to drive and cite him for driving with a suspended license. Then, she should make an emergency motion to the court, regardless of how it is resolved by the police, seeking permission to formally give her a right to refuse to transfer if he arrives unaccompanied with a suspended license. If he attempts to convince her to drop the kids off somewhere else (presumably at his house) due to the suspension of his license, are there any potential legal repercussions for her if she refuses? Probably not. This time he's not following the court order, not her. It would still be advisable for her to file an emergency motion with the court explaining the situation. |
Claiming statutory warranty for a fault that resulted in the loss of the product I recently experienced a failure on a rather expensive piece of sport equipment upon its first use. I purchased the product in the UK and experienced the failure in the UK, 2 weeks after purchase. I believe failure occurred because I had been supplied with the wrong fasteners. Due to the nature of the product (a surfboard hydrofoil) it promptly sunk to the bottom of the ocean. Chance of recovery is slim to none. I contacted the retailer immediately to inform them of the failure and did not receive a very optimistic response - they asked me to try and find it at low tide. I went hunting but the water is just too deep and murky. I have supplied the retailer with photos of the damage, a GPS trace for the time of the incident and a video of the failure occurring. Given that there is very little of the product left, is it reasonable to expect the retailer/manufacturer to respect my right to a replacement? If they resist, what can I do about it? | With the additional information in the comment, the approach most likely to give you a good outcome would be to present this as a dispute between the retailler and the manufacturer. Make a note of who said what and when, and try to obtain written confirmation from the retailler. It sounds like the retailler is currently on your side, which makes your position stronger as your legal contract is with them and they will have obligations under the Consumer Rights Act 2015 (I'm assuming you bought the item as a private individual and not as a business). Note that you may not have a right to replacement. Consumer protection legislation and warranty terms include several ways the supplier can provide redress (usually repair / refund / replace). Since the preference is replacement, you will not be able to argue an inherent design fault with the product. This may give the manufacturer the opportunity to assert that the retailler, or you, specified an incorrect fitting kit - or that it was incorrectly installed. If the fittings were supplied with the foil, you could argue that it was an issue with these that led to total loss of the rest of the foil. It looks like you currently have grounds to claim this against the retailler. If there's no satisfactory resolution, consulting the Citizens Advice bureau would be a good place to start. | I imagine that under English and Welsh law, the relevant tort would negligent misstatement, as there is no contract between the parties. From Practical Law: A claim for negligent misstatement may arise whether or not a contractual relationship exists between the parties. However, if there is a contractual relationship, it is more likely that a claim would be brought for negligent misrepresentation. Whether or not a claim for negligent misstatement would succeed would depend on several factors. Firstly, a duty of care must exist between the parties. From the Oxford Dictionary of Law: A negligent misstatement is only actionable in tort if there has been breach of a duty to take care in making the statement that has caused damage to the claimant. There is no general duty of care in making statements, particularly in relation to statements on financial matters. Responsibility for negligent misstatements is imposed only if they were made in circumstances that made it reasonable to rely on them (Hedley Byrne v Heller & Partners Ltd [1964] AC 465 (HL); Caparo Industries plc v Dickman [1990] 2 AC 605 (HL). Whether or not it was reasonable to rely on the advice is hard to say, as it depends on a number of different factors. In the light of the fact that most cases of negligent misstatement involve professionals acting in their professional capacity, it seems unlikely that a court would find it reasonable to rely on advice taken from an internet site. Most relevant for this question, however, is the case of Gary Patchett and Karen Patchett v Swimming Pool & Allied Trades Association Ltd [2009] EWCA Civ 717. This is possibly the legal precedent you are looking for. Practical Law again: The Court of Appeal held by a majority that, although the website made representations that it knew users would be likely to rely on, there was not sufficient proximity between the parties, and the website advised users to obtain an information pack before engaging a contractor. Accordingly, the appellants had failed to establish the duty of care that is a required element of a claim for negligent misstatement. If a website owner does not owe a duty of care to its users, then it seems highly unlikely that one user would be found to owe a duty of care to another user. On that basis - and with the large disclaimer that I am not a lawyer - it would seem that were one to rely on the advice given on a StackExchange site, there would be few, if any, legal repercussions for the person who gave the advice. The conclusion is to get professional advice from a professional, rather than any StackExchange site - including this one! | 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. | 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. | Although the local mechanic was suggested by you he was paid by the dealer, and hence was acting as the dealer's agent in the repair. If the dealer did not want to accept this then they could have simply insisted on doing the repair themselves. The dealer is responsible for the actions of their agent, and they cannot run out the clock on the warranty simply by failing to repair the fault. You could write to the dealer saying that you will accept their third repair on the understanding that the fault and two attempts to repair it predate the expiration of the warranty and hence you retain the right to return the car if this third attempt at repair does not remedy the problem. Or you could simply insist on returning the car for a refund. If they won't take it, write a letter stating that either they agree to take it back or you will take action in the county court to recover your money. Most businesses will conceed at this point because spending time in court is expensive even if you win. I say "write" because that means they can't deny agreeing later on. You can of course hand them the letter yourself rather than sending it by post. | Criminal liability is triggered by guilty knowledge. The people who run OnlyFans may know in general terms that it is probable that some illegal images exist on their servers, but so does everyone who allows the public to upload stuff. If that was illegal then the senior management of Google and Facebook would be liable to arrest on the same grounds and the Internet as we know it could not exist. Once the company becomes aware of a specific file that contains such material they need to remove it. If they fail to do so then they become liable. OnlyFans has been doing this: [OnlyFans] provides templates for each successive warning - explaining why material has been removed, and that failure to comply with terms of service may result in the closure of the account. [emphasis added] The site operators also become liable if they have a general policy of tolerating illegal material. This is a grey area; a prosecution would have to prove that the toleration was an active policy rather than merely ineffective moderation. There doesn't seem to be any evidence to support such a claim. Permitting an account to continue after deleting an offending file is not toleration of the offending file. The BBC report does not allege that the OnlyFans policy of multiple warnings has been applied to cases of underage content; rather it talks about cases of incest, bestiality and exploitation of vulnerable adults (such as homeless people), and only where the accounts were particularly popular. The linked articles do report cases where accounts have been set up advertising content by minors, but they were shut down as soon as the company was notified of them. The second article also quotes its source as saying that lots of such accounts get closed down all the time; there doesn't seem to be any evidence of toleration of that material specifically. So in conclusion it seems from the available evidence that OnlyFans have been complying with the law. It is telling that the BBC article specifically does not say that they have done anything illegal. If the BBC had found unambiguous evidence of illegal conduct by OnlyFans management then they would certainly have highlighted this. | 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. | Check your local law. In Washington, the chapter RCW 63.21 says what you are supposed to do. The first part of the law has apparently been satisfieds: Any person who finds property that is not unlawful to possess, the owner of which is unknown, and who wishes to claim the found property Then you need to get a signed appraisal stating current market value from a qualified person engaged in buying or selling the items, or by a district court judge (I have no idea where district court judges get their qualifications to appraise bricks), then within 7 days, report this to the cief LEO where the stuff was found (and surrender it, if requested). You also have to serve written notice upon that officer stating your to claim the property. The burden now shifts to the government, which must publish notices in a local newspaper at least weakly, for 2 weeks. The notice might be publishable in a no-cost venue, in case the publication cost is greater than the value of the stuff. If the owner appears and establishes ownership, that's the end of the finder's potential interest. If the owner does not show up, the property will be released to the finder once he has paid the government's publishing expenses plus $10, but if the goods are appraised at less than publishing cost, there is no fee. As a finder, you have 30 days after that 60 days to pay required costs, otherwise it goes to the government. There are some exceptions, things not subject to finders-keepers (crab pots, secured vessels, motor vehicles, unclaimed property in the hands of a bailee). If you do not comply with these requirements, you forfeit any right to the property and you are liable to the property owner for the value of the bricks. Under the definition of theft, you have a defense that The property or service was appropriated openly and avowedly under a claim of title made in good faith, even though the claim be untenable since you presumably intend to claim ownership of the bricks under the lost property statute. |
Could the teacher be liable if a student stole a chemical thinking it was dangerous? I'm asking this question for my mother who is a science teacher in junior highschool in france. Recently during class one of her student (11 yo boy), let's call him Bob, stole a chemical that had been prepared for an experiment. It was pretty harmless but Bob thought it could be dangerous (starch). Afterward Bob poured the content of the tube in a water jug during lunch. This time it wasn't dangerous and it was noticed before anyone drank from it. The headmaster is inclined to let this go with detention. My mother on the other hand does not want this guy in her class again. She has some pretty nasty stuff like hydrochloric acid (not pure and she is planning on getting rid of it, but I mention it as an exemple). Even if nothing happened Bob did stole the starch thinking it could be dangerous. It's basically a poisoning attempt but he mistook the dangerous stuff with the harmless stuff. She is very careful to lock away anything that could be dangerous when it's not in use. If it has to be used she is the only person allowed to run the experiment. Still, she can't keep track of 30+ students at once and she knows that someone dedicated enough could steal something. She thinks that it's unfair to the other students to stop all experiments altogether because of one crazy guy. But at the same time she is both worried for her safety and the safety of her kinder students. I have two questions regarding this event: Could she be liable if anything happened even though she is ultra careful? Should she stops running experiment with this class if she can't get Bob to leave the class? Thanks for your answers! Edit regarding accepted answer: Given that she feels that the school is not giving her the means to safeguard her student from "extreme pranker" she decided that she'd just stop any experiment in classes with Bob. (Being liable is only a small part the issue here as she'd be devastated if one of her students was hurt). She hopes she can get some support from other parents. But it's not relative to law anymore as it's more highschool politics. | 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). | In New Zealand, employers have a duty to take all practicable steps to ensure their workplace is safe for employees and for others who come onto the premises (Health and Safety in Employment Act s6). So if there was a wasp nest and they didn't do anything about it, presumably they would be liable. If it was a random bee, I doubt they would be liable, because they couldn't practicably prevent a bee flying in if, say, someone opened the door. The state would have to charge the company as HSEA is a criminal provisions act. If the plaintiff brought a claim based on the tort of negligence, they would have to prove that the company had a duty of care, breached that duty, the breach caused damage, and the damage was not too remote from the breach. The company does have a duty of care to their patrons. The standard for this is what a reasonable person would have done in the circumstances. If they didn't remove a wasp nest they may have breached their duty of care. The breach will have caused damage (a wasp sting). It wouldn't have been too remote since had they removed the wasp nest, the person wouldn't have been stung. However if a random bee flew in, the company probably wouldn't have breached their duty of care, and if the court found that they had, the damage would probably be too remote or not have been caused by them directly. | It is illegal to sell alcohol to a minor in Washington (RCW 66.44.270). The seller can get into various kinds of trouble, including losing their license, under liquor board regulations. However, as long as the establishment follows the rules for acceptable ID, they escape liability if in fact they sell alcohol to a minor: the license holder is legally allowed to accept an identification of the specific type. That is the sense in which this is required by law: the customer must have actually presented the identification, in order for the establishment to escape liability (RCW 66.20.210). Looking old enough is not the issue. It is legal to sell alcohol to a person who is over 21, and the law does not require presentation of identification as a condition for a sale. However, under RCW 66.20.180 a person is require to produce ID "upon request of any licensee, peace officer, or enforcement officer of the board". The legal risk attached to sales in an age-marginal situation is very high, and actual presentation of ID is required to escape liability by the establishment, so in that sense, it is "required by law". All requests to produce ID for liquor sales (at least in Washington, and leaving out deliveries which are governed by other laws) are driven by company policy. Typical policies are quite rational, being designed to protect the company's interest in not getting into a heap of trouble for an under-age sale. There is no law saying when you must ask, or when you are protected if you don't ask. Usually, store policy is to use "common sense" so that 90 year olds are not required to produce ID (they may be asked, jokingly). Non-compliance with RCW 66.20.180 carries no legal penalty, that is, there is nothing in the statute that says "if the customer doesn't...". The most obvious would be that the seller would refuse to sell, which the seller can arbitrarily do anyhow. There is no statutory penalty imposed on a licensee if they request ID of a person over 21 and the person fails / refuses to produce the ID. Obviously, the licensee cannot be punished if a customer fails to provide ID (and leaves), especially if they lost it. But the law "requires" them to provide an ID, with ne except "unless you leave / put the bottle back". Somewhat less obviously, if the legislature wants to, it can enact a provision that once a licensee requests ID, they are forbidden to sell alcohol to that customer until ID is provided. But there currently is no such law. "The law" also included regulations, such as WAC 314-17-105. This regulation is a chart, and the relevant entry is PERMIT: Failure to produce permit or identification upon request. See RCW 66.20.310 and 66.20.180. for which the 1st offense consequence is "5-day permit suspension OR $100 monetary option". This is a problematic regulation (potential lawsuit fodder), since it can be interpreted in a number of ways. The question is, of whom is the permit or identification predicated? Only the licensee has a permit, but customers and employees can both have identification. If we interpret this regulation as meaning "Failure by licensee or customer", then we arrive at the absurd conclusion that if a customer fails to produce ID on request, the establishment is fined. It is important to note that this regulation is under a chapter about server training, thus the regulation can only reasonably be interpreted as being about licensee providing identification. | Yes and No See Katz v. United States, 389 U.S. 347, 351 (1967): What a person knowingly exposes to the public, even in his home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. The glass has clearly been "knowingly exposed" and if that glass was, on the normal methods of examination by the officer (sight, smell etc.), evidence of a crime then it would be able to be used as evidence. However, any DNA on that glass is not "knowingly exposed" - finding the DNA requires a laboratory, specialised equipment and trained technicians. | Being disabled has nothing to do with it. If he is harassing students then after there is a complaint and investigation, then he can be banned from campus, and arrested for trespassing if he returns. But there would have to be a formal complaint made to the authorities first. | This is a pretty good example of "Contributory Negligence". Depending on the precise details of the case, both (or multiple) parties may have contributed to Karen's injuries. She certainly had some role by ignoring posted signs and wearing inappropriate footwear. But the shop may have made access too easy. Maybe they didn't have a front-desk person posted in a safe-area, causing her to go seeking an employee. The shop had a dangerous bin of metal shavings without a lid on it, and at a height and location where a single misstep means someone could fall into it head-first. They had dangerous crane-control mechanism in easy reach that didn't need a Key or other Lock-out mechanism. Ultimately, the details will matter. But it should be straightforward for mediation or a trial to determine each parties contribution to the overall unsafe situation and injuries. Taking the description above at face-value, I think Karen and the shop might both be found partially responsible for the injuries. It may not be a 50/50 split, but Karen likely acted unreasonably, and the shop, despite OSHA compliance, may well have created more hazards than appropriate. | Theoretically, yes it can, but it is highly fact specific The Court of Appeal explicitly answered this question in the case of R v Bown [2003] EWCA Crim 1989; [2004] 1 Cr App R 13. The Court held per Keene LJ that self-harm was capable of being a good reason within the meaning of subsection 4 of s 139 (para 20). While refraining from any abstract holding as to self-harm (which required a fact-based analysis), Keene LJ held (at para 24–5) that this would depend on evidence as to how and in what manner the bladed article was intended to be used and the time and place relating to said use. The burden of demonstrating this fell on the defence and it would require detailed evidence to be a presentable defence. In the case at bar, the absence of any evidence directly linking the possession of the knife to the tendency of the defendant to self-harm meant that there was nothing which could establish the defence to be put to the jury; a high 'degree of particularity was requisite' (para 27). NB: yes, the name of the defendant in this case is actually 'Bown', not 'Brown'—I know it looks like a typo! | Does CCPA impact whether or not this is allowed? Probably not. Public schools are divisions of state government and there are limits to how much the federal government can dictate the operations of state and local governments. Limitations on whether public schools can monetize data collected from students (13+) would arise under state law. The state law could certainly expressly authorize the practice (and to some extent does already with profit generating sports teams and yearbooks). State law could likewise prohibit the practice. For the most part, state law is silent and it doesn't happen that much because it isn't very profitable. Is there different guidance for public (government-managed and nonprofit) vs private schools? The legal analysis is very different. I'm not as familiar with this area of law, however, and will leave that question to someone else. As a practical matter, private schools are in a very good position to obtain express consent to do so from parents and students, so that is usually how the issue is resolved, I suspect. |
When is something considered theft vs free? My job was to promote something in a grocery store. I happened to cross paths with someone from the bakery and they asked if I wanted a pizza to draw interest in my permission. I said ok. After the pizza was made someone else from the store said I had to pay for the pizza. Legally speaking must I have paid for the pizza? Who would have the authority to decide if it's free or not? Must they have told me the cost prior to giving it to me (and it being consumed)? Conversely there's an expectation when getting something from a store that you need to pay for it. For example if you didn't see a price tag on something you probably wouldn't assume it's free. A similar situation was my friend in school went on a trip with debate team. The club failed to get a discount and asked him to pay more than they originally charged. He refused. Was this legal? | Canadian law defines "theft" thus: Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent (to deprive the owner, pledge as security, mess it up) In this case, you accepted what seemed to be an offer of a free pizza, so if you took and consumed the pizza you did so with a colorable claim of right and without fraud. Perhaps you misunderstood, but it is not a crime to misunderstand another person's intent. They could sue you for the cost of the pizza (assuming that you took it and did not pay), in which case the question would be whether whatever they said to you could reasonably be interpreted as an offer of a free pizza (if not, pay for the pizza). As an advertising stunt, this would not be unusual. However, if they fix the pizza but then demand money before handing over the pizza, you now know that you have no right to the pizza (if you abscond with the pizza in that circumstance, it would be theft). You may of course pay for the pizza, but you can also not pay and not take the pizza. Again, they could sue you, and in this case your defense would be that there was no contract (no agreement). An important question would be how reasonable it is to believe that you were offered a free pizza. People are offered "free" steak dinners all the time (at the cost of sitting through a sales pitch), so that is a reasonable belief. If a Lexus yacht salesman appears to be offering you a free $5M yacht, it is not reasonable to think that this is an ordinary advertising stunt, if you're not a celebrity. | In general As Dale M explained, if you give the money to someone who is not obviously authorized by the business to accept money and sell stuff in exchange, you have not entered into a valid sales contract. That means you are taking things without permission. Therefore the shop could sue you for any damage this causes (maybe you took something the shop did not want to sell, or the person at the information desk was not an employee and ran away with the money). However, whether this constitutes a crime such as theft will depend on jurisdictions. Germany In Germany, for example, it would probably not, because by definition a theft requires "intention to take posession in violation of the law" (StGB §242). You could argue that you did not intend to violate the law, because you paid the required amount, and only gave the money to the wrong person by mistake. Of course, I cannot guarantee that will convince the judge... England and Wales Similarly, the law in England and Wales defines "theft" in section 1 of the Theft Act 1968: A person is guilty of theft, if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; [...] Furthermore, section 2 says: A person’s appropriation of property belonging to another is not to be regarded as dishonest— [...] (b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or [...] So, similar to the situation in Germany, you could argue in court that you intended to buy the item legally, and believed that the shop would be okay with that. | 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. | If the landlord gave you a key, and you can not give it back to him he has every right to charge you for correcting the oversight. I put to you that if you can't provide it back to him, he can't be certain that it has not fallen into the wrong hands, and he would be prudent to change the lock - and indeed, he may not even have another copy of the key in which case he really does not have a lot of alternatives. If you look at the section on "Claims for Damages or Loss" pdf there is a section B - Damage which confirms that Loss includes less tangible impacts including "loss of a service or facility provided under the tenancy agreement" Section C of the same document goes on to assert that "The purpose of compensation is to put the person who suffered the damage or loss in the same position as if the damage or loss had not occurred". There is arguably a question of the amount of loss suffered, and they can't sting you for punitive damages, but they can charge you a reasonable amount to get a new key cut (or possibly to replace the lock) - but that was not your question, and would probably arise if the amount he charges was unreasonable in the circumstance. Depending on if he has already taken action - and if not, how much the bill would be - promptly remedying the breach by finding and returning the key or equivalent action might save you some money. | If only the tip is left in such "fake" money, it would not be theft as there is no legal obligation to leave a tip at all (except in those establishments that add a tip or "service charge' to the bill.) If the "money" is not an attempt to imitate real cash, it wouldn't be counterfeiting (leaving monopoly money for example would not be counterfeiting). The server would be understandably angry. The restaurant might refuse to seat the people who left the "fake" another time, if the servers identified them to the manager, but nothing would require them to do so. This is all on a US basis, I have no idea if tips might be legally required in other countries. | Yes, they are. A business can decide not to do business with someone for pretty much any reason. The obvious prohibited reason is due to your race. But I don't see how eBay would even know your race. Some State laws might protect you, but I don't think there's any that applies in this case. For example, California might give you a means of appeal if someone stole your identity and they performed those transactions, not you. But I don't know of any Federal or State law that would change the very, very basic principle of law that a property owner gets to decide who can and cannot access their property. eBay owns eBay. One key benefit of ownership is precisely that you can make decisions that other people consider to be unfair, discriminatory (other than the specifically prohibited categories) and draconian. Other people don't have to agree with your decisions for them to be lawful. | The premise about couches is true in terms of popular beliefs, but false in terms of law. Taking the property of another person without permission, with the intention to keep it, is theft. However, taking it with permission is allowed. W.r.t. a couch, your belief works because you generally have implicit permission. A sign saying "free" is good evidence, in lieu of a personal interaction with the owner, that you have such permission. There are scenarios where a person is moving a couch into their house, leaves it outside for a break, and some prankster puts a "free" sign on the couch. You nab and leave, 911 is called, you get arrested (more likely there will be an interaction of the type "give him back his couch") and you defend yourself against a charge of theft on the grounds that you reasonably believed you had permission to take the couch. At present, a reasonable person would know that a scooter left by the side of the road is not actually "there for the taking", therefore you know (or should know) that you are committing a crime. Additionally, there are more stringent law regarding theft of vehicles as opposed to theft of couches, which expands the concept of "theft" to include "take in order to just temporarily use", thus "keeping" is not a requirement of vehicle theft laws. Rentascooter is generally and obviously locked in some way, which is further evidence that the item was not abandoned (this goes to your state of mind in taking the object), supporting the wrongfulness of this taking. | If the stranger was aware of the reward offer at the time of the return you have a legally binding contract - you made an offer to the world, money for return of the phone, and they accepted it by returning it. If they were ignorant of your offer and returned the phone then there is no contract and you do not have to pay: albeit at the cost of being a jerk. Of course, if they obtained your phone unlawfully (e.g. by stealing it) the contract is void. |
How can I verify that an attorney in the U.S. is qualified to practice? There are two parts to this: How can I ensure that an attorney is actually legally allowed to act as counsel in a given case? Do I have to need to contact the state bar directly, or are there official listings somewhere? How can I / is there a way to look up all the cases that attorney has worked on, and how they have performed in those cases? | To determine whether an attorney is licensed to practice in a specific jurisdiction, you need to look up that attorney in the bar that applies to that jurisdiction. Some attorneys do not allow their information to be posted on the online lookup, in that case you would have to call the bar to confirm that s/he is licensed. I assumed you meant more than "case" in the legal sense above. For instance, if you want a Patent, you would need someone licensed to the Pat Bar. Cases they have worked on: You can use Google Scholar and select Case Law / the Jurisdiction you are concerned with and search for their name exactly (I would also limit the time frame.) The attorneys for each side are listed at the top. Some of the large cases have multiple pages of attorneys with their name on the case. Alternatively, if you have a subscription service to WestLaw Next, Bloomberg Law, or LexisNexis you can lookup the attorney and see case information as well, as well as court documents they have submitted in various cases - this allows you to get a glimpse of their writing style. Alternatively, you can visit your local law school's law library and, if they have public access, use the public terminals (at least my law school has these.). | The answers to your questions are, generally speaking, contained in the Model Rules of Professional Conduct. It's important to note these aren't mandatory across the country, although some states have implemented Rules that closely track them while others have their own Rules. Start with Rule 1(e), which defines informed consent as the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct Next up is Rule 1.2, Scope of Representation & Allocation of Authority Between Client & Lawyer. Subject to two exceptions, a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. The two exceptions are in Rule 1.2(c) and 1.2(d): an attorney can limit the scope of representation with a specific client after obtaining the client's informed consent and an attorney is forbidden from counseling a client to engage or assist him in engaging in conduct the attorney knows to be illegal/fraudulent. Finally, as it was mentioned in 1.2, we turn to Rule 1.4, Communications. (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (emphasis added) Your question was Are the above distinctions more or less the correct ones? The answer is yes and no. As to the objective of the representation, the client makes that decision. How to arrive at that outcome is not as cut-and-dry. From the language in the above Rules, there is not one party or the other who has the "final say." (I say this notwithstanding the fact that, because the client can't go file something on his own, technically the lawyer has final say as he or she is the one who must file a document with the court). Major decisions in the litigation have to be explained to the client and, after that, the client must give consent approving the decision. How does this work in real life? Frankly, it will depend on the client and the lawyer. And don't worry, the phrase "a doctor or lawyer who treats themselves has a fool for a client" is not only apt, it's common sense. When a person is involved in a conflict, their point of view is skewed in their favor and to represent themselves is risk their blindspots leading to unnecessary potential pitfalls throughout the case. | States have a general police power, meaning that they can pass laws about whatever they want unless there's a specific reason they can't. A state does not have to give special justification for why something is in the realm of stuff they can regulate; someone challenging it has to say what specific section of the Constitution it violates. For a time, the Due Process clause of the US Constitution was considered to imply freedom of contract. This time ended in the 1930s. The doctrine of a constitutionally protected freedom of contract is pretty much completely dead. A state can't abridge the freedom of contract for no reason, but that's because just about any law needs some reason to be allowed. The level of review is that the law is rationally related to a legitimate state interest; this is not a very demanding level of review. Source State bar associations are given power by laws making it illegal to practice law without being a member of the bar and requiring licensed lawyers to comply with bar rules. State bars that control admission to practice are generally government agencies (specifically, agencies of the court system). When the state bar is not a government agency, attorney discipline and licensing is handled by a government agency (lawyers might have to join the bar, but the bar has to accept licensed lawyers as members; the bar's power in these cases is limited to recommendations to the courts). | It depends highly on which jurisdiction you're referring to. This is one of the areas where it varies state to state. "Practicing law" is not generally defined in statute, but the Wikipedia definition defines it as (emphasis mine): giving legal advice to clients, drafting legal documents for clients, and representing clients in legal negotiations and court proceedings such as lawsuits, and is applied to the professional services of a lawyer or attorney at law, barrister, solicitor, or civil law notary. Wikipedia defines Legal advice as the giving of a professional or formal opinion regarding the substance or procedure of the law in relation to a particular factual situation. and displays the following enforcement provision (emphasis mine): Criminal laws and enforcement of "Unauthorized Practice of Law (UPL)" statutes is the organized bar's preferred method. Thus, New Jersey has a law which makes it a “disorderly persons offense” to knowingly to engage in the unauthorized practice of law, and a “crime in the fourth degree” to commit UPL if one (a) creates a false impression that one is a lawyer; (b) derives a benefit from UPL, or (c) causes an injury by UPL. See also IANAL, which has some information about usage on the Internet: The case law standard for determining what comments cross the line is generally "the application of law to facts specific to an individual seeking legal advice". | 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. | The attorney would consider RPC 1.14, which means that he "shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client". But if he reasonably believes that the client has diminished capacity...and cannot adequately act in [his] own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. So... The testator must know the natural objects of their bounty (i.e., be aware of their spouse and children, if any). The testator must comprehend the kind and character of their property (i.e., know approximately their net worth and what kind of assets they own). The testator must understand the nature and effect of the act (i.e., realize that it is indeed a will they are signing and what that means). The testator must be able to make a disposition of their property according to a plan formed in their mind. | Documents are not protected under the 5th Amendment, so a person can be compelled to produce documents that may incriminate them. The person cannot be forced to testify against themselves, however – they can invoke their right to not testify against themselves. The attorney-client privilege canon has some exceptions, for example (4) to secure legal advice about the lawyer's compliance with these Rules or (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services (bearing in mind that POTUS is required by law to turn all documents over to the national Archives, so turning the records over is "compliance with the law" and a think that an attorney would do for their client, though this event is quite belated). No subpoena was issued and no testimony was given, so the Fifth Amendment is irrelevant. | Basically: what Flup said in his last paragraph (and so upvoted accordingly). Every one of the practitioners you named has an undergraduate degree from the UK, and an undergraduate degree from Canada. This, presumably, is because you're not permitted to practise law in most jurisdictions unless you have some kind of qualification in the law of that particular jurisdiction. The laws of each country, and moreover, the way in which cases are decided and in which each country's legal system works, varies so tremendously that you need to study the particulars for each jurisdiction before you can practice there. Regarding Canada: from this site: You must complete a Bachelor of Laws (L.L.B.) program or Juris Doctor (J.D.) program in order to qualify for bar membership in any Canadian province or territory. This generally takes three years to complete. In England and Wales, you can now take a law conversion course in place of an undergraduate law degree as a first stage towards being qualified. I suspect, however, looking at the dates of the judges you list, that the law conversion course wasn't an option at the time they got their qualifications, so their only option was a full undergraduate course. So the answer is: they each have two undergraduate qualifications, one from each jurisdiction, so that they could qualify to practise law in both jurisdictions. |
Can case law never appealed in a higher court be appealed and overturned? I will phrase this question in New Zealand legal terms but I am actually interested in any common law jurisdiction or any jurisdiction with adversarial system. Say there is some case law made in the High Court establishing that certain procedural peculiarity is appropriate (it could be related to whether/how certain class of defendants can be added to proceedings, or fine-grained rules regarding admissibility of evidence etc.). The appropriateness of this procedural peculiarity was first declared by a High Court judge several years ago, and has been cited by High Court judges since then. It has never been challenged in the next level court (Court of Appeal). Does the fact that the procedural peculiarity was not challenged in the Court of Appeal in the first place prevent it from being challenged later in any other case citing it? Can it still be challenged in the next level court despite being long established in the lower court? | Any precedent can be overturned by any court at the same or higher level in the hierarchy So, for your example of a High Court precedent, it can be overturned at Supreme Court, Court of Appeal or High Court levels. However, the longer a precedent is in place, the less likely it is to be overturned because one of the objectives of the legal system is to provide certainty - a system that routinely overturns precedent doesn’t do that. Also, a precedent that is often cited with approval is more compelling because it’s no longer just one judges reading of the law, many other judges agree. Also, the judiciary tends to be conservative in overturning precedent. Most judges see it as their role to interpret law made by the legislature. If the people/legislature think their interpretation is wrong then the judiciary tends to feel that the legislature is the body who should change the law. That said, really old common law precedent that hasn’t been cited for a long while may be readily overturned if it comes up because social expectations may have changed. | I am wondering if the government can still implement it and force people to pay even if the decision is challenged in court. Laws are not automatically put on hold because they are challenged. For an action or a law to be halted by the Court before a decision is made, the applicant would have to seek an interlocutory injunction, which are granted only if, as established in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311, (i) is there a serious issue to be tried, (ii) will the party seeking the injunction suffer irreparable harm if it is not granted, and (iii) does the balance of convenience favour the party seeking the injunction. The first issue is rarely a problem, especially for a controversial issue like this. I am thinking the government might be able to tax people and then refund people if the court doesn't uphold the decision instead of a court challenge being able to postpone the tax indefinitely. A quantifiable financial harm is rarely irreparable (in private law cases). However there is an important exception for Charter cases where a financial harm is assumed to be irreparable because damages are often not awarded in constitutional cases. Though in this case it might be considered reparable because the quantification of damage and the method of redress are straightforward. For the third question, the Court needs to weigh both sides' interests in the case where the injunction is granted. Even if the damage is deemed irreparable, the Court may (or may not) still find the public interest in health outweighs the financial interests of the unvaccinated. | Any court from a municipal traffic court on up can declare a law unconstitutional and the U.S. Supreme Court is almost never the court that does so in the first instance. Also, while the jurisdiction stripping law that you suggest might be unconstitutional, it is not obviously unconstitutional. The relevant language is in Article III, Section 2 of the United States Constitution (this has been modified by the 11th Amendment in ways that are not pertinent to the issue at hand): The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;-- to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The key language being the language in bold, who scope and limitations are the subject of hot debate in legal scholarship. For example, both military tribunal law for non-soldiers and the collateral review of death sentences implicate this provision. An issue related to U.S. Supreme Court jurisdiction over military court-martial court composition will be heard this year in oral argument before the U.S. Supreme Court. There is also debate over whether the jurisdiction of every single federal court can be removed from a matter within the judicial power of the United States. In that regard, keep in mind that the United States federal court system did not have direct appeals of criminal convictions at all until the 1890s, although you could challenge, for example, the jurisdiction of a criminal court over your case with a writ of habeas corpus which is a collateral attack on a conviction in a separate civil lawsuit formally directed at your prison warden. That being said, as far as I know, a law is considered in effect until declared unconstitutional. It is illegal to break an unconstitutional law, until declared so. You are wrong. A law that is unconstitutional on its face is, in terms of legal theory, unconstitutional immediately upon enactment and a court simply acknowledges that fact. It is not illegal to break an unconstitutional law even if no court has yet declared it to be unconstitutional (in U.S. jurisprudence). A law that is unconstitutional as applied is unconstitutional in application at the moment it is applied unconstitutionally, and again, a court merely acknowledges that fact. | The general rule is, anything is allowed unless it is forbidden (and not that you can only do things that are expressly permitted). The logical structure of law may be a bit more challenging than procedural programming logic, since it may require a global knowledge and evaluation of the entire code (typically but not absolutely, the scope of the search for "unless otherwise" conditions is restricted to "in this chapter"). In other words, the law is a set of propositions which must all be true, and unlike actual execution of instructions in a sequence, law is to be interpreted simultaneously but hierarchically (that is: the order in which clauses are written is not significant). The appearance that the law is self-contradictory is largely illusory, though the resolution of the conflict may require a careful reading of the law and knowledge of jurisdictional hierarchy (federal law is superior to state law, which entails a particular resolution of the apparent conflict). Sometimes there are real conflicts, which usually result from using words in conflicting ways (note the practice of re-defining words "in this chapter/section/title"). The reason why law is not a science is that law is normative, not descriptive: it dictates what is allowed (a determination made through the political process), and does not attempt to discover what independently is. The reason why the legal process cannot be implemented in software is that software does not yet correctly interpret natural language, and law is written in natural language following interpretations based on judgments of what choices a reasonable would make. Perhaps if you propose a piece of law that you think is contradictory, it would be possible to show how the contradiction is illusory. | The appeals court has found that the county court judge made a decision that was consistent with the evidence that was presented at trial. As such, the decision is sound. It appears that the defendant tried to present additional/different evidence or different arguments about the law in the appeal than they did at trial - this is not permitted. As to responsibility, the defendant and their legal team were responsible for deciding how to run their case and what evidence to present and what arguments to run. What evidence to present and how to present it and what submissions to make on the law is a tactical decision for each party. You can get it wrong. That doesn't let you try again on appeal. If your barrister has been negligent, and that directly caused you to lose, you can sue your barrister. In terms of interpreting a particular paragraph of a judgement, the appeals court may or may not make comment on a particular paragraph but the reasons, while important, are not really subject to interpretation other than that. A judgement will give orders, these should be very precise and not open to interpretation - things like "the defendant will pay X to the plaintiff" or "the case is dismissed" etc. | Defendants cannot switcheroo whenever they want. There are good reasons why this is almost never done. The lawyer in any of these scenarios is violating an ethical duty of candor to the tribunal, if it is done without court permission (which is unlikely to be granted), even if the client suggested or insisted upon the idea. The lawyer would be responsible for his or her client's actions by cooperating in it, rather than calling out his client in open court over the objections of the client to prevent the switcheroo from working, as the lawyer would have an ethical obligation to do. I would not really consider this to be a gray area. The relevant ethical rules and the related official commentaries to them are quite clear, even if they are not absolutely perfectly clear. Those rules create an affirmative duty of an attorney to prevent his or her client from misleading members of a tribunal (either a judge or a jury or both). Cooperating with this scheme could (and likely would) result in professional licensure related sanctions ranging from a private censure to disbarment for the lawyer, just as it did in the linked 1994 case. Also, while a "not guilty" verdict was entered in the 1994 case, the prosecution would have a good chance of success if they demanded that the judge declare a mistrial, and also a good chance of avoiding double jeopardy limitations in this situation, because the mistrial arose from the actions of the defendant trying to bring about the situation. On the other hand, if this trick worked so well that the prosecutors came to the conclusion that their primary witness linking the defendant to the crime was wrong and that the defendant was not actually the person who committed the crime, the prosecutors would have an ethical duty to not attempt to prosecute the individual whom the prosecutors now believed to be factually innocent (the analysis is actually a bit more complex than that, but that is the gist of it). The defendant and the attorney could (and likely would) also each be held in direct, punitive contempt of court by the judge for this conduct, allowing them to be summarily punished by imprisonment or a fine to an extent similar to a misdemeanor violation, on the spot, without a trial other than an opportunity to explain themselves to the judge in a sentence or two each, since it would be conduct in violation of the good order of the court and disrespectful of its rules and decorum conducted in the actual courtroom in the presence of the judge. Each could easily end up spending several months in jail on the spot for that stunt and perhaps a $1,000 fine each, if the judge was sufficiently displeased. There would be a right to appeal this contempt of court sanction, but the contempt of court punishment would almost surely be upheld on appeal in these circumstances. In a case where the criminal defendant faces extremely severe sanctions if found guilty, such as the death penalty or life in prison, and the defense attorney was a self-sacrificing idealist or close family member of the criminal defendant, one could imagine the defense attorney and client deciding that the professional and contempt citation sanctions were worth being punished with, in order to save the life of the criminal defendant, if they also were convinced that this trick would work so well that the prosecutors would be persuaded of the criminal defendant's innocence sufficiently to not insist on retrying the criminal defendant in a new trial. This would be somewhat analogous to an intentional foul in basketball, but with much higher stakes. But, this would be an extraordinarily rare situation in court, because the punishment for this "intentional foul" in the courtroom are much more severe, and because the likelihood of it producing a beneficial result is much smaller. It isn't hard to understand why a successful switcheroo feels morally justified. It prevents a witness whose testimony would have been much less reliable than it actually would have been from being used to convict a criminal defendant who might conceivably be factually innocent. And it might be very hard to discredit the testimony of that witness in any other way in order to prevent a wrongful conviction of the criminal defendant. Eye witness misidentifications are one of the leading causes of wrongful convictions, and are especially common in death penalty cases because jurors are "death qualified" making them more pro-prosecution than a typical jury. Preventing innocent people from being convicted of crimes is one of several important values of the criminal justice system, and this is the instinct that probably motivated the dissents in the professional misconduct process in the 1994 case. But, the court system also strongly values candor on the part of attorneys, and likewise values not having the court systems be used to trip up witnesses who may sincerely think that they are telling the truth even if they are mistaken about the accuracy of their testimony, in a deceptive manner. In this situation, the latter candor consideration usually prevails, because the rules prohibiting this kind of conduct and scheme, which admits no "moral justification" or "necessity exception", are quite clear. In the same vein, a prosecuting attorney can be sanctioned (and has been on at least one occasion in Colorado) for not being truthful in communications to third parties, even when the lies are used to peacefully defuse a potentially deadly hostage situation. For attorneys, the duty of candor and truthfulness really knows no exceptions. Cops, in contrast, however, are allowed to lie in many circumstances to secure confessions or stop criminals. | In most places I imagine the issue would go before a probate judge who would attempt to determine the validity of each presented will, and if both were valid, then they would attempt to reconcile the disparities to the best of their ability. Broadly speaking, the process would look like this (I'm using UK law as an example): You die An individual is chosen to handle your affairs (executor or administrator [or possibly both depending on jurisdiction]) They choose a will to go off of (these steps could be reversed if the wills named different administrators, in which case each administrator would file for the grant of representation and consequently involve the probate judge earlier) Someone challenges and suggests using the other will (probably because they feel they're not getting what's theirs) A probate judge is involved The probate judge decides Appeals would be made to Court of Appeals and then to the Supreme Court That being said, every jurisdiction is different, and this is more of a template answer for English common law (and derivative courts), than an attempt to describe in detail any specific jurisdiction's procedures. | The U.S. Supreme Court, given the discretionary nature of its customary appellate jurisdiction, has adopted the practice of not considering complaints filed with it in its original jurisdiction until leave to do so is granted. As the highest legal authority in the land, there is no other court in which this procedure can be litigated. A complaint filed without leave would either be rejected, or would be deemed a request for leave to file it, and evaluated on that basis. Without the grant of leave to file the complaint, it will not be considered by the U.S. Supreme Court on the merits. |
What can happen if the US President has violated campaign finance laws? There has been recent news about President Donald Trump possibly breaking campaign finance laws due to a repayment made to one of his lawyers. NPR: Trump Admits To Authorizing Stormy Daniels Payoff, Denies Sexual Encounter The Washington Post: Trump acknowledges his lawyer was reimbursed after payment to Stormy Daniels NY Times: Trump Says Payment to Stormy Daniels Did Not Violate Campaign Laws If the President has actually violated campaign finance laws, what can happen? Does it even matter since he is already the US President? | Let's start with the most important point first: A campaign finance violation is not a ground to remove an elected official from office, no matter how egregious, on its own, even if one could prove that the campaign finance violation probably caused the outcome of an election to change. Congress could decide, however, that a campaign finance violation constitutes a "high crime or misdemeanor" for which a sitting President could be impeached, if a majority of the House of Representatives votes to impeach the President and a two-thirds majority of the U.S. Senate trying the impeachment under the supervision of the Chief Justice of the United States (that and not "Chief Justice of the United States Supreme Court" is the official title) finds that the offense set forth in the impeachment has been committed and constitutes sufficient grounds to remove the President from office. At the outset, there is some ambiguity over whether the violation of campaign finance laws would have been by individual person, or the political campaign of the individual person (which is a Section 529 non-profit organization). The individual or the campaign, as the case might be, would definitely owe either civil or criminal fines, as the case might be, for a violation of the particular campaign finance laws that the individual or campaign is alleged to have violated. The violation could also affect the ability of the violator to obtain all or any amount of federal matching funds in a future election. Depending upon the particular campaign finance law involved, which isn't clearly specified, there might be a criminal penalty (either a misdemeanor or a minor felony) as well, which could give rise to a probation sentence, a sentence to some period of incarceration, a period of post-release parole, criminal fines, court costs, and, at least in the case of a felony, some collateral consequences of that conviction such as a prohibition on owning a gun and ineligibility for many occupations and jobs. Neither a civil campaign finance violation, nor a criminal conviction for a campaign finance violation, disqualifies someone from holding the office of President. The President does not have immunity from civil or criminal consequences of campaign finance violations committed prior to taking office, and the President's campaign, at a minimum, is not immune to campaign finance violations at any time. Presidential immunity from liability is limited to the conduct of the President while holding the office in furtherance of the governance duties of the President. Generally speaking, campaigning would not be a governance duty of the President, but there are factual circumstances under which it is hard to distinguish between what constitutes governing and what constitutes campaigning in the case of a sitting President who is currently in office. Also, campaign finance violations can't be prosecuted by just anyone. A violation of federal campaign finance laws must be prosecuted by a federal government lawyer authorized to do so by the Federal Election Commission (FEC), which has an even partisan balance of members by design and almost always deadlocks on motions to prosecute anything but the least controversial and most blatant campaign finance violations against members of either of the two major political parties in the United States. A "private attorney general" can't bring a lawsuit to enforce campaign finance laws unilaterally. The President can definitely pardon a criminal violation of a campaign finance law by anyone other than himself. The President definitely cannot pardon a civil violation of a campaign finance law by anyone. The majority and more analytically sound position is that the President cannot pardon himself for his own criminal violation of a campaign finance law (there are prior questions and answer at Law.SE regarding that question). A judge considering a campaign finance violation charge against a sitting President could, however, take steps short of dismissing the charges that could accommodate a sitting President. For example, the judge could be very deferential to the President in setting hearing dates, allowing the President to participate in proceedings by telephone or (in some but not all cases) through a representative, or in setting the amount of a bond or the terms of pre-trial release in the event of a criminal charge, or in cooperating with the President's security detail when the President is required to appear. In a civil violation case, the President would probably be allowed to be a deposition witness, with the deposition testimony used at trial, rather than appearing in person at trial, if his lawyers requested that treatment. | That remains to be determined. This article (100 Tex. L. Rev. 56 (2021)) discusses the possibility. To start, the Constitution does not directly say that a sitting president cannot be prosecuted. The lack of an express presidential immunity and the fact that an attempt by Madison to create such an immunity is an indication of "original intent". The view that an incumbent president cannot be indicted, prosecuted, convicted or punished is a policy stance set forth by the Dept. of justice, but is not constitutional law. Alito in Trump v. Vance points to some apparently negative consequences of allowing indictment of a sitting president, but this was in a dissenting opinion. Practical considerations of policy might argue for not prosecuting a sitting president, but the Constitution itself does not expressly forbid it. As we know from numerous SCOTUS rulings, the court is also capable of finding implicit support for a rule in the Constitution. For example theimpeachment provisions do not demand or even hint that impeachment must precede trial and punishment. An argument that prosecution would "incapacitate" the president is met with the fact that there is a provision for replacing an incapacitated POTUS with VPOTUS as acting president. The idea that a trial interferes with a person's ability to do their job (or that they can't adequately participate in their defense if they are doing their job) has not actually prevented ordinary people with jobs from being prosecuted for their crimes. | SHORT ANSWER Suppose a President can see that such a vote is coming and will pass, shortly before an election. Can that President resign just before the vote in order to effectively avoid the disqualification penalty? Probably yes. But, there is no historical precedent for this happening. Nixon resigned before the House voted to impeach him, not midway into the impeachment proceedings. Neither Andrew Jackson nor Bill Clinton resigned prior to not being convicted on the basis of a U.S. House impeachment. Several federal judges and one cabinet official, however, have resigned midway through impeachment proceedings prior to being convicted, and in those cases, the case was dismissed and no judgment was entered by the U.S. Senate, so they were not disqualified from holding future federal public offices. LONG ANSWER Relevant Constitutional Language The pertinent provisions of the U.S. Constitution include the following: Article I, Section 2, Clause 5: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. Article I, Section 3, Clauses 6 and 7: 6: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. 7: Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Article II, Section 4: The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. Article II, Section 2, Clause 3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Analysis The key language is in Article I, Section 3, Clause 7 of the U.S. Constitution which states in the pertinent part that: Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States[.] This means that a President who is impeached by the House and convicted by the U.S. Senate may be prohibited from holding any federal office from President to dogcatcher in the future. But, this can only be done in a "judgment" of the U.S. Senate in connection with an impeachment based upon a conviction in the U.S. Senate following a House impeachment, which has never happened. The history of the impeachment language and the limitation to removals from office, suggest that only a person who is current serving in office may be impeached. Otherwise, the proceeding would be invalid as moot, and would be dismissed (as it has been in the case of many judges who have resigned after investigations are initiated or after a House impeaches but prior to a conviction of impeachment). A U.S. Senate ruling that someone is disqualified from holding future office can only be entered in a judgment of conviction for impeachment, so cannot apply to a past President. If this were done it would probably be an invalid "Bill of Attainder" or "Ex Post Facto" law. See U.S. Constitution, Article I, Section 9, Clause 3 ("No Bill of Attainder or ex post facto Law shall be passed"). And, the U.S. Senate can't pass a law unilaterally, or enter a judgment convicting someone on an impeachment unless the House initiates the proceeding. There is no precedent concerning whether if someone who was convicted by the U.S. Senate and removed from office based upon an impeachment initiated by the U.S. House, in which the judgment did not disqualify the person impeachment from holding future federal public offices, the U.S. Senate could amend its judgment later on to also disqualify the person so removed from office from holding further public office. I suspect that if the question were presented that the federal courts would hold that the amendment of the impeachment judgment was not valid because the word "judgment" implies an immediate ruling upon a case and not a perpetual right to hold the person subject to the judgment in limbo regarding the consequences of his impeachment conviction. | No. Article 2, Section 1 of the Constitution states The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. Congress could include an increase to presidential compensation in the bill but it couldn't take effect until the next election. | Is a U.S. President a fiduciary in the same sense a trustee or bank officer is a fiduciary? No. Does a U.S. President have a duty to apply critical thinking to his public acts and statements? No. could a U.S. President who was acting in an obviously irrational way in exercising his discretion ( for example, by not using critical thinking) be held accountable under 28 U.S. Code § 1361 - action to compel an officer of the United States to perform his duty. No. 28 U.S. Code § 1361 applies only in circumstances where the duty to act involves no critical thinking or discretion whatsoever. | Perhaps. The relevant law is assembled into notes on 3 USC 102. The original act of 1963 defines President-elect in this manner: (c) The terms 'President-elect' and 'Vice-President-elect' as used in this Act shall mean such persons as are the apparent successful candidates for the office of President and Vice President, respectively, as ascertained by the Administrator following the general elections held to determine the electors of President and Vice President in accordance with title 3, United States Code, sections 1 and 2. There is no specific statutory provision directing the Administrator of the GSA to ascertain who is that President-Elect. The administration is apparently taking a position similar to that taken by the Clinton administration, that states determine who has been elected, and the states have not officially determined who has been elected: nor has a candidate conceded. If a court orders the Administrator to make the ascertainment, I expect that the administration would appeal the ruling up to the Supreme Court. This letter, addressed to the Administrator, gives the legal rationale. | The president is not permitted to blackmail the Supreme Court, but what you've described isn't blackmail. Blackmail is a threat to expose someone's crimes. You're probably thinking of something more like extortion, which is outlawed under 18 U.S. Code § 875: Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both. There are three problems with your theory I see right away: With the facts: As you noted, the President's statements were "seemingly unrelated," which is essentially an admission that there's no indication one has anything to do with the other. Under those circumstances, you can't establish that he's making any kind of threat. With the statute: "Extortion" is generally understood to refer not merely to a threat to do something unpleasant. Instead, extortion is inducing another person to turn over property by the wrongful use of force, violence, or fear. There's no property at play here, and it's not unlawful to study changes to the court (nor would it be unlawful to actually make changes to the Court, which the president doesn't even have power to do anyway). With the First Amendment: The President has a First Amendment right to advocate for changes to gun laws, and for changes to the composition of the Supreme Court. That right does not evaporate when it is informed by the court's conduct. So the Biden situation is not really a good fit with the hypothetical you've described, which presents a much stronger factual basis from which to find a threat. Because it also appears you're using wrongfully inducing fear of economic injury to obtain another person's property, and because you have no right to do so, you would be liable for extortion, while the President would not. EDIT: Although the top-line questions has been reframed, I'll just note that the answer remains basically the same. Bearing in mind that the president has no power to force any Supreme Court justice into retirement, one might rephrase the question this way: "If the Court rules that a constitutional amendment has Meaning X, can the president threaten to support a constitutional amendment?" The answer should be obvious: The president is free to support policies to change the constitution, at any time, for any reason. | The policy of the Justice Department is that the President of the United States can not be indicted. https://www.reuters.com/article/us-usa-trump-russia-indictment-explainer/can-a-sitting-us-president-face-criminal-charges-idUSKCN1QF1D3 All federal prosecutors are part of the Justice Department and that means the guidelines for them say it is prohibited. There is not an actual law saying you can or can't indict the president. The idea is that impeachment is the right way to handle presidential wrongdoing, because the president shouldn't be distracted and he could be charged after leaving office or if he was impeached. The president can be investigated though and some have. https://www.abc.net.au/news/2018-03-13/trump-nixon-five-times-the-fbi-went-up-against-the-president/9539192 |
Required to have a fishing license if homeless? Lets say an individual is homeless. He has no source of income and simply wanders around with a small bag of personal items. Included in the items are a fishing pole and several fishing lures. He survives off a several mile walk to the ocean every morning to catch his food for the day. Is he required to have a fishing license in order to fish? If arrested for several unlicensed fishing violations, and these are dismissed every time by a judge, at any point can it be considered harassment by any official that arrests him afterwards? (May possibly be a question on its own). | The Florida Fish and Wildlife Conservation Commission has a page which explains who needs a license. Generally, a license is required for all saltwater and freshwater fishing, but there are various exemptions described on that page. There is no specific exemption for homelessness or low income per se, but it is possible that one of the other exemptions listed there might apply to your hypothetical individual, such as for instance the following: You are a Florida resident age 65 or older possessing proof of age and residency (a valid Florida Driver License or Florida ID Card meets this requirement) or possessing an optional Resident Senior Citizen Hunting and Fishing Certificate. Residents age 65 or older may obtain, at no cost, complimentary hunting and fishing certificates from some county tax collectors' offices. You have been accepted as a client for developmental services by the Agency for Persons with Disabilities. The agency must furnish proof to such clients. [Saltwater fishing only] You are a resident who is saltwater fishing from land or a structure fixed to land who has been determined eligible for the food stamp, temporary cash assistance, or Medicaid Program by the Department of Children and Families (DCF). Proof of identification and a benefit issuance or program identification card issued by DCF or the Agency for Health Care Administration must be on your person when fishing. A license is required when fishing from a vessel or when swimming or diving. You are a resident who is fishing with live or natural bait, using poles or lines that are not equipped with a fishing-line-retrieval mechanism, and you are fishing for noncommercial purposes in your home county. However, you must have a valid fishing license to fish by any method in a fish management area. If none of the exemptions applies, your individual could get a shoreline fishing license, which is free of charge to Florida residents. This license would appear to cover his activities (fishing for a saltwater species from land or from a structure fixed to the land). | It depends on the jurisdiction, and what you hire the officer to do. It is generally legal to hire an off-duty police officer, and here is what Seattle says about that. They are held to the same standards as when they are on duty; they have to be off duty (and not on sick leave). They do have to submit an approval form that describes what they will do. While in uniform, the work has to be of a law enforcement or traffic enforcement nature (thus not bill-collecting or vehicle repo), also you can't work in an alcohol or marijuana sales establishment. Some of your interests would probably not be covered, since zoning-type infractions (pool) are not within the purview of the police, but burning trash on the sidewalk would be. Because of the requirement for approval, you probably can't pay to get a response to a robbery (still takes 24 hours to get "short notice" approval). It is not clearly illegal to offer an officer money to "do his job", but it is also not clearly legal. It is illegal (bribery), if you With the intent to secure a particular result in a particular matter involving the exercise of the public servant's vote, opinion, judgment, exercise of discretion, or other action in his or her official capacity, he or she offers, confers, or agrees to confer any pecuniary benefit upon such public servant It is not obvious whether a peace officer is a public servant, as defined under the law. A "public servant" is any person other than a witness who presently occupies the position of or has been elected, appointed, or designated to become any officer or employee of government, including a legislator, judge, judicial officer, juror, and any person participating as an advisor, consultant, or otherwise in performing a governmental function and a "peace officer" is a duly appointed city, county, or state law enforcement officer By statutory stipulation, a LEO is "appointed", and they are an employee of the government. Then when you hire them to do something, do you do so "with the intent to secure a particular result in a matter involving the exercise of the public servant's exercise of discretion in his or her official capacity"? If so, it is bribery (a crime). Since LEOs can legally be hired to enforce the law when off duty, the legality of that hiring must depend on the "particularity" of the job. If an officer has the discretion to arrest Smith for a criminal act, but declines to do so, then you cannot pay him to act otherwise. Officers generally have the discretion to arrest (or not) anyone committing a crime, so hiring an officer to "control traffic" or "work security" is not influencing the officer to exercise a particular form of discretion. The crucial question would be, why didn't they enforce the law in the first place? | The 5th amendment protects you from self-incrimination. If by possessing a firearm you are in violation of the law you cannot be compelled by law to reveal this information. If the police discover you have a gun in violation of the law you can be arrested and prosecuted for that offense. They cannot additionally prosecute you for not telling them about a gun. I thought there was a supreme court case about this specific situation, but the closest I can find for now is Haynes v. United States. The 7-1 majority held that people prohibited from possessing firearms cannot be compelled to register their firearms that they are possessing illegally. They are stopped by the police and asked this question. They answer truthfully. Then they can be arrested and prosecuted for the illegal possession of the gun. How does this square with the right not to self-incriminate? Or is asking the question considered to be a search? Police can generally ask whatever they want. If you choose to waive your 5th amendment rights, that's your mistake. Can the state prosecute this person for carrying the illegal weapon? The state can generally prosecute crimes it knows about. So yes, in this case they can. Suppose that next to the weapon a stash of illegal drugs is discovered, which was only found due to the action taken to secure the weapon. Can the state prosecute for that? The state can generally prosecute additional crimes it uncovers during investigations or other lawful actions. So yes, this can be prosecuted. | ORS 166.220 suggests this would be illegal - specifically its "unlawful use of a weapon" if a person (emphasis mine): Intentionally discharges a firearm, blowgun, bow and arrow, crossbow or explosive device within the city limits of any city or within residential areas within urban growth boundaries at or in the direction of any person, building, structure or vehicle within the range of the weapon without having legal authority for such discharge. So what's "within range"? With a homemade bow of unknown construction, draw weight, and unknown arrows I'd say it's pretty much going to be something you find out when an arrow goes that far. I wouldn't expect it to match the range of high-end bows and arrows (I've seen 40lb recurves cover ~250 yards) but 100 yards plus doesn't sound ridiculous - more if it's got some elevation to it. The point is you really don't want to find out the hard way when a shot goes astray giving your neighbours the old King Harold treatment. | There is commonly a law like RCW 69.50.309 which says that A person to whom or for whose use any controlled substance has been prescribed, sold, or dispensed by a practitioner, and the owner of any animal for which such controlled substance has been prescribed, sold, or dispensed may lawfully possess it only in the container in which it was delivered to him or her by the person selling or dispensing the same. A controlled substance is "a drug, substance, or immediate precursor included in Schedules I through V as set forth in federal or state laws, or federal or commission rules". Schedule V includes some opiates with low potential for abuse and dependency. It does not include prescription antibiotics, and does not include Ibuprofen and other OTC NSAIDs. The cop may be right about keeping your narcotics in the original container, but wrong about anything less. I can't presently locate the Oklahoma analog of this law. After diligent searching, I even suspect that Oklahoma does not have such an "original container" law. It would count as a "counterfeit substance" if it is a controlled substance and is in a container with labeling that is not that of the original distributor, but if the contain is completely blank, it is not legally a "counterfeit substance". And again, that only applies to controlled substances. | Law does not have an all-encompassing syntax and structure that, if not followed, makes it null and void. If a reasonable person could determine that (in the example of the sign you have) you are required to get written permission from any or all of the Paulding County Commissioners, then the sign is enforceable. I honestly don't see anything wrong with the sign you are displaying, it is reasonably clear. If, for example the notice contains an ambiguity or unclear phrase, the "spirit" of the law or sign is upheld. If the sign had said something to the effect of "No trespassing without permission". It doesn't say who you need permission from, but you can reasonably ascertain that you must have permission from somebody in control of the land. There is no line in the sand here. Often when a dispute in a contract comes up where it could be interpreted more than one way, it is often interpreted in favor of the person who did not write the contract. "Offer ends October 30 or while supplies last" Isn't really "ill-phrased" either. I assure you that those statements are vetted by highly paid lawyers from many jurisdictions. I'm not sure what "nonsense" you would be referring to in there. If the vendor runs out of promotional materials the promotion ends... If they had said "free hats to the first 100 customers on December 31st", you can't show up as the 101st customer and demand a hat, nor could you show up on January 1st (even if there were not 100 customers the previous day) and demand one either. | In the US, police do not put a person under house arrest, instead, the courts do, as an alternative to standard imprisonment (either awaiting trial, or serving their sentence). The police are not involved at all; the courts cannot be sued for lenient sentencing. If a person leaves their house (even to buy a bottle of milk), they will have violated the terms of their more lenient sentence, and will be arrested and sent to regular jail. Generally, police are not liable for damages, especially when they fail to be omnipotent in their efforts to prevent others from doing wrong. | 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. |
If you take your package from a shipping company without their permission in the US, what, if any, laws would you be breaking? In the US, shipping companies often have relatively limited ways for you to get your package and if you don't jump through the proper hoops they don't give you your package. While I understand why they do this from a security perspective, I'm curious what laws you would actually be breaking if you simply picked up your package and walked out the door or took it off the truck. Assuming you have already paid for the package and don't intend to scam the shipper or the vendor in any way, what, if any, laws would you be violating by removing the package against the shipping company's will? | Its not yours until its delivered When delivery happens depends on your contract with the seller. In addition, risk may transfer from the seller to the buyer at a different time from delivery. The International Chamber of Commerce has published Incoterms to standardize both delivery and risk transfer times in international contracts and the terms are commonly used in domestic contracts. So until the buyer has taken delivery, the goods belong to the seller and taking them is theft. Bailee Regardless of who currently owns the property, the carrier is its bailee and is responsible to the owner for its care and protection. That may mean they have to protect it from the owner. Tresspass You can't enter another person's property without permission even to claim your own property. | I'll assume a real question here and not one about a fan film on YouTube. Take the trash from a trash deposit container outside my neighbor's house, without asking permission? All depends on the locality; and sometimes the law is not settled, either. Some cities have passed laws that deem trash to be city's property as soon as it is placed in a city-supplied trash bin, because the city (or a private contractor) hauls to and owns the landfill. Other cities claim legal ownership of recyclables when placed on the curb, for the obvious reason that they are worth money. The law can be not settled if objects are in alleys and not in trash bins, or simply placed on the curb. For the sake of discussion, there are numerous examples of cities looking the other way with scavengers and pickers; it all depends on the location and the enforcement. (And, there are examples of the police being able to legally pull evidence from trash; but that's not the question here.) Go to the landfill, load some trash into my truck, then drive away? Think about it: you're obviously not going to be able to do this in a location with a managed landfill with employees that check you in and take your tipping fee. If it's a private trash contractor, it's private property; for a city, it's probably against the contract you signed when you paid to dump and probably against city law to salvage from the landfill, for liability reasons. (That doesn't mean the employees at the landfill can't salvage themselves; that's up to them.) But like anything, at an unmanaged landfill in a rural area, you could probably get away with it. | 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. | Because breaking the law is not breach of contract (Necessarily). Were you to use the model to 3D-print a gun and rob banks with it, without this clause, you have not broken the contract. That would mean that the provider could neither sue you for any damages the use of their model in your crime spree might have caused them, nor can they legally terminate the licence with you. | If they really ordered it, they entered into a contract, and you have a claim against them for damages suffered because the contract was breached. This would be a civil claim, not a criminal claim, in the Netherlands. However, if you're delivering an order that was sent anonymously, you have no way to prove that the person at the door is the one who ordered the food - and the onus would be on your to prove that it was. It could become a criminal act under a number of laws ("oplichting", "fraude", etc.) if intent can be proven but that's not easy - and you first have to get the police/public prosecutor interested in the case. It's quite comparable to someone ordering in a restaurant and not paying the bill, which is notoriously hard to prosecute criminally in the Netherlands. (Search for "eetpiraat" - dinner pirates) As a restaurant, you usually can only try to enforce a civil claim through the civil courts. | 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. | It's illegal under US law. 18 U.S. Code § 478 says: Whoever, within the United States, with intent to defraud, falsely makes, alters, forges, or counterfeits any bond, certificate, obligation, or other security of any foreign government, purporting to be or in imitation of any such security issued under the authority of such foreign government, or any treasury note, bill, or promise to pay, lawfully issued by such foreign government and intended to circulate as money, shall be fined under this title or imprisoned not more than 20 years, or both. There are several similar laws for similar crimes: § 479 - Uttering counterfeit foreign obligations or securities § 480 - Possessing counterfeit foreign obligations or securities § 481 - Plates, stones, or analog, digital, or electronic images for counterfeiting foreign obligations or securities § 482 - Foreign bank notes § 483 - Uttering counterfeit foreign bank notes § 488 - Making or possessing counterfeit dies for foreign coins § 502 - Postage and revenue stamps of foreign governments According to version of the South Sudan penal code I was able to find, counterfeiting is illegal. But if I understand section 7 correctly (which I might not), most counterfeiting is not prosecutable under South Sudan law if it is not done in South Sudan. Having a counterfeit revenue stamp, however, would be, as would fraudulently altering a coin. Given that there's not an extradition treaty and that it's already illegal under US law, this probably doesn't matter much, though | If it was illegal to make the entire copy, it is illegal to copy half the file. See also, e.g., Basic Books v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991) In response to the question of whether moving it to someone else's servers makes a difference: it is the act of copying, not the possession of the copy, that is the violation of copyright law. As for the copy a service assists someone to make, contributory liability would be the issue. You don't need to be the person making the copies to be contributing to the infringement--material contribution to the copying process and knowledge of infringement run a serious risk of creating contributory liability. If seriously considering such a service as a business model someone would need to consult a copyright expert with technical knowledge or pay counsel with technical knowledge for a good bit of time to do some research. There are major civil and criminal consequences if the industry or the government decides to go after a service doing this, so legal expenses would be a significant and important cost of doing business that would significantly increase barriers to entry. In addition, the service would likely be in violation of its agreement with storage vendors, who would want to minimize their legal exposure and might well discontinue the service when they learned what it was doing. |
Can private schools in CA require a uniform? California has what's known as Leonard's law that protects free speech when on a private school campus, whereas the rest of the country says private schools can control speech on their campuses. I'm asking specifically about a Lasallian school which is a religious school and Leonard's law says that the school can restrict speech if it is against the religious tenets of the organization. Now I don't think school uniforms fall are part of the tenets of Catholicism, so why can private schools enforce dress codes? | Leonard's law says that the school can restrict speech if it is against the religious tenets of the organization. Now I don't think school uniforms fall are part of the tenets of Catholicism, so why can private schools enforce dress codes? I see there's a misunderstanding of the Leonard's law. But I fault the California legislators (not you) for that confusion, since the statutory language is ambiguous and leads to the reasonable interpretation your inquiry reflects. The statute reads: (c) This section does not apply to a private postsecondary educational institution that is controlled by a religious organization, to the extent that the application of this section would not be consistent with the religious tenets of the organization. It is not that a religious school is allowed to restrict speech if it contravenes the tenets of that religion, but that the statute altogether is inapplicable to religious schools because it is considered an infringement of fundamental liberties to which religious institutions are entitled in the US. The [religious] school would prevail on the basis of the ecclesiastical abstention doctrine. See Dermody v. Presbyterian Church (U.S.A.), 530 S.W.3d 467, 474 (2017): The ecclesiastical-abstention doctrine prohibits courts from deciding cases "dependent on the question of doctrine, discipline, ecclesiastical law, rule, or custom, or church government[.]". (Please note that I strongly disagree with the application of that doctrine in the Dermody case and I consider it impermissibly outdated for the controversy litigated therein, but that is a separate issue). A religious school could convincingly argue that the judicial review of its uniforms policy infringes matters of ecclesiastical discipline/rule/custom, aspects which ultimately "involve an internal church dispute over religious authority or dogma" Roman Cath. Archbishop of LA v. Super. Ct., 32 Cal.Rptr.3d 209, 220 (2005). Infringements of ecclesiastical abstention and akin doctrines would be outweighed only in "compelling" [cases] because "the duty to prosecute persons who commit serious crimes is part and parcel of the government's `paramount responsibility for the general safety and welfare of all its citizens'" Roman Cath. Archbishop of LA v. Super. Ct. at 225 (brackets added in this answer). A free speech controversy such as the school's uniform policy simply does not meet that threshold. | This is roughly accurate, but there are nuances. The real US issue with teacher-led prayer is that a teacher's authority can make it effectively coercive, or seem so, even if this is not intended by the teacher. (And in the past it has often been so intended, by teachers and administrators who thought it was good for children to be required to engage in prayer.) There is no ban on a teacher praying privately. Similarly, there is no ban on private prayer by a student. Indeed such a ban (for either teacher or student) might violate the free-exercise clause of the US constitution. Of course a student should not be engaged in prayer when s/he is supposed to be doing classwork, but there are times during the school day available for prayer. However, public, student-led prayer can also be an issue. For example, at some schools it was customary to have such public prayer at the start of football games, or school assemblies. This official designation of a moment or occasion for prayer was challenged as an endorsement of prayer by the school, and as coercive to those who did no want to participate, but might feel strong social pressure to do so. The point is that the school, as an aspect of government, and one where students are required to attend at that, should not make prayer an expected norm, resulting in singling out those who do not conform. But no US law or court decision has ever forbidden private prayer in schools by students, or indeed by teachers. | No, given McGowan v. Maryland, 366 U.S. 420, Braunfeld v. Brown, 366 U.S. 599 and In Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582. The principle is that laws with religious origins are constitutional if they have a secular purpose. In Braunfeld, the defendants who were Orthodox Jews could not operate their business from sunfall to sunfall on Friday-Saturday, and sought to operate on Sunday contrary to a Pennsylvanis law prohibiting retail sales of their commodities on Sunday. The court rules that the law "does not violate the Equal Protection Clause of the Fourteenth Amendment, nor constitute a law respecting an establishment of religion, and it does not prohibit the free exercise of appellants' religion, within the meaning of the First Amendment, made applicable to the States by the Fourteenth Amendment". Their argument was based on the fact that to comply with the requirements of their religion plus the statutes of Pennsylvania, they would suffer economic loss. The court historically reviewed blue laws and concluded that the requirement to be closed on Sunday is not necessarily tied to religion, noting for example that in 1776 Virginia seemed that "all men are equally entitled to the free exercise of religion" and repealed laws penalizing expression and observations of religions, but also maintained laws prohibiting Sunday labor. Restrictions are possible on "people's actions when they are found to be in violation of important social duties or subversive of good order, even when the actions are demanded by one's religion". The matter has not come before SCOTUS since then (the constitutionality of blue laws is now "established law", until these rulings are overturned, analogous to Dobbs overturning Roe). | This question mixes up two separate although related issues: Does a student have a first amendment right to perform "sacred" music during school time? Is a public school allowed to include such in its curriculum, or does the First Amendment's Establishment Clause forbid that? The answer hinted at in the question applies only to issue 2, while the title of the question goes to issue 1. Engel v. Vitale, 370 U.S. 421 (1962) held that school officials may not compose an official prayer, and mandate or encourage its recitation. (mandatory recitation would probably have been prohibited by West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) much earlier.) The ruling of Engel v. Vitale, would also have applied to sung prayers. Later rulings, consistent with Engle prohibited "one minute for prayer or meditation" ( Wallace v. Jaffree (1985)), clergy-led prayer at middle school graduation ceremonies (Lee v. Weisman (1992)), and school-organized student-led prayer at high school football games (Santa Fe ISD v. Doe (2000)). But none of these prohibited religious music as part of an instructional music program that was not a form of worship. All the above cases prohibited school-organized prayers intended as prayer or worship. As to issue #1, it is settled that students have the right to pray privately, in ways that do not disrupt school activities. It is hard to see how performing religious music could be done privately and non-disruptively. Neither students nor their parents have a right to insist that certain topics be included in the school curriculum. The students have a right to pray, but not to insist that the school organize prayers or include religious music in its music program. | No. It is an often repeated misconception that "Freedom of Speech" means that no one can restrict speech ever. This is not the case. Let us look at the US Consitution's First Admendment, which contains the "Freedom of Speech" clause: Congress shall make no law ... abridging the freedom of speech, or of the press... (Emphasis mine) As one can see, the First Amendment only restricts government actions. (It also stops other branches of government from restricting speech, because those branches are innately weak with very few powers granted to them by the constitution; the majority of executive or judicial branches powers are granted to them by a law passed by Congress, and Congress cannot give a power to another party that they do not possess). A Home Owner Association (HOA) is not a government or government agency; it is a private organization (and it is not the same as the "private management company" that manages the condominium, which is probably in the employ of the HOA; which also means that emailing the manager is not emailing the HOA board). Their power stems from a contract, one that your friend signed when they bought the property (one of the conditions agreed to is that a member who sells or gifts their HOA-member property can only do so to someone who also agrees to the contract). That said, HOAs can be horribly abusive and many states have laws that restrict what kinds of rules and penalties can be applied by an HOA. But that is not a constitutional matter (at either the Federal or State level), nor a question of "Freedom of Speech", but rather a limitation on the kinds of behaviors that can be enforced by contract. | The answer is a clear maybe. The school has a set of rules and by not attending you have broken those rules. The rules may (probably do) allow for consideration of extenuating circumstances but, in general, it doesn't have to. There is probably an appeals process, you need to investigate this. That said, if there are no provisions for extenuating circumstances and/or no appeals process then this may make the contract "unconscionable"; in many jurisdictions this makes the contract void. That doesn't mean you get the marks; it means you get your money back. The circumstances of your court appearance matter: the school may grant special consideration if you are called as a juror or witness; they might not if you are a defendant. Ultimately you had a choice, to follow the rules of the court or the school; there are consequences either way. | I don't believe Canada uses the public official/figure distinction. American defamation law uses the distinction to determine whether to require proof of actual malice, but Canada does not require proof of actual malice. Canadian defamation law has a lot of other parallels to American defamation law, though, especially in terms of privilege. I'd expect the University could claim any of several available privileges, including truth, qualified privilege, and fair comment. And because it's a government institution, it's conceivable that it might even claim absolute privilege, though I definitely don't know enough about their interpretations of the privilege to say one way or another. For a broad primer on defamation law in Ontario, you can check out this report from the Law Commission of Ontario. | tl;dr: no, they're not law yet. Background The two bills are different. A5217 proposes to create a juvenile alternative to the current community service program, and A1969 proposes changes to the state's anti-bullying law. It looks like they've reassigned the number "5217." The correct version of A5217 is at this link. A bill becomes law when signed into law by the governor. To be delivered to the governor, the bill has to pass both houses of the legislature. In order to pass in one house, the bill has to survive a full vote there. To be voted upon, a bill typically has to clear its committee. Sometimes that entails getting adequate support (like sponsors). Bills include the language "Be it enacted" because each house has to vote on the precise language the governor will eventually sign. A5217 is still in progress, meaning that it has yet to pass the Assembly. It has been introduced, referred to the Assembly Law and Public Safety Committee, and got a third prime sponsor (on May 24 DiMaso joined Lopez and McKnight as a sponsor). The companion bill, S3447, has been introduced and referred to the Senate Law and Public Safety Committee. A1969 has been introduced and referred to the Women and Children Committee. It does not yet appear to have a Senate companion. |
How are Trump's actions against NFL protesters not a violation of Constitutional rights? I've been casually following the NFL player protests against injustice in modern America. Often the controversy is centered around players like Colin Kaepernick, whose career seems to be over even though he was a [valuable] franchise player and whose [performance] stats seemed to be increasing each season. The press seems to regularly report in articles like Colin Kaepernick Is Not Going Away: [Dallas Cowboys owner Jerry Jones] Jones is the most outspoken owner to oppose the protests, but he speaks for more than a few of his colleagues. He has also donated to President Trump, who has frequently attacked the owners for not firing players who protest and who publicly praised Jones for his hard-line stance. How can the president actively attack a person who is peaceably protesting and exercising their right to free speech; and encouraging (coercing?) others into abridging those rights? I understand folks like Kaepernick have no protections from corporate America; but the rights and protections from government are guaranteed in the Constitution. A related article that some may want to read is Kaepernick vs. the N.F.L.: A Primer on His Collusion Case. The article examines Kaepernick case against the NFL and the league "black-listing" him, and not the [seeming] transgressions of the government against him. Here is a related Trump media event as reported CNN: Trump credits his Twitter wrath for Kaepernick's unemployment. | The comments have already pointed out that the President of the United States is still a citizen, and all of the rights of a citizen are still protected for them. Additionally, the Administration is allowed to take policy positions which are antagonistic to a person or group's cause, even if that group is practicing their rights to express their views legally. To give a different example, the President and his administration may denounce the position of a group of Neo-Nazis marching legally. So, any argument that the President is acting in an official capacity while making antagonistic comments also probably fails, as the Administration is allowed to take a position on any issue they deem worth taking a stand on. As noted in another answer and in comments, the applicable laws appear to be 18 U.S. Code § 227, which provides for punishment of government officials who attempt to influence employment decisions through official acts for political purposes, and 42 U.S. Code § 1983, which provides for civil action when a person deprives, or causes the deprivation of, another person's rights under color of law. 18 U.S. Code § 227 likely does not apply for two reasons The President may show that his conduct was not purely for political purpose The official statements made do not qualify as official acts per McDonnell v. United States, as they are not a decision or action on a "question, matter, cause, suit, proceeding or controversy"; that question or matter must involve a formal exercise of governmental power, and must also be something specific and focused that is "pending" or "may by law be brought" before a public official 42 U.S. Code § 1983 might apply if the official statements were found to be acting under color of law, but I think the statements made so far will fail to meet the qualifications for this statute. Blair v. Bethel School District gives three qualifications for conduct that would allow recovery under this statute: (1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action. The President's and Administration's official speech appears to fail the second criteria. First, it is questionable whether it qualifies as an "Adverse Action" - in Blair, as well as Hartman v. Moore and Gibson v. United States, the adverse action against the Plaintiff caused actual damage or indignity. However, even if we assume the official speech qualifies as an adverse action for the purposes of the statute, it still appears to be permissible for effectively the same reasons as the first and third arguments presented in the decision: First, the adverse action Blair complains of was a rather minor indignity, and de minimis deprivations of benefits and privileges on account of one's speech do not give rise to a First Amendment claim. The actual effect of the Administration's speech has a minimal direct effect on the players it speaks against. The decision further states: The most familiar adverse actions are “exercise[s] of governmental power” that are “regulatory, proscriptive, or compulsory in nature” and have the effect of punishing someone for his or her speech Official speech by the Administration is not "regulatory, proscriptive, or compulsory in nature." While this is not a complete definition for "adverse action," it gives a sense of severity, which official speech does not appear to meet. Additionally, the President's right to speech, and the Administration's authority and need to make official speech as directed by the President is a competing interest in this case, as was the interest of the Board in Blair: Third, it is significant that Blair isn't the only party in this case whose interests implicate First Amendment concerns. To the contrary, we assume all of the Board members have a protected interest in speaking out and voting their conscience... The decision does note that: The point isn't that the vote against Blair was protected speech simply because it was expressive. Almost all retaliatory actions can be said to be expressive, including those that are manifestly unconstitutional. But, while Blair certainly had a First Amendment right to criticize Seigel and vote against his retention as superintendent, his fellow Board members had the corresponding right to replace Blair with someone who, in their view, represented the majority view of the Board. Similarly, it's probable that a court would find that the President's right to speech and their Administration's corresponding authority to speech against the players' right to protest is equally weighted or even weightier, such that stifling the official speech is as bad or worse than the alleged chilling effect of the speech. Some examples of things that clearly would fall afoul of 42 U.S. Code § 1983 would be the President or the Administration misappropriating funds to use to pay NFL teams not to hire players who kneel during the national anthem, or signing an Executive Order preventing players who kneel during the national anthem from playing - in both cases, they are taking actions which fall outside the powers of their office, which would qualify as acts made under color of law and clearly chill the players' First Amendment rights. | The Fifth Amendment right against self-incrimination applies only in criminal trials, but it permits a witness to refuse to answer a question in either criminal or civil cases, including in a deposition. If he had committed crimes or thought that his answers might have incriminated him, he should have declined to answer. I'm not terribly familiar with this case, but it occurs to me that a lot of the allegations against Cosby go pretty far back; it could be that he was talking about something so far back that he wasn't exposed to any criminal liability. In a case like that, it may even be that a judge had already ordered him to answer the question. Assuming that he voluntarily answered the question, he has waived his right against self-incrimination and the testimony is generally admissible. | First, read the definitions of defamation and libel be sure you understand them: Defamation | Wex Legal Dictionary | Cornell. Yes, posting to Twitter and Reddit is publishing, and people can post provably false facts on those services and defame someone in a civil law sense. But Section 230 of the Communications Decency Act (Electronic Frontier Foundation) mostly protects those services from defamation claims based on statements made by users of such a service. (Things are different if the case is criminal as a result of clear threats of violence, terrorism, etc.) ...what are the steps for them to exact damages in a civil court case? Find a lawyer, convince him/her to take the case, and file suit. if you don't know the person's real name, your lawyer will have to sue "John Doe" and point that out in the suit (and subpoenas) with the alleged Twitter handle or Reddit user name. How would a person compel Twitter/Reddit/etc to disclose the ISP information on their account? Read the various legal aspects of each service, i.e. Twitter Legal FAQs and User Agreement - Reddit and others. Your lawyer can explain that you can only try to compel them to disclose the IP and the ISP used with a subpoena during your lawsuit. How would a person compel an ISP to disclose the subscriber information (address, name) on the IP address? Since most ISPs protect their customer data, you will probably have to subpoena the ISP during your lawsuit. But your ability to do this can depend on if the ISP is a private company or a government entity, such as a university. State laws may come into play. Is obtaining the ISP subscriber's information enough to bring a lawsuit against them? Would they able to argue they didn't post the messages and bear no liability, even if it originated from their network? If it originated from an open wifi hotspot, would the proprietor bear responsibility at this point? Yes, you can sue an individual with such information; but there's no guarantee you'd win. Sure, because they can claim anything, such as someone else was using their computer or IP. No, owners of hotspots are generally not liable, and they protect themselves with TOS you agree to when you use the hotspot. Can the extensive legal costs of pursuing the case to it's conclusion be added to the damages sought easily? Legal costs can possibly be added, depending on jurisdiction. But seeking damages and actually winning them through a jury verdict are completely different things. | In this case the Plaintiff, James Maloney, has previously been charged with a crime for possession of nunchucks. He is apparently suing to enjoin further enforcement of the law under which he was previously charged. US Federal courts will only take up a "case or controversy", which means an issue where actual, not theoretical rights are at stake, and in order to vindicate a constitutional right, it must either have previously been violated, or there must be a plausible and immediate threat to it. Claiming that a law is unconstitutional as part of a defense to a charge of violating that law is a common and probably the best known method of challenging a law (or a government action) for unconstitutionality. But there are other ways. One way is to apply for an injunction against enforcement of the law. That is the procedure that was followed in, for example, the recent case where there was a ruling against the ADA in a district court. In order to use that procedure, the plaintiff must present evidence that there is a credible threat that the law will be invoked against him (or her) if the action which the plaintiff claims is protected by a constitutional right is taken. In short, one need not put oneself in a position where one goes to prison or is found guilty of a crime if one loses the case to challenge the constitutionality of a law or of a government policy or action. But one must establish that it is a real "case or controversy", with real parties in opposition to each other, and real rights at stake, not a mere law student's exercise, nor a collusive case, with both "sides" having the same actual goal. In the case reported, the previous criminal charge helps to establish that this is a real issue. | Basically, the author is saying that if the First Amendment were interpreted in the way described, as an all-purpose shield -- and therefore, journalists were not subject to libel laws, and could not be searched or deposed -- then journalists, being all but above the law at that point, would have a tremendous amount of power. There would need to be checks and balances to that power for the sake of justice, personal privacy, etc, lest we end up ruled by the press. The implication, and the point of the bolded part, is that these checks and balances must inherently weaken the protection offered by the First Amendment. So the Amendment can be seen as either an all-but-inviolable protection of the specific freedoms enumerated within, or as a general get-out-of-jail-free card that can be voided as community interests demand. It can not reasonably be both strong and overly broad. | As I understand the story, Black recused himself because the attorney was his cousin. I think the joke is that the attorney thought it wasn't necessary for Black to do so, perhaps because the attorney didn't understand how seriously conflicts of interest are taken. I don't think Kennedy misspoke; I think he's just used the generic you construct, in which "you" is used as an impersonal pronoun instead of "one". His sentence could be rephrased more formally as: Hugo Black stands up and stalks out of the room, which among Supreme Court justices is a polite way to say that one is recused. In other words, Black's action is equivalent to him saying "I am recused". | Farmer's Market is private property, which means that the owner gets to set the rule according to which you are allowed to enter and remain on their property. There is no fundamental right to be in a business, either under the US Constitution or California's. While you have a constitutional right to put a soapbox on the public sidewalk and denounce or extol whatever you like, there is no such right on another person's property. You also have a right to express racially and sexually abhorrent content on the street. Your right to express your viewpoint ends at the store's doors. The manager has a property right to withdraw the implicit permission to enter and remain that is implicit in running a publicly accessible store. Your constitutional right to say whatever you want has to do with government action,not private action. You have no right to compel individuals to listen to your viewpoint on private property. It is a business decision, well within the rights of the property owner, for him to find your conduct unacceptable and grounds for expulsion. You do have a recourse: shop somewhere that doesn't care what you say to their customers. | This is a pretty good guide to the student's right to express their views on religion (for or against). For example you may pray in school, but you cannot compel others to listen to your prayers. You may discuss Jesus Christ and you may advocate a religious perspective, if it is on topic (e.g. in a class discussion abortion, but not in an algebra class). There are familiar ways of saying "Jesus Christ" which would be disruptive, but a general prohibition against uttering a name (on the grounds that the name is of a religious figure) is not a proper application of the separation of church and state -- as the ACLU statement says, SCOTUS did not make public schools religion-free zones. Whether or not the teacher was given the authority to forbid mentioning religious figures by some supervisor, that would not have been proper authorization. Official advocacy of religion in general, or a particular religion, is contrary to the First Amendment, as is official prohibition of religion in general, or a particular religion. |
US Federal Laws Pertaining to Banned Books I've been having trouble with my search for federally banned books. Many searches show books which are banned in local libraries or by the state, but not nationally. The only book I could find that is still banned nationally is "The Political Mafia" by Irwin Schiff. Is there any resources to find out what publications are banned nationally? Also, what is the criteria necessary for the federal government to ban a publication? | The United States has a very liberal attitude when it comes to free speech. Short of materials that are: child pornography, restricted under the International Traffic in Arms Regulations (ITAR), Libelous/Fraudulent, encourage or aid others in breaking the law, or seditious/treasonous/ terroistic/other credible threats there is almost nothing that can't be published. There is another example where supposedly The Golden Book of Chemistry Experiments was banned by the US Government, but I cannot find any evidence or action against the author to support the claim. The Political Mofia by Schiff was not neccessarily banned, but an injunction from publishing was issued against the authors in US v. Schiff, 379 F. 3d 621 - Court of Appeals, 9th Circuit 2004 per 26 U.S.C. 7408 on grounds that the books was fraudulent. Essentially it is the Federal courts that can ban a book from commerce with cause. Schools, libraries and other institutions may ban it from their collections, but not from public commerce. Wikipedia has a list of Books banned by governments that you may want to look at to find examples. | There is a saying that you can't sue city hall: that is applicable here. Governments enjoy sovereign immunity, and cannot be sued for their errors of judgment unless they specifically allow it. Safety regulations are an example of a situation where the government hold all of the power and shoulders none of the responsibility. If a government forbids sale or use of a substance on some grounds (could be safety, could be economic impact, could be something about preventing the moral decay of society), and the grounds later turns to be false, you cannot sue the government because of lost business opportunities. Generally speaking, that which is not prohibited is allowed, so there would have to be an affirmative duty for the government to prevent all forms of harm. If there were such a legal duty, there is a miniscule legal foundation for suing the government for shirking its duty. That is not a completely hypothetical possibility, in that the state of Washington imposes a constitutional duty on the legislature to provide public education, and the Supreme Court has done things to enforce this duty (the contempt of court fines are up in the realm of $80 million). Since there is no jurisdiction that imposes a duty on the government to absolutely prevent all harm, you won't be able to sue the government if they fail to outlaw a thing that is eventually proven to harm someone. | "Police" that one would generally encounter in the US are local or state agencies, and the ordinary crimes you mentioned are matters of state law, so they would be reported to local or state police. (There are federal law enforcement agencies, but they only deal with specialized areas of federal law, and you wouldn't ordinarily encounter them in daily life.) On the other hand, immigration is a matter of federal law. The responsibilities of local or state police are governed by state law, and the federal government cannot compel state officers to enforce federal law. A specific state's law could potentially require state and local police to ask about people's immigration status and/or ask the federal government to check on the status of someone they suspect might be illegal. I believe a few red states have enacted, or are considering, such laws, though they usually deal with people stopped by police rather than people filing a report. Some of these laws have been challenged in court, and I am not sure which exact parts of which laws are still being implemented for each of those states. Most states do not have such laws. | 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. | 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. | Depending on your jurisdiction, such lists may be protected, but not by copyright. For example, in Germany there was a court decision that scanning all the country’s phone books and selling them on CD constituted “unfair competition” and was illegal, while hiring 1000 typists who would manually type in all this information would not be. Databases are protected in many jurisdictions, and a list of the 1000 most commonly used English words could reasonably be called a database. | In Torcaso v. Watkins, 367 U.S. 488 (1961), the US Supreme Court ruled unanimously that a similar provision in Maryland's constitution violated the First Amendment and could not be enforced. So presumably the North Carolina provision is similarly unconstitutional and unenforceable. It's not clear why it wasn't removed in 1971. I found references to a 2009 incident in which an avowed atheist named Cecil Bothwell was elected to the Asheville, NC city council. Opponents apparently threatened to mount a legal challenge to his eligibility under the Article VI provision. It's not clear if they actually tried to do so, but in any event, Bothwell served his full four-year term and was then re-elected for another. | Eventually. This was a state matter prior to the enactment of the Constitution. Without the Copyright Clause, it would have been up to each state to enact such a law (apparently Delaware did not bother). This would have quickly led to inter-state disputes (a New York author being infringed by a New Jersey party), therefore the matter would have been heard by the federal courts. The current understanding of the Commerce Clause easily allows Congress to enact a copyright law, because copyright is quite commercial and potentially crosses state lines. It took a while for that clause to be interpreted by the courts the way it is now. This is a brief summary of historically shifting views on the Commerce Clause. |
Are there legal implications to lying about your sponsors? Let's say I release a video where I say "sponsored by Company C" even though they never sponsored me. Are there legal implications to lying about that, or is this action protected by the First Amendment? At first, I thought that mentioning Company C is like doing free advertising for them, so why would they care. However, if Company C doesn't want to be associated with me, and the alleged association damages their reputation, then maybe this counts as slander: oral defamation, in which someone tells one or more persons an untruth about another, which untruth will harm the reputation of the person defamed. Since in this case, I wouldn't be blatantly saying a bad thing about the company (e.g. "their CEO is a murderer"), I imagine they would need to do a bit more work to prove to a court that their reputation was damaged. (this is also assuming that slander applies to companies) | False statements are generally protected by the First Amendment. If the video was an obvious gag or work of fiction, in which a reasonable person would understand that you were not truly endorsed, your false statement would almost certainly be protected by the First Amendment. But many false statements are not protected, typically because of their negative effects on other parties. Classic examples include defamation, perjury, and fraud. A lie about an endorsement could easily fall on either side of that line. If you are making the video in a context in which reasonable viewers would be led to believe that you truly were endorsed by that company, I could easily imagine a set of circumstances that would lead to liability: If you're releasing the video as part of a commercial endeavor, you're looking at possible claims for false advertising, unfair competition, and trademark violations (false designation, dilution, etc.). If your video is harmful to the company's reputation, you're facing a potential claim for product disparagement or trade libel. These are the corporate equivalents of the libel actions most people are more familiar with, and they generally require proving the same kinds of facts. A right of publicity/misappropriation of identity action is possible but very unlikely. Most states are very stingy about allowing businesses to bring these claims, so this one would probably be very jurisdiction-specific. Proving the case generally requires the company to show (1) that you made a commercial use of their identity, (2) that they did not authorize it, and (3) that the use caused economic harm. Beyond those, there's a whole host of business torts that I could try to squeeze this into but that are probably less likely given the hypothetical you've presented. I'd also note that your assumption about proving damages is not well-founded. Especially among the largest companies, businesses are very protective of their brands, and they invest absurd amounts of money to protect them. Pick any company with a high enough profile that someone would want to fake their endorsement, and I'd be willing to bet that their legal department could pretty quickly prepare a detailed estimate of the related damage to their brand. If a case went to trial, you'd normally expect to see an economist present an expert report calculating damages, which would begin (but not end) with any unjust enrichment you experienced because people thought you had the company's endorsement. | Your issue is trademark, not copyright. If these other guys use their mark (product name) in commerce but did not register it, they have an unregistered trademark which you could be infringing. Between two users of the same trademark, the first to use in commerce wins. (There is a territorial component but with the Internet, meh.) If the trademark is registered that gives them a presumption of validity. Trademark infringement is concerned with consumer confusion. If someone uses someone else's trademark in a way that confuses consumers as to the origin of the goods, that's a problem. What this means is that if I make tires with the name Sportie and someone else makes soap also with that name Sportie there is not a high likelihood of confusion. Likewise a hotel in Washington called Runner's Cove probably doesn't infringe a shoe store in Florida with the same name. Fantasy games and fantasy books sold over the Internet? Sounds like a potential problem that you might want to clear up before the second book. | Without a jurisdiction, I'll just say that unless the comments made in the reviews and discussions were false, the individual is unlikely to have any claim, particularly given that you've stated that this occurred over the course of a year. However, the individual may be able to argue that they were not given sufficient notice of their performance, for example through performance evaluations, and given the length of time, it likely that one would have occurred. A company may be able to terminate an employee in spite of their overall contributions if they have breached policy - for instance, an otherwise outstanding employee who attracts negative customer reviews based in fact, and who is given ample opportunity and guidance to improve, may cause brand and reputational damage to the company; in this case, it is a commercial decision to retain or terminate the employee. As for what recourse the employee has, if the comments were factual, then it is likely that they will not have any, unless the employer has not adhered to procedural requirements - for instance, in Australia, you are required to provide an employee the opportunity to have a support person present at any meeting which may result in the employee's termination - or the employer broke some other law - for instance, discrimination, bullying or harassment law. Unfortunately, the contributions an employee makes does not necessarily negate the harm they do, and complaints based on an employee's performance are completely valid if factual. | 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. | There is no prohibition on lying in general. Misrepresentation If you misrepresent a fact and that misrepresentation is a material inducement to someone entering into a contract with you then there are a number of problems that follow: The (mis)representation may become a term of the contract and if not complied with can allow the aggrieved party to either sue for damages or rescind the contract. If the misrepresentation led to the contract being entered into by mistake then the contract is void for mistake The misrepresentation may have become a collateral contract an innocent or negligent misstatement may give rise to the tort of negligent misstatement misrepresentation may put you in breach of trade practices statutes. Fraud If you knowingly tell a lie with the intention of receiving a benefit then this is both the tort and crime of fraud. You receiving employment or your company securing a contract probably qualifies as intending to receive a benefit. | A reasonable person might well believe that your enterprise is being sponsored by or is affiliated with Amazon, and so you would be infringing Amazon's trademark. Even if there is no reasonable confusion, Amazon might well think otherwise and take legal action against you. You don't want to start a business by defending a lawsuit, even if you win, particularly not a suit from your supplier. Why not choose a different name, particularly as that would make it easier to expand into non-amazon cards later? Something like 'Buy Better gift cards' or 'Gift Card World' might be a better choice. In general, you may not use a firm or product name that would cause reasonable consumers to confuse you with the trademark holder, or to think that you are endorsed by, affiliated with, or sponsored by the trademark holder without permission (which you are not likely to get). | Yes australia This is a straight up and down case of “deceptive and misleading conduct”. There is plenty of case law to support that testimonials (which this is) must be genuine, not paid for as they are from an actor. Further, they cannot be cherry-picked. If 5 real people reacted and 2 reacted negatively, you cannot just show the 3 who reacted positively - you have to show them all or otherwise disclose that 3 out 5 people loved the product. When actors (or people who are otherwise getting paid) are used that fact must be disclosed if it is not clear from the context. In a typical ad where people are just shown using the product without giving a personal endorsement it’s sufficiently clear that they are actors. However, in the type of ad you describe if they were actors this would need to be stated. Television and radio personalities must disclose when they are being paid for an endorsement under enforceable codes. Influencers are required to do so under non-binding codes, however, it is likely that breach of these codes would also be a breach of the law. | 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). |
Am I legally Required to Pay For Order I had done and Have not Picked Up? I talked directly to an employee at a local manufacturing company, over email, about a custom small project. They wrote up a quote and I agreed to it. However, they never acknowledged my acceptance, and I hadn't heard from them in 4 weeks. I received a call saying my order is ready for pick up. A week into no response, I decided I didn't want to do the project anymore. Am i legally obligated to pay for and pick up the product? I never signed anything. EDIT: Important information regarding the quote. The quote mentions "delivery 2 weeks ARO". There was no payment or receipt and the work was not completed within 2 weeks. It also mentions, payment in cash on delivery. | You are not obligated to pick the thing up, but you are obligated to pay. Analogously, if you go into a restaurant and order a steak, you are obligated to pay for it, but you are not obligated to eat it. You can cancel the steak order within some reasonable short period of time (maybe a minute) – it depends on whether they have relied on your acceptance of their offer, and have done anything that puts them in a worse situation (such as "started cooking it"). You could have informed them that you decided that you didn't want the thing and they might have been able to cancel the order with no or minimum cost to you (depends on whether your job was simply "in the queue", or had they done something like ordered parts or detrimentally committed an employee to some schedule so that other customers could not be serviced). Once you accept their offer, you have an enforceable contract. The additional information about lateness of delivery doesn't clearly change the situation. If there were an explicit "time is of the essence" clause in your contract, related to any delay causing harm, then failure to meet a deadline could constitute a breach of contract. For example, if you have a contract where you will be transported to a location by a specific deadline so that you can get on the boat, failure to meet that deadline causes material harm (if you miss the boat, you suffer a loss). You apparently do not have any such clause, and there's no indication that you suffered a loss because of the delay in delivery. A reasonable delay would not be interpreted as the other party breaching the contract. | Note, Washington State Senate Bill 5061 seeks to block certain "untracable" firearms without a serial number. This relates in part to "3D printable" guns, but the act of milling of a 80% lower (in Washington) could be a violation, if and when it passes. But it appears the bill hasn't been made a law yet... Is Washington specific news this issue what drives the question? Federally, the ATF web site says: Receiver blanks that do not meet the definition of a "firearm" are not subject to regulation under the GCA. The ATF has long held that items such as receiver blanks, "castings" or "machined bodies" in which the fire-control cavity area is completely solid and un-machined have not reached the "stage of manufacture" which would result in the classification of a firearm per the GCA. But this gets a bit technical. For further risk mitigation, the Texan could mitigate any risk related to both Federal and Washington state law by shipping it to a federal firearms licensee (FFL) in Washington as if it were a firearm, per ATM instructions which say (in part): Generally, for a person to lawfully transfer a firearm to an unlicensed person who resides out of State, the firearm must be shipped to a Federal Firearms Licensee (FFL) within the recipient’s State of residence. He or she may then receive the firearm from the FFL upon completion of an ATF Form 4473 and a NICS background check. That FFL is then responsible for ensuring the transaction properly conducted in the state of Washington, including federal and state requirements. The FFL I contacted only charged $25.00 (plus collecting the state sales tax). Form 4473 was easy enough; only about one page for me to fill out. Of course, I've got a clean record, so going through channels isn't a problem for me, it took less than an hour. The FFL confirmed for me that it wasn't necessary for something like an antique musket, which legally isn't a firearm by the federal defeinitions. In my case the sender was a nervous "trust" lawyer who wasn't sure, hired yet another lawyer to advise him. The FFL didn't charge me anything for receiving that musket. | Yes, it triggers the GDPR obligations Considerations: Can you surely identify those residing in Europe? In that case you should ask them to sign up again and confirm the consent. A lot of mailing lists are doing just that. Did they previously give consent and you can document it? If so, then you can argue that you have the required consent. Do you have business in Europe? If not then I don't think they would bother to go after you. You could just walk away from the fine. What other personal informastion are you storing? If you know who reside in Europe then you already have more info than just the email. The email address itself wouldn't be much of a documentation issue, SAR or Portability task. | No, you could not have prevented them from collecting their belongings But you could have sued for trespass Unless those boxes were part of the contract for sale, they remain the vendor’s property and just like you can’t withhold your mate’s trombone that he accidentally left after that great party, you can’t withhold the vendor’s boxes - that’s called “stealing”. What you could (should?) have done is refuse to settle until the boxes were removed. As the vendor was in breach, if you suffered any unmitigated loss as a result of the delay, you would be entitled to recover it. This is one of the reasons why you should inspect on the day of settlement. Given that you accepted the breach, even though the vendor’s boxes were technically trespassing, they could reasonably raise the defense that they had implicit permission- at least for a reasonable time. “A few days” is a reasonable time. | Check your local law. In Washington, the chapter RCW 63.21 says what you are supposed to do. The first part of the law has apparently been satisfieds: Any person who finds property that is not unlawful to possess, the owner of which is unknown, and who wishes to claim the found property Then you need to get a signed appraisal stating current market value from a qualified person engaged in buying or selling the items, or by a district court judge (I have no idea where district court judges get their qualifications to appraise bricks), then within 7 days, report this to the cief LEO where the stuff was found (and surrender it, if requested). You also have to serve written notice upon that officer stating your to claim the property. The burden now shifts to the government, which must publish notices in a local newspaper at least weakly, for 2 weeks. The notice might be publishable in a no-cost venue, in case the publication cost is greater than the value of the stuff. If the owner appears and establishes ownership, that's the end of the finder's potential interest. If the owner does not show up, the property will be released to the finder once he has paid the government's publishing expenses plus $10, but if the goods are appraised at less than publishing cost, there is no fee. As a finder, you have 30 days after that 60 days to pay required costs, otherwise it goes to the government. There are some exceptions, things not subject to finders-keepers (crab pots, secured vessels, motor vehicles, unclaimed property in the hands of a bailee). If you do not comply with these requirements, you forfeit any right to the property and you are liable to the property owner for the value of the bricks. Under the definition of theft, you have a defense that The property or service was appropriated openly and avowedly under a claim of title made in good faith, even though the claim be untenable since you presumably intend to claim ownership of the bricks under the lost property statute. | Is 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. | If your friend was a salaried W2 full time exempt employee hired by the company to, among other things, write software like this, then the fact that it was developed "off the clock" with the employee's own resources means nothing once he gives it to the company. I mean if I give you a present and it blows up and breaks your arm, I'm still liable even if we didn't have a "contract" - especially if I knew it would blow up. Your friend's position is even worse since the relationship entails the employee's having the employer's best interests in mind. If I were your friend, I'd either figure out how to fix this or take gnasher729's advice from the comments and find a country where it's easy to hide from parties public and private. Maybe buy a bunch of canned food and go live on a boat? | 1) Why would an Orthodontia provider want to receive this payment at all in the first place? I was thinking maybe tax reasons. Less cynically, medical providers request that insurance payments be sent directly to them (and you routinely agree to allow them to do so in the fine print of your insurance contract and the paperwork you will out with the provider), every time that they request payment through insurance, because it is extremely uncommon for someone to pay in full and then come up with insurance through which a claim can be submitted. It is set up this way, in part, because medical providers have a lien on insurance payments made to compensate any not previously paid for services that they provided. So, anyway, bureaucratic inertia causes it to happen this way in your quirky case where it really doesn't make sense. Also, insurance companies routinely see claims failed by providers and handle them uncritically, while rarely seeing claims filed by insured for services that have already been rendered and paid for, and so look at those claims more critically, so it was probably in your interest to have the provider make the claim for you on your behalf. More cynically, even if the medical providers doesn't get to keep the money, holding onto it helps their cash flow. It may allow them to borrow less money for operations, or to invest it and earn a return on it. Having money has value even if it is temporary. 2) If they never end up sending me the claim refund, do I have any legal power to fight against this? I have all of the original receipts and an EOP report. Yes. You could write a demand letter, including copies of your evidence, and if they refused to comply within a reasonable time, you could sue, either with a lawyer, or in small claims court. You would have an extremely strong chance of prevailing and in all likelihood they would refund the money before the case went to trial rather than fighting a losing case in court. You have solid evidence that they were paid twice for the same thing. You don't need to bring the insurance company into it (which would make the case much more complicated). You just need to show that your local medical provider got a double recovery and didn't provide a refund. Six to eight weeks is unreasonable when they have already been paid twice. But, given the cost, aggravation and delay associated with suing, you might want to give them some time to provide a refund, although the next monthly billing cycle for them ought to be more than generous accommodation from you. |
What is involved (other than financial + evidence aspects) in bringing a private prosecution in the UK? Suppose a person commits a financial crime in the UK (say theft, insider dealing, false accounting, fraud, or something similar falling squarely within criminal law). For whatever reason there is no practical purpose to litigating in civil court for restitution or other damages. Also for whatever reason, the police and CPS - being stereotypically overworked - aren't very interested. That said, the evidence of substantial premeditated fraud (say 5 figures) is close to rock solid, and the victim being legally trained feels the fraudster shouldn't get off scot free, and is therefore motivated towards private prosecution of the illegality, in lieu of police action. So my question is, what would a person need to do, and what exactly happens thereafter (procedure-wise and in practice), if they decided to bring a private prosecution for the alleged offence? I'm interested in the complete process,so its easiest to assume they'll do it all themselves (not instructing someone else to do it for them). I'm also assuming no issues with the actual evidence, so that a reasonable judge/jury viewing the evidence would agree it is very strong and pretty much "speaks for itself". (Meaning, if the case were heard, it's the kind of case where the court might comment at some point in their ruling, that they cannot understand why the police did not prosecute and left it to the victim, or something like that) Within this, there are two side-aspects that - if there are any comments - I'd be interested. Namely, how do courts typically view the request to bring such a case, insofar as such a filing certainly wouldn't be typical or "usual", and to what extent if any is passage of time since the alleged offence relevant to the court (since there's no Limitation Act barrier)? Note - things that might be relevant in real-world cases but aren't relevant to this question: I'm not concerned with issues of legal cost, nor of the risk of any financial impact if the case were unsuccessful, although I would be interested to know any circumstances where the victim might end up having to pay money beyond their legal + filing fees for bringing the case. The victim is legally capable or has a lawyer, can afford the case, and feels that the fraud shouldn't be scot free just because no civil recovery is possible. I'm not asking about quality of evidence - we can assume for this question, that the evidence is very strong, certainly enough for a good prima facie case and more than likely "beyond any reasonable doubt". I'm not looking for ways that civil damages might be recoverable, I'm assuming simply that they aren't, as a premise of the question. I'm assuming the fraudster remains within jurisdiction, so papers can be effectively served and procedures followed. | It's quite straightforward. Section 6(1) of the Prosecution of Offences Act (1985) preserves the right for private persons to initiate criminal proceedings. You would have to find a solicitor, and instruct him that you would like to bring criminal proceedings against the defendant. He would essentially do what the CPS solicitors do, and find a suitable barrister to instruct on the matter. Unlike many other countries, regular barristers do prosecutions. In this case, the barrister wouldn't be instructed by the CPS, but by your solicitor. You do have to note that the Director of Public Prosecutions reserves the right to take over the case. | In theory its only a crime if you know, or reasonably suspect, that it is stolen. The fact that you have to ask means that you have some level of suspicion, so that's not good to start with. In practice merely being investgated by the police will bring you a world of hurt long before it gets to trial. How much can you afford to spend on legal fees, and will you be able to make bail? | In the UK this is just called "an appeal for the suspect to come forward." The UK police are not allowed to lie or mislead as suggested in the OP, and any reduction in punishment is in the hands of the courts when passing sentence (unlike some other jurisdictions, I believe). | No, filing a police report in good faith does not expose you to liability Of course, making false allegations or allegations where you are recklessly indifferent to the truth to police is both a serious crime in itself and defamation. Of course, breaking a contract is not a crime and the police are unlikely to take any action. If you borrow money from the bank and don’t pay it back, that’s not stealing or fraud unless it can be proven that you had no intention of paying it back when you borrowed it. This is a civil matter for the bank, not a criminal matter for the police. | 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. I'm going to assume we're talking about the US, where being convicted of a crime requires proof "beyond a reasonable doubt." Thus, our hypothetical friend has NOT committed murder. Nor has he committed manslaughter (as this too requires that somebody die) or attempted murder or manslaughter (as that requires an intent that the person should die). If it could be proven that the person our hypothetical scumbag ran over died as a result of being run over, our hypothetical scumbag would likely have committed negligent homicide or involuntary manslaughter; however, as these imply a lack of intent, they lack "attempted" versions (see People v. Hernandez, http://law.justia.com/cases/colorado/court-of-appeals/1980/76-813.html though state laws differ and some may be weird). In short, he has not committed any flavor of murder or manslaughter. So, what other enterprising charge or legal proceeding might we be able to level against him? I'm sure one exists. I'll edit it in once I find it. Civil suit for wrongful death Normally, our hypothetical scumbag would find himself on the receiving end of a wrongful death lawsuit. This would require that he (1) owed the dead man a duty of care (which he clearly did; all motorists are obliged to exhibit reasonable care in operating their motor vehicles) and that he (2) breached that duty (which he presumably did), but also that (3) this failure caused the death of the guy he ran over (which you have stipulated that we cannot "even guess," which precludes a "preponderance of the evidence" (the standard for civil matters)) and that (4) that person's death has caused actual, quantifiable damages to the plaintiff (which it can't as "nobody knows him"). Reckless driving charge In most states, our hypothetical scumbag's behavior meets the threshold for reckless driving. For example, in VA law: [In reckless driving cases, e]ither the driver is believed to have driven recklessly in a manner that threatened people or property, to have driven 20 miles per hour or more in excess of the speed limit, or to have exceeded 80 miles per hour, no matter the speed limit. http://manassascriminalattorney.com/2015/10/can-reckless-driving-in-virginia-be-a-felony-charge/ In some states, this may be felony reckless driving; in others, it may be a mere misdemeanor. Misc links https://www.virginia-criminallawyer.com/homicide-laws-virginia-code.html http://www.nolo.com/legal-encyclopedia/proving-wrongful-death-civil-case.html A forum discussion that (thank heaven) cited its sources: http://www.top-law-schools.com/forums/viewtopic.php?t=155412 | In all but a few U.S. states the answer is that you are not entitled to any compensation. This is grossly unfair, but is the dominant rule by far in most jurisdictions in the U.S. As a matter of legal doctrine this is justified on the grounds that a criminal prosecution requires proof beyond a reasonable doubt, and many people who are actually guilty may be acquitted anyway because the standard of proof in a criminal case is so high. The classic example of that distinction is the O.J. Simpson murder case, in which O.J. Simpson was acquitted of murdering his wife in a criminal prosecution, but was found liable for murdering her by the lower civil action preponderance of the evidence standard in a wrongful death lawsuit brought by her family. (In reality, most acquittals involve juries who think that the defendant was innocent, but that isn't reflected in the choice before them to convict or acquit a defendant.) The only compensation to which you are entitled as a matter of law if you are acquitted of a crime, per the U.S. Supreme Court, is a refund of any fines or costs payable only upon conviction of a crime, which you paid or had taken from your assets, prior to your acquittal. See Nelson v. Colorado, 581 U.S. ___ (2017). There would an exception if you can show that a law enforcement officer intentionally brought charges without probable cause in a civil lawsuit you bring against the law enforcement officer, which is realistically impossible in almost all cases. (Prosecutors and judges and jurors (see, e.g. here)) have absolute immunity from liability for their official acts related to the court process.) There are a few jurisdictions where you could bring a civil lawsuit for compensation based upon "actual innocence", rather than law enforcement misconduct. In those places, you could receive compensation if you could prove by a preponderance of the evidence (or with a prosecutor's affirmation) that you were actually factually innocent, so you could get some compensation even in the absence of an intentional violation of your civil rights. Texas is one state that has such a scheme, with important limitations, as explained in this linked case. You would probably have to hire a lawyer with your own funds to bring either kind of lawsuit, and realistically, you wouldn't have been incarcerated for eight months pending trial if you had enough money to do that, because you would have posted bond and been released pending trial. There may be one or two states (I can't recall any from memory) where there might be a right to compensation merely because you are acquitted, but this would be an extreme outlier in terms of U.S. law. Outside the United States, outcomes could vary dramatically from one country to another. They relevant law in England and Wales is discussed in an answer to this question at Law.SE. International human rights law does not recognize a right to compensation in these circumstances. | If a defendant has committed a crime, they would choose to self-represent to ensure that no one else would know about the circumstances of their crime. Although lawyers are ethically bound to not disclose information that would not be in the interest of their client, the decision to breach this duty would be up to the sole discretion of the individual in question. In cases where the exchanged information may used to provide evidence against the client, the lawyer is compelled to disclose the truth to the courts/law enforcement. This is deeply misguided. Criminal defense lawyers usually represent people who are guilty and there is no ethical problem with doing so, nor does this mean that the lawyer will disclose privileged information that is prejudicial to the defendant in the course of the representation. The notion that a lawyer would be compelled to testify against his client to the courts/law enforcement is simply not how the system works. It is true that a lawyer cannot ethically put you on the stand to offer testimony when the lawyer knows that your testimony to the court will be an outright flat lie, and that this lie is your strategy to prevail in your defense, but that is the sole meaningful limitation on what a lawyer can do for you. However, I can't think of a single instance, in which a desire to defend yourself at trial with a lie has caused someone to represent themselves. Usually, someone with that kind of motive will simply lie to their lawyer as well. It never makes sense to represent yourself if you are innocent and want to be acquitted of the charges against you. But, keep in mind that this is a small subset of all criminal defendants. Criminal defendants are overwhelmingly guilty of something. Usually, a criminal defense lawyer works to either exploit prosecution mistakes or lack of knowledge that prevent the prosecution from proving that guilt, or work to make sure that the defendant is not convicted of a more serious crime than the one committed, and/or work to see to it that their client does not receive an unnecessarily harsh sentence when alternatives are available. In real life, people represent usually themselves, either because they are denied access to counsel (which can be done in a criminal cases where the prosecutor waives the right to seek incarceration as a sentence), or because they are "crazy". Many people who represent themselves in a criminal cases do so because they want to proudly claim that they committed the crime as a means of obtaining of forum for public recognition of what they believe was righteous action even if this could lead to their death. Many terrorists, domestic and foreign, fall into this category. For example, the fellow committed a massacre at a Colorado abortion clinic tried to do this (if I recall correctly, he was later found incompetent to face a trial and has been committed to a mental institution until he becomes competent, if ever). Other people represent themselves out of a strongly felt guilt that they feel a moral duty to confess to, even if this means that they will face severe punishment for doing so. One subset of this group of people are people known as "death penalty volunteers" who try to get sentenced to death and try to waive all appeals and post-trial review. Sometimes they also plead guilty in the belief (often, but not always, inaccurate) that their swift guilty plea when they aren't actually guilty will protect someone else whom they know to be actually guilty. Other people represent themselves because they have deeply held, but paranoid and inaccurate views about the legal system such as members of the "Sovereign Citizens Movement" who think that if they say the "magic words" that they cannot be convicted and that lawyers are a part of a conspiracy designed to prevent them from doing so. Another situation that comes up is when an affluent person who is not entitled to a public defender as a result, chooses to represent themselves, usually with respect to a fairly minor charge like a traffic violation that carries a risk for a short term of incarceration, to save money. But, this is rarely a wise choice. But, unless you plan on pleading guilty or being found guilty at trial, self-representation does not make sense, and even if you plan on pleading guilty, a lawyer is usually worth it. For example, even if the direct consequence of a guilty plea is minor, the collateral consequences of that conviction (e.g. loss of eligibility to work in certain jobs and/or deportation and/or loss of a right to own a firearm) may be consequential and something that a non-lawyer would not realize was happening. Or, maybe you think you are guilty of crime X so there is no point in fighting the charges, but actually, the language of that statute has been defined in a manner that means you are really only guilty of less serious crime Y. |
Using private software at work Lets assume there is a piece of software I would love to use while programming at work. My company will not buy it (or it will take months before it goes through bureaucratic wall). Can I purchase it for myself, and then use at workplace, or would that violate law? Edit: I think in my case the best answer would be to make sure it is legal with both company policy and software EULA (in case of not clear - ask company directly). In my case the software (which was a GIT client) ended up being perfectly fine to be used on company computers as long as it is me using it :) | it would violate law? It would be very dependent of what your jurisdiction is and what the software does. I would expect most software that would be lawful to install at your home would be lawful to install at your company, but there may be exceptions. To put an hyperbolic example, if you work at the CIA and you install some remote access software that allows you to access your workstation from a non-secure PC through non-secure methods, I am pretty sure that would be illegal, even if you had the best of intentions. A recent scenario taken from real life involves some members an organization who are required to use official e-mail servers for FOIA purposes setting up their own private mail servers. Of course, YMMV. can I purchase it for myself, and then use at workplace Even if the software is legal it does not mean that it is ok to use it at the workplace. Most business have rules about what software may be installed in the PCs, who may install it and how to manage it. Your software could introduce security vulnerabilities that your IT team may need to be aware of, or incompatibilities with other software. It may introduce legal liabilities (you install a "home edition" licence in a corporate environment where that licence is invalid). Your company may discipline you if you breaking those guidelines and install software without authorization, even if there is no harm for them for this action. On top of that, if your actions cause some damage to the company, it can sue you to get you to pay for those damages. Before taking any action you should inquiry about your company's IT policy and, if your company does not have one or if the policy is not clear about allowing you to install the software, ask the people in charge (preferably in writting). | The only issue relevant to your age is the (ir)revocability of the license. GPLv3 purports to be an irrevocable license. To be really irrevocable, the license would need to grant certain rights in exchange for something of value, that is, you need a license that passes muster as a contract. Copyright licenses are typically treated as contracts, but it is not clearly established in law that licenses are contracts or are not contracts. Out of the goodness of your heart, you can grant permission to use your property, but you can also withdraw that permission. If you have a contract granting perpetual permission to use your property in exchange for something of value, then you can't later withdraw that permission. In the case of Jacobsen v. Kratzer, the sides advances opposing theories that the license was a "bare license" vs. was a contract. (The matter was ultimately settled out of court). This article puts together the legal factors surrounding the notion of license as contract, see p. 21 ff, and esp. §IV for arguments that licenses should be contracts, to be fully enforceable. A contract for non-essentials formed with a minor is not enforceable, until you are 18. You could therefore revoke the license, until you are 18. Anyone who uses the software does so at their peril. However, if the license is not a contract, no existing legal doctrine (in the US) whereby the permission is irrevocable. In other words, yes you can, at their peril. The whole license-as-contract issue is very complicated, and I'm only focusing on the revocability issue. There is a separate question whether one can sue a user for both copyright infringement and breach of contract. The case of Artifex v. Hancom, see also this analysis, found that (in the particular case), plaintiff can pursue the matter as both infringement and contract breach. | 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 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. | 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.” | You are probably an employee Answer these questions: Can you say “no” when the University offers you work? Or vice-versa, can they say “no” when you want to work? Can you subcontract the work? That is, can you hire someone to do what the University hired you to do? Do you control how and when you work? For example, when you break University rules are you subject to University discipline or is this treated as a breach of contract? Do you provide your own tools and equipment? Can you make a profit or loss (if you get paid by the hour the answer is “no”)? Do you take out your own public liability and/or professional indemnity insurance? If the answers to most of these questions are “no”, you’re an employee. | Some jurisdictions have laws which make it illegal to create a software which is intended to commit crimes (usually computer-related crimes). For example, the German criminal law §202c StGB makes it illegal to create (or sell, convey, etc.) a program which has the purpose to commit crimes against the previous paragraphs 202a (stealing data) or 202b (intercepting data). The constitutional court later clarified that this law is only to be used against programs which serve no other purpose than to commit crimes and not against "dual use" tools which can also be used for legitimate purposes. So if one were accused of committing the crime of creating such a program, then a possible defense strategy could be to convince the court that they never intended for their program to be used to commit crimes. | Can the name of my LLC include the phrases "Software Engineer", "Software Engineering", or similar derivations thereof? No. Not based on what you've posted. Go to the definitions to see how engineer is defined. It may be they are talking about actual structural engineers or environmental engineers, where if you're wrong people die. But based on above, you can't use the word engineer unless you're licensed as such. Is there even a license for computer engineer? This seems more like it could be a term of use but not actually descriptive of what you're doing. IDK. You'd have to see the definitions and exceptions. Can my resume, curriculum vitae, or my advertising or promotional materials accurately report the subjects I studied in college as the subject matter of "Software Engineering", to the extent that this information is true and accurate? Yes, your CV is supposed to say what you have done, and learned and especially published (lest it's just a resume), but the answer as far as promotional materials, is NO. This, because you don't post your cv on your ad's and if you put that, you will likely be found to be trying to pose as a licensed professional based on a technicality. If that happens the licensing authority will probably censure you by disallowing a license when your qualify. If asked directly by a client, am I even allowed to divulge my area of study accurately,(of course, but you'd also have to divulge the fact that you are not licensed and cannot act in that capacity) Would it be a violation of the law to claim I had engineering knowledge since I have studied (and practiced) software engineering in the past (for instance, at previous places of work in states which did not have these kinds of limitations, or for corporations which did not offer my services to the general public)? It could be if the person reports that you are soliciting work as an engineer w/out a license. It's like a person who went to law school, passed the bar, but never got sworn in. They cannot solicit business as a lawyer. Unless there is a license for being a computer programer, there is nothing barring you from using that terminology. You could be, that if you look up the definition prior to the statue, that it says something like "for the purposes of this section the term engineer means…", In which case it doesn't even apply to you. |
Insurance-Provided Rental Car After No-Fault Accident My 2014 Ford Taurus was backed into in a parking lot while it was parked and nobody was inside— the person who caused the accident wasn't injured either. They came into the building we were in, found us, and we exchanged insurance and contact information. I called my insurance, which ultimately had me call their insurance to file this claim. Apparently, when I called their insurance, they were already notified and had a claim started. As we walked through the steps to get the damage taken care of, we got onto the subject of rental vehicles since they were going to provide one as I was entirely not at fault. They stated that they'd only cover a mid-size four-door sedan unless there were accommodations that needed to be met. My immediate confusion/concern was that they damaged my full-size sedan, which is expected to be out for 3-4 days, but that they were essentially downgrading my daily transportation to save on costs. Question: Would I have any ground to push back and request a full-size sedan since that's the type of car they damaged? The only major thing that comes to my mind is an accommodation for my height. I'm 6'5" (198cm~), so I'd expect that the vehicle should have a comfortable amount of room for me to sit up; and, even more important, not be so compact that my legs cannot drive comfortably. Even my car is already on the edge of my legs being comfortable on driving, so a smaller vehicle seems like a potential risk/downside. Edit (Outcome): I did end up getting the rental upgraded to a full-size sedan. The adjuster mentioned it was "approved to accommodate physical needs". He did also mention that if I hauled/towed things for work, or had a large family, that they would have approved it for those reasons too. | As a former rental car employee I can explain why this is. Cars that are rented to customers for insurance reasons (accidents, etc) are supposed to match the size of the car that was damaged as close as possible. I'm speaking for one rental car company in particular here but I'm assuming others have a similar policy but every 2 years old the car is it goes down a size in rental. So your 2014 would and could be considered a "standard" size or even "compact depending" on what is available on that rental lot or how that agent is feeling. With that being said, I've seen customers complain to insurance companies to get bigger cars sizes or even pay out of pocket for larger vehicles. In most insurance rental situations, the company provides "X" amount of dollars per day, generally between $20-25. These insurance companies have deals with rental agencies to secure rates that align with these low daily costs - the same car they get for $20 a day would cost a walk in customer double or triple that. You could use that $20-25 a day towards the cost of your rental and then just pay the difference on the larger car if you'd like. So to answer your question, yes you can push back all you want. Direct your concerns to their insurance company. In my experience, I've seen more often than not they agree to the larger vehicle. You can also petition the rental agent to let you get the larger car for the cheaper rate - however bear in mind these rental agents hear this 100 times a day and this can be your quick ride into that dusty PT Cruiser that nobody wants in the corner of the lot. | I assume this is a used car, and that your sales agreement doesn't have a 'time is of the essence' clause that specifies a specific deadline. In that case, they will have 'reasonable time' to perform the work. Unfortunately, there is no legal definition of what would be reasonable (the time necessary to repair a locomotive is much longer than the time needed to repair a torn screen door). Rather, the question would be, given the nature of the time, what you be typical, what would be surprising or shockingly long, and what extenuating factors are there. If you happen to know a lot of mechanics, you can get a ballpark figure. Let's say that it has been 3 weeks, then that is probably unreasonably long, so you could sue them for breach of contract. If it has less than a week, it's not so clear. You might simply ask then when they will get the problem fixed. | Such "warranties" are generally subject to separate laws, and they are not treated as a subcase of "car insurance". Whereas homeowners insurance, vehicle liability insurance and so on are regulated in all states, extended warranties are regulated in over half of the states. There is a model law which tends to inspire state legislators in writing their own laws, and here is an instantiation in Washington state. At the outset, the law says that certain things are not covered, including warranties, maintenance agreements and service contracts (what then is covered??). There may be "required content", for example Service contracts shall state the procedure to obtain service or to file a claim, including but not limited to the procedures for obtaining prior approval for repair work, the toll-free telephone number if prior approval is necessary for service, and the procedure for obtaining emergency repairs performed outside of normal business hours or provide for twenty-four-hour telephone assistance. There are sections specific to motor vehicles, which could be relevant, for example "A service contract provider shall not deny a claim for coverage based upon the service contract holder's failure to properly maintain the vehicle, unless the failure to maintain the vehicle involved the failed part or parts". At the bottom of the Model Act document is a list of statuses in the various states: it's status in Connecticut is nonexistence, as of July 2014 (and no signs of such a law having been subsequently passed). There is a general law about express warranties, which doesn't impose any content restrictions on such contracts. So in CT, it depends on what the contract says. | [L]et's say you almost get run over by a car[; t]here was a very real probability that you may have been runover […], but you didn't. Why isn't there some civil repercussions for that? Construing the first question broadly, and in line with the one reading "[w]hy isn't there some civil repercussions for [a missed although very real probability of a car run-over]?", the question is, admittedly, based on a few incorrect premises. There are "repercussion" some of them being of criminal nature (reckless driving, vehicular assault etc.), and others may become of civil nature as follows: Common law tort of negligence — Mere threat of harm can be harm for purposes of damages "“When there is a breach of duty, "a person who is in the path of negligent conduct and reasonably fears for his or her own safety may recover for resulting emotional distress." In re Air Crash Disaster Near Cerritos, Cal., 973 F.2d 1490, 1493 (9th Cir. 1992). ” […] See Potter, 863 P.2d at 833 (George, J., concurring and dissenting) (discussing hypothetical pedestrian narrowly avoiding speeding car and indicating that threat of injury is the relevant issue); Wooden v. Raveling, 71 Cal. Rptr. 2d 891, 897-98 (Cal. Ct. App. 1998) (quoting Potter hypothetical and holding plaintiff was not precluded from relief simply because car did not actually hit her) (Taylor v. Honeywell Int'l, Inc. (9th Cir. 2015) 599 F. App'x 664, 2) (bold type added) Accordingly, broadly construing the question so as to effect the greatest scope of the spotting of damages, one may sue, although not for injuries per se, but instead damages under an emotional distress legal theory and its particular categories like anxiety, depression, recurring nightmares, sleeplessness, anger, angst etc. depending on the actual facts of the case, and typically supported by expert testimony when possible. Strictly construing the question, the mere possibility or even probability of injuries do not merit a cause of action for damages in and of themselves, as such damages never occurred. It may be possible that in certain scenarios the mere possibility is so outrageous that it exceeds all bounds of a civilized society, that nominal damages, say, of $1 are awarded and punitive damages are awarded so as to deter such conduct, but even in that case such a hypothetical case the cause of action will not be the damages under a personal injury tort, but one for nominal damages and for punitive damages even if the factual underpinnings are the same. Standing Standing is one's positive relation to at least one event that is the basis of a legal proceeding in a court, that is, one being the presumptive subject of some sort of wrongdoing that merits their recognition as a party to a legal proceeding. The term there would have been "damages" instead of standing. Why doesn't law take into account probability? It does. Rarely enumerated probabilities other than in case of the preponderance of the evidence standard of proof where the quality of the evidence must weigh in favor of the one who has the burden of proof, in other words the fact finders job is to decide whether something is greater or smaller than 50 percent probability. Although it is rather the exception than the rule, probabilities other than the greater-than-50-percent standard also appear here an there in the judicial process, for example, in asylum cases “"[t]o effect a well-founded fear [from persecution so as will constitute protected for purposes of U.S. asylee or refugee status], a threat need not be statistically more than fifty-percent likely [to have been made; however,] the [U.S.] Supreme Court has suggested that even a one-tenth possibility of persecution might effect a well-founded fear." Lim,224 F.3d at 934-935 (citing INS v. Cardoza-Fonseca,480 U.S. 421, 430, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). Kaiser v. Ashcroft, 390 F.3d 653, 658 (9th Cir. 2004) (see also INS v. Cardoza-Fonseca, [“ "Let us ... presume that it is known that in the applicant's country of origin every tenth adult male person is either put to death or sent to some remote labor camp.... In such a case it would be only too apparent that anyone who has managed to escape from the country in question will have 'well-founded fear of being persecuted' upon his eventual return”]) In less enumerated forms many other aspects of the judicial process rely on probabilities. | Landlord-tenant laws are state-specific, and given the number of states it's impractical to scan all of the laws, but based on a reading of a handful of such laws I doubt that there is any law requiring landlords to pay the oil for a rented house. (The matter would be different if there was a multi-unit building with no individual control over temperature, thus pooled fuel usage). It's not clear to me what you assumed the agreement means, where it says "N/A". Perhaps you believed at the time that the place had a different heating system, and you relied on that assumption. In that case, you might be able to go to court and have the contract voided, and you could pick another place to live. If the "options" are specified so that some things are assigned to tenant, some to landlord, and some are N/A, that would especially lead to the reasonable belief that there was no oil heat in the house. But if the only indications were "landlord" versus "n/a", then you could interpret "n/a" as meaning "not the responsibility of the landlord". Analogously, if the agreement only lists "tenant" and "n/a" then a reasonable interpretation would be that this means "the tenant pays" versus "the tenant does not pay". This reasoning would also have to survive the alternative interpretation that the tenant pays for everything, except that n/a means "there isn't one of these". In other words, the meaning of the term might be determinable from the overall context of what's in the agreement. Since the house does not come with a full tank (as with car rentals), the question of what to do with the residual oil at the end of the lease should also be specified. Unlike gas or electric, you're not just paying for actual consumption, you're paying for potential consumption, and you would have an interest in the remaining half-tank at the end of the lease. You could just walk away from that investment (pumping it out and taking it with you could be illegal, since the stuff is kind of a contaminant), or you could have an agreement where the landlord buys the oil back from you, but that should be specified in the agreement (and I assume it isn't). This kind of consideration could support a claim that you reasonably believed that there was no oil system (if there were, there would be some term relating to your interest in the residual oil), or even a belief that the landlord would pay the cost of the oil (since he ultimately gets the remaining oil at the end of the lease). You attorney (hint) should advise you how to approach this. | It's right in the contract In the event I fail to take delivery of the vehicle purchased by me within forty-eight (48) hours after I have been notified by you that it is ready for delivery and pay the total contract price in the manner indicated, my deposit in the amount of $300 may, at your option, be retained by you to compensate you in whole or in part for any loss sustained by you. Your right to retain my deposit shall be in addition to and not instead of any other right or remedy provided by applicable law including, without limiting the generality of the foregoing, the sale of the car or truck I agree to purchase. If the amount of my deposit exceeds actual damages sustained by you, you will promptly refund the difference to me. The car was ready on day 3. As a result, the Customer was obligated to pay and take delivery of the vehicle until day 5. Because the customer did not follow through with the purchase, the deposit is used to compensate the salesman in the amount that covers the costs of preparing the sale and having the car on the lot for those days that the salesman could not sell it to someone else. At the end of day 5, the contractual obligation to hold the car for the customers in exchange for the deposit ended, and the other clauses of the contract (car for rest of payment) become void. The car salesman is in his right to sell the car because the actual sales contract has fallen through and the holding fee/deposit expired, as the very quoted paragraph shows. Based on the final sentence of the quoted portion of the contract, to get a part of the deposit back, one would need to establish that the losses are less than the contractually fixed amount of 300 USD. When I had my car at the workshop and could not get it back on the day it was done with repairs, I was also informed that holding my car for more than a day would incur storage fees of up to 15 € per day. Similarly, the last time I bought a car, I was told that the sale included a fresh inspection and oil. Those are costs to the seller and can be accounted for in the deposit. The inspection costs about ~120 € for a new TÜV certificate and exhaust check and the materials for an oil change come for about 70 €. This leaves about 70 € cover for the mechanic and salesman's wages for about one hour. That's 300 €, or about 330 USD today. As such, costs to prepare a contract and transfer, inspect the car for roadworthiness as well as storage fees most likely are reasonably assessed to be in the 300 USD area. | Agreement You say: my landlord added a clause stating: "All moving must be done in rear of driveway or pay $250 (near basement door)" Was this addition made at the time you signed the lease or subsequently? This matters because the terms of a contract cannot be changed unilaterally, they must be agreed. If the change happened after the lease was signed then , unless you agreed to it, it has no effect whatsoever. Since that resolution is boring; I will assume that it was always there. Enforcability Is this actually enforceable, since I did park in a public space and not necessarily on his property? Yes, it is enforceable. People can agree in a contract to do (or not do) anything so long as that thing is not illegal - that is what a contract is; a legally enforceable agreement for two people to do certain things. You agreed "All moving must be done in rear of driveway ... (near basement door)" and you didn't do what you agreed to do. Therefore you broke a term of the contract. It doesn't matter that you don't know why he wanted you to do this or if it was reasonable or if it meant that you couldn't use your parent's truck - if these were issues for you they should have been raised before you agreed to do it. If the clause said "When moving out you will wear a blue double breasted suit with a yellow and purple bow tie" then that is what you must do. Consequences There are a number of options open to the wronged party when the other party breaches a term of a contract. The most relevant in these circumstances is to sue for damages. So how much are damages? Well, they are an amount to restore the wronged party to the position they would have been in if you hadn't broken the agreement. In situations where damages can be hard to calculate, contracts can make a provision for liquidated damages; a pre-agreed amount of what the damage will be: in this case "$250". However: In the United States, Section 2-718(1) of the Uniform Commercial Code provides that, in contracts for the sale of goods: Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty. This largely mirrors the common law rule, which applies to other types of contracts under the law of most US states. On the face of it, it would appear that $250 may be "unreasonably large" given the nature of the breach where it appears that the landlord has actually suffered no damage. | No Auto insurance covers loss or damage to the vehicle - the vehicle is neither lost nor damaged. The risk you describe is called title insurance and is normally bought for real estate. |
Is there a limit to the liability an airline can impose on a passenger because of their behaviour? There is a story in the news today about a woman being charged £85,000 after she caused a flight to be diverted due to her behaviour. I believe this is section 23.3 in Jet2's Conditions of Carriage. A quick scan of other airlines revealed both British Airways and Easyjet have similar conditions while Air France, KLM and Lufthansa do not. Is there a specific aspect of UK law that allows this in the UK and not in mainland Europe or is it up to the airline? What is the legal basis to impose this liability? | Yes The airline is entitled to recover what the passenger cost it - that’s how damages work. If it’s successful in its legal pursuit of the passenger it’s also entitled to legal costs (generally, legal costs are complicated). This can either be the actual amount or a genuine pre-estimate of that amount in the contract, called a liquidated damages amount. Liquidated damages do not have to be accurate in the particular circumstances but they must be a reasonable expectation of what an average breach would cost the airline. Too large and they risk being a penalty and unenforceable - only governments can punish. | Normally the statute of limitations is five or six years (I think it's different between Scotland and the rest of the UK). The reason for the limitation is that if your employer asks for money back, you obviously should be able to defend yourself, for example by proving that you never received that money. After five or six years it is assumed that you wouldn't be able to provide any such evidence, so nobody can ask for the money back anymore. That's not specific to overpaid wages but quite general. In addition there is the question whether the pilots should have known they were overpaid. For example, I'm quite happy with my salary, but if it was less, I would look for and find a different job that pays better. If the company claimed in five years time that I had been overpaid all the time, then I would say that if they had given me the "correct" lower payment, I would have found a better job elsewhere, so asking me to repay the money seems quite unfair. (Why do you need to defend yourself? Maybe your salary was £3,000 per month. Someone in the right position records that they are paying you £4,000 but puts £3,000 into your account and £1,000 into their own. Then that person has an accident and their replacement finds that you were overpaid according to their records.) | Artice §12(5) GDPR limits the right to access: Information provided under Articles 13 and 14 and any communication and any actions taken under Articles 15 to 22 and 34 shall be provided free of charge. Where requests from a data subject are manifestly unfounded or excessive, in particular because of their repetitive character, the controller may either: (a) charge a reasonable fee taking into account the administrative costs of providing the information or communication or taking the action requested; or (b) refuse to act on the request. The controller shall bear the burden of demonstrating the manifestly unfounded or excessive character of the request. A request to request the filing that you acted on their request is already excessive, repeated and frequent requests could be acted upon by taking the not-acting steps or sending an invoice before any action is taken. Also, very frequent requests with overlapping times might be answered jointly. It would be good to inform the customer in the last answer granted for free, how often they requested information and that any further answer might incur such and such fees for compiling the information. | england-and-wales s161 Penalties for causing certain kinds of danger or annoyance, Highways Act 1980 ... (3) If a person plays at football or any other game on a highway to the annoyance of a user of the highway he is guilty of an offence and liable to a fine not exceeding [F3 level 1 on the standard scale]. ... (See also the s137 offence of wilful obstruction.) Some places may also have their own related bylaws, e.g. No person shall on any land adjoining a street play any game in a manner likely to cause obstruction to any traffic or to cause danger to any person in such a street Made under s235 of the Local Government Act 1972, for the prevention and suppression of nuisances. Traveling further back in time, the Highway Act 1835 provided for penalties on persons who "play at Football or any other Game on any Part of the said Highways, to the Annoyance of any Passenger or Passengers" and, in London, the Metropolitan Police Act 1839 similarly made it an offence to "any Kite or play at any Game to the Annoyance of the Inhabitants or Passengers, or who shall make or use any Slide upon Ice or Snow in any Street or other Thoroughfare, to the common Danger of the Passengers." I find such a claim implausible, considering the large amount of my childhood that was spent playing in the street with no legal problems. It seems possible that the authorities turned a blind eye or your behaviour didn't come to their attention, or your street was designated as a 'play street' (introduced by the Street Playgrounds Act 1938, currently provided for by sections 29 to 31 of the Road Traffic Regulation Act 1984 as amended by the New Roads and Street Works Act 1991). Also, many alleged offenders might be younger than the criminal age of responsibility. According to TJ Miller MP (Colchester) in Hansard, speaking in 1860, in 1859 44 of London's children were sent to prison for playing games in the streets, and by April 1860 25 had been sent to prison - apparently Manchester had imprisoned none. In my youth we played in the street although we didn't put up basketball hoops, football goals or other such objects. These stories in the media seem to be rare and involve circumstances where the local authority received too many complaints, particularly when there is damage to homes, cars or flowerbeds - which may amount to criminal damage. Blackpool in 2006 Glenfield area of Leicester, 2007 Newark, Nottinghamshire, 2008 Manchester, 2010 - although this seems to be based on one complaint Hat-tip Pedestrian Liberation for the information about the older legislation and arrests of children. | Is it illegal to parachute from a paraglider in the UK? ... This activity would take place outside of ... regulations... YES See Article 90(1) of the Air Navigation Order 2016: Subject to paragraphs (9), (10) and (11), a person must not drop, be dropped or be permitted to drop to the surface or jump from an aircraft flying over the United Kingdom except under and in accordance with the terms of either a police air operator's certificate or a parachuting permission granted by the CAA under this article. The penalty, found via Schedule 13, is at Article 265(6): Any person who contravenes any provision specified in Part 2 of Schedule 13 is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale. "Aircraft" is not expressly defined within the Order or in its parent - the Civil Aviation Act 1982 - but an unpowered paraglider is (in my opinion) insinuated by paragraph 3(b): An aircraft is deemed to be in flight — ... (b) in the case of a pilotless flying machine, or a glider, from the moment when it first moves for the purpose of taking off, until the moment when it next comes to rest after landing ... But it would ultimately be a decision for the court to make whether it is an aircraft or not. | They could be prosecuted in any state where there was evidence that part of the crime was committed. Realistically, either State A or State B could prosecute for conspiracy to murder as an additional charge, because the conspiracy clearly spanned more than one state, even if they can't prove where the crime was committed, although physical evidence (e.g. traces of camp sites, footprints, testimony about landmarks, evidence of poop with human DNA from the victim in it), would usually make it possible to show that some part of the crime was committed in the state. There is probably also a federal crime that could be implicated such as "murder involving flight across a state line" (hypothetical, but I'm sure that there is something similar on the books). I'm not going to address the further hypothetical as it is too bizzare and law is ultimately very context specific. Find a more plausible fact pattern, perhaps with a different crime, and ask a separate question if you want to really address the issue. | In general, "making a reservation" does not create a contract, except when it is obvious that you have a contractual agreement. That would be the case with an airline reservation, and one clear sign is that you have to pay for the ticket when you make the reservation; or, it you don't, then there is no contract, and they can cancel or change the price. You would look for clear signs of an agreement, such as a "agree to terms" button that you have to click. Paying a deposit is another clear sign. Then you would simply look at the terms of the contract to see what their obligation is, and what yours is. They may have strongly committed to providing service in which case you might have a cause for legal action if they break that commitment, or they might have made no specific promises about service in case of intervening events (such as if the chef has a heart attack, or the power goes out). If we do think of this as a contractual matter, you breached your duty as a customer, to be there by 7:30, so even if there is a contract, they didn't break it. The note that you added renegotiating the arrival time was insufficient – it is outside of the contract, and possibly something that they didn't see (they only look at the names and official time blocks reported by the web page). In lieu of a contract, there could be some statutory obligation, i.e. a specific regulation in Sweden saying "if a restaurant accepts a reservation, they absolutely must hold the space available for the entire reserved time", which is an unreasonably onerous business practice that no nation requires. | If they actually mean $0, then that is not "taking advantage". If they do not mean $0, it is most likely that they will tell you "Sorry, we made a mistake, we're not gonna send you that Rolex for $0 plus shipping". If this came with free shipping, then you would not actually have a contract, because there s no consideration on your part (no payola). Fortunately, there is shipping, so there is a contract. You could then attempt to force them to send you the goods, which they might do rather than irritate you, but not if it is a Rolex. One of the defenses against enforcing a contract is "mistake", and a $0 Rolex would be a great example of that. Things get a bit more tricky if you relied on their free Rolex. You would look up the doctrine of promissory estoppel, to see if the seller could be estopped from making the mistake argument. Let's say that you also bought a Rolex Display Case from someone else at a cost of $100 plus shipping. By relying on their promise to sent you a Rolex, you have suffered a loss. The most likely outcome is that they'd have to reimburse your Display Case expense. (Finding) mistake airfares is an industry: a common response for the airline is to say "Oops, sorry", though sometimes they honor the mistake fare. Rumor has it that rather than get trashed on Twitter, the airlines honor mistake fares. You may find disclaimer language pertaining to verification of prices and availability, which also gets them off the hook. At any rate, you certainly won't be sued or prosecuted for assuming that they mean it and buying the thing; you might be disappointed. |
Over-serving an intoxicated customer I work for a cafe in Southern California. Recently a guest purchased five mimosa cocktails over an hour time period, three of which were ordered within 20 minutes. The guest was by themselves the entire time so I have no reason to believe they were sharing the drinks with a friend. When I approached my management on cutting off the guest they simply returned with a "They're fine". However, according to our alcohol training, we know this to be incorrect. Furthermore, several of the drinks were poured by a minor. How and to whom should I go about reporting this? | The criteria for refusing service in California is the patron being “obviously drunk”. 5 150ml mimosas is not a lot, even in an hour - it has approximately the same alcohol content as 2 425ml beers. I certainly wouldn’t be “obviously drunk” after that. Only 18 year olds and over can serve or act as bartenders for on-premises consumption. Whether someone under 18 can pour drinks for someone else to serve is not clear. However, it’s probably ok as the legislative intention appears to be to put a responsible adult at the point of service. The government authority responsible is Alcoholic Beverage Control. | Executive Summary Yes, you must pay your employee (if the person is indeed an employee) to read the manual. This is because, (1) as you note in your question, reading the manual is a state OSHA required part of the job, and (2) hourly employees must be paid at least minimum wage for all hours they work and there is no exception for time spent reading safety manuals. Furthermore, household cooks who are employees who are paid by the hour are not exempt from the minimum wage. There is no really plausible exception to the requirement to pay a minimum hourly wage that would apply to someone who is an employee in this position. For example, this person could not plausible be classified as a salaried employee or manager in this scenario for FLSA purposes. You could, of course, set a reasonable expectation regarding how much time should be allocated to reading the manual, so long as the expectation you set is indeed reasonable - five minutes would be unreasonably short, but 20 hours to memorize it would be unreasonably long. Is The "Employee" An Independent Contractor? It is conceivable that the person you describe as an employee is really an independent contractor, rather than a employee, and hence not subject to minimum wage laws. For example, you do not have a duty to determine that a catering company that serves many customers and is its own business providing food for you on an irregular basis, or a third-party restaurant that delivers either itself or through a third-party delivery service, is paying minimum wage or complying with work safety laws like OSHA, because they are independent contractors. But, there is nothing in your question that suggests that this is the case. (Note that if this person is an "employee" and not an "independent contractor" that it is also important that you obtain worker's compensation and pay withholding taxes for your domestic employee; often this is done via a third-party payroll service.) Applicable Law The Fair Labor Standards Act of 1938 as amended, 29 U.S.C. § 201, et seq., requires you to pay every hourly employee the federal minimum wage, plus overtime if applicable, from "Portal to Portal" (i.e. from showing up to work until leaving work, because commuting time is not counted as work for purposes of the FLSA). Hours worked is defined as follows by the FLSA at 29 U.S.C. § 203(o), contains no exception for time spent reading a safety manual: In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee. This states with respect to employees in domestic service at 209 U.S.C. § 206(f): Any employee— (1) who in any workweek is employed in domestic service in a household shall be paid wages at a rate not less than the wage rate in effect under subsection (b) of this section unless such employee’s compensation for such service would not because of section 209(a)(6) of the Social Security Act 42 U.S.C.A. § 409(a)(6)constitute wages for the purposes of title II of such Act [42 U.S.C.A. § 401 et seq.], or (2) who in any workweek— (A) is employed in domestic service in one or more households, and (B) is so employed for more than 8 hours in the aggregate, shall be paid wages for such employment in such workweek at a rate not less than the wage rate in effect under subsection (b) of this section. The referenced Section 206(b) is the currently effective federal minimum wage (currently $7.25 per hour). The cross-reference to the Social Security Act states that employment taxes paid by the employer (such as the employer part of FICA taxes) do not count towards paying the minimum wage. California has a parallel state minimum wage of $10 in 2017 which is substantially similar except in amount. | It is mandatory for the employer to provide sufficient restrooms (“cabinets d'aisance”), as per article R4228-10. Other provisions regulate evacuation, ventilation, heating, disabled access, etc. There is no provision regarding when employees are permitted to use the restrooms. There can't be a single rule that works for every profession: some jobs don't let you leave your post whenever you like (e.g. machine operator, driver, guard, teacher, etc.). The most common dispute regarding restroom use is whether employees should be paid during that time. Some employers want to count restroom use as unpaid pause time. Strictly speaking, that's legal: an employee who is in a restroom is not at the employer's disposal, therefore this doesn't count as work time. However enforcing this is often logistically difficult and wildly unpopular, so in practice it's only done in places where employees must clock out to reach a restroom. I could only find one case with actual jurisprudence. In 1995, an industrial butchering company (Bigard) decided to limit restroom breaks to three fixed times a day. This was, as you might expect, unpopular; the employees went on strike, and eventually the labor court struck down this measure. That's a precedent, but it doesn't seem to have made its way to the appellate court. Your case is also slightly different in that the restrooms would only be inaccessible for an hour, which is shorter than in the Bigard case. So legally speaking, it isn't clear who will win. You'll have a better chance of success by banking on the unpopularity of the measure. Talk with your colleagues and your representatives and shop stewards. Point out that employees who are trying to hold it in are unlikely to be at the top of their productivity. | 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. | You will probably have been presented with a form mentioning "Texas Food Establishment Rules (TFER) Section: §228.35", which requires you to report symptoms and diagnoses which include Salmonella Typhi. That does not guarantee that you actually got such a form or that you remember signing it, but theoretically you did. The regulations are given here and here. The model form includes the information above the signature line "I understand that failure to comply with the terms of this agreement could lead to action by the food establishment or the food regulatory authority that may jeopardize my employment and may involve legal action against me". | First of all, the site you found is governmental, so a rather good find in the first place. It indicates: Au restaurant, la carafe d'eau ordinaire en accompagnement du repas est inclue dans le prix du repas. En outre, les établissements de restauration et débits de boisson doivent indiquer la possibilité pour les consommateurs de demander de l'eau potable gratuite. In the restaurant, the carafe of plain water to accompany the meal is included in the price of the meal. In addition, catering establishments and drinking establishments must indicate the possibility for consumers to request free drinking water. The relevant law cited in the further article is Order No. 25-268 of June 8, 1967, which was repealed in 2016, but speaks about that such a charge needs to be included in the price. However, a different order concerning the display of prices from 1987/1990 is still active. This specifies in Article 5: Les cartes et menus doivent comporter, pour chaque prestation, le prix ainsi que la mention "boisson comprise" ou "boisson non comprise" et, dans tous les cas, indiquer pour les boissons la nature et la contenance offerte. Cards and menus must include, for each service, the price as well as the mention "drink included" or "drink not included" and, in all cases, indicate for the drinks the nature and the capacity offered. Likewise, an environmental law in the shape of Article L541-15-10 demands the following: A compter du 1er janvier 2022, [...] Les établissements de restauration et débits de boisson sont tenus d'indiquer de manière visible sur leur carte ou sur un espace d'affichage la possibilité pour les consommateurs de demander de l'eau potable gratuite. Ces établissements doivent donner accès à leurs clients à une eau potable fraîche ou tempérée, correspondant à un usage de boisson. From 1 January 2022, [...] Restaurants and drinking establishments are required to indicate in a visible manner on their menu or on a display space the possibility for consumers to request free drinking water. These establishments must give their customers access to fresh or temperate drinking water, corresponding to the use of beverages. Since the latter law actually requires them to give access to free drinking water (which is tap water) on request, they are allowed to not bring it out with the meal, as long as they have the required note that tells about it. However, many restaurants will deliver a flask of it on its own, sometimes even before you order. As a side note: the serving of free water to meals is pretty much a custom in France, even if the waste reduction law of 2022 is very new still and the old law that had mandated it went away in 2016. When I last was in Paris in about 2005, I had to ask for water in one restaurant as they didn't deliver it on their own with the meal, upon which the server asked if I would prefer it chilled or warmed. In none of the about 10 different food places I visited in the week, water or table charges did show up on the bill, very much in accordance with the 1987/90 law. In one restaurant also the slices of baguette served while we choose our meals were off the bill, even though we asked for a refill of those. | 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. | The ADA Standards , in section 226.1 requires that: Where dining surfaces are provided for the consumption of food or drink, at least 5 percent of the seating spaces and standing spaces at the dining surfaces shall comply with 902. Where section 902 gives specifics on the requirements for accessible dining surfaces. It therefore seems that, in order to determine compliance, you would need to know how many dining spaces are available in total, and how many are wheelchair accessible. If less than 5% are accessible then the restaurant is not compliant, otherwise they appear to be OK. |
GDPR: Can I collect non-personally identifiable information? I'm creating a game that collects data in two ways: Unity Analytics for usage stats, and bug reports that sends me a report of an issue along with several files to help me diagnose the issue. However, GDPR is becoming a rather confusing problem for me. The data collected with my bug reporter is: A hashed unique device ID A game save file System specs Settings configuration A short in game video recording (only shows the game window - not the users desktop) None of this is personally identifiable (I'm pretty sure) - I don't collect IPs, names, emails, gamer tags etc. As such, do I need permission from the user to collect this data? Would I still be GDPR compliant? | There are two relevant bodies of EU law to consider here. The GDPR covers processing of personal data. Personal data is any data where the data subject can be identified directly or indirectly. The ePrivacy directive is also relevant, and covers how you may access and store information on the user's device. Directives are not directly applicable law. Instead every member state translates the directive into national law. In the UK, ePrivacy is implemented by PECR. Is the data you collect personal data in the sense of the GDPR? Yes: that hashed unique device ID or a system-provided advertising ID likely is personal data, and any linked data would then be personal data as well. This is going to be the case in particular if you store user accounts on your server and can connect these bug reports to a user. Consider also whether the game save could include personal data, and whether the video clip could be analyzed to identify the data subject. Does this mean collecting this information in bug reports is forbidden? No, the GDPR doesn't forbid or allow anything outright. Instead, you should go through the compliance process. In a nutshell: determine the purpose of this processing, e.g. “fixing bugs” find an Art 6 legal basis for this purpose, e.g. “Art 6(1)(f) legitimate interest” or “Art 6(1)(a) consent” if the legal basis is legitimate interest, you must balance that interest against the data subject's interests determine whether your compliance requirements include creating/updating your Records of Processing, or whether you have to write a Data Protection Impact Assessment implement the processing in a manner that respects GDPR principles such as Transparency and Data Minimization if the legal basis is legitimate interest you must implement an opt-out solution if the legal basis is consent, you must request consent first in a manner that satisfies the Art 7 conditions for consent – and allow consent to be revoked easily prepare to satisfy data subject rights: information requirements per Art 13, usually done in the privacy policy right to access, rectification, erasure, and data portability right to object (opt-out) and to restrict processing be aware of your general requirements a data controller to process this data securely, e.g. use HTTPS connections to transmit bug reports, take steps to protect your own accounts (e.g. 2FA), and ensure you have a suitable contract with any data processors that act on your behalf, e.g. cloud providers or contractors I would question whether your bug reports really need to include a device ID. That isn't forbidden, it just complicates compliance a bit. And what about ePrivacy? The ePrivacy directive is known for its cookie consent requirements. But these consent requirements apply when accessing any information on the user's device, or when applying equivalent fingerprinting techniques. Your game save is not an issue because it is necessary for the game. But that device ID and other system information is more difficult. So what to do? Compliance isn't trivial, but certainly possible. You will likely process the bug reports under your legitimate interest, but might still have to collect consent for accessing a system ID due to ePrivacy. Such a screen might look like this: Oh no, the game crashed! Do you want to send a bug report to the developers? Your bug report will be protected as per our privacy policy (link). Your bug report will contain the following information: … Yes, collect system information and send bug report No, do not send bug report You could make an argument that a bug report can be sent in any case, and that you just need ePrivacy consent to collect useful system information. For example: Oh no, the game crashed! When sending a bug report to developers, do you want to include extra system information (link to details) that helps fixing the problem? In any case, your bug report will be protected as per our privacy policy (link). Your bug report will contain the following information: … Yes, send bug report with extra system information No, send anonymous report | First of all, a password is not personal data. ‘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; From GDPR Article 4 (https://gdpr-info.eu) As for password hashes, what do you mean by requesting a copy of yours? You can produce it if you knew the hashing algorithm of the website. By the way, websites should be using good hashing algorithms, such as bcrypt or scrypt, not MD5 or SHA1. | First of all, in a GDPR contest, the process described is not strong anonymization. It may be hard for an outsider to go from the stored record to any PII, it is much easier for an outsider to "single out" an individual. This means that given a known individual, one can determine whether that person is among those listed in the records, or can determine this to a significant degree of probability. For this only the algorithm and the rotating salts are needed, one need not break the hash. Note also that the GDPR specifies that if a person can be singled out with the assistance of the site operator the data is not considered anonymized. Thus this data needs a lawful basis under the GDPR, and the various other GDPR requirement all apply. However, even if the data were totally anonymized, and say just added to a count of users with this or that User Agent, the process of reading local data (including but not limited to cookies) itself requires informed consent, and so a cookie banner or other interaction with similar info under the e-Privacy directive (EPD). The EPD, being a directive and not a regulation, must be implemented by national laws, and the exact provisions in those laws may differ somewhat from country to country. But I believe that all of them require consent before any local data is read. | Generating a list of all possible numbers doesn't sound like it would constitute personal data any more than listing all dates for the last hundred years as a "possible date of birth" would. However, the moment anyone linked even one of the numbers with any other personal data - for example a name - they would be bound by GDPR and would need to show a Lawful Basis for processing the data. [If you linked your own name you could presumably argue Consent, but anyone else's would need to have an associated Lawful Basis.] | I recently came to the shocking realization that the GDPR does not apply to natural persons who are not EU citizens. This conclusion is mistaken. Where is it stated in the GDPR that the GDPR only applies to EU citizens? It is not stated anywhere because nationality is irrelevant to the GDPR. The GDPR protects "natural persons" based on their location "in the union," not on their nationality, and it applies to data processors and data controllers that undertake "activities [through] an establishment ... in the union." In addition to the recital quoted in the question, this is specified in article 3, which establishes the regulation's "territorial scope." For a complete discussion of this matter, consider the EDPB's guidelines 3/2018 on the territorial scope of the GDPR which also provides examples of GDPR protections for people who are not EU citizens. Who does the GDPR refer to as legal persons? "Legal person" generally denotes natural persons, corporations, partnerships, government entities, and so on. | Personal data is any information relating to an identifiable person, even if that person is only identifiable with the help of additional data and/or third parties. Making inferences about a particular person, for example whether that person might have performed unauthorized construction, sounds very much like processing of personal data to me. In this scenario, the information is used to verify the tax assessment for a particular person, so the information clearly relates to a data subject. The owner for a piece of land is certainly identifiable with the help of the land registry, if one exists in the country. Similar registries might also exist with tax authorities or a postal service. Here, it is the tax authority itself doing the processing, so they probably already have tax records about the owners at the address. But just because it's processing of personal data doesn't mean that it is illegal. Satellite data and aerial photography providers can probably rely on a legitimate interest to collect, sell, or otherwise publish their data. Homeowners can reasonably expect that their property will be included in low-res aerial photography. It might not be necessary to notify the data subjects if an exception in Art 14(5) applies. A public authority using aerial photography to find building code violations or to levy correct taxes may be able to base this processing activity on authorization via some law. If the public authority would have the right to inspect the buildings, then it might be possible to argue that the public authority can use aerial photography to decide which inspections/audits to prioritize. Of course, decisions producing significant legal effects must not be based on “AI” alone, due to the Art 22 GDPR right to not be subject to unchecked automated decision making (unless specifically authorized by a suitable law). | 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). | Your confusion might be caused by the fact that even with a contract, only the data necessary for that contract is covered under the GDPR. So yes, while there might be an "execution of contract" under the T&C, this would only cover necessary data. That means you can't ask arbitrary signup data under the guise of a contract. If you need to deliver a physical product, you can store a physical address. If it's an online service, you can store an email address or similar handle. But you can't mix the two. A physical address is unnecessary for the execution of a contract that's not physical in nature. Now, you mention "consent". Under GDPR, this is a distinct justification besides "execution of contract". You might have consent to store a physical address in addition to an online address, e.g. if you offer a customer to physically mail a password request form. This consent is additional to the contract. Also note that the bit above only covers the lawful reasons for the processing of personal data (article 6). You also have to obey the other GDPR rules, e.g. fully inform the user, make sure that consent is freely given, etc. |
Is it legal for a supermarket to refuse to sell an adult beer if an adult with them doesn’t have their ID? Today I went with my dad grocery shopping at a supermarket in New York (ShopRite) and he put a six-pack of beer in the cart. They then wouldn’t let him buy the beer because they couldn’t ID me (21, but I dress for work so I look more like 25). Even when I left the store to wait in the car they made him check out at a different register. Is this legal? I wasn’t buying anything; I was just helping him load stuff onto the conveyor belt. | 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. | It is almost certainly illegal. I was unable to find UK provisions but the penalties for stealing an Australian passport are 10 years imprisonment or a fine of up to 1,000 penalty units (at time of writing a penalty unit was $170 so, $170,000) (Section 32(4) of the Australian Passports Act 2005). Under this law, the crime is knowingly having it in your possession when you know it isn't yours. Obviously, normal familial relationships would not be prosecuted (i.e. one member of the family carrying all the family's passports). Certainly, if the true owner asked for it and the possessor refused, that would trigger the crime. Furthermore, it is completely pointless - all the original owner has to do is report it stolen and apply for another one. | 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. | This is weird. Within the EU, a passport is proof of identity, and it is also proof that you are allowed to take a job in the EU. There is nothing that a birth certificate would add to this. Either the bar manager is badly misinformed, or he doesn't want to give your brother a job, and will come up with something even more ridiculous if he gets the birth certificate. | 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." | Prohibitions against dancing, especially drinking and dancing in the same venue, have a long history in the United States. It was not until 2017 that New York City repealed its Cabaret Law, which forbade dancing at establishments that served food and liquor without said license. So the purpose is to not get fined if people dance at your bar, club, or restaurant. If you're asking if it serves a purpose in terms of public interest, that's a question for Politics SE. | Farmer's Market is private property, which means that the owner gets to set the rule according to which you are allowed to enter and remain on their property. There is no fundamental right to be in a business, either under the US Constitution or California's. While you have a constitutional right to put a soapbox on the public sidewalk and denounce or extol whatever you like, there is no such right on another person's property. You also have a right to express racially and sexually abhorrent content on the street. Your right to express your viewpoint ends at the store's doors. The manager has a property right to withdraw the implicit permission to enter and remain that is implicit in running a publicly accessible store. Your constitutional right to say whatever you want has to do with government action,not private action. You have no right to compel individuals to listen to your viewpoint on private property. It is a business decision, well within the rights of the property owner, for him to find your conduct unacceptable and grounds for expulsion. You do have a recourse: shop somewhere that doesn't care what you say to their customers. | If only the tip is left in such "fake" money, it would not be theft as there is no legal obligation to leave a tip at all (except in those establishments that add a tip or "service charge' to the bill.) If the "money" is not an attempt to imitate real cash, it wouldn't be counterfeiting (leaving monopoly money for example would not be counterfeiting). The server would be understandably angry. The restaurant might refuse to seat the people who left the "fake" another time, if the servers identified them to the manager, but nothing would require them to do so. This is all on a US basis, I have no idea if tips might be legally required in other countries. |
Not paying property rent due to unlivable condition I'm living in an apartment complex in Chicago suburbs. I was paying rent continuously throughout the course of the lease. But it has been 2 months that I'm surrounded with huge number of pests, mostly roaches and ants. I raised it to them now and pest control people come by once in a while and do some treatments. I have all my stuff bundled in a corner, and kitchen is empty. I have hard time sleeping at nights as I'm scared of the roaches coming over my body. I don't want to pay the rent for this last month as the living condition is defined as "unhabitable". I'm not familiar with the specifics of the law, but can I NOT pay the rent? And what is the exact reference to the law? | Many states require an escrow of rent for habitability issues, simply not paying rent can be grounds for eviction proceedings. Illinois has a statute for deducting a repair from rent (765 ILCS 742/5). If it’s less than half the monthly rent and less than $500, a tenant can inform the landlord of the repair required. If the landlord has not provided a repair within 14 days, the tenant can have the repair completed in a workman like manner by someone having the appropriate licenses. In this case, if you’ve notified the landlord and they’ve done nothing, you can have an licensed exterminator come and treat the property. BUT... your lease may override this statute. Many leases include terms that the tenant is responsible for pest control - since often it’s the tenant’s lack of cleanliness that draws pests (not in all cases of course). So definitely review your lease and discuss with someone who is more familiar with IL law. Note that Chicago has its own interesting laws that may add to or contradict IL laws. | See Brindley Twist Tafft & James LLP, "Focus on the Mortgage Repossession (Protection of Tenants Act etc.) 2010 [sic]". If the tenancy was an authorized tenancy under the terms of the mortgage: The Bank may still take possession of the property but they may have to do so subject to your occupation. The practical effect of this is that you would be allowed to remain living in the property subject to the terms of your tenancy agreement but you would see a change in the identity of the Landlord. It is possible for the tenancy to be brought to an end but in accordance with the terms of the tenancy agreement. If the tenancy was not authorized: Under the Mortgage Repossession (Protection of Tenants Act etc) 2010 [sic] (the “Act”) an unauthorised residential tenant is however entitled to request that possession be delayed for up to two months during which time they should try to find alternative accommodation. | You have not mentioned your jurisdiction or details on the lease, but generally tenants are jointly and severally liable - which means that if he does not pay his share, the landlord can pursue you for it. In turn, you should be able to pursue him for the courts for his share of the rent. (This does not mean you will get paid - but does mean you can try and get the money off him). | the landlord has been living there for a week. Is this allowed? Am I still expected to pay rent if he is living there? Generally speaking, no. But you need to verify that your lease contains no language that overrides certain basic assumption about leases. My understanding is that (1) you delivered the property, and (2) the landlord was not entitled to live there during your tenancy. Usually one basic assumption in a lease is that only the tenants and their beneficiaries/guests ("tenants", for brevity) are entitled to use the property. It appears that the landlord is neither. Your delivery of the property enabled the landlord to reassign the tenant's exclusive right whenever the landlord deems it fit. The scenario of you finding someone to replace you in the lease is merely one alternative from which the landlord can make the informed decision to reassign that right. The event of reassignment automatically releases you from subsequent payments related to your early move-out. Accordingly, the landlord's informed and willful reassignment (in this case, to himself) of the aforementioned exclusive right forfeits his entitlement to subsequent payments from you. This renders the [rest of the] lease voidable by you. In this regard, see Restatement (Second) of Contracts at §§ 151 and 153(a). There is also an issue of fraud and quantum meruit (see also unjust enrichment) insofar as the landlord benefited at your expense (in the form of your father's work on behalf of you) without informing you that reassignment had taken place already. The landlord knowingly and intentionally deprived you of the opportunity to decide whether to keep taking care of property about which you no longer had any obligation. I presume you already are mindful of this but I should still mention it: Make sure you can prove the landlord was actually using the property rather than inspecting/enhancing/managing it. | Laws and regulations often limit or restrict remedies in various ways that may not be intuitive or correspond to popular ideas of legal rights. In the case of the recent US eviction moratorium, the obligation to pay rent was not changed. The only effect is that no action for eviction could be brought for a residential property during the effective period of the order, in situation to which the ordeer applied. The order says (see link above): This Order does not relieve any individual of any obligation to pay rent, make a housing payment, or comply with any other obligation that the individual may have under a tenancy, lease, or similar contract. Nothing in this Order precludes the charging or collecting of fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis, under the terms of any applicable contract. To invoke the order a resident must sign a statement declaring under penalty of perjury that: I am unable to pay my full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary [38] out-of-pocket medical expenses; I am using best efforts to make timely partial payments that are as close to the full payment as the individual's circumstances may permit, taking into account other nondiscretionary expenses; If evicted I would likely become homeless, need to move into a homeless shelter, or need to move into a new residence shared by other people who live in close quarters because I have no other available housing options. as well as various other declarations. The order's justification section says in part: Evicted renters must move, which leads to multiple outcomes that increase the risk of COVID-19 spread. Specifically, many evicted renters move into close quarters in shared housing or other congregate settings The order later specifies that: This Order shall be enforced by Federal authorities and cooperating State and local authorities through the provisions of 18 U.S.C. 3559, 3571; 42 U.S.C. 243, 268, 271; and 42 CFR 70.18. However, this Order has no effect on the contractual obligations of renters to pay rent and shall not preclude charging or collecting fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis, under the terms of any applicable contract. ... While this order to prevent eviction is effectuated to protect the public health, the States and units of local government are reminded that the Federal Government has deployed unprecedented resources to address the pandemic, including housing assistance. It would seem that civil suits for payment of debts arising from unpaid rent are in no way prevented, only a remedy of eviction is blocked. That block would apply to any state or local courts, as well as any federal courts. Eviction cases are not normally brought in federal courts. But seizure of bank accounts or garnishment of wages could be obtained, if permitted by state law in a particular case. So might other remedies authorized by state or federal law. | Yes, they still have to go through the normal eviction process and must still provide the minimum number of days required by their local jurisdiction in order to vacate the property. By moving in and establishing residency, the tenant and landlord form an implied lease - the tenant does not need anything in writing in order to establish their legal rights to tenancy. More information: No written lease--Am I in trouble? | 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. | A "limited license housing agreement" may be an interesting attempt to get around landlord-tenant laws, typically associated with official student housing (e.g. this from Queens College CUNY). This facility near WMU is not overtly related to the university, but might be subcontracting for the university. At any rate, there is no special provision under Michigan law that exempts landlords from the provisions of the law in case they declare the contract to be an agreement as opposed to a lease. It is possible that this is copy-and-paste law that erroneously relies on provisions in landlord-tenant laws that exempt university housing agreements from provisions of a state's landlord-tenancy law. You do not need to be informed that you should / could consult an attorney before signing a legal document: this knowledge is presupposed. It is also assumed that when you sign a document, you read the document. It is reasonably likely that the lease contained language like the following (from the above contract): I have carefully read, fully understand and voluntarily sign this Housing Agreement. Once fully signed, this is a binding contract and is intended to be enforceable under its terms. I have had the opportunity to seek independent legal advice The disclaimer "This Housing Agreement is not a lease and no tenancy, leasehold, possessory or other property interest in any specific apartment or bedroom is created" has dubious legal status. The rights given by the landlord-tenant act cannot be waived, under the Truth in Renting Act, so saying "this is not a lease" does not make the lease not a lease. In Michigan there is a duty on landlords to mitigate loses when a premise is abandoned. The case Fox v. Roethlisberger, 85 N.W.2d 73 mentions such a possible duty in the context of tenancy is often cited on the web as establishing such a duty, but I disagree. Froling v. Bischoff, 252 N.W.2d 832 however establishes that there is such a general duty for any breach of contract (and even applies it to breach of a rental agreement). So whether or not you call it a lease, there is still a duty to mitigate losses. In the scenario where you abandoned the unit and the landlord waited until the end of the year to file an action for breach of contract, they could have failed in their duty to mitigate their losses (but see Fox v. Roethlisberger, where landlord did make an effort to re-rent, and simply was not able to for 9 months). |
What's the difference between inquisitorial and adversarial systems? This question was inspired by this answer while trying to learn the difference between common and civil law. Two questions: What's the difference between an inquisitorial system and an adversarial system? Is an inquisitorial system limited to only civil law and an adversarial system to common law, or can either system exist in either body of law? | 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. | There is no "theft" without a law that defines what "property" is and what "theft" is. Laws derive from the state that has the power to enforce them. A state may issue the laws and decrees and stablish who owns the lands. It can later make changes to that ownership. When the Normans invaded England, Willian I became the legal authority and with that he could award, confiscate and keep lands as he saw fit, without that being considered "theft" in any legal sense of the word. The English government (and all others) still have the authority to take away, redistribute and otherwise change the ownership of lands as they see fit, and nothing of it would be theft. Internally most of them have chosen to stablish some procedures to ensure that this is only done when needed by meeting some tests (eminent domain), but even if they didn't have those (again, self-imposed) restrictions they still would be able to change ownership as they saw fit. That does not mean that a government using that power to punish political opponents or ethnic minorities would not face internal and external protests. | Why do you want to know? I think that the reason this question seems so obscure is because it does not involve sufficient context and specificity. It can't be answered until one knows the reason that it matters to know if a rule is new or not. In a particular context, these questions usually have obvious and clear answers. The murkiness arises only when one tries to overgeneralize. The life of law is not reason, it is experience. In general, it is almost never fruitful to try to apply legal principles of any kind to their logical conclusion without grounding that logic in fact specific and context specific precedents and applications. That approach to legal reasoning is a classic rookie mistake that gets a lot of young associate attorneys doing legal research into trouble by overstating the confidence that they should have in their conclusions when there is no case right on point addressing a situation. For example, if a federal government agency publishes something in the federal register that does not exactly restate an existing regulation, then it is a rule change, in the narrow sense that is changes an existing published narrowly defined Code of Federal Regulations rule. The process by which one does so derives from the Administrative Procedures Act and other authorizing legislation passed by Congress and also custom and case law interpreting these, so it isn't self-referential. A completely different context in which the question of whether there is a "new rule" of law is when a court according to the principles of stare decisis makes a ruling interpreting the constitution in a manner different from or expanding upon previously rulings interpreting the constitution in a similar circumstance. In this context, this matters because a "new rule" of constitutional law is generally given only prospective effect, while an interpretation of an existing rule of law that merely expands upon existing precedents in a foreseeable way has retroactive effect. In this situation, as in any case in which one tries to determine the best definition to apply under the law, the best approach is to look for a definition that produces just results given the consequences of a particular definition v. another particular definition. In that context, the determination of whether a rule is a "new rule" should depend upon foreseeability and the amount of reliance that people put on the old rule as opposed to the new rule being in force. There is no good reason to have transsubstantive legal meta-rules that apply to both of these situations. The former mechanistic rule makes sense in its context and makes the status quo clear and the events that constitute a change in the rule clear, while the latter consequence oriented definition makes sense in the completely different context where it is used. Surely, there are other contexts in which the question of what constitutes a "new rule" could have different consequences still. For example, to determine what constitutes a new v. old rule of U.S. Senate procedure, or to determine which statute is newer or older for purposes of determining which statute of two that conflict should be given effect when there was a cosmetic recodification of the section numbers of one of the titles but not the other without changing the substantive meaning of the recodified statute. The determination should generally be made on a case by case basis as there is no important purpose served by having a uniform metarule to answer these questions. If you are getting paradoxes trying to apply your legal theory, you are probably doing it wrong. For what it is worth, I have a dim opinion of Hart as someone who uses lots of words to say nothing of consequence or use, and I am not familiar with Biagoli or Suber. In general, legal theorists are not terribly influential in how the law is applied and interpreted in practice, although, of course, there are always exceptions. | Against Bob: yes; Against Cindy: no I'm going to borrow @Trish's example because it's a good one although the conclusions they reach are wrong. Alice made a green box. Bob signs an NDA never to tell anyone that Alice made a green box, and there is a clause in it that if the NDA is breached, the box is red. Bob tells Cindy that Alice made a green box. Cindy has a patent on making green boxes. Cindy sues Alice and in the lawsuit puts Bob on the stand. Situation 1 So, the box is objectively green and objectively a breach of Cindy's patent on green boxes. Bob is on the stand and is required to answer questions honestly and no contract can prevent him from doing so. He testifies that the box is green. This would be a breach of contract except that a clause that requires a breach of the law (perjury in this case) is void for public policy reasons so Bob cannot be sued for this. However, he can be sued for the initial breach - he may have a public policy defense here because Alice was breaking the law, however, it’s easy enough to construct a scenario where Alice was innocent but suffered loss from Bob’s disclosure. Cindy can say what she likes because she is not bound by the NDA. Cindy wins, Alice loses. Situation 2 Cindy dies - after a long and happy life so we won't grieve too much. To Bob's surprise, he inherits Cindy's green box patent of which he was previously in complete ignorance of. Bob sues Alice for breaching Cindy's now his, patent. So, the box is objectively green and objectively a breach of Cindy's patent on green boxes. However, Bob agreed with Alice in the contract that the box is red and so, legally for matters between Alice and Bob the box is legally red (notwithstanding that everyone knows it's green) and is not in breach of Bob's patent. This sort of stuff has a name - a legal fiction. Adoption is a legal fiction - adoptive parents are (legally) parents; biological parents of adopted children are (legally) strangers. Alice wins, Bob loses. | The argument would have to be either a derivative work under copyright, or a trade dress/trademark claim. Neither sounds very solid at all. Neither copyright nor trade dress/trademark protect ideas like a TV format. They can only protect very similar expressions of an idea that necessarily flow one from the other and, for example, the game mechanics can't be protected by copyright. | They have the same standard of proof but different onus The legal system places the onus of proving an allegation on the person making the allegation. For your example, this is A if they are suing B or the government prosecutor if B is being prosecuted. The standard of proof is “beyond reasonable doubt” if B is defending a criminal prosecution and “balance of probabilities” if B is defending a civil prosecution or a lawsuit. Courts have historically been reluctant to define these terms further because doing so can lay grounds for an appeal if the judge oversteps so they mean what their plain English formulation means and what they mean precisely in any given case is one of the things the trier of fact has to decide. For A or the prosecutor to win, they have to meet this burden for each and every element of the offence or cause of action; if they don’t, then B wins. So, B doesn’t have to offer a defence at all and will still win if A doesn’t meet their burden. If B does offer a defence then the trier of fact compares the evidence of each side and decides which they prefer and therefore whether A has met their burden. A jury doesn’t have to give reasons for their decision; a judge does. In general, the decisions of the trier of fact are not appealable unless there was no reasonable basis in evidence to support the decision. For example, the evidence of B might not be believed - this is fine, unless the reason for not believing it is that B has a beard and everyone with beards are liars. Options 2 and 3 are simple matters of comparing evidence and deciding which is preferred. Option 1 is different; it is what’s called an affirmative defence. Here, A has met their burden because B conceded. Now B is relying on the position that they had a legal excuse, that is B is alleging a position and B has the burden of proving it. Now, the burden on B is always “balance of probabilities” because B is not alleging that anyone committed a crime so they don’t have to reach the criminal standard. | In the german language, in jurisprudence, we have lots of latin terms / expressions, because latin expressions seem to be more exact. Is this also the case in the english speaking world? You are correct that there are many Latin expressions in the English speaking legal world. You are not fully correct regarding the reasons that this is the case, and in some instances this means that you can't trust a Latin legal term to mean the same thing in common law jurisprudence as it does in civil law jurisprudence. In England, Latin made its way into legal use because the clergy and literate Norman French elites spoke Latin for affairs of consequence and state and used it for that purpose in much the same manner that elites in India today use the English language. But, they were using Latin to document their own rulings and decisions in the feudal records which were largely based on tradition, common sense and local custom and practice. (This was also true in Scandinavia until the Scandinavians adopted legal codes based upon continental models in the 18th and 19th centuries or so.) In Germany (and most of continental Europe) the situation was different. In the Roman Empire, the judicial role was delegated mostly to people we would call arbitrators these days, who issued written decisions in Latin after cases were litigated before them by people we would call lawyers today, and these were collected, edited, arranged by subject and published in books that are the equivalent of the legal digests or case reporters today. When the Roman Empire collapsed, these fell into disuse, but monks continued to copy sets of them of future generations through the dark ages. Then, sometimes around the late Middle Ages/early Rennaisance it became fashionable for lords and officials making judicial determinations to reference these digests in their decision making on something of a grass roots basis until it became accepted practice after a few centuries for there to be formally trained jurists who were familiar with the digests and it was expected that these trained professionals relying on these historic Roman legal sources were the only legitimate way to make legal decisions. This process is called the "reception" of Roman law in early modern Europe and was the foundation of the law in most continental European countries that ultimately became civil law countries until it was so jumbled and arcane that Napoleon streamlined it by having an expert prepare his civil code with the idea that it could be used to get fair and accurate legal resources without lawyers or legally trained jurists. Germany and Spain then copied this efforts in their respective national styles. Germany strove to be more detailed and more exactly accurate in codifying the Roman law substrate using "legal science" intended for use by legal professionals, and has a longer more detailed civil code with more major categories and more rigorously consistent used of defined terms throughout their codes as a result. Spain was, if anything, a bit more loose in drafting than the French, but made substantive adjustments to reflect local ideas on the correct rule of law. These codes, in turn, were used as models by almost everyone else in Europe. To make a long story short then, Germany and other continental European countries use Latin legal terms not just because Latin was a common language of the clergy and literate elite, but because they were borrowing Roman legal terminology directly from Roman legal sources that had been preserved by monks in through the Middle Ages and then restored to active use in the early modern period, unlike the English, who were mostly coining Latin legal terms for non-Roman legal concepts or borrowing Roman legal terminology in an uninformed and frequently not technically accurate way compared to the way they were used by the trained legal scholars familiar with Roman legal sources on the continent. | The reality, and to some extent the conventional wisdom, is that jury trial as less accurate (and jury trials are without a doubt, in modern times, less efficient). But there is also a widespread belief that jury trials are less biased than bench trials. Judges are probably more accurate but are perceived as being biased against most kind of criminal defendants, so that the average result is worse of innocent defendants, even though jury trials probably cause more guilty defendants to go free than they would otherwise. The empirical evidence is mixed and is system and context specific (judges might be biased in favor of law enforcement defendants, for example). But the revealed preferences of criminal defendants show an overwhelming belief that the average results of jury trials for them are better than the average results of bench trials for them. The fear of judicial bias also illuminates the circumstances under which the British retain civil jury trials (e.g. in eminent domain valuation proceedings, where judges are seen as having something of a conflict of interest since their department's budget competes for scarce funds with those funds used to pay eminent domain claims). Sometimes being fair is more important than being right, and that is what the jury system strives to do. The belief that judges have some inherent biases overlaps with the notion that the jury may bring a broad range of insight into interpreting the factual presentation and the credibility of witnesses based upon their wider range of personal experiences. The removal of the class and occupational biases of judges generally from the system also does have a democratic aspect to it. It gives granular active control of a key form of state use of power involuntarily over someone to the democratic populace making the system more democratic. Juries also turn a decision made by a lone judge (because unlike civil law systems, common law judges with only rare exceptions conduct bench trials individually, rather than in panels of judges), guarding against the idiosyncrasies of any one individual decision maker. Also, as a practical matter, in the U.S. and pre-modern England, there was a scarcity of legally trained judges so adopting a system calling for far more judges per capita, as civil law legal systems of Continental Europe did, would have been expensive, and juries made collective decision making possible, leveraging scarce judicial resources. Another important facet of this is jury nullification which gives a jury the practical, although often not formally acknowledged, power to disregard the law when its application seems unfair. The revolutionary Americans figures that their fellow citizens would be less likely to convict them of wrongs against an unjust state than British appointed judges had been to do so, and in practice, even in modern times, juries have often been lenient with politically motivated criminal defendants charged by the state with crimes. It also reflects a political calculus on the part of the judiciary collectively. In a bench trial, the public will seek to hold the judge responsible for decisions with which it disagrees and to blame the judiciary collectively for bad decisions. A jury trial deflects blame from the judge to an effectively anonymous and ephemeral group of ordinary citizens so that decisions perceived as bad don't taint the long term reputation of the judge with the public. More generally, bad decisions in high profile court cases can undermined the legitimacy of the government as a whole if made by a judge, but not nearly so much, if made by a jury. Finally, there are decisions that mosts often come up in tort cases (such as personal injury cases, defamation cases, and money claims for violations of civil rights) where a big component of any damage award involves compensatory non-economic damages (e.g. for pain and suffering and damage to dignity) and non-compensatory punitive damages claims, where a jury serves what amounts to an opinion survey-like role by translating intangible harms into fixed sums of money in a way that reflects community opinion, where there is no easy way to define that sum of money in a flexible way to cover myriad situations that a judge can follow in a principled way. |
Why was El Chapo tried in the US? I don't know the full story of El Chapo or seen any of the documentaries/movies. However, I'm assuming he committed the same crimes in Mexico. Why would he be extradited to the US without facing trial in Mexico? Even if Mexico was too corrupt and he may escape, isn't it odd that he was sent across the border before being tried in his own country? | 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 | Such a search would have been emotionally satisfying for many people, but it would almost certainly not have been legal. Evidence that someone committed a crime is not always sufficient to permit a search of their home. An arrest warrant requires probable cause to believe the target individual committed an offense, and a search warrant requires probable cause to believe that the target location will have evidence of a crime. So whatever evidence they had that Epstein committed a crime, they would generally need a separate warrant to search his properties for evidence of that crime. There is no "emergency clause" for search warrants. I imagine you're thinking of the "exigency" exception to the requirement that the police obtain a warrant before searching property, which allows a search in cases where there is an actual emergency, where evidence is being destroyed, or when someone ducks into private property while officers are pursuing them. "Reasonable suspicicion of possible threats to ... potential victims" would not be enough to justify a search based on an exigency. If Epstein is already in jail, he doesn't really pose a threat to anyone, he isn't able to destroy any evidence, and no one is pursuing him anywhere. | Ah, but destroying the insulin is not "tantamount to to murdering the victim". Any pharmacy or hospital can supply more. Once the villain is secured, or the cop and victim are away from the villain, additional supplies can be obtained. That does not justify deadly force. (And since the T J Hooker series was set in a large US city, such supplies would have been readily available, 24/7. If the setting was far away from any such supplies, the case would be different.) However, if the cop has plausible reason to fear that the villain will attack him or the victim, and pose a serious threat of injury or death, the cop can use as much force as is reasonably required to defend himself or the victim, including deadly force if that is needed. He may not use more force than is reasonably required, but in practice once it is established that there was a valid threat, or reasonable grounds to believe that there was a threat, the cop's judgement on how much force was needed will only be overruled in a really egregious case. Under current law, the cop may not use deadly force simply to stop the suspect from escaping, unless there is some unusual factor involved. I think the law may have been interpreted differently on that point when the TV show was made, in the early 1980s. | Since the treason statute is quite vague, you have to discover what the details of the law is by looking at precedent. Almost all federal treason convictions in the US have involved declared wars. There is the case of John Fries, an early tax rebellion case in 1800, who was pardoned by the president thus rendering the need for legal appeal moot, but this involved armed insurrection and is thus not analogous. All other federal cases have involved people supporting the enemy in case of a declared war. In this specific case, the allegation is that by advocating not working with Syrian Kurds in an assault on Raqqa (because it was thought to be in the best interests of the US in terms of our relationship with Turkey, given the position of the Turkish state w.r.t. Kurds), Flynn benefited ISIS. Compared to various wartime treason convictions, such as Tokyo Rose and Axis Sally, the difference between imaginary "aid" in the case of Flynn vs. actual aid in the other cases is so stark that there is no case to be made for a treason charge. | 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).) | Did the President have to commute or pardon the Russians in US prisons, or is there an existing statutory basis for releasing some prisoners? As far as American law is concerned, in this particular case, it was a "simple" deportation. The defendants pleaded guilty and were sentenced to time served, based on submissions from the prosecutors and the defendants, which are usually followed by the judge. Alternatively, if the judge had sentenced someone to real prison terms, a commutation may be required. If they want, the prosecutors can also withdraw the charges before sentencing. Obama commuted Iranian citizens in a spy swap deal. In another Iran-USA prisoners exchange, charges were dropped for Masoud Soleimani. Then as "free" men and women who are foreign nationals, they can still be inadmissible to the United States and be deportable aliens under the Immigration and Nationality Act (8 U.S. Code § 1182 - Inadmissible aliens, § 1227 - Deportable aliens). In this case, there are so many potential grounds to choose from: conviction of a crime of moral turpitude, misrepresentation, national security, foreign policy, etc. The Secretary of State can also revoke their visas at the Secretary's discretion and make their presence unlawful. They have the right to contest deportation if they are considered "free" as far as the criminal law is considered. But, they usually want to go home. The US may choose to prosecute them for other potential crimes if they contest. Then if they are deportable and there is no stay on the proceedings due to judicial or administrative intervention, they can be removed from the United States. Is there a formal agreement in international law between the US and UK? I do not believe the United Kingdom was involved directly to the exchange itself. The prisoner swap was done in Vienna. Agreement needs to be obtained from the Austrian government regarding entry conditions etc. UK revoked Anna Chapman's British citizenship. Igor Sutyagin and Sergei Skripal moved to UK. But those are not really international matters legally. The UK alone determines how its citizenship works and who can enter and stay in the UK. | Both the police and the courts are likely to look at the situation as a whole, rather than adopting any policy specifically in relation to drivers or owners. For example, it's unusual for people to rent cars to their friends for months on end. That might suggest there is something untoward about the arrangement. Is there evidence of the commercial arrangement, or is the owner pretending to have rented the car out for months, when in reality they had stashed the drugs then let a friend borrow the car for a day? It would also be unlikely for a drug dealer to stash a large amount of drugs in a car then lend the car out on a long-term basis, so if the car is out of the owner's hands, that would tend to suggest the drugs belong to the person in possession of the car (and not the owner). But if the amount of drugs were small, typical of personal use, then it becomes more credible to imagine they could be forgotten by the car owner before lending the car to a friend. Police intelligence might also have a bearing. Does one party or the other have known links to the drugs trade? Also, is the lifestyle of one or the other, in particular, inconsistent with known sources of legitimate income? My point with all these questions is to highlight how sensitive the issue is to the fine details of the circumstances, and that it's impossible to give a strictly general answer. | If you are charged under the laws of Estonia (or Australia or Thailand or the UK) then the laws of the USA have no relevance whatsoever. It makes no difference if you are a US citizen, if the alleged crime happened in the USA or was perpetrated against the USA. If nation X has jurisdiction then you are tried under the laws of nation X. That is what sovereignty means. As to your specific example, Facebook does business in Estonia, therefore they are subject to Estonian law, as a US corporation they are also subject to US law and the law of every other jurisdiction they operate in (see why they need big legal departments?). If a legitimate Estonian warrant was served on them to disclose metadata or anything else then they are legally obliged to do so or be in contempt of court. Oh, and by the way, the first amendment right to free speech does not give you a right to anonymous free speech. |
Is urban exploration legal? Even if so, should I do it? Intro When I go exploring, I often find abandoned buildings, farms, factories. Near where I live, it's easy to find abandoned buildings in the mountains or the National Park. I have an interest in Urbex. I admit some times when I go to the wild I'm actively looking for urban places and ruins to explore. I've been in some amazing places in my country, and I'm always looking for more. However, this is just an interest, not something I spend a lot of time thinking about. Examples Here's a few examples of places I've been (I don't own these photos): Abandoned arabic building Abandoned hotel (since the 80s I think), in the islands Abandoned panoramic restaurant (since the 80s), right next to the country's capital Abandoned thermal spa, popular during the beginning of XX century Problem How legal is it to enter these buildings? Can I explore with peace of mind knowing I'm doing nothing wrong or can this be considered trespassing, breaking & entering, burglary or even mischief, even if I'm doing nothing wrong? I only enter a building if there is an open door (or window, gate, even holes in the walls or fences) and I never break anything. I like to have the same approach as I have in the wild: leave no trace. In my opinion, this is still the wilderness and you can actually find good examples of local flora and fauna inside these buildings. Also, if there is a sign stating "Private property" or "No enter", I respect the signs and move on. There's plenty more to explore out there. The arabic building from the picture above, for example, is abandoned but belongs to a complex of buildings on the same area, which I suppose belong to the same owner. As far as I know, there are people who own this building and who are easily identifiable, so I did not go inside. I understand the laws will be different from country to country, but probably the principles will be the same? And how can I find the relevant laws and analyze them? Thank you in advance, respect the world. EDIT To clarify, the photos were taken in Portugal; but since I also travel around the world (mainly Europe), I would like to know the general principles behind these laws. The answers given so far are interesting on this matter. Also, one final note just to point the obvious: trespassing, burglary and other offenses can be considered serious crimes in your area. If you believe you might be committing a felony, you should stop and inform yourself first. I believe no one in here endorses illegal activities. :-) SECOND EDIT I understand that laws will be different from country to country, no need to keep telling me that. However, the answers given so far are all quite interesting and what I was looking for, so I will keep the question as is. Thanks guys. | My general belief is that in the United States entering structures like the ones you've pictured would be considered trespassing regardless of if there is a sign in place or not. This is based on the fact that I'm almost certain that if you become injured while on the premises you could sue the land owner. I believe the trespassing signs are just there to give legal cover to the land owner in case someone does try to sue them. Here are two sources that essentially support my beliefs: General definition: Trespass is defined by the act of knowingly entering another person’s property without permission. More detailed legal definition: § 11.411 Criminal trespass. (a) A person commits an offense if, knowing that he or she is not licensed or privileged to do so, he or she enters or surreptitiously remains in any building or occupied structure. An offense under this subsection is a misdemeanor if it is committed in a dwelling at night. Otherwise it is a petty misdemeanor. As you can see these buildings are clearly owned by someone, and you clearly haven't gotten permission to enter the building. Ergo, you're trespassing. Now if you were talking about ancient Mayan ruins, or an Old West ghost town then this would be more of a gray area, I believe, since those structures have been abandoned for 150+ years. The same goes for structures in National Parks, since a National Park is public land you could make a case that you thought you were allowed to go since you weren't specifically told you can't go (assuming you didn't cross a fence line/no trespassing sign). You should definitely contact a real lawyer though. Now if you do enter then I think the probability that you will be caught and prosecuted would be fairly low. It is your decision if that risk is worth the reward of entering/exploring the structure. | 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. | Landlord-tenant laws are state-specific, and given the number of states it's impractical to scan all of the laws, but based on a reading of a handful of such laws I doubt that there is any law requiring landlords to pay the oil for a rented house. (The matter would be different if there was a multi-unit building with no individual control over temperature, thus pooled fuel usage). It's not clear to me what you assumed the agreement means, where it says "N/A". Perhaps you believed at the time that the place had a different heating system, and you relied on that assumption. In that case, you might be able to go to court and have the contract voided, and you could pick another place to live. If the "options" are specified so that some things are assigned to tenant, some to landlord, and some are N/A, that would especially lead to the reasonable belief that there was no oil heat in the house. But if the only indications were "landlord" versus "n/a", then you could interpret "n/a" as meaning "not the responsibility of the landlord". Analogously, if the agreement only lists "tenant" and "n/a" then a reasonable interpretation would be that this means "the tenant pays" versus "the tenant does not pay". This reasoning would also have to survive the alternative interpretation that the tenant pays for everything, except that n/a means "there isn't one of these". In other words, the meaning of the term might be determinable from the overall context of what's in the agreement. Since the house does not come with a full tank (as with car rentals), the question of what to do with the residual oil at the end of the lease should also be specified. Unlike gas or electric, you're not just paying for actual consumption, you're paying for potential consumption, and you would have an interest in the remaining half-tank at the end of the lease. You could just walk away from that investment (pumping it out and taking it with you could be illegal, since the stuff is kind of a contaminant), or you could have an agreement where the landlord buys the oil back from you, but that should be specified in the agreement (and I assume it isn't). This kind of consideration could support a claim that you reasonably believed that there was no oil system (if there were, there would be some term relating to your interest in the residual oil), or even a belief that the landlord would pay the cost of the oil (since he ultimately gets the remaining oil at the end of the lease). You attorney (hint) should advise you how to approach this. | The article is public domain. The pictures aren’t If this was first published in the British Empire (as it then was), then The UK is the place of first publication. What follows is its status under UK law, other jurisdictions may have different results. The original article is public domain because H. C. P. Bell died in 1937 meaning copyright on everything he wrote expired 31 December 2007. If he’d lived until 1951 or later it would still be under copyright (in 2021). However, this isn’t the original article because: Text on this page extracted from an original copy of Annual Report. The photographs were taken when I visited the site in 1991, and again in November 1995. The bits that this unknown author added, including the photographs, are their copyright. Since they were clearly alive in 1995 (due to the well known pirate aphorism “dead men take no photos”) the copyright in those is still current. | Your numbers are off The states don't seize a mile next to every road, as farms don't suffer from traffic noise. They also don't seize land when they just rebuild a road, but that is still part of the 400k acres of road. In fact, most "new roads" are rebuilding old ones, and a huge part of the rest is through undeveloped land that is owned by the state or farmers - and thus cheap and doesn't need a mile-wide strip of noise protection. Eminent domain cases are RARE 2018 saw 87 cases of eminent domain in colorado - most of them for buildings no longer deemed habitable and condemned to be torn down, then re-developed. The federal government lists 1001 real property cases filed by the US in the same year's report, not indicating what kind of development or redevelopment would happen there, or if it is Eminent Domain or some other type of real property case. Under Eminent Domain, the seized land can be used for any public use. And in strange cases, it happens even to what used to be a private road and shopping complex in front of Walt Disney World - to build an interchange. | It's not impossible. Here are the regulations. Single- and two-family dwellings are legal, as are mobile homes. But the activity is not necessarily allowed (since you aren't residing there). "Customary home occupations" are allowed, but that means businesses customarily run out of a home like making / selling homemade arts & crafts, selling antiques, education, but also "Any other uses which the Board of Zoning Appeals finds to be of similar character". However, "Public Uses" are allowed with an approved site plan, spelled out in §303; or "Rural businesses" with similar approved plan. This means you have to give lots of information about the site and the plan has to be approved. There doesn't seem to be a specific prohibition, and the use seems consistent with the principle that This district is created to establish and preserve areas with agricultural and rural qualities by allowing for traditional Agricultural Uses along with low-density residential activities but the Sevier County Board of Zoning Appeals might feel otherwise. A counter-indication is that §504.3.1 lists for R-2M zones "Bed and Breakfast Inns, limited to a maximum of four (4) bedrooms for rent", thus the zone must be more residential for B&B usage to be accepted. Since the standards are not clear, the only solution is to officially inquire with the Zoning Board. | Check your local law. In Washington, the chapter RCW 63.21 says what you are supposed to do. The first part of the law has apparently been satisfieds: Any person who finds property that is not unlawful to possess, the owner of which is unknown, and who wishes to claim the found property Then you need to get a signed appraisal stating current market value from a qualified person engaged in buying or selling the items, or by a district court judge (I have no idea where district court judges get their qualifications to appraise bricks), then within 7 days, report this to the cief LEO where the stuff was found (and surrender it, if requested). You also have to serve written notice upon that officer stating your to claim the property. The burden now shifts to the government, which must publish notices in a local newspaper at least weakly, for 2 weeks. The notice might be publishable in a no-cost venue, in case the publication cost is greater than the value of the stuff. If the owner appears and establishes ownership, that's the end of the finder's potential interest. If the owner does not show up, the property will be released to the finder once he has paid the government's publishing expenses plus $10, but if the goods are appraised at less than publishing cost, there is no fee. As a finder, you have 30 days after that 60 days to pay required costs, otherwise it goes to the government. There are some exceptions, things not subject to finders-keepers (crab pots, secured vessels, motor vehicles, unclaimed property in the hands of a bailee). If you do not comply with these requirements, you forfeit any right to the property and you are liable to the property owner for the value of the bricks. Under the definition of theft, you have a defense that The property or service was appropriated openly and avowedly under a claim of title made in good faith, even though the claim be untenable since you presumably intend to claim ownership of the bricks under the lost property statute. | Farmer's Market is private property, which means that the owner gets to set the rule according to which you are allowed to enter and remain on their property. There is no fundamental right to be in a business, either under the US Constitution or California's. While you have a constitutional right to put a soapbox on the public sidewalk and denounce or extol whatever you like, there is no such right on another person's property. You also have a right to express racially and sexually abhorrent content on the street. Your right to express your viewpoint ends at the store's doors. The manager has a property right to withdraw the implicit permission to enter and remain that is implicit in running a publicly accessible store. Your constitutional right to say whatever you want has to do with government action,not private action. You have no right to compel individuals to listen to your viewpoint on private property. It is a business decision, well within the rights of the property owner, for him to find your conduct unacceptable and grounds for expulsion. You do have a recourse: shop somewhere that doesn't care what you say to their customers. |
(US/Florida) Can an individual sue a public university to get them to enforce one of their existing policies? This is a question of theoretical interest, since the likelihood that I'd actually take this action is near 0. So, there is one particular commonly traveled outdoor covered hallway on campus that is the main north/south pathway for everyone traveling. There is a campus policy prohibiting skateboards/bicycles/etc. from being used in this hallway for safety (and, in my opinion, noise!) but particularly safety reasons. There is no-one currently enforcing this policy. There have been accidents due to unsafe people breaking this policy causing injury. The campus police don't want to get involved since it's not a matter of law but of campus policy. So...as an individual, does one have the right/ability to sue to try to compel the university to enforce its own safety policy? It seems like there'd be standing (As I'm at risk by it not being enforced). If not, is there any other legal redress? Again, mostly hypothetical....(Although the more those skateboards annoy me.....) | No. I doubt a court would find you have standing to pre-emptively sue to enforce a policy which has not resulted in any harm to you. Recommendation I recommend you write an open letter to the president of the university advising them of the situation. Publish the letter in the campus newspaper. In the letter, include language like, "I am hereby, officially putting this university on notice of a danger to student safety." And "there is already a university policy against this, but it is not being enforced." And, "I beg, I implore this university to please enforce this policy." And "If, God forbid, someone were to get injured, this letter will be proof you were made aware, even warned publicly, of imminent danger to your student population..." The purpose of this letter is to nudge the university into enforcing the policy out of heightened awareness of liability if someone were to be injured. | 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. | Yes, but maybe no. In many state universities that I am familiar with, there are contractual guarantees that exempt regular academic staff from the "we pwn all your stuff" rule, which does not extend to other staff. (I had to toss back a contract for subcontracted work once because they asserted automatic ownership of copyright). It depends on your contract, entirely. Which, if it is non-existent, is a bit problematic. Their claim would be based on "work for hire" law, 17 USC 101, where the central question is whether it is "a work prepared by an employee within the scope of his or her employment". If this is a work for hire, they have more than a right to the proceeds of the work, they own the work and can sue you for publishing without permission. Work for hire means they own the copyright, and only the copyright owner can authorize publication. You do not legally have to have an attorney to request a release, but you should have one, because if you request a release, you are admitting that this is a work for hire. Your lawyer would tell you not to admit to such a thing. Of course, if you are reasonably certain that this is a work for hire and don't intend to contend otherwise, that kind of foot-shooting is not a concern. If your lawyer delivers a formal letter to your boss, the boss will almost certainly hand it to the university attorneys, and both parties will then take the hardest line possible, in defense of the interests of their clients. | It probably is infringement, assuming that this is being done by copying parts of a broadcast of the game. It is up to the holder of the copyright on the original broadcast that is being condensed to decide whether to sue or take other action, such as a takedown notice. Perhaps the holder thinks this is good advertising for its business. They have the right to make that decision. Now if a person went to the game, and used a personal camera to film it, and posted excepts of that recording, the legal issues would be very different. The ticket probably includes a provision prohibiting filming and photography, so this would be a breech of contract. But it would not be copyright infringement. (In practice if this were spotted, the person would be required to stop recording or leave, at least.) | "Public space" is not a relevant criteria when considering trespass or other crimes/torts against property. The relevant criteria is who owns it and what they allow you to do on it. All land in the USA is owned by someone. That someone may be a government; that does not make it a public space - Camp David is owned by the US government; it is certainly not public. The owner of the land can decide (subject to the law) who has access to their land and in what circumstances. If they erect a fence then they are saying "You cannot access my land here" - if you ignore this then you are trespassing. This is true even if there are legitimate ways to access the land i.e. there is a place where there isn't a fence; to avoid trespass you would have to access the land from there. If you think of this in terms of a public building like a courthouse you are free to enter through the unlocked front doors but not by climbing through a window. The trespass is in the act of crossing the fence - that is the act that you have been implicitly denied permission to do. Being on one side or the other is not trespass. For the specific image that you show it is quite likely that those roads are owned by different people - the highway is probably owned by the state while the cul-de-sac is a local government road. | I gather that the numerous ramifications you outline are merely contexts and that your main concern is about the application of contract law (contract law in the U.S. does not really vary among states). Thus, I will not really delve in the intricacies of --for instance-- privacy or copyright issues arising from the commercial use of a person's likeness that you mention in one of the scenarios. As a starting point, one needs to bear in mind that: a contract is an exchange of considerations under terms and conditions entered knowingly and willfully by the parties, which can be evidenced by the parties' subsequent conduct (that is, not just by signing a document); and a contract is unenforceable if it contravenes public policy and/or the covenant of good faith and fair dealing. Accordingly, the questions are (1) whether a person knew or reasonably should have known about the terms & conditions at or by the time of those events which trigger obligations pursuant to the contract; and (2) whether the provisions therein are unreasonable, illegal, or tantamount to a penalty, especially in the event that the party breaches or repudiates the alleged contract (see the Restatement (Second) of Contracts at § 356(2)). The scenario of house for sale entails various difficulties as per contract law and otherwise. Here are some of those issues: Are visitors properly (including "beforehand") notified about the "walkway clause"? If not, the contract is void because it cannot be said that visitors knew about & accepted that condition. Does the house provide alternatives for lawful & informed visitors to safely avoid the walkway? If not, then the seller/owner might end up incurring premises liability with respect to those visitors who get injured in making their reasonable effort not to trigger the "walkway clause". Is the house owner realistically able to prove that use of the walkway by lawful & informed visitors is sufficiently "inconsistent with the offeror's ownership of offered property" so that triggering a house sale is a reasonable consequence (see Restatement at §69(2))? Is the owner-imposed mortgage rate compliant with state law pertaining to granting of credit & loans? These exemplify only some of the burdensome complications when trying to enforce "contracts" which are extravagant or quite one-sided. Lastly, as a side note, the presumption that a person reading the poster and walking in the intended area does not thereby receive consideration is not necessarily accurate. As an example, the "intended area" could have been devised by an entity in the business of enjoyment and recreation, such as a private park. The person who deliberately walks in (regardless of whether he read the poster) certainly receives a consideration, which is the amusement or recreation for which the park was designed. | This depends entirely on STATE law, and you need to list the state(s) you are interested in in the question. Thus, the usual legal statement "it depends." POLICE ARE NOT ATTORNEYS Don't accept legal advice from the police at face value. Police frequently don't actually know the minutiae of the law, and/or often misunderstand it. Their job is not to provide legal advice nor legal judgement, their job is to enforce the law based on certain priorities. Thus the area of enforcement is usually narrowed to specific categories so they can be experts in that area. (I.e vice cops, bunko squad, homicide division, etc.) But police are not lawyers, so don't expect them to understand the law. They did not attend 3 years of law school after attaining a college degree, which lawyers DO. Police get as little as 3 months training (in some states like Arkansas they can be put on duty without ANY training for up to a year (!) before attending the academy). THAT SAID, REGARDING CALL RECORDINGS: There are single and two party states. In single party states, any single person who is part of a call or communication can record it. In "two party" states, everyone that is part of the call must be informed. There are numerous exceptions and stipulations however. GREAT EXPECTATIONS First off, is there an "expectation of privacy." Again this varies by state and case law. Generally, if there is no expectation of privacy, then there is a clear exception to record. For instance, if you are in a busy restaurant, and people around you can hear or eavesdrop, you have no expectation of privacy. Courts have also ruled that if you are in the presence of a police officer performing official duties, there is also no expectation of privacy (not for either of you). IS IT LIVE OR IS IT MEMOREX Are you being recorded? If you are in a two/all party state, and you have an expectation of privacy (a phone call made in your home) then one of the following must occur: If the police are recording you without your knowledge, they must have a court order permitting them to do so as part of an investigation. Otherwise you must be notified with a statement at the beginning of the call that the call is being recorded. (Typically your option is to hang up or continue. Continuing the call implies your consent.) In some states the notification can be in the form of a "duck" or a beep every 15 seconds (time period varies, this is also different per state). OPINION NOT ADVICE BELOW I would think that being notified that a call is being recorded ends any expectation of privacy for any involved party. Assuming the state law and related case law supports recording when there is no expectation of privacy, this circumstance would seem to permit recording legally. Doubly so if your were talking to police in official capacity (did you notice a beep every xx seconds?) CAUTION: Because this varies so much by state, and because even the various Federal District Courts are not in unanimous agreement on the minutiae, there may be other factors to consider. | If there is no reasonable suspicion of a crime having been committed or about to be committed, then there is no reason to seize you, and the Fourth Amendment "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated". Even if a state has a "stop and identify" statute, reasonable suspicion is a minimum requirement for seizing your person, even temporarily. Texas is not a state with an obligation to identify statute. I would not expect the state to be very helpful, given the facts as you report them. There might be others, such as the ACLU, who may be happy to discuss the particulars of your case. The police need to justify a stop in court, and not to the person being seized. I don't know if there is any case law saying that a false police statement to a detainee ("No, I don't have a reasonable suspicion") precludes claiming in court that there was reasonable suspicion, but it should at least make the claim of reasonable suspicion less credible. They do have to have reasonable suspicion, and they do not have to tell you what that suspicion is. OTOH if they are just harassing bicyclists, that would be illegal. |
Is it really a traffic stop? Was I operating the vehicle? I was at a gas station parking lot. The vehicle is registered under my name. My license plate is revoked in the state of Kansas for 3 years. The tags were not able to be seen due to mud covering the tag. The gas station attendant did not see me operate the vehicle due to customer volume at the time. I returned to ask him. The people in the gas station were not familiar to me or the gas station attendant. There were several other vehicles and patrons in the gas station. An officer pulls into a gas station parking lot and comes up to "provide a courtesy by informing you your tag is too dirty to read" and does not view the person being provided this courtesy actually operating the vehicle. No emergency lights were ever turned on and I was not in the vehicle. After I was informed my tag was dirty I thanked the officer and he left. I went inside and purchased a drink and used the restroom and came back outside to pop my hood and add power steering fluid to the vehicle. During that time, the same officer and another unit pulled back into the lot, again without emergency lights, to "stop" a vehicle that was not in operation to arrest me for "driving" with a suspended license. Is this a "traffic stop"? And is it considered a driving offense to add power steering fluid to a vehicle on private property? | First off, the fact that they stopped you on private property is irrelevant. The traffic offense - you driving the vehicle with a suspended license - occurred on public property en route to the station. That offense does not simply disappear because you are now on private property, nor do the police need to wait for you to leave private property in order to stop or arrest you. So... forget the gas station even exists in this scenario. The real issue at hand here is whether or not the officer needs to actually see you driving the vehicle in order to make an arrest. The answer is no. There isn't any other valid reason your car would be where it is now other than it was driven there. If you are the only person with the car, then it's reasonable to assume that you were the one that drove it there. Plenty of people get arrested for this "connect the dots" way of proving they drove, especially in DUI cases. But the officer doesn't even need to assume that second part either. It all comes down to the actual definition of "driving" in the law books. Most citizens would interpret the word as meaning actually moving in a vehicle. That's wrong. Defining a driver and what constitutes driving is actually way, way broader in the eyes of the law. In Kansas, a driver is defined in such a way: 8-1416. "Driver" defined. "Driver" means every person who drives or is in actual physical control of a vehicle. Essentially, having physical control over the vehicle is generally enough to label you as the driver or that you are driving the vehicle. In a lot of states, having possession of the keys to the vehicle is enough for a court to say you had physical control of the vehicle, because "physical control" is more broadly defined as "capable of making it move and within close proximity" to the vehicle. Thus, you can be arrested for traffic-related offenses. It does not matter if the car is parked, if you're filling it with fluids, or just taking a nap in the front seat. | Tow truck drivers in general might be allowed to carry firearms if they have a concealed weapons license, but the shooter in the case at hand wasn't merely a tow truck driver. He was actually repossessing a car, and therefore under Florida Statutes 493.6101(21) he was acting as a recovery agent. Under 493.6401 he was therefore required to hold a Class "R" recovery agent license. And under 493.6118(1)(x)(9), Class "R" license holders are prohibited from: Carrying any weapon or firearm when he or she is on private property and performing duties under his or her license whether or not he or she is licensed pursuant to s. 790.06. The story says that the car was in a driveway, so it sounds like he was on private property. This would be grounds for discipline under 493.6118(2), up to and including revocation of his license. It could be that criminal penalties also apply, but I have not found them so far. | Can't park within 30 ft of a stop sign. Tex Tn Code 545.302 b4. If this is the law they don't need to post a sign. http://codes.lp.findlaw.com/txstatutes/TN/7/C/545/G/545.302 | The problem with these situations is that you don't get to choose how it goes once it's in the hands of law enforcement. Possible scenarios on bringing a complaint to police or prosecutors: "So you guys had a dispute, but everyone's OK now. We're not pursuing this; we have more important things to do." "Hmm ... that could have gotten ugly. We'll do an investigation and check the records of both you and the bus driver to see if either of you have any priors." "We're trying to make this a more bike-friendly city. And we're cracking down on CDLs especially. Thanks, we'll investigate that driver." "Thanks for the evidence. You're going to get charged with criminal mischief, and the bus driver is going to get charged with assault." Of course, you could also send a complaint to the bus company. They are (hopefully) more likely to worry about what their drivers are doing. The DoT is also concerned with CDL safety, so you can file a complaint with the FMCSA NCCDB. | No party is granted the right of way, instead, some party is required to yield the right of way. Sec. 545.155 of the Texas Transportation Code says An operator about to enter or cross a highway from an alley, building, or private road or driveway shall yield the right-of-way to a vehicle approaching on the highway to be entered. Sec. 545.256 likewise requires that An operator emerging from an alley, driveway, or building in a business or residence district shall: (1) stop the vehicle before moving on a sidewalk or the sidewalk area extending across an alley or driveway; (2) yield the right-of-way to a pedestrian to avoid collision; and (3) on entering the roadway, yield the right-of-way to an approaching vehicle. The law against wide right turns says "To make a right turn at an intersection, an operator shall make both the approach and the turn as closely as practicable to the right-hand curb or edge of the roadway"; intersection "means the common area at the junction of two highways, other than the junction of an alley and a highway", and highway or street "means the width between the boundary lines of a publicly maintained way any part of which is open to the public for vehicular travel", i.e. the part where the parking lot empties into the main road. | What you are describing may be the crime of insurance fraud: to avoid that, you would have to admit to the insurance company that you put a "Please steal me" sign in an unlocked car with the keys in the ignition, in a high-crime area. If we remove some of the elements of the scenario and reduce this to "leaving the keys in the ignition", this would probably be be considered contributory negligence, meaning that you failed to act prudently to protect your property. This can reduce the amount that the insurance company has to pay you. At this point, it depends on what state you're in, since sometimes a little bit of negligence (in Alabama, Maryland, North Carolina, and Virginia) means that you may get nothing. However, negligence hinges on an assessment of the actions and intentions of a party, and what you describe isn't "neglect", there is the direct intent that the car be stolen. Insurance policies exclude coverage for intentional loss. So the bottom line would be that the person would be out a car, and could be in prison for fraud if they did not reveal what they actually did. One should assume that the thieves took a lulz video of the sign before they stole the car, and posted it on FaceTube where it entered the viral hall of fame and was used against you in a court of law, so fraud is the worst choice. An alternative if you have a car is to donate it to charity, and take a tax write-off. | There isn't any indication in that news story that the disabled son was anywhere nearby. I agree the situation you describe sounds like a legitimate use of the placard, but it seems in this situation, the placard was being used in a manner totally unrelated to the transport of a disabled person. My guess is that the cops cited her because the son wasn't in the car, and was not inside the establishment at which she parked. California code has this to say: A person to whom a disabled person placard has been issued may permit another person to use the placard only while in the presence or reasonable proximity of the disabled person for the purpose of transporting the disabled person. So as long as the disabled person is within a "reasonable proximity", and the placard is being used to transport them, they do not have to be inside the car to make using the placard legitimate. In this case, the woman was just transporting herself and using the placard anyway, which is illegal. | Unlikely, but specific facts may change this. The fact a vehicle gets the approval of the NHTSA and/or other safety regulatory bodies will probably mean that it already passed a certain level of safety testing, and any reasons for a recall will only surface after orders of magnitude greater sample and/or testing time. Therefore, the probability of causing endangering participants in traffic and others are negligible. The duty of notice will most likely be on the manufacturer under a product liability theory. Driving continuously and/or repeatedly after notice may be a different matter if it actually results in harming one — theoretically even oneself. |
Buying of a noble title I recently came across some sites that let you purchase a noble title like: Lord, Lady, Duke, Duchess, Marquis, Count,... How can they sell such titles (they used to be given by the King/Queen of England)? Are these titles legitimate? And how do they work? Elite-titles and Scottishlands are examples of sites selling titles. | Very simply, they aren't selling genuine titles. There are two limited exceptions: Note that there is considerable difference between Scottish and English law in this area. You cannot purchase a genuine British title, with one exception, the feudal title of a Scottish baron; and certainly cannot buy a peerage title. Scottish Feudal Baronies fetch a mighty price; the Barony of MacDonald was up for sale at over £1 million. Richard, 7th Earl of Bradford, at http://www.faketitles.com/ For Scottish feudal baronies, For centuries baronies conferred important commercial benefits and legal privileges, but they are now personal titles with no powers or responsibilities. Holders are able to sell, gift or bequeath them, as ‘incorporeal’ property separate from the ownership of land, and there is a small but active market for them. https://www.lindsays.co.uk/services/for-you-and-your-family/scottish-barony-titles We generally estimate legal fees between £2,000 -£3,000 for the acquisition of a barony and £3,000 -£4,000 for an earldom. The barony itself will cost in the region of £75,000 or more in the case ofalordship, earldomor marquisate. https://www.lindsays.co.uk/assets/downloads/Buying-a-Scottish-Barony-Title.pdf In England, it is possible you can purchase a Lordship of the Manor, which does not give you a title, but enables you to put after your name, Lord of the Manor of Lower Piddling-in-the-Trough or some such place. Richard, 7th Earl of Bradford, at http://www.faketitles.com/ When I acquire a barony title what will my name be? Let us assume that your name is John Smith and that you have acquired the Barony of Strathglen. You can then style yourself John Smith, Baron of Strathglen. But note, neither Baron Strathglen nor Baron Smith of Strathglen because both of these would indicate a peerage title and barony titles are feudal titles. https://baronytitles.com/frequently-asked-questions/ | Words themselves are not protected by copyright. Curated lists of words, however, are (what's protected is the artful collection of words chosen for a purpose). Hence Hasbro owns the copyright in the list of playable words, though it is a matter for future possible litigation to see if the courts agree. If you have permission from the copyright holder, that permission (license) should state how you can use the list (it does not matter if there is a title). However, you may need to obtain the list from the copyright holder. The website operator presumably already has a license, the terms of which may allow them to prevent you from copying from the website. E.g. the author may have granted the website operator the right to use the list as long as they don't restrict redistribution; but that license may also require restricting redistribution. So you also have to study the website terms of use – or get a copy directly from the copyright holder (assuming that that is the original author). | There is currently no means for the Earl to disclaim his title, if it has been longer than the permitted period since he inherited it. He also could not do so if he was the first holder, since the 1963 Act only applies to inheritance, and he cannot disclaim a life peerage. The reasoning from 1963 is that the Act was made for people who wanted to sit in the House of Commons, but could not do so due to an accident of birth - something they had no say in. For a life peerage, or peerage of the first creation, they should have refused the honour at the time it was offered. The situation is now a bit different thanks to the removal of all but 92 hereditary peers from the House of Lords in 1999, and the resignation provisions in the House of Lords Reform Act 2014. If the Earl were one of the 92, then he could not disclaim the peerage until he resigned, or was disqualified under other provisions of the 2014 Act. On resignation, he would become able to vote in general elections, stand as a candidate, and sit in the Commons if elected. (By the way, Church of England bishops who are members of the Lords can also resign, but do so in a different way.) So any hereditary or life peer who feels that they are disenfranchised by virtue of sitting in the Lords also has the means to leave that chamber. That makes it difficult to make a human rights claim on the basis of Article 3 of the First Protocol. The European Court of Human Rights has upheld other kinds of voting restrictions in parallel circumstances, such as Ahmed and others v United Kingdom [1998]. In that case, several local government officials were barred from certain political activities, including standing for election, and brought a claim against the UK concerning violation of Articles 10 (free expression), 11 (free association) and 3 of Protocol 1 (free elections). The Court found that the restrictions were justified, and in particular that the applicants could avoid them by resigning. An opposite case was X v United Kingdom [1978] in which the applicant claimed a violation of Article 6 (right to a fair trial) because he claimed to have the right to sit in the Lords but his petition to the Queen was denied. The Commission found that participating in the legislature is part of public law as opposed to a "civil right" within the scope of Article 6. Also, granting or withholding an honour has traditionally been held to be immune from judicial review - cited for example in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 - although this conclusion may no longer be completely solid since the well-known 2019 Miller case. That would apply for aspects of a peerage which are purely ceremonial in nature. The Earl might want to argue that his free expression is impaired by having a hereditary title at all. But there is nothing stopping him from calling himself by an ordinary name. British law doesn't require him to be called the Earl in any context, and there are plenty of peers who use their normal names while working at normal jobs. He has a defined place in the order of precedence, but I am not convinced that the situation would arise where he insisted on going to a fancy dinner and had a contretemps with the host over the seating arrangement that amounted to a human rights violation. Equally, he has the right to wear an Earl's coronet at a royal coronation, but our newly republican Earl would probably just not go. In the case of the Earl Marshal - a hereditary office which goes along with being the Duke of Norfolk - there are non-trivial duties involved, and an Earl Marshal might justifiably want to stop doing them. The past procedure has been for the Crown to appoint a Deputy Earl Marshal instead, as was done in 2000 when the Duke at the time was unwell. It would seem that a similar manoeuvre would work for any other hereditary offices that were more than nominal. If the Crown refused to do this, then perhaps a claim could arise under Article 14 (discrimination on the grounds of birth), but it would require a particularly intransigent Crown. Hereditary peers may hold property in a variety of entertaining feudally-derived ways, in addition to more familiar modes. The most relevant scenario to imagine is that our Earl owns Exampleshire Castle in "fee tail", meaning that he can't dispose of it even though it is horribly expensive for him to keep paying for repairs to its leaky roof - it must pass to his eldest son, and so forth. Even if the Earl is able to disclaim his peerage, he may still be on the hook for the property, depending on how everything is structured. However, there are generally legal workarounds these days, beyond the scope of this question, unlike when entails were so important to the plots of historical stories featuring the aristocracy. There is a current campaign by daughters of some peers to change the inheritance laws away from male-preference primogeniture, including on human rights grounds. It remains to be seen how that will work out, but a key difference here is that they are losing out by not being able to inherit, while the Earl is able to divest himself of all the disadvantages of the title, by simply not using it. | No If the price advertised is not honoured by the business and you are asked to pay a higher price, you do not have an automatic right to buy the item at the special offer or sale price. As long as the shop or business tells you before you pay that the higher price applies, you have the option to either buy it at the higher price or decide not to. However, the shop or business may be in breach of consumer law in relation to misleading advertising. The prosecution (or not) of the misleading advertising is the government’s task, not yours. This is a common formulation across Common Law jurisdictions as it a codification of the historic common law position. An advertised price is not an offer capable of acceptance, it is an invitation to treat. That is, it is an invitation for you to make them an offer and the price that is likely to be accepted. It is overlaid with later developments in consumer protection surrounding false advertising and misleading and deceptive conduct. | I find that Petri Mäntysaari: The Law of Corporate Finance: General Principles and EU Law: Volume II, p. 115-140 can pretty much explain the reasoning for this. It is in chapter 5.3 on Terms non-binding as intended. The contract might not contain all legal requirements for some reason, or a clause might become invalid due to law changes. Sometimes the contract becomes unenforceable for some reason or another in part or full. The salvatorian clause is there to fix the defective clause to become the closest estimate to the written form that is legal and not deficient instead of being just dropped from the contract. This can save a contract from becoming unenforceable or making it void in whole. Especially look at Page 140: If a contract term is invalid because of a mandatory provision of law, it will be replaced by legal background rules(§306(2) BGB). One of the standard ways to address the situation is to use a so-called salvatorian clause. [...] This [reinterpretation/fixing of deficiencies] would not happen without a specific contract term. (See §139 BGB. On the other hand see also §140 BGB. Compare DCFR II.-7:302 and II.-7:303) A caveat though: if the alteration to the clause needed is too big and substantial, the contract as a whole can become void and null, no matter what the salvatorian clause said. It cannot overcome some burdens and there are regularly courts (I know this for Germany) voiding contracts due to such serious deficiencies. Notes BGB is the German "Bürgerliche Gesetzbuch", an english translation exists §139 says "If a part of a legal transaction is void, then the entire legal transaction is void, unless it is to be assumed that it would have been undertaken even without the void part." Example: a sale lacking any payment is not a sale (which starts a legally required warranty) $140 says "If a void legal transaction fulfils the requirements of another legal transaction, then the latter is deemed to have been entered into, if it may be assumed that its validity would be intended if there were knowledge of the invalidity." Example: a sale lacking any payment can be interpreted as a gift if the intent was to do so (and does not grant warranty) DCFR is the EU Draft Common Frame of Reference, so the above rules are to be found in the document as follows II.–7:302: Contracts infringing mandatory rules - p. 565. Paraphrased: "if a clause in a contract violates a law, substitute the law for it, courts shall decide if that alters or voids the contract. They may fix contracts to cure them." II.–7:303: Effects of nullity or avoidance - p. 574. Paraphrased: "void contract (parts) can constitute unjustified enrichment, transfer of items might not have happened, courts may fix contracts to cure." From the DCFR document one can read what happens in absence of a Salvatorian clause, especially for UK law. II.–7:302: I. Contracts contrary to law 1 All European systems deal with contracts which contravene some rule of law, as opposed to contracts which are contrary to fundamental principles of morality or public policy. 5 In ENGLISH, IRISH and SCOTTISH law the standard texts all include chapter headings such as “Illegality”, or “Statutory Invalidity”. See further Enonchong, McBryde, Law of Contract in Scotland1 , paras. 19.28-19.36, and, for the confused development of Scottish law, Macgregor in Reid & Zimmermann vol. II, chap. 5. II. Effects of infringement 8 The general starting point in most European legal systems is that contracts violating legal rules are void. There is often, however, considerable flexibility in the law. 14 In ENGLISH and SCOTTISH law, while an illegal contract may be void, it is more often presented as “unenforceable”, in that neither specific performance nor damages are available to the parties. Thus a party may withdraw from an illegal contract with impunity. Courts will take notice of illegality of their own motion and dismiss actions accordingly (Chitty on Contracts I27, no. 16-199; MacQueen and Thomson, Contract Law in Scotland, § 7.15; McBryde, Law of Contract in Scotland1 , paras. 13.31-13.34, 19.17-19.27).). Again, however, there is flexibility in the law on contracts infringing statutory provisions. There are several cases in which the courts have considered whether giving effect to the statute requires the nullity of the contract as a supporting sanction (see e.g. St John Shipping Corp. v. Joseph Rank Ltd. [1957] 1 QB 267; Archbolds (Freightage) Ltd. v. S Spangletts Ltd. [1961] 2 QB 374, CA). English law is currently under review by the Law Commission: see its Consultation Paper on Illegal Transactions. The Commission’s provisional proposals were to the effect that courts should have the discretion to decide whether or not illegality should act as a defence to a claim for contractual enforcement. But the discretion should be structured by requiring the court to take account of specific factors: (1) the seriousness of the illegality involved; (2) the knowledge and intention of the party seeking enforcement; (3) whether denying relief will act as a deterrent; (4) whether denial of relief will further the purpose of the rule rendering the contract illegal; and (5) whether denying relief is proportionate to the illegality involved. II.–7:303: Notes 5 In ENGLISH law the general rule is against restitution but it is possible in exceptional cases where the claimant is not in pari delicto with the recipient, or the transaction has not been completely executed, or if the claim can be formulated without reference to the prohibited contract (Treitel, The Law of Contract9 , 490-504). IRISH law is similar (Clark 314-19), and so is SCOTTISH law (Stair Memorial Encyclopaedia vol. 15, paras. 764-765), although in one Scottish case where, by statute, contracts using old Scottish measures were void, restitutionary recovery was allowed in respect of a sale of potatoes by the Scottish acre, on the ground that there was no moral turpitude in such a transaction (Cuthbertson v. Lowes (1870) 8 M 1073; see further Macgregor, (2000) 4 ELR 19-45; McBryde, Law of Contract in Scotland1 , paras. 13.31-13.34, 19.22-19.26). The English Law Commission in its Consultation Paper on Illegal Transactions suggested that a court should have discretion to decide whether or not illegality should be recognised as a defence to a claim for restitution, various factors being taken into account. In addition the court should have a discretion to allow a party to withdraw from an illegal contract and to have restitution where this will reduce the likelihood of the completion of an illegal act or purpose, although it must be satisfied that the contract could not be enforced against the claimant, that there is genuine repentance of the illegality, and that it is not too serious. | I've had a good look at the Vagrancy Act, and I have to say that i can't find the text that you're looking for. It's possibly been repealed, in which case it's not, in fact, the law - even if it were, it is unlikely that this provision would have applied to most games, as it appears to be Games or pretended Games of Chance that it targets. | 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. | It is legal, though not if the grounds are illegal discrimination (race, religion, etc), which by their (empirically supported – they raised the price) representation is not the case. As a marketing strategy (pick a low number, hope for a bidding frenzy that drives the price up) it is legal, though carries a non-trivial risk. It does not constitute "bait and switch" under any definition of the term, and it is not illegal to engage in a business practice that causes someone to frown, or otherwise disapprove. |
Should car sharing company explicitly notify about accident liability when advertising? On a car sharing company website, it advertises only benefits of its service but doesn't explicitly notify about insurance and liability in case of accident. Should car sharing company explicitly notify about liability before booking? | How Are Liability And Insurance Matters Usually Disclosed? Normally, in a car sharing arrangement, you must establish a membership or account with the car sharing firm that includes all of the terms and conditions of the agreement between the parties (at least by reference to a document that you acknowledge that you have had an opportunity to read), often in connection with downloading an app necessary to use the service. I also strongly suspect (as a comment below indicates) that if you dug around enough on the firm's webpage that a link to the relevant terms and conditions could be found, even if it wasn't in the most obvious place. But, this information will often not be on the firm's main landing page of their website, and can instead often only be reached with multiple clicks and/or drop down menus. Sometimes this is called a "terms of service", sometimes this is called a "master agreement", sometimes it is called a "membership agreement" or "account agreement". My list of names for this agreement is not exhaustive. Often these terms are also described elsewhere in simplified form, such as a "how to" brochure, or information that is posted on the interior of the vehicle itself or in a sleeve of documents in the car. Usually, in the course of the sign up process there would typically be a box to click and a link or scrollable portion of the screen at which you can review all of those terms and conditions which are the terms of the contract. What Must Advertising Say And Why? It is not generally necessary for the advertising itself to disclose every term and condition and detail of the arrangement. Generally speaking, an advertisement is considered merely an "invitation to make an offer" to enter into a contract, rather than an offer which can be accepted directly and form a contract. Of course, a particular jurisdiction's legislature certainly has the power to require that a car sharing company disclose liability and insurance information in a particular fashion set forth in a statute or regulation, if that jurisdiction's legislative body chooses to do so. Even when these issues are mentioned in advertising (even when some disclosure is required by law in adverising), usually this would be in the form of a sentence that incorporates another document by reference like "Additional terms and conditions, including terms and conditions related to liability and insurance, that can be found at . . . . apply." This is due to the practical reality that TV and radio ads are usually just 15-60 seconds allowing about 25-100 words or perhaps a few more if the announcer speaks quickly, and that ads in print or on a screen also typically have room for only a very small amount of text. Websites, in principle, provide an effectively infinite amount of capacity to host content, but considerations of ease of website use and the need to make the landing page striking for marketing purposes (as well as the need to make websites mobile user friendly when that is the only way that many Internet users can access the web) usually relegates the legal terms of the agreement to less attention grabbing locations. Often, these terms are disclosed more conspicuously when the terms and conditions change materially, something that often has its own little PR campaign accompanying it. Unilaterally Imposed Contracts of Adhesion One reason that disclosure isn't such a huge issue is that car share agreements are almost always mass produced, not up for negotiation, "contracts of adhesion" that only senior management of the firm has the authority to modify. In the case of these intangible contractually agreed services, the terms of the agreement are more akin to a non-negotiable product design than to the paradigmatic haggled legal agreement between parties. Thus, a customer has only two choices. Use the service according to the standard terms, or don't use the service. Given this reality, the average buyer of the services relies upon the market place rejecting contracts of adhesion with bad terms, upon testimonials (good and bad) from prior users of the service, and upon media publicity for notorious terms or incidents that makes it look like the business doesn't treat it customers well, to keep the agreements reasonable, rather than upon individualized decisions to use or not use the service based upon a detailed review of the contract terms. There are legal doctrines pertaining to contracts of adhesion that invalidate terms that are unconscionable or not within the reasonable expectation of a consumer unless those terms of conspicuously disclosed. A classic example, for example, would be that a car share agreement that imposed extraction of a kidney as a fine for being one days late in paying an invoice would be void as a matter of law, even if the referenced document said so in bold large face type and the customer clicked a box acknowledging having read the agreement. What Happens If There Is No Agreement Or Disclosure? If there was never a step at which the terms and conditions were disclosed or accepted, then the default rules of law pertaining to personal property leasing, together with the laws pertaining to automobile accidents and insurance (both statutory and case law) in the jurisdiction in question. In almost all cases, liability to third parties for accidents is generally a matter of tort law or statute imposed by the government, rather than being something that can be modified by agreement. Also, usually the government imposes minimum insurance requirements and the owner of the car also has an incentive (and often a legal requirement) to have car insurance in force. In the United States, the default rules of law pertaining to personal property leasing, are set forth in Article 2A of the Uniform Commercial Code, which has been adopted in every U.S. State, the District of Columbia, Puerto Rico, and each self-governing U.S. territory with its own internal laws. In countries Europe or Latin American or Asia known as "civil law" countries (i.e. in those countries outside the British common law tradition, the Islamic law legal tradition, tribal or clan or caste law, or legal systems with communist regime roots established in the 20th century), the equivalent default rules of law (governing personal property leases, contracts to provide services, leases and insurance) would be contained in either a civil code or a commercial code of that country in most cases. In common law countries, the contractual agreements tend to be longer than the default provisions of law are skinnier. In civil law countries, the reverse is true. A hybrid of these two approaches which also limits the need of customers to monitor contract terms is the regulatory model commonly used in the insurance industry in the United States takes the reality that contracts of adhesion are the norm and gives it a regulatory twist. In this hybrid model, all of the boilerplate language of every insurance contract down to the last word of non-customized or only semi-customized language, and often fee schedules as well, must be substantively improved by a state agency that regulates insurance. In these models, a public official negotiates the terms of the contracts with the firms, subject to intervention in and participation in the process by industry associations and non-profits or interested individuals on behalf of consumers or other interested parties. In these hybrid systems, the approved contract language which can't be modified in the boilerplate language by either the firms or the customers, is on file with the regulatory agency and provides constructive notice to all parties in much the same way as a statute or government regulation. If not enough material terms of the agreement (e.g. the rental rate) were disclosed to form a contract, then there would be no enforcement contractual arrangement involved in the car share and the car share company would have to rely on the law of unjust enrichment to recover the fair market value of the services provided in each case, which as a practical matter, wouldn't be viable as a business model. Distinctions Between The Two Kinds Of Car Sharing Arrangements There is some ambiguity in the question because there are a couple main types of car sharing arrangements. One is more like a rental car and you drive the vehicle yourself (Car2Go is one of them). In this case, the firm typically provides car insurance and does a limited background of a prospective account holders driving record before allowing someone to use the service. But, the user of the service, who drives the car, would be primarily liable for any accident that the car gets into. The other kind, sometimes called a "car share" and sometimes called a "ride share" is more like an Uber or Lyft, which is a glorified, on demand taxi service, in which a driver provides the services of the driver and the vehicle and takes car of insurance and will be primarily liable for any accident the car gets into as a driver and owner of the car. | 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. | A new car should be a new car, without any damage. But, if you did sign the contract after you saw the one scratch at night, the dealer may have needed to disclose in writing all of the damage (what you first saw and what you saw the next day) in writing before you signed. From NC Department of Justice - Disclosing New Car Damage • Dealers are required to disclose in writing any damage and repair that exceeds five percent of the manufacturer’s suggested retail price before you enter into a contract. • Dealers are not required to disclose any damage to glass, tires or bumpers if the damaged item has been replaced with original or comparable equipment. • If a new car has been repaired for damages that do not exceed five percent of the manufacturer’s suggested retail price, then the dealer does not have to tell you about the damage unless you ask. • If a new car has been damaged more than the five percent threshold, the North Carolina Automobile Dealer’s Association recommends that its dealers disclose it in writing on company letterhead. A copy of this disclosure should be submitted along with the title to the Division of Motor Vehicles. So if you are now in possession of the car, tell the dealer you have checked with the NC DOJ and ask the dealer about the total cost of the damages and see what they say. It's a good idea to take photos, and you may want to get a repair estimate from a body shop to calcuate yourself if the damage is over the 5% threshold. If you suspect the car may not be new and may be used, that's serious, and the dealer will have had to fully disclose that in writing. You can talk to the DMV or use the VIN number to check CARFAX. If you have problems with the dealer or suspect the car may not be new, you can contact the DOJ at the URL above or call them at 1-877-5-NO-SCAM. | First-class mail is acceptable for many different kinds of delivery in legal contexts. It is often not sufficient for service of a summons or subpoena, as noted in the other answer. But I don't think any of that is relevant, because you're dealing with a product recall, not legal service. This is almost certainly a voluntary recall, as mandatory recalls are very rare. If that is the case, I don't know of any law that requires a notice to be made in any particular way whatsoever. Instead, the Consumer Products Safety Commission has broad guidelines (see page 18) for how a company may consider communicating the fact of a recall, and they include many mechanisms that are even less verifiable than first class-mail: a joint news release from CPSC and the company ... information on company external websites ... a national news conference and/or television or radio announcements; use of a firm’s social media presence to notify consumers of the recall, including Facebook, Google +, YouTube, Twitter, Flickr, Pinterest, company blogger networks, and blog announcements ... And so on. I don't have that much experience with consumer-protection law, but I'd be surprised if it imposed any obligation to send certified mail or anything more certain than first-class mail. Separate from the recall requirements, though, it may be that a contract with a dealership or the warranty provides some other requirements. | That's the entire point of a summary proceeding. You're allegedly found committing an offence, that isn't worth the court's time to hear but nevertheless requires some penalty. The only way to "unambiguously deny liability" is by requesting a hearing and denying liability in the notice of this. The court doesn't care what you say to everybody else, it cares what you say on its record. The reasoning is, if you're so sure you're not guilty of an offence, why haven't you sought to argue this in court? And if you weren't committing the offence, why did the informant serve the infringement notice in the first place? The act is not silent at all on this. If you don't request the hearing and serve such notice by the date required, you are liable to enforcement action - whether you deny liability out of court is irrelevant. | You have to pay the premium You are not buying insurance by the month - you are buying coverage for a year for which you making monthly payments. At law, your insurer has to pay out for a single claim that happens during that period - most insurance policies contain a reset clause that reinstates the cover after a claim but this only applies if the asset still exists. Insurance law started with insurance of wooden ships on intercontinental voyages where losses were usually total and this ‘accident of history’ informs modern insurance where losses are usually not total. Similarly, being able to cancel the insurance if you dispose of the asset is a creature of the contract and usual practice rather than a legal requirement. As for “mak[ing] it clear to me” - they did. It’s in the policy which you legally read and understood even if you didn’t actually read it. | Real-world situations are rarely so clear-cut Let's say, hypothetically, that I'm in the driver's seat of a car. The company told me that the car has "Full Self Driving" capabilities based on some sort of artificial intelligence, though they also said that these capabilities "are intended for use with a fully attentive driver, who has their hands on the wheel and is prepared to take over at any moment." Let's say I was not fully attentive at a moment when the car's AI decides to swerve into oncoming traffic, and I fail to grab the wheel and prevent that. Who's at fault? Is it the car company's fault for a bug that caused that? Is it my fault for failing to be fully attentive? Is it some combination of the two? But wait, it can get more complicated: maybe the car company argues that they couldn't have reasonably anticipated the situation that caused it: maybe the lines were incorrectly drawn on the road, and indicated that the road continued in that direction. Maybe I argue that the car swerved quickly enough that even a fully attentive driver couldn't have recovered. These and more are all facts that need to be sorted out in a trial. There's no way to simply say that "any issues that this algorithm caused" are entirely the company's fault. In other words, this isn't really the legal system "breaking down"—it's working as intended, trying to figure out whose fault an event actually was. The law just isn't very developed yet as to the process a court would follow to assign liability. | It seems that the Iowa authorities did attempt to notify the driver. If the letter of notification was returned because the driver changed his or her address, that is not the DOT's fault -- drivers are supposed to notify the authorities of changes of address -- indeed driving with a license with an out-of-date address is itself a violation in some US states. If the error was made by the postal service, that is still not the DOT's fault but they might be more willing to accept an appeal from the driver. In general, authorities must make a reasonable attempt to notify people of court or administrative actions, but if those notifications fail, the authorities can go ahead in many cases. Try explaining that one doesn't owe taxes because an IRS notice was misdelivered. It would be too easy to avoid unwanted governmental actions if nondelivery of mail were a valid excuse. It may well be that there is a procedure to get the suspension waived or ended early, perhaps involving taking the class that should have been taken, and perhaps paying an additional fine. Details of such procedures vary. A local lawyer who deals with traffic issues frequently would probably know what steps might be taken. It may well be that the original ticket mentioned a possible suspension, but it may not have. That also varies by state. |
Can I use a photo of a person on my website about their fraudulent practices? There's a fraud conducting business in my state and I want to create a website that warns others of his fraudulent practices. On the website, I would like to place a photo of this individual. The photo belongs to me. I was wondering whether there are any limitations on using photos of private individuals on websites. | (Assuming the jurisdiction is the US.) Your question I was wondering whether there are any limitations on using photos of private individuals on websites. is the least of your potential problems. Photos of the public taken in public are mostly legal to use and publish, and you own the copyright on the photo, and generally don't need a model release. But your plan of posting the photo with accompanying information about (alleged) fraud: There's a fraud conducting business in my state and I want to create a website that warns others of his fraudulent practices. is potentially legally problematic. As phoog indicates in his comment, you need to be aware of defamation, both at the federal level and among states, as some have criminalized defamation (Wikipedia). Libel is the publication of provably false facts by one person about another person. For a full outline of defamation (libel and slander, and including private and public figures), see Libel and Slander | Nolo.com. What you want to do is publish "facts" about this alleged fraud on the website with a photo of the individual, linking the fraud allegations to them. That is potentially libelous. The facts of the fraud may be provably true, or they may be provably false; that remains to be seen. But the facts don't matter when considering what actions the person can take against you if you publish such information on your website. If this business and the individual(s) feel they are not committing fraud, they can sue you for libel in civil court, alleging that you have damaged their reputation and impacted their business by publishing those facts on your website with the photo identifying the person and their business. If they take legal action, and you can prove the business and the individual(s) are committing fraud with provable facts - hard evidence of fraud, such as legal documents and court judgments - than you should (no guarantees) be able to successfully defend yourself in a libel suit brought against you by that person. Even if the business and the individual(s) are aware of facts that prove their fraud, and know they will probably not prevail in court, they can still take you to court, and it will cost you whatever time and money it takes to defend yourself. My responses above concern what legal actions the alleged could take against you if you published the website with the photo and information about the alleged fraud. No one here is advising you to put up the website with the photo and the "facts" as you see them, even if you have hard proof of the facts of the fraud; you should find legal representation before taking any action with the website. And, no one here is advising you to open any legal action against the person; that's your choice in terms of determining your case and if you can show actual harm that was caused by the alleged fraud by the individual, and you should find legal representation before taking any action. | This has yet to be specifically decided in the federal courts. The Post Office can set "rules of conduct" for its facilities. Prohibiting photographing is plainly a restriction on one's First Amendment rights, and it is established beyond question that a government cannot issue / enforce a blanket prohibition of public photographing. Someone would have to take a case to court to determine whether this limitation on First Amendment rights passes the relevant level of judicial scrutiny. The rationale (as set forth by the USPS) is that such photographing may be "disruptive". One can perhaps analogize the right to film police with a new-found right to film post office, following from a right to public oversight over the government. DHS gives general guidance of its own (with a pile of redacted stuff), directing you to 41 CFR 102-74.420. Permission is thus required, until the courts find that to be an unconstitutional restriction (I would not expect there to be such a finding). But it is not unthinkable that the courts could at some point so rule. The YouTube aspect of the question is irrelevant: if you have the right, you have the right, and it doesn't derive from nor is it blocked by an intent to distribute on YouTube. | 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. | Bringing fair use into this sounds iffy if you are partnering -- that is a commercial relationship which should be defined. If they did send you a file with their logo for a specific purpose, you can assume that you are allowed to use it for that specific purpose. If they did not send you the file, you can assume that they did not give you permission, or they would have included the file ... | Technically, yes, GDPR might apply. Filming other people does involve the processing of personal data, and GDPR will apply unless this is for “purely personal or household purposes”. But exactly that will be the case for most holiday snapshots or short clips for your personal social media. As far as I understand, you do not have to worry about purely personal activities. Even if GDPR would apply, this doesn't mean it would be illegal. It means you'd need a “legal basis”, such as a “legitimate interest”. If there are just a couple of people in the background of a video, it's possible that their rights might weigh less important than your interest in shooting the video – but that would need a case by case analysis. Your legitimate interest would almost certainly prevail if you need to record a crime to which you are victim. Regardless of GDPR concerns, note that this is just a small aspect of legal concerns. Instead, also consider personality rights copyright (if art or architectural works are visible) / freedom of panorama customs and reasonable expectations of other people These issues will depend largely on the specific country or area you are travelling to. Europe is not homogenous in its perception of privacy issues. For example, consider the issue of dashcams in a car. These are considered to be quite normal in some European countries, but effectively illegal in others. | More generally, can anyone just copy an existing website (without copying the code or images)? Yes. Could I make a website that lets people post pictures like Instagram but call it MyPics? Yes. In general, copyright protects particular expressions of ideas, not higher level ideas or concepts. | If you used some creative work of mine without my permission (I'm the copyright holder, and you have no license giving you permission) then I can sue you to make you stop using my work, to get payment for damages, and to get payment for statutory damages. If you used my work because someone else told you wrongly that you had a license, that's very unfortunate for you, but is no reason why I wouldn't or shouldn't sue you. Obviously in this situation that third party did something badly wrong. I can sue both of you together to make sure that I get payment from whoever has deeper pockets. You can also sue that third party if you think that their lying, or being mistaken, about a non-existing license caused you damages, or if there is a contract or something that makes them responsible. | 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. |
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