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What Happens to Abandoned Infant Citizenship? In the United States, you are considered a U.S. Citizen just by being born in the United States. However, I imagine that there are situations where there is no proof that a child was born in the United States, but it would be reasonable to consider or assume that a child was born in the United States, such as finding an infant in the United States. I know that there are a number of people who do not give birth to their child in a hospital. How do they prove a child was born in the United States, to then give them a birth certificate, therefore, citizenship? Do they trust a mother is telling the truth when she reports her child being born after-the-fact? Who/what agency does she report to, in that case? What happens if an infant within the United States is found, but no witnesses relating to the child are locatable/found, such as the child's mother? Technically, there is no proof/witness of birth. Does this child get a birth certificate? Do they get citizenship? Where are they a citizen of? If they receive a birth certificate, what date were they considered born? Was there some sort of court case that a court ruled that an infant found in the United States is considered born in the United States? | This is controlled by 8 U.S.C. § 1401 which details who qualifies for "birthright citizenship". Including of course the condition mandated by the 14th ammendment, Congress is otherwise free to bestow such citizenship essentially as it pleases by duly enacted legislation. One of the cases that receives birthright citizenship is a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States. So the presumption for young children found in the US is that they are citizens by birth. The law in particular requires positive proof that the individual in question was definitely not born in the United States. Lacking this, or it failing to be found prior to reaching the age of 21 years, they are citizens. For other cases, this will likely end up falling to the courts, who will decide the matter on the preponderance of the evidence. In this case it becomes the burden of the individual claiming citizenship to establish that they are a citizen*. Birth certificates can be filed after birth, and can be submitted as evidence. The laws controlling the validity of birth certificates is locally determined. If there are other birth certificates from other countries, or conflicting witness testimony, then it will fall to the court to decide which case is more likely based on the evidence available. *More accurately the burden generally falls on the entity making the claim about someone's citizenship (their own or someone else's). In a deportation hearing, for example, it falls to the government to establish the individual is not a US citizen. Deporation only applies to aliens, so the defendant must be established as such. | For example, is there a way to search my identity (SSN) in property records and get an official document verifying there are no matching results? No. You can search by name on a county by county basis, however. A certified search result from your county of residence to corroborate you affidavit or declaration and attached as an exhibit to the affidavit or declaration might be worth including (even if it is something of a matter of form over substance). You might also considering attaching a copy of your lease to the place where you reside in New Jersey if you have one. Both of these documents would only corroborate that you don't own what you claim to be your residential address, rather than proving by themselves that you own no real estate in New Jersey. But the authorities you are seeking to prove something to will inevitably have to take you at your word regarding what your residential address is anyway. For purposes of tax exemption in another country, I need to prove that I do not own a house or an apartment in my current state of residence, which is New Jersey. How can I do that? Usually, you would do this by executing an affidavit or declaration under the penalty of perjury to that effect. | Any country can certainly decide who it should grant citizenship status to. There is no international rule that I know of requiring that the recipient be currently a resident of the country granting citizenship. Any country may issue passports to its citizens. | An individual obtains due process rights upon entering into the United States. For a recent write-up on this question, see this piece at Reason. The people Trump is talking about generally aren't being denied admission at an established, legal border crossing; they're coming across wherever they can get through, and only being discovered by federal agents thereafter. Because they're already in the United States, they have due process rights. As for cross-border interactions with ICE or CBP, the extent of due process protections is still an open question. SCOTUS took it up last year, but it kicked the case back to a lower court rather than deciding it. | As I understand it, legal procedure in Common Law jurisdictions (e.g. the UK) is primarily based on evidence given by a person. Paperwork exists to verify that someone has not misremembered something, but even when you have paperwork you need to have someone testify that this is the right paperwork and it hasn't been forged. A piece of paper on its own means nothing. In practice of course the two sides will agree to accept routine matters rather than dragging lots of third parties (e.g. the post office employees) into court to no point. In the case of a letter where you need to prove it was received, the sender will testify that they sent the letter and that the copy they have introduced into evidence is a true copy. The proof of delivery merely shows that the item wasn't lost in the post. If one party testifies that they sent a letter and the other testifies that they merely received an empty envelope then someone is lying, which is a crime meriting further investigation. | Expungement rules and effects vary greatly by state. Good reading on the question can be had here, with notable exceptions to expungement here. Of particular relevance to this question: In some states, individuals who want to work as public school teachers, corrections guards, or police officers should expect that their employers will have access to expunged records. Agencies reviewing applications for professional licenses, including law, pharmacy, or medicine, may also have access. Even in the most favorable circumstances an expungement can't destroy or seal non-government records. For example, if a newspaper reported on a charge or conviction there is no way to eliminate that public record. The mechanics of expungement can also break down. For example, in Pennsylvania it's up to the applicant for expungement to list all the government agencies and entities on which the Order for Expungement should be served. If they forget or aren't aware of some agency that has records covered by the expungement then those records won't be destroyed. (Though if they are later discovered the Order can be served on them and they are still required to comply.) | Community Service Announcement A person going missing is serious. Many thousands of people disappear every year. In most cases they return or make contact with friends or family after a short while, however, a significant number are never heard from again. It is a MYTH that you need to wait 24 hours before telling the police of a missing person. Alert the police as soon as possible. The quicker the authorities start to look for them the more likely there will be a happy outcome. Presumed death All jurisdictions have rules on when a person can be presumed dead, that is, a death certificate is issued notwithstanding the absence of remains. In the united-states this is a matter for state law unless there is a reason for the Federal government to be involved (e.g. military personnel missing in combat). In most, a court or the registrar can decide that a person is probably dead and issue a death certificate/grant probate. People who are known to have been in the area where a tragedy occurred may be declared dead shortly after that tragedy even though no remains are found. For example, people on the Titanic who were not rescued by the Carpathia, people in the 9-11 attacks, the people on MH17 were all issued death certificates shortly after the respective tragedies. Alternatively, at common law (codified by statute in some jurisdictions) a missing person may be declared dead if: The person has been missing for an extended period, most commonly seven years Their absence must have been continuous and inexplicable (e.g. the person did not say they had found a new job and were moving far away) There must have been no communication from the party with those people most likely to hear from them during the period the person has been missing There must have been a diligent but unsuccessful search for the person and/or diligent but unsuccessful inquiry into their whereabouts. Coming back There are interesting legal implications of a person who has been declared dead coming back but they are outside the scope of this question. Please ask another question if you're interested. | The short answer, is "it's complicated". I can think of situations where any of the above options you listed might be true. (Another possible option is "The baby has no nationality at birth", and would therefore be considered stateless, and would fall under the birth country's rules regarding statelessness). To find a definitive answer for your specific situation, I would start with Wikipedia: British nationality law Spanish nationality law Although Wikipedia is not authoritative, it does give you a good overview of the situation for both countries. There are then links to authoritative sources in each article. In the case of a British and Spanish couple, their baby would probably be both British and Spanish at birth. Additionally, if the baby is born in a country (such as the US) which follows the jus soli rules, then the baby would also acquire the citizenship of their birth country. |
What does the copyright in a dissertation protect exactly? I am a PhD student and I was recently told that unless I publish the content of my dissertation, my university will not be able to freely conduct research in the same research area after I graduate. This is because I will supposedly be the only one who can make derivative works from the dissertation. I was quite startled by this and I was wondering if it is true? | This sounds completely incorrect to me. First, subsequent research is not normally a "derivative work" for the purpose of copyright, since copyright doesn't protect your ideas but only the particular form in which you have expressed those ideas. Second, as the owner of the copyright, you can permit anyone to make any sort of copy or derivative work, or sell, assign, or license the ability to do so to other parties, without regard to whether the work has been published. The real reason that nonpublication of your work would stifle further research is that researchers will not have access to it. | This would likely be considered a derivative work. You would need permission from the copyright holder to make it, especially if you intend to distribute it for profit. | Ideas (methods of playing, game mechanics, strategy, goals) cannot be protected by copyright. But any part of a creative work can. So, no copying of drawings, patterns, images, sounds, or the element. I suppose copying the software code is not an issue here, but it can, obviously, also not be copied. And nothing in your game can look like someone's else trademark. | Section 108(a) is the most useful for an infringer who posts an entire copy of a protected work in public. Subsections(b,c) require that the copy not be made available outside the premises, which precludes internet posting; (d) requires a user request to make a copy; (e) applies only to items that are off the market and transferred to a specific user; (h) allows more copying in the last 20 years of the period when a work is protected (not applicable here). Subsection (a) allows a library or archive to make one copy of a work, as long as there is no commercial advantage to making the copy, the library is relatively public (it might restrict access to bona fide researchers), and a copyright notice is included: this has the fewest restrictions on copying. The internet downloader is not a library or an archive, so the downloader is not granted any permission under 108 to make a copy. Under 108(a) a library can make no more than one copy available, but every uploading or downloading is "making a copy". A library would be contributorily liable for the illegal downloadings of their "customers". It is difficult to know exactly what one can get away with under 17 USC 107 a.k.a. "fair use". I am fairly sure that posting a copy of a contemporary book in the open is not "fair use" even if the intent is to make it possible for dummies to study chemistry: such copying is not at all transformative, totally unlimited, and provides a significant market substitute for the protected work. | The copyright Act gives copyright owners certain rights: right to reproduce the copyrighted work right to prepare derivative works based upon the work right to distribute copies of the work to the public right to perform the copyrighted work publicly right to display the copyrighted work publicly The audiobook you create from a copyrighted work is a derivative work (perhaps it is a reproduction; for the analysis it does not matter). It works the other way also. A derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works. It is a violation of the copyright to create derivative works without permission. The commercial nature of the derivative work does not come into play in this situation. Commercial use might be an issue in a fair use defense, but fair use is not applicable based on these facts. Fair use might apply given facts such as: Ten students own copies of the printed work. These students are blind. A teacher reads the book and provides the recording to the students. | We cannot and will not try to answer "what should i do?" questions here. Nothing in the linked page makes me think that the views expressed in the previous question here are any less correct. They certainly have not changed the law on copyright. The linked page is an open forum. Many of the posts o9n that thread express ill-informed and incorrect views of how copyright works, and what it protects. Several google searchs find no trace of the suit described in the thread. Note that in US law no copyright claim may be heard in a small claims court, except for the federal copyright office's small claims tribunal. I am not sure if the same is true in Canada, but it might be that the suit was simply dismissed on such a basis. In any case small claims cases do not establish legal precedents in Canada or the US. Of course it is true that anyone can sue over almost anything, even when there is no valid legal basis for the suit. If the suit had been won by the claimant, or even settled that would be larger grounds for worry. A person seriously worried over publishing a book such as that described in the question might do well to consult a lawyer with relevant expertise. A single consultation plus an opinion letter might not cost very much. But 17 USC 102 (b) is very clear that copyright never protects facts, as are the copyright laws of other countries. Note that reports of the events of sports matches are not protected by copyright, although expressive language and analysis may be. 17 USC 102 (b) reads: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Article 2 paragraph (8) of the Berne Copyright Convention provides that: (8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information. There seems little room for copyright protection of the moves of chess games. | The copyright owner is whoever first put the material in fixed form. It is most likely that that is the note-taker (you). It is possible (and highly unlikely) that the lecturer read (had memorized) a prepared script and you copied that script mechanically, and if that were the case, he would hold copyright and you infringed by making a copy. Typically, a note-taker follows the logic of a lecture and expresses those ideas in his own words (the notes do not match a plausible verbatim class lecture). Since expression is protected and ideas are not, that makes it most likely that you would prevail in a suit. The equations are almost certainly not protected. | "Plagiarism" is an academic concept, not a legal one Plagiarising the work of another without attribution is academic misconduct in every reputable academic facility and can lead to disciplinary action. But it's not against the law, and you can't be sued for doing it. Copyright violation is against the law You violate copyright when you copy or make a derivative work from the copyrighted work of another without permission or without an exemption under the law. In some jurisdictions, authors and artists have moral copyright, which operates alongside proprietary copyright and gives certain rights, including the right of attribution and the right for their work to be treated respectfully. In those jurisdictions, even if you have the copyright holder's permission, you must still respect the moral rights. Let's make some things explicit by considering a particular artwork. Say, this one: This particular piece is not subject to copyright because a) it was created before there was such a concept, and b) da Vinci died in 1519, so if there had been a copyright law, copyright in this work would have long expired. So, you can make as many copies of this as you like. Now, let's consider what the situation would be if Leonardo's alchemical pursuits had been more successful and instead of dying in 1519, he died last Tuesday. If you want to make a copy of this image, you must have Leonardo's heir(s) permission or be operating under an exemption under copyright law in your jurisdiction. When you train your AI, you will need to make a copy of the image. Do you have permission? Do you have a relevant exemption? If you obtained your images by scraping websites then the answers are no and (probably) no. Whether the image has metadata identifying the author is irrelevant to answering the questions. Whether there is any way of identifying the artist is also irrelevant - you still need their permission even if you don't know who to ask. If your AI, when prompted, generates an image that is strikingly similar to a copyrighted image it was trained on, that is a derivative work and you need permission for that. Under current law, the programer(s) are likely the copyright violators rather than the users of the AI. |
Contract with lack of complete by date? I had a medium-sized job contractor (< $10k) verbally agree to a complete-by-date of 2-3 days from the day he came out with a quote. The contract he sent lacked any sort of "complete by" date, or any indication of when to expect the work done, and I mistakenly signed it (stupid, I know. He had such good google reviews I thought his word was trustworthy). A month later, after multiple calls and unfulfilled promises, the contractor never showed up, and I tell him I consider the contract null and void for not completing our verbal agreement date. Of course he is not happy and is threatening me to take me to court, claiming that if the contract didn't specifically state a completion date, I'm out of luck. I tried to reason with him, saying that he hasn't spent any energy on completing the job, so it's a no-harm/no-foul situation. Let's just shake hands and walk away, but he is now insistent on either completing the job or taking me to court. On the one hand, I have his verbal agreement that he denies, and on the other hand, I have a written contract that states no complete by date. What would hold up in the court of law? Is there any sort of implied expiration date for a contractor's completion for medium size contractor jobs (< $10k)? Will my verbal complete-by date hold up in lieu of any written complete-by date? | Is there any sort of implied expiration date for a contractor's completion for medium size contractor jobs (< $10k)? Absent a provable deadline, the question would be whether the delay is reasonable (or habitual) under the circumstances. The contractor's presumption that he can do whatever he wants regarding unspecified aspects of a contract is inaccurate. Those matters can still be decided on the basis of contract law and/or under principles of equity. See also the Restatement (Second) of Contracts, which is frequently cited by U.S. courts, at §235(2) and §243 regarding non-performance of a contract. Will my verbal complete-by date hold up in lieu of any written complete-by date? It depends on each party's credibility. Proving that he essentially ignored your follow-up requests will make it harder for him to credibly refute your assertion about the verbal deadline. In case none of your follow-up efforts (or none of his responses) are in writing or if he denies that you repeatedly called him, you might want to subpoena his phone service provider --if the matter goes to court-- and file as evidence the resulting production of records. | client must provide me a suite in his hotel that costs $10K for a night based on a contract we held in the past (the contract has expired as of 31-Dec-18 but he never rendered the service because I didn't ask for it. The contract mentioning $10K has expired and is no longer relevant. You had a chance for a $10K suite before 31 Dec 2018 but you did not take it. There is no obligation on the client to keep this chance for you indefinitely. What happens now ($6K suite) is a completely new contract you have accepted. You are not entitled to anything in relation to the $10K suite from the past opportunity. | It's based on the date the letter was received, not the date it was mailed. Since it's certified, it's not received until somebody signs for it, which starts the clock. The actual date isn't possible to calculate from the information on hand. The delivery receipt would have the date it was signed for, it would be prior to the end of the 30th calendar date from that date. Edit... Your new "twist" results in void service and doesn’t require action by the HOA. Certified mail is a service of the USPS, hand delivering or email does not legally count as "certified mail". If a contract requires service by a specific method (e.g. certified mail), then delivery by any other means is invalid and of no effect. | In principle, a verbal contract is just as binding as a written contract. The catch is that it can be difficult to prove what was said. Unless you have witnesses, it would just be your word against his. As DStanley says in the comments, if you have proof that you paid half -- canceled checks or receipts or whatever -- that would be evidence that there was some sort of agreement. Whether your daughter is allowed to drive the car on a specific day depends not just on who owns the car but who has legal custody of your daughter. If a friend of hers said that it is okay with him for her to drive his car to a wild party where there will be drugs and an orgy, the fact that he has full title to the car does not mean that her parents have no right to tell her she can't go! You didn't say what the custody arrangements are, but if you have full custody or shared custody, this would give you certain rights to tell her what she is and is not allowed to do. | Am I right to assume that once the notice has been issued to the other party, me and the client still work on the project for 14 days until the notice period expires and that the client is required to pay for the work that has been done in those 14 days In the absence of any other wording to the contrary, a contract continues as normal up until the day of termination. The fact that a party has given notice to terminate merely establishes the termination date, unless the notice clause says something different. Note that there is nothing to stop you drafting a clause which explicitly states this. Indeed, it is often useful to explicitly state things which are already implied as it helps to avoid any dispute from arising in the first place. | Bill and Jane are free to enter into a contract where, among other things, each provides valuable consideration; in this case Bill provides valuable lawn mowing services and Jane provides valuable money. In week No 1 they have negotiated the terms and the contract is complete when Bill mows the lawn and Jane pays the money. If Bill turns up next week without Jane's instruction then there is no contract and Jane does not have to pay anything; I don't think this is what you are asking but I include it for completeness. If it is understood that this arrangement continue week after week then either there is an ongoing contract or, more likely, a series of independent contracts. If there is an ongoing contract, then it can be renegotiated but it cannot be changed unilaterally by Bill. That is, he cannot unilaterally increase the price to $2. If there is a series of contracts then the terms of each of those contracts will be the same based on the course of dealing. Basically, the parties have accepted over a long period of time that the rate for a mow is $1 and Bill would have to get Jane to accept the revised rate before he mows the lawn. For your example, Jane owes Bill $1 but if she wants him back next week she will have to agree to Bill's rate. | You asked the rep about how to change some details on your account, and asked him about the cost. It is clear from the recording that you are not changing anything right now. I can't see anything where you state that you want to enter a contract right now, I can not see anything where the rep indicates they want to enter a contract right now. In other words, no contract has been formed. The rep did tell you that a name change will not increase the phone plan price. That was a promise. It was a verbal promise, and you have evidence that the promise was made. Your contract will determine whether the company is bound by such a verbal promise. If you change the name on the contract, with nobody mentioning a price increase, and the price increases, you can surely complain that you were misled and wouldn't have changed the name if you had known about the price increase. However, if you get told that the price will increase before the name change, and you quote the previous promise, I don't think that will force the company to allow a name change without price increase, because your phone conversation didn't create a contract. | The written document is given very high priority, so parties will be held to what is in the document. Both parties sign at the bottom, as a way of signalling their agreement with the terms specified in the document. If conditions are added or subtracted (by crossing out), especially with pre-printed forms, the "customer" (person who didn't write the contract) can initial such modifications, as a way of clearly signalling that they indeed agree to the deletion of such-and-such clause. Since both parties have a copy of the signed agreement, this is not strictly necessary. The potential issue would be that an unscrupulous person could cross out a clause after the contract was signed, and claimed that they aren't bound by that clause. A comparison of the two copies would then reveal that the unscrupulous person was attempting fraud. There is nothing special about handwriting in or crossing out conditions, except that it poses a potential evidentiary problem as to what exactly was agreed to, if for example one party threw away their copy and then maintained that the crossed-out clause had not been crossed out. (So, keep your copy). In case you are proposing a scenario where one party is unaware of a change, i.e. at the very last minute Smith crosses something out and signs it, and Jones did not see that happen, then both copies would be the same and Jones would be legally bound to what's in the paper. Smith should announce to Jones that a clause was being deleted. We might suppose that there are innocent reasons why Smith made changes without making an announcement to Jones, in which case the parties do not have an agreement. There may be amicable ways to deal with that situation, but push could come to shove, in which case the written form of the document is generally taken to be the most important piece of evidence (though not always the only admissible evidence, unless you're in Colorado, Florida or Wisconsin). |
How to access US court proceedings if not a US citizen? How do you access US court proceedings/records if you are not a US citizen? I've tried using the Pacer website, however, they require a verification code, which is posted to you (if you live in the US) or a US bankcard for immediate access to searching. Is there any other website? How do non-us press access court proceedings for example? | I run CourtListener.com and RECAP and I hear this question from time to time. It depends a little on what kinds of data you're after. Some folks need court data in real time as it's published by the courts, other folks just want to follow particular cases, etc. I think your options are A commercial provider. Maybe Lexis or Bloomberg? I admit I don't know these options particularly well, but it's probably an option. You could use our services, depending on your needs. In the RECAP Archive, we have millions of documents. We get a lot of these from journalists that use our RECAP Extensions, so if it's stuff that's in the news, it can work particularly well. We also do bulk downloads of court data for researchers, but I'm guessing that's probably not your use case. I think the final option is to use a gift card from Visa or another provider. I think if you have a friend in the US, you could buy one, send it there, and they could send you photos of the card to help you out. If this is to gain PACER access and if you need an American address, we could probably lend you our address (we're a non-profit, this is part of our mission, and not a big deal). | The picture shown is not fraudulent or problematic. Fraud involves using a false representation (or concealing a fact) in order to obtain a result that would not have been possible to secure without the misstatement or concealment. No one is using the photograph of the exterior of a passport (which is identical for all U.S. passports) to obtain any immigration benefit or for a non-U.S. citizen to obtain citizenship. All that is being done is visually associating international travel (which would usually be done using a passport) with a credit card that can be used internationally. Since a passport is a federal government document, it is also not protected by trademark or copyright laws -- the exterior, generic design of a passport is in the public domain. It can't be used for a purpose to mislead someone about citizenship or immigration benefits, but otherwise, it can be used for any purpose. I suppose that you could be interpreting the photograph (on a Spanish language speaker's facebook feed) as implying that by getting this credit card you will also get a U.S. passport and cool sunglasses, but that would be a patently unreasonable assumption in this context, particularly in light of the clarifying caption at the bottom, and, of course, many people who speak Spanish as a primary language have legitimate U.S. passports (including more or less all passport holders in Puerto Rico). You could also, I suppose, be interpreting the appearance of the passport as some sort of implicit government endorsement of the product when the government does not, in fact, endorse the product, but again, nothing in the advertisement that I can see that can be reasonably interpreted as conveying that message. | These are some thoughts about the state of affairs in the US, I do not know how it works in the UK. In the US it seems to be a legal gray area. Gray enough that I do not think any lawyer could say for certain that the use of the data is legal. The data is stolen. If possessing stolen property is illegal then possessing this data is also likely illegal. Of course experts disagree, Stuart Karle, an adjunct media professor at Columbia University and former general counsel for the Wall Street Journal says: ...the documents have been published by the hackers, they are now public by virtue of being put on the Internet. But Barrett Brown was charged with trafficking in stolen authentication when he forwarded a link to some stolen emails. He signed a plea for acting as an accessory after the fact. He spent more than a year in jail while they sorted it out. In the US there is no law banning the download of hacked documents. In fact Bartnicki v. Vopper 532 US 514 (2001) stands for the rule that journalists can report on illegally obtained information. But contrast that with the Barret Brown prosecution! And decide where a data scientist fits. Also there is the question of whether an illegally recorded conversation is of the same "illegal" nature as hacked personal information. | What Big Tech is doing is spending a lot of money on lawyers and appeals – doesn't matter if it costs millions if you can make money in the meanwhile. Facebook stores a lot of user data in the US. Initially, this was allowed because the US was recognized as offering an adequate level of data protection under the Safe Harbor and later the Privacy Shield Framework. Then Schrems I and Schrems II happened and the adequacy recognition was ruled to be invalid. Does Facebook pull back their user data? No. The GDPR offers alternative reasons why you might process data in foreign countries, such as “standard contractual clauses” (SCCs) or “binding corporate rules” (BCRs). Now, Facebook claims that they are using SCCs. Is this valid? Almost certainly not due to the issues of US law analyzed in the Schrems II case, but it can take years for the next round of court cases to work its way through the system. And when Facebook's use of SCCs is ruled invalid they will probably try BCRs next, and once that is over a decade will have passed and the US might actually have achieved an adequate privacy level by then. You do not have Facebook-style money to spend on lawyers and endless rounds of appeals, so you should avoid legally risky things such as outsourcing data processing activities to companies in the US (this doesn't mean you can't be compliant if you are a US entity). I mentioned adequacy decision previously. There is a list of countries that the EU considers to be sufficiently safe. Currently, the more notable countries involve Canada, Israel, Japan, New Zealand, Republic of Korea, Switzerland, and the United Kingdom, in addition to EU/EEA countries of course. If you want to process data in a location that is OK for both the UK and the US, then looking at companies in one of these countries is a good idea. For example, if most of your users are in the US but you would like your servers to be in a country with an EU adequacy decision, then looking at Canada could make sense. Even outside of this list, you can process data if you implement additional safeguards via SCCs. However, this requires a case by case analysis of the legal environment in that country. One problem with the US is that it has national security laws that impose requirements on companies in a manner that is incompatible with SCCs. A company bound by these US laws cannot enter into such a contract where it guarantees the privacy of your user's data. Countries other than the EU have much more tedious data residency laws. The GDPR does not impose any data residency requirements in the sense that data must not leave a particular country – you just have to ensure that the data is properly protected. In contrast, Russia and China have real data residency requirements that are fundamentally incompatible with the GDPR. | 1) I saw that no where during registration you actually tell what your work does, you only fill up details, how exactly is it protecting you if you don't specify? For example I have a computer program/website that do something, how exactly the copyright protects you if you did not specify about it? A copyright protects a particular single expression of an idea and versions that are derived from that particular expression. When you copyright software you have to provide approximately 50 pages of printed code so as to make it possible to distinguish your code from someone else's and you generally deposit a full copy with the Library of Congress. The ideas in the computer program are not protected. You only protect the exact language of the code in the computer program and other programs that use that exact language as a starting point. If someone reverse engineers a way to achieve the same process or outcome with different code language (or even comes up with exactly the same code language without ever looking at the language used in your code) then their software does not infringe on your copyright. To protect the ideas in a computer program you need a patent. 2) If I am a non-us citizen, do I need to select in State "Non-US", or leave it blank on "Select"? Because it allows me to complete registration with either. State "Non-US" refers to where you are located, not to your citizenship. If you are located outside the U.S., then you select "Non-US" and if you are located in a U.S. state, but are a non-citizen, you select the state where you are located. The answer does not affect the validity of your copyright. It is used for economic statistics and to determine where the copyright office should locate its own offices to be maximally useful to the public. | FDIC Regulation 500 prohibits discrimination in making loans on the basis of "National origin" but not on the basis of immigration status. This story from The Nation says that Bank of America is denying accounts to non-citizens, and arguing that it is legal because of increased risks, although there are current court challenges to this. Perez v. Wells Fargo Bank, N.A is a case now pending challenging loan denials based on immigration status. This has particularly come up in regard to DACA recipients, rather than people with LPR status. The US "public accommodation" laws probably do not apply, as a bank is not usually considered a place of public accommodation. Any specific state laws prohibiting discrimination on the basis of immigration status might apply. In short, this is an issue still not clearly settled. There seems to be no law or regulation requiring banks to ask for citizenship information, much less to deny accounts based on it, and it would be well to seek a bank with a different policy if possible. The above is very US-specific. Many countries do limit banking access based on citizenship, i understand. I am not a lawyer, and this is not legal advice. Before challenging any bank action, you may well wish to seek advice from a lawyer. | Isn’t this discrimination since nationals do not have to apply? Yes it is discrimination. But that does not make it illegal. In fact discrimination is in general legal unless it is based on some characteristic which is specifically forbidden as a basis for discrimination (e.g. race). And in general, all of the countries in the world allow and enforce discrimination based on nationality; for example non-nationals will not be able to run for Head of State (and additional restrictions may apply). The EU members allowing similar rights to the citizens of other EU countries is the exception, not the rule, and once the UK stops being bound by EU treaties it can impose its own legal system on non-nationals. And while EU treaties give lots of rights to EU member-countries citizens, they still allow for discrimination based on nationality (for example you cannot run for Prime Minister or MP of Spain as a foreign EU resident). Isn’t the UK Government breaking the law? This could go against EU treaties, but the point is that the UK will no longer need to comply with them. is the UK Government responsible for the harm and distress caused to the individual health and mental wellbeing? No, the UK Government is not responsible if you do not like its laws to the point that it affects your health. Is there any ground for challenging this scheme legality in court? Unlikely. In any case it will not be because you are frightened by it, any challenge would be in the grounds that the government actions act against some other UK law. For example, if the decision to make such a list was made by the Executive but it contradicts some law approved by the Parliament. If this list does not contradict any law, then there are no grounds for challenging it. Would there a breach of my human rights if I was not to apply for settle status and then subsequentially got deported (taken away from my children, home, business, etc.)? How about if I was refused, re-entry or access to public services (NHS for example)? If you do not apply you will not have any evidence that you were settled, and the government could legitimately believe that you are irregularly in the country and try to expel you; you probably would have an opportunity to prove that you were settled even if you were not in the list but that could be way slower, more expensive, riskier and stressful than just registering now. Get this clear: that settled person list is to help you to show that you were a UK resident before Brexit and to give you the protections that are being negotiated between the UK and the EU for expatriates. Probably you could choose not to enlist, but it would work against you. | Expunction may be possible for instance if you are acquitted, later proven innocent, pardoned, and various other things that fall short of being convicted and doing the time. The entire law is here (Texas code of criminal procedure 55.01). There is also the option of an order of non-disclosure, overviewed here. A requirement for such an order is that you were placed on and completed deferred adjudication community supervision, which from what I can tell is not what happened. "Background check removal" may range between simply taking your money and doing nothing, to doing what you could do yourself to get free of traces via radaris, intelius, spokeo, and so on to "request removal" from that web site. This will not make your record unavailable, because these websites don't have any special powers to reach into and manipulate state records. |
copyright question (constructs and presentations) I got a threatening email from someone today alleging copyright infringement on a website that I built as a personal project back in 2013 to crowdsource the latest trail data from the long-distance hiking community. This person is an owner of a backpacking gear company which apparently owns the rights to the AT Guide, which is a popular resource of trail data among hikers. They are claiming that the part of my site which dynamically builds a PDF out of crowdsourced trail data is unfairly borrowing some visual conventions which can also be found in their guidebook. (FWIW, I make no money from this site; it was my attempt to give back to the trail community.) In their email, they specifically point to four aspects of the PDF which are similar to their printed guidebook. I've highlighted three of them in this screenshot. They're claiming copyright on: 1) the way of representing distances between shelters, 2) the sideways orientation of the elevation profile, 3) the icons, and 4) the convention of representing direction and distance for waypoints that are off-trail (e.g. "0.1e" = 0.1 miles east of the trail). I'm new to copyright law. Can you really copyright such minor visual things? Their email specifically says that the "contructs [sic] and presentations" are protected by copyright. FWIW, I checked the US copyright database for the author's name (the one who allegedly has had the copyright since 2008) and nothing came up. Since I make no money from this site, I'm reluctant to spend time/money fighting this. But if they're just trying to bully me using legal jargon (but no actual legal standing), I'd like to push back. Anyone been through this sort of thing before? Thanks for any advice! | THE FOLLOWING OPINION IS NOT LEGAL ADVICE Based on your screenshot and description, I don't see anything infringing. If the data you are using is from your own sources, and what you show is not a scan or photo of their guide, and your layout is thus unique in specifics (not a direct copy), it wouldn't be an "infringement" as far as copyright law is concerned. Things you cannot copyright: A font (except as a computer font file but not as used in a document). A concept (a main issue here). A idea for a "way" or "order" to display data. Mere data or facts can not be copyrighted nor can ideas. Anything sourced from the US government (trail data, topos, etc.) Something not in printed, physical, or recorded form. That is, the copyright only extends to those things as they are realized in print, or as a recording for audio or video, or a physical statute, etc. A live performance is not copyrightable for instance, nor are ideas. The Law: In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. For instance, an icon of a TENT is the common form (like a font) of indicating a camp ground. They may be able to copyright the specific instance of their tent icon, but they cannot prevent you from using some other triangle to represent a tent for a campground. And in facts yours is completely different. Displaying data a particular "way" like 1e for 1 mile east is not copyrightable when it is common for the type of guide. It's just data. CONCEPTS AND DATA ARE NOT COPYRIGHTABLE, only the ACTUAL specific page or work in total as rendered. More below, but your page seems totally different. OTHER FORMS OF IP PROTECTION Now, just because some intellectual property can't be protected by copyright, does not mean it is a free-for-all. For instance, a "way" of doing something can be PATENTED (process patent). And "ornamental design" can be given a design patent. A logo or brand name can be given a trademark. Here's an interesting court ruling on the subject of data display. Basically it can't be an abstraction/concept. It has to be in a definable, physical, novel form. NOTE: it has been possible to copyright a "look and feel" but that applies to software, not static printed media. And the courts have been reversing on that a lot as time goes on. BUT WAIT...THERE'S MORE So, I am going to GUESS that you are talking about AT Guide by David Miller? It's pretty rich of him to claim copyright over the "manner of the display of data" when APPARENTLY he is using concepts of data display as described by EDWARD TUFT So, LOL. Is this the guide they claim you are "copying"?? THESE AREN'T THE ICONS YOU'RE LOOKING FOR Okay, so let's go one by one and their claims against you: 1. The way of representing distances between shelters "The Way" of presenting something is not copyrightable, only an expressive or final form. Some forms of "organization or selection" that may make a work in total copyrightable, but not on their own in isolation. 2. The sideways orientation of the elevation profile Presenting some elements "sideways" is not copyrightable (WTF LOL OMG RUS) the same as number 1. Turning an element sideways does not, on it's own, rise to the level of "creative or non-obvious." 3. The icons Your icons are completely different. If you copied and used his ACTUAL icons, you might have had some issue, but your icons are not even remotely the same. Using icons to indicate services or features is COMMON. Not copyrightable. http://www.dmlp.org/legal-guide/works-not-covered-copyright In general, copyright does not protect individual words, short phrases, and slogans; familiar symbols or designs; or mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents. (However, copyright protection may be available, if the artwork of the symbol or design contains sufficient creativity.) 4. The convention of representing direction/distance for waypoints. Again, "The Way" of doing something is not copyrightable, nor is data or facts. 1.1E or 2.3NW are common are they not? I've seen similar treatments elsewhere. It's "obvious and not novel." FINAL FORM, EXPRESSIVE FORM is copyrightable NOT FORMATTING CONCEPTS. Basically, he is saying something along the lines of "I'm formatting paragraphs with a double space, so you can't." The "actual" icon drawings he used are copyrightable. Your icons are clearly different. I assume your mountain-top profile line is taken from some publicly available survey source? So long as you never used a scan of the actual line he uses (and even then?), because he cannot copyright the mountain top profiles themselves! DOES HE EVEN HAVE A VALID COPYRIGHT? For that question, I'd say yes with limitations. His work is a compilation of data. Data can not be copyrighted, but the unique arrangement can in context of the work in total. These three conditions must ALL be present (from http://www.rbs2.com/ccompile.pdf): The collection and assembly of pre-existing material, facts, or data. The selection, coordination, or arrangement of those materials The creation, by virtue of the particular selection, coordination, or arrangement of an original work of authorship. So It seem to be that his guide meets these, but his copyright is for his work in total. You are NOT using his data. You are using your OWN data. Based on my reading of Key vs Chinatown Today you are not even close to infringing. You are doing your OWN selection, and your OWN arrangement. It does not matter that you may be using some similar typographic or charting conventions. Those cannot be copyrighted. You are doing your own thing, and "similarity is not infringement." SEARCH AND YOU WILL FIND On the subject of the copyright, here's the copyright on AT guide: https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?Search_Arg=A.T.+Guide&Search_Code=TALL&PID=FgMjtJ244OxoFULrVoob_CEI8bc_M&SEQ=20190506230418&CNT=25&HIST=1 If the link doesn't work due to expiration or a cookie, it should look like this: It's a matter of using the USPTO search engine "its way" — it's not Google and requires specific search strings. Looks like the assignee or owner is https://antigravitygear.com ? Did THEY contact you or David Miller? Or did they claim to be an attorney? I'd love to see the email. Attorneys don't email dunning letters, by the way (though they may if it was a DMCA takedown request I suppose, but I still doubt it.) If it was an attorney it would be via US mail on attorney letterhead. To the best of my knowledge, you can't file proof of service on an email, it has to be USPS or trackable. This means the guy that made the other PDF is annoyed or whatever. If he claimed to be an attorney, that's VERY illegal if he's not. And one final note: Just being non-profit does not absolve you of copyright infringement. But as I said, I see no infringement here. The other answer that asserted these are covered under "works of art" is not withstanding. There is nothing "expressive" about Miller's guide. Also that other answer cited a source for AUSTRALIAN law, not US. Mere typographic elements do not rise to "an expressive work of art". A mountain profile that is nothing but a illustrative line based on data also does not. | It depends on what information you are sharing, how you got it, and what rights the business asserts over the information. For example, if it is content created by the business and they claim copyright protection you can only use it without their permission in accordance with Fair use exceptions. If you obtain the information through some limited/conditional access agreement you would be subject to the terms of that agreement. As always: If you want a legal opinion specific to your use case you need to consult a lawyer in your jurisdiction. | However, this uses the text "rights in an invention"; does that cover copyright? Yes. (Is this the correct law?) It certainly seems to be. Does "Relate … to the employer's business" cover the entirety of software engineering, or just the particular software engineering my employer does? Imagine that you work for a company that writes trading software. In your spare time, you develop a photo editing tool. Do you think a court would find that your project "related to the employer's business"? I do not. Or does my employer own copyright on everything down to the love letters I write? Google does not own everything their employees create; they only claim to. If someone challenged them on it, a court would decide, and probably not in their favor. | First off: Legally, everything is copyrighted anyway. Licensing is not at all necessary. Hence, even if a court would disagree with # SPDX-License-Identifier: Apache-2.0, that would just make it closed source. Having said that, the law generally doesn't bother with trivialities such as "file headers". Any commonly accepted way to state the copyright and license terms is OK. Your LICENSE is such a common convention. If you want to avoid all doubt what is covered under that license, put a reference to that LICENSE in each header. If you have just five files in one directory that are all licensed the same, I wouldn't even bother with that. Again, the default position is that everything is closed source. | 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. | 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. | The code is copyrighted. You are not given any permission to use or copy any part of it, nor to create a derivative work based on it. There is no way for you to "make the copyright null". The code was copyrighted in 2005, and the copyright will not expire until 70 years after the death of the author, under US law. The period would vary in some other countries, but in no country that I know of will it expire in the next few years. That the author is dead, or the publisher out of business, does not change this legally. Someone, probably the author's heir, or perhaps whoever bought the remains of the publisher's business, will own the copyright. However, the ideas and programming techniques shown and discussed in the book are not protected, and you may use them freely to write programs, commercial or non-commercial. You need not even acknowledge the book as a source of ideas, although to do so would be nice. Of course, since the author is dead and the publisher not active, if you were to infringe the copyright by copying code from thsi book, there is a reasonable chance that no one would notice, but if someone did notice, the current owner of the copyright could sue you for infringement, and could perhaps win sizable damages. It would be safer to write your own original code using only the general ideas from the book. In future, do not ever assume that you can just take someone else's code (or other creative work, such as a book) and reuse it without permission, unless it is in the public domain, for example because it was published before 1923. | Both the displayed site (including all text and images) and the html, css, javascript and other code that generates the display are protected by copyright. This is true in pretty much every country. You would not be able to reuse them lawfully without permission, unless an exception to copyright applies. If no exception applies, and you have not obtained permission, this is copyright infringement. In most cases copyright infringement is treated as a tort (a civil matter), not as a crime. This means that law enforcement generally will take no action and have no interest in such a situation. The copyright owner could sue for infringement, and possibly collect money damages. In the US, statutory damages can be as high as $30,000, or up to $150,000 for "wilful" infringement, or as low as $750 (per work infringed). Or actual damages can be collected instead. In other countries, actual damages plus costs of suit are more likely, but the rule can be different in each country. The possible exceptions to copyright vary significantly in different countries. In the US the major exception is Fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? and I have a question about copyright. What should I read before I ask it? for more information In general short snippets of code can probably be used under fair use, but substantial parts of the code or the displayed site are less likely to qualify as fair use. And if it is illegal then why are there so many legal open source or paid software and applications for cloning of website like httrack, cyotek, webcopy etc? Most of these tools have legitimate uses, including learning how a site is constructed without distributing copied content; and cloning or partial cloning of a site with permission. Even if the tools were mostly used for unlawful copying, that might well not be a high priority for law enforcement, and cross-border law enforcement (which this in many cases would involve) is often much harder for the police and other authorities. |
Recording Conversations with the person on in already recorded line Conversations with the person on an recorded state line, When you call state officials and you’re already on a recorded line and you tell them that you’re recording the phone call also, and they tell you it’s illegal to record ,how is this possibly illegal for me recording if they are already recording you? | 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. | 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. | 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 | No, nor can I request a copy of your tax return. See 5 USC 552a. Record maintained on an individual are not subject to disclosure. | If such conversations are reported, it can place the suspect in a dilemma. Consider a man who appears to have overdosed on illegal narcotics. He is taken to the hospital, and the doctor asks what kind of drugs he took, in order to plan his treatment. If the man thinks that what he says could be used to prosecute him, he might lie to the doctor. Then he would not receive proper medical treatment, putting his health at risk. Lawmakers or police authorities might decide that it is better for society for people to always be able to speak freely to their doctors and receive proper treatment, even if it means that it will sometimes be harder to prosecute criminals. That would be one possible rationale for a rule like this. | This may not be the answer that you're looking for, but my mother always told me the best way to take control of a conversation is to ask a question. Am I under investigation? Did you just try and interrogate me without reading me my Miranda Rights? I'm not contracted with your organization, so what are your intentions? | Is this legal for the county to enforce? Yes. And can I sue if they try to enforce it? You could, but you would very likely lose your lawsuit. A more fruitful approach would be to go to the county planning board and seek a variance to permit you to do what you want to do. | As stated in the answer to What is considered "public" in the context of taking videos or audio recordings?; if either of the participants is in Australia than unless all parties have given consent then the recording is illegal. Notwithstanding its legality, property in the recording vests in the person who made it. There is no law against him keeping it. There is no law against him publishing it unless the material contained is offensive, hate speech or defamatory (see Customer feedback gathering in Australia). |
What are "inactive ingredients when a safety factor" in the context of vaccines? I was reading Title 21 of the Code of Federal Regulations when I came upon the following sentence (n) The inactive ingredients when a safety factor, or reference to an enclosed circular containing appropriate information; How is it determined if an inactive ingredient is a safety factor? | A partial answer (for a manufacturer) is "look it up" – that may tell you if a determination has been made by the FDA. If so, it is not new and may require a less extensive review the next time it is included in a new drug product. For example, if a particular inactive ingredient has been approved in a certain dosage form at a certain potency, a sponsor could consider it safe for use in a similar manner for a similar type of product (the FDA says). The legal part doesn't explain how it is scientifically determine that an inactive ingredient raises safety concerns but to take on example, wheat gluten is in the Inactive Ingredient Guide. This article gives a bit of analysis of the factors that sponsors have to consider in shouldering their burden of proof. If you want to manufacture a new vaccine, you have to show (the FDA) that it is safe. If you dilute the vaccine with water, that ingredient is not a "safety factor". Benzalkonium chloride could be (you would have to show that it isn't), and if it is, that regulation requires you to list it. What's not specified clearly is how many adverse reactions per million doses constitute being a safety factor. | the first two highlighted parts seem to contradict each other. No, in this case they do not. The first highlighted portion refers to works or items produced "for or under the direction of the Company", whereas the second highlight refers to your creations that satisfy conditions (a) and (b). Where contradictions actually exist, the doctrine of contra proferentem entitles you (the non-draftsman of the contract) to adopt the portion or reasonable interpretation that favors your legal position. Also wondering how valid those statements actually are They are valid and become enforceable as soon as you sign the contract or your subsequent conduct reflects your acceptance thereof. it's a matter of privacy. So the question is what I can do or what the reality is of the situation The reality is that you are asked to sign a contract that is abusive and ridiculous. One vulnerability from describing your inventions (presumably in Appendix A) is that the employer gets "irrevocable, worldwide, etc" rights on them as soon as you "use or disclose any [items listed in Appendix A] when acting within the scope of [your] employment". This means that if instead of reinventing the wheel you share or apply any portion of your prior creations so as to enhance your productivity, you knowingly and irreversibly grant to the employer perpetual rights to those items. Legal disputes regarding APIs can become extremely intricate. And, since judges usually have no decent background on IT, even those few judges with integrity are unlikely to grasp the key subtleties that would lead to a correct ruling. "not useful with or related to any Company Interest" is very vague. The company could be interested in literally anything these days. Clauses which are too vague or excessively wide-encompassing are supposedly stricken as unconscionable, unenforceable, etc. However, I personally would foreclose upfront the risk of judicial hassle and decline the abusive contract. Legal issues aside, keep in mind that you are offering your expertise (in terms of supply & demand, you are on the supply side). This fact has a less derogatory connotation than "asking for a job". Accordingly, the relation between the parties should be more leveled. | It may be discrimination; not all discrimination is illegal. Details vary by jurisdiction, for example discrimination on the following bases is illegal in Australia: race colour sex sexual preference age physical or mental disability marital status family or carer’s responsibilities pregnancy religion political opinion national extraction social origin A medical condition like an allergy is not necessarily a physical disability. The school is arguably fulfilling its obligations under WHS legislation by banning nut products if that is what a risk assessment indicates. It may also be necessary to ban milk products if that is required for your daughter's safety. If (and I do not know) nuts pose a greater risk than milk then banning the former and not the latter may be perfectly justified. Ask to see the risk assessment. | 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. | I should have done my research properly, hopefully this will be indexed and be helpful to someone else in the future. The specific legislation is The Road Vehicles (Construction and Use) Regulations 1986 regulation 98: Stopping of engine when stationary 98.—(1) Save as provided in paragraph (2), the driver of a vehicle shall, when the vehicle is stationary, stop the action of any machinery attached to or forming part of the vehicle so far as may be necessary for the prevention of noise. (2) The provisions of paragraph (1) do not apply— (a) when the vehicle is stationary owing to the necessities of traffic; (b) so as to prevent the examination or working of the machinery where the examination is necessitated by any failure or derangement of the machinery or where the machinery is required to be worked for a purpose other than driving the vehicle; or (c) in respect of a vehicle propelled by gas produced in plant carried on the vehicle, to such plant. | Summary from comments. (Hat tip @jqning) Daniel Nathan Ballard writes here: [It] is not only improper it is UNLAWFUL and may result in serious repercussions... Such a misuse may constitute false advertising... (“It is no doubt true” that affixing the ‘Trade Mark Registered U.S. Patent Office” notice on goods that are not protected by a federally registered trademark creates “a prima facie case of fraud against the public… .”). ... Such use is also a form of “unclean hands” that can bar the user’s registration of the mark. ... Such a use may also bar the maintenance of an infringement case. ... And the fraudulent use of the trademark registration symbol DOES provide other marketplace participants with standing to oppose the user’s registration of the mark. http://www.avvo.com/legal-answers/use-of---symbol-but-not-federally-registered-1125746.html | This ATF page quotes from 26 USCA §5845(f)(2) as follows: (f) Destructive device.--The term “destructive device” means * * * (2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary or his delegate finds is generally recognized as particularly suitable for sporting purposes; . . .” The hypothetical device you describe has a bore of > ½", and when fired would cause a projectile (the rocket) to exit the barrel. The rocket's firing is clearly caused by firing the blank shotgun shell, and would, I think, be seen as "expelling" the projectile. The objection that "the rocket fired and expelled itself" would not be persuasive. Thus, I think the device you describe meets the statutory definition of "destructive device." To avoid breaking this law, do not either a) insert a projectile (here, the rocket) in the shotgun bore, or b) set up any external mount or mechanism to ignite the rocket as a result of igniting a shotgun shell (blank or not blank) in the shotgun barrel. | If the requirement is imposed by an employer, then the basis for an exemption, if any, would be whatever the employer choose to allow, unless some applicable law required some particular exemption. Such mandates are not common. Indeed I do not recall hearing of any such absolute mandates. But an employer could choose to impose one, and I have heard (and read) discussions of hospitals, for example, requiring COVID-19 vaccinations to be taken by employees when available. If an employer mandates a vaccination, it is up to the employer to decide when, and if, an exemption is warranted. It is up to the employee to decide whether to comply by accepting the vaccination or refuse at the risk of being fired. I do not know of any law which would specifically require an employer to grant exemptions in particular circumstances. A law might exist, or be passed, requiring such exemptions. If the employee had a particular medical condition which makes a vaccination si9gnificantly more risky for that employee than for an average person, and if that condition was considered to be a disability (not all or even most medical conditions are so considered) then the Americans with Disabilities Act (ADA) would require the employer to offer a "reasonable accommodation" to the employee, if one is available. Exactly what accommodation is "reasonable" is a fact-based determination, and would depend on the reason for the mandate, the cost and burden of the accommodation on the employer, and the degree if risk to the employee with and without the accommodation. In some cases no accommodation is found to be "reasonable", and in such cases the ADA does not mandate any accommodation at all. The ADA generally specifies whet must be done when an employee has \ a disability, but dopes not specify exactly how a disability must be proved. A medical certificate is common, but njot invariable, iof an employer questions the existence o a disability. The ADA would not require an exemption for a "Religious/Philosophical" objection. Soem state laws protect religious scruples in various particular employment situations. In some but not all states objections on such grounds for vaccinations otherwise required for school attendance are honored. The exact grounds accepted vary from state to state. A specific state would need to be listed for a more specific answer to be given, and I am not aware of any state that has such a requirement for exemption from a private employer's vaccine mandate. Addition: It seems from comments that some employers, such as hospitals and the military, already require vaccinations for some diseases. This seems reasonable to me, and does not change my answer otehrwise. |
Assignment of Inventions with Employer I have signed assignment of inventions with my employer. The exact wordings is not available to me - however I remember vaguely that it dealt with all inventions by employees being company's property. My question is if I invent a system or develop a product in my spare time (outside office hours) and using my own personal resources (laptop, devices, personal time and effort etc...) will that still be in danger of being attacked by assignment of inventions? Can I safely assume that such property will fully be mine? (I am asking because I remember reading in a reputed book - Business Law for Entrepreneurs) that any invention/developed product can be claimed by employer even if it is produced outside normal hours of employment with personal resources - Since it is done during the term period of employment. I would love see someone shed light on this aspect since the above sounds too draconian. | The answer will depend upon the state law that is applicable, assuming you are in the U.S. Patent law is federal law but patents and patent applications are considered personal property, like a car, and the ownership and transfer of that property is governed by state law. The terms you imagine are in your agreement are too draconian in California, for example. Please get a copy of what you signed and edit your question to include key points and indicate your state. | You say the permission was "public", therefore I am going to assume that it cannot be argued that there was no agreement. There are two possibilities: If Company B has given consideration for the promise then there is a binding contract and Company A may be able to end it but could not seek redress for when it was in place. If there is no contract then the principle of promissory estoppel should have essentially the same effect. An agreement, including an IP licence, does not have to be in writing nor does it have to have any particular form. | Critique I'm technically a director of a company ... You either are or you aren't - there is no "technically" involved. ... is not currently trading ... And doing nothing can create a conflict of interest? How? You mustn’t be involved either directly or indirectly with any other trade or business competing in or conflicting with the interests of our Company. "competing or conflicting" is the key here - if the "other trade or business" can adversely affect the performance of your employer then you have a conflict, if not, you don't. are only related in such that they are both technology based but otherwise are unrelated. Sorry, but that is so vague as to be totally useless - what company today is not "technology based"? Pharmaceutical companies are technology based, so are construction companies, so are law firms but one would hardly call them "related". Solution Conflicts of interest are easy: If you don't think you have a conflict of interest and they don't think you have a conflict of interest then you don't have a conflict of interest. If either or both of you do; then you do. Tell them about it! Conflicts of interest are a problem because people think that if you are keeping secrets then you are doing it for a nefarious purpose! In 90% of cases declaring the potential conflict resolves the conflict because the other party says "That! Don't be silly; that's not a problem!" or words to that effect. In the 99.9% of the remaining 10% of cases then sensible people can come up with sensible solutions, for example: If you want to be involved with another business whilst working for us then you’ll need to get a letter from the Director of your area confirming that they’re happy for you to do this. | As far as I can see this means that I sign away any rights I currently have to any IP and also that I sign all rights to any IP I create whilst working for the company. The hiring manager says that I have this wrong and that it only means anything related to work that I would undertake during my employment with the company. Based on the quoted language, the hiring manager is correct. The key phrase is "all rights to all material created in the course of your employment with the Company" This means things created as part of your new job. It does not mean copyrights or other IP you now own, nor does it mean rights to things you create outside of work hours, unrelated to your job, not as part of any work assignment, and not created on work premises or using work equipment. You might want to confirm this by talking with a local lawyer with some IP experience and some employment law experience. A one-time consult should be available at a fairly small cost. The section about "whether now existing or created in the future" refers not to existing IP, but to existing kinds of IP and existing laws. If the UK should pass a new "algorithm rights " law next year, this language attempts to make sure that such rights are covered without needing you to sign a revised contract. Note that this phrase occurs as part of the definition of the term "Intellectual Property Right", and it is limited by the phrase "in respect of the material created by you in the course of your employment." A contract that attempted to claim all existing IP you may hold that is unrelated to your employment, or one which tried to claim IP having no relation to your future employment might be held void as against public policy. In any case, if it was ambiguous, any such ambiguity should be resolved against the drafter of the contract (here the company) and in favor of the other party. A separate email might be taken into account as showing what your "meeting of the minds" was with the company insofar as the contract language is ambiguous. It will not, however, be effective in changing the plain meaning of the contract. | The idea for an app is not subject to copyright. Only the artifacts of the app itself (sourcecode, images, texts, sounds, etc.) can be. So if one only copies the idea and creates their own version of all the other assets, then they are not violating copyright. However, in some cases, ideas can be subject to patents. But patents on software are tricky. First of all, only new ideas can be patented. When a supposed new idea was already published before, then that's called "prior art" and you can not patent it. Then getting a patent means a lot of investment in money and time (which is very different from copyright which you get automatically the moment you make something copyright-worthy). So not everything that could theoretically be patented gets patented. And then, many jurisdictions do not recognize software patents at all, and those which do have different limits on what is and is not patentable when it comes to software. This means patents are rarely a concern when copying the app idea of someone else, but not never. And another possible concern is the third pillar of intellectual property: Trademarks. This protects the name of the app. Trademark law oversimplified forbids to create a competing product with a name which might confuse customers. So if you created StevesSuperCoolAppForCoolPeople and I create StevesSuperCoolAppForCoolPeople - Simplified Edition, then I would be violating your trademark, because my product name sounds as if it was your product, when it is in fact an unrelated product with a similar purpose. | The general rule is that the author of the software owns the copyright, so that would be the student. This is regardless of whether the student writes the code for fun, or for a thesis. If a student is hired to write that code, then it kind of depends on the university rules, and who hires the student. In the case of a "work for hire", the employer owns the copyright. However, it is non-trivial to determine whether that principle is applicable in the case of a student hired by the university. In part, it depends on which country this is in because work for hire laws are not exactly the same everywhere, and in part it depends on the details of the employment my a university. In a typical US institution RA appointment, it would come down to university policy – some universities declare that copyright in all student-written software is retained by the student. You would need to look for something resembling an "IP Policy" – here is a sample, note that such policies are subject to revision. | If you are on Tier 4 (students on full-time degree), you have more restrictions besides the number of hours. One of this is no self-employment (which includes freelance and consultancy or creating your own company). | Person A has to have created the data to hold copyright; for most kinds of data this has no legal effect because facts are not protected by copyright. A mineable database probably does not have the necessary creative elements for copyright. An algorithm is not protected by copyright (it might be patented). Person C's program is copyrighted. The product created by D is probably copyrighted, depending on what degree of creativity is involved in their transformation. If the transformation is automatic then no, but if creative judgments are applied to the output of the program then maybe. Though the resulting product is another database of facts, and the facts cannot be protected. In terms of "using the model", only C and possibly B have any control. If it is necessary to validate the software using A's data and A has kept the data secret, C might negotiate with A to use the data, in order to complete his program, and that could give A some interest in the program. |
Are booby-traps illegal if they don't harm humans? I saw this image today: [![4chan post][2]][2] For the sake of this question, let's assume it happened in the front yard of the poster's house (so on his property) If this really did happen, would this be considered a booby trap, because the nails served no purpose other than to destroy the property of people driving over the sign? Would this trap be illegal, even though there's no way that it would reasonably hurt another human (if you're outside, you have shoes on, protecting you from the nails). | You cannot booby trap your property, see Can I booby-trap my property against police? You can, however, protect your property in any reasonable way that will not cause harm to innocent trespassers. So things like fences with obvious barbed wire, road spikes that would damage tires but not people etc. From the images it seems like the nature of the spikes are such that they would injure someone who stepped on or fell on them and probably cross the line into booby trap territory. | The fact that something is illegal does not imply that it is illegal to post pictures of it happening. In general, under U.S. law, free speech protects almost all forms of communications subject to a handful of narrow exceptions and this is not one of them. There are many legitimate reasons one might want to post video of a fight (e.g. to identify crime perpetrators for purposes of prosecuting them), but no legitimate purpose is legally necessary. Surely as a platform Reddit cant hide against it being a platform of free speech in this case? They most definitely can. Reddit is also not responsible for user posted content under Section 230 of the Communication Decency Act, even if it were illegal for the person posting it to post the content | What do you mean by "a public building"? Just because a place is owned by the public, doesn't mean anyone can go there any time they wish. Military bases, firehouses, and jails are owned by the public, but many of these have limited access to the public. It may be open to the general public, but that does not mean restrictions cannot be put into place, either on times, or activities, or individuals. For example, public parks often have time and activity restrictions; schools have the power to restrict individuals from their premises, either specifically or by general category. As a general point of law, the owner of any property, or their agent, can order anyone without the right to stay (e.g. not a co-owner or tenant), and that person must depart, otherwise that person is tresspassing. Assuming that the Senior Center is owned by the town, it is probable that the Administrator is empowered to act as the town's agent in this matter. Now, since this "No Trespass order" is specifically directed at you, there is a reason behind it. It may be something you've done. It may be that complaints have been received about your behavior. It may be an actual abuse by someone who doesn't like you. We have no way of knowing. It the order itself doesn't give you a hint as to why, you can ask the town administrator for the reason. As for being against your rights, there is nothing inherently illegal about this situation(that is, an agent of a property owner exercising the latter's right to prohibit an individual from said property), but some of the details, especially why it was specifically applied to you as an individual might be a civil rights violation. | If you wrote for example "I had thoughts about taking the axe from my garage and decapitating my neighbour", and your neighbour read that, he would reasonably be worried and contact the police. I would take that as a death threat, and the death threat is by itself illegal. There would be some range where I could claim that you were making a death threat and making excuses to avoid legal responsibility. You can have all the thoughs you like, you can write them into your private diary where nobody can read them, but as soon as you publish it, it becomes "speech" and some speech is illegal. | It isn't precisely clear which jurisdiction you are located in (recall that this website handles matters from everywhere in the world). But, generally speaking, in the United States, you have no right to limit someone's existing tree on their property merely because it casts a shadow on your solar panels. The installer should have known better. A minority of U.S. states, including California, consider new construction that blocks the view of existing structures a form of "nuisance" that can be abated if it unreasonably interferes with the enjoyment of the existing property. But, that protects existing structures, rather than new ones. In Japan, there are building code requirements designed to insure that key portions of every home get natural sunlight daily. Again, this only applies to the construction of new buildings. I know of no law that gives someone who newly installs a solar panel a right to remove or trim a neighbor's tree simply by virtue of doing so. And, without knowing whose law is involved it would be impossible to determine with any reliability. The property with the solar panel could seek to buy the right to an unobstructed view from the property with the tree, in what would probably be called a "view easement", but that would only happen if the terms were such that both consented and it was written up in a legal document to that effect. | The UK has particularly strong (indirect) restrictions on self defense. Askthe.police.uk appears to be an official police agency. As a police agency, they can only give their version of what the law is, but they could be mistaken. They say "The only fully legal self defence product at the moment is a rape alarm". This by itself does not mean that pepper spray and the like are definitively illegal: There are other self defence products which claim to be legal (e.g. non toxic sprays), however, until a test case is brought before the court, we cannot confirm their legality or endorse them. If you purchase one you must be aware that if you are stopped by the police and have it in your possession there is always a possibility that you will be arrested and detained until the product, it's contents and legality can be verified. One can infer that they somewhat disapprove of pepper spray: There are products which squirt a relatively safe, brightly coloured dye (as opposed to a pepper spray). A properly designed product of this nature, used in the way it is intended, should not be able to cause an injury. The underlying theory seems to be that the dye will frighten the assailant so it might be useful. Nevertheless, they do not fully endorse spray dye: However, be aware that even a seemingly safe product, deliberately aimed and sprayed in someone's eyes, would become an offensive weapon because it would be used in a way that was intended to cause injury. This underscores the point that "intent" determines the criminal nature of the act. If you accidentally spray a dye into someone's eyes, that probably would not make the thing an offensive weapon. Moreover, if at the moment of defending yourself with dye you intentionally spray it into someone eyes, that does not make it an offensive weapon (see below on per se offensive weapons). The difference between pepper spray and dye lies in the outcome that you expect, that pepper spray will cause actual and non-trivial physical discomfort, and it's foreseeability (the point of having pepper spray is to injure). The police are not making any definitive "rulings" (only a court can make a ruling), and they warn The above advice is given in good faith, you must make your own decision and this website cannot be held responsible for the consequences of the possession, use or misuse of any self defence product. Possession of other weapons (mostly knives, also weapons for beating people) is more clearly illegal, due to numerous acts enacted by Parliament over the years. The gov't. prosecutor offers useful details on their (current) policies and the underlying laws. The underlying authority for these restrictions seems to be the Prevention of Crime Act, 1953, which outlaws having an offensive weapon in a public place, and an offense weapon is simply defined as any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him A brick or an egg could be an "offensive weapon", if a person intends to use it to cause injury. It is more difficult to see how an egg could cause injury, but actual injury is not required under the law, only intent to injure. It is thus a bit surprising that the police would be so bold as to say that a "rape alarm" is fully legal, but this may refer to a specific thing, the "Personal Guardian", which silently notifies the police, and is not a loud whistle (which could injure a person). Intent being crucial to the determination of "offensive weapon" status, CPS points out that where a person uses an article offensively in a public place, the offensive use of the article is not conclusive of the question whether he had it with him as an offensive weapon within section 1(1) of the Prevention of Crime Act 1953. If you use a chain or stick offensively, that does not establish that you had it with you as an offensive weapon. You crucially had to previously intend to use it as an offensive weapon: as they say: Having an article innocently will be converted into having the article guiltily if an intent to use the article offensively is formed before the actual occasion to use violence has arisen. There are a number of per se offensive weapons: those made for causing injury to the person i.e. offensive per se. For examples of weapons that are offensive per se, see Criminal Justice Act 1988 (Offensive Weapons) Order 1988, (Stones 8-22745) and case law decisions. (Archbold 24-116). The Criminal Justice Act (1988) (Offensive Weapons) (Amendment) Order 2008 came into force on 6th April 2008 with the effect that a sword with a curved blade of 50cm or more (samurai sword), has been added to the schedule to the Criminal Justice Act 1988 (Offensive Weapons) Order 1988 but sticks and chains would not be included. Spices are not likely to be shown to have a per se purpose of causing injury to others; but carrying pepper powder with the intent of throwing it in someone's eyes (for whatever reason) and thus injuring them fits the definition of "offensive weapon". Pepper spray even more clearly fits that definition (you don't use pepper spray in curry), and has resulted in arrests. In fact, the Firearms Act 1968 (S5) (b) specifically makes it illegal to possess any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing | In general, you don’t need an alternative defence. It is inherent in the common law that, unless the statute is explicitly retroactive (and legislators are reluctant to go there) it cannot make illegal that which was at the time of the act, legal. For example, assume the old sign had unlimited and the new sign reduces this to 2 hours. If you parked before the sign was changed you could leave your car there forever so long as you never move it. The NYC law give further rights - a period of grace where the owner can rely on the old restriction as a defense, even if they parked after the sign had been changed. | Owing to the First Amendment, in the United States your recourse would be limited to civil action based on violations of terms of service (meaning that "the authorities" are not going to knock on their doors to tell them to behave). This is not "spam" (which could be regulated) as the term is generally understood. It is annoying, but probably does not constitute threatening or child porn. It might involve violation of an anti-impersonation law such as this one from Texas, if the offender uses the persona of a real person as opposed to a fictitious person). That law, moreover, does not criminalize simple annoying. Prosecution may be possible in the UK. |
Landlord Gave Me 30 Days Notice to Move Out My landlord gave me 30 days notice to move out of my room that I am renting as she is selling the house. She told me a couple days in advance (2 days ago) when she gave me the notice. I have a month-to-month verbal lease with her and pay her the 1st of every month. I have found a new place to move into quickly and am moving the 1st of the month. Do I still need to pay my old landlord rent for the room even if she told me that I have 30 days to move out? I live in California and have been renting for less than a year. | The relevant law in California is here. In your situation, it is presumed (as you both agree) that you have a month to month agreement. §1946 states that A hiring of real property, for a term not specified by the parties, is deemed to be renewed as stated in Section 1945, at the end of the term implied by law unless one of the parties gives written notice to the other of that party’s intention to terminate the same, at least as long before the expiration thereof as the term of the hiring itself, not exceeding 30 days; In other words, the landlord has to give you 30 days advance notice to terminate the lease, and you have to give 30 days advance notice to terminate the lease (and it must be written notice). The section continues: provided, however, that as to tenancies from month to month either of the parties may terminate the same by giving at least 30 days’ written notice thereof at any time and the rent shall be due and payable to and including the date of termination. which effectively says the same thing, specifically appliedd to month to month leases. There is some leeway on terminating a lease: It shall be competent for the parties to provide by an agreement at the time the tenancy is created that a notice of the intention to terminate the same may be given at any time not less than seven days before the expiration of the term thereof. The notice herein required shall be given in the manner prescribed in Section 1162 of the Code of Civil Procedure or by sending a copy by certified or registered mail addressed to the other party. But you would have to establish that there was such an agreement (I assume there was not). §1946.1 asserts that a hiring of residential real property for a term not specified by the parties, is deemed to be renewed as stated in Section 1945, at the end of the term implied by law unless one of the parties gives written notice to the other of his or her intention to terminate the tenancy, as provided in this section. That is, a lease is automatically renewed in your situation unless notice has been given. Moreover, A tenant giving notice pursuant to this section shall give notice for a period at least as long as the term of the periodic tenancy prior to the proposed date of termination. What you are proposing contravenes this provision of the law – from your description of the facts, you did not give notice 30 days before now. So your obligation to the landlord exists to the end of May. Bear in mind that the law imposes obligations on both landlord and tenant: just as the landlord cannot throw you out without proper notification, you cannot walk away from your obligation without proper notification. §1951.2 addresses breach of lease and abandonment by lessee (you) if a lessee of real property breaches the lease and abandons the property before the end of the term or if his right to possession is terminated by the lessor because of a breach of the lease, the lease terminates. Upon such termination, the lessor may recover from the lessee: (1) The worth at the time of award of the unpaid rent which had been earned at the time of termination; (2) The worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that the lessee proves could have been reasonably avoided; (3) Subject to subdivision (c), the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that the lessee proves could be reasonably avoided; and (4) Any other amount necessary to compensate the lessor for all the detriment proximately caused by the lessee’s failure to perform his obligations under the lease or which in the ordinary course of things would be likely to result therefrom. There are, also, no special exceptions about landlords selling their property that allow instant termination. That is, you still owe the month's rent, even though the lease is ending at the end of the month. You could of course ask the landlord to forgive you that last month's obligation. I am assuming that the lease was terminated properly by the landlord. If it was not, the landlord has not legally terminated the lease and it will continue until someone does properly terminate the lease. That might provide incentive for the other party to just forget the last month's rent, but it also might not. | Financially, the landlord can take you to court and get a judgment against you where you have to pay that rent, so you won't save any money. If you hire an attorney to defend you in the lawsuit, that will cost you extra money, so you could be worse off than just paying rent and staying there. The lease might have late payment fees, and if you that would be additional money that you would owe. In addition, there could be some reputational damage to you that could affect your ability to secure a lease in the future (a black mark on your credit history). Also note that in Georgia, a landlord has no obligation to seek an alternative tenant, so he can let the unit sit empty for 4 months (though he cannot collect twice on the same unite). | It is usual for a lease to specify for what purposes and on what notice the landlord is entitled to access. Often there is a provision allowing the landlord access on no notice in an "emergency" which is often not specifically defined. Access for purposes of repair, and for purposes of inspection may be on 24 hours notice, or 48 hours, or some other period, or on "reasonable notice" with no specific period specified. Access for a reasonable purpose (such as inspection) on reasonable notice that does not actually inconvenience the tenant, and that is not demanded with unreasonable frequency will probably not constitute such a breach as to justify ending the tenancy, and may well not justify sizable damages in the absence of other breaches. Much will depend on the wording of the lease or rental agreement, and on the practice of the local courts. One might well ask oneself "what actual harm will an inspection with insufficient notice do me" because a court might ask a similar question if an action is brought. If the inspection does cause a problem, then that should be addressed. | Generally speaking, you signature and delivery of the lease to the landlord makes it possible for the landlord to enforce. Particularly when, as in the question, the landlord presented the lease to you as an "offer" which you accepted without modification, it is probably binding upon the landlord even if the landlord does not sign it or return a copy with the landlord's signature. In jurisdictions that have a statute of frauds, your part performance by sending checks in the lease period consistent with the lease, and the landlord's part performance by continuing to allow you to occupy the premises without objection, would probably make the statute of frauds (which generally requires a signed writing by the party against whom a lease is enforced) to be inapplicable. On the other hand, if you materially changed a version provided by the landlord, there is a real question over whether there has been an offer and acceptance, or a meeting of the minds, agreeing to the new lease. Materially here meaning changes that are more than updating your contact details and go to the heart of the lease contract. | 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. | A "land contract" is not a way of renting property, it is a way of purchasing property on an installment basis without bank financing. It is Ohio's version of what in some other places is known as "contract for deed". See "What is a Land Contract in Ohio" and "How Land Contracts Work" The actual law is Section 5313. In a land contract, the buyer has equitable but not legal title. The buyer normally pays all taxes and fees, and is responsible for maintaining the property, just as if s/he has bought the property. But if the buyer defaults, all payments and equity would be forfeit to the seller. Until the buyer has paid 20% of the purchase price, or made 5 years of payments (whichever comes first) a single missed payment constitutes default and can lead to the buyer being evicted with all payments to date going to the seller, the buyer coming out of the deal with nothing. Also, if the seller still has a mortgage and defaults, the buyer may lose everything paid to date. The buyer does not have the protections that a lease gives a tenant, nor the protections that legal title gives a purchaser via a traditional mortgage. Land contracts are often used when the buyer cannot qualify for a mortgage. The buyer pays interest, and it is often at a higher rate than the current rate on a mortgage. Land contracts are often a form of predatory lending, but for some buyers they make sense. A buyer needs to carefully review the contract with a lawyer knowledgeable about land contracts, and consider the risks and benefits of this form of financing. As I understand it, there cannot be a valid land contract for one apartment in an apartment building. A land contract must be for title to the land and all fixtures, including all buildings, on it. (There was at one point some unclarity if the question referred to an apartment. It is now clear that it refers to a house, so this statement is not relevant to the OP, but may be to others.) It is not clear just what the OP's landlord (LL) has in mind. It may be that LL plans to offer a "land contract" in which the purchase would be completed only after a very long time, with the idea that the OP would simply default when s/he wanted to move. Such a default could harm the OP's credit. There seems no benefit to the OP in such a scheme compared to a lease, unless LL will lower the price significantly, taking into account maintenance costs and taxes, which OP may well be expected to pay under a land contract. Note that a landlord can't legally force a tenant to sign a document cancelling a lease, or to sign whatever s/he will call a "land contract". Nor can s/he cancel the lease without the tenant's consent except for good cause as specified in the law (such as not paying rent). S/He could become uncooperative on other matters if a tenant doesn't do as s/he wants. If a tenant does cancel his or her lease, s/he will lose some rights. Others are guaranteed by law as long as the tenant is paying rent. If one signs a "land contract", what happens depends on its provisions. OP needs to very carefully consider just what is being offered, and its risks and any possible benefits. Details of the contract will matter. No matter exactly what LL has in mind, this is not at all a usual procedure for a landlord. OP or anyone in a similar circumstance should be very careful. | In Virginia there is a distinction between a tenant and an authorized occupant. An authorized occupant is a person entitled to occupy a dwelling unit with the consent of the landlord, but who has not signed the rental agreement and therefore does not have the financial obligations as a tenant under the rental agreement. A tenant is a person entitled only under the terms of a rental agreement to occupy a dwelling unit to the exclusion of others and shall include roomer. There is a third category, guest or invitee which means a person, other than the tenant or person authorized by the landlord to occupy the premises, who has the permission of the tenant to visit but not to occupy the premises. Such people who live there would not be invitees. Clearly, you can have others living with you who are not on the lease, if the landlord agrees. The landlord's main concern regarding credit rating is probably financial responsibility, and if you qualify, having people live with you who have low or no credit rating is unlikely to make any difference. There may be other concerns, such as background checks or increases utility costs). Virginia law does not specifically allow "unauthorized occupants", i.e. occupants not approved by the landlord, nor does it specifically disallow such occupants. Leases often include a provision that addresses this matter, prohibiting unauthorized occupants. Supposing that the lease is silent on the matter (not likely) and the landlord wanted to compel the other occupants to leave, the procedure would be to tell the tenant that the unauthorized occupants must leave. Then if you do not comply (do not get them to move out), the landlord could start the procedure of evicting the lot of you, and the question would be whether the court would find that you have a right to let unauthorized other people live with you. I can't find any applicable case law, but it is unlikely that the court would find such a right. Tenants have special statutory rights, as do authorized occupants under the Virginia Residential Landlord and Tenant Act. A court would not find that the rights of an authorized occupant extend to an unauthorized occupant, which means that the landlord's rights as property owner are dispositive of the matter. | The key language to be taken notice of in that code is 'by fraud or deception'. If the property manager has provided reasonable notice of a clear-out, then the code doesn't apply due to lack of fraud or deception. But at the end of the day, just go and check the mail room on a Thursday afternoon and you shouldn't have any problems. |
Do people lose their right to defend their house if they make it look like their house is uninhabited? What should Bryan Smith have done when two burglars came to his house? https://www.usatoday.com/story/news/local/2014/04/29/morrison-county-jury-discussing-byron-smith-case/8465609/ Two burglars came to his house. He shot them, and they died. The prosecutor argued that by removing trucks from the premise he is "baiting" burglars. Is it illegal to remove trucks from premises? Now that the burglars are in his house, what should he have done? I still do not understand the verdict. I mean, do you lose your right to defend yourself if you make it look like your house is uninhabited? Are you obligated to signal to would-be burglars that you will shoot them? In the case of Bryan Smith case, has the prosecutor established that the removal of his truck is done solely for baiting burglars? One controversy in the case is that after he shot a burglar, he finish the job. I do not know how much of this got into a jury. However, I would have done the same if I were him. Soldiers in wars double tap because enemies they think are death (not just injured in legs), may actually still be alive and kill. There are cases of people stop beating up robbers thinking he won, only to have the robbers' friend stab him in the back. For all Bryan Smith knows, those teenagers could be assassins sent by gangs to kill him. The boy and the girl may bring life grenade they can activate for suicide bombing. It may not be. But how does he knows? The probability is small. May be 1%, or 2%. Still, why should a home owner risk his life for life of two worthless burglars? The safest thing to do is to just kill the burglars. Why take unnecessary risks when your life is in danger by some people that's obviously up to no good? | If I remember the case correctly, he didn't make his home look uninhabited (that is nobody is living there) but as if the inhabitants had left (gone shopping etc.) to make it look attractive to burglars. He then waited inside, armed with a gun, with the intent of shooting any burglars that might arrive. He shot the first burglar in the legs, and then proceeded to kill the unarmed and now defenseless burglar, who was lying injured on the ground and was in no position anymore to hurt him. He then did the same with a second burglar, shooting her in the legs, then shooting her multiple times, and when he found she was still alive, he shot her point blank in the face while she was lying on the ground. You are asking the wrong questions. You are asking "is it illegal to remove a truck". It's not. What is illegal is to intentionally create a situation where you shoot people and try to claim "self defence". It can very well be argued that by luring burglars into your home with the intent to kill them, they are not actually illegal in that home, because you wanted them to be there. You can do many things that are each completely innocent but add up to a crime. Actually, for everyone interested, I posted a question maybe last week or the week before whether you can be convicted for both first degree murder and second degree murder for killing a person, and it was exactly this case that inspired the question. What should he have done? If he hadn't lured the burglars in, I believe the case would have still been a double murder, since he killed both unarmed teenagers when they were absolutely no threat. It might not have been first degree murder since it would not have been premeditated. But he intentionally lured them in, making it premeditated (first degree) murder. If he had only injured them, the fact that he lured them in could very likely have made this an assault. You asked: "Now that the burglars are in his house, what should he have done? " Well, he got himself into a dangerous situation. Remember, he was convicted for premeditated murder. So just before he shot the girl in the head, he should have instead put the gun away and called police and an ambulance. It would have been one murder instead of two. Just before he shot the boy, he should have put the gun away and called police and an ambulance. It would have been just attempted murder. When he heard the first person entering, he should have called the police and waited. When the burglar came in sight, he should not have shot and injured him. It's a similar question to "if I try a bank robbery and there is an armed guard, what should I do". The only legal thing to do is to drop your weapon and wait to be arrested. If an armed burglar had appeared instead of two unarmed teens, well, he would have put himself into a dangerous situation. Just as the burglar would have no right to shoot even if a home owner points a weapon at him, he had no right to shoot, no right to self defense, since he had intentionally created the situation. Tough shit. That's what you may get if you plan a murder. Responding to some comments: @J.Chang Are you being serious? You are not allowed to make your house inviting to burglars, while waiting inside with the intent of killing them. Self defense only applies when a reasonable person would believe they are in danger. Reasonable persons don't think that a burglar comes in with the intent of blowing themselves up and taking the home owner with them. And no, you don't get to "assume the worst". Not when the worst is something no reasonable person would expect. Thanks to Dale for pointing out that even for soldiers in a war situation, where different rules apply, deliberately killing a helpless enemy combatant is murder. | Rules about self-defense in the US vary from state to state, but generally a person can raise a defense that they legally used deadly self-defense if they had a reasonable fear of death or grievous bodily harm, with some exceptions (exactly how these are worded changes from state to state): A person often cannot claim self defense if they are already committing a forcible felony (but it depends on the circumstances) A person cannot claim self defense if they are the aggressor in a fight or took aggressive actions toward another person who then attacked them. So, with that in mind, let's assume that Person A has a valid deadly self-defense claim against Person B. When considering self defense, the question is whether a reasonable person in the defendant's position would have feared death or grievous bodily harm. So, the exact sequence of events matters. Consider the following four scenarios: C watches B attack A and then A shoots B, C pulls out his gun and points it at A before A turns to him and points his gun in response C watches B attack A and then A shoots B, A then points his gun at C and C pulls out his gun in response C doesn't see B attack A and only sees A shoot B, C pulls out his gun and they stand off C doesn't see B attack A and only sees A shoot B, A then points his gun at C and C pulls his in response In some of these situations, A may be considered the aggressor against C even though he had a valid self-defense claim against B. In others, a jury may find that a reasonable person in C's position would not expect A to shoot them just because they shot an attacker, and therefore C is the aggressor by drawing on A. This all assumes a hypothetical where these people exist in a void, things like their relationship, the situation around the three subjects, and any other relevant facts could be introduced and considered in the analysis. In theory, a situation could exist where both sides have a valid self-defense claim against each other, the third example possibly being that situation. | The physical cash in the bank is not your property, at least not in US law (according to Scalia). It becomes your property when the withdrawal is performed by some means specified in your contract. A deposit gives you a contractual right to demand money from the bank. Bank robbery is a crime. Having money deposited with the bank doesn't change that. The only possible chance a robber has at trial is jury nullification. I haven't found records for that in Lebanon, but it does have jury trials. Impartial review classifies Lebanon's justice system as somewhat corrupt, but generally compliant with the basic principles. So it might be possible to get away with it at trial, but a very long shot. | To provide an initial answer, without getting to the specific of the 51 statutory standards for self-defense in U.S. states and the exact Canadian standard, as applied to your examples, I'll make some general observations: Self-defense is a justification for doing something that would otherwise be illegal (intentionally using force against someone else). Self-defense justifications include a sense of proportionality. It isn't proper to use more force than is reasonably necessary to achieve the defensive objective. There are basically two levels of self-defensive force: Deadly Force and Non-Deadly Force. Preventing some crimes and harms is statutorily justified to do using deadly force (e.g. to prevent a murder). To prevent other crimes and harms statutes only justify the use of non-deadly force (e.g. to prevent shoplifting). The exact list of crimes in each category varies somewhat. Historically, for example, there have been some U.S. states that have authorized the use of deadly force to prevent a rape that does not put the life of the victim at risk, and others that have not authorized the use of deadly force for that purpose (I don't know if that is still the case). Typically, law enforcement officers are also authorized to use deadly force in some circumstances in which a non-deputized civilian could not. As a practical matter, a use of force that causes death is presumptively considered to be deadly force, even if the means used are not inherently deadly in all circumstances. Meanwhile, a use of force involving the use of a "deadly weapon" such as a firearm, is presumptively considered to be deadly force, even if it doesn't actually kill someone. But both of these "presumptions" (and I am using that term loosely in this answer, rather than with its precise legal meaning), can be overcome with relevant evidence. Mildly shoving someone with hemophilia (or tossing a dish full of peanuts in the face of someone with a severe peanut allergy), without knowing that this person suffers from this condition, is not a use of deadly force within the meaning of laws justifying self-defense, even if it actually ends up causing their death. Similarly, proving that you intended to and did, shoot out the tires of someone's car, or shot their foot, instead of shooting to kill, would not always constitute a use of deadly force for purposes of statutes justifying the use of force in self-defense. Getting to the specifics of the question, the majority rule would be that the use of deadly force is justified in most circumstances to prevent a home invasion burglar from harming you or other people in the residence, and to repel the home invasion burglar from the residence, although some jurisdictions would qualify this in one respect or another. The case that the use of deadly force is justified would be stronger if the home invasion burglar was armed than if he was not, and would be stronger if the homeowner was not physically competent enough to be confident of an ability to dispatch the invader in a non-deadly manner. If deadly force was justified in that circumstance, it wouldn't really matter how you killed him, nor would it matter that you intended to kill him to defense your home and the people in your home. If the law only authorized the use of non-deadly force in the circumstances, for example, because the burglar had seized an envelope full of cash and was fleeing the house, so you were really only using force to protect your property, rather than to protect your home or the safety of the people in it, at that point, then the analysis would get tougher. If you intended to kill the fleeing thief in circumstances when only non-deadly force was authorized, the weapon you used wouldn't matter. You intended to use deadly force, the force you used caused the intended death, and you did those things even though the law didn't authorize you to do so in those circumstances. If you didn't intend to kill the fleeing thief in circumstances when only non-deadly force was authorized, but you ended up killing him anyway (so that you didn't have a prohibited intent behind your actions), then the question would be whether your intent and belief that your actions would not kill him was reasonable under the circumstances. If you caused his death with your bare hands, or with a less lethal weapon (in truth, there is no such thing as a non-lethal weapon), your belief that the thief wouldn't die from your use of force would be more likely to be seen as reasonable. If you caused his death with a lethal weapon, your belief that the thief wouldn't die from your use of force would be less likely to be seen as reasonable. If the jury (or a judge in bench trial) didn't believe you were reasonable in your use of force which you didn't intend to be deadly, then the jury (or judge as the case might be) would not allow a self-defense argument to prevent them from convicting you of some kind of homicide crime. So you would probably be convicted of some form of homicide (perhaps heat of passion manslaughter), although you might still not have the requisite intent for first degree murder in circumstances like that (so that your self-defense argument might end up providing you with an incomplete defense). | This is the Texas law pertaining to self defense, which says that "a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force". Relatively little of the law pertains to firearms, and none of it restricts the right to self-defense based on whether you are a resident, or you are using your own firearm vs. a borrowed one. The one provision, subsection (b)(5), that refers to firearms is an exception whereby force is not justified, namely if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was: (A) carrying a weapon in violation of Section 46.02; or (B) possessing or transporting a weapon in violation of Section 46.05. (Sect. 46.02 is about conditions unlawful carrying of weapons, which covers such things as under-age carrying of certain knives, or not having control of your weapon, or being a felon in possession, etc. 46.05 is about machine guns, explosives, zip guns etc.) Deadly force is covered by a separate section, 9.32, adding the requirement that the actor "reasonably believe[] the deadly force [to be] immediately necessary". (A) to protect the actor against the other's use or attempted use of unlawful deadly force; or (B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. Note that "deadly force" is defined as "force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury". Sec. 9.33 likewise allows deadly force to be used analogously in defense of a third person, and intreestingly, in 9.34(b), "A person is justified in using both force and deadly force against another when and to the degree he reasonably believes the force or deadly force is immediately necessary to preserve the other's life in an emergency". In addition, deadly force can be justified in defense of property, per sec. 9.41, if you "reasonably believe[] the force [to be] immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property", and you may also use force to recover or re-enter the property (as long as the force is used "immediately or in fresh pursuit after the dispossession", and "the actor reasonably believes the other had no claim of right when he dispossessed the actor; or the other accomplished the dispossession by using force, threat, or fraud against the actor"). Sec. 9.42 then provides the possibility of justified use of deadly force in protection of property, if the force is immediately necessary (A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or (B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and (3) he reasonably believes that: (A) the land or property cannot be protected or recovered by any other means; or (B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury. The short version is, if deadly force is justified in the particular circumstances, then deadly force with a borrowed weapon is justified. However, there are federal laws regarding non-resident aliens possessing firearms. 18 U.S.C. 922(g)(5)(B) says that It shall be unlawful for any person...who, being an alien (A) is illegally or unlawfully in the United States; or (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)))...to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce Under subsection (y) there are exceptions for licensed hunters, government representatives etc. You can also petition the Attorney General for an exception. The point is that federal law would make possession of a firearm illegal for most visa types: here is the list. | Huge difference between a car and a house. For example, at least in Pennsylvania no warrant is required to search a vehicle on public roads. In other states there are so many easy pretexts that you practically have little protection from a full vehicle search (although the pretext will have to withstand strict scrutiny if evidence found in a search is used to charge you with a crime). Your house, on the other hand, still enjoys very strong fourth-amendment protections: One of my favorite U.S. Supreme Court cases on the subject is Florida v. Jardines, in which SCOTUS ruled that even approaching the front door with a drug-sniffing dog without a warrant constituted an illegal search. (The majority opinion is worth reading for its illumination of current law on this question.) | "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 assume this took place in Washington state. There are a number of self-defense provisions in Washington law. The first, RCW 9A.16.110, is primarily about reimbursements for prosecutions of acts of self-defense, but includes an applicable limit on prosecution: No person in the state shall be placed in legal jeopardy of any kind whatsoever for protecting by any reasonable means necessary, himself or herself, his or her family, or his or her real or personal property, or for coming to the aid of another who is in imminent danger of or the victim of assault, robbery, kidnapping, arson, burglary, rape, murder, or any other violent crime as defined in RCW 9.94A.030. This provision is relevant, since executing a prisoner on death row is not a crime (the state Supreme Court recently struck down the death penalty, so I assume this took place before that ruling). RCW 9A.16.020 states the more classic law on justified use of force, saying The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:...(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary; Statutory law does not define offense against his or her person. Grabbing a person and strapping them down for some harmful purpose would normally constitute battery under the common law, but in this instance it is privileged, so it is not an offense against the person). RCW 9A.16.030 says that Homicide is excusable when committed by accident or misfortune in doing any lawful act by lawful means, without criminal negligence, or without any unlawful intent. The person is under court order to be executed, and it is not lawful to resist that order. The guard, however, RCW 9A.16.040, may use deadly force pursuant to the legal mandate to carry out the court orde ((1)(b)"to overcome actual resistance to the execution of the legal process, mandate, or order of a court or officer, or in the discharge of a legal duty"). |
Can I sign multiple job contracts with different German companies? I'm from a non-EU country, I have received some Job contracts from Germany. Is it possible to sign them all, so in any case, I will not be without a contract if I lose one? What is the legality behind doing that? And what if I want to cancel a contract: do I need to send them my resignation but they still need to accept it. Thanks | Don't do it. It is of course breach of contract when you signed a contract with no intention to fulfil it. However, you are talking about Germany. German employers take a very dim view of this. While a UK employer would say "good riddance" and do nothing, many German employers would see that as a personal insult. It's something that you just don't do in Germany. There's a good chance that they will do what they can to make you miserable if you do this. For example, inform authorities that you just cancelled your contract which may get a visa cancelled. Or tell the company that you want to start with, which will also take a very dim view of this. Or sue you for damages, not because they want to get the money, but to make you miserable. On the other hand, if they send you a contract, and you sign it, you have a contract. | If everyone hired after date X has a different contract from anyone hired before that date it is not discriminatory. (As long as they do nothing naughty like changing the contract, hiring three black people, changing the contract back). | Your employer is most likely bluffing. It is better to be fired than to quit voluntarily. The problem with quitting voluntarily is that you won't get unemployment benefits (Arbeitslosengeld I) for a while. So don't quit voluntarily if you aren't keen on living from savings for three months. If you want to quit, get another job first. (You should get another job anyway instead of working for a toxic employer.) Your employer can only terminate your employment under certain circumstances, and with certain notice periods. Germany is very employee-friendly. Your company's establishment is currently large enough that the Kündigungsschutzgesetz (KSchG) applies. To be clear, it doesn't matter how large the company is overall, only how many employees there are in the office, shop, or other place of business. Part-time employees are counted partially. Contractors are counted as well. The KSchG fully applies if there are typically more than 10 (11 or more) employees. The KSchG does not apply to company leadership, e.g. C-level executives. Under the KSchG, the employer can terminate employment for one of three reasons: reasons in your person, reasons in your behavior, and operational reasons Personenbedingte Kündigung: Your employment can be terminated for reasons in your person if you are unable to carry out work in the future, for example if you need sick days so frequently that this puts an unreasonable burden on the employer. It is generally impossible to use this reason without the normal notice periods. Verhaltensbedingte Kündigung: You can be fired for reasons in your behavior if you committed some gross misconduct. Typically this requires an Abmahnung (written warning) so that you have opportunity to cease the problematic behavior. For example, you might get an Abmahnung the first time you skip a shift, and get fired the second time. In especially severe cases of misconduct, it is possible to skip the Abmahnung and/or the notice period and to fire an employee on the spot. For example, this might happen if you embezzled funds or stole your employer's property, even if the monetary damage was very small. As such dismissal with cause stems from your behavior, you would not get unemployment benefits for three months. Betriebsbedingte Kündigung: If the company has to downsize for economic reasons, it can lay off workers. However, the employer must apply social criteria for selecting the employees to lay off. Factors are: the length of employment, age, support obligations for children or other dependents, and disability status. That is, a young, new, childless and able-bodied employee is more likely to get axed. If you have a union (Betriebsrat) they can veto a termination in certain cases. These criteria can be clarified via collective bargaining agreements, but cannot be circumvented in an individual contract. So your employer will not be able to find any error in the contract that will allow them to fire you. The best they could do is to go really carefully over your application and paperwork to find any misrepresentation, and use that as the basis for a Verhaltensbedingte Kündigung. However, it is quite unlikely that they will find a misrepresentation so severe that it could serve as grounds for firing you without notice. Minimum notice periods are given in law. The minimum is one month notice. Your contract cannot have a shorter notice period in your context. In case of a dismissal for exceptional reasons (e.g. theft), no notice period is necessary. If you are terminated, go to a lawyer. You only have three weeks to file a lawsuit. Contacting the lawyer should be the second thing you do after getting fired, with the first thing being the registration with the Arbeitsagentur to start the clock for unemployment benefits. If your employer is making unprofessional threats like claiming that there could be a “critical error” in your contract, it is quite possible that the termination notice could be deficient in some way. If the dismissal was improper, a court can award compensation (lost wages) and reinstate the employment, though this is unlikely to be desired. Your wage from subsequent jobs (or wages you could have earned if you had looked for a job) will be subtracted from the lost wages. To summarize this large text dump, firing an employee is difficult unless the employee does something very stupid like stealing from the employer. Therefore: reasonable employers that want to get rid of an employee don't look for errors in the contract. Instead: They watch you very closely to find any behavior that merits a written warning (Abmahnung). This builds a case for a termination with cause. They offer an agreement to terminate the contract (Aufhebungsvertrag). With such an agreement you mutually terminate the employment. You won't get unemployment benefits for three months since this was your decision, so typically these agreements provide for generous compensation. A reasonable employer knows that paying for the notice period + additional compensation is cheaper than dealing with an unhappy employee + a potentially invalid termination + a prolonged legal battle. Of course, less reasonable employers resort to bullying to get you to quit yourself. This is cheaper than paying compensation with an Aufhebungsvertrag. | Yes this is possible, no this is not simple. You are eligible to work as a Freelancer in Germany if you're from an EU/EEA member state. Your nationality is not relevant beyond that. When you start your freelancing, you must inform your employer/university. This is important for two reasons: you may not compete with your employer, and your effective tax rate depends on your predicted total income for the year, which they need in order to withhold the correct amount. (Don't worry, any discrepancies will be resolved with the tax declaration.) In Germany, self-employed work is either gewerblich or freiberuflich which has numerous consequences. This depends on the type of activity. Consulting and activities that require a completed 5-year diploma are generally freiberuflich. But e.g. software development has unclear status. This is ultimately the decision of the tax authority. You might have activities of both kind, but this complicates your accounting. When you start a gewerbliche activity you must register with the Gewerbeamt, and list your fields of activity. Make sure to register as a part-time freelancer, not full-time. In any case you must notify the tax authority through the Fragebogen zur steuerlichen Erfassung, which you should fill through the online Elster system. This will include your income projections and offers some important choices. If your income from freelancing is below a certain threshold, or if you are purely freiberuflich, your (now mandatory) tax declaration is simplified (EÜR). You will not have to do professional accounting. If your activities are gewerblich and your income is below a certain threshold, you do not have to pay business tax. Kleinunternehmer-Regelung: If your income is below a certain threshold, you can opt-out from collecting VAT within Germany. You can always give up Kleinunternehmer-status, but you can't easily return to it. Otherwise, you may request a VAT-ID (UstId). You will then have to regularly pay advance VAT, typically monthly. You can offset any VAT from business expenses that you paid. Tax rules are complex, and depend on the country where the service is rendered – generally, the location of your client. For your services in other countries, you may have to register in that country, or you may fall below their thresholds. The following cases can be discussed more specifically: You can only list VAT on your invoices if you have a VAT-ID. If you have a VAT-ID, you must collect VAT within Germany and for B2C sales within EU. For sales of digital items to consumers in other member states, you may have to use the MOSS system. For sales within the EU where both parties have a VAT-ID, the reverse-charge mechanism is used and the recipient is responsible for paying VAT. For sales in non-EU countries no VAT applies, but you have to follow the local rules. For sales in the US, the tax agreement between the US and Germany exempts professional services from US income tax as long as you perform the services remotely. You will have to send your client's accountants IRS form W8-BEN to document this. However, state-level taxes can still apply. For any income that you get, you should have issued an invoice. The exact details are documented elsewhere, but important aspects are: Your and your client's identity Your VAT number if you have one, your tax number otherwise (but not your personal tax-ID!) A sequential invoice number that will stay unique during your business, e.g. just count from 1 or restart yearly like 2019-1 A date VAT payment if you have a VAT ID, otherwise a notice why no VAT is due. In your tax declaration, you will list income from self-employed work separately from income from employed work, even though it is taxed together. You will have to prove your freelance income, generally through form EÜR. The tax authority may request your invoices and your bank statements and receipts for any expenses. It is therefore recommended but not necessary to open a separate account for your business activities. If you are freiberuflich then most banks welcome you, for gewerbliche activities only one or two banks offer free accounts. Besides tax issues, you must also consider health insurance and retirement plans. As long as your freelancing is only a side job (Nebenerwerb) this is fairly simple. You will have to inform your health insurance about your freelancing. They will need an income projection to calculate your premiums. If your total income fluctuates a lot, you should try to get your premiums calculated individually for each month. This generally doesn't matter if you have private health insurance as they use a flat rate. At this point it should be clear that freelancing is not necessarily trivial, mostly because VAT is a concern. You should therefore look for help: a tax advisor can help you navigate the German tax system, at least for your first tax declaration. dealing with tax issues might require professional help from an accountant, e.g. how to manage VAT and how to correctly apply a tax treaty. most universities have things like founder-workshops. While geared towards first-time full-time self-employed people or startups, there's still a lot of valuable information there. | Nah, you can't. First of all, you can't require the other party anything until you have a contract. They owe nothing to you. Once you've got an offer from them (i.e. a written contract they offer you to sign), you can ask them to clarify the terms as much as you wish — until they get bored and withdraw the offer. You also can make counteroffers: draft your own contract instead and offer them to sign. (Note that by doing this you kill their initial offer i.e. you can't accept it anymore unless they offer it again). Misrepresentation (let alone fraudulent) is not relevant until proven. Lack of clarity or complex legalese language is no misrepresentation. | As far as I can see this means that I sign away any rights I currently have to any IP and also that I sign all rights to any IP I create whilst working for the company. The hiring manager says that I have this wrong and that it only means anything related to work that I would undertake during my employment with the company. Based on the quoted language, the hiring manager is correct. The key phrase is "all rights to all material created in the course of your employment with the Company" This means things created as part of your new job. It does not mean copyrights or other IP you now own, nor does it mean rights to things you create outside of work hours, unrelated to your job, not as part of any work assignment, and not created on work premises or using work equipment. You might want to confirm this by talking with a local lawyer with some IP experience and some employment law experience. A one-time consult should be available at a fairly small cost. The section about "whether now existing or created in the future" refers not to existing IP, but to existing kinds of IP and existing laws. If the UK should pass a new "algorithm rights " law next year, this language attempts to make sure that such rights are covered without needing you to sign a revised contract. Note that this phrase occurs as part of the definition of the term "Intellectual Property Right", and it is limited by the phrase "in respect of the material created by you in the course of your employment." A contract that attempted to claim all existing IP you may hold that is unrelated to your employment, or one which tried to claim IP having no relation to your future employment might be held void as against public policy. In any case, if it was ambiguous, any such ambiguity should be resolved against the drafter of the contract (here the company) and in favor of the other party. A separate email might be taken into account as showing what your "meeting of the minds" was with the company insofar as the contract language is ambiguous. It will not, however, be effective in changing the plain meaning of the contract. | From point 4: transferring all rights and obligations of Company A to Company B Among those rights and obligations are the rights and obligations arising from Company A's agreement with Employee. Employee is therefore still subject to the agreement, which is enforceable by Company B. If the agreement is carefully drafted, it will make explicit mention of Company A's "successors in interest" or some similar phrase or phrases. Even if there is no mention, the rights and obligations associated with this agreement will transfer (perhaps unless the agreement explicitly provides that they will not, but, let's be realistic, of course it does not so provide). | The "Severance Agreement" is a contract between the company and you. It spells out what the company will do and probably what they expect you to do going forward. Simple enough. The statement you referenced merely says that you are not being forced to sign the agreement. That's all. You don't, presumably, have the option of remaining employed at this company but you DO NOT have to sign this agreement. But if you don't, it's likely that any benefits being promised in the agreement will not be delivered to you. So specifically in answer to your questions: It protects them against a claim that they somehow forced you to sign the agreement. Likely anything that the agreement says the company will do such as pay you a certain amount of money and the like. Bottom line is that if you don't like the agreement, don't sign it. If you want the benefits they are promising in the agreement, then sign it and move on. |
Given Shapiro v. Thompson, why are US states allowed to charge higher tuition fees to new residents? If I'm reading Shapiro v. Thompson correctly, US states are not allowed to require a period of residence before providing welfare benefits to US citizens. But doesn't this mean that charging different tuition rates to out-of-state students is unconstitutional as well? Has anyone attempted to challenge the discrimination of non-resident students under that precedent? | Shapiro v. Thompson was overruled in part by Edelman v. Jordan, 415 U.S. 651 (1974). See the Wikipedia article. In Vlandis v. Kline, 412 U.S. 441 (1973), the court notes and did not object to durational residence requirements imposed by states to qualify for the benefits of lower university tuition. In Vlandis the Court wrote: Like many other States, Connecticut requires nonresidents of the State who are enrolled in the state university system to pay tuition and other fees at higher rates than residents of the State who are so enrolled. Conn. Gen.Stat.Rev. § 1329(b) (Supp. 1969), as amended by Public Act No. 5, § 122 (June Sess.1971). The constitutional validity of that requirement is not at issue in the case before us. What is at issue here is Connecticut's statutory definition of residents and nonresidents for purposes of the above provision. ... The appellees do not challenge, nor did the District Court invalidate, the option of the State to classify students as resident and nonresident students, thereby obligating nonresident students to pay higher tuition and fees than do bona fide residents. The State's right to make such a classification is unquestioned here. Rather, the appellees attack Connecticut's irreversible and irrebuttable statutory presumption that, because a student's legal address was outside the State at the time of his application for admission or at some point during the preceding year, he remains a nonresident for as long as he is a student there. This conclusive presumption, they say, is invalid in that it allows the State to classify as "out-of-state students" those who are, in fact, bona fide residents of the State. ... It may be that most applicants to Connecticut's university system who apply from outside the State or within a year of living out of State have no real intention of becoming Connecticut residents, and will never do so. But it is clear that not all of the applicants from out of State inevitably fall in this category. Indeed, in the present case, both appellees possess many of the indicia of Connecticut residency, such as year-round Connecticut homes, Connecticut drivers' licenses, car registrations, voter registrations, etc.; and both were found by the District Court to have become bona fide residents of Connecticut before the 1972 spring semester. ... In sum, since Connecticut purports to be concerned with residency in allocating the rates for tuition and fees in its university system, it is forbidden by the Due Process Clause to deny an individual the resident rates on the basis of a permanent and irrebuttable presumption of nonresidence when that presumption is not necessarily or universally true in fact, and when the State has reasonable alternative means of making the crucial determination. ... Our holding today should in no wise be taken to mean that Connecticut must classify the students in its university system as residents for purposes of tuition and fees just because they go to school there. Nor should our decision be construed to deny a State the right to impose on a student, as one element in demonstrating bona fide residence, a reasonable durational residency requirement, which can be met while in student status. We fully recognize that a State has a legitimate interest in protecting and preserving the quality of its colleges and universities and the right of its own bona fide residents to attend such institutions on a preferential tuition basis. | Not in the state of California. California law prohibits discrimination based on source of income; only discrimination based on amount of income is allowed. See the California Government Code, section 12955. It is not even legal to indicate a preferred source of income in the advertisement; landlords may ask prospective tenants about the source of income, but may not discriminate or indicate preference for a particular source (provided it's a lawful source). Also, you can't really force a city to re-zone based on "I'll make sure this bad thing doesn't happen." If the city doesn't want to re-zone, they won't re-zone. You have no right to force them to re-zone; this is especially true when the property was purchased under those zoning rules (if the buyer didn't like them, they didn't have to buy). | I don't know about that particular case, but you are basically right: In Switzerland, if you want to apply for citizenship, you apply for it in the municipality first. Everybody having the citizenship of the municipality has the swiss citizenship as well. In theory, the canton and the state also have something to say, but that's irrelevant for most applications. This has historic reasons, but going into the details is beyond the scope of this question. Fact is, that every municipality has its own rules, about when and how applications are handled. This has been unified a bit in recent years, but some things still differ. That is for instance, how many years you need to have lived there or who decides your application. There were municipalities (actually most) where the final decision was made using a public vote. This practice was declared illegal by the federal court some years ago, because becoming a citizen is a formal governmental act, and as such a reason needs to be given for turning an application down. This is inherently impossible with a vote. Since that law decision, most municipalities have shifted the responsibility to a committee for citizenship applications. The public can still bring in arguments, but they need to be justified (ie. if somebody knows about the applicant being a wanted criminal somewhere). Consequently, you can now call for a court to check whether the given reasoning is correct and just, if you are turned down. | The law was changed several times, and different versions apply to different age groups because certain rules were not changed retroactively. The page you link describes the situation for children born after the year 2000. My advice: citizenship is such a serious matter that you should consult a specialized lawyer, not a random crowd on the web. | Isn’t this discrimination since nationals do not have to apply? Yes it is discrimination. But that does not make it illegal. In fact discrimination is in general legal unless it is based on some characteristic which is specifically forbidden as a basis for discrimination (e.g. race). And in general, all of the countries in the world allow and enforce discrimination based on nationality; for example non-nationals will not be able to run for Head of State (and additional restrictions may apply). The EU members allowing similar rights to the citizens of other EU countries is the exception, not the rule, and once the UK stops being bound by EU treaties it can impose its own legal system on non-nationals. And while EU treaties give lots of rights to EU member-countries citizens, they still allow for discrimination based on nationality (for example you cannot run for Prime Minister or MP of Spain as a foreign EU resident). Isn’t the UK Government breaking the law? This could go against EU treaties, but the point is that the UK will no longer need to comply with them. is the UK Government responsible for the harm and distress caused to the individual health and mental wellbeing? No, the UK Government is not responsible if you do not like its laws to the point that it affects your health. Is there any ground for challenging this scheme legality in court? Unlikely. In any case it will not be because you are frightened by it, any challenge would be in the grounds that the government actions act against some other UK law. For example, if the decision to make such a list was made by the Executive but it contradicts some law approved by the Parliament. If this list does not contradict any law, then there are no grounds for challenging it. Would there a breach of my human rights if I was not to apply for settle status and then subsequentially got deported (taken away from my children, home, business, etc.)? How about if I was refused, re-entry or access to public services (NHS for example)? If you do not apply you will not have any evidence that you were settled, and the government could legitimately believe that you are irregularly in the country and try to expel you; you probably would have an opportunity to prove that you were settled even if you were not in the list but that could be way slower, more expensive, riskier and stressful than just registering now. Get this clear: that settled person list is to help you to show that you were a UK resident before Brexit and to give you the protections that are being negotiated between the UK and the EU for expatriates. Probably you could choose not to enlist, but it would work against you. | Short Answer No. The immigration applicant is generally not entitled to his or her attorney fees in this situation, even though the government is violating one of its own laws. Long Answer The Black Letter Law Question The Right To Fees Depends On The Legal Theory Advanced A consistent answer doesn't exist at the level of generality of the title question. Some of the statutes that relate to a violation of the law by a government official include an attorney fees remedy to a prevailing plaintiff, while others do not. Violations of constitutional rights enforced under 42 U.S.C. § 1983 entitle a prevailing plaintiff to an attorney fees award. But the immigration law is a statutory requirement not a constitutional one and there is no generalized constitutional right to have the U.S. government comply with every provision of every enacted statute. Indeed, the general rule is that enforcement of statutory rights against private individuals is discretionary and non-justiciable. A writ of mandamus filed to compel the federal government to take action as it is required to do under the immigration laws would usually arise under the All Writs Act, 28 U.S.C. § 1651, which does not generally entitle the prevailing plaintiff to attorneys' fees, and that would probably be the case in an All Writs Act petition for a writ of mandamus filed in relation to the timely processing of an immigration application. But the All Writs Act is basically a statutory touchstone through which the door is opened to the entire pre-Revolutionary War English common law of writ practice as modified in a common law manner through case law by the American federal courts, and there are probably some exceptions in fact patterns beyond the scope of the question. This said, I am not an expert in immigration law and it is possible that there are administrative law remedies under either the federal Administrative Procedures Act (APA) or the Immigration and Nationality Act (INA) which might provide a different solution to the same problem. Article III Court Litigation Is The Rare Exception In Immigration Cases Keep in mind that most immigration law matters are in the exclusive original jurisdiction of the immigration courts, which are not Article III courts, and are instead staffed by administrative law judges operating according to immigration court procedures, which must then be appealed to the Board of Immigration Appeals, and only after those remedies are exhausted may most immigration cases be brought before an Article III court which in that case is the U.S. Court of Appeals for the circuit in which the case arose within the immigration court system. And, appellate review of BIA decisions is quite limited. Perhaps someone more familiar with the federal APA and INA would know if there is any right to attorneys' fees under those acts, although I suspect that the answer is that there is not. Indeed, the fact that Article III litigation is such a rare exception to the general rule is one of the reasons that this problem has not been viewed as a crisis that is critical to fix. It is easier to find alternative funding to litigate cases that come up only dozens of times a year than it is to do so for issues in cases that are routine and pervasive. Exceptions Apply Where There Is Wrongful Government Litigation Conduct Also, while attorney fees are not recoverable as a matter of course in actions arising under the All Writs Act where there is not a common law right to attorney fees in a particular fact pattern, attorney fee awards may still be entered in an action under the All Writs Act, or under any other cause of action in federal court, as a sanction for wrongful litigation conduct. There are three kinds of sanctions for wrongful litigation conduct that commonly arise: Rule 11 If a party files a legal document in a federal court case which is frivolous (i.e. lacks any colorable legal basis), groundless (i.e. lacks any factual basis), or vexatious (i.e. is made for the purposes of harassing a party or delaying the case for no legitimate purpose even if it is not otherwise frivolous or groundless), then an attorney fees award may be made as a sanction proportionate to the fees incurred as a result of the wrongful litigation conduct under Federal Rule of Civil Procedure 11. Discovery Sanctions If a party fails to obey the rules governing pre-trial disclosure of information in "discovery" forcing the other party to enforce those obligations in motion practice prior to trial, one of the remedies that the court may (and often does) provide for this wrongful conduct is to award attorney fees to the party that requested the information and did not receive the response that party was entitled to under Federal Rule of Civil Procedure 37. Contempt of Court If a party or someone else with knowledge of the court order and some relationship to a party fails to obey a court order, or if someone who is present in the courtroom engages in conduct disrespectful to the court in the court's actual presence, party who engaged in this misconduct may be held in contempt of court. Contempt of court may be criminal, simply punishing the wrongdoer for misconduct in the same way that one might for a misdemeanor violation, or civil, imposing incarceration or fines or other remedies until the wrongdoer complies with a court order. When someone is held in contempt of court, the sanction for doing so frequently involves an award of attorneys fees incurred as a result of the wrongful action by a party to the case against the wrongdoer. Of these three options, the third, contempt of court, has the most bite as a practical matter. If a judge orders the immigration agency to meet a deadline by a certain time and it fails to do so, which isn't an uncommon result when it has already failed to do so despite receiving formal complaints about the delays, it is very likely that the sanction for failing to meet the court ordered deadline to comply will result in an attorney fees sanction against the government. Does This Rule Encourage Misbehavior? what would prevent the government from always abusing its power? It may decide to process applications as slow as possible, and only process an application in a timely manner if a lawsuit is filed against the government (at the expense of the applicant); but without any further financial consequences to the government. Sometimes Government Officials Do The Right Thing Because It's Their Job In any political and legal system, we have to count on some of the key actors to follow the law not because there are consequences for not following the law, but because their job is to uphold the law. For example, we trust judges and juries to try and rule in accordance with the facts presented to them and the relevant law in the cases they decide in court, even though both judges and juries have absolute immunity from liability for their official judicial acts. The President, and every single other federal government official, federal judge and federal administrative law judge, is likewise sworn to uphold the constitution of the United States, and the President and everyone else in the executive branch acting with authority delegated to them from the President's Executive Branch power has a duty to "faithfully execute the laws" of the United States. Presidential elections represent (theoretically anyway) the judgment of the American people concerning who is most able to do that job properly and to make good choices about how to exercise discretion in doing so. Also, as a practical matter, many snarls in the immigration process are handled by members of Congress in their constituent service role or through the passage of private laws, rather than by attorneys for the applicants in the Article III court, in part precisely because individual litigants can rarely afford to pay lawyers to do that. Almost every Senator and members of the House of Representatives (539 in all including non-voting delegates who still get staff), where I worked as an intern for a while, has a staff member who devotes perhaps 1/4 to 1/2 FTE to resolving cases like this one. Sometimes Delays Are Unavoidable And Not Due To Official Misconduct The wrongfulness of the delay is also mitigated by the fact that often delays are not due to any bad faith conduct on behalf of the federal government officials involved. It is not infrequently the case that it is impossible for federal government officials to do the job that Congress have given them a mandate to carry out, by the deadlines that Congress has set forth, with the funds that Congress has appropriated to them to get the job done. This is true not just in the immigration law context, but in all sorts of circumstances. The Political System's Design Naturally Disfavors Immigrants Of course, politicians and government officials often don't do everything that they are supposed to do for reasons that aren't noble or blameless. The administration in place for the last four years as of the time that this answer is written specifically campaigned on a platform of radically reducing legal immigration and largely succeeded in doing so, even though it lost many particular legal battles on that front. This wouldn't be the first time that this has happened. Immigrants, by definition, are made up of a class of people who can't vote in Presidential or Congressional elections and, as the median voter theorem would predict, their interests as non-voters fall to the bottom of the political priorities. The U.S. Legal System Is Applying Rules Designed For Different Contexts The other reason that this happens is that it evolved that way. There are a lot of good policy reasons (beyond the scope of this answer) for the American Rule that each side bears their own attorney fees in lawsuits between private parties. In a nutshell, it encourages people not to litigate minor disputes and encourages settlements that reduce the deadweight loss of transaction costs associated with litigation in lawsuits where there are substantial amounts in controversy. There are good arguments for the opposite rule as well, which is why there are many exceptions to it and why the English legal system, post-1789, ultimately ended up changing its default fee shifting rule. But when that rule was put in place, "public law" (i.e. lawsuits between the government and private individuals and between governments) was largely outside the jurisdiction of the common law courts that are the ancestors of the modern U.S. court system. The general rule was that you couldn't sue the government or government officials at all, and there were few exceptions and the scope of government regulation in people's lives was much smaller, although that was starting to change. Other Countries Adopt The Rule You Propose In contrast, in French law, under the First Republic, sovereign immunity from its citizens (that survived in England) was abolished, and the Republic established a separate legal system for handling public law disputes, under the supervision of the French Council of State, that has endured through the present. In the French system, copied in principle (although not every administrative detail) by essentially all other countries with a civil law legal system, once you file a public law complaint (on a form you can purchase at your neighborhood convenience store), the Council of State assigns one public law lawyer (basically a senior civil servant and not a member of the same legal professions as private law lawyers and notaries and prosecutors and judges) to represent the government in your case, and assigns another one from the same pool of government lawyers to represent its citizens in the case, in a manner similar to how barristers are assigned to serious criminal cases on a case by case basis in the British criminal justice system. There is a lot to be said for the civil law approach. Historically, it has led to government bureaucracies that are better run and treat citizens more fairly and with less corruption, relative to U.S. style systems, which is an important reason why state owned enterprises are much more popular in countries with civil law systems than in countries without them. But that simply isn't the path that U.S. law has taken, even though there are good arguments that the U.S. system is more vulnerable to being unfair. Various Workarounds And Limitations Prevent Worst Case Scenarios Still, because government officials do try to follow the law as best they can most of the time (especially career civil servants who implement the political appointee's policies), and because really outrageous litigation conduct by government lawyers who take unreasonable positions in public law litigation can result in judicial sanctions, the system still does provide some means for relief when the government violates the law. Finally, the fact that attorney fees aren't shifted in these cases doesn't mean that these cases aren't litigated. In some cases, the individual or their sponsor can afford to litigate the issue. In some cases, immigration attorneys litigate the issue pro bono (i.e. without charge to the client) because the issue has importance to their ability to deliver results to all their other clients or as a form of charitable giving and, in some cases, local governments fund this litigation on behalf of their non-citizen residents or non-profit advocacy groups fund this kind of litigation from private donations. For example, the City of Denver is among those local governments that has established a fund to help pay lawyers to litigate immigration issues on behalf of its residents to address the financial barriers those residents face to enforcing their legal rights under federal immigration laws. So, in an example of the Coase Theorem of economics, even when the formal legal arrangements and rules of a system are non-optimal, a free market economy tends to find workarounds that reallocate unfair burdens in a way that is sufficient to make the system as a whole function better. | I suspect that the statute in question may be Section 11-104(1)(F) of municipal ordinances of the Town of Bloomsburg, PA, a university town (home to Bloomberg University of Pennsylvania, a public college) that purports to have special need for regulation based upon the large number of student rentals in the town and apparently applies primarily to house rentals to students. (If not, the ordinance in question may be modeled on this one, or this one may be modeled on the ordinance in question.) This ordinance imposes the following duties on people who have been granted landlord licenses, which the town requires of most landlords renting to students (a landlord is called the "owner" in the ordinance): The owner shall maintain a current and accurate list of the occupants in each regulated rental unit or dormitory unit which shall include their name, permanent address and permanent telephone number which shall be available to the Town for inspection upon reasonable notice. The owner shall notify the Town of changes in the occupancy within 10 days of the change and shall provide the name of the person who is not longer residing in the premises in the event a person departs and the name, permanent address and permanent telephone number of new occupants in the event a new person is added. On its face, this is probably valid. There is not a constitutional right to keep your own contact information or address, or your tenant's identity. Indeed, very similar requirements are routinely imposed upon operators of hotels and motels. And, I strongly suspect that in Pennsylvania, that towns of any reasonable population have more or less plenary authority to adopt ordinances that aren't specifically prohibited by other state or federal laws or constitutions or the town charter. I do not believe that there are any federal statutes that prohibit a town from imposing such a requirement, barring extraordinary circumstances like a duty to cooperate with national security measures, witness protection programs, or a federal organized crime investigation that don't benefit the average tenant. The kind of privacy policy and privacy disclosure laws in place at the national level apply mostly to health and financial information (and far more in Europe), but not generally to legally mandated disclosures of landlords to local governments. The requirements of a privacy policy don't apply here. The main federal privacy laws and some of the most notable state privacy laws are: The Children's Online Privacy Protection Act (COPPA) which affects websites that knowingly collect information about or targeted at children under the age of 13. Any such websites must post a privacy policy and adhere to enumerated information-sharing restrictions COPPA includes a "safe harbor" provision to promote Industry self-regulation. The Gramm-Leach-Bliley Act requires institutions "significantly engaged" in financial activities give "clear, conspicuous, and accurate statements" of their information-sharing practices. The Act also restricts use and sharing of financial information. The Health Insurance Portability and Accountability Act (HIPAA) privacy rules requires notice in writing of the privacy practices of health care services, and this requirement also applies if the health service is electronic. The California Online Privacy Protection Act of 2003 – Business and Professions Code sections 22575-22579 requires "any commercial websites or online services that collect personal information on California residents through a web site to conspicuously post a privacy policy on the site". Both Nebraska and Pennsylvania have laws treating misleading statements in privacy policies published on websites as deceptive or fraudulent business practices. But, most of these laws apply only to Internet sharing of information by private firms, and the Nebraska and Pennsylvania laws don't require anyone to actually have a privacy policy. Those laws certainly don't pre-empt local ordinances. There is at least one state law that should supply an exemption to this statute in Pennsylvania pertaining to confidentiality for domestic violence victims that should override contrary town ordinances. Address Confidentiality Program (ACP): Victims can get a legal substitute address (usually a post office box) to use in place of their physical address; this address can be used whenever an address is required by public agencies. First class mail sent to the substitute address is forwarded to the victim's actual address. Probably the most fruitful means by which an ordinance like this one could be challenged would be to argue that the true intent of the ordinances when adopted or as it has been subsequently applied, is to use it for a purpose that the town is not allowed to engage in, such as enforcing immigration laws, suppressing voting rights, imposing a de facto poll tax, or engaging in discrimination against a protected class in violation of state and federal fair housing laws. College students, however, the expressly stated and plausible target of the ordinance, are not generally a protected class under fair housing legislation. There are precedents upholding zoning regulations discriminating against households of "Dwelling units presently being used by three or more unrelated individuals" aimed at students and other kind of populations whom municipal busybodies often find to be undesirable against federal constitutional challenges. See, e.g., Moore v. East Cleveland, 431 U.S. 494 (1977) and Village of Belle Terre v. Boraas, 416 U.S. 1 (1974). California's courts have been more hostile to this kind of legislation. See, e.g. City of Santa Barbara v. Adamson, 27 Cal. 3d 125 (Cal. 1980) (an op-ed arguing that this was wrongly decided in the L.A. Times in 1990 is here), but that isn't very helpful in Pennsylvania, and California rather than Pennsylvania is the outlier nationally on this kind of issue. The general issue over free association and privacy rights in connection with housing and unrelated individuals is discussed in an up to date manner in a 2016 Florida Law Review article. Proving an improper purpose in an as applied or legislative intent based challenge to a facially neutral statute is very, very difficult in all but the most blatant cases (e.g. when town council members openly proclaim their improper purpose is that true purpose of the law). No doubt recognizing the possibility of such a challenge to the ordinance, this particular ordinance has a particularly lengthy and detailed legislative declaration regarding its purpose that no doubt is an effort to take a position that it has a proper purpose in the event of future litigation. This states: It is the purpose of this Part and the policy of the Town Council of the Town of Bloomsburg, in order to protect and promote the public health, safety and welfare of its citizens, to establish rights and obligations of owners and occupants relating to the rental of certain dwelling units and dormitory units in the Town of Bloomsburg and to encourage owners and occupants to maintain and improve the quality of rental housing within the community. It is also the policy of the Town that owners, managers and occupants share responsibilities to obey the various codes adopted to protect and promote public health, safety and welfare. As means to those ends, this Part provides for a system of inspections, issuance and renewal of occupancy licenses and sets penalties for violations. This Part shall be liberally construed and applied to promote its purposes and policies. In considering the adoption of this Part, the Town of Bloomsburg makes the following findings: A. While the Town Council of the Town of Bloomsburg acknowledges the significant contribution that Bloomsburg University, its students, faculty and staff makes to the culture and economy of the Town of Bloomsburg, in recent years, adverse effects of student housing on residential neighborhoods have increased and there has been an increase in destructive student behavior that threatens the health, safety and welfare of the student citizens and non-student citizens of the Town of Bloomsburg. B. Accordingly, the Town Council of the Town of Bloomsburg makes the following findings relating to student housing and its effect on the residential neighborhoods of the Town of Bloomsburg and the effect of student lifestyles on the health, safety and welfare of the student citizens and non-student citizens of the Town of Bloomsburg: (1) When compared to other unrelated cohabitating individuals and traditional families, groups of students have different hours, work and social habits and frequently cause noise, disturbances and problems in residential neighborhoods. (2) There is a greater incidence of violations of various codes of the Town at residential properties where owners rent such property to students. (3) There is a greater incidence of problems with the maintenance and upkeep of residential properties where owners rent such property to students than at owner-occupied residential properties, family-occupied residential rental properties or residential properties that are occupied by unrelated persons who are not students. (4) There is a greater incidence of disturbances which adversely affect the peace and quiet of the neighborhood at residential properties where owners rent to students than at owner-occupied residential properties, family-occupied residential rental properties or residential properties that are occupied by unrelated persons who are not students. (5) A concentration of student homes changes the character of a neighborhood from one with traditional family values to one that cannot maintain those and approximately 90% of the Town's student homes are concentrated in two areas of the Town which displaces middle and lower income housing by absorbing housing units and rendering the remaining units less desirable for more traditional residential use. (6) Since 1994, nine students have died as a result of fires in houses occupied by students; two students have died of alcohol overdose; one student has died as a result of exposure when he fell from a porch at a student party. (7) Since 1997, 155 reports of disruptive conduct under the Town's Regulated Rental Unit Occupancy Ordinance involving student behavior have been filed. (8) Since 1996, 73 prosecutions for unlawfully occupying premises while smoke or fire detectors were not operational have been filed against students. (9) Since 1998, 295 prosecutions for underage drinking have been filed against students and 11 prosecutions were filed against non-student residents of the Town of Bloomsburg. (10) Since 1998, 43 student parties have been raided where arrests were made for underage drinking and furnishing alcohol to minors. (11) There are sufficient differences between student housing and nonstudent housing and the behavior of students and non-student residents to justify different regulations for each class of resident. (12) Dwelling units presently being used by three or more unrelated individuals are being modified for occupancy by two students requiring the relocating of bearing walls and the modification of utilities, sanitation facilities, means of ingress and egress and smoke and fire detection systems. (13) Inspections of dwelling units occupied by two students have revealed little or no life protecting equipment in the dwelling units such as smoke and fire alarms and detectors and fire extinguishers, over-loaded electrical services, heating systems needing servicing and the use of supplemental heaters, all of which create a dangerous living environment. (14) There is a significant occurrence of disruptive behavior in dwelling units occupied by less than three unrelated students as compared to dwelling units that are occupied by owners, traditional families or unrelated persons who are not students. (15) Students who remain in the occupancy of the premises for periods of time after they are no longer students contribute to the above-described problems. (16) Because of the demand for student housing in the Town of Bloomsburg, developers have expressed interest in developing properties for use as dormitories where students live in rooms without fixed kitchen facilities. (17) Dormitory type uses are not covered by the Regulated Rental Unit Occupancy Ordinance which applies only to dwelling units. (18) The Town Council of the Town of Bloomsburg is desirous of providing the same protection and standards for students who reside in dormitories or dwelling units. (19) The Town Council of the Town of Bloomsburg is desirous of imposing the same responsibilities upon owners of dormitory units and dwelling units where students reside. (20) The Town Council of the Town of Bloomsburg finds that Bloomsburg University has sufficient resources and interest to properly manage dormitories owned by it and there is no need to regulate such dormitories. Even though it probably isn't inherently invalid, it is unusual, so it is likely to be challenged if someone can find an angle to do so. And, I suspect that its purposes are not as pure as those formally identified in the text of the ordinance. In conclusion, while I would totally hate to have an ordinance like that one in my town, it isn't obviously invalid and would probably survive a facial challenge in the absence of evidence that is was being applied in an illegally discriminatory manner. | This is answered here. According to Wikipedia, birthright citizenship was extended to children with citizen mothers and noncitizen fathers in 1934; the text of that law seems to be found here. The 1961 Supreme Court ruling that Salon is referring to seems to be this one, but they are interpreting the law as it stood in 1906, not 1961. Petitioner, whose mother is a native-born United States citizen and whose father is a citizen of Italy (their marriage having been in the United States), was born in Italy in 1906 while his parents were temporarily residing there, and entered the United States with his mother later the same year. |
Public figure status in Canadian defamation law Earlier this month the controversial professor Jordan Peterson of the University of Toronto became the plaintiff in a slander suit against a professor at Wilfred Laurier University. If this were in the United States, I suspect Peterson's status as a "public figure" might make it difficult or impossible for the plaintiff to prevail. What, if anything, would be the effect of that status on this lawsuit? | 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. | There is no opinion from the Ninth Circuit. I just checked PACER, and there is a docketed order dated May 18, 2016: Filed order (STEPHEN REINHARDT, MARY H. MURGUIA and JOHN B. OWENS) We have reviewed appellant’s opening brief, appellees’ motion for summary affirmance and appellant’s opposition thereto. We conclude that the questions raised in this appeal are so insubstantial as not to require further argument. Accordingly, we grant appellee’s motion for summary affirmance. See United States v. Hooton, 693 F.2d 857 (9th Cir.1982) (per curiam) (summary affirmance appropriate where the result is clear from the face of record); see Mullis v. United States Bankr. Court for Dist. of Nevada, 828 F.2d 1385, 1388, 1394 (9th Cir. 1987) (judges are immune from civil liability for damages and for declaratory relief for their judicial acts). AFFIRMED. [9981929] (WL) [Entered: 05/18/2016 02:48 PM] I downloaded Jaffe's Ninth Circuit brief and it's a pretty dull work of a crank. I use the RECAP Mozilla add-on, so the Ninth Circuit docket and brief should show up on RECAP soon. Go to https://www.courtlistener.com/ and in "Advanced Search", search on docket no. 15-56328. Based on past experience it should show up in a day or two. But that's the Ninth Circuit brief, not the SCOTUS one you're looking for; unfortunately, the U.S. Supreme Court is the one US court that is not searchable via PACER. You're limited to the docket, opinions and orders that the Court publishes on its site. For more legitimate cases, briefs can often be found on either SCOTUSBlog or the ABA's briefs page, but not in this case. | 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. | 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. | Meta Considerations I'm not aware of any such cases and I don't think that there are any, because if there was, the case would have generated more publicity around a "glamorous" issue in the law. Despite the fact that constitutional law makes it much easier to bring defamation cases when one is a private individual suing a non-media defendant in a matter of private concern, any search of the case law reveals that the defamation cases that actually get brought are those against media defendants and those involving matters of public concern. Private individuals rarely suffer enough harm to make it economical to bring a defamation suit, and people whose lives are not a matter of public concern rarely have deep pockets to hire attorneys to bring defamation lawsuits. Only Nominal Damages And No Attorneys' Fees Could Be Recovered First of all, even in a negligence per se case, where an award of nominal damages (i.e. $1 and court costs excluding attorneys' fees) is allowed as matter of law to the prevailing party, I don't think that an award of more than nominal damages would be upheld in the face of affirmative evidence that there was no actual harm to the reputation of the person defamed as a result of the publication of the defamatory statement. In defamation per se cases, nominal damages are awarded when "there is no proof that serious harm has resulted from the defendant's attack upon the plaintiff's character and reputation" or "when they are the only damages claimed, and the action is brought for the purpose of vindicating the plaintiff's character by a verdict of a jury that establishes the falsity of the defamatory matter." RESTATEMENT (SECOND) OF TORTS § 620 cmt. a (1977). This would apply in a case of complete disbelief. Since the American rule applies to attorneys' fees in defamation cases, this would make every such suit an economic loser – which doesn't mean that someone might not act in an economically irrational way to defend their honor or something like that. Suing Increases The Harm Rather Than Mitigating It The publicity of a public trial undermines that approach in the kind of case in the hypothetical as well. Absent a lawsuit, there are one or two people who don't even believe it who heard the defamatory statement. But, if you bring a lawsuit, given the likelihood that the media will cover such a case, millions of people will hear the defamatory statement and they may very well believe those statements because they don't know any better. Even if you are ultimately vindicated at the conclusion of a trial, many people will have heard the defamatory statements after the suit is filed, but will never find out that you were vindicated many months later following a trial. Massively spreading defamatory statements about yourself that nobody would otherwise have heard about is just stupid as a matter of litigation tactics. The Presumption Of Harm To Reputation May Be Rebuttable Secondly, it isn't obvious to me that the presumption of harm to reputation in a negligence per se case is a conclusive presumption as opposed to a rebuttable presumption. For example, one can generally argue in a defamation case that someone's reputation before the defamatory statement was made is so irretrievably bad in the area related to the defamatory statement that it is impossible to damage someone's reputation any further, and so far as I know, that argument is not prohibited in negligence per se cases. For example, an intentionally false defamatory statement (which he can prove is false with an iron clad alibi and which the maker of the statement admits was made up at trial) that Ted Bundy once punched a prostitute in the nose giving her a black eye at the Moonbeam Bar at a particular date in the midst of Ted Bundy's serial killing spree, while constituting negligence per se might not state a claim for relief given that Ted Bundy's reputation for not being a violent criminal is already hopelessly tarnished by his multiple murder convictions for similar conduct. Milkovic Can Be Evaluated In Context Third, I am inclined to think that Milkovich v. Lorain Journal, 497 U.S. 1, one of the holdings is that "statements that cannot reasonably be interpreted as stating actual facts about an individual are protected," together with cases such as the New York Times case reflect an evolving understanding in the law (quite distinct from the British concept of defamation which has a bit of an "if you don't have something nice to say don't say anything at all" to it), that defamation is simply a special kind of fraud claim in U.S. law, and that the tort of defamation is only constitutional in the United States because it is a form of fraud claim. If defamation is and must be merely a special kind of fraud, then the reliance element of a fraud claim is probably constitutionally required in a case where the existence or absence of reliance can be discerned as a matter of fact, without resorting to generalities as the court in Milkovich had to since the statement was published to a large number of people. It would not be unreasonable (and arguably constitutionally mandatory) to read a gloss on the "statements that cannot reasonably be interpreted as stating actual facts about an individual are protected" standard of Milkovich, to include an implied "by the people to whom the statement was published" clause, which would have one meaning when a large number of people in the general public heard it, and another in a context when only one or two people actually heard the statement, or when it was only heard by a group of people who would interpret it differently than the general public would. And, if so, that would be a complete defense and would not just reduce the claim to one limited to nominal damages. This is not a great stretch. For example, in California the words of an alleged libel must be considered "according to the sense and meaning under all the circumstances attending the publication which such language may fairly be presumed to have conveyed to those to whom it was published." Macleod v. Tribune Publishing Co., 52 Cal.2d 536, 546-547; Selleck v. Globe International, Inc., 166 Cal.App.3d 1123, 1132. Libel Per Se No Longer Exists For Media Defendants Absent Actual Malice At one point it looked like the case Gertz v. Robert Welch, Inc., 481 U.S. 323, 349-350 (1974) might constitutionally eliminate libel per se, but this was premature. Gertz does not apply in cases involving matters of private concern to private individuals where the defendants are not media defendants. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985) (where a defendant's speech concerned a private individual and a matter of private concern, states could allow plaintiffs to recover presumed and punitive damages even absent a showing of actual malice). But, Dun & Bradstreet didn't address the question of whether the presumption of damages in a libel per se case was a conclusive presumption or a rebuttable one, because if it is a rebuttable presumption, then it could be overcome in the hypothetical of the question. And, it also doesn't address the question of whether the Milkovich analysis in a libel per se case must be context specific. In a case involving a media defendant and a private individual plaintiff the U.S. Supreme Court held in Gertz v. Robert Welch, Inc., 481 U.S. 323, 349-350 (1974) that: States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth. The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion, rather than to compensate individuals for injury sustained by the publication of a false fact. More to the point, the States have no substantial interest in securing for plaintiffs such as this petitioner gratuitous awards of money damages far in excess of any actual injury. We would not, of course, invalidate state law simply because we doubt its wisdom, but here we are attempting to reconcile state law with a competing interest grounded in the constitutional command of the First Amendment. It is therefore appropriate to require that state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved. It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We need not define "actual injury," as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury. We also find no justification for allowing awards of punitive damages against publishers and broadcasters held liable under state-defined standards of liability for defamation. In most jurisdictions jury discretion over the amounts awarded is limited only by the gentle rule that they not be excessive. Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. And they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship, but, unlike the former rule, punitive damages are wholly irrelevant to the state interest that justifies a negligence standard for private defamation actions. They are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. In short, the private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury. See also Time, Inc. v. Firestone, 424 U.S. 448, 459 (1976). In the cases where it applies, Gertz requires proof of actual damages and bars the award of punitive damages, as a First Amendment requirement, and since actual damages are entirely absent in the case of the defendants in the question's hypothetical, if Gertz applied to them, they would not prevail. Now, Gertz in 1974 when it was decided, had limitations – it involved media defendants for whom actual malice could not be shown, but it did eliminate the public figure/public concern requirement. But, it isn't obvious to me that the Gertz limitations have not been expanded since then. Libel per se no longer exists in cases governed by Gertz (i.e. media defendants for whom there is no showing of actual malice). From v. Tallahassee Democrat, Inc., 400 So.2d 52 (Fla. App. 1981). Texas has expanded Gertz somewhat and held that even in cases where it does not apply, actual proof of actual damages is required to recover exemplary damages, even in libel per se cases where damages are presumed. Doubleday & Co., Inc. v. Rogers, 674 S.W.2d 751, 755 (Tex. 1984). | Probably not. Overview You haven't specified a jurisdiction. I will talk about Australia because that's what I'm familiar with. In Australia the most relevant area of law would be tort, specifically negligence. The university would be liable to pay damages if a court found that it owed a duty of care to your friend, that it breached that duty, and that your friend suffered injury ('injury' including loss of property as well as mental suffering) as a result of that breach. Also potentially relevant would be contract law, if your friend and the university had entered into some kind of agreement relating to his security, or equity, if the university had somehow acted to lead your friend to rely, to his detriment, on the university protecting him (promissory estoppel: Walton Stores v Maher). However, I think this is unlikely unless, for some reason, the university had put up signs saying 'Please come onto our land and we will be responsible for your security'. Negligence You have stated that 'it is their responsibility to make sure all students are safe on campus.' It is not clear whether you mean to state that as a fact or whether you are suggesting it as a possible hypothetical basis of liability. I am not aware of a case that establishes the proposition that universities do have such a duty. The judgments in Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254 discuss the liability of the occupier of land (such as the university in your example) for injuries inflicted by criminals upon people present on land (such as your friend in your example). In that case, the defendant ran a shopping centre. The plaintiff worked at a shop in the shopping centre. At the end of the plaintiff's shift at 10.30pm, it was dark outside because the shopping centre switched the lights in the car park off at 10pm. The plaintiff was mugged in the shopping centre car park on his way out to his car. The key question there was whether the defendant shopping centre was under a duty to keep the lights on for workers leaving work (along with the question of how the failure to illuminate the area led to the attack i.e. whether the plaintiff still have been mugged if the lights were on). Therefore the question that we are presently interested in, about an occupier's responsibility to protect visitors, is only dealt with as a side issue in that case. But the principle is pretty well-established that, generally, you are not responsible to protect another person from the criminal acts of a third person. The common law has a strong presumption against imposing liability for 'omissions' as distinct from acts, which is another way of saying that the courts don't want people being liable to run out into the street and help people. See paragraphs 27 and 28 and thereabouts in Modbury Triangle. Particular relationships may exist which create such a duty. One is in relation to school children; the school is responsible for taking such care of the child as a parent would. The relevant features of this the school-child relationship include the child's vulnerability as a child and the way the school controls their movements and enviroment during the school day. I presume that your friend is not a child and the university does not control his or her movements. Therefore a court is likely to be looking at the general principle that the university is not responsible for protecting people from the criminal acts of strangers, and then looking (and probably not finding) any special feature of the relationship between your friend and the university that creates an aspect of vulnerability, reliance or control that makes it reasonable to impose a duty of care. Some people think that there is a general principle that if something bad happens to them, some identifiable person with cash must be responsible for paying compensation, whether that is an insurer, the government or a nearby corporation. The common law has not picked up that principle. The common law would slate the responsibility home primarily to the mugger. Sue them. What does the university have to do with it? Conceivably the university might also be liable along with the mugger, but the fact that an injury occurred and nobody else can in practice be held responsible does not in itself make the university liable. As mentioned by Pat W., there may be some other feature that creates a duty, such as if the university had made some change to the environment that allowed made the attack to occur when it wouldn't otherwise have e.g. moving your friend's dormitory so that the only entrance was through a dark alley, or if the attack occurred inside a university building where the university controlled entry (even then not sure that would get your friend over the line). | That's an old idea that has been tried several times before (such as the first, being Unvarnished: Website Lets You Review People (And Trash Them) | HuffPost, which no longer exists); and one of the latest incarnations is Peeple (mobile application - Wikipedia). There are lots of legal liabilities, including defamation and harassment/stalking, even with the Section 230 of the Communications Decency Act | Electronic Frontier Foundation which (mostly) protects the website owner from others' speech posted on the site (your mileage may vary due to jurisdiction). The only way such a site would survive is to do what Peeple and other sites have done: greatly limit the speech allowed, such as limiting to only positive reviews, giving the subject complete control over what does appear on their profile, only allowing "opt-in" profiles, verify identities, etc. You would have to implement full GDPR compliance; but various lawsuits will either shut you down before you get far enough to launch or soon after and force you to greatly limit the scope of the site. Most lawyers would advise you to find something else to do with your time and money. | Saying "they didn't have an affair", in isolation, would not be defamation. But we have to look at the context. Daniels had previously stated publicly that they did have an affair. So when Cohen said that it wasn't true, he was (claims Daniels) effectively calling her a liar. Calling someone a liar is potentially defamatory. You can read Daniels's complaint here. See paragraph 67: Both on its face, and because of the facts and circumstances known to persons who read or heard the statement, it was reasonably understood Mr. Cohen meant to convey that Ms. Clifford is a liar, someone who should not be trusted, and that her claims about her relationship with Mr. Trump is 'something [that] isn't true.' Mr. Cohen's statement exposed Mr. [sic] Clifford to hatred, contempt, ridicule, and shame, and discouraged others from associating or dealing with her. As to whether calling someone a liar is defamatory, there's a long article on the subject here. There are at least some cases where courts have held that it is. Gutterman, Roy S. "Liar! Liar? The Defamatory Impact of 'Liar' in the Modern World." Fordham Intellectual Property, Media and Entertainment Law Journal 27 (2) 253-286, 2017. |
Manslaughter or Negligence -does not inform all risks in surgery which results in death of a patient Is manslaughter a potential legal consequence of treating a patient without obtaining a valid consent? i.e. A surgeon does not inform all the risks involved in the surgery to a patient, causing a death. Because it is an unlawful killing and does not involve malice aforethought, I think it is manslaughter. Am I correct? Or is it just negligence? | I don't think that simply failing to make a sufficient explanation of the risks would make a death manslaughter. Three would have to have been serious negligence in addition, rather beyond the level needed to find malpractice, as I understand the matter. Law.com says that: Voluntary manslaughter includes killing in heat of passion or while committing a felony. Involuntary manslaughter occurs when a death is caused by a violation of a non-felony [sic], such as reckless driving. The Wikipedia article on Manslaughter says that Involuntary manslaughter is the homicide of a human being without intent of doing so, either expressed or implied. It is distinguished from voluntary manslaughter by the absence of intention. It is normally divided into two categories, constructive manslaughter and criminally negligent manslaughter, both of which involve criminal liability. Constructive manslaughter is also referred to as "unlawful act" manslaughter. It is based on the doctrine of constructive malice, whereby the malicious intent inherent in the commission of a crime is considered to apply to the consequences of that crime. It occurs when someone kills, without intent, in the course of committing an unlawful act. ... Criminally negligent manslaughter is variously referred to as criminally negligent homicide in the United States, and gross negligence manslaughter in England and Wales. In Scotland and some Commonwealth of Nations jurisdictions the offence of culpable homicide might apply. It occurs where death results from serious negligence, or, in some jurisdictions, serious recklessness. A high degree of negligence is required to warrant criminal liability. ... An example is where a doctor fails to notice a patient's oxygen supply has disconnected and the patient dies (R v Adomako). Another example could be leaving a child locked in a car on a hot day | Giving someone a drug without their consent can be considered infliction of bodily harm in various jurisdiction. When it caused a negative effect on the person the perpetrator did not anticipate, it might be grossly negligent (if that effect was likely to occur) or just negligent (if one could not reasonably expect that this effect would occur). Details depend on jurisdiction and the mood of the judge. It might also be a factor if the court rules that the defendant acted in bad faith (for example, by expecting that the drug would make the injured party consent to something they wouldn't have consented to otherwise, regardless of if this actually happened). Additionally, if the intention was to cure the injured party from a medical ailment (as implied by "pill with beneficial effect") it could theoretically be possible that the perpetrator also gets charged for practicing medicine without a license (if that is illegal in the jurisdiction). Should the perpetrator have a medical license, they will likely get charged with medical malpractice, because in most jurisdictions it is illegal to treat a patient without their consent (if the patient is in a condition which makes informed consent possible). Regarding adding something to your own drink and inadvertently poisoning someone else who drinks from it: In most societies, drinking from the glass of someone else is considered against social etiquette, so a possible defense could be that the perpetrator could not reasonably expect that the person would do that. But it could still be judged as infliction of bodily harm through negligence depending on the circumstances and how likely it was to happen. For example, in an environment where many glasses with similar-looking drinks stand on a table, the risk that glasses get mixed up is quite high. Details - again - depend on jurisdiction. | California Penal Code 647f states that being intoxicated in public is prohibited. When the police arrived, they were confronted with probable cause for an arrest. They (presumably) became aware of the matter because the doctor called the police, since she believe that you would drive drunk. (We can inquire into whether that was a reasonable belief, but it doesn't matter, what matters is that she had the belief and acted on it). Now the question is whether the doctor acting on the belief (making the call) was legal. A negative answer does not affect the legality of the arrest. There is also a law imposing on medical professionals a duty to report, which is fairly wordy, but does not seem to directly require reporting the fact that a person is publicly intoxicated. However, attending circumstances could have suggested one of the triggering causes for mandatory reporting (wounds, for example). Again, it does not matter (to a point) if, in the light of close scrutiny, the doctor's conclusions were mistaken. When doctors are required to report facts to the police, reasonable over-reporting is not penalized. There is also no law against calling 911 to report a potential DUI (the usual public-campaign focus is on those actually driving). So calling the police under the circumstances falls between "allowed" and "required". The HIPAA privacy rule could be relevant because that theoretically could block the doctor from making the call. (Note that the doctor, and not the patient, is bound by the confidentiality requirements). §160.203 allows exceptions to the confidentiality requirement if "necessary... For purposes of serving a compelling need related to public health, safety, or welfare", so an exception may have been granted. If this was done within the scope of a mandatory reporting law, it is legal to disclose PHI; under §164.512 it is allowed, "to prevent or lessen a serious and imminent threat to the health or safety of a person or the public". A confidentiality agreement would not increase your chances of being arrested. If the doctor's confidentiality statement were less restrictive than HIPAA, HIPAA prevails (the law trumps contract terms). If it is the same as HIPAA, it has no effect (and simply states what HIPAA says – the normal case). If the agreement were more restrictive, it is possible that the doctor calling the police would be a breach of contract, unless the call was required by law. You would have to see what in the agreement would have prohibited calling the police. But that would not affect the validity of the arrest. To re-phrase the matter: the arrest was because you were found to be intoxicated in public. The police were there and could judge your state (probable cause). They were there by permission of the property owner, so the arrest was not unlawful for lack of a warrant. That is as far as one can go in searching for an illegality to the arrest itself. One might go further and ask whether the doctor has committed an actionable wrong by calling the police with her suspicions. This could go either way: it really depends on the full set of details, regarding your condition. If the doctor suspected that your actions fell under one of the mandatory reporting categories, she had to report, and otherwise it is not prohibited under HIPAA. If a person is intoxicated and answers the question "Would you normally proceed to drive home in this state?" in the affirmative, then it is a reasonable inference that the person will do so. An answer "No, absolutely not", on the other hand would work against the "public danger" inference: that has no effect on the arrest, but could have an effect in a suit against the doctor (violation of the privacy rule). In such a suit, the doctor's defense would presumably be that despite the answer, she still had a reasonable belief that you were a public danger. Then the matter would reduce to what other facts she knew of that would support a public danger conclusion. | Murder is one of the few cases where the intention and not just the act is relevant. The act – killing a person – is the same for Mord and Totschlag, whereas fahrlässige Tötung covers acts that have caused the death of a person. The language of the Stgb labels the perpetrator who killed someone as a murderer or manslaughterer depending on their intention. That a person and not an act is punished is often criticized, but it has no practical consequence. Clearly, the intention isn't that the second one is free. Courts are able to interpret the law reasonably. However, the distinction between two kinds of killings seems to have no basis in reality and robs courts from flexibility to find a just sentence. There are occasional attempts at reform, but none will be successful while CDU/CSU is part of the government. | What you are charged with - murder and the appropriate degree, manslaughter, felony assault or other crime - depends on the local or federal prosecutor (and possibly a grand jury), the jurisdiction and how the prosecutor views the evidence; and if the prosecutor feels they can win a conviction against you in front of a jury for the charges. The prosecutor will look at the evidence and try to determine your motive and what actually happened: did you want to kill the kidnapper, i.e. use deadly force to stop the crime? Did you only want to wound the kidnapper and save your baby? Did you only want to wound the kidnapper but inadvertently killed him/her? Was it possible to stop the kidnapping without using force at all? Did you first try to stop the kidnapping without deadly force and then resort to shooting the kidnapper? Did you endanger others in the area by shooting? Those details all factor into the prosecutor's decision on which of the different degrees of murder, manslaughter, etc., to charge the parent with (or, not charge). See What Is Manslaughter? What Is Murder vs. Manslaughter? | Nolo.com. Once the prosecutor decides on charges, they will try and win a conviction against you in front of a jury for the charges. The prosecutor could possibly decide that the case already been tried in the court of public opinion - the person saving their baby and shooting a criminal is too sympathetic to charge with a crime - and there is no use in bringing charges and not getting a conviction from the jury. Or, the prosecutor could decide that you were legally defending yourself and family and potentially deadly force was justified; this will greatly depend on jurisdiction, i.e. the different types of "Stand Your Ground" laws or other similar laws regarding self-defense in different states. You may be confusing the idea of being charged with a crime and actually being of a convicted of a crime. The prosecutor can charge you with a crime and take you to court, but unless the jury convicts you on the basis of evidence, you won't be convicted. | Is this realistic? Yes. The dramatic performance plays out in the same way that it would in the U.S. Court system. The actual killing of the wife would be 'legal', so can he be charged for murder for something that has been done legally, only because they can prove is intent to kill her before that? Especially since he has already been acquitted of that fact. Mostly, this is an issue of causation and not double jeopardy. From a double jeopardy perspective, the crime of murder is not complete until the person dies, and they have not be tried for murder, so this is a different crime that had not occurred until after the attempted murder trial was over. Causation Issues Even if the immediate cause of the wife's death is withdrawal of life support, the shooting could still be a legally sufficient cause of the wife's death. For example, suppose that you shoot someone and the hospital can't give the victim a blood transfusion because the victim has blood type O- (universal donor) which can only receive blood from other people with blood type O-, and the hospital, due to negligence on the part of a hospital administrator, has run out out of type O- blood. The fact that the victim would not have died if the hospital has not negligently failed to have type O- blood on hand does not provide a defense to murder on the part of the person who shot her. While terminating life support is "legal" it also constitutes a non-judicial finding with legal effect on the part of the person authorizing it and the physicians signing off on the decision, the further medical care would have been futile and that the person whose life support was terminated was already dead in key material respects, even though they would not be dead for purposes of a murder charge until life support is terminated. When death is a natural and foreseeable result of action that causes physical harm, the death is caused by the act that causes the physical harm. Something else that causes death would have to be a "superseding cause" and not just an additional cause of death. Thus, the fact that life support was terminated legally does not mean that she cannot be a murder victim. Indeed, many murder victims are people who are on life support for some period of time and then have that life support terminated because it is futile to continue medical care and the person is already "brain dead" or something equivalent to that. Collateral Estoppel Issues Double jeopardy does carry with it a related concept of "collateral estoppel" which provides that facts necessarily decided in one criminal case cannot be decided differently in a subsequent, related criminal case in some circumstances. But, collateral estoppel applies only when the facts in the prior criminal case were necessarily decided on the merits in the prior criminal case. Acquittal of criminal charged does not necessarily include a determination that someone was innocent of the charges. The fact that he was acquitted of attempted murder does not mean that the jury found that he didn't attempt or intend to murder her. In particular, a dismissal of criminal charges as a result of a technicality that excluded evidence related to an element of the crime for which there was an acquittal, is not a determination on the merits that a particular element of a crime was actually absent, so it would not be binding in the subsequent criminal case for murder. An acquittal does not mean that every element of the prior criminal charges was found not to be present. Collateral estoppel arising from the double jeopardy right, in contrast, might be a ground for dismissal of the murder case, if the man's primary (and perhaps only) defense to the attempted murder case had been that he had established the affirmative defense that someone else committed the murder, or that he had an alibi that made it impossible for him to have committed the murder. Then, the jury would have found on the merits that this defense, equally applicable to the murder case, had already been established. | It excludes pain and suffering incidental to lawful capital and corporal punishment Many countries around the world still execute people. As far as is known, no form of capital punishment is totally painless - even lethal injection involves a needle. In any event, the anticipation of capital punishment is likely to cause suffering. Similarly, corporal punishment such as caning is still a lawful sanction in many jurisdictions. This clearly causes pain - that’s the point - but it isn’t torture. It would also exclude lawful corporal punishment of students by teachers where this is still legal. Or of military personnel by their superiors, again, where that is legal. Now, organisations like Amnesty International consider all of those things to be torture. I don’t think they are wrong in taking that position but, under the convention, they aren’t legally torture. | If we go by Indian case law (as we should), you have to find a way. The relevant case is K.P. Adbul Gafoor v. New India Assurance Ltd, where appellant drove on a motor cycle on a learner's permit without a licensed driver positioned correctly, in violation of Rule 3 of the Rules, and smacked someone. The bulk of the case is about the insurance and liability consequences of violating the rule: the main point here is that the court deemed this to violate the rules. |
Does one have legal recourse if one's spouse lied about wanting to have children? I recently read about a man (Bob) who married a woman (Alice) who already had a daughter from a previous relationship. Bob wanted more children, and Alice was happy to oblige. However, after several years of trying, they never managed to conceive. They approached doctors, who tested Bob for infertility; when those results showed that Bob was fertile, Alice would insist they were incorrect because she knows she's fertile (she's already given birth to a daughter after all). After 13 years and still not being able to conceive, they split up. 18 months after they split up, Bob found out that Alice was lying: she was infertile, and she knew she was infertile, because she had undergone tubal ligation (a surgical procedure which permanently renders her infertile) before they married. Needless to say Bob was infuriated. Question: does Bob have any legal recourse in this case? Does it matter if genders were reversed (since with genders reversed, the woman could have passed menopause and therefore have no chance of having children)? | I exclude Shari`a law because I don't know, but generally there would be no legal recourse that depends on the lie. A marriage is not legally viewed as a contract with enforceable obligations, so a woman could not be forced to bear a child against her will if she had earlier promised to do so, and she could not be penalized in any way. The man still has the ability to obtain a divorce. There is a difference between a fault-based divorce and a no-fault divorce, where a fault-based divorce may be quicker (dispenses with the requirement for months of separate living). In a jurisdiction that has fault-based divorce, the traditional grounds are cruelty, adultery, desertion, imprisonment, and physical inability to engage in sexual intercourse undisclosed before marriage. The latter does not include the inability to get pregnant. Division of marital assets is governed by law, where the principles of division are not punishment, they are equity (although states split into "community property" vs. "equitable distribution" based on the distinction "what is equitable" versus "50-50" – equitable distribution states do not sanction punishing a spouse for misconduct). There are also "marital torts" for certain kinds of wrongful acts, such assault, infecting a spouse with an STD, defamation etc. But as is the case with any tort, there has to be a legal duty between the parties, and that duty has to come from operation of law and not just agreement. There is no legal duty to always tell the truth or to bear children. | In general, in the absence of a reason to the contrary, an individual parent can consent to medical care for the parent's child, even if the other parent wouldn't have agreed to it. This is where to begin the analysis. Often, when parents aren't married there is a custody decree from a court that spells out who does and does not have custody of a child with respect to issues like medical care, but it does not appear that this is the case here. The way paternity law works is that there are certain circumstances which cause someone to be presumed to be a parent until disproven (a couple of which are conclusive presumptions that can't be overcome with facts at some point), but a lack of a presumption doesn't mean that you aren't a parent, just that it is harder to prove that you are a parent. Someone who is, or is presumed to be, a parent, continues to be a parent until that status is legally terminated (usually in a legal proceeding, but sometimes by operation of law). Since you are an actual parent, you continue to be a parent and have that authority, until that status in terminated for purposes of the law or until a court order limits your parental authority. A lack of a father's name on a birth certificate does not create a presumption that a child does not have a father or that you are not a father, although the name of a different man on a birth certificate does create a presumption which can become conclusive at some point, that the person named on the birth certificate is the father. Often this presumption becomes conclusive after five years, although I haven't (as I write this) confirmed that this is the case in New York. It isn't clear from the question if there is a different man named as a father on the birth certificate although it sounds as if it simply fails to name any father. And, often paternity petitions are disfavored or disallowed once a child turns eighteen for at least some purposes. A written acknowledgement of paternity delivered to the appropriate vital statistics record keeping office can establish paternity if not contested. The standard version of this form must be signed by both parents, in each case before two witnesses. The extent to which you are acknowledged as the parent of the child by the mother and others, and the extent to which you are involved in a child's life is also relevant to legal paternity, because a termination of parental rights can proceed in the absence of showing these things. The fact that the child share's your last name and that you are actively involved enough in the child's life to make it seem unlikely that this could be established even if a proceeding was brought, and in the absence of a formal termination of parental rights proceeding, you would not normally have your legal status as a parent terminated. So, probably, you are legally the child's parent whose authority is not limited by any custody decree, and therefore, you are entitled to authorize a vaccination. But, for a wide variety of reasons, it would be prudent to have your paternity formally established under the law if you are going to have an ongoing involvement in your child's life. Also, as DaleM notes, if you have the child with you, even if you are not the legal parent, you would usually be considered "in loco parentis" and have the authority to do this even in the absence of actual paternity. | General Answer I have not found any law or regulation that specifically says that an immigration applicant or the applicant's sponsor (spouse) must disclose a prenuptial agreement if one exists. But immigration officials have broad discretion in interviews, and might well ask about such agreements. If asked, it is very unwise to lie or evade the question. There is no law forbidding a prenuptial agreement in such a case, or making a would-be immigrant who has signed such an agreement ineligible. However, if the immigration officers believe that the marriage is a "sham" designed largely to evade immigration laws, they might declare the marriage invalid for immigration purposes. This is likely to significantly hinder the application, if not end it. If the agreement makes it appear that the parties contemplate that the marriage will be short-lived, and that an end to the marriage will occur in the near future, that makes it look like a sham marriage. If it appears that the prime reason for the marriage was financial, and particularly if the US party has apparently been paid or subsidized for entering into the marriage, that also makes the marriage look like a sham. If the terms of the agreement support either of these assumptions, that may cause a problem. It will be helpful if the agreement is carefully drafted to make it clear that the marriage is one of affection or love, and is intended to be lasting, with the agreement only present to help deal with issues in the possible case of the marriage not lasting. Affirmation of Support (I-864) Also, it is often requires that the sponsor/spouse sign an Affirmation of Support (I-864). This is an agreement by which the sponsor promises to support the applicant at at least 125% of the US Federal poverty level. The sponsor also shows resources sufficient to provide such support. The obligation under this agreement last6s until the applicant has become a US citizen, or has been credited with 40 quarters (10 years) of Social Security earnings credit. Under federal law and case law, a prenup cannot waive or reduce the obligations under an I-864 agreement. A prenup that purports to do so would probably be a significant negative indication for an immigration official. Parties must Understand a Prenup Also if it appears that the non-US spouse (the applicant) does not understand the nature and effect of a prenup, that might also be a negative indication. This is one reason why it is often a good idea that each party should be represented by a separate lawyer in the drafting of a prenup. Such a lawyer should be able to draft the prenup agreement in such a way as not to raise suspicions with an immigration officer. Disclosing a Prenup We here at Law.SE cannot advise whether an applicant should disclose the existence of a prenup at an immigration interview. Such agreements are not normally registered with any government agency, nor are they normally searchable on any web site. But an applicant should probably assume that a question about such an agreement might be asked at an interview, and be prepared with an answer. Sources and Quotes The page "Can a nuptial (prenup) agreement waive rights under the Form I-864?" states: [F]ederal courts have squarely held that a pre- or post-nuptial agreement cannot waive rights under the Form I-864. Even if a sponsored immigrant has signed a document saying that she forfeits all rights under the I-864, that agreement is meaningless in federal court. It is very common for sponsored immigrants to sign a nuptial agreement. Often this happens before the person completes the immigration process. For example, someone might come to the U.S. on a K-1 visa, then be forced to sign a prenuptial agreement before getting married. Usually these nuptial agreements will contain broad language that the immigrant waives all right to “alimony” or spousal maintenance. But sometimes the agreements will also specifically cross-reference the Form I-864. Federal courts see two main problems with nuptial waivers. First, these agreements undermine the purpose of the I-864. Or at least they try to. Congress created the Form I-864 so that immigrants would be guaranteed basic financial support of they need it. More specifically, the I-864 ensures that a sponsor rather than American taxpayers provides the immigrant with support. If nuptial agreements could waive support, it basically leads to the following situation: the sponsor promises the U.S. government that it will provide support, then turns around and creates a document with the immigrant that says, “but I’m not actually going to provide the support.” It would be a bit crazy if a federal statute could be undermined in that way. Here is how one court in the District of Utah put it: To permit a sponsor to unilaterally terminate the Form I-864’s financial support obligation through a separate agreement with the immigrant would ignore the interests of the U.S. Government and the benefits of taxpayers and charitable donors. It would also defeat the Form I-864’s purpose of preventing admission of an immigrant that is likely to become a public charge at any time. Therefore, nuptial agreements will not terminate a Form I-864’s financial support obligation. The second reason that courts disregard nuptial agreements is the text of the I-864 itself. The I-864 contract lists five “terminating events” that ends a sponsor’s support obligation. These include the immigrant becoming a citizen or being credited 40 quarters of work. (You could count the sponsor’s death as a sixth terminating event). But those terminating events are the only thing that ends a sponsor’s obligation. Signing a private nuptial agreement isn’t on the list of terminating events, so that simply isn’t a thing that can end a sponsor’s obligation. The page "Can a prenup protect me when marrying a non citizen?" from Joleena Louis Law reads: One of the most obvious concerns for people marrying non-citizens is how having a prenup will look to immigration officials. You don’t want to give the impression that the marriage is happening for financial reasons and it does help to show co-mingling of assets. However, legitimate marriages have prenups, and a well-drafted agreement that is fair to both parties and makes sense for the situation won’t necessarily give a bad impression. Another thing to keep in mind is that you may need to sign an Affirmation of Support for your spouse, which in which you are acknowledging that you have the means to financially support your spouse at a minimum level of 125% of the federal poverty threshold and accept legal responsibility for their financial support. A prenup cannot absolve you of this obligation and you are not released from this obligation until your spouse becomes a United States citizen, permanently departs the country, or is credited with forty quarters of coverage via the Social Security Act. The page "Do Prenuptial Agreements Affect Spousal Immigration? from Family Law San Diego reads: Federal immigration law provides for a U.S. citizen to sponsor the immigration of their foreign spouse. The married couple must apply for a family-based immigrant visa allowing a spouse from a foreign country to enter the United States and obtain Lawful Permanent Resident (LPR) status—also known as a “green card” holder. Among the various immigration forms that are required to obtain a visa for an immigrant spouse is an Affidavit of Support (Form I-864). By signing and submitting an Affidavit of Support, the U.S. citizen spouse enters into a contractual agreement with the United States acknowledging that they have the means to financially support their spouse at a minimum level of 125% of the federal poverty threshold and accepting legal responsibility for their financial support until their spouse becomes a U.S. citizen or earns credit for 40 [quarters] of work. Importantly, getting a divorce does not relieve the citizen spouse of their obligation to provide the required amount of spousal support to their spouse. Furthermore, the affiant [sponsor] is responsible for reimbursing government agencies for the cost of any “means-tested public benefits” that the immigrant spouse receives. Spouses who have been married for less than two (2) years will receive what is known as “conditional permanent resident” status. This means that the couple must prove that they did not get married for the purpose of avoiding federal immigration laws. If USCIS concludes that a couple entered into the marriage to evade federal immigration laws, their marriage will be deemed invalid for immigration purposes. As a result, the spouse seeking to immigrant to the United States will be denied entry or removed from the United States. The citizen spouse may also be subject to civil or criminal penalties. A prenuptial agreement is a contract into which prospective newlyweds enter, governing their rights and responsibilities as married spouses concerning matters such as spousal support and the distribution of marital assets at the end of their marriage, whether due to divorce or death. The provisions of a prenuptial agreement go into effect when the couple gets married. Although there are few legal requirements to form a valid premarital agreement, the judicial enforcement of its provisions may be questionable depending on the circumstances of each case. Generally, a prenuptial agreement is not enforceable if it was not the product of mutual voluntary assent to its terms. As a result, circumstances that suggest that party did not understand the contract, or would not have reasonably agreed to its terms if they had a meaningful choice, call the enforceability of the agreement into question. Spouses with conditional permanent resident status should be careful about the potential effect of a prenuptial agreement. Evidence indicating that a party did not understand the terms of a contract may endanger the enforcement prospects of its provisions, especially if English is not their first language. Additionally, terms that reduce the immigrant spouse’s property rights may suggest that the couple had a deal to have the citizen spouse sponsor the foreign spouse’s immigration into the U.S. Importantly, provisions purporting to govern the couple’s rights and responsibilities regarding spousal support are effectively superseded by the terms of an Affidavit of Support. This is because a prenuptial agreement is a contract between the spouses, whereas an Affidavit of Support is a contract between the citizen spouse and the U.S. government. The Page "Why Should You Get a Prenuptial Agreement with a Foreign National?" from DiPietro Law Group reads: If your new spouse does not intend to work in the United States, you may need to sign an Affidavit of Support. This contract requires you to maintain a standard of living for your new spouse exceeding 125 percent of the poverty level. You are not released from this obligation until your spouse becomes a United States citizen, permanently departs the country, or is credited with forty quarters of coverage via the Social Security Act. Your prenuptial contract does not automatically absolve you of this support. In a notable 2014 case, the United States District Court for the District of Maryland indicated that prenuptial contracts could not waive Affidavits of Support. Prenuptial contracts can occasionally backfire in green card cases. Immigration officials look for signs that a marriage occurred for financial or citizenship reasons, and not for love. Officers often seek evidence of commingled assets, which may not be available among couples with prenuptial agreements. The pager "How do Prenuptial Agreements Affect Immigration?" by Jared Leung from JCL Immigration Attorneys, reads: A prenuptial agreement is a legal contract that outlines how assets will be divided in the event a marriage ends in divorce. These agreements also discuss the obligations of a spouse to provide financial support for the other party in the event of a divorce. In general, both parties must fully understand all of the terms of a prenuptial agreement in order for the contract to be binding. If a court finds that one party was unaware of what he or she was signing, or if the agreement is so one-sided as to be deemed unfair, the provisions held within can be invalidated. How do prenuptial agreements impact immigration? When a United States citizen sponsors the immigration application of a foreign spouse, the couple needs to file for a family-based immigrant visa, often called a “green card.” Part of this process involves filing an Affidavit of Support, a document that demonstrates that the citizen has the ability to support the other party at a level at least above 125% of the poverty threshold until the applicant becomes a United States citizen. This obligation remains in place in the event of divorce. The provisions of a prenuptial agreement should not give the appearance of a “deal” between parties for the purpose of circumnavigating immigration rules. There can also be challenges if the foreign spouse does not speak English well enough to understand the details of the agreement. However, having a prenuptial agreement does not necessarily casts doubt to the truthfulness of the marriage. Individuals with decent net worth or prior debt may use prenuptial agreements to protect oneself and/or the spouse-to-be. The existence of a prenuptial agreement should be considered with other factors in the marriage to determine whether it would cause problems in an immigration application Case Citations Cases in which Federal courts have held that a prenup does not void an I-864 agreement: [Erler v. Erler 824 F.3d 1173 (9th Cir. 2016). Golipour v. Moghaddam No. 4:19-cv-00035-DN-PK (D. Utah Feb. 7, 2020) (granting and denying in part cross-motions for summary judgment). Anderson v. United States, No. C17-0891RSL (W.D. Wash. Apr. 17, 2019) (dicta). Toure-Davis v. Davis, No. WGC-13-916 (D. Md. March 28, 2014) (memo. op.). Shah v. Shah, 4:12-cv-4648, (RBK/KMW), 2014 U.S. Dist. LEXIS 4596 (D.N.J. Jan. 14, 2014) (memo. op.) Cyrousi v. Kashyap, 386 F. Supp. 3d 1278 (C.D. Cal. 2019) (holding that waiver is not an affirmative defense available to sponsors) Liu v. Kell, 299 F. Supp. 3d 1128 (W.D. Wash. 2017) (same). | When you get married is possible to have contract renouncing both parties right to a divorce. No. That clause would be redundant, materially indistinguishable from breach of contract, and otherwise unenforceable. It is redundant because the legal definition of Marriage (Black's Law Dictionary) states that it is "A contract, according to the form prescribed by law, by which a man and woman [...] mutually engage with each other to live their whole lives together in the state of union which ought to exist between a husband and a wife". Thus, the perpetuity as expressed in the term whole lives preempts the conceiving of an eventual separation. Insofar as marriage is legally cognizable as a contract (see legal definition), it might specify or imply remedies in the event that one or both spouses decide(s) that substance of marital relationship no longer exists; that is, in the event that a breach of that contract occurs. A court may order to the breaching spouse performance of certain acts (for example, alimony) in accordance to statutory law or common law. However, a prohibition to divorce goes beyond the scope of what is legally permissible. The U.S. Supreme Court in Roberts v. United States Jaycees, 468 U.S. 609, 617-618 (1984) helps explaining why a prohibition to divorce would be unenforceable: "In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty." If that is not possible how much can you limit the right to a divorce with a contract or something similar? There is no possible limit or requisite duration of a marriage, as that would inherently infringe a person's fundamental element of personal liberty mentioned in the Roberts case. | The legal responsibility to support a child arises from "parentage" and not "genetic relatedness", therefore one of two identical twins will not be assigned such responsibility simply because of genetic relatedness. However, genetic facts can enter into a legal proceeding for support, and can be evidence to establish parentage. In the US, the rules for determining parentage are generally established by the Uniform Parentage Act, instantiated for instance in Washington state RCW Chapter 26.26A. RCW 26.26A.100 spells out the full set of rules: A parent-child relationship is established between an individual and a child if: (1) The individual gives birth to the child, except as otherwise provided in RCW 26.26A.700 through 26.26A.785; (2) There is a presumption under RCW 26.26A.115 of the individual's parentage of the child, unless the presumption is overcome in a judicial proceeding or a valid denial of parentage is made under RCW 26.26A.200 through 26.26A.265; (3) The individual is adjudicated a parent of the child under RCW 26.26A.400 through 26.26A.515; (4) The individual adopts the child; (5) The individual acknowledges parentage of the child under RCW 26.26A.200 through 26.26A.265, unless the acknowledgment is rescinded under RCW 26.26A.235 or successfully challenged under RCW 26.26A.200 through 26.26A.265 or 26.26A.400 through 26.26A.515; (6) The individual's parentage of the child is established under RCW 26.26A.600 through 26.26A.635; or (7) The individual's parentage of the child is established under RCW 26.26A.705 through 26.26A.730. §§300-355 govern the use of genetic tests in determining parentage, according to which genetic test results can be evidence of parentage, but §§600 ff specifically address assisted reproduction and surrogacy agreements – RCW 26.26A.610 for example specifically assigns "parentage" to a person who consents to assisted reproduction by a woman with the intent to be a parent of a child, and under §605, a donor is not a parent of a child conceived by assisted reproduction. | would the state have any interest or legal right to assert that having once met conditions that would allow them to be considered married, that they are in fact still married despite their objections to that legal status and to being characterized as such? Could both later legally claim to be single and never married? Yes. For example, the state could prosecute someone for bigamy if there was a common law marriage that was not dissolved and someone remarried. There are all sorts of other circumstances (e.g. paternity, government benefit eligibility, taxation) where the government might want to prove that you have a common law marriage as well. It is certainly possible to ignore the law and not get caught. But, generally, the agreement of the parties requirement for common law marriage means it doesn't happen very often. And, usually, at least one person in a married couple has an economic incentive to not ignore the existence of a marriage even if the couple had no children. Even if they don't have much in the way of assets at the time they separate, twenty years later there might be considerable assets acquired by the parties during marriage and a presumption of substantial alimony and inheritance rights. So someone who was O.K. with "forgetting it" when they were 23 might change their mind when they are 43 or when you are dead and a probate case is pending. There is no statute of limitations to establish the existence of a common law marriage. In short, ignoring the existence of a common law marriage is high risk and low reward. If there is ambiguity, one quick and dirty process as opposed to filing an action for annulment, is to file an action for divorce, apprise the court of the circumstances, and have it authoritatively dismiss the divorce case on the merits by ruling that the parties aren't married I've done that for a client once, in the face of fairly strong evidence that they were married, when the parties to the divorce case both told the court under oath that they never believed themselves to be married to each other at any time. One countervailing force is that issuance of a marriage license to someone creates a rebuttable presumption that they were not married at the time it was issued. This can be overcome with a showing of the existence of a common law marriage, but it makes the "proving a negative" of non-marriage easier, especially in cases when the parties are now dead and this is necessary to know for paternity or inheritance purposes. Finding proof of even a marriage license marriage (or a divorce) can be difficult as lots and lots of jurisdictions can get you married or divorced (not all in the U.S.A.), but there isn't a national comprehensive index of marriages in the United States. For what it is worth, France solves this problem by requiring copies of marriage certificates, divorce decrees, and death certificates to be filed where someone was born, but common law countries never had a comparable low tech system to solve the indexing problem. Also bonus points for addressing how taking the 5th might assessed in answering questions around status, particularly in the context of applying for a marriage license later to someone else. There is nothing special about it. You can refuse to testify about possible prior common law marriages if you subsequently have a marriage certificate issued. Keep in mind that you can only plead the 5th without consequences in a criminal case. In a civil matter, you can plead the 5th but this usually results in an adverse inference for purposes of the civil case that you committed the crime implicated by your refusal to testify on that ground. | If a line in your will bequeaths something that you don't have the power to give (e.g. you bequeath something that you don't own at the time of your death), that line has no legal effect. If I died and left you the house at 10 Downing Street in London, for example, you wouldn't actually be getting it. If your will contains enough of those lines and/or they seem excessively unreasonable, it may cause the validity of the will to be challenged on the basis that you weren't competent to prepare and sign it. If the people reading it think it's reasonable, it may have a social effect based on what it conveys to them, which could lead to voluntary compliance with your wish (especially if the main obstacle to that being realized is a mistaken understanding of and desire to respect your wishes). That could help make peace, for example, if a surviving parent's remarriage would otherwise be opposed by children (or the surviving partner) or others based solely on a mistaken understanding of the wishes of the deceased. It could also make for a really awkward moment, depending on the views of and relationships between survivors. Addressing user662852's comment on the question: You can also use a will to name a guardian for anyone you have guardianship over, which is usually more important for children (e.g. see "Why Every Parent Needs a Will."). | This happened despite the fact that the marriage and Bible verses requirement were almost surely illegal and similar things have happened on and off, mostly in rural courts with non-attorney judges, for pretty much as long as the U.S. has been a country (and earlier). The trick is that the orders take effect unless someone appeals them, and since deals like this are usually a result of a plea bargain which waives rights to an appeal, and even if the result is simply imposed by the judge, one has to consider if taking the case up on appeal, having the sentence reversed, and then having it remanded to the same judge for resentencing would be worse from the perspective of the defendant, given the broad authority of a sentencing judge in a minor case like this one, than simply accepting the illegal sentence. Also, cases that aren't appealed never create precedents and aren't generally available among resources used by legal researchers, so they systemically evade documentation in easily available sources. |
What's the best way to apply the 17 U.S. code 121 to obtain a copy of music in an alternative format? I am interested in getting a score from Hal Leonard Corporation, but they might not be able to transcribe it to Braille directly, so that's something I will have to do myself. Would I need to provide documentation certifying my blindness to get a PDF copy? Would I need to purchase the score first and then provide a copy of the receipt? | I'm not a lawyer, but under the law as it's written, I see two problems: 17 USC 121 allows "authorized entities" to make and publish accessible copies of works. An "authorized entity" is defined as a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities. So if you, as a private citizen, decide to do this, it could conceivably be copyright infringement. You might have to set up some kind of non-profit organization to make it legal. It's also OK (I think) if you make such copies for your own personal use, so long as you don't redistribute them. So far as I can tell, nothing under 17 USC 121 requires the original publisher to provide an "authorized entity" with a copy in any particular format (PDF, paper, or otherwise) for making accessible copies. Basically, the law seems to have envisioned organizations of sighted people purchasing paper copies, transcribing them, and republishing them; not blind individuals doing electronic transcription for themselves. It might still be worth contacting Hal Leonard and asking what they can do for you, but unfortunately it doesn't look like the law requires them to do anything for you. As Nij points out in the comments, this really seems to be a question about the company's policy, rather than the law. | If by "streaming," you mean "having my web browser create temporary copies of media from an online source so that I can view it," then Canadian law is unclear. I can't really do better to demonstrate than to cite a few articles on the subject. According to Alex Buonassisi and Jennifer Marles of IP law firm Oyen Wiggs: [...] it is not entirely clear that receiving an unauthorized stream of a copyrighted work in Canada does not infringe copyright. At best, this activity could be said to fall within a grey zone. According to Sandy Kang writing for law school blog IP Osgoode: As for users of such websites, it is currently uncertain whether their act of streaming video would be found to infringe. According to Michael Geist, a University of Ottawa law professor specializing in IP: The most controversial sources are unauthorized streaming websites that offer free content without permission of the rights holder. [...] Those accessing the streams are unlikely to be infringing copyright, however. As you can see, there is a variety of expert opinions on whether streaming pirated movies is an infringement. The section under debate is 30.71 on temporary reproductions, especially subsection (b): It is not an infringement of copyright to make a reproduction of a work or other subject-matter if (a) the reproduction forms an essential part of a technological process; (b) the reproduction’s only purpose is to facilitate a use that is not an infringement of copyright; and (c) the reproduction exists only for the duration of the technological process. I don't want to duplicate what articles above have already stated, but I'd like to dive deeper into Bishop v. Stevens, [1990] 2 S.C.R. 467, cited by the first two articles as a similar case (reaffirmed in 2015 after a few rounds of statute amendments). In it the Supreme Court held that prerecorded "ephemeral" copies used to facilitate a broadcast was an infringement. The key piece of reasoning is: [... the broadcaster] has not established that, at the time of their enactment, the sections of the Act providing for the right to broadcast a performance must have been understood to include the right to prerecord. Even now it remains fully possible, and quite common, to broadcast live performances. To me, there are two key differences why this logic might not directly transpose to the streaming pirated movies situation: "Ephemeral" prerecorded copies aren't necessarily "temporary" copies within the scope of section 30.71 above, particularly subsections (a) and (c) might not strictly be met. This case discusses the point of view of the broadcaster which is analogous to the hoster, not the end-user. While making ephemeral/temporary copies might not be strictly necessary for broadcasting, viewing online content necessarily creates at least a temporary copy on the end-user's computer. Two other random notes: None of the involved sections have a "reasonableness" or "should have known" clause whereas they are present in other parts of the Copyright Act. This means whether its legal should theoretically depend strictly on the facts (i.e. if it turns out to be illegal, pleading "oh I didn't know it was pirated" won't work). Funny enough, I don't actually see anything in the law that would differentiate between streaming online pirated video and your example of something illegal being aired on TV provided its digital (presumably some part of the TV has a temporary copy too). | There are two separately copyrightable elements to a sound recording, as you point out: the musical work, and the performance. If you want to record a cover version of a song, what matters is the license you hold, if any, to the underlying musical work. The license to the recording is not relevant unless you are sampling or duplicating the recording. The key, however, is that whoever you got the song from has the same issue. With this in mind, there are three basic scenarios: 1) The recording is released under a cc license, but the song is in the public domain. If the song is in the public domain, the recording license is irrelevant; you have the right to cover it. 2) The recording is released under a cc license, but someone other than the recording artist holds the rights to the musical work. In this case, the recording artist almost certainly does not have the right to distribute the recording under a cc license. Musical works are subject to a "mechanical license;" this means that you can record a cover version without permission, but only if you pay royalties to the composer. If you record a cover under these circumstances, both you and the person who attempted to release the item under a cc license will be liable. 3) The recording is released under a cc license by a recording artist who also holds the rights to the musical work--in other words, an original composition. In this case, the answer to your question will depend on the specific license language, and a court's interpretation of it. The CC license defines "Licensed Material" as "the artistic or literary work, database, or other material to which the Licensor applied this Public License." Some CC licenses permit the Licensed Material to be "translated, altered, arranged, transformed, or otherwise modified in a manner requiring permission under the Copyright and Similar Rights held by the Licensor." Some don't. The CC web site lists litigation involving their licenses, and no litigation listed there seems to address the question of whether, when a CC license is applied to a sound recording, the "Licensed Material" includes the underlying musical work. It is therefore hard to predict what a court would do; you would need an opinion from an experienced intellectual property attorney licensed to practice in your jurisdiction. Or, on a more practical note: if you aren't sure, ask the license holder. If they give you permission, that resolves the issue. | As far as the CCLI license is concerned, it depends on the source. You can see the requirements in this link. The main points that you might not meet is that the sheet music must be used to assist congregational singing and must be from a source designated as such. If your sheet music meets those requirements, then the CCLI does allow you to: Create digital song files to share with your worship team. However, if it doesn't meet the requirements, then Dale M's answer provides a good overview as to your options. | It seems that you don’t understand what parody is. If you do understand, please explain how it’s even possible to parody computer code. What you can do with “open source” code depends on the licence the copyright holder(s) release it under. For some very permissive licences you can do what you suggest, for most, you can’t. | No This is not a copyright issue as you are not making a copy (save for a transient one in your cache which is allowed). You are allowed to record it for personal time-shifting as that is fair use/dealing. The broadcaster either owns the copyright (unlikely) or has a contract with the copyright holder that allows them to broadcast it. Assuming the broadcaster chooses or is not permitted to subsequently stream it, if you miss it, you miss it. Your contract with the broadcaster is over. Their obligation was to make the broadcast available to you, yours was to pay for it - nobody is obliged to watch it. You can, of course, seek the content from any other legal sources, complying with their terms including payment if necessary. | Your question (when read with your follow-up comments) is somewhat complex, so I am going to make a few assumptions and break it down into several sub parts. Assumptions The conviction occurred in a state where the expungement statute allows you to tell employers that you were never arrested and convicted. When you say “public records websites” you’re asking about sites like atlaspublicrecords.com. That atlaspublicrecords.com is a US based company. They don’t list an address and the website used a private registration services, so can’t easily determine that they are US-based. Your questions and follow-up Considerations After I get it expunged, will it be removed from public records websites . . . . No. Websites like atlaspublicrecords.com do not link to actual public records. I searched a couple of common names and feel safe in assuming that it only collects and publishes the information—it does not actually link to court records. Nevertheless, it would not be available from the actual government agencies that keep those records. By getting your records expunged the convictions and arrest would no longer be available as public records that someone could request from the courthouse, police department, or whatever state agency does criminal history in your jurisdiction. do I have to show them proof of the expungement . . . . Yes, if you believe what the website claims. I can’t find a physical address for the website and don’t know if they are real or a scam, so understand that when you give them information about your expungement—or pay their silly fee, they might collect the money and do nothing. My opinion is that the company is shady and seems to operate in a gray area of the law that I will explain below. Options if they don’t remove the post: You could try to sue them for some type of secondary dignitary tort like defamation or false light. But these would have some significant legal hurdles. See G.D. v. Kenny, 15 A.3d 300 (N.J. 2011), where the New Jersey Supreme Court held that commenting on an expunged criminal records was not defamation or invasion of privacy because it was the truth. You could try to argue that they are a consumer reporting agency under the Fair Credit Reporting Act (“FCRA”). If they're governed by the FCRA, you have some additional legal remedies (like civil penalties/fines) if they don't remove/clarify an expunged record. The Fair Credit Reporting Act applies to credit reporting agencies, like Experian & Equifax but also covers companies that compile and sell information for background checks. This includes criminal records. See the Federal Trade Commission’s Advisory Opinion to LeBlanc (06-09-98). But . . . this website is operating in a gray area that appears to comply with the law. The FCRA only applies to consumer reporting agencies, which are defined as: Any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports. 15 U.S.C. § 1681a(f) Because they’re not charging money or a fee to access the reports and they’re not a nonprofit cooperative, they probably do not meet the definition of a CRA. Bottom-line is that you're best option is to give them the expungement documents once you obtain them. | The renewal registrations, published by Project Gutenberg (PG) are available online, at https://www.gutenberg.org/cache/epub/11800/pg11800.html The registrations are also available in smaller chunks, 6 months at a time, for example at https://www.gutenberg.org/cache/epub/11801/pg11801-images.html The intro says: Produced by Michael Dyck, Charles Franks, pourlean, and the Online Distributed Proofreading team, using page images supplied by the Universal Library Project at Carnegie Mellon University. RENEWAL REGISTRATIONS—LITERATURE, ART, FILM An alphabetical list under title of all works (with the exception of musical compositions) in which the renewal copyright was registered during the period covered by this catalog. Included in the list are cross-references from all essential names associated with the work and from variant forms of these names. Project Gutenberg itself publishes much of its content based on the "lack of renewal" situation. I myself have done searches using these online documents which were accepted (when confirmed by a different volunteer) as sufficient due diligence for PG to publish works not found to have been renewed. The registrations list the original title and author, as well as known (to the US Copyright Office) alternate names and titles. For esample, here is a sample record for a film: ADAM'S RIB, a photoplay in ten reels, by Famous Players-Lasky Corp. © 7Feb23, L18658. R58624, 17Feb50, Paramount Pictures Corp. (PWH) Doing such a search, using these online records, is relatively quick and simple. One thing to note, the law specifing "renewal in the 28th year" actually allows for plus or minus 1 year, so one must check the 27th, 28th, and 29th years after publication. One possible source of false negatives: if there is an alternate author name (pseudonym) and alternate title not known to the copyright office (so that no cross-ref is included) and also not known to the searcher, and he work was registered nd renewed under the alternates, then it would be missed. But the renewals all link back to the original registration, so the alternates would have to have been used in the original registrations. Later assignments will show up under the name of the original author. (For a film that will often be the production company.) The original title will also be listed, as will the original registration number. If you can find the original registration in the copyright office records, that will give the registration number (R-number) which can also be searched on. I should mention that an error could occur because of a transcription error on the part of Distributed Proofreaders (DP). But this is unlikely. I have worked with DP, and the text is first created by an OCR program from the scanned images, and then checked against the original images by six separate volunteers. The result is quite accurate, errors are rare. One could do a self-search first, the cost would be zero, and much easier than using the old card catalogues. The odds are high that if the renewal is present, it will be found. If it is found, the work is not PD, and there is no need to pay anyone. If it is not found, one could then consider paying a private firm, or the LC searchers, to try to find any odd cases. But a search on these files is quite likely sufficient due diligence to establish "innocent infringement" if a false negative occurs. |
Must the reason for a permanent ban for a paid online game be provided? Suppose that a fully automated anti-cheat system (claimed by a company to be 99.99% accurate) wrongfully and permanently banned a player from a game that requires a one-time fee to begin playing, offers further optional in-game microtransactions, and has no offline functionality. The support team for this game refuses to provide any specific information for the ban, such as the time "foul play" was detected by the automated system, computer information (e.g. modules injected into the game) that was relevant in the detection process, or other factors that caused the anti-cheat system to ban the player. Furthermore, the support team refuses to investigate the ban in order to lift it or provide any monetary compensation for the player's loss despite the fact that it was entirely wrongful and absolutely no cheating was committed. In the player/customer's perspective, he has just lost access to content he paid hundreds of dollars for for absolutely no reason whatsoever. If no explanation is given for the ban (other than "you were cheating") and it was entirely wrongful, can the player take legal action by accusing the company of fraud until it can provide either compensation or an accurate explanation of what caused the system to trigger a ban? | If you want to take legal action, hire a lawyer. If you want to puff your chest and see if they flinch here is what you do: First let's deal with this arbitration agreement. (There is probably also a jurisdiction agreement in there, ignore that for now.) First you need to find someone to to arbitrate and a place to hold the arbitration. I suggest a babysitter, dog-walker, friend, whatever... just make sure it is a real person. You write them a letter saying that you are exercising the dispute resolution set forth in the terms and that you propose an arbitration by [insert person's name here] to take place at [location] on [date and time]. You are going to mail this to a physical address and should include a sentence asking them to let you know within 30 days if this schedule works for them. Also tell them that you prefer to communicate via email and provide an email address. Mail this letter. Just mail it plain old snail mail. In two weeks write another letter opening with a statement indicating two weeks ago you sent a letter and asked for confirmation of receipt, that you did not get receipt and would they please acknowledge. You have now puffed your chest. Pretty soon 30 days will run and you will go to the courthouse. Hopefully this will have gotten them talking to you and you can get this resolved. What I describe next is an absolute interbreeding and then slaughter of various states' court rules. I hope that more-informed stack participants edit with gusto. If you can't resolve things go to the courthouse and tell the clerk that you want to file a claim in small claims court against [company] for [dollar amount] based on breach of contract. She will give you paperwork to fill out. You will pay her the filing fee. One of the things you will fill out is a complaint, one is a summons. It might be two in one. Here is an random example. It should be a simple form. Keep it all as simple as possible but be sure to describe the facts that support your claim. You might include the fact that they ignored your requests to arbitrate. Take this complaint and summons and serve them on your defendant. To do this you will need to get someone in the company's city to serve it. There are professionals who do this, mail or email them (if possible) the summons and complaint and pay them. They will you with provide proof of service. Now you have moved past chest-puffing and you've thrown a punch. Now you have initiated a law suit. They must file an answer. This means that they must get lawyers involved. You've gotten their attention and it only cost you filing fees. They must now file an answer to your complaint. They will also likely file a motion to dismiss and do one of a few things: 1. complain that you need to arbitrate 2. It will complain that the contract requires legal action in a certain state or county 3. It will complain that regardless of the contract this is the wrong court for any host of reasons 4. they will claim that you haven't stated a valid complaint 5. some other boilerplate stuff. You might have a hearing scheduled to deal with these things, you might deal with them all on a trial date. Now go back to the clerk at the court and ask for a subpoena form. You will have this served on the defendant also - it must name a person. This is a document that requires them to come to court at a time and place. Again, lawyers get involved to quash this. Lawyers = $ so you probably got their attention. Oh yeah, you need to pay a witness fee and travel costs. You can also serve a subpoena duces tecum which requires them to bring documents that you ask for. This needs to be served on the person in change of keeping records. You will probably pay the costs of the documents. The clerk will have forms for you and will describe the process in ambiguous terms while repeating "we cannot give legal advice." You've got your documents, you have a witness coming, you are ready for trial. If you haven't had some sort of hearing already to deal with defendant's motions to get this thing dismissed, you will need to deal with that stuff now. They will claim that arbitration is required. You tell the judge that you invited them to an arbitration that you set up and they refused to come. You show all the paperwork, including your contract with the arbiter. They will argue about jurisdiction, good luck with this one but it's a whole other problem that I can't touch here! If you survive these objections you will tell the story to the judge, you will call the witness and question her, you will present your documents as evidence. In small claims court the judge (or magistrate or referee) might ask the lawyer some questions about facts. Then the judge will bang his gavel and you wait for his decision. If you win come back here and ask how to get your money. | Unless the game is out of copyright, e.g. chess, snakes and ladders, Go, or checkers, your software would probably be considered a derivative work of the copyrighted game and an actionable infringement. The fact that you do not monetize it is not a defense. You would need written permission in the form of a license agreement from the copyright owner to do this legally. The penalties for violating copyright laws in this way could be punishingly serious. | There are some problems with this kind of vandalism, one of them clearly that the internet is international and vandalism can be performed from everywhere on servers everywhere in the world. And so it may be (both technically and legally) difficult to get hold of the vandal. Therefore, most wikis primarily focus on blocking offending accounts or their IPs and hope that this helps at least for a while. Only if it doesn't and the vandalism continues for extended time periods, legal measures are considered. Legally speaking though, vandalism is prohibited by many jurisdictions and of course by the terms of use of the wiki operators. For instance, the Swiss criminal code Art 147 explicitly puts "abusing of data processing equipment" under penalty and hence gives website operators a legal backup for setting up rules for the use of their services. Computer fraud Art. 147 1 Any person who with a view to his own or another's unlawful gain, by the incorrect, incomplete or unauthorised use of data, or in a similar way, influences the electronic or similar processing or transmission of data and as a result causes the transfer of financial assets, thus occasioning loss to another, or immediately thereafter conceals such a transfer shall be liable to a custodial sentence not exceeding five years or to a monetary penalty. 2 If the offender acts for commercial gain, he shall be liable to a custodial sentence not exceeding ten years or to a monetary penalty of not less than 90 daily penalty units. Technically, the law even requires prosecution ex officio, even though without a hint from the operator, the police won't start an investigation. I'm sure the US has a similar law. The problem is, as with all internet crimes, it's practical application, particularly because often website operator and offender are not living in the same country. Edit After reading the exact text again (it was unavailable yesterday) Art 147 is mostly about fraud performed by computers (classical "hacking") but it shouldn't be difficult to argue that fighting and reverting vandalism requires significant (technical and personal) effort and hence the operator looses money. Additionally, there's Art 144bis which matches even better for the scenario here: Damage to data Art. 144bis Any person who without authority alters, deletes or renders unusable data that is stored or transmitted electronically or in some other similar way shall be liable on complaint to a custodial sentence not exceeding three years or to a monetary penalty. If the offender has caused major damage, a custodial sentence of from one to five years may be imposed. The offence is prosecuted ex officio. Any person who manufactures, imports, markets, advertises, offers or otherwise makes accessible programs that he knows or must assume will be used for the purposes described in paragraph 1 above, or provides instructions on the manufacture of such programs shall be liable to a custodial sentence not exceeding three years or to a monetary penalty. If the offender acts for commercial gain, a custodial sentence of from one to five years may be imposed. | The linked Bloomberg story quotes the rule as: The recipient is allowed to keep the funds if they [the funds] discharge a valid debt, the recipient made no misrepresentations to induce the payment, and the recipient did not have notice of the mistake. If the recipient, or somone acting on behalf of the recipient, hacked the sender to induce the payment, that sounds like a form of misrepresentation to me. If the hacker is unconnected with the recipient there seems no way that the hacker benefits financially, although I suppose a hacker might simply want to cause an amusing disruption. As I understand it this rule only applies when the sender in fact owes a debt to the recipient that the transfer pays off. If the hacker were working for one of a large group of recipients, most of whom are innocent, and subsequent analysis establishes that there was a hacker, but not who the hacker was or which of the many recipients the hacker was working for, I suspect, but cannot prove, that the doctrine would not apply, because the transfer was not a valid but incorrect act by the sender, but was a fraudulent intervention in the sender's procedures. | 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. | Expunction may be possible for instance if you are acquitted, later proven innocent, pardoned, and various other things that fall short of being convicted and doing the time. The entire law is here (Texas code of criminal procedure 55.01). There is also the option of an order of non-disclosure, overviewed here. A requirement for such an order is that you were placed on and completed deferred adjudication community supervision, which from what I can tell is not what happened. "Background check removal" may range between simply taking your money and doing nothing, to doing what you could do yourself to get free of traces via radaris, intelius, spokeo, and so on to "request removal" from that web site. This will not make your record unavailable, because these websites don't have any special powers to reach into and manipulate state records. | No First, gambling is not illegal - only illegal gambling is illegal. Lotteries are legal in the United States when operated by or under licence from a state (44) or territory (3). That's legal gambling. It's illegal when operated by somebody else. Clearly, Omaze isn't one of these; but they aren't running a lottery. They are running a sweepstakes. Not only is this legal, but it also isn't gambling because in a sweepstakes the players do not pay to play. If you look closely, you can see a link that says "enter without contributing". Look even deeper and you can see "NO PURCHASE, PAYMENT, OR CONTRIBUTION NECESSARY TO ENTER OR WIN. Contributing will not improve chances of winning. Void where prohibited." No stake means no gamble. | My question is, because I am not making any income from the distribution of the game, would the use of the copyrighted music fall under Personal Use? There are some "private use" exemptions in Australian copyright law but they have some fairly narrow conditions. These exemptions are fairly narrow because the point of copyright law is not to prevent you from making money with someone else's intellectual property but to protect the other person's ability to make money with it. If Alice writes a song and Bob distributes it free of charge, Alice loses revenue. Similarly, it is Alice's right to decide whether that song should be included in a freely available open-source software product, and her right to decide whether to allow that use without charge or in exchange for a license fee. |
How does trader joes copy everything? If you have ever been to Trader Joes you'd see that ever single item is a copy of another brand. For example Joes Os are actually Oreos, Baked Cheese Crunches are actually Chetos. But they do this with ever single other item to, how do they get away with this, or pay for the rights? | A "similar brand", even a "knock off", does not infringe trademark protection (which is the issue here, not copyright) as long as reasonable consumers or purchasers will not be confused or mislead into thinking that the product is the same as the original product, or is made by, affiliated with, sponsored by, or authorized by the makers of the original product, or that the knockoff in some way shares the reputation of the original product. Obviously that is a fact-based judgement, but a name that alludes to another product but is obviously different is generally not considered an infringement. (I recall reading of a case in which the well-known "North Face" clothing brand tried to sue a new brad called "South butt". I believe that North Face lost. Apparently I was wrong and the case was settled.) | Let me be sure that I understand the situation. You set up an account with Big Company, which uses BigCo as a trademark. You want email about that account to reach you with a unique address, so you set up '[email protected]" and gave that as your email when setting up tha account. You don't plan to use that address for any purpose but communications from BigCo to you and from you to them. (Of course these aren't the actual names.) Have I understood the situation correctly? It seems that you ar not using 'BigCo" in trade, nor are you likely to be confused with an official representative of BigCo, so you are not infringing their trademark. However, someone using such an email more generally could perhaps be so confuse, so BigCo has a somewhat legitimate concern, as they cannot know the very limited use you plan to make of this address. The only way that the could force you not to use such an email address would be via a court order as part of a suit for trademark infringement, whcih under the circumstances I doubt they would get. However, unless they have some sort of contract with you to the contrary, they can control who registers on their site. and could refuse to register you using an email address that includes their name or alias. Convincing them to accept your registration, even though it does no harm to them, will almost surely be more trouble than it is worth. Give them "[email protected]" or something else that is not their name, but will suggest their name enough that you will know who it is. This will serve your purpose fully, and avoid a long argument with people who are reading from a script (once you get past the automated process, if you can even do that). This is all assuming that I have understood the situation correctly. I am also largely assuming US law, since you didn't mention a jurisdiction. (EDIT: UK law should not be very different on these points.) | Typically, these notices are required where the individual packaging lacks the statutory nutritional and warning labels. If this is the reason for the prohibition, selling them separately is a breach of public health law. It may also be a breach of contract with the vendor of the collective pack. Breaking them up and placing them in vending machines, even if those are not accessible to the public is probably unlawful. | Yes, it's illegal You are missing something terribly important: The package might not be your property [yet]. In any way, it is not in your possession, while it is in the hands of the postal service! The contents of the package started fully owned by the sender and were entrusted to the postal service to deliver it. This entrustment is (contractually) defined as the time it is handed to the postal service, but the postal service does not gain any ownership. They do however have insurance on the parcel (to some degree), as they are liable for the loss of it. In many cases, the transfer of ownership happens upon delivery (for example, in the UK), so that you can't even be sure you own the contents while the box is still on the truck. At least in the eye of many postal services I know, it is the basic presumption, that they hold the item as entrusted. So to be on the safe side, it's best to presume that the package only becomes your package the moment you sign for the receipt of the package or it is dropped into your mailbox or at your dedicated dropoff point (you can specify that with many postal carriers btw). Otherwise, your actions might interfere with the contract of the mail service [to bring it to your door] and might incur liability upon them as their insurance presumes the parcel was lost and it has to be replaced. By the way, it is customary that any message of the parcel is damaged go to the sender, not the receiver so that in the case of commercial mail they can send/fund a replacement, as the sender needs to ensure that a non-defect item is delivered under their own contract with the recipient. Criminal lawsuits But, you want to know which specific law you'd be sued under 18 USC §1708 (2) not only for taking the box, but also for taking the item from the box (emphasis mine)! Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein [...] Shall be fined under this title or imprisoned not more than five years, or both. The act of taking is relevant. It is irrelevant that you would receive the parcel later. You take it from the car on the delivery route. You also do trespass under whatever jurisdiction applies where the car is parked. For example, Criminal Trespass on Indian country is defined under 25.CFR § 11.411 (b). The rules in other jurisdictions are very similar: you are not allowed to enter the car, as it is clearly off-limits to the general public. The car is btw. supposed to be closed to prevent such, so you have to actually break property of the postal service (which is an extra charge to just the normal B&E). (b) A person commits an offense if, knowing that he or she is not licensed or privileged to do so, he or she enters or remains in any place as to which notice against trespass is given by: (3) Fencing or other enclosure manifestly designed to exclude intruders. A car door, even if not locked and left ajar, is an enclosure manifestly designed to exclude intruders, and the inside of a car is "any place". So, in the correct jurisdiction, this statute of criminal trespass does apply. And as pointed out above, taking the mail without the driver knowing is illegal. In some fashion, taking your own mail is also a strange case of obstructing the correspondence, which specifically calls out that the parcel has to be given by the mailman to the recipient (emphasis mine). Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined under this title or imprisoned not more than five years, or both. If it is discovered by the driver while still on route, they will have to call the base and investigate the missing parcel, which takes time from the delivery, so might constitute retarding the passage of mail. If you break the lock to the car, you'd be charged as Injury to mail bags: Whoever tears, cuts, or otherwise injures any mail bag, pouch, or other thing used or designed for use in the conveyance of the mail, or draws or breaks any staple or loosens any part of any lock, chain, or strap attached thereto, with intent to rob or steal any such mail, or to render the same insecure, shall be fined under this title or imprisoned not more than three years, or both. A Postal car, especially with a lock on the door, is such a device. And if you somehow had the key to the car, you'd break 18 USC § 1704 instead. Plus, your taking does possibly incur monetary damages to the postal carrier, so civil charges for that money and expenses in investigating would also accrue against the taking person. civil lawsuits? If you'd take the parcel, you make the postal driver accountable for the loss of the parcel and the worth of the package, as the internal system of the postal service does recognize that they did not deliver the parcel, did not scan it out at the home base, but they did scan it onto their route. So unless they can point the finger at you or a known thief, they might need to admit that they did not lock the car or committed some other misconduct that allowed someone to steal the parcel. This can lead to the financial loss of the delivery driver or them being fired. Should the mail carrier or the postal service discover it was you, the mail carrier can now sue you for the injury the lost parcel meant to them as you interfered with their work contract. The tort is Tortious interference. Then, the mail service can sue you for intentionally interfering with the delivery contract the service had with the one ordering the delivery done: they were required to bring the parcel to the target and got paid for that. Only your action of taking did prevent this. Would you not have taken the parcel, they would have delivered, so you interfered with their contract. Life Advice: Approach the driver, get out a photo-ID (Drivers license, passport, ID-card etc) and ask them something akin to this "The website told me you might have a parcel for me. Can you look? I am this person, and this ID proves I live at the target address, as indicated on this ID." With those credentials in hand, the postal driver can check and give it to you but isn't technically obligated to. But as it often means they can save a few valuable minutes getting to your house, they might, especially if you know your mail carrier and are friendly. On the other hand, it's extremely unlikely for letter mail to be given this way, as searching for a parcel on a truck is much easier than looking for the letter mails in the bags. | The rule on a tagline is really not significantly different from that on a logo, or brand name. If anywhere in the packaging, advertising, or promotion of a product or service, a registered or protected trademark of another is used, without permission from the holder, in such a way that a reasonable consumer might plausible believe that the product is made by the same maker, or comes from the same source, as the product associated with the trademark, or that the product has been approved or endorsed or sponsored by the mark holder, that would be trademark infringement. Phrases such as "inspired by" or "google-style" might have such an effct, depending on the whole of the circumstances. A disclaimer, such as "This film is in no way approved or enforced by the creators of Star Wars, it merely uses similar ideas" might, if sufficiently prominent, help avoid possible confusion. Comparative advertising such as "far more exciting than Star Wars ever was" generally makes it clear that the item is not endorsed, and indeed is to some extent competitive. That is generally considered an example of nominative use and is not infringement. But the more similarity is implied, the more consumer confusion is invited, and the more the new product seems to trade on the reputation of the established product. That is exactly what a trademark is intended to prevent. | Yes it would be legal to do so. A full analysis would look at trademark law (where the bottom line is that the use of the Coke mark is not misleading since you are selling bona fide Coke), and copyright law. Whether it was non-infringing or fair use, is a closer call, but there is little doubt that one way or the other, this would be legal. | I've found Commission Decision 2003/675/EC which sheds light on what exactly happened here (more digestable press release here). Basically, there was a dispute involving Nintendo and its various independent distributors who had exclusive distribution rights in their respective territories, Bergsala AB for Sweden. Note this wasn't simply a matter of Bergsala's rights being violated, but rather a scheme to reduce parallel imports/exports which the Commission found to be anti-competitive. For most parties, this was brought to an end in December 1997 (see section 2.2.11 on pgs. 54-55). So no, there was no change in the law, but the anti-competitive scheme stopped in late 1997. Weirdly this should have resulted in the possibility for more imports, but since those imports would no longer have artificially higher prices, perhaps the advertisements and/or imports were no longer worth economically worth it. Or perhaps Bergsala pivoted to greater enforcement the exclusive rights it did have, even if this didn't include the ability to block parallel imports according to EU competition law. In any case, trade of Nintendo products in Europe was greatly altered in late 1997. Please take my summary with a grain of salt, I'm not very well versed in the field of commerce and I've already misunderstood the decision at least once; check the cited decision for proper details. | You are free to sell or not to sell to whoever you like (unless it is illegal discrimination, like not selling to white Christians), but it doesn't make a difference, because anyone who buys the software from you can legally sell it on to anyone they want. So you cannot control who ends up owning the software. If I want the software and you don't sell it to me, and I still want it, I'll just ask a friend to buy it and give them the money. Other people would just get a pirated copy if you refuse to sell to them (and would have very little bad conscience since they offered you cash and you refused to take it). You can put terms into a license, and in the USA this is binding. The customer may not agree with the license, and in that case they have the right to get a refund for the software. In the EU, I don't think a license is binding, so you'd have to sign a legally binding contract with the buyer. Apart from all that, you have very little chance to find out if the software is used against your wishes and to do anything about it. |
Is a 2% late fee for paying rent 20 minutes late (5:20pm) enforceable? My apartment manager is charging me a late fee for failing to turn in the rent check by 5pm on the first. I live in Los Angeles. I don't have a copy of my lease on hand, but this sounds ridiculous even if it's in the lease is it legal? *****UPDATE***** According to nolo "Under California law, a late fee will be enforced only if the fee is a reasonable estimate of the amount that the lateness of the payment will cost the landlord, and if specified language is include in a written lease or rental agreement." Unfortuneately there's no citation to the source, but if this website is correct, then the landlord must show cost (harm) before imposing a late fee, even if specified language (on the first by 5pm) is included in the lease. I paid twenty minutes late: the check was given to the property manager while she was in the office Are there any specific cases that anyone here knows of? | If the landlord has a right to charge a late fee (and that late fee is not a penalty) then that right accrues from the instant that the rent is late i.e. any time after 5:00:00 pm precisely if that is the time stated in the lease. If only a day is stated then it would be midnight. For case law on the penalty doctrine see PACIOCCO & ANOR v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED [2016] HCA 28 which involved a challenge to a bank charging late payment fees on credit cards. | A "land contract" is not a way of renting property, it is a way of purchasing property on an installment basis without bank financing. It is Ohio's version of what in some other places is known as "contract for deed". See "What is a Land Contract in Ohio" and "How Land Contracts Work" The actual law is Section 5313. In a land contract, the buyer has equitable but not legal title. The buyer normally pays all taxes and fees, and is responsible for maintaining the property, just as if s/he has bought the property. But if the buyer defaults, all payments and equity would be forfeit to the seller. Until the buyer has paid 20% of the purchase price, or made 5 years of payments (whichever comes first) a single missed payment constitutes default and can lead to the buyer being evicted with all payments to date going to the seller, the buyer coming out of the deal with nothing. Also, if the seller still has a mortgage and defaults, the buyer may lose everything paid to date. The buyer does not have the protections that a lease gives a tenant, nor the protections that legal title gives a purchaser via a traditional mortgage. Land contracts are often used when the buyer cannot qualify for a mortgage. The buyer pays interest, and it is often at a higher rate than the current rate on a mortgage. Land contracts are often a form of predatory lending, but for some buyers they make sense. A buyer needs to carefully review the contract with a lawyer knowledgeable about land contracts, and consider the risks and benefits of this form of financing. As I understand it, there cannot be a valid land contract for one apartment in an apartment building. A land contract must be for title to the land and all fixtures, including all buildings, on it. (There was at one point some unclarity if the question referred to an apartment. It is now clear that it refers to a house, so this statement is not relevant to the OP, but may be to others.) It is not clear just what the OP's landlord (LL) has in mind. It may be that LL plans to offer a "land contract" in which the purchase would be completed only after a very long time, with the idea that the OP would simply default when s/he wanted to move. Such a default could harm the OP's credit. There seems no benefit to the OP in such a scheme compared to a lease, unless LL will lower the price significantly, taking into account maintenance costs and taxes, which OP may well be expected to pay under a land contract. Note that a landlord can't legally force a tenant to sign a document cancelling a lease, or to sign whatever s/he will call a "land contract". Nor can s/he cancel the lease without the tenant's consent except for good cause as specified in the law (such as not paying rent). S/He could become uncooperative on other matters if a tenant doesn't do as s/he wants. If a tenant does cancel his or her lease, s/he will lose some rights. Others are guaranteed by law as long as the tenant is paying rent. If one signs a "land contract", what happens depends on its provisions. OP needs to very carefully consider just what is being offered, and its risks and any possible benefits. Details of the contract will matter. No matter exactly what LL has in mind, this is not at all a usual procedure for a landlord. OP or anyone in a similar circumstance should be very careful. | You have a contract - if you break it, you can be sued. A contract is a legally binding promise that the state (through its courts) will enforce. You promised to pay the deposit - you must pay the deposit. You promised to pay rent on a regular basis for the period of the lease - you must pay that rent. You don't want to live there? Fine, the lease probably doesn't require you to. So long as you keep paying the rent, you don't have to. If you break the lease, then the landlord can sue you for the damage that they suffer - this is typically the value of the rent until they can find a new tenant and if that tenant is paying less than you, the difference between that amount and your rent for the balance of the lease. If you want to renegotiate the contract (for example, to end it early), you will need to ask your landlord but they are under no legal obligation to release you from it. They may be willing to do so out of the goodness of their heart and/or if you pay them. | Am I at fault? Can I get my security deposit back from Landlord? The landlord is wrong, and he should reimburse you the totality of the security deposit. Clauses #1 and #16 would entitle the landlord to deduct from your security deposit only the portion of the 7-day period that is not already covered in the payment you made for 1st week's rent, which according to clause #1 starts on Sunday July 29. If I understand correctly, you signed the contract (and paid) on July 27, and then gave your 7-day notice on July 28. Since you paid an additional amount for Saturday July 28, then your 1st week's rent payment actually covers the entire 7-day period of your notice. Therefore, the landlord should reimburse you the entire security deposit. The contract nowhere indicates that the count of [post-notice] 7 days starts after the current rent-week elapses. But even if it did contain language in that sense, the dates you mention render that hypothetical clause void. Lastly, clause #16 refers to giving a written notice, which is what you did by sending him the text he obviously read and understood. Therefore, his statement that "you did not provide proper notice of moving out" clearly is false. What should I do? If the landlord insists to retain the security deposit, your option is to file a complaint in Small Claims court (I don't know whether this has a different name in PA). Depending on PA procedural law, you and the landlord might be cited for mediation prior to being assigned a court date. A process in small claims court is pretty straight-forward, but only you can determine whether the hassle of attending mediation and court hearing is worth. If anything, it (1) certainly gives you some [minimal] exposure to litigation, and (2) teaches the landlord to abide by the very rules he drafted in the contract. 8/30/2018: Edited to address OP's follow-up question of whether section 250.512 of the Landlord and Tenant Act precludes recovery of security deposit (see comments) After analyzing the statute you found, Pennsylvania courts have still held that a tenant's failure to provide a new address does not preclude recovery of the security deposit. See Adamsky v. Picknick, 412 Pa.Super.Ct. 544, 549 (1992): we find the lack of notice argument is tenuous at best since appellant's reason for withholding the deposit was not because he did not have appellees' new address, rather, he withheld it because he maintained there were damages for which he should be compensated. That conclusion is squarely applicable to your situation. The landlord's only pretext for withholding your deposit is his inaccurate statement that "you did not provide proper notice of moving out", and for that matter he refers to nothing else than the rental agreement. The rental agreement nowhere requires you to provide your new address. One decision that does not constitute legal precedent but still might help persuading Small Claims court in your situation is Back v. Taylor, 19 D. & C. 3d 606, 609 (1980). After citing section 250.512(e) of the Landlord and Tenant Act, the court states: That section sets forth certain guidelines as to when tenants can obtain double recovery. Defendants have only sought recovery of the deposit and therefore, the above cited section does not apply. (emphasis in original) Unless you were pursuing double recovery (see item (c) of the statute), it would be very questionable --to say the least-- why a [Small Claims] court should decide your dispute any differently than in Back. Another non-precedential decision analyzing the same statute is Shoemaker v. Henry, 35 D. & C. 206, 209 (1984). Also in the context of double damages, the court stated: We cannot believe the only purpose [to require a tenant to provide his new address] was a negative one, that is, to cancel a right to double damages for failure to comply. A more rational explanation is that its purpose was to provide a landlord with an address to which the damage list could be sent. (brackets added) The statute apparently was enacted well before the prevalence of electronic communications. If your landlord has any way to send you a "damage list" (as it seems to be the case insofar as he replied to your text), then the rationale in Shoemaker should apply in your situation. If you are not even pursuing double recovery, then it would be unavailing for the landlord to cling to the language in item (e) of that statute. Therefore, you are definitely entitled to your deposit even if you did not provide to the landlord a new address. It is up to you whether you want to go for double damages, in which case the decision in Shoemaker might or might not be persuasive in Small Claims court. Beyond that, the Adamsky opinion constitutes legal precedent which favors your position. | The government of California has an extensive manual that says what you can and cannot do. To terminate a lease (a rental agreement for a year is a lease), there would have to be just cause for eviction (p. 65), such as failing to pay rent, violating terms of the agreement, cockfighting, and so on, and that does not include being a pain in the neck. Nor would the need to make repairs justify terminating a lease. On p. 79 they clarify that retaliatory eviction for exercising their legal rights is prohibited per California Civil Code 1942.5, and will result in fines. P. 35 ff. covers landlords entering: you may enter to make repairs, but must give 24 hour written notice (6 days if mailed), entering between 8am and 5pm business days, but you can also arrive at alternative times orally. If the local code-enforcers require you to do some modifications on the property, that is a separate matter and does not create a just cause for terminating the lease. For instance, if the electric service is not properly grounded and they require you to fix that, that does not constitute the structure "being destroyed". If the repairs make the building actually and certifiably uninhabitable, you might be on the hook for finding lodging for the tenant for the period of the repairs, so ask your attorney about that. Assuming that the tenant is not somehow responsible for the problem being repaired, then you will almost certainly have to keep the person for the duration of the lease. | Is there any way I can persuade the new landlord to start renting apartment as close as possible to the end of 30-day period? If you already signed a contract with the "immediate move-in" clause, it is going to be difficult to persuade the new landlord. That is because the landlord would have no incentive to postpone his source of income and there is no statute or legal provision available to you on that. If you have not signed the contract, then you two can still negotiate until either party leaves or you reach an agreement. Under contract law, the latter is referred to as knowingly and willfully entering a contract. | Is this legal for the county to enforce? Yes. And can I sue if they try to enforce it? You could, but you would very likely lose your lawsuit. A more fruitful approach would be to go to the county planning board and seek a variance to permit you to do what you want to do. | The relevant part of Texas law is in the property code, §§92.101-92.109 §92.104 allows them to "deduct from the deposit damages and charges for which the tenant is legally liable under the lease or as a result of breaching the lease", and then they must "give to the tenant the balance of the security deposit, if any, together with a written description and itemized list of all deductions" (except when there is uncontroversial rent owed). §92.109 states what the landlord's liability is, namely a landlord who in bad faith retains a security deposit in violation of this subchapter is liable for an amount equal to the sum of $100, three times the portion of the deposit wrongfully withheld, and the tenant's reasonable attorney's fees in a suit to recover the deposit. This requires bad faith, not just being wrong. If you dispute the deductions, you can sue the landlord to recover the deposit. The law also provides that "In an action brought by a tenant under this subchapter, the landlord has the burden of proving that the retention of any portion of the security deposit was reasonable". In order to extract more money from you for putative damages, the landlord will have to sue you and establish that there was an additional $2,000 damages. If the court finds that you did actually did damage the apartment, you may be ordered to compensate the landlord. Until you get such an order, you don't owe them anything; you may be able to recover the damage deposit if the "damage" was insignificant. This sketches the process of suing in Justice Court to get your deposit back, highlighting details like the demand letter that you might not have known you have to write. As far as your credit history is concerned, this is not entirely clear. The Fair Credit Reporting Act regulates the industry of credit reporting, and crucially you can dispute false claims of debts. This does not prevent a person from making such a claim. I do not have an account with the Big 3 reporting services, so I don't know what their standards are for recording a putative debt. However, you can insert a suitable statement in your record disputing the validity of the claim. It is most likely that the landlord would sell the putative debt to a collection agency. That industry is regulated by the Fair Debt Collection Practices Act, and there is a procedure about disputing an alleged debt. |
Does the "70 years after death" rule always apply unconditionally? Let's say I've found an image of artwork online and I know who the creator of the original artwork was, and I know that the creator died more than 70 years ago. Can I be 100% cetrain that the image of the artwork is public domain, i.e I can sell the image or do whatever I want with it? Is there a possibility that someone else has bought the right to the artwork and therefore owns the right to it even after 70 years have passed from the original authors death? EDIT: I should mention this regards a country in the EU but I don't think it matters that much because of the berne-convention? | In the EU, that's the general rule going forward, but there are two big exceptions I'm aware of. The general rule from Article 1(1) of the Copyright Term Directive: The rights of an author of a literary or artistic work within the meaning of Article 2 of the Berne Convention shall run for the life of the author and for 70 years after his death, irrespective of the date when the work is lawfully made available to the public. Note that this is in fact an extension on the Berne Convention, which requires minimum 50 years after death. Big exception #1: Moral rights. Article 9 specifically states the directive does not apply to moral rights. These vary by country, but in the EU, moral rights have the tendency of lasting forever, and most often includes the right to attribution and a right against action which to the author is "prejudicial to his honor or reputation" (see Berne Convention Article 6bis). Therefore, as a rule, you cannot do "whatever you want" with an image (though sale is generally OK – that's an economic right, not a moral right). Big exception #2: Pre-existing longer term. Article 10(1) leaves intact pre-existing longer term limits which Member States had: Where a term of protection which is longer than the corresponding term provided for by this Directive was already running in a Member State on 1 July 1995, this Directive shall not have the effect of shortening that term of protection in that Member State. This of course means, you can't actually 100% rely on this "70 years after death" rule in the EU until 1 July 20661. However, most EU countries did have 70 years anyways. That said there are some interesting exceptions. For example, France has mort pour la France which extends copyright an additional 30 years for those who died on active military service. This means for French citizens who died before 1 July 1995 on active military service, this directive does not apply, and they still have up to 100 years of post-mortem copyright protection. As an aside, Wikipedia has a fairly detailed list on country copyright lengths. Not 2065, because per Article 8, the rule is actually the January 1st after 70 years after death. Then you have to wait till July 1 to be sure the rule 100% applies, because for some reason, they made the Article 10(1) exception start in the middle of the year. | 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. | It would seem that your song is a derived work. You took the original work and found words that sound the same. If the original work had used different words, your work would have ended up differently. So you have a derived work. Same as making a translation; if the original was different, then the translation would be different, so the translation is a derived work. I was asked "How is this not straight up infringement". But it is. Not only copying is an exclusive right of the copyright holder, but also the creation of derivative works. | I've found Google's filtering based on licence to not be very reliable, at least not reliable enough to trust from a practical legal perspective. Using a photo that you don't own the copyright to is a risk. You may be infringing copyright by doing so. The owner may eventually ask you to stop, or they may sue you for damages. Further, some copyright infringement is criminal 17 USC 506. In my opinion, it would be unwise to use a work commercially that you don't affirmatively know you have permission to use. | Ideas (methods of playing, game mechanics, strategy, goals) cannot be protected by copyright. But any part of a creative work can. So, no copying of drawings, patterns, images, sounds, or the element. I suppose copying the software code is not an issue here, but it can, obviously, also not be copied. And nothing in your game can look like someone's else trademark. | Yes That is very simple - copyright is an exclusive right that starts automatically with the creation of a copyrightable work. The default situation is that the author has an exclusive rights to make copies of the work and derivative works. If the code is published somewhere by the author but the author has not said anything about its licence or copyrights, then the default situation applies - you need permission and you don't have it, so it's not legal for you to distribute their copyrighted works. They have the right to just publish it somewhere, others don't. If you try to contact the author and they don't say anything and ignore you, then the default situation applies - you need permission and you don't have it, so it's not legal for you to distribute their copyrighted works. If it's impossible to find the author (e.g. I have certain cases with literary works where it's not clear who inherited the rights after the author died), then the default situation applies - you need permission and you don't have it, so it's not legal for you to distribute their copyrighted works. That being said, certain forms of reuse (recreating ideas, learning from them, etc) would not be a copyright violation. But in general the situation with the author not saying anything is almost the same as the author explicitly stating "all rights reserved, you're not allowed to do anything, violators will be shot" - some specific uses are allowed even against author's wishes (e.g. 'fair use' clauses) but everything that needs their permission really does need their explicit permission. | I'm just going through high-level concepts with this answer, it's possible I miss a detail. Architectural works are indeed copyrightable works in accordance with Berne Convention Article 2(1). Both Big Ben and Eiffel Tower are no longer under copyright due to their architects dying more than 70 years ago. French moral rights do not expire (UK moral rights expire with the economic rights). Most relevant to this question are the rights to attribution and against derogatory/damaging/prejudicial treatment defined by Berne Convention Article 6bis(1). Copyright law is on a per-country basis and under Berne Convention Articles 3 & 4, foreign works are accorded equal rights to domestic works. French moral rights apply within France. Taken together, in the UK these architectural works are in the public domain. In France, economic rights (copyright) have expired, but moral rights still exist. Miniature replicas should be fine, but be sure to include attribution. | You're largely correct, though there's some vocabulary you're using that could go either way in terms of proper understanding. My comments on your understanding, presuming we're dealing with two Berne countries (UCC is largely irrelevant these days): My understanding of copyright is that it grants the author an exclusive right to distribute their work in whatever manner they'd like for some amount of time (determined by the copyright duration in a country). Generally correct though there can be many exceptions here (fair use, technical/temporary copying, first-sale doctrine, etc.). Can a person in Country A legally use the adapted work? I'm assuming no [...], Basically correct, whoever holds rights to the original work could theoretically still assert their rights in Country A on any portion of the derivative work that was part of the original. [...] does that mean that the author of the work created in Country B does not technically have all the rights to the work they created, since they have no control over whether their work can be distributed in Country A? This is splitting hairs, but while the derivative author has the rights given to them by copyright law, they aren't absolute. In particular in this case, regardless of which country, they still don't have any inherent exclusive rights over the original work. With respect to country B, those exclusive rights have expired so they don't bind the derivative author, but they haven't expired in country A. If that is the case, then would these rights be "granted" to the author of the adaptation when the copyright finally expires in Country A? Again splitting hairs, but its more helpful to express that no rights are actively granted by the expiration of copyright in Country A, it's just that no one holds those rights anymore (here there might be a language issue too, generally in copyright law "rights" refers to those exclusive actions that may be taken by the copyright holder, and not always to the "right" i.e. "freedom" for someone to do something). |
Is this request for formal resignation right/fair? I'm in a more-than-two-year fixed-contract job in the UK, ending in a few months (employee/employer type of contract). I just received an email stating: For the record, I need to advise that there would have been opportunity to extend your contract so this would be a resignation rather than redundancy matter. On that basis, please can you submit your formal resignation to ... Regarding the "there would have been opportunity to extend your contract", all I can say is that my boss offered me the possibility of extending the contract "for some time" (less than a year), but for personal reasons I need to move to a different town. In any case, I never received a formal extension offer. Perhaps more importantly, because I rejected the "extension offer", my employeer will hire a replacement. Now, is this an unfair request, perhaps asking for myself to renounce redundancy (or other) rights? The official information in the UK government website about fixed-term contracts states: Anyone who’s worked continually for the same employer for 2 years or more has the same redundancy rights as a permanent employee. Further on, regarding ending a fixed-contract, it says: If a contract isn’t renewed This is considered to be a dismissal, and if the employee has 2 years’ service the employer needs to show that there’s a ‘fair’ reason for not renewing the contract (eg, if they were planning to stop doing the work the contract was for). ... They may be entitled to statutory redundancy payments after 2 years’ service if the reason for non-renewal is redundancy. [emphasis mine] So, there seems to be a difference between dismisal and redundancy. In fact, the official UK government website regarding redundancies states: Redundancy is a form of dismissal from your job. It happens when employers need to reduce their workforce. So, it seems ending of fixed-contract is not per se reason for redundancy, specially given that the employer will hire someone for my position. My questions now: is my analysis correct? This is, am I not entitled to redundancy rights? should I send a resignation message for a fixed-term contract, if it is evident the contract is to finish anyway? if not, why would I be asked to do so? | As I understand it, the legal distinction here is: Whose choice was it that you not continue in your job? If the company was prepared to offer you an extension, until you told them that you were not interested, you are leaving of your own free will, and would not be entitled to redundancy rights. If your employer did not extend the contract when you would have been willing to continue, that is either a redundancy, or a dismissal of another kind. If you were dismissed for valid cause, you have no redundancy rights. if you were let go because of a lack of work, or because the employer decided not to have anyone doing that job, that I gather would be redundancy. | 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. | One of the principles of contract law is that the offer and acceptance are evaluated based on the objectively ascertainable intentions as judged by a reasonable person. On the facts that you have provided - even if your friend claims that they filled it out wrong, there is no reason for someone to objectively think so, particularly given the fact that they went to the trouble of writing the information in. However, this will depend on what kind of legally binding document this is. If it is, in fact, a contract, then the employer must accept it before it becomes legally binding, and they must actually communicate this acceptance to your friend (the offeror). If this is a policy document, then it is only legally binding if another contract has said that it is legally binding - generally, (smart) employers will include a clause in their employment contract stating that you are to adhere to policies but that those policies do not form part of the contract. If that is the case, then your friend is legally bound by the terms of the policy and will breach their employment contract if they do not adhere to this policy. This is unlikely to be an issue of contract law in and of itself - your friend cannot unilaterally bind their employer to terms as he sees fit. More information - including the nature of the document and other agreements that were made - would be required to provide more useful information (and that's what you would give to a lawyer). | Involuntary servitude is illegal in Spain/Europe Has been for more than 100 years. Once an employee resigns their only obligation is to work the contracted (or statutory) notice period or pay the employer the equivalent salary. | A company had me sign two conflicting documents about two years apart. Which one would apply? Possibly both because actually there is no conflict. What you describe does not reflect that these documents are incompatible or inconsistent. There is no indication that the second document impliedly or explicitly replaces the first one. The second document seems just redundant so far. Employees could likewise be required to sign a third document that only says "no drugs or alcohol on the job site on Wednesdays", and that does not mean that any previous documents they signed expire. | The EU-wide 48 hour limit and the German Arbeitszeitgesetz only apply to employees, not to self-employed persons or freelancers. Thus, it would in principle be legal to have a full-time job and do any amount of freelancing on the side. I'm not sure whether your PhD student position factors into this since it is unpaid. If you have multiple employers, the sum of working time matters – this is one reason why you have to notify your employers about additional jobs. One employer cannot check your time with another employer, so you should inform them when your shifts change (while employers can assign you shifts, they must consider your personal circumstances). But self-employment is not employment. If you take this offer, you would act as a German business, perform work in Germany, pay taxes in Germany, but have an UK client. (Assuming your work would be done remotely rather than travelling to the UK to perform your work there). Freelancing would also mean that you'll meet the wonderful world of German bureaucracy, including registering with the Finanzamt, writing invoices, doing accounting, filing taxes, dealing with VAT, and trying to navigate a no-deal Brexit. At least your work likely counts as freiberuflich rather than gewerblich, which would free you from a Gewerbeanmeldung. Your don't have to seek permission from your employer when taking up a side job, but you must notify them. They can object if your side job would impact your work. This would clearly be the case when working for a competitor, or when your side job would bring you over the working time limit. Since you work in the public sector, there may be additional rules (parts of Beamtenrecht apply to your employment relationship). While the working time limit does not apply to freelancing, this might still impact your job if you get too little rest, or if you would become unavailable for your main job during normal working hours. Taking up a side job despite an objection could be cause for immediate termination. Note also that you cannot generally use vacation days to work a side job since vacation is intended for recuperation. To summarize: you would not work an UK job, but be employed in Germany and be self-employed in Germany the working time limit only relates to employed work, not self-employed work your employer may nevertheless be able to object to you taking up another job if it would affect your work | The relevant law in California is here. In your situation, it is presumed (as you both agree) that you have a month to month agreement. §1946 states that A hiring of real property, for a term not specified by the parties, is deemed to be renewed as stated in Section 1945, at the end of the term implied by law unless one of the parties gives written notice to the other of that party’s intention to terminate the same, at least as long before the expiration thereof as the term of the hiring itself, not exceeding 30 days; In other words, the landlord has to give you 30 days advance notice to terminate the lease, and you have to give 30 days advance notice to terminate the lease (and it must be written notice). The section continues: provided, however, that as to tenancies from month to month either of the parties may terminate the same by giving at least 30 days’ written notice thereof at any time and the rent shall be due and payable to and including the date of termination. which effectively says the same thing, specifically appliedd to month to month leases. There is some leeway on terminating a lease: It shall be competent for the parties to provide by an agreement at the time the tenancy is created that a notice of the intention to terminate the same may be given at any time not less than seven days before the expiration of the term thereof. The notice herein required shall be given in the manner prescribed in Section 1162 of the Code of Civil Procedure or by sending a copy by certified or registered mail addressed to the other party. But you would have to establish that there was such an agreement (I assume there was not). §1946.1 asserts that a hiring of residential real property for a term not specified by the parties, is deemed to be renewed as stated in Section 1945, at the end of the term implied by law unless one of the parties gives written notice to the other of his or her intention to terminate the tenancy, as provided in this section. That is, a lease is automatically renewed in your situation unless notice has been given. Moreover, A tenant giving notice pursuant to this section shall give notice for a period at least as long as the term of the periodic tenancy prior to the proposed date of termination. What you are proposing contravenes this provision of the law – from your description of the facts, you did not give notice 30 days before now. So your obligation to the landlord exists to the end of May. Bear in mind that the law imposes obligations on both landlord and tenant: just as the landlord cannot throw you out without proper notification, you cannot walk away from your obligation without proper notification. §1951.2 addresses breach of lease and abandonment by lessee (you) if a lessee of real property breaches the lease and abandons the property before the end of the term or if his right to possession is terminated by the lessor because of a breach of the lease, the lease terminates. Upon such termination, the lessor may recover from the lessee: (1) The worth at the time of award of the unpaid rent which had been earned at the time of termination; (2) The worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that the lessee proves could have been reasonably avoided; (3) Subject to subdivision (c), the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that the lessee proves could be reasonably avoided; and (4) Any other amount necessary to compensate the lessor for all the detriment proximately caused by the lessee’s failure to perform his obligations under the lease or which in the ordinary course of things would be likely to result therefrom. There are, also, no special exceptions about landlords selling their property that allow instant termination. That is, you still owe the month's rent, even though the lease is ending at the end of the month. You could of course ask the landlord to forgive you that last month's obligation. I am assuming that the lease was terminated properly by the landlord. If it was not, the landlord has not legally terminated the lease and it will continue until someone does properly terminate the lease. That might provide incentive for the other party to just forget the last month's rent, but it also might not. | Termination is a matter of fact That is, it has either happened, or it hasn’t. Whether it has or hasn’t depends on a multitude of factors including the terms of the contract, the actions of the parties, and communication between them. These factors are so case specific that it is impossible to generalise. Further, within a given case, reasonable parties may differ on if a contract has been terminated, which party initiated the termination, and if that termination was lawful. Usually, these cases involve mutual allegations of repudiation by the other party and rightful termination in response by our side. These issues are likely to be the major ones that the court or tribunal will have to determine. A claim for damages would need to be pursued as part of the overall case but the deadline for raising them is a procedural matter for the court or tribunal. Failing to raise them as an issue in pre-litigation correspondence would not be a bar to raising them in a claim or counter-claim. However, failing to raise them at the earliest opportunity denies the offending party the opportunity to mitigate the damage and, if they can show that there were actions they could have reasonably taken to mitigate but couldn’t because they weren’t informed, then that may reduce or eliminate the damages payable. |
Understanding trademark infringements in a world where many dictionary words are trademarks? How does one even create the title of an app when basically most nouns in the English language have been trademarked? When and when isn't a trademark valid? For example, I was surprised that even the word corgi and jets are trademarked! Jacuzzi seems to be the strong advocate of their trademark. But, what if these words are used in combination? Such as: Front Jacuzzi Back Corgi? Related to: Trademark Infringement notice for usage of a dictionary word Jacuzzi in app - Google Play Store | You infringe a trademark when you use it in a way that allows confusion between your goods and services and their goods and services. Trademarks are limited by geography (although global brands are ... global) and industry. You can use the word “apple” to sell, say, apples or plumbing services, but not computers or consumer electronics. You can also use the trademark Apple to identify goods and services made by Apple - because that’s what a trademark is for. You can’t use it in a way that people could be confused that your goods and services are their goods and services or are related to or endorsed by them. | The purpose of trademark law is to enable people and companies to distinguish themselves from the competition. Hence it is illegal to use someone else's trademark, or to use one that is confusingly similar. I would think that merely changing the case on an otherwise distinctive name would be considered "confusingly similar", so it wouldn't matter which case you used. But maybe some court somewhere thought differently. Edit: Perhaps the argument is that by registering "my trade mark", "My Trade Mark" and "MY TRADE MARK" all at once you cover all the bases. Its not that "MY TRADE MARK" gives you broader protection than "My Trade Mark". | The store is, as far as i can see, not using the trademarked image to sell their cake. Your family does not intend to sell anything at all. This photo, from the description, could not reasonably be confused with an official image from the trademark holder. (all of this is based on your description, of course). Therefore, the trademark holder probably won't sue for trademark infringement, even if they somehow heard of this event, and if they did sue, they would quite likely lose. You would be making a copy of a presumably copyrighted image. You might have an active defense, but that is very hard to be sure of in advance. (Note that "fair use" is a very specifically US legal concept, and would not apply in the UK. The roughly comparable concept is "fair dealing" but that is more restrictive, and follows somewhat different rules.) In any case, it is possible that the rights holder would sue, and if the situation were a bit different (the was only one person pictured, making the shirt with the protected image very prominent, for example) there might be a larger chance of such a suit being successful. No business is going to want a bakery department manager deciding whether a particular use of a particular image does or does not infringe IP rights, and whether it does or does not expose the business to significant risk. Just to get an opinion from their lawyer on whether this image infringes would probably cost them several times the price of the cake with image printing. The store has no doubt written its guidelines to err well on the side of caution, because one suit, even if they won, would cost far more than the profits of many cakes, and if they lost, could have a very negative effect on their bottom line indeed. The store is entitled to restrict what business it does to keep itself safe from lawsuits. It is going to keep well on the cautious side, in all likelihood, and so it should. I fear you will have to find a store with a different policy, or use a different picture. | General Rules The rules on this vary somewhat by country. In some counties the is no trademark protection unless a mark is formally registers. In others use "in trade" offers a degree of protection even in the absence of registration. The US follows the second rule. Some of Europe follows the first. But in pretty much all countries trademarks (aka trade marks) are only protected when they are "used in commerce" and are only protected against other uses "in commerce". This mans that a phrase or design or other possible mark is only protected when it is functioning as a mark, that is it is used by the maker to identify or advertise a product or service (hereafter I use "product" to mean either or both). Moreover a mark is only protected when an alleged infringer uses the mark (or a similar mark) in such a way that people might reasonably be confused into thinking that the infringer's product comes from the same source as the products of the owner of the mark, or is approved, sponsored, or endorsed by the owner of the mark. A simple literary or pop-culture reference is normally not trademark infringement. This is both because a well-known phrase is not usually protectable as a mark at all, and because a reference to it is normally not infringement, even if the mark is protected. The likelihood of confusion is a very important concept in trademark cases. Examples The phrase "Elementary, my dear Watson" Is often used as a reference to the Sherlock Holmes stories and novels. But it was never used to brand or advertise those stories, so its use in a novel or video game now would not be infringement. Even if a game used that phrase as a title, it would not be infringement, because the phrase is not protected. All this would still be true even if the Sherlock Holmes stories were still being published. The tagline "In space, no one can here you scream" was used extensively to advertise the movie Alien. It had some protection as a mark (in the US), and might well have been registered for fuller protection (I haven't checked the US register of trademarks, or any other for this phrase). A game titled with this phrase might well be infringing. A game where a character speaks the phrase at some point probably will not be infringing. Caution All that said, exactly where the limits of infringement lie depend on the detailed factual situation. Before investing sizable amounts of money or time and effort on such a project, it might be wise to consult a lawyer knowledgeable about trademark law in one's particular jurisdiction, and make sure that the risk of suit is not to great for one's tolerance. | Yes, you did something wrong; you used both the university's trade mark and copyright without their permission. I don't know the law in India, however, if it is similar to Australia it is unlikely that the police will be interested in doing anything about it. While it is technically a crime, criminal prosecution is usually reserved for egregious breaches on a for profit basis. I suggest you apologise and agree to stop distributing your app. | Not having immediate access to the source doesn't preclude a finding of copyright infringement. If you have seen the source material, subconscious infringement can happen. However, in this example, both the short phrases doctrine and the merger doctrine would likely prevent the is_prime function from having copyright. Words and short phrases are not individually copyrightable, so the name would be free to take. Regarding the implementing code, if it isn't an exact copy (i.e. copy and paste), courts will apply the abstraction-filtration-comparision test. They may find that you took the selection and arrangement of instructions from the original source, albiet using different names. That selection and arrangement would probably be considered a substantial similarity and, if not for the merger doctrine, infringement. However, given the limited number of ways to express the prime-detection algorithm means that the expression of that idea has merged with the idea, and thus is not protected by copyright. (Or in some jurisdictions, merger is a defence to infringement rather than a bar to copyrightability). | Let me be sure that I understand the situation. You set up an account with Big Company, which uses BigCo as a trademark. You want email about that account to reach you with a unique address, so you set up '[email protected]" and gave that as your email when setting up tha account. You don't plan to use that address for any purpose but communications from BigCo to you and from you to them. (Of course these aren't the actual names.) Have I understood the situation correctly? It seems that you ar not using 'BigCo" in trade, nor are you likely to be confused with an official representative of BigCo, so you are not infringing their trademark. However, someone using such an email more generally could perhaps be so confuse, so BigCo has a somewhat legitimate concern, as they cannot know the very limited use you plan to make of this address. The only way that the could force you not to use such an email address would be via a court order as part of a suit for trademark infringement, whcih under the circumstances I doubt they would get. However, unless they have some sort of contract with you to the contrary, they can control who registers on their site. and could refuse to register you using an email address that includes their name or alias. Convincing them to accept your registration, even though it does no harm to them, will almost surely be more trouble than it is worth. Give them "[email protected]" or something else that is not their name, but will suggest their name enough that you will know who it is. This will serve your purpose fully, and avoid a long argument with people who are reading from a script (once you get past the automated process, if you can even do that). This is all assuming that I have understood the situation correctly. I am also largely assuming US law, since you didn't mention a jurisdiction. (EDIT: UK law should not be very different on these points.) | You need to check if the original game developers patented the mechanics/rules of the game. For your example, Monopoly was patented, but expired in the 50s and while it would not be a copyright violation to mimic the rules/mechanics, it would be a different intellectual property violation (patent infringement). Spry Fox vs LOLAPPS is also relevant as it extends copyright protection to the implementation of an idea, but ideas (like rules/mechanics) cannot, by themselves, be copyrighted. This means that there is an avenue for the original developer/company to sue even if the visual/audible aspects are different, but the overall gameplay is the same. Also see Tetris Holding LLC vs Xio Interactive Inc. as it relates to the visual aspect of the game. |
Is it breach of contract if dismissed before starting work? I've been dismissed by a company I was due to start a job with, just a few days before the job was meant to start. They have no intention of providing me with any compensation despite the fact I handed in my notice as my previous job, moved to the other end of the country, and signed a lease at a new property to take this job. For more detail here is a timescale in which I'll use the abbreviation BCE to mean Before Commencement of Employment. 7 weeks BCE received and signed contract of employment with start date. At this time I handed in my notice to my then employer and landlord. I had little contact with the company or agent who hired me until 3 weeks BCE when the agent called me to check that everything was on track with my move. 1 week BCE I managed to secure and sign for a lease on a property in the city the new job was located in. I had to make multiple journeys and incur considerable costs to view properties and find somewhere to live. 3 days (1 working day) BCE the agent called me to inform me that the company would no longer be able to hire me because of financial difficulties. 1 day BCE I received email confirmation from the company they would no longer be able to hire me and that they were not expecting to compensate me. It may be of note that I am UK based (I moved from the South coast to Scotland for the job) and although there was a probationary period specified in the contract I am under the impression that that would not have started at the point the employment was terminated. Are there grounds for a breach of contract here? RESOLUTION: After giving the company one last chance to compensate me for the notice period (which they refused), I got in contact with my local Citizens Advice Bureau. They recommended I send a Notice of Intent to Sue to the old company, with a detailed breakdown of damages. In the letter asked the company for reimbursement for my notice period, all moving costs, and first month of rent as damages for the breach of contract. To my relief, they agreed to pay this amount in full, rather than challenging it in court. | UK: For all I know you cannot be fired unless you are hired. They must hire you. Once a job offer is made and accepted, they must hire you. If they don't, call a lawyer. I personally know someone who got hired, and when he arrived for his first day's work at the new company, he found that the whole department that he was supposed to join had been laid of. The company had to hire him. PS. "Financial difficulties" means you call a lawyer urgently. Once they are bankrupt your chances of extracting money are not good. | It is unlikely that you could successfully sue the bank for breach of contract, but of course the first thing you should do is carefully read the agreement and see exactly what they promised. It is understandable that you would like to get your money right now, but that isn't necessarily guaranteed under the agreement. Assuming there is no statement in the agreement as to how long it will take them to deposit the reward once requested, they would have "a reasonable time period". I located on of those agreements, which says that it will be deposited 90 days after completing the requirements. If that is what your agreement says and after 90 days still no money, then you should speak to the branch manager and request timely compliance with the agreement. It would cost more than $600 to sue them, and the court won't punish them extra for missing a deadline (assuming this was not a deliberate and willful refusal on their part). | I would recommend talking to an adult person in HR. I'm quite sure they will notice that what your manager wants to do is more than dodgy, and doing something dodgy may be in the interest of your manager, but not in the interest of the company. The best thing is to go to HR, acting as if a mistake has been made, and point out to them what your start date was, and that the new contract has the incorrect starting date, and they need to fix this mistake or you can't sign the contract. If they insist you sign it, then you DON'T sign it. If they say you will be fired if you don't sign it, then you tell them that in that case you would get legal advice. BTW. You definitely don't sign this as it is. PS. This answer was posted on workplace.stackexchange, not law.stackexchange, so please don't complain if there is no legal content. | If an offer is accepted, you have a contract Oral contracts are binding for most transactions. See What is a contract and what is required for them to be valid? However, from the circumstances, it’s not clear that there was an offer subject to acceptance. Had the wages been agreed? The hours of work? The annual leave? The sick leave? If these were undetermined then there is no contract. | What legal options do I have here? It depends on how much you are owed. If it is less than $5000 (in a city court) you can sue them in small claims. If it is more than that, you'll have to sue them in a different court. Do I have a claim to salary if I quit? Yes, absolutely. You quitting does not relieve the business of its obligation to pay you for work you have already performed. In some states, they may also be required to pay you for accrued leave (sick/vacation time). You should not have to work for a company that does not pay you, we got rid of slavery a long time ago. I'm nearly positive I would not have a claim to the 100% discretionary bonus. Maybe, maybe not. This depends on your contract and what you've been told. If you were told (in writing) that you would be given $X amount for a bonus for work performed in 2018, the bonus may no longer be discretionary because the company obligated themselves to pay it via a promise. Bonuses may be harder to argue in court, but if you have sufficient documentation that you were promised this bonus then you may have a claim to it. If you do decide to go to court with this, gather up as much documentation as you can before quitting, print it out and save it to bring to court or to your lawyer. Make sure to get as much as possible, for example if it is an email, get the whole chain, as much of the headers as possible, etc. If you have voicemails, see if you can save them or record them for later. Do not wait too long, have a lawyer draft up a demand letter the moment you quit outlining exactly everything you are owed, including the bonus, vacation, sick days, etc. Deliver this via certified mail. Don't let them say "well we'll get you taken care of next week/month/pay day". There are statutes of limitations (I don't know what they are for NYC) but you should be making an effort to collect, not waiting on them. After you quit, they don't have an incentive to pay you anymore (even though they are legally obligated to). | could I claim that my product must be added asap? And is it reasonable to ask for compensation for the missed revenue due to pushing back the launch? Unfortunately, no. Your description reflects that you consciously treated as sufficient the limited knowledge you had at the formation of the contract. See Restatement (Second) of Contracts at §154(b). There is no indication that (1) at the formation of the contract the company committed to a more specific timing, or (2) you would have declined the invitation had you known at the formation of the contract that the company would keep postponing the inclusion of your product in the way you describe. You were given the expected date only after you performed your duties pursuant to the contract, which defeats the notion that the company's timing was any relevant to your decision of entering the contract. The only way you could prevail is by proving that the company breached the covenant of good faith and fair dealing that is implied in all contracts. See Restatement at §205. Other than that, the lack of contract provisions to protect your interests give the company significant discretion. | First of all, there is no breach - they said they would pay it "over the course of the first year"; in what way is the first week not part of the first year? Second, breaching a contract doesn't always allow the aggrieved party to terminate it: in fact, being able to terminate is only for the most egregious of breaches or ones that are specifically spelled out as giving a right to termination. For example, failure to deliver (or pay) on time or in full would not allow termination, only damages. | I have read that Assured Shorthold Tenancies of less than 6 months are allowed, but you are not allowed to evict a tenant before 6 months. That applies only to section 21 ("no fault") evictions. Specifically, according to section 21 of the Housing Act 1988, a notice can't be served in the first 4 months of a tenancy (section 21(4B)), and can't take effect in the first 6 months (section 21(5)). Section 8 evictions, which require one or more of the reasons listed in Schedule 2 of the Act, do not have this restriction - though only some of them can be used during the fixed term part of the tenancy, and they must be listed in the tenancy agreement in order to be used in that way. Will I have to wait until he has actually left before I can arrange an AST with new tenants? Yes, but that's always true. It's very unwise for a new tenancy agreement to be signed until the previous tenants have moved out, because if they don't leave before the new agreement takes effect, the landlord is now committed to finding accommodation for the new tenants. This is why tenancy agreements are often only signed on the first day of the tenancy. |
Do you need to get copyright separately from a creative commons license? I understand the types of creative commons licensing, but does a creative commons license replace copyright altogether? If I file for a creative commons license for something that I want to make distributable but not alterable, do I need to copyright it in addition to the creative commons license, or does the license take care of all IP needs? | No, CC does not replace copyright. A creative commons license is one way to use the copyright that you already have the moment you make an original creative work. Without a copyright, a creative commons license does nothing. You don't need to do anything to get a copyright. However if you plan to exploit a work commercially, or want to be sure that it is well protected, you can gain additional protection in the US and some other countries by registering the copyright. US registration can be done online at this page. The benefits of US registration are described on this page. Nor do you need to "file for" a Creative Commons license. by publishing or distributing a work with an indication that it is subject to a creative commons license, you have released it under that license and anyone may thereafter use it subject to the terms of that license. This is done with a statement such as "Released under the Creative Commons CC-BY-SA 4.0 license." Such a statement is often placed near the (optional but strongly recommended) copyright notice, but that is not required. if you wish to specify the form of attribution (for example to a specified pseudonym) or a URL to use in providing attribution, that should ideally be placed near the license statement. If the work carries a list of credits, those may be placed nearby as well, but need not be. | It is certainly possible to transfer a copyright or other IP without an explicit charge, indeed it can be a pure gift, and normally would be when it is left by will, as is common enough. From a paid consultant it might be clearer to include a statement that the transfer is part of the consulting assignment, rather than putting a price of zero in a blank. But one could instead convey a permanent non-exclusive license, granting permission to use or modify the work in any way desired, ans saying that this is provided as part of the consulting process. Then there would be no question of what rights the consultant retained, or that the same or a very similar solution could be provided to different clients. Indeed such a license would not be so very different from a CC-BY license, or any of several open source licenses, although I would not use one of those by name. But the legal effect would be much the same, and the wording could be similar. Otherwise there could be a later claim that the right transferred precluded the consultant from using the same solution for other clients. Even if such a claim was not legally sound, and was not upheld, it could be a distraction and costly of time and energy at least. | If you copy copyrighted material without permission or another exemption, you are at risk It doesn’t matter if you know the material is subject to copyright, it doesn’t matter if you think you have permission but don’t, it doesn’t even matter if you knowingly make the copy or if it is some background process you don’t know about. Copyright law is really simple: if you make an unlawful copy, you broke it. If this seems unduly harsh, remember you are dealing with a law with its roots in the 18th century that was internationalised at the beginning of the 20th century. Making copies then was a hard, deliberate process - you couldn’t “accidentally” or “inadvertently” make a copy of a literary or artistic work. Now you can - the world has changed, the law hasn’t. | 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. | You can licence your copyright under as many licences as you like to as many people as you like It's your copyright - you can do what you want with it. What you can't do is give someone an exclusive licence and then give licences to others - that would be a breach of contract with the exclusive licensee. How you let people know about the available licences is also up to you - your bio on Stack Exchange is fine. | This would likely be considered a derivative work. You would need permission from the copyright holder to make it, especially if you intend to distribute it for profit. | Yes, that’s allowed. Under the Stack Exchange terms of service, content you upload is licensed to Stack Exchange Inc. on a non-exclusive basis under CC-BY-SA 4.0. The terms of service do not give Stack Exchange the copyright to your contributions, and a non-exclusive license means you are not promising Stack Exchange that “only Stack Exchange will be allowed to use this content.” That means you can continue to do whatever you want with your own content and do not need to mention Stack Exchange at all. The only restriction is that you can’t stop Stack Exchange from continuing to use your Stack Exchange content under CC-BY-SA 4.0, and since it’s a Creative Commons license you also can’t stop anyone else from using your Stack Exchange content under that license. | 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. |
In the English law, how is a conflict of interest between an extradition request and a criminal conviction solved? This question was motivated by Julian Assange's famous case, but it is a more general question. As it is known, he currently has a conviction of 50 weeks prison term for bail jumping. Thus, England wants him to serve it in a prison (jail?). From the other side, another country - this time, the USA - wants him, without a conviction (in the USA), but because also they want to punish him. Thus, we have a conflict of interest: The English criminal system wants him to serve his punishment. They are probably tuned to not allow him to go to anywhere, until he served his prison term. Also the criminal system of another country wants him. The U.K. is bound by international agreements to give him to them. The logical solution would be to first make him to serve his punishment in the U.K., and then extradict him to the USA. It seems a likely outcome in JA's case, but not always. For example, in the case of a famous terrorist or war criminal, it would be surreal to delay his criminal procedure, only because he committed also some traffic offense in the U.K. Which interest will be stronger? How is it being decided? | Yes, they just wait until he has served his time in most cases. The United Kingdom and the United States can agree that he can serve the time in the United States though. | Why do other countries, like America, not allow this? It is the way that U.S. courts have interpreted the constitutional amendment requirement and reflects a policy judgment that letting someone go free now and then is better than frequently forcing someone to be tried more than once. That value judgment flowed from concerns about and fear and skepticism of the British colonial criminal justice system and the Star Chamber in England with which they were familiar. The U.K., Australia, Canada, and New Zealand didn't have an independence revolution in their history to create the same kind of deep distrust of authority, especially in the criminal justice area. The U.S. was founded by terrorists. Few other former British colonies were. Quoting Dale: "As a constitutional protection, legislative change like this is not available in the United States." Is that really true and can someone expand on this? When the courts determine that the constitution requires something it can't be changed with ordinary legislation. Either the constitution needs to be amended to change it (which is very hard), or the courts can change their interpretation (which is unlikely in an area so settled in the law and which is relatively uncontroversial between liberals and conservatives in the U.S.). If it is, this is a big problem in my opinion. The powers that be in the U.S. don't agree. This kind of case is exceedingly rare. And, there are much bigger problems with the system that obscure that one. Also, the dual sovereignty doctrine allows federal prosecutions in some wrongful acquittals that really matter (e.g. for civil rights violations by law enforcement). | 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. | In the United States, prohibition against double jeopardy is a constitutional protection. As long as one was actually at jeopardy for an offence by a particular sovereign, that sovereign may not subsequently prosecute the accused for the same wrong. In other jurisdictions, such as the U.K., it has a less strict form, even though generally, special pleas of autrefois acquit would be available. It is also not the case that after an apparent "confession" in public that there is "no doubt" about a person's guilt. No evidence is "certain" in law without being tested in court. Also, you propose: you were tried for murder and acquitted - then you go out and publicly admit that they were wrong, you did actually murder that person This does not put the acquittal into question. The prosecution failed to prove the case beyond a reasonable doubt. This means at law that one is deemed to be not guilty. Your scenario does not show that the trier of fact was "wrong" about the prosecution failing to prove its case beyond a reasonable doubt. This is not an avenue by which the prosecution can challenge an acquittal. If a properly instructed trier of fact finds that that the prosecution did not prove its case beyond a reasonable doubt, this conclusion is unassailable. You ask "where is the justice?" The justice of a system is assessed by its application across the totality of cases. Given that a system of prosecuting and judging that is run through humans will inevitably produce errors, the law has developed to promote a measure of "justice" across the entirety of the cases that are disposed of by the court rather than to futilely attempt to ensure the "correct" result in every particular case. The rule against double jeopardy has arisen out of this systemic concern for justice. It does not purport to secure the "correct" result in every case. | It is my understanding that he was charged under 18 USC § 1001 which gives a maximum sentence of 5 years under most circumstances. This is the absolute maximum; the judge is not allowed to give more than the law allows. Here are the federal sentencing guidelines. If you look in the guidelines, you'll see that the base offense level for this crime is 14. If there was a "substantial" interference with justice, the offense is increased by 3 levels. My guess is that they won't find this to be the case. There are several other adjustments that likely don't apply. Under the "Adjustments" section of the guidelines, it says: (a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels. (b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level. It seems that the first one applies. The second one cannot apply in this particular case since the offense level was not 16 or greater. So the offense level would be reduced from 14 to 12. If you look at the Sentencing Table, you can see that an offense level of 12 has a recommended sentence of 10-16 months for someone with no prior criminal history. Also, this is in Zone C, meaning: the minimum term may be satisfied by... a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention according to the schedule in subsection (e), provided that at least one-half of the minimum term is satisfied by imprisonment. so it seems he would go to prison for at least half of that. But if the offense level was dropped just one more level, he would be in zone B, where probation with home confinement would be an acceptable sentence. But there's one more thing to consider: He's cooperating with investigations into other people. This allows a departure from the ordinary guidelines. Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines. (a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following: (1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered; (2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant; (3) the nature and extent of the defendant’s assistance; (4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; (5) the timeliness of the defendant’s assistance. I have no idea where the Guardian got 6 months from. It's certainly possible that's part of the plea deal (although nothing says the judge has to impose the sentence that the prosecutor recommends as part of the deal), and maybe there are adjustments I'm not taking into account that would reduce the offense level further. I just now found a copy of the plea agreement. It specifies that the parties agree he will be sentenced under guideline §2B1.1(a)(2). This ordinarily is for offenses such as theft, property damage, forgery, or fraud. As far as I can tell, the government is just using this to get the sentence down, because there's no real relation to the crime he's accused of. Under that guideline, the base offense level is 6. The two level decrease for accepting responsibility puts it at an offense level of 4, with a possibility of a downward departure for cooperation. Regardless of whether or not there's a downward departure, this would have a 0-6 month sentence recommendation, which is the lowest available in the guidelines. This is also in Zone A of the sentencing table, meaning a sentence of just probation with no imprisonment or home confinement is possible. | The standard of proof for a criminal conviction is the same. So they would similarly need to prove beyond a reasonable doubt to convict the foreign national of a crime. But deportation is not a criminal proceeding, and has a different standard of proof. (In deportation you also don't have criminal defendant rights like right to an attorney if you can't afford one.) I believe the standard is "clear and convincing evidence". | At the federal level, per 18 USC 751, escaping is a crime. In United States v. Allen, 432 F.2d 939 it was held that an arrest need not be lawful in order for an escape to be illegal; Laws v. US states that "This court has said that a sentence imposed for a violation of 18 U.S.C. § 751 is 'not affected by the validity of the sentences being served at the time of the escape'", giving numerous citations. I don't find cases where the escapee was exonerated; prosecutors have the discretion to not prosecute for committing a crime, so it would be hard to find a case where the legality of such a conviction was upheld (also, hard to find a jury willing to convict in such circumstances). | 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. |
Can a database be made from essays written in college? Are graded essays written in college marked for destruction considered published work? What is the legal extent the data from essays can be used? https://academia.stackexchange.com/questions/129934/where-do-all-the-essays-go-in-college | Whether published or unpublished, they are still protected by copyright. (They are probably unpublished for copyright purposes, but in the US this makes little difference for any recently created work (that is anything after 2002). For older work see the Cornell chart.) They cannot be copied or distributed without permission, unless an exception to copyright, such as fair use or fair dealing applies. And it is hard to see how either would apply to entire essays simply begin placed in a database. Placing text in a database is probably making a copy, and might be distributing it or publishing it, depending on how access to the DB is granted. Now data from the essays, as opposed to the texts of the essays themselves, are probably facts. Facts are not protected by copyright in any Berne Convention country, including the US, the UK, and the EU. | "Pastiche" is a literary, not a legal term, and as a professional coder, I would not use it to describe code that to some extent imitated other code. The legal question here is: is your code a derivative work of the code it is based on, and if it is, did you have permission to make that work. Copyright, in an Berne Convention country, which includes the EU, does not protect ideas and concepts, it protects expression. It protects the choices of words and symbols, and other forms of expression. If all you did was study example code, presented for educational purposes, and then write code that performs a similar function, using the same general techniques, then I don't think you have infringed copyright. That, after all, is why people post code to Stack Overflow and similar sites, to allow them to learn how to use specific coding techniques, including in commercial projects. I have used techniques posted to SO to do coding as part of my paid job. The usual test for copying under US law is "substantial similarity". This takes into account cases where there is essentially only one way to say or code something. I don't know the exact tests under the various laws of various EU countries, and they will not all be the same. But I suspect that on this point they are, well, substantially similar :). I can't advise on your specific situation. But if it is as described, I don't think you have a problem. | Copyright never protects ideas or processes, it only protects expression: words, images, and sounds, some of which may describe ideas. But when a work is nothing more than a translation of an idea into words, with no independent originality -- when almost anyone would use more or less the same way to describe the idea, then the work will not be protected by copyright at all, as it is not considered an "original work". Computer code that implements an algorithm often falls under this rule. It is my belief that the code shown in the linked SE thread would fall under this rule, and would not be protected by copyright at all. If this is correct, then anyone may share such a program with no copyright concern. | 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. | You can't own a database; you might, however, own (have) the copyright to a database if you created it or the creator transferred that right to you. You can also possess a copy of a database: the question is whether it is legal. "Leaked" implies that it is taken without permission, so you might be in violation of copyright law by possessing a copy. The only databases that would escape copyright protection would be those US government works, things put in the public domain, and things publically licensed to allow copying. Plus, any database whose content fails to exhibit a modicum of creativity (Feist). A database might be inherently illegal (at least in your hands), so it would depend on what the content is. The first thing that comes to mind is a database from a child-porn website, which contains numerous illegal images: see section 110 of Title 18. "Leaked" information might involve violation of 18 USC 1030 (Computer Fraud and Abuse Act), which prohibits unauthorized hacking. It does not directly prohibit being in possession of a hacked database: but you might still be prosecuted as an accessory after the fact. (That is one of those ad libitum areas of the law where there's no way to know for sure what is and is not "okay"). If they do prosecute you, you might rely on Bartnicki v. Vopper, 532 U.S. 514, where because it was a matter of "public interest", propagation of illegally obtained material was held to be protected by the First Amendment. Also there is the case of the Pentagon Papers. At the federal level, there are no controls over storing credit card information so if you get a copy of the Target or Home Depot hacked database, there's no federal law against that (if we discount "accessory after the fact"), but there are circumstances in Minnesota where retaining such information could be illegal. | We cannot dispense personalized legal advice: that is what your attorney is for. However, I agree with your analysis that this is most likely covered by fair use, and indeed it is not obvious that you have taken anything that is protected. There is no creativity behind a number such as entries in the "I did N pushups" column. The arrangement of data into a web page passes the smidgen of creativity test, but "210" is not a creative number. The terms of service of a website cannot negate your right to use the website however you want in a non-infringing way. If your use is "fair use", then they can't tell you that you can't use it. In case it turns out that "fair use" fails, the matter would hinge on what exactly the TOS says. They may have granted you permission to make use of their "information". So there are three positive avenues for you to consider: not protected, fair use, and permitted. A practical difficulty is that a university lawyer is only interested in the interests of the university, and they are as likely to say "don't do that" or "get permission" as they are to say "that is fair use". You can hire a lawyer who is paid to care about your interest, though there is never a guarantee that the lawyer's advice is correct. I think it is likely that the lawyer will tell you to not say anything until legally forced to, given the apparent rebuff of your request for special permission. | Ideas are not protected by copyright, only arrangements of words are protected. If you "rephrase" by only a minor change of wording, leaving much of the wording intact, that is still a copyright infringement unless an exception such as fair use or fair dealing applies (and that seems a bit doubtful in this case). If you "rephrase" so that the wording is quite different, even though the idea is the same, there is probably no infringement. Copying elements of computer code or other IT commands that are essential to making an example work is not infringement. Where there is only one or a very small number of ways to naturally express a fact, copying such expression is not infringement, as facts are not protected by copyright. Adding examples but keeping significant wording unchanged is still likely to be infringement. | If you use the reviewer's code, or code derived from it (e.g. if you just changed a variable name) then they own the copyright on that part of the software. If the reviewer describes a solution which you implement, or if you re-implement the code from scratch while taking ideas and methods from the reviewer's code, then you own the copyright on that code. However if there are only a few ways to implement something in code then the code is not creative and hence cannot be copyrighted. For example the regular expression in the question you link to is (as far as I can tell) the only correct solution to the problem: any programmer addressing the problem will have come up with that RE. In this the position is akin to a database of phone numbers: while the collection may be copyright (depending on whether selection or arrangement required creativity), the fact that Alice Jones has the number 012345 is not copyrightable, and neither is the alphabetical arrangement of names. Where it gets messy is the boundary between the two. The requirement to detect 4 or more repeated digits in a credit card number could be implemented in a number of ways, but whether there are enough of these to qualify any particular solution as "creative" would be a matter of fact for a court to decide. |
Court order on selling property I am trying to remove my name from mortgage (Canada, Ontario), my ex husband is not really helpful and self-employed. I am thinking of going to get court order on selling our property. We signed (with our lawyers) a separation agreement where he agreed to resolve situation till certain date, but he did not. I asked my lawyer how long it will take me to get a court order on selling property. My lawyer said that I need to bring a motion for the enforcement of the agreement. But I don't see how it is connected, because there is no domestic violence, no child custody, i moved out and renting. You will need to bring a motion for the enforcement of the agreement regarding the sale of the home. It means that an application will need to be made and, if your circumstances do not meet the test for urgency, a case conference will need to be conducted before you can bring a motion. Once an application is made, you can move for a motion. Why is she offering me to go this route? Why do I need a motion? | But I don't see how it is connected, because there is no domestic violence, no child custody One does not need to be violent to violate an agreement. There was an agreement to resolve the situation with the house. You ex did not honour it. You can ask the court to convince him to honour it through a motion for enforcement. It's that simple. | If you had an agreement that amounts to a contract, it is binding even if it was informal. However, if your agreement was not in writing, it might be hard to prove. You can easily prove that you transferred money to the other party. But can you prove that it was a loan an not a gift? And even if it is agreed to be a loan, if no repayment time was specified, what says that the debt is due now? Was the agreement really for a loan repayable on demand? The court would have to determine what your real contract was, or what contract can be implied from the actions of the parties. Also, if you are in a common-law jurisdiction, there could be a question of what consideration there was for the loan. Without consideration, there is no valid contract in such a jurisdiction. Perhaps a promise to repay could be treated as sufficient consideration. Small-claims courts do deal with unclear verbal contracts on a regular basis, but the outcome will depend on the facts of the case, and on the details of local law. It might be wise to consult a local lawyer with small-claims experience. A single consultation should not be too expensive. In response to comment If the "written binding agreements" include a statement from the other person that this is a loan, and a promise to repay it, you are in a stronger position than I had thought from the original question. The question for the court would be, since there was no due date agreed, what is a reasonable date to impose. The court might treat it as a loan repayable on demand, or specify some particular date for repayment. | Is a text message legally binding? Yes, but the terms of the message need to be clear enough to ascertain the parties' intent at the formation of that contract or agreement. A contract does not even need to be in writing. There are also oral contracts and implied contracts, the latter referring to contracts which are inferred from the parties' conduct. A contract such as the agreement you describe here is binding regardless of its form. It is just easier to prove the existence of a contract if it is in writing. You did not specify your jurisdiction. If it is in the US, the price tag --rather than the downpayment-- of the object of the contract (i.e., the puppy you intend to buy) determines whether your complaint would need to be filed in Small Claims court. Generally speaking, parties to a dispute in Small Claims court have to represent themselves. Two remarks are pertinent. First, developing writing skills is utmost important not only for litigating a dispute, but also during the process of formulating the terms and conditions of a contract/agreement. Your post indicates that you seriously need to work on that. Second, the end of your post reflects that one of your managers violated labor law(s), which to most of us would be more worrisome than the controversy about the puppy. Legislation in most or all jurisdictions outlaws the act of withholding an employee's compensation regardless of its form (salary, commissions, and so forth). You might want to gain acquaintance with the labor laws of your jurisdiction so you can assess whether or how to proceed (does legislation require the employee to "exhaust administrative remedies" prior to filing in court? are administrative remedies optional? do these exist at all?), even if only to ascertain whether the deadline for filing the corresponding claim has elapsed. | There is no requirement in California to file a prenuptial agreement before obtaining a license. There is a requirement for disclosure of property and finances, 7 days minimum to review the agreement and being represented by a lawyer or waiving representation, specifically: The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel. The advisement to seek independent legal counsel shall be made at least seven calendar days before the final agreement is signed. It is possible for a couple to write their own agreement without hiring separate lawyers, but the law is written so as to presume that if not advised by independent counsel, the agreement is unenforceable. The presumption can be overcome by carefully following the requirements of §1615, for example, the party against whom the agreement is to be enforced was fully informed of the terms and basic effect of the agreement as well as the rights and obligations the party was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that the party received the information required by this paragraph and indicating who provided that information. | 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. | Owners can't be evicted from their own property. That's one of the fundamental rights of real estate ownership. You may have a contractual basis for a lawsuit that either leads to payment or provides for forfeiture of their share, but that relies on the details of your specific case and will require specific legal advice from your own lawyer. | In most common-law jurisdiction, a purchaser buys a house subject to any existing lease. If that is true in your jurisdiction, the notice to vacate was illegal, and you are entitled to remain until the end of the current lease. The return of the deposit will depend on the condition of the property when you move out, and will be governed by the specific law of your jurisdiction. Residential leases are highly regulated in many places, and the laws vary widely. Often they vary even by individual cities or towns within a country. Without the specific locality in which the hosue is, no specific answer is possible. | The simplest solution is to hire an attorney to do this for you. If you want to do it the hard way, you need to try to figure out why your motions were denied. For example, did you file proper motions, or did you just write on a piece of paper "I need all of Walmart's records"? Why do you think that a court will / should supply you with an Open Record (of what)? A real lawsuit is not like Judge Judy where you tell your story and hope the judge has sympathy on your plight. Did the judge say / write anything about why he is denying your requests? |
Contract requiring the signing of a statement that may not be true when signed I found an employment contract, in which the employee promises, upon termination of employment, to sign a "Termination Certification" and present it to the employer. The text of the certification is attached to the contract as an exhibit. The termination certification contains assertions, ostensibly made by the employee, about the state of the world: things along the lines of "I certify that I have complied with the agreement to disclose all relevant inventions to the company", and "I certify that I do not currently possess and did not fail to return any company-issued computers or devices". It seems to me that it is possible that, upon termination of employment, some of these statements the employee is supposed to certify might not be true. For example, if the employee is fired for losing a company laptop, they obviously will have failed to return a company-issued computer, yet they will have an obligation, from their employment contract, to sign a statement saying that this is not the case. Does this amount to the employer potentially paying the employee to lie to them, to no ultimate legal effect? Or will the employee have a problem if they end up with an obligation to sign a statement that is not in agreement with reality? | Does this amount to the employer potentially paying the employee to lie to them, to no ultimate legal effect? Or will the employee have a problem if they end up with an obligation to sign a statement that is not in agreement with reality? Neither. Contract law contemplates a party's subsequent inability to comply with the terms that were established at the formation of the contract. In the Restatement (Second) of Contracts, this is referred to as supervening impracticability. See, for instance, the Restatement at § 261. In the hypothetical scenario you outline, the loss of a company laptop renders the employee's promise (namely, "to return any company-issued computers or devices") impracticable. Instead, the circumstances may entitle the employer to restitution (by the employee) for what the employee now is literally unable to return. That would be cognizable as compliance in substance. | The CEO, with his lawyer have tried to convince me that this only apply to current client and any past clients that I have work on. Is this true? No. It will be true only if they make that clarification in the clause or a properly added amendment. The clause currently has no indication that it is limited to "current client and any past clients that [you] have work[ed] on". The CEO's & lawyer's refusal to amend the clause so as to make it consistent with their attempts [to persuade you] would be a red flag. Their inconsistent representations to you suggest that they are not planning to honor the covenant of good faith on which all contracts are premised. Should I expect the CEO to offer a fair contract or is this something you read and negotiate? You should require a contract that seems fair to you. And by "to you" I mean that it has to be in line with your expectations regardless of the average conditions in the labor market. Negotiations are not binding. They are merely a preamble to a contract, and that contract is binding. This is why you should reject a contract that falls short of your requirements. Some clauses are unlawful and/or void and unenforceable as unconscionable or for contravening legislation (unlawful clauses can and do arise even if drafted by attorneys). Thus, although you might not have to worry about those clauses in particular, the company's mere attempt to include them in a contract should alert you of the high risk of ending up with other abusive terms & conditions which are binding and enforceable nonetheless. | If the employment was at will, the most the company could have done was fire her. If the employment has already been ended on good terms, the most the company can do is refuse to rehire her and/or give bad references. As you point out, no contract existed and they'd have a devil of a time proving damages anyway. | once employed, if you revealed in conversation your true beliefs, and they ran counter to what you wrote down, could this give the employer just cause in termination? Texas is by default an at-will employment. Thus, absent a contract establishing termination for just cause, the employee may be terminated for anything (except when that contravenes public policy) or even for no reason at all. But you specifically ask whether the employee's eventual disclosure constitutes just cause. It depends on whether the employment contract specifies that "the employee would be employed for so long as he satisfactorily performed his duties". Hardison v. A.H. Belo Corp., 247 S.W.2d 167 (1952). In that event, the sole discovery that employee lied about that at the interview is not evidence that the employer was dissatisfied with the employee's work performance. In a context of termination for just cause, Porter v. United Models, Inc., 315 S.W.2d 340, 344 (2008) states that where performance is to be the satisfaction of one of the parties, his dissatisfaction must be founded on facts such as would induce action on the part of a reasonable man. He may not act arbitrarily or without reason in the matter, and the law will say that he is satisfied with that with which he ought to be satisfied. Ultimately, an employer seeks to be satisfied with the employee's actual work performance, rather than with a screening process aimed at predicting the person's work performance on the basis of the employee's personal values. | People are laid off all the time when sales are down, the market is bad, etc: there is no legal "right to a job" except whatever is in your employment contract. There is a legal concept of promissory estoppel which boils down to promises being binding. However, there has to be a clear and definite promise, not for example a statement like "we hope to bring you back after this is over". Normally, the employer can argue that they have the right to fire you regardless of performance, and that would be the end of it. Let's say you have it in writing, and it is clear that they unconditionally promise to hire you back: you would want to (e)stop them from arguing that they have the right to fire you. The underlying idea of promissory estoppel is that such a promise keeps them from making that argument. But: it is not enough that they made the promise, you also had to rely on the promise and act / forbear from acting in some way because of that promise. It could be, for example, taking another job, or moving to another country, or simply looking for another job. The hard part, then, would be getting a clear and definite promise. | Based on the contract language quoted in the question, and the facts stated there, it would seem that the employee owns the copyright on the software. It would seem that the software was not created "during the course of employment." However, when the employee offers it to the employer free of charge, the employer may well want to own the copyright and any other related IP. The employer might want the employee to sign an agreement transferring the copyright. Or the employer might simply treat the software as belonging to the employer. Asserting and enforcing the copyright against the employer might be difficult. Insisting on even a token payment would help establish thst the copyright belongs to the employee, or gettign the employer to sign an acknowledgement of the ewmployee's copyright would have a similar, bnt even stronger effect. | If a contract always uses the wrong name, is it still valid? A contract is not a piece of paper. It is an agreement between parties that meets certain criteria. The piece of paper is just evidence of that agreement that can be referred to should there be any misunderstandings or disputes. So in your case, you would be presumed to have discussed the terms with the party you sign the NDA. You would be presumed to have fully understood them. A wrong name on the paper is just an error. It may make it more difficult to establish that you indeed entered the contract (in case of a dispute) but it will by no means invalidate the contract. | The issues you describe have existed with signatures from the beginning of their use. There exists a tradeoff between ease of use and reliability, both of forgery and of people falsely claiming forgery. Originally, the closest thing to a signature was the use of seals and signet rings. While relatively hard to forge, it only showed that the possessor of the object agreed. Signatures, especially in cursive font, were developed later. They were in some ways easier to forge(you didn't need to get access to a physical device), but more difficult in others(the seal symbols tended to be used on everything and various improvements in technology had been made), and harder to falsely claim forgery(because most people can't alter their handwriting well). You were affixing your name to the document, indicating that you agreed. Often, the signatures were required to backed up with the signatures of other people as witnesses. They didn't have to agree to the document, they just had to agree to testify that you signed of your own free will. Because witnesses, especially trustworthy and independent witnesses, are hard to come by, some places have dropped that requirement, such as checks and signing a aper receipt when using a credit card. But for some important documents, certain jurisdictions still require witnesses, including large transactions (a document relating to a car insurance payout I recently had required a witness to confirm my signature) and marriages. However, with electronic media, the point of a signature is more to indicate deliberate acceptance of terms, with verification of an individual being left to other processes (e.g. IP address, MAC address, linkage to a specific email account, etc.), so forgery is less of an issue. I have also seen "signatures" amount to checkboxes and "I agree" buttons. Generally, the higher the stakes and "more legal" the agreement, the more likely to these have been the "typed signatures" that you describe, but this seems to be decreasing in frequency, suggesting that its purpose was to stop gap a hole in legal acceptance by judges/courts/laws with regards to electronic communications. Addendum: It should also note that the replacement of seals by signatures is not universal; for instance in Japan, seals are still used over signatures in the majority of cases. |
Trademark Infringement notice for usage of a dictionary word Jacuzzi in app - Google Play Store I'm a 1-woman independent developer who made an app called Front Jacuzzi Back Corgi - or FJBC for short. Today, I received a trademark infringement notice from Jacuzzi.com It's unexpectedly not from the App Store, but from Google Play. trademark_explain: Unauthorized use of the JACUZZI Trademark within the App that misleads the users into falsely believing that the developer is a manufacturer, licensee, or authorized user of Jacuzzi Inc’s. trademarks, or that Jacuzzi Inc. has endorsed or sponsored the App and or its associated websites, and any third party website. My usage of jacuzzi seems to be the dictionary non-Jacuzzi.com branded version. Nothing in my app even remotely looks like things from jacuzzi.com ... But, are there other conditions that I should be aware of? Arguably, my app merely simulates the feel of a jacuzzi resort - and does not even include a jacuzzi. Technical people have criticized my water effects for not actually looking like a jacuzzi. The audio recording is actually not from a jacuzzi either. Any advice is appreciated - esp on how to respond. Thank you -- In trying to come up with a name to stick with, I've encountered a lot of dictionary words such as jet and jets that turn out to be trademarked? How would you suggest I make sure the re-name would be okay? Previously, I had searched to make sure Front Jacuzzi wasn't used as a name, but was not aware that jacuzzi had a trademark meaning beyond that defined in m-w.com | Quit using the word Jacuzzi. That word is a brand name for a specific maker of hot tubs like Ford is for cars and not just a term for a hot tub. This happens so much to them that they have a site devoted to it. https://www.jacuzzi.com/baths/support/trademark-use/ | No. A trademark is specific to an industry or type of products or services. And, while it is virtually impossible to get a new trade name with a three letter acronym because almost all of them are taken, three words that start with the same letters as a three letter acronym is not infringement on the acronym. You might very well be infringing if you used "I.B.M." to sell computer equipment. But, "Internal brilliance method", spelled out, would not infringe I.B.M., even in the computer equipment industry, and "I.B.M." in the food service industry, for example, would not be trademark infringement on the International Business Machines" trademark of "I.B.M." for good and services of the type that it offers. | In US law, a trademark application only requires that you are now selling, or intend to sell in the reasonably near future, a product (or service) using the specified name. You don't have to provide an example, or a design, and it does not have to be patented. The applicant might be planning to license someone else's patent, or to market off-the-shelf tech not protected by patent. The applicant might be planning to market tech still under development and not yet ready to be submitted for a patent. I do not know Chinese trademark law, but I suspect it is similar in this regard. I have not heard of any country that requires a patent, a design, or an example of a working product along with a trademark registration. However, there is, in many countries, a requirement that actual sales occur within a limited period after the trademark is granted, and if this does not happen, the trademark registration may be canceled. The time allowed varies. | The standard for fair use of trademarks is as follows: (1) the product or service in question is not readily identifiable without use of the trademark (2) only so much of the mark as is reasonably necessary to identify the product or service is used (3) use of the mark does not suggest sponsorship or endorsement by the trademark owner. I think you might run into a problem with (1). In other words the trademark owner would argue that you could have used fake trademarks to satisfy your product description needs, so you are using their trademark unnecessarily. | Yes, but... Trademarks generally have a particular class of goods or services they apply to. For a common word such as "sky", a trademark will only be granted for a very narrow set; there's no chance of getting an "all purposes" trademark like you could for a made-up word. For example, VuongGiaNghi Nguyen holds a trademark to "Sky" in the United States when describing "Eyelash Glue, Eyelash Extension Glue, False eyelashes, False eyelash perm kit, Lash Extensions", while Strange Loop, LLC, holds a trademark to it when describing "Downloadable software featuring conversational agents to facilitate communication between humans and machines in an electronic messaging platform for use in the healthcare and medical fields". I'm guessing that British Sky Broadcasting's trademark has a "goods and services" that overlaps or is very similar to Microsoft's use of "sky". | Imagine if the answer was a simple yes: adding a disclaimer was enough to exempt you from any and all copyright and trademark law suits. If that was the case, there would be no point in copyright or trademark law at all, because everyone could just include this disclaimer and never be sued. That doesn't mean every disclaimer is useless, but it does mean that copying and pasting some vague wording without understanding what it means is very unlikely to help you very much. The example you give is a good example of doing just that; the terms it uses are real, but they've clearly been thrown together without real understanding: Copyright is the right to control and profit from a creative work. This is relevant because images of Pokemon characters created for games, manga, etc are copyrighted by their creator. Trademarks are words, symbols, images, etc exclusively associated with a particular company or product. Trademark law aims, among other things, to avoid customers thinking they are getting an official product when they are not. "Nintendo" and "Pokemon" are both themselves trademarks. They are also the names of different companies. My limited understanding is that "The Pokemon Company" will be the owner of all the copyrights and trademarks related to those games, manga, etc. Naming them is a way of showing that you have researched this and understood their rights. "This app is not affiliated , endorsed or supported by Nintendo in any way". This is a disclaimer on the trademarks. Whether this is sufficient to protect against claims of counterfeiting depends on how prominent it is compared to other branding - you need to make it obvious to users that the product is unofficial, not bury this in small-print for the lawyers to find. "also some images used in this app are ... supported under fair use" - fair use is a US legal concept which allows copyrighted works to be used in certain specifically limited ways. Saying your use is covered does not make it true, you need to actually understand what provisions of the law allow your specific use. "no copyright infringement intended" This is a fluffy apology that has no legal standing. A more useful statement might be "every care has been taken to adhere to copyright and trademark law, if you notice a violation please contact X"; but you're still relying on goodwill, and it won't stop someone sending the lawyers in if they decide to. Which brings us back to the real question: The apps mentioned before are in the store since 2015 and they haven't been removed yet. The real reason for this has nothing to do with the poorly-written disclaimers, it is that Nintendo / Pokemon co haven't bothered. If an app is directly competing with an official app, or receiving a lot of attention (even if no money), the lawyers will descend; if it's a buggy image gallery with a dozen downloads, they might decide they have better things to do. If they do notice, they might just get Apple and Google to de-list the app, but not spend the time and money pursuing a legal case. On the other hand, at any time they might decide they need to tighten up control of their intellectual property, and make an example of a few authors picked at random. The only way to avoid that is to actually avoid violating their rights, rather than just saying so in a disclaimer. | Why do you think Oracle have not been protecting their trade mark? Using a trade mark to describe the product (“Written in JavaScript”, “Seeking JavaScript developer”) is not an infringement and the trade mark owner is under no obligation to, indeed, cannot stop this. Where they are required to defend their trade mark is when it is being used in such a way that there is the risk of confusion that the goods or services could be confused with the trade mark owner’s goods or services. Further, they are not required to defend all breaches, only enough to show that they are actively doing so. Also it is not important that the trade mark be associated with the trade mark’s owner. Do you know who owns the trade mark “Ben & Jerry’s”? | Not only can’t you trademark it, you can’t use it The original logo is covered by copyright which belongs, prima facie, to the original artist. It doesn’t matter that they are based in Russia; Russia and the US are both signatories to the Berne Convention which means they protect each other’s copyright. That means you can only use it if it is fair use (it isn’t) or if you have the copyright owner’s permission (you don’t). Could I still use the logo I bought and trademark it in the US granted that the seller had made some revisions to the stock photo he found? Not if the seller didn’t have permission to make those changes. Creation of a derivative work is one of the exclusive rights copyright gives. The seller had changed up some parts of the stock image, this includes color scheme, orientation, and made the picture look a little low poly. See above. The original artist of the stock photo is based in Russia and as far as I can see there is no registered copyright on it and don't think they could apply for US copyright anyway. They already have copyright. They would need to register it in the US before they could sue but there is no impediment to them doing so. While I'm not sure where the seller (located in Pakistan) officially downloaded the logo, I had nothing to do with the final design of it or downloaded anything from a stock photo website myself, so I'm not sure if I'd be bounded by any terms of the stock photo website Makes no difference. Just because you didn’t steal the car, that doesn’t make it ok for you to drive it. The stock image is very niche and a bit random. Across all the websites the artist has published it on, it has about 5 or 6 downloads altogether. Not relevant at all. As far the copyright of the seller's work goes, the Fiverr terms state that buyers have all the copyright, though I don't know if this is nullified by the use of the stock image. You can’t sell something you don’t own. If the seller had no right to upload the photo (as it seems they didn’t), the terms of the website don’t matter. The true owner never agreed to those terms and isn’t bound by them. |
Is calling a store in which you are banned illegal? I called a store to apologize for a actions that involved me. They told me that calling the store violates my ban and breaking their ban is against the law. They threatened to file a trespass complaint on me. Can they do so? | This depends on the nature of the "ban" ---i.e., who issued it, what legal power they have, and what it actually requires you to refrain from doing. You say it is "their ban" so I am going to assume that this is just a decision that the store has made not to allow you entry. If it is indeed the store itself that has "banned" you, this would not prevent you from calling them to apologise for whatever you did. Calling a business on the phone cannot generally be considered a trespass --- at most, if you were to repeatedly call and harass a business over and over again, it might give rise to a nuisance suit. Unless you have extremely strange laws in your jurisdiction, it is almost certainly not against the law for you to call a business that has banned you, a fortiori if this phone call is made for the purposes of apologising for whatever you did that led to the ban. Although it does not appear to be the situation in this case, if this ban was an actual restraining order of some kind issued by a Court, then it might indeed prevent you from contacting the business (in which case breaching it would lead to an action for contempt of court, not trespass). If a Court were to issue you with an injunction or restraining order of some kind to ban you from a business, then that instrument would specify what you are prevented from doing. You would then need to be very careful to comply with that order. In short: there is a great deal of difference between a "ban" made by a store as the owner of property, and a ban issued by a court through an injunction or restraining order. | There is no law against lying in these circumstances. In fact, for a very modest sum, security companies sell dummy CCTV cameras to make this lie more convincing. However, trespass only happens if people have been warned so this works for literate people who speak English and see the sign. That leaves a very large group of people who would not be trespassing even with the sign. A further problem with a sign on the house is that people have no idea how far away they have to get in order to stop trespassing. In addition, legitimate visitors (uninvited or not) are not trespassers. It seems that people are coming onto your property because they are thirsty. A better way to deal with this is go to your local hardware store and replace the tap with a vandal proof tap that has a removable head. Keep that inside and put a sign next to the tap saying "Refrigerated Water $2 - knock on front door". | But lately he has had his friend use my PayPal account. Someone will send me money and then I transfer it to where he tells me. To cash app or venmo. That's money laundering. Definitely illegal. He said it's money owed for cellphones. People in jail aren't supposed to have cellphones. You are helping him break the law, which means you are helping him break the law. | "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. | No, they are not exempt Consumer protection laws (in general) apply to anyone doing business with consumers in that jurisdiction. You need to follow that law and apply to the company for a refund in compliance with the law. If they refuse, you can report them to the German regulator who may, or may not, take action against them. If you paid with a credit card, PayPal etc., once the company has broken the law, you can apply to them for a reversal of the charge. Similarly, most online platforms like eBay or Amazon will reverse the charge if you used them. | Is this legal for the county to enforce? Yes. And can I sue if they try to enforce it? You could, but you would very likely lose your lawsuit. A more fruitful approach would be to go to the county planning board and seek a variance to permit you to do what you want to do. | If you state, to a third person, that Joe has performed a criminal act then that is defamation and you can be sued. Unless it is true. However, if you are relying on the truth as a defence you will need to provide evidence that it is. At the moment you lack: a criminal conviction of Joe any physical evidence against Joe any personal knowledge that Joe has committed these acts. All you have, is second hand rumours that this has happened to 5 women, some of whom have reported it to you in person. This is called hearsay and it is not evidence. It may be true, it probably is true - you can't prove it's true and in court, that's all that matters. If you were sued your only possible defence is to call these women to give the evidence they are unwilling to give - are you willing to betray their confidence to that extent? | Are online stores supposed to state the true “order cost”/value of an order on the package/envelope for the customs? Yes Is it common practice to slash 10x off of the price for the customs to not add various fees? Common? Probably no. Uncommon? Also, probably no. Isn't that illegal? Yes Of course, they can claim it was a mistake if ever found out, but if they do it consistently, that seems difficult... Not to mention there must be electronic proof of how much each order actually cost the customer? Yes Look, robbing banks is illegal but people still rob banks. Similarly, ripping off HM Revenue & Customs is illegal but people still do that too. In fact, far more people do that than rob banks. |
What is a "listed natural gas appliance"? My landlord mentioned that I can have a grill on my balcony as long as it is fueled by natural gas. As he is a fireman, I'm assuming he has some knowledge of the relevant laws. But before dropping several hundred dollars on a new grill, I wanted to make sure, so I am looking at BARBECUES, PROPANE AND HEAT-PRODUCING DEVICES ON BALCONIES from the Denver Fire Department, and at the end it reads Exceptions: ... 3.Listed natural gas appliances... 4.Listed electric ranges, grills or similar electrical apparatus... What does "listed" mean in this context? The document has no list. But my natural gas appliance is listed on Amazon's, Lowe's, and Home Depot's websites. I assume that's not what the document means. | I am not from Denver, so it may be different there, but I would think most people would take that to mean the appliance meets UL standards or other safety standards and has been certified. Each governing body, be it a town, county, state, or country, gets to decide who can certify an appliance. | This all depends upon where you are. I am a landlord and I am answering based upon the laws of the U.S. and the states that I operate in. First things first. You are not the property owner. While this does not limit the answer, it is a factor. You do not have the right to the property even if you have a key and the permission of the tenant. You are not the property owner, do not represent the property owner nor the tenant, and by contract do not have legal rights to the apartment. It does put you in a different situation. As a landlord, it is against the law for me to provide access to a tenants apartment to anyone without authorization. This, of course, precludes emergencies such as welfare checks. In the case of the police, a warrant is required or a form that the police fill out that allows the police to gain access. This would be used in cases such as when a spouse requires the recovery of personal property during a domestic dispute. A judges order is not always possible in these cases. These are often limited cases and the form absolves the landlord of liability even in cases where the police act incorrectly. So without a warrant or a form that certifies any lawful request, anyone including the landlord can be arrested for a crime. For your situation, a quick call to the landlord would have been appropriate. Without a warrant or certification, the police still had options including waiting for the person in question to either leave or return to the apartment or even request a warrant by phone. Often, the warrant, once signed by the judge, can be read over the phone. Any landlord should always have a paper copy provided within minutes since some cruisers will have a printer and can print the warrant. Your refusal appears to be legal. However, in the future, you can ask for a copy of the warrant that you provide the landlord. I do not wish to paint a negative image of the police who do the hard work that most people will never take on, they are after all heros, however, some do not know the law perfectly well especially tenant landlord law. As well, some will try and get away with skirting the law trying to get an important job done. It does happen. I hired a lawyer just last week for an illegal request unrelated to the question here. Addressing the OPs comment: Hello, I believe I misstated the situation a bit in that the locked door in question was for the apartment building and not a tenet's apartment itself. I have edited my question. Does this change anything? Technically, this does not change much of anything, however, the request by the police can be seen as a reasonable one. They just may want to talk to the individual which is reasonable. In this case, I might have let them in if the access I was giving them was to a common space such as a hallway. In this case, the outer door locks are only to keep Intruders from entering the building and not meant to restrict access for valid purposes. Are you in trouble? I would say no. If anyone asks, you can give reasonable arguments for your situation. However, the next time, consider what I have written here. The police have a tough enough time doing their jobs. If you can help and stay within the proper boundaries of what the law allows, that would be best. | Clean your tub. Scratch that off the list. Typo - forget about it, there is nothing here, clerical errors are curable if not outright reasonable. In CA your landlord can enter under certain circumstances. All but emergency require notice, agreement, or your presence. But what is your remedy? A civil suit for damages or call the cops and try to get the landlord charged with criminal trespass under CAL. PEN. CODE § 602. | The chief legal problem might be (depending on how you build and operate the thing) the amount of Electro-Magnetic Interference (EMI) that you're causing. You are not exempt from FCC regulations, but § 15.23 Home-built devices. (a) Equipment authorization is not required for devices that are not marketed, are not constructed from a kit, and are built in quantities of five or less for personal use. (b) It is recognized that the individual builder of home-built equipment may not possess the means to perform the measurements for determining compliance with the regulations. In this case, the builder is expected to employ good engineering practices to meet the specified technical standards to the greatest extent practicable. The provisions of §15.5 apply to this equipment. Since the question assumes "the builder knows what he's doing", we may assume the FCC demand "the builder is expected to employ good engineering practices" is met. But that also would assume that the builder knew about EMI in the first place. | Google is very helpful in this regard. I typed nyc restaurant bath and it suggested nyc restaurant bathroom law, the first result being http://www1.nyc.gov/nyc-resources/service/2360/restaurant-bathroom-requirements. It says: You can make reports about any food establishment with 20 or more seats that has no toilet and was established after 1977. These establishments must provide toilets for their patrons. Food establishments that have been in operation since 1977 or before are exempt from this requirement. Food establishments with 19 or fewer customer seats are not required to provide bathroom access to the public. Food establishments are not required to allow public access to their employee toilets. Patrons are not permitted to use any toilets where the patron must walk through the kitchen or any food storage or food preparation area. Call 311 to report a restaurant with 20 or more seats that has no toilet and was opened after 1977. | The key language to be taken notice of in that code is 'by fraud or deception'. If the property manager has provided reasonable notice of a clear-out, then the code doesn't apply due to lack of fraud or deception. But at the end of the day, just go and check the mail room on a Thursday afternoon and you shouldn't have any problems. | Pretty much any time a contractual, statutory or case law precedent uses the word "reasonable" what it means is that the decision regarding what is and is not reasonable is vested in the trier of fact (i.e. the judge in a U.K. landlord-tenant case) to decide on a case by case basis in light of all of the facts and circumstances presented at trial, rather something to be decided as a matter of law by an appellate court absent of extreme abuse of discretion by the judge in determining what is reasonable. Put yourself in the judge's shoes and consider the range of opinion that people who are judges in a case like this might have, and you have your answer. A reasonable amount of time balances out factors like the availability of repair contractors at a reasonable price, the magnitude of the repair, and the extent to which the repair impairs the habitability of the premises, and assumes a time frame that would apply if the landlord is diligent and trying to solve the problem in good faith. A reasonable time to fix a broken heating element is different in July than in January. If three different inspectors failed to determine the cause of the problem, that is going to work in favor of the landlord for a longer period of time. So will the significant extent of the damage (apparently). On the other hand, the fact that the repair rendered the premises completely uninhabitable argues for a shorter time period. Starting late to address an urgent problem could be breach, although it doesn't sound like this has happened here if some action has been taken that would seem to be reasonable under the circumstances and the results have been inconclusive about what to do. Unnecessary foot dragging could also be a fact in reasonableness, because ultimately the duty is to get the job done. There may also be a parallel duty of the landlord to provide a habitable premises and to compensate you for time when this is not provided, in addition to the duty to repair within a reasonable time. Asking to be paid for alternative accommodations while diagnosis and repairs are underway would be a logical demand to make before suing for a fairly small dollar amount in an ongoing lease. You would probably focus on failure to repair in a reasonable time more if you seek to terminate the lease entirely and rent elsewhere instead in the face of repair delays, hoping to avoid the duty to pay rent for the remainder of the lease term due to the landlord's breach of the duty to repair under the lease. | I would presume that this is legal (without researching the laws in Cali. or Texas). Their contract is an offer to enter into an agreement. You accept that offer by signing. Their pre-requisite for that offer is that you pay the nonrefundable application fee. In other words, they are refusing to make you an offer until you pay a set fee. Now the degree of negotiability, among other factors, would go into determining whether the contract is fully enforceable. I did a little bit of research. (Please note that this is not legal advice. If this applies to a current situation, seek the advice of an attorney licensed to practice in your jurisdiction.) There does not seem to be any indication that the landlord needs to provide a sample lease to you before s/he decides that you are an eligible applicant. The application fee is not a contract to rent the premises; it is an application to be considered a tenant. Pro-Business Perspective: Why would I (the landlord) waste my time going over an application with someone and show them a model unit if they are not even eligible to rent from me? I have better things to do. Pro-Consumer Perspective: Why waste my time and money if I refuse non-negotiable terms in a lease? The application fee is capped in California and must be used to cover screening costs or refunded if not used. The likelihood of success in a claim regarding this might be indicated by the California Dept. of Consumer Affairs: "If you don't like the landlord's policy on application screening fees, you may want to look for another rental unit. If you decide to pay the application screening fee, any agreement regarding a refund should be in writing." It is important to note that you can always try to negotiate with the landlord. Personally, every lease I have had I have negotiated to get more favorable terms. You, as a tenant, have every right to try to negotiate, and should use that right. |
Apartment sending advertisements to me without option to opt out I apologize if this has been answered before, I see similar questions although under slightly different circumstances. I am currently renting an apartment in Texas. My rental company uses SMS to send me updates about various things that require attention — maintenance visits, water interruptions, etc. These are normal and totally acceptable. However, occasionally I receive texts (spam) from them offering various services that look effectively like this: Worried about hail damage? <Apartment Company> has storage with covered parking available. Call <Apartment Company> for more details <phone number>. To me, this is spam. This is unsolicited and unwanted. I have never authorized marketing messages to my personal cell phone. There is no opt-out option within this message, and no option for opting out of marketing messages within their portal. I informed the front office that I do not wish to receive any more of these messages. They claimed that because we have a 'prior relationship' that these message are not spam, and are perfectly legal and they have no obligation to allow me to opt out. Does this legally qualify as spam? If not, why not? And if so, what is my legal recourse? Should I simply file a complaint with the FTC? In all honesty, I tried to first handle this like an adult by simply asking them to please stop spamming me as it seemed like a small misunderstanding. However their response has been aggressively rude, and they are quite belligerent in their response that this is not spam and they have no obligation to let me opt out. | According to this page from the US FTC such spam is illegal under the Telephone Consumer Protection Act (TCPA) and the CAN-SPAM Act of 2003. (The specific provisions of those laws are discussed on this page from a law office.) The FTC lists as an exception: Transactional or relationship types of messages. If a company has a relationship with you, it can send you things like statements or warranty information. This does not appear to include ads for new and different products or services from a firm that you have a relationship with that does not involve those products or services. The FTC also advises that: If you are an AT&T, T-Mobile, Verizon, Sprint or Bell subscriber, you can report spam texts to your carrier by copying the original message and forwarding it to the number 7726 (SPAM), free of charge. The page also describes how to file a complaint with the FTC. This Wikipedia article confirms this, and also notes that: The U.S. Federal Communications Commission (FCC) released an order in Aug, 2004 that reiterated that SMS spam messages to cellphones are illegal under the existing Telephone Consumer Protection Act (TCPA). Each such unsolicited message received without permission entitles the recipient to take the sender to small claims court and collect a minimum of $1 for each violation. ... The 2003 TCPA Order (18 FCC Rcd at 14115, para. 165) says: “Both the statute and our rules prohibit these calls, with limited exceptions, ‘to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other common carrier service, or any service for which the called party is charged.’ This encompasses both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls, provided the call is made to a telephone number assigned to such service.” This article also mentions the 7726 complaint number. However, some of the restrictions may only apply if an automated dialing mechanism is used or "an artificial or prerecorded message" is sent. According to the Wikipedia article on the TCPA a consumer: may (1) sue for up to $500 for each violation or recover actual monetary loss, whichever is greater, (2) seek an injunction, or (3) both. (see 47 U.S.C. § 227(b)(3)(a),(b)) Telling the office that you plan to take them to small claims, which would require them to send someone to represent them in court, and might also be negative publicity for them, might get them to stop sending msgs to you. You could also place a negative review mentioning this spam on any online review service in your area. Or you could tell the office that you will do this if the spam continues. Be careful not to make any false or unprovable statements in any such review. You might want to send a written demand that they stop sending you such unwanted text solicitations, citing the two laws, by certified mail with return receipt. | The fact that the terms and conditions do not mention the word "disable" is significant, but not in the way you seem to think. You state: "...the merchant's T&C which does not explicitly allow the merchant to charge a fee for a disabled account". However, this doesn't mean that the merchant needs to explicitly state that they may. What it actually means is that the merchant does not recognize the term "disable" in the context of terminating the service contract. (Did they use stop, terminate, delete, eliminate, fall into disuse, log off, etc. or any other similar expressions?) You haven't defined what "disable" means, but perhaps it is more like a "pause" in service for which payment is still required? (Like having the post office hold your mail vs terminating all deliveries.) What you need to do is to read the section of the T&Cs that deals with terminating service and payment, understand what is required, and execute the procedures they describe. Whatever words they use, do that. If you have done all the steps and can prove it then you have a case against them, otherwise you are arguing semantics and interpretation... As to the title question, it does not appear that any "law" has been broken, this is just a contractual misunderstanding. P.S. This is the reason why I always set up payments through my bank to "push" money to vendors rather than authorizing them to "pull" money from me. When I am done I notify them and stop paying. I don't need to ask them to please stop taking it from me. | You would report unpermitted lock replacement to the home owner. The building code regulates new construction and renovations, and is not a requirement of any and all residences. This seems to correspond to a "secondary suite", which is supposed to be registered with the city (if it is allowed in your city). Here is a link for Vancouver, for instance. Such suites are supposed to be registered and inspected, the inspection being carried out by Development, Building and Licencing: By-Law Compliance & Administration (a division of the city government). This article discusses some of the legal problems that can arise from an illegal secondary suite, however the penalties would land on the property owner, and he may not have approved of this subletting or the basement suite. A less-nuclear first step would therefore be reporting it to the property owner. | If you have an agreement with a company that specifies "you agree to give me something of value, in case I give you something of value", you have a contract. In order for there to be a contract, there has to be actual acceptance of the offer. You can put out on a web page some contract stating those terms, and if you get positive acceptance of the contract (hence the standard click-through technology), then as long as you have done the thing promised, you can bill them for doing the thing promised. It's not clear what thing of value you are offering on the web page, since it's not "doing actual work". Them sending you an email isn't you doing something. One thing you could do is block all incoming emails, and for money you agree to unblock emails from registered subscribers. Just announcing that you will bill anyone for emailing you does not create a contract, because the emailer need not have even seen your announcement. This is why e-contracts need a click-through button. It's legal to request money, but there is no legal obligation for them to comply. That will be $10, please. | Providing the antenna was installed in accordance with the law it's hard to see what basis they could either void their lease or seek damages. The antenna poses no risk to health (non-ionising RF radiation is harmless) and you have no rights in any view it may be blocking there is no damage. The only thing that I can see is if there was misrepresentation at the time the lease was formed. That is, the developer knew that there was going to be an antenna and specifically said there wouldn't be. This falls flat if a) they never mentioned antennas or b) the decision to install it was made after the lease was formed. | In Texas, if the lease states that the landlord can inter for some purpose, the landlord can enter for that purpose. I assume there is no statement in the lease. Then the landlord has no right to enter except in emergencies and for routine inspections or repair. This right, however, stems from the courts and not statutes, and you could theoretically sue the landlord to prevent such an inspection (you would need a good attorney, to overcome the presumption that reasonable routine inspections with notice are allowed). | Non-residential tenancies are subject to Fla. Stat Ch. 83 Part I. This is statutorily a tenancy at-will unless a contrary agreement is in writing signed by the lessor: the duration of the lease is yearly, quarterly, monthly, weekly as determined by the periodicity of rent payments. There are various legal conditions related to rent default and causes for removing tenants, also conditions about premises that are wholly untenantable. Unlike residential leases, there are not any special statutory conditions surrounding the landlords presentation of leases. Florida law contemplates and allows the possibility that there are no written documents, and for non-residential tenancies has very little to say about it (only pertaining to the distinction between at-will vs not at-will leases). Therefore, the matter follows the general rules for contractual disputes: whoever makes the best case for their claims wins. If Bob has a scanned copy, that is excellent proof. If Alice alleges and proves that the scanned copy was modified, that disposes of Bob's evidence. If Alice presents a copy of the contract that says otherwise (I do mean copy), then this anomaly has to be explained. Bob can claim that they tore up Alice's original and renegotiated the deal, but he needs to prove that claim. If Alice presents the original contract, Bob's story becomes much less plausible. There are millions of variants of what might happen: the point is, there is no requirement to present the original signed document to support a claim in a contractual dispute. | No. From here: Organisations must not send marketing texts to individuals without their specific, valid and prior explicit consent. This consent must be recorded and kept as proof of consent. There is a limited exception for previous customers, which is known as the soft opt-in. A soft-opt in only applies if the organisation have obtained the contact details in the course of a sale (or negotiations for a sales) of a product or service to the customer; they are only marketing their own similar products or services; and they gave the customer an opportunity to opt-out of the marketing, both when first collecting the details and in every message thereafter. |
How does bigamy affect a UK Spouse Visa? I am a British citizen. I sponsored my 'husband' for a spouse visa but found out he's already married in the USA. His legal wife notified Home Office. I knew he was in a relationship but not that he was married. I married him in the Bahamas last year and quickly applied for settlement visa. He submitted an application for entry clearance on the basis of our marriage. That application is pending. His wife notified the Home Office that he is already married and wasn't free to marry anyone else. Could he be banned for deception? Can he be charged with a crime? He lives and is currently in the USA. Can I be charged with facilitation? It's been 4 months with no response from Home Office. Submitted documents have been returned. | 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. | After you are married, your husband will have to petition the US government for you to immigrate to the US. He can also petition for your children to accompany you because they are younger than 21 years. See https://my.uscis.gov/exploremyoptions/petition_for_spouse for more information: A U.S. citizen can file a petition for his or her foreign-born spouse and, under certain situations, the children of the spouse. The U.S. citizen will have to establish the family relationship with the spouse by filing a Form I-130, Petition for Alien Relative. The U.S. citizen may also file a separate Form I-130 for a child of his or her foreign-born spouse if the child is unmarried and under 21 years old. When the petition is submitted, the U.S. citizen petitioner is required to provide evidence to prove his/her relationship to the foreign-born relative. If the petitions are approved, you and your sons will then be able to apply for immigrant visas (if you are outside the US) or for adjustment of status (if you are in the US). | In the USA, at least, it has never, to the best of my information, been legally mandated to add a name on marriage, or even for husband and wife have the same last name. It has long been customary in the US for a woman on marriage, to adopt her husband's surname. This is no not nearly as common as it once was -- it was once almost invariable, but some women did not do so, or kept a pre-marrige name for professional purposes, even many generations ago. When a woman married, in some social sub-groups it was common to simply drop her former surname and replace it with her new husband's surname. In others, the new surname was added to her existing name, potentially leading to the kind of long series of names mentions in the question. In the 1990s Judith Martin, writing as "Miss Manners", wrote that the first of these was the more "traditional" but both were not uncommon. When I was married, the clerk asked my wife and I what name each of us would be known by after the marriage, and that constituted a legal change of name. But we were free to make any choice we wanted. I think this has been the usual procedure in the US for a long time now. On divorce, a woman in the US (and the UK and Canada) traditionally kept her former husband's last name, although some returned to a pre-marriage surname. On remarriage, some added a new husband's surname, others replaced the former husband's name. Some said that keeping the former husband's name was a statement that the woman had been without fault in the divorce, or want to remain associated in some way with her former husband's family. There were, of course, also women who remarried after a former husband's death, rather than a divorce. In any case, I do not think any of this was legally required, but custom can sometimes be as strong as law. Other cultures had and have different customs on marriage and divorce. But in most places these are not a matter of law. I do not know of any country that legally mandates a change or modification of name on marriage, but some may. | I'm very sorry to hear about your situation. Unfortunately, this is too important to trust advice from strangers over the Internet. You should talk to an attorney familiar with Bulgarian immigration law. @jwh20 is correct; entering another country is not a human right. If they are not allowing you to return to your home country despite your following all laws, that is likely a human rights issue. This does not necessarily mean you won't be able to get into Bulgaria; if one person is preventing you from entering, an attorney may be able to get that person's decision overturned. | The law does not criminalize "having more than 1 legal spouse", it criminalizes specific behavior. The polygamy statute is here. It says Every one who (a) practises or enters into or in any manner agrees or consents to practise or enter into (i) any form of polygamy, or (ii) any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or (b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii), is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. That is, if you behave like you're married to multiple women, you've committed a crime. | As someone with ties to the "foreign" community in the United States, I see these "marriages of convenience" from time to time. In their most "legitimate" form, the couple will move to the same address and "technically" live together, but without consummating the marriage so that it can later be legally annulled. American immigration authorities counter this by asking each spouse about the other's underwear (literally!). Some "marriages of convenience" are legal, insofar as they technically conform to the marriage documents, e.g. regarding "co habitation," even while violating the spirit of the law. Others don't. Your best chance of attacking such "marriages" is not regarding the marriage itself (basically only the couple can decide what constitutes a valid marriage), but rather "compliance" with the marriage documents. That's something any law enforcement officer can understand. | A sham marriage or civil partnership is one where the relationship is not genuine but one party hopes to gain an immigration advantage from it. There is no subsisting relationship, dependency, or intent to live as husband and wife or civil partners. Under sections 24 and 24A of the Immigration and Asylum Act 1999, as amended by section 55 of the Immigration Act 2014, a sham marriage or civil partnership is one in which: One or both of the parties is not a British citizen or an EEA or Swiss national There is no genuine relationship between the parties Either or both of the parties enter into the marriage or civil partnership for the purposeof circumventing (avoiding) UK immigration Controls, including under the Immigration Rules or the Immigration (EEA) Regulations 2006 Entering into a sham marriage does not entitle migrants any right to remain or reside in the UK. Sham marriages typically occur when a non-European Economic Area (non-EEA) national marries someone as a means of attempting to gain long term residency and the right to work. It is a criminal activity under UK immigration law, and if you got caught, you will end up behind the bars, unless you can prove yourself innocent. For more details about outcomes read this document carefully. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/488521/Sham_Marriages_v1.0_EXT_clean.pdf Read it carefully, just try to stay away from troubles. | The consequences for the US are perhaps better addressed at Politics; if you're really interested in those consequences, you can re-post this question there. For the police officer shooting a diplomat, the officer may be charged under state law, whatever is normal for an incident of this type; it doesn't matter whether the person is a US citizen or a diplomat or any other kind of alien, regardless of immigration status or lack thereof. If the person is a diplomat, however, the officer is also liable to be prosecuted under federal law, namely 18 USC 1116, which makes it a crime to kill, among others, a "foreign official"; the definition of that term includes any person of a foreign nationality who is duly notified to the United States as an officer or employee of a foreign government or international organization, and who is in the United States on official business, and any member of his family whose presence in the United States is in connection with the presence of such officer or employee. The characterization of the response "just been revoked" as "clearly legal" is inaccurate; a police officer has no power to revoke diplomatic immunity. In fact, only the diplomat's own country can waive this immunity. The United States cannot do so; it can only expel the diplomat. |
Conflicting terms and the definition of a «child» This is similar to this question but applies to a specific scenario. In the Norwegian allotment garden community I belong to, a young child recently lost her mother to cancer. The statutes say that a “spouse, child or grandchild” can inherit the parcel, but also that a member of the community must have reached age of majority. To a layman such as myself, this may be interpreted as a potential conflict, quoting Wikipedia: Legally, the term child may refer to anyone below the age of majority or some other age limit. The United Nations Convention on the Rights of the Child defines child as "a human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier". The paragraph saying that the “spouse, child or grandchild” can inherit was modified most recently. Previously, it said “spouse, child, grandchild or parent”. Thus, when a minor lost her parent, a grandparent could assume ownership until the child reached age of majority. However, parents were barred from inheriting because this facilitated transition between adult siblings, which was seen as undesirable. I assume the child must move if either of the following are true: A «child» can, in legal terms, refer to an adult son or daughter. The most recent change in the statutes has precedence. However, the Convention on the Rights of the Child state that “The best interests of children must be the primary concern in making decisions that may affect them (…)”, so again to a layman, that could indicate that if there are indeed conflicting terms, the favour should go in to the child. The board of the allotment garden community has decided that the child must sell her parcel. Given the wording in the statutes, especially the legal definition of a «child», and the order in which the paragraphs were written, is the case clearly in favour of a forced sale? | I presume that the document refers to "barn" and "barnebarn". Norway has forced heirship laws, which refers to offspring as "barn", not limited to those under the age of majority. Interpreted in the context of Norwegian law, there is no assertion in using the word that it grants a right to minors. When you add the additional condition that the recipient must have reached the age of majority, there is no conflict. In this kolonihage bylaws document, which is probably similar to the one you are looking at, §11.2.1 requires that a tranferee fulfill the criteria required for the allocation of parcels, and §11.2.2 addresses the non-necessity of paying the transfer fee in the case of death of the member, and does not create a special inheritance right. It also says that the new contract must be established. But a minor cannot establish a contract, and in general cannot be forced to fulfill the obligations of a member as spelled out in §9. You should check with a lawyer to be certain, of course. | Short Answer I was wondering if it exists the possibility of signing a legal agreement before impregnation that states legally that both parents compromise into offering shared physical custody of the child to each other in case of divorce or separation. Do theses types of contract exists? are they legal? I currently live in Switzerland, but the question is meant generally. Agreements of this type are not valid in Switzerland, the U.S., Australia, or any other jurisdiction of which I am aware. There are some fine nuances to this general rule, however, that are explored below. Obviously, of course, there are many countries in the world, and there could be an outlier out there somewhere. Exceptions For Choice of Family Religion Agreements In particular, in some countries, such as Israel and India, the substantive family law rules that apply to a married couple and their children are governed by the religion of that family as determined by law. Thus, Muslims families and Hindu families in India, for example, are governed by different laws related to child custody. In these countries, there is a legislatively approved set of family laws for each faith, but the laws for members of one religion are not the same as the laws for members of another religion, and there are typically rules to determine which sets of family law to apply in cases where the parents of a child belong to different religions. Pre-nuptial agreements in these countries may govern, to some extent, how a married couple's religion is determined for intra-national choice of law purposes, although they cannot specifically resolve custody issues on a pre-dispute basis. U.S. Law In General This would not be enforceable in most U.S. states. Agreements between parents in matters involving children (even post-dispute) are generally not legally binding, because the court has an independent duty to evaluate the best interests of the child under the circumstances as they actually present themselves. Courts can and do appoint third-party guardians ad litem to evaluate the best interests of the children when they have any reason to doubt the judgment of the parents. Put another way, pre-nuptial agreements and post-nuptial agreements, may govern property division and maintenance and restoration of name and inheritance rights and enforcement of economic provision rules, in the event of death or divorce, but may not govern parental responsibilities or child support or the circumstances under which the marriage may be terminated. Post-Dispute Agreements In practice, if parents come to a post-dispute agreement that happens to track the outlines of a non-binding pre-dispute agreement regarding parenting time and parental responsibilities, and the agreed resolution seems reasonable after perfunctory due diligence, a Court would usually ratify that agreement without much second guessing. But, the pre-dispute agreement would be only marginally relevant in the event of a dispute and would not have legal validity. It might be considered by a court as one factor among many in addressing the parenting dispute, as a source of ideas for a resolution and to ascertain the expectations and perspectives of the parents, but would not be given much weight in most cases. Exceptions For Dispute Resolution Method Agreements The exception would be that in some jurisdictions, a mediation or arbitration clause for parenting disputes in a material agreement would be honored, although the same substantive law would apply, in theory. Exceptions For Assisted Contraception And Surrogacy Agreements Note, however, that most jurisdictions in the U.S., do honor and give legal effect to a contract regarding the intended parent in a medically assisted conception or surrogacy contract, in which a pregnancy arises through some means other than intercourse between a man and a woman which of the source of the sperm and egg from that man and that woman that gives rise to a fertilized egg (e.g. cases of sperm donation, artificial insemination, in vitro fertilization, etc.). In those cases, the default rule is generally that the legal parents of the resulting child are the intended parents under the contract. But, this is purely an agreement governing paternity, and not parenting once a child is born. Swiss Law While I do not have first hand knowledge of Swiss law, a digest of Swiss law prepared by Westlaw (a major law book publisher and online legal research provider) does state the rule of Swiss law clearly, however: The areas a pre-nuptial agreement can cover are fairly limited. The following cannot be determined in advance: The preconditions for a divorce, nullification or separation of a marriage are ultimately governed by law. Any agreements that are not compliant with the law are invalid. Agreements on arrangements for children, in particular about parental responsibility, visiting rights or maintenance, made in advance, are not binding. Any amounts saved in pension funds during a marriage are divided in the event of a divorce. Waiving such a division is only possible under very restrictive conditions. Agreements in a marital contract that are not compliant with the law are invalid. This source also identifies the precise statutes and treaties that apply to resolve these questions of Swiss law. Choice of Law and Forum Related Issues There is also an implicit choice of law issue presented. Choice Of Law and Forum Agreements Are Usually Void Generally speaking, under U.S. law, these issues are governed in domestic cases by the state that is the "home state" of a particular child under a statutory test and the parents may not contractually agree to a choice of venue. In international cases by the state and country that are the home state and country of the child under a test established by treaty which may not be contractually agreed to in advance. Since the applicable statutory tests in the U.S. usually direct a court to apply the laws of the state with which the child has the strongest residential connection (except for Native American children whose family law disputes are subject to tribal law), and since laws relating to divorce and parenting are matters of state and not federal law for the most part (except as to choice of law and choice of forum issues, and certain federal welfare program guidelines for child support that states have economic incentives to comply with and all do), the law governing parental rights and responsibilities (and over the circumstances when a couple may get divorced) may change over time as the family (and each particular child) moves over the course of their lives. In international cases where there is not treaty in place between the potentially relevant countries (and in which diplomatic personnel or members of foreign royal families or families of heads of state are not involved), a U.S. court will generally apply the law of its own state in all cases where it has jurisdiction over the child, or of both parents. Jurisdictional disputes and inconsistent decrees are resolved in part through diplomatic channels at the national level in these cases. There Is Little Variation In U.S. Substantive Custody Law In practice, this isn't a very important observation in domestic cases, however, because almost every U.S. state gives judges extremely broad discretion to handle custody disputes on a case by case basis under a "best interests of the child" standard during the last several decades (even though this isn't constitutionally required), subject only to the barest U.S. constitutional limitations prohibiting decisions that amount to a termination of a legal parental relationship without certain forms of due process, and there aren't huge differences in the case law applying that standard in practice between states. The differences between particular judges in a particular county would typically be as great or greater than the difference between different states, when it comes to final outcomes in disputed and litigated cases. Before the best interests of the child standard was adopted more or less universally, many states had a sex specific "tender years doctrine" that presumptively gave custody of younger children to mothers and older children to fathers. But that standard was held to be unconstitutional because it discriminated based upon sex. In each state where the tender years doctrine or similar sex specific custody doctrines were held to be unconstitutional, the "best interests of the child" standard was adopted rather than a gender neutral standard that provided more guidance to judges such as a dictate to maintain the status quo as much as possible such as a "primary caretaker presumption" (which many judges applying the "best interests of the child" standard actually apply in practice). Most European countries also follow the "best interests of the child" rule for child custody. One of the big differences between jurisdictions in their laws typically involve issues like the standing of people other than parents to intervene in parenting litigation, such as grandparents, stepparents and social workers, and the rights of these third-parties vis-a-vis the legally recognized fathers and mothers of a child, and the circumstances under which an adoption and related relinquishment of parental rights is valid. The procedures that apply in family law cases also often differ significantly between jurisdictions. Exception For Post-Dispute Choice of Law and Forum Agreements However, once there has been a litigated dispute in the first instance, that jurisdiction will generally retain authority over the parenting of the child set forth in a decree. But if there is an agreement of the parents which has been ratified by a court regarding choice of law and venue that will be honored in a post-dispute settlement agreement. Also, there are typically statutory circumstances that cause the original jurisdiction to address a parenting dispute to lose authority over the child. For example, suppose that a couple divorces in England with a separation agreement approved by a court that states that the divorce court in London shall have continuing jurisdiction over future custody and child support disputes and the London divorce court approves that agreement. A U.S. or Swiss court would usually defer to the London divorce court for these matters at that point, unless some emergency or change of circumstances undermined the relevance of London to future disputes involving the child. | Under Fed. R. Civ. P. One can be served according to the state law or: (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized None of those would apply to your facts. Thus you would have to find some jurisdiction that would allow service of process under your fact. I dare say that none will and that due process would come into play. In NJ, due process applies and service may be made (1) Upon a competent individual of the age of 14 or over, by delivering a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individual's dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein, or by delivering a copy thereof to a person authorized by appointment or by law to receive service of process on the individual's behalf; It has to be the current place of abode. | Note: All links in Spanish (sorry). Regardless or your father being or not the legal owner of the home, the issue at play is that of alimentos1. This is an obligation between some family relationships to help each other so if family member (the alimentista) is in dire need of help (i.e., needs the help to survive) the others have the obligation to provide the help. The relatives of the alimentista affected are, in order: The couple, always when married and only when expressly agreed upon for non-married couples. Descendants: sons/daughters and grandsons/granddaughters. Ascendants: parents and grandparents. Brothers: Only when indispensable and the minimum amount. The order determines who of all the family members is under obligation to provide the help; in case of multiple people in the same category the amount is to be divided between them in function of their income. The amount of the help is not fixed and will depend of the circunstances of the situation2; and it is possible to provide by providing the needs(shelter, food) directly. Now, until when does a father/grandfather need to provide alimentos to a son or daughter? Certainly until s/he is 183, as this is the date of full age in Spain, but it is usual to consider that the obligation exists while the alimentista is studying and lacks of his/her own means of subsistence. That is not a "free rider" situation, as alimentos may be denied by several reasons: Obviously, because the person that should provide the help does not have the means to do so without endangering his own subsistence. The alimentista gets his/her own means of subsistence. Any of the causes that would make the alimentista unable to inherit from the person providing the help4: attempted murder, coercion to change their will, and other grave crimes. The alimentista does not do enough to get his/her own means of subsistence. If a judge decides that the alimentista son/daughter is neither studying nor seriously trying to get a job, the help can be revoked. Judges seem to be progressively taking a harsher stance against descendants who refuse to do their part. The article quotes the case of a 19 years old guy whose claim to the pension was denied. As a side note, rejecting to pay alimentos is another of the causes that would cause the person doing it to lose any right to inheritance from the alimentista. If for whatever the reason you do not qualify for alimentos, the details of the agreement between your father and your grandfather for the home become relevant5: If your father has formally rented the house then your grandfather position is not relevant, as your father has all of the rights6. If your grandfather allows your father to live in the house without paying rent, then it is your grandfather rights as owner against your father rights as an occupant. No idea about the outcome of that situation. UPDATE: You still do not tell about your grandfather stance about the issue, which is important. If your grandfather agrees with your father7 then the only way to stay at home is that of alimentos. What you describe is a situation of either precario or comodato, where your grandfather allows the use of the home without compensation. The differences are: precario is for an undefined time. comodato is for a defined time/use (e.g. for X years). Now, I have to suppose that you are not part of the agreement so it is just between your father and grandfather. That makes it your father's dwelling, and beyond alimentos he cannot be forced to share his dwelling with you. But if this is a situation of precario (which is what most often happens) your grandfather has the "nuclear option"8 of threatening to evict your father, as it is a relatively easy (in the legal sense, not the personal one) procedure. In a situation of comodato your grandfather could not evict your father until the conditions of the cession expire, making threats somewhat weaker. As a final note, and given how specific this answer has become: I am not a lawyer, you have not provided enough specific info, and this is not legal advice. Talk to a lawyer. Maybe a lawyer will check the agreement and it will turn out that your father is paying rent by performing some service, voiding the precario aspect. Maybe with the details provided the lawyer can find a way to an agreement that is more amenable to all. Talk to a lawyer. Shut up. The issue at hand may be stressful, and sometimes it might be tempting to boast to your father about the issues of alimentos or precario. Don't. If there is something to be said about that, let your lawyer do the talking. Try to stay calm. Consider the effect of your actions before taking them. While there is nothing wrong with talking to a lawyer, going beyond that and beginning a legal battle with members of your own family is most of the times an ugly affair. It could easily have an effect for a very long time in your relationship with most of your family, even with those who are not directly implied. Try to stay calm. 1 Literally, "foodstuffs", but when used as a legal term it includes other basic needs. 2 There are some official guidelines but judges seem to have freedom to follow them or not. 3 I believe that there are some exceptional reasons to lose such right before becoming 18 (e.g., sons condemned of attacking their fathers and the like) but I have no specific data about those. 4 As a side note, in Spain last wills do not allow the "donor" to distribute the goods freely, as some porcentajes of the inheritance must obligatory be provided to descendants and widowers. 5 Of course, in the case that your grandfather wanted to oppose your father's decision. 6 Since one of the legal reasons to end a rent agreement is to provide a home for a first degree relative, your grandfather could expel you from your rented home to give it to your father, but not the other way around. 7 And "agree" does not mean "Is happy with the decision" but "Will not go to the court to challenge your father decision". 8 Which is a very relevant analogy, because it could be almost as damaging to your family as a literal nuclear bomb. | The first step is for the parents of the child to seek a court order for child support. This would be based on your friend being the actual father, and the non-mother not having adopted the child (extinguishing the obligations of the father). Many states, but not Michigan, have adopted the Uniform Parentage Act which covers assisted reproduction, but even in those states, this does not constitute assisted reproduction. The "agreement" is legally invalid (surrogate parentage contracts are unenforceable), and that, folks, is why you should hire an attorney rather than devising a legal theory on your own. This article summarizes the various paternity laws of Michigan. Under the Paternity Act, this may be a child born out of wedlock, if the child is a child begotten and born to a woman who was not married from the conception to the date of birth of the child, or a child that the court has determined to be a child born or conceived during a marriage but not the issue of that marriage where the meaning of the last expression would have to be determined by the court. Probably the court would say "this child is not the 'issue' of the marriage", given legislative intent. Under the Acknowledgment of Parentage Act, unmarried parent can by signing a statement "define" the parentage of a child, but the statute is specifically limited to a man acknowledging paternity, and cannot apply to a lesbian couple. The clearest statement of the law of parentage for lesbian couples in Michigan is Lefever v. Matthews where (just one year ago) the court held that both of two women were parents – but in that case, the eggs came from one of the women and they were implanted into the other woman. An important distinguishing feature is that in this case, the woman at a statutory disadvantage sought parental rights, whereas your question is about a legal parent seeking to avoid a legal obligation to the child. Courts generally do everything possible to protect a child's right to support by the parents. The prospects that an actual father could avoid that obligation are slim. | In the US, the right to publish is vested in the copyright holder, who is initially the author. That right can be transferred for example by a transfer agreement, and it can be inherited just as other property can be inherited. Under the terms of the will, it is most likely that the copyright was transferred to the spouse even if the will didn not say "including all copyright". There is a small chance that it wasn't disposed of if the wording of the will is restrictive enough (for example "I bequeath all real estate and tangible property to my wife", which doesn't include intellectual property). If so, that would definitively require the assistance of an attorney, and a court proceeding to dispose of the copyright. If there was no provision under the will for copyright, then the copyright could be divided accounting to the rules of succession of your state, however, the courts would want to be persuaded that it was not his intent that his wife receive the copyright as well. Possession of the physical manuscript is largely irrelevant – it does not give the manuscript-holder the right to override copyright law, although if you are in lawful possession of the only copy of the manuscript, you may be able to thwart plans to publish. Publishers generally require decent evidence that the person submitting the manuscript does legally hold copyright, when a work is submitted by someone other than the author. | Children/youths are allowed to make some decisions themselves even before becoming adults. In the US, COPPA has privacy protections for children under the age of 13. This means that many US-based or US-oriented online services refuse to provide services to people younger than 13. The terms of service often include language to the effect that no part of the service is intended to children under 13. In the EU, the GDPR lets member states pick a cutoff age between 13 and 16 years. Children below this age cannot give consent themselves. However, this is a very narrow condition as consent isn't generally needed to use a website (cookie consent banners are extremely common though). For example, Stack Exchange bans under 13 year olds, and under 16 year olds in the EU: 3. Age Eligibility You must be at least 13 years old to access or use the Network or Services, including without limitation to complete a Stack Overflow account registration. By accessing or using the Services or the Network in any manner, you represent and warrant that you are at least 13 years of age. If you are under 13 years old, you may not, under any circumstances or for any reason, access or use the Services or Network in any manner, and may not provide any personal information to or on the Services or Network (including, for example, a name, address, telephone number or email address). If you are located within the European Union, you must be at least 16 years old to access or use the Network or Services, including without limitation to complete a Stack Overflow Account Registration. By accessing or using the Services or the Network in any manner, you represent and warrant that you are at least 16 years of age. If you are under 16 years old, you may not, under any circumstances or for any reason, access or use the Services or Network in any manner, and may not provide any personal information to or on the Services or Network (including, for example, a name, address, telephone number or email address). Source: Public Network Terms of Service These age limits are solely related to privacy laws. This is not about whether the child has legal competency to enter into contracts, or about your rights as a parent to supervise the development of your children. As a matter of internal policy, but in respect of this legal landscape, many parental control/surveillance software tools limit the available degree of control/surveillance as the children become older. While this may not be required in your particular jurisdiction, software providers are often interested in applying uniform policies across multiple jurisdictions. | A person can decline to accept an inheritance under the law of India. The mechanism for doing so depends upon the stage of the probate process at the time and the nature of the property, and often involves a notarized document, or a letter clearly expressing an intent not to inherit. In those cases, the person declining to accept an inheritance (an action sometimes called a "disclaimer" or "renunciation" of an inheritance), and all of that person's descendants, are treated as if they predeceased the decedent from whom the inheritance derives, for purposes of further distribution of the inheritance. |
Is lying to get "gardening leave" fraud? A group of my friends was celebrating one of our group securing a new job, and he was complaining about having to continue working at his old job for his 3 month notice period, we started discussing humorous ways that he could force his company to immediately terminate his contract. One of the group mentioned that his company had a policy for employees who had accepted a role with a competitor of immediately escorting the employee off the premises and placing them on gardening leave. Assuming my employer had a similar policy, and I secured a role with company A (who aren’t a competitor of my current employer), but I told my manager that I had secured a role with company B (who are a competitor) in an attempt to secure gardening leave. Have I committed fraud? | Yes, that would be fraud. From the Fraud Act 2006: 2: Fraud by false representation 1) A person is in breach of this section if he— (a) dishonestly makes a false representation, and (b) intends, by making the representation— (i) to make a gain for himself [...] By saying that you had got a position with a competitor you would be dishonestly (i.e. you knew it was a lie) making a false representation. Your purpose was to obtain gardening leave, which is a gain for yourself. | There is no fixed definition in the law of "outside activities" that is applied generally. This will depend entirely on how the employment agreement defines it, and/or how the management of your company defines it. There may be a useful definition in the agreement, ideally there will be. In the far too common case that the agreement leaves this key term undefined, you will have to ask them how they define it. While it is true legally that when they draft the contract and it is ambiguous, you may adopt any reasonable definition, as a practical matter, if you do not disclose something and they consider it an "outside activity" They may claim this is grounds for discharge. If the employment contract requires you to disclose outside activities, you must disclose them or be in breach of that contract, which is surely grounds for discharge, and possibly grounds for a breach of contract suit. Even if it is not part of the contract, saying that you have no such activities when you in fact do is arguably fraud. Saying that you decline to inform management of your outside activities is probably legal, but might well cause them to cancel the offer of employment. If you do inform management, and the activities are approved, there would be no automatic transfer of any existing IP rights. No transfer could occur without an agreement saying so. Some companies, in their employment agreements (or other related agreements) demand that an employee transfer the IP of any project created or worked on using company resources (such as a company computer or network). Some demand a transfer for any project worked on during the employee's working hours. Some demand a transfer for any project done during the period of employment, but they must clearly specify this for it to be effective. That last is unusual, because many employees dislike it enough to go elsewhere as soon as they can, which tends to be bad for the employer. But in no case can a transfer of IP for a project unrelated to the employer's business, not using company equipment or resources, and not done during work hours, be effective without a specific agreement to this effect. | australia It's dishonest. Dishonesty is not, in general, illegal. Dishonesty is illegal when it is used to obtain someone else's property or financial advantage through fraud. It's also illegal if it's part of a statement made when applying for an authorisation or benefit. It's potentially misleading. Misleading people is not, in general, illegal. Misleading is illegal when it takes place in trade or commerce. It gives you a title you don't hold. Claiming a title you don't hold is not, in general, illegal Claiming a title you don't hold is illegal if it is a protected title under Australian law. For example, there are protected titles under the National Health Practionioners Registration Scheme: "medical practitioner" is a protected title; "doctor" isn't. Further, holding yourself out to be able to practice in certain professions when you are not (e.g. law, engineering in some states etc.) is illegal. Context matters Putting on a white gown, wearing a stethoscope and calling yourself "doctor" when attending a fancy dress party is not illegal. Doing it to angle for a free upgrade on your airline ticket is. | I am not a lawyer: If they sue you it will probably be for fraud, then the DA will investigate and can easily find out who you are. If they can prove that you signed the contract is another story. If the clause in the contract is valid yet another. Getting a lawyer might be wise, especially if your visa depends on a clean legal record. Have you talked to them yet? If you can afford it, you or your new company could pay off he months salary to the old company. In my opinion it's fair, they probably turned down a lot of other applicants an will either need to search again or find a good temp to replace you. Think there was something that you cannot quit a contract before it starts, but another option would be to start working for them and then realizing during the test period that it's a bad match. However, best lawyer up! Search for "Kündigung vor Beschäftigungsbeginn" (Cancellation before the start of employment) Quick google suggests that they might be right if they have it in the contract, but the lawyer will know for sure. Look for someone who does "Arbeitsrecht". | Ah, the old "is this contract invalid (but still legally binding for the other party)"? You signed a contract with someone else. You do not dispute that it was you who signed the contract and agreed to it. You made it abundantly clear that there was a contract between you when you allowed him to do the work. This means one of the following was true: There was a mistake in the contract. What was followed was how it was intended. You signed a contract containing false information in an attempt to defraud someone. One of these will end up much worse for you. The fact that the work was not completed to the agreed upon standard could be considered a breach of contract- this is something a small claims court would decide. | 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. | Does this amount to the employer potentially paying the employee to lie to them, to no ultimate legal effect? Or will the employee have a problem if they end up with an obligation to sign a statement that is not in agreement with reality? Neither. Contract law contemplates a party's subsequent inability to comply with the terms that were established at the formation of the contract. In the Restatement (Second) of Contracts, this is referred to as supervening impracticability. See, for instance, the Restatement at § 261. In the hypothetical scenario you outline, the loss of a company laptop renders the employee's promise (namely, "to return any company-issued computers or devices") impracticable. Instead, the circumstances may entitle the employer to restitution (by the employee) for what the employee now is literally unable to return. That would be cognizable as compliance in substance. | 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. |
When I am inspired by code on Stack Overflow, and make workable code on basis of that code, is that also pastiche? So I've been reading through the new copyright directive proposal and saw the pastiche exemption. So take this hypothetical: I forgot how anime.js worked to animate something. I find a piece of example code on Stack Overflow that shows how it works to initalize it and to animate something to the left and then fade away I write my own implementation without copying the original code in my codebase, that does a different animation, move to the bottom and fade in, inspired by the code example on Stack Overflow. Would that be a pastiche? Or would that still fill under CC-BY-SA 3.0 because I took a work for inspiration, not copied it though, but created my own example inspired by that code, and am required to follow all requirements of the CC-BY-SA license? The only references to pastiche I've been able to find have dealt with an artist reusing work for comedic or entertainment purposes from Britisch guidelines. Miriam webster defines it as: a literary, artistic, musical, or architectural work that imitates the style of previous work. Code is a literary work in my opinion. You write words in a document in a grammatically defined language, so theoretically with my interpretation, basing code upon someone elses code could interpret that as a pastiche. I'm mostly curious because of this part from the final text of the former article 13 text: http://www.europarl.europa.eu/doceo/document/A-8-2018-0245-AM-271-271_EN.pdf The cooperation between online content-sharing service providers and rightholders shall not result in the prevention of the availability of works or other subject matter uploaded by users, which do not infringe copyright and related rights, including where such works or other subject matter are covered by an exception or limitation. Member States shall ensure that users in each Member State are able to rely on any of the following existing exceptions or limitations when uploading and making available content generated by users on online content-sharing services: (a) quotation, criticism, review (b) use for the purpose of caricature, parody or pastiche Answers relevant to the European Union please, and i'm mostly interested if there are actual precedents for these "outlier" cases? | "Pastiche" is a literary, not a legal term, and as a professional coder, I would not use it to describe code that to some extent imitated other code. The legal question here is: is your code a derivative work of the code it is based on, and if it is, did you have permission to make that work. Copyright, in an Berne Convention country, which includes the EU, does not protect ideas and concepts, it protects expression. It protects the choices of words and symbols, and other forms of expression. If all you did was study example code, presented for educational purposes, and then write code that performs a similar function, using the same general techniques, then I don't think you have infringed copyright. That, after all, is why people post code to Stack Overflow and similar sites, to allow them to learn how to use specific coding techniques, including in commercial projects. I have used techniques posted to SO to do coding as part of my paid job. The usual test for copying under US law is "substantial similarity". This takes into account cases where there is essentially only one way to say or code something. I don't know the exact tests under the various laws of various EU countries, and they will not all be the same. But I suspect that on this point they are, well, substantially similar :). I can't advise on your specific situation. But if it is as described, I don't think you have a problem. | It seems that you don’t understand what parody is. If you do understand, please explain how it’s even possible to parody computer code. What you can do with “open source” code depends on the licence the copyright holder(s) release it under. For some very permissive licences you can do what you suggest, for most, you can’t. | The first thing that people need to do is to quit over thinking it. That being said, I'm going to see if I can tackle your problems one by one, before summarizing and providing my own opinion: Many users don't care if their code is copied. I'm like that. I left a couple comments on Shog9's post that read this: Good point: Licensing does not prevent careless or malicious use. I'm surprised about how many people are thinking that this license will let them steal their code, because it's already happening right now. I don't want to sound pessimistic, but when thousands of people break a license/law/contract, it's a bit of a lost cause. You're not significantly damaged in a direct way, so honestly, let it go. All I want is to make sure that no one can come up to me if something of mine screwed something on there side. Aside from that, I don't care about people who don't attribute me: chances are, they have no moral sanity, and I will appreciate the people who do, and help me out. As it is, I'm 16, I share what I know with a good heart, and in a well-spirited manner, and at the end of the day, knowing that I was able to help someone out makes my day. I don't mind if my code is copied. I know that people will copy my code whether I like it or not, but I also know that there will be people in the world who will say "thanks", and will try to attribute me where possible. I feel good about that. That being said, I don't care. But the person who uses my code does. The license that affects all Stack Exchange posts are licensed under the Creative Commons Attribution Share-Alike license, or CC BY-SA. Code contributions don't fit well with this. This excellent post on Open Source explains why it's discouraged for code. What these people want is a code-friendly license, so that they can stay in the clear when it comes to copyright issues. The next thing they want, is for someone to come after them over some licensing issue. You may think that people are good, but you never know the world around you. They can be evil. For other users, they don't mind their code being copied to another post, as long as there is a link to the post and a mention of the original author. Most people post with good intention. There's not that much of an issue from a legal perspective either: The license allows people to copy and paste into answers of their own, and since the license remains the same, there's no issue to get into. The license allows it, and contributors kind of have to acknowledge it. I don't think anyone cares what happens to code that is less than 3-4 lines at least. I can probably agree. Such code probably wouldn't be eligible for copyright anyway, since it's so trivial. Many jurisdictions have a "Threshold of Originality," which means that simple things can't be under copyright. Stack Exchange does not probably want people to own the code they submit. For example, Stack Exchange has (and probably wishes to retain) the right to keep even deleted posts in the visibility of the high rep users (even if the author is against it). Wait what? You may be right that it is in Stack Exchange's interest to host content. After all, they get hits, which helps them as a business. It is illegal for companies to host illegal content. If somebody sees objectionable, copyrighted content hosted on Stack Exchange that they would like removed, then they need to file a DMCA Takedown Request. This is also why moderators, like myself, cannot process legal requests. The reason why Stack Exchange doesn't act themselves, even if they see something that is copyrighted and objectionable, is because it's a form of liability. When YouTube began removing copyrighted content themselves, they received a wave of lawsuits (If you remove some, you need to remove all. Why didn't you remove mine? being the argument). The plaintiff's won those, and when YouTube did nothing, they weren't liable at all. If a user wants to have their content taken down, it's tricky. You need to look at the Terms of Service for Stack Exchange: (quoting Section 3) You agree that all Subscriber Content that You contribute to the Network is perpetually and irrevocably licensed to Stack Exchange When Stack Exchanges gets your content, you grant them an irrevocable license to your contribution. This is pretty standard across a lot of sites: it's just a way to secure data and stay in the clear of licensing issues. At the same time, it doesn't seem fair for SE to acquire complete ownership of the content. The user must still have the final say, if the content is to be used for purposes not already agreed upon in the licence. They don't. What users have done is that they have provided a license of their content to Stack Exchange. This is done, again, through their Terms of Service: You grant Stack Exchange the perpetual and irrevocable right and license to use, copy, cache, publish, display, distribute, modify, create derivative works and store such Subscriber Content and to allow others to do so in any medium now known or hereinafter developed (“Content License”) in order to provide the Services, even if such Subscriber Content has been contributed and subsequently removed by You. The user grants a license to their content to Stack Exchange, but they do not assign or relinquish copyright. The code still belongs to them. It's important not to conflate the user contribution policy, with copyright assignment. You are still free to add an additional license to your content (known as dual or multi-licensing), and have a copy for your own use. Stack Exchange will always host a copy licensed under the CC BY-SA license. Stack Exchange can expect a high level of decorum and respect for laws from its users. At the same time, it cannot expect redundant attributions anywhere and everywhere, because one of its main aims is to not waste the users' time. Not only Stack Exchange expects it, but many copyright laws in various jurisdictions require it too. There's a concept known in many jurisdictions known as moral rights. These are rights that are irrevocable, whether you like it or not. Generally, these include attributions, disclaimer of liability, and other rights as well. Even if your work is in the public domain, you still retain these moral rights. If memory serves me right, the right to be attributed is revokable under United States copyright law. Therefore, attribution becomes more a courtesy, when the right is revoked. Licenses such as CC BY, and CC BY-SA still require attribution as a part of their licensing terms. What defines attribution is generally up to the person who uses the content. If memory serves right again, one can not demand how to attribute. There should be a clear-cut way to determine what is code and what isn't. The code formatting indicators on SE may not be adequate because some users simply use backticks, or 4-space indented text for other not-so-codey text. Personally, I feel like making the entirety of a post under both the Creative Commons license and whatever proposed code license they use is the best option, and allow people to use moral judgement to determine the most appropriate license. The concern comes about people who lack such judgment. I bet these same people don't follow the existing license anyway - and are a lost cause. We made it through! There will always be debate on the license of choice. Some people want the GPL, a license that's apparently closer to the status quo of Creative Commons license (I disagree that it's a good match), while other's want permissive licenses, such as the MIT or the Apache licenses. I'd prefer the permissive type, since it allows use in closed-source applications, and grant more rights (i.e. less restrictions) to the people that use them. I'm not going to right much because my hands are tired, but I'm sure if you've got more questions about the open source licenses themselves, you can probably ask on Open Source Stack Exchange. | What you're talking about is called black-box reverse engineering. It can be done, and as long as you are meticulous in your record keeping the fact that it has been done should be an appropriate defence against copyright infringement. But that doesn't help against patent claims - while in copyright cases the fact that code has or has not been directly copied is critical, in patent cases it its irrelevant: if you use a patented method, it's a violation. You therefore will need to be careful about any patents that may have been issued to the original author, as well as avoiding copying. | The web-browser game was copyrighted the moment it was created by the individual. It did not need a copyright notice to be copyrighted, or a TOS to inform you of copyright. The individual was fully within the law to claim infringement and demand you stop disturbing your mod as an unauthorized change to their game. They should have had a TOS up when they started distributing the game, but that's their choice. The developer could - or have their attorney - send their own legal "takedown notice" of infringement directly to you rather than Tweet about it or approach Google. Google's takedown and your "copyright strike" is different than your original copyright violation and involves Google's TOS - Google Chrome Web Store Developer Agreement | Google Chrome - regarding copyright violations of apps and code under distribution. By your use of the store, Google reserves the right to remove your extensions when there are ...violations of intellectual property rights, including patent, copyright, trademark, trade secret, or other proprietary right of any party,... And, the original game being free and your mod being free rarely matters in copyright law and in cases of infringement. That's something a court would decide on the case and in looking at precedent(s). ...can I get into legal trouble for this? You could be sued by the maker of the game in civil court; that's up to them. Google's recourse is to simply remove the mod from the store and possibly restrict your use of their service(s), according to their TOS. For more background, see the Law SE Meta post I have a question about copyright. What should I read before I ask it? . | A translation is a devivative work - the copyright owner has the exclusive right to these So, yes, translation is prima facie copyright infringement. Strictly speaking, if you translate it, it's a derivative work because you exercised creativity in making the translation; what Google translate does is not a derivative work, it's a copy because there is no creativity. Either way, only the copyright owner can do (or authorise) this. Whether it's legal or not depends on if what you are doing falls within one of the exceptions to the applicable copyright law such as fair use or fair dealing. Attributing the original author does not, of itself, allow translation. Additionally, I'm not able to find the copyright documentation for the site link I provided above. What is "copyright documentation"? Copyright exists the moment a work is created and no further documentation is required. Essentially, I could translate the whole documentation by myself to avoid this problem. No, you can't - see above. If copy-pasting the google translate is illegal, then exactly how much must I edit, move around sentences, change words, and such until the text is no longer plagiarized? All of it. If you were, based on your own knowledge of the software, to write a manual without any copying o the existing manual, that would not be copyright infringement. Is this plagiarism or copyright infringement? It's copyright infringement - plagiarism is an academic misconduct issue not a legal one. where can I check the copyright for the above link? The site you linked has "Copyright © 2020 Acquia, Inc. All Rights Reserved" in the bottom left corner which identifies the copyright holder, the date and prohibits all copying ("all rights reserved"). This isn't necessary but it is helpful. If you really want to do this, contact Acquia, Inc and ask for permission. | I can't answer for the Indonesian law specifically. But in general, under most international copyright schemes, a translation is considered a copyrightable work. This means that even if the original work (in this case, the Quran and Hadith) is in the public domain, derivative works based on that public domain work can still be copyrighted by their creators. This includes, for example: A song with lyrics taken from the Quran A play or movie dramatizing stories from the Quran A novel retelling a story from the Quran In all of these cases, the author has built something new, based on the public domain framework. Because they contributed something original, they are entitled to a copyright on their original contribution. They can't stop someone from copying the Quran themselves, but they can stop someone from copying their original work based on the Quran. Most copyright courts--again, I don't know about Indonesia specifically--will treat a translation the same way. A translation is an original work that requires creativity and skill--otherwise Google Translate would work a lot better than it does. Just like a movie based on the Quran, a translation based on the Quran will probably be copyrightable under most, if not all, countries' copyright laws. | The Creative Commons Attribution 4.0 license (and all versions) is explicitly "non-sublicensable". If you receive a copy of the work under that license, you cannot place the work under a new license. The license grants you only the rights to A. reproduce and Share the Licensed Material, in whole or in part; and B. produce, reproduce, and Share Adapted Material. When you give copies of someone else's CC-licensed work to downstream recipients, they do not receive a license grant for the original work from you; they receive it from the original author/licensor: Downstream recipients. A. Offer from the Licensor – Licensed Material. Every recipient of the Licensed Material automatically receives an offer from the Licensor to exercise the Licensed Rights under the terms and conditions of this Public License. When you include someone else's CC-licensed work in an adaptation, you may license the adaptation under other terms, but the underlying CC-licensed work remains under its CC license. From the CC FAQ: If I derive or adapt material offered under a Creative Commons license, which CC license(s) can I use? If you make adaptations of material under a CC license (i.e. "remix"), the original CC license always applies to the material you are adapting even once adapted. The license you may choose for your own contribution (called your "adapter's license") depends on which license applies to the original material. Recipients of the adaptation must comply with both the CC license on the original and your adapter’s license. When sharing someone else's work, the original CC-licensed work always remains under its original license. By contrast, the "ShareAlike" condition means that your own work used in an adaptation of a CC-BY-SA work must be placed under CC-BY-SA terms as well. ShakeAlike does not refer to the requirement to preserve the license on existing CC-licensed material (which is always present), but rather it refers to the requirement to include it on new material. |
Child care exemptions for jury duty in NYS? New York State (USA) here. I work full time and my wife is a full-time stay at home mom and caretaker for our two children (ages 4 and 6). My wife received a Jury Duty summons and is expected to show to court tomorrow for jury duty. I am taking the day off work tomorrow to be at home with our kids, but she absolutely can not perform jury duty because she is the sole day-to-day caretaker for them while I work. What are our options as far as getting her excused from this? They can't just expect a mother to leave her small children abandoned while she performs jury duty, so I imagine there are ways to get her exempt... | She can ask, but she does not have a right to be excused New York law for jurors does not have an automatic right to be excused because of familial care needs. There is a right to be excused for medical or financial hardship - which you might be able to argue here if, for example, you were at risk of losing your job. There is also a right for automatic postponement of 2 to 6 months (to allow you to arrange care, for example) but you have to request this a week in advance. Unfortunately, as they say on their website: "Jury duty, like paying taxes, is mandatory." That said, judges have discretion to excuse jurors and normal practice is for the judge to state the estimated length of the trial and ask for reasons why a juror cannot serve. If they satisfy the judge the juror will be excused. | For the New York State Unified Court System, you can consult their Frequently Asked Questions at http://www.nyjuror.gov/juryQandA.shtml#Q6. What if my summons or questionnaire is lost? Contact your local Commissioner of Jurors. Find contact information by scrolling down at “Select County” in the box on the left menu. When you select your county and click submit, an e-mail message opens addressed to your local Commissioner of Jurors (for example, in Brooklyn, the address is [email protected]). Send a message explaining what happened, and they will tell you what to do. | Yes, maybe The legislation varies by state but s494 of the Victorian Children, Young Persons and Families Act is typical. A person who has the control or charge of a child must not leave the child without making reasonable provision for the child's supervision and care for a time which is unreasonable having regard to all the circumstances of the case. If the child is 17 years old then the circumstances are such that it is not unreasonable to leave them, even for a period of days. If the child is 17 days old, even 30 seconds may be unreasonable. | Anyone who is an employee as defined in the federal Fair Labor Standards Act of 1938 (FLSA), 29 USC 201 et seq.(or parallel state minimum wage laws) and is not within the scope of an exemption to the minimum wage law, must be paid minimum wage. The relevant question is whether or not the person is an employee who is not exempt from the minimum wage requirement as defined in the FLSA. The question is a mixed issue of fact and law in which the characterization given to the relationship by the company and the person doing the work is one factor, but not the only or the controlling factor, in determining employee status. The exact nature of the work governs whether the FLSA's minimum wage requirement applies or not. For example, "employee" is defined for puroses of the FLSA at 29 USC 203(e) to exclude "any individual employed by an employer engaged in agriculture if such individual is the parent, spouse, child, or other member of the employer’s immediate family" and certain kinds of volunteers. Piecework pay is allows under certain limited circumstances by 29 USC 207(g) when the usual result is that reasonable workers earn the minimum wage. Tipped employees (which is a form of revenue sharing) also receive special treatment. Most of the exemptions are found at 29 USC 213. Most relevant to your question is 29 USC 213(a)(1) which includes an exception for an "outside saleman" who is paid on a straight commission basis, and 29 USC 213(a)(5) and (a)(6) which contain exclusions for certain farming and fishing occupations. Straight commission compensation without regard to the minimum wage is generally not permitted with regard to an employee who is an "inside salesman" (e.g. someone who works at a retail store in a mall or at a phone bank for a telemarketing company), or for anyone other than an outside saleman in non-agricultural jobs. Independent contractor status generally depends upon the degree of control that the company has over the manner in which the work is performed, the assignability of the contract to do the work, and the extent to which the worker does work for many different companies on a contract basis while complying with employment related laws for the contactor's own employees (e.g. worker's compensation). The working for many different companies on a contract basis prong of the test is frequently controlling in practice. Six of the main factors considered by the Labor Department in determining independent contractor status are discussed in Fact Sheet #13. A true independent contractor may be paid on a revenue sharing basis without regard to minimum wage, although in practice, if this results in the independent contractor earning less than minimum wage, there will be strict scrutiny of the practice. Typical independent contractor arrangements that would be allowed would include an attorney working on a contingent fee basis, or an independent broker or realtor working on a straight commission bais. More often than not, a true independent contractor is someone you couldn't even imagine being an employee subject to minimum wage laws of the company in light of the overall relationship and often this will involve a business to business contract, rather than a business to a non-professional individual contract with only personal services involved. There are some safe harbor provisions that if met can insure independent contract status, but it is very common for someone who legally is an employee to be misclassified as an independent contractor in an attempt (often futile if the matter is pressed by regulatory or tax officials) to avoid compliance with laws incident to the employment relationship. | 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. | The English version of the taxman's web page does not indicate any specific exemption or reduction of taxation due to being under 18, however provision 102.3 says that The monthly taxable income of disabled people of I and II groups (except for veterans of war), persons under age of 18 with limited levels of health from any type employment shall be reduced by the amount of 200 manats. Provision 106.2, about exempt income says that Income tax rate for production enterprises owned by public organizations of disabled people, or children with limited levels of health shall be reduced by 50 percent if not less than 50 percent of employees at such enterprises are disabled people, or persons under age of 18 with limited levels of health. These provisions imply that it is legal for people under 18 to work. The Azerbaijan Labor Code section 42(3) says A person who has reached the age of fifteen may be a party to an employment contract. and 58(6) says that Employees under age of 18 may be allowed to hold multiple jobs if their total daily working hours do not exceed the reduced work hours provided for them in Section 91 hereof. which again implies that those under 18 may work for money. There are a number of other provisions that address employees under age 18. A freelancer is not an employee, so the labor code is technically not applicable to you, but it suggests that it is legal to freelance if you are under 18. Usually, restrictions are placed on people working for others and it is assumed that people can be self-employed relatively freely. One would have to hire a lawyer to be sure, though. | There is nothing (that I can find) that allows for a defendant to elect for a trial without a jury in the Crown Court but such trials are possible, if there is evidence of jury tampering, under section 44 Criminal Justice Act 2003: [...] (2)The prosecution may apply to a judge of the Crown Court for the trial to be conducted without a jury. (3)If an application under subsection (2) is made and the judge is satisfied that both of the following two conditions are fulfilled, he must make an order that the trial is to be conducted without a jury; but if he is not so satisfied he must refuse the application. (4)The first condition is that there is evidence of a real and present danger that jury tampering would take place. (5)The second condition is that, notwithstanding any steps (including the provision of police protection) which might reasonably be taken to prevent jury tampering, the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury. [...] Althought the 2003 Act applies throughout to united-kingdom, there are also special provisions for terrorism-related trials in northern-ireland at section 1 Justice and Security (Northern Ireland) Act 2007: (1)This section applies in relation to a person charged with one or more indictable offences (“the defendant”). (2)The Director of Public Prosecutions for Northern Ireland may issue a certificate that any trial on indictment of the defendant (and of any person committed for trial with the defendant) is to be conducted without a jury if— (a)he suspects that any of the following conditions is met, and (b)he is satisfied that in view of this there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury. (3)Condition 1 is that the defendant is, or is an associate (see subsection (9)) of, a person who— (a)is a member of a proscribed organisation (see subsection (10)), or (b)has at any time been a member of an organisation that was, at that time, a proscribed organisation. (4)Condition 2 is that— (a)the offence or any of the offences was committed on behalf of a proscribed organisation, or (b)a proscribed organisation was otherwise involved with, or assisted in, the carrying out of the offence or any of the offences. (5)Condition 3 is that an attempt has been made to prejudice the investigation or prosecution of the offence or any of the offences and— (a)the attempt was made on behalf of a proscribed organisation, or (b)a proscribed organisation was otherwise involved with, or assisted in, the attempt. (6)Condition 4 is that the offence or any of the offences was committed to any extent (whether directly or indirectly) as a result of, in connection with or in response to religious or political hostility of one person or group of persons towards another person or group of persons. And, for completeness, section 43 of the 2003 Act is prospective legislation (i.e. not in force) for certain fraud cases to be conducted without a jury due to the complexity and/or length of the trial. | The right to trial by jury in criminal cases by a unanimous jury of twelve under the 6th Amendment to the United States Constitution and some related rights are only partially incorporated to apply against states via the 14th Amendment due process clause. (The right to a jury trial in a civil case under the 7th Amendment to the United States Constitution does not apply to the states.) As noted, the federal right to a jury trial in a criminal case applies only when more than six months of imprisonment are a possible sentence pursuant to Baldwin v. New York. (Proceeding to trial without a jury on a more serious charge is allowed so long as the actual sentence does not exceed six months.) In practice, many states establish a right to a jury trial in many criminal cases where the U.S. Constitution does not require them. Juries are not required in juvenile delinquency proceedings. The 6th Amendment right to a criminal jury trial does not apply to military justice either, although there are constitutional limitations that do apply to military justice. There are no jury trials in the territorial courts of American Samoa which is beyond the scope of 6th Amendment protection. A unanimous jury of six or more jurors is allowed (at least in non-death penalty cases). A state jury does not have to be unanimous (at least in non-death penalty cases). Ten of twelve is constitutionally sufficient for a twelve person jury; nine of twelve is not sufficient constitutionally. In practice, only one or two states permit non-unanimous jury verdicts. [Since this post was originally written, the precent implicitly referenced here was overturned and all criminal case juries must be unanimous. New York State, however, never allowed non-unanimous jury trials anyway.] There is not a federal constitutional right to waive a jury trial, although this exists in some states by state constitution or other forms of state law. The right to have felony charges screened by a grand jury also does not apply to the states. About half of U.S. states require grand juries to screen felony charges, mostly in the eastern U.S. I have the precedents in a criminal procedure text book and will update is I get a chance. See also the footnotes here. To some extent, the constitutional provision in NY State is designed to make clear that bench trials are allowed when a jury has been waived. It also authorizes bench trials where the U.S. Constitution and state law permits them. |
When listing the price of parts on invoice for car repair, must the price be the one that the garage paid to obtain the parts? When listing the price of parts (e.g., tires) on a work order or invoice for car repair in the United States, must the price of the parts be the one that the garage paid to obtain the parts? Or is it the garage allowed to inflate the price to make them margin on it? If the answer is specific to the state, I am mostly interested in California. | No They will list the price they are charging you. This will normally be greater than what they paid because that’s how business works. The amount they are allowed to charge is what you agreed in your contract with them (which may incorporate a price list) or, if the contract is silent, a reasonable amount. What is reasonable will be related to what the market in your geographical area charges. While this is indirectly related to the input cost of a given item, business can and do charge what the market allows. | 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. | "There's no ... contract" - wrong! The emails are the contract, see What is a contract and what is required for them to be valid? If you didn't agree on which laws will apply then that is a matter for the court to determine. In general, they will tend to look at where the bulk of the work was done - since you are being charged I assume the work was done in the UK so probably UK law applies, noting that the UK is actually 3 different jurisdictions (England & Wales, Scotland and Northern Ireland). That said, many jurisdictions have non-excludable laws around contracts, particularly consumer contracts that apply irrespective of the substantial law applying to the contract. It is therefore possible that you apply English contract law subject to, for example, Australian Consumer Law. Usually any consumer protection law in the vendor's jurisdiction will also apply. General contract law dictates that where a price was not agreed a reasonable price must be paid. If its reasonable that the editing should have been included in the original price charged then you don't have to pay more but if it isn't then you have to pay a reasonable amount for it. There is generally no requirement for estimates or any other method of determining the price - you just have to do what's reasonable. However, consumer protection law generally imposes more obligations on a business than general contract law. It is likely that your contract is ambiguous - courts will endeavor to fill in any ambiguities to make the contract work. techniques include read in implied terms to give "business efficiency", from custom or business usage (e.g. if particular industries typically deal with particular issues in particular ways), from previous dealings (i.e. what the parties have done in the past), from statutes, whatever works to resolve uncertain, meaningless or ambiguous terms, from the express words used or from the nature of the contract or from the common intention of the parties (i.e. the court might ask you what you meant). "Breach of contract" is a very broad term - it simply means that one of the parties hasn't done what they were required to do and allows the other party to sue for damages. | Is it a crime for a repo man to accidentally repo the wrong car? Not unless the car was retained after the accidental repossession was discovered, and then, only by the person retaining it (as the repo man may have turned over the car to the creditor whose loan on a similar car is in default). Generally speaking, taking property of another with an intent to permanently deprive the owner of the property of it is a crime only if one knows that the property is the property of another. For example, if two people leave black umbrellas in an entry room and someone accidentally leaves with the wrong one, the taking of the wrong umbrella is not a crime. Whether the repo man's assertion that he accidentally took the wrong car is credible is a question of fact to be determined at trial, if the prosecution doubts him. If he was supposed to repossess a 1936 Ford and he repossessed a 2021 Tesla, the repo man is probably going to lose and be convicted of theft. If he was supposed to repossess a white 2021 Tesla and he repossessed a different white 2021 Tesla in the same neighborhood with a license plate from the same state as the one he was supposed to repossess, he has a very good chance of prevailing. However, once someone learns that they have taken the wrong property, they have a duty to return the property promptly to the owner upon request, and probably, to notify the owner (if the owner can be determined) and the authorities who were informed that a different vehicle was taken, promptly. Otherwise, the originally good faith mistake becomes theft. If the repo man's explanation is convincing, he is not likely to be charged with theft, even though no special law applies. What makes the repo man special is that he did have permission from the secured car loan creditor to repossess it due to the secured car loan debtor's default by the Uniform Commercial Code. If he had taken the right car without a breach of the peace, the Uniform Commercial Code would have absolved him of liability and given him legal permission to do so. If the repo had been of the right car, the creditor would have had a duty to promptly return the personal possession in the car in which it did not have a lien to the rightful owner. This conclusion doesn't change when the repo man accidentally takes the wrong car. While the repo man's mistake was not knowing or intentional, it was probably negligent to repossess the car without carefully confirming the VIN number and license plate to make sure that he was repossessing the correct car. As a result, the car own probably has a claim against both the repo man (whose negligence caused the wrongful repossession) and the creditor (for whom he was acting as an agent to repossess the car) for any damages caused to the owner of the wrongfully repossessed car, including damages to the vehicle and damages from loss of use of the car and possibly damages for emotional distress caused by thinking that his car had been stolen or by missing a non-economic opportunity that he could have had if the car had not been wrongfully taken (e.g. if this caused the car owner to miss the funeral of the car owner's father). The creditor and the repo man probably have insurance policies in place that cover legal defense of such claims and also economic settlements or money judgments entered on that kind of claim. | None The contractual chain is you <-> warranty company <-> (potentially others you don’t know about) <-> service provider. Should something go wrong, you would sue your warranty company who might (it is up to them) then sue the service provider. Notwithstanding, it’s likely the service company owes you a duty of care and would be directly liable to you for a negligence claim. | In Saudi Arabia, it is legal to charge (and pay) interest. However, according to this source, a contract clause requiring interest is not enforceable. An interest clause is severable, so the contract is not at risk if interest is charged. This source indicates an exception, that the Saudi Arabian Monetary Authority Banking Disputes Settlement Committee may enforce interest clauses in banking transactions. In UAE, Article 204 of the UAE Civil Code says If the subject matter of the disposition or the consideration therefor is money, its amount and type must be specified without any increase or decrease in the value of that money at the time of payment having any effect. and Art. 714 says If the contract of loan provides for a benefit in excess of the essence of the contract otherwise than a guarantee of the rights of the lender, such provision shall be void but the contract shall be valid. Art. 76 of the Commercial Code explicitly allows charging interest for commercial transactions A creditor shall have the right to demand interest on a commercial loan in accordance with the rate stipulated in the contract. If the rate of interest is not stipulated in the contract it shall be calculated in accordance with the rate prevailing in the market at the time of the transaction on condition that in this case it should not exceed (12%) per cent, until full settlement is made. This article from 2002 (behind the paywall, sorry) provides further analysis for Abu Dhabi. This page discusses similar rules for Kuwait, where again commercial transactions are exempt from the civil prohibition against interest. It is not clear where the line is drawn, but I think "commercial" refers to borrowing money for a business purpose, as opposed to buying your house. | A U.S. auto manufacturer promises in writing that its vehicles will, for the life of their vehicles, receive free hydrogen at its charging stations. . . . The written promise was related to the workmanship of the vehicle in connection with its software and hardware components. Was a warranty created? It sounds like there were two separate promises. A promise to provide free hydrogen (which is a contractual obligation, although not a warranty) which amounts to prepayment of hydrogen, and a warranty that the vehicle had adequate workmanship in software and hardware components. Was a warranty created even if the manufacturer failed to clearly and in readily understood language disclose what it was going to do in case of malfunction or defect with the vehicle relating to its ability to cause a hydrogen well to open and start filling up? Whether this is a breach of the agreement to provide free hydrogen, or a breach of the warranty agreement that the vehicle's recharging feature would work properly, or both, taken together it is a breach of contract by the automobile manufacturer. There were agreements, and taken as a whole, those agreements as reasonably interpreted in light of the intent of the parties and construing against the drafter of the agreements, were breached. Therefore, you should be entitled to the damages for breach of contract as measured by the benefit of the bargain test applicable to contracts. Most likely, repair of the defeat at the cost of the manufacturer and reimbursement of money you had to spend on hydrogen due to the defect. | 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 ..." |
Can I sue Lloyd's Bank on grounds of religious discrimination? https://www.independent.co.uk/news/uk/home-news/lloyds-bank-removes-overdraft-fee-from-islamic-accounts-9291932.html Does a bank have the right to disadvantage clients (overdraft charges) purely on the basis of their religious beliefs? Can a client be excluded from a free overdraft facility based on their religion? | It doesn't seem as if the bank is discriminating in the way you suggest. They offer two types of account: (A) accrues or charges interest and (B) does not accrue or charge interest. The bank says you can choose A or B whatever your religion. You the customer choose A or B, possibly depending on your religion. So I do not see what cause of action you have or what damages you have suffered. Therefore I don't think you could sue them. | The key difference is the motivation for denying service. Generally, a business can deny service for almost any reason, or for no reason, and doesn't have to explain its reasons for doing so. However, laws may make it illegal to deny service for certain specific reasons. The federal Civil Rights Act of 1964 forbids discrimination on the basis of race, color, religion, sex, or national origin. So a business may not deny service for those specific reasons. In the Colorado case, there was a similar state law that also forbids discrimination on the basis of sexual orientation. If they deny you service because of your political views, or the way you dress, or because they just plain don't like you as a person, that's legal. If they deny you service because of your sex, or race, or on the other bases in the Civil Rights Act, that's illegal. Obviously, since a business doesn't have to say why they're denying service, or could lie about the reason, this could make it hard for a plaintiff to prove that denial was in fact based on (e.g.) race. They might be able to do so by finding out about internal discussions within the business, or by showing a pattern of denial to customers of a particular race. In Masterpiece Cakeshop, the baker made it easy by explicitly stating that he was denying service because of the customers' sexual orientation, or at least because of the same-sex nature of the marriage in question. This would appear to violate the Colorado state law. Had he just said no without giving a reason, it would have been harder for the plaintiffs to make their case. (A state commission held that the baker did violate the law, but the US Supreme Court reversed because, they said, the commission had improperly taken the baker's religion into account.) But there is no such law that forbids discrimination on the basis of political views, so Alex Jones can't make a similar case. | Regarding to your instructions concerning the funds in the account, it's hard to prove a negative. As far as I know there is no legislation that requires a credit balance to be retained. However, there may be some regulations or internal policies regarding the closure of home loans, which may preclude closure without some documentation or other process. But just because you can't cite legislation that requires you to do things, doesn't mean it doesn't exist. You don't ask the new bank to support their claims which contradict the old banks, because it works in your favour. With regard to the last instruction regarding your funds, the bank can and will provide you with a list of fees and charges applied to your account - it's called a statement. With regard to your explicit other option - is what the bank's doing essentially theft? - you can call it theft, but it's not. At worst it's conversion, the remedy for which is the recovery of the converted property, or damages equal to the value of the property. If you have attempted to resolve your complaint through the bank's internal dispute resolution processes (usually some kind of complaint process), you can also contact the Financial Services Ombudsman, who may assist with these situations. Finally, as for your further instructions, they are all void and unenforceable. 1. You cannot impose terms on the conduct of another party without their agreement. This is called a counteroffer or variance to their established terms which you will have agreed to at the time that you established the original loan. 3. You can never be compensated just for your time. | Jurisdiction: england-and-wales Charity law A charity must only allocate its resources in pursuance of its charitable objects. Providing a "bankrupcty shield" to a donor is not capable of being a charitable purpose nor does it meet the public benefit requirement pursuant to sections 1 and 2 of the Charities Act 2011. Bill Gates as a trustee While a charity can pay a salary to its employees, it cannot usually pay its trustees a salary, and its trustees must avoid conflicts of interest. Where a trustee is related to an employee, there is a clear conflict of interest if that trustee takes part in any decision making process which sets the employee's salary. The standard procedure is that any conflicted trustees should sit out of such decisions. If the charity pays a salary far in excess of the market rate for the role, the trustees will open themselves up to being sued by the Attorney General (representing the public / beneficiary) for misallocation of charitable funds. Bill Gates cannot therefore lawfully use his position as trustee of a charity in E&W to ensure that money which he donated is received by his family members via artificially inflated salaries. Bill Gates as a donor If a charity intends to claim Gift Aid on donations then the donation must be non-refundable, pursuant to sections 414(1), 416(1), and 416(3) of the Income Tax Act 2007. In any case, a donor will have no power to compel a charity to return a donation unless the parties entered into a contract to that effect. If no such contract is in effect, then any money Bill Gates has given to the charity is unrecoverable and must be used to further the charity's objects. If such a contract exists, then the adminstrators of Bill Gates' bankruptcy will be able to recover the funds under the contract and use it to pay his creditors, so such an arrangement is useless. Insolvency Act 1986 Under Sections 339 and 441 of the Insolvency Act 1986, the courts can make an order to reverse any transactions at an undervalue (including a gift) which have taken place in the 5 years prior to a bankrupcty (in the case of insolvency) or in the 2 years prior (regardless of insolvency). There is a rebuttable presumption of insolvency under the 5 year rule in cases where the transaction involved an associate of the person. See section 435 for the definition of "associate" which can include relatives, beneficiaries of a trust, and [charitable] companies. This serves to prevent individuals from taking deliberate steps to distribute their assets in advance of a predicted bankruptcy. If the Gates' estate is insolvent does the charity still function? Pursuant to section 34(1) of the Charities Act 2011, a charity will continue to function so long as it remains charitable and hasn't ceased to exist or operate. A charity could cease to exist if the underlying structure no longer exists. In the case of a charitable trust this could happen if all the trustees die without replacement or in the case of a charitable company if it is struck off the register (e.g. if all the directors die and are not replaced). It is unlikely that Bill Gates' estate being insolvent will cause the charity to cease to exist or operate as it will almost certainly have or acquire independent trustees / directors to keep it operating. | It may be discrimination, but it is not discrimination based upon any reason that the company is prohibited from engaging in. This conduct is legal in pretty much all U.S. jurisdictions. | Under 42 USC 2000a(a): All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin. So a business may be generally prohibited from discriminating against you on the basis of your religion, but I don't know of any law that requires stores to accommodate whatever aversion or hostility you may feel toward gay people or their allies. On the contrary, such businesses have a First Amendment right to display such decor. So legislation that required them to stop speaking out in support of nice gay people would be struck down as unconstitutional. | Even though student status is not on the list of protected classes, this still might be discrimination. By proxy. Status as student can be a proxy for age, race, and/or color. Maybe even religion if there is a religious school nearby! In fairness to the store manager, when a pack of ten kids comes rolling in on the way home from school things can get pretty hectic. Rather than try to kick out the problem kids many managers will attempt to avoid the problem in the first place. Also, a sign like this might help the manager be less discriminatory. For example, let's say he lets all kids in and only kicks out the ones who are causing problems. If those problem kids are all in one protected class and it's different from the kids who don't get kicked out, the manager looks like he's discriminating based on that protected class. Discrimination by proxy can be hard to prove and I am not sure of the burden of proof in Canada. I have read that "Canadian experience" is used as a proxy in employment discrimination and has been getting some attention lately. That might be a good issue to keep an eye on as it may define proxy discrimination jurisprudence. | Small claims court was created for such matters. There is the possibility of a fee waiver, and if you prevail, you could get some of your costs covered (though there are other hoops to jump through if you need enforcement). A formal letter (written by you) stating that you intend to seek a legal judgment against him/her in the amount owed might be sufficient motivation for the person to pay what is owed. |
Usage of the US President's likeness without his consent According to this question, depending on the jurisdiction, individuals have certain "personality rights" over the use of their name and likeness. I know that, in the US, these can vary from state to state, and that public figures generally lose some of these rights when their name/likeness becomes famous. But I still believe that commercial use of a public figure (e.g. making a toy, selling a shirt, etc) without their permission would violate those rights. Are these rights (again, in the US specifically) affected when an individual becomes a government official, particularly a federal government official? I'm vaguely aware of the idea that the federal government doesn't have the same intellectual property rights as private citizens, but I have no idea if this affects individuals. (The motivation for this question is this image which is slightly NSFW but I assume it would apply regardless of the specific usage of the president's likeness.) | One does not lose legal rights by becoming a government official, so POTUS retains the right to sue for defamation, hold copyright, sue for trespass or breach of contract, and so on. The standards for defamation change when one becomes a "public figure" (you have to show "actual malice"), but this is much broader than being a government official. Anything that is a "work of the US government" is not protected by copyright, so presidential decrees, as government works, are not protected by copyright. I do not know of any state where one legally loses publicity rights as a function of being famous, or being an elected official. California Civil Code §3344 spells out the right of publicity in that state, which says that anyone who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent can get sued. However, there is a "fair use" escape clause: For purposes of this section, a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a). The law doesn't say exactly what constitutes a "political campaign" or "public affairs broadcast or account", but since politicians get caricatured in the papers all the time, with no requirement for consent, it is highly likely that the use you point to would be found to be part of a "political campaign" or "public affairs account". Additionally, under the First Amendment, you can criticize a government official, and that right is not limited to just critical words. It is obvious that the things on sale are basically criticism of POTUS, and you can't use the law to suppress such criticism. Accordingly, one could also criticize Tom Cruise (not a government official) using his likeness on such an object. However, one cannot exploit his image to sell perfume. | It is true that any work of the US government is not subject to copyright in the United States; it may be subject to copyright abroad (the relevant law excludes US government works from US copyright protection; other countries have their own copyright laws that generally don't explicitly exclude US government works, and so the works may be copyrighted there). A government work is defined as something produced by a government employee in the course of his official duties. It doesn't include everything released by a government agency; for instance, if a contractor makes something and the contract specifies that the government gets the copyright, the work is copyrighted (since it wasn't made by a government employee). If a foreign cosmonaut or astronaut composes and sings an original song in a livestream, then NASA may not have copyright in the livestream but the foreign astronaut would have copyright in the song. That said, NASA has a page of guidelines for reuse of their media, where they say that their stuff normally isn't copyrighted unless otherwise noted. They don't make any sort of guarantee, but they suggest you'd probably be fine embedding it, at least as far as they're concerned. | No, you cannot ever legally use copyrighted property without a valid license from the copyright owner. It is understandable that when government restrictions prevent people from licensing intellectual property, people will turn to piracy and black markets to obtain them. However, whenever you find yourself in a region where you can legally license the property, you are (presumably) also in a region where intellectual property rights are respected, and it is illegal to use the property without a proper license from the owner. I.e., the fact that you paid a pirate for a copy – even where that was the only option to obtain one – does not give you a license. You have to obtain a license from the owner. | Yes it does. You can do anything at all with a public domain work, and it is not an infringement of copyright. For the matter of that, one could write a forwards attributes to Justinian or Genghis Khan, who newer wrote any such forward at all, and it would not infringe any copyright, nor any right of publicity. It is possible that such claims would constitute False advertising. But if the claim is "obviously absurd" then such laws usually do not apply. What is "obviously absurd" is a judgement call. I recall seeing books in which a "foreword" is attributed to a fictional character. If such a foreword is attributed to a person who is living, that person might have a right to sue under a publicity right theory. In those jurisdictions where such rights last beyond the author's life, such a suit might be filed by an heir within the time such rights are valid, which varies widely. | I know of no legal restrictions on using the title of Doctor in the United states. I know next to nothing about Canadian law and can't speak on that. Falsely claiming to have a license to practice medicine is probably illegal, depending on circumstances, and practicing medicine without a license is most certainly illegal, and there a numerous federal and state laws that would apply. But simply styling one's self as Dr. is unlikely to be held by a court as a claim to hold a medical license, or a particular degree. It's, of course, misleading and generally frowned to use the Dr. prefix unless one has earned an MD or PhD. Some holders of honorary doctorates use it as well, though some debate whether that's acceptable or not. | The constitution does not actually forbid "abusing a position for financial gain", and thus it is left to the political process to address any such actions (voting for a different candidate), or the legislative process (defining certain acts as forbidden) – or, the impeachment process. The court system in the US does not have the power to decide on their own what politicians can and can't do, if there is no underlying law. It is within congressional power to define limits on the act of any politician, for example Congress could pass a law requiring the President and Vice-President to have no business interests or stocks during their term of office; they could require that of cabinet members or members of Congress. Such a law would, of course, either require presidential approval or else sufficient support in the houses of congress to override a veto. There are various limits on what government folks can do. 18 USC 202(c) is an example of a limit on the limits: Except as otherwise provided in such sections, the terms “officer” and “employee” in sections 203, 205, 207 through 209, and 218 of this title shall not include the President, the Vice President, a Member of Congress, or a Federal judge It is possible that a president could engage in a criminal act such as theft, and that is not permitted and would be grounds for impeachment. The president does not, however, have the power to e.g. unilaterally send all government hotel business to a certain hotel company, nor can he declare that 10% of all government expenditures must be deposited in his personal bank account, so the mechanisms whereby corrupt rules of certain other nations can get away with that is that those executives have vastly more power in their countries than POTUS does. With congressional support, though, such acts could come about. If it did, it would not be too surprising if SCOTUS ruled based on common law and considerations of justice that such a law / act was illegal, but it would not be a textualist argument. | This falls within the penumbra of Feist v. Rural Telephone. The principle articulated there is that facts are not subject to copyright protection, but the expression of facts can be. Quoting from the ruling, "no author may copyright his ideas or the facts he narrates...however, it is beyond dispute that compilations of facts are within the subject matter of copyright". The distinction between protected vs. not protected hinges on originality: "The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author". But it is not sufficient that the work is created by the "sweat of the brow" of an author: it must possess at least some minimal degree of creativity. Thus "[t]he writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like". As a concrete example, the ruling states "Census-takers, for example, do not 'create' the population figures that emerge from their efforts; in a sense, they copy these figures from the world around them...Census data therefore do not trigger copyright because these data are not 'original' in the constitutional sense." But, compilations of facts can be protected: Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws An email list requires nothing more than brow-sweat, and even then, not much. A cleverly annotated and arranged email list would involve substantial creativity and would be subject to protection. That does not mean that you didn't sign some agreement that prohibits you from copying or using the list, but it isn't a matter of copyright. | Owing to the First Amendment, in the United States your recourse would be limited to civil action based on violations of terms of service (meaning that "the authorities" are not going to knock on their doors to tell them to behave). This is not "spam" (which could be regulated) as the term is generally understood. It is annoying, but probably does not constitute threatening or child porn. It might involve violation of an anti-impersonation law such as this one from Texas, if the offender uses the persona of a real person as opposed to a fictitious person). That law, moreover, does not criminalize simple annoying. Prosecution may be possible in the UK. |
How to go about sending a DMCA takedown notice to pornographic websites? I have a few questions about the DMCA takedown process. A friend of mine is a webcam model for a video chat site. She lives outside of the U.S. and because of this she has had difficulty getting videos of her public and private shows removed from various third party sites. It is unclear to me at this point whether or not the difficulty stems from the websites' unwillingness to remove the content based on her location, or if it is more a matter of her not fully understanding the English language and not meeting the requirements for an effective DMCA takedown notice. So my questions are: What makes for an effective DMCA takedown notice specifically in regards to websites that host pornographic material? Is a website more likely to respond to a DMCA takedown notice if the notice comes from within the United States? If the answer to the previous question is Yes: how would someone from outside of the United States authorize someone residing in the United States to send a DMCA takedown notice on their behalf? When sending a DMCA takedown notice, does one send the notice directly to the website in question? Many pornographic websites have a DMCA link on their page. One such site has this to say when clicking that link: Requesting for DMCA removal Depending on which part of example.tv site your material (videos or pictures) was posted, you can request for removal. If you wish to remove any material (picture or video) or have some information changed, you must identify yourself and prove that you are who you claim to be. To do so, you can simply take a picture of you (with face) holding a sign with the following written: "I am MODEL NAME for example.tv". Attach this picture when sending your request to [email protected]. My final question - supposing we send a takedown notice to a website; might they be more inclined to remove the content had we played by their rules? Is this something a model should consider doing or would it be better to take the formal legal route of sending a DMCA takedown notice? Thank you for taking the time to read this. If any further information is needed please let me know and I will supply all that I can. | 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 | Let's examine some laws that may apply to your case Digital Millennium Copyright Act (DMCA) There are criminal penalties for willful infringement for personal financial gain. If you are only sending it to one family member through a private communication (eg not posting it publicly) and not selling it and one copy of the music video has a retail value of $1,000 or less then there will be no criminal penalties. But you may be liable for civil penalties. Computer Fraud and Abuse Act (CFAA) Courts have ruled that ToS violations do not constitute unauthorized access (or exceeding access) so you aren't in violation of the CFAA Civil Liability By downloading a video off of YouTube you are in violation of their ToS. There isn't enough prior case law for me to tell you the outcome here. You may be committing some sort of civil wrong by the act of downloading. In addition, you are distributing a copyrighted work without permission which would open you to more civil penalties. The real question is how likely is it for this to be enforced? Not likely. | You can't Under clause 7(b) of the CC-SA-BY 3.0 the licence is irrevocable providing that the licensee complies with its terms. However, ... It appears that your work is part of a Collection (as defined and under clause 4(a), the licensee has this obligation: If You create a Collection, upon notice from any Licensor You must, to the extent practicable, remove from the Collection any credit as required by Section 4(c), as requested. While you cannot have your work removed, you can have the attribution removed so that no one knows that it is your work - this would seem to meet your desire of having no association with the website. "To the extent practicable" should include anonymising you. As a bonus, if they don't do this "to the extent practicable" then they are in breach of the licence and it's automatically revoked - you can then proceed with DCMA takedown notices and/or sue for copyright breach. | BAD idea It is one thing to upload the phonebook and associated pictures for use of the owner of the phonebook. It isn't a fair use of the phonebook pictures - and you might not have a license anyway, as some people associate photos with numbers that they don't have a license to associate with anyway. But what if instead of a photo of the person, the first photo someone associated with the person is a photo of something like... crack cocaine, a photo of someone in a very compromising situation, just genitals, or some other thing that is just as tasteless or possibly criminal to share? In that case, your company is possibly committing defamation, and in case sharing or possessing of the image itself is illegal, your company is now the actor and liable. Depending on the content of the picture, distribution of pornographic material (possibly even underage material of that sort) could be up that alley just as much as hate speech through symbols, usage of banned symbols (such as swastikas in Gernamy) and many many others. | If by "streaming," you mean "having my web browser create temporary copies of media from an online source so that I can view it," then Canadian law is unclear. I can't really do better to demonstrate than to cite a few articles on the subject. According to Alex Buonassisi and Jennifer Marles of IP law firm Oyen Wiggs: [...] it is not entirely clear that receiving an unauthorized stream of a copyrighted work in Canada does not infringe copyright. At best, this activity could be said to fall within a grey zone. According to Sandy Kang writing for law school blog IP Osgoode: As for users of such websites, it is currently uncertain whether their act of streaming video would be found to infringe. According to Michael Geist, a University of Ottawa law professor specializing in IP: The most controversial sources are unauthorized streaming websites that offer free content without permission of the rights holder. [...] Those accessing the streams are unlikely to be infringing copyright, however. As you can see, there is a variety of expert opinions on whether streaming pirated movies is an infringement. The section under debate is 30.71 on temporary reproductions, especially subsection (b): It is not an infringement of copyright to make a reproduction of a work or other subject-matter if (a) the reproduction forms an essential part of a technological process; (b) the reproduction’s only purpose is to facilitate a use that is not an infringement of copyright; and (c) the reproduction exists only for the duration of the technological process. I don't want to duplicate what articles above have already stated, but I'd like to dive deeper into Bishop v. Stevens, [1990] 2 S.C.R. 467, cited by the first two articles as a similar case (reaffirmed in 2015 after a few rounds of statute amendments). In it the Supreme Court held that prerecorded "ephemeral" copies used to facilitate a broadcast was an infringement. The key piece of reasoning is: [... the broadcaster] has not established that, at the time of their enactment, the sections of the Act providing for the right to broadcast a performance must have been understood to include the right to prerecord. Even now it remains fully possible, and quite common, to broadcast live performances. To me, there are two key differences why this logic might not directly transpose to the streaming pirated movies situation: "Ephemeral" prerecorded copies aren't necessarily "temporary" copies within the scope of section 30.71 above, particularly subsections (a) and (c) might not strictly be met. This case discusses the point of view of the broadcaster which is analogous to the hoster, not the end-user. While making ephemeral/temporary copies might not be strictly necessary for broadcasting, viewing online content necessarily creates at least a temporary copy on the end-user's computer. Two other random notes: None of the involved sections have a "reasonableness" or "should have known" clause whereas they are present in other parts of the Copyright Act. This means whether its legal should theoretically depend strictly on the facts (i.e. if it turns out to be illegal, pleading "oh I didn't know it was pirated" won't work). Funny enough, I don't actually see anything in the law that would differentiate between streaming online pirated video and your example of something illegal being aired on TV provided its digital (presumably some part of the TV has a temporary copy too). | Both the displayed site (including all text and images) and the html, css, javascript and other code that generates the display are protected by copyright. This is true in pretty much every country. You would not be able to reuse them lawfully without permission, unless an exception to copyright applies. If no exception applies, and you have not obtained permission, this is copyright infringement. In most cases copyright infringement is treated as a tort (a civil matter), not as a crime. This means that law enforcement generally will take no action and have no interest in such a situation. The copyright owner could sue for infringement, and possibly collect money damages. In the US, statutory damages can be as high as $30,000, or up to $150,000 for "wilful" infringement, or as low as $750 (per work infringed). Or actual damages can be collected instead. In other countries, actual damages plus costs of suit are more likely, but the rule can be different in each country. The possible exceptions to copyright vary significantly in different countries. In the US the major exception is Fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? and I have a question about copyright. What should I read before I ask it? for more information In general short snippets of code can probably be used under fair use, but substantial parts of the code or the displayed site are less likely to qualify as fair use. And if it is illegal then why are there so many legal open source or paid software and applications for cloning of website like httrack, cyotek, webcopy etc? Most of these tools have legitimate uses, including learning how a site is constructed without distributing copied content; and cloning or partial cloning of a site with permission. Even if the tools were mostly used for unlawful copying, that might well not be a high priority for law enforcement, and cross-border law enforcement (which this in many cases would involve) is often much harder for the police and other authorities. | The notice has a lot to do with legacy requirements in the United States to claim the copyright to a work. Up until 1989, the copyright notice was required. Today, the statements are mainly maintained to protect against "innocent infringement" which might reduce what a content owner can get in court. What exactly do those terms entail? That the owner stated owns all rights and you may do nothing with the content. My biggest concern is this: by writing that, is the company claiming to own everything on the website, even potentially copyrighted user-submitted material? That's exactly what they are doing. Depending on the terms of the specific site, content contributors generally either assign copyright to the site owner or license the content in a way that allows the site owner to do exactly what they want with it. Site creators with the smarts or money to do it right/get someone to do it right usually state something like: Copyright [Site Owner] and contributors. Other sites (like this one) state specifically what they hold the copyright to: site design / logo © 2015 Stack Exchange Inc THIS IS NOT LEGAL ADVICE. CONSULT AN ATTORNEY REGARDING YOUR SPECIFIC SITUATION. | Although you aren't interested in the TOS, you should be. You are not allowed to make any copy of other people's stuff without permission. The TOS is how you get permission. First, the author uploads his material to You Tube, because he has an account and the TOS associated with the account specifies the license that he grants to You Tube and the world – same thing with Stack Exchange. The TOS says (roughly) "when you upload stuff, you give permission for others to access your stuff using the You Tube interface". Content-consumers likewise are allowed to stream content using their interface, but not generally download. (The license terms changes over time – previously there were more license types). Specifically, You are not allowed to: access, reproduce, download, distribute, transmit, broadcast, display, sell, license, alter, modify or otherwise use any part of the Service or any Content except: (a) as expressly authorized by the Service; or (b) with prior written permission from YouTube and, if applicable, the respective rights holders; and they don't expressly authorize ordinary download, you have to use their interface. You might also directly contact the author of the work in question and negotiate a deal where you can directly acquire a license from the rights-owner. But if you want to access the material via You Tube, you have to do it in a way that is permitted, and You Tube says that you're not permitted to download. Any "copying without permission" is infringement. |
DMCA Takedown and counter notice when service provider There's something I have trouble understanding. My app is considered a service provider and registered with copyright.gov Some time ago someone found some copyrighted work and filed a DMCA notice to google to remove my app. I tried explaining in the counter notice that I'm a service provider, and that I publicly displayed the address and the template DMCA notice that should be sent to us. Google's response has been so far nothing, just that the request is denied. I'm a bit lost as to what I did wrong and what I should have done. The app had 500K+ downloads with a very high rating and it's all lost now. | You are not supposed to "explain" anything. See this site: http://www.dmlp.org/legal-guide/responding-dmca-takedown-notice-targeting-your-content What you have to do is to state, under penalty of perjury, that you have a good faith belief that your material was wrongly removed. That's it. Nothing more, nothing less. Google (or whoever the host is) doesn't care and shouldn't care about the actual copyright situation, only whether you supplied a counter notice where you state that your material was wrongly removed. Now Google should reinstate your app (however, since nobody can force them to host your app at all, I suspect they can remove it at any time for any reason), and whoever put in the DMCA claim can then go and sue you for copyright infringement. If they do, you can use as a defence that they could have and should have a DMCA notice to you. The whole DMCA is about your host, here: Google, to remove itself from any copyright infringement case. By following the rules for a proper notice and proper counter notice, they achieve that. And then the matter is between the complainant and you. | We cannot and will not try to answer "what should i do?" questions here. Nothing in the linked page makes me think that the views expressed in the previous question here are any less correct. They certainly have not changed the law on copyright. The linked page is an open forum. Many of the posts o9n that thread express ill-informed and incorrect views of how copyright works, and what it protects. Several google searchs find no trace of the suit described in the thread. Note that in US law no copyright claim may be heard in a small claims court, except for the federal copyright office's small claims tribunal. I am not sure if the same is true in Canada, but it might be that the suit was simply dismissed on such a basis. In any case small claims cases do not establish legal precedents in Canada or the US. Of course it is true that anyone can sue over almost anything, even when there is no valid legal basis for the suit. If the suit had been won by the claimant, or even settled that would be larger grounds for worry. A person seriously worried over publishing a book such as that described in the question might do well to consult a lawyer with relevant expertise. A single consultation plus an opinion letter might not cost very much. But 17 USC 102 (b) is very clear that copyright never protects facts, as are the copyright laws of other countries. Note that reports of the events of sports matches are not protected by copyright, although expressive language and analysis may be. 17 USC 102 (b) reads: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Article 2 paragraph (8) of the Berne Copyright Convention provides that: (8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information. There seems little room for copyright protection of the moves of chess games. | Summary from comments. (Hat tip @jqning) Daniel Nathan Ballard writes here: [It] is not only improper it is UNLAWFUL and may result in serious repercussions... Such a misuse may constitute false advertising... (“It is no doubt true” that affixing the ‘Trade Mark Registered U.S. Patent Office” notice on goods that are not protected by a federally registered trademark creates “a prima facie case of fraud against the public… .”). ... Such use is also a form of “unclean hands” that can bar the user’s registration of the mark. ... Such a use may also bar the maintenance of an infringement case. ... And the fraudulent use of the trademark registration symbol DOES provide other marketplace participants with standing to oppose the user’s registration of the mark. http://www.avvo.com/legal-answers/use-of---symbol-but-not-federally-registered-1125746.html | This is not (necessarily) copyright violation It's possible that Quora's usage falls within Fair Use. At the very least, the argument could be made. If it does, then there is nothing that Stack Exchange or the OP can do. Stack Exchange can choose not to protect their copyright Unlike trademarks, which lapse if not protected, copyright endures. Therefore Stack Exchange can pick and choose the copyright fights they want to get involved in and those they don't. If you have brought it to the attention of the copyright owner (or, in this case, licensee) and the copyright owner chooses not to act then you have done all you can and significantly more than you have to do. The OP has copyright I note that one of the examples is your question. As the copyright holder, you are free to issue a DCMA takedown notice on Quora if you feel your copyright has been violated. | If the app (and the service accessed from the app) truly doesn't have any EULA, ToS, or license agreement, to include restrictions on reverse engineering, you can probably create an alternate front end, so long as you aren't using their logos, etc. However, their data may be a different beast, depending on the nature of it. For example, extracting data from Twitter would potentially violate Twitter's license on the original text copyright held by the authors in question. Wikipedia explicitly includes redistribution in their license agreement with authors/content creators. If all you are extracting and storing is the temperature at a particular weather station, you might have less of a concern. Anything beyond merely factual runs the risk of a copyright infringement as you store the data in your own database. | There is language, but not a mechanism, covering this. Section 3(a)(3) of version 4 licenses says If requested by the Licensor, You must remove any of the information required by Section 3(a)(1)(A) to the extent reasonably practicable. If you become aware of a person using your material and attributing you, and you want the attribution removed, you would accordingly notify them (somehow), and they are required to remove the offending material. The removable informations includes: i. identification of the creator(s) of the Licensed Material and any others designated to receive attribution, in any reasonable manner requested by the Licensor (including by pseudonym if designated); ii. a copyright notice; iii. a notice that refers to this Public License; iv. a notice that refers to the disclaimer of warranties; v. a URI or hyperlink to the Licensed Material to the extent reasonably practicable; | The "Standard Youtube License" or TOS reads You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of YouTube or the respective licensors of the Content. That stipulates no "free usage" and as such, you cannot use a screenshot ("Content") without permission or license from the copyright owner anywhere in your own work or on a platform such as Wikipedia that requires permissions from the copyright owner. You are legally OK with (preferably written) approval and license from the creator for use of a screenshot on Wikipedia, because such an written agreement will satisfy Wikipedia's requirement of owner approval for the use of another creator's work on Wikipedia and gives you written permission and license to use the work on Wikipedia. Simply contact the copyright owner and ask for permission. If you do not have the owner's permission and still use a screenshot, and are confronted with copyright infringement by the owner or Wikipedia, your use of a screenshot may fall under Fair use. The important qualifier is may. You being able to prevail with a Fair use defense - worst case, if taken to court, or at very least, Wikipedia taking down the screenshot under a DMCA request - is not guaranteed, because a judge would make that decision, based on the evidence of the usage and their determination if, in fact, a screenshot is Fair use. Fair use (Chapter 1 - Circular 92 | U.S. Copyright Office) stipulates that usage is legally permissible when (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole is not considered to be substantial enough is an infringement of copyright of the whole work. Who determines what is what is "substantial enough"? A court. The court could take into account (4) the effect of the use upon the potential market for or value of the copyrighted work. in determining your usage is Fair use, or damages if the court rules against you. You do risk copyright infringement without clear permission from the copyright owner, and you risk Wikipedia being send a DMCA takedown notice. Whether or not you are the subject of a copyright infringement lawsuit is up to the copyright owner, and if that happens, whether you prevail is up to the court. | Exactly the same way it works over all other content There are no special classes of copyright, there’s just copyright. What a user of a service may do with copyright materials will be spelled out in the licence. If there is no licence, then they are left with fair use/fair dealing. |
Can I sue a client for the 'delta' in price if I accepted his (insulting) offer? I have a client who refuse to respect one of the clauses in our contract and offer an alternative for much less. Short version: client must provide me a suite in his hotel that costs $10K for a night based on a contract we held in the past (the contract has expired as of 31-Dec-18 but he never rendered the service because I didn't ask for it. We agreed that when time present itself he will render the service). For some reason, he offers me to have a 6K for the night and argues that it's the same. Question: assuming I accept his offer (with reservation) and take the nights for 6K do I still have the (reasonable) right to sue him for the remining 4K? My concern is that a judge or accepted mediator would say: well since he rendered you the service and you accepted it - you can't claim anything anymore? so alternatives: 1. accept the offer and sue for the delta (4K) in small court 2. Not accept the offer and sue for the entire amount but that will be in civil court (which I assume takes more time and I may need to use a lawyer). (I have already reasoned with the client but he stays firm in his position). | client must provide me a suite in his hotel that costs $10K for a night based on a contract we held in the past (the contract has expired as of 31-Dec-18 but he never rendered the service because I didn't ask for it. The contract mentioning $10K has expired and is no longer relevant. You had a chance for a $10K suite before 31 Dec 2018 but you did not take it. There is no obligation on the client to keep this chance for you indefinitely. What happens now ($6K suite) is a completely new contract you have accepted. You are not entitled to anything in relation to the $10K suite from the past opportunity. | No, you cannot sue When you signed up to Uber you agreed to their Terms and Conditions. In Section 6, you agreed that disputes should be settled first by Mediation and, if that fails, by binding Arbitration - both under the respective International Chamber of Commerce Rules. These will be have their seat in Amsterdam and be conducted under Dutch law. This does not mean that you will need to travel to Amsterdam - you will be able to participate remotely. Notwithstanding, the Australian Consumer Law (ACL) cannot be excluded by contract or choice of law clauses and will still apply. Of direct relevance here is the consumer guarantee (Part 3-2) that services will be provided with "reasonable skill and care" and that this is a 'consumer contract' and subject to the unfair contract provisions of Part 2-3. The dispute resolution clause 6 is not unfair - Australian law supports alternative dispute resolution and a term is not unfair if it is allowed by law. The Disclaimers; Limitation of Liability; Indemnity Clause 5 is problematical for Uber as, while limitation of liability clauses are not ipso facto 'unfair', when the seek to limit liability for a breach of a consumer guarantee, they must be limited to what can be excluded by s64A. As written, these are far broader and, notwithstanding the savings clause about 'applicable law' they would probably be held to be misleading. A misleading term is ipso facto unfair. You may be able to approach the court to have Clause 5 declared an unfair term under s250 before proceeding to arbitration - the court may defer that decision to the arbitrator of course. You can, of course, sue the driver. Uber maintains that their drivers are contractors and not employees (which may or may not be true). If Uber is right, you have no contract with the driver and are free to bring a negligence suit. | AA "requests" that you remove batteries from checked laptops and put them in carry-on luggage. You must, per their contract of carriage, "comply with airline safety rules", and they say that they can deny you boarding if you do not comply, which includes "Are uncooperative, abusive, harassing, or show the potential to be while on board". You might then hope to sue them because you didn't violate any safety policy of theirs but they denied you your seat, but there's nothing in the contract that states "The following is a complete list of policies". You should discuss this in more detail with your lawyer, but on the face of it there is no legal recourse, except of course a refund. | Does B have a legal obligation to inform A that changes were made to the document? This is definitely not a simple yes-no question. One ought to consider not only the tenets of contract law, but also notions of equity and of public policy. On the one hand, courts acknowledge modified contracts that result from a battle of the forms. On the other hand, sliding changes in the contract without adequately directing the counterparty's attention to them tends to contravene the contract law covenant of good faith and fair dealing. In the scenario you outline, imagine the inefficiency and risk of mistake if the parties engage in several rounds of offers and counter-offers by sliding changes scattered all over the latest draft of a contract (this is totally feasible, especially as laws nowhere limit the number of times a party can make a counter-offer). Unless each party is conspicuous about his latest changes to the contract, the dynamics can easily become a matter of which party inadvertently binds himself to unacceptably detrimental clauses (some of which might re-occur after being stricken in a previous draft). This hinders the contract law prerequisite that a contract be entered knowingly and willfully. Although the parties are responsible for reading the contract, subjecting the offeror/offeree to devote valuable resources each time a newly altered contract goes from one direction to the other seems contrary to public policy. Furthermore, that defeats the purpose of negotiations and of the prior efforts each party spent toward the contract (such as valuations and risk analysis). I'm just curious to understand what legally prevents this type of things from happening in general. An offer may include language to the effect of accepting the contract 'as is'. See the provision in the Uniform Commercial Code (for instance, see MCL 440.2207(2)(a)) whereby alterations are precluded "[if] the offer expressly limits acceptance to the terms of the offer". The aforementioned statute also precludes terms which significantly alter the contract. See MCL 440.2207(2)(b). In a context of loan contracts --apropos of your example--, a borrower's unilateral alteration of the interest rate, of payment schedules, etc. constitute material alterations. Indeed, financial institutions are utmost sensitive to changes in interest rates and the timing of cash flows. Even in the case of an offeree's immaterial alterations of a contract, an offeror might prevail under principles of equity. This is more evident in the case of entities which enter and manage a multitude of contracts simultaneously, be it via contracts of adhesion or upon negotiations with each counterparty. In line with my point on public policy, the additional cost of filtering a counterparty's last minute occurrences would make it impossible for economies of scale to develop. | It sounds like you've read about two party consent and public spaces. But while anyone can sue, it's winning a case that's relevant. "My client respects the applicant's beliefs, but choosing to express beliefs in such a way during a job interview indicated sufficiently questionable judgement that my client was unable to consider the applicant further for the advertised position." "It has also become apparent that the plaintiff was not acting in good faith in making an application for employment." Court finds for the defendant and orders the plaintiff to pay costs. | There is no contract Specifically, an agreement to agree is void for uncertainty. If the total cost of shipping was an insignificant fraction of the value of the contract then there might be sufficient certainty - that is, it could be argued that the buyer (or seller) has agreed to pay a reasonable rate for shipping. However, in the context of most items on the site this is unlikely to be the case. As an aside, your use of the term "rescind" is incorrect. Rescission occurs when one party breaches a term of the contract and the other party elects to terminate (and optionally seek damages) in response. The correct term for both parties agreeing to release the other is "termination by agreement". | You want a lawyer who accepts tenant-side landlord tenant cases, usually a solo practitioner or small law firm or legal clinic. Medium to large sized law firms usually don't practice that kind of law at all, or only represent landlords, as a matter of policy. The usual problem, however, is that lawyers are often too expensive relative to the amount in controversy to make sense to hire to fully represent you in a matter like this one. You might want to have a "limited engagement" such as a one time consult with a lawyer, rather than a full retention of a lawyer, over an issue like this one. | 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. |
Legality of putting ads on an academic studying tool that contains user-generated content? I made a web app that helps users generate interactive study notes, which facilitates their studying. The nature of this kind of user-generated content is that it will inevitably contain copyrighted material from textbooks and other studying material. This situation is very similar to that of studying tools like Quizlet. My question comes in 2 parts: Is it legal to put ads in my web app if it contains user-generated material that may contain copyrighted material? If I don’t put any ads, is it considered fair use to operate a web app like this? | Fair use is a four-factor test. Whether the use is commercial is part of just one of the four factors. Fair use is determined on a case by case basis, and it would be rather silly to assume that everything a user could post would be covered by fair use. Rather than just rely on the possibility of fair use, you may want to utilize the DMCA protections. Doing so can protect you from copyright liability for the user-generated content. You will have to register a DMCA agent, and expeditiously respond to takedown notices and counternotices. | Cheating is not a legal concept, fraud is. Obtaining an essay written in India or by your mother is not fraud. Fraud comes in inducing the university to give you something of value (a passing grade, or perhaps admission) based on a material false statement ("I wrote this myself", or making false statements about your interest in tennis). A number of people were recently charged with various forms of fraud (mail fraud and honest services mail fraud) for similar actions (spelled out here). I do not know of any case where a student has been criminally prosecuted for turning in a purchased essay, but in principle it could happen. | Makerbot's explanation of the Terms is accurate This is comparable with most other services that host and display User-created content - even with SaaS providers, as per Interpretation of content ownership/usage in service provider agreement. They are correct that they are asking for the lots of broad rights, but it's all qualified with (my emphasis): 3.2 License. You hereby grant, and you represent and warrant that you have the right to grant, to the Company and its affiliates and partners, an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site and Services. That is, if they use your User Content for a purpose other than including it in the Site and Services (and you have not agreed to this use), you may be entitled to relief in the form of an injunction or damages. | Pretty much everything you need to know about the ownership and licensing of your material on Medium is in the Medium TOS you contractually agreed to when you signed up with the service. Basically, you granted Medium a license to use the work, but you did not agree to an exclusive license nor turn over copyright to them. Part of that Terms of Service – Medium Policy reads: Content rights & responsibilities You own the rights to the content you create and post on Medium. By posting content to Medium, you give us a nonexclusive license to publish it on Medium Services, including anything reasonably related to publishing it (like storing, displaying, reformatting, and distributing it). In consideration for Medium granting you access to and use of the Services, you agree that Medium may enable advertising on the Services, including in connection with the display of your content or other information. We may also use your content to promote Medium, including its products and content. We will never sell your content to third parties without your explicit permission. You’re responsible for the content you post. This means you assume all risks related to it, including someone else’s reliance on its accuracy, or claims relating to intellectual property or other legal rights. You’re welcome to post content on Medium that you’ve published elsewhere, as long as you have the rights you need to do so. By posting content to Medium, you represent that doing so doesn’t conflict with any other agreement you’ve made. By posting content you didn’t create to Medium, you are representing that you have the right to do so. For example, you are posting a work that’s in the public domain, used under license (including a free license, such as Creative Commons), or a fair use. We can remove any content you post for any reason. You can delete any of your posts, or your account, anytime. Processing the deletion may take a little time, but we’ll do it as quickly as possible. We may keep backup copies of your deleted post or account on our servers for up to 14 days after you delete it. Pertaining to presenting Medium content in an iFrame on another site, this is reasonably close to not allowing that: You may not do, or try to do, the following: ... (2) access or search the Services by any means other than the currently available, published interfaces (e.g., APIs) that we provide;... You can use Embed Code Generator | Embedly to embed an iFrame of a Medium page on another site. But contacting Medium via the email at the bottom of the TOS would tell you for sure if it is OK. Comments on your pieces on Medium do belong to the owner. And You own the rights to the content you create and post on Medium. appears to cover the idea of copying your material from Medium to your own site. If in doubt, ask them. | Exactly the same way it works over all other content There are no special classes of copyright, there’s just copyright. What a user of a service may do with copyright materials will be spelled out in the licence. If there is no licence, then they are left with fair use/fair dealing. | You are asking the wrong question. It should be: When you have downloaded the content and metadata, what are you allowed to do with it and what is forbidden? Somebody owns the copyright to the text and images in the thumbnail. This could be the operator of the third party website, or that site has licensed the content from yet another party. You haven't licensed it from anybody. So you can watch the content in accordance with the TOS, and your computer can evaluate the metadata to do it, but you cannot display it on your own site. Details will differ between jurisdictions, of course. You might also be held responsible for illegal content in the thumb you generate. Follow-up: There seems to be some question of what 'thumbnail' and 'card' mean in this context. This answer assumes a somewhat scaled-down representation of the content of the entire page, not just a collection of actual metadata like content length and expiry. | The first question is whose law you are concerned with, since in principle you might have violated copyright law in any country, and might be sued under the laws of multiple countries. The US has a concept of "fair use" which is notoriously difficult to apply. When you are sued in the US, you can defend against the allegation by arguing certain things: telegraphically, this includes purpose and character of use, nature of the work, substantiality in relation to the whole, and effect on market. Plus there is a 5th factor to be considered, transformativeness. The court then weighs these factors to decide if the use is "fair". By reading existing case law on the topic (conveniently available from the US Copyright office) you might develop a fact-based opinion of the risk: you would be vastly better off hiring an attorney who specializes in US copyright law to do an analysis for you. Do not hire a programmer to give you legal advice (do not hire an attorney to debug code). You would "fail" on the test of substantiality in that you are copying a highly substantial portion of the original work(s). You would "win" on nature of use (research especially non-profit and commentary are the underlying purposes that drive fair use law). It's not clear how you would fare w.r.t. nature of the work, which is intended to distinguish the extremes "news report" and "literature and artistic work" where copying news is at the fair use end of the spectrum. It is not clear how you would fare on "effect on market", but probably not so badly: are you avoiding some licensing fee? Coupled with the tranformativeness consideration, you are most likely having no effect on the market, since the product that you will distribute is not the original work, but a scientific conclusion about the work. Germany has different laws, and this article would be relevant if you cared about Germany. There was a change in the law that expanded the analog of fair use pertaining to research use. That law allows 15 percent of a work to be reproduced, distributed and made available to the public for the purpose of non-commercial scientific research. That, b.t.w., does not refer to what you are planning to do (unless you also publish quotes); for personal scientific research you may reproduce up to 75 percent. Since this is a new law only a year old, you could become part of the cutting edge in testing the limits of the law. So the standard disclaimer applies: ask your attorney. But note section 60d of the law which legalized data mining, and is squarely on point: (1) In order to enable the automatic analysis of large numbers of works (source material) for scientific research, it shall be permissible to reproduce the source material, including automatically and systematically, in order to create, particularly by means of normalisation, structuring and categorisation, a corpus which can be analysed and to make the corpus available to the public for a specifically limited circle of persons for their joint scientific research, as well as to individual third persons for the purpose of monitoring the quality of scientific research. In such cases, the user may only pursue non-commercial purposes. (2) If database works are used pursuant to subsection (1), this shall constitute customary use in accordance with section 55a, first sentence. If insubstantial parts of databases are used pursuant to subsection (1), this shall be deemed consistent with the normal utilisation of the database and with the legitimate interests of the producer of the database within the meaning of section 87b (1), second sentence, and section 87e. (3) Once the research work has been completed, the corpus and the reproductions of the source material shall be deleted; they may no longer be made available to the public. It shall, however, be permissible to transmit the corpus and the reproductions of the source material to the institutions referred to in sections 60e and 60f for the purpose of long-term storage. | It's a contract violation if you're under the EULA. It may be a contract of adhesion, but such "clickwrap" contracts been found to be acceptable and enforceable in software EULAs out of necessity. However, there may be some limits. If you're not under the EULA, as you argue, then you lack a license to use the software at all and it's an outright copyright violation and/or a theft or misappropriation of the software. Whether or not you can be sued depends in part on what you do with it — if you don't release the material or otherwise cause damages then there's not much to sue for... Added for clarification: to answer the framing question, supposing neither contract or copyright applied, one could be sued in tort or in equity (i.e. for unjust enrichment). |
Congress and Trump's Tax Filings I am very interested in Congress subpoenaing the IRS for Trump's individual Tax Return for the last 6 years. I realize they have oversight. But it would look to me as an one outside of the law profession, that they can ask the IRS for any type of report they want, along with the limits of what ever group they want, but to ask for a single individual return would fall outside of over sight. Do you see the congress as being able to subpoena the IRS to provide any private individuals tax return as oversight? It sure looks like weaponizing the IRS to me. It just looks like the perfect way to eliminate any political adversary. The law I am seeing that is in question is 6103(f) 6103(f) Disclosure to Committees of Congress (1) Committee on Ways and Means, Committee on Finance, and Joint Committee on Taxation Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure. Does it look normal to you that the Congress would request the Return of any single individual? | The law you cite says that the Secretary shall furnish such committee with any return or return information specified in such request That includes specific individual returns. That it was intended to include such returns is made clear by the provisions restricting identifiable individual data to executive session. Whether this ought to be the law might well be debated. Whether the House ought to use this law as a way to get at Trump's returns could also be debated. Those are matters of politics, or perhaps ethics, not law. Whether some other provision of law overrides this provision in this case is pretty clearly going to be argued in court, and we will see what the decision is. I won't try to predict it here. | Article 8 is pretty clear. The fact that it is recommended to extend the draft to women indicates that there is a conflict needing resolution. A relevant case before the European Court of Human Rights ruled on this and found the law to violate articles 14 and 8 of the ECHR. They identify an exoneration from the tax under the Military-Service Exemption Tax Act sect. 4. Reading the judgment could be helpful (maybe you know the case). What I get from it is that there are a bunch of situation-specific details that could be applied (e.g. you have to first complain formally in-country before going to ECHR), and issues of disability level and the distinction between disability and illness. This gives a model for anyone to attempt to resist the tax, but only a change in the law will get rid of it. | Because the nations that made the list (which was modified at the time of the SCOTUS hearing) were selected based on their ability to provide the US with documentation for vetting of immigrants (or rather their lack of an ability), not religion, and the courts give the legislature (Congress) and the executive branch (President) wide discretion when matters of security are involved as they are related to foreign relations where the Judiciary have very limited powers. The specifics of the law which the Executive order modifies do not limit the President beyond a bona fide reason for which the selection was made. The court also ruled that the document contains no mention of any religion specifically or any matters pertaining to religion, and that several nations on the list have no Muslim Majority (they cite 2, but I am only aware of Venezuela being on the list). Additionally, the nation of Chad was removed from the list after their standards were brought up to scratch. In the original opinion, they did say that the campaign remarks were considered in that they pointed to the plaintiff's standing in the case (you need to show a potential harm is inflicted on you by the law in order to get a court case. Or in other words, I cannot ask the court to hear a case on rights of a vampire, because I am not a vampire) but found that the request to probe for malice in the minds of the President and his staff was not an area they could tread as there was a good reason for the law and several prominent Muslim Majority nations were not included. Basically, if the government could show that the order was made by some objective standards that neither favored nor disfavored a religion, then it is not a violation of the first amendment. For five of the justices, the government satisfied this requirement.* *Note, I am still reading through the ruling... my PDF of it keeps crashing and I lose my place. | The Commander-in-chief powers are quite broad. The War Powers Resolution limits his ability to engage unilaterally in military action, by requiring him to report to Congress within 48 hours, and if Congress disapproves, troops must be removed after 60 days. However, this law pertains to armed forces, and would not apply to remotely-launched missiles. Additionally, it is unknown if the resolution is unconstitutional (presidents say it is). No law at all requires POTUS to obtain permission from someone else, in order to engage in a military action. Article 90 of the UCMJ states that it is a punishable offense to "willfully disobeys a lawful command of his superior commissioned officer". The manual also states that An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime. Murder of a civilian is an example. It also says The lawfulness of an order is a question of law to be determined by the military judge. "Shocking the conscience" is not a grounds allowing disobedience. One can only conjecture how a military judge would evaluate the lawfulness of a presidential order, when there is not a shred of legal evidence that such an order is in fact illegal: I conjecture that the order would be found to be lawful. | First of all, there is a distinction between being impeached and being convicted. Trump was impeached when the House voted to adopt an Article of Impeachment. That happened while he was still in office. He will not be convicted until the Senate votes to convict him by a 2/3rds vote, if it ever does. In the case of Nixon, the House had not yet voted to adopt Articles of Impeachment when he resigned. They had been introduced and debated, but not yet finally approved. Moreover, we don't know what would have happened if the House had proceeded to pass such articles after Nixon had resigned. The House of that time did not choose to proceed. There was no court ruling saying that they could not do so. There are some precedents saying that the Senate can proceed with a trial after an official resigns or is expelled after impeachment. None of these are at all recent, none are clear cut, none involved an official whose term had ended, none involved a President, and none that I am aware of led to a conviction. And this issue has never been tested in a Federal court. Specifically, there is the case of William Belknap. Belknap was Secretary of War under US President Grant. He was accused of improperly profiting from military contracts. The House started impeachment proceedings. Grant interviewed Belknap, who confessed to Grant and resigned on the spot. The house none the less pass five articles of impeachment after Belknap resigned. When the Senate took up the case, there was a motion to dismiss on the ground that the Senate did not have jurisdiction because of Belknap's resignation. By a vote of 37–29 the Senate held that it had jurisdiction and that a trial should proceed. The vote to convict Belknap was 35 for conviction, 25 against it. This was five votes short of the required 2/3rds to convict. Most of the Senators voting against conviction were on record as doing so because they did not agree that the Senate had jurisdiction. Thus a majority vote of the Senate held in that case that such a trial was proper, but less than 2/3rds. (Most also indicted that they thought the charges true.) There was also the case of William Blount. Blount, a Senator, was impeached by the House in 1798. (In fact this was the first impeachment ever under the US Constitution.) The Senate voted to expel him. When the articles of impeachment came up in 1799, the Senate voted to dismiss the impeachment, on the ground that the impeachment process did not extend to members of the Senate, but not on the grounds that the expulsion rendered the proceedings moot. Should Trump be convicted by the Senate (which now seems unlikely) he might bring a court case claiming that such a conviction was unconstitutional. There is no knowing how a court would handle such a case. And if Trump is not convicted, no such case will be brought this time, either. This Washington Post opinion piece by two Constitutional scholars claims that such a trial would be constitutionally proper. It also claims that it would not have been proper had the vote to adopt articles of impeachment occurred after Trump had left office. Others have taken different positions. Whether a Senate trial of an impeachment is constitutional after the person impeached has left office is a hotly debated question at the moment. There has never been a court ruling on the point, and neither of the precedents is of a situation quite matching the current impeachment of Trump. No court has ruled on the matter. The Senate did not vote for a motion to dismiss the impeachment on those grounds, although if every senator who voted for the motion voted to acquit, Trump would not be convicted. From the comments I wish that any downvoters would leave a comment indicting what thy think is wring with this answer. In the absence of a comment, I cannot improve the answer, others cannot use the reasons to write better answers, and readers have no idea why someone objects to the answer. Such a downvote seems pointless. I have updated this answer with a discussion of the Blount and Belknap precedents. In neither case did the Senate actually vote to dismiss the articles because the accused was no longer in office, although that seems to be a major reason why 25 senators voted against convicting Belknap. | 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 | Most secret service details are protection for heads of government/state and thus their details would be afforded Sovereign Immunity (Such as POTUS, VPOTUS, and First and Second Families) OR Diplomatic Immunity (visiting dignitaries and leaders of other nations). Typically there are more diplomatic ways to handle the cases in the latter. In the former case, thus far, it has not been handled. During visits, the traditional Executives and Families are usually closely guarded by the Service with additional law enforcement form local jurisdictions called in to aid in the protection, usually to secure routes the Motorcade will take to a designation (I speak from personal experience, POTUS coming to town is a nightmare on traffic). If they are speeding, they are typically doing so down a completely empty highway with police escort. From this point, most under of the Service would be monitored and controlled so closely, at least one Agent would notice if any protected was committing a crime and would have to write it up in a report. There is also considerable debate in legal circles if the President and Vice President could be arrested for a crime while in office, with the general acceptance being that they could not and would need to be impeached by congress. Secret Service will continue to protect former Presidents and Vice Presidents for life, along with their spouses and children up to a certain age. With all that in mind, it would not so much be that the Secret Service would prevent arrest of an individual under their protection so much as the Secret Service would be the arresting authority. As they are law enforcement agents under the Federal Government, they can legally arrest people and then hand them to the proper law enforcement agency to effect the arrest. This would mostly happen with candidates for office OR former presidents OR family at any point in time as the scenario described is a bit harder to make a legitimate arrest. In fact, the Secret Service does have arrest authority with one of the highest conviction rates of any Law Enforcement Agency in the Country. It's just most crimes they arrest have nothing to do with threats to those under their protection. The Secret Service is also charged with investigation of counterfeiting of US currency and they are very good at it. This was actually their original sole function in the U.S. government and they still exist under the Treasury Department to this day. At this point, if you're wondering how they got the job of protecting important people in the executive branch from that, well, it's simple. At the time of his assasination, the legislation to create the USSS was on Licoln's desk. At the time of their creation, the only other Federal Police services were the U.S. Park Police, the Postal Inspection Service, and the U.S. Marshals. The first two had specific jurisdictions and the Marshals were undermanned so the USSS was tasked with investigating all sorts of financial crimes and quickly became the most successful U.S. Law Enforcement Service. They were also the first U.S. Intelligence and Counterintelligence agency (though they no longer are part of the Intelligence Community) until the FBI took on those duties. So following the Assassination of William McKinley in 1901, Congress authorized them to take up full time Presidential Protection because at the time, they were pretty much doing everything else. | The IRS Criminal Investigation division is typically going to be the arresting agency, assuming that (1) the offense is treated as a criminal matter; (2) a warrant is actually issued; and (3) anyone actually sets out specifically to serve the warrant. It is usually the case, though, that the violation is handled as a civil matter. When it is treated as a criminal violation, the defendant and the Service often reach an agreement that eliminates the need for an arrest. If there is a warrant, though, any police agency could theoretically make the arrest if they happened across the defendant. But if it's a time-sensitive investigation -- if the defendant is expected to flee or destroy evidence, for example -- it's a safer bet that you'll see an actual warrant execution. In that case, you would have CI taking the lead, perhaps with assistance from other agencies. |
UK: Is it legal to secretly audio record a meeting or a phone call? Is it possible to use such recording in court? In the United Kingdom: Is it legal to secretly audio record a meeting (in an office) or a phone call while being a participant? Is it possible to use such recording as an evidence in court or employment tribunal? | To preface my answer, this aspect of UK law is unclear at best and I try to set out general principles where available. If you are acting in a private sphere, then the recording of conversations are unregulated, however this is only for personal use – i.e., should you desire to make notes on what was said for your reference at a later date. Should you wish to share it with a third party, then you would need consent from all participants or be able to demonstrate that it would be in the public interest. If you are acting as an employee or a company, then the situation changes. Firstly, you need to check your contract, whilst this does not constitute a crime, it may be against the terms of your employment. Secondly, a company can only make recordings without knowledge under statutory conditions, such as to establish facts, ensure regulatory compliance or demonstrate standards that are achieved or need to be achieved by training. It is a general principle that conversations recorded without consent are inadmissible in court, particularly in terms of a criminal proceedings. In civil matters, it similarly follows the concept that a claimant should come to court with clean hands. However, judges are usually more pragmatic in civil cases and if parties are aware of the existence of the recording, then it often be subject to usual rules of disclosure, though this may open the creator of the recording to subsequent litigation regarding the illegality of the recording under Data Protection Act or others. | Yes, that might be a violation of data protection law such as the DPA 2018 / UKGDPR, but not necessarily so. It depends on the details, for example on the purpose this camera serves. Background on Fairhurst v Woodard and on legitimate interests Fairhurst v Woodard is a significant case discussing implications of use of video surveillance outside of a commercial context, but it is a complex case due to the multitude of cameras involved and due to the somewhat unrelated privacy and harassment issues. Point 135 is about the Driveway Camera, which only surveilled public property and the claimant's property, but did not view any part of the defendants property. People are free to surveil their own property, and would then be covered by the UKGDPR household exception. But for surveillance outside of their own property, defendant would have to comply with the DPA 2018 and the UKGDPR, for which defendant would have needed a legal basis. The defendant argued that they had a legitimate interest (Art 6(1)(f) UKGDPR): 134. […] The Defendant submits that all his data collection and processing was necessary for the purposes of crime prevention at his property and in the car park However, a legitimate interest always require as balancing test. The legitimate interest can be “overridden by the interests or fundamental rights and freedoms of the data subject” (Art 6(1)(f) UKGDPR). It is not necessary here that these interests, rights, and freedoms are explicitly enumerated in statutory law. Here, a right is claimed without supporting legal basis: 134. […] Claimant submits that her right to privacy in and around her home overrides that purpose. However, a possible basis for this claim would be Art 8(1) of the European Convention on Human Rights, which is part of UK constitutional law: “Everyone has the right to respect for his private and family life, his home and his correspondence.” The court balances these rights and interests very differently for the different cameras. The Ring Doorbell is mainly focused on people who would ring the defendant's doorbell, and only incidentally captures passer-bys. Here, the legitimate interest was found to be valid. On the other hand, the Driveway Camera was mostly trained on claimant's property. Here, claimant's interests, rights, and freedoms override the claimed legitimate interests. Your scenario If the camera records the people living in the Green House when they go to or from their property, then yes, it seems like their rights would be affected. But in your scenario, the context of the camera is not clear: Why was it installed? If the purpose is crime prevention, is there evidence of such crimes in the neighbourhood, or are the cameras intended to counter a speculative threat? What is its field of view? Is it mainly trained on the Yellow House's doorstep and only captures the street as a background, or does it focus on the street? Is the camera's field of view masked off as far as possible to exclude public spaces? Does the camera record continuously, or is it only activated for certain events like when a doorbell is rung or when someone enters the Yellow House property? Does the camera also record audio? All of this is important because it factors into a legitimate interest balancing test. Maybe the Yellow House camera is more like the Ring Doorbell in the above case where the incidental capture of passer-bys was found to be acceptable, maybe it is more like the Driveway Camera that served no legitimate interest. There is no absolute right to be free of all surveillance. Instead, the interests and rights of the Green and Yellow house residents must be balanced appropriately. Where there is surveillance, it must be limited to what is necessary. | This document is a handy summary of US laws. The primary distinction is between one-party and all-party consent states. In California, all parties must "consent" to recording, but in Georgia, only one party has to consent. "Consent" can be implicit, so if someone announces that they are recording, consent has been effectively given (that's not a hard and fast rule: you have to look at the actual case law and statutory language for that state, but usually this is covered by the "reasonable expectation of privacy" part of the law, where you don't have a reasonable expectation of privacy if someone announces that they are recording the conversation). As it happens, there was a case tried in California involving Georgia-to-California calls, Kearney v. Salomon Smith Barney, Inc., S124739 (Sup. Ct. Cal. July 13, 2006), declaring that California law must be obeyed by a person calling into California. The court declined to decide whether a person could be criminally prosecuted for such a violation of the law, but there is possible civil liability. | 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. | There is no way to know for absolute sure. The statutes do not address the question, so one would look at the case law. There appear to be about a dozen wiretapping cases that made it to the court of appeals in Maryland, and none of them involve implied consent (e.g. where it is announced prior to recording that the call may or will be recorded – prior is mandatory). The probability is high that implied consent suffices, since the legislature did not specific require express consent and consent is not generally taken to mean express consent. One can and should hire an attorney who will give you a professional and considered (but not infallible) opinion, if it really matters. | 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. | If you wrote for example "I had thoughts about taking the axe from my garage and decapitating my neighbour", and your neighbour read that, he would reasonably be worried and contact the police. I would take that as a death threat, and the death threat is by itself illegal. There would be some range where I could claim that you were making a death threat and making excuses to avoid legal responsibility. You can have all the thoughs you like, you can write them into your private diary where nobody can read them, but as soon as you publish it, it becomes "speech" and some speech is illegal. | The Canadian law governing interception of communication (wiretapping and recording) is explained here. Canada is a one-party country, so as long as one party (you, for example) consent, this would not be a violation of that statute. That source also believes (not unreasonably) that is would not constitute the tort of invasion of privacy since under the act The nature and degree of privacy to which a person is entitled … is that which is reasonable in the circumstances, giving due regard to the lawful interests of others (bearing in mind that is it allowed w.r.t. Section 184(1) of the Criminal Code: that is, it is reasonable to do so). |
What is "a place where Member State law applies by virtue of public international law"? Art. 3 (3) GDPR mentions that: This Regulation applies to the processing of personal data by a controller not established in the Union, but in a place where Member State law applies by virtue of public international law. What are those places? | It means places that would fall under the EU laws and rules by treaties and things like that. For example, a consulate. The GDPR also applies wherever EU Member State law applies by virtue of public international law. The Recitals provide a single example: a diplomatic mission or consular position. While that case is limited, the rule in public international law established by the Permanent Court of International Justice in Lotus is that a country has any extra-territorial jurisdiction it claims so long as there is not a public international law rule prohibiting the assumption of jurisdiction. Thus, the EU potentially could expand the GDPR scope in the future using this provision. https://www.wileyrein.com/newsroom-newsletters-item-May_2017_PIF-The_GDPRs_Reach-Material_and_Territorial_Scope_Under_Articles_2_and_3.html | There are a few different grounds under which PII can be handled. Perhaps the most discussed at the moment of GDRP introduction is consent, because of the wave of consent-seeking. But there are a number of other grounds. "Necessary for contract execution" is a trivial one, to deliver a pizza you'll need an address. The relevant ground for sanctions lists is also pretty obvious in hindsight, you may process PII in order to comply with legal obligations. Note that this is still an integral part of the GDPR, not an exception to the GDPR. That means you need to apply all the basic GDPR rules. You need to explicitly store where you got the PII from, for which purpose, and you need to document how you're using it. Note that this might be hard - why do you need to store this data? Why can't you just check the list as the moment it's relevant? The GDPR for a large part depends on you justifying your actions, not just in hindsight but already up front. | Art. 17 GDPR Right to erasure (‘right to be forgotten’) The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies: Assuming private messages contain personal data, if at least one of the following points (a..f) applies, it would have to be deleted. (a) the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed; The original main purpose was probably Article 6(1)(b) (performance of a contract). If you delete your account, that would no longer apply. However, for the receiver of the private message, Article 6(1)(f) (legitimate interests pursued by a third party) would apply. The receiver might still want to read that message. So there is still a purpose to process this data. So point (a) does not apply. (Note that a Facebook private message can be considered a hosted version of SMS messages. A receiver does not expect SMS messages to be automatically deleted after they have reached the recipient's device. A receiver expects full control of the storage of SMS messages. I think a receiver expects the same for messages on facebook.) (b) the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other legal ground for the processing; Data processing was not based on consent, so point (b) does not apply. (c) the data subject objects to the processing pursuant to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2); Article 21(1) allows you to object to processing based on Article 6(1)(f), unless there are compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject. While I think processing is based on Article 6(1)(f), I also think there are legitimate grounds to refuse your objection. As explained before, the receiver might still want to read that message. The receiver was able before to read your message, so one can assume he/she has already knowledge of the personal data in the message. As it is a private message, no one else will be able to read that message. (At least Facebook will not allow it). So if the message is not deleted, the privacy implications for you are low. That's why I think the interests of the receiver will prevail. However, in the end, a judge will be the only person which can make such a consideration. So you would have to got to court to get a final decision about this. Article 21(2) is for direct marketing, that does not apply to this situation. So I think point (c) does also not apply. (d) the personal data have been unlawfully processed; (e) the personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject; These points do not apply. (f) the personal data have been collected in relation to the offer of information society services referred to in Article 8(1). This data processing was not based on consent, so even if you are a child below the age of 16 years, point (f) does not apply. Article 17(2) and Article 17(3) wont help you either. So in my opinion Facebook is right in this case. | For land ownership records and other similar scenarios such as business directors, the requirement for these to be public will be in legislation rather than a contract - this provides the legal basis, see GDPR Article 6(1c). Additionally when government departments are doing it they also have 6(1e) as lawful basis: "1. Processing shall be lawful only if and to the extent that at least one of the following applies: ... (c) processing is necessary for compliance with a legal obligation to which the controller is subject; ... (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;" -- GDPR, Article 6(1c,e). I'm not familiar enough with the specific legislation that will apply here but pretty sure this will be the case, and having said this you may well find public registries also become less public going forward. The reason ICANN has come under fire, is partly because under GDPR privacy is a protected fundamental right and therefore to comply personal data should be kept private by default and privacy never something you would be required to pay extra for. Any contract ICANN have in place with their registrars will not override legislation, it is in fact the other way around. "2. The controller shall implement appropriate technical and organisational measures for ensuring that, by default, only personal data which are necessary for each specific purpose of the processing are processed. That obligation applies to the amount of personal data collected, the extent of their processing, the period of their storage and their accessibility. In particular, such measures shall ensure that by default personal data are not made accessible without the individual's intervention to an indefinite number of natural persons." -- GDPR, Article 25(2). This doesn't stop ICANN from maintaining a register of domain name owners (registrants), but it does mean they can't just publish all records upon request to anyone anymore - whether people will be granted access to personal data will now depend on if they have a lawful basis for this, and in these cases their processing of the personal data will be limited to those purposes. Being nosey doesn't count! "When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of the contract." -- GDPR, Article 7 (4) - Conditions for consent. What this means essentially, is that if the consent is conditional for the contract it will not be treated as freely given, and therefore not valid - it will no longer be acceptable to contractually bind the provision of a product or service with consent to publish personal data or any other form of processing such as marketing mailing lists. Looking now at the specific points you have raised: "GDPR article 6 allows for processing of personal data on a contractual basis (section 1b)" Whilst this is true, this is only part of it - it doesn't allow for unlimited processing for any purpose and sharing it with any people, if you look at Article 5(b) it states that the information is collected for specific explicit legitimate purposes. Each purpose requires its own legal basis and needs to be compatible with the principles of GDPR. Without consent, ICANN currently does not have a legal basis to make the WHOIS records public for EU citizens and should have adopted some technical controls to require them to opt-in if they wish to be included in the public register. They're coming under fire for non-compliance having been given 2 years to prepare and change their systems/processes. "processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;" Again whilst this is true, not all processing is necessary for the performance of a contract. In the same way people must give consent to receive marketing communications, they must freely give consent for their information to be shared/published (separate to the contract for provision of service) in the absence of other lawful basis for this processing. "Also section 1c, processing is necessary for compliance with a legal obligation to which the controller is subject;" There is no legislation which requires them to publish the personal data of domain name registrants. In this paragraph 'legal obligations' refers to those required by legislation (i.e. statutory obligations), not contracts (or non-statutory obligations) which are covered under Article 6(1b). "And finally section 1e, processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;" ICANN has no official government-assigned authority, and publishing the personal data globally is not in the interests of the data subject's or others' welfare or well-being - this is what is meant by 'public interest'. As far as I can see what ICANN are actually doing to comply seems to be accepted by the European Data Protection Board, they are only 'under fire' as you say because they are late in doing so. The deadline was 25th May 2018 and they had 2 years to prepare like all other organisations. | The university has a legal obligation to collect certain data from attendees, including employees an visitors. It has decided to keep these records in digital form, and offers a smartphone app as a convenience. The university has outsourced the data processing activity to a third party. This is perfectly legal under the GDPR, if that third party is contractually bound to only process the data as instructed, and not for their own purposes. Whereas the university acts as a data controller (Verantwortlicher), the third party would be a data processor (Auftragsverarbeiter). I have some doubts though whether an app or a website is indeed the solution that offers the best data protection, especially taking into account the GDPR's data minimization principle. Requiring updates when entering or leaving any room is potentially excessive. Given the sensitivity of the data, the university should have performed a data protection impact assessment to weigh the consequences of this measure. At least for employees, the measure would likely have to be approved by the union (Personalrat) as well. | It seems clear that this is personal information under the GDPR. If you are subject to the GDPR, you need to have a "lawful basis" to store or process such information. (You are subject to the GDPR if you are locates in the EU, or if your users are. My understanding is that it is location at the time the app is accessed that matters, not a user's citizenship. I am not totally sure about that, however. Unless your app is limited to non-EU access, it it probably safest to comply with the GDPR) The degree of precision of your location data will not matter -- a specific city is quite enough to make it personal data if it can be tied to a specific person. There are various lawful bases that may be relied on for processing and storage, but explicit consent is probably the one with the widest applicability. To use consent as the lawful basis, you must present an OPT-IN decision to the user, and record the results. If the user does nothing, the result must record lack of consent. You may not use a pre-checked consent box or another mechanism that has the effect of an opt-out choice. You should be clear about what information will be stored, and how it will or might be used. You will also need to consider how your app will function for those who do not consent, and how to handle requests to withdraw consent. So if an app obtains user consent to store location data in a manner that complies with the GDPR, it may store user location data. The consent should make the possible uses of the data clear. If the data is to be shared, the consent should make the possible extent of sharing clear. Some previous questions and answers here on law.se dealing with GDPR consent that seem possibly relevant: User consent required under GDPR What provisions should I make regarding GDPR consent when users do not sign themselves up? GDPR - Withdrawn user consent Opt Out Consent under GDPR | The United States enforces laws on its citizens. This is not true and never has been in the United States or pretty much any other country. Countries exercise authority over anyone in their territory, and over their citizens even if outside their territory. Sometimes countries agree to waive their authority over a tiny number of diplomats voluntarily while retaining the right to expel them from their country, but that is the rare exception and not the rule. So, which country comes closest to actually preserving people’s right to opt out of the state and have a natural right to at least some land? There really aren't any, and the claim that this is a "natural right" is, at a minimum controversial and not widely held. Many countries have areas that they control which are subject to different regulations than most of the country. For example, until recently, Hong Kong was subject to different laws by different authorities than the rest of China, and there continue to be some laws generally applicable in the rest of China which are not applicable in Hong Kong. Until recently, the Panama Canal Zone was a similar example of control of territory within one country being temporarily ceded to another sovereign authority. Guantanamo Bay, Cuba is a third example. Similarly, and with some of the same conceptual framework behind it, the laws that apply in places such as the Channel Islands or the Cayman Islands or Scotland, which are subordinate in legal and political theory to the same King as England is, are permitted by the King and treaties and organic statutes established with the King's symbolic approval, to have laws that are different from those that apply in England. Ultimately, this is simply a form of federalism, although when the extent that the central government's otherwise generally applicable laws can be disregarded quite completely is high, it feels like something more than mere federalism, and is often called a dependency or colonial relationship. Similarly, many countries have "free ports" or "duty free zones" in which their usual taxes don't apply. For example, the U.S. taxation regime that applies in Puerto Rico is different from the U.S. taxation regime that applies within U.S. states. But, even in these cases, there is not an individual right to opt out of laws, there is permission granted by a higher level government for a subordinate level government to adopt laws different from the generally applicable laws of the higher level government. Sometimes the alternative government is democratic, sometimes it is not. Hong Kong, for example, was not self-governing in a meaningful sense until not long before China regained control of the territory at the end of a 99 year concession to the United Kingdom. Some jurisdictions give people subject to their jurisdiction more ability to reach their own legal arrangements contrary to the default rules of law than others. For example, Delaware affords people who create limited liability companies there more authority to deviate from Delaware's default rules of law for limited liability companies than any other U.S. jurisdiction. But this is a far cry from granting people subject to Delaware's jurisdiction generally, freedom to displace mandatory rules of Delaware law in other legal domains such as criminal law. Similarly, sometimes the government will tolerate deviation from binding national laws even when they technical still apply. This has been the story of marijuana legalization in the U.S. and of prostitution legalization in Perth, Australia. But, again, this is an isolated act of tacit toleration in a single subject area, and not a general disavowal of legislative authority. | The GDPR is wide in scope, and flexible in application. Therefore it is not possible to give an absolute yes/no as to whether masking text with asterisks is or is not lawful. We can gain a deeper insight by looking at the GDPR itself. Firstly, the definition of processing (Art. 4 lit. 2): any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction As mentioned by amon, the principles relating to processing of personal data (Art. 5) are highly relevant, insofar as the activity constitutes processing. In particular, purpose limitation: [Personal data shall be] collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes ...and data minimisation: [Personal data shall be] adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed I would argue that making available the personal data on an invoice is processing. There are two separate operations: Making the data available to authenticated users; and Making the data available to non-authenticated users The purpose of making it available to authenticated users may be different to the purpose of making it available to non-authenticated users. Again acknowledging amon, the necessity of making the data available to non-authenticated users must be examined, as too must the means by which a non-authenticated user gains access to an invoice: are they using a URL that contains a token of some kind? Is this unique in some way? It could be that the presentation of a token itself constitutes authentication and thus authorisation to view the entire invoice, in which case further redaction may not be necessary if there is a clear necessity to disclose the entire contents to such a user. Whether the token expires or is limited to a certain referrer would be part of complying with the integrity and confidentiality principle and Art. 32 (Security of processing) by implementation of technical measures. When considering pseudonymisation and anonymisation, you will note that the redaction of name and address data from a certain view of the invoice, while nevertheless displaying the invoice number, constitutes pseudonymisation, since it would be possible with unfettered access to the remaining data, to determine the name and address from the invoice number, but not for the non-authenticated user whose view is redacted. In such a case, I fail to see how or why the replacement of a string with the same number of asterisks, or starting with the real character is secure or even practical, when the entire field could simply be replaced with a fixed-width string of asterisks or other filler, thus providing the user with no right or necessity to view the personal data with no further insight into what the personal data may or may not be. |
Can the owner of a private establishment confiscate the personal property of a trespasser? While I was reading this article, this line caught my eye: Anyone seen videotaping in any capacity will be deemed trespassing and will be escorted out by security. Your video equipment may or may not be confiscated until all video recordings are destroyed. As far as I can tell, unless the person has consented to such, most jurisdictions within the United States generally do not allow private entities to confiscate personal property, even from a trespasser. Does the owner of this facility (located in Florida) have any legal authority to confiscate personal property? Am I missing something? | 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. | You may contact a towing company; they will ask who you are, and will politely inform you that since you aren't the property owner, they aren't authorized to take someone else's car that is trespassing on the property. [Addendum] The first step in unraveling the legalities of the situation is seeing that only the property owner can give permission to enter (park) on the property. That permission can be rescinded, but only by the owner. The owner seems to have given permission and has stated in advance some conditions under which permission might be rescinded. The towing company could be called (by the owner) to act as the agent for the owner and remove the offending vehicle; but the towing company cannot just up an do this on their own. If they were to spontaneously tow a vehicle without officially acting on behalf of the owner, they would be liable for damages, owing to their having torted some guy's chattels. So the company will want to know that they are protected, in acting as the agent of the property owner. One way to do that is to verify that the person calling the towing company is the owner. Another would be to get the caller to swear that they are the owner and indemnify them against damages, in case they get sued. That pound of cure is more costly and annoying than the ounce of prevention of making sure that you're towing a car with proper authorization, so it's unlikely that they would just tow the car on your say-so. You might try suing the complex owner for some kind of breach of contract, if you think you have a contractual right to a parking space and they are negligent in doing what's necessary to meet your contractual right. The lease says "we may...", not "we will", so they haven't promised to absolutely enforce this rule. Or, of course, you could call the manager and mention that there's still a problem. | 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. | Maybe, but it is not a de jure taking. There are vast numbers of restrictions on what one can do with one's property and on businesses that one can conduct on that property. Zoning ordinances prevent me from setting up a chemical factory where I have my house; I can't build it up 4 stories and there is an obligatory setback from the property line for any extension. I can't freely build on my land, I need government permission in the form of a permit. This is allowed (Agins v. City of Tiburon, 447 U.S. 255), when the regulatory action advances a legitimate governmental goal and therefore the action is not a taking. The government might "take" land by rendering it useless without the formality of condemnation (United States v. Dickinson, 331 U.S. 745). But a moratorium on evictions does not render the property useless. The tenant remains liable for rent. | I would serve the parents (certified mail), with a "cease and desist" letter, telling them that the children are repeatedly trespassing on your property and that you want them to stop; even get the police involved if you have to. I know it sounds harsh, but you said New England; that's where I live and I know the trespass laws are not in your favor ... especially when it comes to kids. Take Connecticut as an example: This is their law on trespass and kids (not just attractive nuisance!): A possessor of land owes each person who enters his land a certain duty of care based on the person's status. The legal significance is that a possessor of land has the duty to an invitee to inspect the premises for hidden defects and to repair or erect safeguards, if necessary, to make the premises reasonably safe. He has no duty to inspect or to repair or erect safeguards for licensees. But he is liable if he knows of a condition, realizes it involves unreasonable risk, has reason to believe the licensee will not discover it, and he permits the licensee to enter or remain without warning or making the condition reasonably safe. Generally, an owner owes trespassers no duty of care because he has no reason to expect them to be on his property. Therefore, he does not have to warn or protect them from potentially harmful conditions on the property. However, an exception applies if a property owner knows, or has reason to anticipate, that children will trespass on his land. In this case, a special duty arises and the owner must take steps to protect children from any of the property's dangerous conditions. The post you just made indicates even you think that the rock walls, or other "normal garden features" could be dangerous; and they can be! The law requires that you take reasonable steps to eliminate the condition or by otherwise keeping children away from it. DUTY OWED TO TRESPASSER In Connecticut, the following rules apply to a possessor of land with respect to a trespasser. He may not intentionally harm the trespasser or lay a trap for him. The trespasser is entitled to due care after his presence is actually known. There is no duty owed regarding the condition of the premises. The possessor of land has no duty to trespassers if he is engaged in a dangerous activity until the person's presence is know. The possessor of land has no duty to warn trespassers of dangerous hidden conditions (Conn. Law of Torts, § 47). Duty Owed to Trespassing Children Connecticut's appellate courts have adopted the Restatement (Second) of Torts rule regarding the duty of a property owner to trespassing children (Duggan v. Esposito, 178 Conn. 156 (1979), Neal v. Shiels, Inc., 166 Conn. 3 (1974), Greene v. DiFazio, 148 Conn. 419 (1961), Wolfe v. Rehbein, 123 Conn. 110 (1937), Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195 (1984)). Under this rule, if an owner knows or has reason to know that children will be on his property, he has the duty to protect them from injury by either fixing the harmful condition or ensuring that the children will not have access to that part of the property. The rule states that a possessor of land is liable for harm to trespassing children caused by an artificial condition on the land if (1) the possessor knows or has reason to know that children are likely to trespass in that place, (2) the condition is one the possessor knows or has reason to know and should realize will involve an unreasonable risk of death or serious bodily harm to children, (3) the children because of their youth do not discover the condition or realize the risk, (4) the utility of maintaining the condition and the burden of eliminating the danger are slight compared with the risk to children involved, and (5) the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect children (Restatement (Second), 2 Torts 339). Put in the letter that you are disclaiming any liability for injury to them that may occur on your property, and make them aware of all the ways they could be injured – so they've been informed. You don't have a duty to remove rock walls because unsupervised kids jump off them. They are not invitees, they are trespassers. So make it known you do not want them on the land and for any further breach you will call the police. Because otherwise you could be responsible. Using CT again as an example, you could include the legal statute about trespass in your notice: Trespass Crimes and Infractions A person commits first degree criminal trespass when (1) he enters or remains in a building or any other premises after the owner or an authorized person personally communicates an order to leave or not enter and (2) he knows that he is not licensed or privileged to be there. This crime also applies to entering or remaining at a place in violation of a retraining or protective order. This is a class A misdemeanor punishable by up to one year in prison, a fine of up to $2,000, or both (CGS § 53a-107). A person commits second degree criminal trespass when he enters or remains in a building knowing that he is not licensed or privileged to do so. This is a class B misdemeanor punishable by up to six months in prison, a fine of up to $1,000, or both (CGS § 53a-108). A person commits third degree criminal trespass when, knowing he is not licensed or privileged to do so, he enters or remains in any premises for hunting, trapping, or fishing or enters or remains in premises that are posted in a manner prescribed by law or reasonably likely to come to the attention of intruders or that are fenced or enclosed to exclude intruders. This also applies to state lands near state institutions. This is a class C misdemeanor punishable by up to three months in prison, a fine of up to $500, or both (CGS § 53a-109). It is a defense to these crimes if (1) the building was abandoned, (2) the premises at the time of entry were open to the public and the person complied with all lawful conditions on access and remaining on the premises, or (3) the person reasonably believed that the owner (or someone else with the power to do so) would have or did license him to enter or remain on the premises (CGS § 53a-110). A person commits simple trespass if, knowing he is not licensed or privileged to do so, he enters premises without intent to harm any property. This is an infraction punishable by a fine, currently $77 plus costs and fees if paid by mail (CGS § 53a-110a). A separate infraction covers trespass on railroad property when a person enters or remains on the property without lawful authority or consent of the railroad carrier. This is currently a $121 fine plus costs and fees if paid by mail (CGS § 53a-110d). You could just substitute your state's laws if you're in MA, or RI, or wherever. You could have a lawyer draft this letter for probably $200 (free if you have a friend who practices :~) and that will really scare them. Tell them they will be liable for any damage the kids cause/or may cause to your property. But without doubt, put them on notice! | Since the incident was on private property (inside a building), a person does not have the same right to be there that you would have on the street outside the building. Yale police therefore can legally make a determination whether a person is trespassing (for example, by asking for identification), especially when there is an allegation that a person is trespassing. A law holding a person criminally or civilly liable for reporting their "suspicions" to the government without e.g. "reasonable suspicion" could easily run afoul of the First Amendment. | This could be a violation of the Fair Housing Act, but Fair Housing v. Roommate.com, 521 F.3d 1157 says that we find that the FHA doesn’t apply to the sharing of living units The crux of the argument is that a room in a house is not a "dwelling", since it is not a complete living unit. Whether or not courts outside the 9th Circuit follow suit remains to be seen. Florida state law (760.29) states exceptions to its anti-discrimination laws, covering for instance Any single-family house sold or rented by its owner, provided such private individual owner does not own more than three single-family houses at any one time. If that is the case, then the exemption exists if the rental a. Without the use in any manner of the sales or rental facilities or the sales or rental services of any real estate licensee or such facilities or services of any person in the business of selling or renting dwellings, or of any employee or agent of any such licensee or person; and b. Without the publication, posting, or mailing, after notice, of any advertisement or written notice in violation of s. 760.23(3) Another exemption exists if Rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his or her residence. Your attorney (hint) will be able to interpret that complicated section of the law. | This is a good question, which I am going to answer from a practical perspective, rather than a theoretical one, which would probably justify a law review article (applications of the takings clause to criminal justice fact patterns is actually one of my pet areas of legal scholarship, but a lot of it calls for dramatic changes in established practice and precedents reached from other perspectives, making it impractical to pursue in real life). I recently had a case along these lines in my office where my client's property was seized as evidence in a criminal case against a third-party. The crime involved a gun shop where all of the guns that were in the possession of the shop owner for repairs at the time of the bust (i.e. as bailments), including ours worth several thousand dollars in addition to having some sentimental value, were seized as evidence of charges against a shop owner who was fencing stolen goods, making sales to felons off the books, falsifying excise tax returns, etc. He seemed legitimate and had been in business for many years in what was not a fly by night operation. He had all of the proper licenses. Who knew we were dealing with a crook? In that case, we intervened on behalf of our client in the primary case to seek the physical return of the property (basically a replevin claim), as have others affected by the bust. It took a few months and some legal fees, but we prevailed without too much effort, as have the other intervenors. Generally speaking, to make a 5th Amendment claim, you would have to show a total taking and move into some legal gray areas in this context, while it is usually hard for authorities to show a continuing need for possession of third-party property in the face of a demand for its return, especially when photography and other scientific tools can document the evidence in great detail these days. In that case, showing that our client's particular gun was not involved in any illegitimate transaction also simultaneously made it less important as evidence, although that would not necessarily be true in general in these kinds of situations. There is a pending case in Colorado posing similar issues, where a suburban police department essentially destroyed a guy's home in order to catch a felon with no relation to the homeowner whatsoever, who had fled into it and taken refuge there. But, that case, as far as I know, has not yet been resolved on the merits. |
Agent breaking the lease So I have had a short term lease (Dec-August) that costs me $X 2 months ago, I was offered, and accepted (signed a new lease), to renew the lease for a full year for the same price. However I was told few days ago that the property manager has made a mistake and that they shouldn't have renewed it because the owner needs it from August till December. I demanded compensation because all rentals around me cost higher, and because good deals are now off market (university area). However, the Leasing office is not willing to pay anything, and they are arguing that this is because I shouldn't have been offered this lease in the first place, and that the reason why my lease is actually just $X is that it is a short term lease. So the fact that I am going to pay $200+X is just because $X is too low for a comparable apartment. Does their argument make any sense? is there a chance that I would lose the case if I brought it to court? | In general, a properly signed lease is binding. But there are exceptions, and they vary depending on the jurisdiction: country, state/province, and even city or county in many places. You mention a claim that the property should not be leased "because the owner needs it". In some jurisdictions, there is a special exception if the owner personally, or a member of the owner's immediate family, intended to live in the property. It is not clear form the question if such an exception would apply. it might well be that a person in the position described in the question has a valid and enforceable lease, and could simply remain in the property, paying rent, and the owner would have no valid grounds for eviction. But this kind of case will depend on the exact wording of the rental agreement, and on the exact provisions of the applicable laws, which vary widely depending on the location of the property. A person in this kind of situation would b wise to consult a local lawyer who will know local property law, and how the provisions of the agreement and other claims will be treated by local courts. There may also be local tenant assistance organizations, run by the government or by non-profit groups, who will know local law and can assist in such cases. A general answer cannot be gotten from a forum such as this which an individual should rely upon in such a case, particularly when the question does not even state what country, let alone what specific locality, is involved. | I do not have a written agreement of her saying she will pay 1/5 of utilities cost. Can I still take her to small claims court to get my money back? Yes. This type of agreements does not need to be in writing. Proving the other roommates' timely payments is strong evidence that also she is under a similar agreement. You did not elaborate on the form of her refusals. If these are stated in writing, they might evidence elements that further weaken her legal position. For instance, these might reflect her inconsistencies and/or bad faith. Even if you were unable (which seems very unlikely) to prove that there is an agreement to the effect of splitting costs, you might still prevail on grounds of equity. | By default, the tenant is liable for all rent until the end of the lease. E.g. if neither the tenant nor the landlord can find a suitable and credit-worthy replacement tenant (e.g. if the market has crashed), then the whole lease must still be accounted for by the original tenant, and the lost "rent" becomes "damages". However, there is also a concept of damage mitigation, and California Civil Code 1951.2 explicitly defines that it's the landlord's duty to mitigate damages. This means that the landlord cannot simply sit still and collect the rent on an empty apartment. Because of this, some smaller landlords in California outright have a policy that you can cleanly break the lease by paying for 2 months of rent as a penalty. (It appears that a good summary of various examples about landlord/tenant damage mitigation is available at UniformLaws.org.) However, when it comes down specifically to the SF Bay Area with the ever increasing rents and the lowest residential vacancy rates in the nation, and also especially with the corporate landlords that already have sufficient resources in place to readily advertise and promote an abandoned unit, it can probably be argued that, in practicality, requesting more than one month of rent (in damages) as a penalty for breaking the lease is simply unreasonable. | You can be held liable for rent after you are off a lease. Rewriting a lease only affects future obligations, and doesn't extinguish past obligations. However, you appear to have released X from all obligations via paragraph 2. If you plan to sue for past rent, the court will have to interpret the statement that "The landlord, Y, and Z agree to relinquish X from any obligation regarding the lease as mentioned above", which is non-standard English. It is extremely likely that the court will interpret this to mean "release". You might argue, using earlier emails, that all parties had a clear understanding that this means "from all future obligations, but not past obligations", but that is not what the written agreement says, and the parol evidence rule, which is codified as explicit law in California, says execution of a contract in writing... supersedes all the negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument That clause lets X off the hook, in exchange for his claim on the security deposit and for relinquishing his tenant rights to the unit. You cannot sue X for any rent. | The relevant law in California is here. In your situation, it is presumed (as you both agree) that you have a month to month agreement. §1946 states that A hiring of real property, for a term not specified by the parties, is deemed to be renewed as stated in Section 1945, at the end of the term implied by law unless one of the parties gives written notice to the other of that party’s intention to terminate the same, at least as long before the expiration thereof as the term of the hiring itself, not exceeding 30 days; In other words, the landlord has to give you 30 days advance notice to terminate the lease, and you have to give 30 days advance notice to terminate the lease (and it must be written notice). The section continues: provided, however, that as to tenancies from month to month either of the parties may terminate the same by giving at least 30 days’ written notice thereof at any time and the rent shall be due and payable to and including the date of termination. which effectively says the same thing, specifically appliedd to month to month leases. There is some leeway on terminating a lease: It shall be competent for the parties to provide by an agreement at the time the tenancy is created that a notice of the intention to terminate the same may be given at any time not less than seven days before the expiration of the term thereof. The notice herein required shall be given in the manner prescribed in Section 1162 of the Code of Civil Procedure or by sending a copy by certified or registered mail addressed to the other party. But you would have to establish that there was such an agreement (I assume there was not). §1946.1 asserts that a hiring of residential real property for a term not specified by the parties, is deemed to be renewed as stated in Section 1945, at the end of the term implied by law unless one of the parties gives written notice to the other of his or her intention to terminate the tenancy, as provided in this section. That is, a lease is automatically renewed in your situation unless notice has been given. Moreover, A tenant giving notice pursuant to this section shall give notice for a period at least as long as the term of the periodic tenancy prior to the proposed date of termination. What you are proposing contravenes this provision of the law – from your description of the facts, you did not give notice 30 days before now. So your obligation to the landlord exists to the end of May. Bear in mind that the law imposes obligations on both landlord and tenant: just as the landlord cannot throw you out without proper notification, you cannot walk away from your obligation without proper notification. §1951.2 addresses breach of lease and abandonment by lessee (you) if a lessee of real property breaches the lease and abandons the property before the end of the term or if his right to possession is terminated by the lessor because of a breach of the lease, the lease terminates. Upon such termination, the lessor may recover from the lessee: (1) The worth at the time of award of the unpaid rent which had been earned at the time of termination; (2) The worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that the lessee proves could have been reasonably avoided; (3) Subject to subdivision (c), the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that the lessee proves could be reasonably avoided; and (4) Any other amount necessary to compensate the lessor for all the detriment proximately caused by the lessee’s failure to perform his obligations under the lease or which in the ordinary course of things would be likely to result therefrom. There are, also, no special exceptions about landlords selling their property that allow instant termination. That is, you still owe the month's rent, even though the lease is ending at the end of the month. You could of course ask the landlord to forgive you that last month's obligation. I am assuming that the lease was terminated properly by the landlord. If it was not, the landlord has not legally terminated the lease and it will continue until someone does properly terminate the lease. That might provide incentive for the other party to just forget the last month's rent, but it also might not. | The ability to bargain for clauses that are more favorable varies with the type of landlord. Termination clauses are no different in this regard. If the landlord refuses to negotiate/modify early termination clauses, the tenant's subsequent decision to enter the lease evidences that he knowingly and willfully agreed to those terms. The tenant is not allowed to disavow them thereafter. Hence the importance of negotiating the clauses, although rental corporations are unlikely to be any flexible. Unless you find a flexible landlord or manage to arrange alternative housing, entering a standard 12-month lease is a risk you would have to take. Legislation typically requires landlords to mitigate damages in the event of early termination by finding as soon as possible a new tenant. However, in reality it is usually too difficult for a leaving tenant to scrutinize the landlord's efforts of finding a new tenant. The best chances to be able to conduct that scrutiny occur when the matter is brought to court. A landlord could have the incentive to find a new tenant soon if the early termination coincides with certain season. A typical example occurs in college towns, since students need to arrange housing by the time the school year begins. | Your contract is between you and your landlord. Separately, the landlord has a contract between himself and the agency. Your obligation to pay rent is owed to your landlord, not to his agent. Ask your landlord to send you an email (if you don't already have one) which requests you to pay rent from X date onwards to him directly. Then pay him the rent in the way he has requested. Barring some unusual terms of the contract (which you haven't provided a copy of), the agent will not have any grounds to sue you. | No If you breach the contract that may allow the rental company to terminate it (among other things), however, termination would need to be communicated to the customer. Only if they kept it after that, with the intention of permanently depriving the company of it, are they stealing it. |
How does a flow-through LLC own assets? A Limited Liability Company (LLC) is a business under US law with the following characteristics: Establishes a "corporate veil" of limited liability, such that creditors or lawsuits can only go after the company's assets, and not personal assets of the owner(s). Requires much less in the way of formalities than a corporation. Treated as a flow-through entity by default, meaning that the income of the company is treated directly as the income of the owner(s), rather than being held by the company and paid out as salary or dividends. (Not all LLCs operate as flow-through entities, but this question is only about those that do.) At first glance, it appears that the first and third points above are in conflict with one another: if all revenue generated by the company flows directly to the owner(s) rather than being retained by the company itself, then the company has no money of its own with which to purchase company assets! Obviously this has to be an overly simplistic understanding, but I'm having trouble finding a plain-English description of how it really works. So my question is, what are the principles by which a flow-through LLC segregates company money and assets from flow-through payments to the owner(s)? | My understanding is that the "flow-through" treatment is specifically a tax law concept. The LLC has its own income, which it can use to pay expenses or acquire assets or for whatever other purpose, and such assets become the property of the LLC. It's just that when it comes time to pay taxes, the LLC's net income is taxed as income to the owner. But that does not mean that the LLC's income is treated the same as the owner's income in all other legal contexts. | In general, you cannot neither change contracts nor restrict/nullify other people's rights by your acts alone. The people who hired you personally have a contract with you, not with your LLC. So, if someone has a claim against you, then their claim should not be contingent of your LLC going bankrupt or not; they have a right to have their damages restored by you (who was the entity they hired). Otherwise, fraud/liability delinquency would be trivial: get debts on your name and, when the things get difficult, create a shell LLC and let it go bankrupt. | Although the word typically refers to a specific type of business entity, "corporation" simply means a group (or "body") of people or other entities that are collectively endowed with a status that treats them as though they were a single legal person that can exist indefinitely. In common-law jurisdictions like the U.K., this includes municipal corporations, which generally consist of the people living within the corporation's territorial boundaries, exercising their collective will through their elected representatives, and assigned certain rights and obligations as a result of their collective status. Although the same word is used, it would generally not be the case that a municipal corporation would be governed by the same laws as business corporations or trade guilds, which are also sometimes referred to as corporations. Barclay's and the City of London are both corporations, and therefore are treated as entities capable of making their own decisions, with rules allowing for their decision-making bodies to keep them "alive" in perpetuity. But there are also many obvious differences. The City of London does not have shareholders in the same sense that Barclays would, nor is it obligated to register its existence or undertake most of the other responsibilities facing a corporate entity. Wikipedia has more detail broken down by jurisdiction. | 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. | Your assumption about charities, "that legally you cannot use any of the money raised/created for anything but charitable purposes" is incorrect. For example, a charitable organization can have an office, and can pay rent for that office; it can pay a janitor to clean up, a secretary to do correspondence, and a CEO to run the operation. The basic generalization for a 501(c)(3) organization is To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized and operated exclusively for exempt purposes set forth in section 501(c)(3), and none of its earnings may inure to any private shareholder or individual. Specifically, A section 501(c)(3) organization must not be organized or operated for the benefit of private interests, such as the creator or the creator's family, shareholders of the organization, other designated individuals, or persons controlled directly or indirectly by such private interests. No part of the net earnings of a section 501(c)(3) organization may inure to the benefit of any private shareholder or individual. A private shareholder or individual is a person having a personal and private interest in the activities of the organization. Accordingly, the organization cannot be created with the purpose of benefiting John Smith, or the board of directors of the organization, or shareholders. This does not preclude spending money to operate the charity. | Governing Law The governing law in this fact pattern would be the law of Delaware which under the relevant choice of law rules governs the internal affairs of a Delaware Corporation, specifically, the Delaware General Corporate Law (Title 8 of the Delaware Code starting with Chapter 1), as interpreted by the Delaware Courts, especially the Delaware Court of Chancery and the Delaware Supreme Court. The incorporators of the Corporation who file the Certificate of Incorporation for the Corporation with the Delaware Secretary of State control the Corporation until its directors are appointed by the incorporators, and once the directors are appointed (unless the directors are named in the Certificate of Incorporation itself or a different method for their appointment is set forth in the Certificate of Incorporation), and the shares of stock in the Corporation come into being when they issue shares. See, primarily 8 Delaware Code §§ 101, 107, 151, 152 and 158. But, the incorporators and directors may be subject to oral or written agreements, or to fiduciary duties (e.g. if the incorporator is also an attorney for the founders), that significantly limits their discretion in this regard. Also, certain rights arising from a subscription agreement (which is an agreement to purchase shares not yet issued of a corporation), must be in a signed writing to be enforced (subject to certain common law exceptions). 8 Delaware Code § 166. Application To Hypothetical Facts Using 3 out of 5 board seats, investor B then fired the founder and CEO, whose shares, it's revealed, have a vesting schedule. My question is: who owns the company at this point (assuming a negligible fraction of the shares vested)? Wouldn't investor A's 10% stake trump investor B's 5% and give him the right to elect all board members? Corporations formed under Delaware law have very broad discretion to tailor their terms to the wishes of the parties, and most of the statutory provisions are merely default rules of law that apply when not displaced by the governing documents of the corporation. If the governing documents provide that particular investors get board seats, then, notwithstanding the share ownership of the investors and shareholders, those investors get board seats. With respect to directors, this authority is formally expressly primarily at 8 Delaware Code § 141(a). Control of a corporation doesn't have to align with beneficial economic ownership of a corporation under Delaware law (or for that matter, in for profit corporations in most U.S. jurisdictions). It isn't uncommon in a Delaware corporation for control of a corporation to be vested in shareholders (and even some non-shareholders) who control only a minority of the economic value of a corporation's shares. There are several different ways that this can be documented from a nuts and bolts legal perspective, but the bottom line is that he who controls the board controls the corporation, and that selection of the board of directors can be varied by agreement as expressed in the governing documents (always a certificate of incorporation, usually bylaws, and sometimes also some sort of shareholder's agreement or voting trust). | The U.S. government only owns the assets deposited in its own accounts in Federal Reserve banks and profits from portions of its operations amounting to about $100 billion a year. Federal Reserve member banks are owned by private commercial banks in their region and are partially controlled by these shareholders (who have some say in electing regional Federal Reserve bank boards but not in the manner of a typical privately held company), but certain national economic policy issues delegated to the Federal Reserve's policy making entities are controlled by a Presidentially appointed (and U.S. Senate approved) Board of Directors which is really what people are talking about when they refer to the "Fed". The overall structure is a complex public-private hybrid organization and this brief answer oversimplifies the matter which has many nuances and unique features. Most notably, the Federal Reserve's policy making board sets some key interest rates, sets the reserve requirements for commercial banks (together with and in coordination with the FDIC) and as a matter of practical reality, is the primary entity that regulates the money supply. The Federal Reserve's policy making arm can also authorize loans of U.S. funds to private business in certain circumstances (most prominently in recent times during the Financial Crisis). The Federal Reserve is also the primary administrator of the U.S. payments systems used for checks and similar negotiable instruments, and for wire transfers between financial institutions. | The analogy in the other answer isn't particularly helpful because a company isn't tangible property like a truck. It is a legal entity that has not only assets and liabilities such as tangible property (trucks, computers), intangible property (trademarks), and loans, but also owners (shareholders), a board of directors, and officers. In an acquisition, another company buys up all the stock of the entity being acquired. The acquired company may continue to exist as a subsidiary, in which case it continues to have its board and officers, or it may be dissolved, in which case its assets and liabilities would be transferred to its new parent (or to another subsidiary of the new parent). |
Indiana trespass law Indiana Code 35-43-2-2 states: (c) A person has been denied entry under subsection (b)(1) when the person has been denied entry by means of: (1) personal communication, oral or written; (2) posting or exhibiting a notice at the main entrance in a manner that is either prescribed by law or likely to come to the attention of the public; (3) a hearing authority or court order under IC 32‑30‑6, IC 32‑30‑7, IC 32‑30‑8, IC 36‑7‑9, or IC 36‑7‑36; or (4) posting the property by placing identifying purple marks on trees or posts around the area where entry is denied. Should this be taken to mean that a physical barrier (with out signage) does not deny entry? Also as a second question how does no trespass signage affect delivery people, such as USPS, etc. | Should this be taken to mean that a physical barrier (with out signage) does not deny entry? It seems that a physical barrier alone does not deny entry under subsection (b)(1). This entire section is defining when a person has committed criminal trespass. Apparently breaking through a fence with no sign does not constitute criminal trespass, unless one of the other sub-sections applies. But it may constitute simple trespass, and it may constitute some other offense, such as breaking and entering. Note also that subsection (b)(4) adss a person who: knowingly or intentionally interferes with the possession or use of the property of another person without the person's consent; to the list of those who commit criminal trespass. That might apply to a person who enters by damaging a fence. Also as a second question how does no trespass signage affect delivery people Section 2(g)(6)(B) exempts the owner's: (i) family member; (ii) invitee; (iii) employee; (iv) agent; or (v) independent contractor; I would think that a delivery person would be either an invitee or an independent contractor. Or perhaps some other provision applies. As for nearby provisions in the code, Section 35-43-2-1 defines "Burglary" in terms of breaking and entering with intent to commit theft or felony. Section 35-43-2-1.1.5 defines "residential entry" in terms of breaking and entering a dwelling. Section 35-43-2-1.3 deals with unauthorized computer access. | There is no law against lying in these circumstances. In fact, for a very modest sum, security companies sell dummy CCTV cameras to make this lie more convincing. However, trespass only happens if people have been warned so this works for literate people who speak English and see the sign. That leaves a very large group of people who would not be trespassing even with the sign. A further problem with a sign on the house is that people have no idea how far away they have to get in order to stop trespassing. In addition, legitimate visitors (uninvited or not) are not trespassers. It seems that people are coming onto your property because they are thirsty. A better way to deal with this is go to your local hardware store and replace the tap with a vandal proof tap that has a removable head. Keep that inside and put a sign next to the tap saying "Refrigerated Water $2 - knock on front door". | No it is not legal; it is trespassing. the common law definition of trespassing is to enter someone's land or property without their permission. By locking the door they have denied permission to everyone except those to whom they have given a key. If someone finds a key that happens to fit the lock, there is no longer a physical restriction but as they do not have permission, the legal restriction is still in force. | There doesn't seem to be any indication I could find that your Indiana license would expire or be revoked. That said, that question is likely moot for your purposes per the comment you left. Your Indiana permit is no longer valid in Florida if you have been a Florida resident for 91 days or more. Florida handgun license reciprocity is covered by S 790.015 and applies to non-residents. Individuals who establish residency in Florida and have a license from another state have 90 days to acquire a Florida license (emphasis mine): (3) If the resident of another state who is the holder of a valid license to carry a concealed weapon or concealed firearm issued in another state establishes legal residence in this state by: (a) Registering to vote; (b) Making a statement of domicile pursuant to s. 222.17; or (c) Filing for homestead tax exemption on property in this state, the license shall remain in effect for 90 days following the date on which the holder of the license establishes legal state residence | Residents agree that the receipt of mail by any individual not listed as a Resident or Occupant in this Agreement at the Leased Premises shall be proof of occupancy of that individual and a violation of this Agreement. I assume that the lease states that only the listed individuals can reside in the unit. Maybe they think that this says that receipt of mail by an unlisted person is a further violation of the lease, I don't think that is clearly enough stated that the courts would agree that receiving mail is itself a violation of the lease. Instead, it seems to be intended to say something about an existing clause – you can't have other people living there. The courts would look at the requirements of the lease, and ask "did you comply"? The question of whether you did a certain thing is a question of fact that has to be resolved in court. However, the revised lease language does not state that all mail must be addressed to Johnny Johnson – it only addresses receipt by a person not on the lease. You are (apparently) on the lease, so you may receive mail there. Nothing in the lease controls how such mail can be addressed. If you receive mail addressed to Tommy Thompson, your defense is that you received the mail, and you are on the lease, so you will not have violated the new clause. | The primary legal question is whether the resident (tenant) has breached a duty of care. There are all sorts of laws establishing duties of care, such as between doctor and patient, which may be created by a legislature or may be part of common law tradition. There is a duty of care imposed on a landlord w.r.t. the tenant, requiring that the premise be "secure", therefore a landlord might easily be held liable if the main door into the building was not locked. This duty is a specific instance of a general duty from tradesman/businessman to customer. As far as I can determine, there is no such statutory duty imposed on tenants in Washington state, and none from case law being revealed by a few cursory searches. In order to be subsumed under general "everybody has a duty to everybody else" law, the damage would have to be foreseeable. It is said that "If something is foreseeable, it is a probable and predictable consequence of the defendant’s negligent actions or inaction". This mean that a reasonable person would have known that, under the circumstances, the damage is likely to result. Circumstances vary quite a bit, and there is no general rule about holding the door open for another person. If there is abundant signage reminding tenants to never ever let in a stranger no matter that their excuse and/or if the premise is in a crime war-zone, the outcome is more likely to be considered to be foreseeable. | This overstates the case. A company must pursue infringements, arguably even when it isn't economically sensible in isolation to do so, to prevent its trademark from being diluted. But, that isn't the case "when it's blatantly obvious that there is no infringement." There is no benefit from pursuing cases that aren't even colorable infringements. The notion is similar to adverse possession. If you let someone openly use your real property without your permission, eventually, the squatter becomes its legal owner. Also, as in the case of adverse possession, an alternative to suing someone for infringing is to make their permission non-infringing by writing them a letter expressly authorizing them to use your mark. Permissive, licensed use does not dilute a trademark. | It's based on the date the letter was received, not the date it was mailed. Since it's certified, it's not received until somebody signs for it, which starts the clock. The actual date isn't possible to calculate from the information on hand. The delivery receipt would have the date it was signed for, it would be prior to the end of the 30th calendar date from that date. Edit... Your new "twist" results in void service and doesn’t require action by the HOA. Certified mail is a service of the USPS, hand delivering or email does not legally count as "certified mail". If a contract requires service by a specific method (e.g. certified mail), then delivery by any other means is invalid and of no effect. |
Why US police is so lenient to criminals & car robbers? I've seen many videos on youtube like this, but this was the most surprising one, where US police is chasing for 5,10,15 minutes to the criminal (who drives with either stolen car or his car) and police is just chasing those persons endlessly (until they stop by accident or for some reasons). I just don't understand, why police don't immediately stop them (either blocking the car or crashing it), and instead, allows the criminals to drive for half-an-hour and destroy many things on roads and kill people (who knows how many them were in cars). This doesn't relate to only that specific video or either tanks only, but there are plenty of videos like this, showing how police doesn't take any action in such occasions, until the robbers stop themselves... I think the problem lies in thinking like that "how to stop a tank..". How to? ... Is that a question really? Police should stop! Get another tank, a big excavator, fire a missile to it on a empty road or do whatever... is that good that he killed people, crashed machines and destroyed half the city?? | There are various practical considerations such as the fact that a spike strip is not effective against a tank. The main legal reason is that in the US, a seizure (arrest) must be reasonable under existing interpretations of the 4th Amendment. A person has a constitutional right to his life and property, and police force potentially infringes that right. For example, stopping a jaywalker with a shotgun blast would be unreasonable force, and could open the government up to a section 1983 lawsuit (referring to 42 USC 1983). So while the police are motivated to protect lives and property and to enforce the law, their use of force has to be reasonable. There is no mechanical procedure for determining, in any arbitrary instance, where the line is between reasonable and unreasonable force. The courts have determined that it is whatever force a reasonable officer would use in the given circumstances. More force is justified if the reasonable officer believe that he or others are in imminent danger of serious bodily injury or death, and lack of such a reasonable belief could lead to a protracted low-speed car chase to arrest a suspect. There are guidelines that help police make these decisions, see this for example, and department will have specific rules about use of force. There is a tradeoff between spending more time waiting for a suspect to stop, and using force to stop a vehicle. One way to stop a fleeing vehicle is with a spike strip, but that will destroy property and is likely to cause injury, so you need a policy. Here is a policy in Ohio, which begins by stating that Due to the unique conditions within the community we serve the agency designee has determined that high speed pursuits are generally restricted to exigent circumstances, and when occurring are authorized and closely monitored by supervisors. Spike strips can be used in some circumstances, but not all. That is, police have to follow the law in making an arrest. | No. The police have no affirmative legally enforceable duty in the U.S., to the general public, or any particular person who invokes their assistance, to take action to enforce the law. The leading case on point is Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) (full text here). In this case, despite the urgent requests of the beneficiary of a Colorado domestic violence restraining order and the warning that a violent crime was imminent, the police in the Town of Castle Rock blew the woman off, and did nothing to prevent ex-husband who had illegally abducted her three daughters from murdering them even though they could easily have done so. The conclusion of the majority opinion by Justice Scalia states that (some citations and footnotes omitted): We conclude, therefore, that respondent did not, for purposes of the Due Process Clause, have a property interest in police enforcement of the restraining order against her husband. It is accordingly unnecessary to address the Court of Appeals’ determination that the town’s custom or policy prevented the police from giving her due process when they deprived her of that alleged interest. In light of today’s decision . . . the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its “substantive” manifestations. This result reflects our continuing reluctance to treat the Fourteenth Amendment as “ ‘a font of tort law,’” . . . but it does not mean States are powerless to provide victims with personally enforceable remedies. Although the framers of the Fourteenth Amendment and the Civil Rights Act of 1871, 17 Stat. 13 (the original source of §1983), did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented, the people of Colorado are free to craft such a system under state law. Despite this concluding statement, there was a very solid argument that the law of the State of Colorado at the time had already been intended to do just that, but was not and would not be given effect. This U.S. Supreme Court case dealt with claims under federal law. There is no affirmative constitutional right to reclaim a stolen car or try to prevent your car from being stolen by a private individual, even if you have a legal right to do so under state law. So, you can't bring a federal civil rights action to enforce a deprivation of that right. The situation is even worse under state law, where police have absolute immunity from liability for all tort claims (i.e. roughly speaking, lawsuits to enforce rights other than contractual rights), unless it comes within a specific exception (of which are there are several) for cases of ordinary negligence such as car accidents when just driving around and not having emergency lights illuminated, or failing to clear ice from a sidewalk on police department property. Their boss may not take kindly to their indifference, but that is a purely discretionary issue for their boss in the context of an employer-employee relationship (often further limited by civil service protections for public employees and/or protections as members of a law enforcement union). The primary exception, not applicable in the example in the question, is that law enforcement officers have certain obligations to protect people who are in law enforcement custody from harm. This obligation is stronger prior to a criminal conviction, and is weaker after someone has been convicted of a crime and is serving a sentence of incarceration for that crime. If you brought a lawsuit of the type described in the question, you would probably lose the case on a motion to dismiss filed swiftly after you filed your lawsuit, and there is a very good chance that you would be compelled to pay the legal fees of the people whom you sued. Comparative Law Footnote Incidentally, while this rule of law is widely shared in countries with "common law" legal systems derived from English law, it is not the case with nearly the same degree of clarity in "civil law" legal systems based upon the civil codes found in Continental Europe such as France, Germany, Spain and Italy. Almost all countries in Latin America, most countries that are not former British colonies in Africa, and most countries in East Asia and Southeast Asia, are civil law countries. In civil law countries there generally are both statutory obligations and human rights law obligations for which the government or government officials can have liability for willfully refusing to enforce criminal laws. But even there it is, as a practical matter, difficult to enforce this obligation and is possible only in the most stark circumstances (such as the one described in the question where there is open defiance of this obligation without any understandable and legitimate contravening reason for failing to act). | The principle of constitutional law is that in order to arrest you, the officer would need probable cause. Certain acts are in themselves violations of the order (being closer to another person that 6 feet, illegal sneezing). Walking in public does not per se constitute a violation. In order to briefly stop a person walking on the street (a "Terry stop"), the officer needs a reasonable suspicion that the person is in violation of the law. That means there has to be a reason, and a gut feeling does not count. An officer would not (legally) be able to stop every person they see walking down the street / driving, and demand an explanation of where they are going. If a person is just aimlessly wandering down the strees with friends (even if they are sufficiently separated), that could suffice to justify a stop, given the limited legal excuses for being outside your home. | First, as Mark Johnson said. Second, the job of police and prosecutors is not to put people into jail, their job is to put guilty people into jail. If you go to the police and tell them that you beat up a person, then before they investigate, they know that either you are guilty of assault, or you mistakenly believe that you are guilty of assault, or you are a phantasist who enjoys confessing non-existing crimes to the police. The police will either investigate which one it is, and may prosecute you either for assault or for wasting police time, or they may decide based on your behaviour that there was never any assault and not investigate further. I suspect they will at least question you about details of the claimed assault, to decide whether the crime is real or not. | You are referring to Michigan State Police v. Sitz 496 U.S. 444 (1990). It does not require or suggest a requirement of advance publication of any details regarding the checkpoints. The dissent mentions that "a sobriety checkpoint is usually operated at night at an unannounced location. Surprise is crucial to its method." This point was not countered or even mentioned by the majority. In this case, a state committee had created guidelines setting forth procedures governing checkpoint operations, site selection, and publicity. The mentions this as a background fact, but does not rely on the existence of these guidelines as a requirement for the constitutionality of checkpoint stops. It does contrast checkpoints with "roving patrol stops". Quoting from Martinez-Fuerte 428 U. S. 543 (1976), the majority in Sitz said: "at traffic checkpoints, the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion". There are state guidelines, some states have constitutions prohibiting sobriety checkpoints (lots of case law at the state level regarding this), and some state legislatures have made these illegal. In Sitz, the checkpoints were being operated subject to guidelines developed by the Sobriety Checkpoint Advisory Committee (of the State Department of Police). Federally, the NHTSA has guidelines on visibility and publicity towards the goal of effectiveness. | I'm not a lawyer; I'm not your lawyer. Victoria The Road Safety Act 1986 (Vic) s 73A makes the obstruction of the operation of a safety camera or speed detector an offence. It is likely that the obstruction of a mobile speed camera would fall within this offence. The law does not restrict the operation of the device to police, and so it may not be relevant whether the car was marked or not. New South Wales Certainly, the obstruction of an authorised officer is an offense as per the Roads Act 1993 (NSW) s 240 and the Road Transport Act 2013 (NSW) s 173 Obviously these apply to NSW and Victoria only; I haven't researched the other states yet. It's possible, though not definite, that other states will have similar laws. It is also likely, though not definite, that people who attempt to obstruct it may be charged with obstruction of traffic in some way, as most states require you to not obstruct the normal passage of traffic unreasonably. (eg Road Obstruction (Special Provisions) Act 1979 (NSW) s 4) | Of course a city can enforce their own laws. The possible laws that LA (or any other city) could enforce against the video producers and vbloggers are many: zoning laws (enforcing laws against operating a commercial film set or business in a residentially zoned area); the requirement for an open burning permit, either all year or during times of fire danger; excessive noise ordinances, either 24hr or in a time span from late evening until morning; ordinances regarding excessive traffic and street parking; ID age checks for drinking, if police can get access to the property through warrant or other means; and investigations of criminal behavior shown in the videos. "Basically, after today, if we film in this house we could face up to six months in prison because we need permits," https://www.popbuzz.com/internet/social-media/jake-paul-banned-from-vlogging-in-house/ He could be talking about filming permits, traffic permits, burn permits, occupancy permits, etc. Cities and municipalities can quickly enact new ordinances that criminalize behavior that impacts the neighborhood as a whole after taking into account complaints from neighbors and advice from police regarding activities of the problem residents. Another aspect of the story is that it appears that Jake Paul is a renter. That means the city and neighbors can put pressure on the landlord to encourage Paul to obey the law; failing that, the landlord could possibly evict Paul in a very short amount of time due to possible damage and other clauses in the lease regarding illegal activity, if the lease stipulates anything like that. | I can't see anything to say this is a state-wide ban. Do they have to give an opportunity to return unused fireworks for a refund? The ban imposed by Portland Fire and Rescue appears to relate to the use, not possession, of fireworks so I assume that the stores' / State's regular refund policies would apply. Due to unusually hot temperatures and dry conditions, PF&R is announcing an immediate ban on the use of all legal and illegal fireworks... |
Can the victim of a crime throw a court case? Can the victim of the crime just turn down a lawyer and when asked to testify just plead the 5th so the defendant can not go to jail? | In principle, the victim can be granted immunity for his testimony. At that point, since his testimony cannot incriminate him, the 5th Amendment protections no longer apply. He can be ordered to testify and held in contempt of court if he refuses. | Sometimes rights conflict with each other, and the courts decide which right takes priority. The Sixth Amendment provides that a defendant is entitled to "compulsory process for obtaining witnesses in his favor". The Fifth Amendment says "No person... shall be compelled in any criminal case to be a witness against himself". And the First Amendment gives the right to free speech, which includes the right to not be compelled to speak. If you're on trial and try to get someone else to confess on the stand, his Fifth Amendment right against self-incrimination trumps your Sixth Amendment right to have him testify. But if he couldn't take the fifth (for example, if he had already been acquitted), your Sixth Amendment right would override his First Amendment right to free speech. | Yes, there are cases where refusing to respond to the question would be legal. The juror could plead the fifth – so long as he hasn't spilled the beans about what he is trying to protect – which provides for the protection from compelled self-incrimination (any incriminating statement that could be used against you in a criminal charge – civil liability doesn't count here). Anything that is said in voir dire is on the record and under oath. You are effectively witnessing against yourself. As stated on NOLO: Witnesses can assert the privilege against self-incrimination in civil proceedings as well as criminal ones, despite the seemingly limiting language of the Fifth Amendment. They can assert it in state or federal court, in a wide variety of proceedings (including trials, depositions, administrative law proceedings, and investigatory proceedings like grand jury hearings). . . . If, by answering, the witness could provide evidence that might aid the government in prosecuting him, then he has the right to refuse. There has to be evidence, though, that testimony would subject you to criminal charges. "What is your hair color?" obviously cannot subject you to criminal charges. "Have you ever driven while intoxicated?" Would only be incriminating while the Statute of Limitations has not passed. After that point, you have not 5th amendment protections for having driven under the influence because it will no longer subject you to criminal charges. Additionally, there are cases in which you could refuse to answer but the court could still compel you to answer. For instance, sometimes questions in voir dire get very personal. If jurors believe a question is too personal, they can try to refuse to answer on those grounds, let the judge know, and the judge would make the decision. If the judge decides they must answer, and they continued to refuse, the judge could hold them in contempt. On a slightly more practical note, if you are objecting to questions, it will impact whether the attorneys on either side will allow you to stay on as a juror. After an objection to a specific question, the attorney may just decide to nix you. | What is the process for having the plea withdrawn? Is it even possible at this point? Maybe, but YOU are not going to be able to do this on a pro se basis. It is clear from the way you word the questions you are still extremely emotionally invested in the whole scenario and want to make sure you get your pound of flesh at every turn. That is not going to work in this case. The first thing you need to accept is that for the purposes of the plea withdrawl the judge does not care to hear about how the lawyer tricked you. If you go in on your own pleading that your lawyer did you dirty, the judge is just going to deny your request in the best case. You will need a lawyer to prepare and argue the motion to withdraw your plea. Get a good lawyer they are worth their costs. Focus on the main goal of resolving your issue of the Criminal Trespass. How the police treated you or your Tenant took advantage of you does not excuse criminal behavior. So if the plea does get withdrawn focus on winning the criminal case. After the criminal issues are resolved then you can deal with the other issues. | The parties are generally entitled to present their case as they see fit, as long as they stay within the rules of evidence. If they want a straight yes or no, the court will often require the witness to provide one, which keeps lawyers happy, makes the answers clear for the jury, and limits the parties' grounds for appeal. If a yes or no answer is not as accurate as a more qualified answer, the other lawyer would typically have an opportunity to invite the witness to provide a fuller answer on redirect. If a yes or no answer is inappropriate because of assumption embedded in the question -- as in your "beating his wife and kids" example -- the question should quickly elicit an objection from the defense attorney, who would note that the question lacks foundation or assumes facts not in evidence. Assuming there isn't any evidence of domestic violence, the court should sustain the objection, in which case the witness would not need to answer at all. | So, as you say, these witnesses who try to help their buddy out may be committing perjury. Also, D himself, by lining this up, is probably on the hook for conspiracy to commit perjury and being complicit in perjury. Aside from that, I think your question is: would getting people to testify in a way that implies they did the crime lead to an acquittal for the murderer? The answer is: maybe. The jury will either vote to acquit or to convict. If the jury votes to acquit, then it's over. Double jeopardy protects D from being tried for murder again. But, if the jury votes to convict, the fact that D had his friends testifying in the way you suggest isn't going to get the conviction overturned on appeal because "a reviewing court resolves neither credibility issues nor evidentiary conflicts." People v. Young, 34 Cal.4th 1149, 1181 (Cal. 2005). I haven't done a trial yet, but it strikes me that that might not be the greatest trial strategy. I think generally defense lawyers would prefer to make their client look the furthest thing from gang affiliated as possible. Don't lie to a court or ask anyone to lie to a court for you. | Civil litigation involves general causes of action that are available to anyone, including both private parties and the government. Civil courts are designed primarily to provide restitution to the injured party. Criminal courts exist for governments to exercise their police powers: specific, limited authority held only by the government. The principal purposes of criminal law are...well, they're debated, but broadly speaking, it's to punish and/or rehabilitate the criminal and deter future criminals. Because criminal conviction can result in jail time and even the death penalty, there are more stringent procedural protections accorded to criminal defendants than there are to civil defendants. So when the government's goal is to recover damages, it's easier for them to use the less burdensoome civil procedures, just the same as anyone else would. Let me give you an example. Someone steals your identity and runs up $100,000 on your credit card. You call the police, and they find someone they think is the guy. To convict him, the police must convince an entire jury panel that he did it, beyond a reasonable doubt--a high standard. He pleads the fifth, and without his testimony, the police may not succeed. If they do, he will be sent to jail, and he may also be ordered to give part or all of your money back. If the case is weak, however, the police may not want to spend their limited time on it--and that's their call, not yours. (This also applies to government agencies; only law enforcement can bring a criminal case, not any government agency.) However, you can also file a civil lawsuit. In that lawsuit, depending on the jurisdiction, you may only need to convince some of the jury--civil verdicts don't always have to be unanimous. You may even just face a judge, with no jury. And the legal standard is a "preponderance of the evidence," which in layman's terms just means "more likely than not"--a much easier thing to prove. Because the Fifth Amendment doesn't apply to civil litigation, you may even be able to argue before the jury that the defendant's refusal to testify suggests he's guilty. In summary: civil lawsuits use different rules and procedures, which may make it easier to recover money (or get other civil relief, such as an injunction) in cases where that's the goal. These courts are open to anyone, including the government. But if the government wants to use its special police powers to put someone in jail or get other criminal relief, they have to use the stricter criminal rules and procedures. | Yes, why not? It happens all the time. Usually the witness will just say, "I am not sure" or "I don't remember, exactly". Also, if Bob is the only witness, how would anyone prove that he was committing "perjury"? In the case of an uncooperative or dissimulating witness, Judges sometimes can hold them in contempt of court, but it is pretty rare. In general, the court has to find "beyond a reasonable doubt" that the witness is refusing to testify honestly. (See "Federal Grand Jury Practice and Procedure" by Paul Diamond) It depends very much on the situation. Note that just trying to act "drunk" would not be a good idea, because that is contempt of court. |
GPL Licensed code as separate process We are going to use a GPL licensed application as separate process inside a docker. So here's how it works: Main app ships to client, it doesn't have any GPL code. Does have lots of things and manages lots of Docker images. Our app CAN download and launch custom made Docker images (special purpose, we maintain docker images and they are custom built). All other docker images we have, does not include any GPL code. Inside just one of the docker images a server software with GPL license will be running all the time, that's the main server software in that particular docker image (as-is) Can we do this in our commercial app without having to publish our source code? Basically we maintain and create the docker image, but that's not main part of our software and its completely optional and users can choose to download that docker image and run it if they want to. GPL code is not blended into our main app, its totally separate and its inside docker image. Imagine being Amazon and maintaining list of VM images you build and letting your clients download and launch instances of VM images you built that contain many GPL licensed applications. | 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. | According to US law, the GPL is a license, not a contract. This means it is valid without consideration, it also means if you are in violation of the license, then you are committing copyright infringement, instead of being in breach of a contract. In Germany, the GPL is a contract. And that's fine, because German law doesn't require consideration for a contract to be valid. It's interesting in that the GPL license doesn't require you to state whether you agree to the license/contract or not. But if you don't agree to the contract then there is no contract, and you have no right to use the software. | You're not going to find an OSI-approved or FSF-approved license that meets your needs because these licenses comply with the OSI definition or FSF definition of open-source software, and your requirements don't. Looking at your requirements, it looks like you want a license where users can modify the software and use it for private use, but cannot use it for commercial use. I ran a search on TL;DR Legal to see what licenses match. There are some one-off licenses that appear to be written by individuals or groups or written by companies that explicitly call out a particular software package. One appears to be a modification of the Apache License. I wouldn't recommend simply using one of these without not only reading them thoroughly yourself, but also consulting a lawyer - just because they started with a license that is trusted doesn't mean that a change they made didn't cause problems if it were to be challenged. For a project hosted on GitHub, it doesn't need to be open-source. You can upload a project that is all rights reserved, but by using GitHub, you do need to allow others to view and fork your repository. However, I wouldn't expect many outside contributors. Why should I give you my hard work if you're just going to turn around and make money on it? That's essentially free labor. I'm not aware of any listing of vetted licenses that are designed for commercial use of software, like how the OSI and FSF maintain lists of licenses. There is a Binpress license generator, but again, it's not a vetted license. How much stake you put into license generator or some random license you find on the Internet is up to you and the level of risk that you find acceptable. If you want to make money on your open-source software, you may want to rethink your approach. In my experience, I've usually seen dual licensing achieve this. One license is a custom written commercial license while the other is a very strong copyleft license, like GPL or AGPL (depending on how you intend your software to be used), which forces companies to also open-source their software if they use yours. It doesn't explicitly prevent commercial usage, but many companies will either look for an alternative that has a more permissive license or purchase the commercial license to prevent their software from being required to be open-source as well. You may also be interested in questions on Open Source about how to monetize open-source projects. There are options out there - selling support and maintenance or related services or selling additional documentation or examples. Under this model, all of your software is free and open source under any of the well-known open-source software licenses, but you make money supporting users of the software. | You seem to assume that copyrights require paperwork such as registration. This is wrong, copyright is automatic. And it prevents the downloader from making the sort of change that you suggest. In fact, it prevents the downloader from using your template at all. The only reason the downloader can use that template is because you've granted him a specific license to ignore some copyright rules, but the default remains. And you did not grant the right to alter the template to free users. | 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. | This answer is limited to United States law. The situation in other countries is definitely different. Under United States law, the owner of a lawfully made copy of a copyrighted work has, as a right of the physical possession of that work, the right to the work's ordinary use. Licenses grant you additional rights such as the right to make derivative works, the right to make copies beyond what's needed for ordinary use, and so on. A pure license doesn't ask for anything in return, it just gives you new rights. Those rights may be conditional, but the conditions are just things you have to do to get new rights. They're not conditions imposed on any existing rights you had. A contract is an agreement between two parties. Both parties must agree to a contract for the contract to be enforceable. Contracts can take away rights you otherwise have. You don't need a license or contract to use a copyrighted work if you lawfully possess a copy of that work. Say you download a copy of a work covered by the GPL. You can refuse to accept the GPL license and you can still use that work. Why? Because no law prohibits you from doing so and there is no civil cause of action for using a lawful copy of a work under US law. But now say you want to give a copy of that work to your friend. This is illegal under US law because 17 USC 106 restrict that right to the copyright holder and there's no applicable exception since that's not part of the ordinary use. For a work covered by the GPL, the license offers to give you that right, a right you wouldn't otherwise have. It imposes conditions on you that are specifically in exchange for the grant of the new right. If you do accept the GPL, it functions as a contract. You got in exchange a right you didn't have before and if you don't comply with the GPL's terms, you don't have the copyright holder's permission to exercise those rights which is required under the law. By contrast, a click-through or EULA takes effect when you agree to it and such agreement is a condition for using the software. That's a pure contract and usually doesn't give you any rights you wouldn't have in the absence of such an agreement other than the use of the software. | The idea for an app is not subject to copyright. Only the artifacts of the app itself (sourcecode, images, texts, sounds, etc.) can be. So if one only copies the idea and creates their own version of all the other assets, then they are not violating copyright. However, in some cases, ideas can be subject to patents. But patents on software are tricky. First of all, only new ideas can be patented. When a supposed new idea was already published before, then that's called "prior art" and you can not patent it. Then getting a patent means a lot of investment in money and time (which is very different from copyright which you get automatically the moment you make something copyright-worthy). So not everything that could theoretically be patented gets patented. And then, many jurisdictions do not recognize software patents at all, and those which do have different limits on what is and is not patentable when it comes to software. This means patents are rarely a concern when copying the app idea of someone else, but not never. And another possible concern is the third pillar of intellectual property: Trademarks. This protects the name of the app. Trademark law oversimplified forbids to create a competing product with a name which might confuse customers. So if you created StevesSuperCoolAppForCoolPeople and I create StevesSuperCoolAppForCoolPeople - Simplified Edition, then I would be violating your trademark, because my product name sounds as if it was your product, when it is in fact an unrelated product with a similar purpose. | The creator of the software doesn't provide any warranty. If you feel confident in the quality of the software, nothing stops you from providing a warranty. If the software doesn't meet your guarantees, you will have to pay out because you provided the warranty, depending on the terms. Not the creator of the software because they explicitly didn't provide any warranty. If that's what you want to do, go ahead. I wouldn't. You don't have to republish under the BSD license, which you wouldn't. You must attach the license terms, which clarifies the role of the original creators, and that they don't give a warranty. Doing this allows you to copy the software. It doesn't mean you can't provide a warranty. |
UK: Returning damaged items without option for free replacement? I live outside of the UK, not a UK citizen or resident (I am also not a resident of the European Union), but I bought several items in the online store of a large UK department store chain. The transaction price made me eligible for free shipping. Many of the items arrived damaged, I took photos and got a refund for the items' value, not for the shipping, as shipping was free. On its web site, the store declares that damaged items of orders placed by customers located outside of the UK will not be replaced, only refunded. (Hence if I want a replacement, I will have to place a new order for the damaged items). However, in the time interval between the time when I placed the original order, and the time when the damaged items were delivered, the online store bumped up the prices of the damaged items. Also, since now I have less items to order, I will not be eligible for free shipping (unless I choose to add some items which are not really necessary to me, just to reach the threshold required for free shipping). I wrote to their customer service about these two problems. However their response was that they do not send replacements to customers who are outside of the UK, and I will have to place a new order, with the new prices, as well as pay the shipping fee. Is this legal according to the UK law, even when I am not a UK citizen? | Yes, it's absolutely legal. It turns out that UK retailers offer replacement out of their own politeness and are not required to do so by law. If they gave you refund then that's all they need to do. | 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. | No Let's consider a similar scenario. If you made a beverage which poisoned a number of people, would you be absolved of liability because you gave it away for free? Of course not. As there is no contract between you, they would have to bring an action against you in the tort of negligence or negligent misstatement OR under consumer protection law. To succeed at tort they would need to prove that you owed them a duty of care; from Donoghue v Stevenson "You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure ... persons who are so closely and directly affected by my act that I ought reasonably have them in contemplation ...". Most cases will founder on your inability to foresee the use to which your software may be put. Consumer law is jurisdiction specific but they generally contain warranties that what you provide (gratis or otherwise) is fit for purpose, merchantable and that you do not make false and misleading statements. There is a chance that a case brought under this sort of law could succeed as you have not limited the purpose, specifically declared that it is not of merchantable quality and have (presumable) said what it does so that, if it doesn't do what you said, you have been misleading and deceptive. | What is the name of the crime and/or tort I have committed? You are guilty of the crime of fraud, the crime of theft of the money and the item (I can't point you to the precise statute). You have breached your contract of sale. You are probably liable for fraud civilly (i.e. you could be sued for fraud). But, if one was really creative, I imagine that one could find more grounds for civil and/or criminal liability, although they would probably be unnecessary since the victims have plenty of remedies to secure all possible relief already. Who gets to keep the object? Under the Uniform Commercial Code, Article 2, in the United States, the general rule is delivery of possession by the seller (which didn't really happen here to one distinct person), but for unique goods, title passes when the unique good is identified to a contract with a buyer, so first in time to contract, first in right to the car, would probably prevail. But, I don't know what the rule would be in England and Wales. Is it handled differently if the "valuable physical object" is real estate? Land is harder to defraud someone with, because a reasonable person knows that in England and Wales real estate title is (usually, but not always) represented by a certificate of ownership maintained by a public official in the Land Registry, and is easily checked (about 15% of land in England and Wales show in the link is not registered so the possibility for deception is somewhat greater in that context). Also, generally, you don't pay for real property until you simultaneously receive payment in good funds, while brief extensions of credit for a non-perfectly contemporaneous sale transaction are more common in cases involving tangible personal property. | Could the store give the customer credit or must they actual return the money? The store has the legal obligation to return the money if the customer demands to be reimbursed. Section 155(4)(a) of the BC Business Practices and Consumer Protection Act explicitly provides reimbursement "to a consumer or class of consumers". The store's unilateral, inflexible decision to give the customer credit in lieu of a reimbursement is in violation of sections 8(3)(a) and 9(1) of the Act. That approach constitutes undue pressure to enter into an additional consumer transaction, more so where management is aware of the issue and refuses to fix it. | The retailer You can try making a subject access request under Articles 15(1) and 15(3) of the UK GDPR. Provide as much information as you can (your name, date of purchase, store you purchased it from, copy of the receipt, etc.) and ask for the serial number. If they still have it, and it is stored in a way which is linked to you in an identifiable way, then they are obliged to provide it without undue delay (and in any event within 30 days). You may want to provide a copy of your passport in the request to pre-empt them coming back with an ID check request under Article 12(6), which then allows them to delay processing the request until you have replied. As stated above, if they no longer have the data or you are not identifiable from the data then they do not have to provide it. If they do have to provide it but refuse then you can complain to the Information Commissioner's Office or ask the County Court for a compliance order under section 167 of the Data Protection Act 2018. The insurer Regulation 3(1) of the Consumer Protection from Unfair Trading Regulations 2008 prohibits "unfair commercial practices". Regulation 3(4) provides that a commerical practice is unfair if, inter alia, it is listed in Schedule 1. Paragraph 27 of Schedule 1 contains the following item: Requiring a consumer who wishes to claim on an insurance policy to produce documents which could not reasonably be considered relevant as to whether the claim was valid, or failing systematically to respond to pertinent correspondence, in order to dissuade a consumer from exercising his contractual rights. As you've provided proof that you purchased the item, you can try to argue that having the serial number of the lost item can not "reasonably be considered relevant". Yes, the contract says that you must provide it, but consumer rights legislation overrides contractual provisions. You may also want to consider dealing with the insurer by email/post instead of by phone, (a) to avoid continuing to waste time on hold, and (b) because if they systematically fail to respond then this may also cause them to be in breach of the above provision, (c) to acquire evidence which you can use later. Escalating If you get no results from the insurer, make a formal complaint to them through their complaints process. Under the FCA Handbook rule DISP 1.3.1R, the insurer is required to provide a complaints procedure. Under rule DISP 1.6.2R they are required to provide a final response to a complaint within 8 weeks. If you are not happy with the response, you can escalate the complaint to the Financial Ombudsman Service which has the power to make financial awards pursuant to section 229 of the Financial Services and Markets Act 2000 ("FSMA"). Doing so is free of charge and is therefore a good alternative to going to court. The ombudsman can also make awards that are not strictly based on law (i.e. they can go further than the courts can) because of section 228 of FSMA which provides that: "A complaint is to be determined by reference to what is, in the opinion of the ombudsman, fair and reasonable in all the circumstances of the case." You must generally escalate a complaint to the Ombudsman within 6 months of receiving your final response from the insurer (rule DISP 2.8.2R). | Yes, but ... It doesn’t protect you. Let’s imagine you put such a clause in and a person in Europe used your service notwithstanding: they’ve broken the contract but you’ve broken the law. You get the fine and they get ... nothing. Because you can’t contract outside the law you never had a valid contract with them so you have no basis to sue. Further, because you are purporting to something you can’t legally do, you are probably on the wrong side of misleading and deceptive consumer protection law: which is another fine. If you can ensure that you don’t breach local law - like by not operating over the internet - then you can choose not to deal with e.g. Europeans. If you can’t guarantee that, then you’re stuffed. | Yes there is If no estimate is provided, the reasonable time is 30 days. Findlaw's page on Shipping Goods and the 30-Day Rule says: If the business is unable to ship within the promised time or within 30 days, the merchant must promptly tell the customer by mail, telephone or email, and give a new shipping estimate and give the customer a chance to cancel their order and receive a full refund. This offer to cancel or accept the new shipping date must give the customer sufficient time to make a decision. In other words, you can't call to inform a customer you can't make a shipping time and then demand an immediate answer. If the 10-12 estimate has passed, and the merchant has not notified the customer "promptly", say withing a week, the customer is entitled to demand a full refund,m with no "restocking fee" and the FTC can enforce this. The FTC has wide ranging powers to enforce the 30-Day Rule. Businesses can be sued by the FTC for injunctive relief, damages of up to $16,000 per violation, and redress for the consumer. Additionally, state and local agencies can sue [a merchant] for violating consumer protection law And This FTC page says: The Rule requires that when you advertise merchandise, you must have a reasonable basis for stating or implying that you can ship within a certain time. If you make no shipment statement, you must have a reasonable basis for believing that you can ship within 30 days. That is why direct marketers sometimes call this the "30-day Rule." If, after taking the customer’s order, you learn that you cannot ship within the time you stated or within 30 days, you must seek the customer’s consent to the delayed shipment. If you cannot obtain the customer’s consent to the delay -- either because it is not a situation in which you are permitted to treat the customer’s silence as consent and the customer has not expressly consented to the delay, or because the customer has expressly refused to consent -- you must, without being asked, promptly refund all the money the customer paid you for the unshipped merchandise. ... When you learn that you cannot ship on time, you must decide whether you will ever be able to ship the order. If you decide that you cannot, you must promptly cancel the order and make a full refund. If you decide you can ship the order later, you must seek the customer’s consent to the delay. You may use whatever means you wish to do this -- such as the telephone, fax, mail, or email -- as long as you notify the customer of the delay reasonably quickly. The customer must have sufficient advance notification to make a meaningful decision to consent to the delay or cancel the order. The page goes into significant further detail on a merchant's obligations. All of this applies to "goods a customer orders from the seller by mail, telephone, fax, or on the Internet." It would not apply to goods ordered in person at the store. |
Will a copyright holder lose the right to enforce copyright if they're not enforcing it on some stuff, or even just have problems enforcing it? I'll give an example to make the question more clear. Recently a person uploaded and made public a clone of Super Mario, able to run on Commodore 64. This is clearly not just a pirate copy of the old game, but it could contain such a thing. Regardless, even if he coded and drew everything from scratch, he still violated Nintendos copyright. So say Nintendo which promptly 4 days later had enforced their DMCA takedown and the content was pulled. Now, comments I see many places online relates to how un-nice that was of Nintendo. Typically it ends with something like "- It's not like they're losing any money over this". Now, is this comment actually true? Let's assume that Nintendo doesn't sell this particular game any more so from actual sales, let's assume the meaning of that comment is true. They won't lose a sale to this clone because they're simply not selling the game. However, ... I recall having read that if a copyright holder doesn't enforce his copyright claims, for things like older content in this case, they risk having problems enforcing copyright claims on new stuff. So my question is this, is this true? Will a copyright holder get some kind of problems enforcing copyright on new, still-being-sold goods, if they're lax on protecting older goods? In other words, if Nintendo looked the other way in this case, could they risk having problems enforcing DMCA takedowns and copyright claims on copies or clones of Super Mario Bros on Switch (as an example), a game which still sells quite nicely I suspect? | No, this is not true. Copyright can be enforced selectively. You are confusing copyright with trademark. Company can lose its trademark if they aren't protecting it. All the meanwhile they can choose to ignore some copyright infringement while enforcing their rights on others with no legal problems what-so-ever. In order to illustrate the difference: for example, if someone would make a clone of Super Mario and would call their clone as well "Super Mario" and maybe even would call themselves "Nintendo", even if they have programmed the whole game by themselves from scratch and the art and music would be all different, they wouldn't be infringing the copyright but challenging protected trademarks. In your case, the naming was identical, the art and everything was too similar to the original and therefore the clone was challenging the trademark that needs constant protecting. | Short Answer No, you may not do this legally without permission in the form of a license from the owners of this intellectual property. Your video game based merch business plan is a horrible, horrible idea. There is no reasonable way that you could have known just how horribly awful and bad an idea this was without talking to someone familiar with the law. So, I'm not saying that this was a stupid or unreasonable question. But, now, you know. And, you should run away from this idea as fast as you can. Long Answer What you are proposing to do is blatant infringement of copyright (and trademarks) through the creation of derviative works, on a systematic basis, for profit, without permission, in a manner that does not constitute a parody or satire or any form of fair use. This kind of economic activity is precisely what copyright and trademark laws are designed to prevent. The case against you for liability could only get more clear if you were selling pirated copies of the game itself. You would have no legal defenses (other than statute of limitations if they waited to many years to sue you, which they almost certainly would not). You would be liable for statutory damages of up to many thousands of dollars per infringing item and the attorneys' fees the intellectual property owners incurred to sue you. The owners of the games could probably get a court order to destroy all of your merchandise, and a restraining order and injunction to force you to immediately shut down your business at any time. They could obtain all of those remedies without sending you a cease and desist letter before suing you. The moderately likely worst case scenario economic liability that you would face would be on the order of 100 times the amount of profits you could hope to make in a best case scenario, and the likelihood that you would incur some significant civil liability is on the order of 85%-90% (with almost of of the little or no civil liability percentage attributed to scenarios in which the company doesn't notice that you are infringing upon its intellectual property rights). Also, the more profitable you are and the higher the volume of goods you sell, the more likely you are to be sued. The liability risk to profit ratio grows with each additional dollar of profit you make. There is a good chance (perhaps 65%-75%) that they could establish that your violation was willful and wanton in these circumstances, which would also prevent you from discharging any part of the massive judgment against you in bankruptcy. So, there is a better than 50% chance that you'd be stuck with an intellectual property rights infringement debt, which could easily run into the high hundreds of thousand or even many millions of dollars, plus post-judgment interest at a rate similar to the market rate for high risk junk bonds, for the rest of your life. In terms of the economic harm involved to you, this would be almost as bad as having all of your property seized and then being sold into slavery for the rest of your life, if a coin toss bet comes up tails, but you get to keep the coin if it comes up heads. A settlement in which you turned over every penny you ever made in the venture, destroyed all of your products, shut down the business and paid them an additional low five figure amount in lieu of penalties and attorneys' fees would be a very generous offer. You would also face a real risk (perhaps 10%-15%) of some low level felony criminal liability (perhaps several years in prison). This is a business plan that is so toxic with immense, near certain liability risks of the worst possible kind that you should put on gloves before picking it up and tossing it into your nearest available fireplace or campfire. This business plan poses more liability risk to you than opening up a nightclub, bribing your contractors and code inspectors to ignore all fire and electrical codes, painting the walls with turpentine, padlocking all of the exit doors from the outside, changing a $1 cover and selling booze at cost to get huge crowds, and then booking bands with lots of fireworks in their stage shows on a nightly basis. (Yes, I really had a client who was stupid enough to come up with this business plan until I talked him out of it.) From a civil liability perspective, you would have less exposure to economic liability if you started a business that involved abducting random cats and dogs and goats off the street and charging customers to forcibly rape and then mutilate them, while filming it for distribution on the Internet with your real name and fingerprints in a watermark on every image and close ups of the animals collar tags and the goats' brands. The likelihood of criminal liability would be quite a bit greater (perhaps 60%-80%), however, even though the punishment if you were convicted of felonies for the bestiality business would be similar to the punishment for a conviction for copyright and trademark infringement. (Thankfully, I have yet to see a client try to implement this business plan.) Go hire someone to secure a license from the intellectual property owner for you (perhaps an IP lawyer or an agent or broker), or forget about it. This is an industry where you absolutely must be legitimate, and you have to go big or go home. The economies of scale are simply too immense to ignore. If your anticipated gross sales aren't at least $500,000 a year or so, you probably shouldn't even consider doing it whether it is legal or not. A license, if you could get it, would probably cost $6,000 to $12,000 in professional fees to negotiate (if you could accomplish this feat at all), perhaps a similar amount for an upfront fee to the intellectual property holder, and probably 10%-35% of your profits on an ongoing basis. This is because the market rate of licenses of this kind are geared towards what large scale distributors selling wholesale to Wal-Marts, department stores, and national mall chains could bear (I have some clients that happily pay these kinds of license fees so they can sell branded products, manufactured in China and then imported, on a high volume national basis.) The license fees would be a huge bargain by comparison to your economic exposure to infringement liability. But, if even the licensing fees (if you could negotiate a deal to pay them) are too expensive, then, this business plan doesn't make economic sense even with permission in the form of a license from the intellectual property owner. In that case, you should instead go into the lemonade stand business or buy a food truck, or become an Uber driver, or open a coffee shop or a liquor store, or something like that, with less liability risk and a more proven business model. If you must make video game merch without permission, do it in a back alley of a small town in rural Mexico on a cash only basis (where lots of people do stuff like this without getting caught), rather than an online store, where any bored paralegal or network manager in the video game company's law firm can find you at a moment's notice and might win a promotion or a raise or a bonus for doing so. | The owner of IP owns the abstract thing that is protected by law (the intellectual property), and not the concrete product that relied on (illegally) using that abstraction. The person who made the thing, or to whom he sold it, owns the object. If you buy a disk with pirated or non-pirated software, you own the disk, and if you bought it legally, you probably bought a license to use the software. Using "pirated" to refer to the class of things legally manufactured (not stolen, not using stolen components) but in violation of IP law, pirated goods might be subject to seizure by the government (it would be slated for destruction), but the goods would not be the subject of a prosecution for theft. While infringement of IP rights is often called "theft", it doesn't have all of the elements of theft: you do not deprive the owner of the thing that they own. | What are exactly the legal consequences of "All rights reserved"? Almost none. You have to explicitly grant copyright rights. You don't even need the Copyright notice for them to apply. My "almost" is because the notice makes it harder for somebody to argue "they didn't realize". Do I still need an additional SW License Agreement or is the Copyright notice above + a Disclaimer of liability sufficient? If this is free software (I know you said it isn't), do yourself (and everyone else) a favour by picking a license you like. Preferably either GPL or MIT (depending on your taste). There are far too many free licenses already. Please don't add another. (It also makes it much easier for any user of your software: "Oh yeah, GPL v2. We understand that. We can use it." as opposed to "What are the implications of using this one??" As this is not free software, I think you need a paid-for lawyer (who understands IPR in your juridiction.) Edit: In principle, I believe you don't need anything. The code is copyright, so the customer can't do anything with it (without explicit permissions that you haven't granted). However if the customer doesn't realize that or thinks you won't mind, you then have to go to court to enforce your rights (and probably end up with a disgruntled customer). A short, clear, license will make it clear to the customer what they are allowed to do, and save all that aggravation. | Both the displayed site (including all text and images) and the html, css, javascript and other code that generates the display are protected by copyright. This is true in pretty much every country. You would not be able to reuse them lawfully without permission, unless an exception to copyright applies. If no exception applies, and you have not obtained permission, this is copyright infringement. In most cases copyright infringement is treated as a tort (a civil matter), not as a crime. This means that law enforcement generally will take no action and have no interest in such a situation. The copyright owner could sue for infringement, and possibly collect money damages. In the US, statutory damages can be as high as $30,000, or up to $150,000 for "wilful" infringement, or as low as $750 (per work infringed). Or actual damages can be collected instead. In other countries, actual damages plus costs of suit are more likely, but the rule can be different in each country. The possible exceptions to copyright vary significantly in different countries. In the US the major exception is Fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? and I have a question about copyright. What should I read before I ask it? for more information In general short snippets of code can probably be used under fair use, but substantial parts of the code or the displayed site are less likely to qualify as fair use. And if it is illegal then why are there so many legal open source or paid software and applications for cloning of website like httrack, cyotek, webcopy etc? Most of these tools have legitimate uses, including learning how a site is constructed without distributing copied content; and cloning or partial cloning of a site with permission. Even if the tools were mostly used for unlawful copying, that might well not be a high priority for law enforcement, and cross-border law enforcement (which this in many cases would involve) is often much harder for the police and other authorities. | 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. | Generally speaking, it is illegal for you to do this. Copyright gives the creator of the image the exclusive right to copy it, and just making copies to send to other people is probably not going to be fair use. Making copies without a license from the copyright holder would therefore be copyright infringement. Are there likely to be any consequences for doing this? Probably not. | Copyrights, in general, relate to the right of copying or reproduction. Another’s copyright may be substantially violated and causing harm even if one doesn’t monetize on it: A free access to the work of art may mean that anyone who would otherwise pay for a copy or any sort of license will not pay. This is the reason why in most countries torrenting is illegal. The last question is rather difficult to answer in a meaningful way: If one doesn’t get caught ever then one doesn’t get caught; if one does, then he does. I haven’t found the channel through which such unauthorized copies would enter “the public domain” and therefore it is hard to even make a guess on the probabilities of such infringement to be discovered and one getting sought damages on. There are exemptions under “fair use” rights mostly in common law jurisdictions, and there are examples of non-enforcement or decriminalization in certain other jurisdictions under certain conditions. (See also: Is it illegal to infringe copyright if your boss or your client ordered you to do it?) |
Can the police require you to sit if you are not under arrest In the following video, the narrative is that the police asked the young man to switch off his phone. He refused. They asked him to sit down. He refused. They then used violence to put him on the ground: https://www.youtube.com/watch?v=A-QLZNTjqOQ Do people have to comply with a policeman's order to sit on the ground? | You can be under arrest before you are handcuffed and the police officially read you your rights. The problem from the citizen perspective is that there is no bright line test that tells you whether you are under arrest, and the courts can find that there was no arrest at a point where the suspect was handcuffed and confined to the back of a police car (United States v. Bullock, 632 F.3d 1004) – you can be merely "detained" for an investigatory stop while in cuffs. One test that might be used is asking if you are free to go about your business. A reasonable person could decide whether they were under arrest by the nature of what the officer says. For example, if he says "It would help us if you could stand over there" or "...if you could sit down", it is reasonable to conclude that this is an urging but not a command. On the other hand, if he says "Sit down, now!", it is unreasonable to think that that is a mere suggestion or plea, it is an order. There is no specific Arizona law that says when police can order you to do something, nor is there a specific law saying that force may only be used in such-and-such circumstance. There generally are guidelines for police conduct, and the guidelines tend to grant much leeway to officers (until it gets to be a recurring problem and the guidelines are changed). An example is Seattle, whose police manual reduces the question to the statement that "An officer shall use only the force reasonable, necessary, and proportionate to effectively bring an incident or person under control, while protecting the lives of the officer or others". But this does not say whether one must obey police orders. In Oregon v. Ruggles the court sympathetically notes that Whether a particular police order is “lawful” is frequently a complex question involving some of the most vexing and intractable issues in constitutional law. For example, a police order such as “Stop!” can be an unlawful seizure of a person under Article I, section 9, of the Oregon Constitution, depending on whether the order is accompanied by a sufficient show of authority and the officer who issues the order is subsequently found to have lacked reasonable suspicion to believe that criminal activity was afoot. But Oregon has a statute, ORS 162.247(1)(b), requiring you to obey a lawful order by police. The court found that you don't have to know whether the order is lawful. Arizona has a related statute, ARS 13-2508 where resisting is defined as intentionally preventing or attempting to prevent a person reasonably known to him to be a peace officer, acting under color of such peace officer's official authority, from effecting an arrest including the means of "Engaging in passive resistance" (which is "a nonviolent physical act or failure to act that is intended to impede, hinder or delay the effecting of an arrest"). Arizona law frames the resisting crime in terms of "effecting arrest", which is different from what Oregon law says: (a) Intentionally acts in a manner that prevents, or attempts to prevent, a peace officer or parole and probation officer from performing the lawful duties of the officer with regards to another person; or (b) Refuses to obey a lawful order by the peace officer or parole and probation officer. But even if an individual in Arizona is not chargeable with resisting arrest for failing to sit (because the officers were not effecting an arrest), that does not mean that police cannot order you to sit – it just means that it's not a separate crime to fail to comply. | They can’t But they aren’t This is the law (as amended). Section 9 contains the penalties. In any event the police don’t fine people they issue an infringement notice which is an allegation of an offense - police can issue these even if they reasonably believe they took place - they are entitled to be wrong. The person given the notice can admit the offense by paying the fine or contest the allegation by going to court. | Is asking police to justify their orders illegal? NO but the manner in which the "asking" is done may be. | A witness who disobeys a court order has automatically broken the law. Indeed, this is the most fundamental of laws; you can't decide "If I turn up to the hearing I may be punished for my crime; but not attending isn't against the law, so goodbye." A witness who goes out of the jurisdiction cannot, of course, be punished while there (though when he returns he may have to explain why he chose to leave having been warned that he must attend or face penalties- that is the meaning of sub poena). But your assumption that anybody who fails to attend probably had a good reason betrays a fundamental, though common, misunderstanding. A court has determined that your evidence is necessary for justice to be done. There is therefore no good reason not to attend. It may well be that a doctor would prefer that you did not go to court that day, and if you apply to the court it may be possible to find some arrangement. But you are not allowed to decide 'my convenience is more important than discovering whether the defendant should go to jail or not". Civilised countries have people who are empowered to make that decision; they are called judges, and the decision has been made. | If you consent, the evidence can almost certainly be used against you. Florida v. Bostick, 501 U.S. 429 (1991) ("Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual's identification, and request consent to search.") If you refuse consent, it is not clear whether the evidence can be used against you, as we don't know why the officer is asking to frisk you. A stop-and-frisk must be supported by a reasonable and articulable suspicion that you have just committed or are about to commit a crime, and that you are at that moment armed and dangerous. If they reasonably suspect you have just committed a crime but do not reasonably suspect you are armed and dangerous, the police may stop you, but they may not search you. That point is worth emphasizing because several other answers are incorrectly assuming otherwise. For one example, in Thomas v. Dillard, 818 F.3d 864 (9th Cir. 2016), the police responded to a report of domestic violence. Based on their reasonable and articulable suspicion that the suspect had committed that crime, the police stopped and frisked him. Because they had could reasonably explain why they thought he had committed a crime, but could not reasonably explain why they thought he was armed and dangerous, the court said the stop was legal, but the frisk was not: Whereas the purpose of a Terry stop is to further the interests of crime prevention and detection, a Terry frisk is justified by the concern for the safety of the officer and others in proximity. Accordingly, whereas a Terry stop is justified by reasonable suspicion that criminal activity may be afoot, a frisk of a person for weapons requires reasonable suspicion that a suspect is armed and presently dangerous to the officer or to others. A lawful frisk does not always flow from a justified stop. Rather, each element, the stop and the frisk, must be analyzed separately; the reasonableness of each must be independently determined. Even then, the search is basically limited to a minimally intrusive patdown to ensure you don't have any weapons on you, and the officer is generally not permitted to actually search inside pockets or the like, though the search may escalate based on what the officer is able to feel during the patdown. Minnesota v. Dickerson, 508 U.S. 366, 375–76 (1993) ("If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, ... its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.") The refusal to respond generally operates as a refusal to consent. The police are therefore free to conduct whatever search they could have conducted without your consent. If they have a reasonable, articulable suspicion that you're carrying a gun, they can probably frisk you to see if that's the case. If they have a warrant to search your pockets, they can search your pockets. If they don't have any of that, they need to keep their hands to themselves. | You don't know. You can't know. And you can't force the officer to tell you. Detention Status As a practical matter, you have no way of knowing if you are compelled to follow an officer's order because you are being detained unless the officer volunteers that information (your detention status) which they are not compelled to disclose and have every incentive not to disclose. Consider the situation when the officer does not have reasonable suspicion do detain you. If the officer instantly informs you that you are "free to go" then you are likely to leave and end the encounter immediately. However, if the officer says nothing, then you might stay and inadvertently say or do something that would give the officer reasonable suspicion to detain you from that point forward. Your behavior during that detention could lead to probable cause, arrest, etc. Every officer knows they have nothing to gain by being quick to tell you you are free to go. Deceptive Conduct To compound the issue, police encounters are particularly problematic because police officers have a lawful right to engage in deceptive conduct during an investigation including but not limited to lying. You, on the other hand, can be prosecuted for lying to the police conducting an investigation. (See this article for more information.) Hobson's Choice Therefore, all things considered, police encounters present a Hobson's Choice. Either comply with every order in an effort to end the encounter quickly. Or try to press the officer to determine whether you are "being detained" or "free to go." The former course of action voluntarily cedes some of your rights. The latter risks "provoking" the officer into making your encounter more difficult, painful or costly than it otherwise might be. Never Consent to Searches That said, you are never under any obligation to consent to a warrantless search of your home or vehicle. Typically, saying, "I do not consent to searches." is usually sufficient if asked. Evidence obtained from warrantless searches is barred from being used at trial unless you waive this right by consenting to the search. See this question (and answers) if you are concerned about the officer falsely claiming you gave consent if you didn't. Never Talk to the Police As a legal matter, talking to the police can never help your case in court. Anything you say to the police that might help your case (i.e., exculpatory) is not admissible as evidence because it's hearsay. On the other hand, anything you say to the police can and will be used against you. In fact, even if you are completely innocent of all crimes AND you are completely 100% truthful to the police, you can still give the police all they legally need to convict you of a crime simply by talking to them. Whereas, without your statement, they would not have had sufficient evidence to convict. See this Youtube video for more details and examples of how this can and does happen every day. Practical Matters The above analysis presents the reader with some practical concerns. You don’t want to risk being harmed by an officer in fear for his safety. You don’t want to be handcuffed and taken to the police station if you can avoid it. You must obey all unconditional commands of a peace officer. It does no harm to inform the officer that you are willing to comply with all unconditional legal commands and ask him or her if a given command is, in fact, unconditional. Some attorneys go in the opposite direction from the "never talk to the police" rule and advise that, say in the case of a domestic violence dispute, the best course of action is to answer police questions matter-of-factly, never lie and never admit guilt. That course of behavior can avoid a potential trip to the police station in handcuffs in the back of a police car even if you are never ultimately arrested. TL;DR: Police encounters are tricky. It's difficult to know what to do. The best course of action is to educate yourself about your rights and the law and apply judgment and common sense to guide your behavior to achieve the best outcome. I am not an attorney. I am not your attorney. This answer is not legal advice. Please consult an attorney to obtain proper legal advice. | It seems to not be allowed for a UK police to lie. The Police and Criminal Evidence Act 1984 makes it illegal for the police to mislead a suspect in order to make them believe that the police have evidence which they do not or that the evidence they have is stronger than it is, or that there is a possibility of leniency (for example in return for ‘cooperation’) where none exists. Realistically, there is no reason that a police officer might lie to a suspect during interview. Also see from innocenceproject.org: The law does not allow lying to suspects, under any circumstances. | The 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. |
Can a platform become a publisher through it's actions? Platforms such as social media sites are protected under Section 230 of the Communications Decency Act, this allows platforms to avoid liability for most content posted by its users. Publishers, on the other hand, do not share the same type of protection that platforms have against things like slander and defamation because they choose to maintain the ability to edit or remove the content shown on their site at any time. Can a platform curate the content on its site to the point where it is legally considered a publisher and loses protection under section 230? | Yes. Content not created by a user is not protected by Section 230, and if the platform agents or employees begin to substantively edit content, the platform becomes a co-author rather than merely a platform for that content. | A simple EULA does not absolve you from legal responsibility. The law that you need to be acquainted with, if you are dealing with the US (i.e. might be sued in the US), is the Digital Millennium Copyright Act, in particular Title II, the Online Copyright Infringement Liability Limitation Act which states the "safe harbor" provisions. Aspects of DMCA safe harbor are covered in many Law SE questions. In essence, you have to provide a way for rights holders to complain that someone has infringed their copyright on there site, and you have to take down allegedly infringing material: and there are a number of legal formalities to attend to in doing this. The main point is that you can't just ignore the problem and hope it goes away, and you can't just say it is not your responsibility, which is what a simple EULA does. To be protected, you need a "designated agent" where complainers can contact you. You provide the information online (as well as stating the DMCA policy, which can be in the EULA), and also register that information with the Copyright office (online). The complaint has to be in writing, and most of the burden is on the author of the complaint, but you still have to be sure that the complaint is legally conforming. The complaint has to say what was infringed (e.g. the URL), the identity of the protected content (title of the book, for instance), and provide the complainer's signature and contact information. It also requires the complainer to say that they have a good faith belief that the material is illegally copied (no permission, and not otherwise allowed by law), and a perjury statement that the foregoing is accurate and authorized by the copyright holder. When you have a conforming notice, you must "expeditiously" remove / disable the infringing material (there is no definition of "expeditious"), notify the user, then wait for a proper counter-claim (same general form as the take-down claim but where the user denies the posting the material was illegal. If you get a counter-claim, you notify the alleged copyright owner and wait for them to file suit in 10 days. If they don't do that, you restore the material. Here is a sample complaint, and a sample counter notice. Also, this document (look for the download tab) reorganizes the legal language so that requirements are put in logical order and not randomly scattered throughout the US Code. | Business question Since a license agreement/terms of use document is a contract between the publisher and the end-user, and since minors are prohibited from entering into legally binding contracts in most U.S. states, how can any sort of terms be legally enforceable? Legal question May an online publisher enforce its product license agreement/terms of use against a minor ? Answer Yes, an online publisher can enforce its product license agreement/TOU against a minor until such time the minor voids the agreement. Discussion The opinion of the court in C.M.D. v. Facebook 2014 WL 1266291 (N.D. Cal. Mar. 26, 2014), Inc. discusses this very legal question and clarified that terms of service of Facebook are enforceable against minors who use websites and further suggests that to disaffirm such terms of service, minors likely must terminate their accounts and stop using the website. The key question in front of the Judge in this case was whether the contract at issue between minors and Facebook - was one of the narrow types of contracts with minors that were void, or if the contract was merely voidable under California Family Code 6701. The court rules in favor of Facebook. | "Educational use" does not get a free pass on the law against circumventing copy-protection. First, "educational use" is extremely broad and could include "to post on Stackexchange", or "so that I can learn something". The cited clause specifically limits this exception to "A nonprofit library, archives, or educational institution" – the library must be nonprofit, and the archive or educational institution may also need to be nonprofit (until the courts fix the ambiguity in the scope of "nonprofit"). Second, the circumvention has to be very limited: the purpose must be only to evaluate the work, to see if you want to legally acquire it. So a nonprofit library can peek into a work to see if they want to buy a copy, but you may not. The only thing the library can do is evaluate the work for legal acquisition, and they have to get rid of the pirated copy once they've made the decision. Additionally (other parts of the subsection say), they can't do this is there is an equivalent legal copy available (e.g. if there's a print book available, they can't hack into the e-book to "determine" whether they want the book), and w.r.t. libraries and archives they must be open to the public. | In general this is protected by the first amendment. It is not in general a problem describing how one can one can do something illegal. But there are special cases to be careful with. You might want to do some research into the limits on free speech. It would be hard to provide an answer that fully covers all your different cases and you would need to be more specific about what illegal activity you want to describe. In describing how to do something illegal, you might accidentally share information that you are not allowed to share. When you post things online, this can be considered as publishing or exporting. Therefore certain export restrictions might apply. Also, It is illegal to publish bomb making manuals, with the knowledge or intent that this information be used to commit a federal crime of violence. See https://www.law.cornell.edu/uscode/text/18/842. There are restrictions on publishing material relating to cryptography without having an export license. Granted, this isn't necessarily related to publishing things that are illegal, but just to give an idea about how publishing/exporting knowledge can causes problems. See https://en.wikipedia.org/wiki/Export_of_cryptography_from_the_United_States ITAR (International Traffic in Arms Regulations) sets restrictions on what you can publish about arms. What you publish can't be “directed to inciting or producing imminent lawless action.” See for example https://en.wikipedia.org/wiki/Brandenburg_v._Ohio. One might imagine that you could get into trouble if someone interprets what you do as inciting or producing a lawless action. It might sound obvious, but you want to make sure that you have the right to share the information that you have. The information that you are providing might be copyrighted in some way. | This is not (necessarily) copyright violation It's possible that Quora's usage falls within Fair Use. At the very least, the argument could be made. If it does, then there is nothing that Stack Exchange or the OP can do. Stack Exchange can choose not to protect their copyright Unlike trademarks, which lapse if not protected, copyright endures. Therefore Stack Exchange can pick and choose the copyright fights they want to get involved in and those they don't. If you have brought it to the attention of the copyright owner (or, in this case, licensee) and the copyright owner chooses not to act then you have done all you can and significantly more than you have to do. The OP has copyright I note that one of the examples is your question. As the copyright holder, you are free to issue a DCMA takedown notice on Quora if you feel your copyright has been violated. | 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. | At what point is unsolicited explicit material considered harassment? How do the advertisers have the right to broadcast something that I would definitely bring up to HR if I heard a coworker say? The contexts are too different. One cannot expect much similarity on how the unsolicited explicit communications are addressed. On platforms such as Youtube the unsolicited explicit material is not sent specifically to you, but to a set of users who at best have some characteristics in common. By contrast, akin communications in a work environment are much likelier to constitute harassment insofar as they usually are intended for a specific person. Your own use of the term "broadcast" reflects your acknowledgment of that difference. Another difference relates to the recipient's dependency on the environment where the unpleasant communications occur. Implicit in the anti-harassment protections in a work environment is the acknowledgment that the recipient's livelihood depends on that person's continued employment. That dependency renders such communications a form of coercion. By contrast, dependency is much lower or non-existent when it comes to entertainment platforms: the recipient can leave the platform without any consequences that might threaten that person's livelihood. Have I entered into an agreement with the service provider than I consent to receiving these advertisements by using their services? That is hard to tell. You will need to read the terms of service of these platforms and post another question if some clause(s) is(are) unclear. |
Is there an "high altitude mountain climbing age" within the United States? Recently, two teen record-holding climbers (one was 12 and the other 13) were killed in a small avalanche. This led to heated debate in (social) media if it is legal to allow children to practice high altitude mountain climbing since their ability to understand the actual risk is arguable. Doing a quick search I found that it is not that uncommon for children to aim for the highest peaks, as this boy or this girl. This article dives into legal details, but there seems to be two main legal opposite forces and no clear answer: Courts have repeatedly recognized parents' Fourteenth Amendment rights to make decisions regarding their children's care without undue interference from the state. Parents have the right to consent or object to their children's medical treatments. Parents have a right to decide whether their kids attend public or private school. Parents have a right to discipline their children while Parents' right to make child rearing decisions are limited by a states' child abuse and child endangerment laws. While the laws may vary, most states criminalize child endangerment. Question: Is there an "high altitude mountain climbing age" within the United States? Or at least, was there any political intention to clearly define a legal frame for this particular case? I mean a minimum age a child is allowed to practice high altitude mountain climbing. This would be similar to smoking age, legal drinking age or age of consent. | In General: No There is no federal law and, as far as I can tell, no state law which sets an across-the-board minimum age on mountaineering or climbing. I based this on searching through the statutes of several states with mountains, as well as the web pages for some parks. Many states' park services had wording like this (taken from the Colorado Springs webpage): Although there are not age limitations for rock climbing, all climbers including children must register. Climbing is an inherently dangerous activity. Technical Climbing is at your own risk. The City of Colorado Springs does not install, inspect, nor maintain the fixed protection devices.Your safety is your own responsibility. Specific Example However, in some specific cases, governments have set age limits. Here is one such example: Mount Rainer: 18. Mount Rainer is a national park located in Washington state. The National Parks Service requires anyone attempting to climb Mount Rainer to be at least 18 (source). | Context is important. There is no law against taking a picture of a child who is entirely naked or exposing certain body parts. The laws in question such as 18 USC 2251 refer to the fact that the minor "engage[s] in, any sexually explicit conduct". Sexually explicit conduct is defined in 18 USC 2256, and would include "lascivious exhibition of the genitals or pubic area" (which does not include nipples of anyone). Federal law does not define "lascivious", but the ordinary meaning of the word does not include the situation that you describe. The Justice Department, which goes after child pornographers, provides this guide to federal child porn laws. Georgia's child porn law is only marginally different, referring to "Lewd exhibition" rather than "Lascivious exhibition" , and including the "Condition of being fettered, bound, or otherwise physically restrained on the part of a person who is nude" (so a picture of a person holding a naked baby would technically qualify, but is highly unlikely to be prosecuted as production of child porn). These laws pertain to any form of child porn, including "private use only". Dissemination would be an added charge. | According to this chart i googled and the associated table, child porn is actually not explicitly illegal in most of the world. Basically, a bunch of countries in Africa, and a couple in Latin America and Asia, don't appear to regulate kiddie porn at all. A couple of others (like Argentina, Russia, and South Korea) allow possession, but not distribution. A couple of countries protect "virtual" kiddie porn (cartoons, computer renderings, etc where no actual child is being abused). The US is among these. (Pretty much has to be, due to the First Amendment.) Obscenity laws may apply, though. | This is unlikely to give rise to criminal charges in the U.S., if the bare bone facts of the question are all that is involved. It does not count as child pornography. But possible offenses might include contributing to the delinquency of a minor (a minor misdemeanor), or perhaps enticing a minor to travel in interstate commerce for sex, neither of which are likely to come up in a case where no travel occurs until both parties are adults. The potential offenses, unlike child pornography offenses themselves, would generally include defense for good faith mistakes regarding age. The situation in Turkey could be more serious. While I can't identify a particular offense, if the participants were of the same sex, even though homosexuality is not outright banned in Turkey, as it is in many predominantly Islamic countries, this could be characterized as an "offense against public morality" in Turkey. In either a same sex or opposite sex circumstance, it might be characterized in Turkey as some form of illegal seduction, or perhaps as some implicit form of blasphemy. Even if it didn't give rise to criminal charges, it might also be used as a basis for severe parental discipline, or as a basis for finding that someone lacked "good character" in a civil context, in either country. Of course, unless the interaction is known, identified with real people, and brought to the attention of law enforcement, nothing would happen. | The B.C. Human Rights Code exempts age restrictions for 55+ in relation to tenancy. See Human Rights Code, s. 10. The subsection prohibiting discrimination in tenancy on the basis of age "does not apply": if the space is a rental unit in residential premises in which every rental unit is reserved for rental to a person who has reached 55 years of age or to 2 or more persons, at least one of whom has reached 55 years of age Further, as to condominium bylaws, in 2022, the Province enacted Bill 44, the Building and Strata Statutes Amendment Act, which makes any strata age restriction below the age of 55 invalid (which you have quoted a portion of). Human Rights Tribunal The Human Rights Tribunal can only provide remedies for claims arising under the Human Rights Code. Given that the Human Rights Code does not provide a basis for discrimination claims in tenancy when the age of distinction is 55+, any valid strata by-law relating to age of residents will by definition fall outside of the scope of a Human Rights Code complaint. And even when the Strata Property Act allowed all sorts of age restrictions, the BC Human Rights Code does not provide a remedy when the distinction is authorized by another act (see s. 41(2); Hallonquist v. Strata Plan NW307 and another, 2014 BCHRT 117): Nothing in this Code prohibits a distinction on the basis of age if that distinction is permitted or required by any Act or regulation. Constitutional challenge in a court You also ask about a challenge in a court. I assume you consider that the challenge would be based on s. 15(1) of the Charter (equality rights). There are three potential targets of the challenge: the strata by-law that restricts residency to people aged 55+; the provincial statute prohibiting strata by-laws from imposing any age restriction unless it is an age restriction based on an age not less than 55 years; the carve-out in the Human Rights Code for tenancy restrictions for ages 55+ The Charter challenge to the strata by-law itself would face the barrier that a British Columbia court has held that stratas are not "government" for the purpose of the Charter, so are not subject to Charter challenges: Strata Plan NW 499 v. Kirk, 2015 BCSC 1487. I have quickly added this final portion in response to a clarification of the question, but there is more to say. I will return to explain the law relating to partially ameliorative legislation. | Yes or no, depending. The question is investigated in "The Status of Pregnant Women and Fetuses in US Criminal Law" (JAMA), which collects 23 opinion in US jurisdiction. In Reinesto v. Superior Court, 182 Ariz. 190 where the court ruled that the state cannot prosecute for child abuse a woman who uses heroin during pregnancy and thereafter gives birth to a heroin-addicted child. However, in Whitner v South Carolina, 492 SE 2d 777 the court did find the mother criminally liable for child abuse, based on prenatal drug use. The South Carolina case is the sole example of that type, in the study (published 2003). Charges range from child endangerment/abuse, illegal drug delivery to a minor, or fetal murder/manslaughter. The general finding is that since a fetus is not legally deemed to be a person (in those jurisdictions, at that time), where was no "child abuse". South Carolina, on the other hand, reasoned, here and in prior cases, that We have no difficulty in concluding that a fetus having reached that period of prenatal maturity where it is capable of independent life apart from its mother is a person. A different study ("Criminal Charges for Child Harm from Substance Use in Pregnancy", JAAPL) which included cases up to 2015, found a slightly different distribution but generally concludes that courts do not consider maternal drug use to be a legal question. That article also cites a web page which at the time is purported to say that 18 states allow civil child abuse proceedings. In Chenault v. Huie (Texas), the court found that Texas does not recognize a cause of action in tort for injuries to a child that result from the mother's negligent or grossly negligent conduct while she was pregnant with the child but according to the more current Guttmacher Institute study, about half of the states have such a civil cause of action. | What you're asking about is extraterritorial jurisdiction, and it will depend on the country and crime(s) involved. As an example, under Australian law, it is a crime to engage in sexual activities with minors barring specific exemptions, which are not relevant to this example. There are countries where the age of majority is less than that in Australia. If you were to travel to this country, you are not necessarily committing a crime there. However, Australia's sex tourism laws make it a crime to do this anywhere in the world. This is enacted (I believe) under the foreign affairs power of the Commonwealth Government. It will largely depend on the legal system of your country, as to whether laws have extraterritorial effect. In general, however, laws do not have extraterritorial effect unless explicitly stated. | Does a minor saying, "I want my mommy" have the same legal effect as an adult saying, "I want my lawyer"? NO If a suspect in police custody asks for a lawyer, the interview must stop. If the suspect invokes [assistance of counsel during custodial interrogation] at any time, the police must immediately cease questioning him until an attorney is present. Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) This is known as the Edwards Rule because it was born in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) It doesn't work this way in school because interrogations by school officials are not subject to Miranda. This is important because the reason for the Edwards Rule is preventing officers from badgering a suspect into waiving his previously asserted Miranda rights. See Davis. There is no authority requiring a school administrator not acting on behalf of law enforcement officials to furnish Miranda warnings. Com. v. Snyder, 597 N.E.2d 1363, 413 Mass. 521 (Mass., 1992) New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1984) held that teachers and school administrators do not act in loco parentis in their dealings with students. "In carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely as surrogates for the parents." The point to all that is to say that school officials do not need to change course at all when a student asks for a parent. Schools do need to question students. A school official must have leeway to question students regarding activities that constitute either a violation of the law or a violation of school rules. This latitude is necessary to maintain discipline, to determine whether a student should be excluded from the school, and to decide whether further protection is needed for the student being questioned or for others. State v. Biancamano, 666 A.2d 199, 284 N.J.Super. 654 (N.J. Super. A.D., 1995) Perhaps the better way to ask the question is - if the school interrogates the child and refuses to contact a parent upon request by the child, is there any recourse by the child or his family? 20 U.S.C. § 6736(a)(2) provides immunity for teachers: (a) Liability protection for teachers Except as provided in subsection (b) of this section, no teacher in a school shall be liable for harm caused by an act or omission of the teacher on behalf of the school if...the actions of the teacher were carried out in conformity with Federal, State, and local laws (including rules and regulations) in furtherance of efforts to control, discipline, expel, or suspend a student or maintain order or control in the classroom or school. States have passed their own similar laws. For example, Colorado: 22-12-104. Liability. (1) An educational entity and its employees are immune from suit for taking an action regarding the supervision, grading, suspension, expulsion, or discipline of a student while the student is on the property of the educational entity or under the supervision of the educational entity or its employees So, if a student is being questioned by a teacher or administrator, and asks for a parent, there is no federal or state law which requires the interview to stop. Once arrested, the parent question varies by state and you get some information about this in the link you provide. This memo does a good job of summarizing a few states' laws. Basically, most states require the police to initiate various levels of parent involvement for kids under 18. Some states make exceptions to this rule for 16 and/or 17 years olds. Also, many state laws require certain action by the school (in regards to contacting parents) when police come to the school to interview students. There is an amazing volume called Compendium Of School Discipline Laws And Regulations For The 50 States, District Of Columbia And The U.S. Territories which provides a lot of these rules. |
Can official information protected by attorney-client privilege be shared with personal lawyer? During a homeowners association executive session, the board members were given a briefing protected under attorney-client privilege. A board member is now concerned about his/her personal liability due to the (in)action of the board as a whole. The Association's lawyer (hired to represent the Association, not individual homeowners) presented the board members with information about prior case law which directly affects how the Board should handle a specific topic. Before giving his presentation, the lawyer stated that the "following information I am going to share is protected by attorney-client privilege. It is being given to you in the official context of being elected board members. You may not share this information outside of this meeting without the express permission of the Board by way of vote." Can an individual share with his/her personal lawyer, attorney-client privilege protected information learned while acting in his/her official capacity, in order to determine personal liabilities? | Attorney-Client privilege is a one-way duty: The Attorney has to maintain protected information in confidence. It's a professional duty supported in law. There is no corresponding duty for the Client to maintain anything in confidence. The client can waive the privilege at will. Some sample limitations to waivers are governed by Federal Rule Evidence 502. (Granted, in this scenario the concerned board member may be bound by some confidentiality agreement or fiduciary obligation as a consequence of service on the board, or membership in the association, but that's a different matter.) The ABA points out , in its article "How to Lose Attorney-Client Privilege" that: Either voluntary or inadvertent disclosure to outside or non-covered recipients, professional advisors outside the privilege, and experts and consultants, can result in waiver as a matter of law. In this "Ten Things" article the author points out: Business advice, however, is never privileged and – for in-house counsel in particular – the line between the two can appear blurry. ... If a document that is otherwise privileged is shared with third parties, then the privilege is lost. ... A common misperception among the business is that all confidential information is privileged or if they label the communication as privileged they can keep the documents out of the hands of third parties. As we’ve seen, this is not correct and the fact that there is a non-disclosure agreement or other type of confidentiality agreement in place will not make a document privileged nor will it preserve the privilege if it is disclosed to a third party. | Revealing such information might be an example of an Invasion of Privacy tort, specifically "Disclosure of Private Facts". Not all US states recognize this tort. The Findlaw page on "What is Invasion of privacy" says: Public disclosure of private facts laws protect your right to keep the details of your private life from becoming public information. For example, publicizing facts about a person's health, sexual conduct, or financial troubles is likely an invasion of privacy. While state laws vary, the general elements of this tort are as follows: 1.The defendant publicized a matter regarding the private life of the plaintiff; 2.The publicized matter would be highly offensive to a reasonable person; and 3.It is not of a legitimate concern to the public. To publicize a private matter, laws generally require that the private information is disseminated in such a way that it is substantially certain to become public knowledge A linked sub-page of the above says: Generally, disclosure to one or two people does not constitute a public disclosure unless there is an implication that the information should be spread around. The Digital Media law Project's page on "Publication of Private Facts" says much the same thing. The 1976 law review article "The First Amendment Privilege and Public Disclosure of Private Facts" by Samuel Soopper Discusses this tort in some detail, although it mostly focuses on publications by the news media where first amendment issues are in play. It seems as if such a tort case might be hard to bring because of the small number of people to whom the fact was disclosed. A claim for Intentional Infliction of Emotional Distress might fit such a situation, but this would depend on the specific facts of the case, and again, on the state where the issue would be tried. In any case, this would not be a criminal action, and a lawyer would have to be consulted to better determine if a civil action could be pursued. | Does the above represent a conflict of interest for the associate and/or company X? Yes. This is in violation of, for instance, rule 1.9 of Michigan Rules of Professional Conduct (MRPC). See also Ulrich v. Hearst Corp., 809 F.Supp.229 (1192). Commentary in MRPC regarding Lawyers moving between firms explains: there is a presumption that all confidences known by a partner in the first firm are known to all partners in the second firm. See also Audio Mpeg, Inc. v. Dell, Inc., 219 F.Supp.3d 563, 574-575 (2016): Though the attorney in question has not made an appearance in this case, he "could have" — and did — "obtain[ ] confidential information in the first representation that [is] relevant" here. [T]he surety that he received confidential information from Plaintiffs [...] weighs heavily in favor of W&S being disqualified even though he is not working on this case. [...] Moreover, the attorney possesses confidential information which could harm Plaintiffs if used by one of the W&S attorneys who has appeared in this case and works in his office. Your description reflects that, in his former employment, the junior associate has confidential information which can be used in a way materially adverse to the interests of the former client. The junior associate violated the aforementioned rule insofar as X already "start[ed] a countersuit or [took] another action" using the junior associate's knowledge. This warrants disqualification of X's law firm as in Audio Mpeg. But disqualification might not suffice. X itself might already have become aware of the disclosure by the junior associate. That enables X to use that information even if it switches law firms. This might estop X from asserting counterclaims, at least those that otherwise would be covered by the tolling of the statute of limitations in this multi-year litigation. | No, you are not obligated to provide the requested information. You're out of trial court and into the court of appeals, where the civil discovery rules have basically no effect. If the case gets kicked back to the trial court, you would likely be required to respond truthfully. To cover your bases and look responsible, the most proper thing to do would probably be to respond to the discovery requests, but answer with nothing but an objection to the requests on the basis that the Rules of Civil Procedure do not apply after the case has been dismissed. At that point, the burden is on the other party to make a motion to compel, which he probably won't do. And if he does, I'd expect the court to deny it summarily based on the dismissal. | Absolutely not. Lack of authority Law enforcement officers do not have the authority to grant immunity from prosecution. The decision to prosecute lies with the district attorney's office. Courts have sometimes held that a promise of immunity by a police officer can make resulting statements inadmissible, but that's it -- the state is not bound by the police officer's promise to not prosecute, except in exceptional cases. They can gather other evidence and prosecute anyway. Prospective immunity The contract claims to provide immunity against prosecution for future crimes. Contracts against public policy are void, and I'm having trouble thinking of something which is more against public policy than a license to commit crimes. No one can offer that immunity through contract. In a recent trial of a Boston mob boss, he attempted to claim that a federal prosecutor had given him immunity for any and all future crimes for some time period; the court did not accept that, because a license to break the law is not a valid contract. Public authority There is a situation in which certain officers can grant authority to break certain laws: to catch bigger criminals. However, for fairly obvious reasons, there are extremely strict rules on when this is valid, both on the government procedure side and the claiming-the-defense side. The defense can only work if the defendant honestly believed the government had authorized his actions, if the government actually had authorized them, or if he followed official government legal advice. In this case, the defendant has no idea if government officials have agreed to the terms; he would have approximately no chance of convincing anyone he legitimately thought that the government approved of his actions. They certainly wouldn't be actually properly authorized, and he hasn't sought advice from the government. Other issues Police aren't the only people on this site. An investigation tends to involve one or more non-government agents who provide testimony in court. No contract with a private party can stop them from testifying in a criminal trial; certain relationships mean testimony isn't allowed (e.g. a lawyer can't testify about dealings with their client without client permission), but regular users could be required to testify against the site operator (possibly on the basis of actual immunity). Sources Public authority stuff: this Justice Department page, plus some discussion in this order. Prospective immunity: that same order. Lack of authority: myriad readings. | The law on the web page is not current: as of the beginning of the year, RCW 23.86.030(1) reads (you'll find this under Sec. 9103) "The name of any association subject to this chapter must comply with part I, Article 3 of this act" and is otherwise unchanged. In Article 3, sec. 1301 governs names, giving the sec'y some discretion to deem a name to not be distinguishable from another, saying in (3) "A name may not be considered distinguishable on the records of the secretary of state from the name of another entity by virtue of...variation in the words, phrases, or abbreviations indicating the type of entity, such as "corporation," "corp.," "incorporated," "Inc.,". It does not list "co-op", but there is no legal requirement that the list be exhaustive. This discretion is, however, related to distinguishability. However, (4) then says An entity name may not contain language stating or implying that the entity is organized for a purpose other than those permitted by the entity's public organic record. and I think that means "no". Note that LLCs, LPs, LLPs, business corporations, nonprofit corporations and cooperative associations all have name requirements of the type "must contain" and "may not contain" (a cooperative association, oddly, has no "must contain" requirements). I would say that we have to conclude that "legislative intent" was to more closely align names and legal status, and the new "purpose-implication" language isn't brilliantly clear, but that is what the intent of the law is. This is one of those issues that could easily work its way to the Supreme Court, if someone wanted to make a state case of it. | The relevant law for you is ORC 4705.07. (A) No person who is not licensed to practice law in this state shall do any of the following: (1) Hold that person out in any manner as an attorney at law; (2) Represent that person orally or in writing, directly or indirectly, as being authorized to practice law; (3) Commit any act that is prohibited by the supreme court as being the unauthorized practice of law. (This is a prime example of legal language that cannot be interpreted on the basis of rules of English -- the issue is the meaning of "that person"). This does not prohibit you from giving an opinion as to what the law is, which is a right protected under the First Amendment. You would be in trouble if you said "This is my advice as a lawyer". Section 2 b.t.w. says that only the Supreme Court (of Ohio) can determine if a person has committed an act on their don't-do-it list. Rule 7 pertaining to their procedure is here. Section 2 therein enumerates the relevant categories, which fall under the categories "rendering of legal services for another" and "Holding out to the public or otherwise representing oneself as authorized to practice law in Ohio", which is what the statute says. | If the two lawyers will never be on opposing sides of a case, there's no conflict of interest and thus nobody cares. For example, two lawyers in different fields probably won't encounter a conflict. If the lawyers are involved in the same field, there's a risk of a conflict of interest. Normally, the lawyers can shield themselves from legal trouble by disclosing the conflict any time it comes up. Where possible, the lawyers should avoid such cases before the conflict even starts (i.e., a lawyer should not take a case if they believe that the other lawyer will be on the other side). Similarly, disclosing the relationship to their boss allows their boss to avoid assigning such cases. In short: Such a relationship could have consequences, but a competent, ethical lawyer is unlikely to experience them. |
Is there any law in place for identifying yourself if telling "the news"? Is there any law requiring journalists, online editors or others who report or distribute news to accurately identify themselves? Do websites, such as Wikipedia and StackExchange, which many rely on for facts and answers, allow people to have multiple online identities? Does any law restrict this? If there are not such laws now in place, could there be? | There is no US law licensing journalists or people who report the news, or requiring such people to identify themselves by legal name. Nor can there be under the US First Amendment. There is also no law requiring a person to identify himself or herself by legal name online. Some sites, including Wikipedia, have policies against having multiple undisclosed user IDs for the same person, but that is a matter of the site's own rules, not a matter of law. Any US law mandating this would again run afoul of the First Amendment to the US Federal Constitution. This article on Anonymous Speech reviews and cites a number of US Supreme court cases on the subject of anonymity, mostly in political contexts. This article from the Electronic Frontier Foundation (EFF) discusses the same general subject. Both articles mention that The Federalist (analyzing and advocating for the then-unratified US Constitution) was originally published under the pseudonym "Publis". The EFF Article "Court Recognizes First Amendment Right to Anonymity Even After Speakers Lose Lawsuits" discusses the 6th Circuit case of Signature Management Team, LLC v. John Doe in which it was held that an anonymous blogger who lost a copyright infringement suit could nonetheless remain anonymous. This page apparently from a Harvard course, lists and briefly describes several cases on the same subject. In Doe v. Cahill, 884 A.2d 451 (Del. 2005) an elected official sued an online poster for defamation, and sought to force the ISP involved to disclose the poster's identity. The Delaware Supreme Court ruled against this, setting a standard offering greater protection for such anonymous online speech than previous cases had. This answer is very US-centric. Laws in other countries are different. The OP has not specified a country or jurisdiction. | Social media platforms are not publishers under UK law (at present), as such, they are not legally responsible for the content they host providing that there is a mechanism for alerting them to infringing material and that, when alerted, they remove it. As to "why", that is a political question. | In the United States at least, the answer is clearly "Yes". Absent some restrictive agreement to which the would-be blogger is explicitly a party, a person has a protected right to comment or report on events and publish opinions of them. The question does not mention a location or jurisdiction, and I am not suren what the law on this point might be in non-US jurisdictions. | I haven't found a recent case like this where it constitutes evidence. Military members didn't have an express right to remain silent until somewhere in the 1950s, so one chances are there might be cases prior to that point. The present right is codified in 10 U.S.C. 831, which is Article 31 of the UCMJ. That said, there is certainly a well documented adverse inference effect. While jurors aren't supposed to take the silence into account (e.g. when a defendant elects not to testify or exercises a right against self-incrimination), it's a difficult thing to do, practically speaking. | In the united-states, there is no general right for a person to control or approve a biography or other account of that person's life. Many biographies are "unauthorized", which simply means that the subject, or in some cases the subject's heirs or family, did not cooperate with the biographer. Sometimes this is even considered to be a point in favor of such a work, on the assumption that an "authorized" biography would tend to slant or even censor things to meet the approval of the subject or the subject's family. There are some restrictions on an unauthorized biography. The first and most obvious is the law of defamation. A biography that includes statements that are both false and defamatory about a living subject could be the subject of a winning lawsuit. Damages in such cases can sometimes be sizable. However, the person suing must show false facts in the work. In many cases damage to reputation must also be shown, although there are some categories of statement that are considered defamation per se, where injury to reputation is assumed and need not be proved. These include a false statement that a person committed a crime, and a statement that a person was guilty of professional misconduct. It used to be considered defamation per se to allege that a woman had had sex outside of marriage, but I doubt that a court would so hold today. Beyond that, in the US, if the subject is a public official or public figure, s/he must show actual malice, that is that the false statement was made knowing that it was false, or with reckless disregard for its possible falsity. This can be hard to prove. In most jurisdictions only the person defamed can sue for defamation. Once that person is dead, no such suit can be brought. Moreover, in the very rare case where a person's reputation is so bad that a court finds that it can suffer no meaningful further injury for certain allegations, even if these were found to be false, the court may dismiss such a suit. See Dykstra v St. Martin's Press New York Superior Court, New York County, Docket Number 153676 for an example. However this would only be relevant in the very unusual case of a "libel-proof" plaintiff, and even then if the conduct of the author or publisher was egregious, the court might hold that punitive damages were possible. The defenses of truth, lack of actual malice, and newsworthiness are far more common. Indeed defamation suits in general are hard to win and expensive to bring. In some US states there is available the tort of publication of private facts. This is different from defamation in that it can still be brought when the facts published were true, while truth is a total defense against a defamation suit. However a private facts suit must establish that the facts were in fact private, or at least not widely known, and that they were published in a way that would be grossly offensive to a reasonable person. Facts that are considered of "legitimate public interest" or "newsworthy" are also not generally protected. Moreover, not every US state allows such suits at all. See Diaz vs Oakland Tribune, Inc 188 Cal Rpt 762 (1982) for a case in which a Private Facts case was sustained, and the steps taken by the subject to keep a sex transition private were a significant issue in the case. In Hawkins vs Multimedia inc 344 SE 2nd 145 (1986) a South Carolina court held that a news story identifying a teenage boy by name as the father of an "illegitimate" child was not newsworthy and a private facts judgement including punitive damages was upheld. In the US, First Amendment protections have been taken to indicate that the courts will not suppress or punish speech or writing without good reason. This makes it harder to win suits over biographies. There have been cases of magazine articles about a particular person who is in no way famous but who was considered "typical". Such stories have in several cases been upheld against challenges as of "legitimate public interest". See Arrington vs New York Times Company 434 N.E. 2nd 1319 (1982) In that case the objection was to the use of a person's photo on the cover of the New York Times Magazine who was not actually mentioned in the story, and who alleged that he was not similar to those who were mentioned. The use was upheld. | united-states In some countries there are laws prohibiting publishing a person's picture without that person's consent. The US has no such general rule, and many other countries do not either. The details of such laws, where they exist, vary from country to country. In the US there are two kinds of legal action that might be used by a person to stop that person's image from being published. These are a suit for invasion of privacy, and a suit to enforce a person's right of publicity, also called a right of personality. These torts vary from state to state, and are not recognized at all in some states. Invasion of Privacy This has several variants, such as "intrusion upon seclusion", and "disclosure of private facts". Intrusion generally applies when someone has entered a private place, such as a dwelling, without permission, and has then taken a photograph, made an audio or video recording, or perhaps a written account, and has published or attempted to publish the image, recording or account. If and only if the publication would be "highly offensive to a reasonable person" then the subject or lawful occupant of the place invaded may be able to obtain money damages, or an injunction against publication. This would not apply to the fact pattern in the question, because the parents would have had a right to be in their own home, or anywhere that such baby photos are likely to have been taken. Intrusion can also apply to one who observes private activities without permission, even if no recording is made. But the "highly offensive" standard still applies. A "private facts" case generally applies when a person (or a small group, such as a family) has attempted to keep certain facts private, but some other person or business has published them (or attempted to publish them). A successful suit will in most states that allow such suits require evidence of some positive effort to keep the facts private, and that the publication would be "highly offensive to a reasonable person". This might possibly apply in the fact pattern described in the question. But note that the "highly offensive" standard applied to both of these privacy torts. Most typical baby pictures would not be considered "highly offensive", this is a fairly high bar. It would be a decision ultimately made by the jury or other finder of fact, I believe. For comparison, peeping on a couple having sex in a hotel room has been found to be highly offensive. When a person had sex with another, and had secretly arranged to record a video of the sexual encounter, and later distributed it, that was found to be highly offensive. Right of Publicity This generally prohibits using a person's, name, image or likeness, or "persona" to endorse or advertise anything, or for other commercial purposes, without consent. It is most often applied to unauthorized celebrity endorsements. Most US states have some form of this, but the details vary significantly. Unless the baby pictures were being used to advertise something, or in some commercial manner, this would not apply. If the parents sold baby pictures to someone who used them to advertise, say a day-care, or some baby product, this might apply, although it might be that the parents would be held to have had the right to act as the child's agent. If someone else downloaded the baby pictures from Facebook (or any other such site) and used them in ads, this might well apply. Conclusion It is unlikely in the US that a child could successfully take legal action against a parent for having posted pictures of the child, even if they were embarrassing, unless they were also "highly offensive". Even then such a suit would be unusual, and might not be successful. It is more likely that a request to the parent would be successful, unless the parties are on vary bad terms. A request to the site to take down such images might work, depending on the site's terms. A DMCA takedown would not work, because the subject does not normally hold copyright to an image, the photographer initially does (unless it is a work made for hire, in which case the employer initially does). This conclusion is specific to US law. The outcome would be different in at least some other countries. | No, the truth of the statement is the defense. It is true that The New York Times reported that A did X, even if it is false that A did X. Your claim is about the NYT, not about A. If you just repeat the false allegation (republishing it), that is libel. | An existing law actually prohibits using census data "against" a person, see this recent question. The 5th Amendment ("nor shall be compelled in any criminal case to be a witness against himself") is not interpreted to imply an absolute privilege to not answer, it means that your answer cannot be used against you in a criminal case. You can be compelled to testify "against yourself" if you are granted immunity from prosecution. |
How do I tell if a settlement offer is good enough? Is there a formula to tell if an out-of-court settlement offer should be accepted for a civil claim, instead of taking the claim to a trial? (In economics there is something called an expected value formula when you multiply the probability of success times the reward. Then you can compare it to the offer and determine which one is higher.) | The expected value formula involves multiplying the estimated dollar amount of each possible outcome by the estimated probability of that outcome adding up the result for every possibility. The results for each outcome have to include the ability to pay if you win and the cost of collecting if you win and the time value of money if not settling delays getting you paid. This formula is routinely used in litigation to evaluate settlements, but it is only a starting point, it isn't the only factor that should be considered. You need to consider the margin of error in the estimates. A big margin of error in the best or worst case scenario, or in a small probability, can make a huge difference. You also need to recognize that it is well known that the best lawyers who ultimately get the best results, routinely overestimate the strength of their own cases, and that clients usually overestimate the strength of their own cases as well. This is a well known cognitive bias and you need to correct for it. You need to include reaching a settlement later on, but before trial, in your list of possibilities. Often, even if it make sense to settle, making an offer at just the right moment instead of a less opportune time can make a big difference. Similarly, you have to consider the case from the other side's point of view to get a realistic sense of what the other side might be willing to pay. If it seems very likely that they would be willing to pay more, you might not want to accept an offer even if the amount offered would be good enough to be an acceptable result for you. You need to consider the future litigation costs that are avoided by settling, both in terms of dollars paid to lawyers and litigation costs, and in terms of lost time, expense and opportunity costs to you or your firm. You need to consider the economic harm that you may suffer from not having the matter resolved now rather than later. For example, suppose that your firm is about to have a public offering of stock, and if the litigation is not settled, the litigation will have to be disclosed and will have a disproportionate negative effect on the price investors will be willing to pay in the public offering. It may pay to settle a case for "more than its worth" to avoid the economic harm caused by having the litigation still outstanding. You need to consider the economic harm potentially caused by information disclosed in the context of a public trial which would reveal information that there is economic value in keeping secret, or that might encourage others to bring additional lawsuits. You need to consider the long term strategic impact of each possible outcome when considering each possibility and in considering settlement, and not just the impact in the immediate transaction. Once something has been proven in court, that loss in one case can frequently be held to have been judicially established in future cases in many circumstances. For example, if a contract term is determined to have a particular meaning in a lawsuit, and the court interprets it in an unfavorable way, that could influence the economic value of another 200,000 outstanding contracts with the same language where the meaning of this term has not been resolved in litigation, and it could open the door to a class action lawsuit against you on behalf of a class consisting of all 200,000 counter-parties with you on this contract. If it the contract interpretation makes only a $5 difference in each case, the incentive to prevent that from being resolved against you in court could be huge. On the other hand, if a corporation that engaged in many transactions gets a reputation for easily settling weak cases for generous amounts, they will be bombarded with frivolous lawsuits. Expected value really only makes sense with these adjustment and also only for repeat players in cases where the outcome of any particular case will not materially affect the person considering a settlement and there are no long term strategic effects, such as large employers and large companies in consumer cases that try to force other parties to resolve disputes with them on a case by case basis in confidential arbitration hearings that don't create precedents. It is less useful for one time participants in the legal system in a case with life changing consequences, as the benefits and costs of an outcome may be non-economic or may be non-linear (although this can be solved by more accurately valuing the dollar amounts in an expected value formula to consider the total impact of a particular result rather than the naive immediate payment). This non-linear factor is critical in these cases, however, because the personal utility value of an outcome is not strictly a matter of average dollar return. To give a simple and fairly common example, suppose that you have a case where you have a 70% chance of winning and a 30% chance of losing. If you lose you get nothing and pay nothing. If you win, you get $10,000,000. The expected value is $7,000,000. But, if you have someone who has never had real money in their life and will never have an opportunity to get real money in their life ever again, settling for a 100% chance of getting $3,000,000 could very well be better than getting a 70% chance of getting $10,000,000, because to that person the difference between getting $3,000,000 and $10,000,000 may not be very important, but the difference between getting at least $3,000,000 and getting $0 would be huge. One of the reasons that plaintiffs like to use class action lawsuits is that handling one big all or nothing cases causes businesses to stop thinking like expected value repeat player robots, and to start thinking like individuals who participate in litigation one time with high stakes, causing them to accept less optimal settlements for them relative to expected value to avoid the risk of a big disaster. Paying settlements or losing a modest percentage of small cases now and then won't harm anyone's career. Losing a big life or death of the company case after going to trial when a settlement that was a better deal was an option will cost the entire management team their careers and get many of the lawyers at the firm handling the defense of the case fired as well. | This would appear to be a simple application of contract law - the exchange of money for a promise (to sell at a fixed price in the future). Option contracts are only regulated if they relate to options over securities (like company shares) - not if they are over personal property (like baseball cards). | A true settlement is a full settlement of all outstanding issues in the case, and if accepted, would moot the availability of punitive damages or any other award by the court. | Civil litigation involves general causes of action that are available to anyone, including both private parties and the government. Civil courts are designed primarily to provide restitution to the injured party. Criminal courts exist for governments to exercise their police powers: specific, limited authority held only by the government. The principal purposes of criminal law are...well, they're debated, but broadly speaking, it's to punish and/or rehabilitate the criminal and deter future criminals. Because criminal conviction can result in jail time and even the death penalty, there are more stringent procedural protections accorded to criminal defendants than there are to civil defendants. So when the government's goal is to recover damages, it's easier for them to use the less burdensoome civil procedures, just the same as anyone else would. Let me give you an example. Someone steals your identity and runs up $100,000 on your credit card. You call the police, and they find someone they think is the guy. To convict him, the police must convince an entire jury panel that he did it, beyond a reasonable doubt--a high standard. He pleads the fifth, and without his testimony, the police may not succeed. If they do, he will be sent to jail, and he may also be ordered to give part or all of your money back. If the case is weak, however, the police may not want to spend their limited time on it--and that's their call, not yours. (This also applies to government agencies; only law enforcement can bring a criminal case, not any government agency.) However, you can also file a civil lawsuit. In that lawsuit, depending on the jurisdiction, you may only need to convince some of the jury--civil verdicts don't always have to be unanimous. You may even just face a judge, with no jury. And the legal standard is a "preponderance of the evidence," which in layman's terms just means "more likely than not"--a much easier thing to prove. Because the Fifth Amendment doesn't apply to civil litigation, you may even be able to argue before the jury that the defendant's refusal to testify suggests he's guilty. In summary: civil lawsuits use different rules and procedures, which may make it easier to recover money (or get other civil relief, such as an injunction) in cases where that's the goal. These courts are open to anyone, including the government. But if the government wants to use its special police powers to put someone in jail or get other criminal relief, they have to use the stricter criminal rules and procedures. | 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. | For a contract (including ToS) to be valid, one of the things it must have is "legality of objects". That is, if the contract purports to require anything that is unlawful in the jurisdiction then (barring a severance clause) it is not a contract. In common law countries, the starting point is that people are free to contract for and about anything they like - a contract is simply a mechanism for exchanging value between the parties on whatever terms they wish. However, judges and legislatures have decided that there are some things you cannot trade and some terms that are unconscionable or against the public interest and these vary from jurisdiction to jurisdiction*. For example, a contract is not legal in any jurisdiction if its terms seek to exclude the intervention of the courts - this is against public policy. So for example, a binding arbitration clause requiring the parties to accept a private arbitrator's decision as final excludes the courts, yes? Well, in Australia, yes, such clauses if used in a contract between parties with different bargaining power (like a Telco and its customers) are invalid because they prevent the weaker party pursuing a class action. However, they are perfectly legal in the United States because the SCOTUS has determined that the customer can persue litigation after arbitration is finished so this doesn't impede the courts. These are essentially the same laws interpreted by the courts so that they have totally opposite effects. So this might lead you to think that you'll put one in - it'll be OK in the US and Australians will represent such a tiny share of your market that you don't care if I can't enforce my ToS there. Except, if your website is visible by Australians, you have just exposed yourself to a government fine of up to AUD 5,000,000 (say USD 3,000,000) per day for breach of Australian Consumer Law. As a general guide (which is very stereotypical), US jurisdictions are the most permissive in the rights they will allow their citizens to give up: the US attitude is that everyone is free to make the best deal they can. European jurisdictions are the least permissive in this regard: most European countries follow a more social welfare state model and the citizen needs protecting from themselves. Commonwealth countries tend to be more in the middle. | Some portions of your inquiry are confusing, as in "I insisted that we were going to continue to send money to the mortgage company if we don’t understand what the fees are for". It is unclear why you would continue to send money without understanding the reason for fees, especially since you purportedly sent "the complete payoff" already. What is an appropriate response to an email from a lawyer that says she’s going to withdraw from my case, because I would like to understand the additional fees and charges my mortgage company is charging (over and beyond the plan payment/payoff)? Rather than replying to the lawyer's email, it is more important that you timely file in court a response (with 2 or 3 copies) to her motion to withdraw and that you attend the court hearing (if any is scheduled). Don't forget to also mail your attorney a copy of your response. In the response, you will need to argue that your lawyer's refusal to adequately address your inquiries is in violation of the rules of "professional" conduct (with which attorneys are supposed to comply). By granting the attorney's motion, the court would improperly release her from pending obligations she has with respect to you. For instance, Rule 1.4 of Michigan RPC states: (a) A lawyer shall keep a client reasonably informed about the status of a matter and comply promptly with reasonable requests for information. [...] (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (note: other jurisdictions in the U.S. have equivalent rules, so you will need to refer to their corresponding label) By pushing you to pay another $850 without actually explaining you the details of the "settlement" with mortgage company's counsel, your lawyer clearly is failing her duty to reasonably inform you of the matter for which you retained her. Therefore, your response should substantiate that a granting of the attorney's motion to withdraw ought to be conditioned on the fulfillment of her obligation to provide you with reasonably sufficient information which you as her client are entitled to obtain. It will help if you attach to your motion & brief an exhibit showing that the mortgage company actually directed you to inquire of your lawyer the clarification(s) you are pursuing. Once you take care of that issue, I encourage you to seriously assess (and proceed accordingly) whether your attorney's misconduct merits being reported with the entity in charge of disciplining lawyers for their legal malpractice. If I were knowledgeable of bankruptcy law, I would be happy to address your first question. I can only suggest you to do some research on leagle.com to become acquainted with how courts decide bankruptcy issues. Be sure to set parameter "Search By Court" to "Federal Bankruptcy Court". | Yes, there is a good chance. Ordinarily, the law as written is what is enforced. On occasion, the wording of the law is actually ambiguous, or vague, which means that the jury will need an instruction as to how to interpret the law. In fact, juries are not literally read the statute, they are given a set of decision-making instructions so that they can decide "If we find X, we must acquit; if we find Y we may convict". Your attorney will, if he is diligent, note the problem and strive for an instruction that favors the client. (The prosecution will of course object). Eventually, on appeal, a court will decide what the law "really means", and that decision might be strictly based on the letter of the law, or it might be based on a supposed spirit of the law, i.e. what the legislature "originally intended". That outcome is determined in part by the jurisprudential ideology of the prevailing justices of the appeals court. Usually, letter of the law prevails until a higher court rules that a particular "spirit" is what was originally intended. |
Is a contract valid if it releases a party from liability for probable injury? Suppose party A contracts with party B to release party B of liability for all possible injury resulting from party B providing party A a service in which there is significant risk of injury. If a strict probability figure is needed for this scenario, consider it >= 50%. This is in California. Question form 1: This probability figure is included in the contract. Question form 2: This probability is common knowledge (e.g. jumping out a third story window) | A release from liability for negligence is generally enforceable. A release from liability for intentional acts is generally not enforceable. Note also, that at a sufficiently high percentage risk (e.g. 99%), describing the source of the liability as negligence rather than an intentional act is, as a practical matter, no longer viable with respect to any party who is in any respect the cause of the injuries. Where that threshold lies would have to be determined on a case by case basis. | Suppose the shop bills you $2000 and you have a $750 deductible. You pay them $750, your insurance company pays $1250. Now suppose instead that the shop purports to waive the deductible. In order to get the insurance company to pay $1250 they still have to bill $2000. Then they don't collect the $750 from you. Presumably they write it off as bad debt. It smells like insurance fraud to me, on two counts: first, the shop expects to receive $1250 for a service but they produce a bill of $2000 for the insurance company's benefit and then do not seek payment from the insured party for any balance purportedly due beyond $1250. Second, the insured party has a contract with the insurer undertaking to pay the first $750 of the claim but has conspired with the shop to avoid paying that amount through deception. Had the shop played by the rules, they would have billed $1250 and the insurer would have paid $500. The shop isn't waiving your deductible; it's getting it out of the insurance company by fraud, with your collusion. Another way of handling this is that the auto body shop submits an estimate for the cost necessary to restore the car to a certain degree but then restores the car to a lesser degree. If everyone is aware that this is happening then it might be acceptable, depending on the terms of the insurance policy. | There are none. Damages against B’s clinic? A does not have a contract with B’s clinic. No duties nor rights without a contract. Damages against B? A does not have a contract with B. If there was a contract, we need details about it. Tort, § 823 Ⅰ BGB? No. B was neither negligent nor did he/she deliberately incur damage. Report B as criminal? A and B had consensual sexual intercourse. This consent (necessarily) comprises the risk of transmission. You cannot give “consent to facts” though. Yet here B had no knowledge of his/her contagiousness. He/she definitely did not deliberately infect A. Negligence is out of question, because there is no general expectation to get regularly tested before having sex with anyone. | There are both statutes and customs aimed at preventing "Malicious Prosecution" and "Abuse of Process." (In Pennsylvania, for example, the 1980 Dragonetti Act allows the victim of a frivolous lawsuit to counter-sue for compensatory damages.) One can also buy insurance against this type of risk: Umbrella liability policies will generally provide a defense against civil lawsuits and any damages awarded, as will many business insurance policies. Of course, none of this is to say that a skilled legal team can't avoid all of these countermeasures and, in practice, take up a significant amount of your time and trouble. We do not have a perfect system of justice. | Do I have any recourse for invalidating all or part of the contract? No. There is a presumption in contract law that when a contract is reduced to writing then what that writing says is what the parties agreed. Also, if you signed it, then you are legally stating: I read it, I understand it and I agree to it - don't sign things you don't understand. If your lawyer has produced something you don't understand then have them redraft it until you do. Would a successful suit against the lawyer for malpractice or negligence make any difference? No. A suit against you lawyer may get you damages from your lawyer but it will not affect the rights of third-parties. What is best practice for avoiding flawed contracts like this in the first place? Read and understand the contract. Educate yourself enough in the law so that you can do this. Your lawyer is there to give you professional advice; you are there to make your own decisions. | Jurisdiction is a complex topic, and any detailed answer is going to depend on the national law of the states in question. However, there are two general principles to bear in mind: Jurisdiction is rarely exclusive; it is possible to be subject to civil or criminal jurisdiction in any state where you do business; and Jurisdiction can (usually) be accepted or waived by contract. This is the practical answer to your question: almost every contract contains a clause saying something like: "The Parties agree that the law of Norway applies to all matters arising under this agreement and agree that all lawsuits concerning the subject matter of this agreement shall be brought exclusively in the Norwegian Super Deluxe Court for the district of Oslo. The parties waive, to the extent possible under the relevant law, all rights to litigate matters related to this Agreement in any other court." These choice-of-forum provisions are not 100% enforceable--and, again, a lot is going to depend on the law of the forum you're disclaiming--but they often are, in both common law and civil law jurisdictions. | My findings so far are: It does appear to be against public policy at least in California and Oregon. In California outlawed statutorily — Ins. Code § 533 provides: “An insurer is not liable for a loss caused by the wilful act of the insured; but he is not exonerated by the negligence of the insured, or of the insured’s agents or others.” Also on point is Civ. Code, § 1668: “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law." Affirmed, for e.g., in Tomerlin v. Canadian Indem. Co., 61 Cal.2d 638, 39 Cal. Rptr. 731, 394 P.2d 571 (Cal. 1964) “[A]n insurer may not indemnify against liability caused by the insured's wilful wrong (Civ. Code, § 1668; Ins. Code, § 533; see, e.g., Abbott v. Western Nat. Indem. Co. (1958) 165 Cal.App.2d 302, 305 [ 331 P.2d 997])” In Oregon, Outlawed by case law: “Despite variations in the language of the policies, this court has interpreted various policy provisions excluding insurance coverage for intentionally-caused injuries similarly. [...] For an exclusion from insurance coverage for intentional conduct to apply, "[i]t is not sufficient that the insured's intentional, albeit unlawful, acts have resulted in unintended harm; the acts must have been committed for the purpose of inflicting the injury and harm before either a policy provision excluding intentional harm applies or the public policy against insurability attaches." [Citation.]” Ledford v. Gutoski, 319 Or. 397, 877 P.2d 80 (Or. 1994) | Read your policy Insurance contracts spell out in excruciating detail in which circumstances they are on risk and which they aren’t. For example. In that policy, page 39 excludes "Loss or damage caused by lopping or felling of trees when this is performed or authorised by you, your family, or a household member". So DIY tree felling is at your risk. So is authorising a contractor to fell a tree (although you would presumably look to the contractor's insurer for restitution) You would be covered if a neighbour (or their contractor) dropped a tree onto your house or if a utility company did so. They didn't need or get your authorisation so the exclusion does not apply. |
Do UK law degrees qualify someone to work as a lawyer in the US? I am from Bangladesh. I did my Bachelor of Law, Masters in Law and the Bar (BPTC) from the UK. I have worked in the legal departments of companies and some freelancing in Bangladesh since 2012. I want to work in a the legal department of a US company. Can a company in the US hire someone like me for such a role? | Short Answer They will probably not hire you unless they have legal work that they need done in Bangladesh or the U.K. from a U.S. office. Long Answer Admission To The Practice Of Law In The U.S. A Bachelor of Law, Masters in Law and the Bar (BPTC) from the UK is not a satisfactory credential for employment as a lawyer in the United States. To be employed as a lawyer in the United States, you must be admitted to the practice of law in the U.S. state where you are employed (or in the District of Columbia, if you are employed there). Ordinarily, admission to the practice of law requires completion of a law degree at an American Bar Association accredited law school followed by a character and fitness background check and passage of the bar exam. It is plausible that one or more states would waive the law school requirement (in California, law school is not a pre-requisite to taking the bar exam, for example). Some states have exceptions to this requirement specifically aimed at non-U.S. lawyers. But, you will still need to take a bar exam preparation course which is typically six to eight weeks of full time study (since there are sufficiently significant differences between U.S. and U.K. law that you would probably not be able to pass the bar exam in the U.S. without it), and then pass the bar exam in a state that waived the completion of an ABA accredited law school degree, and then you will still need to complete the character and fitness review (which is very thorough). You do not need to be a U.S. citizen to practice law in the United States, but character and fitness review would almost certainly take longer. For example, a typical character and fitness review requires you to identify every place you have lived in your adult life and to provide a reference from each, and to list every traffic ticket you have ever been issued with proof that it was paid. These steps would be harder to implement for someone who has lived their entire life outside the U.S. These steps would typically take several months and would be inconvenient to conduct from outside the U.S. Immigration Requirements Of course, if the firm that hired you needed someone to engage in the practice of law in Bangladesh on its behalf, from its U.S. offices, that could be done immediately, if the employer were wiling to secure the proper work visa for you. However, even if you were qualified, usually employers aren't interested in obtaining a work visa for a foreign lawyer to do U.S. based work, as they have plenty of U.S. based lawyers admitted to the practice of U.S. law from whom they can choose. Also, many U.S. legal employers disfavor hiring someone with more than three to five years of experience, rather than someone fresh out of law school, because they want to impart to you their corporate culture and to hire someone who is junior to the existing legal employees to do the grunt work. You could be hired as a paralegal without the relevant credentials, but getting an employer to sponsor a work related visa for you (and obtaining such a visa as an employer) to be a paralegal would be very difficult. | If you're in the United States, another lawyer in a firm you've hired may or may not be your attorney, but it would not be uncommon for him to have some involvement in the case, and he would be expected to treat you as a client in terms of privilege and conflicts of interest. Just the same, this is something you need to be very direct on. "Are you my attorney?" or "Have we established an attorney-client relationship?" are going to be your best options. | In many Common Law nations, the distinction between solicitor and barrister is that the solicitors traditionally have direct access to clients and do much of the paperwork and discuss the planning with the clients. In some jurisdictions it was/is common practice that the barrister is not hired by the client but appointed by the judge. The barrister in turn works with the solicitor and presents the case in the court and has little to no access to the client. Historically, the division was much more stark, with solicitors working in the Court of Equity and barristers working in the Court of Common Law. Around the mid-1800s, the Court of Equity became defunct in the Common Law Legal system with the Court of Common Law fulfilling its duties and many Common Law nations changing how the split among lawyers now functions (often requiring separate tests to be a solicitor and a barrister). The split remains in England, Wales, Scotland, three states in Australia (New South Wales, Queensland, and Victoria), Ireland (both the Republic and Northern Ireland), and Hong Kong. In these jurisdictions, a lawyer will hold only one title. In jurisdictions where lawyers may, or even are expected to, hold both titles, the system is called a “fused system”. Here, lawyers start their careers as one of the two and pick up the license to act in the other capacity later if they choose. This covers the jurisdictions of Canada, Malaysia, Singapore, New Zealand, and the remaining Australian states. (Because Australia has a mix of fused and separated systems and state reciprocation, the three states with a separated system will reciprocate for states that allow for fusion. The reverse is not necessary, as fused states would only allow them for the license they already have.) The United States is fully fused and all lawyers are solicitor-barristers, for comparison’s sake. This is why the U.S. uses “attorney” and “lawyer” interchangeably despite the former being another term for barrister in certain jurisdictions (namely Scotland) while the latter term refers to solicitors and barristers collectively. The U.S. did previously have a separate system, but completely fused when Courts of Equity disappeared in the 1850s and, therefore, the term “solicitor” is still used in the legal profession, though these days it tends to be an artefact title for an office or position that predated the fusion (e.g., The Solicitor General of the United States a.k.a. the lawyer whose office represents the federal government in the Supreme Court). Modern usage of “solicitor” tends to refer to a government lawyer, and most of the states with Solicitor offices are one of the Original 13 States (not all of them, though). Only three states that were not part of the original 13 use the term (Ohio, West Virginia (likely a hold over from when it was part of Virginia, which no longer uses the term), and Oklahoma). It should be noted the average U.S. Citizens associate the word solicitor with traveling salesman or door-to-door evangelizers, and generally use the term in signage forbidding the practice on private property. | I'm not going to comment on the specifics of this law; rather, I think this question shows a misconception of the way the legal system works in general. Here's the question: do you actually have "legally privileged" material on your phone? If not, what's keeping you from claiming that is that it's not true, and lying to a police officer is a bad idea. And just putting a letter from your lawyer on the phone doesn't mean you've established a legal privilege--attorney-client privilege is not a magic spell, it's a reasonable system of protection that only covers certain communications. The bottom line is: the statute in general, and that clause in particular, were included in the law to protect real, important, and substantial legal right. The courts interpret the law in light of that purpose. If the police officer finds a solution that protects your rights while still carrying out the purpose of the statute, the court will be unlikely to fault him or her. In this case, if you tell the officer that there is a letter from your attorney in a particular folder, the obvious solution is for the officer not to open that folder. Problem solved. In practice, in the United States at least, these cases are dealt with routinely; computers are seized, and attorneys and judges work together to ensure that privilege is protected while still allowing reasonable access to seized materials. I would imagine the same is true in the U.K. The bottom line is: the law is not a game, and technical "gotchas" are rarely effective. Common law systems allow judges enough leeway to avoid this sort of pointless technicality. | There is a relevant rule, the "posting rule", according to which an acceptance is effective once posted (this is a quirk of acceptances). This would be as soon after 7 May 2016 as Bobby sent his letter, presumably well before the deadline. So yes, a professional lawyer would be needed. If Bobby is in Australia, it might be more complicated; if Bobby is in Norway, it's simpler because they don't have the posting rule. | This would be virtually impossible to do from scratch. If you had the guidance of someone who successfully pursued a similar legal action it might be possible. In theory you should be able to pursue grievances in court by becoming well versed in the applicable laws and rules, having impeccable attention to detail, exceptional deductive and writing skills, and getting lucky enough to run your filings through patient clerks who will tell you every time you're missing something or doing something wrong. New York Courts even offer this encouraging CourtHelp website for pro se guidance on common actions. But if you really want to attempt a pro se civil action, especially against a government entity, or other entity with essentially unlimited legal funds, you not only need all of the above but also some sort of assistance from somebody who knows the system. I would spend as much time looking for sympathetic advocacy groups and lawyers offering pro bono service as I would reading relevant law and procedure. (One more thing: The word "quick" is never used in conjunction with formal legal actions, except in jest ;) | Given that you're centrally keeping customer financial assets, you're looking at a banking license. At that point, the question is not whether you need a lawyer, but how many. "Note that the issuer/bank would not itself offer currency exchange". Neither the Fed nor the ECB do, and quite a few smaller commercial banks also do not offer currency exchange. Doesn't matter, still banks. How many of the banking laws apply would depend on the customers, and services offered to these customers. So far you've only excluded currency exchange, which means that pretty much every banking law might still apply. You seem slightly hung up on the digital part. That's not how the law works. You'll need a banking license where you're operating your bank, not where its infrastructure is located. And yes, not meeting the requirements for registering a bank (whether financially, regulatory, or legally) will stop your idea in its tracks. This is one of the cases where "talk to a lawyer" might not be the appropriate response, but "hire a legal team". | At-will employers can fire you for almost any reason or no reason at all, aside from a few protected reasons for termination (defined by things like gender, race, religion, disability, etc.). "Employees who want to work remotely from another country" is not a protected class of individuals, so the company could almost certainly fire you for this with no repercussions whatsoever. Whether they will or not is an different question that's entirely dependent on your specific situation, but in general, US at-will employers have a very wide latitude to "tell you no" by simply firing you. All you can do is ask your manager. If they say no, then the answer is no. They do not require any "grounds" or justification for their decision. |
From what legal tradition do the long "whereas" motivation clauses of the EU legislation come? Practically all EU non-treaty legislation and regulations have pretty long "whereas" clauses, often pages long, introducing the context and often the motivation of the legislation/regulations. From which country's (if any) legal or legislative tradition are these detailed "whereas" clauses inherited? | These clauses are called recitals. Taken together, they are a form of preamble. The tradition of preambles is quite ancient. The Code of Hammurabi, for example, has a preamble. This preamble serves to establish the authority of the one enacting the laws, however, rather than his motivation. United Nations instruments typically use a series of participial phrases as preambular paragraphs (pdf) rather than subordinate clauses, but they have the same function of establishing context and motivation. I have not been able to locate the origin of this particular form of preamble, however. It seems to have evolved gradually from freely constructed preambles. I could not identify when this form became fixed. | This distinction was once important in English law, and other common-law systems derived from it, because common-law courts felt free to punish a Malum in Se even when there was no relevant statute, while a Malum Prohibitum would be punished only if it violated a specific statute. But today in the US, and to a large degree in the UK and other common-law countries, nearly all law has a statutory basis (although subject to interpretation by courts). Thus the distinction between Malum in Se and Malum Prohibitum no longer makes a significant difference, and is pretty much purely academic, except in a historical context. | As mentioned in the comments, there is no general method for this, but there are certainly good ways to get started. Note that copyright status is determined on a country by country basis, so "the country" in this answer refers to one you are living in, in this case Canada. First, there's a quick test to determine if a work is definitely copyright. Most countries have signed the Berne Convention which provides for copyright lasting a minimum of 50 years after the author's death for literary works. In general, it also provides that a country treat works published in other Berne countries as if it were published in its own, with respect to copyright. I'll call this the equality rule. So we have that: If the country acceded to the Berne Convention before the publication date of the book and the author is still living, or died less than 50 years ago, the book is under copyright. If the above did not apply, there are still steps you can take: Look up the country's copyright term. Find the legislation that established the copyright term. If the country has changed copyright terms over the years, the legislation will often provide for how books published before term changes are to be treated with respect to the new legislation. For Berne parties, does the country apply the rule of the shorter term? This is the main exception to the equality rule. The country may choose to use the country of origin's term instead of its own if it is shorter. If this is the case, then, you must read the country of origin's legislation with respect to copyright terms. The vast majority of legislation introduced affecting copyright terms has served to increase its length. Thus, if you pretend that the current copyright term applied back when the book was published, and find that the book is no longer under copyright, you can almost always assume that is actually the case. For an example of how complicated this can be, see this analysis on whether public domain works in the US are copyright in the UK. The UK has been a Berne party from the start, but has at times changed its term length, and whether or not it applies the rule of the shorter term. The US has only been a Berne party since 1989. Before this, they required copyright registration and didn't always base the copyright term on the author's death. In general, the factors you mentioned have the following effect: For Berne parties (as of publication date), this is only relevant for those applying the rule of the shorter term. Important to know this date when reading copyright legislation, as the applicable term often depends on this. Mostly relevant to pre-Berne accession, especially in the US Same as 3. Important, to know what laws ultimately apply. An additional factor you usually need: date of author's death (longest living author in case of multiple authors), as the term is based on this for Berne parties. | Legally, nothing Grammatically they mean what parenthesis always mean, that the parenthesised words are less important i.e. parenthetical. Organisationally they serve to group legislation together. This is particularly common in regulations and other subordinate legislation where the tradition is that the regulation takes the name of the Act it is created under. Where there is more than one, the specific function of the regulation is put in parentheses. For heavily legislated areas, like Housing, some parliaments do the same thing for Acts. | Contemporary decisions of domestic British courts (e.g. the Supreme Court) are not binding in foreign jurisdictions. They may be persuasive for courts there, because there is a common legal tradition and the U.K. judiciary is often considered to be quite good. Some countries have preserved a right of appeal to the Judicial Committee of the Privy Council (aka "The Queen in Council"). This body is basically the same judges as the Supreme Court but sitting in a different room. As the JCPC their decisions are precedential in wherever the appeal came from, and potentially elsewhere if the law in question is the same. Corollary: JCPC decisions are not precedential for British courts, unless the JCPC goes out of its way to say so. In these cases, the JCPC applies the law and constitution of the origin country, which can include retained pre-independence British laws as well as the common law. That country could pass a subsequent statute or constitutional act overriding the JCPC's decision (as Parliament could in the U.K.), so that country retains ultimate control even though one of "its" courts is a shared one sitting in London. This arrangement can cause dissonance. For example, some Caribbean countries would like to execute people, but that is prohibited in the U.K.; the JCPC continues to permit executions to go ahead in some cases, even though that would be illegal if the same judges were in a different room hearing a British case. There are very occasional cases from Brunei, whose law is determined by the Sultan and includes aspects of Islamic law not known in the U.K. legal tradition. | what does the phrase "in this act unless context requires otherwise" mean? It means that the provision or statutory definition is not to be imposed where its application would make no sense or would lead to an absurd outcome. Using the example point out, statutory or judicial references to "laws of physics", "law of supply and demand", and so forth are not to be construed as enactments or rulings issued by some authority. Accordingly, such laws are not susceptible to violation, enforcement, or repeal. | Is it legal to redefine a term against common sense in a contract? Generally speaking, yes. What matters is that the contract be clear enough for the parties to be aware of the terms and conditions to which they are committing. Both of the scenarios you outline seem lawful. They are binding to the extent that the definitions & language therein duly inform the parties of the substance of the contract. Definitions in a contract are most pertinent where the meaning of a term is intended to supersede and replace the commonplace meaning thereof. A contract would become null and void if the substance of that contract contravenes legislation. If legislation outlaws not only the effect of a clause but also its meaning, then the [un-]lawfulness of that clause is not altered simply by crafting definitions of terms. In other words, laws or legislative intent cannot be elluded by relabeling concepts in a contract. Whenever lawful, the attempt to trick a party with tactics (such as the use of uppercase you mention) is likely to be voidable by that party. The rationale is the same: The draftsman's attempt to confuse the user contravenes the contract law tenet that the parties knowingly enter the contract at issue. Notice that in the preceding paragraph I wrote "whenever lawful" rather than "although lawful". The reason for that choice is that, in some contexts, the draftsman's tricky attempts might constitute a deceptive practice and thus be in violation of the law (for instance, consumer protection laws). | Legal Education Compared In the U.S., the customary way that one learns about the law for purposes of being admitted to practice as a lawyer is by completing three years of course (with no thesis or dissertation) at the graduate level, after completing a non-law related undergraduate degree (customarily four years but including non-legal studies), and then taking a several week bar exam preparation course and passing the bar exam. In many other common law countries, the customary way that one learns about the law for purposes of being admitted to practice as a lawyer is by completing a three or four year preprofessional undergraduate degree, with a primary concentration in law but also including other general education requirements, followed by preparation for and sitting for a bar exam, and sometimes a period of apprenticeship or internship. In most civil law countries, the customary way that one learns about the law for purposes of being admitted to practice as a lawyer is by completing a bachelor's level undergraduate degree which is taken by both people who want to become practicing lawyers and also by people who want to go into business with legal knowledge, followed by very extensive bar exam preparation in the context of an internship or apprenticeship somewhat similar to that of a U.K. barrister. This is complicated somewhat by the fact that the U.K. and most civil law countries have multiple different legal professionals rather than a unified legal profession like the U.S. The U.K. has barristers (trial advocates) who have more education through the "inns of court" and solicitors. Civil law systems typically have more kinds of legally trained professionals with legally trained notaries with transactional law practice infused with the keeping of public records, prosecutors, judges, trial advocates, sometimes specialist public law lawyers, and legally trained non-lawyers (typically in business) all belonging to separate professions with different roles in the legal system. No entry level lawyer who has been admitted to practice knows the whole of the law in the country where that student has studied, and generally, even very experienced lawyers will be experts in some parts of the law, and have only a vague notion of where to learn the law in other areas where the lawyer practices only infrequently or not at all. In common law countries, legal education focuses on "edge cases" and the way that edge cases are argued, and leaves instruction to many "black letter" rules of law to be learned in bar exam preparation and after entering the practice of law to learn on the job. In civil law countries, legal education focuses on providing students with a comprehensive outline of the "black letter" law rules of law in the area of private law and criminal law and a few bits of public law, and learning methods of argument, advocacy and edge cases is reserved for learning on the job in practice. In both systems, the primary way that one learns the law as a future lawyer in the first instance is from textbooks, rather than primary authorities, although common law country law school textbooks have a heavier mix of excerpts from court cases selected by a professor, while civil law country law school textbooks have a heavier mix of statutory language excerpts and exposition form the professor writing the textbook. Lay Understanding Of Particular Areas Of Law Please estimate: what is the difference in amount of work needed in these two systems to become familiar with an area of law? Please estimate for a well-educated person (with a college degree or higher) but is not a lawyer and does not plan to become one. A well-educated person with a college degree or higher but is not a lawyer and does not plan to become one faces a very steep learning curve in either system to become familiar at a functional level with an area of law. Most of what a lawyer learns in school is the larger context and method of analysis, research skills and an ability to identify legal issues. In common law countries, a lot of this is learning how the case law making system works and having an unwritten outline of key issues in areas of law that would be codified in civil law countries. In civil law countries, a lot of this is learning how general parts of civil law codes interact with more specific provisions, and being aware of the "gloss of interpretation" (often in scholarly work by law professors) that is given to a superficially very vague and short provision like the section of a civil code imposing tort liability, and also how to research legal issues in that system. You really need to know all of this general material to have a competent and comprehensive understanding of specific legal issues, whether you have one that you are investigating or twenty. So, it is extremely inefficient for a non-lawyer to master a single legal issue. The difference in the learning curve between civil law systems and common law systems from pure primary sources is greatly reduced because both are intermediated by secondary sources that explain them in a more efficient and pedagogically sound manner. Rather than largely being a difference between say, the French system and the Colorado system, for example, the biggest difference in the learning curve involved the nature of the particular legal issue that you want to know about within a particular system. For example, in both the U.S. and in France, the body of law that governs child custody and child support is very self-contained. If you master the legal principles and authorities in that area of law, you can fairly swiftly know all of the substantive law issues and research issues involved. On the other hand, in both the U.S. and in France, the body of law that governs a property division in a divorce is absolutely sprawling. This is not because the law of property division itself, in sensu stricto, is terribly vast, but because applying the relatively simple law of property division to any set of facts, presupposes and requires a comprehensive knowledge of the private laws of property, contracts and other legal obligations, and associated tax laws, which can be quite vast over the full range of legal and property rights the might need to be divided in some divorce, sometime. It is the opposite of being self-contained. Similarly, immigration law or patent law questions can often be resolved and understood almost entirely within the four corners of a small number of statutes and regulations, while tax law questions, like property divisions in divorces, interface with a vast expanse of property, contract and legal obligations that might arise. As a general rule, laws pertaining to personal status tend to be self-contained, while laws in areas implicated property ownership and legal rights more generally, tend to require an expansive knowledge of many areas of law. Starting From Scratch While codification v. case law doesn't make much of a difference in the amount of work needed to become a lawyer or to understand a particular legal issue, codification does provide a decisive advantage in the case of a country seeking to adopt a new legal system from scratch, and many former European colonies have done, which is why civil law systems are so much more common globally. From the perspective of a legislature and judiciary starting from a more or less clean slate, it is much easier to adopt a mildly edited set of civil codes as the starting point for the law of your country, than it is to incorporate centuries of case law from some other country into the law in a country that has never used a common law system case law system "organically" prior to adopting its own set of laws. Even then, it is much harder for legislators to be clear on precisely what laws it is that they are adopting at the outset in a common law case law based system where many legal rules are implicit in decisions that are only imperfectly indexed, rather than explicitly codified. And, from a legislator's perspective, adopting a comprehensive new legal system without any clear delineation of what laws you are actually adopting in your new country, is very undesirable, unless you are merely grafting onto a common law legal system that has already long been in force in your country prior to starting its new legal system, with which all prospective legal practitioners in your country are already intimately familiar. |
Does signing a contract after explaining it was not legally binding count as contract fraud? An individual recently claimed to have run into a situation where he was charged with "fraudulent contract activities" in a situation that my (admittedly quite limited) understanding of contract law says should not have violated any laws. The individual in question was donating sperm as a known sperm donor to a lesbian couple. The couple wanted to sign a contract saying that the resulting child would be legally theirs and he wouldn't file for child support etc. The individual claims he informed the couple that in his state there is already legal precedent that states these sort of contracts are unenforceable as void, but since the couple was insistent on signing the contract anyways he eventually agreed to do so, even while telling them it was not legally binding. He claims he was sued for "fraudulent contract activities" (his exact words). Supposedly because he admitted he knew the contract was meaningless he was now guilty of fraud by signing it. However, he gained no benefit from the contract, as the same scenario would have happened exactly as it is without a contract, and he claims he clearly explained the contract was worthless. I find it odd that he could be charged with anything under such a situation. He makes it sound like this is a criminal charge, as opposed to some sort of civil case, and he says the judge chose to 'charge' him. Again, common law, and contract in particular, has always seemed to apply common sense so I was a little skeptical. Of course the individual making the claim also has a history of questionable truthhoods as well, and is making claims that further his personal agenda, so I'm not quite willing to take his words as 100% true. Would this scenario warrant any kind of potential fraud charges, civil or criminal? The individual in question lives in Oklahoma so probably that's where the contract was signed. | Does signing a contract after explaining it was not legally binding count as contract fraud? No. However, depending on the details of the contract, the circumstances, and the parties' subsequent conduct, the donor's ability to prove he actually disclosed it to the couple would strengthen his position. The prima facie elements of fraud are listed in Key Finance, Inc. v. Koon, 371 P.3d 1133, 1137 (2015): (1) a material misrepresentation; (2) known to be false at the time made; (3) made with specific intent that a party would rely on it; and (4) reliance and resulting damage. The donor's disclaimer to the couple "telling them [the contract] was not legally binding" strikes elements (1) and (2). That preempts the relevance of (3). No matter how bizarre it is that the donor eventually bowed to the couple's pressure, that does not change the fact that elements (1) and (2) are stricken. Your description does not reflect whether or how the couple incurred any losses, but the requirement of the couple's reliance is preempted by virtue of the donor's disclaimer. Furthermore, the donor's "history of questionable truthhoods" can only weaken the couple's position of "reasonable" reliance on any representation the donor makes (in case the couple shared back then your concept of donor's reliability). The donor's questionable assertions "[to] further his personal agenda" seems to be irrelevant in this matter because, as you say, "he gained no benefit from the contract". Also, it is unclear from your description whether or not the donor has been sued/charged at all. The donor's mere allegation that he was sued has no legal effect --such as defamation or malicious prosecution-- unless one adds intricate assumptions into this matter. As for "he says the judge chose to 'charge' him", it is possible that he was charged for something else and he is (whether unintentionally or on purpose) mischaracterizing whatever proceedings in which he was involved. The sole act of signing that contract upon proper disclaimer does not render the donor liable for fraud. | What is the name of the crime and/or tort I have committed? You are guilty of the crime of fraud, the crime of theft of the money and the item (I can't point you to the precise statute). You have breached your contract of sale. You are probably liable for fraud civilly (i.e. you could be sued for fraud). But, if one was really creative, I imagine that one could find more grounds for civil and/or criminal liability, although they would probably be unnecessary since the victims have plenty of remedies to secure all possible relief already. Who gets to keep the object? Under the Uniform Commercial Code, Article 2, in the United States, the general rule is delivery of possession by the seller (which didn't really happen here to one distinct person), but for unique goods, title passes when the unique good is identified to a contract with a buyer, so first in time to contract, first in right to the car, would probably prevail. But, I don't know what the rule would be in England and Wales. Is it handled differently if the "valuable physical object" is real estate? Land is harder to defraud someone with, because a reasonable person knows that in England and Wales real estate title is (usually, but not always) represented by a certificate of ownership maintained by a public official in the Land Registry, and is easily checked (about 15% of land in England and Wales show in the link is not registered so the possibility for deception is somewhat greater in that context). Also, generally, you don't pay for real property until you simultaneously receive payment in good funds, while brief extensions of credit for a non-perfectly contemporaneous sale transaction are more common in cases involving tangible personal property. | Generally a signature is binding even if you have not read the document you have signed; as far as the law is concerned you should have and it's too bad for you if you didn't. Of course, this presumes the contract is otherwise valid. In the circumstances you describe you should ask to see the document before signing. If that is not possible, then instead of signing you should write "I do not agree" instead and take the printed statement - only 1 in 100 people will actually check that you did sign. If you have signed and do not wish to be bound, you should contact the company immediately in writing and say that and that they can collect whatever goods they have supplied. | In the event of a dispute, the person resolving the matter, probably an arbitrator in the case of a commission dispute between two realtors and either an arbitrator or a judge and jury depending upon what your listing agreement says about that issue, would hear the testimony from both parties and decide. The intent of the parties is supposed to govern in cases of clerical errors, but a signed document has a lot of weight, especially in such a prominent term. It is a little hard from the way the question is posed to determine who is willing to correct the typo and who insists on enforcing the contract containing the typo. | So you entered a contract that was a bad deal. The law says: tough People are legally allowed to make bad deals. The law will hold you to the bad deal you made. If it only worked for good deals, no one would ever use the law because you don’t want to break a good deal. Providing it has all the required elements of a contract, it will be enforceable. Put up with him or pay him out. | In general, the express terms of the lease signed supersede all prior negotiations of the parties, except to the extent that the particular language in question in the lease is ambiguous. This is called the parol evidence rule (which is the law in all U.S. jurisdictions although it has been expressly rejected in Israel). The parol evidence rule expressly makes a written agreement supersede a verbal agreement, rather than making them equally valid. Also, even if both agreements had been written, generally speaking, the last and final version of the agreement will supersede earlier versions of the agreement. The best defense would be along the lines of fraud-in-factum or fraudulent inducement, i.e. that this term was slipped into the final draft in a manner expressly intended to mislead the signing party about what was being signed. I've won one case where this happened (where there was extensive email correspondence between business lawyers regarding the changes that would be made in each draft and there the version signed did not correspond to the last version signed electronically in a very long document on paper and there were other indicia of fraud), but by far the more common outcome is to bind the party signing the document (especially in a commercial context) and to consider failing to carefully read all terms of the final draft to be negligent on the part of the party signing the contract. Arguably, there might also be a malpractice claim against the lawyer for the tenant for missing this change in a material term before the contract was signed. | TL; DR: It is possible you might have a binding, enforceable contract. It depends on the facts. A trial court will determine the facts unless there is a settlement. Hire an attorney. 1. Contracts require certain elements in order to be enforceable. This website defines the elements of a contract to include the following: The requisite elements that must be established to demonstrate the formation of a legally binding contract are (1) offer; (2) acceptance; (3) consideration; (4) mutuality of obligation; (5) competency and capacity; and, in certain circumstances, (6) a written instrument. 2. Emails are not the contract. They are evidence of a contract. The emails themselves would not necessarily constitute a contract. However, they could be offered as evidence to prove there was a contract and what the terms were — thereby establishing a rebuttable presumption of a contract. In order to win a rebuttal, the litigating party would need to establish by a preponderance of evidence that one or more of the elements of a contract did not exist. 3. Contracts do not need to be written to be enforceable. Contracts do not always need to be written (or signed) in order to be enforceable. Oral contracts are just as enforceable in many cases as written agreements. The classic exception to this rule is that many (if not all) states require contracts to transfer real estate be written, not oral agreements. 4. Courts consider the behavior of the parties as evidence of a contract. Another category of evidence courts consider when deciding contract cases is the behavior of the parties. There is a legal theory called estoppel which Google defines as: ...the principle that precludes a person from asserting something contrary to what is implied by a previous action or statement of that person or by a previous pertinent judicial determination. | In the case of a smart contract ... it it actually valid? The question is based on the misconception that the terms "smart contract" (technical term) and "contract" (legal term) directly relate or have much in common. They don't. If anything, smart contracts are essentially modern replacement for papers and signatures. But paper contracts have never been contracts themselves either. They are merely evidence of the contracts, and this evidence is often not even necessary for the contracts to be valid: most contracts are not even required to be in writing. So, the story in your example is just the 21st century's analogue of good old paper contract foul play like signature forgery, disappearing ink and so on. Legally it is handled with no difference: investigate what happened, find out who intended what and judge what has to be done. Gavel bangs! |
What can a loss prevention officer legally do in Australia? (NSW) If someone is apprehended by a loss prevention officer on the way out of say, coles or woolies, what are the legal rights of the LPO and the person being apprehended? For example, if the LPO starts making accusations that the customer has stolen a whole bunch of groceries, does the customer have to comply and walk with them to the site office for further interrogation/investigation? Or can the customer just call bullshit and walk out unhindered? Is the LPO allowed to forcefully stop the customer from leaving the premises? Asking from the perspective of NSW state, Australian law. also, if the LPO does use force, and this is illegal, but then it turns out that the customer did indeed commit grand theft tea-bags, does the force retroactively become legal? Can the LPO just forcefully seize the groceries back? And if so, what are the consequences if the customer is then found to be innocent? | Loss prevention officers are just security guards employed by the owners or management to regulate patrons or customers in compliance with the terms and conditions of the store. They have no special powers or no more powers than the average person. They may be able to arrest and or detain someone however this is usually limited to a 'caught red-handed' scenario, ie they have to be a witness to it. Upon arrest they must only use reasonable force, they can't assault you. The force must be reasonable no matter what regardless of guilt. They don't have powers of search and thus any search must be consented to, you have the right to refuse a search or questioning but that may mean you have to leave the premises. | If it’s your pizza, yes The civil equivalent of theft is the tort of conversion, “consisting of "taking with the intent of exercising over the chattel an ownership inconsistent with the real owner's right of possession". In England & Wales, it is a tort of strict liability.” | No Let's consider a similar scenario. If you made a beverage which poisoned a number of people, would you be absolved of liability because you gave it away for free? Of course not. As there is no contract between you, they would have to bring an action against you in the tort of negligence or negligent misstatement OR under consumer protection law. To succeed at tort they would need to prove that you owed them a duty of care; from Donoghue v Stevenson "You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure ... persons who are so closely and directly affected by my act that I ought reasonably have them in contemplation ...". Most cases will founder on your inability to foresee the use to which your software may be put. Consumer law is jurisdiction specific but they generally contain warranties that what you provide (gratis or otherwise) is fit for purpose, merchantable and that you do not make false and misleading statements. There is a chance that a case brought under this sort of law could succeed as you have not limited the purpose, specifically declared that it is not of merchantable quality and have (presumable) said what it does so that, if it doesn't do what you said, you have been misleading and deceptive. | It may be discrimination; not all discrimination is illegal. Details vary by jurisdiction, for example discrimination on the following bases is illegal in Australia: race colour sex sexual preference age physical or mental disability marital status family or carer’s responsibilities pregnancy religion political opinion national extraction social origin Tobacco use or non-use doesn't make the list. That's the legal position; if you want advice on how to handle the workplace stuff post your question on the Workplace Stack Exchange. | The customers are able to leave, so there's no reason it could be a crime. Even if they weren't able to operate the lock themselves, they are presumably able to leave by asking a staff member. There is no way this could be remotely considered false imprisonment. Depending on the layout and size of the store and presence/lack of other fire exits, this might violate fire safety regulations. | The bouncer is employed (or (sub)contracted) by the owner/lessee of premises - someone with the right to evict persons from their private property per the common law rights to exclusive use of one's property. When the bouncer evicts you, they are exercising this right on behalf of and as the agent for the owner, who could do it, but instead has assigned limited agency to the bouncer to do that for them. Entrance to (and remaining on) a property may be authorised and revoked at any time - at the time that consent is not given or is withdrawn, you become a trespasser and the police may be called upon to forcibly remove you from the premises. For example, I can have a party at my house, but if I don't like someone, I'm entitled to ask them to leave. I could also ask a friend to ask that person to leave, if I didn't want to do it myself. Note that bouncers aren't empowered to physically evict anyone except for the general right to use reasonable and proportionate force. For instance, someone that was just standing around in the nightclub probably couldn't be physically thrown out, but someone who was causing harm to themselves or others could be restrained or repelled as appropriate (and if restrained, you'd need to be very careful to do so in the course of effecting a citizen's arrest, otherwise you'd probably be committing false imprisonment). There may be statutory provisions that bestow additional rights and responsibilities upon bouncers, but this is the basic premise. I'm fairly certain that this would apply in all Australian jurisdictions; probably in all common law jurisdictions. | Can the police seize your phone without a warrant UK? YES An arrest on suspicion of rape (an indictable offence) triggers two powers under the Police and Criminal Evidence Act 1984 (PACE) to search premises for evidence without a warrant. Which power depends on where the arrest was made: s.32(2)(b) PACE: if the offence for which he has been arrested is an indictable offence, to enter and search any premises in which he was when arrested or immediately before he was arrested for evidence relating to the offence. Note that s.32(2)(b) does not have the power of seizure attached, but the officer can use the "General Power of Seizures" at s.19 PACE s.18 PACE: (1) ... a constable may enter and search any premises occupied or controlled by a person who is under arrest for an indictable offence, if he has reasonable grounds for suspecting that there is on the premises evidence... (2) A constable may seize and retain anything for which he may search under subsection (1) above. IF... the phone is not on the suspect at the time of the arrest (say the police arrest the suspect in their home) but in another room on the shelf - either s.32(2)(b) or s.18 would apply IF... being outside at the time - s.32(2)(b) possibly if he had just left, s.18 otherwise. | I think this relates to individual stores interpretation of California's "ABC Laws": § 25658. Sale to and consumption by person under 21 years of age; Use by peace officers to apprehend sellers of alcoholic beverages to minors (a) Except as otherwise provided in subdivision (c), every person who sells, furnishes, gives, or causes to be sold, furnished, or given away any alcoholic beverage to any person under 21 years of age is guilty of a misdemeanor. (b) Except as provided in Section 25667 or 25668, any person under 21 years of age who purchases any alcoholic beverage, or any person under 21 years of age who consumes any alcoholic beverage in any on-sale premises, is guilty of a misdemeanor. (c) Any person who violates subdivision (a) by purchasing any alcoholic beverage for, or furnishing, giving, or giving away any alcoholic beverage to, a person under 21 years of age, and the person under 21 years of age thereafter consumes the alcohol and thereby proximately causes great bodily injury or death to himself, herself, or any other person, is guilty of a misdemeanor. The last part is the part that scares business owners. Some interpret it as "if they furnish alcohol to you (a person over 21) and have reasonable suspicion that the purchase will be given to the minor, the person furnishing the alcohol is guilty of a misdemeanor". This is absolutely true in the case of bar owners/bartenders. If they sell somebody a drink, even if that person is over 21, and that drink is then given to a minor, they can be (probably not successfully) held responsible in some form for any injury that person sustains or commits as a result of alcohol consumption. Some stores take this much more seriously (because a violation can mean the loss/suspension of the liquor license) than others, and it is at the stores discretion to deny the sale based on any suspicion, whether based in reality or not. |
Why can't I add a governing law to my terms of service to avoid GDPR? I've heard from fairly reliable sources that you can't avoid GDPR by using your website's terms of service as way to circumvent that law. From what I have seen online, if your website serves European users, it must obey that law. However, if a website is based in the US and the terms of service say that the law governing the terms is US law, how can GDPR have any affect? I'm not a lawyer, but I've signed many contracts in my life and nearly all of them have some form of "governing law" clause. | However, if a website is based in the US and the terms of service say that the law governing the terms is US law, how can GDPR have any affect? It is unlikely that the EU will be able to enforce financial penalties against a company with no presence in the EU. But they could for example block your website in the EU, depriving you of your EU user base. The actual measures that they could or would take against such a company are still unclear, since the GDPR is quite new, and there has been no action under the GDPR against foreign companies. I'm not a lawyer, but I've signed many contracts in my life and nearly all of them have some form of "governing law" clause. The governing law clause in a contract identifies the law that will be used to interpret the contract and to resolve any disputes arising from the contract. The law identified in the clause does not become the sole law governing every aspect of the relationship between the parties, however. For example, a business in New Jersey could have a contract with a client in New York with a clause specifying New Jersey law as the governing law of the contract. But that does not mean that New York's consumer protection law doesn't apply to the transaction. | Keeping logs of chats would not necessarily be against the GDPR as you have suggested. For the IRC service provider/operator: these chats/logs would be within scope if EU-based users are involved and this means the data controller/processors would have legal obligations to comply with GDPR. The IRC service provider/operator would be the data controller and would be held ultimately responsible for the data stored/processed through the IRC service, including backups and logs kept etc, and this would mean any sub-processors they select (such as hosting provider) would also have to be GDPR compliant. Due to the nature of IRC chats being entirely public in the same way forum board posts and comments are public, the contract terms between the IRC service provider and the IRC users would need to be very clear that this is the case, and the IRC users would need to give consent for this processing (this is more complicated for children, see Article 8 regarding consent from the holder of parental responsibility). For IRC users (personal use): If you wish to keep the chat records for personal use only (i.e. not in connection with a business or your employment at a business), then an exemption applies: 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, Article 2: Material Scope, Paragraph 2(c), p.32) For IRC users (commercial/business use): In this case I don't think you would have any legal basis to store/process these chats/logs if they contain personal data without a legal agreement with the data controller which would require you to put in place the same protections they have to under GDPR but then allow your business to access the data for specific purposes. While the information may be published or considered to be in the 'public domain', for you to take a copy of it without permission and use it for a purpose they haven't consented to would not be allowed under GDPR. Additionally, to go through the process of removing personal data from the chats/logs would in itself be considered 'processing' under GDPR and therefore would be unauthorised without a legal agreement with the data controller. Practically therefore, your best options under this circumstance would be if: The IRC service provider implemented a 'favourites' feature to save within their own system the chat conversations you wish to retain and refer back to in future. Since they hold the data and you already have a user agreement with them there is no further complications (this is probably the best option); The IRC service provider implemented a feature to download an anonymized copy of a chat conversation (not ideal as there are no guaruntees a user will not include personal data in their messages, though the user agreement could state that message content will be considered to exclude personal data, in a similar way to how StackExchange do for this website, see the paragraph titled "Information You Choose to Display Publicly on the Network" on the StackExchange Privacy Policy). Your business considered an alternative communications solution, such as hosting its own real-time chat system or forum boards system, in which case your business would be the data controller, and while subject to GDPR you could then define the purposes for which the data will be used in your own user agreement. | As I understand it, the GDPR does not permit sending of personal information (which includes the IP address) without prior consent by the user. That's not exactly true, consent is merely one of six possible legal basis for processing (article 6). For example, processing of personal data can also be lawful if it necessary to perform a contract, legally mandatory, or in the public interest. The court decision acknowledges that but rules out another basis in this case because it considers that it is possible to serve fonts without relying on a third-party ([…] der Einsatz der Schriftarten auch möglich ist, ohne dass eine Verbindung von Besuchern zu externen Servern hergestellt werden muss). Confusingly, it only refers to article 6(1)(f) when it seems to me that (b) would also be plausible but maybe this wasn't raised during the proceedings? If the data controller cannot invoke any other basis for the lawfulness of the processing then yes, the only thing left is asking for consent, i.e. invoking article 6(1)(a). But that doesn't mean that you should expect to be asked for consent each and every time your personal information is being used. The consent form on the site also implicitly assumes consent, which I thought was also a violation. Yes, implying consent doesn't really make sense under the GDPR definition (article 4, see also article 7): ‘consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject's wishes by which he or she, by a statement or by a clear affirmative action European data protection authorities have issued guidelines that detail what that means and clearly reject “bundling” different data processing. The regulation also makes it clear that data subjects should be able to withdraw consent at any time, which does not seem possible with the fonts on golem.de My reading of all this is that assuming consent because you are using a service (or even created an account or checked a box at some point) simply isn't valid consent. Either you don't need consent at all in the first place or what you need is freely given, specific consent and “implying” consent or bundling it with a registration process achieves exactly nothing. But this is still extremely common and it might take some time before enforcement and case law definitively settle this question. Smart data controllers trying to avoid collecting consent (like Meta) have abandoned any claim that signing up to the their services would constitute consent (because that's transparently not the case) and try to bypass the issue entirely using another basis like contractual necessity. This is also being litigated. I know that a EU regulation can be implemented and interpreted differently from country to country, and that a single court ruling in Germany doesn't even mean that the national law was correctly applied. From what I've read, I get the impression that this particular ruling was not unlikely to be overturned by a higher instance, if it came down to it. So my question probably both pertains to German law specifically and the EU regulation itself. That sounds more like the way EU directives work. Regulations are supposed to be immediately applicable (no implementation in national law necessary) with minimal differences between countries (except when they explicitely provide for that). Of course, enforcement would still mostly be in the hands of national court systems and (in Germany) provincial data protection authorities but there are mechanisms to ensure consistency (the European Data Protection Board, prejudicial questions to the CJEU, infringement proceedings from the European Commission…). | By which law I am enforced to share my personal details (such as my full name) on forum publicly to on-line people which I even don't know (when commenting on random posts)? Contract Law. Google have made it a term of the contract that you use your full name. You can: contact Google and negotiate a change to that term, accept that term, choose not to enter the contract. so I can enforce on my privacy rights without removing my Google Plus account? As a person subject to UK law, your privacy rights involve limiting who and in what circumstances Google can divulge personal private information to. Your name is not personal private information; things like your medical history and bank balance are. Aside from that, you do not have a right to privacy. Anything you do or say that is visible or audible from a public place (like the internet) or a private place where the person in control of that place does not insist on your privacy (i.e. almost everywhere that you are not in control of) is public! | EU Member State Data Protection Authorities ("DPAs") have fined foreign legal entities (pursuant to Articles 58(2)(i) and 83 GDPR and further national provisions), however it is not publicly documented whether the specific situation you described has occured. Even if such situation would arise, I would think that it is unlikely that DPAs imposing administrative fines could enforce their (fine imposing) decisions outside the EU, even if the decision in question was confirmed by a court. For instance, in the Netherlands there is not a strong legal basis for the (mutual) recognition and enforcement of foreign administrative decisions. I could imagine that the same applies to other EU Member States. However, please note (possible) civil liability Your question seems to refer to enforcement of the GDPR under instruments of administrative / public law. Please note however that the GDPR can also be enforced by private individuals and organizations, e.g. through tortious liability claims. See for example Amsterdam District Court 2 september 2019, ECLI:NL:RBAMS:2019:6490 for a situation (albeit purely national), in which the Court awarded damages for a GDPR breach to a data subject. Possibly, a similar case could be brought against an entity outside the EU that processes data of EU data subjects, contingent upon the outcome of certain questions of International Private Law. With regard to civil damages, there is an extensive international legal framework that covers the cross-border enforcement of rewards for civil damages. Likely, such rewards for damages could more easily be enforced outside the EU. However, I must note that such (private) cross-border enforcement of the GDPR has not happened in practice (yet) either (as far as I know). (Please note that this answer assumes (per the question) that the GDPR is applicable and only deals with the question of the territorial aspects of subsequent enforcement. See about the territorial scope of the GDPR: What is the legal mechanism by which the GDPR might apply to a business with no presence in the EU?). | Art. 15(4) GDPR says: (4) The right to obtain a copy referred to in paragraph 3 shall not adversely affect the rights and freedoms of others. If I was the controller in this situation, and I believed that this would endanger the students that have criticised the professor, I would base my argument for not complying on this. In addition, Art. 85 GDPR requires member states to: [...] reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information [...] So you may be able to argue that the students posting messages are engaging in "processing for journalistic purposes and the purposes of academic, artistic or literary expression", depending on the laws of the particular member state. (edit: this could be difficult since you mention it is a private database). The second case seems just like the first in terms of GDPR, but may constitute defamation. Defamation (or libel) laws differ wildly in each country; he Wikipedia article on Defamation explains the situation in each member state in more detail. In the third case: if the professor submits a request based on the rights of a data subject other than himself, they don't need to comply. These requests need to come from the data subjects themselves, not just a random person assuming authority. (although I suppose it's possible for them to give power of attorney to the department head if they wanted to) Personal data and the rights that GDPR provides to data subjects always relate to a natural person, not an institution or a company. | The 2018 Data Protection Act specifically implemented the GDPR EU Regulation in the UK - while the regulation itself was directly binding it required member states to create their own legislation for implementing the details - setting up the required supervisory and accreditation bodies etc. The various 'opening clauses' in the regulation also provided the means for the members states to implement specifics in local legislation (so long as that legislation exceeded the minimums set out in GDPR). At the end of the Brexit transition period the UK was no longer a member state (and it's citizens were no longer EU citizens), keeping the DPA 2018 as was would have actually meant that UK citizens weren't eligible for the very protections it was intended to provide them! Therefore the basis of the law needed updating (as well as certain minor provisions that no longer made sense) hence the "UK GDPR" provided a substitute. The fundamentals are the same and crucially it also codified the necessary basis for the UK's data protection laws to have what is referred to as "adequacy" - which means that the EU considers the UK GDPR/DPA to provide "essentially equivalent" levels of protection and therefore data is allowed to continue to flow between the UK and the EU. | Whether GDPR applies does not depend on the country of residence. Instead, GDPR applies to a non-EU site or service if the data controller offers products or services to people in the EU (see Art 3(2) GDPR). This depends solely on the behaviour and intent of the data controller / the provider of the website – compare also the discussion of the “targeting criterion” in EDPB guidelines 3/2018 on the territorial scope of the GDPR. While your proposed measures might not be entirely ineffective (in that they document an intent to not serve people in the EU), they are both unnecessarily restrictive and overly lax. For example, they would unnecessarily prevent EU tourists in the US from registering but would nevertheless allow US tourists in the EU. For the targeting criterion, it matters whether the data subject is in the EU at the time of the offer, not at all what their residency is. Even if a person who is currently in the EU registers with your service, that doesn't necessarily mean that you are targeting people in the EU. Instead of implementing signup restrictions, a better strategy might be to clarify in the copy on your website that you are only targeting the domestic US market, not the European market with your services. I have discussed this in more detail in an answer to “How can you block GDPR users from US based sites?” If you have a site where GDPR doesn't apply, and you receive a GDPR data subject request, you shouldn't deny it on the basis that the user must have lied – instead you can deny it on the basis that GDPR just doesn't apply to you. |
Appeal from a verdict of acquittal in Canada Supreme court of Canada: R. v. Jarvis This seems to say that the Crown appealed from a verdict of acquittal in a criminal case. It is reported to be a judge, not a jury, that acquitted the defendant. Would that mean that this was a bench trial, or just that the judge decided that the defendant should be acquitted even if the facts were as alleged by the Crown so that no jury deliberations were needed? Are verdicts of acquittal in Canada generally appealable, or might that apply only to bench trials, or otherwise only to acquittals by a judge rather than by the jury? | Part XVIII of the Criminal Code addresses the power and procedure for appeals. Appeals of indictable offences are appealed to the provincial Court of Appeal. The Crown can generally appeal where there is an error in law. The Crown has a limited appeal on the basis of questions of fact. This includes appeals for unreasonable verdict.1 However, the Crown cannot appeal on issues of credibility unless it amount to an error in law. The Defence can appeal both issues of fact and law.(ss. 675 and 676) R. v. Kendall, [2005] O.J. No. 2457 (Ont. C.A.), at para. 46 from a Canadian Criminal Procedure Wiki. Unlike in U.S. law, the government can directly appeal an acquittal on certain grounds in Canada (without regard to whether it was a jury trial or a bench trial), although those grounds aren't quite as broad as those of the defense. This would also be true in modern English law. In practice, it is somewhat easier to appeal a verdict in a bench trial than in a jury trial, because in a bench trial you know why the judge says he or she came to the verdict and can determine if those reasons were incorrect, while in a jury trial, the appellate court presumes that the jury followed the law and use any even implausible basis for their opinion even if that isn't what really happened. The complete bar on appeals of acquittals of criminal charges in U.S. law due to the double jeopardy clause of the U.S. Constitution's Bill of Rights, is a rare exception to the global norm. | 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. | What you are describing is closely related to "acquitted conduct sentencing". On the first point, "Carl's" previous acquittal cannot be considered evidence that he committed a later crime; the subsequent crime must be tried on its own merits, in isolation. However, for your second question, once convicted of that crime, his previous acquittal (rather surprisingly) can be taken into account during his sentencing. Many legal minds have found the practice of "acquitted conduct sentencing" extremely troubling, and there are hopes the US Supreme Court could prohibit the practice in the near future. But for the moment, it is still an allowed practice. Summary article here "This practice allows judges to use conduct a defendant was acquitted of by a jury to increase a defendant’s sentence or punishment for a separate crime. This tool essentially allows judges to veto a jury’s decision when they merely disagreed with their conclusion." Another good article on the topic Of the seven charges, [he] was convicted on two. Under federal advisory sentencing guidelines, the two convictions generally warranted a sentence of 24 to 30 months in prison. The district court, however, calculated a range of 87 to 108 months, based on the charges on which [he] had been acquitted. [he] was then sentenced to 84 months (seven years) in prison. [He] was indicted on seven charges, convicted of two, and acquitted of five. But his sentence was exactly the same as it would have been had he been convicted by the jury of all seven charges — and three times as high as it would have been had the judge considered only the two charges of which the jury convicted [him].” | england-and-wales Admission of the confession is at the discretion of the court PACE s78 gives the court the discretion to decide on the admissibility of confessions obtained if it appears to the court that "having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it." There is deliberately no case law guidance on this. Superior courts in the UK have been scrupulous in saying that each case turns on its merits. The “circumstances in which the evidence was obtained” are certainly suss and would not be permitted by a police officer who is required to warn the suspect and advise them of their right to silence. However, that is not sufficient to exclude the evidence. The court also needs to consider whether it would have “such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” If the confession is the only evidence then admitting it would clearly be unfair. However, if the Crown has mountains of other evidence, then the confession may only have a small probative value. There is no “fruit of the poisonous tree” doctrine in the UK Far more likely is that the Crown would not even seek to introduce the confession. It would just slow the trial and give the defence grounds for an appeal. Instead, they would use the confession to inform their investigation and get other evidence to convict. Legal privilege In England and Wales, legal advice privilege only applies where there is a lawyer present. If Badal is a lawyer, then the privilege attaches; if he isn’t then it doesn’t, irrespective of what he led Naina to believe. The same would be true even if Badal believed he was a lawyer but, for some reason, was not licenced in E&W. Litigation privilege is a broader concept and covers all advice, including from non-lawyers, where litigation (including criminal prosecution) has commenced or is reasonably likely. Based on the description, Naina has been committed to stand trial so everything she said is covered by privilege and is inadmissible. Why bother doing this? Most criminals are not sophisticated and will often implicate themselves if you give them enough space without the police or others violating any rules. Anecdotally, I have a relative who was a psychologist for a remand prison - prisoners charged but not yet tried. At the start of every meeting with a prisoner they would say “I work for the state, nothing you say is confidential and it can be used against you” - they still had prisoners confess to crimes they weren’t charged with, name accomplices, and tell where the loot was hidden. | There are two important points you need to consider: jurors cannot be challenged (in the US sense), and the judge has wide discretion to handle any problems that arise in his court. If a juror has prior knowledge of the case, or could not be expected to be impartial, the judge (or sometimes the bailiff) will excuse him, and bring in one of the three replacements. If either side's lawyers dislike the look of a juror, they may if the judge allows ask questions to elicit such reasons, and then ask the judge to disqualify (I was on a jury where one of my colleagues was a policeman, and the defence suggested that he could not be impartial; the judge asked some questions and then excused him, and I understand he was never actually empanelled that week). But you are not permitted to select jurors you think will favour you or (equivalently) to ask to dismiss a juror without a factual disqualification; you can't, for example, ask about a juror's politics. Disqualifying a juror is thus rare, and the chance of four jurors having ties to a particular case is so remote as to be not worth worrying about. The second point, and the reason why written authority is hard to find, is that the judge has almost unlimited discretion over any action in his Court that does not infringe statute. There was a case in the newspapers recently where a juror discussed the case he was hearing in the pub, and was therefore dismissed from the jury; the judge consulted prosecution and defence and decided to proceed with eleven jurors rather than start the trial again. This does not mean that 'any trial can be heard with eleven jurors'; it means that in that particular case justice was best served by continuing. There is always the option to request a mistrial (which may or may not be granted) or to say that, a fair trial now being impossible, you intend to appeal on this point; but failing that the judge's decision on any procedural point is binding. | Judges do not decide, jurors do (however, if a judge is the fact-finder, then the judge makes such a determination). The main input that the decision-maker gets is a jury instruction. In order to unify "reasonable doubt", "reasonable price", "reasonable delay" and so on, appeal is often made a mythical being, "the reasonable man", so reasonable force would be the degree of force the reasonable man would use in a given situation. I will draw from California criminal instructions ('cuz I have them) but similar instructions can be found across jurisdictions. For example, one instructions says "A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes". Or from a negligence instruction "A reasonable person would have known that acting in that way would create such a risk". More detailed appeal to The Reasonable Person is found in the justified homicide instruction: Defendant’s belief must have been reasonable and (he/she) must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the [attempted] killing was not justified. When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. The defendant’s belief that (he/she/ [or] someone else) was threatened may be reasonable even if (he/she) relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true. There is no explanation of what it means to be "a reasonable person". Since nobody believes that they themselves are unreasonable, a simple and also wrong way of judging the matter is to subjectively judge whether you yourself would do the same thing, if you were in that situation. Very often, instructions do not even bother to say what "reasonable" means, so (re interpreting expert testimony) "You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence"; (re corpus delicti) "That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed"; "Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty", "when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable" The closest the law has come to articulating an objective characterization of "reasonableness" is in "reasonable doubt" instructions. One characterization is in People v. Feldman, 71 N.E. 2d 433. It is not a doubt based upon sympathy or a whim or prejudice or bias or a caprice, or a sentimentality, or upon a reluctance of a weak-kneed, timid, jellyfish of a juror who is seeking to avoid the performance of a disagreeable duty, namely, to convict another human being of the commission of a serious crime A somewhat improved characterization is the Calcrim instruction Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt There is room for improvement, but it points in the right direction. On rare occasions, a law is written that actually includes a definition. The Gas Price Spike Act HR 3784 said The term ‘reasonable profit’ means the amount determined by the Reasonable Profits Board to be a reasonable profit on the sale. It is then up to the board to subjectively determine what that profit is. (BTW this did not become law). [Addendum] It's actually very difficult to determine what reasoning judges use in those cases where they are the determiners of fact. They will likely call on their knowledge of law, asking "are these circumstances sufficiently like past circumstance A where the defendant was convicted, or more like B where the defendant was acquitted". | Yes In general, default judgements can be set aside for good cause. If the defendant can show that they had a legitimate reason for being unable to respond to the cause of action, then the judgement can be set aside and a new hearing scheduled. However, “good cause” encompasses things both unforeseen and unforeseeable and includes having good cause why the court and/or plaintiff/prosecutor could not have been advised of the incapacity before default judgement was entered. In most jurisdictions, they also need to show that they have a prima facie defence such that a different result is possible. The “superior sovereign” is not really germane: good cause can include a sudden illness or injury, police detention (be they superior, inferior, same-level or foreign sovereign), natural disaster etc. | Absent newly enacted law in response to the end of the separate sovereigns doctrine, the first case to which jeopardy attaches (generally speaking when a jury is sworn and the first item of evidence is presented to it) would bar subsequent prosecutions, without regard to whether it arose in state or federal court. It would be a race to the court house rule. This is how it works if there are multiple prosecutions within a state, for example, one commenced in a municipal court that is not part of a state court system, and another commenced in a state court of general jurisdiction. |
Can my apartment complex return packages to sender if they are not picked up? I am living in California and I have received an email from my apartment complex manager that states that packages not picked up from the mailroom as of Friday will be marked return to sender. Is this legal (given 18 U.S. Code § 1708. Theft or receipt of stolen mail matter generally)? | The key language to be taken notice of in that code is 'by fraud or deception'. If the property manager has provided reasonable notice of a clear-out, then the code doesn't apply due to lack of fraud or deception. But at the end of the day, just go and check the mail room on a Thursday afternoon and you shouldn't have any problems. | The answer may vary depending on your state. If you're in a state that's a member of the Streamlined Sales and Use Tax Agreement,* there's a designated heirarchy for sourcing sales of digital goods: First, if you're making delivery to the customer at your location, source to the location where you make the sale. If not, source to the location where your customer will receive the product. Neither of those works for you, so you'd continue down the list to the first one you can apply: The purchaser’s address that you maintain in the ordinary course of the your business; The purchaser's address obtained during the consummation of the sale; The address where you first make the product available for transmission or the address from which you provided the service. By my reading, that means that in the absence of an address, you basically come back full circle and source the sale back to your own location. *Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Washington, West Virginia, Wisconsin and Wyoming | switzerland "Gutgläubiger Erwerb gestohlener Dinge" (buying of stolen goods in good faith) is a big topic in law. Different jurisdictions handle it differently, but most European (civil law) systems have some kind of rule that accept the ownership of a buyer in such a case. Here is a good article that compares different jurisdictions on exactly such an issue. Luxury watches are a kind of art. According to Swiss law (Art 934 ZGB), the item must be returned when discovered within 5 years of the theft. However, the rightful owner must pay for any expenses you had. Since the theft was more than 5 years ago, the watch is, in my opinion, rightfully yours. Since Blancpain is in Switzerland, they are obviously bound to Swiss law. Also, they are not the police, so they cannot seize an item. They can only safekeep it and report to the authorities. I would also contact a lawyer for help. It seems to me like a case you should win. | "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." | 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. | The agent/landlord responsibility is to ensure that the residents have "quiet enjoyment" of the property during the period it is let. As long as your friend has access to the flat he has that. He can ask, but the agent/landlord have no obligation to provide it. Could your friend appoint someone else to go and get their property? There is no reason why he has to do it in person. He should provide this person with a signed letter of authority (just "I, Joseph Bloggs, hereby authorise John Doe to collect my belongings from 123 Cherry Tree Crescent on my behalf", signed and dated) and also send a copy to the agent. Your friend must have a contract with somebody. If he paid a deposit then it should have been kept in a proper deposit protection scheme, and he should have paperwork to that effect. If that wasn't done, then he can sue the person he has the contract with for (in effect) punitive damages in addition to getting his deposit back. You say your friend was "not the lead tenant", so it sounds like one of the tenants was sub-letting, but its not clear; it may be that this "lead tenant" was just acting as a point of contact for stuff like rent collection. Your friend should have some kind of written tenancy agreement; he can sue the person or company named named on that. If the tenancy was a verbal contract then he can sue the person he handed the deposit to. | The location of your residence entrance is irrelevant for the law, what matters most is your "street address", i.e. mailing address. That is the address (therefore city) that you use for voter registration, and basically how you identify "where I live". If you lives 5 miles out in the country in an unincorporated area, you'd still use Needles (e.g.) as you mailing address: but you would not be able to vote for a mayor of Needles, just based on your mailing address. Both municipalities might claim jurisdiction based on the physical location of the property, especially for matters of building code. It should not be possible for both municipalities to tax the full value of your property, but they could split the assessment proportionally. The cities themselves are not collecting the tax, the county is (though property straddling a county line raises an interesting question). | UCC section 2-509 is the law pretty much everywhere in the United States, and it addresses your situation: Where the contract requires or authorizes the seller to ship the goods by carrier ... if it does not require him to deliver them at a particular destination, the risk of loss passes to the buyer when the goods are duly delivered to the carrier. Although the statutory language is a bit convoluted, it all boils down to whether you have a shipment contract or a destination contract, i.e., whether the contract calls for the seller to ship something to you or deliver something to you. Because you asked for a shipment contract, the risk of loss shifts to the buyer upon delivery to the shipping carrier (USPS). If the package is destroyed in transit, that becomes a problem for you and USPS to sort out. If you didn't purchase insurance for the shipment, you're probably screwed. Note that because this is the statutory default, the seller didn't "contract away" anything; instead, it alerted you to what was already true, giving you an opportunity to contract around the rule, purchase insurance, or otherwise mitigate the risk you were taking on. |
Prohibition of pledges and assignments In lay-mans terms, what does a clause in a contract mean when it says: The employee is generally prohibited from assigning or pledging salary requested to third parties. The employer shall charge a reimbursement of expenses in the lump of 15 EURO for the initial processing and for each subsequent transfer of a pledge in case remuneration is pledged. | If the translation is correct, an assignment or pledge is an irrevocable pre-dispute grant of a property interest in future wages, and such an arrangement will not honored by the employer in the absence of a specific exception to the general rule of law prohibiting such arrangements (these arrangements are functionally equivalent to indentured servitude which is just a short step removed from slavery). An assignment is an irrevocable transfer of the right to future income that will be paid to the assignee that is a property right in that income. A pledge grants an irrevocable property right to future income to the beneficiary of the pledge in the event that a debt is not paid as agreed without the need to resort to filing a lawsuit (it is functionally equivalent to a confession of judgment paired with a garnishment). Assignments and pledges of income from property or a business is allowed, but you can't generally do that with wage or salary income as a matter of public policy. For example, you cannot make an irrevocable transfer of 25% of your future income for five years or until the car is paid off to pay for a new car. You can sign a promissory note to pay a certain amount of money that happens to be equal to 25% of your income, and can receive the money from your employer and pay it to the creditor. But, that is a contract right and not a property right, which means that you can unilaterally breach it subject to being sued for non-payment, that the contract debt will not survive a bankruptcy, and that a lawsuit has to be commenced and won to collect that debt involuntarily. If the car loan is not paid as agreed, and you don't go bankrupt, the creditor can sue you, win and garnish your wages after winning, but only then. But, there are exceptions to the general rule prohibiting the assignment or pledge or future wage and salary income, however, on various legal theories (e.g. that future wages and salary are community property of spouses). For example, sometimes this kind of wage assignment is permitted in the context of a divorce settlement. And, if it is permitted by law, the company will charge you to set it up, just as it would if your wages were garnished to collect on a post-dispute judgment. | There is a reason these are commonly called "TRAP"s (Training Repayment Agreement Provision). These agreements don't just protect the employer from paying for training that an employee can use elsewhere. These agreements frequently act to "trap" the employee in difficult employment circumstances where the employer can demand long hours and excessive dedication in difficult jobs for little pay, knowing that if the employee tries to leave, they could face a substantial financial burden. These agreements are generally legal, provided they are executed in good faith. However, certain circumstances have been used to void the agreements. In particular: If the cost or value of the the training is vastly overstated, so the training actually provides minimal value to the employee, but has a disproportionately large repayment cost that only benefit the employer. If the term of the agreement is excessively long (typically, more than 1 year). Training is unlikely to be so valuable and specialized that the employee would need years to repay the benefits. (Certain exceptions apply, such as for advanced engineering work or specialized skills like airline pilots) If the "training" doesn't actually have much value; if the training is just company propaganda and policies, rather than job specific skills, repayment costs are unlikely to hold up in a dispute. If the employee already has demonstrated skills before the training, then forcing them into unnecessary training just for a TRAP contract is unlikely to be supported. For example, someone with years of skilled electrical design work probably cannot be forced to repay thousands of dollars of "training" for a few weeks of basic electrical refresher courses. Basically, if the training isn't valuable to the employee and the cost isn't reasonable for the training, the TRAP line can frequently be voided. Yet doing so almost always requires mediation or a suit, which are also expensive, time consuming, and have uncertain outcomes. Its best for a prospective employee to call out a TRAP provision as a red flag before accepting an offer, and avoid it if at all possible unless they truly believe they'll benefit from the training, intend to stay the full term, and understand the employer might use the cost as a way to expect more from them or hold back their professional advancement. | 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). | The parties to the contract have not changed; they are still the purchaser company and the scrap vendor. The obligations have not changed; they are presumably based on amounts of stock and monetary value. The only changes are in the name of one party and its ownership, so unless the contract permits termination for those reasons (not unheard of, if a contract has been intended to provide/avert support from/by a particular party or symbolism) the contract still stands with all its terms. A novation is not needed. | No The contract is created at the moment that an offer was accepted. In normal circumstances: You accepted an offer that they made to the general public by sending a purchase order for specific items at specific prices, or They accepted your offer by communicating their acceptance to you (being advised that the goods have been dispatched counts). However, in this circumstance, the company has been explicit that the contract is only created when either: You checkout and pay, or They “supply an invoice to you.” It appears that neither event happened so there is no contract. Their specific terms have overridden the common law rules on offer and acceptance (as they are allowed to do) and the offer has not been accepted until you receive their invoice. Specifically, it cannot be accepted by performance (dispatching the goods) and the requirement for the invoice to be supplied overrides the postal rule. Note that, in this case, you got lucky. 99 times out of 100 there would have been a valid contract and you would have breached it. In future, cancel orders specifically, don’t make assumptions. | For a contract (including ToS) to be valid, one of the things it must have is "legality of objects". That is, if the contract purports to require anything that is unlawful in the jurisdiction then (barring a severance clause) it is not a contract. In common law countries, the starting point is that people are free to contract for and about anything they like - a contract is simply a mechanism for exchanging value between the parties on whatever terms they wish. However, judges and legislatures have decided that there are some things you cannot trade and some terms that are unconscionable or against the public interest and these vary from jurisdiction to jurisdiction*. For example, a contract is not legal in any jurisdiction if its terms seek to exclude the intervention of the courts - this is against public policy. So for example, a binding arbitration clause requiring the parties to accept a private arbitrator's decision as final excludes the courts, yes? Well, in Australia, yes, such clauses if used in a contract between parties with different bargaining power (like a Telco and its customers) are invalid because they prevent the weaker party pursuing a class action. However, they are perfectly legal in the United States because the SCOTUS has determined that the customer can persue litigation after arbitration is finished so this doesn't impede the courts. These are essentially the same laws interpreted by the courts so that they have totally opposite effects. So this might lead you to think that you'll put one in - it'll be OK in the US and Australians will represent such a tiny share of your market that you don't care if I can't enforce my ToS there. Except, if your website is visible by Australians, you have just exposed yourself to a government fine of up to AUD 5,000,000 (say USD 3,000,000) per day for breach of Australian Consumer Law. As a general guide (which is very stereotypical), US jurisdictions are the most permissive in the rights they will allow their citizens to give up: the US attitude is that everyone is free to make the best deal they can. European jurisdictions are the least permissive in this regard: most European countries follow a more social welfare state model and the citizen needs protecting from themselves. Commonwealth countries tend to be more in the middle. | Because a contract is simply an agreement between two parties to exchange anything of value, there are many, many more types of contracts. If the company hires you, you would have an employment contract. If you agree to pick up a shift this week for someone who will pick up a shift for you next week, you have a contract. If the company lays you off, you may end up with a severance agreement. If you sue them for race discrimination you may enter into a contract to settle the case for a million dollars. If you want to protect that money from your fiance, you might enter into a prenuptial agreement. If you get divorced anyway, you might split up custody of your children in a shared parenting agreement. All of these agreements would constitute contracts. | You may want to ask Reich what he personally was talking about. There is a distinction within the US between states which prohibit mandatory union membership versus allow mandatory union membership. In about half of the states, a union cannot force an employer to accept a contract which obligates that a person join the union. These are known as right-to-work laws. No state requires all workers to join a union, and no state forbids the formation of unions. |
Can William Barr fully comply with the House Judiciary Committee's Subpoena? Background Given the comments from the question of the same name on Politics.SE, I thought it would make sense to also ask it here. On April 19th, Jarrold Nadler, head of the House Judicial Committee, subpoenaed Attorney General William Barr for the full unredacted Mueller Report, with very little exceptions. Problem According to this question there are several forms of redacted information that have strong basis in legal and constitutional precedent. The main example is the redaction of Grand Jury Testimony that cannot be unredacted under any circumstances (as I understand the article on the case cited). I did not see an exception for Grand Jury Testimony, or other forms of redaction, in the subpoena Question Given the situation above, can Barr be able to legally fully comply with the House Judiciary committee's subpoena? | The best course of action for Barr would be to file an objection to the subpoena in the proper court (probably the U.S. District Court for the District of Columbia) under or by analogy to Federal Rule of Civil Procedure 45(d) (which governs disputes over subpoenas in civil cases in the federal courts), if he thinks that there are matters he cannot lawfully divulge or thinks it is improper to divulge even if they are not privileged, and to let a judge decide. Generally speaking, in a civil action, you can only object to a subpoena by following this process and Congress has increasingly used the civil lawsuit discovery process as a benchmark. Failure to file an objection with the proper court, or at least in a response to Congress by the date required in the subpoena to produce the materials, will generally constitute a waiver of the objections that might otherwise have been asserted to the subpoena. Simply not responding without explanation by the due date would be a pretty clear case of Contempt of Congress which is the basis for both a civil action and criminal contempt charges. For example, in the Lynch case, cited below, the Court stated with respect to information that was withheld without any claim of privilege: Failure to provide any grounds for withholding particular records does not comply with the order or enable the Court to resolve defendant’s privilege claims as to those documents. Accordingly, defendant must produce the material withheld without any proffered justification. This said, in any dispute between Congress and the Executive Branch there is always some uncertainty, and the courts strongly favor negotiation and conferral between the parties before bringing these matters to a head. A general discussion of Congressional subpoenas can be found here, recognizing, however, that while there are a variety of grounds for redaction asserted in the Mueller report case, "Executive Privilege" is not among them and so the special considerations that apply to an assertion of executive privilege do not apply. The authority of the judicial branch to resolve these issues has been upheld, for example, in the cases of United States v. Nixon (U.S. 1974) and Committee on Oversight and Government Reform v. Lynch (D. D.C 2016) (both of which involved the more difficult scenario of an assertion of executive privilege in addition to the more ordinary assertions of privileges like the grand jury privilege). Not infrequently, the judge will review the unredacted material in camera (i.e. privately in chambers without showing it to the requesting party) to determine if the claim of privilege or other basis for redaction is really valid (e.g. maybe something that was redacted under the label grand jury testimony is not, in fact, grand jury testimony). But, there is case law to support the notion that Congress would have to demonstrate some specific reason why it doubts the accuracy of the assertions of the executive branch regarding redactions in this particular case to make it necessary for there to be an in camera review. In the Lynch case (which is a non-precedential opinion itself) the Court said: As for whether the redactions are what they purport to be, the Court notes that counsel for even the most disputatious parties are often called upon to trust each other, and that the judiciary relies regularly on declarations by the executive branch that matters redacted from FOIA productions are what they are described to be in the Vaughn index. See Loving v. U.S. Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008) (holding that district court had not abused its discretion by relying on agency’s Vaughn index and declaration in determining whether a disputed document contained segregable portions); Judicial Watch, Inc. v. Consumer Fin. Prot. Bureau, 60 F. Supp. 3d 1, 13 (D.D.C. 2014) (“The reviewing court may rely on the description of the withheld records set forth in the Vaughn index and the agency’s declaration that it released all segregable information.”). The Court has been provided with no reason to believe that its assistance is needed to verify for counsel for one branch of government assertions made in pleadings by an officer of the court representing another, equal branch of government. If in the end, a neutral is required to read each individual redaction and confirm that what the Department claims is simply a name or a telephone number is in fact a name or a telephone number, the parties can arrange for that on their own. These discretionary issues are likely to be influenced by the partisan leanings of the particular judges involved. Another question is to whom a subpoena could be directed. While attorney-general Barr is one possible person to whom it could be directed, Mueller himself is another possible person to whom a subpoena could be directed and that might lead to a more tractable counter-party in the lawsuit and might simplify some of the conflicts of interest present in a subpoena of the attorney-general himself that in criminal contempt cases is enforceable by his subordinates, i.e. U.S. attorneys, who are required by law to bring such charges. | 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". | There's no settled legal answer to this, but there seems to be a general consensus that this would not be legal under the Impeachment Clause, which says: The President ... shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. There would be two main issues here: 1. Can a president pardon himself? It's never been tried, so it's never been challenged, so the courts have never had a chance to say whether it's legal. The main argument in favor of self-pardons is that the constitution grants broad pardon authority for any offense against the United States, making an exception for impeachment, but not for self-pardons. The response to that is that the constitution uses all kinds of broad language that everyone agrees is not as broad as it sounds; Congress is not allowed to abridge the freedom of speech, but perjury laws are nonetheless constitutional. There are several theories as to why the self-pardon would be illegal, but they mostly come down to two main ideas -- that our legal system does not permit anyone to be the arbiter of their own case, and that a person subject to impeachment may not be pardoned. 2. Can a president issue secret pardons? Again, it's never been tried, so it's never been challenged, so the courts have never had a chance to say whether it's legal. And again, the primary argument in favor of secret pardons is that the Pardon Clause grants broad pardon authority without requiring that pardons be publicized. The main arguments against are (1) that presidential pardons are inherently public acts, as they have no effect if the justice system doesn't know about them, and (2) that the Presidential Records Act requires official White House records to be transferred to the National Archives. | To what cases is the judge referring to here? None: neither the quoted article (2023-06-02 05:57: Prozess gegen Lina E.: Stadt Leipzig verbietet Solidaritäts-Demonstration) given in the english version of Wikipedia nor the german Wikipedia version (Dresdner Linksextremismusprozess – Wikipedia uses the quote given in the english version. In the article itself, the name 'Hans Schlueter-Staats' is used only once: The arrest warrant against them will be suspended against conditions, said Hans Schlueter-Staats, presiding judge of the State Protection Chamber at the Dresden Higher Regional Court, on Wednesday evening at the end of the verdict. She only has to serve the remainder of the sentence if the verdict becomes final. Assume that, for whatever reason, someone added a fabricated quote, in the Wikipedia page, that is not contained in the given source hoping that nobody would notice (either because the reader can't read German or simply wouldn't look). It would be very strange for a judge whos primary duty, in a civil law system, is to read the law as written, to give a personal opinion about previous rulings (which was the reason I looked: to read the exact German text). Whoever fabricated that quote was obviously unaware of this or didn't care hoping that others would simply assume it to be correct due the given source of a newspaper that has a reputation as being a reliable source. | Probably not. It appears that in the case in question, your lawyers, while they were representing you, agreed to a protective order that kept certain information including settlement offers made to them by the opposing parties' lawyers (even if those offers were rejected) confidential. You are bound by the agreements made by your lawyers if they are your lawyers at the time, even they later cease to be your lawyers. So, if you were to make the disclosure of this information subject to a protective order, the court involved could hold you in contempt of court and issue sanctions (including fines and incarceration) for failing to honor the court order to seal the case, because this protective order was binding upon you, because you agreed to it through your lawyers who were acting as your agents at the time. The fact that you are no longer represented by those lawyers doesn't vacate the protective order. CAVEAT: This is an interpretation of the facts made with incomplete information. A truly reliable answer would require review of the exact documents in the case filed with the court which is beyond the scope of Law.SE. | The alternative is the same whether just one lower court or many lower courts ignore SCOTUS precedent. An aggrieved parts will appeal the lower court ruling, and the matter will work its way up the ladder until SCOTUS directly rules on this application of the law. This sort of happens all the time, when lower courts don't apply the ostensive "final ruling" because they find that there is some other overriding consideration ("that rule only applies to businesses employing more than 50 people"). Where the case to be remanded to lower courts for further proceedings consistent with SCOTUS opinion and still the lower courts refuse to comply, i.e open rebellion, SCOTUS could rule that non-compliance by lower courts constitutes contempt, and an order could be issued for the removal (in some form) of offending parties (we may presume, the justices of the lower court). The statute outlining court power allows on order of imprisonment for "disobedience or resistance to its lawful writ, process, order, rule, decree, or command". Federal marshals would then arrest non-compliant judges, unless the marshals too are in open rebellion. If the judges in question were federal judges, the marshals would have to decide whether to obey the order of SCOTUS vs. the order of the district or circuit court. Since under the US Constitution states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish", it is objectively established that SCOTUS rulings are superior, so provided that the marshals elect to uphold their oath of office, they will enforce the SCOTUS ruling. However, citizen action becomes irrelevant once SCOTUS has made its ruling, and the matter has moved from legal determination of fact to enforcement of established fact. | 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. | Florida bar membership is something that can be determined from public records to see if he is an attorney or not. I would be stunned if he was not. It could be that he was an enrolled patent agent prior to being admitted to the practice of law and has never updated the record. Alternatively, it could simply be that there was a data entry error. No large database is 100% accurate. For most purposes, the rights of an enrolled patent agent and an attorney admitted to patent law practice are the same in PTO practice, so correcting this error (assuming that it is one), even if it was discovered, wouldn't be an urgent priority. |
Passport Card Required to Accept Passport cards are popular for those who frequently go back and forth across the border. Due to lack of address if you move frequently they tend to be less likely to be inaccurate or expired. Is there any legal requirement that someone accepts a passport card if they also accept passports and drivers licenses? | 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. | No, you can pay the fine instead MIGRATION REGULATIONS 1994 - REG 3.08 Offence--failure to complete a passenger card (1) A person who is required by these Regulations to complete a passenger card must not fail to do so. Penalty: 10 penalty units. (2) Strict liability applies to subregulation (1). This is presently $2,750. You have 2 business days after you arrive to provide the card, otherwise you get the fine. | 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. | Overview The GDPR requires data controllers (DCs) to exercise reasonable care when responding to an access, modification, or deletion request, to ensure that it comes from the actual Data Subject (person whose data is involved, here a DS). The GDPR does not specify just what methods must or may be used to ensure that an access (or other) request comes from the DS. It does say, in Article 12, that "additional information" may be requested from the DS by the DC for this purpose that is "necessary to confirm the identity" of the DS. If a DC receives data for identification purposes, it must be used only for those purposes, and retained no longer than needed. Personal Data (PD) in general must be limited according to article 5, so that data is used only for the purposes it was collected for, retained for no longer than needed, adn appropriately secured against unauthorized use or access. The DC is responsible for adhering to these limitations. Recitals 57, 59, and 77 (quoted below) confirm this, and discuss identification. If a DC violates these restrictions, it is subject to the same enforcement as it would be for violating any other GDPR provision. If a DS thinks the data requested to support identification of the DS is excessive, the DS may first complain to the DC, and then to the relevant supervisory authority if the response from the DC is not acceptable (allow at least 1 month for a response). But perhaps knowing that the GDPR forbids the DC from distributing or using this data except for the purpose it was collected, that is, to identify the DS, and from retaining it longer than need be, might offer some reassurance. A DS could also ask the DC what is the minimum data needed for identification, and redact data beyond this. The DC might need more than name and address, but not all that is on a bank statement or other ID document. GDPR Sources Article 12 (section 6) of the GDPR reads: Without prejudice to Article 11, where the controller has reasonable doubts concerning the identity of the natural person making the request referred to in Articles 15 to 21, the controller may request the provision of additional information necessary to confirm the identity of the data subject. That includes access requests. Paragraph 1 of Article 11 reads: 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. Paragraph 1(b) of article 5 specifies that personal data shall be : collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; Paragraph 1(c) of art 5 specifies that such data shall be: limited to what is necessary in relation to the purposes for which they are processed ... Paragraph 1(e) of art 5 specifies that such data shall be; kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; [emphasis added] Paragraph 1(f) of art 5 further specifies that such data shall be: processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing Recital 59 reads: Modalities should be provided for facilitating the exercise of the data subject’s rights under this Regulation, including mechanisms to request and, if applicable, obtain, free of charge, in particular, access to and rectification or erasure of personal data and the exercise of the right to object. The controller should also provide means for requests to be made electronically, especially where personal data are processed by electronic means. The controller should be obliged to respond to requests from the data subject without undue delay and at the latest within one month and to give reasons where the controller does not intend to comply with any such requests. Recital 57 reads: If the personal data processed by a controller do not permit the controller to identify a natural person, the data controller should not be obliged to acquire additional information in order to identify the data subject for the sole purpose of complying with any provision of this Regulation. However, the controller should not refuse to take additional information provided by the data subject in order to support the exercise of his or her rights. 3Identification should include the digital identification of a data subject, for example through authentication mechanism such as the same credentials, used by the data subject to log-in to the on-line service offered by the data controller. Recital 77 reads: Guidance on the implementation of appropriate measures and on the demonstration of compliance by the controller or the processor, especially as regards the identification of the risk related to the processing, their assessment in terms of origin, nature, likelihood and severity, and the identification of best practices to mitigate the risk, could be provided in particular by means of approved codes of conduct, approved certifications, guidelines provided by the Board or indications provided by a data protection officer. The Board may also issue guidelines on processing operations that are considered to be unlikely to result in a high risk to the rights and freedoms of natural persons and indicate what measures may be sufficient in such cases to address such risk. | You are right, the entry and exit photos are only evidence that you were there. This is something they need to prove so the photos may only be for that. Their statement that you didn’t display a valid ticket/permit is, at present an unevidenced assertion. If you contest this, they will provide evidence that you didn’t (e.g. the actual records they refer to) and you would provide evidence that you did and, if it goes to court, the judge will decide what evidence they prefer. As this is not a criminal matter, they need to prove the offence on the balance of probabilities. However, there are almost certainly administrative remedies which will allow you to contest the fine without going to court. This would involve you sending them a copy of the permit and them assessing whether their belief that you didn’t display it is justified or not. | This is an incomplete answer, but regardless of the state of statutory law in the U.K. and Ireland, most credit card providers, as part of their merchant agreements authorizing a merchant to accept credit card payments, prohibit merchants who accept credit cards from offering a lower price for cash payment than for a purchase using a credit card, despite the fact that in the case of a credit card payment, the merchant has to pay a processing fee to the credit card company that the merchant does not have to pay in a cash transaction. There have been some lawsuits challenging the validity of this requirement, but to the best of my knowledge, none have been successful. Generally speaking, however, it is not illegal to offer a different price if the merchant is paid all at once, as opposed to offering seller financing on installment terms (a different sense of the phase "cash price"), which is a different situation than when a merchant is distinguishing between a credit card payment of the entire price in one go, and a cash payment of the entire price in one go. It isn't entirely clear from your question in what sense "cash price" is customarily used with those tags. Similarly, it is probably permissible to offer one price for people who pay via either cash or a credit card on one hand, and a different price for people who pay via a check (which carries with it a risk that the check will not be honored), since that is not subject to a merchant agreement restriction, although my impression is that checks are used less often for payments in the U.K. (where they were invented) and Ireland, than in the United States. | The legal question here is whether police have an enforceable power to enjoin a person from visiting a particular person or from entering a particular jurisdiction (especially the one where they have police powers). The obligation to obey police orders generally ends at matters regarding arrest, traffic orders, or crowd control. Freedom of travel is a fundamental constitutional right, along with freedom of association. That does not mean that you can go absolutely anywhere you want and do anything you want with whoever you want, but it does mean that any restriction have to be encoded in law, and such laws have to pass strict scrutiny. Any enforceable legal restrictions would have to emanate from the courts. | Do the exchanges need to check with each government to make sure the information is valid? Or is submitting documents enough? They need to understand the (usually very complicated) laws governing financial services and data protection in every jurisdiction where they operate. The specific requirements will vary from one jurisdiction to the next. The usual way of acquiring this understanding is to hire a lawyer (or several). |
What are the legal repercussions of dosing somebody? I have a strong suspicion somebody is dosing(I'm not going to get into the exact drugs listed) people at a bar/restaurant I attend. What is the best legal course of action that can be taken? What are the legal repercussions of dosing somebody? | Giving someone drugs without their knowledge or consent, say in food or drink, is a criminal act. At the least it is a form of assault, and possibly a more serious crime could be supported by the facts. Note that people's reactions to drugs vary, and serious harm or even death can result from drugs that do not have serious effects on most people. Very serious criminal charges might then result. The facts should be reported to the police. If this is a case where the people receiving the drugs know about them, and want them, that is a very different matter, although it may still be illegal depending on the nature of the drugs. Note that under US law, an uninvolved witness is not normally required to report a crime, although reporting is strongly encouraged. This rule is different in different countries. That is, in some countries an ordinary citizen may be legally required to report a crime. In at least one state any person is required to report a crime if a victim is in danger of bodily harm (Wisconsin statute 940.34) There may be similar provisions in the laws of other states. People with some sort of duty of care, or who are made "mandated reporters" by statute, such as teachers and health professionals, may be legally required to file reports when they know or have reason to believe that a crime is underway or has taken place. Such statutes vary from state to state, and will be different in non-US countries. | 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. | Publishing government records is pretty classic First Amendment-protected activity. Keeping in mind that one can find a lawyer to sue for anything, I think that person would likely be operating well within the law. One thing in particular that I'd recommend staying aware of is how one might attempt to monetize this endeavor. There have been a lot of sites publishing arrest records, court records, and mugshots, and then charging people to have them removed to keep them from popping up in a Google search for those people's names. That is -- rightly -- regarded as sketchy behavior; while several states have passed laws prohibiting that business model, I don't believe any such law exists in Washington State at this point. | People running web servers are generally liable for contributory culpability, when some user breaks the law by putting the material on the server. There are legal mechanisms for relieving the server guy from this burden. The best-known mechanism is "DMCA takedown", where you publish contact information so that an offended person can serve up a proper legal claim that you are distributing material that they own copyright to. If you follow the rules, you may enjoy "safe harbor" protection against contributory liability: one of the requirements is that you have to take infringing material down. The specific requirements can depend on the nature of the liability and jurisdiction, but generally involves a "hands off" involvement where the person has no knowledge of what's going on on his server. So just disclaiming responsibility does not work. There are other more serious violations, such as distribution of child porn or transmission of top secret information. Jurisdiction is not totally central to internet questions, and I could sue you (the server guy) in US courts, or (depending on the offense: copyright infringement of a particular item) in UK courts. Nailing this down specifically to Sweden is harder, but recall that The Pirate Bay had a whopping judgment against them. | 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). | Yes, barring any statutory prohibitions against such a rule. I would be very surprised if any existed. They don't exist in any jurisdiction I'm familiar with. Look up the local by-laws to be sure. | One path would be to get compliance, by demonstrating that it is legally required. The best evidence that he is legally required to wear a mask is this recent mandate from the Department of Public Health. However, I cannot find a corresponding executive order, which may be in a generic form empowering CDPH to issue orders. Any imposition of penalties for violation must be publicly announced and rest on legislative authority. The mandate is not generally enforced, except in a few cases regarding bars and restaurants. There are various persuasive avenues that you could pursue, such as asking CDPH to come talk to him (unlikely, but you could try), complaining to the property owner, appealing to local social media to apply pressure (possibly putting yourself at legal risk for defamation, if you make a false statement). There are two more involved legal actions to contemplate. One is to terminate the lease and move elsewhere. This would likely result in an action to collect the remainder of the rent, but the strategy would be to argue that the manager has interfered with your private enjoyment of the premise. A second, highly improbable, is to sue the manager and get an enforceable court order requiring him to wear a mask. Courts have a prejudice against ordering people to take actions when other options exist (terminating the lease, monetary compensation). It could be an interesting but expensive test case to see if you could get a judge to order the manager to wear a mask. So yes they are obligated to wear masks, but legal enforcement is going to be difficult at best. | California Penal Code 647f states that being intoxicated in public is prohibited. When the police arrived, they were confronted with probable cause for an arrest. They (presumably) became aware of the matter because the doctor called the police, since she believe that you would drive drunk. (We can inquire into whether that was a reasonable belief, but it doesn't matter, what matters is that she had the belief and acted on it). Now the question is whether the doctor acting on the belief (making the call) was legal. A negative answer does not affect the legality of the arrest. There is also a law imposing on medical professionals a duty to report, which is fairly wordy, but does not seem to directly require reporting the fact that a person is publicly intoxicated. However, attending circumstances could have suggested one of the triggering causes for mandatory reporting (wounds, for example). Again, it does not matter (to a point) if, in the light of close scrutiny, the doctor's conclusions were mistaken. When doctors are required to report facts to the police, reasonable over-reporting is not penalized. There is also no law against calling 911 to report a potential DUI (the usual public-campaign focus is on those actually driving). So calling the police under the circumstances falls between "allowed" and "required". The HIPAA privacy rule could be relevant because that theoretically could block the doctor from making the call. (Note that the doctor, and not the patient, is bound by the confidentiality requirements). §160.203 allows exceptions to the confidentiality requirement if "necessary... For purposes of serving a compelling need related to public health, safety, or welfare", so an exception may have been granted. If this was done within the scope of a mandatory reporting law, it is legal to disclose PHI; under §164.512 it is allowed, "to prevent or lessen a serious and imminent threat to the health or safety of a person or the public". A confidentiality agreement would not increase your chances of being arrested. If the doctor's confidentiality statement were less restrictive than HIPAA, HIPAA prevails (the law trumps contract terms). If it is the same as HIPAA, it has no effect (and simply states what HIPAA says – the normal case). If the agreement were more restrictive, it is possible that the doctor calling the police would be a breach of contract, unless the call was required by law. You would have to see what in the agreement would have prohibited calling the police. But that would not affect the validity of the arrest. To re-phrase the matter: the arrest was because you were found to be intoxicated in public. The police were there and could judge your state (probable cause). They were there by permission of the property owner, so the arrest was not unlawful for lack of a warrant. That is as far as one can go in searching for an illegality to the arrest itself. One might go further and ask whether the doctor has committed an actionable wrong by calling the police with her suspicions. This could go either way: it really depends on the full set of details, regarding your condition. If the doctor suspected that your actions fell under one of the mandatory reporting categories, she had to report, and otherwise it is not prohibited under HIPAA. If a person is intoxicated and answers the question "Would you normally proceed to drive home in this state?" in the affirmative, then it is a reasonable inference that the person will do so. An answer "No, absolutely not", on the other hand would work against the "public danger" inference: that has no effect on the arrest, but could have an effect in a suit against the doctor (violation of the privacy rule). In such a suit, the doctor's defense would presumably be that despite the answer, she still had a reasonable belief that you were a public danger. Then the matter would reduce to what other facts she knew of that would support a public danger conclusion. |
Do drivers have a right to remain in their vehicle? If stopped by a police officer, do drivers have a right to remain in their vehicle? I’m unable to find any specific RCW regulation for Washington state. I feel that a person, not the subject of arrest, should be protected by the 4th amendment if they choose to remain in their vehicle, even if “ordered” to exit the vehicle by an officer. I’m most interested to know: How would a driver (1) Politely (2) determine if a given instruction to exit the vehicle must be complied with, and (3) decline the instruction without giving the officer “cause” or otherwise damaging a potential case? | I feel that a person, not the subject of arrest, should be protected by the 4th amendment if they choose to remain in their vehicle, even if “ordered” to exit the vehicle by an officer. The intuition is fine, but is basically incorrect. I’m most interested to know: How would a driver (1) Politely (2) determine if a given instruction to exit the vehicle must be complied with, and (3) decline the instruction without giving the officer “cause” or otherwise damaging a potential case? From a practical perspective the only workable response is to comply. There are times when this is done without a reasonable suspicion (or in some cases probable cause) or other legal basis, but it is pretty much impossible for you to dispute this one the spot. Most of the time, the officer will have the legal authority to order you to leave the vehicle. If they order you to exit the vehicle despite not having the legal authority to do so, the right course of action is to comply and then to file a complaint with the agency employing the officer or to bring a civil lawsuit against the officer. There are good answers to a basically duplicate question at How can you tell if you have to follow a police officer's instructions? | I am aware of a view of the California law that if a pedestrian looks like they might want to cross the street, any car must stop, but this is not supported by the law, which is about "yielding". The law incorporates both "yield" and "stop", the former being "and allow the other person to proceed". Ignoring the photo for a moment, the requirement to yield (not stop) allows a car to continue driving when the driver is e.g. 10 ft from the crosswalk and the pedestrian is three lanes over when they enter the crosswalk, remaining in compliance with the law. The pedestrian and the driven can continue with their journey because there is no conflict. The requirement to yield states whose right to proceed is subordinated to the other person's, in case of conflict. Turning to the video which shows what is in front but not behind, it is evident that the vehicle did not actually conflict with the pedestrian, who did not slow down in order to let the vehicle pass. The violation of social conventions is clear, in that the pedestrian enters the crosswalk while the car is 5 or so car lengths back, and can safely slow down so that there would be zero chance of hitting the pedestrian (it starts to slow but only trivially one the pedestrian is visibly 'crossing the street'). As far as I can determine, California case law has not established any numbers that constitute "not yielding". While I would stop in this circumstance, I don't see that there is a conflict between the pedestrian and the vehicle. | I'm not a lawyer; I'm not your lawyer. Victoria The Road Safety Act 1986 (Vic) s 73A makes the obstruction of the operation of a safety camera or speed detector an offence. It is likely that the obstruction of a mobile speed camera would fall within this offence. The law does not restrict the operation of the device to police, and so it may not be relevant whether the car was marked or not. New South Wales Certainly, the obstruction of an authorised officer is an offense as per the Roads Act 1993 (NSW) s 240 and the Road Transport Act 2013 (NSW) s 173 Obviously these apply to NSW and Victoria only; I haven't researched the other states yet. It's possible, though not definite, that other states will have similar laws. It is also likely, though not definite, that people who attempt to obstruct it may be charged with obstruction of traffic in some way, as most states require you to not obstruct the normal passage of traffic unreasonably. (eg Road Obstruction (Special Provisions) Act 1979 (NSW) s 4) | Yes Under Texas law (and pretty much everywhere else) the driver of the vehicle is responsible for ensuring that it is roadworthy. This does not mean that someone else cannot also be liable - the mechanic who fixed the wheel and their employer would also be liable. The claim for damages from a motor vehicle accident lies in the tort of negligence and the standards that the driver has to attain to avoid liability is that of a reasonable person. A reasonable person is not an average person who (probably) just gets in a car and drives but a prudent person who considers the risks to themselves and others and takes reasonable steps to mitigate them. Like looking at the wheels of an unfamiliar car. If the defect were obvious to a layperson from a visual inspection, they would be liable if they had not conducted such an inspection. Similarly, continuing to drive when a car is making a "Knocking" noise even if you didn't know what it was is not something a reasonable person would do. If you knew what the noise was and kept driving we are now moving from negligence into recklessness and the realms of criminal liability like manslaughter. | In principle, police are liable for the safety of anyone they detain. If an officer creates a hazardous condition, as was described in this scenario, he or his agency (which effectively means the taxpayers who fund his agency) can be held liable for damages resulting from that action. (Whether it is the officer or instead the taxpayers who get stuck with the bill is a separate question of "qualified immunity.") This idea has been formalized under two theories: The "special relationship doctrine" would apply in this case because the officer was detaining the driver. Otherwise, the liability could be argued under the more broad "state-created danger doctrine." | I assume this took place in Washington state. There are a number of self-defense provisions in Washington law. The first, RCW 9A.16.110, is primarily about reimbursements for prosecutions of acts of self-defense, but includes an applicable limit on prosecution: No person in the state shall be placed in legal jeopardy of any kind whatsoever for protecting by any reasonable means necessary, himself or herself, his or her family, or his or her real or personal property, or for coming to the aid of another who is in imminent danger of or the victim of assault, robbery, kidnapping, arson, burglary, rape, murder, or any other violent crime as defined in RCW 9.94A.030. This provision is relevant, since executing a prisoner on death row is not a crime (the state Supreme Court recently struck down the death penalty, so I assume this took place before that ruling). RCW 9A.16.020 states the more classic law on justified use of force, saying The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:...(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary; Statutory law does not define offense against his or her person. Grabbing a person and strapping them down for some harmful purpose would normally constitute battery under the common law, but in this instance it is privileged, so it is not an offense against the person). RCW 9A.16.030 says that Homicide is excusable when committed by accident or misfortune in doing any lawful act by lawful means, without criminal negligence, or without any unlawful intent. The person is under court order to be executed, and it is not lawful to resist that order. The guard, however, RCW 9A.16.040, may use deadly force pursuant to the legal mandate to carry out the court orde ((1)(b)"to overcome actual resistance to the execution of the legal process, mandate, or order of a court or officer, or in the discharge of a legal duty"). | They don't treat right-of-way persistence at all You are required to follow the car ahead at a distance that is reasonable and prudent, having regard for both speeds, traffic generally, and road condition (i.e. curves, rain). CVC 21703. This would apply to the other driver. You must only shift lanes left or right when possible with reasonable safety and only after signaling. CVC 22107. That applies to you. If you "cut them off" such that they must make adjustments to re-acquire a distance that is reasonable and prudent, then you are guilty of 22107. If you changed lanes properly, then it is immediately and continuously THEIR duty under 21703 to maintain safe distance despite whichever lawful maneuvering you may need to do. Note that 22109 forbids you to stop or suddenly decrease speed without first giving an appropriate signal, unless there is no opportunity to give that signal. 22109 is a civil infraction that assumes accidental or negligent braking. (i.e. me going for the clutch and not remembering the car is an automatic). Intentionally brake-checking someone is a crime with risk of jail and other more serious consequences than "fine and points". | Despite the lengthy background, the only question seems to be: Can a police officer lie about a consequence of a traffic violation they charge you with? As a matter of constitutional law in the United States, that answer is generally "yes." States can impose more limitations if they like. Only a small minority of states actually do so. Incidentally, an attorney, such as a deputy district attorney, is not allowed to lie about the consequences of a traffic violation, or anything else (even in extreme circumstances like a hostage situation). This violates the rules of professional conduct applicable to all attorneys. This sounds like a classic "driving while black" situation and is probably involves unconstitutional discrimination by a government official, although proving that in an individual case is virtually impossible. |
Is a copyright notice with a non-existent name invalid? If a person changes their name, do any copyrights registered to them still apply? Or at least, as this is the subject in mind, does any software licensed to them still hold the same copyright? | Since the effective date of the US 1976 Copyright act, a copyright notice is not required at all on works published in the US, nor is it required on works published in any other country that adheres to the Berne Convention (which is adhered to by almsot every country in the world at this time). A copyright notice, if present, may specify a pseudonym, a business name, or a form of the author's name other than his or her legal name. The validity of the copyright does not depend on the name in the notice. This is true in all Berne Convention countries. Even under the 1909 US copyright law, when a notice was required for protection, the exact form of the name used was not important, and pseudonyms and variant forms were permitted, as well as DBA names, which might not be easy to associate with the actual copyright holder. Nor do I know of any other country in which an error in the name in the notice would invalidate the copyright. Aside from people changing names, a copyright can be sold or otherwise transferred. This does not require changing the copyright notice to reflect the changed ownership of the copyright, although it is often done with new versions or printings. The name on a copyright notice is at best suggestive or helpful; it does not define the owner. | It is certainly possible to transfer a copyright or other IP without an explicit charge, indeed it can be a pure gift, and normally would be when it is left by will, as is common enough. From a paid consultant it might be clearer to include a statement that the transfer is part of the consulting assignment, rather than putting a price of zero in a blank. But one could instead convey a permanent non-exclusive license, granting permission to use or modify the work in any way desired, ans saying that this is provided as part of the consulting process. Then there would be no question of what rights the consultant retained, or that the same or a very similar solution could be provided to different clients. Indeed such a license would not be so very different from a CC-BY license, or any of several open source licenses, although I would not use one of those by name. But the legal effect would be much the same, and the wording could be similar. Otherwise there could be a later claim that the right transferred precluded the consultant from using the same solution for other clients. Even if such a claim was not legally sound, and was not upheld, it could be a distraction and costly of time and energy at least. | No, it means you can't copy it. By default, the copyright to a work is owned by its creator, and nobody else is allowed to copy it, or create derived works, without their permission. That permission can be granted by a license. "License unknown" doesn't really tell us anything, but it certainly isn't clearly granting you permission. So you don't have permission to copy, and thus you cannot. You would have to seek permission from the copyright holder. See also If no licence is distributed with an application/source code, what license applies by default if any? (Some jurisdictions do allow for "fair use" exceptions, which allow you to copy a work without permission. You haven't said what jurisdiction you are in.) | In the U.S., you are not required to include your real name on a copyright registration: If you write under a pseudonym and do not want to have your identity revealed in the Copyright Office’s records, give your pseudonym and identify it as such on your application. You can leave blank the space for the name of the author. If an author’s name is given, it will become part of the Office’s online public records, which are accessible by Internet. [...] In no case should you omit the name of the copyright claimant. You can use a pseudonym for the claimant name. But be aware that if a copyright is held under a fictitious name, business dealings involving the copyrighted property may raise questions about its ownership. Consult an attorney for legal advice on this matter. Therefore, a pseudonym seems like a perfectly legitimate name for a copyright notice, considering that it is also a legally valid name for an official registration with the U.S. Copyright Office. As noted above, this may complicate your ability to prove your right to litigate against copyright infringement, but it does not actually diminish your right to do so if you can successfully validate your identity as the copyright holder. | Generally speaking, it is illegal for you to do this. Copyright gives the creator of the image the exclusive right to copy it, and just making copies to send to other people is probably not going to be fair use. Making copies without a license from the copyright holder would therefore be copyright infringement. Are there likely to be any consequences for doing this? Probably not. | NO The Names of actual people can neither be trademarked nor can a name have a valid copyrighted. There is no valid market class for names of people, making it impossible to register a trademark in that category. As a result, neither copyright nor trademark will prevent someone from attempting to name a kid "Nintendo" or "Sony Music". While you could try to name your kid Nintendo, unless you are in the US, most countries like germany or japan do safeguard what you can name a child. Those countries will deny your name as endangering the (mental) health of the child or in other way making the child a target for mockery. Compare to names in all lowercase, line breaks, and infinitely long names. | It has as much legal standing as the evidence that supports it. See a lawyer to evaluate your position, obviously. But if the evidence is clear that there is no infringement, then the cease and desist letter doesn't mean much. | Ideas (methods of playing, game mechanics, strategy, goals) cannot be protected by copyright. But any part of a creative work can. So, no copying of drawings, patterns, images, sounds, or the element. I suppose copying the software code is not an issue here, but it can, obviously, also not be copied. And nothing in your game can look like someone's else trademark. |
Cannot afford speeding ticket Netherlands My friend lives in the Netherlands and was doing 62 km/h in a 30 km/h zone. He did this on a scooter that he illegally removed the 25 km/h cap on. From these two facts the fine will likely be around 400 euros, which he cannot afford. Is there any way for him to pay it off with community service or in monthly payments? Are there any ways he can pay for his mistake without crippling him financially and putting him in debt? | I looked for a link to the CJIB pages on paying fines in monthly bits. It is here: https://www.cjib.nl/betalen-delen-aanvragen-voor-een-verkeersboete. He will have to make a request for such an arrangement at the CJIB himself. It will depend on what type of communication he has received from the authorities, and how quickly he responds to it. | The Ct. driver's manual p. 44 says that "Solid yellow lines may be crossed to make a left turn to or from an alley, private road, driveway, or street", and also "A double solid white line prohibits lane changing" (turning left is not the same as lane changing). In Washington, there is a fine of $136 for crossing a double white line, but this is related to the hyper-limited access pay lanes on the freeway. I have not found anything in the Connecticut code that indicates an analogous absolute prohibition against crossing a double white. In lieu of a statutory prohibition, you may succeed in arguing that it was a legal turn, as long as the turn was in compliance with the rest of the law, e.g. you signalled, you yielded right of way (which essentially means he was driving so fast that he appeared after you started to turn). His speed may be contributing negligence that prevents you from being liable, so it just depends. | It is certainly possible for the same action to break multiple laws, and be chargeable as multiple crimes. For example, shooting and killing someone may be assault, assault with a deadly weapon, and murder all at the same time. For a different example a person who simply omits to file an income tax return may be guilty of both failure to file a required return, and failure to pay tax due, and in some cases failure to par required estimated tax due as well. For yet another example, driving well above the speed limit may be a violation of the speed limit law, and also careless driving, and possibly also reckless driving. In the first case the assault etc may be lesser included offenses in the charge of murder. That means that they are automatically available to a jury (or judge) trying the accused, who can convict on one of the lesser included charges if they do not convict on the primary count. For the more general case, I don't know of any special term for the situation. It is not usual to have law A which says "do not do X", and also law B which says "you must follow law A". There is no general principle against having such redundant laws, nor is there, in the US, any Constitutional rule against such laws. But legislatures do not normally bother to enact such redundant laws. Laws which will sometimes overlap in their coverage, but in some cases do not overlap are common. | 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. | Bob has no defense Speeding in western-australia, as it is throughout australia, is a strict liability offense. That means that intention to or knowledge that you are breaking the law is not required. Don’t know the limit? Doesn’t matter, you are still legally obliged to comply. However, all the way up the chain, from the police officer, through the administrative arm to the judge, each person has discretion to waive the infringement notice. Basically, they can do that if they don’t think it’s “fair” on Bob in the circumstances. Given that Bob managed to reach 40+km/h within 20m of a more than 90 degree corner I think the infringement notice is very fair. Negligent Driving is possibly the more appropriate offense. However, it’s possible to imagine circumstances where waiving the infringement notice is fair. For example, if a speed limit sign has been removed or completely obscured by foliage or a parked vehicle and Bob could show he was not familiar with the area. The question on Alice is, from above, moot. | This would be an offence under section 5(3)(a) of the Regulation of Railways Act 1889: (3) If any person— (a) Travels or attempts to travel on a railway without having previously paid his fare, and with intent to avoid payment thereof; ... he shall be liable on summary conviction to a fine ... The Crown Prosecution Service has a summary of transport offences, which says of the above offence: "Intent to avoid payment" does not require a dishonest intent, just an intent to avoid payment of the sum actually due: Browning v Floyd [1946] 2 All E.R. 367: where a man used the return portion of a non-transferable ticket given to him by his wife who had not used it, he was guilty of the offence and she was guilty of aiding and abetting him. In the case of travelling in first class on a standard ticket, you would be avoiding payment of the "sum actually due", since a first class ticket is more expensive. | Illinois collects the fine; California treats it the same as if you had run a red light in California Both Illinois and California are parties to the Nonresident Violator Compact and the Driver Licence Compact. The former means that Chicago will forward the ticket to Illinois who will forward it to California who will forward it to you. You can contest the ticket in various ways including by mail but your prospects of success are slim. If you successfully contest, that's the end of the matter. If you don't contest or lose, you have to pay the $100 fine. The latter means that if the offence is upheld or not contested, California will apply 1 point to your licence. | Assuming that this wasn't a planned murder or assault, the most serious charge would be vehicular homicide. In the US, this is governed by state law, but states are not radically different in whether this is a crime. In Washington, under RCW 46.61.520, vehicular homicide is a class A felony, punishable by imprisonment in a state correctional institution for a maximum term fixed by the court of not less than twenty years, or by a fine in an amount fixed by the court of not more than fifty thousand dollars, or by both such imprisonment and fine The crimes is defined as causing death while driving (a) While under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502; or (b) In a reckless manner; or (c) With disregard for the safety of others. and such speeding is highly likely to be found to constitute the element of recklessness. There are also hit-and-run charges, which is a class B felony (10 years and $20,000). A person can be found guilty of both charges, and the judge can apply the prison sentences consecutively, meaning you add them up, rather than serve the jail time at the same time (in this case, essentially dispensing with the hit-and-run term). The law is written so that a killing is a crime, and if you kill two people that could be two charges (the question is whether there is a single act or two – most likely there was a single act in this particular case). There is no state where recklessly killing a person while driving is legal. First degree murder could be considered under 9A.32.030 if a person "Under circumstances manifesting an extreme indifference to human life, he or she engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person". That kind of charge was applied to the Charlottesville driver, but it is highly unlikely to be applied to even the most extreme speeding. The actual penalty imposed depends on the sentencing laws of the state. In Washington there is a complex calculation based on the severity of the crime (16 degrees – vehicular homicide is level 11), prior criminal history, whether there are multiple convictions (vehicular homicide and hit-and-run). Aggravating and mitigating circumstances can also be considered to compute the actual sentence; I don't see any way for a non-specialist to guess what the actual penalty would be in this case. |
Does GDPR cover the collection of data by websites that crawl the web and resell user data I have found that a lot of my personal info is now available on a bunch of websites that collect data and resell it. I'm talking about those 'find anything about anyone' websites. A lot of the data is also inaccurate. Since a lot of these companies are American and I have lived my life half US / half EU and I'm now an EU resident, I was wondering: does the GDPR applies to them? does the GDPR applies to data they claim was 'public', but I see that this is not really true? What's the responsibility of search engines, like Google, in indexing and promoting that content. As they seem to have a 'contact the webmaster' approach to it, is it possible to get the content (at the minimum the inacurate one) removed from their index? | The GDPR applies to such sites if they offer services in the EU/EEA. If they clearly wanted to avoid being subject to the GDPR, they should block visitors from the EEA. For the GDPR, only location matters. Other concerns like residence or citizenship are generally irrelevant. Personal data does not turn non-personal just because it was public. So the GDPR still applies when the data was collected from public sources. However, the data controller (who determines the purpose of processing) often has to balance your rights and interests against other interests (e.g. when using legitimate interest as a legal basis for some processing). For the purpose of publicly displaying your data, only showing data that was already public anyway makes it easier to argue that this is fine. But when the GDPR applies, you have data subject rights. Relevant rights include: a right to access, to see all the data they have about you a right to rectification, to correct wrong data they hold about you a right to restriction, effectively an opt-out a right to erasure (also known as the right to be forgotten) These rights apply both against the website and against Google Search (arguably, both are doing the exact same thing). Google correctly points out that they can't remove information from the Web, but they can hide information from search results. If you feel that your requests have not been resolved correctly, you can issue a complaint with your country's data protection authority. In theory you can also sue them. In practice, GDPR enforcement against overseas data controllers can be quite difficult and has not yet happened. | A data subject access request can be valid even if it wouldn't disclose new information. The right to access ties in with the GDPR's transparency principle (finding out which data is being processed) and with the right to rectification (are there any mistakes in the data being processed?). For rectification, it's pretty much ideal if you get back exactly the data you expect – but you're allowed to check with an access request. The Art 12(5) limitations on excessive or manifestly unfounded requests do put a limit on the right to access, but this limit helps controllers respond to legitimate requests. For example, if a request is clearly intended to harass the controller with busywork, it can be denied as unfounded. Similarly, requesting access to the same data very frequently would be excessive. However, the controller has burden of proof to show that the request is excessive or unfounded – basically impossible for a one-time request for specific data. A request is not automatically excessive just because it is likely to only return data you already know. But ultimately, detailed guidance on the interpretation of “excessive” is up to the supervisory authorities – the GDPR itself provides no guidance. Aside from the above exception, access can only be denied if it would adversely affect the rights and freedoms of others. For example, you could be denied access to non-anonymous performance reviews. There would be no such adverse effect for basic information about your employment. If a data controller improperly considers your request as excessive or unfounded, you can lodge a complaint with your supervisory authority, e.g. the ICO in the UK. Most controllers are suddenly extremely helpful once contacted about an official complaint. | Maybe, but probably not The geographic location of the organisation is immaterial: under Article 3.2: This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to: ... (b) the monitoring of their behaviour as far as their behaviour takes place within the Union. Posts anyone (not just EU citizens) make to Reddit (or anywhere else) while they are physically located in the EU or UK engage the GDPR. Pushift.io is therefore captured by the GDPR and any denial of that is just plain wrong. Given the denial, it is likely right out of the gate that they are non-complient. For example, they are unlikely to provided the required information under Article 14. More importantly, it seems that they have not determined the lawful basis for processing the data under Article 6 - they can possibly rely on the public interest basis (preserving deleted publication is arguably a public interest) or a legitimate interest but that requires a balancing of their interest against the data subject's. That said, the right to be forgotten is not absolute, the reasons that might be applicable here are: The data is being used to exercise the right of freedom of expression and information. The data is being used to perform a task that is being carried out in the public interest or when exercising an organization’s official authority. The data represents important information that serves the public interest, scientific research, historical research, or statistical purposes and where erasure of the data would likely to impair or halt progress towards the achievement that was the goal of the processing. | The critical part is the nature of the relationship between you, the website provider, and the provider of the material you embed. If the embed-provider acts as your data processor, then things are generally fine. The GDPR does not really distinguish between personal data processing activities that you perform yourself versus activities that you've outsourced to third parties. However, you would remain responsible for compliance. This also means that per Art 28 GDPR, you will need a contract with that embed-provider (sometimes called a “Data Processing Agreement”, DPA). This contract stipulates that the processor will only use the personal data as instructed by you, but not for their own purposes. With the Google Fonts case, it must be highlighted that Google does not act as a processor for this service. Google does not offer a DPA that covers the Fonts CDN. While Google promises that it doesn't use the personal data collected in this context in any nefarious way, there are zero contractual guarantees for website providers. So we have to consider the scenario when the embed-provider is an independent data controller. We as the website provider have no control over what the embed-provider does with the collected data, our control only extends to whether or not we cause the website to disclose data to that third party. But this is still processing as personal data (see also the CJEU Fashion ID case), and we need a legal basis for this data sharing. In the Google Fonts case, the court in Munich found that there was no legal basis for using Google's CDN. There was no consent, no contractual necessity, and no necessity for a legitimate interest. After all, these fonts could all be self-hosted. (Technical remark: and given how modern browsers enforce cache isolation and provide HTTP/2, serving fonts from your main domain is probably faster anyway). Consent management services will typically act as your data processor. You don't need a legal basis for “sharing” data with them, because the processing remains under your control. As far as the GDPR is concerned, loading a script from your processor's servers is equivalent to loading a script from your own servers (which you're probably hosting via a another data processor anyway). Sometimes, the necessary data processing agreement is already part of the standard terms of service, sometimes it's a separate document that has to be signed. Figuring this out is your responsibility as the data controller, before deploying the service. Art 6 GDPR doesn't say that you always need consent. It says that you need a legal basis, for which paragraph 1 enumerates six choices. For a lot of use cases, a “legitimate interest” will be appropriate, though it requires a balancing test. Sometimes, other laws mandate that you use a particular legal basis. For example, the ePrivacy Directive says that you must get GDPR-consent when accessing or storing information on the user's device (such as cookies), unless that access/storage is strictly necessary to provide a service explicitly requested by the user. | You are correct that facts in general are not protected by copyright, and most raw data are facts. However, a collection of data may be protected by copyright as to its selection and organization. A use which copies such selection might possibly be copyright infringement. If data constitutes a trade secret it may be protected as such, and "improper" access might be unlawful. This would not apply to publicly available data or collections of data. If, to access a data set, one must sign or agree to a contract, that contract may limit the use of such data. Again, this would not apply to most publicly available data. | As always, it depends. However, it is by no means certain that any public facing hobby project, such as a web app, is exempt from having to comply with the GDPR. Since the GDPR is only a few days old, we have of course no case law based upon the GDPR itself yet. However, when considering this, one should take the following two facts into consideration. 1. The "personal use exeption" in the GDPR is not new. The personal use exemption is unchanged from the article 3(2) of Directive 95/46/EC. (There as a lot of lobbying for removing "purely" from the sentence – but drafters wanted to keep it.) 2. Case-law under the previous regulation restricts the scope of the exception The ECJ has ruled on the scope of the personal use exception in two cases: C-101/01 C-212/13 In both these cases, the ECJ took an extremely restrictive view, and concluded that the personal use exemption did not apply to the processing done by these individuals. In C-101/01 it can be argued that the hobby project as a blogger was connected to the controllers professional activity (she was a catechist in a local church, and blogged about her work. including her colleagues). But in C-212/13, there no such connection to professional or commercial activity. Here, the controller operated a CCTV to protect his home, but set it up to also capture public space, and that was enough for the ECJ to decide that the personal use exception did not apply. Discussion Case-law based upon Directive 95/46/EC is in no way binding for a future court that need to rule based upon the GDPR. We need to wait for case-law decided under the GDPR to be able to have some degree of certainty about the scope of the "private use exception" under GDPR. However, given what we know about how the ECJ has ruled in these cases in the past, I think it is hazardous to think that just because what you are doing on the web is just a "hobby project" not connected to professional or commercial activity, you are exempt from complying with the GDPR. Conclusion IMHO, you may be exempt, or you may not be exempt. I think it really depends on your activity in your hobby project, and to what extent this project processes the personal data of other people than yourself. | Article 32 of the GDPR requires companies to adequately secure their data when handling data belonging to EU citizens. This also applies to cross border scenarios where data is transferred between countries. Technically speaking, the GDPR doesn't set a standard for security: you don't have to encrypt your data, use AES or RSA encryption, or hash and salt passwords. It is your choice on how to secure your data, though the GDPR does mandate specific ways to secure data. However, not doing so opens yourself up to two consequences: The European data protection supervisor is tasked with the enforcement of regulations. A company can be forced to increase their level security if a valid complaint alleging that inadequate security measures are in place is made There is a significant amount of security risk, and if a data breach occurs, the GDPR allows authorities to levy heavy fines. Especially heavy fines may occur if it is found that the data was not securely stored. So the answer is: A complaint to relevant authorities can force the company to take action, or they will lose access to the European market. | I spent a few years working in and around the Energy industry - including a stint working at a supplier, I'm no longer there so unfortunately I no longer have access to the email chains I had discussing this with legal. The consensus at the time was that a "traditional" i.e. non-half-hourly (NHH), non-smart meter reading itself was not considered personal data - they are conceptually tied to a metering point (which may or may not be a physical meter), not to an individual and don't represent an individual's energy consumption (the granularity of the reading is insufficient to tell anything about the usage profile) But this information, while all around the implementation of GDPR it was a couple of years back and to be honest it was bugging me that I might be out-of-date on the current practices so I reached out to a former colleague who was the Data Protection Officer at the supplier I worked at to try and get a more up-to-date take. He's since moved on but was there until recently so has more experience with the topic since GDPR actually went into effect. I asked him whether a) estimated opening reads were considered "personal data" and b) what would happen with a request to change one under article 16 and he had this to say, I've translated industry-speak in square brackets: a) for NHH ["Non Half Hourly" - meters that are read ad-hoc, essentially all non-smart domestic meters will be this] an estimated reading wasn't personal data automatically until the billing flag was set in CRM and those would be the only ones we'd include on an SAR [Subject Access Request], any others are internal data not personal. HH ["Half Hourly" - meters for higher consumption users, typically larger business premises are billed on increments for each half hour so have readings for each] and remote [smart meter] readings are always personal for domestic and microb [micro-businesses are a certain class of non-domestic energy customer see condition 7A] b) erm no! we'd only change it if the value in CRM didn't match the value in the D10 [industry Data Flow used to transmit meter reads] for some reason. if they match it's an accurate representation of what we estimate the reading to be so it's just a vanilla billing dispute not a data protection issue so i'd have punted it to [name of person who was head of metering] From that it would sound as though the estimated read would count as personal data - so long as it's being used for billing purposes, but that doesn't mean they have to accept your read in it's stead. It all comes down to accuracy - GDPR requires that personal data be "accurate" but provides no definition as to what "accurate" means (which makes sense since you can't give a one-size-fits-all answer that isn't an encyclopedia) and while The Electricity Directive 2019 confirms the need for accuracy in billing again it doesn't tell us what that means. The implementation is left to member state regulators. In the UK this is OFGEM and all opening meter readings are validated through third parties (so you don't end up with the foxes guarding the hen house!) and are calculated using the following formula: Last validated reading for the meter point <= supplied reading <= (expected daily usage x number of days since last validated reading x 2.5) where "expected daily usage" is obtained from a database maintained by the regulator - it's calculated off meter type, property type, property use, previous validated reads etc. So if the customer provides a reading that falls outside the above the supplier can (and in practice invariably will) reject it as being inaccurate. Now this is why the when a meter reading is provided matters - reads you provide are always assumed to be the read on the day you give them. With opening reads there's some leeway, I can't remember the official rule on how much but usually they give you up to the next estimated read is generated but more on that later. Now if the reading you're trying to submit is a "now" reading and it's failed the validation criteria and you aren't happy with the rejection you can force the issue by demanding the supplier come read the meter. You don't say how long has passed since the opening read - more than the week from what you've said so presumably at least a month (guessing you've had at least your first bill). Now if they are saying the opening read was X (based on the estimated usage) and you're it should have been X + Y and the current reading is X + Y + Z you want to pay your actual usage Z not Y + Z. What you need to do is dispute the opening read, which you're entitled to do, arguably GDPR of Article 16 gives you this right, but on it's own it's a weak argument. There's established means by which an estimated read's "accuracy" is determined and assuming they followed that they're going to just tell you that as far as they are concerned it is accurate. Any challenge to that accuracy is going to have to be done within the legal/regulatory frameworks for assessing accuracy, that's what they're there for, if they won't accept your reading escalate that to the regulator - and as soon as you can. OFGEM for example allow disputing of opening reads for 12 months - it doesn't have to be resolved within that 12 months it just has to be lodged with them within that time. If you try and use the GDPR angle to pursue this IMHO it's going to muddy the waters and not help you get what you need - pursue this on billing accuracy. |
Do you have to follow all the orders a police officer gives? Saw a video on YouTube where a woman is being filmed in Walmart. From what I understood, she was being accused of shoplifting (I guess rolled the cart beyond the registers without paying?), and then supposedly left her baby in the cart while running outside (although I am not sure if she was trying to run away, or just stepped out through the door, and then she came back in). Long story short, I see in the video, a Sheriff officer whole is way way taller then her, all geared up, giving her commands to "stop talking" - he repeated that several times, and then just arrested her. Question is, can you be arrested for now "shutting up", or other weird (to my opinion) commands? I am asking because the USA is supposed to be a "free" country, and not a police country. Under what circumstances do you have to follow 100% of an officer's commands? For example, a person gets pulled over while driving. Can the officer command you to open the window fully (lets say you opened just a little crack to give away license and insurance)? How about to step out of the vehicle (can you refuse to do so until their sergeant shows up - just so you won't get shot and/or accused of some trumped-up stuff?) | In most US States (probably all of them) failure to follow the Lawful orders of a police officer is itself a crime, and is grounds for the officer to arrest the person, even if the person had not done anything wrong prior to that. This obviously leads to the question: what orders are lawful? The officer has a pretty broad range of discretion. Ordering a person out of a car, or to roll down a car window, is pretty clearly lawful. Ordering a person to commit a crime would not be lawful. Neither would ordering a person to submit while the officer rapes or robs the individual be lawful. In practice, the officer will usually think that all of his or her commands are lawful, and might feel threatened by any failure to comply. In which case, the officer might shoot. This might not be upheld later if the command was not lawful and/or the officer's fear was not reasonable, but that will do the person shot little good. It is usually wise to comply with any commend, unless it puts you very directly at serious risk. Remember you don't know what else has happed to the officer that day. Has the officer had a fight with his/her spouse that morning? Just been denied a promotion? Been turned down for a mortgage? None of that should matter, legally, but it will affect the officer's attitude, and can lead to escalation, even if the person stopped is in no way at fault. An instruction to "shut up" is probably not going to provoke an officer to shoot if it is disobeyed, but it might help to escalate the situation. It is probably lawful, depending non the exact circumstances. As to the first amendment issues, that would probably come under the 'time, place, or manner" regulations that may be applied to speech. And even if it is not held to be lawful, the time to contest it is in court, not during the stop. If the officer feels safer with the window fully rolled down so that the officer could reach in, that is probably a lawful command. | We need to assume that the stop was legal (not a high hurdle to clear), that is, there was some reason to stop you. Even so, following Utah v. Strieff, police don't actually have to have a reasonable suspicion to stop you and if in the course of an ID check they discover that you have a warrant out for your arrest, the arrest is still legal. So if the police stop you, RCW 46.61.020(1) says: It is unlawful for any person while operating or in charge of any vehicle to refuse when requested by a police officer to give his or her name and address and the name and address of the owner of such vehicle, or for such person to give a false name and address, and it is likewise unlawful for any such person to refuse or neglect to stop when signaled to stop by any police officer or to refuse upon demand of such police officer to produce his or her certificate of license registration of such vehicle, his or her insurance identification card, or his or her vehicle driver's license or to refuse to permit such officer to take any such license, card, or certificate for the purpose of examination thereof or to refuse to permit the examination of any equipment of such vehicle or the weighing of such vehicle or to refuse or neglect to produce the certificate of license registration of such vehicle, insurance card, or his or her vehicle driver's license when requested by any court. Any police officer shall on request produce evidence of his or her authorization as such. There is no law that says "you have to provide ID only if accused of a crime", or "police can pull you over only if you are suspected of a crime". Various traffic infractions will get you pulled over but are not crimes; random sobriety checks are legal. However, note that the requirement to provide ID applies to the operator. There is no law requiring citizens to carry identification papers (but there is a law requiring a vehicle operator to carry a specific form of ID). In some states there are "stop and identify" laws which allow police to demand ID from a person suspected of a crime, but Washington does not have such a law. | In Wisconsin, right after the perjury law, they have a law prohibiting "false swearing". It applies if a person: Makes or subscribes 2 inconsistent statements under oath or affirmation or upon signing a statement pursuant to s. 887.015 in regard to any matter respecting which an oath, affirmation, or statement is, in each case, authorized or required by law or required by any public officer or governmental agency as a prerequisite to such officer or agency taking some official action, under circumstances which demonstrate that the witness or subscriber knew at least one of the statements to be false when made. The period of limitations within which prosecution may be commenced runs from the time of the first statement. So even if they couldn't actually get you for perjury, they could get you for violating this law. Perjury and false swearing are both class H felonies, so you can expect the same punishment. I am going to guess that the existence of this law suggests that it was needed to cover what would otherwise be a loophole in the perjury law, but I can't say for sure. | @Dale M is basically correct, but fudges a bit on the process. The court issuing the order would issue an order to show cause to a government official who is alleged by the person who sought the order to have violated the order after having received legal notice (i.e. service) of the order. If that individual fails to appear at the appointed time and place in the order to show cause, a warrant issues for that individual's arrest. If that individual does appear, the allegedly contemptuous individual is read their rights and a hearing date is set. At the hearing, if the person appears, the person seeking the contempt finding (or some other attorney appointed by the court) prosecutes the case and if the person is found in contempt, then contempt sanctions issue. If they do not appear, a warrant issues for their arrest and a hearing is held on the merits promptly following that arrest. An individual can also be ordered to show cause in an official capacity in which case the contempt sanctions would be imposed against the organization rather than the individual. Usually, in federal court, the U.S. Marshal's office has primary responsibility for arresting people on contempt warrants. The U.S. Marshal's office primarily reports to the judicial branch, although strictly speaking, it is part of the Justice Department, and ultimately reports to the Attorney-General. There are actually two kinds of contempt - remedial and punitive. Remedial contempt sanction can include indefinite incarceration or a fine (often a per day fine) until the violation of the order of the court ceases and is allowed only when it is possible to comply with the order going forward. Punitive contempt has a sanction comparable to a misdemeanor conviction and applies in cases where the goal is to punish someone for a past violation of a court order whether or not it is possible to comply going forward. (Both of these are examples of "indirect contempt", i.e. violations of court orders that take place outside the courtroom. A different summary process called "direct contempt" applies when someone misbehaves in the presence of the court - this is summary incarceration or fine without a trial on the spot for disrespecting the dignity of the court in the courtroom.) Established practice is to direct a contempt order at the lowest level official necessary to remedy the violation of the order. There are a few examples in living memory of cabinet members being held in contempt, however (e.g. the Secretary of Interior, with regard to Indian Trust fund litigation), and keep in mind that in the case of remedial contempt an official can purge the contempt and be released from any sanction by resigning from office, after which the official no longer has the ability to comply. I am not aware of any instance in which the President of the United States has personally been held in contempt of court, but I am also not aware of any authority that specifically prohibits a court from holding the President in contempt of court. While contempt is the only "hard" remedy for a violation of a court order, the bureaucratic structure of the federal government is also set up in a manner that once a court order definitively resolves a legal issue, the higher ups in a federal agency are supposed to take all reasonable actions to insure that their subordinates follow that order (and they are themselves subject to contempt sanctions if they fail to do so). And, keep in mind that most of the people in the chain of command are civil servants with legal protections from unlawful employment actions hired on a merit basis, not political appointees, and that lots of the people in the chain of command are also members of unions that provide individual employees with the ability to fight wrongful employment action from a superior for violating a court order. In particular, the top lawyers in the executive branch would in ordinary times direct government employees to follow a clear court order and to cease and desist from explicitly disobeying one. Among other things, the courts could probably deny lawyers who refused to do so the right to practice law in federal court. But, usually things never reach this point. Then again, we are living in interesting times. There are about 670 political appointee positions in the executive branch, many of which are currently vacant and less than a dozen of which would be relevant to any given dispute in any case. There are about a million, civilian, non-defense department, non-postal service employees in the United States government, of which perhaps 100,000 or so are in the Department of Homeland Security and fewer are in the CBP. As far as I know, the CBP political appointees from the Obama administration have resigned and a replacement has not been confirmed by the U.S. Senate yet (there has been a Department of Homeland Security appointee confirmed if I recall correctly), and there are only a few people in the agency that political appointees can hire without either receiving Senate confirmation or using the merit based hiring process for civil servants (which takes a while, especially given an executive order imposing a hiring freeze). So, realistically, we have a case where the acting head of the CBP is probably a GS-15 or Senior Executive Service grade civil servant, rather than a political appointee, at the moment, who was hired as a civil servant many years ago, who is doing his (or her) best to follow the less than clear guidance he is receiving from his superiors and government lawyers (perhaps errantly). There could also be remedies in the form of declaratory judgment. The Court could declare as a matter of law on a case by case basis that, for example, Fatima Jones is not deportable and is lawfully within the United States and is entitled to be released from custody. This specific finding as to an individual would be very hard for the administration to escape sanction for. And, the Court could also declare that the entire executive order, at least as applied, is invalid (e.g. for failure to comply with the administrative procedures act, or for failing to include an exception for contrary court orders) or is unconstitutional. | 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. | united-states "I know is it illegal for authorities to question a suspect when their lawyer isn’t present" This is not really true, at least in the US. The suspect must explicitly ask for a lawyer. Even saying "Maybe I should talk to a lawyer" (ie Davis v. U.S. (512 U.S. 453 (1994)) isn't enough, they have to say "I want a lawyer". Until they invoke the right, an officer can question all they want (provided they were informed of these rights, except for certain situations which are relatively complicated. See Miranda Rights). So no, an officer questioning you without a lawyer is neither a crime nor illegal. Once you invoke your Miranda right though, they have to respect that. With or without your lawyer, this is called interrogation. You can filter your responses through a lawyer, or waive your right to a lawyer and answer directly. | In germany, you are likely charged if you actively interfere. Let's preface this with the fact, that in Germany, people have a duty to aid in case of accidents, as long as you don't endanger yourself. The absolute minimum is to call the emergency service and not obstruct those that render aid. However, just not rendering aid is rarely charged. However, since a few years, people that slow down to make videos of crash sites or who stop to look at an accident, and in doing so block emergency helpers, are now almost routinely charged with obstruction of emergency workers, together with possibly other charges like assault and insult. One of the most prominent cases was in 2017, where the person attacked emergency workers and police. He was sentenced to 4 months for the various assaults and bodily injury. Based on this case (where the person was just sentenced for resisting police and assault), it ultimately lead to a new law. One of many cases that started in 2023 had a similar pattern but the charge is based on the new law: § 323 c Abs. 2 StGB - not delivering aid and obstruction of aiding persons. This law allows up to one year of prison time for hindering any person rendering aid. Also, creating pictures at accident sites that depict people or corpses and sharing them in a manner that is humiliating to the victims in itself can be a breach of § 201 a StGB - injury of privacy by means of photography. This can get a sentence of up to two years, and would most likely be joined by a charge of not delivering aid and obstructing helpers. Do note that this is not covering photos that were made for example as evidence of the situation or not shared with third parties. Being in peril yourself... When you technically are in peril yourself, you don't have to render aid. Being stupid like grabbing your carry-on luggage isn't technically covered by the law, and because the person is in danger themselves, it will be very hard for the prosecution to decide if they want to prosecute. If Alice just grabs her carry-on in panic and nothing happens as she evacuates, charging will be extremely unlikely, as in, the chance is nigh nonexistent. Bob, who steps out of the way of others while he calmly takes his things is not interfering with the rescue, and thus charging him is most likely not going to happen. But Charly, who blocks the path of everybody because he wants to go to the other end of the plane to get his luggage and does not let anybody pass and thus increasing the danger of the situation (or even cause death) might break the threshold that the prosecution is willing to prosecute to make an example out of him. The more egregious his behavior was, the more they might look into if other charges can become applicable. However, those other charges are usually not from the blocking or inaction, but from an action against someone that is in the same peril as the actor. If Dora during the building fire grabbed a fire axe and smacked it over someone's head while he was trying to evacuate her, so she could get her items from another room, that would be dangerous mayhem (§ 224 StGB, Gefährliche Körperverletzung). | 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. |
Do sports figures control the right to use their name in a game? In sports game simulations, do real people control the ability to use their name? I am not talking about their likeness, only their name. So, for example, if there is a game that uses generic figures that do not represent specific people, but give them real player's names, does that require permission? Another example would be a sports statistics program. Imagine there is a sports statistics program or a sports betting game. Does the software designer need to get permission to use the names of real players in his program? If so, what is the specific law that controls it in the United States? | Maybe The answer varies significantly depending on the US state. In many states such a right will be protected, and in others it will not. The exact degree if protection and the procedures to follow will also vary. But in those states which protect publicity rights, the name alone will often be protected. Oh, I should mention that news reporting of actual events is protected under the US First Amendment. Reporting the names of players in actual games, and their results does not need any permission. That would cover the sports statistics app. It might well cover the betting app, although that would face other legal issues because of the regulation of gambling generally. To return to personality/publicity rights: In this article Charles F. Morgan wrote: The right of publicity is the right of an individual to control the use of his or her persona for commercial purposes.Maryland is among the clear minority of States in which the right of publicity is not recognized as a property right either by statute or under the common law. In 1984, the Court of Appeals of Maryland adopted the rule that a person who appropriates to his own use or benefit the name or likeness of another may be liable for the tort of invasion of privacy. More than twenty years later, this remains the only reported Maryland decision dealing with the appropriation of likeness. In other States, the right to control the use of one’s name, voice and likeness, the right of publicity, has evolved through legislation or the common law as a property right apart from invasion of privacy. The distinction is an important one. The right to privacy is personal to the affected individual and therefore does not survive the death of the individual. Invasion of privacy is a tort action intended to compensate a living person who is injured as the result of another’s wrongful act. After a person dies, he or she cannot be subjected to an intrusion into his or her private life. While the right of privacy dies with the person, the right of publicity has evolved as a property right that may be transferable and capable of surviving the death of its original owner. At least twenty-eight States have recognized a common law right of publicity or have created statutory versions of the right of publicity. In this article Neal S. Dongre writes: The right of publicity has been defined as the inherent right of every human being to control the commercial use of his or her identity. ... The right of publicity is based in state law, which create an intellectual property right that when infringed upon is a commercial tort of unfair competition.The right of publicity has been recognized by various states — by the courts through the common law, by legislatures through statute, or by both. ... Most other states, while not recognizing the right of publicity, do recognize a cause of action based in the right of privacy which, while protecting different interests, may arise from the same factual scenarios as right of publicity cases. Eight states currently have statutory provisions on the books which encompass the right of publicity. McCarthy at Sec. 6:3. These states are: California, Florida, Illinois, Kentucky, Ohio, Pennsylvania, Texas, and Wisconsin. Id. Ten additional states have statutes which, although labeled as privacy statutes, are worded such that they effectively encompass most of what is known as the right of publicity. Id. These states are: Indiana, Massachusetts, Nebraska, Nevada, New York, Oklahoma, Rhode Island, Tennessee, Virginia, and Washington. The leading Supreme Court decision in this area is Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977). This case concerned a television news station that had taped and rebroadcast an entire 15 second “human cannonball” act performed by Zacchini. Although the Court’s holding did not turn on the Constitutionality of the right of publicity, the Court treated the cause of action as a viable one and used the term “right of publicity” several times throughout the opinion. This treatment by the Supreme Court led other courts to begin to recognize the common law right of publicity. There are currently eighteen states whose courts have recognized a common law right of publicity. ... Only the Nebraska and New York courts have expressly rejected a common law right of publicity, although the New York legislature later remedied this rejection by statute. | There is a general belief that a term being trademarked means that it's illegal to use the term without permission from the trademark holder, but that is false. It is illegal only if it is done in a manner that suggests endorsement by the trademark holder. For instance, selling a football as a "Super Bowl football" would be trademark infringement, as it implies NFL involvement in the production of the football. Simply talking about the Super Bowl, such as saying "Our construction company built the stadium the Super Bowl is being played in" is not trademark infringement. Simply using a trademarked term to discuss the thing it refers to, without implying endorsement, is known as "nominative use". However, even if one would be on solid legal footings and could win a lawsuit on the basis of nominative use, one might avoid using a trademark to avoid the hassle of being sued. | Making the game free makes very little if any difference to the position here. There are two kinds of IP issues that could possibly be involved: copyright and trademark. Note: both copyright and trademark are civil, not criminal issues (except in very limited circumstances which do not apply to the situation described in the question). You will not "face charges" but might possibly be sued. If you are asked to take down such a game and comply, this might end the matter, but if an IP holder claimed that damages had occurred before the game was taken down a suite might possibly still be brought against the developer. Copyright Names, like titles and other short phrases, cannot be protected by copyright. As long as no other text from anyone else, and no images are copied or imitated, copyright is not infringed. This means that there are no copyright issues. Game mechanics and rules cannot be copyrighted, although the words of game rules can be. Therefore, fair use which is a strictly US copyright legal concept, is not involved here. Neither is fair dealing, a somewhat similar legal concept from the UK and some commonwealth and European countries. Trademark Here is the main issue for this situation. The names of individual Pokémon characters are probably (almost surely) protected as trademarks. That means you cannot use them to identify your game, or any other product or service, and you cannot use them to advertise or market your game. This is true even if the "selling price" is $0. The use here does not seem to be nominative use, as you are not intending to refer to Pokémon or any of its variants. You are just reusing the names. As long as you make it very clear that your game is not made by, nor in any way authorized or endorsed by the makers of Pokémon, this is probably not trademark infringement. But if the makers of Pokémon become aware of your game, they might well send you a cease and desist letter, and they might file a trademark infringement suit. Even if you were to win such a suit, as I think you might well do, it might be costly to defend. Could you alter the names to ones you invent form yourself? That might save a lot of trouble and hassle. What is the value to you in reusing the well-known Pokémon names? | (Note that some of the below may be UK specific, but the general principle applies in many other jurisdictions) Well the first thing is to stop working from this from the wrong direction: There is no law that makes it legal to assault someone: the law only makes it illegal to assault someone (eg in the UK, the Criminal Justice Act 1988 and the Offences Against the Person Act 1861 apply). The law states that it is illegal to assault someone. So let's explore how sport works. In most legal systems, you are able to give consent for certain activities or risks. This is also why certain other activities (for example, things a couple may enjoy in their own home) are not necessarily assault if consented to. Essentially, therefore, your consent gives the person doing the hitting the legal excuse (a little different to a normal excuse for forgetting your homework or being late to work): or a defense that their actions were reasonable. This stops the issue being the law, therefore, and becomes an issue of what does/doesn't constitute an "excuse". It is not therefore a question of "What law allows you to commit a crime during sport?" instead it is really one of "Exactly how much consent can a person give, to allow consent to be used as an excuse, and at what point is that consent no longer an excuse?" For example in R v Brown (UK Case Law) it was established that you cannot give unlimited consent. Similarly in every jurisdiction I'm aware of, that consent is only able to be given within the realms of the rules of the sport. As soon as the rules are broken, a crime may have been committed. I won't go into the details of R v Brown here, as I'm not convinced that it's suitable for SE (although I'm sure you can find it), but to give a more sport-related example, R v Donovan established that No person can license another to commit a crime, if (the jury) were satisfied that the blows struck ... were likely or intended to do bodily harm ... they ought to convict ... only if they were not so satisfied (was it) necessary to consider the further question whether the prosecution had negatived consent. Again, similar case law or exemptions exist in most jurisdictions. Essentially what this establishes is that if the intent is to cause harm, rather than to undertake the sport or activity to which consent has been given, it is still a crime The question after this is then generally one of whether it is in the public interest to prosecute, and often (but not always) the victim's wishes are taken into account. In some cases, the sportsman is prosecuted: for example this British football player who assaulted an opponent. In other cases there is either insufficient evidence, or insufficient interest in the prosecution. In many cases where the rules are broken but no serious harm is done, for example where rules are broken accidentally or in a minor way, the police or prosecution service (or equivalent) may simply regard the matter as sufficiently dealt with. This is the same as with most other cases, where not every instance of assault is necessarily prosecuted: two teenage brothers fighting may not result in a prosecution, or an assault in the street may not carry enough evidence. And to indirectly answer the question - the reason players are often not prosecuted is because "In the public interest" incorporates an element of public opinion. If a certain action has become (or always been seen as) acceptable, it is unlikely to be prosecuted. For example minor fouls in games, or accidental fouls causing injuries. The other primary reason is that the victim chooses not to press charges (although this isn't required, and the police are able to press charges themselves, it is often taken into account) | A person who uses a name similar to an existing protected trademark may have committed trademark infringement. The trademark owner can sue, and possibly collect significant damages, and possibly also get an injunction against further infringement. Note that this is not a matter of a crime, but of a lawsuit by one person or business against another. (A point of terminology: A trademark, like a copyright, is said to be "infringed" when someone uses it without permission in ways that the law does not allow. The word "broken" is not used for this.) In many countries, only marks properly registered with the appropriate national registry are protected. In the US simply using the mark can lead to its being protected, although registration can give greater rights to the mark owner. Protection in one country does not give protection in another. In general, protection only applies in the same or a similar market area as that in which the mark is already being used. An electronic game may well be similar enough to a card or board game for protection to apply. A key question is how similar a mark can be and avoid infringement. The basic test is if a reasonable person could be confused into thinking that the products were from the same maker, or were affiliated, or that the maker of the original product or service endorsed the new one. This is always something of a judgement call. If a mark is similar enough that a judge or jury might think that some reasonable consumers would be confused or mislead, then there is risk of an adverse judgement. Note that even an unfounded suit may be costly to defend. If there is any question, consulting an experienced trademark lawyer may well be a good idea. I will not express an opinion of the similarity of "2oobbllee" and "Dobble". That would be legal advice. But if the OP were to change the name of the app, the whole matter would seem to be finished with no risk of court action. Note that the concept of a game, unlike the name, cannot be protected, neither by trademark law nor by copyright law, | Getting permission from the game owner would be a sensible approach. If you get it, great. Then you could do it with the owner's blessing. It's possible to do your write up without the owner's permission, but then you have to be much more careful. For instance, the names of games cannot be copyrighted. No one can prevent you from writing "A Guide to Bridge," or "A Guide to Chess," etc. On the other hand, some games are trademarked, in which case you will need to attach a TM (trademark) symbol when referring to them. In this case, see a lawyer. You are also allowed to discuss the game itself "in your own words," but you must be careful not to "plagiarize" anything from the rules, or the official game description. That is, while you can refer to specific aspects of a game, such as building houses and hotels, the leash on copying is fairly short, as little as five words. This does not refer to five words in a common sequence referring to a single thought like "The United States of America," but it could refer to five words in an original or unusual sequence such as "I think therefore I am," by Rene Descartes, or "X houses and Y hotels," where the numbers X and Y define the number of houses and hotels in a certain board game trademarked (I believe) by Parker Brothers. | You can license the use of your IP only for certain uses, for example (most commonly) "non-commercial". The general template of permission is "You have permission to ___ as long as you ___". What the user is permitted to do, in your scheme, is something along the lines of "only distribute the output in this manner", or "not distribute code developed with this tool anywhere else". It's up to you to prove that someone violated that condition, if they did. | I'm wondering whos responsible for this code if people start using it? The user. Can the people using it that think its under GPL in any way get in trouble for it or be made to remove it from their projects? Yes, they can be sued (successfully) for copyright violation. It’s not enough that you think you have permission from the copyright holder - you actually have to have permission. The law places the onus on the copier to seek out and get permission from the copyright holder. In theory, someone deceived in this way could sue the repo poster(s) for misrepresentation, however, there are practical issues about finding them, having them in an accessible jurisdiction and if they are judgement proof. Copyright law was created to protect physical books and paintings - it doesn’t really fit with digital methods of reproduction but it is the law. It doesn’t matter that complying with it can be hard bordering on impossible - comply with it you must. |
I don't have a lease and my landlord is threatening to kick me out immediately This is embarrassing and I realize I should have done things differently. I live in a shared home and pay rent to the lease holder. He doesn't want me to live here anymore and has given me a few days to move out. Between work and finding a new place, this is not enough time. He said if I sign additional terms and pay more money I can stay one more month. He said if I don't give him a key to my room he will kick me out immediately. I have an agreement by email for the cost of rent and damage deposit etc. however it says nothing about ending the arrangement. What rights do I have? I know if I did have a RTB tenancy agreement the landlord would have to go to court and hire a bailiff to kick someone out. What's the minimum amount of notice to vacate, I can't believe it's just one day? I'm afraid the lease holder, who lives in the same house as me, will change the locks while I'm out remove my belongings and put them outside remove my belongings and keep them for himself try to physically remove me from the house If any of these happen should I call the police just to make a report? Should I tell the leaseholder it's illegal to kick me out without notice? | "an agreement by email for the cost of rent and damage deposit etc." may well constitute a lease. If it doesn't specify a term or ending method, it is probably a month to month lease. If nothing is specified about notice to leave, you probably should gt 30 days notice. The law in BC is the Residential Tenancy Act. However, many localities have laws that modify or supplement the provincial law. You probably need legal assitance beyond the scope of this forum. a Tenant Resource Advisory Center (Trac) might be able to help. Their web sitre also provides links to various other resources, including legal referrals. The Tennant Survival Guide offers pointers to legal aid. This site offers additional resources. So does the BC Law institute Note, even if you have certain legal rights in theory, the person from whom you are renting may not respect these. Consult legal or community sources to determine your best approach. This question is really beyond the scope of this forum. | It’s your house You can’t be forced by a co-owner to pay rent for a property you own. You can’t be forced by a co-owner to sell if you don’t want to. You can’t be forced by a co-owner to pay to maintain the property.or to pay utilities. Of course, if no one maintains the property or pays the rates then eventually you won’t have a property but you can’t be forced to. This applies to her as much as it applies to you. It’s possible, even likely, that your mediation agreement meets the requirements of a contract. If it does, then breaching it will allow the aggrieved party to sue for damages. The good news is, you can get on with your life right now - sign over the house to your sister and walk away. Except you can’t because your interest in the house needs to be dealt with in the divorce. If you want your “fair share” and your idea of what that is is bigger than hers then you have to fight for it - lawyer up. | She has no legal right to your stuff, and every legal right to the apartment. The only way adjudicate such a conflict of rights is with a restraining order. A temporary order would expire in 3 weeks. Item 14 in the petition requests exclusive use, possession, and control of the property. However, that path of restraints is tailored to domestic violence, so item 27 has you describe the alleged abuse: Abuse means to intentionally or recklessly cause or attempt to cause bodily injury to you; or to place you or another person in reasonable fear of imminent serious bodily injury; or to harass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, keep you under surveillance, impersonate (on the Internet, electronically or otherwise), batter, telephone, or contact you; or to disturb your peace; or to destroy your personal property. Note that the description refers to destroying your personal property, not pawing through it. It's really impossible to know if the judge will exercise his discretion to include "reasonable fear of destruction (or theft) of personal property", since the ex-roommate has no further interest in the apartment. There is an alternative path of a harassment restraining order, which does not require a defined domestic relationship (such as ex-roommate), where "harassment" is violence or threats of violence against you, or a course of conduct that seriously alarmed, annoyed, or harassed you and caused you substantial emotional distress. A course of conduct is more than one act and that seems even less likely. | My friend should have taken his property with him, but presumably the host can't just keep it, especially after reaching out to them? Correct. However, the host does not have to do anything to facilitate its return i.e. they don’t have to post it to you. So long as they keep it for your friend to collect and don’t appropriate it for their own use, they are not breaking the law. If they do appropriate it, that is called theft or its tort equivalent, conversion. As my contract was with Airbnb and the host works from them, is there any responsibility on their part, e.g. Could I hypothetically open a small claims case against them? Or would any small claims case be directly against the host themselves? This is not true. You and the host each have a contract with Airbnb for the use of the platform. The contract for the accommodation is between you two and doesn’t involve Airbnb at all. In any event, there is no contractural issue here. | do I have a case against them in small claims court? Yes. Your description altogether indicates that there is --at least-- an implicit contract between you and the roommates. That implicit contract is palpable from the roommates' subsequent conduct, which includes --but is not necessarily limited to-- their excuses and promises. Although there is no written contract between you and the roommates, evidence that you have paid utilities in full places on your roommates the burden of disproving the default (and common sense) presumption that bills would be split among all four roommates. Your landlord can testify via an affidavit what he knows about that arrangement and/or what he informs each new roommate on the issue of how utilities are paid. You might want to email your roommates a reminder [to pay you] in such a way that prompts them to reflect their excuses/promises/admissions in writing. The terms of their written response might evidence an oral agreement. In the alternative, the roommates would have the burden to prove that they paid you, or that you promised to cover their utilities for free. The former scenario is precisely why a reasonable payer typically requires --or should require-- a receipt when making payments (as opposed to the payee when receiving them). Regardless, your description suggests that your roommates would be unable to prove either scenario. Also the landlord could include in his affidavit that the roommates have defaulted on their rent payments as well. If the landlord refuses to produce an affidavit, you can always visit the court where eviction proceedings are taking place and obtain copy of the relevant records. With those records you would evidence the roommates' pattern of lack of payment. Although obtaining copies from the court makes your landlord's affidavit somewhat unnecessary, it is in the landlord's best interest to cooperate with you because (1) it would be unreasonable for him to alienate himself from the only tenant who honors his lease, and (2) he might need your cooperation as witness at some point. Even if the roommates were successful in proving that there was neither a verbal agreement nor an implicit contract but only "unfounded expectations" on your part, you could ask for a ruling in equity in case your claim of breach of contract fails. In terms of mere "expectations", it is much more reasonable for you to expect them to pay their share than for three three individuals to presume an unrelated roommate will cover their utilities for free. The latter just departs from common sense and common practices. how do I prevent this from happening again with future roommates? Strictly speaking, it is impossible to absolutely prevent that situation from occurring again. However, you may take the following precautions to reduce your exposure. Have your roommates sign an agreement that reflects each party's obligations and deadlines. Your agreement should also state that it is each roommate's responsibility to keep his/her receipts --or akin evidence-- in case a dispute for non-payment arises. This would streamline the production of evidence if the matter ends up in court. Consider whether or not asking each party for an aval or endorser is practicable. This provides some sort of "insurance" of roommates' default risk. Lastly, do not wait for a party's debt to accumulate that much before taking legal action. The longer you wait, the unlikelier you are to recover that money because the party may go broke or simply disappear. Moreover, keep in mind that if a party's debt exceeds the maximum amount handled in Small Claims Court, your litigation will become more involved because it would have to be in a court of general jurisdiction (meaning a circuit or district court). | Landlord-tenant law is an area that is heavily statute-based, jurisdiction-dependent, and far from uniform across the country. A complex, specific, multi-part question like this one is not going to get a simple answer. In general, though, I can clear up some of the confusion with a quick example. Let's say you abandon your lease, but as you do so, you write a letter to the landlord saying: "While I won't be living there any more, my friend's band needs a place to practice. They have agreed to pay half my rent if you let them play there 4 nights a week. They'll be starting on Tuesday at 11 PM: please have a set of keys waiting for them at the front desk." The landlord does not give your friends the keys. They re-key and clean the apartment and rent it two months later. Are you going to stand up in court and argue, with a straight face, that you should only be liable for half the rent for those two months because of the landlord's "failure to mitigate"? Again, jurisdictions differ, but the duty to mitigate is not absolute. If the landlord could rent out a $1,000/month apartment for $5 a month, it doesn't have to do that, and you can't make the Court take $5 a month off their damages if they refuse to do so. Also, you seem to be confused about what subleasing is. A sublessor owes duties to you; you still owe the duty to your landlord to get the rent paid. A sublease is an agreement between you and a third party to pay you rent. It does not affect your relationship with the landlord at all, unless it's a breach of your agreement with the landlord or of local law protecting the landlord from unauthorized subleasing. | In general, a German landlord needs to give at least 24 hours notice before he can enter a home, and allowance from the renter. The renter also has the "Hausrecht", not the landlord. There are exceptions, most of them to prevent damage from an ongoing danger threatening the house. A clear example would be a broken water pipe. 1 week notice also appears to violate tenant laws - I hope you have a written contract about the subletting. | If the lease has expired and the tenant does not have an option then the landlord is under no obligation to offer a new lease; they do not have to give any reason. They would still need to comply with the notice periods in the lease or it will revert to a month-by-month contract; in that case, the notice period is 1 month. |
Did I lose possession of my goods? I live in France. 3 months ago, I was living with someone, in their flat, and I had to buy some piece of furniture (for about 700 euros). About 2 months ago, I had to leave this place because we couldn't stand the other people presence any longer. At that time, as I had nowhere else to store the piece of furniture I bought, we agreed with this other person that I could leave them at his place, while I was seeking for a new place of my own. Some week after this, I encountered this person again, and I have been asked if they could refund me the price of the furnitures spanning 2 years, regarding monthly payment, to which I agreed orally. Fast forwarding today, I never received any money from this person, and last time I saw them, they told me I couldn't have my good back, because now they're theirs and that they won't refund me at all, neither give me my goods back. Can I do something about it, or did I really lose property on the goods ? | Did I lose possession of my goods? That seems unlikely. But enforcing it sounds complicated, at least from the standpoint of substantive law (the Code civil). I am not knowledgeable of French procedural law. The difficulty begins with identifying whether your claim is cognizable as unjust enrichment, or --per your subsequent oral agreement-- breach of contract. You might want to read sections "The French Law of Unjust Enrichment" and "Enrichissement sans Cause" in this post. Please note that the French Civil Code recently underwent significant reforms, whence references of its articles are likely outdated. Here I pointed out one example of statutory renumbering in the Code. In the second link, you will read that originally [...] the action in enrichissement sans cause would not be available to the claimant if he or she had any other cause of action, even if that cause of action was blocked for some reason. [...] [B]ut it is perhaps here that the law has relaxed most in recent cases. Thus, the subtleties of your matter can be decisive for identifying the type of claim that is applicable to your situation. Lastly, according to this treatise (on p.54), "[t]he French legal system does not have the principle of [reasonable] reliance as it exists in the American legal system" (brackets added). That makes it easier for a plaintiff to prove his claims under French law. | You sound like a lot of my dispute resolution clients on their first visit You seem upset, maybe even angry and you feel that you are being victimised and harassed and that the person you are in dispute with is an amoral scumbag with no integrity. I sympathise with your feelings and understand that this sort of thing is stressful and causes emotional turmoil. However, how you feel has very little to do with what the objective facts are. This is what I read: You agreed to pay 1/3 of the bills, You have been happy to let your roommate handle this, You have trusted your roommate to do this honestly, You have been paying what she asked when she asked for it, Your circumstances changed, You did not advise your roommate that this would make it difficult for the existing arrangement to continue, She continued doing what she had always done, You stopped doing what you had always done, Your roommate has been left out of pocket and probably is under financial pressure herself, She kept asking for the money, You saw this as unnecessary harassment, You showed that you no longer trusted her integrity and judgement, She reacted the way most people do to being indirectly called a liar and a thief, Things spiralled out of control. Put your outrage on the shelf and feel sorry for yourself when it's not happening on my time (unless you are paying me, in which case I'm more than happy to listen to all your troubles at $420/hour + GST). Yes, she can take you to court. She will almost certainly prove that you owe her whatever you owe her for the utilities. I think it's extremely unlikely that she has been dishonest about this (although anything is possible). You may be able to make an arrangement to pay through the court which means that she will get a pittance per week from now until forever. This won't make things better. You have to deal with the fact that, right now, you share a home with someone where your relationship has broken down and you will have to continue to live with that person. At least until one of you can move out. Take a deep breath. Work out how you are going to make the relationship at least tolerable. I suggest you start by apologising. | Possibly The game company has almost certainly excluded liability under the contract you entered. There may be some consumer protection that you have that they cannot exclude - I don’t know enough about German law to meaningfully comment. Notwithstanding, if you were to initiate legal action against the, as yet, unknown wrongdoer, you could subpoena the relevant records from the game company with a court order. No matter what privacy or other protections the other person has, the game company must obey the order or be in contempt. Without such an order the game company is right that they can’t disclose details of other users. As a practical matter, it will cost several hundred € to initiate legal action and several thousand to pursue it to the end. And you might lose. A better response is to treat the lost €80 as a relatively cheap life lesson - many people lose a lot more learning to recognise scams. | There is nothing in that contract that says anything about 3 months notice period. The 3 months is the legal default for contracts that do not expire on their own, unlike yours, that has all properties of a limited time contract. I would personally see the detailed description of how you can end this contract as overriding any legal default. But as always, with this specific contract in the original language, you need to see a lawyer to know for sure. Your contract clearly states: you can leave your appartment whenever you want, even before the agreed upon time. If you leave between the 15th and the end of a month, you have to pay for that month in full. If you leave between the 1st and the 14th of the month, you have to pay the fair share of the rent for the days you where there. So for example, on a 30 day month if you lived there for 10 days, you still have to pay a third of the rent and the landlord will return the rest if you paid for the month in advance. If you live there for 16 days, you have to pay for the full month and nothing will be returned if you paid for the month in advance. Please note that you need to "hand over" the vacated rental object during normal business hours. So don't go in there on the evening of the 14th at 16:59. And don't try to "hand it over" when you haven't moved your stuff out yet. At the hand over, you give the keys to the landlord and that is it, it is the last thing you do. Very likely your landlord will want to have a look at the rental object while you are there, so they can make sure it is all in order, you did not damage it or did not leave any of your stuff. Generally speaking, there is nothing your landlord could do to you if you decide to leave early. They cannot make you leave even earlier or any other retaliatory shenanigans you may have heard of in other countries. In Germany, such contracts are not adversarial. You don't need to keep it a secret to the last second. If you know you want to leave on a certain date, inform your land lord, make an appointment for the "hand over" well in advance and save yourself (and them) all the stress from doing things last minute. | Choice of jurisdiction: You’re pretty much free to choose your jurisdiction. You don’t have to contract under German law. The German state will intervene though if you’re doing criminal stuff. Legally, the best is of course to draft a written agreement. You’re completely free in the terms (unless it becomes immoral, § 138 BGB), but a loan, § 488 BGB (Darlehensvertrag), with a 0% interest rate (if it’s meant as a short-term aid) is standard. The next level is to collateralize your loan, specifically with a pledge, §§ 1204 ff. BGB, i. e. your friend gives you a valuable item which you may (and actually have to) sell for profit if he doesn’t return the loan. However, unlike contract law, in property law you are not completely free regarding the terms (numerus clausus of property law, Typenzwang des Sachenrechts). Here it becomes too difficult though for the layman, so I wouldn’t recommend that unless you know what you’re doing. Ultimately, I/we think it’s nice of you to consider helping out your friend, but as Nike Dattani already portrayed it can get really nasty if you intend to legally enforce such matters. Trish mentioned the saying: Friendship ends where business begins. I, too, suggest to refer your friend to a pawnshop, research (third-party) microloan opportunities, and help him without directly giving him cash, dine together and offer company (i. e. address the psychological dimension financial troubles entail). PS: § 9 SGB Ⅰ: Germany is (to some degree) a welfare state. Maybe your friend is eligible for some kind of assistance. However, and probably typical of Germany, if you want to get money, you have to fill in forms. | Of course it doesn't work. You haven't discovered an end-around to property ownership I gave someone a car and want it back (they refuse) You no longer own this car. It is now titled in their name. Your interest in the car is now exactly zero whether or not they paid for it. I use a shell company to buy my own debt Okay. This has nothing to do with the car. You're now out of the cash it took you to set up this new entity. How are you doing this? I assume it means paying off your creditors with money you already have. You will also have to come up with some type of bogus documents that explain to the future court why this was even done. If you have the money, why do you have debt? My shell company sues me for conveying the car to conceal it from creditors Um, Ok. Now you're also out filing fees. Let's assume you know how to do this without paying an attorney to do it for you. I settle Makes sense, since you're suing yourself. The shell company now gets a court order to seize the car Seize the car how? This is a stretch. A judgement would be against you for the value of the car. You can't settle a lawsuit using assets you do not own. A court won't order something repossessed because of an unrelated squirrelly lawsuit. An exception would be a bankruptcy court that rules the item was sold or disposed of outside the court's orders. I would expect an astute court to hit you with contempt or sanctions for trying to use it to further your interests with some sort of end-around to property ownership. Expect more fees for this use of the court's time. The shell seizes the car No. Now I have the car back No. | A "land contract" is not a way of renting property, it is a way of purchasing property on an installment basis without bank financing. It is Ohio's version of what in some other places is known as "contract for deed". See "What is a Land Contract in Ohio" and "How Land Contracts Work" The actual law is Section 5313. In a land contract, the buyer has equitable but not legal title. The buyer normally pays all taxes and fees, and is responsible for maintaining the property, just as if s/he has bought the property. But if the buyer defaults, all payments and equity would be forfeit to the seller. Until the buyer has paid 20% of the purchase price, or made 5 years of payments (whichever comes first) a single missed payment constitutes default and can lead to the buyer being evicted with all payments to date going to the seller, the buyer coming out of the deal with nothing. Also, if the seller still has a mortgage and defaults, the buyer may lose everything paid to date. The buyer does not have the protections that a lease gives a tenant, nor the protections that legal title gives a purchaser via a traditional mortgage. Land contracts are often used when the buyer cannot qualify for a mortgage. The buyer pays interest, and it is often at a higher rate than the current rate on a mortgage. Land contracts are often a form of predatory lending, but for some buyers they make sense. A buyer needs to carefully review the contract with a lawyer knowledgeable about land contracts, and consider the risks and benefits of this form of financing. As I understand it, there cannot be a valid land contract for one apartment in an apartment building. A land contract must be for title to the land and all fixtures, including all buildings, on it. (There was at one point some unclarity if the question referred to an apartment. It is now clear that it refers to a house, so this statement is not relevant to the OP, but may be to others.) It is not clear just what the OP's landlord (LL) has in mind. It may be that LL plans to offer a "land contract" in which the purchase would be completed only after a very long time, with the idea that the OP would simply default when s/he wanted to move. Such a default could harm the OP's credit. There seems no benefit to the OP in such a scheme compared to a lease, unless LL will lower the price significantly, taking into account maintenance costs and taxes, which OP may well be expected to pay under a land contract. Note that a landlord can't legally force a tenant to sign a document cancelling a lease, or to sign whatever s/he will call a "land contract". Nor can s/he cancel the lease without the tenant's consent except for good cause as specified in the law (such as not paying rent). S/He could become uncooperative on other matters if a tenant doesn't do as s/he wants. If a tenant does cancel his or her lease, s/he will lose some rights. Others are guaranteed by law as long as the tenant is paying rent. If one signs a "land contract", what happens depends on its provisions. OP needs to very carefully consider just what is being offered, and its risks and any possible benefits. Details of the contract will matter. No matter exactly what LL has in mind, this is not at all a usual procedure for a landlord. OP or anyone in a similar circumstance should be very careful. | Landlord or tenant responsible for the furnishing damaged after a flooding? This brief analysis of Scandinavian Contract Law explains the difficulty of addressing with certainty matters of Swedish contract law. Despite the legal and factual ambiguities, it seems to me that the contract terms and landlord's conduct preclude his entitlement to a reimbursement from you. (Disclaimers: I have never litigated in Sweden's courts; I do not purport to be knowledgeable about Swedish law; and it is unclear to me whether Swedish contract law has evolved since the date of the publication of Ramberg's criticism of Scandinavian contract law) First, it appears that the landlord was negligent by waiting several days to ask tenants to remove moldering furnishings (as these were starting to smell). If that was the landlord's earliest reaction to the flooding, then the delay might evidence [landlord's] failure to mitigate damages. In other legal systems, failure to mitigate damages is an obstacle to recovery from the sued party. Second, the landlord's unqualified instruction to throw everything away --in response to your proposal of checking for salvage-- might forfeit his entitlement to reimbursement. In this regard, page 4 of the aforementioned publication points out that [t]he Swedish Supreme court [...] generally stated that a contract containing the standard terms was deemed to have been concluded due to the parties' behaviour. Obviously, not all of the contract would be void, but only the application of the clause about tenant's financial responsibility for missing or damaged items in this particular context of landlord's delay and reckless response to your proposal. Third, in the clause regarding tenant's financial responsibility "to replace missing or damaged items", I would say that the qualifier "missing" is key. Here, the usage of "missing" connotes a deliberate act of taking items away in violation of the landlord's proprietorship, regardless of whether it was the tenant or a third party who removed/stole them. That same connotation of deliberate act should govern the very next qualifier, "damaged", absent any language that expands the latter's connotation of causality. Also a criterion of negligence would fail, because you were not notified that a flooding occurred. The contract's clarification that their "insurance doesn't cover [your] personal belongings" opens --albeit weakly-- the door to the possible interpretation that instead the policy covers the counterparty's (that is, the landlord's) belongings. On the other hand, the landlord could avail himself of arguments such as (1) tenant should have made arrangements prior to leaving for the holidays; and (2) landlord's bed & mattress were not intended to be stored in the basement, and instead should have been notified toward procuring an appropriate storage for them. It is hard to make a more precise assessment without knowing more about the terms of the contract and the circumstances. Therefore, the best thing to do is to look at the subtleties in the language of the contract (as I did above regarding the deliberate nature inherent to the adjective "missing" and its interpretative effect on the adjective "damaged"). |
"so long as you remain unmarried": Why a gratuitous promise in one fact pattern, but a contractual offer in another? Paul Davies. JC Smith's The Law of Contract (2018 2 ed). pp. 75-76. Can the two hypotheticals (orange and red) be distinguished? Why's the red a gratuitous promise but the orange an offer to contract? I can't? Both stipulate £5K/year and the phrase "so long as you remain unmarried" The orange has "Please do not remarry", but this feels superfluous as "so long as you remain unmarried" is already stipulated. | The idea is that, by default, we should assume the payment is a gift, unless we have specific evidence to suggest that it is offered in exchange for something. In the first case, the father-in-law has given no indication as to why he is giving her the money. It could be that he is indifferent to whether she remarries or not, and simply wants her to have a steady income in either case. He may be presuming that, if she remarries, her new husband will be able to provide for her, but until such time, he (the father-in-law) will pay her way. We certainly do not have evidence to show that he actually wants her to stay unmarried and is paying her for that purpose. In the second case, the father-in-law has given us more evidence. His words make it explicit that he does want her not to remarry, and that he is paying her in order to get her not to. Since he is clearly paying money with the intention of getting another party to do something (or in this case, to refrain from doing something), we understand it as a contract. | To form a contract, you must have: Intention to create legal relations Agreement Consideration Legal Capacity Genuine Consent Legality of Objects On the face of it, Alice and Bob's agreement meets these criteria so it is a legally binding contract and Alice would have every prospect of success in a legal action for breach of contract. Specifically: by writing out and signing the agreement they are showing an intention to be legally bound what they have each agreed to do is vey clear; more than many I have seen both parties have provided consideration: dog walking and money there is no suggestion that either was legally incapable of forming a contract genuine consent refers to them actually agreeing what they though they agreed, for example if Alice asked Bob to walk her dog (meaning the Great Dane) and Bob agreed (meaning the Jack Russell) there has not been genuine consent dog walking and paying money are both legal | I am not a lawyer; I am not your lawyer. You do not cite a jurisdiction so this makes it very difficult to get a definitive answer. What follows is for Australia but the general principles are common law and would be applicable to other common law jurisdictions except where statues apply or case law has diverged. In the first instance, it seems that you were not party to any arrangement to pay for the electricity. So on the face of it you are not party to any contract requiring you to pay. Even if there was such an agreement: family, domestic, social and voluntary agreements (which this would be) are presumed not to be intended to legally bind the participants. Whether this presumption would be overturned would depend on the specific facts. On the face of it, there is no legal obligation to pay. Your options are: Do nothing; this puts the ball in their court, they can: Forget about it (it would then be over) Attempt to sue you with little prospect of success (which would cost them and you a lot more than $50 irrespective of who won) Do something illegal like beating you up (you really need to assess this risk) Tell everyone they know (in person and on social media) what a skiving prick you are (you could probably sue them for damages but that's not really going to happen, is it?) Pay them what they are asking Offer to pay them something less. Option 1 is likely to break any relationship you have with the person, Option 2 is likely to preserve it and Option 3 could go either way. Ultimately, like most legal questions, this is not about the law; it's about relationships ... broken ones mostly. | Do I have to pay child support if we are just dating and not married? We are not planning on having a child, but what if by some odd chance she gets pregnant? Does it depend on where I live? Like Toronto? The Modern Rule In Most Developed Countries It does depend upon where you live. No jurisdiction of which I am aware has ever distinguished between a planned child and an unplanned pregnancy in making a child support award. The vast majority of countries that have a category of obligation called "child support" apply it without regard to whether the parents are married. This would include all jurisdictions in Canada and the United States. But, in those jurisdictions, liability for child support in the case of an unmarried couple requires a mother seeking child support from a father, to establish the father's paternity by any of a variety of means, within the time allowed by law. Given the availability of cheap and highly reliable DNA tests to establish paternity, this step is now almost trivial and often waived by fathers who simply admit paternity instead when paternity seems clear. In contrast, paternity is presumed rather than something that has to be proved in cases involving a married couple. There is an exception to this general rule in most jurisdictions that have child support at all. This is because the husband of a married woman who has a child is presumed to be the father. Therefore, a man who is the biological father of the married woman's child is only obligated to pay child support if the father's paternity is established within the time allowed by law by the husband, the mother of the child, or a third-party on behalf of the child with standing to do so. Also, in most jurisdictions that have a concept of child support payments, a termination of parental rights (generally for abuse or neglect, but also in connection with a legal adoption by someone else) also terminates obligations to pay child support payments that arise after parental rights are terminated, although this rule is not universal. Generally that exception would not apply in the fact pattern that you describe. Historical and Comparative Context Historically, the concept of child support was unknown, illegitimate children and their mothers had no rights with respect to their fathers (and fathers had no rights with respect to their illegitimate children in most circumstances), and only married people were entitled to post-divorce support from an ex-spouse that was known as alimony and alimony served to provide support to both the ex-spouse and their children. The harshness of this historical rule was mitigated somewhat by the concept of common law marriage that had the practical effect of declaring an unmarried man who caused an unmarried woman to become pregnant to be declared husband and wife despite not having actually having gone through a marriage ceremony in many cases. At that time, there was an incentive for the man to re-characterize the nature of the relationship retroactively, because if the woman was not a prostitute, it would often be a crime or tort for the man to have had sex with the unmarried woman, enforceable by the state or by her father or guardian. But, if the couple were deemed to have been common law married, then all of these sanctions could be avoided. At this time, in areas where the state was not powerful enough to enforce these kinds of sanctions for premarital sex giving rise to a pregnancy, social pressure and sometimes even a literal "shotgun" marriage would be used to force the father to marry to mother. Prior to the 19th century in Western predominantly Christian countries, the only way to get a divorce was by special legislation in which the legislature passed a law specifically ending a particular couple's marriage. In the 19th century, bit by bit, Western countries started to allow judicially decreed divorces under a general statute on a proof of fault basis, with alimony awarded to the not at fault spouse under a breach of contract damages styled analysis that did not involve a separate child support component. Bit by bit in various Western jurisdictions during the 20th century, child support began to be recognized as a separate obligation from alimony and property division in a divorce, as partnership theories of family law, and parent-child relationship based theories of family law, began to replace the contract based theories of family law in earlier divorce actions. Non-marital relationship entitlements to child support also arose around the same time. Many U.S. states have both civil and criminal penalties for failing to provide financial support to your child. Japan only recognized child support as a separate type of relief in family law in the late 20th century (multiple decades after World War II), and has never had post-dissolution of marriage alimony after a divorce, although it has had temporary support not clearly distinguished between alimony and child support, during the pendency of divorce proceedings (which tend to be much shorter than in the U.S. and Canada). The primary relief to a spouse upon a divorce in Japan historically was property division and complete allocation of each child to one parent or the other, with no child support or alimony post-decree, until these late 20th century reforms allowing for limited child support payments (which are still rarely actually received even when ordered by a court) were adopted. The analysis in countries where the parents of the child are subject to Islamic rules of family law are beyond my competence, but quite different. Unlike Western jurisdictions, Islam has recognized non-legislative divorce since its inception in the early 600s CE as did prior pagan communities in places where Islam arose. One of the main reasons that child support and alimony were rare or non-existent at the time in almost all countries was that the legal systems and economic systems in existence at the time made intangible monetary obligations to pay child support in regular installments over a long period of time, and to enforce custody arrangements, was effectively impossible for former spouses to enforce in all but a very small fraction of cases. | I see that most (all up to this point) answers and comments are made around if a verbal contract is binding enough for the employer to "pursue back" the extra payment that you received... but as far as I can see, they don't even need to consider the verbal agreement. Your employer thought (and apparently was right) that you were going to resign, so they offered you a payment raise in exchange for you to stay for two more years. You verbally agreed but this agreement was never written down nor signed by any of the parts, yet your employer respected it and for X amount of time you received more money that what your initial, written, signed contract says. Now you want to quit; as mentioned above, you only have your original contract, a contract that says two things that are key for this "dilemma": The Employee will be paid £9/hr in arrears. Salary may be increased at the direction of The Employer subject to The Employee taking on additional responsibility which is agreed upon by both parties. If the Employer makes an overpayment to the Employee to which she is not entitled, or which is more than that to which she is entitled, the Employer has the right to recover the overpayment by deductions from the Employee's salary or from other payments due to them. You received payments for £11/hr, which is more that that to which you're entitled according to this (one and only) contract; so, your employer has the right to claim back those £2/hr that, officially, you were not entitled to. IF you want to argue that, as the 1st point says, both parties agreed to increase your salary for "additional responsibilities", YOU would also have to admit that you agreed to stay for two more years, agreement that you are not complying to; so, once again, it's a point in favour for your employer. All in all, it all boils down to how your employeer "feels" when you present your resign letter; maybe they will just agree and let you go without further issues, but if they want to claim back that payment raise, IMO they have both the right AND the arguments to do so. | would it be interpreted in favor of the person who did not draft the terms? Yes, provided that the interpretation is reasonable. That is known as the doctrine of contra proferentem. Here, the term "deliverables and associated documents" might entail a contradiction if that term [allegedly or literally] encompasses "source code or content". That depends on what definition(s) of "deliverables and associated documents" can be adduced from the contract. The term could refer to items that are not "source code or content", such as the binary files (i.e., executables and DLLs), instructions & documentation on how to operate and troubleshoot the application, and so forth. In that case, there would be no contradiction because there is no overlap between these items and the source code. if term A) is written on line 10 and term B) is written on line 11, is it resonable to assume term B) takes precedence or modifies term A? No. The sequence of clauses/terms itself does not determine which one outweighs or qualifies the other. Instead, the language used in the contract is indicative of the parties' intent and therefore how the terms of that contract relate to each other. | Here is a substantial collection of interpretive canons; this article discusses rules vs. canons. This article discusses contract interpretation from both the perspectives of drafting and litigating. These are all from the perspective of common law systems. This article (in English) and this chapter (English, paywall) reminds us that French contract law is different, to which I would add this which focuses on the French subjective theory of contracts – starkly distinct from the common law theory. This page (en français) will probably be of most interest to you. The 2016 modification to the civil code added art. 1190 (and other articles) which says Dans le doute, le contrat de gré à gré s'interprète contre le créancier et en faveur du débiteur, et le contrat d'adhésion contre celui qui l'a proposé which is contra proferentem. The Latin name is not officially assigned to this law, and being a new addition to French law, it's too early to tell if it will be so named in French legal practice. | If I did not sign promotion bonus document, my career would be over. Is this duress? No. The premise is hardly true or even logical, and what you describe falls short of duress. Not every imbalance of bargain power implies duress. First, it seems that you could have declined the bonus, thereby preempting the sanction/remedy for leaving within 12 months. Second, it seems hard to prove (and unrealistic) that your career would have been over if you refused to sign the document. The employer can easily refute that allegation by pointing out that there are many others who did not sign that employer's document and yet work elsewhere as investment bankers. You would need certain, additional context to reasonably allow for a conclusion that your career altogether depends on what happens with this single entity. Third, your mention that "the bonus mitigates the horrendous weekly hours" reinforces the idea that signing the document was your preference (namely, for the purpose of obtaining some additional, non-compulsory stimulus) rather than employer-inflicted duress. The rationale and decision for acceptance of those conditions reflects that you knowingly exercised your freedom of contract. A party is not entitled to void a contract only because he belatedly changed his mind about conditions of which he was aware beforehand. |
Why would a lawyer accept a case that involved only $1.50 USD? The European Union: Politics and Policies (2017 6 edn). pp 159 Bottom - 160 Top. To wit, how did Costa find a lawyer for such a picayune quantum? I'm cynical and reckon that only a few are open-handed; most aren't. I can conceive only two reasons: Was Costa simply lucky to have chanced on a big-hearted lawyer? Another motive may be the lawyer's longing to argue at the CJEU? | The amount at stake (e.g. $1.50) does not need to relate to the amount the lawyer gets paid. One could sue for $1.00 for the sake of proving they are right, pay $x,000 in legal fees, win and feel rewarded. Lawyers can have motives to perform services other than financial gain, such as: — practice — publicity — sympathy to the party they represent — sharing the same views/principles as the party they represent and achieving personal pride by winning the case. | what reasoning would the court use to evaluate the competing claims? Absent a verifiable contract, the dispute would require assessment of the extrinsic evidence and/or of other aspects reflecting the parties' credibility. Those types of factors would help for discerning whose position is meritorious. You are right in that Bella's co-signing of the loan is likely to render her hypothetical allegation of gift not credible. Bella's history of defaulting on her debts as well as her failure to keep up with insurance & tags are examples of prior act evidence. As such, these might be inadmissible for proving that she entered the contract with Abe. However, they are admissible both for proving Bella's pattern of missing her commitments and possibly for detecting inconsistencies in Bella's allegations (thereby weakening Bella's credibility). Unless Bella is able to point greater inconsistencies or weaknesses in Abe's credibility, a competent and honest court (where available) would rule in favor of Abe. | If we restrict ourselves to legal options, he can hire a lawyer, which is what he should have done rather than "ordering a DNA test". As a general rule, the minute you get served with a lawsuit, you should hire an attorney, especially if you are a billionaire. He should not volunteer to get in this position by volunteering for the test. But given that he did let it get this far, and now it is a legal fact that he is the father of the child, his newly-hired attorney would try to put the best face on this mess that he can. It's not a foregone conclusion that a child would be entitled to $20M. Also, is that per month? The amount that the court would order depends on the particular state's law. I assume this is in Washington state since you didn't say otherwise (subsequent change of venue notwithstanding). The calculation is based on a maximum joint income of $12,000 per month. The mother cannot just quit her day job: the courts can impute income to her. I assume that she makes $3,000 per month, which is a low-ball figure. His obligation would be about $1180 / month, which works out to be about a quarter million total over the life of the support order. The courts do not have the authority to award $20M, nor do they have the authority to order a lump sum. They can award $1180, and this can be increased or decreased depending on circumstances. The attorney would also argue that he is legally not the father, because under the law, this is "assisted reproduction" since it does not the result of sexual intercourse, and mere sperm donors are not legally deemed top be parents. Incidentally, the benefit of "marrying rich" are distinct from the benefits of a rich baby-daddy. Child support is for the support of the child, not the benefit of the mother. The attorney could therefore persuade Mary to accept a lesser amount, no questions asked, to dispose of the problem. The net financial benefit of this dumbass scheme is probably substantially negative for her. A third option is to hire detectives to prove that this was a fraudulent action, which would lead to her imprisonment. | Your terms and conditions must comply with the laws in: Your jurisdiction (California) Your customer's jurisdiction (each of the US states, Canadian provinces and ultimately countries and sub-jurisdictions in Europe) If they do they will generally be enforceable; if they don't then they will not be enforceable and you may be exposing yourself to civil and criminal sanctions. While not immediately relevant to you, Australian Consumer Law has such sanctions to goods sold into Australia from anywhere in the world; I am not familiar with other jurisdictions. With respect to your comment that you will not accept returns or refunds, this would expose you to potential fines in Australia of $220,000 for an individual or $1,100,000 for a corporation - under Australian Consumer Law returns and refunds are a consumer right. I strongly suspect that most of the jurisdictions you are selling into would take a similar position. A general "catch-all" like "to the extent permitted by law" may reduce the risk of being prosecuted but it would not eliminate it entirely. Again, in Australia, the provision is that you must not engage in deceptive and misleading conduct - merely suggesting that you will not give a refund even with the limitation above - may still be deemed "deceptive and misleading" if the court feels that a reasonable consumer might assume that they are not entitled to a refund. You need professional legal advice on this. | It is the tenant's responsibility to understand the written contract. Oral statements about the contract do have to be consistent with the written contract (that is, in the context where you ask the landlord what a particular clause means before signing -- not in the case where you are modifying an existing contract). If I were renting a room and the contract says "Du må betale $1000 hver dag", which I don't understand because my Norwegian is terrible, I would ask about this, and the landlord might say that it means "You must pay $1000 every month", which could be a decent deal. Actually, the clause says "You must pay $1000 every day". When the reality of the situation becomes clear, then it is obvious that we didn't have an agreement in the first place. Perhaps he mis-spoke, or his English is as bad as my Norwegian, but I would not be held to rate in the written contract, assuming that I could back up my claim that he gave me that interpretation: the lease would probably be voided, as not an actual agreement. The underlying principle is that there has to be a "meeting of the minds" where the parties understand what they will get and what they must give, and there was a demonstrable failure of understanding. On the other hand, if I sign a contract without really reading it carefully, and there is a clause in English (which I speak) saying that I have to pay $1000 a day, but I didn't really think about the clause so that in a sense I didn't understand what I had agreed to, well, I may still be on the hook. (On the third hand, a court would probably say that's a ridiculous rent and void the contract on policy grounds). In general, "not my first language" is not a get-out-of-contract card, though attempts to trick people into signing documents in languages that they really have no understanding of won't be successful. Virtually nobody but a lawyer actually understands contractual language, yet contracts are enforced all the time. A contract can be explicitly modified by verbal agreement, or can be entirely verbal, but oral agreements face evidence problems, namely, what exactly did A and B say? It's scientifically well established that parties can be morally certain that the conversation went "A" (for one person) and "Not A" (for the other person). Using "could" rather than "would" in speech makes a huge difference in interpretation. There is a rule, the parol evidence rule, which essentially says that unless there is a good reason to not do so, the contract as written is what is enforced. Even if the conversation had been written into the contract, there's no basis in the contract for objectively determining whether a thing is old and "just broke". So even as an additional clause in the contract, it doesn't afford you a clear escape hatch. You might be able to prove with expert testimony that indeed the pipes had been corroding for a hundred years, and you could not have caused the pipes to burst. | In my experience, varying jurisdictions can and do differ as to the myriad ways these disputes are resolved. Contract law is one area where the judge has a lot of discretion. This is definitely true in state courts, even from judge to judge, and can even be true in the federal level-The 9th Circuit has some wildly different appellate decisions when compared to the 1st Circuit, and so on. I say this not to be argumentative, but to highlight the importance of careful and concise drafting that fully explicates the bargained for exchange, as there can be a vast amount of judicial subjectivity that goes into determining which rules pertain to certain situations. "Conflicting or competing clause" cases are now some of the most commonly litigated contract disputes. This is largely because the last 20 years has seen a huge influx of people "drafting" (more like piecing together) contracts without benefit of qualified counsel. This is particularly true because lay people do not generally create a specific insturment like an attorney would - from scratch, with definitions and terms specific to the transaction. Rather, they go online and find "form" or model contracts that they feel are close enough (which are almost always missing key components), and then they type in their own terms, or even write them in. Because this is so common, most jurisdictions follow the rule that hand written terms supersede pre-printed terms; likewise, type written terms will take precedence over pre-printed terms. Specific terms also carry more weight than general terms. Specific terms will usually be given precedence over general terms, as these are seen as creating a specific exception to the general terms. For example, if Clause A in your scenario said: Written notice must be provided at least five days in advance of (any) change... (leaving out "to price"), then clause B would prevail because it would be more specific than the more general term (A), which in my scene would pertain to any change whatsoever (this is assuming the whole of the agreement did not shed light on the issues more fully). In your hypothetical, these are both specific terms. In that case, the court would first examine the entire contract and all addendum, specs, plans, etc. when interpreting competing or conflicting clauses applying the fundamental principal that a contract should always be interpreted as a whole - not clause-by-clause - and not section-by-section. Contracts will often have numerous parts with portions incorporated specifically by reference, or numerous documents that may be integral to the transaction, If the parties agree to what constitutes the various parts of the contract (even if not incorporated) the entirety of the transactional documents may be considered by the trier of fact (and law). Once examined, if a proposed interpretation makes other portions of the global agreement meaningless, illogical or unenforceable, and another party's interpretation is in keeping with the document as a whole, that is the interpretation that will typically be adopted. Assuming this analysis doesn't work to resolve the issue, then the court would look to see if there is an order-of-precedence clause, which is a clause that lays out what parts of the contract / types of clauses take precedence over others (ex. written requirements take precendee over performance requirements, addendum hold less import than the signed agreement, schematics hold less import than addendum, and so on). Assuming this there is no order of precedence, the court will look first to see if the contract was negotiated back and forth, with terms being modified with each draft. If Yes, then the court will except extrinsic evidence (parole evidence) that goes to the intent of the parties bargained for exchange. If not, the contract term(s) will be construed against the drafter and in favor of the one who signed the others' instrument. So, as you can see, there is no clear answer to what seems to be a simple issue. This just goes to show: Lawyers seem expensive when you decide to hire them - Lawyers are expensive when you have to hire them, because you decided not to in the first place! | I checked actual cost. It is just under $400 per month for one license. Here is a cost breakdown if you want some things a la cart and others blanket license. They are a LOT of money and are cost prohibitive unless they are used as a part of your legal practice. That said, everything available on Lexis or Westlaw are available at other, free sites. If you are looking for state and federal statutes, as well as precedent setting cases, those can be found on Findlaw (and other similar sites). Each state also publishes all of their statutes online, as well as law court decisions. The same is true of statutes and legislation. Legislative history can be obtained at any law library. These places also have free access to West and Lexis on their public computers. So they charge a premium for the convenience of having everything in one spot, as well as a variety obtain of other services that wouldn't be relevant to lay persons (like Accurint). I should amend to say Lexis/West does have things that you cannot just get online such as treatises practice guy, forms, etc. What I meant when I said that you can get pretty much everything for free online was statutes, case law, regs, etc. | Whether any person, provided that they are in full legal capacity (not a minor, not incapacitated etc.), needs a lawyer, is to be decided by that person. Even criminal defendants can be self-represented if they've got the balls for it — the law does not impose a requirement to have a lawyer when the person does not want it. Considerations as to whether to have a lawyer are very fact-specific and person-specific. Assuming that Steve is not literate in law, it would probably be good idea for him to get a lawyer before answering any questions. The facts are such that it is not totally impossible that he may be charged, especially if he inadvertently says something not in his favor, or otherwise says something favorable to McRobberface. |
EU Consumer Goods Guarantee, who is responsible the Retailer or Manufacturer? The title of the question basically sums up my question but for completeness I will provide some more details. Roughly 15 months ago I entered into a contract with a large phone service provided who provided me as an accessory to the phone a fairly nice portable speaker. So far no complaints. Fast forward to a couple of days ago and the speaker has stopped working, won't charge, wont turn on, in its current form it is more or less a glorified paper weight. It might be worth adding despite it being a portable speaker it has never left the house or been dropped or sustained damage from its use and is always put back in its box for storage (which itself is pretty well padded). As far as I am aware (and I could be wrong) under EU law there is a minimum 2 year guarantee for faulty goods. At first I contacted the manufacturer to try and claim on the guarantee and was told that as they where not the retailer who sold/supplied the device it wasn't their responsibility to cover the guarantee and to contact the retailer who did. I then contacted the retailer who proceeded to tell me that as they did not make or manufacture the device they would not help me under the guarantee and I would need to get in contact with the manufacturer to resolve my issue. So the question is really, who is right and who should I be contacting? | It's the seller's responsibility. Note that in the UK you actually get much more than 2 years. The 2 year rule is the minimum required by the EU, but each country is free to implement that as they choose and the UK has much more. In the UK you are protected by the Consumer Rights Act. It states that products must last a "reasonable length of time". What counts as reasonable depends on the goods. For electronics 2 years is usually the absolute minimum, but for things like televisions the courts generally consider it to be 5 years even for cheap models. Under the Act the retailer is responsible. They can either replace the device or refund you, with the refund amount accounting for the 1.5 years use you had from it. As it was part of a phone contract it could be difficult to agree on a value for the speaker, but looking up the replacement cost for the same or a similar device is a good place to start. Which? has a lot more information and advice. | When Bob buys a thing, it becomes his, and it ceases to be the property of the seller. By "buy", we understand that to mean "pays for and receives physical control of". At that point, Bob is responsible to control of his new property. His ownership of the property is not contingent on him leaving the store. You might assign blame to the shop if they were negligent in some way, for example if they hire a thief to do the exit-check and the door guard takes Bob's property. Obviously, the thief is ultimately liable, but the store might under special circumstances be liable if they indirectly caused his loss. A store does not have an obligation to guarantee that a customer immediately and securely exits the store after making a purchase, so they are not liable for failing to immediately eject him from the store after buying the goods. | The fault lies with the people who vandalized your house. In general, whoever causes you damage is responsible (liable) for that damage. This is true whether or not you are selling your house, having guests over, letting a friend stay over for a night or a week, or whatever the circumstance is. Insurance is there to cover many such losses: if a friend trashes your house in a drunken rage, your insurance will cover the damage, but they will invoke the doctrine of subrogation whereby they get to go after the friend, and you have to cooperate. In a situation where nobody has a clue who did the damage, the only possible way that the agent has any responsibility is if they were negligent in their duty to take care of the house. For your specific case, you'd need to discuss the forensic facts with your attorney. But generally speaking, the issue would be whether the agent had breached his/her professional duty of care, which is best understood as comparing his actions (or lack) compares to actions of other professionals in the same circumstance. If a house has 3 or 4 sets of visitors simultaneously, it is really not possible for an agent to supervise all of them at once. So the question would be, was this the result of one concentrated vandalism attack, or serial vandalism. The former is more in the realm of "stuff happens", and the latter is indicative of an endemic lack of care. To repeat, the fault lies with the miscreants who vandalized your house. You, or your insurance company, may nevertheless have to bear the financial burden. Your insurance company will certainly have an interest in spreading responsibility to the realty firm, if warranted by the facts. | None You broke your contract with ParcelHero - they could take action against you. You say you sent a passport, which is clearly on the list of prohibited items and this makes it an Undeliverable Consignments. And “Customer shall be liable at all times for any and all Charges incurred by PH in returning, storing or disposing of an Undeliverable Consignment.” | According to this site in the UK apparently there are laws against calling something free if it was part of the entire package before or if was added later and the price went up Example of the latter: LG sold a TV. They then added a sound bar, increased the price and listed the TV as TV for $XXX + free sound bar. They ran afoul of the regulations Also adding something and calling the addition free is okay if the price didn't go up but you can only advertize it as free for 6 months. After 6 months the law considers it included by default and therefore no longer free. | 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. | A simple EULA does not absolve you from legal responsibility. The law that you need to be acquainted with, if you are dealing with the US (i.e. might be sued in the US), is the Digital Millennium Copyright Act, in particular Title II, the Online Copyright Infringement Liability Limitation Act which states the "safe harbor" provisions. Aspects of DMCA safe harbor are covered in many Law SE questions. In essence, you have to provide a way for rights holders to complain that someone has infringed their copyright on there site, and you have to take down allegedly infringing material: and there are a number of legal formalities to attend to in doing this. The main point is that you can't just ignore the problem and hope it goes away, and you can't just say it is not your responsibility, which is what a simple EULA does. To be protected, you need a "designated agent" where complainers can contact you. You provide the information online (as well as stating the DMCA policy, which can be in the EULA), and also register that information with the Copyright office (online). The complaint has to be in writing, and most of the burden is on the author of the complaint, but you still have to be sure that the complaint is legally conforming. The complaint has to say what was infringed (e.g. the URL), the identity of the protected content (title of the book, for instance), and provide the complainer's signature and contact information. It also requires the complainer to say that they have a good faith belief that the material is illegally copied (no permission, and not otherwise allowed by law), and a perjury statement that the foregoing is accurate and authorized by the copyright holder. When you have a conforming notice, you must "expeditiously" remove / disable the infringing material (there is no definition of "expeditious"), notify the user, then wait for a proper counter-claim (same general form as the take-down claim but where the user denies the posting the material was illegal. If you get a counter-claim, you notify the alleged copyright owner and wait for them to file suit in 10 days. If they don't do that, you restore the material. Here is a sample complaint, and a sample counter notice. Also, this document (look for the download tab) reorganizes the legal language so that requirements are put in logical order and not randomly scattered throughout the US Code. | The primary source to answer your question is the Stromio contract itself. If it does not contain any provisions pertinent to such a situation: It is correct that you are automatically switched to the local Essential Service Provider (Grundversorger, § 36 Ⅱ 1 EnWG). In default of delivery by Stromio, the ESP is in charge of supplying electricity in lieu of Stromio, § 38 Ⅰ 1 EnWG. This is an example of a contract by law. Because the laws govern so, there is now a contract between you and the ESP. You can terminate this contract within two weeks notice, § 20 Ⅰ 1 StromGVV, but you (and only you) still have to meet all your obligations. Recovery against Stromio? §§ 280 Ⅰ, Ⅲ, 283 BGB Obligation, § 280 Ⅰ 1 BGB? → Effective cancellation of contract by Stromio? Provisions in contract granting the right to terminate contract without notice due to economic hardship? ✘ Force majeure, § 314 Ⅰ BGB, ✘ b/c commercial risk burden of any entrepreneur ⇒ Contract between you and Stromio continues to exist, even though Stromio will never again meet its obligations. Breach of duty? § 283 BGB → § 275 Ⅰ BGB: it is impossible to deliver electricity in the past and it does not make sense to deliver electricity today when it was actually needed on December 22, 2021. ✔ No defense? ✔ § 275 Ⅱ BGB ✘ cf. above, § 320 BGB ✘ ⇒ Breach of duty ✔ Responsibility, § 276 Ⅰ 1 BGB? ✔ According to the email, Stromio deliberately stopped delivery. Causal damage? ✔ You would’ve (presumably) paid less if Stromio continued delivery. ⇒ You can charge Stromio the difference you had to pay more. Write them a (registered) letter, enclose the ESP’s bill, refer to your quote you had with Stromio, highlight the difference (“€12.34 due”), indicate your banking account, and set a reasonable deadline. It is unlikely they will fulfill your demands, but still. The ESP is unaware of all of these troubles. They do not have a contract with Stromio. They will not sue them. |
Is a photo that is in the public domain in US also in the public domain in other countries? I want to use a photograph that is in the public domain in the United States. However, I would be sending a document with this photograph around entities in Europe. I know that just because something is in the public domain in the United States, that doesn't mean that it is in the public domain in other countries. Can I use this photograph or not and what decides this? This is the photo in question: https://commons.wikimedia.org/wiki/File:Rowing_at_the_1988_Summer_Olympics.JPEG The "Permission" field in the "Summary" section details what I'm talking about. | Under US law, the particular work is not protected by copyright, being a government work. Therefore, an infringement suit in the US would go nowhere. Under the Berne Convention Article 7(8), the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work This is acknowledged via EU Directive 2006/116/EC, Article 7: Where the country of origin of a work, within the meaning of the Berne Convention, is a third country, and the author of the work is not a Community national, the term of protection granted by the Member States shall expire on the date of expiry of the protection granted in the country of origin of the work, but may not exceed the term laid down in Article 1. So unless there is a special provision in the country in question, the shorter of the protection-time of the country of origin and that of the country of lawsuit prevails, i.e. zero in this instance. No jurisdiction in Europe appears to have created a special exception to the effect that government works are subject to copyright protection. | 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. | In Canada, no: linking does not reproduce any part of the original. In Sweden, Spain and according to the EU, no: communicating a link does not communicate anew the work to the public. In the US, it isn't as clear, but generally, linking is not per se infringement, usually because no copying happens. | The relevant concept is dedicating a work to the public domain, that is, saying in the work something like "This work is dedicated to the public domain". I understand that this isn't entirely reliable in European civil law. The preferred alternative is to license it to the public. However, you have to decide how "free" you want the work to be made. The normal state of affairs, where you do nothing and just rely on copyright law, is that you have the sole right to allow copies to be made and derivative works to be created. Thus if someone were to make a derivative work based on your composition, they would need your permission: but then they would have the right what they created (such as a translation). If you just abandon your property right to the work, you impose no obligation on others, and a person can freely create a translation (which is now their property). If you execute the right public license, you can allow people to use your work as long as they include that license in their versions. A fairly common public licensing scheme is the Creative Commons licenses. That article gives a decent summary of relevant rights and how particular licenses correspond to configurations of permissions. I would say that the most difficult thing to do is to figure out what you don't want to happen, and pick a license that matches that interest. | You can take pictures of any buildings if you are in a public place, and can freely use such photographs without consent of a owner or designer of that building. [Japan Copyright Act, art. 46] BTW, external appearance of buildings in U.S. Armed Forces facilities are NOT confidential under US-Japan Security Treaty and related statutes enacted in Japan. | The images and text are copyright (if they are). What Google does with them is fair use/dealing. It works like this: if Google's bot can find them then you (the owner) have put them on the World Wide Web presumably because you want people to see them, effectively you have put them on public display. Google is assisting you in that endeavour by enabling people who are looking for what you are displaying to find it. Their use of your material enhances its value to you which is a rock solid defence. If you don't want your stuff on public display then a) don't put it on a public part of the web - there are plenty of private cloud storage facilities or B) stick a file in your website that tells bots not to index it. | "Public domain" refers informally to copyright status, usually works whose protected status has expired. A list of names, addresses and criminal offenses is "factual", not a creative expression, and is not subject to copyright protection. You may be thinking of "public record", which is closer to an relevant expression. Typically, as instantiated in Washington state under RCW 9a.44.130 ff, a person convicted of certain offenses is required to register with the county sheriff, and that registration is thus a "public record". Under a separate law, RCW 4.24.550 disclosure is allowed "when the agency determines that disclosure of the information is relevant and necessary to protect the public and counteract the danger created by the particular offender" – in other jurisdictions disclosure may be mandatory. The specific information to be disclosed is "name, relevant criminal convictions, address by hundred block, physical description, and photograph. The website shall provide mapping capabilities that display the sex offender's address by hundred block on a map". The Public Records Act does not exclude disclosure and copying of that information, so it is a public record in the sense that it must be disclosed on request. Every state has its own laws implementing this desideratum: all states have such laws, they vary somewhat in details. | You need permission from the copyright holder(s) to make the prints at all unless it falls under some fair use doctrine or is a work in Public Domain. If permission is granted, it would presumably involve you paying money on some negotiated basis. An artist might flatly refuse to give permission to your plan to use their art as a component of your art. |
Trademark violation for app? I've just received an email from a Turkish app developer who believes my app infringes on his trademark. I've done some reading and read that essentially I'm not allowed to violate any patents or outright steal the work by copying it but otherwise should be fine if portions of the apps match. To elaborate: I'm from Germany, the other developer is from Turkey The app is distributed using the Google Play store (US-based) Both apps provide the same core functionality There are about 40 apps providing the same core functionality The app of the other developer was published in 2015, mine in 2017. My app was created from the ground up and doesn't use any sources of other apps (I created the layout by myself as well) The other developer seems to hold at least some sort of copyright in Turkey: https://i.stack.imgur.com/0DKWO.jpg (blacked out) Both have a very, very similar name. There are 40+ apps on Android alone which share this name as well. There was software prior to both apps with this name. I admit that both apps have a similar main UI (same color, same input elements) which however noticeably differ in design choices, user experience, and scope. But apart from that (the main view), the UI differs completely. Is there any grounds for copyright infringement, if the apps look similar, but the actual sources aren't derived from any sort of original work? | Disclaimer: I'm from the US and don't claim to know German or Turkish law. So let me discuss some general principles here, but details may well be different in Germany and Turkey. You're mixing together three very different things: trademark, copyright, and patent. Copyright protects the expression of an idea, in this case, the exact computer code, images, etc. If you didn't copy his code, the chance that you would coincidentally write identical code is remote. The fact that you both have a line of code that says x=x+1 wouldn't give him any grounds for a lawsuit. He'd have to show substantial portions of the code were identical. If you didn't deliberately copy his code, this isn't going to happen. Barring some extraordinary and unbelievable coincidence, you can't violate copyright accidentally. Trademark protects names and symbols used to identify a company or a product. If you decided to call your software company "Microsoft", then that other Microsoft could sue you for trademark infringement. Likewise if you copied somebody else's logo or other distinctive graphics. This is very different from copyright. It is quite possible to violate someone's trademark accidentally. Especially if he gave his company or product a rather generic name. Like if someone called his product, say, "Password Manager", someone else might make a product with the same name without ever having heard of the original. Ditto if he has some simple logo or other graphics. If you did accidentally duplicate a name or graphic elements, well, in the US a court would likely order you to change your name or graphics and that would be the end of it, unless you refused, in which case you'd end up in court. US Courts have ruled that very generic names have limited trademark protection. An example I saw recently was "Main Street Auto Repair". A court said that the owner of that name could prevent someone else from opening a shop in the same town with the same name, but he couldn't sue someone in another town who happened to use the same name. This is why, by the way, companies often use made-up words for their product names. In your case, this should be a trivial issue. If he is claiming trademark to the look of the main menu screen, just change the colors or move some buttons around. If it actually went to court, you should be able to argue that the similarity was accidental and when you were informed you promptly changed it, and that should be the end of it. Depending, I guess, on how hard-nosed the judge is, etc. Patents are different still. A patent gives the owner the exclusive right to use an invention or process for a specified period of time. It doesn't matter if you invented the same thing entirely independently. Whoever filed the patent first has exclusive rights. There have been cases where an inventor lost out to someone with a similar invention because he submitted his patent application one day later. If this other person has patents that you are infringing, you are pretty much out of luck. | Generally, no, this will not violate copyright. Your end user might violate copyright, but that is their problem not yours. Your program is a tool, just like a word processor is. If I copy a Harry Potter book into a word processor that does not make the word processor maker liable. There is a concept of "contributory infringement", which I think is what you are concerned about. I don't know about Danish law in particular, but most countries would require evidence that you had reasonable knowledge that actual copyright violation was occuring, rather than just being aware that it might happen in theory. This is normally applied to file sharing services who have to have "notice and takedown" measures, file filters and the like. This isn't your concern as you never have any access to the files created by your users. You can also be found liable if you induce anyone to commit copyright violations. Don't draw your customers attention to the custom monster feature as a workaround for those copyrighted monsters, as that could be considered to be inducement. Also don't provide any "wizards" or similar tools which make it noticeably easier to duplicate the custom monsters (e.g. if you notice that the copyrighted custom dragon stats are all on a linear scale with dragon size, don't create a "dragon creation wizard" embodying that fact.) This assumes that your program runs entirely on the end user computer. Its different if you provide any kind of cloud storage for generated characters. | This is permitted so long as it doesn't violate a valid trademark or service mark (or a few equivalent rights in names that are comparable such as collective rights to market beef under the name "Waygu" only if it is produced in a certain area of Japan under Japanese law) that covers goods or services of the same type in the same economic market. A trademark arises either when a term acquires a "secondary meaning" associating its use in connection with a particular kind of good or services in a particular market with a particular provider of that good or that service, or by registration of the trademark or service mark. "Tresh" and "Cassiopeia" are not terms that inherently are related to software, so they are permissible to use as trademarks for software unless someone else already has established trademark protection for them. | Your lawyers should understand that you're dealing with a private company that can make and enforce its own policies when it comes to allowing access to the their store. If Google's policy is to require you to do research and diligence on a possible trademark infringement of your App, that's legal, as long as Google's requirements don't not violate local or national laws of the variant of their store. The idea that another company or individual can allege infringement, yet not communicate sufficiently with you or Google, may not seem fair, but as a response to that, Google can play it safe and not open themselves up to liability by removing your App or making you resubmit under a new name. That is outlined in Google's TOS, which you agreed to. Your only recourse is to keep talking to Google and keep trying to contact the complainant. | Check your license! By operating the original client, you might have agreed to a license, the EULA. Check that license for what it says about you being allowed to do with the product. In a recent case of Bungie vs. Elite Boss Tech, a US court found in a default judgment that a certain cheat software that would interact with both the game's client and the company's servers among other things did... constitute copyright infringement [as a derivative work] was a breach of contract [formed by the EULA and agreeing to the Terms of Service for the game] was interference with Contractual allegations [of other users that obtained the software] However, not all internet games or experiences are locked down like that. Other companies do offer an open API set or terms under which a client's software may be modified. As a very generous example, LindenLabs does for its SecondLife Virtual World, for which they provide not just the framework, but also the terms under which you are allowed to make a third party Viewer Sometimes, the Terms of service are rather hidden. For example, the Chinese Go platform Fox Weiqi operates in china. To get to the terms of service, you need to download the free client, go to Settings (via the cog), then choose 野狐围棋用户协议, which is Chinese for Wild Fox Go User Agreement. This links to https://edu.foxwq.com/complex/useragreement.html. The user agreement is of course in Chinese, but Google Translate manages to get that to English. It contains the following clause: 7.2 Unless permitted by law or with the written permission of Yehu, you shall not engage in the following acts during the use of this software: ( 1 ) Delete the copyright information on the software and its copies; ( 2 ) Reverse engineer, reverse assemble, reverse compile the software, or try to find the source code of the software in other ways; ( 6 ) Log in or use Yehu Go and its services through third-party software, plug-ins, plug-ins, systems not authorized by Yehu, or make, publish, and disseminate the above tools; ( 7 ) Interfering with the software and its components, modules, and data by itself or authorizing others or third-party software While it takes a court to see if the terms hold water and are actually enforceable because of how the EULA is offered, the face value of those clauses is, that it is forbidden unless you have a specific law that allows such or you obtain written permission. With that kind of possible liability that might cost millions, there might be serious legal problems. Read your license agreement and terms of service and consult a lawyer. | Yes Best is to call them and let them guide you to the right department. https://www.microsoft.com/en-gb/contact.aspx In reality you can give up. They will never ever give you the permission to use the icon, even if you'd pay for it. Why? Because as soon they give the permission to someone others will try to use it too and their legal stand would be more difficult since they softenend the use rights of that icon/intellectual property, opening doors for people who copy without thinking of the legal implications and scammers. EDIT: To add; As far I know you're not allowed to take stuff from wikipedia without noticing them/linking to them. That your app is free also doesn't matters. Maybe you're even showing ads in your app giving it a commercial goal. | 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. | Under US law, and I believe under the laws of most countries, each of the various photographs of the apple would be protected by copyright. Thew initial owner would be the photographer, or perhaps the photographer's employer, in each case. Copyright protects expression, including both words and image. It does not protect ideas. The idea of an apple is not protected. The specific representation of a particular apple would be. If the painter imitates the specific feature of the apple shown in the photographs, to the extent that the painting is a derivative work of one or more of the photos, then the painter needs the permission of the copyright holder(s). Without that permission, creating the painting is infringement of copyright. However, if the painter merely took the general idea of an apple, and created a new expression of that idea, without using any of the specifics of the photos, there there would be no infringement. If the photos were instead images of an imaginary thing, perhaps a dragon, or some invented machine of building perhaps, with the images created by perhaps a compute animation program, or by photographing a model, the legal rules would be the same. If the painter simply used the idea from the photos, there is no infringement. If the painter used sufficient specific detail so that the painting is a derivative work, then permission is required. Exactly how much detail must be used for a work to be considered "derivative" is a matter of judgement -- ultimately the judgement of a court if the matter is disputed. There is no clear bright line making that distinction. That C has commissioned the painter T to create the painting is not relevant, unless C is the copyright owner of the photos, or has secured permission from the copyright owner(s). If C validly grants permission, then there is no copyright issue even if the painting is a derivative work. It does not matter what technique or technical means T uses to create the painting. T may use a brush, a pallet knife, a toy car, drips of paint, or a compute drafting program. If, by whatever means, T creates a derivative work, then permission is needed or else it is an act of infringement merely to create the work. If the work is not derivative, then no permission is needed. Copyright law applies no matter what specific technique the creator of an image uses, provided that human creativity is involved. |
I have a old question. What is the law that says the military will not be formed inless a abuse befalls a United States of America American? I have a old question. What is the law that says the United States of America will not have a formed military and the United States of America Military will not gather, congregate or group unless an abuse befalls a United States of America American and at which time the United States of America Military will only from a court to determine if the abuse is severe enough to from the whole and complete United States of America Military forces? | There is no such law. The US Constitution provides that: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; (Article II section 2) The congress shall have the power (Article I section 8) ... To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; These powers were used to create the military very early in the history of the United States, and the US Army and US Navy have existed ever since. Other branches of the military were created later. | 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. | The US developed from an earlier kingdom, and the First Amendment enshrines the main issue that led to our departure from that kingdom. The underlying political premise has been that disagreement is to be dealt with rationally and not through force, such as where opinions contrary to those articulated by the government are squashed (in order to eliminate divisions). There have been numerous laws passed in the US to outlaw "contrary" speech including "disrespectful" speech, and they are constantly being overturned by the Supreme Court. Texas v. Johnson, 491 U.S. 397 and U.S. v. Eichman, 496 U.S. 310 are two recent reaffirmations that such laws are unconstitutional. The only way such a law can work is if the Constitution is amended to in some way re-write the First Amendment, like this. Outlawing indirect insults towards political figures ("not my Speaker of the House", "not my FBI director") would require an even more extensive suspension of the First Amendment. It is possible that at some time, a bill was introduced to outlaw saying disparaging things about POTUS, but I would be surprised if it got out of committee, because it would fail challenge in court. The most-likely retrenchment on our freedom of expression is likely to be a flag-burning law, which has relatively wide support in the US. There are a number of interpretive problems associated with the key concept "physical desecration". Even more interpretive problems would arise if Congress were given the power (via an anti-disparagement amendment) to outlaw "disparagement of public officials". Can one simultaneously "respect the Office of the President" and "disrespect the holder of the office"? As for specifically restricting the military, that's a challenging issue. It is a court-martial offense for a commissioned military officer to use contemptuous words against the President and Congress (10 USC 888), and by directive from the Department of Defense this also applies to enlisted personnel. SCOTUS in Parker v. Levy, 417 U.S. 733 articulated the Military Necessity doctrine, that "The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it". So "not my President" probably is illegal for soldiers. This article reviews various First Amendment issues as they pertain to the military. | 18 USC 960 states that Whoever, within the United States, knowingly begins or sets on foot or provides or prepares a means for or furnishes the money for, or takes part in, any military or naval expedition or enterprise to be carried on from thence against the territory or dominion of any foreign prince or state, or of any colony, district, or people with whom the United States is at peace, shall be fined under this title or imprisoned not more than three years, or both. "At peace" is not defined, but we can assume that a nation that the US is at war with would be exempt from this provision, then again it depends on what it means to be "at war" with a nation. | I don't know any specific on the US law, but a special protection of the Swiss coat of arms is very widespread. This comes from a provision in Art. 53 § 2 of the First Geneva Convention 1949: By reason of the tribute paid to Switzerland by the adoption of the reversed Federal colours, and of the confusion which may arise between the arms of Switzerland and the distinctive emblem of the Convention, the use by private individuals, societies or firms, of the arms of the Swiss Confederation, or of marks constituting an imitation thereof, whether as trademarks or commercial marks, or as parts of such marks, or for a purpose contrary to commercial honesty, or in circumstances capable of wounding Swiss national sentiment, shall be prohibited at all times. Because of the connection of the Red Cross and the Swiss coat of arms the US is obliged by international public law to prohibit the commercial use of that arms. I'm surprised to hear that law was repealed. Maybe it was transferred to some other place in the code? Often it is regulated next to the prohibition of the misuse of the Red Cross. | The list is enormous. For example, if subpoenaed to appear in a legal case, you must appear pursuant to the order. If ordered to pay child support, you must pay child support. If you are an executive in a company, you may not act on the basis of non-private information regarding the company. Your comment that "If it's not detailed on this list, you'll probably never be concerned with it, eg, gun registration laws and other situations that don't apply to most residents" applies to a number of things on the list, for example most people are not called for jury duty, probably the majority of people are not subject to property tax requirements. most people do not have to register for the draft. By adding "If X...", you can make these into universal rules – everybody that meets the filing requirements must file federal income taxes. Non-citizens have a few additional requirements, but they are a drop in the bucket compared to the general case, obey the law which applies to everyone. | As user6726 notes in an answer, the page you link to derives from 26 USC 7701. However, it does not reproduce the text accurately. There, "United States person" is defined at section 7701(a)(30), and it notably lacks anything corresponding to "any other person that is not a foreign person." It's possible that that language is motivated by some court decision, but it's also possible that someone just added it for the sake of symmetry with the definition of "foreign person" without thinking about the logical paradox that it might create. Looking at section 7701, I don't see any explicit mention of US non-citizen nationals. It appears that such a person who does not live in one of the 50 states or the District of Columbia falls under the definition of nonresident alien at 7701(b)(1)(B) even though such a person is explicitly not an alien under the Immigration and Nationality Act. I do not see any regulations correcting this oversight, but I suppose that in practice such people are indeed treated as US citizens. I don't know enough about the classification of nonhuman legal persons as foreign or domestic to have any ideas about whether there are similar ambiguities there. | 18 USC 960 provides a disincentive against such actions. Whoever, within the United States, knowingly begins or sets on foot or provides or prepares a means for or furnishes the money for, or takes part in, any military or naval expedition or enterprise to be carried on from thence against the territory or dominion of any foreign prince or state, or of any colony, district, or people with whom the United States is at peace, shall be fined under this title or imprisoned not more than three years, or both Also see 18 USC 959, covering enlistment. "At peace" is not statutorily defined, so it is not obvious whether the US is "at peace" with Ethiopia (Tigray war) or Russia (various offenses). A formal state of war has not existed between the US and another nation for 70 years. |
Are prosecutors members of the bar? In the so-called common-law countries (or common law adversarial system, or common law jurisdictions) are prosecutors members of the (state) bar? If so, is that a requirement? If so, does that mean that they are somehow under the bar's disciplinary jurisdiction? My references on the subject: Definition of Prosecutor Definition of Bar association. In this scene from The Client Susan Sarandon threatens to sue Tommy Lee Jones, who I understand acts as a Prosecutor, in front of the State Bar Would something like that be possible in common-law jurisdictions? | Yes, in general US prosecutors are licensed attorneys if they're practicing law. You don't necessarily technically need a license if your job is purely administrative, but to appear in court you do. They are subject to professional ethics requirements, and can be disbarred for violating them. There may be a state or two where they aren't licensed, but the common rule is that they are. | You can't normally ask the court to "recuse" an attorney, because "recusal" is normally restricted to the judge leaving the case. The more common term is moving to disqualify opposing counsel. | A prosecutor's discretion is almost unassailable. The main reason for this is to prevent prosecutors from having to defend in a legal forum every single decision made. In a civil matter, prosecutors have absolute immunity form being personally sued for their actions (again, to prevent a prosecutor from being sued from every single defendant). https://en.wikipedia.org/wiki/Prosecutorial_immunity Misconduct by prosecutors may be resolved by reversal or retrials of court proceedings. But this is not something that really has criminal penalties. https://en.wikipedia.org/wiki/Prosecutorial_misconduct#:~:text=In%20jurisprudence%2C%20prosecutorial%20misconduct%20is,is%20similar%20to%20selective%20prosecution. Occasionally, a prosecutor may be subject to discipline from the state's Bar. This is rare, and is not much of a deterrent. https://publicintegrity.org/politics/state-politics/harmful-error/misconduct-and-punishment/ Theoretically, a prosecutor who out and out breaks the law can be prosecuted. Examples seem to be rare, and are more about government malfeasance (expense reports, misuse of government equipment, etc.). Due to the above standards, proving criminal conduct around prosecutorial discretion will be extremely difficult, as will finding a fellow prosecutor willing to even go down that road. It is in no prosecutor's interest to set the precedent of prosecutors being jailed for their behavior. So, why has nothing happened? Because in general, prosecutors can get away with almost anything. And I will add, Because America seems to like it this way. | There are a lot more differences than this, but if your teacher sums up what he/she means by that sentence. Here, specifically, in Civil Law, the decision of the courts must comply with the laws as enacted, which means there are specific statutes required to make something illegal. Common Law features Stare Decisis which basically means that if Case A is decided in one way, and Case B is a similar Case to Case B, Case B must yield the same decision for all cases in that jurisdiction and lower courts below that court. This means that while statutes (laws) can be made by a legislature, the courts can "make law" by deciding cases. For example, some States in the United States and England and Wales only recently (within the past 30 years) adopted an actual law that made murder illegal? Prior to that murder was illegal under Common Law Murder that had been based on precedence from bazillion cases before that said it's illegal. Nobody bothered to write it down in an actual law. There are several other big differences such as Inquisitorial vs. Adversarial nature of courts, how and when punishments are decided (The famous "Just following Orders" Defense was given in part because of this difference and a lack of understanding over it.), who is the trier of fact vs. who is the trier of law, but as far as what is "Law" this is a good single summation of the difference in a single sentence. But it really shouldn't be condensed to a single sentence. | There is no public place to “file” that. When privilege is claimed and the other side challenges it then the person claiming privilege needs to establish somehow that the attorney client relationship exists and is pertinent to the question. In the normal course of things there would be an engagement agreement in the attorneys files. And not everything communicated between a client and attorney is protected by the privilege. It only covers legal advice and specifically does not cover discussions planning criminal activity. | It depends on the situation In a criminal case When the government is prosecuting a criminal case, they are represented by a prosecutor. For a federal case, that prosecutor would be a United States Attorney or Assistant United States Attorney (AUSA). For a state case, they'd be a District Attorney, Deputy District Attorney, or Assistant District Attorney. In civil cases Generally, the Federal government would be represented in civil cases by lawyers with no special title. In many cases, these would be lawyers working for the Civil Division of the Department of Justice, but other agencies also have lawyers to represent them in more specialized litigation—for example, the IRS Chief Counsel's Office. A state government would be represented in civil cases by lawyers from the state Attorney General's office (here is California's, for instance). Before the Supreme Court When the Federal government is before the Supreme Court, they are represented by lawyers from the Office of the Solicitor General. That could be the Solicitor General themself, a Deputy Solicitor General, or an Assistant to the Solicitor General. In cases where the government is not a party, the office may be asked for its input on a case by the Supreme Court via a Call for the Views of the Solicitor General. | The term "lawyer up" usually refers to a person asserting their right to silence and counsel, which means that police interrogation must stop. A lawyer would "lawyer up" in that sense if he was being interrogated by the law. Michael Cohen, on the other hand, retained an attorney because of the threat of legal interrogation. As a general rule, absolutely everyone who is the subject of a legal investigation should seek legal counsel, to protect their rights. Although lawyers are broadly trained in many aspects of the law, they aren't experts in all such aspects, so it would probably not be wise for a tax attorney to defend himself in a criminal trial, and a family law expert might not be the best guy to hire to advise you on a complex real estate matter. Since the particular case is highly political, added insulation in the form of an attorney between you and the investigators is to be expected. | I am assuming you are not the councilor. Civil matter you have no standing. The councilor does. Maybe the hotel bar does. I can’t think of anyone else who does. Criminal matter If a crime was committed in DC, the DC prosecutor is under no obligation to prosecute it. As a political matter, if you were a citizen of DC you could complain and try to get the prosecutor voted out next election. Political matter As a citizen of your city, it is a political matter: You call your councilman* or any city councilman really and ask them to begin impeachment or whatever similar action you have there. Then next election to try to get the mayor voted out. If you are unsatisfied with the council, try to get them voted out also. The cost of investigation is a cost of running a government. Someone could have chosen not to spend seven grand investigating a hundred bucks, but they did it. *Note this is called petitioning for redress which is the right that the current SCOTUS nominee could not recall off the top of her head. |
How to contact a government prosecutor? Do public prosecutors work for a city, county, or state, or does it vary by location? Are they called district attorneys, attorneys general, prosecutors, or something else. Specifically, if I have been a victim of monetary criminal matter, how do I find the prosecutor that has jurisdiction and how can I contact that person? Is there only one prosecutor that has jurisdiction or do I have a choice among several, such as depending on where I live, where the criminal lives, or where the crime took place? (I am asking specifically about a matter that involves a wrong-doer in Atlanta and a victim in New York.) To make initial contact, do I send an email, do I make an appointment, do I just show up at the prosecutor's office? On reflection, perhaps the crime took place over the internet. I paid by paypal and the other party did not use the money as agreed upon, pocketing it instead. So, where did the crime take place? | You do not contact the District Attorney's Office, the Police do that. You call your police department and they will dispatch a car to you. Meet with them and tell them the case. They will take the report back and get it to the D.A.'s office. The D.A.'s office will decide if there is a case or not. If they find there is a case, they will contact you for the next steps. It starts with a phone call to the police. | Law enforcement officers have a wide latitude when dealing with someone who is not following the law; in general they cannot issue you a fine if you are not speeding but they are not required to issue a fine if you are speeding. So if the LEO decides for whatever the reason that you do not deserve a ticket even if you were driving sobre the speed limit, he ello not issue it and that would be the end of it. Now if the officer issues the ticket, there is recourse. The most simple would be simply to forward additional evidence to the police department, even informally, to see if they rethink about it and void the ticket on their own. If they still refuse, there are always procedures to legally challenge a ticket, which may depend based on the jurisdiction and even the kind or amount of sanction. In general I would expect that it goes that far and you can show that it was indeed an emergency, even in the absence of a specific law a judge would invalidate the fine because it would go against the public interest. And if even that does not work, you may probably ask for a pardon. | This is a rather elaborate version of receiving stolen property. It is a crime because you know that the property is not yours and you know who it belongs to. The fact that funds were returned mitigates the punishment that might be imposed, but disgorgement of profits as well as principal would be a typical criminal restitution in such a case. A prosecutor could decline to press charges (and often would decline to do so), but would have the authority to do so. An analogous case that comes up more frequently is when an attorney takes client funds out of his trust account (either accidentally or intentionally) and then uses the funds in a way that produces a profit or avoids, for example, a late payment penalty, and then returns the funds improperly withdrawn from the trust account. This is still conduct for which attorneys are routinely disbarred and prosecuted criminally. Even if the person didn't know that the money belonged to someone else when it was used, the true owner of the money could sue for unjust enrichment for both the funds and the proceeds from the funds. For example, if funds were accidentally deposited in your bank account rather than the correct one due to a transposition of numbers in the account number, and you didn't notice this error, you would have liability to return not just the accidentally deposited funds, but also the profits from those funds, because both would be unjust enrichment. But, in an accidental case where there was no knowledge that the funds were wrongfully placed in your account, you could deduct from the amount to be returned any banking charges you incurred with respect to the transactions and it would not be a crime. | The best course would be to contact the public defenders office and explain the situation to their intake or consultation services. Remember, you don't have to be going to trial to avail yourself of their services and sometimes, helping cops makes the cops suspicious about you (it would not be the first killer who cozies up to the police to learn what they know about his crime). If the Public Defender thinks you're rich enough not to need their services, you should call criminal defense attorney practices. Most law offices will offer consultation free of charge as part of client intake, so they will be willing to hear your case and offer advice. In either case, check with the lawyer that attorney client privilege is in effect. If they say yes, explain in detail to them, everything you know and want to discuss, even if some of it could criminally implicate you in this or another crime. Treat it as your deathbed confession and you know full well which circle of hell you're going to if the priest doesn't absolve you of sins (okay, too Catholic... but the Lawyer is not going to turn you in if the privilege is in effect... he could lose his license to practice law over it... we can make all the evil lawyer jokes we want, but this is one of the few sacred tenants of their profession.). Listen to his advise. Also see if you can find a second opinion. It's not that the first guy gave bad advice, but the next guy might give you something different. If you still do not feel comfortable, then keep your mouth shut. If they arrest you for the murder, do not talk until you have an attorney present and prepare to tell him exactly what you did. Especially if you did do it. Always answer your attorney truthfully. | Not all illegal things are crimes. Lack of evidence. They are asked to testify, and they say "what I said in my book was a lie". There is no general law against lying, except when under oath. Statute of limitations. Saying "10 years ago I did smoke drugs" means that any offence is no longer prosecutable. Lack of details. Which jurisdiction were they in? When did they commit the act, how many acts? You cannot be arrested for being a "bank robber" or a "murderer". You are charged with "robbing Bank X on 123 Fake Street the Thursday 25 April 2018" or "murdering Jim Thio in January 2017". Otherwise the defendant would have a hard time defending himself (how to prove that you have not killed anyone at any time?) All of the above combined with prosecutorial discretion in the form that any possible prosecutor will most likely determine that bringing charges would be just a waste of time and resources. UPDATE February 2018: Just for the sake of completeness, a reference to the situation of Jacques Cassandri, who did boast about a serious crime(a robbery in a Societe Generale vault in 1976) in a book. Unfortunately for him, he made some kind of mistake/miscalculation and the crime had not yet expired, so he has become an example of someone being prosecuted by confessing a crime in a book. | I'd imagine that testimony from the defendant is rare enough that in the majority of cases, prosecutors do not meaningfully prepare for a cross examination. To the extent they do, I'd expect the preparation is similar to that for basically any other witness. So I wouldn't expect complicated flowcharts, because the general rule at trial is that you only ask questions whose answers are both known and helpful. So if I need to place the defendant at the OK Corral at 3 p.m., I'm only going to ask him where he was at 3 p.m. if I have evidence showing that fact is true -- maybe he gave a written statement to the sheriff, maybe he posed for a daguerrotype, whatever. I expect him to deny it, so I don't ask the question unless I have evidence more convincing than his denial. In this way, a defendant -- like any hostile witness -- is used less to provide any facts of their own, but rather as an involuntary narrator of my own story, authenticating evidence and validating the facts consistent with my theory of the case. | Absolutely not. Lack of authority Law enforcement officers do not have the authority to grant immunity from prosecution. The decision to prosecute lies with the district attorney's office. Courts have sometimes held that a promise of immunity by a police officer can make resulting statements inadmissible, but that's it -- the state is not bound by the police officer's promise to not prosecute, except in exceptional cases. They can gather other evidence and prosecute anyway. Prospective immunity The contract claims to provide immunity against prosecution for future crimes. Contracts against public policy are void, and I'm having trouble thinking of something which is more against public policy than a license to commit crimes. No one can offer that immunity through contract. In a recent trial of a Boston mob boss, he attempted to claim that a federal prosecutor had given him immunity for any and all future crimes for some time period; the court did not accept that, because a license to break the law is not a valid contract. Public authority There is a situation in which certain officers can grant authority to break certain laws: to catch bigger criminals. However, for fairly obvious reasons, there are extremely strict rules on when this is valid, both on the government procedure side and the claiming-the-defense side. The defense can only work if the defendant honestly believed the government had authorized his actions, if the government actually had authorized them, or if he followed official government legal advice. In this case, the defendant has no idea if government officials have agreed to the terms; he would have approximately no chance of convincing anyone he legitimately thought that the government approved of his actions. They certainly wouldn't be actually properly authorized, and he hasn't sought advice from the government. Other issues Police aren't the only people on this site. An investigation tends to involve one or more non-government agents who provide testimony in court. No contract with a private party can stop them from testifying in a criminal trial; certain relationships mean testimony isn't allowed (e.g. a lawyer can't testify about dealings with their client without client permission), but regular users could be required to testify against the site operator (possibly on the basis of actual immunity). Sources Public authority stuff: this Justice Department page, plus some discussion in this order. Prospective immunity: that same order. Lack of authority: myriad readings. | Once a case has been commenced, you can definitely lose, or you can probably lose. If you decline to proceed, you definitely lose. If you proceed, the jury (or judge as the case might be), might find some witnesses more believable than others and might find that the forensic evidence is not as convincing as it seems. Empirical evidence suggests that criminal trials reach the correct conclusion in about 90% of cases that aren't resolved on an uncontested basis. Generally speaking, the Crown is only going to press a case where the prosecutor subjectively believes that they are correct that the defendant is, at least, guilty of something. So, a Crown prosecutor can also justify "rolling the dice" in a case with a low probability of winning, because at a minimum, a factually guilty defendant (whether it can be proven beyond a reasonable doubt or not in a particular trial with a particular finder of fact) has to suffer through a trial which is a form of punishment (particularly if the defendant can't secure pre-trial release). Also, while the Crown prosecutor ultimately represents the state and not the victim, the victim of a crime is a quasi-client and sometimes a victim who often has personal knowledge of a defendant's factual guilt, really wants to have their "day in court" and a chance to present their case to the public for all to hear. Law enforcement officers working on the case may want it to go to trial for similar reasons. Strategically, bringing even weak cases to trial also makes a Crown prosecutors threat to go forward with a trial even in a seemingly weak case more credible and that can increase the prosecutor's negotiating power. Also, a trial always reveals information, and sometimes the information revealed in a trial that is lost can provide value in future law enforcement efforts. Finally, prosecutors are humans and people, in general, don't like to admit their own mistakes. So, they may go forward even when their case is weak because they don't want to admit that they were mistaken and would prefer to have somebody else say they were wrong than to admit error. The personality type that doesn't admit mistakes is pretty common in this area. |
If I'm the director of photography for a project, does the production company need a model release from me if I film myself in the project? I am the DP (director of photography) on a streaming TV show filmed in New York state. I am not employed by the production company, but rather work as a contractor with them. The production company gets model releases for all the actors and actresses that play roles in the show. I ended up playing a bit part in the show as a news camera man that I personally captured the scene using an aerial camera while I was in shot. This brought up an interesting legal question for me. Does the production company need a model release for my appearing in the show or does my DP agreement already cover it through my transfer of copyright ownership? As I understand it, as the cameraman, owner of the production equipment being used and the individual making the artistic decisions about the photography, the footage inherently is my copyright, which is then transferred automatically to the production company by contract. Since I am filming myself, it would seem to imply consent to be filmed. I'm unsure, however, if this consent would transfer along with the copyright or not. | Copyright and Model Releases are separate legal concepts Copyright belongs to the "author" of a "literary" work - the person(s) who first fixed the the work in permanent form (or possibly not - copyright in spoken words is possible in some jurisdictions). For a product of multiple authors (like a film) they are each an author for the purposes of copyright. Producers, directors, camera operators, cinematographers, sound technicians, screenwriters, editors, actors etc. are all authors of a film. A Model release is a different creature entirely - it is permission from the subject of a photo, video or sound recording to use their likeness for commercial purposes. They will need one of these. | You might be able to use a site like the Internet Archive to preserve the TOC even after the site is shut down. The real liability trap here is if the site does not have the authority to give you this license. If a user uploads a photo that they do not own, and you use it, you are infringing the copyright of the original owner. Innocent infringement is not a defense to liability (although it may reduce damages in some cases.) | It depends. Wikipedia is quite strict on its policies, and it only allows uploading images (and other media) that either are in the public domain or with a licence that allows to be reproduced (often, Creative Commons, CC). If you go to the details of the image it claims that the picture is licenced under CC, with attribution to Saffron Blaze. So most probably Saffron Blaze got permision to take the picture, and he distributed it with the CC-Attribution licence. When scrapping a web site for data, Google and other engines usually search for metadata (the robots.txt file) that tells them what to index and what to not. If a user gives them permission to index a picture by not stating restrictions in the robots.txt, they can do index it. Of course, in both cases it might be that someone uploads a picture that he does not have permission to share. In this case the situation will, of course, depend on jurisdiction, but many laws have provisions that ensure that, if the content provider is dilligent in addressing copyright issues caused by the users, they are protected. For example in the USA the Digital Millenium Copyright Act establishes "safe harbor" provisions that protects content providers if they give a way to denounce copyright infringiments and address those in a given timeframe. | 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. | united-states The flowchart included in the question is trying to summarize a rather large amount of legal uncertainty into one image. It must be emphasized that each decision point represents an unsettled area of law. Nobody knows which path through that flowchart the law will take, or even if different forms or implementations of AI might take different paths. The short and disappointing answer to your question is that nobody knows what is or isn't legal yet. To further elaborate on each decision point: The first point is asking whether the training process requires a license at all. There are two possible reasons to think that it does not: AI training is protected by fair use (see 17 USC 107). This is a case-by-case inquiry that would have to be decided by a judge. AI training is nothing more than the collection of statistical information relating to a work, and does not involve "copying" the work within the meaning of 17 USC 106 (except for a de minimis period which is similar to the caching done by a web browser, and therefore subject to a fair use defense). The second point is, I think, asking whether the model is subject to copyright protection under Feist v. Rural and related caselaw. Because the model is trained by a purely automated process, there's a case to be made that the model is not the product of human creativity, and is therefore unprotected by copyright altogether. Dicta in Feist suggest that the person or entity directing the training might be able to obtain a "thin" copyright in the "selection or organization" of training data, but no court has ever addressed this to my knowledge. This branch can also be read as asking whether the output of the model is copyrightable, when the model is run with some prompt or input. The Copyright Office seems to think the answer to that question is "no, because a human didn't create it." The third decision point is, uniquely, not a legal question, but a practical question: Do you intend to distribute anything, or are you just using it for your own private entertainment? This determines whether you need to consult the rest of the flowchart or not. The final decision point is whether the "output" (i.e. either the model itself, or its output) is a derivative work of the training input. This would likely be decided on the basis of substantial similarity, which is a rather complicated area of law. To grossly oversimplify, the trier of fact would be shown both the training input and the allegedly infringing output, and asked to determine whether the two items have enough copyrightable elements in common that copying can reasonably be inferred. | Consent in the GDPR sense? No. Consent in the more general sense of “agreement”? Sure. Under the GDPR, consent is only one of many legal bases for processing personal data. Consent requires an unambiguous indication of the data subject's wishes through a clear statement or affirmative action. Thus, consent cannot be “hidden” in another document – it would be ambiguous whether the data subject just wanted to agree to boilerplate terms of service or specifically consent to a particular purpose of processing. Indeed, Art 7(2) GDPR explicitly requires that “the request for consent shall be presented in a manner which is clearly distinguishable from the other matters”. Another legal basis is Art 6(1)(f) legitimate interest. A legitimate interest requires some interest that outweighs the data subject's rights and interests. This balancing test must consider whether the data subject can reasonably expect the processing to occur, given the data subject's relationship with the data controller. I would argue that an event venue does have a legitimate interest to film and photograph events, and that this interest outweighs the data subject's rights and interests at least for larger shots, but not necessarily for close-ups, portraits, etc. The event participants can reasonably expect the audience to be filmed and photographed. Indeed, the linked privacy policy (linked just after the part that you quoted) is very thorough and explains in detail what is happening. The table starting on page 9 describes the purposes of processing, the data being used for that purpose, and the legal basis for that purpose. Here, the relevant entry is: Purpose: Photographs of crowds at our festivals and/or events Type of data: (a) Identity Legal basis: (a) Necessary for our legitimate interests (to capture footage of artists performing at our festivals and events which feature crowd or to record images of our festivals and events for showreel and marketing purposes) This means: they are not asking for consent in the GDPR sense. They are relying on a “legitimate interest” instead. They have to inform you in advance about the processing of personal data – which they evidently did by providing the privacy notice – but they don't have to ask you. So what is that consent about then? The consent you quoted is more about personality rights: you would consent to “being photographed, filmed and sound recorded as an audience without payment, and to [your] image being exploited in any and all media for any purpose at any time throughout the world”. This is essentially a model release. | You can do whatever you like with posts made after you change the rules - you have to leave the previous stuff alone. The contributors' have accepted the terms of the licence: They own the copyright or have permission from the copyright holder to post it (the promise) They agree that it can be edited altered or removed CC-BY-SA allows people to copy the stuff off the website and republish it - this is way outside what the contributors agreed to. These people have given permission for their work to be altered but not copied. | This is a heavily fact-dependent question. Exactly how and how much your work "evokes" the original will matter. That said, your belief that "My understanding is that as this doesn't contain any mechanical part of the original movie it is fine." is not at all correct. If your new work is clearly based on the original work, it would be a derivative work. For example, if Shakespear's Romeo and Juliet were still in copyright, West Side story would have been a derivative work, and would have required permission. You would do well to consult a lawyer knowledgeable in this specific area, in your specific jurisdiction, as the detailed rules vary by country, although the general principles are pretty much world-wide. |
Is it illegal to publicly share technical information discovered by tinkering, if information is used to modify the device? I recently bought a product, let's say a car, with limitations intentionally introduced to the design, for example an electronic speed limiter. Being a bit of a tinkerer, I messed with my model until I figured out how to remove this limitation (i.e. remove the electronic speed limiter). If I were to publish this information online, telling other people how to modify their models, would it be legal? As another example, let's say I figured out how to raise the power on a brand-name microwave, or increase the cooking speed of a rice cooker. Provided the end result isn't in violation of any particular safety laws (and assume for the purpose that they do not), can I legally publish the information of how to do so? | 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. | You are correct that facts in general are not protected by copyright, and most raw data are facts. However, a collection of data may be protected by copyright as to its selection and organization. A use which copies such selection might possibly be copyright infringement. If data constitutes a trade secret it may be protected as such, and "improper" access might be unlawful. This would not apply to publicly available data or collections of data. If, to access a data set, one must sign or agree to a contract, that contract may limit the use of such data. Again, this would not apply to most publicly available data. | Here's where you went wrong legally: Suppose I legally obtain some digital image created by somebody else (e.g., by downloading from a public website). That, right there, is copyright infringement- unless the copyright owner has granted permission or the image is public domain you cannot copy it - this breaches "the right to make reproductions". By posting it on the web (assuming that it isn't itself an infringing copy) they have given implied permission for you to look at it in a web browser but not to copy it into a presentation even if that presentation is never presented. If it is presented then that makes the infringement worse - it adds breaches of "the right to communicate to the public" and "the right to use the work as a basis for an audiovisual work". How is this different from the computer wallpaper? It isn't. If you are using the one of the defaults that shipped with the OS then the license gives you permission. If you are using someone else's copyright without permission then it's a breach. There are defenses to copyright infringement but these are quite nationally variable - search this or other sites for "fair dealing" and "fair use". | Anything that helps you with your business and that you keep secret is a trade secret. The "keeping it secret" is an important part. Competitors are free to discover the same information themselves and use it, but stealing it from you is illegal. If a contractor needs to learn this information to do their job, you make them sign a non-disclosure agreement or confidentiality agreement which forbids them to pass that information on. That way, it remains a trade secret. If the contractor gives your trade secrets away, that is breach of contract and you can sue for damages. If a competitor pays your contractor to give them your trade secrets, that's not just illegal, it's criminal. On the other hand, if the contractor puts the information on his blog for example where everyone can read it, without having been enticed by someone to do this, then I believe your trade secret is gone and competitors can use it. Same as if you left documents on a park bench and your competitor finds them and reads them. You have to keep a trade secret a secret; if you fail to do so you lose. Asked about patents: If there is a non-disclosure or confidentiality agreement in place, then nobody can apply for a patent. The whole idea of a patent is that you get legal protection in exchange for disclosing your invention. Applying for a patent would mean violation of the non-disclosure agreement. | You are framing it wrong. It is not that "they have put a barrier" to public domain information, it is that they have added an additional source of that information. The new source has a barrier, yes, but that does not prevent you from accessing the same information elsewhere. If you own a copy of some public domain data, you are not allowed to prevent other users from accessing other copies (by claiming copyright infringement or the like); you cannot even prevent people from doing copies from the copies you did provide them. But you are not forced to allow other users to access your copy. Consider the logical conclusion if that were the law. The moment that you downloaded some public domain file into your computer, you would be forced to give access to your hard disk from the internet, isn't it? Would you need to leave your home door open if you happened to have a printed copy of the text there? Of course, there is a need to discriminate between "public domain" (without licence) and "not public domain but open licence" (BSD, CC, GPL, etc.). In the later case the licence could be tailored so that the work could appear in archive.org but that it would be illegal to provide it with the business model of Academia.edu1. But that would be possible only for works not in the public domain. 1 To be decided by a judge on the basis of the wording of the licence and jurisdiction. | Copyright doesn't protect methods, only particular fixed expressions. 17 USC 102 Some methods (but not algorithms) may be protected by patent. Diamond v. Diehr 450 U.S. 175 (1981) More exactly, "an algorithm, or mathematical formula, is like a law of nature, which cannot be the subject of a patent". However, in Diamond, the respondents here do not seek to patent a mathematical formula. Instead, they seek patent protection for a process of curing synthetic rubber. Their process admittedly employs a well-known mathematical equation, but they do not seek to preempt the use of that equation. Rather, they seek only to foreclose from others the use of that equation in conjunction with all of the other steps in their claimed process. Said another way: the algorithm cannot be protected, but if you are using the algorithm as part of a method or process that as a whole is patented, you would be infringing the patent. The paper does not have to disclose the patent - you could email the authors to see if they have any patent that protects any particular methods using the algorithm in the paper, but that doesn't rule out patents that the paper author is unaware of. | united-states In the United States, information released through the federal Freedom of Information (FoI) process, or any of the various state-level versions of FoI, is considered public information. The person who receives it may share it at will, or publish it. Indeed many such inquiries are made by news reporters who intend to publish the information, and many others are routinely posted to various web sites. I suspect that the law on this point in the UK is similar, but I have not checked it. | You can license the use of your IP only for certain uses, for example (most commonly) "non-commercial". The general template of permission is "You have permission to ___ as long as you ___". What the user is permitted to do, in your scheme, is something along the lines of "only distribute the output in this manner", or "not distribute code developed with this tool anywhere else". It's up to you to prove that someone violated that condition, if they did. |
Can people get in trouble for investigating or charging the president? Not word for word and please correct me. Is there a law like this? If so: Should any criminal investigation or legal action, investigation even a phone call that takes time from the president in office in any criminal investigation can be interpreted and considered a violation of this stature "The US president cannot be prosecuted for any crime while in office"? Unless it is a political offense like espionage is it a crime to use taxpayer money to investigate the president? Related: Can the US president be charged of crime such as murder while in office? | 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 | No Even if there were any evidence that any member of the US government were involved (there isn’t), that is a matter for the US justice system. The US is not a member of the International Criminal Court so no Supra-National body has jurisdiction. | In the United States who has the authority and what is the procedure to determine if conduct by an individual is "illegal"? You are conflating several different ideas here, which is probably the source of your persistent confusion. 1) Actions are legal or not Illegal: Not authorized by law; Illicit ; unlawful; contrary to law The law sets out certain things that you must do (you must stop at a red light) and things you must not do (you must not drive under the influence). Sometimes actions fall into a gray area of the law, or aren't addressed at all, but if something is spelled out, then it's very clear whether the abstract action is legal or not. Running a red light is illegal. Driving under the influence is illegal. There are definitions and specified penalties for both. 2) A person may or may not be guilty of an illegal action Guilty: Having committed a crime or tort Abstract actions can be legal or illegal, but people commit crimes. When someone commits a crime, they are guilty of that crime. This is true whether or not they are ever prosecuted, or even if law enforcement knows who the guilty one is. If someone runs a red light at 2 in the morning on an empty street, it's still illegal and thus they are guilty of running a red - but no one will ever catch them. If someone is shot in the middle of the street, then someone is guilty of shooting them. Again, the shooter may never be found, but whoever they are, they are still guilty. 3) An individual may or may not be guilty of the crime of which they are charged. Charge: the statement of the alleged offense that brings a person to court If law enforcement (whether your local traffic cop or the FBI) believes that you are guilty of a crime, they can charge you with committing it. They may be right. They may be wrong. But the suspicion of having committed it is enough to charge you. To continue the traffic example: If an officer sees you running the red light, they can write you a ticket (effectively charging you) for doing so. They may or may not actually be right (it could have been yellow or malfunctioning, for example), but law enforcement has the power to charge regardless. 4) A defendant may or may be found guilty and convicted. Conviction: In a general sense, the result of a criminal trial which ends in a judgment or sentence that the prisoner is guilty as charged. Finding a person guilty by verdict of a jury. This is where the presumption of innocence comes in - the default assumption is that the accused did not commit the crime that they are being charged with, and it's the prosecutor's job to prove otherwise. If the accused is found to not be guilty of the crime, then they (presumably) didn't do it - it doesn't necessarily mean the crime didn't happen, just that this specific person didn't commit it. Alternatively, the defendant can be found not guilty for other reasons - the judge or jury can determine that the crime didn't take place, took place but was justified, or the defendant wasn't in their right mind at the time. On the other hand, if they are found guilty, they're convicted and sentenced to whatever an appropriate punishment is. TL;DR Whether something is legal is determined by the legislature when they pass laws. Someone who commits an illegal act is guilty of doing so, even if they are never charged. Again, this is determined by the legislature when they pass laws. People are charged with violations of specific laws by law enforcement. Defendants can be found guilty by the court system. In other words, only the courts can determine whether a specific individual actually committed illegal behavior, but the behavior is still illegal regardless. | The most relevant federal Obstruction of Justice type is from 18 USC 1505: Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress— I'm not sure if passed Articles of Impeachment count as an "inquiry", and I'm not sure whether failing to "send" them to the other house is "corruptly impeding". Even if those two conditions are met, members of Congress are immune to judicial process for acts taken while they are in session, as part of the Speech or Debate clause of the Constitution (Article 1, Section 6, Clause 1): ...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 from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. So, if the person in question is not a member of Congress acting in their official capacity and intentionally endeavors to prevent passed Articles of Impeachment from being sent from the House to the Senate (e.g. a courier intentionally failing to deliver them, or an IT person preventing the electronic form from being copied into the Senate's database), I do not know whether that could be considered Obstruction of Justice, as I doubt such a situation has ever been adjudicated. Given the publicity of the proceedings, such an impediment would probably be found out or overcome so quickly that no one would be inclined to do more than fire the perpetrator. | The 5th amendment protects you from self-incrimination. If by possessing a firearm you are in violation of the law you cannot be compelled by law to reveal this information. If the police discover you have a gun in violation of the law you can be arrested and prosecuted for that offense. They cannot additionally prosecute you for not telling them about a gun. I thought there was a supreme court case about this specific situation, but the closest I can find for now is Haynes v. United States. The 7-1 majority held that people prohibited from possessing firearms cannot be compelled to register their firearms that they are possessing illegally. They are stopped by the police and asked this question. They answer truthfully. Then they can be arrested and prosecuted for the illegal possession of the gun. How does this square with the right not to self-incriminate? Or is asking the question considered to be a search? Police can generally ask whatever they want. If you choose to waive your 5th amendment rights, that's your mistake. Can the state prosecute this person for carrying the illegal weapon? The state can generally prosecute crimes it knows about. So yes, in this case they can. Suppose that next to the weapon a stash of illegal drugs is discovered, which was only found due to the action taken to secure the weapon. Can the state prosecute for that? The state can generally prosecute additional crimes it uncovers during investigations or other lawful actions. So yes, this can be prosecuted. | The legal standard for an indictment is "probable cause". This is the same as the standard for an arrest, an arrest warrant, a wiretap, or a search warrant. A conviction, of course, is subject to the much more demanding, proof beyond a reasonable doubt standard. Access logs along could provide probable cause for an indictment, even though they would probably not, standing alone, constitute sufficient evidence to convict. Also, the existence of the search warrant shows that a judge already found that there was probable cause that a crime was committed before the access logs were even reviewed, so there has to be some other evidence beyond the access logs out there and the access logs are corroborating the probable cause that was already found to exist against someone. It bears noting that federal grand juries almost without fail indict, although in some local state court systems, especially in rural areas (mostly in the Southeast U.S. since the West rarely uses grand juries and the North has higher standards of professionalism, especially in urban areas), where the quality of the law enforcement and prosecutorial work is lower, near automatic indictments are not a reality. | "Legal problem" is too vague to be included. "Investigation" needs a bit of refining; "lawsuit" is relatively simple (as long as you mean "actual lawsuit" not "idea that maybe we could sue"). There is no central list of all lawsuits against a given party, but you could theoretically check every jurisdiction to see if there is a lawsuit. That's a really big list, maybe in the millions if you want to be complete. You can use ordinary Google search to find announced lawsuits, typically by government agencies. Finding investigations is even more difficult: you will not be able to determine what investigations I am conducting. Even determining the existence of investigations by police including e.g. the FBI is hard to do. A government attorney is the one most likely to reveal that they are investigating some party with the intent to sue them. Again, you can't get a complete list, you can use Google to get an indication of who has announced an investigation (your results will generally not say whether the investigation was closed, unless you pursue that question as well). | There are many different kinds of laws, and many different ways of violating them. The main two are (1) criminal law, which generally addresses violations that injure the government's interests; and (2) civil law, which largely addresses violations that injure private parties' interests. Some conduct can violate both sets of laws: If you steal something from a store, the government can put you in jail for theft, and the store can sue you for the value of the item you stole. If you punch someone in the face, the government can can put you in jail for assault, and the person you punched can sue you to pay for their hospital bills. If you grope a woman in a dressing room, the government can put you in jail for sexual assault, and the woman can sue you for battery. Donald Trump falls into that last category. Jean Carroll has sued him for battery, but the government cannot prosecute Trump for the crime because enough time has passed that the criminal statute of limitations has expired. Moreover, a civil trial cannot subject someone to jail time because such a deprivation of liberty requires greater procedural safeguards -- jury unanimity, proof beyond a reasonable doubt, etc. -- that do not always apply to civil trials like this. Trump's status as ex-president has no bearing on the penalties the court may legally impose on him. |
Can non-competes be enforced after expiration? I had a non-compete that with company X that I could not work directly or indirectly for company Y for 10 months. I left company X and I became a contractor for company Z who assured me that the non-compete would not hold up for abc reasons (I was promoted so the old non-compete didn't hold up) and they were confident they could defeat the non-compete if necessary. They then placed me at company Y. I worked for 10+ months as a contractor and started as a full time employee recently. Now that it has been past 10 months, and company Y never found out or questioned my status, is there anything they can do if they found out I had been working there the whole time? thanks, | Can non-competes be enforced after expiration? Strictly speaking, it can no longer be enforced. Instead, company X may still obtain remedies for your breach of contract (I am definitely not "condemning" you, as I totally understand your position; I'm just explaining the vulnerability to which you are exposed). What you call expiration is more of a "freezing period" during which you were prohibited to work for company Y. But what matters is the concept of statute of limitations, which is the period during which company X may sue you for breach of the non-compete clause (and hence, breach of contract). The statute of limitations for breach of contract varies by jurisdiction. In jurisdictions of the U.S., typically it is three or six years. It was risky for you to rely on company Z's "assurance", especially if Z did not memorialize --in writing-- that it would defend you in the event that company X sues you for breach of contract (after all, Z alleged being "confident they could defeat the non-compete if necessary"). Furthermore, company Z's allegation that your promotion nullifies or supersedes the "old" non-compete seems devoid of merit, at least at first glance. One would need to know the terms of your contract with company X to ascertain whether company Z's assessment is accurate. | I would recommend talking to an adult person in HR. I'm quite sure they will notice that what your manager wants to do is more than dodgy, and doing something dodgy may be in the interest of your manager, but not in the interest of the company. The best thing is to go to HR, acting as if a mistake has been made, and point out to them what your start date was, and that the new contract has the incorrect starting date, and they need to fix this mistake or you can't sign the contract. If they insist you sign it, then you DON'T sign it. If they say you will be fired if you don't sign it, then you tell them that in that case you would get legal advice. BTW. You definitely don't sign this as it is. PS. This answer was posted on workplace.stackexchange, not law.stackexchange, so please don't complain if there is no legal content. | is it legally acceptable to state that 7.5 hours is the standard amount No. Because you are a contractor not employee, there is no "standard" to refer to. You are only entitled to what your contract provides for, that is £N per day no matter how much time you worked. That said, if there is no word "overtime" in the contract, you cannot use one to justify how much you charge. You can, though, charge for weekend days (unless the contract explicitly prohibits working on weekends). what should be done about going into the future with this work and asking for a revised contract? 1) Learn the lesson; 2) Make up your mind about what you want to be paid for: hours, days or output; 3) Discuss/negotiate contract terms with your clients. | That is, you don't even have to give them a copy of the contract. In the same way you might reference some legal code without actually copying the legal code directly into the contract. If you do not communicate material terms of the contract to your contractor, the contract will be unenforceable due to lack of meeting of minds. Referencing "some legal code", provided that that code is publicly available is fine: your contractor can look it up and decide if they are happy with it. But doing the same with "Independent Contractor Agreement #123" will only work if you provide a copy of it to your contractor. For example, it can be attached to the paper being signed as a Schedule. So, in a nut shell, abstracting prose out is fine as long as it is communicated/attached. | Jurisdiction has not been provided, so I've written a general answer: Not necessarily; often, such provisions clauses will have their own expiration dates, for example "for five years after signing, X", with X still being valid after cancellation up to 5 years(so if you cancel after 3 years, X is still valid for 2 more years), or "for two years after cancellations, Y"(especially common with non-compete clauses) where the time-limit of Y starts when the contract is cancelled. Other clauses are meant to indeed be enforced forever, such as some non-disclosure, non-disparagement, or indemnity clauses. For example, an indemnity clause in a contract that prevents a party from suing the counter-party for work done under the contract would be pointless if it could be bypassed by a party terminating the agreement. There are lots of legal limits, based on the terms of the provision, and its nature, all governed by the contract law of the jurisdiction under which the contract was drafted under and/or is governed by (this is generally obvious, except for some cross-border contracts, which generally will have a declaration as to whose laws apply). It is not inherently abusive, but can certainly be abused. What is considered abusive often varies from jurisdiction to jurisdiction (not only on this issue, but on legal issues in general). It depends on the jurisdiction, and generally on the terms of the provision itself. If the court asked to enforce the terms of the agreement feels that the provision is illegal or abusive, they won't be enforced (and possibly the entire document declared null and void, depending on the central-ness of the illegal or abusive provision; some provisions specifically state that invaliding the provision doesn't invalidate the whole contract to try to prevent this). If they don't feel the provision is illegal or abusive, they will generally enforce it. | There is no law (that I can find) that requires the mason to keep records, and therefore require them to be produced, for work carried out that long ago. I have not been able to locate the applicable legislation for 2006 but, on the (near certain) assumption that it was either the same as now or has been superceded, businesses only need to keep records for 6 years according to the Revenue's section entitled Keeping records: If you run a business, you must keep certain records for tax purposes. Your records can be used to confirm information contained in your tax returns and they should clearly show the accounting process. If your accounts are prepared by an agent or accountant, they may keep your records on your behalf. However, you are ultimately responsible for your record keeping. If you are in a partnership, the precedent partner is responsible for keeping records. You must keep the original of these documents for six years. This retention period is mirrored for limited companies at section 285 Companies Act 2014: An accounting record required to be kept by section 281 or information or a return referred to in section 283 (2) shall be preserved by the company concerned for a period of at least 6 years after the end of the financial year containing the latest date to which the record, information or return relates. That said, there's no harm in asking. | Does a contract become null and void if some or most of its terms were not followed by one (or both) of the parties? No. Parties' temporary or systematic waiver of their contractual rights does not alter the validity or terms of that contract. Parties entitled to resume enforcement of their rights anytime. A party's noncompliance with his obligations gives the counterparty a viable claim of breach of contract, although the proper approach would be to first try to solve the dispute outside the court. In the employment scenario you describe, the employee is entitled to --at least-- back pay as per the second contract (the difference between $75 and $50) subject to the statute of limitations, which under NJ is six years for contract disputes. See Hagans v. Nickerson, Superior Court of NJ (Oct. 2022), (citing NJSA A:14-1(a)). This precludes the recovery of some of the back pay if "the employee wishes to enforce during his 7th or 8th year of employment". A "retroactive" enforcement of other rights might be available, depending on the nature of those rights and other details. But nothing prevents the employee to henceforth enforce all of his rights pursuant to the current contract. Can the employer argue that the employee "waived his right" to the second contract by not enforcing it and acting as if it never existed? As explained above, no. Nor does it make sense for the employer to argue in terms of "a right to the second contract". A contract establishes a set of rights [and obligations], whence "a right to a set of rights" would reflect the employer's poor understanding of the ramifications of the contract he signed. | Do I have standing to sue a credit bureau or lender after being approved for a loan but being prevented from signing due to their error? Unfortunately, no. The email you got from the loan agency reflects that no contract was formed yet. The email merely is the loan agency's expression of interest to proceed toward the formation of that contract. Absent that formation of the contract, even if for reasons beyond your control, you are not entitled to the benefits or consideration(s) the contract would provide. Nor would the lender be entitled to your compliance with the terms of that contract, terms which might not even be informed --let alone known-- to you. There is no legal obligation from one party to the other. Lastly, the agency's or bureau's faulty process/questionnaire is not actionable either. Lender's reluctance to employ an alternative method is within his freedom of contract. |
Does disordely conduct apply when on private property? Bob is in his home watching TV when he hears a knock on the door. It is the Police and they would like to speak to Bob. They claim that Bob is suspected of a crime and would like him to open the door (They don't have a warrant, someone just thought it may have been Bob as they saw someone who looks like Bob. Bob has been home all night.) Bob refuses and tells them to get off his property. They refuse to leave. So Bob closes his window blinds, and goes back to watching TV. The Police continue to knock on the door loudly, yelling for Bob to open the door. This enrages Bob because his favorite TV show is on and they are disturbing him from watching it in peace. So Bob opens the window blinds, and starts yelling expletives at them, telling them several times to leave his property. Bob yells so loud that his neighbors come out to look at the commotion. Police inform Bob that he is being arrested for disorderly conduct (not the crime Police originally came to the house for). Can Bob be charged with disorderly conduct in this situation? Does disorderly conduct have any time, place or manner restrictions? Does the 1st Amendment have a higher level of protection in one's home in regards to what is "orderly" conduct? How likely is it that Bob will actually be prosecuted for this criminal charge? I'm looking for an answer that will describe the qualification of having broken disorderly conduct laws inside of a person's own home. Since this might be state specific regarding the letter of the law. Choose which ever state you wish that has the strictest wording of the law. | So my answer depends heavily on a clarification. Are the Police Suspicious or do they have a warrant? This is a big difference in the two behaviors as the former is not a thing, from a strictly legal perspective, and the police should not be harrassing Bob, who doesn't want to talk to them, when they should be making calls to get a warrant (If the police think Bob is being disorderly, they will arrest him and Bob should zip it, get an attorney down to the station, and let the Lawyer yell at the cops... and the judge... and the prosecutor and whoever else... If it's the latter case, they don't need to ask Bob to have Bob come outside... they can kick in the door and arrest Bob or remove him as part of executing the warrant. That's why you have them. In the situation as described, it reads like there was some crime in the area and the police think Bob may have some knowledge about it (he need not have done it, they could be looking for a witness). Bob does not have to say anything to the cops as per his rights against self-incrimination, so Bob tells them he does not wish to speak to them, possibly in an irksome manner and the Police won't take no for an answer. Perhaps they really think Bob might be the criminal... this doesn't necessary mean they have evidence to arrest Bob on. Perhaps Bob was identified by a guy off of security camera footage... maybe it was Bob, or maybe it was Bob's evil twin he never knew about and Bob's been home all night Keeping Up With The Kardassians (anyone knows Bob knows he can't stand going a week without knowing what Kim and Kanye are doing). Either way, it could be enough for a search warrant but just wanting to talk without a warrant, Bob can refuse and they need to respect that. Again, it's probably a bad faith arrest, but the street is not the place to have that fight... save it for the courts. | I am sympathetic to your problem but there is probably not a legal solution: at least not an easy or cheap one. To help you clarify a whole mish-mash of issues I will address each of your points. frequently calls false noise complaints on neighbors resulting in police action. If the person genuinely believes that these complaints are valid, even if they do not end up being substantiated, he is within his rights to make such complaints. If you can document an ongoing pattern of unproven complaints this might amount to harassment and you could then seek a court order that he stop the harassing behaviour. However, if even a few of these complaints are proven this would become much harder. stands in front of the building in a menacing way as people enter/exit. He is entitled to stand wherever he likes in whatever "way" he likes. This is only an issue if the person entering/exiting has a reasonable fear that he will he will visit actual harm upon them, o, of course, if he actually does visit physical harm upon them. If so, then this is assault and can be reported to the police or be the basis of a civil action. hates black people. So, he's a bigot - this is not actually illegal. Discriminating against someone on the basis that they are black is illegal, hating them on that basis isn't. hates Middle Eastern people and Muslims. Ditto. constantly pounds on the floor/walls/ceilings. It can't be "constantly" - it might be often or even frequently, if you intent to take legal action hyperbolic language is not going to aid your case. To make a real complaint about this you would need to diarise each occurrence. Notwithstanding, unless he is damaging someone else's property or is violating a noise ordinance this is not illegal. screams curses at children. Clearly reprehensible behaviour: not clearly illegal. Unless this is assault (see above) or qualifies as offensive behavior under the criminal code wherever you are (unlikely) then he can scream whatever he wants at whoever he likes. Again, a pattern of such behavior may constitute harassment. Continues to park in handicap parking despite not being handicap, and receiving very expensive parking tickets. This is illegal and he is being punished for it. Unfortunately the expression Don't do the crime, if you can't do the time. has a corollary: if you are willing and able to take the punishment then you do as much crime as you want. And to add to the list, I suspect he's been putting nails in my car tire, always on the same tire, on the inside wall of the tire; I just replaced my 5th tire in 3 months. This is a crime. If you can get evidence to prove it then you can report him to the police and/or sue him for the damage. You have stated in your comments that you will be asking another question specifically about filming him, so I won't address this here. Is there some sort of legal incentive I've not clearly communicated to management to evict him? That depends on if any of his actions are actually grounds for terminating his lease and, if they are, the landlord wants to do so. A remote landlord who is getting his rent on time and not having their property damaged has no incentive to evict a tenant: no matter how annoying they are to others. It is possible, that you have a case for breaking your lease and/or suing your landlord for damages as you are not getting "quiet enjoyment" of the property. A suit along those lines may resolve the matter because either you or he will be evicted. Consult a lawyer. If he actually is insane, what sort of liability for his actions does he have? The same as anybody else. Liability for civil wrongs is an objective test of what a reasonable person would be liable for: it is not based on the specific characteristics of the person. | "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. | Theft is of course illegal in all US states, and pretty much every other jurisdiction. In the US that is a matter of state law, not federal. It could be reported to the local police, but it might be hard to prove. Both landlord/tenant law and privacy law are largely matters of state law in the US, not federal law. Such laws vary a good deal in different states. In many states a landlord is allowed to enter the rented premises, usually on "reasonable" notice, or without notice if there is an emergency. If the landlord actually lives in another part of the house, and simply rents a room to the tenant, the landlord may be able to enter the room more freely than if it was a separate apartment or house. In many cases where there is a written lease or rental agreement, it will specify under what conditions the landlord or landlord's agent may enter, and how much notice is required. What does the lease in the current case say about that? | I feel that a person, not the subject of arrest, should be protected by the 4th amendment if they choose to remain in their vehicle, even if “ordered” to exit the vehicle by an officer. The intuition is fine, but is basically incorrect. I’m most interested to know: How would a driver (1) Politely (2) determine if a given instruction to exit the vehicle must be complied with, and (3) decline the instruction without giving the officer “cause” or otherwise damaging a potential case? From a practical perspective the only workable response is to comply. There are times when this is done without a reasonable suspicion (or in some cases probable cause) or other legal basis, but it is pretty much impossible for you to dispute this one the spot. Most of the time, the officer will have the legal authority to order you to leave the vehicle. If they order you to exit the vehicle despite not having the legal authority to do so, the right course of action is to comply and then to file a complaint with the agency employing the officer or to bring a civil lawsuit against the officer. There are good answers to a basically duplicate question at How can you tell if you have to follow a police officer's instructions? | Was/is it permissible for judges in the US to talk ex-parte like that? No. Ex parte interactions of that sort are not allowed. See, for instance, Disciplinary Counsel v. Bachman, 2020-Ohio-732 (Dec. 18, 2020) and Maze v. Judicial Conduct Commission, 2019-SC-0691-RR (Dec. 17, 2020). An example of less recent decision but with a reporter citation number is Comm'n on Judicial Performance v. Bozeman, 302 So.3d 1217 (2020). For situations of imminent risk of irreparable harm, procedural law provides for ex parte motions and ex parte petitions, such as this granted petition for Personal Protection Order. See M[ichigan]CR 3.7003(G). But the scenarios you depict fall short of the necessity for which ex parte provisions are intended. do the above scenes in the movies essentially portray judicial misconduct? Yes. A judge's house is inappropriate for communicating, let alone ex parte, his ruling (I am not knowledgeable of the films but my understanding of your description is that that judge made the ruling on the application). As for The Untouchables, any evidence of jurors' & judges' conflict of interest and likely bias has to be filed in court and comply with procedural law so that all parties have an opportunity to litigate the matter. | Actually, neither the council nor a private owner are responsible for illegal actions by unauthorised people on their property. This is obvious: if an intruder enters your property and, while there, shoots someone you cannot be held responsible. However ... Since you have made them aware that there are intruders on their property acting illegally and causing a nuisance to the neighbours and they have done nothing they are quite likely negligent, even recklessly negligent. Rather than sue them, consult a lawyer and get them to write a letter that if they do not take action by X date you are going to sue them. | Denver lawyer David Lane has said, “The First Amendment lives in a rough neighborhood and if you can’t stand the neighborhood move to China … or somewhere the First Amendment does not exist.” "One man's vulgarity is another's lyric." Cohen v. Cali. 403 U.S. 15, 25 (1971) At this point, we need to define illegal as used in your question. For instance, do you mean "you can face any form of punishment"? If so, this question is extremely broad and governed by multiple sets of laws. Additionally, one should note that this is a Federal Question. The First Amendment, through the Due Process clause applies to states as well. Therefore, there will be extremely little discrepancy (if any - first impression issues being the main differences probably) between the States,. The FCC can limit profanity on air. Additionally, Title 18 of the United States Code, Section 1464, (Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both. ) prohibits the utterance of any obscene, indecent or profane language by means of radio communication. The USPTO can limit Trademarks with "vulgar" meaning. (See EDIT below for update.) In School: High school student's First Amendment rights were not violated in suspension for uttering obscenity, regardless of whether she was merely repeating and returning words originally directed at her, particularly where words were clearly disruptive as they were heard by 90 students in cafeteria and, in opinion of assistant principal, were “fighting words.” Heller v. Hodgin, S.D.Ind.1996, 928 F.Supp. 789. Fighting Words: These seem to be words that would invoke, or are likely to invoke a fight. Fighting words claim upheld: Arrestee's speech when crowd gathered near fallen tree that had blocked traffic constituted unprotected fighting words, so that his arrest under city disorderly conduct ordinance did not violate his First Amendment free speech rights; arrestee's repeated use of the word “bitch,” his accusation of matricide directed toward his sister, his use of the phrase “fucking queer,” his pushing of third party and his raised voice all tended to show that his conduct, under the circumstances, had tendency to provoke physical altercation. Fighting words claim not upheld: Detainee's profane words to police officer as officer conducted Terry stop, “son of a bitch,” while unpleasant and insulting, were not “fighting words,” given officer's confirmation of fact that words did not cause anyone to fight or become angry; thus, words could not constitute violation of disorderly conduct statute and in turn could not supply probable cause for disorderly conduct arrest. In addition to fighting words, true threats and incitement to imminent lawless action are not protected under the First Amendment. Additionally, the government can regulate free speech in public schools (hence Free Speech Zones) and while in their employ (no yelling at your boss if you want to keep your job). It is not part of the main question, but free speech inside the court room. Well, the Judge is pretty much king in a courtroom. What he says goes. (more or less, like nothing toooooo crazy). In a courtroom, if you do something a Judge doesn't like, he can hold you in contempt of court. (You get no jury for contempt cases.) EDIT: Since I wrote this answer, new law came out from the Supreme Court in Matel v. Tam, 582 U.S. ___ (2017). The Supreme Court affirmed the finding of the Federal Circuit that the disparagement clause [is] facially unconstitutional under the First Amendment’s Free Speech Clause. Simon Tam, lead singer of the rock group “The Slants,” chose this moniker in order to “reclaim” the term and drain its denigrating force as a derogatory term for Asian persons. Tam sought federal registration of the mark “THE SLANTS.” The Patent and Trademark Office (PTO) denied the application under a Lanham Act provision prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a). Tam contested the denial of registration through the administrative appeals process, to no avail. He then took the case to federal court, where the en banc Federal Circuit ultimately found the disparagement clause facially unconstitutional under the First Amendment’s Free Speech Clause. The decision aptly concludes with: "If affixing the commercial label permits the suppression of any speech that may lead to political or social “volatility,” free speech would be endangered." |
Can I amend a contract after end date I'm a freelance web developer and I entered into a contract with a client in August 2018. The contract was set to end and product delivered by October 5 2018. However, due to the client changes in ideas and work in progress, we went way past that end date and now I am only going to deliver the final work in 2 days. Given that there is a clause in the original agreement which states that in case of changes in ideas and the work takes more time at my sole discretion, then the client will allow more time to deliver. All of that is good. However, I want to change the end date of the Original contract to November 2 2018 but I am not sure if that's possible, given it's already past October 5. Can I actually amend the original contract now and say the end date changed to November 2nd 2018 and then amend some sections of the contract as well, to remove some sections and also to add some sections? | A contract is terminated by performance when all parties have completed their obligations. So, when you have delivered and they have paid and any other obligations incidental to that have been completed (such as the expiry of any warranty or guarantee) then the contract has ended. There are other ways of terminating a contract but they are (hopefully) not relevant here. What you have in your contract is not an end date but a date by which you were obliged to complete one of your obligations. Not delivering by that date is technically a breach of the contract which would entitle the other party to sue. However, there is a mechanism in the contract for varying the date for delivery which you have done and the client has agreed to. Note that there is an implicit term that you will exercise any powers you have under the contract (such as extending the delivery time at your "sole discretion") in good faith - if your client rejected your proposed revision and sued, you would have to demonstrate that the revised date was reasonable in the circumstances. You should not unilaterally materially amend a written document that records a contract - doing so entitles the other party to terminate the contract. | They are inclusive if the contract says they are, they are exclusive if the contract says they are. What does your contract say? The lease starts on 14/1/2016 This is the point at which the tenants rights begin - they can take possession from 12:00:00 am 14/1/2016. This date is included in the lease period The lease ends on 13/1/2017 This is the point at which the tenants rights end - they must be out before 12:00:00 am 13/1/2016. This date is excluded from the lease period. I have no doubt that the magistrate had a view on this but as a mediator, it is not their role to express their view: its for the parties to determine a solution which may or may not be informed by knowing the exact legal position. | What happened is that you created a legal mess. You are obviously on the hook for copyright infringement. The maintainers of the project will scramble to replace your code with newly written code. They will likely ask your company which code they are complaining about - that puts your company into the problematic situation that they shouldn't identify code that isn't theirs, that it will be hard to sue for infringing code when they didn't give the project maintainers a chance to fix it, and that everything they identify will be replaced. Since it is your actions that caused the trouble, anyone suffering damages from your actions can sue you. | It depends How good is your (legal) English? For example, do you know the legal difference between "will", "shall" and "must"? Or, the difference between "employee", "subcontractor" and "worker"? Or the difference between "bankruptcy", "insolvency" and an "act of bankruptcy"? Contingency What are you going to put in your dispute resolution clause? Do you prefer mediation, arbitration or litigation? Will it be a one size fits all or will it be escalating? What happens if one of you dies? Or emigrates? Or divorces? Or is convicted of a crime? A financial crime? A violent crime? A sexual crime? Or what if such is just alleged but not proven? What happens if the company ceases to exist? Or is sued? Or is acquired by someone else? Or by one of you? Who is responsible for insuring the subject matter of the contract (if anyone)? To what value? If the person who should doesn't can the other person effect the insurance and claim the premium as a debt due and payable? Not all of these will be relevant to your contract. Familiarity How familiar are you with this sort of contract? Is this something you do all the time or is this a one off? For example, I am happy to enter a construction contract without legal advice because that's my business and has been for many years - I know my risks and how to manage them, inside and outside the contract. However, when I set up shareholder's agreements, wills and business continuation insurance with my partners, we went to a lawyer. What is your relationship with the other person i.e. how much do you know and trust them? Stakes If the contract is not very important (which is something that varies with the participants, for some people a million dollar contract is not important for others a $5 one is), so that if, by screwing up, you are OK if you lose everything you've staked then write it yourself. Alternatively, if the contract is vitally important to you and your heirs and assignees unto the 6th generation, I'd get a lawyer to write it - its pretty cheap insurance. How long the contract lasts will be a factor in this - a contract that exposes you to risk for 3 months is different than one that does so for 25 years. Basically, its a risk reward calculation. TL;DR Contracts only matter when relationships break down. If you reach for the contract then you can expect that the other party will be playing for keeps and that contract is your only defense against the worst they can do. If you are happy with your skills in mitigating against a cashed-up opponent who wants to see you go down no matter the cost then draft it yourself. | If the dispute is over the return of a $5000 deposit, that is probably small enough that it can go to small claims court (the limits are set by the particular state). However, consulting an attorney may well be a wise idea, so that you know how to make your case. The problem is that it's apparently you who wants to break the contract (because you don't want to wait for the contractor to do the job). The basis for a suit that would be most advantageous to the plaintiff here would be that the contractor has breached the suit w.r.t. the deadline. Since there is no written contract, the dispute would hinge on exactly what was said, for example did he promise to complete in 15 months, or did he say that such projects typically take about 15 months? Is 36 months an unreasonable time frame – if so, that would favor the plaintiff. Then the dispute would focus on issues of weather and supplies, and whether in light of those facts the contractor had delayed the work unreasonably. In my city, 15 months is an unrealistically short time, 36 months is more typical. It's not that you can't DIY these arguments, but discussing the argument with an attorney could help you correctly frame the legal argument. | am I required to send the stuff back? No, but you should be able to prove that you met the conditions of the original contract between you two. There is no gift. There is a compensation that forms part of the contract between the offeror and you. The offeror's preference to call it a "gift" does not change the legal fact that his offer and your acceptance to complete Nightwave Season 2 constitutes the formation of a contract. From that standpoint, you are entitled to keep the items he mailed to you as long as you honor your part in that contract. You are right by conjecturing that a party is not allowed to unilaterally alter a contract. Any modification has to be agreed upon by all parties to that contract. However, a consent or agreement may be inferred from the parties' subsequent conduct. Hence the best way to pre-empt or supersede any such inference consists of letting that party know that you disapprove of the belated alteration(s). The absence of a written agreement can only complicate matters, though, since it appears that neither party has an objective, directly credible way to prove the terms of the original contract. Perhaps such terms can be deduced from the subsequent emails that he has been sending you, but that is impossible to ascertain without knowing the wording of the subsequent communications between you two. Lastly, enforceability of your contract is less clear if completing Nightwave Season 2 through someone else's performance amounts to an unlawful act. Not being knowledgeable of the terms and conditions of that game (?), I am unable to state with certainty whether the offeror could lawfully recover from you the items he mailed. | Raise the question with your employer If you believe that you are an employee and not a contractor then there is presumably something you want from your employer. This may be additional wages and entitlements that you would have or will become entitled to for past or future work respectively. Or you may have been injured and want workers' compensation. Or terminated and you want redundancy pay. Whatever it is, work it out and raise the issue with your employer. You might want to consult an accountant or union to help you. They may acknowledge that you were incorrectly classified and give you what you want. Winner, winner, chicken dinner! Or they may dispute it. If so, you need to follow the dispute resolution processes at your workplace. These typically involve informal discussions, escalating to mediation and then to a workplace tribunal run by the government. You will almost certainly want to consult a lawyer or union to help you - given that you don't know where to start the learning curve is likely to be too steep. In virtually every jurisdiction if people are employees at law they can't choose not to be. in british-columbia the relevant law appears to be the Employment Standards Act although it's not unheard of in edge cases for a person to be an employee under one law (e.g. workers' compensation) and a contractor under another (e.g. income tax). From the linked site: The overriding question is “whose business is it?” Is the person who is doing the work doing it as a person in business for themselves? If you are working "for" your own business you are probably a contractor. If you are working "for" your employer's business you are probably an employee. For example, if you are an accountant with several dozen clients, maintain your own business premises and charge for your advice based on the amount quoted rather than by the hour, you're a contractor. If instead, you have 2 clients, work from their premises at set hours and get paid by the day or week, you're an employee with 2 jobs. In edge cases these are not cut and dried - Google are Uber driver's employees. In Australia: no. In California: yes. In the UK: yes. | There may be violations of consumer protection and/or advertising statutes here by the online store, but the common law position is that: The website's owner is making an invitation to treat Based on that, you are making an offer The contract comes into place when the website's owner accepts your offer. The time of contract formation is "when the parties give objective manifestation of an intent to form the contract." You would need to read the site very carefully, in particular their terms and conditions, acknowledgement page and/or email to see if they are actually accepting your offer or if there are conditions attached. If there is no clear, unconditional acceptance then there is no contract at that time; this applies even if you have paid for the goods. If this is the case (and I strongly suspect that it would be for most online stores), then their acceptance of your offer and the formation of the contract probably does not come into effect until they "give objective manifestation of an intent to form the contract" by shipping the goods. Up until that time there is no contract and their only obligation to you is to promptly refund your money. |
Is a loan contract valid if a different amount than was stated was borrowed? If there is a contract written that entitles one party (the lender) to give another party (the borrower) X amount of money (e.g., £700) and the lender only gives some fraction of that (e.g., £300) on account of the borrower not requiring the full amount, is the contract invalidated on account of not containing the right amount (or rather the borrower not being given the full amount)? | If by invalidated you mean you do not have to pay it back, no it is not invalidated. The way a loan is supposed to work is that you are given the money and then you could spend it or use the unused portion of the money to pay back the loan. The $400 that you did not use would technically be considered payment on the loan and you would owe $300. | The mortgage is not relevant in the way you think it is What matters is who owns the property. The owner(s) of the property must agree with the tenant (or, more likely here, boarder) on the terms. The owner(s) need to agree between themselves how to split the income although for tax purposes it would generally be assessed in proportion to the owner’s shares. Note that the mortgage may not allow tenants or boarders or may require the permission of the mortgage. | Do I have standing to sue a credit bureau or lender after being approved for a loan but being prevented from signing due to their error? Unfortunately, no. The email you got from the loan agency reflects that no contract was formed yet. The email merely is the loan agency's expression of interest to proceed toward the formation of that contract. Absent that formation of the contract, even if for reasons beyond your control, you are not entitled to the benefits or consideration(s) the contract would provide. Nor would the lender be entitled to your compliance with the terms of that contract, terms which might not even be informed --let alone known-- to you. There is no legal obligation from one party to the other. Lastly, the agency's or bureau's faulty process/questionnaire is not actionable either. Lender's reluctance to employ an alternative method is within his freedom of contract. | It is unlikely that you could successfully sue the bank for breach of contract, but of course the first thing you should do is carefully read the agreement and see exactly what they promised. It is understandable that you would like to get your money right now, but that isn't necessarily guaranteed under the agreement. Assuming there is no statement in the agreement as to how long it will take them to deposit the reward once requested, they would have "a reasonable time period". I located on of those agreements, which says that it will be deposited 90 days after completing the requirements. If that is what your agreement says and after 90 days still no money, then you should speak to the branch manager and request timely compliance with the agreement. It would cost more than $600 to sue them, and the court won't punish them extra for missing a deadline (assuming this was not a deliberate and willful refusal on their part). | An incomplete list: Getting the money. How did you plan to get paid? Credit card? Paypal? Integrating those into a website in compliance with their terms of service is not easy. (I wouldn't touch credit card numbers, in particular, even with a ten-foot pole. Too much liability risk for weak implementations. Too many highly skilled attackers to pounce on any mistake.) Distributing the App. Places like the Apple App Store have their own terms of service, especially regarding payment and in-app purchases. At a guess, Apple would reject your app, but if they allowed it, how does your withdrawal policy fit with the 30% cut they want from the initial transaction? Holding the money. So there are user accounts with a credit balance that can be withdrawn again. Would you be able to repay them if all users withdraw at the same time? Where do you keep the money? Currency risks. Say international customers pay in currency A, which the payment provider transforms into currency B. Then they want their money back, but exchange rates have changed. What do they get? Knowing your customer. There would be money laundering concerns. Do you have the infrastructure to identify your customers? Can customers change the (re)payment method from one account to another? Can you handle withdrawals if a user no longer has the same credit card, for instance? Scammers leaving you to hold the bag. Say a scammer tricks a victim into making a deposit, and then finds a way to redirect the withdrawal (see above). Would you be able to deal with the legal and administrative fallout? | No, a contract cannot require a breach of law. Any such contract is invalid, but a clause may limit the extent to which it is invalidated, to only such terms as actually or require a breach of law. | It doesn't seem as if the bank is discriminating in the way you suggest. They offer two types of account: (A) accrues or charges interest and (B) does not accrue or charge interest. The bank says you can choose A or B whatever your religion. You the customer choose A or B, possibly depending on your religion. So I do not see what cause of action you have or what damages you have suffered. Therefore I don't think you could sue them. | Preface and Caveats The question doesn't specify where this happened. I am providing an outline of the way that most U.S. states would handle this situation, if the fats are as they are much more likely to be and not as claimed in the question probably due to a misunderstanding of the underlying transaction. I identify areas where state laws most often vary and don't describe those areas of the law in detail since that is impossible without knowing where this happens. This is a matter of state law and varies from state to state, although most U.S. states are quite similar until you get to the fine details. Atypical language in the contract between the contractor and the client could also lead to a different conclusion. I don't know how this would be resolved in a non-U.S. jurisdiction. Background: The Structure Of A Typical Construction Loan Financed Construction Project In business and contractual disputes you can only understand the answer if you understand the underlying business transaction, which the question itself doesn't spell out very fully. The fact pattern identified in the question is so unusual that I strongly suspect that there is a misunderstanding of the facts, or an inadvertent misstatement in the language used in the question due to sloppy writing that flows from not appreciating the importance of some key facts. The transaction was almost surely structures more or less as follows (for background, I'm presenting a more general very of this kind of transaction rather than the simple one with no subcontractors or material suppliers involved, because this context helps someone understand why the laws are written the way that they are written.) Usually, the client owns real property, takes out a construction loan from a bank secured by the real estate, and hires a general contractor. The client will usually make some down payment to the general contractor who will take care of paying the subcontractors and material suppliers, and will pay the balance of the amount due to the general contractor through proceeds of the construction loan disbursed by the bank which are drawn as the work is done and payment is earned. Typically, each drawn cycle, which is often monthly for a smaller project and weekly, biweekly or semimonthly in a larger project, materials suppliers and subcontractors submit invoices and lien waivers to the general contractor based upon the work done. If the work is complete, a complete lien waiver is submitted, if he work in only partially finished, a partial lien waiver is submitted. The general contractor substantively reviews the invoices based upon a physical review of the construction site and a review of the subcontract. If there are problems it is rejected and must be resubmitted by the material supplier or subcontractor. If it is approved, the general contractor attaches that invoice as a supporting document to a draw request for the draw cycle summarizing all validly submitted invoices from material suppliers, subcontractors and itself, and also attaching a partial lien waiver from the general contractor. Then, the general contractor submits that draw request to a bank officer handling the construction loan as an agent of the property owner-client, and also a client representative for approval. The bank officer and client representative make a much less probing review of the draw request, looking only for obvious irregularities or suspicious amounts, and if everything is in order, they approve the request. Then, the bank write a check in the draw amount approved to the general contractor. The general contractor then disburses the invoiced amounts to the materials materials suppliers and subcontractors and pays itself the amounts that it has earned. Sometimes, however, the general contractor gets a valid invoice from a material supplier or subcontractor, and receives funds from the client in the form of a downpayment or a loan draw, but doesn't pay the subcontractor or material supplier with those funds. Also, sometimes, the general contractor does work that it is entitled to be paid for or incurs an obligation to a material supplier or subcontractor, but the client doesn't pay or the bank doesn't disburse the funds requested even though the request is valid. When a general contractor, material supplier or subcontractor doesn't get paid for work that is actually done at a particular piece of real estate, the law gives the firm that wasn't paid for its work on that particular piece of real estate what is called a mechanic's lien encumbering that piece of real estate. The details of how a firm with a mechanic's lien gives notice to the world of its rights, the priorities of lien's vis-a-vis each other, and the way that mechanic's liens are enforced varies significantly from state to state. But typically the notice must be given very promptly and not long after notice of non-payment is given, a lawsuit to foreclose on the real estate encumbered by the lien is commenced. An unpaid material supplier or subcontractor, in addition to its lien rights, can also sue the general contractor for breach of contract, and sometimes also for misappropriation of disbursements from the client or the bank. An unpaid general contractor, in addition to its lien rights, can also sue the owner of the property for breach of contract. The Facts In The Question and Analysis The first paragraph of the question tells us what went wrong. The client paid an employee of the general contractor (probably a project manager) instead of the firm the employee worked for (basically embezzling the money by deceiving the client into thinking that the employee was authorized to receive a payment to the employee's firm on its behalf when that wasn't the case), and the firm of the employee who was paid now wants to get paid. This happens and lawsuits usually follows when it does. But exactly what happens next depends upon the facts in the next to paragraphs. The next two paragraphs of the question, however, are probably confused and incorrect. The next two paragraphs say: Two weeks later, the client received a letter from the contractor's lender asking the client for money owed to the contractor, saying that if it was not paid, the client could be double charged. Does the client owe the contractor's lender? What probably actually happened is that the finance office of the contractor submitted a draw request to the bank officer in charge of the client's construction loan with the bank, and also gave a notice of the draw request to the client. The client tells the bank officer not to approve the draw request because the client has already paid the draw request directly to the employee of the contractor (probably the project manager) without the knowledge of the firm the employee worked for. What Happens Next If The Facts Are As I Believe Them To Be? When this happens, the finance officer at the contractor firm talks to the client figures out what happens and then talks to the employee to whom the payment was made. If the employee promptly turns over the funds the the contractor firm, the finance officers at the contractor firm scolds the employee for screwing up the system and the client for making a payment to the wrong person and there is no harm, no foul, and the matter is over. But if the employee who took the client's money doesn't turn over the money which the client can prove to the contractor firm that he paid to the employee, several things are likely to happen. Non-Lawsuit Actions: The client will direct the bank not to pay the draw request. The employee who took the money from the client is fired (no big deal, he was probably long gone). The contractor firm and/or the client will often, but not always, report to the police that the employee embezzled the funds from the client, and if the police find it credible, will issue an arrest warrant. The main reason not to do so is that the facts are uncertain enough that the police and prosecutor don't want to touch it (e.g. the client paid the employee in cash and didn't get a receipt, or the employee when asked says that the payment was made but was a "tip" or was payment for something unrelated), or the client and/or the contractor firm don't want to harm their reputations by making public the fact that there was a theft on this job. Three lawsuits could be brought, although, in practice, these might be consolidated as claims against different parties and cross-claims between defendants, in a lawsuit brought by the contractor, or in some other configuration. The contractor firm sues the employee who took the money for converting money from a client intended for it (probably both as a tort and as a breach of fiduciary duty by an agent of the construction firm). The contractor firm sues the client for breach of contract. The question is about the liability of the client in this second lawsuit. The client might also bring a counterclaim against the contractor for negligent supervision of its employee if the employee did indeed abscond with the money and the facts support that counterclaim. If the client prevailed on that counterclaim, the judgment on the counterclaim for negligent supervision (e.g. if the contractor knew that the employee had a history of doing things like this and didn't warn the client) would be setoff against the breach of contract judgment, rather than being a defense to the breach of contract claim. The client sues the employee for fraud, conversion or theft. What Are The Rights Of The Parties In These Lawsuits? In the second lawsuit, the client has breached the contract. The contract said to pay the firm, the client paid someone else, and so the obligation under the contract was not satisfied. The disputes in the lawsuit between the contracting firm and the client will be over whether the employee had apparent authority to accept the funds as an agent of he contracting firm, over whether the payment that the client says was made to the employee was made at all, and over the purpose of the payment if a payment was made to the employee but the employee claims that it was a "tip" or a payment for something else (e.g. the employee also had a catering side hustle and the employee says it was for catering services). The issue of whether the client made the payment at all may be hard to prove if the payment was made in cash and the employee didn't provide a receipt and will come down to the credibility of the client and employee's testimony at trial. if the payment was made with a check or credit card, bank records will make it an open and shut case on that issue that will probably not be disputed at trial. If the facts reveal that the employee had apparent authority to accept the funds from the client for the contractor firm and that the payment was for work on the project and not something else, then the the payment made by the client to the employee satisfies the client's duty under the contract even if the employee wasn't actually authorized to receive the funds for the contractor firm. So, the client wins and the contractor firm's sole remedy is to sue its employee for misappropriating the client's funds. On the the other hand, if the employee did not have apparent authority to accept the funds from the client, or the payment was for something other than work on the project, or the client fails to prove that the payment was ever made, then the client owes the money to the contracting firm and must pay the contracting firm for the amount due (plus interest, litigation costs and possibly attorneys' fees depending on the terms of the contract). The client may pay that obligation out of separate funds of the client's own, or may authorize a the bank officer to make a draw on the construction loan to pay the amount owed. The construction loan bank of the client wouldn't sue the client or demand payment from the client for the amount that should have been paid to the contractor firm but was instead paid to the employee. It didn't pay money to someone it shouldn't have paid it to unless the client authorized the bank to do so. And, the bank won't pay the contractor without the client/borrower's say so. If the client authorized a draw payment from the construction loan to the employee rather than the contractor firm, the client still owes the bank for what it paid to the employee at the direction of the client (in addition to all other draws on the project), although the client may have a suit against the bank officer for negligence in administering the loan by failing to flag that the payee was wrong (which might lose but isn't a sure loss). The amount owed to the contractor firm proceeds under the analysis set forth above. What If The Facts Are Right? If, improbably, the facts as stating in the question are actually what happened, the client will owe or not owe the contractor money under the same analysis as above. But the client will not have liability to any company that the contractor got a loan from (which would not encumber the client's real estate), since the client has no contractual relationship with the contractor's lender. Post-Script On Double Payment Prevention Laws The question hinges on the unfairness of the client having to possibly pay twice for the same construction work. In some situations, where the general contractor firm is at fault for causing the double payment to happen, the law protects the client from double payment, even though those laws don't apply here. I explain why these laws don't apply below. Basically, the client has to eat the double payment when the double payment occurs because the client screwed up though no fault of the general contractor and the general contractor doesn't benefit from the double payment. Some states have laws designed to prevent property owners, often only residential property owners having work performed on their own residences, from having to double pay for work done in some circumstances. But these laws usually only apply when the client pays the general contractor firm as the client is supposed to, satisfying his contractual obligation, and the general contractor doesn't pay the subcontractor, causing the subcontractor to sue the general contractor for breach of contract and the owner to enforce the subcontractor's mechanic's lien. In those situations, the double payment prevention law eliminates the subcontractor's mechanic's lien rights when the client pays the general contractor in full, and the subcontractor is left only with a lawsuit against the general contractor who didn't pass on the client's or the client's bank's payment to the general contractor for the subcontractor's share of work to the subcontractor. In this case, the double payment laws usually wouldn't apply because the legal issue here is whether the client paid the contractor, or was deceived by the employee into paying someone other than the contractor in an act of conversion/embezzlement/fraud. |
Does a bail-jumper have any recourse from being apprehended with the help of illegally obtained information? Say that a person is a bail-jumper, that is, someone who fails to appear in court after being let out on bail. If they are apprehended by a bail bondsman with the help of illegally obtained information, do they have any sort of recourse? To give a concrete example, Motherboard reported that a company sold 911 location data, a practice which is illegal. Bail bondsmen were frequent buyers of this information and used it to track down bail jumpers. Does a bail-jumper have any recourse from being apprehended with the help of illegally obtained information? | Does a bail-jumper have any recourse from being apprehended with the help of illegally obtained information? No. The bail-jumper has no recourse from being apprehended with the help of illegally obtained information for reasons discussed at greater length below in response to another question posed which is somewhat broader. Say that a person is a bail-jumper, that is, someone who fails to appear in court after being let out on bail. If they are apprehended by a bail bondsman with the help of illegally obtained information, do they have any sort of recourse? The person apprehended has very little recourse. The relevant case law has held that an apprehension of a bail-jumper by a private sector bail bondsman or a private sector bounty hunter hired by a private sector bail bondsman, is not "state action" and hence not subject to the constitutional protections that apply to illegal conduct by law enforcement officers acting under color of state law. This is true even though bail bondsman attempting the apprehend a bail-jumper is given profoundly broad statutory authority to take actions that would otherwise be illegal for a private person to engage in when doing so, and even though the bail bondsman is, in substance, enforcing a direction of a court which is a governmental agency. Certainly, nothing equivalent to the exclusionary rule or Miranda or a lawsuit against the bail bondsman under Section 1983 for a violation of the bail-jumpers civil rights would be available. (Also, the exclusionary rule that applies to exclude evidence obtained illegally in violation of the 4th and/or 6th Amendments doesn't operate to prevent a criminal defendant detained by law enforcement from being detained on an outstanding warrant, even if the arrest is based upon illegally obtained information, although if law enforcement did it, the bail-jumper could bring a 1983 actions against the offending law enforcement officers subject to qualified immunity.) The bail-jumper would probably have a right to sue the company that disclosed the information illegally for breach of a privacy tort if this was done in a timely fashion. But, attorneys' fees can't be recovered in a case like that, the statute of limitations is typically short, and damages that could be awarded would normally not extend to any harm involving the criminal defendant's failure to be successful in bail-jumping. So, ordinarily the damages would be nominal at best. Likewise, there might be a claim against the bail bondsman for participation in a civil conspiracy with the company that provided the information to commit a privacy tort. But, this has all of the downsides associated with suing the company providing the information, and also, would pose an additional problem: it is quite likely that a suit against the bail bondsman by the bail-jumper for acts occurring while the bail-jumper is jumping bail is either contractually waived by the bail-jumper in a bail bond agreement with the bail bondsman that courts would uphold despite the fact that it arguably involves an intentional tort by the bail bondsman, or would be barred by a bail bondsman's immunity from liability created under an applicable state statute or the common law of that state created by judicial decisions. Furthermore, in some states, a suit like this by a bail-jumper against the bail bondsman and also against the company providing the information, would be barred under the equitable doctrine of "unclean hands" that bars someone who has engaged in illegal or improper conduct in connection with the claim for which relief is sought from utilizing the courts in connection with that set of facts. Realistically, probably the best legal strategy for criminal defendants who have obtained private bail bonds would be to bring a class action against the companies that provide the information and the bail bondsmen who have used it, ideally brought on behalf of criminal defendants who are not bail-jumpers as well as those who are bail-jumpers, seeking injunctive relief only to prohibit continuation of this practice prospectively, subject to contempt of court sanctions from the issuing court if the company or bail bondsman defendants did so. | It is a felony to escape from a jail; see California Penal Code section 4532. (Escapes from a prison are covered in section 4530). However, California law recognizes a necessity defense when a crime is committed in order to avoid "significant bodily harm". (See the link for other important elements of the defense.) This defense would probably only be viable if after escaping, the inmate turned himself in as promptly as he reasonably could, once clear of the immediate danger of harm. He could go to any police station or law enforcement office; or he could call any police agency, explain the situation, and wait for them to come and arrest him. He would then presumably be taken to a different jail. If the inmate thinks the jail is unsafe, he can sue the state in either state or federal court (the latter as a civil rights case). It's unlikely that a court would order his release on this basis; more likely, they would order the state to improve conditions in some specific way, and they might award monetary damages to the inmate if he is injured. He also would probably not be able to stay out of jail during the suit. If the state arrests him, they'll put him in jail unless a court orders his release (or he's granted bail, or his case is otherwise resolved). If he hides to avoid arrest, then he's a fugitive. I seem to recall there's a general principle that fugitives don't have access to the courts. | The bouncer is employed (or (sub)contracted) by the owner/lessee of premises - someone with the right to evict persons from their private property per the common law rights to exclusive use of one's property. When the bouncer evicts you, they are exercising this right on behalf of and as the agent for the owner, who could do it, but instead has assigned limited agency to the bouncer to do that for them. Entrance to (and remaining on) a property may be authorised and revoked at any time - at the time that consent is not given or is withdrawn, you become a trespasser and the police may be called upon to forcibly remove you from the premises. For example, I can have a party at my house, but if I don't like someone, I'm entitled to ask them to leave. I could also ask a friend to ask that person to leave, if I didn't want to do it myself. Note that bouncers aren't empowered to physically evict anyone except for the general right to use reasonable and proportionate force. For instance, someone that was just standing around in the nightclub probably couldn't be physically thrown out, but someone who was causing harm to themselves or others could be restrained or repelled as appropriate (and if restrained, you'd need to be very careful to do so in the course of effecting a citizen's arrest, otherwise you'd probably be committing false imprisonment). There may be statutory provisions that bestow additional rights and responsibilities upon bouncers, but this is the basic premise. I'm fairly certain that this would apply in all Australian jurisdictions; probably in all common law jurisdictions. | Probably not until and unless the process server gets the correct address and actually serves you. Then the documents should explain the matter fully. If the person who was attempted to be served took note of the court involved, and told you what court it was, you could call the Clerk of the Court and inquire. Otherwise you would need to ask every possible court, which would take a great deal of time and effort. You have not been lawfully served (at least not in most US jurisdictions) until you have been served in person, or perhaps by mail, or by publication in a newspaper, or in some other way considered lawful in your jurisdiction, but serving a person at your old address is not likely to be valid service. (Valid methods differ from one jurisdiction to another, and in some situations differ by the kind of case involved.) If the person at your old address gave the server your new address, s/he will probably be along shortly. If a process server is given an address by the client (plaintiff), s/he may well go there first, and only do research later in case the first address is wrong. One need not worry about it until the papers are served, but it might be wise to read the legal ads in any nearby large newspapers for a few weeks, in case of service by publication. The papers should give the name of a court, and perhaps the name of a judge. You can call the clerk of the court and find out if the papers are legit. There may well be a docket no or case no or some other identifying umber, as well. This will help in verification. Docketed cases may be listed on a court web site. A comment asks is service by publication is still possible. It can be. According to the Michigan Court Rules Rule 2.106 (D): (D) Publication of Order; Mailing. If the court orders notice by publication, the defendant shall be notified of the action by (1) publishing a copy of the order once each week for 3 consecutive weeks, or for such further time as the court may require, in a newspaper in the county where the defendant resides, if known, and if not, in the county where the action is pending; and (2) sending a copy of the order to the defendant at his or her last known address by registered mail, return receipt requested, before the date of the last publication. If the plaintiff does not know the present or last known address of the defendant, and cannot ascertain it after diligent inquiry, mailing a copy of the order is not required. In addition, subrule (E) provides that: If the court orders notice by posting, the defendant shall be notified of the action by (1) posting a copy of the order in the courthouse and 2 or more other public places as the court may direct for 3 continuous weeks or for such further time as the court may require; and (2) sending a copy of the order to the defendant at his or her last known address by registered mail, return receipt requested, before the last week of posting. If the plaintiff does not know the present or last known address of the defendant, and cannot ascertain it after diligent inquiry, mailing a copy of the order is not required. The moving party is responsible for arranging for the mailing and proof of mailing. Thus if the plaintiff does not know and cannot determine the defendant's address, or has an incorrect address but thinks that it is correct, a service by publication (or even by posting) may be lawful, if the Judge so orders, without the defendant getting an individual copy of the documents by mail. This requires some unlikely events, but is possible. | 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. | My recollection is there's a big difference between money and property. I found a 1929 law journal article that supports my recollection. The owner of stolen property is entitled to have it returned. If the person who obtained it from the thief didn't know it was stolen, the person didn't commit a crime, but must give up the property and is not entitled to any compensation (unless the person can get compensation from the thief). A person who innocently receives money is the holder in due course, and gets to keep it. The victim's only recourse is to get compensation from the thief. | If there's a reason to believe that your machine has data that would be relevant to a lawsuit, then yes, it is subject to inspection under Fed. R. Civ. P. 34: A party may serve on any other party a request ... to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: ... any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form. So if there's a lawsuit where there becomes a question about what you downloaded from the network, then it's quite plausible that your device could be demanded or subpoenaed. But that's not the same thing as "forfeiting" your device. The normal procedure in such a case would be that the agency's lawyers would notify you of the demand, and you would take your device to an ESI expert, who would make a digital image of the device's hard drive. The parties would then fight about what portions of that image they are allowed to access, but you would have your device again while that was going on. | 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. |
questions about COBRA I worked for a small business for 2.5 years. I recently resigned and put in my two weeks. I was told to clean out my desk and leave immediately. The business is in Michigan, USA and employs 7 people. I asked my former employer if I could do COBRA for my health insurance until my benefits kick in at my new job. He said he would look into it, he called me back today and said he would let me do it but I would have to pay him my premiums directly, not the insurance company and that I would have to stay 2 months ahead in payments. Am I eligible for COBRA from such a small company? Does it make sense that I would need to pay him and not the insurance company? If 1 and 2 are yes. Is he required to provide me any official documentation in regards to the full costs of my premiums if 1 and 2 are true, can he require I keep 2 months ahead in payments? | Employers with 20 or more full-time-equivalent employees are usually mandated to offer COBRA coverage. https://www.investopedia.com/articles/insurance/11/intro-cobra-health-insurance.asp He is not required by law to offer it to you, but is probably trying to work with you. After employment, the individual is required to pay the entire premium, and at times it may be topped up with an extra 2% toward administrative charges. They can charge you administrative fees on top of what you would have paid. Being that he does not have to offer it to you by law, he can do what he wants. | The insurer can absolutely deny paying any claims if they discover that you misrepresented something in obtaining your policy, or you failed to notify them of relevant changes in accordance with the policy's terms. In fact, even changing the "garage" location within a state can affect your premium. You should call your insurer and provide them an honest and complete description of the regular use of the car. It is up to their underwriters whether they will continue to provide insurance for that use, and whether they will change your premium accordingly. Update regarding the question update: The insurer could not legally deny a claim for any insured damage prior to notice of cancellation, so long as there was no misrepresentation and you had paid your premiums. As to when an insurer can legally cancel a policy: This is first a contractual question, and their policy should include terms and conditions that address this. (E.g., they might reserve the right in the policy to cancel it for any reason at any time, in which case it's almost certainly legal.) Note that all policy terms must be approved by a state's insurance commission. I happen to remember that Massachusetts has some very unusual terms and restrictions for car insurance, so I wouldn't be surprised if the Massachusetts entity discovered that their policy on the out-of-state car was non-compliant and they had to cancel it. The great thing about the tight regulation of auto insurance is that if a claim on a policy is denied, or if a policy is improperly cancelled, then you can file a complaint with the state regulator, and those tend to get resolved quickly and in the insured's favor. Therefore, you should simply review your policy terms and the cancellation notice. If anything seems out-of-order you can call both the insurer and your state regulator. | Question: Do I need a EU passport or EU ID card to legally work in the EU (or establish that I have the right to work in the EU)? Or is a certificate of citizenship sufficient? Legally, your right to work is not contingent on this and there is no Europe-wide rule that makes holding any document mandatory. Importantly, if you do start working anyway, you are not committing a crime and cannot possibly be banned or forced to leave the country. You do have the right to work from the day you became an EU citizen and if any doubt arises down the line, you should be able to clear it up later. In practice, employers are sometimes supposed to check you are allowed to work (and for that would require some proof of your citizenship) but they don't necessarily need a passport or ID. What's typical on the other hand is that you have to provide an official proof of address (in the countries where you have to register your address with the authorities) and the local social security, insurance, or national tax number. Both of these will require dealing with the authorities and will be considerably more difficult, if not downright impossible, without a national ID card or passport (in fact it can even be difficult with a passport). I worked in multiple EU countries and I don't recall always having to present my ID to employers. I recall at least one instance (in Germany) where I could start working without one (it had just been stolen) and another one (in the Netherlands) where I started on the day after I arrived, without official address nor tax number (BSN). In both cases, I was expected to solve these issues within the first month and you risk a fine if you don't register within a week or two but it was neither illegal nor impossible to start working before all the formalities were completed. None of this means I would be completely comfortable about being months without a passport. But the main issue for you will be entering the country and what your employer's HR department is prepared to tolerate, not any sort of legal obligation to hold a passport to work. Note that in one of the cases I described above I went to the local consulate to get an emergency passport. It wouldn't have been possible back in my country of citizenship but there are some special procedures when you reside abroad. These rules change all the time and depend on your country of citizenship but that could be worth a try. | is it legally acceptable to state that 7.5 hours is the standard amount No. Because you are a contractor not employee, there is no "standard" to refer to. You are only entitled to what your contract provides for, that is £N per day no matter how much time you worked. That said, if there is no word "overtime" in the contract, you cannot use one to justify how much you charge. You can, though, charge for weekend days (unless the contract explicitly prohibits working on weekends). what should be done about going into the future with this work and asking for a revised contract? 1) Learn the lesson; 2) Make up your mind about what you want to be paid for: hours, days or output; 3) Discuss/negotiate contract terms with your clients. | Disclaimer: I am not familiar with US law, so this answer is from a general perspective. It should apply in most jurisdictions, though. Are there any laws or regulations which I can use to convince a hospital's billing department to talk to me, despite the fact that they have a clear policy otherwise? No, I don't think so. A company or organization is generally free to decide for themselves who will or will not communicate with you - I don't think there is any law giving you a right to choose. How would this even work? What if the people you ask to talk to are overworked, on vacation or just not qualified? However - you do have another, more important right: To be considered valid, a bill must provide credible evidence that the charges are justified. You cannot just ask someone to give you money, you must actually provide a reason why you are owed money. In this case, this means the hospital must send you a bill that you can understand and verify. To get this: First, stop bugging them over the phone. Once a point is reached where legal action seems likely (like in your case), any information you get is only really useful to you when in writing. So do everything in writing. It's fine to talk to them if it helps solve the problem - but insist on getting things in writing afterwards. The first thing you need to write is a formal letter that you refuse to accept the bill, because you cannot verify it. Outline in details what parts you cannot understand/verify, and ask for the information you need (such as what the codes mean). Once you have received a satisfatory explanation of the bill (which may take multiple letters), you go through it with a fine comb, and dispute any items that you think are unjustified. You may need the help of a lawyer to exercise these steps, but in principle you can probably do it on your own, too. Whether you get a lawyer is ultimately a trade-off (making a mistake may cost you money, but hiring a lawyer costs money, too). A first consultation with a lawyer is probably not too costly (ask first!), and may help you to decide whether you need more assistance. | The statement "you don't need to put it in writing" is not an instruction, and should not be interpreted as on in lieu of other evidence (e.g. the follow-up question "you don't want to get fired, do you?"). It is, at best, a recognition that your concerns have already been noted (and at worst, a ham-handed threat). In the context of an at-will non-union position, it is legal for a boss to directly demand "take it or leave it, no back-talk allowed". The reduction in salary can't go below the statutory minimum, or otherwise circumvent any laws, but assuming that the new salary is per se legal, they can demand that you accept it and not argue. If this were a government position, there is a potential (but not guaranteed) First Amendment issue. | In the absence of a contractual agreement saying otherwise, the lawsuit would probably just be subject to normal rules of tort liability. In that case, the contractor would probably lose his case unless he could prove that the one worker infected another through an act of negligence or could otherwise prove that the infected worker knew he was infected and posed a risk to others. In the basic negligence situation, the contractor would likely rely on the general duty we all have to avoid creating unreasonable risks of injury to third parties, and he would need to argue that Worker A somehow breached that duty. Coming to work knowing you're infected would almost certainly satisfy that standard, but it might be enough to simply show that Worker A was at a large gathering of unmasked people whose vaccination status was unknown. From there, he would also need to prove that breaching that duty caused him some injury, presumably by infecting Workers B through M, causing a work slowdown, causing missed deadlines, causing late fees, etc. The contractor might also pursue a claim for reckless, rather than negligent, conduct, if Worker A knew he was infected and came to work just the same. Or he might pursue an intentional tort claim if there was some reason to believe that Worker A was actually trying to get other people sick, as opposed to just ignoring the fact that such a risk existed. As I understand it, several states have also passed laws limiting liability for exposure to COVID in the workplace, so it's possible that none of these claims would be viable, no matter how strong the evidence. | If you were on your parents policy with the understanding you were a student in college, then yes, they can drop you and refuse to pay. You need to read the terms of the insurance very carefully, somewhere in there it says that the policy is only in effect while you are enrolled as a full time student. You (or your parents) broke this agreement, and the insurance company doesn't have any obligation to pay. Should I refuse to acknowledge the debt as mine? Can I claim it's the insurance company's debt? No, the debt is yours from the moment of service, the insurance company's job is to cover some of that expense on your behalf. It isn't the insurance company's debt, it is yours. Contact my old insurance company and try to get them to pay up? Unfortunately you will not be successful at this. You violated the terms of your insurance (not being enrolled in school), the company has no obligation to pay. Your parents may be owed some refund of money for any extra premiums they paid while you were not enrolled, but that would be the extent of the insurance company's obligation. Negotiate with the dentist office to reduce the bill and just pay it? This is probably the best route to go. Insurance companies often negotiate fixed prices for certain procedures that are different than what they would charge uninsured customers. You can ask your dentist if they have any kind of help for uninsured patients. Simply have them fix the charge so that it's accurate (it should be $700, not $1400, since I already paid half), and pay in full? If you already paid $700, and $700 was your insurance providers portion, then yes, the bill that the dentist sends to you should be $700, not $1400. Make sure though that the entire bill is $1400 though, not $2100 ($700 your portion, and $1400 insurance). |
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