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Using student directory photos Would it be legal for me to download all of the student images that appear in my university's directory and post them on a website? The Family Educational Rights and Privacy Act (FERPA) protects students' education records such that an institution may only release information found in a student's records with permission of the student. However, the one exception is directory information; institutions are free to release a student's directory information unless the student explicitly restricts its access. Since the university has given me access to the directory information some of its students, doesn't that imply that these students have not restricted access to their information and that I may freely partake? | As someone who is not a lawyer, but is familiar with FERPA and university policies as a former instructor, I would be more than willing to bet that you signed or otherwise agreed to some type of Terms of Service before being given access to that type of service. There are almost certainly numerous things you signed to become a student, as well as various policies you agreed to in first gaining access to the computer services, which would apply here. I can tell you with certainty that the school where I was a student had a policy that I agreed to that they would make certain information available to other students unless I chose for it to be restricted. However, my university did not have any photos of students that were viewable by other students in a directory. That said, there were also times I participated in extra-curricular activities where I was required to sign release forms giving the school the rights to video tape, record, and photograph me, and to do what they wished with those things. So, with that in mind, I suspect that's partly due to FERPA restrictions, but also largely due to their own privacy policies that go beyond what FERPA requires. All in all, I doubt they would be okay with you using their photos for your own private use - student privacy is something that is taken very seriously. | 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. | Neither the GDPR, nor the CCPA, nor any other data protection law that I am aware of, requires that when information is deleted on request, that similar information not be collected and stored in future. Under the GDPR Article 6 there would have to be a lawful basis for any processing, including storage, assuming that the GDPR applies to the directory in question. There could be a claim that such processing was lawful under article 6(e) "performance of a task carried out in the public interest". I do not know if any such claim has been adjudicated. Thus there is no need to hold a database of previously erased records to determine if a new record should be blocked as "previously deleted". The Wikimedia Foundation, which runs Wikipedia, I believe takes the position that the GDPR does not apply to Wikipedia, I am not sure of their detailed arguments. But surely articles on well-known people, such as a former US president, would be covered under the same provisions as would cover news reports and historical books about such a person. Perhaps that would also come under article 6(e) | This issue touches upon two distinct GDPR rights: Art 15 right to access: you have a right to receive a copy of all personal data concerning you that are undergoing processing (including storage). Access may only be denied where this would “adversely affect the rights and freedoms of others.” Art 20 right to data portability: if processing is being carried out by automated means, and processing is based on certain legal bases (consent or contract, but not legitimate interest), then you have a right to receive a copy of your personal data in a machine-readable format, for personal data that you have provided to the data controller. Whereas the right to access is fairly straightforward, the right to data portability applies under much more narrow conditions. Basically, it's a right that you can download any data that you've uploaded so that you can move to a different service. Google Takeout is primarily concerned with your right to data portability, and provides your data in a machine-readable format. Any photos that you've uploaded to Google Photos, you'll be able to download. Thus, it could be technically compliant to exclude information that they've inferred about your personal data, such as image-recognition results. Such results would still be personal data under the GDPR definition of the consent, and would be covered by your right to access. Google might argue that you already have access to this data through the web interface. In my opinion the GDPR clearly requires the data controller to provide a “copy”, i.e. the data in some durable form – not merely access through a web interface. Whereas your question is specifically about Google, the same issue applies to other services as well. E.g. Ruben Verborgh has an interesting blog series on trying to get access to all their data from Facebook, though unsuccessful so far. Similar to your scenario, Facebook offers a download for personal data but does not include all personal data in this download. In one of the documents provided by Facebook in the course of the exchange, they note that they allow access to photo tags through the web interface, but do not include this in downloaded data – without providing further justification. | It Depends If the person reusing the image (lets call that person R for reuser) is not complying with the terms of the Creative commons license, which include a requirement to provide attribution of the source work, then R cannot rely on the license, and the granting of the license ad the presence of a license declaration is legally irrelevant. R must have some other basis to reuse the image. This could be an exception to copyright, such as fair use or fair dealing. Or possibly the image is not protected by copyright, for example because its copyright has expired, or because it is a work of the US Federal Government being used in the US. In the absence of such a basis, R is infringing copyright. In much of the world copyright now lasts for 70 years after the death of the author (or of all co-authors). In some different terms apply, ranging from life+50 to life+100. Sound recordings and photos get shorter terms in some countries. In the US the term is life+70 for recent works, but for work created and published before 1978 more complex rules apply, depending on the date of publication, and whether laws on notice and renewal were complied with. See the well-known chart Copyright Term and the Public Domain for the various cases and when copyright expires in each case. The question asks about fair use. This is a US-specific legal concept. It is designed to be flexible, an is highly fact-dependent. As a result it is rarely possible to say if a use will qualify as a fair use with certainty until a court passes on it. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? for more on fair use. Not providing attribution is itself often considered to weigh against fair use. The question does not give enough detail to make even a good guess as to whether such a use is likely to be held to be fair use. Identifying the kind of eagle has some educational value, which might favor fair use to some extent, but must be considered in light of the overall purpose of the use, which is not described. There is no indication as to whether the original work is creative or factual, or whether the reuse would be likely to harm the market for the original. Much use of images on social media does not stand up under a fair use analysis. Providing proper attribution might well help any fair use claim. See also Do you have to give attribution if an image falls under Creative Commons? | I assume these are digital photos that were electronically transferred (not prints physically delivered). If they were prints physically delivered, he owns those prints, since you used to own them but you unconditionally transferred ownership to him by giving them. No backsies under the law. The photos are protected by copyright law, which means that the person who took the pictures has the exclusive right to make copies, disseminate them, and authorize making copies. In order for anyone to make a copy, they need permission – a license – from you. In the world of pre-planned business deals, the copyright holder writes up a document granting B some right to use the protected material, which typically means "you can install it on your various devices but may not give copies to others". In this case, however, you didn't create an explicit written license. So if this ends up in court, the question is what implicit license you granted. The courts will not decide that you granted him the license to unrestrictedly sell or give away copies of the protected material. The most likely outcome would be that he can only keep his copy, i.e. he will not be forced to erase the copy that you sent him. What the courts would do is try to discern what license you most likely intended to grant to him. There is a provision in copyright law that allows a licensee to make backup copies of a computer program (17 USC 117), but a digital photo is not a computer program. So the lifespan of the copy that you sent would be the lifespan of the phone (I assume) that you sent it to. Since actually using a digital photo technically requires making a copy (from disk storage to computational memory), there is a legal direction (dead-end) that you could go where the photo could exist on the phone, but never be opened again. Again, the courts would have to discern what license you probably intended w.r.t. ever opening the photo – obviously you intended that the file could be opened / viewed any number of times. You could argue that the license which you granted was conditional, i.e. "you can have and use these pictures as long as we are a thing", but establishing that this was part of the license would be tricky. Free digital content often has some "as long as" condition attached to it, i.e. "you can use this program as long as you are affiliated with University of Whatever". I don't consider a conditional license to be a ridiculous interpretation, on the other hand the particular court (judge) might decide that people who sext should be forced to live with the unpleasant consequences of their decisions. If we exclude such a line of thinking, I don't see a compelling counter-argument that your ex-partner inequitably loses a right by construing the license as conditional. I don't know if there is any case law that addresses this: at any rate, copyright law would severely limit what he could do with the pictures (the tort "invasion of privacy" also limits dissemination). | There are two scenarios to consider. One is that there is such a policy written down and duly communicated in some fashion. In that case, it is obviously "okay" in all senses to enforce that policy. (That does not preclude the possibility of suing the institution because they are abridging some right of yours in having this policy, but that's a separate matter). The alternative is that there is no such policy, and someone spoke incorrectly. If that is the case, then they "can't" enforce a non-existent policy. Actually, they can prevent you from using the facility, the question is, how could you correct their misunderstanding of their policy? The most protracted way to resolve this is to file a lawsuit against the university, for denying some right (constitutional or property). A more efficient way to do that is to bring the matter to the attention of a reasonably high-ranked official within the institution, perhaps the department chair, who may not be aware that subordinates are making up or misinterpreting rules. The fact that you were unable to locate a written statement of policy online really doesn't count for much. It is entirely reasonable to believe that the chair may have instituted such a policy, under his authority as chair, and communicated it verbally to subordinates: or, the subordinates simply do not know where to find the policies. An alternative approach is to raise the question with the Student Advocate's office, if discussion with the chair is unsatisfactory. | Corrections to your statements or quotations Your quotation "To fall within the remit of the GDPR, the processing has to be part of an "enterprise" (...)" is not from the GDPR, and is an erroneous statement. Also, the threshold of 250 employees you refer to, is only relevant with regards to the record-keeping obligations of Article 30. GDPR provisions relevant to your question The GDPR applies to individuals or students in accordance with the material scope of the GDPR, which is treated in Article 2 (2) c) where GDPR states that "This Regulation does not apply to the processing of personal data: (...) by a natural person in the course of a purely personal or household activity;" The Recital 18 of the GDPR gives some insight as to what would be a purely personal or household activity as follows: (18) This Regulation does not apply to the processing of personal data by a natural person in the course of a purely personal or household activity and thus with no connection to a professional or commercial activity. Personal or household activities could include correspondence and the holding of addresses, or social networking and online activity undertaken within the context of such activities. However, this Regulation applies to controllers or processors which provide the means for processing personal data for such personal or household activities. Interpretation To my knowledge, there are no specific guidelines regarding this matter to date from WP29. Those may be adopted in the future, or some requirements may already exist in local laws in one of the EU countries or from documentation available from local data protection authorities. If you are based in the EU, you could check this with your local data protection authority. There is, however, case law from the European Court of Justice as pointed out by Free Radical, interpreting the scope of the "personal use exception" in Directive 95/46/EC (which provisions are similar to the GDPR in this matter). If your hobby is not limited to your personal circle (yourself and the persons in your household), and thus if you plan to share the results of your data collection and processing with third parties (possibly teachers, other fellow students, or anybody else if you publish the results of your work) resulting from your "hobby" activity, you certainly would not fall in this exception to the scope. Case C-101/01 is an example of publication on the Internet made by an individual claiming to use its "freedom of expression to create internet pages in the course of a non-profit-making or leisure activity". The court clarified that: exception must (...) be interpreted as relating only to activities which are carried out in the course of private or family life of individuals, which is clearly not the case with the processing of personal data consisting in publication on the internet so that those data are made accessible to an indefinite number of people Another, less optimistic interpretation from the examples given by the GDPR recitals, could derive from the spirit in which purely personal or household activity are to be understood. These examples actually refer to limited amounts of data and which are related to the individual itself (his own address book, his social networking activity, etc.), and creating limited risks relevant to the person herself and its contacts. In this view, there is a risk that a "hobby" in which you collect data about thousands of persons unrelated to you, could be considered as not being really purely personal. Actually, an interpretation of case law C-212/13 from the European Court of Justice also mentioned by Free Radical could support this reasoning. In this case, a video recording of people was stored from cameras installed by an individual on his family home for its own security purposes, but the cameras were also monitoring a public space. The court ruled that: To the extent that video surveillance such as that at issue in the main proceedings covers, even partially, a public space and is accordingly directed outwards from the private setting of the person processing the data in that manner, it cannot be regarded as an activity which is a purely ‘personal or household’ activity (...) Extending this reasoning to your question, a "hobby" consisting of collecting "huge list of names, emails, zipcodes" unrelated to you could be regarded as "directed outwards from the private setting (...)". Conclusion As a hobbyist, or a student, if you can work on fake computer generated data and achieve the same results in your personal learning purposes you should definitely consider doing so. |
Can a bank foreclose on a home of a person who has been kidnapped? Say that an American homeowner is traveling overseas and then he/she is kidnapped by a terrorist organization. Does the American bank which gave that person the home loan have the legal right to immediately start foreclosure proceedings on that home after the first missed mortgage payment, or is there a federal law that prohibits American banks from doing this to a kidnapped person? In other words, would this bank have to wait until the kidnapped person is either freed or declared deceased by the U.S. government before it can begin foreclosure proceedings on the home? | 12 USC Ch 38A regards single family mortgage foreclosures and 12 USC Ch 38 regards multifamily mortgage foreclosures, however both law applies to mortgages held by or guaranteed by the federal government; nothing in those laws establishes an exception to the right to foreclose in case of kidnapping or some other special circumstances. There has to be written notice of the judicial proceeding, but it is not required that the owner be physically handed and made aware of that notice. Outside of those cases involving the federal government as the foreclosing party, the details are determined by state law. In Washington, there might be a non-judicial foreclosure under RCW 61.24.031, where you get a Notice of Default. The requirement is that you send the borrower a letter giving the relevant information ("YOU MUST RESPOND..."). You must exercise "due diligence" in providing notice, which is defined in subsection (5), which includes (and is not limited to) sending both first-class and either registered or certified mail, return receipt requested, a letter to the address in the beneficiary's records for sending account statements to the borrower and to the address of the property encumbered by the deed of trust You also have to call 3 times, then another certified letter receipt: there is, again, no condition that says "if you can't find the person, you cannot foreclose". One part of the process is that the borrower can apply for mediation under the Foreclosure Fairness Act, guidelines here. However, this would require that someone be able to act on the borrower's behalf, which may not be the case. | They cannot force a contract on you after the fact. You should leave these numbskulls alone, they are clearly up to something that makes them likely to be sued. I am adding the following: it's not illegal as far as I know to declare anything you want to a person as long as it isn't a threat. "You are now beholden to give me your firstborn makle child." lol, no. | What you are describing may be the crime of insurance fraud: to avoid that, you would have to admit to the insurance company that you put a "Please steal me" sign in an unlocked car with the keys in the ignition, in a high-crime area. If we remove some of the elements of the scenario and reduce this to "leaving the keys in the ignition", this would probably be be considered contributory negligence, meaning that you failed to act prudently to protect your property. This can reduce the amount that the insurance company has to pay you. At this point, it depends on what state you're in, since sometimes a little bit of negligence (in Alabama, Maryland, North Carolina, and Virginia) means that you may get nothing. However, negligence hinges on an assessment of the actions and intentions of a party, and what you describe isn't "neglect", there is the direct intent that the car be stolen. Insurance policies exclude coverage for intentional loss. So the bottom line would be that the person would be out a car, and could be in prison for fraud if they did not reveal what they actually did. One should assume that the thieves took a lulz video of the sign before they stole the car, and posted it on FaceTube where it entered the viral hall of fame and was used against you in a court of law, so fraud is the worst choice. An alternative if you have a car is to donate it to charity, and take a tax write-off. | The mortgage company cannot grant you title. The basic logic of your relationship to the mortgage company is that you borrowed a bunch of money, using the hose as collateral, and you owe them that money so you have to pay. If you don't pay, they can take you to court, and normally they would get the court to make them the owners of the house, which they can then sell to recover their losses. Not paying the debt is not a good idea. You can always ask them to put the payments in escrow, but I doubt they would agree since ultimately you owe them that money. What is supposed to happen is that the title insurance company pays for their mistake, whatever it was. It is possible though that the error was the county's, in which case the news is all bad (ask your attorney about a case I believe in Columbus, around 2010, where the county screwed up the paperwork and the buyer ended up with no recourse – as I recall, the buyer had no title insurance). Ohio law does not require recording title transfers, therefore it is quite possible that the transaction was not properly vetted through attorneys. I'd give the standard admonition "ask your attorney", but all I can suggest is to try a better attorney. | Since you don't say which country you're in, it's likely that you're interested in United States law. You are probably in the clear here, though you're getting close enough to the edge of breaking the law that I wouldn't be confident about not being prosecuted and/or convicted. The relevant laws in this case appear to be 18 USC 471, 18 USC 472, and perhaps 18 USC 514. All three of them begin "Whoever, with the intent to defraud...". It's questionable whether creating counterfeit money as a burglar decoy counts as defrauding the burglar. | The "original" owner remains the only legal one. Party A goes to jail. You get entitled to recover the money from A (unless you knew that the item was stolen — in which case the money will go to the government and you may go to jail with A). | Theoretically speaking, this is not theft. You are correct in that theft requires specific intent: to permanently deprive someone from the use and enjoyment of one of their lawful possessions. In real life, it is a matter of evidence of course. Saying you were only borrowing can be proven otherwise based on your actions. I should also mention that if you "borrow" something an there were obligations attached to that borroeing (e.g. "you can borrow it but you mustnt use it like this, or you must return it in a week") then failing to abide by those obligations can be sufficient to show intention to deprive. Furthermore "borrowing something" and consuming its entire usefulness for yourself counts as the permanent deprivation of the use of the possession from the owner. E.g. "borrowing" concert tickets and returning them after a concert (see s.6 Theft Act 1968) R v Lloyd, Bhuee & Ali [1985] QB 829 also tells us that the condition of something borrowed once returned may be indicative of whether there was an intention to permanently deprive someone of their rights to property. | It primarily depends on the title that you have to the house: are you "joint tenants with right of survivorship". This could have happened when you bought the house; it also could have been done after the fact in various ways. In that case, the house is outside of your wife's estate (which, under the circumstances, is divided between children and you). The lender might be confused about the status of the property, but they might be right, so the question is, what is your legal "interest" in the house, that is, does the title document say "tenants in common"? Assuming that the property is not recorded as JTWROS, then there are two matters to attend to. First, the lender may need to be satisfied, somehow, that they aren't taking a risk by refinancing when you aren't really the full owner. The second is clarifying actual ownership. Estates Code 201.0002-.003 govern intestate succession with a surviving spouse, where the dividing question is whether it is a community estate or not, which then implies shares for children. In that case, the children are part-owners, so you need their consent to e.g. sell the house (that is, this is a complication that needs to be fixed). Basically, you have to get a lawyer, and straighten this out. |
Can a Whatapp Message be used in a misconduct case? Can a Whatapp Message be used in a misconduct case? Does a screen shot of the evidence count as evidence if it was from an opposing party? How could it be verified that the person in question actually sent the message? Would the evidence have to be obtained directly from Whatsapp? | We don't have a lot of details, but if you're in the United States, the answer is probably yes. There are rarely any meaningful rules of evidence in student misconduct cases, so pretty much anything can come in. There may be some small difference in the answer depending n whether you're dealing with a public university or private, but in either case, I can't think of any reason why they would not be able to introduce the evidence if they had it. If there's a question about its authenticity, I imagine that would just be up to the misconduct board to decide. If Person X says "Person Y sent this to me," and Person X seems credible, that's probably going to be enough. | This question needs more detail. As a cybersecurity professional I can provide some technical context around what I believe to be the situation. While I do not know the legal precedence, technically, IP addresses cannot typically be attributed to an individual person. There are a number of reasons for this. In a local network, IP addresses are not unique. Rather, they are distributed by the DHCP server, and are reassigned at intervals. Forensic attribution to an individual in most environments would require a DHCP log linking the IP to the machine’s MAC address, with time stamps that correlate to the individual’s logon to that machine at the same time. If the IP correlation involves a VPN, it gets more difficult. I would need to know where the log/evidence was obtained to determine what the IPs in question actually correlate to. If the evidence was obtained in local area network of the suspect, the IP addresses are likely assigned by the DHCP server (see previous). If they are obtained after encryption in transit to decryption, then very little can be determined. If they were obtained at the VPN server log, these IPs likely belong to an ISP which in turn may or may not be able to show what machine initiated the conversation. Digital photos often contain EXIF data, which is metadata about the photo. This data can contain details like, device make and model, sometimes location, time and date... If the defendant owns a Nikon such and such and the photo was taken with a Nikon such and such, and was uploaded using a VPN the defendant has an account with, and the defendant was in that location at the time and place of the photo... there may be enough there... but I’m not a lawyer. I believe the discovery should include any EXIF metadata and logs to be used as evidence. You may need a special technical whiteness to educate the court on what can and cannot be determined (technically) given the evidence. Things to consider for such a witness could include: EXIF, forensic certification, network administration experience, VPN, TCPIP, OSI Model, Network Address Translation (NAT). Again, nothing here should be considered legal advise. Seek professional legal counsel. | It will be fact-specific, but potentially not unlocking your phone for such a reason could be a "reasonable excuse". However, you will need to provide evidence for such an excuse. The prosecution will still have to prove, beyond reasonable doubt, that the excuse is not "reasonable". It is entirely possible that the court would determine any such excuse based on privacy to not be reasonable, partly because it grants a very broad shield to defendants which would frustrate the purpose of the law, but partly because they can point to precedent that privacy is not an absolute right and that privacy infringement can be justified in the circumstances (the same way the police can search your phone). I have not been able to find any relevant case law on the matter, but I will keep investigating and update my answer if I find any. As an aside, it does appear possible for any warrant obtained by TV Licensing officials to include a Section 49 Regulation of Investigatory Powers Act 2000 notice which would compel you to unlock the phone regardless of any "reasonable excuse". Failure to do so would result in a conviction under Section 53 of the Act. | Do these warnings have any legal force? In the United States, no. They do not have any legal force. Some have tried to argue that the Electronic Communications Privacy Act (ECPA) applies; however, this law only applies to intercepting e-mails—not accidentally sending to the wrong party. There is no legal protection for "reply all" or "accidental send" human errors. If so, what are their consequences? If you're asking why some people put them in there, even if it's not legally enforceable, one reason is lawyers trying to prevent an accidental waiver of attorney-client privilege. Generally, a waiver of the attorney-client privileged must be intentional and knowing. Therefore, some argue that a disclaimer could help one argue that privilege was not waived. Although, I could not find a published case where an e-mail disclaimer actually helped this argument. Additionally, placing the e-mail disclaimer on the bottom of an e-mail (which is customary) is less effective than placing one at the top. As a note, some legal commentators and ethics committee's suggest that lawyers should use encryption "to ensure the confidentiality of such communications remain so when the circumstance calls for it, particularly if the information at issue is highly sensitive and the use of encryption is not onerous." See Legal Productivity's Post that quotes a California Ethics Opinion For more info, read this article here from the American Bar Association's Litigation Section regarding the efficacy of E-mail disclaimers: Do Email Disclaimers Really Work? | There are all manner of reasons that evidence can be excluded at a trial, most of which are set forth in rules of evidence. If the evidence was not admitted on the grounds of relevance and the charge was speeding, I presume that the reason that it was found not be to relevant was that it was not possible from a video to determine how fast someone was driving and there was no dispute in the case over who was driving. If the defendant could have articulated some reason that the video was relevant to those points, perhaps it could have been admitted. But, as if often the case, pro se defendants are usually not articulate enough to set forth a legally relevant reason that evidence should be admitted. Unless the defendant could show that the video showed something allowing a jury to determine whether or not the law was violated, it probably wouldn't be relevant and I can't easily imagine how it would be relevant, but perhaps there was some special facts or circumstances that might show, for example, that the speed gun was actually picking up another vehicle. | The main rules in a civil case are the rules of evidence, the rules of civil procedure, and a set of largely unwritten rules governing issues such as the order in which matters are presented in a trial and courtroom conduct. Basically, the rules of evidence are really a subset of a larger set of written and unwritten rules about courtroom conduct the unwritten parts of which are assumed to be known by people using them. Robert's Rules of Order do not apply to courtroom proceedings. The judge also has the "direct contempt" power to summarily punish disrespectful conduct in the courtroom without a trial, with fines or incarceration, even if it wouldn't be a crime outside the courtroom. But what if a party to the proceedings who does not "have the floor" wishes to do things like the following: Obtain a restatement (perhaps because it was unintelligible, or perhaps as a ploy for emphasis) of something uttered by another. If you are a party asking a question (or more likely an attorney for a party asking a question on behalf of a party) it is not improper to say, "I'm sorry, I couldn't hear you." It is also not generally improper for a non-questioning party to interject and state that they can't hear a witness to a judge. Obtain clarification of a statement. This can be done by a party only when it is the party's turn to cross-examine or redirect as the case may be. A judge can ask for clarification, but a party cannot do so when it is not their turn. Determine or clarify the purpose of an ongoing statement or line of questioning Generally the party not asking a question objects and the court asks the party asking the question to clarify the reason. Sometimes, in a jury trial, the party asked to clarify will say "may we approach the bench" and a private discussion will be held between counsel for both sides and the judge regarding an ongoing issue. Determine whether the judge will allow something later in the proceedings. (E.g., "At some point I hope to speak to point X. May I do that now? Or will I be afforded that opportunity at some later point before the conclusion of this hearing?") Lawyers are expected to know this for the most part without having to ask. Also, usually before the court starts to take evidence, and at breaks, the judge will ask "are there any preliminary matters that need to be addressed?" or "are there any procedural matters that need to be addressed?" and questions such as this can be raised at that time. | A contract can’t legalise illegality Let’s assume that absent the “simulation” disclosure in the ToS, this would be fraud. The question then becomes, does making the disclosure make it not fraud? Fraud requires dishonesty and deception. These are measured by what a reasonable person would determine from the overall conduct so a small piece of truth in amongst a web of half-truths and outright lies is still dishonest and deceptive. From the perspective of US law, is Bob doing this regarded a scam? No, but only because “scam” isn’t a legal term - it’s slang for fraud and this is fraud Is this a criminal case, or a civil case? Both What evidence can Tom provide to support the lawsuit? Whatever he has. However, in practice, these types of fraudsters are rarely ever caught and it’s even more rare for the victim to recover their money. They are usually off-shore in countries with either poor rule of law or which will not extradite their nationals. | No Can a Dog admit guilt in court? Can a car have and admit guilt? No. AI is nothing but property and a piece of evidence, just like a dog or car. It is not a person and thus can not admit to anything. Everything the AI says is evidence, not an admission. Very damming evidence, but not the makers saying "I did it." |
Is it legal to leave small children without parents' supervision? My wife and I went to check out an art studio (NJ, USA) for children to see if we can send our 4-year old son there to learn some drawings. It came to my attention that there were a bunch of 5,6-year-old boys and girls sitting in the studio drawing pictures but their parents (at least not all) weren't there in the waiting room. While there was a teacher in the room looking after the children, I am not sure: Is it legal to leave children of that age alone without parents' being nearby? What if a child needs a bathroom break? After all this is not a daycare and I don't think teachers there have license that entitles them to look after children in the parents' absence. | Any parent may leave a child in the care of another responsible person. There is no special license required. The parent may use sound judgement in selecting the caretaker. Nor does a caretaker even have to be an adult -- teens are often used as baby sitters. If a reasonable parent would have known that a particular person was not a safe caretaker, then selecting that person might be negligence or child endangerment. Nor is there any legal requirement in most US states that a child be under anyone's direct supervision at all times. See "Free range parenting". Again, if in particular circumstances a reasonable parent should know that supervision is needed, failure to provide it might be child neglect or endangerment. Some US states set minimum ages for children to be unsupervised. NJ is not one, to the best of my understanding. | You can look here for various sources on the legal status of children born "out of wedlock", however most of that discussion is focused on European legal systems. This page states what the situation is under Islamic law (the majority view seems to be that the child is "the child of no-one"). This article specifically compares illegitimate children in Iran vs. England, indicating that Iran follows the majority interpretation. Indian law is complicated because of the various sub-varieties of family law – Muslims follow Muslim family law, Hindus follow Hindu family law, and so on. Here is a brief summary of Indian law. One point to be taken from this is that there is a difference between the status of a child whose parents are in a void or voidable marriage, vs. no marriage at all. Kenya likewise has more than one kind of family law, plus a constitutional change. So see this case which relies on an older tradition that if a man and woman have a child but don't get married, the child is not legally the child of the man, but also see the Constitution of 2010 Art 27(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. and especially Art 53 (1e) where every child has the right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not. | So, in England and Wales your son assaulted Mario. (From Wikipedia: "Assault is committed if one intentionally or recklessly causes another person to apprehend immediate and unlawful personal violence". I expect Mario expected your son was going to thump him, and that would certainly be unlawful.) You were both trespassers on the property; however it sounds like there was nobody there who could require you to leave, so that probably doesn't matter. Both of these would be true whatever the age of your daughter. Finally, in England and Wales, if you had forced your 16-year old daughter to come with you against her will, you would both have been guilty of kidnapping. (16 is the age at which children become independent in terms of deciding where to go.) She can choose to leave home and live with her boyfriend, and there is nothing you can do to stop her. Edit: The question did not originally mention a jurisdiction. This is an area where the legal situation is likely to be very jurisdiction dependent. | Yes, it's legal. To be illegal, the photographs would have to be obscene or pornographic. Nude people, ordinarily photographed, doing non-sexual, non-excretory things are neither. However, I would strongly advise caution, particularly if you plan to display or share these photographs. There are definitely cases of people who have been charged with sexual exploitation of a minor for sharing nude photographs of their children. | What is emancipation of a minor? As I understand it, in some states in the US, a minor (i.e. younger than 18) who is at least 16 years old, can petition the state for emancipation; i.e. legal separation from their parents, and allowed to enter the world as a legal adult, despite being younger than 18. However, in order to be granted this, the minor must prove that they are capable of supporting themselves financially, that they have somewhere to live, and a few other things. This is true in some places, but not others. There are two different concepts for emancipation under U.S. law, and most states follow one or the other. One concept is that emancipation is a factual reality that exists when a minor is self-supporting or supported by a spouse or significant other, and not living in the household of a parent. In states that follow this concept, such as Colorado, a court ruling that a minor is emancipated is simply a finding of fact about what is, rather than a grant of permission. Another concept is that a minor is, as a matter of law, not emancipated until a court grants minor permission to deviate from the status implied by their age. My understanding that this is the concept used in California. In these jurisdictions, emancipation is granted only after an good faith attempt to give notice to the parents and a hearing, and involves an assessment of the capacity of the minor to be self-supporting without parental assistance and involvement. The question is focused on this concept, but it is not the only one and it is probably a close call as to which approach is the majority rule in U.S. states. Even in "permission" states, however, entering military service or marriage usually results in emancipation as a matter of law without any formal court proceeding. Common fact patterns There are certainly cases in which the fact that a minor is married or living in the household of a significant other as a stay at home parent would establish emancipation. Another fairly common fact pattern would be a employee whose employer also provides housing. Another fairly common fact pattern is a situation in which the whereabouts of the minor's parents are unknown and the minor has, somehow, been managing. Sometimes you see this when a minor's parents die and the minor goes on in an isolated wilderness area, for example. Adoption is indeed not an option Adoption is not possible without a termination of the rights of the parents (or at least one of them in the case of a stepparent adoption). The legal guardianship option The preferred arrangement when living basically as a child in a supportive adult's household would usually be a guardianship, to the detriment of the parent's role in most decision-making for the minor, rather than emancipation. Here are some quotes from a recent case from Colorado (In re Interest of A.D., 2023 COA 6 (January 19, 2023)), with that fact pattern: ¶ 2 L.D. is the sole living parent of A.D., one of her three children. A.D. was sixteen at the time of the guardianship proceeding. Although L.D. and A.D. once shared a healthy relationship, it deteriorated dramatically during the summer and fall of 2021. This deterioration gave rise to Petitioners’ request for — and the district court’s grant of — an unlimited guardianship over A.D. We turn to that history now. ¶ 3 In June 2021, A.D.’s car was vandalized while parked in front of the family home. A.D. and his mother had a heated argument about why it happened and who was responsible for cleaning it. Upset by this conversation, A.D. went to stay at his girlfriend’s house. Although he soon returned home, A.D. ran away from home five more times following disagreements with L.D. ¶ 4 In early July 2021, L.D. gave A.D. an ultimatum: he could (1) go to military school, (2) attend therapeutic boarding school, or (3) abide by her house rules. A.D. ran away again that night, but this 2 time he spent over a month away from home, staying with his girlfriend, couch surfing at friends’ homes, or sleeping in public parks. ¶ 5 On August 7, 2021, A.D. was taken to the emergency room after appearing to overdose while partying with friends at a park. The hospital made a mandatory report to the Department of Human Services (DHS). Once A.D. was stable, L.D. and V.T. (L.D.’s longtime colleague and family friend) met with a DHS representative to discuss next steps. L.D. agreed that, given the hostility between A.D. and herself, and between A.D. and his two siblings (who both lived with L.D.), it was in his best interest to stay with Petitioners. ¶ 6 On September 8, 2021, A.D. drove Petitioners’ car to L.D.’s house for his first night back since early July. When he arrived, L.D. became extremely upset that he had driven there. In her mind, A.D.’s operation of a car — and Petitioners’ facilitation of it — violated their agreement that he not drive until certain conditions were met. The next morning, without notice to Petitioners or her son, L.D. called the Division of Motor Vehicles (DMV) and withdrew her permission for A.D.’s driver’s license. The DMV revoked his license the next day. ¶ 7 A.D. became enraged when he learned that his mother had revoked her consent and subsequently sent a series of angry texts to her. L.D. then blocked A.D.’s number, thus preventing A.D.’s calls or texts from coming through to L.D.’s phone (though texts came through on her computer). ¶ 8 On September 24, 2021, DHS facilitated an “adults only” meeting with L.D., Petitioners, and DHS representatives. That meeting resulted in three shared priorities: (1) Petitioners were to provide regular updates about A.D. to L.D., who would, in turn, communicate with Petitioners before making decisions affecting A.D.; (2) A.D.’s license would be reauthorized within thirty days once to-be-defined conditions were met; and (3) A.D. would be allowed to be on the high school wrestling team, which all parties agreed was good for him. ¶ 9 Over the next month, Petitioners regularly emailed L.D. updates on A.D. L.D. provided few, if any, responses to these updates. Petitioners also sent L.D. a proposed plan for A.D. to get his license back, but L.D. did not respond. ¶ 10 On October 20, 2021, Petitioners filed their petition for appointment as A.D.’s guardians. L.D. objected to the petition, sought dismissal of the action, and requested attorney fees. ¶ 11 On November 8, 2021, Petitioners requested that the court appoint a guardian ad litem (GAL) to represent A.D.’s interests. Over L.D.’s objection, the court appointed a GAL pursuant to section 15-14-115, C.R.S. 2022, after concluding that, owing to their disagreement over the guardianship, the parties could not represent A.D.’s best interest in the guardianship proceedings. The GAL represented A.D.’s best interest throughout the litigation, and the court also instructed the GAL to provide a report about whether L.D. was “unable to exercise her parental rights.” ¶ 12 On November 14, 2021, before Petitioners filed their reply, L.D. — without consulting Petitioners or A.D. — revoked her permission for A.D. to wrestle the day before the first day of practice. Why she took this sudden action is unclear: L.D. testified it was because A.D. was not maintaining passing grades, while another witness testified that she wanted “leverage” over him to participate in family therapy. Regardless, A.D. was devastated by the timing and nature of this action. ¶ 13 While these motions were pending, Petitioners continued to care for A.D. Petitioners asked L.D. for permission to talk to A.D.’s teachers, coaches, and doctors about how to better care for him. Yet from August to early December 2021, L.D. refused to grant Petitioners permission to engage with these individuals. She ignored or outright refused to allow such communications until December 8, 2021, when, after repeated requests from a DHS representative, she allowed Petitioners to attend — but not participate in — a meeting with A.D.’s teachers. ¶ 14 L.D. also resisted Petitioners’ requests for financial support for A.D.’s care. To her credit, L.D. provided A.D. with $25 per week for groceries. These funds came from A.D.’s $1,800 monthly survivorship benefit, which was established following the death of A.D.’s father when A.D. was three. Petitioners knew the benefit existed and requested more financial support. L.D. did not respond to these requests. ¶ 15 Except for the text exchange between L.D. and A.D. following the revocation of L.D.’s consent for A.D.’s license, L.D. and A.D. never communicated directly. Instead, all such communications went through Petitioners or DHS. ¶ 16 Consistent with section 15-14-205(1), C.R.S. 2022, the district court conducted a hearing on Petitioners’ guardianship motion. The hearing spanned two days, with both sides calling numerous witnesses. ¶ 17 In a written order, the court granted Petitioners an unlimited guardianship over A.D. In so doing, the court concluded that Petitioners had proved by clear and convincing evidence that L.D. was, consistent with section 15-14-204(2)(c), “unwilling or unable” to care for A.D. and that the guardianship was in A.D.’s best interest notwithstanding his mother’s opposition to it. The linked appellate court decision then goes on to conduct legal analysis and affirms the trial court's ruling as correct. The official syllabus of the case summarizes that part of the opinion as follows: A division of the court of appeals reviews the guardianship appointment for a minor under section 15-14-204(2)(c), C.R.S. 2022. In so doing, the division adopts the analytical framework outlined in In re Parental Responsibilities Concerning B.J., 242 P.3d 1128 (Colo. 2010). Applying that framework to section 15-14- 204(2)(c), the division concludes that the moving party must prove, by clear and convincing evidence, that the parent is (1) “unable or unwilling” to exercise their parental rights, and (2) the guardianship is in the best interest of the minor notwithstanding the parent(s)’ opposition to the guardianship. Moreover, in entering such an order, the court must articulate the “special factors” it relies upon to justify this interference with parental rights. See Troxel v. Granville, 530 U.S. 57 (2000). Utilizing that framework here, the division concludes that the court did not err in appointing a guardian for the minor. | Public schools are open to all residents. There is no citizenship requirement and no "tax payer" requirement. Unless excepted for home schooling or attending a recognized private school, in most locations it would not only be allowed, but mandatory between certain ages. | Note that "pedophilia" is a psycological or social term, and not a legal term. What laws prohibit is the creation, distribution, and possession of child pronography Under 18 U.S.C. § 2251- Sexual Exploitation of Children: Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed. This means that there is no offense if no real child is involved, and this is also true of the various other US laws on child porn. Since the case of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) erotica which appear to depict a minor engaging in sexual activity, but which are not depictions of any actual child are protected speech under the US First Amendment and are therefor not criminal. So called "furry cub porn" might include modified images of actual minors, in which case it would seem to be covered under US laws against child porn. But if the character is totally invented, or is based on an adult rather than a minor, then it would seem to come under the rule of Ashcroft v. Free Speech Coalition. Note, the law in other countries is significantly different. In particular in the UK a realistic drawing may be considered to be a "pesudo-photograph" even if not based on an actual person, and may be punishable in the same way as an actual photo of an actual minor. Note also, the making, distribution, or posse ion of 'child porn' is a very serious criminal offense. I am not a lawyer, and one should not rely on this post to determine what acts are and are not legally safe. If there is any question, consult a lawyer. Note also that under the above statute (18 U.S.C. § 2251), something may be "child pornography" if the person involved is a minor, even if that person is old enough under local law to consent to sexual activity, and even if the person did in fact so consent, and even if there was no intent to distribute the image or video. So a person taking, say, a cell-phone video of him- or herself having sex with a 17-year-old, intended for personal watching only, in a state where the age of consent to sex is 16, can still be found guilty under this law, and such cases have occurred. | This is indeed an area of law where the answer does depend on the jurisdiction. As a 2015 article on the subject noted (and I am loathe to refer to less current sources as this is a rapidly changing area): The United States has no national laws or regulations governing assisted reproduction. However, many states have piecemeal legislation. Some aspects are regulated, while others are not; some states have strict laws or regulations whereas others are looser. As a 2017 American Bar Association article with citations notes, this isn't entirely true. There are some national laws that apply, but they aren't comprehensive and probably don't control the situation described in the OP. It also notes that: Certain states, like California, have created a legislative environment supportive of surrogacy by providing for the validity and enforcement of commercial surrogacy agreements and enacting legislation to define the resulting nontraditional parental relationships.10 Others, like New York, explicitly prohibit commercial surrogate parenting contracts,11 requiring most residents and potential surrogates in the state to seek desirable surrogacy arrangements in other states. However, so many aspects of ART are simply not addressed by the states:12 there is no state regulation of the number of children that may be conceived by an individual donor, no rules regarding the types of medical information and updates that must be supplied by young donors as they age, no standards regarding genetic testing on embryos, no limits on the age of donors, and virtually no regulation of the gametic13 material market. (Gametic material means sperm and eggs.) The American Bar Association has more resources on related issues here. A 2014 article surveyed the issue broadly. Colorado has a law that permits arrangements like these and makes them enforceable if the formalities of the statute are followed. It is not easy to figure out exactly which states do and do not allow this because: (1) there is a model act to authorize this but many states that allow it crafted their own legislation rather than following the model act (Article 6 of the Model Act is the part relevant to the OP), and (2) some states have allowed this kind of arrangement via case law rather than statutory law. There are also states with no statutes on the subject and no clear case law one way or the other. As of 2010 all but a handful of states had some kind of legislation, but as noted above, some of that legislation disallowed rather than authorized certain practices or only address some issues and not others. This article reviews in detail the facts and rulings in several cases that are on point to this issue, for example, from California, Minnesota and Montana. |
Can a US bank disallow a lawful permanent US resident from opening an account? Can a US bank disallow a lawful permanent US resident (LPR) from opening an account? Definition of lawful permanent US resident: Lawful permanent residents (LPRs), also known as “green card” holders, are non-citizens who are lawfully authorized to live permanently within the United States. | 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. | According to USCIS Adjudicator's Field Manual chapter 40.9.2(b)(1)(C)(ii) (on page 73-74 of this PDF), it seems that unlawful presence began to accrue when your 2-year green card expired: The alien begins to accrue unlawful presence as of the date of the second anniversary of the alien’s lawful admission for permanent residence. See id . Also, failure to appear for the personal interview that may be required by USCIS in relation to the Form I-751 or I-829 petition results in the automatic termination of the conditional legal permanent resident status, unless the parties establish good cause for the failure to appear. In chapter 40.9.2(b)(1)(C)(iii) (on page 74), it says that if you make a late filing of Removal of Conditions and it is approved, you are deemed to not have accrued unlawful presence, but if it is denied, you are still considered to have accrued unlawful presence from the expiration of your 2 years. If the late filed petition is accepted and approved, no unlawful presence time will be deemed to have accrued. [...] If, however, the late filing is rejected, the alien begins to accrue unlawful presence time on the date his or her status as a conditional resident automatically terminated. | canadacriminal-law In Canada, this is called "in-dock" identification and, while not prohibited, it is recognized to have very little probative value. It has "particular frailties over and above the normal frailties attaching to identification evidence" and "adds little" (R. v. Izzard (1990), 54 CCC (3d) 252, pp. 255-56 (Ont C.A.); R. v. F.A. (2004), 183 CCC (3d) 518, para. 47 (Ont. C.A.)). | The Supreme Court rules in US v. Wong Kim Ark ruled that the Fourteenth Amendment, which states All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside It is not disputed that said areas are "in the United States". The court found that "subject to the jurisdiction thereof" is intended to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,—children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state neither of which are the case in your scenario. Technically, the child is not "eligible" for citizenship, the child has US citizenship, it is just a matter of getting a government official to recognize it (e.g. in issuing a passport). | @DaleM isn't wrong, but some elaboration is in order. You (almost always) gain your citizenship (or nationality) in the first instance, at birth, without the agreement or assent of you or your parents. It is thrust upon you. Usually, your country of citizenship must consent to end your citizenship (or authorize you to do so unilaterally) under that country's laws. Once you have citizenship or nationality, in practice, in most countries, you can generally only renounce your citizenship if you contemporaneously or already have a citizenship somewhere else. You are at a minimum strongly dissuaded from doing so and are not a sympathetic candidate for relief under laws related to statelessness if you willfully put yourself in this position knowing the consequences. This is a feature of the citizenship laws of most countries in order to implement international treaties designed to prevent statelessness which are widely adopted. When an adult is naturalized as a citizen of a new country, usually, their old citizenship is revoked by operation of law under the laws of their old country. In many countries, including the U.S., there are high fees and tax consequences for renouncing your citizenship. Any potential tax liabilities in the future that were not yet due under U.S. law (e.g. capital gains taxes an appreciated assets not yet sold, and estate taxes that would be due if the person renouncing their citizenship had died on that date) are owed immediately upon applying to renounce your citizenship. A stateless person is, subject to quite narrow exceptions, still subject to all of the laws of the place where they are located, including almost all of its criminal laws (except treason) and its tax laws (at least on income earned in that country). A stateless person lacks many rights. They can't travel internationally (there are exceptions under treaty in some cases, but obtaining those rights is cumbersome at a minimum). They can't vote. They typically aren't entitled to domestic welfare state benefits like national health insurance, disability payments, unemployment benefits, subsidized housing, old age or retirement benefits, etc. They can't work in a licensed or regulated profession. They may not even be able to sign a lease. They may not be allowed to own a company or serve as an officer or director of a company or as a trustee of a trust. They aren't entitled to diplomatic assistance. There are many fraudulent legal movements such as the "sovereign citizen movement" (and the Moorish Sovereign Citizens) that assert that citizenship is voluntary and that just by disavowing it in some official feeling way, they can be exempt from taxes, court jurisdiction, and/or other laws. This is false and people who act on this fraudulent misinformation often suffer serious legal consequences as a result. | All new residents with out-of-state non-commercial driver's licenses must obtain a PA Driver's License within 60 days of establishing Pennsylvania residency. All new residents are required to make application for Pennsylvania title and registration of their vehicle(s) within 20 days of establishing residency in Pennsylvania. When you get pulled over, the cop is going to look at your license and ask, "Is this your current address?" If you are working in PA during the day, and sleep in PA at night, you do not live in NJ with your parents. EDIT TO ADD: To be clear on this "new resident" status 61 PA Code § 101.1 "defines resident individual as An individual who is domiciled in this Commonwealth..." plus some exceptions that do not matter in this instance because OP is going to rent an apartment in PA. Domicile is defined in the same section as "The place which an individual intends to be his permanent home and to which he intends to return whenever he may be absent." Title 61 is the Revenue Title. So for tax purposes, you must have an abode and you must have intentions. The Education Title (22) defines Domicile : Domicile is the place where one intends to and does, in fact, permanently reside. So for education purposes you must have intentions and your abode must be permanent. Having a drivers license is one form of proof of residency so presumably the driver's license residency requirement follows the Revenue definition! Title 22 requires you to prove permanence, and 12 months residence prior to registration as a student is one factor. Oh, and Title 61 explicit tells us that you can be a resident for tax purposes but not for residency purposes. | The Code defines "Source of income" as: lawful, verifiable income paid directly to a tenant or paid to a representative of a tenant. There's nothing to suggest that the occupation is a relevant consideration otherwise. What it would mean is that if the occupation of a person is relevant to their source of income, it would be illegal to discriminate on that basis. I would consider occupation distinct from source of income - I could (but don't) have a family trust that is my source of income, and my occupation is volunteer work. My occupation is very clearly not my source of income. | There is a form here which you submit to USCIS – immigrated not before 1906, not for a living person. However, to apply for citizenship, one must have been a permanent resident for 5 years, so given the date on the card (and assuming your father did not marry a US citizen), he could not have been naturalized before departure in 1959. |
Under what circumstances is a lawyer permitted to draft documents "friendly" to the other side? There are typically two parties on any contract, call them buyer and seller. Contracts can be drafted that are neutral, or they could be friendly to either the buyer or the seller. I can see a case where one party says "I really want this deal;" I want you to draft a contract that protects my interests, but is friendly to the other side, to get them to sign. In this case, the lawyer would draft an "other-party" friendly contract. But suppose the client says, "I want my rights protected, I want you to draft a "tough" (unfriendly) contract that they might walk away from, one that will separate the men from the boys." The lawyer protests and says something like, "While what you are proposing is legal, we need to go easy on these people; they're minorities." The lawyer then produces a "soft" contract and pushes the client to sign, but s/he later regrets this. Does the lawyer have the right to do this? Or is this a potential conflict of interest? | A lawyer is obligated to protect his client's interests and to carry out his client's directions in these matters. Not doing so would violate multiple ethical rules applicable to lawyers. Some of the relevant provisions of the American Bar Association's Model Rules of Professional Conduct which are the template for every state's ethical rules (some with local variation) are: Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. (b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities. (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. Rule 1.7 Conflict of Interest: Current Clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. Rule 1.13 Organization as Client (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law. (c) Except as provided in paragraph (d), if (1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. (d) Paragraph (c) shall not apply with respect to information relating to a lawyer's representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law. (e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal. (f) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing. (g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders. Rule 1.16 Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the rules of professional conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. Rule 2.1 Advisor In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation. A lawyer is certainly within his rights, and indeed his duty, to inform a client that his proposed course of action is unwise, and can withdraw from representing the client. But, in general, in a transactional matter, unless the proposed conduct constitutes a crime or fraud, the lawyer may not defy a client's directions. Of course, while there are general rules in the law, there are also almost always fact specific exceptions to those rules. For example, while ordinarily, writing a tough contract when dealing with a minority counterparty would not be a crime or fraud. But, if an easy contract was used with all non-minority counterparties, but not with minority counterparties and the client's instruction was intended to discriminate on the basis of race, it might very well be unlawful or even a crime, in some circumstances to do so, which would alter the lawyer's obligations. Even then, however, a lawyer would almost never be authorized to affirmatively draft a contract contrary to the client's instructions as opposed with declining to do that work at all. | Yes. The formation of a contract requires (among other things) that the parties intend to be legally bound. Their sending the offer from a corporate email address shows this. You replying in the same way shows your intention. Signatures are optional. Consider, verbal contracts are binding; how do you sign those? | as a witness. You secretly disapprove of the thing taking place Does this actually invalidate the document (as not properly witnessed)? No. In regard to the substance of a contract, witnessing does not imply, entail, or require approval thereof by the witness. The meaning or relevance of a witness's signature is nothing more than him or her certifying that the act of "2+ other parties entering a contract" took place indeed. And are you committing a crime by doing it? I highly doubt it, regardless the country or jurisdiction. The witness's [bizarre] act of acquiescence falls short of criminal conduct such as (1) forging someone else's signature, or (2) fraudulently "acknowledging" the presence of the contracting parties when in fact at least one of them was totally absent. Only if the witness subsequently acts in a way that hinders the purposes of the contract, thereby causing harm, the harmed party(-ies) might sue the witness for tortious interference with business or relation (or its equivalent in other non-U.S. jurisdictions). For instance, suppose a contract-based transaction requires involvement by a third party, who is hesitant to perform the transaction because suspects that the witness's signature was forged. That suspicion may prompt the third party to inquire of the witness whether he actually signed as witness to the contract. If the third party rejects the contract-related transaction due to the witness's [false] denial, the harmed party(-ies) in the contract may sue the witness for any losses (examples: bounced checks, costly delays, missing of deadlines, provable loss of business opportunities) that his false denial caused. | In some jurisdictions it's against the code of ethics. For example, in the united-states, Model Rule of Professional Conduct 5.4(b) says: A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. The idea has to do with independence: Lawyers are officers of the court and—as members of a regulated profession—can be bound to professional codes. Talented leader/organizer/visionaries aren't bound in any such way. The comment to the Rule explains, "Where someone other than the client pays the lawyer's fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer's obligation to the client." This can create a conflict, and states resolve it by regulating the partnership's composition. Other jurisdictions go even further and it’s prohibited in law. | The solicitor is allowed not to accept a case. If your ex-wife asked him to prepare papers, and he feels that she is getting ripped off, it is absolutely understandable that he won't prepare these papers for her, because he doesn't want to be sued or badmouthed when the deal goes wrong. "We would also reserve the right to take our own professional advice as to our efforts on your behalf." means simply he is not specialised in some subject, and will prefer to ask someone who is. Like a medical doctor asking for a second opinion before going ahead and cutting your leg off. Now I would have preferred if the solicitor had said concretely what exactly is wrong with the contract. Also, it would be obvious that you would be very comfortable with anything that he would advice her against. If he thinks that it is a good deal for you but not for her, he should advice against it. (Your comment to another question seems to indicate that she should be paid a lot more than you offered, so her solicitor seems to have been perfectly right). | You're thinking of "unconscionability." In the United States, the general rule is that a contract provision will not be deemed unenforceable for unconscionability unless it is both procedurally and substantively unfair. A provision is considered procedurally unfair if it results from some sort of unfair asymmetry in bargaining positions. This could include situations where a party was acting under duress, had a diminished mental capacity, or unequal experience in the . A provision may be considered substantively unfair if it imposes disproportinately unfavorable terms on one party, perhaps by imposing costs far out of line with market prices, or by allocating all risk to that party. If the agreement is not both procedurally and substantively unconscionable, it won't be voided. So the Google TOS may be procedurally unfair because Google's market position gives it disproportionate bargaining power, but because they don't really impose any serious costs on you, they aren't unconscionable. Similarly, a contract provision requiring you to give me your house if you ever forget to turn off the porch lights at night wouldn't be unconscionable if it was agreed to after lengthy negotiations between our lawyers. | There is no significant difference between the two and it is simply a matter of (modern) legal writing style. Traditionally, contracts were always written in the third person, but starting sometime in the late 20th century (if I had to hazard a guess, I'd say sometime in the 1980s), the innovation of writing in the first and/or second person was developed and found to be more readable for most people, especially in contracts of adhesion. | There have been cases in the UK where paying someone's legal bills was interpreted as joining their case. So when A with no money libels someone, and B with deep pockets pays A's lawyer, then B risks being held liable for damages if A gets convicted. So B should be very careful. Just giving you money is probably the safest. But attorney-client privilege is between attorney and client. I have been laid off twice with my company asking me to take an employment lawyer and paying for it. (Interestingly each time the bill was exactly the maximum amount the company was willing to pay :-) It would have been absurd if my company could demand information that is under attorney-client privilege just because they paid the bill. Why did two companies pay the lawyers bill? Because that way they ensure that the separation is without problems. The lawyer explained the settlement contract and what it meant exactly. They also checked that the contract didn’t contain anything unacceptable which the company would have fixed. So if I had tried to sue them later I would have no chance to win (but there was no reason to sue). Another reason not to sue was that the company offered I settlement that was very significantly more than was legally required, but if you sued them you would only get what you got in court - most likely less than you would get without suing. So basically they paid to make sure I would have no reason to sue them later. |
Copyright status of restored works Suppose some kind of work was created long enough ago that the work itself has entered the public domain. But suppose the work has been "lost" so that it's not available anymore. Now suppose someone finds it, but the physical medium is somewhat degraded due to age, so the finder restores it so the work can be enjoyed, and perhaps transfers it to a more updated medium. Can the finder claim copyright on the restored work? Does the restored work count as a "derivative work" distinct from the original (no-longer-copyrighted) work? The example that has made me think of this is the UCSB Cylinder Recording Archive, which makes available MP3s created from old cylinder recordings. Most of the recordings themselves are from before 1922, so they are in the public domain, but the archive has engaged in technical work to recover the sound, and they are saying you would have to pay to use their MP3s for commercial use. It seems clear that if you had the cylinder yourself you could use the recording commercially without restriction. Can a third party that made an MP3 of the cylinder impose licensing requirements on the resulting MP3? Another example I was thinking of would be if I found, say, a lost story by Mark Twain in my attic, printed on old and perhaps water-damaged paper. If I recovered the text by looking closely at the paper and then made it available, could I impose a license on the text of Mark Twain's story (i.e., requiring people to pay me royalties to use it)? I'm most interested in how this would work under US law, but also interested if there are variations from country to country. | I would argue that no, there is no copyright for the restored work. Independent copyright is only possible for any original material added, as previously discussed on this site. In this case, the added work was a technical process rather than a creative process, and technical processes cannot be protected by copyright. Copyright licenses would therefore be ineffective. However, I believe one could still impose a license based on owning the copy as opposed to the copyright (contract might be a better term in this case). However, if a third party managed to obtain a copy through some other avenue, any such contract would not be binding on them and nothing could be enforced against them unlike with copyright laws. Another way a license might be imposed is through patent protections, as technical processes can be protected via patents. However, I'm not as familiar with patent law, and this doesn't appear to be the claim being made. | This is known as "film novelization"(For example, the novelizations of the Star Wars movies are film novelizations, created under license), and is copyright infringement unless made under a license from the copyright holder. Specifically, you would be making a derivative work of the original, by changing the medium. One of the rights provided by copyright is the right to control the transference from one medium into another. This, in my (non-lawyer) opinion, is unlikely to be found as fair use. There are four test factors for determining fair use(source), decided on a case by case basis: Transformative Character of the Derivative Work: Unlikely to be found in your favor, as nothing is transformed ("I don't change anything, the name are the same, everything is the same, it's just a conversion to textual form"). Nature of the Original Work: A narrative entertainment film, thus unlikely to be found in your favor. Amount and Substantiality of the Portion Taken: You've taken all of it; not in your favor. Effect on the Potential Market: You are essentially providing a free version of what copyright holders can often charge for; negative effect on their potential market. Not in your favor. | It should not surprise you that copyright protects the right to (among other things) make copies. There are limited exceptions that are considered "fair use", like if you reproduce a limited amount of text for educational, reporting, or review purposes. Giving your friend a copy of a large portion of the text just because they want it would almost certainly violate copyright. Whether the book is available or out-of-print has absolutely no bearing whatsoever on who holds the copyright or whether your actions violate it. This is very different from giving your friend the book itself. The book itself is covered under the "first sale doctrine", meaning that by buying a copy of the book, you buy the right to sell, transfer, or dispose of that particular copy, but it doesn't give you the right to make more copies. I will note that in practice, it is vanishingly unlikely that the copyright holder would ever learn of your isolated instance of limited infringement in the first place (especially since it's out of print), much less bring legal action against you for making a single copy that did not affect their bottom line. | If the author died in 1946 then copyright in his works expired at the end of 2016. The work is in the public domain. The relevant section of the Copyright Designs & Patents Act 1988 extends to the whole of the United Kingdom, but not Crown Dependencies or colonies. You need to be sure that the work is the author's own work. If someone else has contributed then the copyright endures until it expires 70 years after the death of the last of the authors. The same applies to art. If you want to reproduce artwork, say for a cover/sleeve design, that would also have the artist's copyright, which lasts for 70 years after that person's death. The typography of a book has copyright which lasts for 25 years from publication. | Copyright in the US is usually a civil matter. Meaning that the copyright owner can sue (typically for money damages or injunctive relief) an infringer. The criminal laws that we have are aimed at the reproducer and/or distributor. In other words, chances are that you won't get in any criminal trouble for accessing academic articles of dubious origin. But never say never. RIP Aaron Schwartz. | It might be a copyright violation. 17 U.S. Code § 102 - Subject matter of copyright: In general says: Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: ... (8) architectural works. So, the architectural work itself is likely copyrighted. (Unless it's not for some reason - if it's from before 1923, for example, any copyright is likely expired.) And what exactly is an architectural work? The law defines that here: An “architectural work” is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features There's one special exception to copyright that applies to architectural works in particular: The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place. So you could legally make a drawing of the building, assuming it's visible to the public. But it seems like you're doing more than that. | Copyright still exists even if you don't know who owns it In this particular case, however, the copyright has expired - UK copyright lasts for 70 years after the last author passes away. For a death in 1918, copyright expired on 31 December 1998. For other cases where the author was still alive in 1940 (for this year - 2020) but has since passed, the copyright belongs to their heirs and assignees. It's possible that you don't know who that is. It's even possible that they don't know that they own it. Doesn't matter, it's still copyright protected and those people (whoever they are) can enforce their rights if they want to. When you think that everything everyone ever writes, records, photographs, paints, draws etc. will have copyright for 70 years after their death and that most of that stuff has little to no value, is usually not explicitly dealt with in a will, and their heirs will generally not think to deal with it or pass it on in their will it's no wonder the world is full of orphan works. Some copyright legislation deals with this; the UK's does. You can pay the government for a 7-year licence for orphan works. If the right's holder ever comes forward, they get the fees collected. | It is not possible to say that this is generally fair use, although sometimes it would be. A copy for personal use is still a copyright right violation on its face, and fair use does not categorically exclude non-commercial or personal use of copyrighted works. It is a highly fact specific inquiry. The likelihood of anyone discovering that you have done so and deciding to sue over it is slight, but that doesn't mean that there isn't potential copyright infringement liability. Compare this to speeding. People do it all the time, and even driving one mile per hour above the speed limit is still a traffic violation. But it is rare for less serious violations to be ticketed. |
Who's liable for storage fees after car declared total loss? My car got into an accident and is at an auto shop. The claims adjuster came and deemed my vehicle as repairable. Then through more investigation, a supplement was requested and now my vehicle is deemed a total loss. I was contacted by my insurance representative to inform me that my car is a total loss and that I should release my car to be moved to their storage yard. Am I required to move my car even though they didn't offer me a fair market value for the car? If I do decide to keep my car at the auto shop until they offer me a price for my car, am I or my insurance responsible to pay the auto shop for any storage fee? What if they auto shop gave me a signed document stating that they will not charge me, personally, any storage fees? Can this be used legally if they were not to abide by their word, on the document? | You have the right to refuse the insurance company's offer and keep your car, but that would be self-defeating. You can keep the car at the shop, and you will incur storage fees; it is possible but quite unlikely that the insurance company will change its mind and offer you more money (unless you're contending that they made a serious technical error in computing the value). The insurance company has no obligation to the shop, but they might have an obligation to you (i.e. it might be a term of the policy that they will pay storage fees up to some limiting condition). Whether or not you have to move the car or pay storage fees is between you and the shop. If I understand your idea about a signed document from the shop waiving fees, you're suggesting that they might waive the fees if you end up having to pay it, but they would stick the insurance company for the amount if the insurance company were to pay. Again, the insurance company only pays what you owe, and under this scenario, you wouldn't owe storage fees, so the insurance company wouldn't be obligated to pay. If you were on the up and up about this, the insurance company would just say "No, that doesn't work". If you were not on the up and up about the arrangement, that would be fraud. | The reason an at fault driver is liable for damage in a collision is due to the tort of negligence. To be liable under negligence one of the many factors that the plaintiff (that's you in this case) must prove is that the damage you suffered was a reasonably foreseeable consequence of the defendant's (that's the U-turner) acts or omissions. This is where your case would fall down: a collision is a reasonably foreseeable outcome, damage to your braking system in normal operation is not reasonably foreseeable given that an emergency stop is something a breaking system should be able to do. This is simply a maintenance issue. | Yes, the police can give you a ticket for not having insurance/registration in the vehicle, even if they know it is registered/insured. The requirement is not just that you must have it, but you must carry proof of it in the vehicle. California Law (CVC §16058) requires that insurance companies electronically report insurance information to the DMV, which the officer has access to and can verify insurance. From the California DMV Page: Financial responsibility (commonly known as insurance) is required on all vehicles operated or parked on California roadways. You must carry evidence of financial responsibility in your vehicle at all times and it must be provided as specified below when: Requested by law enforcement. Renewing vehicle registration. The vehicle is involved in a traffic collision. The reason it must be in your vehicle is that when you are involved in a collision, you have to be able to provide that to the other party. And yes, you can receive the citation even if the vehicle is not yours. It is your responsibility as a driver to abide by the laws and verify that the vehicle is legal to drive. California Vehicle Code (CVC) §4000(a)(1) requires registration: A person shall not drive, move, or leave standing upon a highway, or in an offstreet public parking facility, any motor vehicle, trailer, semitrailer, pole or pipe dolly, or logging dolly, unless it is registered and the appropriate fees have been paid under this code or registered under the permanent trailer identification program, except that an off-highway motor vehicle which displays an identification plate or device issued by the department pursuant to Section 38010 may be driven, moved, or left standing in an offstreet public parking facility without being registered or paying registration fees. I'm not advocating that you should just "suck it up and pay" this ticket. I would certainly bring proof of registration/insurance at the time of the ticket to your court date and provide that you are not the registered owner of the vehicle (you don't say, but I assume you were borrowing a friends vehicle). The court should look at that evidence and issue a warning or dismiss the ticket. | At this point, there is little legal recourse. Once the delay becomes "unreasonable", you might be able to sue them and get some compensation. I do not know what would constitute an "unreasonable" delay in your circumstances and I don't doubt that a month seems unreasonable. You have explained the reasons for the delay, so it's not like they are waiting around for no reason. They are not required to hire more agents to process the claim; unfortunately, they are not legally required to act in a fashion that customers like (i.e. aggressively work to solve the problem). It does sound like there is a customer-service problem, which is what reviews and the BBB are about. You can of course be on the phone with the mechanic and the insurance agency, and if things get severe you can file a complaint with the state insurance commissioner. | From a comment on the question: They did damage the trailer door and headlight is smashed This seems like the best thing to focus on, especially if you can show that it was not damaged before they towed it. The unusual method of towing (with video evidence) may be a factor in whether they are considered negligent. If the damage to the door looks like they caused it directly by breaking in, that would also help your case. You also asked in your comment if you should go to the police or to a lawyer first. Might as well go to the lawyer and see what they tell you to do. I'm not sure what the police would do if there is no clear crime that has been committed. (The lawyer should have better advice about whether/why to go to the police.) | The fault lies with the people who vandalized your house. In general, whoever causes you damage is responsible (liable) for that damage. This is true whether or not you are selling your house, having guests over, letting a friend stay over for a night or a week, or whatever the circumstance is. Insurance is there to cover many such losses: if a friend trashes your house in a drunken rage, your insurance will cover the damage, but they will invoke the doctrine of subrogation whereby they get to go after the friend, and you have to cooperate. In a situation where nobody has a clue who did the damage, the only possible way that the agent has any responsibility is if they were negligent in their duty to take care of the house. For your specific case, you'd need to discuss the forensic facts with your attorney. But generally speaking, the issue would be whether the agent had breached his/her professional duty of care, which is best understood as comparing his actions (or lack) compares to actions of other professionals in the same circumstance. If a house has 3 or 4 sets of visitors simultaneously, it is really not possible for an agent to supervise all of them at once. So the question would be, was this the result of one concentrated vandalism attack, or serial vandalism. The former is more in the realm of "stuff happens", and the latter is indicative of an endemic lack of care. To repeat, the fault lies with the miscreants who vandalized your house. You, or your insurance company, may nevertheless have to bear the financial burden. Your insurance company will certainly have an interest in spreading responsibility to the realty firm, if warranted by the facts. | There is no such thing as an "implicit" out clause in a contract like this. The onus was clearly on them to consider all the facts before agreeing to lock in an interest rate. The facts have not changed since the lock and you did not misrepresent the facts so they should honor their agreement or pay you damages. Your options are to take the deal, get a new deal elsewhere or take them to court to enforce the deal or recover damages. Those aren't particularly great options but that's the situation. | "Hit and run" isn't a precise legal term, but there are laws against what many people call "hit and run" in California. §20002 of the Vehicle code covers property damage without injury, and violation of the section is a misdemeanor possibly resulting in up to 6 months in prison and a $1000 fine. If you cause property damage either while driving or because it was parked and became a runaway vehicle, you are required to notify the property owner. If the owner cannot be located at the scene, you must leave your contact information and a description of the circumstances, and you must notify the police. It is irrelevant whether this was on the street or in a parking lot, because the law will "apply upon highways and elsewhere throughout the State, unless expressly provided otherwise". |
Is it illegal to download copyright videos for free? I want to publish fan-made videos on YouTube that contain clips from movies and TV shows. No money will be gained for myself. Is the act of downloading those movies and TV episodes for free, editing them, and publishing them legal in America? | Evaluating a potential copyright violation is very fact-intensive, so we don't have enough information to answer the question. Making a copy is generally going to be a copyright violation, but there's still going to be a lot of breathing room under the fair use doctrine. Again, we'd need more details to provide a useful answer, but you may be able to analyze the question yourself using the following information. Analysis of fair-use defenses looks at four questions, and the answers to the questions can tip the scales in favor of or against a finding of fair use: Does your kind of copying affect the market for the original? To what extent can your copy fulfill the demand for the original? What if there were widespread copying of the kind you're considering? The more potential there is for the copies to replace the original, the less likely it is to be fair use. This is the most important factor in the analysis. Why did you make the copy? If you made the copy for purposes of news reporting, criticism, or commentary, it's more likely to be fair use. If you made a copy just so you could watch again later whenever you feel like it, that's may still be fair use, but it is somewhat less likely. If you made a copy so you could sell it for profit, that's almost certainly not fair use. How much did you copy? Did you copy the whole thing, or did you copy only as much as you needed to achieve your purpose under Question 2? If you copy "too much" -- both in the raw amount and as a fraction of the whole work -- it's less likely to be fair use. What did you copy? Such works can be copyrighted but are not part of the Highly creative works, such as poems, music, and movies, are at the "core" of copyright principles. A fair use analysis will be more stringent in these cases than when copying a purely factual work, such as a phone book, biography, or list of statistics. This is the least important factor in the analysis. So take all of those and imagine the answer to each on a spectrum. If you see things generally tipping in the direction of fair use, that's a good indication that you're going to be safe. If you see things tipping in the other direction, you may want to reconsider. Again, these can be notoriously tricky questions. If you're dealing with a real situation, you should consult an attorney to get an answer specific to your situation. | Copyright reserves to the copyright owner the exclusive right to reproduce the work (Copyright Act, s. 3; 17 U.S. Code § 106). Downloading a copyrighted work is a reproduction of that work and would be an infringement unless excepted (e.g. you have been given a licence, your download is fair dealing or fair use, etc.). Canada lists downloading as an example of infringment. And the United States says: Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner's exclusive rights of reproduction and/or distribution You say: "uploading to Z library is considered illegal." This implies the content on Z library is generally protected by copyright and not licenced for distribution via Z library, but that is a factual question. | Everything you see there is copyright and trademark the Tolkien estate or a derivative work thereof. It's all illegal. | By "buying the song" on Gumroad you don't actually buy the song, you buy the right to do specific things with that song. I couldn't find the exact license terms, but for 800 Yen (about $6) for a whole album I highly doubt that this will include much more than the right to listen to the song on a private device. The rights to publicly perform, reproduce, redistribute, use commercially etc. usually cost a lot more. So if you want the rights to use the song in your own video, you will have to negotiate the purchase of a license which allows you to do that with the creator. Or if they reassigned their copyrights to a music label or copyright collective (which some music artists do), with that organization. There are some exceptions in the copyright laws of some countries where you can use parts of a song without a license. For example, the "fair use" exception in US copyright law if you review, discuss or analyze a song. But such exceptions usually don't apply if you use the song as background music, adapt the song into an own work or even just reupload the song on your own channel. | Making a profit does not make the act illegal: it is illegal without there being any profit. The act of copying without permission is what makes the act illegal. Profit might maybe enter into the matter if you are talking about the "fair use" defense, since certain kinds of works can be partially copied for certain purposes. You could quote a few lines from a novel in a review, for instance. The judgment of whether a given act of copying without permission is allowed under fair use is complex and involves a balancing act. Profit becomes relevant in that a non-profit use favors fair use and a for-profit use disfavors it. Wholesale copying of works of art as you describe is illegal (is infringement). However... "illegal" is a pretty broad concept. If you infringe on my intellectual property, you almost certainly will not suffer any consequences unless I sue you. Taking "illegal" to mean "in violation of the law", infringing copyright is illegal because it violates the law, but I have to make a federal case out of your infringement – I have to sue you. As it happens, it can also be a crime to infringe copyright, and in that case, the government and not the copyright holder pursues the matter. If a person knowingly infringes copyright, he might be prosecuted, thus the Megaupload case which in the US is realized in the indictment US v. Dotcom. Moreover, profit motive is a required element for criminal infringement. (Also note that you don't have to actually make a profit for the profit element to be present). You cannot sue a person unless they have harmed you, so if you know that Smith copied Jones' work you can't sue Smith for harming Jones. (This is what they call "standing"). You might sue Smith, but not for infringement itself. If they sold you an illegal infringing copy, then you could sue. Or, their infringement could diminish the value of your legal copy. This website gives a multi-nation overview of criminal copyright infringement laws. | You can’t use pictures You can’t use any of these, nor can you make your own art that is derived from these. That’s copyright infringement and there is no fair use defence because you are specifically trying to do something Nintendo already does. You can reproduce that stats of the Pokémon because stats are facts (even if they are facts about fictional things) and facts are not protected by copyright. | Literal Answer: Anyone can file a lawsuit for anything, doesn't mean you will win or that the judge will let it go as far as trial, but you can certainly file a lawsuit. Deeper answer: Yes they can file a lawsuit assuming they have been given authority to represent the copyright holders. The problem with succeeding in such a lawsuit is proving who is liable. This is contractual, but as the ISP customer it's possible that you signed that you would be responsible for the traffic going to your ISP. If this is not the case, it can be hard to prove who is responsible. There is also the issue of did the movie actually download? Just because you clicked a link to download, does not mean a download happened and that could be hard to for the other side to prove. Then there is the question of what is the intent of the letters? Do they want people to be aware that they will be caught and stop pirating or do they really want 4,500 X 25,000 Swedish Krona? Whether they sue the non-payers or not likely comes down to how many people send in the money but in any case it is in their best interest to make the public at large believe that they will be sued. | No. There are certain provisions of section 230 that carve out what liability these companies have for third party (i.e. User) speech on their web pages in 230(e). 230(e)(2) says that nothing in Section 230 may be construed to limit or expand laws reguarding intellectual property. These services are still on the hook if users post trademark or copyright infringing material to the site. Other such matters similarly not permitted include obscenities laws, exploitation of children laws, state laws, communications privacy laws, and sex trafficing laws. As a special note that section 230 was created to allow for emerging internet technologies and buisness to not have to worry about third party speech on their platform from holding them liable as a publisher. Thus, if I was to sue youtube for defamation of character based on a video you uploaded, calling me a Sith Lord, I could not sue Youtube (who has lots of money) but would rather have to sue you (who I presume does not have lots of money... at least not youtube/Google levels of money). Thus youtube cannot be civilily liable. It can still be criminally liable and liable for copyright infringement. |
Do items that I purchase for a business and for myself count as business expenses? I know that when creating a business (specifically an LLC), I need to keep track of business expenses. But what exactly constitutes a business expense? If I buy a camera that I use for the business, but also for personal use, is that a business expense, or are business expenses things that I only use for the business? Am I supposed to mix personal and business items like that? I'm interested for bookkeeping purposes. Do I need to keep track of those expenses? | The IRS summarizes the rule as follows: Generally, you cannot deduct personal, living, or family expenses. However, if you have an expense for something that is used partly for business and partly for personal purposes, divide the total cost between the business and personal parts. You can deduct the business part. For example, if you borrow money and use 70% of it for business and the other 30% for a family vacation, you can deduct 70% of the interest as a business expense. The remaining 30% is personal interest and is not deductible. Refer to chapter 4 of Publication 535, Business Expenses, for information on deducting interest and the allocation rules. Business Use of Your Home If you use part of your home for business, you may be able to deduct expenses for the business use of your home. These expenses may include mortgage interest, insurance, utilities, repairs, and depreciation. Refer to Home Office Deduction and Publication 587, Business Use of Your Home, for more information. Business Use of Your Car If you use your car in your business, you can deduct car expenses. If you use your car for both business and personal purposes, you must divide your expenses based on actual mileage. Refer to Publication 463, Travel, Entertainment, Gift, and Car Expenses. For a list of current and prior year mileage rates see the Standard Mileage Rates. In practice, a mixed use expense will often be disallowed unless you can document in some way the percentage of use that was business related (e.g. with some kind of log). For inexpensive items, it is often cheaper and easier from a bookkeeping perspective to have dedicated business and dedicated personal items, even if it means that there is some duplication of purchases. Also, if property is owned by the LLC, but used for personal purposes by the owner of the LLC, this will very likely destroy the limited liability protection associated with the LLC. Comingling of business and personal property is a leading reason to pierce the company veil. | Why do you think they have the same shareholders? There’s no reason to believe that they are related corporations just because they share an address. I am shareholder and director of 4 corporations. 3 have the same shareholders in the same proportion. The other has different shareholders. All of them have their registered office at my accountant’s premises. It’s a small suburban practice so there are probably only a few hundred companies at that address. A large city practice would have thousands or tens of thousands. The property management company probably provides the same service. | This will depend partly on what you use the e-commerce website for. If it is simply a point-of-sales and your accounting records are kept elsewhere, then it may be possible to delete their account including associated orders and payments, though you should check that the software doesn't simply update the record by setting the value for a column named deleted or del for short to 1 instead of 0 to identify deleted records, but instead actually deletes the record from the database. You should consider how you will refund a customer if required after doing so!! (i.e. perhaps you acknowledge the request but keep the information for at least as long as the customer is eligible for a refund, and then delete it). If the system is also used for accounting records, then if a customer/user wishes to assert their right to be forgotten, it is likely you'll need to disable the account and apply some kind of pseudonymisation (essentially replacing personal identifiers such as name, email address, date-of-birth, with dummy/null data), in order to preserve the integrity of your financial records. For example, in the UK, there is a statutory obligation on companies to retain financial records for at 7 years. In cases where data cannot be immediately erased due to other legitimate reasons for which it must be kept, once those retention periods expire the data must be erased. You'll need to keep a record of anyone that requests to be forgotten, and remember to follow-up to complete erasure at the appropriate dates if it can't be done immediately, and when the data is destroyed the user needs to be informed. | According to the information I was able to find, every zone, country, or even states, have their own taxation rules for sales made there. Correct. Well, in no way it's possible that small companies or individuals that sell products internationally deal with tax rules for each buyer, that would be a non-sense, and paying such taxes worldwide would be a nightmare not worth having a small business at all. You are required to comply with the law. If it is complicated, or difficult or expensive to do so then, it's complicated, difficult and expensive and you still have to do it. The answer is obvious: if it's not worth having a small business, don't have a small business. The main question, if someone buys a license from my web-site, is it considered a sale in the buyer's country/state which requires me to collect and pay some remote tax, or it's a purchase in my country/state which requires me to collect HST from that buyer? It depends on the law in both Canada and the destination country. In most cases, the sale will be an export sale from Canada (GST/HST exempt) and an import sale in the destination country - requiring you to comply with GST/HST obligations there. Another question is regarding invoices, I know that Canada requires certain information to be included into an invoice for sales in Canada. If my sales will be considered sales in a buyer's Country with some other rules, does it mean I have to manage tons of invoice templates? Yes. Let's say if my sales in UE exceed 30K EUR it looks like I need to register and pay VAT there. But what if I have less? Then you don't need to register and remit tax. Nor are you allowed to collect it from your customers. By the way, I have no idea what country in the Eurozone goes by the initials UE. In most jurisdictions, you need to register either when you reach the threshold in fact or reasonably expect to reach the threshold. Also in most, you can usually register even if you are below the threshold. For example, these are the rules for Australia. Anyone, please advice. Hire an accountant versed in international digital services. They will be able to give you the advice you need. They will also be able to recommend sales/payment platforms that can handle most of this for you (for a fee, of course). | 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. | In general, "a signed piece of paper" is not "a contract". It may be a record of a contract, but the contract itself is the meeting of minds where an agreement is reached and doesn't depend on the existence of the piece of paper. (Depending on the jurisdiction, some sorts of contract are required to be in writing, but this doesn't usually apply to employment contracts; it's usually contracts involving land.) What is far more worrying to me is that you don't know how much they are going to pay you. That suggests there hasn't been a meeting of minds, and there is no contract. (It might be that "the going rate" is good enough to form a contract - to determine that would require advice from a local lawyer.) I suggest you don't write up a formal agreement, but nag your boss to decide how much they are actually going to pay you. | Defining the value of a privately held company is hard (tax returns don't provide a very informative basis because accountants will tend to under-value things like "goodwill" in order to avoid paying tax). However that doesn't matter for this stack, because the only legal question is: If I had some means of coming up with a number and presenting it, would it be legally acceptable to define that as their company value in a license? And the answer is: absolutely yes! You are pretty much entirely free to define terms in your license as you see fit. If you want to define "company value" as meaning "the annual gross salary paid to receptionists", go for it. (You would probably need to define what a "receptionist" is in this case). | This has very little legal effect. It means that someone forgot to update their annual registration and pay the fee and could be resolved in half an hour with a small late fee payment. It is a sign of slight sloppiness, but is only sometimes evidence of something more serious. For example, if a company moves to a new location without remembering to inform the Secretary of State, it might not get the annual report notice and thus fail to file. And, a company rarely has an occasion to double check that it is in good standing. Usually, the only legal consequence is that the company can't commence a lawsuit without bringing itself into good standing and that another company can steal its business name (if it can do so without violating a common law trademark arising from use of the name). It does not significantly change the rights of parties dealing with the company in terms of property ownership, contract rights, etc. This said, closer scrutiny than a company without that issue might be in order and the fact that you are checking at all means that there might have been other reasons apart from this fact to be concerned. |
Reinterpretation of copyrighted work in another medium (film to song) I've been reading about derivative works and general copyright, but I'm struggling to understand the scope of what is a derivative work. Allow me to present my situation. I have written a concept album, it is a retelling of a story previously told in a movie, let's say Robocop. At no point is the film tile Robocop referenced, the song titles and plot points are designed to be familiar to fans of the movie. A few character names are referenced, and a few lines of dialogue are referenced but the vast majority (99.9%) is original lyrics describing similar scenes and characters. Is this a derivative work? Does this require a licence? Would it be an infringement? It is essentially a fan homage in song form. My understanding is that as this doesn't contain any mechanical part of the original movie it is fine. Sorry if this has already been discussed, I couldn't find anything which covered exactly what I want to ask. Update: I though I would add some examples. This House Is Not For Sale - Ryan Adams is very similar to the story of the film Beetlejuice, but at no point directly references it. Far Gone - Pictish Trail contains the line She wouldn't stop screaming which has been acknowledged as being from the film Fargo and also uses a remixed sample from the Fargo movie soundtrack as the hook. Are these derivative works? Would they be infringing upon IP laws without some kind of licence? And how would they compare to the situation I have outlined? | 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. | The images as displayed are quite similar, similar enough that one could violate the copyright of the other. But that is not enough to know if there was in fact a copyright infringement. There are several possibilities: Although using different names, the developers could in fact be the same company. One developer might have obtained permission to use the image from the other. Both images might be based on the same 3rd-party image which both are using with permission. Both images might be based on a public domain image. Copyright is only infringed if a protected work, or a derivative version of the work, is used without permission from the copyright holder. Without knowing who the rights-holder is, and if permission has been obtained, one cannot know if an infringement has occurred. There is no independent or 3rd-party entity that checks for copyright infringements. By the way, the similarity here is close enough that there might also be an issue of trademark infringement. But again, infringement requires use of a protected mark without permission, and so some of the same possibilities arise. (The source of a trademarked logo doe not matter. On the other hand there cannot be trademark infringement unless the mark has been registered, or actually used in commerce. If the same image is used on products in very different industries, say games and hammers, there may or may not be infringement.) | Under United States law, copyright is normally held by the creator of a work. There is one major exception to this rule: the "work for hire." If something is considered a "work for hire" under the copyright statutes, the copyright is held by the employer. Whether something qualifies as a work for hire is a complex analysis: here is a Copyright Office circular covering some of the basics. To be clear, I'm not giving an opinion (and I don't have enough information to give an opinion) on whether any specific works you or your fiance may create or commission qualify as "works for hire." It's a narrower test than you probably think it is. If the work is not a work for hire, the copyright holder owns the copyright, and anyone else can use it only with a license from the copyright holder. A license can be implied by the parties' behavior and communications--but it shouldn't be. If you're in a situation where you need to know, for example: That you are allowed to use the artwork forever, and the artist can't ask you to stop later; That you are allowed to change the artwork if you need to, even a simple change like cropping or adding a filter or text; or That, if your product is successful, the artist won't be able to sell another license to someone else to compete with you; then you need a written contract spelling out who owns the copyright and what the rights of the other party are. A lawyer can draw up a simple, re-usable form contract for you cheaply that will prevent the problems you're worried about. Remember: even if this is a work-for-hire situation, if you need to prove that down the road, it may require a trial, or at least preliminary motion practice, to do so. That's a lot more expensive than getting your ducks in a row now will be. tl;dr: Get a lawyer. If you're in a major city, there may be a local arts law organization that will provide you with free help for a simple job like this one. (Volunteer Lawyers for the Arts operate in several East Coast cities, and I know many top commercial lawyers who do pro bono for them). | Am I as the user of this site in any way liable if the music turns out to violate copyright? Yes. In a similar way to if I give you “permission” to take my neighbour’s car. Only worse. Because stealing requires intent - you have to mean to do it - while copyright violation is strict liability - if you do it, you’re guilty. If the user that uploaded the item did not have the authority to give the site permission then the site does not have permission and neither do you. If you take reasonable precautions such as performing a reverse image source and verifying that the item appears to be owned by the same person everywhere and, perhaps, reaching out to them then your violation will be an “innocent” infringement which mitigates but does not eliminate damages. The only way to be sure with copyright is to know the provenance of the copyright/licences back to the original creator. | One reason could be because of the scènes à faire doctrine. Many of the things you notice as similarities are not infringement. I don't know the counts of lawsuits for music infringement vs screenwriting infringement. There may just be more songs than screenplays. Screenwriters/producers do get sued, though. See Cinar Corporation v. Robinson 2012 SCC 25. | The subtitles would be protected by copyright, in general. In the US, temporarily downloading the subtitle text to create statistics would, I think, constitute a fair use. It is transformative, it does not serve as a substitute for the original sub titles, and it does not harm the market for the film or for the sub titles. The existence of the API for the subtitles might or might not be evidence for fair use, depending on who supplied the data and under what terms. In other countries that have an exception to copyright for analysis and criticism, such a download might be held to come under such an exception. One cannot be sure until there is case law on the point, and I know of none. The ruling might be different in different countries. Statistics (words and their counts) about the subtitles for a particular film or video would be facts, and as such would not be protected by copyright at all. A text discussing those facts would be protected. | Such an image is copyrighted, as part of the movie. You cannot legally use it without permission from the copyright holder, unless the use of the image falls under fair use (note that fair use is a strictly US legal concept. It does not apply anywhere else) or a similar exception to copyright, such as "fair dealing". There are multiple factors which must be considered in making a fair use judgement. No one factor ever totally controls the decision. It is a case-by-case decision. But several things about your proposed use suggest to me that it will not qualify as a fair use. The image is part of a creative work, not a work of non-fiction such as a news report or a textbook. That weighs against fair use. You seem to be using the whole image, although it is only part of the movie. That probably weighs against fair use to some extent. A use in "a social media post regarding a sales vacancy" sounds commercial to me. If so, that would weigh against fair use. The copyright owner might well wish to market images from the film. If so, and if many people used images from the film as you propose to use this one, that might harm the market. This weighs against fair use. You don't seem to be making any comment on the image, or using it in any significantly transformational way. That weighs against fair use. Use of the image does not seem vital or even important to the message you intend to communicate. That also weighs against fair use. In short, I think you would be wiser to use an image that you have or can get permission to use in this way. If you use this image, it is possible that the copyright holder would sue for copyright infringement, or issue a DMCA take-down notice, or both. | Recording the original work and editing that record is a breach of copyright. You are taking unauthorised copies of the original music and lyrics when you make the notes, and creating derivative works when you alter the notes of the song to match what you think they should be. Performing the songs is a breach of copyright in countries that don't provide for it explicitly (the USA is notably strange on this point). You cannot simply just take a piece of music and perform it this way everywhere, even for church service. In sum, what you're doing is at least partly and could be fully illegal. |
How far does a US state's sovereignty extend? Can the State legalize all drugs within its jurisdiction? In United States, individual states are considered sovereign. Meaning they can create their own laws to govern their own people. Federal government makes laws that control the interaction between states, and insures that constitution is upheld. To enforce compliance with federal programs, congress uses the the spending clause to limit the amount of federally available funds to a given state. Besides cutting the funding, can the federal government do anything to a state, when the state creates internal rules(not conflicting with the constitution) that are contrary to federal government's ideas? | The state can decriminalize all drugs under state law, no problem. They merely have to repeal their version of the Uniform Controlled Substances Act and all related legislation. However, the federal drug statutes, contained in 21 U.S.C. 13, still apply because of the principle of dual sovereignty (if a state tried to explicitly overrule them, the Supremacy Clause would come into play). Let's take a look at some of the statutes under Title 21, Chapter 13, of the U.S. Code. Section 801 of that chapter described Congress's findings in enacting the Controlled Substances Act. §801(3) through (6) provide the basis for federal authority to regulate intrastate affairs with respect to drug trafficking and possession. The section claims that intrastate drugs "contribute to swelling the interstate traffic," and concludes that "federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic." Thus, the federal government will continue to enforce the federal controlled substances laws regardless of state legalization. A notable exception is the Rohrabacher-Farr amendment, which bans DOJ from using federal funds to prosecute medical marijuana programs legal under state law. However, the federal government isn't always successful in (and doesn't always attempt) regulating intrastate behaviors using its interstate commerce authority. For example, the original Gun-Free School Zones Act of 1990 (since amended and complemented by a 1994 law using the condition-of-funding approach), was struck down by the Supreme Court in United States v. Lopez, 514 U.S. 549 (1995). The law, banning possession of handguns near schools, was found to be an overreach of the Commerce Clause authority. But it was amended by adding the additional interstate nexus of the gun having been moved interstate, which was a very minor limitation in practice. Since it only exempts individuals with a license issued by the state where the school is, it has significantly limited the ability of states to pass "constitutional carry" laws and allow for CCP reciprocity, because many highways and homes fall within its reach. So, if a state is willing to lose all of its federal funding, then Congress can't ever force it to create, maintain, or enforce a state law. But in many ways, the federal government can still enforce its will through criminal law on a number of intrastate activities. | Because the courts or the legislature decide they have them There is no doubt that both the courts and the legislature in common law countries have the ability to find, create, or extend rights and this has been done in the past. This is, in fact, where legal rights were created. The US Bill of Rights was created by the people in 1791. If the people in 2191 want to grant rights to AIs then they can do this. This is legally possible. Whether it's a good idea is a matter of philosophy and politics. | This is a law of American Samoa. American Samoa is not a state of the US. American Samoans are not automatic citizens under the 14th Amendment. The 14th Amendment says "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws". | It's a bit of an oversimplification. You're correct that there is a federal law against murder, 18 USC 1111. However it applies only to a murder committed in the special maritime and territorial jurisdiction of the United States. This covers situations like crimes committed on federal lands such as national parks or federal buildings, or crimes on US-flagged ships at sea, aircraft in flight, or in space. It does not apply to "ordinary" crimes committed at most locations within the US. 18 USC Chapter 51 covers a few other situations, such as murder of a federal officer, foreign diplomat, by incarcerated or escaped federal prisoners, US nationals murdering each other while abroad, and so forth. The idea is that these restrictions keep the laws within the enumerated powers of Congress as stated in Article I Section 8 of the US Constitution. A federal statute covering all murders throughout the US would probably be unconstitutional for this reason. So while what he says is not strictly correct, it is true that in the vast majority of cases, murders are covered by state laws and not by federal laws. Even if one was to agree with Ramaswamy that medical abortions are a form of murder, even still, no federal murder law currently on the books would apply to a typical abortion, except under very unusual circumstances. | Commerce Clause US Constitution Article I Section 8: The Congress shall have power [...] To regulate commerce [...] among the several states [...] This was explicitly used as the justification for federal regulation of radio, going all the way back to the Radio Act of 1912, Pub. L. 62-263 (37 Stat. 302): Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That a person, company, or corporation within the jurisdiction of the United States shall not use or operate any apparatus for radio communication as a means of commercial intercourse among the several States, or with foreign nations, or upon any vessel of the United States engaged in interstate or foreign commerce, or for the transmission of radiograms or signals the effect of which extends beyond the jurisdiction of the State or Territory in which the same are made, or where interference would be caused thereby with the receipt of messages or signals from beyond the jurisdiction of the said State or Territory, except under and in accordance with a license, revocable for cause, in that behalf granted by the Secretary of Commerce and Labor upon application therefor ; Nearly every meaningful radio transmission has an effect that extends beyond state lines, so this covers practically everything. This has been upheld by the Supreme Court: Federal Radio Commission v. Nelson Brothers Bond & Mortgage Co., 289 U.S. 266 (1933): "No question is presented as to the power of the Congress, in its regulation of interstate commerce, to regulate radio communications. No state lines divide the radio waves, and national regulation is not only appropriate, but essential, to the efficient use of radio facilities." Fisher's Blend Station, Inc. v. State Tax Comm'n, 297 U.S. 650 (1936): "By its very nature, broadcasting transcends state lines, and is national in its scope and importance -- characteristics which bring it within the purpose and protection, and subject it to the control, of the commerce clause." As a general rule, any time you wonder why the federal government is allowed to regulate something that isn't explicitly mentioned in the Constitution, nine times out of ten the answer will be "Commerce Clause". | Let's look at the Ur-example of a free-speech law, and the most wide-ranging, the First Amendment to the Constitution of the United States of America. It says (my emphasis): Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. This limitation applies only to the government. Indeed, it has been argued that this limitation only applies to the legislative branch of government and not to the executive (except when exercising legislatively delegated power) or judicial branches. Certainly, the courts have held that it is within their power to issue "gag" restraining orders. Notwithstanding, it imposes no restrictions on how non-government actors can limit your free speech. The owner of a shopping centre can require you not to evangelise, the owner of a stadium can require you not to use offensive language and the owner of a social media platform can restrict your speech in any way they wish. You have a right to talk - they have a right not to give you a platform. | If such a bill passes as written, it removes any federal criminal prohibitions against marijuana (assuming their research was sufficiently thorough), and raises marijuana to the same legal status as celery salt, which simply is not mentioned by federal criminal law. There would be no federal declaration that marijuana is now legal, and therefore, when federal law is silent, state law can say something. If silence at the federal level precluded state law on the topic, there could be not any state law – the Supremacy Clause only addresses conflicts. The bill could also be written to include a positive declaration that there shall be no laws against marijuana, and that would create a conflict with state law. Often, conflicts are avoided by crafting a jurisdictional difference, such as having laws that only apply while on federal property, or w.r.t. federal employees. The Constitution is structured to separate what the federal government can do versus what state governments can do, so that conflicts don't arise – however, the Commerce Clause ends up being used to expand federal power (e.g. the Controlled Substances Act). As Nate Eldredge comments, there is a huge difference between what is allowed under federal vs. (certain) state laws w.r.t. fireworks, and even town-to-town variations in fireworks laws. Numerous "professional" acts are completely legal w.r.t. federal law but are illegal at the state level. No federal law prohibits me from practicing as an attorney: it's state law that does that (likewise, being a cosmetologist or selling beer). | Your assumption is incorrect -- the Bill of Rights proper does not apply to the states, and pre-14th Amendment only bound the federal government. See Barron v. Baltimore, 32 US 243. States could do whatever they wanted, subject to federal legislation on the matters given to the federal government and subject to their own constitutions. After the Civil War, the federal government was much less OK with so-called "black codes," restricting the rights of freedmen based on explicitly racial distinctions, with not even a fig leaf of justification that it applied to all citizens. The federal government could prevent federal discrimination, but no tools existed to prevent state discrimination. Hence, the 14th Amendment, which bound the states to adopt certain standards in their lawmaking and let Congress take action against those that didn't. |
Perjury in State of the Union message? The Constitution requires the President https://en.wikipedia.org/wiki/State_of_the_Union to report to Congress on the "State of the Union". The Constitution is vague on the manner of reporting and the frequency: He shall from time to time give to Congress information of the State of the Union and recommend to their Consideration such measures as he shall judge necessary and expedient. — Article II, Section 3 of the U.S. Constitution In recent times the reporting has been by a speech to the combined House and Senate, with widespread media coverage. In making this Constitutionally mandated report to Congress, is the President subject to perjury charges if he should lie to Congress? | No. The federal perjury statute applies only when there has been an oath taken to assert that the false statement was true, or the false statement was otherwise submitted under penalty of perjury. There is another statute concerning false statements generally, but it is also limited in such a way that it would not apply to the state of the union speech. | Even within the United States, this would depend upon the jurisdiction involved. Some jurisdictions recognize a legal privilege of a journalist to keep confidential sources secret (also called a "reporter's privilege"), while others do not. There is a split of authority on the question within the various circuits of the U.S. federal court system, and there is also a split of authority between different U.S. states. The First, Second, Third, Fifth, Eighth, Ninth, Tenth, Eleventh, and D.C. Circuits have all held that a qualified reporter's privilege exists. In the recent case of U.S. v. Sterling, the Fourth expressly denied a reporter's privilege exists. Furthermore, forty states and the District of Columbia have enacted statutes called shield laws protecting journalists' anonymous sources. Three U.S. Court of Appeals circuits, the 6th, the 7th and the Federal Circuit, do not have any controlling case law on the subject. Ten U.S. states do not have shield laws protecting journalists' anonymous sources. The U.S. Department of Justice, as a matter of policy, seeks to compel journalists to disclose their anonymous sources only under specified conditions where the need is great, but this policy is not a defense available to a journalist in a case brought by the U.S. government. In the absence of a legal privilege, the journalist could be incarcerated until the information is disclosed or the need for the information is moot, for contempt of court. Quite a few journalists in the United States, faced with that choice, have opted to be incarcerated rather than to reveal a source. If the subpoena is upheld, even if the face of a good faith effort of the journalist to quash the subpoena on the basis of a legal privilege or other grounds, if the journalist does comply with the subpoena, the breach of the non-disclosure contract is legally excused and cannot be a ground for the journalist to be legally liable to the informant. | We can only guess at what argument he has in mind, but one possible argument is that the standard is unconstitutionally vague, similar to the argument by McDonnell in the recent McDonnell v US (admittedly about a different statute). The vagueness argument was developed in several of the briefs: http://www.scotusblog.com/case-files/cases/mcdonnell-v-united-states/ The unconstitutional vagueness argument has also been made specifically about 18 USC 793 (e). US v Hitselberger 1:12-cr-00231-RC D.D.C. (2014). The defendant made a motion to dismiss based on constitutional vagueness, but this motion was denied. Private Manning raised the same defence, also unsuccessfully: http://fas.org/sgp/jud/manning/051012-vague.pdf | We may soon have a more definitive answer. A Grand Junction, Colorado newspaper is suing a politician for calling it "fake news", and the resolution of that case and the hypothetical that you propose would turn on the same legal principle. It is highly unlikely that such a lawsuit would prevail, because "fake news" probably doesn't constitute libel per se, because the comment could be construed as hyperbole or as a statement of opinion (neither of which are actionable), and even potentially, because a "speech and debate clause" defense under the state constitution might apply (depending upon the context in which the statement was made by the politician). The context of the particular tweet cited generally defines specified organizations as "the FAKE NEWS media" rather than accusing them of any particular instance of making a false statement, so it is probably an opinion or hyperbole. But, if the statement were made knowing it was false or with reckless disregard as to truth or falsity, and if the term "fake news" in the context in which it was used could be legitimately construed the imply a statement of fact which is not true, it wouldn't be impossible for the lawsuit to succeed, and depending upon the context of the statement, it could have such an implication. A suit against Trump could also implicate Presidential immunity doctrines which are more robust than immunity doctrines for other public officials, particularly if the "fake news" comment could be construed as part of the official duties of the President (for which there is absolute immunity) as opposed to his unofficial duties. The immunity question is a closer one than the question on the merits of defamation law about which there is much more case law to flesh out what is and isn't covered. | No. There are few if any checks on any President for any Pardons issued (a general Impeachment may be the only check but there has never been a strong call for impeachment for a pardon.). Further more, the protection against Double Jeopardy is in effect meaning future Presidents cannot prosecute the pardon recipient for any crimes that were pardoned by a previous president, though they may prosecute any future criminal incidents perpetrated by the pardoned person that are not related to the events surrounding the pardoned crime. | With regard to subpoenas, the Supreme Court's recent ruling in Trump v. Vance makes it clear that states can issue subpoenas to sitting presidents. (The case in question involved a subpoena to a third party for the president's records, not to the president himself, but the opinion makes it clear that the court would apply the same reasoning in either situation.) The questions of what actions a state may take to enforce such a subpoena if it is not complied with, or of arrest / indictment / trial by a state, have never arisen and thus have not been resolved by courts. | Probably.* Congress has wide latitude to dictate the procedures of "inferior courts" -- the district courts and circuit courts of appeal. Those courts only exist because Congress created them, so Congress can generally set the terms on which they continue to exist. That power is limited in several important ways by the Constitution, including the terms and compensation of the judges, and standing to address cases, and then further limited by separation-of-powers principles. But the Rules of Civil Procedure and the Rules of Criminal Procedure are a good example of how Congress has already -- and largely unobjectionably -- imposed these types of demands on the judiciary. The rules are generally drafted by the judicial branch, but Congress approves them and gives them the force of law. In both sets of rules, you can already see some requirements on how decisions are worded: Criminal Rule 23 requires the court to "state its specific findings of fact" after a bench trial; Criminal Rule 32 requires the court to "set forth the plea, the jury verdict or the court's findings, the adjudication, and the sentence" in judgments of conviction; Civil Rule 52 requires the court to "find the facts specially and state its conclusions of law separately"; Civil Rule 58 requires that "every judgment and amended judgment ... be set out in a separate document"; Civil Rule 59 requires the court to "specify the reasons [for granting or denying a motion for a new trial] in its order"; and Civil Rule 72 requires magistrates to enter "a recommended disposition, including, if appropriate, proposed findings of fact." The rule you're proposing seems to go well beyond these requirements, but I don't see how it would run afoul of constitutional constraints. I could imagine an argument that this somehow encroaches on the courts' inherent authority, but I'm not really convinced that that authority protects against this. For more information, you can read the Congressional Research Service report on "Congressional Authority Over the Federal Courts." *This answer only applies to Article III courts, but even then does not apply to the Supreme Court, which is co-equal and generally has the authority to set its own rules. When it comes to Article I courts, though, Congress would probably have virtually unlimited discretion to impose the kinds of requirements that you're talking about, and even to say that the court has no jurisdiction to consider constitutionality at all. Congress might even get away with imposing these kinds of requirements on state courts through the Spending Clause | There is currently no law requiring a candidate for US President to release tax records to appear on the ballot. Nor is there any law requiring the President to release such records after taking office. There are laws requiring members of congress, and other Federal officials, to make public some limited information about their finances. This is much less than the information that would be included in an income tax return. Congress could pass a law requiring candidates to release their returns, but it seems unlikely that the current Congress will do so. States have broad authority over Federal elections. A state could pass a law requiring a candidate to release his or her returns as a condition of appearing on the ballot. Such a law might be challenged on Due process grounds. This would be an untested legal area, so there is no telling how a court would rule on such a challenge to such a law. Congress, or an individual house of Congress, may subpoena almost any information in pursuit of its investigation function. Investigations must be related to possible legislation, meaning it must be related to a subject about which Congress has power to pass a law. But the relation can be rather remote, as long as the information might inform the judgement of members of congress in considering a possible law. There does not have to be an actual law under consideration. Investigations have been challenged, and in a few cases there have been court rulings that an investigation was not related to possible legislation, and so Congress was not allowed to enforce subpoenas on that subject, nor to compel testimony. But such rulings have been rare. Previous Presidents have asserted, under the name of "Executive privilege", a right not to disclose information, such as internal discussions within the executive branch. This is not explicitly specified by the US Constitution, nor by any law, but has been generally accepted, and in some cases supported by court rulings. No court has ever clearly defined the extent or limits of Executive privilege. A House committee issued a subpoena this year for President Trump's tax records, or some of them. I forget whether this was addressed to the IRS or to the Treasury Dept. This has been challenged in court, and the matter is still in court. I be3live that one of the grounds asserted against the subpoena was that it was not to look into tax issues, as specified in the law authorizing the subpoena. No one yet knows how that case will proceed. The NY State Attorney General is investigating allegations that the Trump Organization, and various individuals, violated NY law, including by falsely reporting campaign expenses and contributions. In pursuit of that investigation, he issued a subpoena for various records which he claims will reveal possible evidence of those illegal actions. He pretty learly has the authority to subpoena records which might be evidence in a criminal case. This subpoena has also been challenged, but seems pretty likely to be upheld. However the subpoena was as part of a Grand Jury investigation, and Grand Jury proceedings, including evidence obtained by subpoena, are by law secret unless an indictment and trial results. So even if the subpoena is upheld, this should not lead to the public release of the records, unless someone is put on trial for some crime, and the records are evidence in that case. Even then the judge can order the records not to be released to the public. |
Is hash of a username still personal data? I create a script, which asks a user who upload a GIF to a social media website, if it can reupload it to another website (to reduce other users' internet usage). Now I want to give users an option to save their consent for a longer time, so they don't need to click a link every time they upload a GIF. Users don't have a random ID, I only can use their usernames, which are surely personal data (many users use their Facebook account to create their account, and then their usernames are created from their first and last name). So my question is - if I store a hash of the usernames (irreversible form), is it still considered to be their personal data? | It depends on whether you can identify the person to whom a username hash belongs. If you store both username and its hash in the same database row then yes. If it is impracticable for you to identify the person by their hash only, then no. This comes from the definition of personal data — "any information relating to an identified or identifiable natural person", and Recital 26: Not applicable to anonymous data. The hash is essentially anonymous data when it does not on its own allow to identify the person (with reasonable efforts i.e. without spending $$$ on detectives or forensic science). | The GDPR's right to erasure just applies in some specific situations. While messages you wrote on Slack are personal data, they are generally also part of a larger discussion with others. If your messages are removed, the discussion becomes incomplete, so that will violate the freedom of expression of those others. Art. 17(3) GDPR provides an exception for the right of erasure in such cases. So basically, whoever is the controller, you probably don't have the right to have your messages to be deleted. However, you would have the right to have your account pseudonymized like Slack replied in the Reddit post you linked to. See also my answer in "Does a user have the right to request their forum posts deleted?". Basically, it is correct that Slack can be just the processor. Even if the controller cannot get access to more than 10000 messages unless they pay. However, Slack is not allowed to do anything with those messages, except when the controller says so. In its Privacy Policy, Slack distinguishes between customer data and other data. It states to be the processor for the customer data, but controller for the other data. Because those are tied together, I am not sure this distinction can be made. If not, Slack and the customer will be joint controllers, but it requires probably a court case to decide on that. For example, the Court of Justice of the European Union has ruled (in the Fashion ID case) that putting a Facebook "like" button on your website, makes you a joint controller together with Facebook. And (in the Wirtschaftsakademie case) that also creating a Facebook "fan" page makes you a joint controller. But neither of those are very similar to the situation with Slack. | It may be legal or it may not For example, if any of the users are in the European Union, then the GDPR applies and the person storing the information is a data controller and has legal obligations. These include, having a legitimate reason for storing them, storing them only for as long as necessary for that reason, notifying the individuals that the data is being stored and why, deleting it upon a users request etc. | I'd say it's definitely illegal. Here's what the cookie notice says on Facebook at the time of writing this answer: By clicking on or navigating the site, you agree to allow us to collect information on and off Facebook through cookies. And here's what the GDPR define consent: ‘consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject's wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her; Also consider this, by the way: When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract. Facebook's notice is a small blue bar at the top of its blue header, and you might not even notice it (at least on a desktop computer where I'm seeing it). I see no way to easily deny consent, for example there is no button saying "I don't accept". All you can do is click on the link to their cookie policy, and still that policy does not present a clear and easy way to deny consent in all different cases, it looks pretty complicated (among other things, it depends on whether you have a Facebook account or not). So denying consent looks pretty difficult, if at all possible. On the other hand, to give consent, you'd only have to click on any link. I tried this. I opened my browser in private/incognito mode, so it should not use any previous cookies. On Google, I searched for "facebook John Doe". Clicked on a result bringing me to a Facebook page with a list of profiles of people named John Doe. The cookie bar appears at the top, but let's pretend I did not notice it. Then I click on a profile, supposing I'm interested in a certain John Doe, and... I land on John Doe's profile on Facebook, now without the cookie notice! What happened is I gave consent by clicking on any link, that is, clicking on John Doe. I can't see any way this "consent" could ever be considered "freely given, specific, informed and unambiguous indication of the data subject's wishes". Why is Facebook not compliant? Well, they probably couldn't be compliant even if they wanted to, unless they wanted to go out of business. Lately I've been wondering what the purpose of Google Analytics would be if users were always given the option to freely refuse consent. Virtually every user would always be clicking on "I don't accept", every time everywhere, so lots of business models would be totally disrupted. By the way, as of now, the cookie bar of this community (stackexchange) does not comply with GDPR either. To tell you the truth, I'm afraid very few websites have a GDPR compliant cookie notice. | If you publish a website, you are the data controller for this website. Serving a website necessarily implies processing (but not collection) of personal data. You have chosen to host your website on GitHub Pages. Is GitHub then a joint controller with you, or is GitHub your processor with which you sign a DPA? In 2019, I asked GH customer support about this. Their response: Our Privacy Statement, combined with our Terms of Service, is intended to serve as a data protection agreement for individual accounts — we specifically wrote our Privacy Statement to provide the information required by Article 28 of the GDPR, including a list of our subprocessors. Our Privacy Statement and our Terms of Service serve as our agreements with you, as the controller, instructing us as the processor, and you can always contact us to provide additional instruction. Should we receive a data subject request that relates to data we process on your behalf, we'll always let you know promptly and work with you to comply. — Github, 2019-04-10, private communication At the time, their Privacy Policy described GH Pages as follows: If you create a GitHub Pages website, it is your responsibility to post a privacy statement that accurately describes how you collect, use, and share personal information and other visitor information, and how you comply with applicable data privacy laws, rules, and regulations. Please note that GitHub may collect Technical Information from visitors to your GitHub Pages website, including logs of visitor IP addresses, to maintain the security and integrity of the website and service. (Update 2022: the privacy notice has since changed, and the quoted part is no longer part of the privacy notice.) Under this theory: you are the controller, and GH is your processor the terms of service incl. GH privacy policy form an effective Data Processing Agreement you have instructed GH to collect Technical Information in the sense of the privacy policy, for the purpose of maintaining security and integrity of the website, which can be covered by legitimate interest you have not instructed/allowed GH to process any other data from your site It is your call whether you subscribe to that theory. Note that GH organizations can opt-in to their corporate terms and sign an explicit DPA which will mostly contain the same provisions. Does it matter that you don't have access to the Technical Information? No. Being a controller means that you decide the purposes and means of processing, not that you store data. You as a controller can always decide to point your domain name to a different server if you no longer want to use GH as a processor. | Simply use a cookie to store consent. First consider the opposite. If a user does not agree to store cookies, a cookie is the only way to remember this, as you want to avoid a new pop-up on every page-load. Because this use of a cookie is functional, you don't need permission to store that cookie. You seem have the impression that you have to prove towards the ICO if someone has provided consent. However I think it would be sufficient if you can demonstrate how your website works technically. In particular whether consent is handled properly. You might need to create screenshots or a screencast to do so. Add new proof after each major update of your website. Storing consent server-side would violate the data minimization principle of the GDPR I think. In particular because you would need to do something to be able to identify users. That would violate Art. 11(1) GDPR: If the purposes for which a controller processes personal data do not or do no longer require the identification of a data subject by the controller, the controller shall not be obliged to maintain, acquire or process additional information in order to identify the data subject for the sole purpose of complying with this Regulation. Notice it is possible to configure google analytics in a way so you don't need any consent. See my answer to this question. Just IP anonymization is not sufficient. | Certainly. A phone number is personal information (and on top of that, WhatsApp may provide some "profile info" from the people you contact). It is not difficult to identify a person by its phone number. So, sharing the phone number of the people affected should take into account the restrictions of GDPR. For instance, the Spanish Data Protection Agency (Agencia Española de Protección de Datos, AEPD) established in its Resolution R/03041/2017 that the Town Hall of Boecillo had violated the GDPR because it had created a WhatsApp group of citizens. Those citizens had provided their phone numbers to be informed about town hall activities, but they had not agreed to share their numbers with the other members of the group. And that was a very generic group. Doing a "patients recovering from cancer" or "drug abusers under treatment" or "people who need food assistence" group would involve sharing personal information that gets the maximum protection (in some specific instancies it could be that your information sharing that information is illegal even if the users gave you full consents). So yes, creating a WhatsApp group could very easily lead to a GDPR violation, and in fact it has been ruled at least once that it has. The fact that people cannot send messages is irrelevant. It would not make the issue any better or worse. After all, if I send a message through WhatsApp I am implicitly giving permission to everyone in the group to read it. | You ask the wrong question first What do you save in the database? Let's take an example of a door: Do you have a legitimate interest to know/save who passed this door? Do you have a legitimate interest to know/save when the door was opened? Do you have a legitimate interest to know/save both? Only now, once you have established that you have any interest in the door passing at all, you have to start to figure out if it is personal data - if you have no interest in saving it in the first place, there's little reason to figure that out. Let's say you have a legitimate interest to save both, because behind the door is the server room, and physical access is limited to authorized personnel and you want to know when who was in there for figuring out if or who was responsible for changes. Now, which of the data is Personal Identifiable Data for you? You know where the door is. That's in itself Location Data, but if you don't know who or when the door was opened, then it is not PII. It becomes PII if you connect it with a person. A pin-code used by the whole department is not always PII, but can become PII in a very small to medium-sized department. e.g. one of all the 20 000 employees in a facility is just saying "an employee" and is not identifiable, but one of 20 is much more likely is, as you can correlate that with other data to possibly identify a smaller group. The Employee ID or Card would be most definitely PII if saved. Similar, if the login date is saved to the account list on some server. The timestamp on itself is not a PII, if only the timestamp is recorded and no other information exists. Like, if the front door only logs "The door was opened/closed" but not who did it, to count customers or schedule maintenance. However, together with other information - such as the door being access restricted and the paystubs from timekeeping when all those access carriers were in the building and having a tight access restriction to a decently small group (see above) - that can quickly become PII. It is enough that the information from different information sources compiled can become enough to say "it was one of these few people", as that is enough to make it identifiable under GDPR Art.4. Once you know it is PII, you need to handle it as PII. As such, you need consent or a legitimate interest. That's why I pulled the other test before figuring out if it is indeed PII: Ic you have already figured out that this data is required for some legitimate reason, such as that you need to know the door operation log to ensure some other compliance, then you can proceed through the other parts of the GDPR compliance. Now, OP asked about a login timestamp. That is by necessity bound to an identifier, such as a login name. As such, it is the Keycard or Employee ID example and automatically PII because it is tied to a PII. Definitions The GDPR defines PII in Article 4 ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; The US Department of labor defines quite similar PII is defined as information: (i) that directly identifies an individual (e.g., name, address, social security number or other identifying number or code, telephone number, email address, etc.) or (ii) by which an agency intends to identify specific individuals in conjunction with other data elements, i.e., indirect identification. |
I was fired for refusing to work with Typhoid, do I have any recourse? I was fired for not showing up to work as ordered. This is after explaining to my boss over the phone that I have Typhoid, and working with food would endanger the guests to the restaurant/arcade at which I work. Do I have any recourse at all in this situation? As it stands, I should've just went to work anyway. This is a followup to this question: May I legally work in a restaurant with typhoid if the employer knows? | Read the answers to your previous question. You should not have gone to work anyway. That would have been stupid and irresponsible. You would have endangered the public and would have been liable for being sued and being financially destroyed for the rest of your life. You need to get treatment; find a community clinic or go to the local ER. Failure to do so will result in you possibly being criminally liable for infecting others in addition to being civilly liable. The hospital or clinic will inform the city/county health department and they inspect the business that fired you; and if you were at the restaurant at all, inform the public as to the dangers. After you have started treatment and are not contagious, Google for free legal aid in your area and talk to a lawyer. They will explain if you have a case against the business - this can depend on jurisdiction - to at least get unemployment. | They have to pay you for all hours "worked". If you are an intern, it would come down to whether you are an unpaid intern and therefore agreed to that or if you are a paid employee. I noticed your post said you were an intern and then were asked to stay on, so I don't know if you stayed on as an intern or employee. Employees should be compensated for their time and effort, so if you are an employee you should get some compensation. As for how you claim it, you are going to have to talk to them. If it bothers you that you won't be paid for the training and they won't agree to pay you, your best bet is to find a different job. This article lists how to take them to a tribunal or talk to a union, if you do not want a different job and wish to pursue the matter: https://www.citizensadvice.org.uk/work/rights-at-work/pay/problems-getting-paid/#ifnotgettinganywhere | If we cut through all the entertaining colour commentary around Bob's experience then all that happened is TfL refused him permission to carry a specific item and according to the TfL Conditions of Carriage: 9.2 Staff can refuse permission for you to take any item onto our services. For example, you may be prevented from taking a bicycle on DLR services during the London Marathon. So the rules around the times when non-folding bikes are permitted on the Overground not withstanding there's a catch-all rule which allows them to refuse specific items on specific occasions for whatever reason they want. What remedies does Bob have available for his wasted time, his refusal of carriage, the supervisor's concealment of his identity, general rude treatment, Realistically - none. The refusal may be harsh - but there's plenty of room in the conditions of carriage to allow it. A supervisor concealing his identity may be annoying but it's not illegal, nor is being rude. the BTP's shockingly insulting accusation of his "wasting police time" by simply trying to explain the situation to reason with them upon their arrival, either against TfL, or against BTP? Probably nothing doing here either - the BTP aren't for what Bob's trying to use them for. I doubt they'd actually pursue Bob for wasting police time unless he makes a habit of doing it, but they've got a point. They're not the complaints department for TfL! It's like calling the police because McDonalds won't serve you at the drive through. | You probably would not be "obligated" to do anything. However your employer also would not be "obligated" to continue employment. If you agreed to something verbally, that is a contract. Verbal contracts can be difficult to enforce, but in this case the employer does not need to enforce it but rather take the easier solution of terminating your employment. | This is just saying that if they can’t host your event then the only remedy you get is your money back that your paid them (your deposit, advance payments, and of course your don’t owe final payments). It is there to make it clear that they are not responsible of any other money. What else might the client want them to refund? Other lost expenses. Non refundable deposits to the band, the florist, the caterer if this is just for the space. The non refundable airline tickets your relatives bought. Prepaid hotel rooms. They will not pay for any of that. The pandemic is a bit of a red herring because although that is of course the big thing now, it says any occurance whether or not the business caused it. The answers to your specific questions though are pretty trivial. -The business did not cause the pandemic or control the state health office (Irrelevant as noted) -There is nothing they can do about it. The state or county will allow the events when the situation improves. But even if say there was no state order but the venue for their own reasons or because they could not get enough staff cancelled, the answer would be the same. | Is it legal to retaliate against an employee who answered falsely when asked an illegal question? It depends. It is important to ensure we understand the distinction between (1) questions which are illegal in and of themselves, and (2) the illegality of hiring, discharging, or failing to hire based on a candidate's/employee's answer(s) or attributes. You yourself might have been aware of the difference beforehand, but your question is a good occasion for clarifying a general misconception. In instances of the first category, it would certainly be illegal to retaliate against the employee insofar as the falsehood is traceable to the employer's violation of the law. Examples of this category are sections 432.3(b) ("An employer shall not [...] seek salary history information, including compensation and benefits, about an applicant for employment") and 432.7 ("An employer [...] shall not ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction") of the California Labor code. Scenarios of the latter category are more intricate, since an employer might prove that his decision to discharge the employee falls outside of conduct sanctioned by statute. For instance, 42 USC § 2000e-2(k)(1)(A)(ii) does not outlaw --at least at a federal level-- questions about the individual's protected categories (such as sex, religion, or national origin). It only outlaws the decision making that is influenced by the protected categories which are the subject matter of the interview questions. The example you gave ("what would your husband do if you got this job?") serves to illustrate the difference, putting aside that questions of that sort might be intended to indirectly ascertain the candidate's marital status. Let's assume that the employer seeks to hire a waitress, and that the jurisdiction at issue outlaws discrimination on the basis of employee's marital status but not the questions about it. The employer has a cognizable interest to avoid employing any waitress whose husband is an overly jealous person with propensity to attack male clients. The waitress's lie when answering that question (for instance, by fraudulently representing that she is single or that her husband is ok with her employment as waitress there) contravenes the employer's legitimate interest to protect its clients. In that context, the employer's discovery that the employee lied during the interview gives reasonable grounds for discharging that employee. After all, the employee's intentional misrepresentation only strengthens the employer's suspicion of being at greater risk (of liability toward clients) than the employee is willing to admit. For the employer to prevail at law, it would need to be proved that the reason for discharging the female employee was not her marital status itself, but the employee's concealment of a risk that is a matter of employer's lawful concern. | At Will Employment - In General An "at will" employee in the U.S. can be fired at any time for any reason without any prior notice or warning. Outside a union shop or a civil service employment situation, even an illegal reason for firing does not give you the right to be reinstated in your job - instead it gives you a right to sue for money damages. Unemployment Benefits and Employment References If you are fired for good cause (or you quit in a situation that is not a constructive termination), you are not entitled to unemployment benefits. If you are fired without cause particular to your conduct (e.g. you are laid off in the employer's reduction in the size of the employer's labor force), or your are fired for a reason that is not good cause (e.g. you are fire because the boss is annoyed because you are such a goody two shoes that you always show up to work on time), you may be entitled to unemployment benefits based upon your term of service and earnings (short time employees are often not entitled to unemployment benefits no matter what). If you apply for unemployment benefits because you assert that you were fired without good cause, and the employer believes you were fired for good cause, the employer can dispute that finding in a summary administrative hearing. Employers fight awards of unemployment benefits for employees who are fired rather than laid off, because it affects the employer's unemployment insurance rates (and because they care, for non-economic reasons, if the integrity of their stated reasons for firing someone are not believed, or if their reasons for firing someone are not considered to be legitimate grounds for termination by a government agency). Even if you are entitled to unemployment benefits, these benefits are much smaller than your regular pay, and generally last less long than the period for which you were employed. A formula or calculator should appear on the Texas Workforce Commission Website. I assume when you say that "They put a few fake tags on me" that this means that they stated reasons that would be valid "for cause" reasons for termination and you dispute those reasons apply to you, but please clarify if I am mistaken. If that is the case, it is likely that you would have to fight for any unemployment benefits you are otherwise entitled to in an administrative hearing as the company is likely to contest your claim that you were not fired for good cause. This also means that if you seek new employment that they will give you a bad reference to someone who inquires about your employment (although many HR departments are afraid to do that for fear of defamation liability and will only confirm the dates of your employment and your position). Wrongful Termination Lawsuits Separate and apart from unemployment benefits, if you are fired, not just without cause, but for an illegal reasons (e.g. race, sex, and select statutory prohibited reasons), you may bring a wrongful termination lawsuit. Some of those reasons (firings related to discrimination by a private sector employer) require you to file an EEOC complaint and have it investigated by them first, other of those reasons (mostly whistle blowing statutes and breaches of written employment contracts that don't allow for termination of employment without cause) allow you to immediately bring suit for wrongful termination. The legal status of firing someone because you complained about another employee's ethical violation depends upon the exact nature of the ethical violation. For example, a U.S. Supreme Court case decided this month (i.e. February/March 2018) held that whistle blower protections under U.S. securities laws apply to people who report securities fraud to the SEC, but not to people who report securities fraud to a supervisor in the company. "My fellow employee was a lying asshole who acted unprofessionally (in non-technical sense of the word), and I complained about this conduct to my supervisor and the employer didn't care" standing alone, would not normally constitute conduct that is covered by a whistle blowing statute that could allow you to bring a lawsuit for wrongful termination of employment, although it might constitute a constructive termination for bad cause by an employer (if you quit) or termination for bad cause by an employer (if you were fired) for unemployment insurance purposes. The legal theory behind the amount of damages that can be awarded in a wrongful termination lawsuit is a bit obscure. As a rule of thumb, six months wages is a pretty typical settlement amount in a wrongful termination case prior to a determination by a court of employer liability. At trial, there is wide variation in what juries award in wrongful termination lawsuits involving similar facts. Sometimes the award is minimal even when the jury finds that the employer wrongfully fired you, and sometimes the award is very substantial, amounting to many years of lost income in amount. Contractual Payment Obligations Generally speaking, unless a written contract provides otherwise, you have no obligation to return a hiring bonus and the employer has a contractual duty (and probably a statutory one as well) to pay you through the date of termination without deduction for a hiring bonus paid. This includes any amounts, including bonuses, that the employer was obligated to pay you, although proving an entitlement to a bonus can be difficult unless that standard for receiving one is clearly defined and you clearly met those standards as a factual matter. Sometimes, you can even win a breach of contract award for a bonus that was not yet fully earned if the only reason that the bonus was not awarded was the employer's bad faith conduct. You could sue to collect unpaid wages in a Justice Court (the limited jurisdiction court for small claims in Texas) if necessary, if the amount you are claiming is under $10,000. If you have a claim for unpaid wages in a larger amount or also have other damages, you would need to bring suit in the appropriate county court or district court, depending upon the amount claimed. | The simple answer is, get a lawyer and explain your case, and pay him to solve the problem (or tell you that it's hopeless). The two main questions would be whether the appraiser have any duty to you, and whether his action was within the scope of what he is supposed to do. If you hired the appraiser, he has a duty to you. I will assume it was you that hired the appraiser (if it was the bank, that's a different matter). Then the question is whether his action or non-action is within the scope of the job. If the place is infested with termites, that is probably irrelevant because an appraiser is not a termite inspector. On the other hand, if he failed to measure the structure, or erred substantially in the measurement, that kind of negligence could be legally actionable. The seller (not the appraiser) is required to "disclose", so it's not obvious that there is any thing that an appraiser could disclose that relates to a map. |
Tenant joint letter to evict an other tenant? I am in the Los Angeles area, and there are 4 tenants in my house. The last tenant who just moved in yesterday smokes, I told him that he needs to do it at the far end of the yard, and clean up everything. I have discussed this with my other 2 tenants before he moved in they were OK with it, and in my contract, there isn't specifically a part about no smoking. Now my other 2 tenants complain that even this is not enough, they want to him to either smoke outside of the property or evict him. I am trying to settle this thru house rule and agreement, but in the worst case, we might have to evict him. Can I get a joint name letter of all 3 other tenants (includes me), so that if he doesn't stop smoking in the property he will have to move? | This likely comes down to contract law (note: I'm not a lawyer; this isn't legal advice). If his rental contract is not with you, you'll need to refer this to the property owner's representative. I don't see why just sharing the house would give tenants any eviction rights over other tenants. Even if you are the owner (cf “my house”), it would be unusual for independent tenants to be party to each other’s rental contracts. The other tenants are irrelevant to any eviction attempt, except perhaps as witnesses in court. | If you have an actual lease under which you reside at your parents' place, they must abide by the terms of that lease – presumably that sets the rent that you pay and states how long the lease is good for, Otherwise, if you're just living there, and have been living there for some time, then the courts may treat you as a month-to-month tenant. That means that they can end the tenancy with 30 days notice. Or, they can initiate an eviction proceeding. The less optimal outcome is that the court may treat you as a house guest, in which case no formal eviction proceeding is necessary. One way or the other, it is illegal to physically give a person the heave-ho from their residence, even if it is a family member. One recourse then is to hire an attorney to persuade your parents of at least that aspect of the law, if it is really in doubt. This gent addresses the matter for parents whose children have moved back home. He also mentions hiring a mediator, which could put the situation on a clearer legal ground. As for psychiatrists, anybody can see a psychiatrist; and anybody is free to hire a lawyer to try to force another person to see a psychiatrist. The prospects of getting a court order to force a child or a parent to see a psychiatrist because they are at loggerheads over some matter is extremely remote. The courts only force psychiatric treatment in extreme cases (e.g. threats of violence, actual delusions). | You inspected the property online and based on that inspection you signed the lease. You have a legally binding contract. Now, it is not at all like the pictures How? I mean, are these pictures of a different house? If that is so then your contract is void for fraud. However, if the pictures are of the actual house and you just imagined from them that the house would be other than it is then tough luck for you. the stairwell in the house is a huge safety hazard for children OK. Does it comply with relevant building codes? If not then the landlord needs to bring it up to standard: you cannot walk away from the contract. Is it in need of repair? If so, the landlord needs to repair it: you cannot walk away from the contract. If it is compliant and in good repair and you think it is a hazard notwithstanding then you need to manage that hazard: this is not the landlords problem. I refused to move into the house That's fine: so long as you keep paying the rent there is no obligation on you to move in. If you stop paying the rent then it would appear that you have repudiated the contract and the landlord can sue you for damages - probably the costs of finding a new tenant and the rent up until that tenant takes over. | The legal position You are quite clearly not running a business and if the matter went to court you could easily prove this be e.g. getting testimony from the people at the party, your testimony etc. In any event, your landlord can’t “fine” you. Fines are a punishment and only government can punish people. They can sue you for breach of contract for damages (which are restitution not punishment) or to seek specific performance. The practical position Take the listing down. Rightly or wrongly, it's souring your relationship with your landlord and their relationship with their HOA. Is having this mildly amusing joke worth damaging these relationships, particularly if you might want to renew your lease? The landlord might feel that they are better off with a tenant who doesn't cause them grief with their HOA. Even if your landlord understands, the HOA might not. If they sue your landlord, they will have very little choice but to join you. Yes, you will almost certainly win your day in court but you will not get reimbursed for the time and effort you had to go to. this includes taking the day off work, subpoenaing all your friends to give testimony etc. Who has time for that crap? Further, whenever you go in front of judge or arbitrator who has the power to force a resolution of your dispute, you are rolling the dice. Sure, you may think you have great evidence and the other sides' is completely bogus but if they present theirs with skill and confidence and you screw yours up then they can walk away with a win. Real court cases depend on who the judge believes. If they believe your landlord's reasonable story about running an illegal bar and they don't believe your crazy tale of it all being a joke - you lose. Remember: free speech can't be restricted but it does have consequences. Further, anyone who bases relationships on legal rights and responsibilities is going to have very shallow relationships. | 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. | Inferring from the question, it appears that: The tenancy is an Assured Shorthold Tenancy. The tenancy agreement started on 16 December 2014. The initial fixed term was for 12 months. (Please comment below if any of this is incorrect). A Section 21 order gives notice that, unless the tenant leaves by the date given in the document, the landlord will begin legal proceedings against the tenant, in order to obtain a court order forcing the tenant to leave. To answer the OP's questions: Does it mean that she wants to use her right to cancel the contract after 2 months? It looks like that to me but I am not 100% sure. Yes - but if this is before the end of the fixed term (which I'm assuming is 15 December) there must be a clause in the tenancy agreement (normally called a "break clause") allowing the fixed term to be terminated early. If there is no break clause, then you cannot be asked to leave before the end of the fixed term. What does it mean "after 16/11/2015"? After can mean anything... even end of contract in December. Yes. The landlord would like you to leave before the date shown - but if you don't, the landlord can begin legal proceedings any time after that. Is this a legal document or just something she made up? It is a legal document. Section 21 of the Housing Act 1988 allows a landlord to ask a tenant to leave without having to give a reason. The landlord must meet certain conditions in order for the notice to be valid. What happens if I want to leave the house later because I don't find alternative? You'll need to discuss that with the landlord. However, if you don't leave by the end of the fixed term, you are entitled to stay (and pay rent!) until a court (not the landlord) orders your eviction. EDIT: This website goes into a lot more detail about the whole Section 21 procedure. | 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). | The difference is that the person was originally invited to live there, so they do have a claim of residency. A tenant recently allowed someone to move into his apartment as his caregiver. This is the problem here, the person was invited to live in there in exchange for a service. This person now has a legal right to occupy the property and the eviction process must be followed. If the person broke into the house and occupied a room, that is trespassing since there was no original legal right to occupy the property. The trespasser cannot claim any legal right to the property and therefore is trespassing. Can it really be so that he is legally bound to allow these strangers to share his apartment with him because of a technicality that classifies them as "squatters"? Unfortunately yes. This should be a lesson to the tenant that they need to properly run background checks and have solid contracts with live-in caregivers/roommates. Unfortunately this is not only inconvenient, but will probably be an expensive lesson as well. |
Is it legal to copy property's listing from other's website as the question suggest. I've built a scrapper which scraps two websites to get property listing from there. As someone told me to scrape other website is illegal. but I think the listing ad of property is not a property of website. so I can scrape it. can someone tell me it is legal to get others property advertisment? | "...the listing ad of property is not a property of website." Why do you think that? Just because a website exists does not mean you can legally scrape it. Read the Terms of Service of the site; there is a good chance the TOS forbids scraping or copying of any part of the website in any manner, including scraping. If the property listings are from a third party service that provides real estate listings to websites, then those property listings are licensed to that website, and by scraping them you will likely be violating the TOSs of those two services. By illegally scraping the content of a website, you are opening yourself up to being involved in copyright infringement and/or being liable to be the subject of a civil lawsuit. | Yet I publicly wear shirts with copyrighted designs all the time. I'm unclear about this; do you mean T-shirts you have made yourself using copyrighted images or T-shirts you have bought? If the former then it is a prima facie breach and you could be sued by the copyright holder. You would probably not be as it would be impracticable. If the latter then there are 2 possibilities: The manufacturer/distributer/retailer chain all hold valid licences to put the image on a T-shirt and display it in the usual way so there is no breach involved. The manufacturer/distributer/retailer chain does not hold a valid licence in which case there is a breach and the copyright holder would target, say Wall-Mart rather than you. what about displaying ... works of art in my yard? Notwithstanding that it can be viewed from a public space, your yard is not public; therefore this is not public display. | You cannot use a trademark in a way that may cause confusion that your goods and services are associated with or endorsed by the trade marked goods and services. If you are clear that they are not then you shouldn't have any problems on that front. You also cannot defame the brand: that is make derogatory comments that are not true. On a practical note, when Pepsi (for example) sends you a cease & desist notice, what are you going to do? They can go to the petty cash tin for $2 million to make your life a legal hell for 18-36 months: how much do you have to defend your rights? | In the abstract, two businesses that cooperate in violating a third party's copyright could both face liability. Applying that information to the facts you gave would amount to legal counsel. If you don't want to tell the client 'no,' you should speak to a lawyer about your potential liability. Beyond the legalities, do you really want your portfolio to advertise that you design sites by ripping other sites off? | 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. | Is it legal in the US for a company that rents out car parking spaces, to bundle the renting of a parking space to buying insurance for the content of the parked car? Yes. Honestly, I'm a little surprised that I've never see this practice in real life. All things not prohibited are allowed, and there is nothing, per se illegal about bundling services and requiring them to be purchased as a package deal (there may be some licensing issues for insurance sales involved, but those would probably be easily overcome). Sometimes bundling gives rise to an anti-trust violation, but neither the parking lot operation business nor the car insurance business are so consolidated that this would fairly be viewed as some kind of anti-competitive practice. | It turns out that there is no difference between the ethical answer and the legal answer, in this case. The law recognizes the property right which a person has when they create a thing, such as a font, and that right is encoded in the law of copyright. The relevant US federal code is contained in Title 17, which you can read (essentially identical laws exist in virtually or perhaps actually all countries). The important thing to understand is that there is not a distinction between "privately" trespassing on a person's property and "publicly" trespassing on a person's property. The violation of the owner's property rights comes from taking the material without consent. There is a legally-recognized exception to the owner's rights, in the form of "fair use", which is widely misunderstood to mean "if it's not for profit, the property owner has no legal protection". Simply taking and using someone else's IP non-commercially is not "fair use". | You are absolutely allowed to discuss or describe or criticizes software (or books or other copyrighted or trademarked things) without any permission from the copyright holder or trademark holder. This includes teaching people how to use those things. You may not, however, copy protected software without permission. For example you could not include a CD with a copy of Windows 10 as part of a course you taught on using Windows 10, without permission from Microsoft. Also, you may not use a trademark in such a way as to imply that your course is approved or endorsed by the trade mark holder, or by the maker of the trademarked item. If reasonable people could think that your Windows course was approved by Microsoft, you are probably infringing their trademark. Use of screenshots is more of a grey area. Such use, for purposes of teaching or of commentary, is probably covered by fair use (in the US) or fair dealing (in any of several other countries). But that is always a case-by-case determination, and depends on the exact facts, such as how extensive the use is, and whether it in any way harms the market for the original. If in doubt consulting a lawyer experienced in IP issues is wise. But aside from the issues of screenshots, the makers or copyright or trademark holders of software have no right to grant or withhold permission to one who teaches about the softrware, nor to demand any fee from any such person. |
Can someone collect damages without providing receipts? This question could apply to any part of the United States, but particularly to California, which is unusually consumer friendly. Suppose I am involved in minor car accident (basically a fender bender). It's small enough that some drivers would let it go, but under California law, at least, the other person has the right to insist on even minor repairs. So the person quotes me a price. I dispute it by saying "I can get this done for $200 less. Can you provide a receipt. The other person can't provide a receipt. Do I have to pay the other person's quoted price? Do I have to the "$200 less" if I can document it? | If the accident was your fault, the person harmed by the accident has a right to sue you for the amount of damages incurred, and will prevail if they can prove your fault and their damages in court. You don't have to settle the case at all. You could simply wait for them to sue you, although doing so would result in a claim against your car insurance policy that could increase your insurance rates if they did, in fact, sue you. Whether or not you find their representation concerning the amount of damage they suffered sufficient is up to you. They will only get paid if you decide to write them a check in the amount that they are asking to have paid. Usually, you should also insist that a complete release of liability be signed by the party harmed in connection with any settlement payment. | As far as I know in the United States, no DMV provides test vehicles. You need a vehicle to take the driving test. Since you are not currently licensed, you can not legally drive yourself to the test alone... So logically, you must bring someone... anyone... willing to drive you to the test and provide a vehicle for you to test in. As others have stated in the comments above, worse case scenario is the hiring of a driving instructor. If you read the written instructions (and I remember correctly), it does state something along the lines of "must be accompanied by a licensed driver and provide an insured, registered, vehicle". Which is a bit more formal than the "bring a friend". Most people just naturally use more casual terms when speaking. I don't know your age, but it's probably more common to hear "bring a parent" than "bring a friend" when speaking face to face with the DMV staff. Also, not all insurance policies are driver limited. Some policies are on the vehicle regardless of driver. Typically Liability-only insurance is vehicle specific, not driver specific. [*1] You'd have to review the policies or call the insurance agents to confirm this. You may even do something as simple as add you to the current insurance for a month or two while you're practicing and testing. Just reimburse your friend for any increase in premiums during this time. Contact the insurance company/agent. The cost may be minimal. In addition, there are non-owner insurance policies which cover you even if you do not own a vehicle. This would provide insurance if none of your friends has a policy which would work. Realize that most people taking the test for the first time have probably already been added to a policy owned by their parents. So, your situation is a bit more unique. It's not meant to be inherently confusing but if you're "outside the norm" you have to do some deductive reasoning on your own. And finally, if an accident or damage were to happen during your practicing or testing, it would still be your responsibility. If you are in control of the vehicle, you are responsible for any damage to it or damage caused by the vehicle due to any negligence on your part, regardless of any insurance policy. You'd be a pretty bad "friend" if you caused damage and didn't financially make restitution leaving your "friend" holding the bag, so to speak. Restitution could be something as simple as paying the deductible on your friend's policy. Of course, if you are not covered by insurance any claim may be denied -- leaving you responsible for everything. The mindset that just because your friend owns the car they are totally responsible for anything that happens while your driving seem very, very self-serving and, well, I'd be apprehensive about loaning you my vehicle as well. In fact, I absolutely would not. | In California (where lost+found laws have been discussed quite a lot), this would be either "lost property" or "abandoned property". With abandoned property, you can do what you want. With lost property, it is legal to ignore it. If you take it, you have the obligation to try to return it to the owner. If you don't do that, it's theft. If you don't take it, you have no obligation whatsoever. Put it somewhere where the loser (the person who lost it) is more likely to find it, for example on the street. Don't take anything. Clarification for comments: There is a box. And the owner of the box is nowhere to be seen. That box is by definition lost or abandoned - it is abandoned if the owner got rid of it intentionally, it is lost if the owner is looking for it. We don't know. We can make guesses depending on the situation. No matter whether lost or abandoned, you are legally absolutely fine if you just ignore it. You have no reason to try to return it to its owner. If you don't make it your business, it's not your business. But if you decide you want the box, or bits of it, and it isn't abandoned (which is hard to know for sure), then you have to try to find the owner first, and if you don't find them, then you can keep it. | Agreement You say: my landlord added a clause stating: "All moving must be done in rear of driveway or pay $250 (near basement door)" Was this addition made at the time you signed the lease or subsequently? This matters because the terms of a contract cannot be changed unilaterally, they must be agreed. If the change happened after the lease was signed then , unless you agreed to it, it has no effect whatsoever. Since that resolution is boring; I will assume that it was always there. Enforcability Is this actually enforceable, since I did park in a public space and not necessarily on his property? Yes, it is enforceable. People can agree in a contract to do (or not do) anything so long as that thing is not illegal - that is what a contract is; a legally enforceable agreement for two people to do certain things. You agreed "All moving must be done in rear of driveway ... (near basement door)" and you didn't do what you agreed to do. Therefore you broke a term of the contract. It doesn't matter that you don't know why he wanted you to do this or if it was reasonable or if it meant that you couldn't use your parent's truck - if these were issues for you they should have been raised before you agreed to do it. If the clause said "When moving out you will wear a blue double breasted suit with a yellow and purple bow tie" then that is what you must do. Consequences There are a number of options open to the wronged party when the other party breaches a term of a contract. The most relevant in these circumstances is to sue for damages. So how much are damages? Well, they are an amount to restore the wronged party to the position they would have been in if you hadn't broken the agreement. In situations where damages can be hard to calculate, contracts can make a provision for liquidated damages; a pre-agreed amount of what the damage will be: in this case "$250". However: In the United States, Section 2-718(1) of the Uniform Commercial Code provides that, in contracts for the sale of goods: Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty. This largely mirrors the common law rule, which applies to other types of contracts under the law of most US states. On the face of it, it would appear that $250 may be "unreasonably large" given the nature of the breach where it appears that the landlord has actually suffered no damage. | 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. | Such "warranties" are generally subject to separate laws, and they are not treated as a subcase of "car insurance". Whereas homeowners insurance, vehicle liability insurance and so on are regulated in all states, extended warranties are regulated in over half of the states. There is a model law which tends to inspire state legislators in writing their own laws, and here is an instantiation in Washington state. At the outset, the law says that certain things are not covered, including warranties, maintenance agreements and service contracts (what then is covered??). There may be "required content", for example Service contracts shall state the procedure to obtain service or to file a claim, including but not limited to the procedures for obtaining prior approval for repair work, the toll-free telephone number if prior approval is necessary for service, and the procedure for obtaining emergency repairs performed outside of normal business hours or provide for twenty-four-hour telephone assistance. There are sections specific to motor vehicles, which could be relevant, for example "A service contract provider shall not deny a claim for coverage based upon the service contract holder's failure to properly maintain the vehicle, unless the failure to maintain the vehicle involved the failed part or parts". At the bottom of the Model Act document is a list of statuses in the various states: it's status in Connecticut is nonexistence, as of July 2014 (and no signs of such a law having been subsequently passed). There is a general law about express warranties, which doesn't impose any content restrictions on such contracts. So in CT, it depends on what the contract says. | There is no legal obligation of the police or any of its officers to reimburse you. It comes within a police powers exception to the 5th Amendment obligation to provide compensation for takings. Sometimes a government will compensate someone even though it has no legal obligation to do so, but this is unlikely to happen. A petition for certiorari from 10th Circuit decision of Lech v. City of Greenwood Village (10th Cir. October 29, 2019) recaps a lot of the relevant law and arguments for changing it (the petition was subsequently denied by the U.S. Supreme Court). The question presented in the petition was: Using explosives and a battering ram attached to an armored personnel carrier, the Greenwood Village Police Department intentionally destroyed Petitioners’ house. Afterwards, they offered the family $5,000 “to help with temporary living expenses.” The family sued, arguing that they were entitled to Just Compensation under the Fifth Amendment for the intentional destruction of their house. The Tenth Circuit, however, held that no compensation was due because the home was destroyed pursuant to the police power rather than the power of eminent domain. The question presented is whether there is a categorical exception to the Just Compensation Clause when the government takes property while acting pursuant to its police power. (To be clear, Texas is in the 5th Circuit and not the 10th Circuit, but there is not a circuit split on this particular issue between any U.S. Court of Appeals Circuits, and the Texas Supreme Court has not taken a contrary position.) Needless to say, that fact pattern was even worse for the innocent citizen, because law enforcement had more discretion and time to make a conscious decision about how to respond to the "bad guy" (an armed man wanted for shoplifting and resisting arrest) in the house to which the suspect had no connection. You could sue the "bad guys" who were involved in the shootout (if known) for causing an incident that foreseeably damaged your car, or you could make a first party insurance claim with your own car insurance. | The State of California is not responsible for injuries committed by private citizens Sorry to hear about your friend. Jamal may have a case (although the scope is narrow and timeframes are strict and tight) if someone employed by the state didn't do what they should have done. There is a whole raft of rules and regulations surrounding child welfare and Jamal would need to demonstrate exactly what they did that they shouldn't have done or what they should have done that they didn't do to have any basis for a claim. You will note that there is an obligation to make assessments -if they didn't make an assessment, they might be liable; if they made the wrong assessment, they aren't. Contested child welfare cases are difficult - caseworkers and social worlkers are presented with a lot of contradictory information and outright lies and the law accepts that if they make a good faith attempt to do their job, they haven't done anything wrong even if they make the wrong call. As for the court "assuming" anything, that is simply not true. The court would have heard the evidence (contested and contradictory no doubt) and made a judgement based on that evidence. It may have been the objectively wrong judgement but it was a perfectly legal one. In any event, you can't sue the court for a wrong judgement, you can only appeal it to a higher court subject to the time limits and your ability to pay. As a practical matter, child protection services are generally chronically underfunded, understaffed and overworked as are the courts that deal with such cases. A typical caseworker might have to deal with 50-100 cases similar to your friend every week - that gives them 5-15 minutes to (partially) read the file and try to decide what's best for the child. Sad to say, your friend is one of the lucky ones - came out the other end with a good relationship with one of his parents, isn't dead, isn't a drug addict and isn't homeless. And no, you can't sue the state for things being the way they are: that's what the voters want because if it isn't they'd elect politicians who would change it. |
Is there legal precedent for judges require marriage as a condition for probation? So apparently in East Texas a judge has ordered that a man marries his girlfriend because he assaulted her ex-boyfriend. The conditions for probation were: Marrying his girlfiend within 30 days Writing Bible verses; and Attending counselling. This got me wondering: is something that's happened (and reported on by either media or court reporters) before? If it's happened before in Texas, I don't think I'd be overly surprised, but has it happened elsewhere? | 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. | 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. | Yes. The principle caselaw is R v Hayward (1908) 21 Cox 692 A husband and wife had an argument that led to the husband chasing his wife out into the street. The wife collapsed during this altercation and died. Whist the husband did not physically touch her, he did shout threats at her. The wife was found to have been suffering from an abnormality of the thyroid gland that neither was aware of that meant that fright or shock could cause death if combined with physical exertion. The husband was charged with manslaughter. [...] The husband was found guilty of manslaughter. No actual proof of violence was necessary as long as the defendant’s unlawful act, which was the threat of violence, caused her fright leading to her death. The criminal law acknowledges that an assailant must take their victim as they find them... Source And... The defendant chased his wife out of the house shouting threats at her. She collapsed and died. He did not physically touch her. She was suffering from a rare thyroid condition which could lead to death where physical exertion was accompanied by fright and panic. Both the defendant and his wife were unaware she had this condition. Held: The defendant was liable for constructive manslaughter as his unlawful act (assault) caused death. The egg shell (thin) skull rule applied. He was therefore fully liable despite the fact an ordinary person of reasonable fortitude would not have died in such circumstances... Source | Generally, a local county judge’s decision is not binding on the judgement of another judge unless it is that of an appellate division. The law of the case principle could be referred to as an argument if it would have been decided by another judge in the same case (some courtships work on a rotary basis with different judges sitting over a single case). This would mean that the court would give greater deference to that decision; however, applying the principle is a matter of administrative preference to save resources of the court. Whether or not the other judge would reconsider the matter would be within their discretion absent binding authority to the contrary as a “law of the case” is not binding. In fact, even if it would have been the same judge with the exact same facts deciding the matter in a final judgement, there wouldn’t be much to do. One could argue that deciding differently is a violation of the Fourteenth Amendment which, if the judge fails to explain the different decision on the exact same facts may have a reasonable probability to get overturned provided the unconstitutionality finding was correct in the first place. If the matter was, in fact, unconstitutional, appeals may overturn a contrary judgement if the issue is brought up in the lower court and enters the court record. It may have some weight still to cite the decision of the other judge as the argument may be given more weight than if merely delivered as the argument of counsel. | Maybe. There are two questions presented. The first is whether someone who is in prison for a felony may be admitted to the practice of law. There is not a categorical prohibition on doing so. Instead, a character and fitness committee in each state to which an applicant seeks admission (even if it is a reciprocal admission) considers an applicant on a case by case basis. Usually, people with a felony conviction that is being served or is recent are not admitted to the practice of law, but it is not a blanket prohibition, so that could happen, although it would be highly unusual. The second question is whether someone admitted to the practice of law in good standing who is incarcerated in prison would be allowed to do so by prison officials. The work the inmates are allowed to do is largely in the discretion of the prison warden at a particular institution. It isn't inconceivable that a prison warden could allow an inmate to do this subject to significant limitations on scope of practice, but again, it would be highly unusual. Some factors that might encourage a prison warden to allow it would be that: (1) the state has to pay another lawyer to represent inmates in some kinds of cases if the fellow inmate does not at greater expense per hour to the state, (2) it might promote rehabilitation and garner good press, and (3) the prison warden might reasonably guess that an inmate represented by a fellow inmate is less likely to prevail on the merits than an inmate represented by another lawyer and might prefer that outcome. The leading treatise on the subject of lawyering by inmates, with and without full or limited admission to the practice of law, is the Jailhouse Lawyer's Manual. | This probably isn't a ground for an appeal. While a party arguing to reverse a trial court's decision must show that the argument that they are making on appeal was "preserved" by that party at trial by making that argument in the trial court, the converse is not true. Indeed, one of the rules of appellate practice is that a trial court's ruling will be upheld for any reason supported by the evidence even if it wasn't made by any party at trial. Generally speaking, a trial court isn't supposed to try a pro se party's case for them, but once the evidence is in, the court is free to do original legal research and come to a conclusions contrary to the arguments made by either of the parties. A judge is supposed to correctly apply the actual law to the facts notwithstanding the efforts of the parties to lead it astray. This doesn't systemically happen in favor of one party or the other in my experience, but is more common when one or both parties is relatively inexperienced in the relevant legal field. Appellate courts also come to conclusions about the law not advanced by either party on a regular basis. If anything, this is even more common in the area of administrative law, where the judge is likely to be a subject area specialist, than in ordinary civil litigation. It is also more common in administrative law because a judge in that context is more focused on the institutional implications of a bad precedent than trial court judges in ordinary courts. (PS is there a technical term for the rules concerning the "role" of the judge in a court, what they supposed to do, and not supposed to do?) Probably, but there isn't any term that comes readily to mind. If I can think of one, I will update this answer. | This was asked and answered by KPD on the Politics stackexchange. This issue came up in a decision from an appeals court, with a judge dying before the opinion was released, leading to the following SCOTUS opinion. The short of the answer: that Judge's vote is voided. If the result of negating the deceased Justice's vote is a 4-4 tie, then the usual procedure for a 4-4 tie is invoked, which is addressed in the Q&A you link. Of course this assumes that SCOTUS will apply this to themselves, but the issue appears to be non-controversial, as it was a fairly recent decision with no dissents noted. So this assumption seems safe. | If one day the child goes around to the father's house, perhaps in a state of upset, and says, "That's it, I'm staying," what is the legal position of the father? An eleven year old child really has no say in the matter. A judge in a custody case may consider what the 11 year old has to say but is unlikely to give it much weight. (In contrast, a judge is likely to give a lot of weight to the views of a child who has a job, who is doing O.K. in school, and is a year or two from becoming a full fledged adult.) This is up to his parents to resolve absent circumstances not present here (e.g. the child has made bona fide allegations of child abuse, or the parents are both incarcerated). And, if the parents can't resolve the dispute, it is up to a court in a case where parenting time is at issue (probably either a legal separation or a divorce in this case). For example, while (as noted below) the police will not generally drag a child kicking and screaming to the other parent without a court order, if the child is at his father's house, the father can absolutely drag the child kicking and screaming to the child's mother's house, no matter how much the child doesn't like it. Moreover, while the father will not be violating any law, if he does not do that, a child custody judge is likely to look dimly upon a parent who intentionally withholds visitation from another parent without good cause, when the court considers what kind of child custody arrangements to put in place. And, the court has extremely great discretion in these matters. The judge is also likely to be pretty unhappy with both of the parents for failing to be capable of communicating or cooperating over child rearing related issues, because they are apparently so focused on not getting along with each other over their issues with each other. In particular, if the mother calls the police claiming "child abduction," what will be the police position? Will they come to the door of the father? Will they drag the child kicking and screaming back to mother's house? It is not generally illegal for a married parent in a situation where there is no child custody order in place to have that parent's child with them over the objection of the other married parent. Absent a court order to the contrary, the police will probably call this a "civil matter" and will be unlikely to take any action until there is court guidance, absent exigent circumstances like evidence of recent not previously adjudicated claims of child abuse or neglect. The way to resolve this would be with a court filing of some sort seeking to resolve the parenting time issue, if necessary, on an emergency basis. Post-Script Whether or not the parents want to end the marriage, this situation is long overdue for court intervention. I've had couples who "pull the trigger" too soon, but this would not be a case of that type. Either the father or the mother needs to find a solicitor (if at all possible to afford that) and get the court system involved. If there is a breakdown in communications over matters related to the child, and the child is not cooperating in the face of an ambiguous parenting situation involving two parents who can't communicate about their child, the situation is out of control. Prompt court action could prevent a more negative outcome in the future by creating stability and structure in the situation. |
Witness sabotaging a document with wrong signature Suppose you are asked to sign a document (a will, marriage certificate, deed poll, etc.) as a witness. You secretly disapprove of the thing taking place and therefore attempt to sabotage the document by signing incorrectly: for example, not using your proper signature, or using a fake name (if they don't know your name -- e.g. pulled off the street to witness a marriage). Does this actually invalidate the document (as not properly witnessed)? And are you committing a crime by doing it? | as a witness. You secretly disapprove of the thing taking place Does this actually invalidate the document (as not properly witnessed)? No. In regard to the substance of a contract, witnessing does not imply, entail, or require approval thereof by the witness. The meaning or relevance of a witness's signature is nothing more than him or her certifying that the act of "2+ other parties entering a contract" took place indeed. And are you committing a crime by doing it? I highly doubt it, regardless the country or jurisdiction. The witness's [bizarre] act of acquiescence falls short of criminal conduct such as (1) forging someone else's signature, or (2) fraudulently "acknowledging" the presence of the contracting parties when in fact at least one of them was totally absent. Only if the witness subsequently acts in a way that hinders the purposes of the contract, thereby causing harm, the harmed party(-ies) might sue the witness for tortious interference with business or relation (or its equivalent in other non-U.S. jurisdictions). For instance, suppose a contract-based transaction requires involvement by a third party, who is hesitant to perform the transaction because suspects that the witness's signature was forged. That suspicion may prompt the third party to inquire of the witness whether he actually signed as witness to the contract. If the third party rejects the contract-related transaction due to the witness's [false] denial, the harmed party(-ies) in the contract may sue the witness for any losses (examples: bounced checks, costly delays, missing of deadlines, provable loss of business opportunities) that his false denial caused. | Every state requires at least two witnesses to a will unless it is entirely written in your own handwriting. A lawyer as a witness is fine. A spouse as a witness is not ideal as she would be an interested party if there was a dispute over whether it was executed. It may not be prohibited, but I would never do that in my practice ever. I discontinued a will signing just last week because we only had a lawyer and a spouse and not other witnesses. I would be somewhat concerned. | Can I sign legal documents with a smiley face? Yes, that is lawful. A person's signature does not necessarily have to include the person's name or initials. What matters is that the signature reliably and unequivocally identifies the person who produces it, which apparently you have been able to prove by showing your driver's license. The Black's Law Dictionary (4th Edition) states in its entry for signature that "whatever mark, symbol, or device one may choose to employ as representative of himself is sufficient". It directs to the entry for sign, which likewise speaks in terms of "any mark, as upon a document, in token of knowledge, approval, acceptance or obligation". Accordingly, your signature qualifies as mark or symbol that fits these purposes. Your history of signing other legally binding documents that way further reinforces the authenticity of your signature. If it is legal, is it a bad idea? It is a bad idea to the extent (if any) that (1) others can easily forge your signature (notwithstanding that forgery or identity theft might be proved circumstantially); and (2) verifying your identity may cause hassle or annoyance to you and/or third parties. But this paragraph obviously is applicable to any and all signatures, not just those which at first glance may seem to be a joke. | What can I do to prevent someone from leaving me something in their will? Nothing. Allowing other people to legally change someone's will defeats the purpose of a will: To express the writer's last wishes. (That is why the full title is a "Last Will & Testament"). Do I have to take responsibility for things left to me in a will or are there other options? No! You do not have to accept an inheritance. The legal process for rejecting an inheritance is called "disclaiming." It happens often enough that there are plenty of nice summaries of the process on-line. Your next step should probably be to read one of them. | 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. | In all likelihood, the judge's order related to data collection and reselling is not legally enforceable. They weren't parties to the expungement action, so the judge doesn't have jurisdiction over them. And, the First Amendment protects the right to say truthful things pretty absolutely. Arguably, if the sites provided the information without making clear that it might not be current because records were expunged or corrected, there might be a claim for negligent misrepresentation, false light, or even defamation, but I seriously doubt that even those claims would hold up. The language in the order might cause sites to comply out of not legally justified concern, or just a desire to be accurate, even if it is not enforceable. So, it doesn't hurt to bring that information to the attention of such sites and ask them to take down the information. But, when push comes to shove, I very much doubt that you would prevail in court enforcing that order against them. Certainly, if you do nothing, they will do nothing, because they are not psychic and have no idea that the court order related to those records has been entered. Even a valid and enforceable order directed at a party over whom a court has jurisdiction is not effective until the person ordered to comply with it has notice of the order. And, there is no system that gives sites like that notice without you taking action to inform them of an order. | Here's what one recent law review article says: While the privilege against self-incrimination bars compelling communications or testimony, compulsion that makes the suspect the source of physical evidence does not. Given that biometric authentication is merely a scan of physical traits that are compared to previously stored information, one can argue that compelled biometric authentication is not barred by the self-incrimination privilege. Indeed, the Supreme Court has repeatedly held that compelling an accused to demonstrate physical characteristics for identification purposes does not qualify as compelled self-incrimination because it is not testimonial in nature. Likewise, if an accused was compelled to place his finger on his laptop's fingerprint reader, or have his face scanned with his phone's facial recognition software, the physical characteristics would have been used for identification purposes and would likely not be considered "testimonial in nature" such that the scan would violate the self-incrimination privilege. Erin M. Sales, The "Biometric Revolution": An Erosion of the Fifth Amendment Privilege to Be Free from Self-Incrimination, 69 U. Miami L. Rev. 193, 222 (2014) (citations omitted). | It is legal to be wrong, it is legal to say false things in public (leaving out defamation), and it is legal to buy and manufacture signs that say false things. Moreover, the sign does not make a false statement, in that legal liability is distinct from moral responsibility. In fact, the sign helps to decrease their legal liability. Via this sign, you have been put on notice that the truck may spray a bit of gravel, so by following too closely, you are negligently contributing to the damage. This is what also underlies those disclaimer signs with "not responsible for theft from your auto". There is nothing "official in appearance" about this sign (a legal citation of a statute might have such an appearance). |
Does a user have the right to request their forum posts deleted? Forum posts and similar stuff: chat messages from chatlogs, etc. According to https://eugdprcompliant.com/personal-data/ , a person's social media accounts and their posts there are considered personal data under GDPR. In this case, does a person have the right to request permanent removal of their posts from an Internet forum or from chatlogs? This breaks the flow of the archived conversation and makes it difficult for readers to understand posts of other people that are not removed. Does a person have the right to request removal of certain posts without removing their account? Moderation problem; a person may request removal of posts that are stored as evidence of their past problematic behavior, in an effort to keep bordering the forum's rules without ever crossing the line to getting suspended. If a person requests all their data deleted, is anonymizing their contributions enough? I've seen an EU-based Internet forum that, on account deletion request, anonymizes all posts from this account (repleaces the author's nick with 'account deleted'), but leaves them in the archives. This still damages the flow of a past converstation, but not as badly as if the post was outright removed. Other posts may contain the nick of the author of an anonymized post ('what @username said, ...'), making such anonymization questionably effective IMO? Bottom line: If a user requests all their posts on an Internet forum deleted under GDPR, do I have to comply? Do I have to also censor other users' posts, which may contain this user's nickname and / or quotations of their posts? | Earlier this year, the Internet lawyer Arnoud Engelfriet wrote a blog post about exactly this topic. As it is written in Dutch, I will summarize it here: As you also said, deleting posts breaks the flow of the archived conversation and it makes your archive incomplete. This is a problem for the freedom of expression and information. But Art. 17(3) GDPR includes an exception to the right of erasure for this situation. So posts do not need to be deleted. However, profiles are not included in this exception. So they must be removed, but they can be pseudonymized. For example replace the username with user89432, and remove all details from the profile. If other posts contain the nick of the author of an anonymized post, that is considered an journalistic, academic artistic or literary expression, so Art. 85 GDPR would apply, so the right of erasure does not apply to that. Bottom line: you only have to pseudonymize the account, if that person wants to be removed from the forum. | These are only tangentially related to the GDPR A government entity processing data in accordance with a member state law is ipso facto in compliance with the GDPR. That’s because lawful government data processing is a legitimate reason for processing data under the GDPR. If Germany, for example, passes a law saying German police can record every phone call in Germany, then that would be a lawful basis for processing under the GDPR. There may be constitutional or other legal limitations on such a law but as far as the GDPR is concerned, they’re fine. | Yes, this violates the GDPR if the user is in Europe. Data which is tied to a personal device can be tied to the person who owns it. From "What Is Personal Data" by the UK Information Commissioner's Office (ICO) (emphasis added): Personal data is information that relates to an identified or identifiable individual. What identifies an individual could be as simple as a name or a number or could include other identifiers such as an IP address or a cookie identifier, or other factors. If it is possible to identify an individual directly from the information you are processing, then that information may be personal data. If you cannot directly identify an individual from that information, then you need to consider whether the individual is still identifiable. You should take into account the information you are processing together with all the means reasonably likely to be used by either you or any other person to identify that individual. The bit about "all means reasonably likely" in the last bullet includes the kind of de-anonymisation tactics described in the NYT article. There are 6 lawful bases for data processing in the GDPR, and all processing must fall under at least one of them. (a) Consent: the individual has given clear consent for you to process their personal data for a specific purpose. (b) Contract: the processing is necessary for a contract you have with the individual, or because they have asked you to take specific steps before entering into a contract. (c) Legal obligation: the processing is necessary for you to comply with the law (not including contractual obligations). (d) Vital interests: the processing is necessary to protect someone’s life. (e) Public task: the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law. (f) Legitimate interests: the processing is necessary for your legitimate interests or the legitimate interests of a third party, unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests. (This cannot apply if you are a public authority processing data to perform your official tasks.) Selling data isn't covered by any of the others, so consent must be obtained. Permission must be clear and positive, and you cannot predicate delivery of a service on the processing of data that isn't necessary for that service. So for instance you cannot say "You can use this service as long as we are allowed to collect and sell your data" because selling the data isn't necessary to the provision of the service. From "Consent" by the ICO: Consent requires a positive opt-in. Don’t use pre-ticked boxes or any other method of default consent. Explicit consent requires a very clear and specific statement of consent. Keep your consent requests separate from other terms and conditions. Be specific and ‘granular’ so that you get separate consent for separate things. Vague or blanket consent is not enough. [...] Avoid making consent to processing a precondition of a service. This applies to any processing of data about individuals within the EU, so just being an American company doesn't get you a free pass to ignore the GDPR if your app gets used by Europeans. The "Legitimate interests" basis is more problematic, in that the company collecting the data has to conduct a vague "balancing test" to determine if this basis applies. For direct marketing the ICO has written this, which says that direct marketing may be a legitimate interest, especially if you can show that the user has expressed interest in such adverts. For instance a location service which promises to tell you about nearby special offers would fall into this category. Against this, the impact on the user's privacy has to be considered, and location data is "special category data" because it can reveal medical information (e.g. hospital attendance) or religious affiliation (e.g. which church you go to). So unless the relationship between the recorded location data and the service is very direct its not going to pass the balancing test. The company would also need to distinguish between knowing the current location and keeping a record of historical locations; the two need separate justification. And of course nothing about this covers the sale of the data; this is considering a company which sells advertising space in it's app, not one that sells the data itself. | It is any law protecting me from the people that distrubute a video of me falling the stairs and shared without my permision? No. Your permission is not necessary for distributing or watching that video. The recording was from your workplace, where your entitlement to privacy is quite limited unlike few settings such as (1) your attorney's office in the course of obtaining legal advice for which the disclosure was needed, or (2) your home. Even if such an entitlement existed, your decision to share that recording with the person who was with you generally constitutes a waiver of your right to privacy regarding that incident. The waiver would apply even if California had some legislation akin to the EU's GDPR. Your description nowhere indicates that that person had a statutory or equitable duty of confidentiality. It is also highly doubtful that you would wish to block the distribution of the video if people instead of mocking you expressed something pleasant or encouraging to you. people who I don't even know their names come to me to comment about the video and joke about not falling again. That is not unlawful in and of itself. Since the matter does not involve a protected category such as sex, race, religion, or disability, pursuing a claim of hostile work environment would be quite a stretch. It would also be futile because any relief would not cover outsiders who watch the video and feel like joking about it. The notion of harassment entails a pattern of conduct (meaning that a person engages twice or more in that conduct) that causes a reasonable person to feel annoyed or concerned for his safety. Even if someone engages makes a few jokes that cause you to get annoyed, any petition for restraining orders seems unlikely to succeed. Sooner rather than later, the jokes will get old and people will move on. | You have the right to request anything you want, but there is a very limited set of things that you can have a legal expectation of them doing. The service provider has no obligation to block a user. You can likewise request a report, and from a pirate site I would expect no response. There is no legal requirement that a pirate site block an offending user after a certain number of offenses. There is no direct way to compel a pirate site to ban a user. Indirectly you might accomplish that end if you take legal action against the site, which causes them to ban a user in order to protect themselves If a DMCA request was not "proper" (the correct legal form) they will not perform a takedown, and may not inform you that they won't. Make sure your takedown request is legally correct and actually delivered to the correct person. If they still ignore your request, they will have lost the "safe harbor" provisions, and you can theoretically sue them. Since the pirate site presumably only hosts a link to elsewhere, their making public such a link is not itself copyright infringement, so you need to be going after the ISPs who manage the actual host sites. The pirate site might still be a contributor to infringement, along MGM v. Grokster lines. A standard defense against infringement would be "We had no idea", and ignoring DMCA takedown notices is clear proof that they did have an idea. That's basically what DMCA takedown is about: saying what it takes to use the "We had no idea" defense. | I think there are a couple of different ways to look at this. Deduplication is a technical detail that's irrelevant here While the data may be deduplicated on a technical level, the files remain logically distinct. If users 1 and 2 upload identical files, and then one user edits or deletes their file, this will not affect the other user's data. Users cannot tell whether their files are duplicates of someone else. From the user's perspective, it makes no difference whether or not the storage uses deduplication, except perhaps via the cost of the service. Because there is no user-perceptible difference, it would be difficult to interpret some GDPR significance into this scenario. Whose personal data is it anyway? Personal data is any information that relates to an identifiable data subject. The files here are likely to be their uploader's personal data. Thus, the uploaders would also have a right to have their uploaded files erased. In case of deduplicated storage, this would affect their logical copy. The contents of the uploaded files might also be personal data relating to a third party. Then that third party might have a right to get the file contents erased. But this right must be invoked with the data controller for that processing activity, which might be company A, company B, or the uploaders, depending on context. Which leads us to the next aspect: Company A is not responsible for handling erasures From your description, it sounds like company A is a data processor providing services on behalf of company B. In turn, B might be a processor acting on behalf of the uploaders. In any case, it seems that A would not be the data controller for these processing activities. Data subject rights like erasure must be invoked against the controller, as only the controller can understand whether such a request should be granted. The right to erasure is not absolute, and depends a lot on why that data is being processed. In particular: Personal data need not be erased if it is still necessary For example, a person might very well be the data subject of some of these files, and might then ask for erasure. But if the files are being stored because they are going to be needed as evidence in legal proceedings, the data subject can't use this GDPR right to destroy evidence. The data controller would be allowed to refuse a request in such cases. It could now happen that two different users of this deduplicated storage are storing the same file, but for entirely different purposes. Blanket deletion of all copies of a file could be quite problematic. Note that deletion is also a "processing activity" and needs a legal basis under the GDPR. Unexpected data loss could be a data breach. One user's erasure could be another user's reportable data breach incident. Thus, I would strongly expect such requests to be handled on a logical file level, not on the deduplicated storage level. Caveat: public access and cloned files If the (logical) file is made available to the public who can then clone or copy this file, and if the "original" is taken down due to an erasure request (or copyright takedown notice), it might be appropriate to remove logical clones as well. Again, this might not involve deleting the contents on the deduplicated storage level, but it might affect other users' copies. In a GDPR context, the grounds for this would be the Art 17(2) right to be forgotten: Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data. But this depends crucially on who those other controllers are. If A is the sole controller, the logical files could probably be deleted directly. If B or the end users are controllers, it could be more appropriate to forward the erasure request to them. | Your VPN scenario is why you have to show the banner to everyone. If you somehow knew beyond any doubt that someone was not in the EU, then you would not have to show a banner, but because you can't verify that, you should always show the banner. Doing so also protects against accidentally violating a similar law in another country; the GDPR is the best-known privacy law, but it is far from the only one. It's good practice to ask for people's permission before collecting their information anyway. | It is not possible for someone to forfeit their rights because the GDPR is compulsory law. In the EU, laws can be regulatory or compulsory. In case of an agreement, regulatory laws can be set aside, if both parties agree on that. But compulsory laws cannot be set aside. Of course laws can also be partly compulsory. For example provisions which cannot be changed in disadvantage of a consumer. So there is freedom of contract, but it's freedom is reduced by law for the common good or for example to avoid misuse of bargaining power. In particular consumer related laws are often compulsory because it has little power against the other parties. Companies can have their negotiations done by lawyers, so they can make a well informed an well negotiated decision. As an extreme example, you cannot kill someone, even if that person has given you written permission. See also "Peremptory norm" on wikipedia for international law examples. |
Is it legal to open a museum of certain a brand? My wife is a big fan of a certain toy company and has a huge collection. She is toying* with the idea of opening a small museum showcasing her collection. Is it legal to name the museum "The [Toy-Company] Museum" ? If the name is illegal, what about naming the museum something generic like "Retro childhood toys museum" and showcasing an section devoted to this company? would this be legal? (the section would be named using the company name) Thanks! * - pun intended | My gut response without really analyzing it (which is honestly what a lot of these cases boil down to in the end) is that the proposed name would imply an affiliation with the company that does not exist. A case challenging that name could be expensive and come out either way. Instead, "The [Wife's Name] Toy Museum" with descriptive material in brochures and on a website saying that the exhibits were manufactured by "Toy Company", which is a nominative use that does not imply an affiliation with the Company would be a wiser move. | Banning you from the museum raises questions about your due process, equal protection, and First Amendment rights. Generally speaking, a person banned like this would be unlikely to collect any damages, but may be able to obtain injunctive relief to prevent the museum from enforcing its ban. Of course, it would depend on the reason for the ban and the procedures the museum went through in imposing the ban and permitting you to challenge it. In your case, though, the ban has already been lifted, so there's probably not much room for any kind of legal action. EDIT: Since there are several people contesting -- with no law to support them -- the validity of this answer, here's a case discussing the First Amendment implications of access to museums: As a limited public forum, there are certain First Amendment activities permitted on [National Civil War Museum] grounds and others that are not. For example, lectures or programs on a Civil War topic authorized by the museum and the public's attendance at these activities would be permitted uses, but activities concerning other topics (including the immorality of homosexual activity) would not. Diener v. Reed, 232 F. Supp. 2d 362, 385 (M.D. Pa. 2002), aff'd, 77 F. App'x 601 (3d Cir. 2003). | It may be illegal under product labelling regulations that apply to that kind of product (or under a general deceptive trade practices act), but even then, only if you are interpreting the numbers, whose meaning is not clearly spelled out, correctly. But, to be actionable as fraud it must, among other things, be a misrepresentation as to a material fact (which if the goods, such as cordless drills, are not perishable it probably isn't) and the recipient of the misrepresentation must have justifiably relied upon the misrepresentation (which is necessary not true in the case of a representation that it was made in December 2018 on a product sold no later than July of 2018). It is also not entirely clear that this is a "made on" date. It could refer, for example, to the the twelfth batch or lot or shipment of products made in 2018, and not to the month of December, or it could refer to a product made in 2018 at factory number 12. @NateEldredge in the comments also makes the plausible observation that it could be a week number which is a common system in manufacturing which would put it in a more reasonable March 2018 time frame. You probably shouldn't do anything, because you haven't been harmed by this cryptic string of numbers embossed on the product, and even if you were, your damages would not be worth the time or money involved to pursue it as anything other than part of a class action lawsuit. | The rink is private property; they can let who they like in, and they can refuse entry to who they like. They can ban you for any or no reason. (The only exception to this is that they can't refuse entry because of some protected characteristic like race or gender.) The owner doesn't have to personally issue a ban; any person they authorize can do so. (Consider the case where the owner is something like the Disney Corporation; bans aren't going to be issued by the board of Disney - they will be delegated to the local manager, and probably the shift leader). You can still show up of course, but you are quite likely to be thrown out. | Everything you see there is copyright and trademark the Tolkien estate or a derivative work thereof. It's all illegal. | 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. | Generally you can only use logos (i.e., symbolic trademarks) if you have the trademark owners' permission. You may certainly use the names Cisco and Microsoft nominatively, although they might ask you to provide a disclaimer of any affiliation including sponsorhip or approval, if it gets to them. "Not making any money" is also not the sole determinative factor in proving your defense of "fair use". | No it’s not illegal It’s called retailing: https://youtu.be/ywSkKkuGQ2A https://youtu.be/k8OreiHU91Y https://youtu.be/XpR6y1sNArU You are allowed to advertise the products you sell. Even if you don’t make them. You can even use their trademarks to identify them - that’s what trademarks are for. |
Company stole my IP. Are there costless remedies? If a well-funded company steals an individual's intellectual property, are there any means to sue or otherwise enforce the IP rights without costing the victim anything? (I.e., if the victim does not have the means to pay a large retainer to an attorney.) | Direct civil suits are not the only way to obtain remedies for property violations. Other options: Ask. You can send them a simple letter describing the violation and asking them to compensate you appropriately. Complain to authorities. If they engaged in any behavior that constitutes a crime (e.g., criminal fraud) then the state (via district or state attorneys) is responsible for any criminal prosecution. If the state prosecutes and you are considered a victim, the state generally takes that into account if they are able to prevail against the defender. Even if they didn't commit a crime, but they have a sufficiently outrageous pattern of abusing individuals' civil rights, state attorneys may decide to threaten or take legal action. Seek a "litigation investor." If the size of damages likely to be recovered via lawsuit is high enough, then law firms will sometimes take cases "on contingency," which typically means the plaintiff does not front any money, but gives up a significant share of any winnings. There are also independent litigation investment companies that perform the same function based on a similar calculus, but often for even larger cuts of any winnings. | 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. | The origin of a lawsuit will not be a license, but copyright law. Licenses are exemptions from copyright law enforcement. The original author holds the copyright. That person did offer a license O to the third party, but that third party did not take up that offer. Hence, there is a copyright violation, and a cause for a lawsuit. It is up to the original author what might be demanded there, but the usual demand is such suits is for damages. However, it is common practice to settle the case amicably outside the courts by agreeing to the original license O, although this may come with undisclosed extra terms. The problem with a lawsuit is that enforcement of the original license offer O is hard, because copyright law generally does not cover such licensing. The license terms L are mostly irrelevant as that person is not a copyright owner so there is nothing to be licensed. | Assuming that the owner of the hard drive (irrespective of if that owner is a government or private person) is legally entitled to take possession of the hard drive then they can do so subject to the fact that they generally cannot commit a crime to do so (e.g. trespass or damage to property). If the person in possession of the hard drive refuses to hand it over, the owner can seek a court order to seize it - this may allow trespass etc. Any IP on the hard drive that doesn't belong to the owner of the drive is still protected by all relevant IP laws. For example, the owner of the drive cannot copy copyright material without permission unless it is in accordance with fair use/fair dealing rules. | No. The Creative Commons license seeks to promote recognition of the original author's work through attribution, but does not provide the same framework for enforcement that the DMCA would. The proper approach in cases such as the deleted Wikipedia article and subsequent reuse would be to provide a courteous notice to Wikipedia of your original publication and ask to be listed as the original author or be provided attribution. In the absence of relief there, then what rights you have would be determined by the Wikipedia Terms of Service. Since, and I am assuming here, that you are not generating billions of dollars on the original publication in royalties, seeking to bring a DMCA type enforcement on a Wikipedia article dispute would be like trying to swat a fly with a sledgehammer. (or more commonly in divorce, two people having hearing and spending thousands of dollars on attorney's fees fighting over a blender -- they are free to do it, but they would have been much better off buying 500 new blenders...) Keeping perspective and providing a courteous letter is probably your most cost efficient first step in situations like this. And in all areas of law, just remember, you catch more flies with honey than you do with salt. (meaning taking the courteous approach usually affords better results than a scalding letter breathing hell-fire and brimstone) In followup to earlier comment: Presuming you would be covered by the World Intellectual Property Organization Treaty on Copyright of 1996 (as a U.S. Citizen you would be), and your copyright is on file with the United States Copyright Offices (same presumption) as prerequisite to suit, then there is nothing that prevents you from invoking the protections under general copyright law and under the DMCA (inlcuding the Takedown provisions). Note: these are not the only prerequisites to taking action, but instead the minimum critera to qualify, and note this does not pass on the wisdom of doing so (there are often significant consequences to improperly invoking previsions of certain acts). | There's a legal issue, and a practical issue. If you witness a crime, you can inform the police and something may happen. The FBI does actually investigate criminal copyright infringement, but they also don't respond to concerned-citizen complaints, only complaints of copyright holders (and not all of them). You cannot use DMCA takedown to get the service provider to remove the content (or shut down the site, or whatever would be necessary), since only the copyright holder can make the required sworn statements. So you have no legal recourse. A practical solution is to tell Google. This link could have been a way to inform them, but it seems to always resolve to identifying plausible DMCA takedown requests, and if you truthfully answer the "are you the copyright holder" question, you are told to go away. Even if you lie at the preliminary stage, the procedure ends with you making a sworn statement, and you can't lie on one of those. This information might allow you to send them a letter, which they might read. They might simply not consider it worth their time. | There are two parts to copyright liability: civil and criminal. TL;DR: both cases are criminal offences, and it is illegal to break the law even when you are paid to do it. In the USA criminal copyright infringement requires a deliberate act to infringe copyright for commercial gain. Both of the scenarios meet these requirements. In the UK (and probably the rest of Europe) criminal copyright infringement includes possess in the course of a business an article which is, and which you know or have reason to believe is an infringing copy of a copyright work with a view to committing any act infringing the copyright. Again, both these scenarios meet this requirement. In the first scenario you are acting as an employee, so you don't have any personal civil liability for damages; that goes to your employer. However you still have, at least in theory, criminal liability. In the second scenario you are your own employer and so have both civil and criminal liability. Your client will share some liability as they have provided inducement to break the law. The best way of dealing with the first scenario is to point out to the boss that he is ordering you to commit a crime. Cite the law in your jurisdiction and the penalties for breaking it. Do this by email so that you have evidence of having told him, and take a printed copy of the email home with you just in case (if your boss isn't above criminal copyright infringement he may also not be above tampering with evidence). If you are in a big company then a CC to HR might also be indicated. If the boss is the company owner then you are in a stickier situation; your best option is probably to perpetuate the evidence as above and start looking for an employer who doesn't break the law. The second scenario is simpler: just refuse to do it. | Anything that helps you with your business and that you keep secret is a trade secret. The "keeping it secret" is an important part. Competitors are free to discover the same information themselves and use it, but stealing it from you is illegal. If a contractor needs to learn this information to do their job, you make them sign a non-disclosure agreement or confidentiality agreement which forbids them to pass that information on. That way, it remains a trade secret. If the contractor gives your trade secrets away, that is breach of contract and you can sue for damages. If a competitor pays your contractor to give them your trade secrets, that's not just illegal, it's criminal. On the other hand, if the contractor puts the information on his blog for example where everyone can read it, without having been enticed by someone to do this, then I believe your trade secret is gone and competitors can use it. Same as if you left documents on a park bench and your competitor finds them and reads them. You have to keep a trade secret a secret; if you fail to do so you lose. Asked about patents: If there is a non-disclosure or confidentiality agreement in place, then nobody can apply for a patent. The whole idea of a patent is that you get legal protection in exchange for disclosing your invention. Applying for a patent would mean violation of the non-disclosure agreement. |
Can a user request the deletion of their IP address that is stored for moderation purposes? An Internet forum logs their users' IP addresses for moderation purposes (fighting abusive sockpuppetry, temporary banning a dynamic IP address range in case of a spam attack, permanently banning static IP addresses in case of persistent toxic behaviors, etc) An abusive user request the deletion of their IP address from the logs under GDPR This seems to be in an effort to prevent the moderators from exercising the aforementioned tools, so that the user can abuse the forum undisturbed Do I need to comply? | No. Art. 17(1) GDPR lists conditions when erasure can be requested. None of the listed grounds would apply in this case. However, you might have to explain why you process the data (for moderation purposes as you explained above), and why that is lawfully. In particular Art. 5 and Art. 6 need to be taken into account. In your case, processing will be based on Art. 6(1)(f): (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. Even if the data subject would be a 9 year old child, the legitimate interests of you and other forum users outweigh the objection of the data subject. Based on Art. 5, there will be a moment when the data has to be deleted. For example 1 year after the last login attempt. | Not all cookies require consent. The current answers are in WP 29 Opinion 04/2012 on Cookie Consent Exemption - 00879/12/EN WP 194. This WP29 Opinion is based upon Directive 2002/58/EC ("ePrivacy Directive"), and not GDPR, which is current law for this matter until other guidelines are adopted pursuant to GDPR or until the awaited "ePrivacy Regulation" is finally adopted. 1. General rules This Opinion states 2 critera for cookie consent exemption: (...) exempted from the requirement of informed consent, if they satisfy one of the following criteria: CRITERION A: the cookie is used “for the sole purpose of carrying out the transmission of a communication over an electronic communications network”. CRITERION B: the cookie is “strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service”. 2. User preferences The first two types of cookies would be, as I understand, for the purpose of remembering user preference in how it interacts with the Website. Such types of cookies can fall under criterion B, under certain conditions. Section 3.6 "UI customization cookies" explains the conditions that such type of cookies have to meet so that the consent exemption can apply, in particular: User interface customization cookies are used to store a user’s preference regarding a service across web pages and not linked to other persistent identifiers such as a username. They are only set if the user has explicitly requested the service to remember a certain piece of information, for example, by clicking on a button or ticking a box. They may be session cookies or have a lifespan counted in weeks or months, depending on their purpose. (...) These customization functionalities are thus explicitly enabled by the user of an information society service (e.g. by clicking on button or ticking a box) although in the absence of additional information the intention of the user could not be interpreted as a preference to remember that choice for longer than a browser session (or no more than a few additional hours). As such only session (or short term) cookies storing such information are exempted (...). The addition of additional information in a prominent location (e.g. “uses cookies” written next to the flag) would constitute sufficient information for valid consent to remember the user’s preference for a longer duration, negating the requirement to apply an exemption in this case If you need to request consent, then WP 29 Working Document 02/2013 providing guidance on obtaining consent for cookies - 1676/13/EN WP 208 contains guidance. 3. Cookie Preference cookie The last type of cookie you mention, being the Cookie Preference cookie, would be, as I understand, only used as a purely technical mean to store and retrieve (transmit) the user's explicit choices preferences, and would most probably fall clearly under criterion A and/or B. | The California CCPA, Virginia Consumer Data Protection Act (CDPA), and the Colorado Privacy Act (CPA) all use definitions of "personal information" (PI) very similar to that used by the GDPR, and the arguments which have been applied to classify an IP address as Personal Data under the GDPR could logically be used under each of those laws. For example this official page gives the CCPA definition as: Personal information is information that identifies, relates to, or could reasonably be linked with you or your household. For example, it could include your name, social security number, email address, records of products purchased, internet browsing history, geolocation data, fingerprints, and inferences from other personal information that could create a profile about your preferences and characteristics. Note that IP addresses are not specifically mentioned, nor are "online identifiers" a key term under the GDPR. But an IP address often provides geolocation data, which is mentioned. The April 2020 article "Are IP addresses 'personal information' under CCPA?" from The Privacy Advisor by IAPP says: For many businesses, the collection of IP addresses provides multiple benefits from monitoring website traffic to advertising, tracking and deterring malicious activity. But are IP addresses “reasonably capable” of being associated with or “linked” to an individual or household? If not, do they still “relate[] to” or “describe” a consumer or household? These questions are critical to address, because if IP addresses are considered to be “personal information,” then businesses may find themselves subject to additional obligations under the CCPA or forced to rethink how they handle IP addresses as part of their online business. ... The CCPA’s definition of personal information expressly contemplates including IP addresses. An IP address alone may not allow a business to identify a particular consumer or household; however, in many — if not most — cases, an ISP can link an IP address with a name, home address, phone number, email address and even payment information. ... ... On Feb. 10, the California attorney general issued its first set of modifications to its proposed CCPA regulations. These modifications included the following guidance: [I]f a business collects the IP addresses of visitors to its websites but does not link the IP address to any particular consumer or household, and could not reasonably link the IP address with a particular consumer or household, then the IP address would not be ‘personal information. The article goes on to explore the implications of that proposed regulation, saying: In other words, if the business did not link the IP address to a consumer or household, and the business could not reasonably link the IP address with a particular consumer or household, the IP address would not be personal information. This interpretation aligns with the reality that even if businesses wished to link IP addresses to individuals or households, many would lack the information needed to do so themselves and would be unlikely to succeed in compelling an ISP to do so for them However, the regulation quoted above was removed in the March 2020 draft of the proposed regulations and did not appear in the (PDF) Final Regulations, issued in August 2020. The IAPP article goes on to discuss the ECJ case Breyer v. Bundesrepublik Deutschland in which the Court held that IP addresses were personal information in that instance. The article mentions that: Ultimately, the court held the website provider had the means likely reasonably to tie dynamic IP addresses back to individuals because it had legal means for compelling ISPs to do so. Therefore, it held that dynamic IP addresses collected by a publicly accessible website constituted personal data “in relation to that provider.” What the article does not specifically mention, and several other published comments relying on the Breyer decision do not discuss was that in that particular case the website was operated by the government of Germany, which has legal powers to require any ISP operating in Germany to disclose IP assignments. That means that in that particular case IP addresses were potentially linkable by the Data Controller of the site, in ways which would not be available to a non-government site. There does not seem to have been an official decision under any of these laws, including the GDPR, as to whether an IP address is PI for an ordinary business site. The downloadable Privacy Law Comparison matrix compares various aspects of the CCPA, CDPA, CPA, and the GDPR, including their definitions of PI. In short it is not clear to what extant any of the other privacy laws mentioned in the question or in this answer treat an IP address as personal information (PI), particularly when the site is not operated by a government agency, and has no right to compel an ISP to provide data linking an IP address to a specific user. Future litigation may well clarify this. | 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. | Yes, their waiver has no legal basis and is invalid under the GDPR. They should have hired a better lawyer. GDPR rights cannot be waived (mrllp.com). The last bit should have been: Therefore, in consideration of my participation in any project, I understand that retaining my name and email address, as described above, does not require my consent and that the right of erasure, as spelled out in the GDRP Article 17 (1) b does not apply. The legal basis for our lawful processing of this personal data is Article 6 (1) f ("processing is necessary for the purposes of the legitimate interests pursued by the controller"). I.e. there is nothing in the GDPR that compels GitLab to erase this information, but their waiver is bogus. Keeping track of individual contributions in a software projects is necessary for a number of reasons, including security (if somebody contributes code that jeopardizes security, you want to audit everything that person has contributed). | Probably not, because you should be in a position to rely on the Safe Harbor provision of the DMCA. Safe Harbor protects service providers who provide open, non-moderated spaces for users to directly contribute content. Safe Harbor means you do not need an army of moderators to inspect every message posted to the site or system. It is essential for sites like Twitter, Youtube or StackExchange to exist. You are not liable for that content if you provide a means for IP owners to report copyright violations, and promptly take down any content which an IP owner reports as violating. You don't need to get in the middle of whether that's really true; there's a mechanism for the user and IP owner to "duke it out" directly at no risk to you. However you must take the required steps. For instance you must register an agent, and respond timely to DMCA takedown notices, which means you must be reachable as per the law. Your designated agent address must be staffed 9-5. Note that the "Designated Agent" can be the same person as the "Registered Agent" that you already must have when you are an LLC or corporation. And you'll want to be an LLC or corporation by the time you get big enough to worry about copyright lawsuits. | The GDPR only mentions cookies once (Recital 30). (It says that cookies are personal data if they are associated with natural persons.) As far as cookies go, nothing has really changed since 2002, and the exception granted in the EU cookie directive Article 5(3) is still valid: This shall not prevent any technical storage or access for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or as strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service. If your site complies with the 2002 directive today, it will be GDPR compliant. All the "EU Cookie Law Compliance" plugins I've checked out let the admin configure the site to comply with the 2002 directive, and most let you choose between implicit consent (which is, and still will be, OK if you or third party services do not use cookies for profiling or to collect personal data), soft consent, or hard consent. The latter is however mandatory if you or third party services use cookies to for profiling or to collect personal data. However, if at least one of your cookies are used for profiling (and if you use Google analytics, you are), or if they are used to collect personal data, the exception from explicit consent quoted above does not apply and implicit consent (i.e.: "continued use of the site amounts to implicit consent to the use of cookies") has never been legal for the site. So while nothing has changed since 2002, there is a lot of misinformation about cookies floating on the Internet, and a lot of sites have their cookie banners set up wrong. You may want to do a new cookie audit for your site to verify that you comply with existing legislation. | There are three main aspects to this: Its their website, and their terms of service. They can enforce those terms, or change them (in some appropriate manner). You have no recourse if they remove you, block you, or delete your account, for example. That's the measure that you would probably have, virtually every time. To claim damages, or litigate beyond just website access control, requires a legal claim. But there's a catch there. To claim damages, they need to show actual damage, which they wish to be compensated for. If you misused their website but no actual harm can be shown, the total damage claimable is zero, whether or not you followed their rules. Merely entering dishonest information isn't by itself harm. So they would have to show they suffered damage/harm because of that, which is directly attributable to your behaviour, was foreseeably harmful etc, or similar. They also need to consider legal costs, and ability to enforce, especially if you are in a different country. If for some reason the computer use was also illegal, then a criminal act could be committed and they could notify law enforcement. For example suppose you did this in the little known country of Honestania, where the law says that to prevent trolling and online abuse, anything posted on social media under any but your own legal name is a crime. Or suppose you'd been banned from the system and ignoring/evading such a ban was criminal computer use or criminal trespass due to the forbidden/unauthorised access (which can happen in several places). But this is purely for completeness; I guess you'd know if you were taking it further, into criminal computer use. |
May I legally work in a restaurant with typhoid if the employer knows? I contracted Typhoid while visiting family in Central America for a funeral. I work minimal wage at a restaurant/arcade preparing food, and cannot afford to miss work. My boss will not allow me paid sick leave, so I have no choice but to show. My symptoms have mellowed enough that I can work without jeopardizing my own health, but I imagine I remain highly contagious. Will I be legally liable if a child becomes infected and dies, or will that fall to the proprietor who knew? Missing pay is not an option I can afford unfortunately; the moral implication of my working is out of my control. | You will probably have been presented with a form mentioning "Texas Food Establishment Rules (TFER) Section: §228.35", which requires you to report symptoms and diagnoses which include Salmonella Typhi. That does not guarantee that you actually got such a form or that you remember signing it, but theoretically you did. The regulations are given here and here. The model form includes the information above the signature line "I understand that failure to comply with the terms of this agreement could lead to action by the food establishment or the food regulatory authority that may jeopardize my employment and may involve legal action against me". | Your interpretation seems to be correct. A furloughed employee is defined by Acas to be one who is "temporarily sent home because there's no work". This could in principle be through unpaid leave. The Coronavirus Job Retention Scheme is a government scheme to compensate employers for the wage bills of their staff during the furlough, so that the furloughed staff can continue to receive some income. An employee would have no direct dealings with the scheme and would continue to be paid via their employer. Your company seems to be offering to match the terms offered to employees under the Coronavirus Job Retention Scheme of 80% of salary, presumably out of their own funds. A kind gesture, it seems! | If an employee takes home information that his or her employer considers confidential, that would be a matter of company policy. The employer could discipline or fire the employee if it learned of the incident, and chose to act. If the information is considered to be a trade secret, or part of one, disclosing it or mishandling it so as to risk disclosure could be a crime under US law. However, only in unusual cases is criminal action taken on such matters, normally it is left to civil lawsuits or internal company action. I do not know if Canada has a similar law. | Generally, what you say you will do in a contract is what you must do - there is no "the dog ate my homework" excuse. For your examples: Employment contracts have so much government regulation that the common law contract is lost in the mists of time. It is unlikely that a court would interpret an employment contract as requiring exact timekeeping; it is also unlikely that the person would have worked exactly 38 hours on every week except the one where they worked 37.5. However, if it were proved that the employee owed 0.5 hours to the employer they could be required to provide it or refund the pay they had received, barring a law that changed this. The dog must be walked. Alice must find a substitute walker if she is unable to provide it. Falling sick is something foreseeable that Alice should have provided for either in the contract ("if I am sick I won't walk the dog") or by arranging for someone else to do it. For purely personal services, falling sick may frustrate the contract, however, dog-walking is probably not personal enough. There is a doctrine which allows termination by frustration where neither party is at fault, however, it is not clear that this would apply. The building burning down is foreseeable and could (should?) have been addressed in the contract. If the destruction of the building was without fault on the owner then the contract is frustrated. If there was some fault on the owner (smoking in bed, inoperative fire alarm etc.) and the cleaner stands willing, ready and able (that is able except for the absence of a building) to perform their obligations, the owner would probably be obliged to pay, at the least for unrecoverable costs (e.g. wages) and loss of profits - if they pay for the cleaning products the cleaner would be obliged to deliver them up. One of the main reasons for the length of contracts for non-trivial transactions is they deal with these contingencies. | Fall into an unguarded open grave, and have your relatives sue Get a job in a funeral director's, drink the embalming fluid by accident, and have your relatives sue for failure of duty of care in keeping chemicals safe. You might even get a death-in-service benefit Get a job in a funeral director's, drink the embalming fluid intentionally, and have your relatives sue for failure of duty of care in your mental welfare. You might even get a death-in-service benefit You might suffer any of the above on a non-fatal way and so be able to claim compensation (apart from the death-in-service benefit, although you might get an invalidity pension) without actually having to die. I read the other day that some American funeral directors drive their hearses fast on the basis that the more burials they can do in a day the more money they earn, so getting run down by a hearse in a traffic accident might be a possibility too. Edit to add: There is also the economy funeral alternative: https://cdn.instructables.com/FG7/UKDW/HSNFWZ2X/FG7UKDWHSNFWZ2X.LARGE.jpg | Unless your employer agreed in a contract to not discuss your employment, then there is no legal restrictions on them discussing anything about your employment. If they say things that are untrue you could sue them for defamation. | Not at all. A US business always had the authority to require employees to be vaccinated before entering the workplace, except if a valid state law prohibits this. The EEOC has confirmed that none of the Federal laws which it enforces prevent such a requirement. The proposed mandate under the OSHA Act would merely have required a business subject to the mandate to do what it had the right to do anyway. Even if it is held that the US Federal Government does not have constitutional authority to impose such a mandate, that would not in any way impair any business which chooses to do so from imposing such a requirement on its employees, subject to the requirements under the ADA and the Civil Rights act to offer reasonable accommodations for sincere religious objections, and for disabilities that would interfere with accepting vaccination. Businesses generally are not "covered entities" under HIPPA, and so can ask employees for health information such as a vaccination record, if they choose to. Or they can choose to trust an employee's word on the matter. | In germany, this is called Friedenspflicht. Both employers and employees (and their unions) are required to refrain from strikes and lockouts in disputes on issues which are covered by a currently valid collective bargaining agreement. The agreement may also stipulate that there will be no labor actions on issues which are not covered, as long as the agreement is in force, but that is not necessary. Example: There is a collective bargaining agreement on wages, which is still running. Strikes for higher wages are prohibited. Strikes to get better staffing for the night shift would be allowed, if the agreement doesn't say how many employees should be on duty even during slack hours. |
Are invented names protected by copyright? When an author invents a new term such as Mithril or Orc in Lord of The Rings or Redstone in Minecraft, are there restrictions on the use of those terms? If I write my own book or create a video game would it be an infringement to use Mithril or Redstone as a fictitious item? If so what are those limitations? If my redstone was actually a blue liquid that explodes instead of a red powder that conducts electricity would that be different? | Words cannot be copyrighted. Copyright law does not protect names, titles, or short phrases or expressions. Even if a name, title, or short phrase is novel or distinctive or lends itself to a play on words, it cannot be protected by copyright. The only intellectual property protection that might be afforded to such things is trademark. | 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. | The question as worded implies that if something is a parody it is automatically fair use or allowed in US copyright law. This is a myth. First of all, in a copyright context, the term "parody" is somewhat limited. In that sense, a "parody" is a new work which comments on the original (often but not always by mocking or ridiculing the original). A mere alternate version which modifies the form of the original, perhaps humorously, but not to comment on the original or perhaps on much of anything, is not a parody. A new work which modifies the original to comment on something else, but not on the original, is a satire. Of course many works may be both parodies and satires in this sense. See this law.se Q&A for extensive quotes from Suntrust Bank v. Houghton Mifflin Co 268 F.3d 1257 (The case of The Wind Done Gone vs Gone with the Wind) and discussion of what is and is not a parody in US copyright law, and when a parody is fair use. A parody, because it comments on the original, will often be found to be a fair use of the original. But not always. The full four-factor analysis must still be done, and the results are never certain until a court has passed on the specific case. See this law.se Q&A for more on fair use. I can't tell from the question whether the modified song is truly a parody in the sense used in copyright law. If not, it probably isn't fair use, although it might be for other reasons. By the way, a song written for a television show or video to be distributed commercially is a commercial use, even if a non-profit corporation is involved, and even if there is an educational purpose. Note that fair-use is a strictly US legal concept. Even if something is fair use under US law, it may be copyright infringement under the laws of some other country. | Yes. Being a sequel or using the other assets, in either case, you are making a derivative work. Without a license, you infringe on the right holder's exclusive right to make or license derivative works: A sequel is usually a classic case of "how the story unfolds further". See Anderson v. Stallone, where the author of an unlicensed sequel script was struck down. A modification of the original game - aka Mod - uses the assets or parts of them. Modding is often contentious, sometimes it is encouraged. Usually, when you install a game, you agree to a EULA that dictates what you can or can't do - so there is the real possibility you violate a contract if you step out of that contract. Some game smithies are modder-friendly and encourage it, as a mod community keeps a game relevant longer. Bethesda for example hands out a modification package for Skyrim and other titles, but it also provides a separate EULA what you can and can't do with these modification-tools. Many games however don't provide a modding pack and have a EULA that explicitly bans users from making modifications or derivative works. As a result, there have been cases against modders, and there are a lot of C&D letters sent out to modders that use assets of games. So there is a high chance that litigation for violation of the contract or copyright infringement can be started. A rather high-profile case that ended somewhat recently was the "Red Dead Redemption Visual Enhancement Mod". Take-Two sent a modder a C&D, filed suit, and then the parties had arbitration. The arbitration result contains a clause that forbids the author of the mod to ever create any derivative work (aka: mod) for a Take-Two or Rockstar game again. The C&D (as well as the case and leverage in arbitration) hinged on a violation of the Rockstar EULA License Condition i, which bans any modifications wholesale: You agree not to, and not to provide guidance or instruction to any other individual or entity on how to: i [...] display, perform, prepare derivative works based on, or otherwise modify the Software, in whole or in part;) | Plagiarism is an academic concept, not a legal one. The issue you are concerned about is copyright infringement. A work based off of another copyrighted work is a derivative work. This requires permission of the copyright holder. Simply listing your source and saying "no crime intended" does not help. However, recipes are generally not copyrightable (at least in the UK/US). This is because they are a list of ingredients and instructions which is not sufficient for a creative work. The presentation of the recipe can be copyrighted, as can any descriptive text surrounding it. If you're just taking the actual recipe, making a better recipe from it, and presenting that recipe in a better way, you should be fine. | 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. | The reason is 17 USC 106: the owner of copyright under this title has the exclusive rights to do and to authorize any of the following... (2) to prepare derivative works based upon the copyrighted work The original picture is the underlying protected work. The ASCII reproduction is a derivative work. If you get permission to make the derivative work, it is okay. Otherwise, it is copyright infringement. There is an escape clause, "fair use", which amounts to taking a chance that you won't be sued and then arguing that you didn't do them any prohibited harm. If you make any money off of the game, you have a major strike against you. I suggest reading the fair use FAQ; basically, it is really hard to know how a fair use defense will fare, but based on prior cases, I'd say it's infringement, not fair use. | You can, and many authors and other creators of fiction do, use the names of real newspapers, real brands and products, and real people without obtaining permission from anyone. As long as those names are not being used to market or identify goods or services, the use cannot be trademark infringement. There idea that you cannot "defame the brans" is in fact much narrower than many people think, and than it used to be. Particularly in the united-states free speech rights often supersede protections against so-called trademark "defamation". In the US all of the examples in the answer by Jack Edwards would be clearly legal, an they probably would be in many other countries as well, if they appeared in a work that was clearly fictional. If a work mof fiction uses the name of a real person, and other identifying details that make it clear just which real person is being mentioned, and if statements that seem to be statements of fact, not opinion are made about that person, and if those statements are false and negative, and if a hypothetical reasonable person would believe that those statements are about the real person, not a fictional person, thereby harming that person's reputation, then if all that is true, the person might have a valid claim of defamation. |
What gives me the right to use user-generated content for ... anything? I'm building a website where users contribute original content to a collaborative story writing process. I assume since they are submitting it to such a site, they are implicitly giving me the right to display said work on the site. I understand that I cannot claim copyright ownership of said work, but for example, when I make a post on Reddit, Reddit doesn't own the content I wrote, but yet they are still permitted to display it to all other users who visit their site. Since I own the copyright to my own work, do I have the right to send Reddit a take-down notice for my own work (assuming I didn't already have the ability to delete my own post)? Could users do this to me on my site? I would eventually like to be able to use this user-generated content on my site for other purposes, all expressly related to or in the context of my site (e.g. publishing a compilation of user-generated work from multiple users, either for free or at-cost). Is this in any way possible without some process of getting legal documentation from every user of my site? In short, is there any way to enforce that original content posted to my site shall be covered by commercial-use-allowable Creative Commons or other such licenses, effectively making them public domain or something like that? I understand that I'm throwing some of these terms around a bit without really using them correctly. I don't know anything about legal stuff, this is a hobby project and I basically just don't want to get myself into trouble. It's already on my radar to provide an avenue for owners of copyrighted material to send me take-down notices if they find that a user of my site has posted their content without permission, but when a user posts their own original content to my site, I want to know what I am allowed to do with it. | The answer depends in part what venue you're talking about, e.g. Reddit, Facebook etc. The details are revealed somewhere in the Terms of Service for that venue. The general pattern is that you are allowed to use that venue, provides you grant permission for the service to do what they do with your content. You cannot legally send them a take-down notice for your stuff, because a take-down notice requires you to say that the stuff was posted without your permission (and that is false – and you can be punished for making that statement). There could be a venue where they do not hold you to an irrevocable license, in which case you could revoke that permission (but not Reddit: you granted them a "royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to reproduce, prepare derivative works, distribute copies, perform, or publicly display your user content in any medium and for any purpose, including commercial purposes, and to authorize others to do so"). I've seen a site that actually asserts ownership of user-contributed content (I don't know if their TOS ended up being litigated) – if is not at all hard to write a TOS that includes transfer of copyright, rather than granting of a license. The only hard parts are (1) figuring out what you want in terms of permission to use and (2) whether your answer to (1) means nobody will use your service. SE and Reddit TOS probably are as close as you need to get for what you describe. | No It says right on the page you linked: These downloads are not public domain, as they are parts of content that has already been licensed and distributed. Although using these downloads may be permissible as long as the project itself falls under the rule of "Fair Use," it is ill-advised to use these downloads for any project intended for profitable gain or commercial advertisement, unless otherwise stated by Kyutwo.com. | Udemy claims that all the videos and course content are copyrighted, but does that also hold for the material of the course? Yes, all the material is copyrighted. Ideas are not, material and content is. it would be really useful to me if I could take a large part of that code ... I want to know if I am allowed, by the law, to use this code for commercial purposes, or is it protected as the intellectual property? Yes, it is protected, specifically it has copyright applied and you may only use it if the license it is distributed under allows you to - in some cases this may be a permissive license, or the code may be obtainable legitimately from another source under a permissive license, in which case its usable. But in many cases, it may not be distributed under a permissive license or indeed any license, and in such cases you will not be permitted to use it. The license under which the code is released depends on the individual course, and in many cases the source code repository or download site for the code for the course. Check their for a license. | 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. | All your work is yours. They've made it very clear it wasn't a work for hire, so it's yours. They can't copyright any of their ideas. You can't copyright an idea. Only specific creative elements authored by them and present in your work could be covered by copyright. You didn't use their block diagrams. I don't see how references to other sites to look at would constitute a creative element they authored. That said, you probably want to talk to a lawyer and get a written legal opinion that you can rely on. | It doesn't make a difference if the product is free or commercial use, if it's initiated by a company or an individual. What you are considering would be a "derivative work" and without explicit permission from the copyright holder, it is considered a violation. | Yes, you can grant any license you want to your larger work. With respect to Creative Commons, they provide guidance: May I apply a CC license to my work if it incorporates material used under fair use or another exception or limitation to copyright? Yes, but it is important to prominently mark any third party material you incorporate into your work so reusers do not think the CC license applies to that material. The CC license only applies to the rights you have in the work. For example, if your CC-licensed slide deck includes a Flickr image you are using pursuant to fair use, make sure to identify that image as not being subject to the CC license. For more information about incorporating work owned by others, see our page about marking third party content. Read more considerations for licensors here. With respect to MIT License for software, I don't think that many of the reasons for fair use apply to using someone else's source code in your project. If you're creating criticism, commentary, news, or educational material, you probably have more than just code. You should choose a more appropriate license for the complete work (like a Creative Commons License). Taking someone's software source code and trying to use it under fair use may also lead to issues when you consider other factors, such as the purpose of the use, the amount included in the larger work, and the effect of value on the copyrighted work. I'm not finding a lot of cases regarding fair use in software. Galoob v. Nintendo found that you can modify copyrighted software for personal use (not relevant to this discussion). Sega v. Accolade found that copying software for reverse engineering was fair use under certain conditions (again, not relevant here). If you are attempting to use anything under fair use, regardless of the license that you apply to your larger work, you do need to ensure that you do not give the impression that each individual piece of that work is also under that licence once extracted. That's why you need to clearly mark which portions are used pursuant to fair use. If those portions are extracted from the larger work, then the original restrictions to use apply. However, someone can use the larger work under the license you grant. I just wanted to add this brief section to be extremely clear. When you are producing a work, you can choose a license for that work. If you are incorporating someone else's work into your own work, there are two possibilities: You obtain the other person's work under a license. You must abide by this license and all of its requirements. Some licenses are viral in nature, which restrict the licenses that you can apply to the larger work. You use the other person's work under fair use. In this case, you need to properly attribute the work and identify that it is not available under the same license as the larger work. Someone that extracts that smaller portion must abide by the copyright of that work. If it's available under a particular license, they can choose to use that license or under fair use if they are able to. Someone using your complete combined work uses your license. | Although the exact answer should depend on the country you are, in general private copies of copyrighted works are allowed. General rules are: You need to have got the work in a legitimate way. That is, that you have purchased a copy of the work with permission from copyright owners or you have got the work from an act of public distribution authorised by copyright owners - if you got it from a website that is not making a copyright infringement itself, you are in the second case. That you don't make a collective or commercial use of the work. (I took these rules from Spanish Intellectual Property law (article 31), but most countries have similar rules, specially in the European Union. Anyway, the exact limits of private copying exception may differ). Since private copying might have an economic effect, some countries collect private copying levies to compensate copyright owners - probably you have already paid for those when purchasing the printer. Therefore, you can print a book downloaded from a website (unless the site is hosting the work without authorization of the copyright owners, as pirate sites do) for your own use. You can't sell the copies or made a collective use of them. Although reach of collective use might be hard to assess, I would suggest that if you want all the people in your class have the book, send them the link so that any one could print their own copy. Update about the USA As the OP has now specified now their country I update the answer with a comment, although an additional answer by anybody more knowledgeable on US law would be great. I'm quite sure that for practical purposes the result is that you can print such a book anywhere in the world. However, I don't know which laws regulates that in the US. Google doesn't return meaningful results for "private copy usa", so I suppose it is know there by another name. Furthermore, statutes in common law countries tend to be less explicit and there might be no case law applicable. For example, I nobody printing a copy of a pdf for himself to read at home has ever been challenged in court in the USA, there might be no explicit rule about the subject. |
Could a webpage about a fictional character, that reveals no detail about said character, be considered fair use? It is my understanding that since fictional characters generally belong to copyrighted works, revealing details about a fictional character on a for-profit website falls outside of fair use and makes the site owner vulnerable to a lawsuit. My question is, would it be considered fair use to have a page for a fictional character, where no details are listed other than the character's name? The point would be for users to simply rate the character. One concern I have is that perhaps the name itself could be considered "details" of the work, and therefore might not fall under fair use. Important: Pages may also have a user-added image of the character. I profit by selling adspace through AdSense. | If you are utilizing the name of the characters just so users can rate them (by rate - I mean rank, review, critique) you should be fine. Copyrights are subject to "fair use" by the public. For purposes such as review, criticism, and comment - this is generally considered to be fair use. Is the site commercial or for-profit? That could impact the analysis, but only if you are making money flowing from the use of the actual copyrighted material(s), rather than advertising (like Adsense) or something similar (this should not suggest that those type sites cannot violate copyright, but it's part of the analysis). If it is something you are investing money into creating, you may want to get a formal legal opinion. But if the site if for fun, or hobby, you are likely fine if what's described is the only use. http://www.socialmediaexaminer.com/copyright-fair-use-and-how-it-works-for-online-images/ This link is to a great, easy to read and understand article on fair use, what it is and what it allows. Keep in mind each case is fact intensive, however, from what you are describing this seems fine. | "...the listing ad of property is not a property of website." Why do you think that? Just because a website exists does not mean you can legally scrape it. Read the Terms of Service of the site; there is a good chance the TOS forbids scraping or copying of any part of the website in any manner, including scraping. If the property listings are from a third party service that provides real estate listings to websites, then those property listings are licensed to that website, and by scraping them you will likely be violating the TOSs of those two services. By illegally scraping the content of a website, you are opening yourself up to being involved in copyright infringement and/or being liable to be the subject of a civil lawsuit. | The relevant question for libel under US law is "would a reasonable person understand this to be a statement of fact about the plaintiff, or to imply a statement of fact about the plaintiff." It doesn't directly matter if the name was changed or not; what matters is if a reasonable person would think the statements in question are talking about an actual person (the plaintiff) and are stating (or implying) actual facts, or if a reasonable person would think the statements in question are pure fiction and don't say anything factual about the plaintiff. Changing the name tends to make it seem more like fiction, but that's not always enough: suppose I write a long fictional story about Theodore Bau, who is active on the Pile Market series of online Q&A sites, particularly a history one and a board games one, who published an economics book in 2004 and was an econ and history double major, and fills in more details from Tom's SE bios, and in the book talk about how Mr. Bau stole money from clients; I then send thto potential clients of Tom Au. The fact that I changed the names and said "this is a work of fiction and any similarities are coincidental" isn't exactly an automatic get-off-scot-free card. On the other hand, if I'm telling a story about Tom Au that uses a fair bit of your backstory, with no disclaimer that any similarities are pure coincidence but Mr. Au lives a secret life as a legitimate supervillain, a reasonable person is unlikely to conclude that I'm saying that you actually have a volcanic lair and that you are actually plotting to capture a US and a Russian missile sub to provoke a nuclear war. In this case, the court determined that a reasonable person familiar with the context could understand the book to be talking about the plaintiff's actual behavior, instead of just talking about a fictional character. The fact that it was fiction and the names were changed suggested that it wasn't talking about the real plaintiff, but the details of the book could make it go the other way. | I know that some of this may be covered by either the Creative Commons license or the OGL it was published under, but it's not clear to me how far those freedoms extend. It was all published as materials under copyright to the original authors, TSR, WotC, &c. and if things had been left like that hszmv's answer would've been completely correct: stay vague and allow users to enter those names and descriptions, talk to WotC's lawyers and sales department about license fees, or just keep it to yourself and your friends. You're right, though: WotC went whole-hog, dumped their partial OGL idea, and relicensed some things as Creative Commons. There are different Creative Commons licenses, though, some restricting commercial use that would still keep your app to yourself and friends without a specific licensing agreement. Go find out exactly what WotC put under CC. If it's only the Player's Handbook, then you can only use names and descriptions that are from the Player's Handbook and you're still facing a cease-&-desist if you start adding in Monster Manual info.If it's everything, it's everything they have but still won't include any older modules that they don't have the right to change the copyright status of. It'll still be under copyright, usually until 70 years after the death of the original creator. For Gary Gygax, that'll be 2078. Expect that length to extend during your lifetime though. US copyright usually extends every time Mickey & friends come close to entering the public domain. [Edit: The comments below suggest it might only have been the Systems Reference Document (I assume for 5e). It's 403 pages of not nothing but it's not much given the universe we're talking about. The spell and monster lists are generic. Bigby is nowhere to be found and the only mention of a beholder is a reminder not to use the name beholder without their written approval.] Go find out exactly which CC WotC used. The article above says "all use" but you need to find out the exact number of the Creative Commons license for each thing you're using and make sure all of your uses fall within its terms. Some are basically free use but still insist you mention the copyright holder prominently or in every use. Go ahead and do that if you have to. [Edit: The comments below say it is probably CC 4.0. The SRD download page says you can use CC 4.0 or their own OGL. In both cases, yes, you must acknowledge WotC by name in a way prominent enough to satisfy the license you choose.] And of course, Don't trust legal advice from internet randos or ChatGPT. If this is a serious thing you're going to be spending a good chunk of your life working on or expect to make significant money from, go talk to an actual lawyer. Bonus points for one specialized in IP with a knowledge of roleplaying and the way it's been (partially) opening up lately.If you start off just by talking to WotC's lawyers, just do that somewhere where you get their explanations and permissions in writing. Then keep that somewhere safe in electronic and hard copy. Then still take that with you when you go talk to your own lawyer. | You can, and many authors and other creators of fiction do, use the names of real newspapers, real brands and products, and real people without obtaining permission from anyone. As long as those names are not being used to market or identify goods or services, the use cannot be trademark infringement. There idea that you cannot "defame the brans" is in fact much narrower than many people think, and than it used to be. Particularly in the united-states free speech rights often supersede protections against so-called trademark "defamation". In the US all of the examples in the answer by Jack Edwards would be clearly legal, an they probably would be in many other countries as well, if they appeared in a work that was clearly fictional. If a work mof fiction uses the name of a real person, and other identifying details that make it clear just which real person is being mentioned, and if statements that seem to be statements of fact, not opinion are made about that person, and if those statements are false and negative, and if a hypothetical reasonable person would believe that those statements are about the real person, not a fictional person, thereby harming that person's reputation, then if all that is true, the person might have a valid claim of defamation. | It's questionable, because if you design your own visual interpretation of the T-Shirt then it isn't necessarily the one from the book and thus your art has it's own copyright. However, if the current Copyright Holder and Possible Trademark owner is selling the shirt it could be an issue because yours is not official but being sold as one. If you're making it for non-sale and just cosplay, than you have a better arguement. | No. Copyright protects expressions of ideas, not ideas themselves and not historical facts either. Conceivably, the persons written about might have a commercial right to use of their person or image, but the doctrine there is not copyright and the analysis is different. | Under the Berne Convention, a copyright notice is not required at all, although using one is good practice. Using one usually eliminates the claimed status of "innocent infringement", which, if found true by a court, greatly reduces damage awards. It is usual to place such notices at or near the start of a work. That is where people tend to look for them, and I don't see any good reason not to follow this practice. The book tradition is the the copyright page comes before any part of the actual work, including the table of contents, sometimes with a continuation at the end of the work, if there is more than one page of notices. But that is not now a legal requirement, if it ever was. In short, there are no rigid rules on this, but putting a copyright notice at or quite near the start is good practice, and I would suggest sticking to it. |
Is it legal to include another company name in your name? Example: Is OrbitzMoving.com (not related to Orbitz.com) legal? I used to work for Orbitz.com the travel site and remembered wondering how OrbitzMoving.com could get away with using the Orbitz name in their website url. OrbitzMoving.com was not related to Orbitz.com in any way, they just hijacked the name to confuse consumers into trusting them. Is this legal? Could you start a site called GoogleMoving.com? I have to think it's not, but OrbitzMoving.com lasted ~10 years. Would love to hear the right answer. | Anyone seriously planning on doing this or anything like it would be well advised to consult a good trademark lawyer with the specifics. Specifics will matter in such a case. That said: Under US trademark law, the key question is whether a reasonable person would be confused into assuming that there is some connection, and that the new firm could be relied on based on the reputation of the old one. if so, this is a trademark infringement unless permission is obtained from the trademark holder (not likely to be granted). Since "orbitz" is a coined term its protection is stronger, there is no natural object or concept this can refer to. "AppleMoving" is less likely to be confused with "Apple Computers" because apples are real things and need not refer to computers. The likelihood of confusion depends on the specific facts of an individual case. Note also that trademark protection is a matter of private civil lawsuits. If orbitz didn't choose to sue for whatever reason, nothing would have stopped OrbitzMoving. | 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. | Both are to some extent correct, but as might be expected, the USPTO site is more accurate. Trademarks owned by virtue of use, rather than registration, are protected only in the market area in where actual use can be documented. Even state registration may be limited to a geographic market area in which use can be shown, and may not extend to the whole state unless use throughout the state, or at least in most major markets in the state, can be shown. As discussed in the news story "Burger King Is Banned From Opening Within 20 Miles Of This Original, Mom-And-Pop Burger King Sign" The owners of a small restaurant branded "Burger King" secured a state-level trademark on that name, but it only serves to exclude the well-known fast-food chain from a 20-mile circle. Remember, the prime purpose of a trademark is to identify the source of goods or services, and to prevent one supplier from benefiting by the reputation of another. In an area where the first supplier does not do business, there is considered to be no such risk of unfair competition. Also, nationwide protection is one of the benefits of federal registration. In addition, a mark is only protected for the same class of goods or services. Nationwide use of "Pear" as a mark for a brand of computer would not prevent use of the same word as a mark for a brand of automobile, say, or for a restaurant chain. Note also that trademarks are normally at most national in scope. A US Federal registration will offer no protection in Canada, or any other country. | Just assuming for the sake of this particular answer that everything happens in the U.S.: I'm not sure about the particular example of Open ZFS. The registration in the USPTO Records is in Oracle's name. Using OpenZFS for distributing the same kind of software as the now closed-source ZFS would seem to be infringing to me absent a license. Maybe Oracle just tolerates the use of the "ZFS" component by third-parties since they decided at some point to license the software under an open source license. In that case, they may have a dilution (http://www.inta.org/TrademarkBasics/FactSheets/Pages/TrademarkDilution.aspx) problem and the mark may be invalid. If the mark is invalid, anybody can pretty much do whatever they want with it. That said, assuming for sake of discussion that the mark is valid, there is indeed such a thing that is similar to the copyright fair use in trademarks (in the U.S. at least). It's called "nominative fair use". You can read more about it here: http://www.inta.org/TrademarkBasics/FactSheets/Pages/FairUse.aspx Bottom line is that under the nominative fair use doctrine it's generally ok for party A to use party B's trademark to refer to whatever party B is doing, even to sell products and services related to whatever party B is doing. As per the INTA document I just linked above, its for example ok to "use “iPhone” in non-stylized form on packaging for phone cases to indicate that it is usable with iPhone 6." Having a website (even with third-party ads) that discuss ZFS-related matters is similar to the iPhone example in my mind. Having a domain name that contains the mark seems riskier, but it's not necessarily downright forbidden. See: http://itlaw.wikia.com/wiki/Toyota_Motor_Sales,_U.S.A._v._Tabari | The common law is permissive That is to say that, in a common law jurisdiction, the law is about what you must not do rather than about what you must do. Now, particular statutes may be phrased as requiring certain actions but, if you read them the “common law way” to coin a phrase, they are really imposing sanctions for doing the prohibited thing that falls outside those parameters. Since there is no legal prohibition on using multiple names (simultaneously or sequentially) you are free to do so. Now, there are common law prohibitions of, for example, fraud or tax evasion. So, if you use different names for the purpose of doing those prohibited things, then that is illegal but it is the specific criminality that is sanctioned, not the use of the alias in perpetrating it. The UK has a law that makes it a crime to not register the birth of a child. It also imposes some (and by most country’s standards, very few) restrictions on the name a child can be registered under. But there is no legal obligation on the child or their parents to use the registered name in any particular circumstances. There may be difficulties (amounting to impossibility in some cases) in obtaining a passport, opening a bank account, or claiming social security under a non-registered name but that is due to the necessity to identify the individual for which the name serves as a proxy. However, outside the requirements of specific statutes or administrative procedures, the common law position is that your name is what people call you and you identify as your name. The second part is important - I have been called dickhead on many occasions but I do not consider it to be my name. The UK has a patronymic tradition for surnames so, usually, on marriage, the female adopts the surname of the male and that, through the marriage certificate, becomes her registered name. However, it is extremely common for women to continue to use their original (and now not registered) name in their professional life and her new name in her private life. This can be problematic. My wife, has on server all occasions been refused permission to board a plane because the ticket (booked by others) was in her maiden name - a name for which she has no official identification. However, that’s a procedural problem - she didn’t do anything illegal. | The domain you mention has godaddy as its registrar, but the registrant (I.e. 'owner') is 'Jackson National Life Ins Co' according to godaddy's own whois server. To answer your question: a person or other entity can register as many domains as it likes. Absent a trademark or other name-related dispute, you have no grounds to dispute a registered domain simply because you think it's being 'hoarded'. | A reasonable person might well believe that your enterprise is being sponsored by or is affiliated with Amazon, and so you would be infringing Amazon's trademark. Even if there is no reasonable confusion, Amazon might well think otherwise and take legal action against you. You don't want to start a business by defending a lawsuit, even if you win, particularly not a suit from your supplier. Why not choose a different name, particularly as that would make it easier to expand into non-amazon cards later? Something like 'Buy Better gift cards' or 'Gift Card World' might be a better choice. In general, you may not use a firm or product name that would cause reasonable consumers to confuse you with the trademark holder, or to think that you are endorsed by, affiliated with, or sponsored by the trademark holder without permission (which you are not likely to get). | Speaking from a U.S. perspective (which may or may not generalize elsewhere), trademarks can be used by different companies when they operate in different industries. An answer on Avvo by Kurt Van Thomme captures the important question when using an existing trade name in a new industry: The question in these kinds of circumstances is often whether the goods or services offered by the two companies are sufficiently related such that a consumer would be likely to think a company providing the first product or service would be reasonably likely to provide the second product or service also. Kurt's answer includes an example where the name "Pioneer" is used by a seed company and an electronics company. The two products are unlikely to be provided by the same company, so there is low risk of consumer confusion. In my layman opinion, it seems unlikely that J.K Rowling or Warner Brothers would use the trade name Voldemort to market a software development tool (as it seems unlikely they'd market a software development tool at all, unlike a complete video game, which would be a more likely product), so you could legally use the name insofar as it is not likely to cause customer confusion. Note that you still might attract negative legal attention if the trademark holder is particularly litigious, so when I say "you could legally use the name" I mean that you could probably win a lawsuit (at whatever legal fee costs) if one were filed against you. However, some marks are regarded as "famous" or "well-known" in some jurisdictions. In that case, the mark is afforded much broader protection, and your ability to use it in a different industry is greatly diminished: Famous marks are those that enjoy a high degree of consumer recognition in a particular jurisdiction or in a specific field of commerce or industry. However, few trademarks enjoy the status of “fame.” Examples of marks held to be famous in certain jurisdictions are COCA-COLA, KODAK, WIMBLEDON and VIAGRA. For example, you could not start a business selling automobiles under the brand name "Coca-Cola" even though it is tremendously unlikely that the Coca-Cola Company would branch out into selling cars. The mark's status as "famous" would still allow the Cola-Cola Company to succeed in stopping you from using that mark in commerce, even in a vastly different industry. If the trademark holder of the name Voldemort succeeded in persuading a court that the mark met the jurisdiction's standard for a famous mark, then you could not use the name even for your software development tool. Note also that because trademark is intended to reduce confusion over the source of a good or service, trademark holders can lose their trademark by failing to defend it from confusing uses. Therefore, some trademark holders aggressively pursue even borderline cases to ensure they don't endanger their trademark. |
Are UK civil partnerships still 'monogamous'? With civil partnerships soon opening to everyone in the UK, I have been unabe to find whether - like with marriage - you are limited to have one with only a single person? Could some insight with sources be provided on this? | Yes. Section 1 paragraph 1 of the Civil Partnership Act 2004 says: A civil partnership is a relationship between two people of the same sex [My emphasis] To show that you can't form multiple civil partnerships, Section 3 says: Eligibility (1)Two people are not eligible to register as civil partners of each other if— (a)they are not of the same sex, (b)either of them is already a civil partner or lawfully married, (c)either of them is under 16, or (d)they are within prohibited degrees of relationship. (2)Part 1 of Schedule 1 contains provisions for determining when two people are within prohibited degrees of relationship. See: http://www.legislation.gov.uk/ukpga/2004/33/section/1 The recently announced change to allow heterosexual couples to register a civil partnership will presumably just involve deleting "of the same sex" from 1.1 and deleting 3.1(a) Formalizing polyamorous relationships is quite a way off I think (and will be quite a lot more complex). | 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. | Is it true that there has never been a single case It is tough to prove a negative. I am not going to completely parse the quote but please notice that the quote states "we couldn't find" and concludes that "it doesn't happen." Given these two pieces of information I do not conclude that there has never been a single case. Rather I conclude that the speaker in your quote could not find a case therefore he concluded that there has never been a single case. It's largely impossible to determine that there has never been a single such case. We can search published opinions but that barely scratches the surface of lawsuits that are filed. It is entirely possible that someone filed a suit which was quickly dismissed. The Act provides a defense, it does not bar lawsuits. Someone might get sick from food and not know where the food came from so they sue the provider. If this happens the provider may raise the Emerson Act as a defense and escape liability to the extent applicable. But again, we will never know because it's impossible to examine every lawsuit filed in this country. | They aren't. From a 2019 Welsh government report, In comparison with England, Wales is somewhat underserved on a “law firm per head of population” basis. The SRA estimates that, when nationwide general populations are compared, there is one law firm per 5,472 people in England, compared with one law firm per 7,962 people in Wales. (p11) The report cites 3500 practicing solicitors, which compares to about 150000 in England and Wales in total (using 2019 figures from the SRA). The population of Wales in 2019 was 3.1m and England was 56.2m, so there are also fewer solicitors per capita in Wales compared to England. In the same year, there were about 17000 practicing barristers in England and Wales, of which about 300 were in Wales. This is a similar ratio as for solicitors (report p18). The English numbers are very heavily skewed by London. If we compare Wales to a given region of England other than London, it comes out more favourably. Within Wales, Cardiff hosts a disproportionate number of lawyers (p11 of the report). It is the seat of the Welsh government and responsible for an outsized contribution to the Welsh economy: 12% of the population, 20% share of Welsh gross value added, 30% of the law firms. The report does identify some specific examples of large legal practices or well-regarded barristers' chambers. But overall, Wales does not seem to have a disproportionate share of the legal sector. London does, and Wales is more comparable to non-London parts of England, supporting a typical number of lawyers doing local work, plus a few higher-profile outliers. | Not much. Consider the following: The father can not force the mother to abort the pregnancy. Ex post facto agreements of non-payment are, in all likelihood, unenforceable. The father will be obligated to pay child support under the laws of the state with jurisdiction over the paternity. The abortion angle won’t work. Setting aside commentary regarding the politics or ethics of abortion. I think we can agree it is a highly charged and emotional topic for some people. I point to the fact it always seems to be an issue during Supreme Court nominations and presidential elections. Given the explosive nature of the issue of whether abortions should be legal or not (in the case where the mother does not want to carry full term) could you imagine how much more dynamite it would add to the debate if the question were whether or not to allow the father to force the mother to terminate the pregnancy against the mother's wishes! One can only imagine how much more bombastic the abortion debate might then become. You can’t escape child support (most likely). To give you a sense of how difficult it is to escape the obligations of child support. Consider the following... A Kansas man was ordered to pay child support when he thought he was being a sperm donor only and signed numerous agreements with the lesbian couple he thought he was helping. In that case, the court justified its ruling on the grounds that a doctor was not involved in the insemination process. But nothing prevents future courts from making the same ruling in cases where a doctor is involved in the insemination process. Especially if that state either withdraws from the The Uniform Parentage Act, amends it, repeals it, or never adopts it in the first place. Sperm Donors and Child Support: Even in cases in which the donor is known, but holds himself out as unknown, some courts have held the donor legally obligated to pay child support. Read more here. Ex post facto agreements are problematic. Now that you've edited the question, the above link is even more useful for providing a possible avenue to try (albeit unlikely to work): a non-payment agreement. The discussion in that link describes that even if you could somehow convince the mother to go along with it, it is unlikely (though not impossible) to be enforced by the courts. It depends on the facts (e.g., intercourse vs. in vitro), circumstances (e.g., relationship vs. no relationship between the parties), timing (e.g., before vs. after the agreement), etc. of the impregnation itself. Notwithstanding all the above, if you still have questions, you might consider floating an idea of an approach you think you might try (in a separate question) and get reactions to that specific proposal. | The solicitor is allowed not to accept a case. If your ex-wife asked him to prepare papers, and he feels that she is getting ripped off, it is absolutely understandable that he won't prepare these papers for her, because he doesn't want to be sued or badmouthed when the deal goes wrong. "We would also reserve the right to take our own professional advice as to our efforts on your behalf." means simply he is not specialised in some subject, and will prefer to ask someone who is. Like a medical doctor asking for a second opinion before going ahead and cutting your leg off. Now I would have preferred if the solicitor had said concretely what exactly is wrong with the contract. Also, it would be obvious that you would be very comfortable with anything that he would advice her against. If he thinks that it is a good deal for you but not for her, he should advice against it. (Your comment to another question seems to indicate that she should be paid a lot more than you offered, so her solicitor seems to have been perfectly right). | There is no particular mention in the OSCOLA guidelines for how to refer to laws of England and Wales. In academic papers it is common to see both "English Law" and "English and Welsh Law", usually depending on whether the particular point relates directly to England, Wales or both. However, in the case of Welsh Measures and Statutory Instruments of Wales then it would be correct to only describe the laws as "Welsh Law". | Since you asked two questions: No and No Does a company’s T&C or their house rules supersede law No and is asking private health status (including the request to wear a mask) an offence? No A company cannot require you to do things that are against the law but they can require you to do things that go further than the legal minimum. The UK and Spanish governments do not require you to wear a mask but they do not prohibit private organisations (like airlines) for making it a requirement to access their facilities. The law requires that they make reasonable accommodation for people with disabilities. But you don’t have a disability, you just can’t sleep with a mask on. If you had a disability you would have no trouble in getting a letter from your doctor to that effect. The contract requires them to take you from the UK to Spain: they don’t have to enable you to sleep. If you read the T&C, you will find that they can refuse to carry you if, in their reasonable opinion, you pose a hazard to the aircraft or the people aboard it. |
What does a judge do if there was a leading question? What does a judge do is there is a leading question asked by one party towards a witness during direct examination, and the other party doesn’t object to it? I’m writing a paper on the procedure of court rooms, and I can’t seem to find an awnser to this question. | If no one objects to a leading question, then the judge does nothing. A judge does not generally pro-actively police the rules of evidence at trial. Also, there are circumstances when a judge has discretion to allow a leading question even when it wouldn't ordinarily be allowed to move the trial along on largely undisputed points or to allow in inarticulate witness to testify. The exception to judicial passivity in the absence of an objection at trial is "plain error" that is not "harmless error", which a judge has a duty to prevent or address even if no objection is raised by a party. But, offering a leading question when one is not allowed by the rules of evidence almost never constitutes plain error, and would almost always be considered "harmless error" even if it was objected to and the judge ruled incorrectly, unless the use of improper leading questions was pervasive and there was a contemporaneous objection by counsel. For example, allowing a prospective juror to serve as a juror, despite that juror saying in the jury selection process that he can't be impartial because the defendant committed adultery with his spouse, because neither the prosecution or the defense attorney moves to strike the juror for cause, rather than striking that juror for cause of the court's own accord, is the kind of conduct that would often be considered "plain error" that is not "harmless error." | 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. | It is the lower courts' interpretation of a senior court's judgment—specifically the ratio—that determines what is the precedent. If a court doesn't want its opinion to bind lower courts, it can be clear in its judgment that this is not what was intended. For example, a court could say that this judgment turns on the particular facts of this case, and should be interpreted narrowly by lower courts. Alternatively, a previous precedent could be narrowed by a later judgment of a senior court if it was later felt that the ratio was being applied too widely. (I have read examples of the explicitly narrow ratio, but haven't been able to find any today) | Generally they don't. If the conversation was made while there was a third person present, the person can be a witness at trial. Unless the witness is impeached, the witness's statement may be sufficient for you to meet your burden of proof to show the statement was made, because the burden is just a preponderance of evidence in most civil cases. Note that, the existence of a statement is not sufficient to prove breach of privacy. The context surrounding the statement is important. If you intend to record communications from the landlord in the future, please check with your jurisdiction's laws regarding recording of communications. Many jurisdictions (such as California) only permit a private communication to be recorded when all parties give consent. Not only an illegally recorded conversation is inadmissible as evidence (with the exception to rebut a witness), it is also a crime to do so. Some other jurisdictions in USA allows one party to record the conversation without obtaining consent from the other party. | To add to user6726's answer: In general, you can only collect a judgement if there are assets or income available to be collected (i.e., owned by the debtor, and not protected from collection, such as personal items or part of the wages). If you suspect the debtor has assets you do not know about, you can formally ask the debtor to declare their assets. In Nevada (and in many other US states), this is called an Examination of Judgment Debtor (or just Debtor's examination). The basic idea is: You ask the court to order a debtor's examination. The court (after checking your judgement) orders a hearing where the debtor must appear (or they may be imprisoned for contempt of court). In the hearing, you can ask the debtor about their assets, and they must answer truthfully (usually under oath). Details vary, as usual. See for example this page from the Las Vegas Justice Court: Examination of a Judgment Debtor. As a practical note: The whole process, as usual, means additional work and possibly legal cost for the creditor - so it only makes sense if there is a realistic possibility of finding previously unknown assets. As usual, this is a decision the creditor must make. | How exactly would the court determine this to be the cause of divorce? 99.99% of the time, this would be purely a "he said she said" situation, for how can someone prove refusal to engage? You can prove the opposite if there are children born to both parents, but how can one prove a negative? Or is the statement by the divorce initiator considered sufficient for the judge? Testimony under oath is evidence. Judges resolve "he said she said" situations every day on a routine basis with witness testimony alone by judging the credibility of each witness before them. See also an answer by @Jen about the subject of how things are proved in court in general. In the appropriate case, testimony under oath with no other corroborating evidence can even support a murder conviction as proof beyond a reasonable doubt. It can certainly suffice to prove marital fault in a civil lawsuit for a divorce. If the judge finds that witness testimony under oath between more than one witness is irreconcilably different, and each witness is equally credible, and that it is impossible to tell which person is telling the truth, then the person seeking relief from the court has failed to meet their burden of proof to obtain relief from the court. But, this is rare. Usually, when witnesses are both testifying under oath and disagree about what happened, the judge will find that one witness is more credible than the other. And, in truth, while people certainly do lie in open court under oath, and probably are more likely to lie in that situation than when speaking to someone not under oath outside of a courtroom, most of the time, people don't lie and the testimony of all of the witnesses are consistent with each other subject to limitations based upon what they could perceive from their perspective and the limitations of imperfect memories. This could come down to demeanor in court, hesitation in answering, "tells", inconsistencies in their testimony, corroboration from other evidence and other witnesses (e.g. what someone said to a friend or wrote in a diary at the time), evidence that a witness has been convicted of a crime of deceit in the past, use of language that suggests coaching about their testimony, or common sense judgments about whose story seems more plausible under the circumstances of the parties in front of the judge. | It isn't that uncommon to do something similar to this, which is called a "test case". One of the more familiar examples of this kind of litigation conduct is the case of Plessy v. Ferguson. There have been test cases, for example, that involved important questions of E.U. jurisdiction in civil law countries as well. | "Why" someone did something is potentially off-topic, but in regards to your hierarchical image - it lacks provenance so cannot be tested, however according to the official judiciary website: The Master of the Rolls is second in judicial importance to the Lord Chief Justice. |
At what point is a lawyer's actions considered "bad faith" and is there recourse for punishment? I have been dealing with a lawyer for a payment dispute with an old employer. The lawyer in question has been doing some questionable things and I am not sure which ones would be considered 'over the line.' Example: The lawyer set up a call with me to negotiate a pay settlement on some pending deals I had with old employer. I was told (by employer), verbally and in text/email messages that I "would be paid when the deals closed." The lawyer and I had a phone discussion where he said the same thing and he also tried to negotiate my % of the payment down from 30% to 15%. A month later, in writing, he claims I am "owed nothing" on the deals in progress. So, I have been told I would get paid, by the employer and then the lawyer as well. The lawyer then tried to negotiate with me on the payment amount...and now has changed his tune to "you are owed nothing." Is this kosher? If there is evidence of him doing this, is there some kind of ethical violation here? Would that evidence, in support of my case, be a serious issue for the lawyer should we go to court? There was a separate occasion where I asked the lawyer if he had discussed these matters with anyone else. I know that he has, as I am still friendly with an employee that the lawyer spoke to about these matters. He flat out told me that he "had not discussed it with anyone else" nor would he. What would be the sensible way to use this information to my advantage while trying to resolve these matters with having to bring suit and go to court? Is there anything that this lawyer should fear, if his unethical behavior was brought to light, either in court or to a bar association? Thanks for any help. | There are basically two kinds of conduct that you identify. One is backing away from what you believe were oral promises made by the employer and lawyer regarding payment. Whatever the status of the promises made by the employer, the oral statements made by the lawyer would probably be viewed by a court or ethics board as settlement offers or proposals rather than actual binding agreements, and this is unlikely to be considered an ethical lapse. For purposes of ethics questions and fraud lawsuits, lies about what kind of deal you are willing to make with an adversary don't count as lies. This isn't a terribly logical rule, but is is a well established one. Given that: I was told (by employer), verbally and in text/email messages that I "would be paid when the deals closed." It is going to be very hard for the employer to take back those written statements and text and email messages are usually given the effect of signed writings in a court of law. This is going to be taken as a confession of the employer regarding the probably unwritten agreement of the parties regarding your right to be paid on these deals, so you would be well advised to stick to your guns on this issue. The percentages will be another point that is hard for the employer to fight if there is a course of dealings between the parties in which you receive a consistent percentage or there was a written agreement concerning your commission percentage. Also, even if the lawyer did make a promise and breached it, this would still only be a breach by the employer of a contract made on the employer's behalf by his lawyer. It is not an ethical lapse to breach a contract about future conduct, and a lawyer is not personally responsible for contracts he makes as a disclosed agent of your former employer. The second is making a false statement of fact about whom the lawyer has discussed the matter with. Lawyers do have an ethical duty to be truthful and failing to do so is an ethical lapse. But, this duty is generally interpreted to apply only to statements of fact which are material. If a lawyer lies to you about how old he is, or whether he's ever had an affair, in the context of a pre-litigation negotiation like this one, the ethical officials won't care. If a lawyer lies to you about something material to the transaction (e.g. claiming that the employer has money in the bank to pay a settlement when in fact it is overdrawn on all of its accounts and has no money coming in and the lawyer knows those facts), this is a serious ethical breach. It is hard to see how this information would be material, even though it casts doubt on his credibility. Ethically, he owes any duty of confidentiality to his client and not to you, so it isn't your complaint to make from a confidentiality point of view. Also, unless he discusses confidential advice that he provided to his client when no one else was present to you, he has not waived the attorney-client privilege, contrary to the answer by @IñakiViggers on that issue. Of course, proving that the lawyer said anything in an oral conversation at which no one else was present comes down to a credibility fight between your sworn statement and his if the lawyer testifies inaccurately about the discussion. A sworn statement from you is proof and would meet the "burden of production" to provide proof in support of your case at a trial, but wouldn't necessarily prevail easily at trial since the judge might not be convinced regarding who is accurate in their account of the discussion (I have avoided the word "lying" because there are a variety of reasons that people inaccurately recall discussions). What would be the sensible way to use this information to my advantage while trying to resolve these matters with having to bring suit and go to court? Is there anything that this lawyer should fear, if his unethical behavior was brought to light, either in court or to a bar association? The conduct you describe on the part of the lawyer will provide you with little or no leverage in your negotiations and is likely to not even be considered admissible evidence in court since it may be considered a form of settlement negotiations. Your strongest leverage will be the written statements from the employer. But, depending upon the amount in dispute, it may still make sense to compromise given the time and expense and uncertainty of going to court. Even in the clearest case, you probably only have a 90% chance of winning a contested case, and you wouldn't cross the street if you knew you had a 10% chance of being hit by a car as you crossed, even if you knew that the collision wouldn't be fatal. Unless your state has a wage claims act that covers you, you may have little or not prospect of an attorneys' fee award if you prevail, and representing yourself when the employer has a lawyer will always put you at a disadvantage in a court setting. If the amount in dispute is great (e.g. $50,000+), hiring a lawyer is probably worth it. If the amount in dispute is small (e.g. $5,000) you may want to file a suit in small claims court and only hire a lawyer for a couple hours of pre-hearing coaching. | Anyone found not guilty may apply to the judge to have his legal costs paid out of central funds; this is not automatic, but is usual if the court agrees that the charges should not have been brought. The amount payable is set out by regulations depending on where the case was heard; since October 2012 it has been set at legal aid rates, which are unlikely to cover a full defence team. Somebody who did not have a lawyer can charge for the time he himself spent on the case, but this is assessed at a standard rate similar to minimum wage, even if he happens to be an expensive lawyer. No compensation is payable for health or other problems incident on a criminal case; it is considered a part of the rule of law that charges will be brought against defendants, and that some of them will be found not guilty. It may, of course, be possible to sue the complainant for defamation or even to bring an action for malicious prosecution; a lawyer would have to advise on this, but the mere fact of acquittal is certainly not enough to found an action. | Is it unethical to file a claim against an attorney who lied? No. It is actually encouraged if the claimant can submit proof of attorney's misconduct. The grievance is to be filed in the claimant's jurisdiction rather than with the American Bar Association. An attorney's lies may be severe enough to constitute fraud on the court and possibly warrant disbarment. See Matter of LaRosee, 122 N.J. 298, 311 (1991). The real question from a practical standpoint is whether the Disciplinary Review Board and related entities will follow through or be unduly lenient about that attorney's misconduct. What if the Judge ultimately rejected the attorney's claim? That does not reduce the impropriety of the attorney's misconduct. The so-called "zealousness" with which lawyers advance their clients' position does not justify indulging in dishonesty devised to result in miscarriage of justice. Is it wrong to bring it to the attention of the judge or do judges frown on such things (since the attorney is representing the other party)? No. Judges generally are not up-to-date about attorneys' misconduct. Putting them on notice might frustrate a crook's further attempts to mislead the court in that and other cases the judge presides. By not reporting a crook, the public remains exposed to risks from that lawyer's pattern of misconduct. | It seems generally uncontroversial that in examining a witness at trial, a lawyer may not ask questions implying that the witness has engaged in some wrongdoing, unless the lawyer has some basis for asking those questions. This is not true. A lawyer is allowed to guess and ask such a question, although if it assumes a fact not in evidence it could be objected to for lack of foundation. For example, the opposing counsel could object if the lawyer asked, "After you drank twelve beers at BigTown Sports Bar, isn't it true that you got into a car and drove away?", because there would be no evidence in the record at that point that he drank twelve beers at BigTown Sports Bar. For instance, in the absence of any evidence indicating that alcohol was involved, I would imagine that a plaintiff's lawyer in an accident case could not cross-examine a defendant with leading questions suggesting that he had been drunk at the time of the crash. Sure he could. He could ask, "Isn't it true that you were drunk at the time of the crash?" There is nothing objectionable about that question. If the answer was "no", however, and the lawyer had nothing else to back up that suggestion, the question might not help the case, but the question is proper. Sometimes a lawyer just has a hunch and goes with it, and sometimes the hunch is right. Is this rule codified in a rule of evidence or is it just rooted in the courts' ideas of decorum and propriety? I can see how it might implicate the Rules of Professional Conduct, but that wouldn't seem to provide a remedy to a party who was prejudiced by such behavior. I'm more interested here with civil cases than criminal, where a defendant's Sixth Amendment rights might be complicate the question. It isn't codified because such a rule does not exist. There are some special rules that apply to prosecutors, who are ethically required to bring criminal cases only when they believe that the cases are supported by probable cause. But, that rule applies at the case level and not at the question by question level. Lawyers are also prohibited, especially in criminal cases, from making statements asserting personal knowledge of the credibility of a defendant or witness. This is because this transforms the lawyer from an advocate to a credibility witness. But, the lawyer can ask a judge or jury to find that someone is not credible in closing argument based upon X, Y and Z evidence presented at trial. | I think you would do much better to describe the situation, and the result you wish to achieve. Include enough detail for the lawyer to understand the nature of the case, but keep it brief. More details should come once the lawyer has agreed to take the case, or to give you an interview/consultation to discuss it. Later in your letter, if you like, you might include "We understand that ORC 2741.02, 2741.06, and 2741.07 may give us a basis for suit" but I would not go into any more detail about the law in an initial letter. If during the consultation (in person or by phone or zoom or some such), the lawyer does not mention laws you have learned of and think relevant, you could mention them and ask why the lawyer is not addressing them. The lawyer does not need or want to be told what you think the law is, the lawyer needs to know what the situation is and what you hope to do about it. That includes who "we" are. Update As the answer from ohwilleke says, a telephone all might be better than a letter. But in either case, the key things the lawyer will need to know are: 1) who are you?; 2) what is the situation you are concerned with (details may be important here)?; 3) what do you want to accomplish through the lawyer's services?; 4) who are the other parties involved? You will want to learn: Does the lawyer m(olr law firm) handle that sort of case?; Are they willing to take you on as clients?; 3) Hpw much experience has this lawyer had with this sort of case?; 4) What are the likely upfront costs?; and 5) What are the chances of success? Items 4 and 5 may not get answers in a first round of contacts. 2nd update, based on revised letter You still start with a statement of the law you think give you a claim. Please do not do that. In this draft letter you do not say anything about the actual problem you have or what you want done until the sixth and next to last paragraph of the letter. Even then you are not very clear on what you want the lawyer to do. "we find ourselves forced to learn how to sue an ex-customer" sounds as if you are asking for education, not legal services. I would suggest something more like: We are an association of traditional artisans. An Ohio business {insert business name} that had formerly purchased and resold some of our work has been using the images of us and our families to advertise its goods without permission. We want this stopped and also want monetary damages for past use. We think we may have a claim under {ORC sections}. In any case we want this stopped by whatever legal process would be most appropriate. That puts the situation first, your desire second, and any comment about the law later (or it could be left out). | There is really no point in hiring a lawyer until you can identify a culprit. Lawyers can't sue people until they have a way to serve the person at fault with legal process. You need an IT professional instead. | In some jurisdictions it's against the code of ethics. For example, in the united-states, Model Rule of Professional Conduct 5.4(b) says: A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. The idea has to do with independence: Lawyers are officers of the court and—as members of a regulated profession—can be bound to professional codes. Talented leader/organizer/visionaries aren't bound in any such way. The comment to the Rule explains, "Where someone other than the client pays the lawyer's fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer's obligation to the client." This can create a conflict, and states resolve it by regulating the partnership's composition. Other jurisdictions go even further and it’s prohibited in law. | No, this is not an acknowledgement of guilt or liability. It offers a "discount" some sort of reduction in price. This could be an offer of settlement without admission of liability, or even just advertising for repeat business (unlikely as that may seem). Without the rest of the communication, there is no way to tell. Unless there are specific admissions, this statement alone is not likely to have much significance in such a case. Edit: There is still not enough context to tell exactly what the sender of this communication wanted to accomplish with the offer of the discount, but since the OP now says "the party does not take the responsibility" this is not an admission of guilt, whatever else it is. It sounds like some sort of backdoor form of settlement offer without admission, but that is far from clear to me. My original answer is not significantly hanged here. |
Is it a human right to appeal? I am asking from the standpoint of international law, has the right of appealing against a judgement become a part of customary international law? What if one is wrongfully held liable in a civil case, after a trial ridden with errors; would it be a human rights violation not to have the ability to appeal against the judgement? | Article 14, Section 5 of the United Nations International Covenant on Civil and Political Rights provides: Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. Your question, though, asks specifically about appealing the decision in a civil trial. I don't know of any treaties or principles of international law that require an appeal in civil cases. | "War crimes" are codified in international treaties (especially the Geneva Conventions), and in determinations by courts and in statutes made in domestic legal tribunals. This is one area of law, however, where it is often considered acceptable to impose criminal liability on people in a country that have not adopted a relevant treaty, and have not adopted domestic law prohibiting the conduct, on that theory that it is mandatory, globally binding, customary international law which it is proper for third parties to impose upon people and countries that violate it. The analysis in the case of war crimes is not as contractarian as in other areas of international treaty enforcement and international law. | Given that both parties have committed criminal offenses (the 'bad actor' is attempting fraud and the 'victim' has committed unauthorized access to a computer system), no court would hear a civil case between these parties. As a matter of public policy, criminals do not owe a duty of care to each other so no one can win this case. | In the US, there are a number of non-government organizations which take on such cases, such as the ACLU or the Institute for Justice; individual law firms may also take such cases pro bono. There is no automatic right to free representation in case a constitutional issue is alleged, so if IJ doesn't like your case they won't take it. These are private organizations: there is no general government agency that one can call on, other than the Public Defender's office in case you are charged with a crime and can't afford legal defense. (A constitutional issue may arise in a case that a PD might handle, but you can't e.g. call on the public defender to sue the government for infringing your 2nd Amendment rights.) A state attorney general could file suit against the US government over a constitutional issue, as Washington's AG did in the case of the Trump travel executive order, where the underlying issues were constitutional. An individual might inspire a state AG to take on an issue, but the AG would be representing the interests of the state, broadly, and not individual interests. | 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. | 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. | The government can’t withdraw The government does not have a right to unilaterally withdraw charges once the case is before the court. All they can do is ask the court to dismiss the case as they have done here. It’s up to the court (judge) to decide whether to grant the motion to dismiss or not. It granted, then the case has gone to completion and the defendant is legally not subject to punishment as they were not convicted of the crime, notwithstanding any previous guilty plea. Now, while it would be unusual for a judge to refuse such a motion it’s not impossible and they might do so if they felt that the interests of justice are better served by completing the trial in the usual way. This is possibly more common in civil litigation where a losing plaintiff might not be permitted to settle if the judge doesn’t feel an innocent defendant is being adequately compensated. | Generally speaking, a decision from the Court of Appeals for the District of Columbia is binding only in the District of Columbia. Courts of other jurisdictions are not required to adhere to its decisions. If the issue came up again in Virginia or Maryland, courts there would have no obligation to follow it. Virginia tort law is different from D.C. tort law, so Virginia courts would need to determine whether their law is different on this particular point. |
Is it illegal to purchase stocks with money that came from a Brinks truck? There have been many times over the years when a Brinks truck has overturned, or the security guards forgot to lock the rear doors, and money came out of it while in route to its destination. Say a person happens to come upon a bag of money that came out of a Brinks truck, and he/she takes it with the sincere intention of returning it to Brinks, but before they do this, they first buy stocks with the money and make a lot of money from this investment. Then lets say he/she drops off the bag, with the same amount of money that had been in it, to the local Brinks office, say late at night when that office is closed, with a note saying 'I found this bag on the side of the road today. -Anonymous'. If Brinks does an investigation and is able to track down this person and discovers that he/she had profited on Wall Street using money from a missing bag, will this person go to prison? Is there an existing law(s) that make doing such a thing illegal? | 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. | If the police confiscate a weapon that isn't owned by the suspect, would they have grounds to keep it? Not forever. For example, let's say the gun was owned by a friend or parent? What if the gun was owned by a Trust with several trustees? Third party owners of property lawfully seized from someone else can recover it. For example, I once took legal actions to recover a gun for a client that was in a gun repair shop that was seized in a criminal investigation because most of the inventory of the shop where it was being repaired consisted of stolen firearms and the primary business of the gun repair shop was fencing stolen property (a fact of which my client was completely unaware and shocked to discover). But, that was only possible once the trial was over because the guns seized were part of the evidence in that trial. A similar process applies when there is a civil forfeiture of property owned by a third-party. Could the owner (personal or trustee) recover the gun from police custody independently of a court finding on the suspect? Sort of. But it isn't entirely independent, since the firearm might be needed as evidence or might need to be kept out of the possession of the person from whom it was seized to effect the red flag order while it was in place in a way that that the third-party owners would have to assure. An example might be where a gun is confiscated via red-flag law, where no crime has been committed, but the suspect won't get his day in court for 6 months. Would the true owner, or partner owners if in a Trust, be denied their property or could they go ahead and recover it pre-trial (ie. the day after it was confiscated)? In the case of a red-flag seizure, the existence of the gun wouldn't be evidence in the court proceeding, so it wouldn't have to be retained for that purpose prior to trial. But, the owner of the gun would probably have to petition the court to regain possession and would have to demonstrate that the red-flag order would continue to deny the person who had the gun possession of it until the red-flag order period expired (if ever). If the trustee was the red-flag order target, or was someone related to him (or her), that might be a showing that the trustee could not make. Caveat Of course, red-flag laws are specific pieces of state legislation. Each one is different. Many would provide a specific statutory procedure for how this issue would be handled. For example, in some places, the proper means to regain possession of property held by law enforcement in connection with a criminal case is a motion filed by a third-party intervenor in the criminal case, while in others, the property process is to bring a civil action for replevin (a lawsuit to regain physical possession of particular items) against the law enforcement officer in possession or constructive possession of the property in question. | "Lemon laws" are about new cars and manufacturing defects. Used vehicles are sold "as is", except that dealers are obligated to offer a 30 or 60 day warranty that the vehicle will continue to function. Using the term "owner" suggests that this is not a dealership sale. Generally speaking, you are out of luck, except for the verbal add-on to the sales agreement. If there is no written agreement, just a verbal contract and exchange of money for truck, you may be able to enforce the contract in regular court. The prospects decrease if there is a written agreement that does not include the money-back guarantee, and become effectively zero if there is a clause that says "This is the whole agreement, the car is sold as-is". Assuming there is no written agreement, then you and perhaps the third party would testify as to the money-back guarantee, the seller would testify that there was no such guarantee (or that you misunderstood what he said), and the court would decide which version of the story is more believable. | Your question assumes that there is a method to find a block of bitcoins with a faster computation than the brute force method used so far. If such a faster calculation method exists, it is proprietary to the mathematics and our superhero has not invented it, he just discovered it and used it. It is not an insider trading case since everybody has the possibility to acquire the same math knowledge for free and use the same super algorithm (and maybe is using it already). Insider trading covers only situations when an insider has an information earlier than the market due his proximity to the information, being e.g. employee of the relevant company whose shares are traded, etc. Insider trading presumes that the insider is an "insider", i.e. has the information earlier only due to his position. On the other hand, having an information earlier due to his math skills which are available to everybody does not constitute insider trading. Using the new discovered super algorithm for shorting the bitcoin price is not illegal since the super algorithm is not illegal either, but proprietary to the mathematics. The assumption that the price will drop may be not true, it is only a valid speculation. | I am unfamiliar with specifically US laws on this but under common law (which US law is derived from) there is the crime of "Theft by Finding", however, because you turned it over to the authorities who, after the required time period were unable to find the rightful owner, the money becomes yours. However, you still have to pay your taxes on it: http://www.foxbusiness.com/personal-finance/2014/07/03/found-money-is-awesomebut-must-pay-uncle-sam/ As far as I can see, income is income whether it comes as cash, diamonds or long lost antiques. As far as the money laundering aspect, that is something the authorities would need to prove - as opposed to you just being lucky. | 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. | 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). | Here is an excellent (and extensive) explanation of jurisprudence regarding the "good faith exception" to the admissibility of evidence found due to an error. In short: Yes, the contraband found in Unit B would be evidence admissible in court. (Of course, evidence found in Unit B would only support charges against whomever had a nexus to that property. If the owner of Unit C had no access to Unit B, then evidence in Unit B would not per se implicate him in a crime.) Law enforcement will not return seized property if it believes the property is "contraband." As an example, in Pennsylvania a person can petition a court for return of property seized by law enforcement: Rule 588 requires the petitioner to establish entitlement to lawful possession of the property, but the motion will be rejected if the State successfully argues that the property is contraband, or "derivative contraband" (which has been defined in case law to mean there is "a specific nexus between the property and criminal activity"). |
UK - Hot Water changed from Gas to Electric - What recourse do I have? Long question, jump to the end for a TL:DR. I rent a house, I'm the only occupant. My Gas boiler was given a gas safety certificate by an engineer who warned me that the boiler was extremely borderline, and that if it was not for the fact I had just moved in, he would have condemned the boiler. Skip forward six months, I've been in the house, turning the boiler on and off (gas) when I wanted to heat a tank of water, and generally not burning it for more than 30 minutes. It's coming into winter, and now the house needs heating, so I got concerned about my safety and called out an engineer (my own money) to inspect the boiler as a independent third party. He promptly shut off my gas, cut the pipe leading to the boiler, capped off the pipes and gave me a certificate condemning the boiler. No problem there. I let the estate agent know (private rental through an agency). And they told me to use the electric heater in the tank while repairs were conducted. I checked, there was an electric element in the tank, but it was not wired into the house electrics. So they had to call out an electrician. Still not a problem. Contacted the agency to thank them for getting the water temporarily fixed, obviously heating on electric is going to cost me more, so I wanted an estimate of how long the boiler would take to get fixed up. I was then instructed by the estate agent that the boiler would not be repaired, and that I was to use electric from now on. It's coming into winter as I already said, so now I'm expecting this is going to cost me 15~20Kw a day (calculated this from tank size, and thumbing it, so there's definitely some give in those numbers), it's about 3* the price of using Gas to heat the house and heat the water, and if I the electric was on a timer like the Gas was, then I could probably have pulled this down to 6Kw a day. (It does have a thermostat in the tank that stops it boiling, so it just maintains a constant temperature (not sure what temperature exactly)), Over a month under the new system it's going to cost me about £101.29(per/month), where before when it was gas it would have cost me (with the timer and all other benefits) about £9.42(per/month) The electric coil they hooked up also does not have a timer, it's a switch that's either on or off, so it's going to be running 24 hours a day, instead of being on a timer that only runs when I'm expecting to be at home. TL:DR I've emailed the agent to say it's not a good solution and that I expected the landlord would cover the difference in cost. My message: Please also let the landlord know that because the house is now on Electric supply for hot water, and the cost of this is significantly higher than the equivalent Gas system, I will calculate the difference and he will need to cover that. Agents message: Not a problem at all. With regards to the boiler being fixed, the landlord is not going to replace it so therefore, as you have suggested please calculate the difference, which we will then pass onto your landlord. Can I reasonable hold their message as a guarantee that the extra costs will be covered by them/landlord? (The agent is referred to in the contract as attached in image, but does not say anything about having the authority of the landlord to agree things) Alternately (And I've been searching, but can't find a good reference to this anywhere) since the house has been changed from Gas to Electric for Hot Water, is this considered a substantial change in the dwelling? Since there was no electric water before, and the house was "Gas Only" for hot water... (You probably get where I'm going with that) (Reference numbers) | In saying "Not a problem at all", you cannot infer that the agent is committing the landlord to covering the difference in cost. That sentence is standard verbal fluff equivalent to "it's no bother, I'll pass the message on to the landlord". You requested him to inform the landlord of the expected higher cost, and that you hoped he would cover the difference. He then says "please calculate the difference, which we will then pass onto your landlord", so he is agreeing to pass the information on. This is not a commitment by anyone to do what you want. Of course, the lease might specifically commit them to providing a gas-fired boiler. If so, you should expect that they will cover the difference in cost for the duration of the lease (and the lease may change after the current period). | To get an answer tailored to your problem, you need to get a lawyer. The general answer is that the water bill goes with the property, not the person using the water. The unpaid bill can become a lien on the property, and the house can be taken and sold to satisfy the lien. There are other factors / questions. Under Florida law (180.135), if the debt arises from a renter who incurred the debt directly with the utility, a lien cannot be placed against the property. Any lien must be perfected (filed with the courts), and the point of a title search is to find such liens – assuming that a title search was done. There is a limit to how long you can wait to collect on a debt (7 years). | There are two separate issues here. Firstly, the deposit. Any deposit is required by law to either be placed in an approved deposit scheme provider at the start of any tenancy, or be insured with a provider. Either way, the landlord (or their letting agent) is required to issue the tenant with certain prescribed information within a certain period, as well as meet a few other requirements. Failing to do this can result in the landlord having to return the deposit and pay a fine to the tenant - if the tenant is willing to take him to court. If the landlord has done everything by the book, they don't owe you anything. (If they've paid the deposit into a scheme, then they will not receive any interest, as it's kept by the scheme provider to pay for their services.) Secondly, the renewal fee. These are legal and commonplace. However, you're never obliged to renew your tenancy, as if the fixed term expires and you don't leave, then it automatically becomes a statutory periodic tenancy (often called a "rolling tenancy"). With a periodic tenancy, you can leave by giving one month's notice in writing; or your landlord can request that you leave by issuing a section 21 notice, which gives you two months to depart or face legal action. If you tell the landlord that you would like to change to a periodic tenancy when the current fixed term ends, then no-one has to do anything (though the letting agency may charge you an admin fee). The landlord cannot impose a new tenancy agreement, but they can issue a section 21 notice. Or, as you suggest, you can request a longer fixed term. This provides more security for you and the landlord - though it makes it harder to leave early, as you're potentially liable for the rent for the whole term. | Normally, the person who uses the electricity and pays for it is the "customer", that's you, not your landlord nor the maintenance company. Check out section 6.3.3 (A) of the MOCOPA agreement: the Distribution Business shall agree with the Customer or developer the position and space for the Metering Equipment, and shall, in so much as it is within its reasonable control, ensure it remains reserved. The location must be accessible to the Customer so they can read their meter and to the MOCOPA Operator (via the Customer). Consideration shall be given to the accessibility of the location to all users. The Distribution Businesses’ service termination equipment and the Metering Equipment should be located between 0.5 and 1.8m above finished floor level subject to unavoidable constraints such as vandalism or fire risk mitigation Essentially, after the locks have been changed the last time, the building is no longer compliant with MOCOPA agreement requirements: I don't see any provisions that would allow to substitute the customer access to the metering equipment with an access via a proxy such as cleaning personnel. Start by sending a letter by registered mail to the maintenance company, requesting them to provide you the access to the meter. Mention the agreement you have found as grounds for your request. You might want o clarify upfront with your electricity provider who exactly you are supposed to contact, the maintenance company would be my first guess. Chances are, you'll be given the access code. If they still refuse, they should state the reasons for doing so. Check their answer carefully, and if you are not convinced, you could take legal action (you may want to bring the response letter to a lawyer first). Having a copy of the letter you'd have sent will be a requirement for the legal action to be effective. | If you introduced the bedbugs, liability could flow to you by way of the landlord keeping your security deposit (if there is one) and explaining when sending you notice that a portion/all of your deposit was withheld due to you causing the infestation for the purposes of remediation. The inverse is also true, in that if you do not have a deposit, you could be sued in housing/small claims court for the infestation if you were negligent in some way (grabbed the mattress curbside and didn't put a bedbug proof sealed cover on the mattress. Since you said you rent a room, my curiosity is piqued as to whether it came with the bed (mattress). If the bed came with the room, it is almost certainly not your fault. Even when there are statutes/codes/regs delineating a lessor's/lessee's obligations and rights re pest control (from jurisdiction to jurisdiction) they rarely exclude the right to general civil remedies. I used to represent my municipality and remember reading that bed bugs are difficult to treat unless the bed is disposed of and all bedding is washed in hot water with a disinfectant and even that can not ensure their removal because if you brought them in because of access to them on a regular basis (e.g., if you are a maid at a motel), then you may continue to introduce them. If the room had no bedbugs and you brought the bed in and now it does, it may be easier to prove who created the unsafe/unsettling condition, as opposed to ants, roaches, spiders, which can be introduced in myriad ways. | This is outside the scope of landlord-tenant law and the obligation of the landlord to make the premise habitable. Building codes are not imposed retroactively on existing housing, so while it is true that you cannot legally build a house without service grounding, you do not have to install service grounding when that becomes part of the electrical code (which was decades ago). The law is here; the state could have impose an obligation on landlords to always update plumbing, electrical etc. so that rental housing always conforms to current codes, but it did not. If the electric does not work properly, that has to be repaired, but if there is a functioning but less than ideal electric (knob and tube wiring; ungrounded; no GFI circuits in the bathroom, incorrect receptacle covers, overburdened or improperly placed service panel, too few receptacles), that's not something you can legally force a landlord to change. | Yes, independent contractors are liable for their acts and omissions The contract between the contractor and the principal should set out what the contractor is expected to do and the standard to which they are expected to do it. If the contract does not set this out then they will be required to perform to the standard of a reasonable person doing that sort of work plus any statutory requirements. So, if they are a plumber, then they are required to install the plumbing to the applicable building codes and to the standard that a reasonably competent plumber would do so. If they fail to do the work or fail to do it to the required standard then they are liable for any damages the principal suffers as a result. Further, an independent contractor is liable for any tort that they may commit against a third party. So, to continue the plumber example, if the plumber negligently installs pipe for a builder and that pipe breaks damaging a tenant's goods (i.e someone outside the contractual chain), then that tenant can sue the plumber for negligence but cannot sue the builder or landlord. Employees are the same but also different Employers are vicariously liable to third parties for the acts and omissions of their employees except where they are on a frolic of their own (i.e. doing something that is clearly outside the scope of their employment). At common law, the employee is also liable to the third party and the employer, however, such claims are rarely pursued because a) where there is insurance, the employee is also covered b) the employee may lack the assets to meet the damages and so be "judgement proof" c) it's really bad PR and d) many jurisdictions prohibit it by statute (e.g. new-south-wales). Protection for an independent contractor Insurance Public & product liability certainly. Motor vehicle insurance if applicable. Professional indemnity insurance if the work is of a "professional" nature, that is, involves providing advice rather than just goods and services. Protection for an employee Insurance Check that your employer has the right insurance and that it covers their employees. Is it better to be an employee or an IC of said company to avoid this type of liability? Like you have a choice. The nature of the relationship will determine if you are an IC or an employee. If you are clearly running an independent business then you are an independent contractor. If you are clearly a wage or salary earner then you are an employee. If it's unclear, you are still one or the other and you don't get to choose. See Indepdendent/Contractor vs Regular Employee | It says it's an "MP4 player" but it doesn't play MP4s. This seems rather straightforward to me---assuming it really doesn't play any kind of MP4 at all. I would agree you could go back to the shop armed with the appropriate wording from the SoG Act and state your case to the manager. If the front desk staff are unhelpful don't argue with them but rather ask to speak to the duty manager. No doubt the staff will talk about their thirty day return policy, but you are not interested in this; since you are relying on your statutory rights. If that is not successful, write directly to the head office. Keep your letter short, neutral and with no emotion whatsoever. Describe the facts, include proof of purchase, and request your money back. Argos is a large shop, they will pay you off ("as a gesture of good will") rather than fight a pointless claim in the SCC. However taking an action to the SCC is not necessarily free so you might yourselves not feel it worth it. |
File a patent disclosure after paper publication We were trying to file a patent, but unfortunately delayed the submission of the disclosure. Now the paper is accepted by the conference, not yet published. However, we uploaded the paper in advanced to arxiv.org which is public domain. Is there any problems to file our disclosure now? We are in an urgent situation and need to file the patent on behalf of our company. I'm in the US. | In the US, you have a 1 year grace period from the time of public disclosure to the deadline for filing the patent application. This can lead to a US patent, which can be used to sue anyone infringing the patent within the US. However, most foreign countries do not offer this grace period, and so the possibility of protection in these countries for the matter disclosed in the arxiv publication has been lost. | Works enter the public domain after ... years from publication. In the United States, this is incorrect for some works and incomplete for the rest. Currently, most works are copyrighted for the life of the author plus 70 years; publication date doesn't affect the copyright term. Works made for hire (such as code written for Google by an employee), anonymous works, and pseudonymous works are copyrighted for 95 years after publication or 120 years after creation, whichever is shorter. | No, copyright absolutely does not protect anything "novel" or anything related to algorithms or generally anything functional at all. Copyright only protects your "expressed representation of a creative work". Other people can duplicate your work with a different "expression" and not be infringing on copyright. And if there is nothing creative in your work then it's not even eligible for copyright in the first place. For example, if you figure out how to sort an array with fewer computational steps than what anybody else is doing then that is functional code, not creative code, and anybody can reverse engineer/duplicate your sorting algorithm. However, patents do provide the protection you're looking for. If you want to protect your fancy algorithm then apply for a patent. Patents expire an order of magnitude sooner than copyright, but they are the only means of legally protecting this type of intellectual property. Unlike copyright, patent protection is only available if you apply for it, and it has to be approved by the relevant government department in your country (although you can start using the patented technology before approval has gone through). | 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. | Do domains typically need to be declared when filing for bankruptcy? Yes. Concealment of registered domains may be grounds for denial of discharge. See In re Money Centers of America, Inc., (U.S. Bankruptcy Cort, July, 2019) ("the registration of the domain name is an ownership interest that should have been disclosed"). See also In re Luby, 438 B.R. 817, 829-830 (2010): courts generally hold that domain names are subject to the same laws as other types of intangible property [...] And as such, it must be reported on a debtor's bankruptcy schedules. (citations omitted). The Luby opinion reflects that materiality of a domain is more relevant than the cost of registering it. | This kind of piracy is unfortunately common. When your copyright has been violated, your available response is to sue the infringer. Yes, this costs money, and yes, many infringers get away with it. In the Free Software/Open Source community, a couple of actors including the FSF, gpl-violations.org/Harald Welte, and the Software Freedom Conservancy have sued GPL infringers. But they can only do that for copyrights that they hold themselves. For example, the FSF holds copyright for the GNU userland, whereas Welte and Conservancy hold copyright for parts of the Linux kernel. They do not hold copyright for your software so they cannot enforce the AGPL license on your behalf. What can be done fairly easily is to file a takedown request with platforms that host the infringing content. Under various safe harbor laws including the US DMCA, a platform is not responsible if they accidentally host infringing content uploaded by users. However, the platform has to take the content down if they're notified that the content is infringing. For example, you could file a DMCA takedown request with GitHub to take down their repository, in case they are using GitHub. The drawback is that a takedown notice can be contested by the alleged infringer, in which case the content is reinstated and you would have to sue. The platform is not allowed to make its own determination about whether you or the infringer is right. | The author, or the copyright holder if the author has sold or assigned the copyright, may register a copyright at any time, even many years after the work was copyrighted. However, for all modern works (since 1978 in the US) the work has copyright protection as soon as it is created and set down in a tangible form (such as on paper or in a computer file), whether it is registered or not. Registration cannot gain or lose copyright protection. It is evidence of the copyright, and it provides some additional rights if an infringement suit should occur. If there are multiple co-authors, one author should ideally register on behalf of all of them, listing all co-authors, but multiple registrations will do no major harm. No one who is not an author or copyright holder of a work (or a valid authorized agent of the author or copyright holder) may legitimately register a copyright in that work. Registration procedures and the exact benefits of registration vary by country. In fact, some countries do not have any copyright registration. Edit: In the US, registration procedures are described in Circular #2 from the Copyright Office. Falsely registering a copyright is a crime under 17 U.S.C. § 506(e), and could be reported to law enforcement. See also Wikipedia's article on "Copyfraud". If a false registration has been made, the true author can file a conflicting registration. This should be sufficient to allow a copyright infringement case to be filed. It would be very wise to consult a lawyer with experience in copyright infringement issues before taking steps in the matter. Second Edit: It is one of the elements of an infringement claim that the plaintiff owns the copyright, or has been authorized by one who does. often this is not disputed, and is passed by with no significant time or effort. But if a false copyright registration has been made, in which a person who was not the author claims to be the author, then evidence clearly establishing the actual authorship will probably be needed if the case goes to court. A registration establishes a rebuttable presumption that the person who registered the copyright owns it, and this presumption would need to be overcome. | With respect to the first question, discussing an idea in a non-encrypted email is not a publication that forfeits the right to patent an idea, even though it is not 100% secure. In the same way, talking about an idea for a patent with your patent lawyer in a secluded booth of a coffee shop in person does not constitute publication of the idea for this purpose, even if someone is secretly spying on you at the time. Since I am at the moment employed by a company, even though the idea originates from myself, it seems that I should quit my job first not to have my current company have any claim over my idea. It is possible that the contract makes even ideas that you come up with yourself while employed by the company the property of the company. If so, you are legally in the wrong and the idea belongs to the company. But, proving the reality that you are stealing the idea from the company is harder if there is nothing in writing. An email discussing an idea while you are employed would have to be disclosed in litigation with your employer over whether the patent applied for belongs to you or to your employer under an employment agreement. If you didn't put it in an email, it wouldn't exist to turn over in litigation. |
Medicaid Estate Recovery Can the Oregon Health Authority (OHA), Estate Recovery Unit (EAU) seek reimbursement for Medicaid services rendered after a person is deceased, if their assets are placed in a revocable trust prior to care? In other words, does a revocable trust protect against Medicaid recovery after death? (District: Oregon, United States) | A trust, revocable or irrevocable, does not protect the estate from claims by creditors. Under ORS 115.125(1)(k), the Department of Human Services or the Oregon Health Authority has a claim against the estate, behind the claim for "the state’s monthly contribution to the federal government to defray the costs of outpatient prescription drug coverage provided to a person who is eligible for Medicare Part D prescription drug coverage and who receives benefits under the state medical assistance program or Title XIX of the Social Security Act" (which is item (j)) and ahead of only the claim by the Department of Corrections for care and maintenance of any decedent who was at a state institution – that one is dead-last in the list of statutorily-listed claims. | I know this is not what you've asked (I will get to that too), but I figured I would take the opportunity to state that the owner of the well cannot send you an invoice for the water unless you agreed to a price and entered into a binding agreement. They cannot just decide their water is worth X and then tell you that the amount is due. Just as you cannot send them a bill, in the same amount, for the use and maintenance of the pump. While the well may be located on one parcel of land, with the pump on the other, chances are, the properties were linked at one point and that is why there is a separation of the two (unless you bought it as one and divided it yourselves). This should have been dealt with on the deed, with easements appurtenant to the neighboring land regarding water rights. A contractual agreement could have been attached by reference that dictated the land with the well would maintain the well, while the landowner with the pump would maintain the equipment (or whatever you both agreed to regarding upkeep and the like). Depending on the state you live in, the property itself may not even "own" the well. For instance, in Colorado, water rights typically come by way of 100 or 200 year leases, as the native american tribes of the area "own" the water rights. Other states have laws that declare that nobody owns the water table, hence land is only owned as far down as the water table and then it is owned by the county, or state, with easements running with the deed. Other states, (I'm wondering if this is your issue) the water runs in veins and does belong only to the property that it is below – as there is no water table, so to speak. Regardless, I would talk to your title insurance policy company and ask why this easement was not addressed in the deed. I'm assuming that you did not divide the land yourselves, post purchase, and the land with the pump cannot access the water table without going onto the land of the other. Otherwise, it would be very easily solved by drilling your own well (and much cheaper), whereby you already own all of the equipment to run the water to the dwelling. You just divert your equipment to the running of your own well. It's only a few dollars a foot to drill a well, unless you live in the Granite State! Likewise, you should check with your land assessor's office, or registry of deeds, and see how the title ran back regarding water. Again, depending on jurisdiction, you may be able to drill down and over. You cannot divert, but you can access, in most jurisdictions. I say to contact your title insurance company, because the water issue should have been dealt with at title examination, and further, if your land is inaccessible to any water, it would not be sub-dividable for dwelling purposes under almost any zoning law I have ever heard of. A property that is land locked, or utility inaccessible, cannot be zoned for dwellings, without irrevocable easements or rights of ways, respectively. Just because you purchased near family doesn't have anything to do with any of this analysis. They could be anyone, or you could end up at odds, the water cannot be relationship dependent and you cannot be held hostage over natural resources. If so, I would sue the title insurance policy for a refund of the purchase price or the negotiation of the purchase price of an easement to the well/water table, assuming you have none under your land and have no existing right to it. If you just happen to have the pump, and they have the well, you own the pump and they own the well. Simple as that. You do not have to allow the pump to be used for their well. Assuming you can drill your own well, but may not want to, you can just rent them the use of the pump at the same rate they are charging you for the water. You can agree to split the cost of maintenance of each, since you've invested in the upgrade of the pump. | Is this true? Yes. can someone explain how this might work? You can form an LLC, and then fund it with money that would be used to purchase the home, and buy the home in the name of the LLC. One minor exception is that a handful of rural U.S. states prohibit limited liability entities from owning farm land, so if the home is part of a farm or ranch, this could be prohibited in those states. If there is a mortgage, this is more difficult, but not impossibly so. The primary debtor on the mortgage would be the LLC. Ordinarily the owner of the LLC would be required by the bank to guarantee the mortgage, but loan guarantees do not necessarily have to be made a matter of public record. If the LLC has only one member, it is disregarded for income tax purposes, so that isn't a problem. There may be issues in this case of a house not qualifying for residential property tax treatment in some cases (which is often a lower rate than commercial real estate). There is also sometimes an issue that property owned by an LLC isn't eligible for a "homestead exemption" of equity in the home from creditor's claims. It may also be treated differently in terms of eligibility for means-tested benefits like Medicaid nursing home coverage. But, it is allowed. I ask the question, for it seems to me that it should not be difficult to find out who the owner of any given LLC is. In the U.S., the owners of a manager managed LLC are rarely disclosed in the public record (although about half of U.S. states require one or all of the members of a member managed LLC to be disclosed). But all U.S. states allow LLCs to be manager managed. Also, all U.S. states are required as a matter of constitutional law to all LLCs organized in a state other than the state where the LLC owns real property or operates to do business in that state. States can imposed regulations on out of state LLCs to some extent, however. The main exception to these general rules is California. Although the California Articles of Organization do not list the members of the LLC in the Artiles, California requires the LLC to file a Statement of Information within 90 days of the approval of the LLC. The Statement of Information does require a list of the LLC's members, and it does become public record. Records of LLC ownership are maintained in the private internal records of the LLC. A contact person, called a registered agent and sometimes the managers of the LLC with authority to act on its behalf must be publicly disclosed, but neither of these posts has anything to do with ownership. Many states also require the "organizer" of the LLC to be disclosed, but that doesn't have to be an owner of the LLC either. Often it is a lawyer or accountant for the LLC. It will be necessary to disclose the ownership to federal tax officials, and often also to state tax officials. Also, soon, under a newly enacted federal law that has not yet taken effect because regulations have not been written, to federal money laundering officials. But, both of these pieces of information are confidential and not available to the general public. This information can be obtained by subpoena in pertinent litigation, however, must often be disclosed when filing federal lawsuits, and is often required to be disclosed by counter-parties in business transactions. Footnote The U.S. practice is not the global norm. In most civil law countries, for example, ownership interests in entities need to be reflected in a notarized document kept in the custody of the notary involved. In recent times, interests in transparency and avoiding tax evasion and money laundering for terrorism and crime have promoted additional, less decentralized records of entity ownership. | No Pennsylvania law § 2104 requires: (10) Requirement that heir survive decedent for five days.--Any person who fails to survive the decedent by five days shall be deemed to have predeceased the decedent for purposes of intestate succession and the decedent's heirs shall be determined accordingly. Now, a will can provide contingencies for if an heir predeceases the testator such as flowing to the heir's spouse or children but if it doesn't then the heir is treated as non-existent and what would have been their bequest is dealt with by the other provisions of the will. The life annuity is not a part of the grandfather's estate and the funds will be distributed in accordance with the terms of its own contract, not the will. Usually, this means at the discretion of the trustee and nominations of beneficiaries are usually non-binding on the trustee; that is, they can distribute the funds as they believe the decedent would want. Your aunt should seek proper legal advice quickly. | Can people with low incomes qualify for free medical care (Medi-Cal) in California regardless of their assets? For some programs, but not others. The main exception, discussed below, is the Medicaid expansion component of Obamacare (a.k.a. the Affordable Care Act). One of the exceptions to the general rule considering property is as follows: The Affordable Care Act introduced a new methodology – Modified Adjusted Gross Income (MAGI) – to define a family’s size and count income in order to determine eligibility for insurance affordability programs. 42 U.S.C. § 1396a(e)(14). As a result, household determination and income counting rules are largely aligned among Medi-Cal, the Medi-Cal Access Program (MCAP, the low-cost health insurance for moderate income pregnant women), and Covered California, with some exceptions. For Medi-Cal, the MAGI rules apply to the following programs: Expansion Adults (adults aged 19 through 64); Parents and Caretaker Relatives; Pregnant Women; and Children. Medi-Cal’s Tuberculosis Program and the Refugee Medical Assistance program also now use the MAGI income methodology. See Welf. & Inst. Code 14005.20(b)(2) and ACWD 15-16 (Mar. 20, 2015), http://www.dhcs.ca.gov/services/medi-cal/eligibility/Documents/ACWDL2015/ACWDL15-16.pdf. These programs, however, are not considered MAGI Medi-Cal in the Medi-Cal hierarchy because they are limited in scope or duration and should only be used when an individual is not eligible for any other form of free Medi-Cal. In general, unless an individual gets Medi-Cal through a linked program such as SSI or CalWORKs, or due to former foster youth status, Medi-Cal eligibility is reviewed for the MAGI programs before looking to the Non-MAGI programs. Outside that Obamacare program, someone can have significant assets of types that are exempt from consideration (e.g. in the Medicaid nursing home program), but they cannot qualify regardless of their assets. The exact extent to which assets are disqualifying varies by subprogram, with ordinary Medi-Cal, the nursing home program, and the CHIP program for children, having different requirements. The key language is "countable asset levels". This is defined in a combination of state statutes and regulations which in turn are enacted in order to comply with federal Medicaid program requirements. Only some assets count for purposes of Medi-Cal eligibility. In particular, a personal residence, a single motor vehicle, certain household goods, certain retirement assets, certain cash value in life insurance policies, and investment assets that don't generate current cash income and are impracticable so sell in a timely manner at anything approaching their true value because they are illiquid for some reason or other, don't count. Exactly what does and does not count as a countable asset for purposes of Medi-Cal eligibility is a rather technical and detailed matter because there are some many different kinds of assets out there and the rules address them on a type by type basis. The most common exemptions are set forth here: The main regulations for the Department of Health Services that govern this are found here and here. More legal sources are found here. These primary sources, alas, aren't organized in a very user friendly way. In part, this is because the Medicaid Rules incorporate by reference (with modifications) the rules for the Aid To Families With Dependent Children (AFDC) and Supplemental Security Income (SSI) rules, rather than restating them with the modifications include in full. So the chart on the form is assembled from a mishmash of state and federal regulations in multiple locations. I didn't find a chapter and verse citation for a few kinds of non-countable assets but know they exist from continuing education classes and practicing in the area. | Sorry for your loss. It appears that this is generally possible. Texas Code of Criminal Procedure, Title I, Chapter 55, Article 55.011: Art. 55.011. RIGHT OF CLOSE RELATIVE TO SEEK EXPUNCTION ON BEHALF OF DECEASED PERSON. (a) In this article, "close relative of a deceased person" means the grandparent, parent, spouse, or adult brother, sister, or child of a deceased person. (b) A close relative of a deceased person who, if not deceased, would be entitled to expunction of records and files under Article 55.01 may file on behalf of the deceased person an ex parte petition for expunction under Section 2 or 2a, Article 55.02. If the court finds that the deceased person would be entitled to expunction of any record or file that is the subject of the petition, the court shall enter an order directing expunction. | You can't sue her for not having insurance. You sue for the damage you suffered. You can name her as a defendant alongside her son on the theory that she contributed to the accident by letting her son use the car, and then let the judge sort out who gets landed with the liability. Depending on the rules in your jurisdiction you might have to pay her travel expenses and/or lost wages if the judge decides she wasn't to blame (and the same for her son, but that sounds like a slam-dunk). However you might be better off going for victim restitution. That way the order gets made as part of the criminal case against the son. Less hassle for you, and the state authorities are responsible for actually getting the money out of them. Edit: It turns out that Idaho has the Family Car Doctrine in its law, so the mother is legally liable for her son's accident (thanks to ohwilleke for the pointer). | Short Answer Is Bob entitled to any compensation from the government or anyone? Generally not, although there are some states where this is possible on a limited basis or in isolated circumstances. Sometimes Bob can get his non-attorney fee court costs reimbursed or can have his government employer indemnify him for his attorney fee expenses in work related criminal prosecutions resulting in an acquittal. California is among the states that reimburse people acquitted of misdemeanor or infraction cases for court costs incurred (but not attorney fees), but this doesn't extend to felony criminal case acquittals. A minority of states (including California and federal criminal prosecutions) have exceptions for malicious prosecutions that are groundless and/or frivolous where reimbursement can be sought in a parallel case. Washington State allows an award of defense attorney fees if there is a self-defense based acquittal. Most states don't require reimbursement of the attorney fees incurred for a state provided public defender whether or not one is acquitted, but some do, at least in cases of conviction. Six states require a defendant who is acquitted but found to have had some ability to pay the legal fee of the defense to that extent. Those states are Illinois, Iowa, Kentucky, Nevada, New Hampshire and North Dakota. In addition, Michigan, does not allow for recoupment of appointed counsel defense costs after the fact, but it does require all able defendants to contribute to the costs of their assigned defense. A completely innocent man spent weeks in jail and had to spend thousands. Not to mention probably completely trashing his reputation. Can the government just do that to citizens and the citizens just have to live with it? Yes. State law is the main protection and varies widely. The majority rule is to provide no compensation. Federal Civil Rights Action Remedies There can also be an award as part of the remedy in a separate parallel lawsuit for an intentional violation of a person's federal constitutional rights by a state or local official acting under color of state or local law, under 42 U.S.C. § 1983, if the qualified immunity defense is overcome. Even then, there is almost never liability against a judge or prosecutor who intentionally violated the well established constitutional rights of a criminal defendant. Judges and prosecutors have absolute immunity from civil liability for their court related conduct. But liability can be imposed if a judge's actions are complete ultra vires (i.e. outside the scope of his or her authority), or if a prosecutor participates in the investigative phase of a criminal case in a manner indistinguishable from other law enforcement officers. The only case I can recall where civil liability was imposed on a judge was a case where he threw a child who was not a party to a custody case (a sibling of a child whose case was before the judge) in jail without any legal proceedings for a few days on grounds that did not constitute contempt of court. Judges and prosecutors are not immune to criminal charges related to their misconduct or to removal from office or disbarment for their misconduct, however. Long Answer There are some U.S. states where almost all acquitted defendant are entitled to some compensation (at least for "court costs"): Florida, Missouri, New Jersey, and North Carolina without limiting reimbursement by type of case or type of defendant. Thus, all defendants acquitted of criminal charges in these four states are potentially eligible to receive compensation for certain defense expenses. But these usually don't include attorney fees, just out of pocket court process related costs other than attorney fees. Washington State which reimburses attorney fees incurred defendant a self-defense case has arguably the broadest provision of for awarding attorney fees to acquitted defendants who hire their own counsel. Louisiana allows discretionary awards of attorney fees as a general matter, but in practice, it is closer to the states and the federal rule that allows for malicious prosecution actions in exceptional cases. In the vast majority of U.S. states, an acquitted defendant is not entitled to any compensation. In some U.S. states, such as North Carolina and Texas, a convicted defendant must often pay the cost of their public defendant as part of their court costs, a debt which is owed to the state which pays for public defenders. In theory, at least, this reflects the fact that an acquittal is not a finding that the defendant is innocent, only a finding that guilt was not proved beyond a reasonable doubt. Some states allow compensation for a "malicious prosecution" in a collateral lawsuit. For example, in federal criminal cases, the Hyde Amendment to the Equal Access to Justice Act, permits a criminal defendant to recover reasonable attorney's fees if (1) the defendant are acquitted, and (2) “if the position of the United States was vexatious, frivolous or in bad faith.” 18 U.S.C. § 3006A note. This is parallel to the standard for sanctions for a lawsuit lacking substantial justification in a civil case. A law review article from 2001 reviews how that provision has been applied. (Spoiler: acquitted defendants who are themselves particularly rare in the federal system with only nine successful cases from 1997 to 2001, rarely win Hyde Amendment claims in the entire United States. But it does happen now and then.) As survey of U.S. practice in these situations is found in a 2015 law review article (with relevant footnotes included below): This controversy is a national issue, affecting defendants prosecuted at both the federal and state levels.6 While the federal government has adopted a single, limited approach by which acquitted defendants may seek reimbursement,7 state approaches vary widely8 -from providing no reimbursement whatsoever9 to providing full reimbursement for legal expenses and attorney's fees in certain situations.10 For example, some states limit reimbursement to defendants acquitted of certain offenses,11 while other states limit reimbursement to public employees12 or to those who have been prosecuted in bad faith.13 Although there have been occasional scholarly efforts advocating compensation for acquitted criminal defendants,14 none reviews the existing state laws on reimbursement or how these laws are applied. At least twenty states provide some form of reimbursement to certain defendants.15 Civil-suit reimbursement is a separate but related issue. See, e.g., S.C. CODE ANN. § 15-37-10 (2013) (providing that the attorney of a prevailing party in a civil suit may recover attorney's fees and disbursements from the adverse party); S.D. CODIFED LAWS § 15-17-37 (2013) ("The prevailing party in a civil action or special proceeding may recover expenditures necessarily incurred in gathering and procuring evidence or bringing the matter to trial."). See generally Thomas D. Rowe, Jr., The Legal Theory of Attorney Fee Shifting: A Critical Overview, 1982 DuKE L.J. 651 (discussing several rationales for attorney fee shifting in civil litigation but refraining from expressing a preference for or against fee shifting). This Article focuses only on reimbursement for acquitted criminal defendants. The Hyde Amendment allows a prevailing party in a criminal case to recover attorney's fees and other expenses when the position of the United States was "vexatious, frivolous, or in bad faith." Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997) (now codified at 18 U.S.C. § 3006A (2012)). While states have taken various approaches to reimbursement, they have almost uniformly addressed the issue through legislation. See, e.g., Bd. of Cnty. Comm'rs v. Sawyer, 620 So. 2d 757, 758 (Fla. 1993) ("Cost provisions are a creature of statute and must be carefully construed. This Court has held for over a century that cost provisions against the State must be expressly authorized .... ); People v. Lavan, 218 N.W.2d 797, 798 (Mich. Ct. App. 1974) (stating that the trial court's award to acquitted defendant of his costs and attorney's fees violated the sovereign immunity doctrine because there was no statutory authorization for the award). But see Latimore v. Commonwealth, 633 N.E.2d 396, 398 (Mass. 1994) ("As a general rule, absent a statute or court rule authorizing the award of attorney's fees and costs, parties are responsible for their own costs of litigation." (emphasis added) (citing cases)), superseded by amended rule, MASS. R. CRIM. P. 15, as recognized in Commonwealth v. Gonsalves, 739 N.E.2d 1100, 1103 n.4 (Mass. 2000) (noting that Rule 15 was amended following Latimore in order to provide additional reimbursement). There are a few exceptions, however. For example, North Carolina provides for reimbursement through a constitutional provision, see N.C. CONST. art. I, § 23, and Massachusetts provides for reimbursement through court-made procedural rules, see MASS. R. CRIM. P. 15(d), 25(c)(2), 30(c). See, e.g., James J. Belanger, Frederick R. Petti & James Berchtold, Seeking Attorney's Fees in Criminal Cases, NEV. LAW., Mar. 2002, at 6, 32 ("Nevada currently has no mechanism for compensating a criminal defendant who has been forced to defend him or herself in a groundless action."). Not only do the remaining states provide no reimbursement to acquitted defendants, but a few of them partially charge acquitted indigent defendants for their legal representation. Six states currently have "recoupment" statutes that require acquitted indigent defendants to reimburse the state for a portion of their appointed defense counsel's fees if they are able. See 725 ILL. COMP. STAT. 5/113-3.1(a)-(b) (West 2014); IOWA CODE § 815.9 (2013); Ky. REV. STAT. ANN. § 31.120(1)(b) (West 2014); NEV. REV. STAT. § 178.3975(1)-(2) (2001); Id. § 178.398 (LexisNexis 2013); N.H. REV. STAT. ANN. § 604-A:9(J) (2014); N.D. CENT. CODE § 29-07-01.1(2) (2013). A seventh state, Michigan, does not allow for recoupment after the fact, but it does require all able defendants to contribute to the costs of their assigned defense. See MICH. CT. R. 6.005(C). The United States Supreme Court, in Fuller v. Oregon, 417 U.S. 40 (1974), upheld the constitutionality of recoupment statutes, finding that requiring repayment does not interfere with, or have a chilling effect on, the constitutional right to counsel. See id. at 51-53. The Court found significant, however, that the statute at issue in Fuller imposed reimbursement obligations only upon defendants who were actually able to pay. Id. Other states also have recoupment statutes, but those states recoup only from convicted defendants. See, e.g., OR. REV. STAT. § 161.665 (2011). The American Bar Association recommends that states go even further by recouping from defendants "only in instances where they have made fraudulent representations for purposes of being found eligible for counsel." ABA STANDARDS FOR CRIMINAL JUSTICE: PROVIDING DEFENSE SERVICES § 5-7.2 cmt, at 92-93 (3d ed. 1992). See, e.g., MD. CODE ANN., CTS. & JUD. PROC. § 12-302(c)(4)(vi) (LexisNexis 2014) ("If the State loses the appeal, the jurisdiction shall pay all the costs related to the appeal, including reasonable attorney's fees incurred by the defendant as a result of the appeal."); WASH. REV. CODE § 9A.16.110(2) (2014) (reimbursing defendants acquitted by reason of self-defense for "all reasonable costs, including loss of time, legal fees incurred, and other expenses involved in[the] defense"). See, e.g., CAL. PENAL CODE § 1447 (West 2011) (misdemeanors or infractions); Ky. REV. STAT. ANN. § 63.070 (West 2006) (impeachment proceedings); Wyo. STAT. ANN. § 7-1-103 (2013) (misdemeanors). See, e.g., N.J. STAT. ANN. § 18A: 16-6.1 (West 2014) (acts or omissions arising out of one's performance of official duties); N.Y. Pur. OFF. LAW § 19(2)(a) (McKinney 2008) (actions within the scope of one's public employment or duties). See ARIZ. REV. STAT. ANN. § 22-327(B) (2013); CAL. PENAL CODE § 1447 (West 2011); IDAHO CODE ANN. § 19-3923 (2004); MICH. CoMP. LAWS § ld (2014). See, e.g., Fotios (Fred) M. Burtzos, Should I Lose Just Because You Accuse?, COLO. LAW., Nov. 2008, at 101, 102, 104 ("A defendant who prevails, regardless of how that takes place, should not be mined or left significantly worse off for winning .... If the district attorney chooses to pursue someone in court and fails in that pursuit, the office of the district attorney should be required to try to return that person to the same financial position he or she was in before the prosecution began."); Omer Dekel, Should the Acquitted Recover Damages? The Right of an Acquitted Defendant to Receive Compensation for the Injury He Has Suffered, 47 CRIM. L. BULL. 474, 474 (2011) (contending that the "prosecution should bear the various costs of an acquitted defendant's trial process"); Luciana Echazu & Nuno Garoupa, Why Not Adopt a Loser-Pays-All Rule in Criminal Litigation?, 32 INT'L REV. L. & ECON. 233, 234 (2012) (considering an economic model for implementing "a loser-pays-all rule" in criminal cases, with a focus on the rule's effects on deterrence and legal error); Pamela S. Karlan, Fee Shifting in Criminal Cases, 71 CHI.-KENT L. REV. 583, 584, 600 (1995) (suggesting that fee shifting should be applied to certain classes of criminal cases, including cases in which defendants retained private counsel and were acquitted, but only if such defendants can "prove their actual innocence by a preponderance of the evidence"); Russell E. Lovell II, The Case for Reimbursing Court Costs and a Reasonable Attorney Fee to the Non-Indigent Defendant upon Acquittal, 49 NEB. L. REV. 515, 516-18 (1970) (advocating for reimbursement for non-indigent acquitted defendants using a tort-like remedy to make them whole again); Keith S. Rosenn, Compensating the Innocent Accused, 37 OHIO ST. L.J. 705, 706 (1976) (noting the devastatingly high costs of criminal defense work and arguing for the creation of a "a right to compensation for damages resulting from erroneous criminal charges"); cf Johan David Michels, Compensating Acquitted Defendants for Detention Before International Criminal Courts, 8 J. INT'L CRIM. JUST. 407, 408 (2010) (arguing that acquitted defendants "should have a right to compensation for the period spent indetention before an international criminal court"). But see David S. Jones, How Many Shields Are Enough?, COLO. LAW., Nov. 2008, at 101, 103 (responding to Burtzos' article, supra, and stating that "[tlo say we need new legislation allowing [acquitted defendants] recovery of attorney fees, costs, or other damages from the government ignores not only the current safeguards for the accused, but also their existing remedies"). The article continues noting that: Ten states reimburse at least some acquitted defendants for their attorney's fees. l00 While no state provides attorney's fees reimbursement to all acquitted defendants, every state allowing for reimbursement of public employees includes such fees in their reimbursement laws. The ten states are: Louisiana, Maryland, Massachusetts, Mississippi, New Jersey, New York, Pennsylvania, Utah, Virginia, and Washington. See LA. REV. STAT. ANN. § 13:5108.3(B)(1) (2014) (permitting "payment of legal fees and expenses for defense"); MD. CODE ANN., CTS. & JuD. PROC. § 12-302(c)(4)(vi) (LexisNexis 2014) (stating that for certain unsuccessful appeals by the State, "the jurisdiction shall pay all the costs related to the appeal, including reasonable attorney's fees incurred by the defendant as a result of the appeal"); MIss. CODE ANN. § 25-1-47(1) (2010) (authorizing municipalities "to investigate and provide legal counsel" to public employee defendants); N.J. STAT. ANN. § 18A: 12-20 (West 2014) (stating that, for boards of education members, "the board of education shall defray all costs of defending such action, including reasonable counsel fees and expenses"); id. § 18A:16-6.1 (stating that, for officers and employees of boards of education, "the board of education shall reimburse [them] for the cost of defending such proceeding, including reasonable counsel fees"); id. § 40A: 14-155 (West 2014) (providing that, for members of municipal police departments, "the municipality shall provide said member or officer with necessary means for the defense"); N.Y. PUB. OFF. LAW § 19(2)(a) (McKinney 2008) (I]t shall be the duty of the state to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of an employee in his or her defense of a criminal proceeding .... ); UTAH CODE ANN. § 52-6-201(1) (LexisNexis 2013) ("[Public] employee[s] shall be entitled to recover reasonable attorney fees and court costs necessarily incurred in the defense .... "); id. § 53A-6-503(2) ("[A]n educator is entitled to recover reasonable attorneys' fees and costs incurred in the educator's defense .... "); VA. CODE ANN. § 51.1-124.28 (2013) (stating that, for acquitted members of the Virginia Retirement System, "the Board may reimburse all or part of the cost of employing legal counsel"); WASH. REV. CODE ANN. § 9A.16.110(2) (West 2014) (providing that, for a defendant acquitted by reason of self-defense, "the state of Washington shall reimburse the defendant for all reasonable costs, including ... legal fees incurred ... in his or her defense"); PA. R.J.A. No. 1922(A) (A judge may be reimbursed for legal fees paid in the defense of a criminal action .... "); supra notes 84, 88-90 (quoting Massachusetts' four relevant court rules permitting reimbursement of a defendant's "reasonable attorney's fees" for certain unsuccessful appeals by the Commonwealth). Footnote On Compensation For Wrongful Convictions There is also no general right to reimbursement or compensation after a wrongful conviction which is set aside, apart from a § 1983 lawsuit against a law enforcement official who intentionally violated the well established constitutional rights of the wrongfully convicted person. Some states provide by statute or court rule for compensation of wrongfully convicted defendants whose convictions are set aside, but state law varies greatly on the standard for determining a right to compensation and on the amount of compensation that must be awarded. Often there is no right to compensation absent proof of actual factual innocence rather than a merely vacated conviction, and/or wrongdoing by a state actor. Many states provide no relief or compensation to a wrongfully convicted defendant who is later released other than the federal § 1983 action if it is available. |
Could I be held liable for simply sharing the idea for a crime? If I were to share an observation that I made using publicly available information/knowledge, and then somebody acted upon this to commit a crime, could I be held liable in any way? For example, let's say that I observe from a public vantage point some security guards at a building that fall asleep. I then post online in a public place the following: "I saw the security guards at Building 123 had fallen asleep, that place would be easy to rob!" If somebody who I did not know had intent to commit robbery then went and robbed the building, could I be held liable for providing the information about the sleeping security guards and 'planting the seed' for the crime? An alternate example would be for fraud. Let's say I publicised a potential fraud/scam method that I had thought of - with the intention of raising awareness and sharing the idea, could I be held liable if somebody actually committed fraud or scammed somebody using my idea? I am interested in the UK law on this. | By my understanding you should not be held criminallly liable. In order to be held guilty of a crime the prosecution needs to show the elements of the crime are met. One of these elements is "mens rea" - ie guilty mind/intent. According to your question you lacked intent to commit the crime, so the prosecution can't prove it, so their case must fail. Note that in some places there are "crimes" which are strict liability - I'm ignoring these abominations here, as they are generally a grey area between criminal and civil law where freedom is not at stake and do not seem in the spirit of your question. | The ultimate question is whether an obviously joke enterprise constitutes a real offering of securities or just performance art (a Ponzi scheme is one of many types of securities fraud). An unregistered offering of securities that does not fall within an exception is per se unlawful under federal law, but a security is generally defined as something offered with at least a prospect of making a potential profit for the investor which is not something that is true of this offering. (And if less than $1,000,000 are sold it might even be within an exemption to securities laws). State securities laws are divided into two categories. Most allow any offering of securities so long as proper disclosures are made and the offer is restricted to the right kind of investors. A minority impose substantive quality standards on offerings and this offering might violate the law in those states (although this still would present the question of whether a known money losing opportunity is really a security since there is no evidence of an intent to potentially make a profit from the investment). I do not believe that California imposes substantive quality of investment standards on public or private offerings of securities. Any deal whether or not it is a security is actionable if it is fraudulent. Normally an element of any claim for fraud is justified reliance upon a representation or upon a failure to disclose information. But, in this case, it is hard to see how anyone could say that they were justified in relying on any representation in making a purchase because they were told that they were being cheated. So, it is hard to see how a fraud claim would be sustained here either. I'm not sure that this cleanly falls into the category of gambling either, even though there is money at stake and the outcome isn't entirely certain. This doesn't really seem like a game of chance to me. Indeed, viewed as performance art, this scheme might even be entitled to First Amendment protection. Ultimately, I would not prioritize a civil or criminal action against this enterprise either from the perspective of a private lawyer representing an investor, or from the perspective of a government enforcement authority. And, while I would be a little nervous about running this enterprise, I wouldn't be quaking in my boots. In a civil lawsuit, any award would probably be minimal, and in a criminal case there would probably be an extremely generous plea offered. | No. Causing someone "pain and suffering" is not against the law; it is merely one kind of damages that can be awarded when someone has done something that is against the law. You may, for instance, endure pain and suffering from a car accident or shooting, in which case you could collect damages for your pain and suffering after proving that the other party committed the torts of negligence or battery, which are illegal. But if you were enduring pain and suffering from the last episode of Lost, you could not collect damages for your pain and suffering because it is not against the law to write a crappy finale. So in your case, cannot sue for pain and suffering based simply on the existence of a secret audio recording. North Carolina allows secret audio recordings, and it does not make exceptions for audio recordings that hurt someone's feelings. But to go beyond your explicit question, there still remains the possibility that you could pursue a legal action. If the other party used that recording in a way that violated the law, that might give rise to a tort that would support an award of damages for pain and suffering. If they publicly distributed a recording of themselves having sex with someone, that might constitute the tort of public disclosure of private facts. If they edited the recording to make it sound like someone had said something that they had not and then gave it to someone else, that might be grounds for a libel action. | The decoder is aware that someone might read the combination, open the lock, and go into the locked area ...Has the person committed a crime? england-and-wales Maybe not a criminal offence, but the decoder might be liable civilly under the Tort of Negligence, which is: a legal wrong that is suffered by someone at the hands of another who fails to take proper care to avoid what a reasonable person would regard as a foreseeable risk. In many cases there will be a contractual relationship (express or implied) between the parties involved, such as that of doctor and patient, employer and employee, bank and customer, and until relatively recently it was necessary for such a contractual relationship to exist in order for a claim for negligence to succeed. But the civil law relating to negligence has evolved and grown to deal with situations that arise between two or more parties even where no contract, written or implied, exists between them. Is it legal to obtain and publish that information, if no physical damage is done to the object when deriving the information? One scenario where this might be a criminal offence is if the information is protected with a Government Security Classification marking (i.e. spying). See Section 1, Official Secrets Act 1911: (1) If any person for any purpose prejudicial to the safety or interests of the State— (b) makes any sketch ... which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy; or (c) ... communicates to any other person any secret ... sketch ... which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy; he shall be guilty of felony Section 12 states that: The expression “sketch” includes any photograph or other mode of representing any place or thing; | I can’t speak for Indonesia but if you did this in Australia you would be a criminal. You either committed fraud or are an accessory to fraud. You would probably be considered an accessory at and after the fact which means you are subject to the same maximum penalty as if you had committed the fraud yourself - 10 years in jail. In addition, you are liable to repay the money taken, jointly and severally with your ‘friend’. However, if they can only find you, you cannot recover from your ‘friend’ as you were engaged in a joint criminal enterprise. Scams such as you describe are distressingly common and many people fall for them. As such, assuming the court accepted your story (because you might actually be the fraudster and have just made it up) you would be unlikely to get close to the full sentence and if you caught the judge on a good day, might even escape jail. If you are lucky, the jury might acquit, even though, on the facts, they shouldn’t - juries do what juries do. If you’re really lucky the police might decide not to prosecute. | Basically, it is up to the court. The relevant law is the Police and Criminal Evidence Act (PACE). You don't give much in the way of specifics, but it sounds like you confessed something to the police at the side of the road immediately after the accident, and now wish to dispute that confession. If you are taken to court and the police want to introduce your confession as evidence then you (through your lawyer) can ask the court to rule it out. You may be able to do so on a number of grounds. Was the confession properly recorded at the time? Were you treated in an oppressive manner, such that you felt you had to say what the police wanted to hear. Did you think you might get more favourable treatment if you said what the police wanted? For instance, did you think you might be allowed to go home once they were satisfied? Were you given a proper rest, or were you in a mental state that might cause you to say things without understanding the consequences (it sounds like this would be your main argument, but consider the others too). [Edit] If you needed medical treatment that would also be relevant. Were you properly cautioned (that speech beginning "You do not have to say anything...") before the police asked you questions. If you think you may be facing criminal charges then you should get yourself a lawyer sooner rather than later. A lawyer will know all about this and be able to navigate the relevant legal processes on your behalf. A bit of background: back in the 1970s the police frequently attributed incriminating statements to suspects when arrested, such as "Its a fair cop, guv", or "Who ratted on us?". The rules in PACE were made to stop such "verballing". | There is no law against a person creating and distributing such a poster, to the best of my knowledge. However such a poster pretty clearly implies that the person shown is guilty of a crime, or at least strongly suspected. If the store somehow made an error, pulling the image of a person who did not use the stolen card or there is some other error, the person pictured might well suffer a significant loss of reputation, and might sue for defamation. Damages could possibly be significant. Such suits have, I believe, happened when surveillance photos were posted but there later proved to have been an error. Mary might wish to double check how sure the store is that the photos are of the person who actually used the stolen card. | ...many [countries] forbid even the possession of software for "hacking" despite intentions That is not the case in the united-kingdom where accessing a computer, and possessing the tools to do it, are only offences if the activity is unauthorised. In fact, private entities and government departments are encouraged to carry out authorised penetration tests to identify vulnerabilities in their systems. [by] using my computer to break into my old brick laptop... This is perfectly legal as you have authorised access to the brick. The relevant offences are at s.1 to s.3A of the Computer Misuse Act 1990, in particular: s.1 - Unauthorised access to computer material. (1) A person is guilty of an offence if— (a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer, or to enable any such access to be secured; (b) the access he intends to secure, or to enable to be secured, is unauthorised; and (c) he knows at the time when he causes the computer to perform the function that that is the case [...] Sections 2, 3 and 3ZA (not reproduced here to save space) follow similar wording for unauthorised access relating to such things as commiting other offences, impairing a computer's functionality, or creating serious damage to health, infrastructure etc. s.3A - Making, supplying or obtaining articles for use in offence under section 1, 3 or 3ZA [...] (3) A person is guilty of an offence if he obtains any article— (a) intending to use it to commit, or to assist in the commission of, an offence under section 1, 3 or 3ZA, or [...] (4) In this section "article" includes any program or data held in electronic form. [...] So, hacking is not always unlawful - all it needs is the right permission from someone who is authorised to give it. Edited To Add This is also the case in canada (the subject of the OP's first linked article) where s.342.2 of the Criminal Code makes an exception for having a lawful excuse to possess "hacking tools": (1) Every person who, without lawful excuse, makes, possesses, sells, offers for sale, imports, obtains for use, distributes or makes available a device that is designed or adapted primarily to commit an offence under section 342.1 or 430, knowing that the device has been used or is intended to be used to commit such an offence, is (a) guilty of an indictable offence... (b) guilty of an offence punishable on summary conviction. [...] (4) In this section, device includes (a) a component of a device; and (b) a computer program within the meaning of subsection 342.1(2). |
Tenancy - definition of "The Property" and exceptions So I'm having a small issue with my landlord who has changed the lock on my garage, and says that "I never rented the garage". Wondering if anyone is able to confirm my understanding, the below clause "the property" does this give me access to all areas of the land and buildings, that exist within the boundaries (as defined by the local council) for my address. Thank you. Geographic: United Kingdom - England. Contract: Private Tenancy Clause in question: The Property situated at and being ... __ ... , together with the fixtures, fittings, furniture and effects therein and more particularly specified in the Inventory signed by the Tenant and all grounds. It shall include the right to use, in common with others, any shared rights of access, stairways, communal parts, paths and drives. Attached images of the property to help visualise the situation. (Red outline of what I believe is mine) | The term "The Property" does not intrinsically include or exclude a garage in this situation, so the answer has to come from other considerations. The lease is unclear, so the courts will need to look at other factors (such as the picture) to decide which interpretation is correct. Insofar as the landlord wrote the contract and could have included a clause explicitly excluding the garage, but didn't, the courts may rule in your favor under the doctrine contra proferentem. The physical arrangement does support the conclusion that the garage is part of The Property, in particular the access to the part constituting your yard. This assumes that there actually is access to your yard from the garage. Scouring the entire contract, there may be some subtle indication of how the garage is to be treated, such as a clause presupposing that you have access to the garage ("shall clean the garage..."). Then we come to the matter of the key. You say the landlord changed the key: does that mean you used to have a key that gave you access to the garage? If you used to have access to the garage, using a key provided by the landlord, that would support the conclusion that the garage was not a separate item governed by its own contract. If you have never had and were not given access to the garage (no key), that would support the contention that the garage is separate. Similar questions would be raised about the actual use of the garage: has the landlord been using it to store equipment? That would support his contention. Had you been using the garage previously and now months later the landlord wants to charge rent for the garage? That runs counter to his claim that you didn't rent the garage. In other words, since the wording does not answer the question, the full set of circumstances would have to considered. | There are several questions in the OP. The answers to all of them depend on the lease terms. If Person A wants out of the lease, is the only option to just try to negotiate a way out of their portion of the lease with the landlord, presumably by payment or other means? Yes, usually. Regardless of who is on the lease, Person A is on the lease. In order to terminate or break the lease, Person A will have to negotiate termination. Most residential leases provide for joint and several liability for lease obligations. That means the co-signed lease is like three non-exclusive leases, one each between landlord and Persons A, B, and C. So Person A has to find a way to break the Person A lease. Other than a breach by either party, that likely can only be done by negotiation with landlord. What rights do Person B and C have if Person A does stop paying? Absent some other relationship or understanding between them (that is, other than the lease,) likely none. Persons B and C are each fully responsible to pay all of the rent. In other words, as far as the landlord is concerned it does not matter who pays the rent as long as it gets paid. If it doesn't get paid, the landlord can evict and sue all 3 for non-payment of rent. But the lease likely does not discuss the relationships between A, B, and C - whether they pay pro rata by time in the unit, by space used, per capita, or whatever. Landlord doesn't care, and is not the counterparty to those decisions. That said, if there is a relationship between A, B, & C (for instance, if A & B had a contract describing who would pay what, and B entered into another contract with C,) that will determine their relative obligations. The landlord agrees to allow the lease to be amended for another person, person C to be on the lease. Person B negotiated this with the landlord without consent of person A. This may create liability between B to A, C to A, or B & C to A. It is even conceivable that it creates a liability from landlord to A, if A had a reasonable expectation that the lease would not be amended absent A's consent. And the amendment may not be enforceable against A. So, for instance, A may be able to kick C out of the unit and bar C from reentry. It will not effect A's liability to pay rent. | Is entry into the yard subject to 24 hour notice? Most likely it is. Note that section § 47-8-3 defines both dwelling unit and premises. The latter encompasses the term "appurtenances", which the Black's Law Dictionary defines, inter alia, as "an adjunct; an appendage; [...] garden [...]". At least in the context of fenced backyard, the fact that § 47-8-3 defines dwelling unit and premises separately does not exclude "premises" from the scope of § 47-8-15. That is because the fence is "a structure [...] or part of a structure [...] that is used as a home, residence". Indeed, the existence of the fence suggests that the backyard is intended for only that tenant's exclusive use/enjoyment, with the implications it has on tenant's privacy. | Joint tenancy (as opposed to tenancy in common) would accomplish all of these goals. Joint tenancy gives each individual the absolute right to occupy the property (each person owns the whole property). If one dies the property automatically passes to the other joint tenant(s), which is known legally as the right of survivorship. The child(ren) could never force the parent(s) (other joint tenants) to vacate the property; on the inverse, however, the parent(s) could not deny the child(ren) the ability to also possess the property during their lives, if they so chose to do this. I am assuming if the children ran into hard times and needed to live there, it wouldn't be a problem, but this should be specifically addressed with the client. For a valid joint tenancy to be created, you would simply need to have: a. Unity of title: whereby the joint tenants must hold title to the property under one document (i.e., the title deeds); b. Unity of time: the joint tenancy must start and end on the same date for all the joint tenants (end date being the death of the final joint tenant, who will/should have passed through will/trust to an heir the title interest; c. Unity of possession: all joint tenants have equal rights to possess the whole property (as mentioned above, the children could occupy); d. and finally, Unity of interest: joint tenants must have equal interests in the whole of the property. This is the simplest way to do this while meeting all objectives. | No they can't. The lease says the premises need to be cleaned without going into details how. You cleaned them yourself before moving out. If the landlord was not happy with that, they should have raised their concerns and discussed options. The security deposit that the landlord holds is only supposed to be used when something goes wrong. When something goes wrong, the landlord is supposed to talk, not to silently chop off a slice of the deposit as they please (unless the lease allows it, which it does not here). If the landlord refuses to refund, read the manual and go to small claims court to tell them where to get off. | Note that in the Duval case the landlord was prevented form approving the alterations only because there was also a provision in the leases of other tenants providing that any of them could require the landlord to enforce the agreements. In paragraph 41 of the judgement it is said that: Dr Duval accepts that, absent clause 3.19, the landlord and lessee would be free to agree a waiver of an absolute covenant or a licence to carry out a piece of work that would otherwise amount to a breach of its terms, but contends that in this case and as a result of the inclusion of clause 3.19 in each of the leases, any such waiver is precluded unless all of the other lessees agree to waive their rights. Put another way, by undertaking to enforce the covenants of the lease, the landlord has undertaken not to do the opposite, namely to license breaches of covenant. She argues that, were it otherwise, clause 3.19 would be ineffective. And this contention was eventually upheld. In paragraph 59 (the final paragraph) the court wrote: ... By contrast, clause 2.7 is directed to more fundamental works which go beyond routine alterations and improvements and are intrinsically such that they may be damaging to or destructive of the building. These are the kinds of work which it is entirely reasonable to suppose should not be carried out without the consent of all of the other lessees. In short, the landlord could have approved the work, even in the face of an absolute covenant, butr for the presence of the further covenant with other tenants to enforce the absolute covenant . Even then, the work can be done provided that all of the tenants approve. It would seem from this judgement that substituting the lawyer's statement "without consent of the landlord" for the older absolute form would permit such changes to be made if the landlord consents, and such consent apparently may not be unreasonably withheld. However, under the older absolute form, the consent of the other tenants might also be required, if there is a provision similar to clause 3.19 in the Duval case by which the landlord promises enforcement to other tenants. In the absence of a conflicting contract with others, a landlord and tenant can agree to modify a lease or tenancy agreement in any lawful way. In the Duval case there was such a conflicting contract. | 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. | Typically the landlord will have a preexisting clause in the lease that says the landlord may choose to amend the lease at a later date. While that may be in contracts, I don't see that holding up in court. You can't unilaterally amend contracts to add new terms without acceptance on part of the lessee. Any clause in the contract like that will require notification of the lessee of the change and a chance for the lessee to terminate the contract without recourse on part of the lessor. Generally this must be done in the same format as the original lease (written). Most jurisdictions don't allow for a verbal amendment to a written lease. So in a way, yes, it is legal for a landlord to require payment via a certain method (like a direct debit from a bank account). They cannot however change the payment terms unilaterally without notification and acceptance. They can use language such as sending the notification (via registered mail) and then saying that a failure to respond is acceptance (because you are, by actions, accepting the terms by continuing to live there). |
Benefits of "I do not recall..." Its often a joke that politicians say "I don't recall doing X" when being accused of something. In English saying I don't recall implies that you could be mistaken. But literally speaking, at any point anything you say could be incorrect because you're human and memory is imperfect. In the US, is specifically prefacing a statement with "To the best of my recollection ..." or "I don't recall..." offer any kind of benefit in terms of committing to the statement? | "I don't recall" will protect you from perjury only if it's true. Let me try an example. You're asked: "Did Mr. Blatter hand you an envelope full of cash?" You say: "Not to my recollection." Now the government introduces a videotape of you receiving and counting the money, and a thank-you note you wrote to Blatter saying "Thanks for the awesome bribe!" You can defend yourself from perjury charges if you can convince the finder of fact that you had forgotten all of those things...but it's not very likely, is it? "I don't recall" isn't a magic bullet. It's like any other statement: it's perjury unless it's true. | I don't believe your premise is necessarily true. As the Supreme Court has held, a defendant can be prosecuted for perjury after being convicted for another offense at trial: The conviction of Williams, at a former trial, for beating certain victims is not former or double jeopardy. Obviously perjury at a former trial is not the same offense as the substantive offense, under 18 U.S.C. § 242, of depriving a person of constitutional rights under color of law. . . . It would be no service to the administration of justice to enlarge the conception of former jeopardy to afford a defendant immunity from prosecution for perjury while giving testimony in his own defense. United States v. Williams, 341 U.S. 58, 62 (1951) (emphasis added). Now as a practical matter, trying a convicted person for perjury is most likely rare, since the prosecutor has already obtained a conviction for the underlying offense. Starting another prosecution for perjury might be excessive or unnecessary. But that doesn't mean it's categorically prohibited. Note also that perjury by the defendant can be considered by the judge to enhance the defendant's sentence. United States v. Dunnigan, 507 U.S. 87, 96 (1993). | That book provides advice on legal writing; it is not a source of rules for legal writing. Rather than repeatedly identifying themselves using their full name, parties customarily refer to themselves in the third person, e.g., "The defendant refused to waive his Sixth Amendment right to a speedy trial." In practice, though, pro se litigants regularly refer to themselves in the first person, and there is no formal consequence for this. | Even before the police have any idea who did it, Bob is guilty of whatever wrong he did. However, if you want this to be a legal question and not a moral one, we should assume that you really want to know "Can Bob be convicted of murder, if the evidence proves that he did do it?". Yes, he can. See Morris v. State, 214 S.W.3d 159. The critical question was whether the defendant understood the charges (he did) and whether he could assist in his defense (he could). The desideratum of being able to assist in your own defense only goes so far. On the other hand, maybe no, per Wilson v. US. A government expert witness "testified that appellant had permanent retrograde amnesia and would not be able to aid in his own defense in terms of remembering any of the acts alleged in the indictment". The crucial difference seems to be whether one just has loss of memory, vs. loss of memory connected with some other mental disorder. [Addendum] Per Dusky v. United States 362 U.S. 402, competence to stand trial depends on whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him. I am not aware of any exceptions e.g. whether this is not the case with strict liability crimes like statutory rape, and since it is generally held that "competency" is a requirement mandated by the due process clause, I don't think there could be an exception. | 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". | I'm no expert, but I had assumed this clause was present in case of the following situation. Joe is arrested for a robbery of a London bank. Joe says nothing under questioning. At trial, Joe's defense is that at the time of the robbery, he was in Sheffield drinking beer with his brother. On the basis of common sense, a jury could think: "Surely if Joe were really innocent, he would have told the police of his alibi at the time he was questioned, and saved himself a lot of trouble. Since he didn't do that, maybe a more likely explanation is that he wasn't actually in Sheffield, but that sometime between arrest and trial, he came up with the idea of faking an alibi in Sheffield, and convinced people to testify falsely to that effect. Yes, that does seem more plausible. So we are not going to give much credence to Joe's supposed alibi." So it really would be the case that not mentioning the alibi during questioning would harm Joe's defense at trial. The warning, then, is intended to keep Joe from doing this inadvertently. If Joe's alibi is genuine, but out of a misguided desire to exercise his right to remain silent, he doesn't mention it during questioning, he may accidentally increase his chances of being wrongly convicted. Everybody has an interest in avoiding this. | In general, signing means you cannot deny the accuracy of the information in the future In general, there is no prohibition on knowingly stating falsehoods under the law. That is, it is not illegal to lie. Exceptions include when you are under penalty of perjury (e.g. on oath in court), when you are making certain declarations to government (e.g. your tax return), you are acting dishonestly to cause gain or harm others (e.g. fraud), etc. However, by signing the document, you may create a legal fact that is independent of the real-world facts. For example, if you sign a receipt for $1,000 then you create a legal presumption that you received $1,000 even if there was actually only $500 in the envelope. You would need some pretty spectacular evidence to overcome that presumption. Now, I don’t know what you are signing that has factual errors in it but, if they are material errors, don’t. Just don’t. | The "right to be forgotten" is not absolute. It is subject (Art. 17) to certain conditions, in particular the absence of "overriding legitimate grounds for the processing" (1(c)). 3(b) explicitly exempts data controllers from the erasure where needed "for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject". I can even imagine a former employee first claiming his right to be forgotten, and then - a week after getting the confirmation - claiming his right to receive a resumee (a right in existense in Germany), which a company would not be able to fulfill as it hasnt got any data to base the resumee on. If the "right to receive a resumee" indeed exists in Germany and employers need to comply with it, that would be perfectly legitimate ground to only partially fulfil the request to be forgotten — forget everything but the resume. Is it against the law to document these cases? If you document "On 27 February 2020 John Smith requested to be forgotten so we deleted or anonymised all his records", you will effectively NOT forget him. If you actually had to forget him, it will therefore be against the law to document your forgetting that way. |
Do trans women count as women for the purposes of this new California law? This article on CNN states the following: That's according to a new law, enacted Sunday, which requires publicly traded firms in the state to place at least one woman on their board of directors by the end of 2019 — or face a penalty. It also requires companies with five directors to add two women by the end of 2021, and companies with six or more directors to add at least three more women by the end of the same year. Say a company with five directors were to add two trans women to their board, would this company face a penalty? If so, must the individual have completed their transition or can a pre-transition trans-women be considered a woman on the board of directors? If a pre-transition trans-women qualifies then it appears to me that this law could be circumvented by having men claim to be pre-transition trans-women. The natural issue with this being that men could easily be doing this in bad faith which would require the state government to determine if this is being done in bad faith or not. In the article it is stated that similar laws exist in Europe, has this issue arisen there? Thanks | The new California law 301.3(f)(1) says that “Female” means an individual who self-identifies her gender as a woman, without regard to the individual’s designated sex at birth. | See this working paper by Silvia Ferreri for an excellent write-up of this issue. The key point is that because each linguistic version of legislation is equally authentic, none can be taken as the authentic version. The court then resolves this by applying two principles: comparing the linguistic versions and giving deference to legislative intent. This is necessarily a case-by-case analysis. The paper calls attention to Case C‑445/09 arising from the Netherlands, where 9 different linguistic versions are compared and shows that the straightforward Dutch reading of the legislation in question isn't compatible with the other linguistic versions or legislative intent. In paragraph 25, the decision also contains a concise summary of the general principle of interpreting laws in multiple languages: According to settled case-law, the need for uniform application and, accordingly, for uniform interpretation of an EU measure makes it impossible to consider one version of the text in isolation, but requires that it be interpreted on the basis of both the real intention of its author and the aim which the latter seeks to achieve, in the light, in particular, of the versions in all languages (see, inter alia, Case 29/69 Stauder [1969] ECR 419, paragraph 3; Joined Cases C‑261/08 and C‑348/08 Zurita García and Choque Cabrera [2009] ECR I‑10143, paragraph 54; and Case C‑473/08 Eulitz [2010] ECR I‑0000, paragraph 22). | If the Kenya legislature passes such a law, they can impose such a requirement on Kenyans who want to create such social media groups. Note that this is a license from the Kenyan government, not a copyright or trademark license. In effect, it is a tax on running a social media group, along with various regulations. I have no idea if this bill is at all likely to pass. If it does pass, it might be hard to enforce, as it would probably require cooperation from Facebook and other social media platforms, and the companies which run those platforms are not located in Kenya, and might not cooperate. | No, it’s not legal, § 7 Ⅰ | 1 AGG (“employee” includes applicants, § 6 Ⅰ 2 AGG), unless the the job requires a certain sex, § 8 Ⅰ AGG, example: porn actor. If you’re a good lawyer, you can argue that a women’s shelter hires females only, but only as far as the specific position includes interaction with patrons (i. e. janitor, or accountant must still be open to everyone). Advertising unwarranted gender-discriminatory positions is already illegal, § 11 AGG. There are some people who abuse their legal rights and apply for such a position, include a discreet statement about their sex, and after receiving a rejection file a lawsuit for damages, § 15 AGG, usually 3 months worth of wage. | 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. | In the general case, it seems unlikely, based on the wording (which is convoluted). In certain cases, if the president of Russia posts "My name is Vladimir Putin", that post is personal data. On the other hand, you might, based on my writing, conclude that I am from the US, and you might even conclude that I'm in Washington state, but that doesn't distinguish me from 7.5 million others, so on those grounds that is not personal data. Eventually, though, you might identify me specifically from other things that I may have said on SE. The definition depends on two parts. First, personal data is "information relating to an identified or identifiable natural person". Any "information" provided by a natural person is "related to" that person (as is any "information" that is about such a person). The second part defines "identifiable natural person", that is, who is an "identifiable person"? Every person can, in principle, be identified by reference to some label or description of fact about them, so every person is an identifiable person, under this definition. This means that every piece of text that refers to an individual (not even text which can identify the person) is "personal data". Obviously, any individual can be uniquely identified by some collection of identifiers; the problem is that the wording of the law does not explicitly say "using that supposed personal data". If I mention that I have a relative named Knudt, that would technically be personal data: I've given information that relates to a person, though you have no idea (and could not possibly figure out) who that person is. Another term that the regulation defines and uses in a few places is "pseudonymization", which is defined as the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person The point of interest here is that this says that "personal data" which cannot be attributed to an individual is, nevertheless, still personal data. I think the most important part of the regulation is art. 6, which defines lawfulness of processing, especially para 4., which allows consideration to be given to safeguards such as pseudonymization. | I know of no laws at the federal or state level that explicitly extend their protection to poly relationships. However, any law that purports to outlaw a polyamorous relationship among consenting adults should be looked at very skeptically, as it would likely be found unconstitutional under Lawrence v. Texas, 539 U.S. 558 (2003): The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. While that case dealt with homosexual relationships, it seems unlikely that the courts would conclude that heterosexual couples, throuples, etc., are entitled to less protection. Adultery laws exist in many jurisdictions, and many of them have survived constitutional challenges. But as far as I know, all those challenges relied on legal principles and precedents -- in particular, Bowers v. Hardwick, 478 U.S. 186 (1986) -- that Lawrence explicitly overruled. In this regard, I would not expect anyone in a polyamorous relationship to encourter meaningful legal jeopardy as a result of that relationship, assuming that the relationship(s) were otherwise legal and out in the open. If A is unaware of her spouse's relationship with C, for instance, that could cause problems in a divorce proceeding. I don't know of any legal options specifically designed for this sort of arrangement, but the more interconnected and interdependent these groups are, the more likely it becomes that some sort of written agreement would become worthwhile -- not as a response to legal danger arising from the polyamorous nature of the relationship, just to address the fact that someone is eventually going to fall short, potentially causing problems for the whole group. There are many lawyers who specialize in LGBT issues, and I'd imagine that some of them would be able to provide more detailed advice about how to deal with this type of situation. | US federal law prohibits gender discrimination in some spheres, including employment (42 USC 2000e-2), but it does not prohibit it in public accommodations (42 USC 2000a): (a) Equal access 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. To address my earlier comment, discounts based on age or gender are not covered by this law, but discounts based on race or religion would be. The Virginia Human Rights Act is essentially a statement of policy regarding the enforcement of antidiscrimination prohibitions created by other laws. There does not seem to be any other Virginia law creating a prohibition on gender discrimination in public accommodations. |
GDPR Compliance: Do all Cookies require Opt-In? Given a Web Site which uses cookies for the following: User Preferences Bookmarked Articles Cookie Preferences what explicit permissions would be required from the user? Here I anticipate the cookies would be set from JavaScript, so no identification of the user would be required. I know that cookies are sent to the server. | Not all cookies require consent. The current answers are in WP 29 Opinion 04/2012 on Cookie Consent Exemption - 00879/12/EN WP 194. This WP29 Opinion is based upon Directive 2002/58/EC ("ePrivacy Directive"), and not GDPR, which is current law for this matter until other guidelines are adopted pursuant to GDPR or until the awaited "ePrivacy Regulation" is finally adopted. 1. General rules This Opinion states 2 critera for cookie consent exemption: (...) exempted from the requirement of informed consent, if they satisfy one of the following criteria: CRITERION A: the cookie is used “for the sole purpose of carrying out the transmission of a communication over an electronic communications network”. CRITERION B: the cookie is “strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service”. 2. User preferences The first two types of cookies would be, as I understand, for the purpose of remembering user preference in how it interacts with the Website. Such types of cookies can fall under criterion B, under certain conditions. Section 3.6 "UI customization cookies" explains the conditions that such type of cookies have to meet so that the consent exemption can apply, in particular: User interface customization cookies are used to store a user’s preference regarding a service across web pages and not linked to other persistent identifiers such as a username. They are only set if the user has explicitly requested the service to remember a certain piece of information, for example, by clicking on a button or ticking a box. They may be session cookies or have a lifespan counted in weeks or months, depending on their purpose. (...) These customization functionalities are thus explicitly enabled by the user of an information society service (e.g. by clicking on button or ticking a box) although in the absence of additional information the intention of the user could not be interpreted as a preference to remember that choice for longer than a browser session (or no more than a few additional hours). As such only session (or short term) cookies storing such information are exempted (...). The addition of additional information in a prominent location (e.g. “uses cookies” written next to the flag) would constitute sufficient information for valid consent to remember the user’s preference for a longer duration, negating the requirement to apply an exemption in this case If you need to request consent, then WP 29 Working Document 02/2013 providing guidance on obtaining consent for cookies - 1676/13/EN WP 208 contains guidance. 3. Cookie Preference cookie The last type of cookie you mention, being the Cookie Preference cookie, would be, as I understand, only used as a purely technical mean to store and retrieve (transmit) the user's explicit choices preferences, and would most probably fall clearly under criterion A and/or B. | No, you're not required to sign any contracts. But since you're offering a service, you do have to manage some compliance tasks. You are a data controller under the UK GDPR, regardless of whether you have a company. This brings with it various compliance requirements. For example, you MUST post a privacy notice in accordance with Art 13 GDPR that explains how you process user's information. You must sign data processing agreements with your data processors, such as your server providers. And you should reconsider transfers of data to the US, since such transfers are illegal or at least quite questionable in the wake of the 2020 Schrems II ruling. You now have prospective users that are asking you for an Art 28 data processing agreement (DPA). These are likely other organizations that are data controllers of their own. For them to use your browser extension, they either need to find a legal basis that allows them to share their user's/employee's data with you (controller to controller transfer), or they need you to act as their data processor (controller to processor transfer). The third alternative is not to use your plugin at all. Of these, a C2P arrangement is most convenient for these other orgs, but involves a bit of paperwork to set up first. If you want to act as their processor, this doesn't mean you'd have to create a company (though a corporation might be very desirable as a liability shield). Being a processor means that you're contractually bound to only use the personal data as instructed by the controller, and not for your own purposes. This restricts what you can do, and has some special compliance requirements. For example, you cannot engage new subprocessors without your controller's approval. However, processor status can also be convenient for you because you're not responsible for interacting with the controller's data subjects, e.g. you're not responsible for handling their data subject access requests. Note that it's possible to simultaneously be a controller for some users, and a processor for others. E.g. Google Docs is offered directly to users as a B2C product so that Google is a controller, but also as a B2B product as Google Workspace, where Google acts as a data processor. Personally, I'd rather not sign any contracts unless I'm doing it as a business, and adequately compensated for providing this service. GDPR is only one compliance aspect out of many, making it unwise to offer a SaaS product as a hobby. For example, copying other people's web content has copyright implications… A potential alternative for some of the organizations asking you might be to make it possible for them to self-host your backend, so that they are not required to rely on you as a data processor. If you have no plans to commercialize your software, making it Open Source could be a solution. But you're in no way required to do that if you don't want to. | When someone registers at your website, they enter a contract with you. You need an email address, because you need to be able to contact them (at least for the password recovery). You probably want to verify the email address, otherwise you might not be able to contact them in the future. So the email verification is required as part of the performance of the contract. But also anti-spam laws might require you to use confirmed opt-in before you are allowed to send automatic emails. So at least Article 6(1)(b) (performance of a contract) would apply, but for the confirmed opt-in also Art. 6(1)(c) (compliance with a legal obligation) might apply. That means sending the verification mail is lawful. However you probably want to write this down in the privacy policy as Greendrake commented. Note that there must not be an option for users to agree with the privacy policy, it is just a statement which you make. | Update: On 1 October 2019 the CJEU ruled in Case C‑673/17 (Verbraucherzentrale Bundesverband vs. Planet49 GmbH) that cookies require explicit consent regardless of personal data is being processed. (Where the exceptions don't apply). (paragraphs 68-70 of the ruling). That does probably invalidate my answer below. However, because I have based my answer on information provided by the Dutch DPA, I will not update my answer until that DPA has responded on this. Basically, your thoughts are all correct. The Dutch DPA (Autoriteit Persoonsgegevens) has written a manual how to use Google Analytics compliant with the GDPR without having to ask for consent. But unfortunately it is not available in English. Based on Art. 28 GDPR, you need a Data Processing Amendment with google. Open the settings menu from Google Analytics Go to Admin Choose Account Settings Scroll down to the data processing amendment Open it Accept it Click Save Anonymize your visitors IP Address. A full IP address is considered personal data. It is possible to remove the last octet before it is processed by google. Add { ‘anonymize_ip’: true } to the tracking code on your website Create a screenshot of the change, so you can prove later at which date you made this change. Disable Data Sharing with google. By default Google uses the data for 5 different purposes. Each of them would require consent from the visitor of your website. So you need to switch that off. Open the settings menu from Google Analytics Go to Admin Choose Account Settings Scroll down to the data sharing settings Uncheck all checkboxes (Google producs & services, Benchmarking, Technical support, Account specialists and access for sales experts) Click Save Disable Data Collection for Advertising. This has to be disabled at a different location, for the same reason as the previous step. Open the settings menu from Google Analytics Choose Property settings Choose Tracking info Choose Data collection Turn off these two options (remarketing and advertising reporting) Click Save Disable the User-ID feature. This is probably turned off by default. But it is important to keep it turned off. So you need to verify this. Open the settings menu from Google Analytics Choose Property settings Choose Trackinginfo Choose User-ID Disable it Click Save Even though you don't need consent to use Google Analytics, you still need to inform your users, for example by adding a few lines to your privacy policy explaining: You are using Google Analytics cookies. You have a data processing agreement with google. You have enabled IP anonymization/masking. You have disabled data sharing. You are not using any other google services in combination with Google Analytics. The Autoriteit Persoonsgegevens still recommends to offer an opt-out for Google Analytics, but it would not be required. As the Autoriteit Persoonsgegevens is a DPA as defined in chapter 6 of the GDPR, you have to assume their advice really is GDPR complaint. In the past they also had performed other investigations to the privacy policies of google. | First of all, although the GDPR is stated to apply to any site which processes the data of any person who is in the EU, it is not clear how a site not located in the EU, does not business in the EU, and does not primarily target EU residents as its audience can be required to comply with the GDPR. To the best of my knowledge, no such case has yet been brought, much less decided. There has also been some debate on whether an IP address constitutes Personal Data under the GDPR, and if it always does so, or only under particular conditions. The European Court of Justice (ECJ) held that (under the predecessor Directive 95/46/EC) that a dynamic IP address was personal data. But in that case the web site was run by the German Federal Government, which surely has wider scope for getting info from a German ISP than a small private US web activist does. There is not yet any case law that I know of on the applicability of the GDPR to IP addresses in any case at all similar to the one in the question. Joe would in my view be wise to at least learn that logs are being kept, and post a disclosure of this on the site. Whether Joe needs to do more than that is less than clear at this time. | Not Allowed Under the GDPR The suggested method does not seem to comply with the GDPR, and would not be lawful for a Data Controller that is subject to the GDPR. Specific Provisions Let's consider some specific provisions of the GDPR: Article 4 Article 4 paragraph (11) states: "consent" of the data subject means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her; If the choice is "obscure" then it is not clear, and legal consent has not been given. Article 7 Article 7 paragraph 3 reads: The data subject shall have the right to withdraw his or her consent at any time. The withdrawal of consent shall not affect the lawfulness of processing based on consent before its withdrawal. Prior to giving consent, the data subject shall be informed thereof. It shall be as easy to withdraw as to give consent. It does not appear in the situation described that the data subject has been clearly informed that consent is being given. Recital 42 Recital 42 reads in relevant part: In accordance with Council Directive 93/13/EEC a declaration of consent pre-formulated by the controller should be provided in an intelligible and easily accessible form, using clear and plain language and it should not contain unfair terms. ... Consent should not be regarded as freely given if the data subject has no genuine or free choice or is unable to refuse or withdraw consent without detriment. The specified means do not seem to comply with R42 Recital 32 Recital 32 reads: Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement to the processing of personal data relating to him or her, such as by a written statement, including by electronic means, or an oral statement. This could include ticking a box when visiting an internet website, choosing technical settings for information society services or another statement or conduct which clearly indicates in this context the data subject’s acceptance of the proposed processing of his or her personal data. Silence, pre-ticked boxes or inactivity should not therefore constitute consent. ... If the data subject’s consent is to be given following a request by electronic means, the request must be clear, concise and not unnecessarily disruptive to the use of the service for which it is provided. The format in the question seems to rely on inactivity as a way of giving consent, and is surely not clear. | Corrections to your statements or quotations Your quotation "To fall within the remit of the GDPR, the processing has to be part of an "enterprise" (...)" is not from the GDPR, and is an erroneous statement. Also, the threshold of 250 employees you refer to, is only relevant with regards to the record-keeping obligations of Article 30. GDPR provisions relevant to your question The GDPR applies to individuals or students in accordance with the material scope of the GDPR, which is treated in Article 2 (2) c) where GDPR states that "This Regulation does not apply to the processing of personal data: (...) by a natural person in the course of a purely personal or household activity;" The Recital 18 of the GDPR gives some insight as to what would be a purely personal or household activity as follows: (18) This Regulation does not apply to the processing of personal data by a natural person in the course of a purely personal or household activity and thus with no connection to a professional or commercial activity. Personal or household activities could include correspondence and the holding of addresses, or social networking and online activity undertaken within the context of such activities. However, this Regulation applies to controllers or processors which provide the means for processing personal data for such personal or household activities. Interpretation To my knowledge, there are no specific guidelines regarding this matter to date from WP29. Those may be adopted in the future, or some requirements may already exist in local laws in one of the EU countries or from documentation available from local data protection authorities. If you are based in the EU, you could check this with your local data protection authority. There is, however, case law from the European Court of Justice as pointed out by Free Radical, interpreting the scope of the "personal use exception" in Directive 95/46/EC (which provisions are similar to the GDPR in this matter). If your hobby is not limited to your personal circle (yourself and the persons in your household), and thus if you plan to share the results of your data collection and processing with third parties (possibly teachers, other fellow students, or anybody else if you publish the results of your work) resulting from your "hobby" activity, you certainly would not fall in this exception to the scope. Case C-101/01 is an example of publication on the Internet made by an individual claiming to use its "freedom of expression to create internet pages in the course of a non-profit-making or leisure activity". The court clarified that: exception must (...) be interpreted as relating only to activities which are carried out in the course of private or family life of individuals, which is clearly not the case with the processing of personal data consisting in publication on the internet so that those data are made accessible to an indefinite number of people Another, less optimistic interpretation from the examples given by the GDPR recitals, could derive from the spirit in which purely personal or household activity are to be understood. These examples actually refer to limited amounts of data and which are related to the individual itself (his own address book, his social networking activity, etc.), and creating limited risks relevant to the person herself and its contacts. In this view, there is a risk that a "hobby" in which you collect data about thousands of persons unrelated to you, could be considered as not being really purely personal. Actually, an interpretation of case law C-212/13 from the European Court of Justice also mentioned by Free Radical could support this reasoning. In this case, a video recording of people was stored from cameras installed by an individual on his family home for its own security purposes, but the cameras were also monitoring a public space. The court ruled that: To the extent that video surveillance such as that at issue in the main proceedings covers, even partially, a public space and is accordingly directed outwards from the private setting of the person processing the data in that manner, it cannot be regarded as an activity which is a purely ‘personal or household’ activity (...) Extending this reasoning to your question, a "hobby" consisting of collecting "huge list of names, emails, zipcodes" unrelated to you could be regarded as "directed outwards from the private setting (...)". Conclusion As a hobbyist, or a student, if you can work on fake computer generated data and achieve the same results in your personal learning purposes you should definitely consider doing so. | This depends on the context – GDPR rarely restricts the use of specific kinds of data (see Art 9) but instead regulates the processing of this data, and the purposes for which it is processed. Personal data is any information relating to an identifiable person (Art 4(1)). So to show that some information is not personal data, you must show either that it doesn't relate to the identifiable person, or that it's not possible to identify the person. Whether a person is identifiable depends on the means of identification that are reasonably likely to be used, taking into account the cost and effort of these means (Recital 26). This recital also mentions that singling out a person is a kind of identification. If you have lots of birthdays so that there are no unique birthdays, or if the birthdays are stored without contextual information that would allow identification, this can indicate that it's not personal data. Some examples to illustrate my views: Scenario 1: you are collecting statistical data in a shopping mall and are collecting birthdays from passer-bys, without any additional information. This information is anonymous and not personal data, since you have no reasonable means to identify the persons. Scenario 2: in an office, there's a publicly visible calendar on the wall with the birthdays of all staff members. However, the calendar doesn't say whose birthday it is. This information is likely personal data, since it's reasonably possible to infer the correct person based on contextual information. At least HR would also have the birthday for all staff members on file, so that the company clearly has the means to identify anyone. (This doesn't mean such a public calendar is illegal, just that there must be a legal basis.) It is more difficult to determine whether information also relates to an identifiable person, i.e. whether this information is about that person. This depends not just on what the information is, but how the information is used. AFAIK there has yet to be EU-wide guidance by the EDBP, but the ICO has listed some hints. I think that a birthday of an identifiable person will almost always relate to that person. |
Hospital refuses to allow me to talk to their billing department - are there any laws/regulations that I can use to help them change their minds? Background here: Hospital billed me for services that I explicitly refused. Are there any legal ramifications for hospital?. In short, my wife visited a hospital and was grossly mis-billed. In total we were charged about $2000 for services/procedures that either didn't happen or were explicitly refused. As an example, a doctor said that he would do an abdominal ultrasound and then, if that did not give him clear answers, would follow up with a transvaginal ultrasound. The transvaginal ultrasound was not necessary and did not happen (and in case you're not familiar, it is not the sort of thing that a doctor does without you noticing). However, there was almost $1000 on my bill for a transvaginal ultrasound (as well as a smaller charge for the abdominal ultrasound that did happen). I've been talking to the hospital to get these charges off my bill but I don't feel like it has been going well. In particular, I would now like to go through the entire bill with someone from their billing department to make sure that they haven't misbilled me for other services that I haven't noticed. All the billing information is in hospital codes, so while I've made sense of some of it, I haven't made sense of all of it. I came into their billing department to discuss this and discovered that their billing team does not talk to customers under any circumstances. Instead only their "Customer Care" team does. They don't know anything about billing codes (I was told that if I wanted to know what I was being billed for I should "google" it) and can't make any changes to my bill - only flag it for a dispute. I'm very unhappy with this arrangement. I would very much like to talk to someone from the department that screwed up my bill this badly. I would very much like to talk to someone who can actually walk me through my bill. I plan on calling them next week, expressing my unhappiness with the situation, and do everything I can to get a billing person on the phone. I suspect that what they are doing is perfectly legal, but I'm certainly no expert, so I figured I would come here to ask. 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? | 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. | Federal and state laws do protect a variety of different types of personal information in particular contexts, but there isn't really any information that is necessarily personal and protected from disclosure in all contexts. For instance, the Health Insurance Portability and Accountability Act generally protects a person's health records from unnecessary disclosure, and the Federal Education Rights and Privacy Act generally protects a student's educational records from unneccessary disclosure. But that doesn't mean that all of an American's health information is protected, or that all of the information that a hospital holds about an American is protected. The hospital can typically disclose the fact that it is treating a specific person, and if that person provides his health records to a government employer, that employer may be required to produce them in response to a request under the Ohio Public Records Act. But Facebook isn't a health-care provider, so it isn't required to protect medical records, and it isn't a school, so it isn't required to protect educational records. At the federal level, I don't know of any privacy laws that require it to maintain the privacy of its users' information, though it may be required to do so under state laws, or as a contractual matter because of its privacy policy. But that doesn't mean it has nothing to worry about. Like any business in the United States, it is prohibited from engaging in deceptive trade practices, so it can't make broad promises to protect users' privacy when it has no intention of honoring them. That's why it ended up paying $5 billion for privacy violations in the past and remains under court orders requiring it to better protect users' data. Further, Facebook has users all over the world, so it is required to comply with the international privacy regulations like GDPR that can be far more stringent. | As a short answer, guidance from the Department of Health and Human Services has clarified that HIPAA does not require hospitals to provide separate rooms. As a longer answer, HIPAA is very deeply misunderstood. It does not prohibit "leaking" patient information; it prohibits unreasonable and unpermitted disclosures of protected health information (PHI). Among the PHI disclosures that are permitted are uses that are for the purpose of delivering medical treatment. Of course, the covered entity (in this case, the hospital) is required to take reasonable measures to safeguard that information. One of the areas that trips people up is figuring out exactly what it is we're safeguarding that information from. A lot people assume that the HIPAA imposes an absolute rule against disclosure of PHI, but it's more accurate to say that HIPAA requires reasonable safeguards against the unauthorized use of PHI. With that standard in mind, it becomes easier to see why you don't need to universally separate patients. In all likelihood, neither you nor your roommate is likely to use the other's PHI in any way not allowed under HIPAA. We can look at your question as proof: You've disclosed a person's health condition and medical history, but you were a reasonable person and omitted the man's name, birth date, record number, and anything else that might allow us to link that information to an individual. Hospitals -- and the law -- recognize that most people have no interest in a random strangers' medical information, let alone plans to do something nefarious with it. Because there isn't much of a threat there, the hospital isn't required to take exhaustive measures to protect the information. But when you put all that information for every patient for every doctor for every department for every hospital into a single database, the information starts getting a lot more valuable. That's why there are much tighter regulations surrounding protection of electronic records. Of course, the roommate situation might be different if the hospital had a patient that they somehow knew had a history of identity theft or even a history of disclosing PHI. I've never heard of this happening, but I'd imagine that that knowledge would require the hospital to either segregate that patient or otherwise take extra care to avoid disclosing any information about a roommate. | Your description of the facts is vague enough that we can't offer an informed judgment, but to remedy this, I will paraphrase your account of the facts (you can decide whether this is what you were trying to say). I was sitting outside of the Sprint store today waiting for my step daughter to come out. While waiting, two police officers walked up to my car and asked me to turn off my vehicle and come inside. When I voluntarily went inside, the store staff said that they called the police because they had had some sort of problems with people applying for service and absconding with the phone to resell on the black market, and they thought that was part of some such criminal plan. Because of that, they refused to give her a phone or service contract. But then they also told us to never come back, threatening arrest for trespassing. I have never been in that store before. Were my rights violated? No, neither by the police nor by the manager. The police, or the store manager, can legally request you to come in for a conversation: what matters most is whether you were forced to come in against your will. By your report, you were not, so your rights were not violated. The police are irrelevant to the remainder of the question. What remains is whether your rights were violated because the manager told you to go away and never come back under pain of prosecution. The store is private property, meaning that the owner has wide latitude to grant or deny permission to enter. If they hate pink hair and your hair is pink, they can legally "ban" you. If they suspect you of involvement in a criminal activity, that can most certainly legally ban you. That does not mean that it was a righteous or justified decision on their part, or a good business choice, but it is their legal right. So, no, your rights were not violated. | http://www.healthinfoprivacybc.ca/confidentiality/when-can-and-cant-they-tell-others is a pretty good summary. Different rules apply to private practices than public clinics and hospitals. I will assume that the clinic on campus is private. This is a summary of the summary about who your information can be shared with: Health care professionals can share information within your "circle of care". Specifically, they are allowed to assume your consent to this but you can explicitly withdraw that consent. This would include doctors within the same practice. Admin staff can access your information for administrative purposes. Anyone you have authorised them to share it with e.g. relatives, friends etc. The Medical Services Plan for billing and admin If you are unable to drive If there is suspected of child abuse If you are wounded by a gun or a knife If you are a danger to others For your specific questions: I asked about it and they said it's confidential, but confidential to the clinic. Correct, unless you explicitly revoke this. the counselling department can share information with the doctors This is tricker, these people may be either within your "circle of care" or they may be part of the same organisation. Notwithstanding, councillors are not doctors and are governed by the everyday laws related to confidentiality i.e. information given in confidence is confidential and everything else isn't. If you are told the limits of the confidentiality i.e. they tell the doctor, then those are the limits unless you renegotiate them. he would know I only have one kidney? Well you said "the counselling department can share information with the doctors" and this would require the information going the other way i.e. the doctor sharing with the councillor. Even if this type of sharing was OK in general (and I'm not sure it is, see above); the information shared should only be what is required for the councillor to do their job - the number of kidneys you have is probably irrelevant to this. What laws apply to situations like this where confidential information in one entity (medical office) decides to share it without the consent of the patients to another entity (the counselling dept.)? Well, we are not sure there are 2 entities: legally there may only be 1 - the university. Anyway, the laws are the Personal Information Protection Act and common law (Smith v. Jones, [1999] 1 SCR 455) | There are regulations governing occupational safety, whereby e.g. an employer can be fined for forcing employees to work in a literally toxic environment, for instance breathing chlorine gas. You could file a complaint with a state or federal agency (OSHA). You would need to hire a labor lawyer to get advice about your specific circumstance, to see if there is indeed a provision that covers what you describe, though I doubt it would. OSHA's blurb on disease don't obviously cover your situation (they describe situations that govern healthcare workers in intimate contact with infectious materials). However, certain diseases such as TB or Ebola cause a general health quarantine to be imposed, so if a worker comes in with such a disease, action would be taken by the health department. This does not cover sniffles, and probably not pertussis (but that's a local decision). There are also regulations pertaining to disabled employees, whereby an employee who is disabled by having a severely compromised immune system can be entitled to reasonable accommodation, for example allowed to work in a closed room away from others (if the job is not a receptionist job). That entitlement only applies to the employee, and is controlled by objective health danger (requires a doctor's note), and not the comfort level of the employee. | Since they have allready given you a form to fill that you have sent back with the original receipts, I will assume that the major preconditions have been fulfilled (mainly that they have asked you to come in writing and have not exclude reimbursement). This a case of civil law based on §670 BGB. Since they have not fullfilled their obligation, you must send them a reminder (Mahnung) in the form of a registered letter, requiring them to do so within a reasonable timeframe (like 10 working days after receipt of the letter). look for standard letters on this topic (Mahnungen) The letter should be descriptive in nature (i.e. a Judge, after reading a copy of the letter, will understand the whole situation). Nowadays such a letter should be sent through your local Amsgericht, so that they can certify that your copy of the letter was included in the original letter. If they don't react to this, then you must charge them. This is a basic description of the needed method. Look up the details of the process and/or for someone to assist you. Section 670 Reimbursement of expenses If the mandatary, for the purpose of performing the mandate, incurs expenses that he may consider to be necessary in the circumstances, then the mandator is obliged to make reimbursement. Sources §670 - German Civil Code (BGB) Wer trägt die Reisekosten für das Vorstellungsgespräch? - ingenieur.de | Yes You asked for work to be done in the expectation you would have to pay for it and they did the work - that’s a legally binding contract. It appears that you did not agree on a price and possibly not on a time for making payment. If that is so, you agreed to pay a reasonable price in a reasonable time. They have issued an invoice stating what and when they believe is reasonable. You dispute parts of that invoice. That’s fine, people are allowed to have disputes. You have paid the undisputed amount I hope? Notwithstanding, your negotiations with the other party can go back and forth and things can be put on and taken off the table. But you don’t have a deal until you have a deal. At any time, either party can walk away and assert their rights. Or make a take it or leave it offer, commonly called playing hardball. Since it is undisputed that you owe them something, they can refer the debt to “collections (be that internal or an external debt collector). You should pay the undisputed amount immediately and you can continue to dispute the remainder. They will make a deal, initiate legal action, or let the matter die. |
What is the difference between copyright infringment, and intellectual property violation? What is the difference between copyright infringment and intellectual property violation? | Copyright infringement is just one of several ways to violate a person's intellectual property rights. Others include patent infringement, trademark infringement, and misappropriation of trade secrets. | 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. | The GPL does not explicitly specify a time within which the source code must be provided, which probably means a "reasonable time" is allowed. What is "reasonable" would eventually be evaluated by a court, if the matter ever got that far. But please note that only the copyright holder (or the holder's authorized agent) can sue for infringement. The license does not give other people a right to sue for infringement, and I doubt that any license could grant such a right. One could inform the copyright holder who could sue, but the holder need not sue, and undertaking such a suit would involve expense, time, and effort. Whether the offer to provide the source constitutes a binding agreement is not clear, and may well vary in different jurisdictions. The question does not state any particular jurisdiction. | When you license your IP (like a song) you can specify the terms and conditions of its use by the licensee, including revenue shares from any derived work. However, if, as your comment suggests, you grant an "informal" license, and later decide that you want to "firm things up" with a license having different terms, that's a matter you would have to either negotiate or litigate with your counterparty. If you want a common reference point for negotiation of this sort of license, you might have a look at compulsory license terms. | Almost none. It is a legacy of the era when copyright protection was a function of year of publication. Including it is appropriate, however, to meet the formal requirements for a legal notice of claim of copyright which has some procedural implications if it is omitted. | "There is a free mp3 app from a friend who asked me to publish it in my account, which I didnt check properly." You violated Google's policies by uploading an App that you did not have full control over and/or was not developed by you. As well, the App possibly violated Google's policies in terms of violating licensing for code libraries that were included, had code included in the App that was malicious or violated privacy, or was otherwise not compliant with Google's terms. Google's policies are legal contracts which you agree to when you open an account. You reserve the right to end the contract by deleting your account. They reserve the right to end the contract when their policies are not followed. See https://play.google.com/about/developer-content-policy/ "This sudden termination comes as a shock and Google's decision seem very rude to me." You may think it is rude, but Google is fully within its rights to terminate your account because you violated their terms. It matters little that you did not get the previous warning emails from Google; you are responsible for monitoring the account email for policy updates. If you’ve reviewed the policy and feel this termination may have been in error, please reach out to our policy support team. Try that; you might attempt to explain that it was honest error on your side. | There are several possibilities The effects are not the same Minecraft has them under a different licence from the owner Minecraft is committing copyright violation And the most likely: they belong to Minecraft and someone has illegally uploaded them to the site | The copyright holder has the rights in whatever he created. If you have created something new based on his idea, the law will generally not be interested; but if your expression is recognisably a copy with a few changes, he can prevent publication or demand royalties. If you are uncertain which side of the line you fall, you should ask a lawyer (or, more cheaply, write to the author and ask if he objects). |
"Reasonable doubt" and conditional probabilities Let A be the event that the accused is guilty and B is the event that evidence / testimonies are presented against the accused. In the U.S., does "reasonble doubt" refers to a juror's subjective belief about the conditional probability P(A|B)? ("P" here refers to probability.) Or "reasonable doubt" refers to the unconditional probability P(A)? Further clarification: with Bayes's rule: P(A|B) = P(A and B) / P(B) = P(B|A)*P(A) / P(B). In the U.S., which of the probabilities above (if any) do the prosecutor care about? What about the defense? Edit for extra clarity: I'm not saying how a juror actually thinks or should think about "reasonable doubt." I'm asking if reasonable doubt can be cast in this light. | The phrase "reasonable doubt" was formed hundreds of years ago, and does not hold any mathematical or probabilistic meaning. It is for each individual juror to decide for themselves what constitutes "reasonable doubt", and whether the evidence presented to them has crossed that threshold. EDIT for extra clarity: As stated above, the definition of "reasonable doubt" is intentionally vague*, and left to be decided by each juror for themselves on a case by case basis; as such there is no single rule that can be applied to jurors (also note barring accepting a bribe, a juror cannot be legally sanctioned for their conduct as a juror, nor their vote, regardless of the evidence before them). So one juror might judge by P(A|B), another might judge by the defendant's appearance, another might judge by the majority of their peers (so that they can go to a ball game that evening, such as in the film 12 Angry Men), another might disagree with the law (see: jury nullification) and so vote not guilty on that basis, and another might bow to social pressure and convict despite overwhelming evidence that the defendant is not guilty (for example, at the end of To Kill A Mockingbird). A prosecutor cares about convincing the entire jury that the defendant is guilty(outside of Oregon and Louisiana, where only 10/12 vote is needed to convict, so the prosecutor only cares convincing 10 jurors). The defense only cares about convincing a single juror (or three in LA or OR), although more can be useful to prevent a mistrial. The defense (in theory) should not care whether or not the defendant is guilty. *The origin of reasonable doubt was in Britain, where certain jurors would refuse to convict, despite any evidence, due to religious prohibitions of "Judge not, less ye be judged". | The jury ultimately decides if a person is guilty or not. Jury nullification is when the person is clearly guilty or innocent, but for some odd reason the jury (who knows the person is guilty/innocent) gives the "wrong verdict" An example of this in the UK was when a guy was being charged with a spy crime years after his crime happened (I cant remember the case), the jury essentially thought that so much time has passed that it was silly to convict him, so gave a non guilty verdict. There are cases for and against jury nullification. In my personal belief I think in certain cases, such as if edward snowden would be charged, I would find him non guilty as a matter of what is right to ky conscience, regardless of the fact that he clearly did something illegal | Truth is a defense to defamation Bob must prove the truth of his statement if Rob sues - there is a reverse onus for this defense. Because this is a civil trial the burden is balance of probabilities. Provided Bob can prove Rob stole his bike he will win. A conviction for doing so is pretty good (but not necessarily conclusive) evidence. Absent that, Bob would need other evidence. Of course, if Bob has said that Rob was convicted of stealing the bike, he’s going to lose. | The answer to this question will be almost entirely informed by the why that you've asked us not to consider. If the prosecutor or judge is a witness, the defendant should be able to call them, but that also means they would have to withdraw from the case under either Rule 3.7 or Canon 3. If the defendant believes the prosecution is tainted by some improper motive, the defendant may raise that objection under Crim. R. 12, but he must do so pretrial. I can't think of any circumstances where the defendant could question the judge or prosecutor in the jury's presence. | No If she has probable cause, yes. The question is whether "a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts [Bob is a thief] are probably true"? Its likely that the answer to this question is yes. None No Charlotte listens to Alice, Charlotte asks Bob questions which Bob may or may not answer. Charlotte can ask Bob to produce the receipt, Bob doesn't have to. Charlotte can ask to search Bob, Bob doesn't have to consent. If Bob tries to leave, if Charlotte has reasonable suspicion the Bob has committed a crime (which she could certainly justify) she may detain him temporarily without arrest. If Charlotte has probable cause to believe that Bob has committed a crime (which she could probably justify) then she can arrest him. | I have not found a case directly on point, but there is a case in the right neighborhood. In Flordia v. Carter 364 So. 2d 1249, Carter was charged with perjury for making a false statement under oath. He recanted his testimony in a letter to the defense attorney the next day. Subsequently he was charged with perjury: the trial judge dismissed the case based on his having recanted (which is a defense to perjury). The judge said (quoted in the appeal below and citing a relevant precedent Brannen v. Florida 114 So. 429) It matters not whether Carter knew his original testimony was false or whether he was merely mistaken. "The law encourages the correction of erroneous and even intentionally false statements on the part of a witness, and perjury will not be predicated upon such statements when the witness, before the submission of the case, fully corrects his testimony." The lower appeals court rejected the trial court's dismissal, saying Recantation is a defense to an allegation of perjury only where there is an acknowledgement of the falsity of the original sworn statement, a voluntary retraction of that statement, and a new statement which discloses the true facts. It is not a viable defense where the perjured testimony has substantially affected the proceeding or it has become manifest that such falsity has been or will be exposed. Otherwise, one could rest on his lie, allowing it to substantially affect a proceeding, and never retract unless the falsity had been exposed. This would provide no inducement or encouragement to tell the truth. That court basically felt it was based on the threat of being discovered, and felt that a particular state statute had taken away the recantation defense, so they reinstated the charge. The appeal to the Florida Supreme Court, Carter v. Florida 384 So. 2d 1255 basically declared that the appeals court was wrong about the statute (they officially held that recantation is a defense to perjury). They concluded that Carter gained nothing by recanting (that was a distinguishing feature in a precedent that the lower court favored). The dissent in this decision opined that It may be that the false deposition testimony by Dr. Carter was inadvertent and without criminal intent.... These, however, are factual issues and should be resolved by a jury rather than by the trial court on a motion to dismiss. What unifies all opinions on the matter is that a false statement made under oath must be recanted. The reason why Carter was not convicted was that he (possibly) was unaware that his testimony was false and he did recant when he became aware of the facts. | Double jeopardy applies to the same facts, not to the same sorts of crimes. Say if you are tried and acquitted of murder of person A, that won't later save you from being tried for murder of person B. Same applies to your question: if the documents/testimony on the second occasion are different from the first occasion, there is no protection. If they are the same, there is. | Yes to everything. Justified use of force is assault / battery / homicide (as appropriate). "Assault" means that a person has placed someone in fear of their life or person. "Battery" means that a person has physically struck someone in some way. "Homicide" means that a person has killed another human. None of these definitions speak to the legality of the action. You are right about the example being assault. Justified use of force is de facto legal. Assault, battery, and homicide are normally crimes, but the justifications for using force carve out exceptions. If the circumstances fit within the justification, the person using the justified force has not committed a crime. (Generally speaking, the person targeted by said force has.) If the situation you describe fits within the laws of justification within the state (and to be fair, it probably does), then your co-worker is right about the actions being perfectly legal. Police are picky about what they investigate, and prosecutors are picky about what they charge. If it's 100% clear from the evidence that you were justified in your use of force, prosecutors will (typically) not press charges, and so police will not bother with an arrest or further investigation. It's really not worth the time and effort for a case that has 0% chance of producing a conviction. However, if the police and prosecutors have some doubts (e.g., they think your force was excessive and therefor not justified), they can still press charges. Being charged with a crime does not mean you have committed a crime. And vice-versa. Justification is an affirmative defense against charges of assault / battery / homicide. An affirmative defense does not mean "I confess to the crime but have a really good excuse." It means that you admit to certain facts that would normally be beneficial to the prosecution, but claim additional facts that either mitigate or make you innocent of the given charges. In the case of justified force, you are admitting to the action of assault, but claiming innocence. When making your defense, your theory of defense must be internally consistent. You cannot admit to a fact when convenient and deny it when it is inconvenient. "I was in Santa Fe at the time, and anyway, Sam did it," is an example of a self-consistent theory that gives multiple reasons to acquit. That's good, because the jury only needs one reason that gives them pause, and now you've got two chances at that. "I was in Santa Fe at the time, and anyway, he was threatening my life," is not internally consistent. If you argue justification, you explicitly declaim any alibi. This situation is more dangerous, because your defense rests entirely on the credibility of the justification. But if you argue an alibi, you implicitly declaim any justification. So building your defense on things the prosecution can disprove is much worse than taking an affirmative defense of justification. |
Government employer obligations for refusal to hire based on allegiations The Kavanaugh hearings have brought up an interesting point. What are the legal obligations of a government employer, when it comes to handling allegations against a prospective employee? I would like to use a different example. Instead of a Supreme Court nomination, suppose that a person is applying to a teaching position in a public school, and someone claims that she had inappropriate contact with a minor. What kind of due process is the school required to abide by in approving or rejecting the candidate? Is a mere allegation enough to warrant refusal to hire, or is there legal precedent against that? | Yes, there is legal precedent against this that would only apply to a government employee. First, let's discuss the private sector. In this case, you are a private employee that comes to your place of work and accuses you of "stealing the cookies from the cookie jar" which is a serious criminal offense. They wish to talk and your boss is in the room. You plead the 5th, but your boss says you're fired if you don't talk to the cops. This is legal because you still have the right to refuse to talk, you just lose your job. A private employer has the right to free association, and wants nothing to do with cookie thieves, alleged or actual. However, in the government employ, your boss is an agent of the government. This same situation is different because the government pays the boss and the agent... so in essence the government is saying talk or be fired. This is unconstitutional as the government cannot retalitate against you for your refusal to talk. Generally, in order to talk to you, the investigator would need either a signed Garrity Statement or a Signed Kalkines Statement. The former is a statement saying that they are investigating a wrong doing but you cannot lose your job if you refuse to speak to the investigators, where as Kalkines says you must talk but you are granted immunity for your part in the wrong doing, so long as you make truthful statements. For more on this, check this legal blog. There is also the matter that a false accusation (and let me be clear... this is academic, I'm not saying the accusation in the real life topic is false, nor am I saying that the defense is false... we're merely discussing a possibility) is made to your employer and they do not offer the job on the basis of the accusation alone, this is grounds for defamation actions... and in certain jurisdictions, it's criminal defamation, so there could be jail time. It's interesting you mentioned teachers, because this happens alot. Kids do know that there are certain things that get a teacher fired quickly, so teachers do get the occasional false accusation of sexual assault (I know one teacher who has had multiple accusations over the course of her career). One of the few good things I can say about the Teachers Union is they cover the legal defense of accused teachers. The accusations do get the teacher removed from the class for sometime, but they don't lose their jobs over this matter. It's followed up but the accusation doesn't immediately lead to the teacher getting fired.. | No - at least not in South Carolina, depending on your intent. SECTION 7-25-200. Unlawful inducement to file for or withdraw from candidacy for election. (A) It is unlawful to offer or accept, or attempt to offer or accept, either directly or indirectly, money, a loan of money, or any other thing of value which includes, but is not limited to, employment or the promise of employment to induce a person to file or withdraw as a candidate for any state or federal elected office. The FEC, apparently does not see this a problem federally. Conduct that Does Not Constitute Federal Election Fraud Various types of conduct that may adversely affect the election of a federal candidate may not constitute a federal election crime, despite what in many instances might be their reprehensible character. For example, a federal election crime does not normally involve irregularities relating to: (1)distributing inaccurate campaign literature, (2) campaigning too close to the polls, (3) engaging in activities to influence an opponent’s withdrawal from an election, | It is possible: McCleary v. Washington is an example. Ground zero was the 2012 ruling McCleary v. State, 173 Wn.2d 477, which then took 6 years of further scuffling to resolve. That opinion is full of useful legal tidbits, but the argument boils down to a constitutional obligation (art. IX) for the state to provide an education. If your state has no constitutional provision mandating that the state provide an education, you may be out of luck. I should point out, though, that the issue reduced to funding and not content / method: that the state used to use a "local pots of gold" model rather that a "big pot of gold" model, and even then came up short of the funds required to do what they were supposed to do. The "argument" was, simply, "We can't can't agree on an affordable means of implementing this system", and subject matter or instructional methods were not debated. A lawsuit will be completely ineffective over a dispute about best methods. Since at least in Washington, school policy is set by an elected set of school officials, the only solution is to pick better individuals next time. Recall is not an option, except in the case of misfeasance or malfeasance – improper acts, not errors of judgment. But I would not totally discount the skills of a clever attorney to make the case that so-and-so is a violation of a constitutional duty, depending on what your constitution demands w.r.t. education. The constitutional provisions of Washington vs. California are significant. In Washington, It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex. and the Supreme court found that The State has not complied with its article IX, section 1 duty to make ample provision for the education of all children in Washington. Most of the education article is about the funding obligation, which is the legal point on which the Legislature was held in contempt. The California Constitution imposes a weaker duty on the legislature: A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement. The vast majority of the constitutional provisions in California are about electing and paying administrators, so there is little basis for arguing that a California school district has not encouraged such improvements. There is no "quality" requirement, just a desideratum to encourage improvement. | Information about a defendant’s character or past misdeeds are not generally admissible during a court proceeding. It can be brought in to rebut testimony. If the defendant takes the stand and asserts that they never discriminated against anyone due to their nation of origin, then evidence they they have done so becomes relevant. | 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). | To what degree are such emails admissible in court as evidence, and what weight do they carry? Your own statement, when offered by you as evidence, is hearsay, unless it comes within an exception to that rule. Recorded recollection might be one of the better exceptions. There is also a chance that you could get it in as a business record of the company if you were using a company email account and the company stores all of its email communications. The documents also sometimes come in to provide fair context for a conversation with a party-opponent's statements that are admissible. It appears that Canada does not follow the modern British rule (which repealed the hearsay rule in civil cases in 1995), which if it were available, would come in without any difficulty at all. But, Canada does have what it calls a "principled exception" (which is somewhat broader than the parallel U.S. residual hearsay exception) that is generally available if the document can be shown to be reliable and there is an unavailable witness, or if there proponent of the document can show that it is reliable and necessary for other reasons. Even if the document itself is not admissible since it is hearsay, you could still testify as to what the boss said from your own recollection, and then have your lawyer ask you why you are sure that this is what was said. You would answer that you contemporaneously wrote a confirming letter to the boss spelling out what was said and you reviewed it to refresh your recollection before testifying at the hearing or trial. These kinds of confirming letters are used quite frequently in business and employment litigation. And, in my experience, these statements tend to be surprisingly effective and persuasive, because, while they do not foreclose the possibility that the person writing it was lying or inaccurate in the confirming email account, it does rule out the possibility that you forgot exactly what was said, and you provided the boss with an opportunity to dispute you which the boss didn't feel an obligation to correct. If one party has a coherent account in confirming emails of what was said, and the other party is trying to remember what happened a year or two earlier without notes from the witness stand, the person with the coherent, documented account is almost always going to come across as more credible unless the other side can show that your confirming emails are not infrequently gross misrepresentations of what really occurred. (I've also dealt with witnesses like that now and then.) | In general, you do not have civil recourse against the government for (lawful) legal process that you are the victim of. "Counterclaim" would only be applicable when A sues B, and B makes a counterclaim against A – the police don't sue you, they arrest you, and the prosecutor prosecutes you (or decides not to). If the police beat you up, you could sue them for violating your rights, under what is known as Section 1983. Given the scenario you describe, this comes closest to involving false arrest, meaning that there was no probable cause for arrest. Otherwise, the police have immunity for their actions. But if there is a legal arrest warrant, there is probable cause (existence of probable cause is the standard for issuing an arrest warrant), so no claim against the police will succeed. I am leaving out the anomalous concept of an unlawful arrest warrant, where a judge issued an arrest warrant but there is in fact no probable cause. Such a case would be covered by Section 1983, where either the judge or the swearing officer (or both) violated your rights. | It's sort of a toss-up. EEOC says that "Questions about an applicant's religious affiliation or beliefs (unless the religion is a bona fide occupational qualification (BFOQ)), are generally viewed as non job-related and problematic under federal law". They also state that (excluding positions with religious exemptions, like hiring a Catholic priest) "Other employers should avoid questions about an applicant's religious affiliation, such as place of worship, days of worship, and religious holidays and should not ask for references from religious leaders, e.g., minister, rabbi, priest, imam, or pastor". This reflects the standards by which they will make a finding of forbidden religious discrimination. The actual statutory law, 42 USC 2000e-2 does not prohibit asking questions about religion, instead it says (a) It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. 29 CFR Part 38 Subpart A does not specifically prohibit asking questions. Although many labor-law web sites and HR advice firms state that asking questions is illegal, DoL and EEOC do not specifically declare categorical illegality. The fact of asking some question might constitute partial evidence for a finding of religious discrimination. So no court has held that it is flatly illegal for an employer to ask a question about religion. The case of EEOC v. Abercrombie & Fitch, which did find discrimination, gives you the required elements for a finding of religious discrimination. There is simply no "don't ask" cause of action. Asking might be evidence to support a claim of disparate treatment based on religion. The rule is: "An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions". I have found no cases where EEOC found illegal discrimination based exclusively on the fact of asking questions about religion. |
Is AdBlocker legal? Can't we get a legal action about AdBlocker as web masters? AdBlock is one of the most popular ad blockers worldwide with more than 60 million users on Chrome, Safari, Firefox, Edge as well as Android. We have calculate that one of our site loss almost $10,000 each year because of AdBlocker. Simply what they do is, they remove the advertisement which are on our website when a user who use Adblocker visits. So as a third party, they change the website content just before display it to the user. Is it legal? Can't we get a legal action about AdBlocker as web masters? | Can't we get a legal action about AdBlocker as web masters? No. I assume that by "web master" you mean a server admin who contracts with entities which are seeking to advertise their goods and services. An advertiser pays the server to transmit (or send(), in terms of a socket API) certain content to whoever submits a GET or POST request ("the client"). The scope of the contract ends there, and the end consumer or client is not a party to that contract. Any point beyond the server admin's routers, it is perfectly lawful for end users to run some program on the client side where the purpose of that program is to (1) parse any packets received in the client socket, (2) filter out some of it, (3) and forward the rest to a browser. Bringing legal action against AdBlocker would be somewhat akin to suing producers of TV remote controls under the allegation that the mute button functionality blocks advertisement content. | No it’s not illegal It’s called retailing: https://youtu.be/ywSkKkuGQ2A https://youtu.be/k8OreiHU91Y https://youtu.be/XpR6y1sNArU You are allowed to advertise the products you sell. Even if you don’t make them. You can even use their trademarks to identify them - that’s what trademarks are for. | If a website's TOS has restrictions against unauthorized copying and use of anything in the site, that applies to the TOS, too. Chances are, no one will do a Google search on the exact text of their TOS to find if someone has copied it; but who knows? If they paid a legal service to draft a very specific and original TOS, they may be concerned with others copying it illegally. Beyond that, their TOS is a legal document. Your TOS is a legal document. Your users sign a contract when they click and accept. If you copy and paste a TOS, and don't understand exactly what is in it, and you and your users are bound by that TOS, what kind of legal risks do you open yourself up to? A simple Google search yields https://formswift.com/terms-of-service among others. Or try one of the many services like LegalZoom. | You have the right to request anything you want, but there is a very limited set of things that you can have a legal expectation of them doing. The service provider has no obligation to block a user. You can likewise request a report, and from a pirate site I would expect no response. There is no legal requirement that a pirate site block an offending user after a certain number of offenses. There is no direct way to compel a pirate site to ban a user. Indirectly you might accomplish that end if you take legal action against the site, which causes them to ban a user in order to protect themselves If a DMCA request was not "proper" (the correct legal form) they will not perform a takedown, and may not inform you that they won't. Make sure your takedown request is legally correct and actually delivered to the correct person. If they still ignore your request, they will have lost the "safe harbor" provisions, and you can theoretically sue them. Since the pirate site presumably only hosts a link to elsewhere, their making public such a link is not itself copyright infringement, so you need to be going after the ISPs who manage the actual host sites. The pirate site might still be a contributor to infringement, along MGM v. Grokster lines. A standard defense against infringement would be "We had no idea", and ignoring DMCA takedown notices is clear proof that they did have an idea. That's basically what DMCA takedown is about: saying what it takes to use the "We had no idea" defense. | Modern websites use large amounts of Javascript scripts. These are small programs that are run on your machine. By accessing the website you implicitly give permission for this to occur. (Aside: I'm not aware of any case law on exactly what this implicit authorisation covers. CFAA case law on "authorised access" suggests that this is going to be complicated if it ever becomes an issue). Javascript is supposed to be run within a limited framework which allows the website to control the rendering of the website and track how you use it. So they can track your mouse clicks when the browser window has "focus", but not clicks you make when accessing something else. Like all software, the Javascript programs and the web browser "interpreter" that runs them can contain bugs. Javascript has to work on lots of browsers, so its not surprising when things don't always work properly. Coming on to the CFAA, criminal penalties only apply to intentional access. 5 (c) intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage and loss. So if a website runs Javascript on your computer with the intention of crashing it, that is a crime. However if the crash is inadvertent due to ordinary programming errors then it isn't. In this case it is almost certainly innocent. To prove otherwise you would need to study the code they are sending in detail to see if it is doing something strange and unreasonable. | The theoretical is that the domain slutsofinstagram.com does dilute or harm Instagram's mark because of the use of "Instagram" in the domain and because of the unwanted association of the parody story; that's the theory and "grounds" that Instagram would use in their lawsuit. Instagram would have to prove their theory of dilution or harm to the jury or judge, and convince either that the harm is not theoretical but real and financially damaging in order to win their case. The owners of slutsofinstagram.com would have to defend themselves and argue that they are not damaging Instagram's mark and their parody is a parody and is protected as such. Any actual court outcome is also theoretical. If Instagram won their case, one of the legal remedies could be the court ordering the owner of slutsofinstagram.com to transfer ownership of the domain to Instagram so they could simply park the domain and effectively take down the parody story. Or, the owner of slutsofinstagram.com could prevail because they argued the fact - and the court agreed - that the domain name and creative contents of the site is a parody and is protected speech and doesn't dilute Instagram's mark because any reasonable person could see that the site is a parody and not related to Instagram. In the US, a possible example of a parody not diluting a mark is L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26 (1st Cir. 1987), where Imitation may be the highest form of flattery, but plaintiff-appellee L.L. Bean, Inc., was neither flattered nor amused when High Society magazine published a prurient parody of Bean's famous catalog. The reality is that Instagram can contest the use of slutsofinstagram.com because they can; they have deep pockets and can take the owner of slutsofinstagram.com to court, like any other trademark holder can contest another's trademark. The owner of slutsofinstagram.com would have to defend themselves in court, or settle - possibly for monetary damages or the ownership of the domain or use of slutsofinstagram - and not go to court. It's possible that the SLAPP (Strategic lawsuit against public participation - Wikipedia) California law could help the plaintiff defend themselves against a deep pocket lawsuit designed to kill the parody site - as the suit would be "intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition" - which could happen because Instagram is part of Facebook and is incorporated in California. But basically, in the legal world, one man's litigation bully is another man's trademark protection hero. This concerns the US. As always, your mileage may vary due to jurisdiction and national/international laws and agreements concerning trademarks. | Content posted to the web is usually openly accessible to all (unless protected by a password, paywall, or similar restriction). But that does not mean it is freely copyable by all. Such content is protected by copyright in just the same way as if it had been published in a book of essays by various contributors. Unless the copyright holders (who are likely to be the original authors, but might not be) give permission, or an exception to copyright applies, copying such content would be clear and obvious copyright infringement, and any copyright holder could sue for damages. Permission could be given by publishing the content under a permissive license, such as a CC-BY-SA license, or any of many other available permissive licenses. Or a would-be reuser could find the copyright holders and ask for permission. If the holder cannot be found or identified, or does not respond, then no permission has been granted. In the US the main exception to copyright is fair use. See this answer and other threads with the fair-use tag here for more on fair use. Since the question seems to contemplate using the whole of the posted content, since it might well damage any potential market for that content, and since the use does not seem to be "transformative", nor used for criticism or comment, a finding of fair use for this situation seems unlikely. But Fair use findings are very much fact-driven, and the exact facts do matter. Thus I cannot be at all sure whether a court would find this toi be fair use or not. In other countries there are a variety of exceptions to copyright, and I have not come close to reviewing them all. But none of the ones I know of seem to apply to the situation described in the question. Many are narrower than the US concept of fair use. I fear that without permission, copying this content would be infringement. However, it would not be infringement to create a site that includes a link to the existing content, and a summary or description of that content, along with new content, including comments on the old, with brief quotes to indicate what is being commented on. | Is blocking certain people while allowing everybody else to view some content discrimination Yes. and violate anti-discrimination laws Probably not, at least in the US. There is no federal law prohibiting "discrimination" in general. There are specific laws regarding discrimination against certain groups in certain contexts. They would probably not apply to an individual determining who is allowed to view their social media posts. That said, there are some specific contexts where this might be illegal. They would generally involve non-personal use of the account. The courts recently ruled that Donald Trump may not block people on his Twitter account, because he's using it in an official presidential capacity rather than just his individual capacity. Also, racial discrimination in housing is illegal, so if you're selling your house and you block all black people from viewing your house photos, that would probably be illegal as well. Also is not being able to consume information available on a public platform a violation against right to freedom. I'm not sure what you think a "right to freedom" would entail. But I don't think you have the right to demand that a person allow you to access their social media accounts. |
Could the Supreme Court prohibit abortion? (And other misconceptions about overturning Roe v Wade) Here's my layman's understanding of Roe v Wade: A state had a law prohibiting abortion; That law was challenged all the way up to the Supreme Court; The Supreme Court found a right to abortion in the 14th Amendment; The right to abortion was thus determined to be constitutionally protected; The Constitution takes precedence over both state and federal law; Therefore, neither the states nor the federal government may pass any law abridging the right to abortion. If Roe v Wade were to be overturned by some future Supreme Court, it would mean that the right to abortion is not found in the Constitution, and therefore not constitutionally protected. Thus, the states and the federal government would be free to pass laws banning abortion, if they so choose. I think many Americans would be surprised to learn that if Roe v Wade were overturned, it wouldn't mean abortion is automatically outlawed throughout the land. It means every state and the federal government would have the opportunity to make its own laws about it. (Get ready for 50+1 more battles, I guess.) But could a future Supreme Court not only overturn Roe v Wade, but also find that abortion is prohibited by the Constitution, thereby preventing the states from making their own laws about it? Does the Supreme Court ever rule that something is prohibited, or only protected/not protected? Not exactly sure how this could go down anyway. The Supreme Court doesn't write laws, and a prohibition on abortion would have to involve not only the prohibitory statement itself, but also exact definitions, sentencing mandates, parole guidelines, etc. This sounds more like the state legal codes on homicide (first-degree murder, premeditated murder, vehicular homicide, manslaughter, accidental homicide, accessory to murder, etc.) than a Supreme Court ruling. | There is no higher court which can overturn a SCOTUS decision, so in theory (or, imaginarily) they can rule any way they please. The ruling could then be overturned by a later court, as happened in these cases. However, justices of the Supreme Court can be impeached (impeachment is not subject to judicial review), so the individuals responsible for such a ruling could be impeached. Or, if the sitting president is favorable and the enabling legislation has been passed, additional members of the Supreme could be added, as was unsuccessfully attempted during the Roosevelt administration. The court could not write specific enforceable statutes defining the crime and imposing a penalty. They could rule that there is such-and-such right which is protected by the Cconstitution, and that that right must be protected by the states (for instance, a state may not pass a law that prohibits practicing the Pastafarian religion). It would be unprecedented, though, for SCOTUS to order a legislature to pass particular legislation. That would not mean that a ruling could not be written which mandated that, but it would be a huge break from tradition and a clear breach of the separation of powers. Legislatures could respond "they have made their decision; now let them enforce it". Decades ago, existing state death penalty laws were declared unconstitutional as defective with respect to the 8th Amendment, meaning that there was no death penalty in many states for some time. Homicide statutes could likewise be struck down en masse, perhaps as an Equal Rights violation, which would means that either homicide is now legal, or the Equal Rights violation in those statutes must be eliminated. All that SCOTUS would have to do is rule that a fetus is a person. Recall Roe v. Wade: If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. A model for how this might take place is McCleary v.Washington, where the Washington Supreme Court ordered the legislature to act to fund public education, on constitutional grounds that the legislature has an obligation to do certain things. The leverage imposed by the court was a large daily contempt fine that went up to over $100 million. However this was symbolic (lifted when the legislation was passed), and it took 3 years to implement the order. | One can argue both ways. On one side, yes, zero representation in the Senate for all states is equal suffrage in the Senate. On the other side, no, depriving all states of all representation in the Senate deprives them of their suffrage in the Senate (without needing to consider the question of whether the suffrage is equal). Since this question has never been considered by a court, we can't do much more than speculate how one might rule. There has never been an amendment proposed to modify the composition of the Senate -- at least not one that was seriously considered. The spirit of the law works in favor of the second interpretation. Furthermore, a strict application of abstract logical reasoning was probably not the intention of the framers. A strategy that might seem more likely to succeed would be to introduce amendments reducing the Senate's power in the legislative process, similar to the evolution of the House of Lords in the UK. If the goal were to sideline one state, this might work, but if the goal is to address the complaint that the Senate is undemocratic because people in smaller states have proportionally more influence there, there's no way the amendment would pass 3/4 of the states' legislatures. The number of states with one or two representatives is 13, by itself a sufficient number to block the adoption of an amendment. | Both Congress and the state legislatures are expressly forbidden by the Constitution from passing bills of attainder. That means neither can ever pass a law that names an individual and says "they are suspended." It is so important that it's one of the very few restrictions on government that the original Constitution (before any amendments) prohibited in bot state and federal governments. (Also, a "bill" is not a law. It's what a legislature is considering making a law.) | Because the 1860 law that criminalised “unnatural” sex is unconstitutional In essence, Navtej Singh Johar v. Union of India decided that criminalising sex between consenting adults violated the Constitutional right to equality. You have a Law in the Constitution that says people have to be treated equally. You have another law that says people in same-sex relationships are to be treated differently. The law in the Constitution wins. According to the BBC: Thursday's decision was delivered by a five-judge bench headed by India's outgoing chief justice Dipak Misra and was unanimous. Reading out the judgement, he said: "Criminalising carnal intercourse is irrational, arbitrary and manifestly unconstitutional." Another judge, Indu Malhotra, said she believed "history owes an apology" to LGBT people for ostracising them. Justice DY Chandrachud said the state had no right to control the private lives of LGBT community members and that the denial of the right to sexual orientation was the same as denying the right to privacy. The courts in India, like they are in most common law/civil law jurisdictions are interested it questions of law. Questions of sin and morality they are happy to leave to religion. | Before the election, can a lawsuit prevent the amendment question from being put on the ballot? No. Generally speaking, the constitutionality of an otherwise procedurally proper ballot initiative is not ruled upon until after it has passed (eliminating the need to rule unnecessarily on the constitutionality of failed initiatives). Of course, if someone tried to put it in the ballot when the existing law conditions for putting it on the ballot were not met (e.g. because a deadline for doing so wasn't met) that could be challenged in court by a party with standing to do so. If passed into the constitution, would a court still have the ability to rule the restrictions unconstitutional? Probably not. The constitution as newly adopted doesn't sound like it would forbid doing that. This seems to be the whole point of the constitutional amendment in the first place and it the amendment to the constition is approved, that requirement is gone. | Congress has the power to propose amendments, but not to enact them. Amendments are only enacted once they're ratified by 3/4ths of the state legislatures. And yes, there's no reason to think it would be unconstitutional for 2/3rds of each house of Congress plus 3/4ths of the state legislatures to make fundamental changes to the Constitution like eliminating other branches of government. The only limit on amendments that's still in effect is that states can't be deprived of equal suffrage in the Senate without their consent. | If you want to sue them, you should start with the US Constitution (as a model), in particular the Free Exercise clause: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". The question is whether one could overturn homicide statutes on the grounds that an individual holds to traditional beliefs that a human sacrifice is required every few months. Or, is it an unconstitutional prohibition of the Mormon belief in polygamy to outlaw polygamy, see Reynolds v. US, 98 U.S. 145. The court held that the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Observe that a religious exception to the law would be unconstitutional, as establishing religion as a means of gaining extra rights. The reductio ad absurdum of the unfettered religious-belief excuse is: Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances. The "wall of separation" was modified more recently in the 60's and 70's. In Wisconsin v. Yoder, 406 U.S. 205, the issue was compulsory education imposed on Amish children, where higher education was held to be antithetical to the Amish doctrine of a simple life. The court rules that The State's interest in universal education is not totally free from a balancing process when it impinges on other fundamental rights, such as those specifically protected by the Free Exercise Clause of the First Amendment and the traditional interest of parents with respect to the religious upbringing of their children and especially it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish There were additional holdings pertaining to the legitimacy of the purported belief (that is, is there really such a doctrine – clearly yes). You might have better luck purporting to be a Rastafarian or Hindu, so I will set aside that complication. The core question will be whether the government has a "compelling interest" in the restriction, also whether the restriction is narrowly tailored. In the case of Sherbert v. Verner, 374 U.S. 398, Sherbert's employer required her to work 6 days a week (a change in policy during her time of employment), which she refused to do (as a member of SDA) and was fired. Sherbert was denied unemployment benefits because the firing was for cause. The court ruled that Disqualification of appellant for unemployment compensation benefits, solely because of her refusal to accept employment in which she would have to work on Saturday contrary to her religious belief, imposes an unconstitutional burden on the free exercise of her religion. and There is no compelling state interest enforced in the eligibility provisions of the South Carolina statute which justifies the substantial infringement of appellant's right to religious freedom under the First Amendment. Employment Div. v. Smith, 494 U.S. 872 brings us to the neighborhood that you are interested in living in. The relevant detail is that Smith (and Black) were fired for ingesting peyote in connection with a ceremony at a Native American church. The court ruled that The Free Exercise Clause permits the State to prohibit sacramental peyote use, and thus to deny unemployment benefits to persons discharged for such use To be more precise, Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons. We can contrast this with Lukumi v. Hialeah, 508 U.S. 520. The city of Hialeh passed an ordinance forbidding animal sacrifice, specifically to suppress the Santeria church. The Supreme Court said, no, you may not do that: Under the Free Exercise Clause, a law that burdens religious practice need not be justified by a compelling governmental interest if it is neutral and of general applicability. However, where such a law is not neutral or not of general application, it must undergo the most rigorous of scrutiny: It must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest. Neutrality and general applicability are interrelated, and failure to satisfy one requirement is a likely indication that the other has not been satisfied ... The ordinances' texts and operation demonstrate that they are not neutral, but have as their object the suppression of Santeria's central element, animal sacrifice. At least so far, restrictions on drug use have not been overruled as conflicting the the Free Exercise clause, although if e.g. Washington state were to prohibit Mormons from purchasing marijuana (where others can), that would surely be struck down as unconstitutional. There are a number of other relevant developments, for example Congress passed the Religious Freedom Restoration Act in 1993, in reaction to Employment v. Smith, and that law statutorily mandating that strict scrutiny be applied to the question of whether a law violates the 1st: but this was ruled unconstitutional as applied to the states in City of Boerne v. Flores, 521 U.S. 507. Then in Gonzales v. O Centro, 546 U.S. 418 (Schedule 1 tea for religious purposes), the court ruled that The courts below did not err in determining that the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the UDV’s sacramental use of hoasca which is to say, we have a case where the federal government was prohibited from enforcing a drug prohibition involving religion. A challenge of the type which you have in mind will surely also involve the question of the legitimacy of the purported religion, where UDV was founded in 1961 whereas one might suspect that your claimed religion is a pretext to smoke pot (hence the Rastafarian suggestion). The WWII era conscious objector cases held that the CO exception to military service is not limited to governmentally-approved religions, but as a general rule, the courts have not ruled that you can simply claim to have a religious belief which is being infringed on and thereby be excempt from the law. The basic issue would be whether either the US government of the state of Kentucky have a compelling interest in preventing the use of marijuana. The Kentucky Supreme Court does indeed recognize the concept of "strict scrutiny", so the case is not doomed from the start. | In the United States, blasphemy is really not a crime even if it severely offends certain people and tends to cause them to want to riot and kill the person who offends them. Most Americans who are familiar with the law and the U.S. Constitution strongly support this policy and think it is obviously right. Not every country interprets its freedom of speech laws (if it even has freedom of speech laws) in this way. For example, Canada has a law against blasphemy, as do almost all countries which have an official state religion (which is called the "establishment" of a religion). Also many countries have seemingly contradictory constitutional provisions and courts have to resolve their relative priority. For example, many Muslim countries have constitutions that simultaneously contain a right to freedom of speech and a provision that says that Sharia law is the supreme law of the land (e.g. both Afghanistan and Iraq recently enacted constitutions that say both of those things). A court could decide that the Sharia law provision prevails over freedom of speech in the event that the two conflict, or could reach the opposite conclusion. Nothing on the face of a constitution like that will tell the court how to resolve the issue. Many other countries have laws against intentionally and publicly offending someone's religious beliefs, which is similar to, but not the same as, a blasphemy law. Blasphemy, narrowly interpreted, means saying something that contradicts the doctrines of the nation's official religion, without regard to whether it is offensive - so, for example, saying that Mary the Mother of Jesus got pregnant the ordinary way, rather than having a virgin birth, would be blasphemy even if no one was offended by you saying that in a country where Roman Catholicism or Lutheranism or the Anglican Church was the official religion. A narrow Blasphemy law offends the idea of separation of church and state because it makes the government the ultimate determiner of what the doctrines of the nation's official religion says and allows a government to have an official religion. It is also notable that there are two parts to the freedom of religion in the United States. One part is the "free exercise clause" which allows people to practice the religion of their choice. The other part is the "establishment clause" which prohibits the government from favoring one religion over another or even favoring being religious over being not religious. The "free exercise clause" is similar to the stance that the Koran takes towards "People of the Book" but applied to any kind of religious belief not just Jews and Christians. Many conservatives in the United States are strong supporters of the free exercise clause, but think that the establishment clause should only apply to the federal government (so the state and local governments can establish a religion). Other conservatives think that the establishment clause should only prevent the government from preferring one denomination of Christianity over another denomination, even though the drafters of the constitution and courts ever since then have made clear that this was not the intent of the establishment clause. Article 11 of the Treaty of Tripoli, signed by the President and ratified by the Senate so that it took effect in 1797, just six years after the Bill of Rights was adopted, for example, specifically noted that the freedom of religion in the United States included Muslims. Many countries have a freedom of religion that protects free exercise but does not have an establishment clause. The Universal Declaration of Human Rights similarly protects only free exercise and does not prohibit governments from having an established religion. Article 18. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. The U.N. Universal Declaration of Human Rights is usually not enforceable in the courts unless a country decides that it will enforce it. It does not usually have the effect of causing the laws of a country to be invalidated the way that an unconstitutional law would be invalidated. Put another way, the Universal Declaration of Human Rights and most other international human rights treaties are usually determined by courts to be not "self-executing". So, it is up to the legislative process in a particular country to decide how to implement human rights if it does so at all. In contrast, Europe has a treaty that is part of the Council of Europe organization with similar provisions, that is binding on member states even if it violates their laws (i.e. it is "self-executing"). |
Is fraudulent activity related to renting a residence - Theft by Deception? I discovered Wednesday that a recent tenant of 1.5 months misrepresented themselves, and lied and omitted information on the rental application to hide the truth and gain entry into my apartment. The facts are: She knowingly lied in person and omitted on the application her rental history. She said that she was married and lived with an abusive husband while renting an apartment locally. She knowingly lied in person and on the application about her ability to pay. She knowingly lied in person and on the application about her current address listing it as out of state. She knowingly lied in person and on the application about her previous addresses within 5 years listing only one out of state address. Listed relatives as references that were complicit in the misrepresentation. She misrepresented herself and filled out the application while being evicted locally. The online background check was unable to present an eviction that was in process and uncontested. Her notice to quit, court filing, and being served was before the application was filled out and before I even spoke to her. I am quoting from: http://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=18 Title 18, Chapter 39, Sub-chapter B, 3922, (a), (1) Theft by Deception § 3922. Theft by deception. (a) Offense defined.--A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally: (1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise; Title 18, Chapter 39, Sub-chapter B, 3921, (b) Theft by unlawful taking or disposition. Immovable property. § 3921. Theft by unlawful taking or disposition. (a) Movable property.--A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof. (b) Immovable property.--A person is guilty of theft if he unlawfully transfers, or exercises unlawful control over, immovable property of another or any interest therein with intent to benefit himself or another not entitled thereto. As a landlord, our property is the rental and any capitol we may gain. With tenant landlord laws as they are, the landlord is deprived of their property and ability to rent the property simply by virtue of the fact that someone now has access. Gaining access to property through (gross) deliberate deception with the express purpose of gaining access to property knowingly without the ability to pay is denying a landlord of their property and capital with intent and tantamount to Theft by Deception. The result of this is that I am unable to rent the apartment in question and am now dealing with a tenant that intends to continue the deception without paying. They did pay just enough money to get in, however, the lies and deceptions to continue with intent to deceive and retain property for personal gain. To make matters worse, this tenant did this with the previous landlord which evicted her. Before anyone says there is remedy available in court, I will remind you that this tenant, as it turns out, does not have a pot to pee in and does not have enough real property to recover damages and losses. As well, the law allows appeals and extensions making the situation worse. In otherwords, often the remedy results in court costs and fees for the landlord as well as losses that cannot be recovered. I realize that lawyers and courts are reluctant to call this fraud and theft, however, can you help an old guy understand why this specific and clear attempt to defraud and deprive a property owner of access rights to their property would not be considered illegal? | As you note, it does appear that this tenant has committed one or more crimes. In Pennsylvania crimes are prosecuted by the state, and you can begin the process by filing a private criminal complaint with your local Magisterial District Court, which will forward it to your county's District Attorney for review and prosecution. You've essentially written the complaint here; now you just have to file it. The criminal process would proceed independently of whatever civil processes you might be pursuing. | You can read about your rights as a California tenant at http://www.dca.ca.gov/publications/landlordbook/catenant.pdf This is rather ridiculous: 1) No judge will evict someone for paying rent by mail. (I assume you have the new landlord's address.) 2) If the landlord cashes the check you mail then he's not going to be able to claim you didn't pay the rent. If he actually refuses to cash your mailed check then that's all to the good for you. 3) You can ignore any requirements imposed by the new landlord that aren't in the lease, just as the landlord could ignore any new requirement imposed on him by you. Even some terms in a lease can be ignored, because not all terms in a contract are legal. (This is especially the case in tenant-landlord law.) If you think there will be trouble then use certified mail. | Anti-discrimination laws in the U.S. have exceptions for someone who rents a room in a landlord's own residence, but generally speaking, for other purposes, there is not a distinction in U.S. or Florida law. People who stay at a place with the permission of the owner for a very brief period of time and not pursuant to a lease, such as someone who gains use of a particular seat in a movie theater pursuant to a purchased ticket, is, however, not a tenant with the full rights of a tenant, and is instead a licensee who does not have a property right to use that space, only a contract that can be terminated by the property owner or their agent at will, potentially with breach of contract damages if this is done without justification, but not with liability for violating a tenant's rights. In some cases, someone whose housing, at least part of the time, is for the convenience of the employer, like a medical resident who uses a sleeping room at a hospital, or a member of the crew of a ship who sleeps on the ship incident to their duties, may have reduced rights relative to housing when their employment is terminated for cause, although this is only sometimes clearly enunciated in statutes or case law and the law would not be terribly consistent in this area. | If you buy a house, you can generally rent out a room in the house, unless in that jurisdiction there is some law against renting rooms in houses (that's actually a condition in my neighborhood, one widely ignored). If it's legal to rent (lease) a room, it is generally legal to sub-lease that room – as long as that's allowed under the original lease contract. I have never heard of a jurisdiction that has a blanket prohibition against subleases. So as far as the actual question goes, the answer is, "yes". The links are about something a different, namely rent control law in San Francisco, and the question of whether a tenant can be evicted from a rent-controlled unit because the owner wants to move in to the unit. Owner move-in eviction requires a specific procedure for giving notice, and the links are about these requirements. Conceivably, though, the question could be whether a person can buy a house that is being rented out, do a proper owner move-in eviction, and then lease a spare room. The SF rent laws require a good faith intent to move in and use as the primary residence for 3 years, and nothing prohibit subsequently leasing a room. Those laws pertain to evictions, not re-rentals. (It should be noted that once eviction under section 37.9(a)(8) has been carried out on a unit in a building, no other unit in the building can ever be so recovered. That could mean that the room in the house could never again be recovered, if it is considered to be a separate "unit" from the "unit" that is the whole house). | It depends on what state this is. In Washington state, there is a form that sellers must fill out, and section 3 addresses sewer connections. This matter could have been disclosed – the allowed answers are "yes; no; don't know" (or NA). These are sellers disclosures, and Zillow / Redfin are free to be unreliable (I personally know that they are wrong about square footage). A real estate agent also doesn't become liable for being misinformed. Assuming your state has this or analogous question, "No" means that you were told (doesn't matter if you didn't notice it), and "Don't know" means you're gambling. Let's say that the answer was "Yes". Still, you can't necessarily sue (and win): you would have to prove misrepresentation (fraud or negligence) and not innocent error. You could do this by, for instance, proving that seller had the septic tank cleaned out some years earlier. Perhaps an action against buyer's inspector is possible, since that's nominally what they might have been hired to find out. But that is only true if checking the sewer connection can reasonably be considered part of the deal, so you have to look at the contract with the inspector (and the inspector's report). | 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. | You can always politely ask a person to leave, which could solve your problem. If that doesn't work, you will have to take legal action: you cannot change the locks or force him out (without the risk of a costly lawsuit). In Washington this would probably be the slower ejectment process, since you are not in a landlord-tenant relation. The actual process depends on the laws of your jurisdiction, though it is doable in any US jurisdiction. You probably have to hire an attorney to navigate the process, since an unlawful detainer action would likely be dismissed (that is, you have to file the correct action, not just some action that's in the ballpark). | 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. |
Can the Prisoner's Dilemma be solved with a civil contract? The Prisoner's Dilemma is a well-known game theory problem that translates well into our real life experience. The idea is that two people who will optimize their individual and collective outcomes by cooperating can, under specific circumstances, decide not to cooperate. Can the two prisoners solve their dilemma by mutually binding each other to silence with an enforceable civil contract of the nature of a Non-Disclosure Agreement? Prisoner's Dilemma Description Two members of a criminal gang are arrested and imprisoned. Each prisoner is in solitary confinement with no means of communicating with the other. The prosecutors lack sufficient evidence to convict the pair on the principal charge, but they have enough to convict both on a lesser charge. Simultaneously, the prosecutors offer each prisoner a bargain. Each prisoner is given the opportunity either to betray the other by testifying that the other committed the crime, or to cooperate with the other by remaining silent. The offer is: If A and B each betray the other, each of them serves two years in prison If A betrays B but B remains silent, A will be set free and B will serve three years in prison (and vice versa) If A and B both remain silent, both of them will only serve one year in prison (on the lesser charge). Edit I don't think the following analysis applies: It would not "solve" the problem, because the contract would not be enforceable. See this question on enforceability. In particular, Lachman v. Sperry-Sun Well Surveying Company, 457 F.2d 850 A bargain, performance of which would tend to harm third persons by deceiving them as to material facts, or by defrauding them, or without justification by other means is illegal. But I do not think that analysis applies because there is no deception or fraud involved. Both parties have a fifth amendment right to not self-incriminate. The agreement would be for both parties to exercise their constitutionally protected rights by remaining silent. Prosecutors often solve this with immunity agreements for "unindicted co-conspirators" plus subpoenas to compel testimony and otherwise cooperation with investigation. However, I don't think that tactic can displace an individual's constitutionally protected right to "remain silent." | The contract is almost certainly not valid. The answer you linked references the 2001 Federal Circuit case Fomby-Denson v. Dept of the Army. The court, in its opinion, quoted from the 1948 Supreme Court case Hurd v. Hodge: [t]he power of the federal courts to enforce the terms of private agreements is at all times exercised subject to the restrictions and limitations of the public policy of the United States . . . . Where the enforcement of private agreements would be violative of that policy, it is the obligation of courts to refrain from such exertions of judicial power. It is clear that, in the case you propose, the enforcement of such a contract would go against the public interest. Quoting from the 1972 Supreme Court case Branzburg v. Hayes, the Fomby-Denson decision said: it is obvious that agreements to conceal information relevant to commission of crime have very little to recommend them from the standpoint of public policy. It further notes this clause from the First Restatement of Contracts: [a] bargain in which either a promised performance or the consideration for a promise is concealing or compounding a crime or alleged crime is illegal. | Miranda rights do not attach until the suspect is subject to custodial interrogation. "Custody" means that the suspect reasonably believes that he is not free to leave the conversation. "Interrogation" means that the officer is engaging in direct questioning or other conduct that would reasonably be expected to elicit a response. A suspect is free to waive his Miranda rights and begin speaking without a lawyer, but a waiver must be knowing, intelligent and voluntary. "Voluntary" means that the waiver is obtained without coercion (torture, threats or promises) by the government. None of the five scenarios indicate that Clyde ever believes he is in custody, so he has no Miranda rights in any of them, making his confession admissible in all of them. But to play it out further, let's assume that Officer Olivia arrives and immediately slaps handcuffs on Clyde: No interrogation, no Miranda rights. The confession is admissible. No interrogation, no Miranda rights. The confession is admissible. Miranda rights attached at the beginning of questioning. Clyde waived by confessing. Reading the Miranda rights established that the waiver was knowing. We don't have any facts suggesting the waiver was not intelligent. The waiver was not obtained by government coercion, so it was voluntary. The waiver was effective, so the confession is admissible. Same as 3. No interrogation, no Miranda rights. The confession is admissible. The key thing to keep in mind here is that the purpose of the Fifth Amendment right against self-incrimination was to avoid misconduct by the government, and it has generally been implemented only to that end. The key case here is Colorado v. Connelly, 479 U.S. 157 (1986), which involved a guy who approached a police officer and asked to talk about a murder he had committed. The officer Mirandized him, and he told them all about the murder and where he buried the body. It turned out that he was a chronic schizophrenic and was going through a psychotic break at the time of the confession, which he had only offered because "God's voice" told him to. As with your truth serum scenario, the question became whether the Miranda waiver satisfied the voluntariness requirement. The Colorado Supreme Court held that "capacity for rational judgment and free choice may be overborne as much by certain forms of severe mental illness as by external pressure." But the U.S. Supreme Court reversed, holding that neither the defendant's due-process rights nor his right against self-incrimination are offended by non-governmental influences, even when they undercut the defendant's free will. Since then, other courts have relied on Connelly to hold that voluntariness was not defeated by: a suspect's flu, hangover, hunger, or exhaustion, U.S. v. Elwood, 51 F.3d 283 (9th Cir. 1995); a suspect's heroin use, Elliott v. Williams, 248 F.3d 1205, 1213 (10th Cir. 2001); a suspect's heroin withdrawal, U.S. v. Kelley, 953 F.2d 562, 565 (9th Cir. 1992); a suspect's orders from his father, N. Mariana Islands v. Doe, 844 F.2d 791 (9th Cir. 1988); or a suspect's unusual susceptibility to suggestion or intimidation, U.S. v. Guerro, 983 F.2d 1001, 1004 (10th Cir. 1993). tl;dr: Because the truth serum was not administered by the government, the confession is admissible in all five scenarios. | We have all see on TV the judge instruct jurors that during trial they are not to speak about the case with anyone, even other jurors, unless all jurors are present and they are deliberating. However, contrary to the example given about England, in the U.S., those restrictions evaporate at the end of the trial. After a trial concludes, the court has no continuing control over the jurors and could not impose lasting restrictions without it. The Constitution provides the guarantee of trial by a jury of ones peers. In the U.S. for all general civil cases and all criminal cases, we have public trials. (special courts and tribunals are created to deal with cases involving classified information and issues of national security, and the courts have mechanisms for handling trade secrets, etc. to insure that information is not presented to jurors) So in that sense, there is nothing a juror could be exposed to in during their service as jurors that would require any type of continuing restriction. | united-states This answer analyzes the question under U.S. law, although it is really generally applicable in all countries with a common law legal system. I'm not familiar with how non-common law countries address this issue at this level of granularity. Given that Alice has been instructed by the court to stop publishing the data, and given that Mallory refuses to stop publishing the data, what might Alice be obliged to do to comply with the court? Very little. This is why courts very rarely issue orders like this one. Disobedience to a court order is enforced with a contempt of court proceeding against a party that allegedly knowingly and willfully failed to comply with the court order. But an inability to comply with the court order (at least if this is not due to sabotage by the party subject to the order after that party learns of the order's existence) is a complete defense to contempt of court sanctions. Contractually, this is why most non-disclosure agreements have liquidated damages and actual money damages remedies as well as the remedy of injunctive relief. If harm that can't be unwound results from conduct taken before an injunction is in place, or as a result of a breach of an injunction that the person who was ordered to do something can't remedy, then a court imposes money damages and/or punitively imposes a criminal fine or incarceration on a party who defied a court order. | Fun one! First on the question of whether it matters if the agreement is written, I don't imagine it would make a difference in most of the US. We only require written contracts for agreements that meet certain requirements, those include contracts over a certain dollar amount, contracts involving the sale of land and contracts that cannot be completed within the year. Depending on the facts of your hypo, the writing requirement may be in play, but either way, it doesn't really make the situation more or less interesting; it's not a unique issue to this sort of contract. Second, the baseline assumption is that people can form legally binding contracts. The question is, whether something forbids the sort of contract you have in mind. I can think of a few things: It would be reasonably challenging to define what conduct is forbidden by the agreement. But that is merely a challenge not a road block. You could easily come up with a laundry list of forbidden acts to accomplish your result. Two people cannot contract to force the behavior of a third person, barring special circumstance. But again this isn't important since it's just a matter of drafting. In other words the contract probably would not say Juliet cannot go to the movies with Romeo, rather it would say Romeo cannot go the movies with Juliet. Even drafted in the less ideal way, he operative concept is whether the father could enforce a breach. So, the contract COULD be worded to say "If Juliet attends a movie while Romeo is present, Romeo must pay the father $xx dollars." Most importantly a party cannot form a contract that violates public policy. This is sometimes referred to "legality of objects", as in the object/goal of the contract must be legal. Contracts for prostitution, or the sale of a child (i.e. certain adoption contracts), or illegal products, would likely trip over this category. Here however, I can't readily think of a public policy basis to challenge the contract. Surely (some) states have stated a public policy favoring marriage, but it would likely be a challenge to contend the contract to not date (or not marry) was void because of such a policy. I can't think of any reason that the father couldn't enforce this sort of agreement. Finally, even if the contract was not enforceable, it's highly likely that Romeo could not simply take the money and breach. There are basis to demand return of the money even if no enforceable agreement exists. I am not your lawyer. Seek counsel from a lawyer in your area before taking any action. This answer is provided without research and for purely academic reasons. I have no special knowledge of this area of law. | This paper describes a website created to test the hypothesis that nobody bothers to read the TOS, and it contained a privacy clause saying that "we may share everything, and a clause that by agreeing to these Terms of Service, and in exchange for service, all users of this site agree to immediately assign their first-born child to NameDrop, Inc. If the user does not yet have children, this agreement will be enforceable until the year 2050. All individuals assigned to NameDrop automatically become the property of NameDrop, Inc. No exceptions. Since this was not a real webpage, there was no attempt to enforce. TOS is just another kind of contract, so the question is which kinds of contract conditions are enforceable and which kinds are not. It depends on whose laws you are operating under, which explains the use of expressions like "void where prohibited by law". There are innumerable conditions that could be included in a contract which are unenforceable. A contract requiring a person to commit a crime is unenforceable. Many jurisdictions have laws prohibiting a person from waiving certain rights, for example you cannot sign away your right to be represented by legal counsel in a dispute. There are related "unfair / deceptive" practices laws, which might include meta-conditions that any clause disclaiming liability must be prominently displayed. These are terms that a reasonable person would clearly know in advance are illegal and unenforceable. There is also a concept of "unconscionability", a finding that a certain condition favors the business to the point of "shocking the conscience", which may take a deeper legal analysis to evaluate. A requirement to litigate small disputes in California might be deemed unconscionable for a customer in an East Coast state, but it might not be. A typical characterization of an unconscionable contract is one that "leaves one party with no real, meaningful choice and is unreasonably advantageous to the other party", especially when due to asymmetrical negotiation power. For example, Ellis v. McKinnon , 18 Cal. App. 4th 1796 (employment contract for a salesman, commissions were forfeit if company had not received payment from the customer by the termination of employment). The main case law in the US in this area is Williams v. Walker-Thomas Furniture, 350 F.2d 445, where a customer bought furniture on credit, with a clause allowing repossession of all of the furniture in case of default by the customer. The doctrine is encoded in UCC 2-302. However, "unconscionable" does not mean "I don't like it". In lieu of statutory price controls, a customer probably cannot avoid paying an agreed on exorbitant price for a product ($100 for a dozen rolls of toilet paper). Here is a bit more legal analysis of unconscionability, which focuses on three factors: one-sidedness, oppressiveness, and likeliness to result in unfair surprise. | In the common law (The legal system used by the U.S. among many other nations), courts are "adversarial" as opposed to "Inquisitorial" like in Civil Law systems. What this means is that when in court the prosecutor and defense are pitted against each other in debating the questions of the case. All questions can be boiled down into questions of law and questions of fact. This is opposed to an inquisitorial system, where the prosecutor, defense, and judge are working to answer these questions in a fact finding forum. Because of this, in Common law, the judge takes the role of "Trier of Law", i.e. he is the arbiter of what the law says. The Jury will talk the role of "Trier of Fact". Essentially, if the prosecutor and defense attorneys are in a competition against each other, the judge will serve as the referee and decide whether something is allowed to be discussed in trial and whether the jury should count it. Because of this, the judge cannot call out objectional behavior by one side or the other as it would call into question his/her ability to be neutral in his assessment of the law. Thus it is the burden of the opposing party to object to something that is objectional. Failure to object means that the the side that should object is okay with this activity by opposing counsel, so the judge must allow it. Sometimes, objections are raised at trial for the sole reason that they will be part of the appeal of the case. Appeals can only call raise Questions of Law, which again, is the judge's domain. Thus the judge can't object, since we operate on the fact that the judge is neutral. If the judge is not neutral, than the case can be overturned easily by an appellant court. Essentially, the "Objection" is similar to a coach playing sportsball asking a ref to review a play on the sportsball field. Under this game rule, however, the judge is there to make the call if and only if he/she is asked to make it. Otherwise the objectionable action is permitted to stand. | The decoder is aware that someone might read the combination, open the lock, and go into the locked area ...Has the person committed a crime? england-and-wales Maybe not a criminal offence, but the decoder might be liable civilly under the Tort of Negligence, which is: a legal wrong that is suffered by someone at the hands of another who fails to take proper care to avoid what a reasonable person would regard as a foreseeable risk. In many cases there will be a contractual relationship (express or implied) between the parties involved, such as that of doctor and patient, employer and employee, bank and customer, and until relatively recently it was necessary for such a contractual relationship to exist in order for a claim for negligence to succeed. But the civil law relating to negligence has evolved and grown to deal with situations that arise between two or more parties even where no contract, written or implied, exists between them. Is it legal to obtain and publish that information, if no physical damage is done to the object when deriving the information? One scenario where this might be a criminal offence is if the information is protected with a Government Security Classification marking (i.e. spying). See Section 1, Official Secrets Act 1911: (1) If any person for any purpose prejudicial to the safety or interests of the State— (b) makes any sketch ... which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy; or (c) ... communicates to any other person any secret ... sketch ... which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy; he shall be guilty of felony Section 12 states that: The expression “sketch” includes any photograph or other mode of representing any place or thing; |
google analytics cookie consent with anonymized ip on I am not even sure how is this possible, so here I am. I have google analytics with anonymized IP on, my users can activate and deactivate google analytics cookies at any time. BUT, on top of that, according to GDPR I would need to collect and store records that cookie consent from a particular user was obtained. Well, lets say "user A" has agreed for my website to use cookies and later on "Mr XXX" who is actually "user A" is trying to be funny and he has emailed me saying he will complain to ICO as he can see these cookies are set but he has not provided a consent. Because the IP is anonymized, I could not prove that the guy emailing me has actually provided consent as "user A" and "Mr XXX" are not associated on my records, whilst they are the same person. Any ideas how to solve this puzzle? | Simply use a cookie to store consent. First consider the opposite. If a user does not agree to store cookies, a cookie is the only way to remember this, as you want to avoid a new pop-up on every page-load. Because this use of a cookie is functional, you don't need permission to store that cookie. You seem have the impression that you have to prove towards the ICO if someone has provided consent. However I think it would be sufficient if you can demonstrate how your website works technically. In particular whether consent is handled properly. You might need to create screenshots or a screencast to do so. Add new proof after each major update of your website. Storing consent server-side would violate the data minimization principle of the GDPR I think. In particular because you would need to do something to be able to identify users. That would violate Art. 11(1) GDPR: If the purposes for which a controller processes personal data do not or do no longer require the identification of a data subject by the controller, the controller shall not be obliged to maintain, acquire or process additional information in order to identify the data subject for the sole purpose of complying with this Regulation. Notice it is possible to configure google analytics in a way so you don't need any consent. See my answer to this question. Just IP anonymization is not sufficient. | Yes, you could do this be means of the EULA, provided you are not in the EU yourself. You only have to comply with the GDPR if you are offering a product or service to people that are in the EU. If you are making it clear that whatever you offer is not available to Europeans, you make your site exempt from the GDPR. | 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. | If you are purely a designer (and not contracted for the daily operation of the site), the answer is "no". GDPR Article 4 defines the "roles" responsible for complying with GDPR, and there are two: Controller and Processor. The Controller is the one who calls the shots. In particular: Decides what personal data to process. This is usually the owner of the web site. The Processor is the one that actually does the processing. This is usually some company providing some sort of data processing service (e.g. SaaS, PaaS, etc.). The relationship between the Processor and the Controller must be contractual. The contract is called a DPA (Data Protection Agreement or Data Processing Addendum). As a designer, you don't fit into any of these roles. If your contract with the client is silent on liability for GDPR compliance, then you have no liability. This goes for projects completed both before and after the May 25 deadline. Of course, if there are GDPR clauses in your contract, then you must fulfil them just as have to fulfil any other contractual obligation. But unlike the controller and the processor, there are no automatic legal liability for a designer or programmer. | You must get opt-in affirmative consent to process personal data, including tracking people's use of your site or providing targeted advertising. The banner on StackExchange is likely in violation of the GDPR. Do not copy it. It does not have an explicit opt-in, only an opt out which is onerous (leave the site, then manually go in and delete any cookies they set, which may be hard to identify if they are from 3rd parties). The sites you mention that have a gateway are a more correct implementation. Consent must be acquired before processing of data begins, and it must be explicit. | The basic requirements for the effectiveness of valid legal consent are defined in Article 7 of the GDPR and specified further in Recital 32. There is no form requirement for the consent, so using a button is not a problem. However, I do not think the MailChimp-button you reproduce as an example is good enough. It asks for a blanket consent to stuff that is buried in MailChimp's “Anti-spam Policy & Terms of Use”. But according to the GDPR, what the data subject consent to can’t be buried in the ToU – it must spelled out in clear, plain language. Requests must be granular, asking for separate consent for separate types of processing. “When the processing has multiple purposes, consent should be given for all of them” (Recital 32). Blanket consent, as used by MailChimp, is not allowed. The other clear requirement from the GDPR is that opt-in is mandatory. Pre-ticked and opt-out buttons are explicitly banned: “Silence, pre-ticked boxes or inactivity should not therefore constitute consent” (Recital 32). ‘No’ must become your data default, but if the user chooses to opt-in by clicking a button, this is valid consent. The MailChimp-button complies witrh this. The GDPR also requires you to keep a records of the consents given (so make that part of the user profile), and to withdraw consent at any time – so you make make provisions for that as well in your implementation of consent. | The GDPR does not prescribe how exactly consent must be managed, as long as consent was obtained in line with the GDPR's principles. Similarly, the EDPB does not provide concrete recommendations in its guidelines on consent, mainly noting that Controllers are free to develop methods to comply with this provision in a way that is fitting in their daily operations. I would not be too concerned with edge cases like failing HTTP requests, at least not any more than for other HTTP endpoints. If the user indicated consent, and you act on that indication of consent in good faith, that's probably fine. However, remember that you must provide a equally easy way for the user to revoke consent later. If the user changes their mind, they can use the mechanism that you offer to inspect their consent status, and revoke it if they want. But again, how to do that is largely up to you. | The way you describe this UUID, it is pseudonymous data (see GDPR Art 4(5) and Recitals 28–29). That is, it is not directly identifying, but you have a mapping between pseudonyms and identifiers that can be used to re-identify this data. Effective pseudonymisation requires not only that the data is logically separate, but that there are effective organisational and technical measures preventing re-combination by unauthorized persons. Alongside with encryption, pseudonymisation is one of the safety measures that the GDPR explicitly requires whenever appropriate (see Art 25, Art 32). Pseudonymous data is still personal data, because you can easily re-identify the data. The PII concept is US-specific and is misleading in a GDPR context, where it is not the inherently identifying characteristics of the information that matters, but the realistic ability of the data controller to single out data subjects to whom this data relates (compare Art 4(1) and Recital 26). However, were you to irrevocably erase the UUID–email mapping, things are more tricky. There is no longer any connection with directly identifying data, so this data might be anonymous. On the other hand, such a persistent UUID still allows you to recognize/distinguish persons, so it might still be personal data. This might be the case especially when the UUID is used in long-lived cookies of website visitors, thus matching the GDPR's concept of an “online identifier”. This conclusion could be avoided by limiting reuse of UUIDs, e.g. creating a new UUID after some context-dependent appropriate duration. The GDPR does not require all data to be stored in the EU, but requires international transfers of personal data to have sufficient protections. If you're processing these data in countries without adequate legal protections (like the United States), additional safeguards have to be used. Pseudonymisation could be part of such safeguards, and has been suggested by some data protection authorities in the wake of the Schrems II ruling. However, pseudonymisation alone does not make the international transfer legal, it is more of a strategy to reduce remaining risks. I think that your systems has a good chance of being OK, but not neccessarily so. If in doubt, perform a DPIA and possibly consult your data protection authority under GDPR Art 36. If feasible, storing/processing data only in the EEA or in countries with an adequacy decision will simplify compliance. Safeguards such as pseudonymisation could be strengthened by rotating UUIDs, and by restricting access to the table with identifiers. |
Can someone sue me as a customer service representative? I'm new to this job and it seems that a company that I work for sued a lot of customers and also many customers sued it. Some customers say to me if you didn't do it now, we're going to sue the company. My reply is like I should follow the instructions of the company and you should wait for few days. So I just follow the instructions regardless of what the customers will do as a consequence. Today, a customer told me that he will sue me personally as a part of the company. He was also recording my voice to have an evidence. I had to flow the restrictions and the instructions of the company as usual. My question is: Can someone really sue me because I'm an employee in a company? I'm not the owner. I'm just a representative. I'm an intermediate stage between (the owners, the managers, and the different departments) and (the customers). Let's make things more complicated. I'm not responsible only for delivering the correct message. In the beginning, I said to the customer wrong info because I made a typo while entering his ID into the system (the software). Then, I realized and corrected the info. Now, he has the recording that contains both wrong and correct info. Can he sue me for saying some wrong info to him in the beginning? I'm giving this case as an example but I'd like to know what happens to something like that in general. I deal with customers from different nationalities so I'd like to know what the international law says about this kind of cases or what most of the laws in the world say bout them. Answers from different countries are accepted as well especially USA. | Unless you have caused loss to the customer by making the typo, the answer is no. Obviously, anyone can attempt to sue anyone. However, for the court to accept their claim/charge for processing it needs to fall in one of these buckets: They had a contract with you personally and you were in breach of it — obviously this does not apply in your situation; You committed a crime — looks like this is not the case either; You had a duty of care towards them and committed the tort of negligence. This is what the customer must be referring to — making the typo could be regarded as negligence, especially if it caused actual harm/losses to them. | You have no legal duty to inform callers they have the wrong number. Official business is not carried out by telephone, despite the fact that some collection agencies commonly use the tactic that there is service of process forthcoming, or some other legal jargon, to entice a callback. From a non-legal perspective, you may want to call and tell them to take you off their call list and that they have the wrong number; otherwise, they are likely to continue to bother you day and night. It appears to be either a scam or a collections attempt. | 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. | An Estonian company can be sued under French law for violating French law in France, and so can its officers, no matter what their nationality or where they reside. So yes, you could be sued in France as an officer of the company. If you have assets in France, a French judgment against you will be easier to enforce than one against someone who has no assets in France. This is, similarly, not about nationality but about the location of your assets. A suit could also be pursued in Estonia. If the activities in Estonia are contrary to Estonian law then you could also be sued in Estonia as an officer of the company. We frequently have questions about "which law applies" for cases that span multiple jurisdictions. The general answer is that all law applies. An activity in multiple jurisdictions must comply with the law in every one of them. If you are doing something that is prohibited (or even that possibly might be prohibited) in either Estonian law or French law, you should take professional legal advice. Unless you can find a lawyer who is qualified in both countries, you will need two lawyers. | To my knowledge there is no actual law requiring a provider to file anything on your behalf. Most do it as a courtesy but if you read the terms of service that you almost certainly agreed to, it will say that YOU are the responsible party. If the insurance company doesn't pay, even if the provider doesn't submit a claim, the responsibility is still yours. There is nothing stopping you from filing your own claim using whatever forms or procedures that they have established. I'll also note that many provider networks have rules that providers must adhere to in order to remain in that network. Some may include language about timely filing of claims but that is in no way universal. These days many providers have taken to billing the patient the full amount immediately and then will issue a refund to you if/when the insurance pays. | 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. | Yes, you do. But you should not base your claim primarily on copyright, but just on the license contract you agreed to. It's typically much easier to prove that a party did not fulfill its part of a sales contract (here: Pay the agreed amount) than to prove violation of a copyright you own. Also, you then only need to sue one guy, and not care about every platform your game might be hosted on. This is particularly difficult here, since they have not done anything wrong. It's not their fault that the publisher didn't properly pay the programmer. They (very likely) got their copy of the game legally. For details, you should consult a lawyer. We can't give you detailed legal advice. | Is this work for hire? There is an arguable case to be made that you are an employee for copyright law purposes and, if so, the copyright belongs to the company. The closer an employment relationship comes to regular, salaried employment, the more likely it is that a work created within the scope of that employment will be a work made for hire. But because no precise standard exists for determining whether a work is made for hire under part 1 of the definition in section 101 of the copyright law, consultation with a lawyer may be advisable. Second, if you do own the copyright, there is clearly an implied licence with the company to allow them to use it. It is arguable that the licence is exclusive since the software is bespoke and made specifically for the company. Can you sign an agreement now Yes, but … It is clear that the purpose of signing the agreement is to screw the company over (with the compliance of 2 of the directors). That’s a contract entered into in bad faith and possibly for an illegal purpose and would likely be found invalid. You need to understand that the company is a distinct legal entity from its owners and it has its own rights. People make the mistake of thinking the owners are the company: they aren’t. The two rebel founders are on dangerous legal ground. Assuming they are the directors of the company, they have a fiduciary duty to act in the best interests of the company. That is, they must put the company’s interests ahead of their own. It is clearly not in the company’s interest to have a rival business start so they cannot plan to do that while they are directors - they need to resign first. You are not so much at risk - as an employee/contractor your duty is to follow the directions of the company (the company - not a faction within the company). However, if you aid the other two in what might be a crime, you could be in trouble. |
Hetzner is trying to charge me for Bandwidth overuse and will not respond when I use the contact form A few months ago, I was using Hetzner Cloud for my VPS, and they blocked a server because someone seems to have DDoSed it. I requested it to be unblocked, and they ignored me. I also noticed they are trying to charge me about €50 for bandwidth overuse, which my bank is blocking. I am now banned from the Console, and cannot delete my account because I have "unpaid products". I have contacted Hetzner's support email, and they proceed to tell me that they require me to use the Contact Form on the Hetzner Robot Dashboard (and that I should be able to delete my account), and then they ignore me. I contacted them numerous times 3 months ago, and now I try every few weeks. Nothing changes. I'm not a lawyer. Is this illegal? Can I report them to the GDPR authorities for not allowing me to delete my account. I will not pay a €50 fee because some random guy decided to DDoS me. | They provide a snail- and e-mail way to end the contract here. This will not eradicate the €50 that they say you owe, but you can sort that out separately. That email address might also respond to inquiries about the validity of the charge. At any rate, they also give a link to online dispute resolution per Art. 14, para 1 of the EU Online Dispute Resolution Regulations. GDPR does not give one the right to be deleted so as to avoid an existing liability. | Can't we get a legal action about AdBlocker as web masters? No. I assume that by "web master" you mean a server admin who contracts with entities which are seeking to advertise their goods and services. An advertiser pays the server to transmit (or send(), in terms of a socket API) certain content to whoever submits a GET or POST request ("the client"). The scope of the contract ends there, and the end consumer or client is not a party to that contract. Any point beyond the server admin's routers, it is perfectly lawful for end users to run some program on the client side where the purpose of that program is to (1) parse any packets received in the client socket, (2) filter out some of it, (3) and forward the rest to a browser. Bringing legal action against AdBlocker would be somewhat akin to suing producers of TV remote controls under the allegation that the mute button functionality blocks advertisement content. | You could certainly allow twitter to delete the exchange, unless it is part of some record that the law in the relevant country require to be retained, which would be quite unusual. That would depend on the nature of the exchange, and the particular law requiring that records be retained. However, if the request is to be able to demand that Twitter delete the exchange, that would be much harder. In general a person or business is entitled to retain copies of communications, such as emails, sent to that person or entity. There is the "right to be forgotten" which applies under EU law, but that would not apply to records which a business needed to retain for its own legitimate purposes, and was not posting publicly, as I understand it. In any case Twitter is not an EU business, so I am not sure if the right would apply at all. (Twitter has an office in Amsterdam, so teh GDPR and other EU law clearly applies to it.) There might be some other basis on which such a demand could be made, depending on the detailed circumstances and the specific jurisdiction, but I cannot think of one offhand. | Could I get into legal trouble for this? No. Relax. Your three emails are very unlikely to cause a data privacy professor to feel harassed. Just move on regardless of whether he replies at all. Don't keep sending another email just because the recipient has not replied to your previous one. As for the issue that prompted you to start emailing the professor, what everyone else has told you is correct. And the other email user is unlikely to take court action for something like this. The effort and cost of drafting & filing suit, and then pursuing discovery would dissuade most people unless they are incurring actual losses (which is not the case with your messages). Just move on so that this other user also can move on. | No, there is no general publicly accessible directory of lawsuits against private individuals, even if it concerns yourself. The complaint must identify you as the defendant indicating a ladungsfähige Anschrift, § 253 Ⅱ, Ⅳ, 130 ZPO. Commencing an action requires service of process, § 253 Ⅰ ZPO. I presume you are not a De-Mail user. So you will get a hardcopy. You may not know that, but such mail in Germany is usually sent in yellow envelopes. The mailman will carefully compare the mailbox label and in case of a match record the date and time of successful delivery on the envelope as well as a slip of paper returned to the sender, the court in this case. Now this will obviously fail in your case (unless the landlord maliciously attached a corresponding label to a mailbox). In a civil action the court “pretends” to be dumb regarding facts. The landlord must try to track you down. Evidently he knew your email address, so he had some contact details. If he was evil, the next option would be to ask the court for an öffentliche Zustellung, § 185 ZPO. If the court agreed, this means there will be, for instance, in the city hall a paper on a bulletin board “To the attention of Coala, last known address …: There is mail for you to pick up at my office.” Two weeks later the letter is automatically considered to be delivered.Some cities (example: Cologne, NRW) also publish these documents on the internet, but due to GDPR considerations delete them after a certain period now. If there was a lawsuit, there will have been a default judgment by now, i.e. you will have lost just by being a no‑show. However, you said you have never received the bill. This means the landlord must have produced false evidence, claim to have sent the bill and a subsequent warning notice, but there was none. But this is an entirely different issue. | Can a moderation team in a game extend a ban that you have just because they want to TL;DR Yes and no. It's their platform and you broke the rules that you agreed to. Therefore, you forfeited your right to use the service for as long as they deem appropriate up to and including forever. In exercising this power they must act reasonably which, in the absence of anything in the contract (and I can't see anything) means that their response must be proportionate and offer you procedural fairness. It's possible that they haven't done this - it may even be likely. However, in order to have this overturned, clause 24 of the EULA requires you to take the dispute to arbitration. Clause 24.4 sets out how to initiate this. | If you operate from outside Germany but within the EU, it is generally sufficient to satisfy your own country's regulations. This is a foundational principle of the EU single market, though it's not quite realized yet and has exemptions for consumer protection purposes. However, the German TMG law which includes the Impressumspflicht explicitly enshrines this principle. So from the German Impressumspflicht perspective, you're good to go. However, you will not be able to operate anonymously, because of your country's laws. GDPR requires you to clearly state your identity and contact details in your privacy notice. If you engage in internet-based commerce, the EU eCommerce Directive will have caused your EU member state to pass legislation that requires you to disclose: your name the geographic address where you are established contact details incl an email address if applicable, registration numbers from trade registers or similar if applicable, your VAT ID Note that you must have a VAT ID for cross-border B2B sales within the EU. You state that you are not selling anything via your website, and are instead collecting payments via another website. What the consequences of this are would depend on the laws and caselaw in your jurisdiction, but you will have to make these disclosures on at least one of the two websites. About Germany going after bloggers who show ads: income from ads is taxable income, and operating a business requires registration. However, the German Impressumspflicht is rarely enforced by the state. Instead, other market participants (competitors) trawl the internet for potential violations and then send a cease-and-desist letter. They can do this because skirting legal obligations distorts the level playing field, which harms those competitors. There is a thriving cease-and-desist industry built around this, but it only affects businesses that operate within Germany. | The line they'll rely on for GDPR compliance is the first part of that sentence - "If you agree to this during the order process", which suggests that there will be a separate request to opt in to marketing communications at some other time in the process. Check any order documents. There's likely to be a tick box or similar on at least one. If that implies opting out rather than opting in there may be grounds to argue with that under GDPR, but there's nothing in the quoted text that suggests a problem. |
Is it actually illegal to ask about things such as pregnancy/family status/etc in a job interview? I often see articles saying questions are illegal to ask when interviewing a candidate. Something like this is a good example: Are you planning on becoming pregnant in the near future? Are you married? etc. From the EEOC site it's obviously illegal to use this to hire based on this information. However, is it actually illegal to ask this question or only illegal to act upon it? Does this change for a smaller company (say of <15 people, which is what the EEOC policies cover)? Also, assuming that it's legal for a <15 person company, does that change if an intermediate such as a recruiting company exists which is larger than 15 employees? Also, I understand that practically speaking it's a dumb question to ask and would never recommend it because there's effectively no way to take action based on the answer which is not illegal, if your company size is 15 or more (or ever depending on the answer to my questions). I am not actually sure if you legally could act on this with a smaller company as my read of the EEOC docs isn't clear. I'm also asking this because I am curious given how often this comes up and how quickly people label such questions as "illegal." | It ultimately depends on what Congress said when the relevant law was passed pertaining to that form of discrimination, how the enforcing agency has written the regulations, orders that have been issued, and how the courts have interpreted the law and regulations. EEOC Notice 915.002 states that Under the Americans with Disabilities Act of 1990 (the "ADA"), an employer may ask disability-related questions and require medical examinations of an applicant only after the applicant has been given a conditional job offer. Such questions must be "job-related and consistent with business necessity". There is a statutory underpinning to this declaration, 42 USC 12112(d) that The prohibition against discrimination as referred to in subsection (a) shall include medical examinations and inquiries and Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability. except that A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions. EEOC also says that In general, it is assumed that pre-employment requests for information will form the basis for hiring decisions. Therefore, employers should not request information that discloses or tends to disclose an applicant's race unless it has a legitimate business need for such information. Such inquiries are illegal in the sense that the EEOC "prohibits" it, and in the case of disability there is a direct statutory mandate to prohibit it. There is a legal principle, "Chevron deference", that says that the courts should defer to an agency's interpretation as long as Congress hasn't directly addressed the question and the interpretation is not unreasonable. Title 29(A)(35)(B) states the standards for detecting age discrimination for entities receiving federal funds, and while age discrimination is illegal, asking a person's age is not prohibited by specific regulation. The EEOC provides this manual regarding general race and color discrimination, and the section on "Evaluating employment decisions", where they say determining whether race played a role in the decisionmaking requires examination of all of the surrounding facts and circumstances. The presence or absence of any one piece of evidence often will not be determinative. So asking a person's race is not per se a violation of the law, but it is an act interpreted by the EEOC to be evidence of race discrimination. On the other hand, asking about disability is totally illegal so there's no "totality of evidence" to the process. The footnotes in the manual point to relevant case law: there is no case law that says "asking a questions about a protected category is per se proof of discrimination", but it can be used as part of a pattern of evidence. | 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. | (For a definitive answer, consult an employment attorney). According to the federal Equal Opportunity Employment Commission, in general, An employee cannot be forced to participate (or not participate) in a religious activity as a condition of employment. This requirement comes from Title VII of the Civil Rights Act of 1964. Answer 14 on this page elaborates: Some private employers choose to express their own religious beliefs or practices in the workplace, and they are entitled to do so. However, if an employer holds religious services or programs or includes prayer in business meetings, Title VII requires that the employer accommodate an employee who asks to be excused for religious reasons, absent a showing of undue hardship. Similarly, an employer is required to excuse an employee from compulsory personal or professional development training that conflicts with the employee’s sincerely held religious beliefs or practices, unless doing so would pose an undue hardship. It would be an undue hardship to excuse an employee from training, for example, where the training provides information on how to perform the job, or how to comply with equal employment opportunity obligations, or on other workplace policies, procedures, or legal requirements. So the questions would be: Is the activity in question a "religious service or program"? This might be ambiguous, and you might have to consult an employment attorney for a more informed opinion. Does it "conflict with your sincerely held religious beliefs or practices"? Would it be an "undue hardship" for the employer to excuse you? Note that this law might not apply to employers with fewer than 15 employees. It also doesn't apply if you work for an employer such as a church, or a religiously affiliated hospital or educational institution, or the like. | I believe in this case, your company (OrgX) is a data processor and your customer's organization (OrgY) is the data controller. OrgY is responsible for establishing a lawful basis for sending you (OrgX) the personal data for their employees. Note that consent is just one of six lawful bases outlined in article 6(1). I'm no expert, but I believe OrgY's admin can claim they have a legitimate interest in sending their employee's personal data for training sake. In either case, the data processor is not responsible for establishing the lawful basis for processing. Of course, data processors aren't completely off the hook. GDPR outlines specific requirements for data processors (see chapter 4, particularly article 28). | The European Convention on Human Rights has an article about privacy (article 8). Note that this is from the Council of Europe, which is not the same as the European Union: non-EU member states such as Russia, Turkey, and Azerbaijan are also part of the Council of Europe and therefore the ECHR. I'm not sure if you first have to go to a lower court, but the European Court of Human Rights is the authority on this (commonly mistaken for the European Court of Justice, but they are distinct entities). According to this ruling of the ECtHR, it is not illegal to monitor your employees' communications per se. However, the monitoring has to be: for legitimate purposes ("the employer had only accessed the account in the sincere belief that it contained only messages of a professional, not personal, nature"), proportionate ("it was the only possible way available"), and communicated to the employee (or, if the monitoring is not announced, at least the restriction on personal use should be communicated, for example through company policy). In the European Union, there is also the GDPR, but this does not change much. It applies to your employer the same as any other organisation and basically says that they have to be reasonable about it: collect only what they need, for a legitimate purpose, and tell you about it. I think you should be able to request a copy of any data they collected about you, ask a human to review an automated decision, and your other usual rights. They don't need your consent to start collecting data, as Esa Jokinen already commented: "GDPR doesn't even require consent to handle PII data, but the consent is just the last option when there's no other legitimate reason to process the data." In fact, your employer probably cannot ask you for consent: because of the employer–employee imbalance of power, the consent would probably not be considered to be freely given (where this article mentions "The GDPR states", I think they are referring to recital 43). | There is a potentially infinite regress of questions regarding the constitutionality of restrictions imposed under these "emergency" circumstances. The basic legal principle is clearly established: laws restricting fundamental rights are subject to strict scrutiny. The specific details of a particular law and surrounding circumstances have yet to be discovered by the courts. If it is necessary to the purpose of saving lives that meetings of more than 10 people be prohibited, then the "compelling interest" test probably has been satisfied. That is basically a medical question, and the courts have a limited interest in scientific controversies, instead they are interested in whether people who make legal decisions do so rationally (is it reasonable to think that such limits would accomplish that compelling government end). Is it reasonable to think that restrictions lasting two months are necessary? The Black Death lasted at least 4 years. In the current circumstances (very limited hard knowledge this disease), it's hard to say what government actions could not be excused based on necessity. Summary execution is, at least in the current knowledge context, probably not going to pass strict scrutiny. As already explained in other thread on the topic, there is no "churches are above the law" constitutional provision. The appropriate question in the Florida case is not about the First Amendment, it is about the Due Process clauses – is the arrest lawful? We will, no doubt, see. On the face of it, he violated the law, so he can be arrested. I understand that there is a team poking holes in the order. | In this statement of "Patient Rights & Responsibilities from Nash UNC it is said that: A patient has the right to know the names and the jobs of his or her caregivers. But I do not find any actual law that establishes such a right. Hospitals usually have a policy that doctors and other caregivers must wear name-tags and identify themselves to patients, but that does not necessarily apply to questions after the fact, nor can I be sure that any law mandates such a policy. | Volokh commented on this. There is no 2nd Amendment issue, nor does federal law. It may be illegal in some states, depending on whether age is included in public accommodation anti-discrimination laws. For instance, Conn. Gen. Stat. §§46a-64 says (a) It shall be a discriminatory practice in violation of this section: (1) To deny any person within the jurisdiction of this state full and equal accommodations in any place of public accommodation, resort or amusement because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, intellectual disability, mental disability or physical disability, including, but not limited to, blindness or deafness of the applicant, subject only to the conditions and limitations established by law and applicable alike to all persons; §46a-63 defines "public accommodation" (1) “Place of public accommodation, resort or amusement” means any establishment which caters or offers its services or facilities or goods to the general public, including, but not limited to, any commercial property or building lot, on which it is intended that a commercial building will be constructed or offered for sale or rent Public accomodation laws are how states deal with discrimination in sales, such as selling wedding cakes Illinois 775 ILCS 5/1-103 likewise prohibits age discrimination in public accomodations, but defines "age" as "the chronological age of a person who is at least 40 years old". Connecticut used to define "age" as "any age between forty and sixty-five, inclusive", but that clause was deleted. Lousiana also prohibits age discrimination (La. Rev. Stat. §51:2247). Their statement about age likewise limits anti-discrimination protection to "individuals who are at least forty years of age". Maryland in MD State Govt Code § 20-304 also bans age discrimination, and does not redefine "age" or limit the scope of those ages that are protected. So while it is generally legal to refuse to sell goods to the young (and sometimes mandatory, e.g. alcohol, firearms, tobacco), there are a few states where such a policy would violate state anti-discrimination laws. There can also be city laws (Seattle has very broad anti-discrimination laws), but they exclude age from the Public Accommodation subset of discrimination. |
Allergies, Sudafed, HIPAA, a prescription, and the logbook/databse A few years ago I learned about the Sudafed logbook-that-is-implemented-as-a-database. I had to do my own research about it because the person at the Walmart pharmacy didn't know anything and stammered out a few things, most of which made no sense. While doing research, I discovered several believable stories of people buying sudafed for allergies, yet were harassed and/or arrested by their local authorities. One particular example: http s://www.alternet.org/woman-allergies-arrested-and-imprisoned-buying-sudafed Putting your name in a controlled item database increases your risk to get arrested for possessing the controlled item. Fundamentally and unarguably. I'm not interested in getting arrested, nor trying to fight a legal battle if I do. Also, I'm not interested in doing anything illegal. I had thought that getting a prescription for Sudafed would solve my problem, since HIPAA should come into play. As far as I am aware of, it should, and it did (years ago I managed to get a Doctor to prescribe me some Sudafed). I stopped going to that doctor, and I think he died (old age), so I didn't get any more Sudafed, nor could I go back. Recently, I talked to a nurse and a pharmacy tech involved in my treatment and they said that HIPAA would not apply and that I'd still be logged in the database. Complaining about being in a database sounds kind of kooky, and people make out to be moreso than it is. However, knowing a couple things about how forensics, analytics, and the legal ramifications of how computing systems work, if you leak any information anywhere at any time, it can and will be used against you. I had heard that Sudafed's replacement is not effective, so I haven't tried it yet. Due to these hurdles, I'm thinking of giving it a try to see if it works for me. I use Claritan and Flonase as well, but it seems that I have different symptoms based on different allergens, so depending on the problem I use one or all of the three. Does buying OTC Sudafed enable the protections of HIPAA? Or do you and/or the pharmacy still have to record your details into the logbook/database? | The "logbook" is required by federal law, part of the Combat Methamphetamine Epidemic Act of 2005. See 21 USC 830 (e) (1) (A): Each regulated seller shall ensure that, subject to subparagraph (F), sales by such seller of a scheduled listed chemical product at retail are made in accordance with the following [...] (ii) The seller maintains, in accordance with criteria issued by the Attorney General, a written or electronic list of such sales that identifies the products by name, the quantity sold, the names and addresses of purchasers, and the dates and times of the sales (which list is referred to in this subsection as the “logbook”), except that such requirement does not apply to any purchase by an individual of a single sales package if that package contains not more than 60 milligrams of pseudoephedrine. "Scheduled listed chemical" is defined in 21 USC 802 (45) and includes pseudoephedrine (the active ingredient of Sudafed). As you can see, no distinction is drawn between prescription and OTC purchases. HIPAA became law in 1996. I'm not sure whether HIPAA would normally forbid the keeping of such a logbook (it mostly restricts how a provider can disclose information, not so much how it can store information), but even if it did, CMEA was passed later, so it would take precedence. Thus there is no way to "enable HIPAA" to avoid CMEA's requirements. (The passage quoted above does indicate a possible way to avoid the logbook: buy less than 60 mg at a time. That seems to correspond to two standard tablets. However, it's conceivable that a pharmacy might decide it wants to put such purchases in its logbook anyway; it's not clear to me that HIPAA or any other law would forbid them from making that a condition of purchase.) There may also be specific laws in your state placing further restrictions on pseudoephedrine purchases. | 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. | 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. | Without the patient's permission, the doctor cannot legally share the patient's health information with the patient's employer. Your Rights Under HIPAA: [...] without your authorization, your provider generally cannot [...] give your information to your employer Remedies for confidentiality violations include civil actions, administrative fines, and criminal charges. (Remedies for Violation of HIPAA Privacy Rights and Medical Confidentiality, HIPAA Violations and Enforcement, What is the Penalty for a HIPAA Violation) Individual states also have confidentiality laws that are violated by the hypothetical in the question. | Health care providers in the US may send protected patient records to other health care providers for the purposes of treatment, either of the patient whose information it was or of a different patient (for instance, a doctor could send a chart of a different patient with a similar issue). This can be done without patient authorization, except for two cases: if the patient has requested more restrictions on use of their information and the provider agreed to those restrictions, and with psychotherapy notes. Source: HHS. WhatsApp specifically does not appear to be compliant with HIPAA, which is the US medical privacy law. However, there are many similar systems that are compliant. The body of your question asks about taking a smartphone screenshot; with many secure messaging systems, this is perfectly acceptable, and the principle of a doctor consulting with another doctor about a patient is actually encouraged. HIPAA violations do not by themselves result in any action against a medical license, nor can anyone besides the US government file suit based on a violation (everyone else is limited to complaining to the US government). Private lawsuits and (especially) license consequences are determined by state law, and are state- and situation-dependent. A doctor who calls a press conference to announce that this patient of his has HIV is more likely to face sanctions than a doctor whose violation was just not using a secure enough messaging client. HIPAA violations like this are not that uncommon, and generally result in at most a fine against the practice. | The state health codes applicable to food are here esp. ch. V and here. The primary focus of those health codes is preventing the introduction of toxic substances or pathogens. There is obviously no law against serving meat, nor is there any law against half-and-half pizza. The only possible prospect for a health law addressing your interest would be via the allergy avenue (yes, you do not allege to be allergic to anything – my point is that even if you did, this would not help your cause). There are some provisions regarding training and informing when it comes to "major food allergens", which however is defined as Milk, EGG, FISH (such as bass, flounder, cod, and including crustacean shellfish such as crab, lobster, or shrimp), tree nuts (such as almonds, pecans, or walnuts), wheat, peanuts, and soybeans or proteins derived from the above. Note that mammal meat is not included (it may be an individual allergen, but it is not a statutory major food allergen). Even if you wanted to sue, you would have a very hard time establishing that you were damaged. First you would have to establish that they have a legal obligation to serve you "vegetarian food" (crucially undefined). You might be able to establish that they made such a promise. Now we have to determine whether a reasonable person would conclude that a pie with half-meat and half non-meat is clearly not vegetarian food. I do not believe that there is secular case law addressing this, so the courts would resolve this by determining whether there is a reasonable means for a vegetarian to eat part of such a pizza – obviously, yes, only eat the cheese part (leave wide margins). So there is no legal recourse for getting what you want: there are still ample political options. | The line they'll rely on for GDPR compliance is the first part of that sentence - "If you agree to this during the order process", which suggests that there will be a separate request to opt in to marketing communications at some other time in the process. Check any order documents. There's likely to be a tick box or similar on at least one. If that implies opting out rather than opting in there may be grounds to argue with that under GDPR, but there's nothing in the quoted text that suggests a problem. | Laws against such actions are not stated in terms of popular and fluid concepts like "computer virus", they are stated in terms of clear concepts like "unauthorized access". There are federal and state laws against this. This web site lists and links to all of the state laws on the matter. There is also a federal law: a detailed legal analysis by DOJ is given here. There are some limits to federal jurisdiction, for example "protected computers" include "computers used in or affecting interstate or foreign commerce or communication". The term "affecting interstate or foreign commerce or communication" is widely used in federal law, and can be used to prohibit growing feed for your own animals. Anything that you "send" clearly affects interstate commerce (the internet is internationally connected). 18 USC 1030(a) says Whoever ... (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains...(C) information from any protected computer Essentially, a computer connected to the outside world is protected. The key here is "without authorization". If you authorize MS to report back stuff about your computer, that is not unauthorized. It may not be possible to use their product without giving such authorization, in which case you can use a different product that doesn't require that you grant authorization. There is also the possibility that some software producer has technically violates the law because they think that it's okay for them to access the computer as long as they do no harm. Typically, people are not aware that they have granted software publishers access to their computer. The concept of "harm" is pretty much irrelevant to computer-crime criminal law. It would be relevant, though, if a plaintiff were to sue someone for sniffing around their computer: then you'd have to show that you were damaged. |
US laws of firing an employee This is a follow-up from my previous question. Following my discussion with HR about the ethical violation of my manager and some colleagues, I was suddenly fired without any prior notice from my current employer. They put a few false labels on me, and give me a termination letter. They also asked me to return the sign-on bonus back. What are the US laws for firing an employee? Shouldn't I get an unemployed payment for a few months or something similar? I'm in Texas, US. In the employment letter, the phrase "at-will" is used. | At Will Employment - In General An "at will" employee in the U.S. can be fired at any time for any reason without any prior notice or warning. Outside a union shop or a civil service employment situation, even an illegal reason for firing does not give you the right to be reinstated in your job - instead it gives you a right to sue for money damages. Unemployment Benefits and Employment References If you are fired for good cause (or you quit in a situation that is not a constructive termination), you are not entitled to unemployment benefits. If you are fired without cause particular to your conduct (e.g. you are laid off in the employer's reduction in the size of the employer's labor force), or your are fired for a reason that is not good cause (e.g. you are fire because the boss is annoyed because you are such a goody two shoes that you always show up to work on time), you may be entitled to unemployment benefits based upon your term of service and earnings (short time employees are often not entitled to unemployment benefits no matter what). If you apply for unemployment benefits because you assert that you were fired without good cause, and the employer believes you were fired for good cause, the employer can dispute that finding in a summary administrative hearing. Employers fight awards of unemployment benefits for employees who are fired rather than laid off, because it affects the employer's unemployment insurance rates (and because they care, for non-economic reasons, if the integrity of their stated reasons for firing someone are not believed, or if their reasons for firing someone are not considered to be legitimate grounds for termination by a government agency). Even if you are entitled to unemployment benefits, these benefits are much smaller than your regular pay, and generally last less long than the period for which you were employed. A formula or calculator should appear on the Texas Workforce Commission Website. I assume when you say that "They put a few fake tags on me" that this means that they stated reasons that would be valid "for cause" reasons for termination and you dispute those reasons apply to you, but please clarify if I am mistaken. If that is the case, it is likely that you would have to fight for any unemployment benefits you are otherwise entitled to in an administrative hearing as the company is likely to contest your claim that you were not fired for good cause. This also means that if you seek new employment that they will give you a bad reference to someone who inquires about your employment (although many HR departments are afraid to do that for fear of defamation liability and will only confirm the dates of your employment and your position). Wrongful Termination Lawsuits Separate and apart from unemployment benefits, if you are fired, not just without cause, but for an illegal reasons (e.g. race, sex, and select statutory prohibited reasons), you may bring a wrongful termination lawsuit. Some of those reasons (firings related to discrimination by a private sector employer) require you to file an EEOC complaint and have it investigated by them first, other of those reasons (mostly whistle blowing statutes and breaches of written employment contracts that don't allow for termination of employment without cause) allow you to immediately bring suit for wrongful termination. The legal status of firing someone because you complained about another employee's ethical violation depends upon the exact nature of the ethical violation. For example, a U.S. Supreme Court case decided this month (i.e. February/March 2018) held that whistle blower protections under U.S. securities laws apply to people who report securities fraud to the SEC, but not to people who report securities fraud to a supervisor in the company. "My fellow employee was a lying asshole who acted unprofessionally (in non-technical sense of the word), and I complained about this conduct to my supervisor and the employer didn't care" standing alone, would not normally constitute conduct that is covered by a whistle blowing statute that could allow you to bring a lawsuit for wrongful termination of employment, although it might constitute a constructive termination for bad cause by an employer (if you quit) or termination for bad cause by an employer (if you were fired) for unemployment insurance purposes. The legal theory behind the amount of damages that can be awarded in a wrongful termination lawsuit is a bit obscure. As a rule of thumb, six months wages is a pretty typical settlement amount in a wrongful termination case prior to a determination by a court of employer liability. At trial, there is wide variation in what juries award in wrongful termination lawsuits involving similar facts. Sometimes the award is minimal even when the jury finds that the employer wrongfully fired you, and sometimes the award is very substantial, amounting to many years of lost income in amount. Contractual Payment Obligations Generally speaking, unless a written contract provides otherwise, you have no obligation to return a hiring bonus and the employer has a contractual duty (and probably a statutory one as well) to pay you through the date of termination without deduction for a hiring bonus paid. This includes any amounts, including bonuses, that the employer was obligated to pay you, although proving an entitlement to a bonus can be difficult unless that standard for receiving one is clearly defined and you clearly met those standards as a factual matter. Sometimes, you can even win a breach of contract award for a bonus that was not yet fully earned if the only reason that the bonus was not awarded was the employer's bad faith conduct. You could sue to collect unpaid wages in a Justice Court (the limited jurisdiction court for small claims in Texas) if necessary, if the amount you are claiming is under $10,000. If you have a claim for unpaid wages in a larger amount or also have other damages, you would need to bring suit in the appropriate county court or district court, depending upon the amount claimed. | I do not believe that Idaho has such a law. This is not the end of the analysis, however. It isn't clear that saying you do not have a conviction, when in fact, you have a conviction that was dismissed, is a permissible ground for an Idaho employer to, for example, justify the termination of your employment for an improper reasons (e.g. national origin) when the employer, after the fact, discovers that you have a conviction that you did not disclose because it was dismissed. An Idaho court could easily rule that the non-disclosure of a conviction which was dismissed was not a material fact upon which an Idaho employer could justify terminating your employment when it was discovered after the fact. Likewise, fraud prosecutions generally require a misrepresentation to be made regarding a "material" fact, and not just any fact. In the same vein, while misstating your middle name might be a misrepresentation, it might not be an actionable misrepresentation of a material fact. | The first question would be whether you are an employee, or an independent contractor. There is more to that determination than how the company labels you, but that is a starting point. Based on the minimal autonomy that you imply that you have, you would probably be found to be an employee. Then there are limits on the number of hours that you can work in a week or day, which they are complying with. The employer is required to record the hours that you worked, and it is a crime to keep false records. It is also required that an employer pay for the time you work. Therefore the employer cannot legally refuse to pay you for your labor, and they cannot legally falsify records. The employer can limit your pay to 15 hours per week, if you work just 15 hours per week. They can also set ridiculous performance standards, whereby at the end of the week you will not have done what they wanted you to do. Their only recourse is to dismiss you. In response, you can file a complaint, but note that the concept of "wrongful dismissal" under the act is about entitlement to termination or severance pay. The arbitrator may find that the employer contravened the act, and can order them to rescind the termination. Or, before you get fired, you can complain and the arbitrator could order the employer to either modify their work requirements or else to pay you for the time worked. The difficult point (for you) in this case is that the act does not address employer performance expectations, and employers are generally allowed to set their own performance standards. If you have a written employment contract, there might be provisions regarding termination which could help you. Without a written contact, there is no statutory provision that prevents an employer for terminating you, but they may have to give you notice and pay for doing so, as long as you are not terminated for "just cause". Hoang v. Mann, 2014 ONSC 3762 is an Ontario case where an employee was terminated for just case based on insubordination, job performance, inability to get along with co-workers and so on. On the front of job performance, the courts have found that an employer must clearly communicate standards to employees, and give employees an opportunity to meet those standards. But they do not generally decide e.g. how many units per hour an assembly-line worker can reasonably be expected to complete. | First Part OR 324 is quite the right article for this. If the employer doesn't want that you work (because he has nothing to do for you) it's his problem, not yours. He still has to pay if you are there and ready to do work. This is for instance also mentioned in this article. The meaning of this is obvious if having a contract with a fixed number of work hours per day/month/year. Second part Prove that you have a fixed work contract. If the shift plans are made in advance you have a proof that you have a certain number of hours to work (and thus an expected income). If I interpret this here correctly, this is "echte Arbeit auf Abruf" (true work on request), because if your employer wants your work, you have to be there according to the shift plan, as opposed to your employer asking "who is ready to work tonight?". So your employer must pay you the hours agreed on in the shift plan, regardless of whether he has work for you or not (but you must explicitly tell him that you are willing to take work). Third part Can the employer change the shift plan, and to what extent? The employer must announce changes to work hours as soon as possible, and changes on short notice are only acceptable in emergency cases. A reduction in work hours due to not enough work shall not reduce the employee's salary. The business risk is entirely with the employer and he must not shift that responsibility to his employees. (That was common in the late 19th and early 20th century, with all the officially self-employed home workers in the textile industry). Here is a federal court decision that affirms this (BGE 125 III 65 S. 66). | In germany, this is called Friedenspflicht. Both employers and employees (and their unions) are required to refrain from strikes and lockouts in disputes on issues which are covered by a currently valid collective bargaining agreement. The agreement may also stipulate that there will be no labor actions on issues which are not covered, as long as the agreement is in force, but that is not necessary. Example: There is a collective bargaining agreement on wages, which is still running. Strikes for higher wages are prohibited. Strikes to get better staffing for the night shift would be allowed, if the agreement doesn't say how many employees should be on duty even during slack hours. | In general, employers in the United States are free to fire you for your speech. The First Amendment does not apply to anyone except the government (other than a narrow set of circumstances where private parties act on behalf of the government or take on government roles, like when private universities employ campus police). If the officer was being fired from a job at a private company, this would not be an interesting question -- the answer would clearly be "no, there is no First Amendment claim here." That’s not to say labor laws might not come into play (for instance, federal law prohibits firing an employee for organizing a union, and some states prohibit firing for off-duty political speech); however, labor law protections exist by statute and are not derived from the First Amendment. What makes this interesting is that the government is involved. Unlike private employers, government agencies are bound by the First Amendment. In Pickering v. Board of Education, the Supreme Court held that this does restrict them in their role as employer and that they can't necessarily fire an employee for speech. Pickering imposes a balancing test, where the harm to the employee's First Amendment rights is weighed against the government's interest in efficient operation. Courts have given particular leeway to police departments punishing speech that would undermine public trust and confidence in the department. A police officer expressing racist views, even privately, can seriously hamper the effectiveness of the department if the speech gets linked back to them. For instance, see Pappas v. Giuliani, where the Second Circuit upheld the firing of an NYPD officer for anonymously mailing racist diatribes from home in his off-duty time. Another answer suggests that the main question is a public safety one: whether the officer could be trusted to carry out his duties without bias. But that's not the only legitimate consideration for the government employer. The courts have repeatedly held that public perception of an agency is a legitimate concern, especially when it comes to agencies (like the police) whose job requires maintaining good relations with the community. In Pappas, the officer was assigned as a computer operator who had no contact with the public, but he was still a police officer whose speech had a high potential to undermine NYPD community relations. | It is. Part 2 Chapter 1 Section 8 specifically says "People who are not married or civil partners do not have this characteristic." In practical terms, a claim for unlawful dismissal would not have to rely on this Act or this Characteristic. Many company handbooks refer to avoiding discrimination on "marital status", so the claim could be made that the company had acted against policy. Not as strong as national law, but likely to succeed in absence of other factors. Single people who were expected to cover shifts that people with a family consistently avoided could argue constructive dismissal on "making unreasonable changes to working patterns or place of work without agreement" grounds. And cases of sexual harassment are as likely to refer to Sections 11 or 12 of the Act as to Section 8. There appears to be some interest in this - north of the border if not in England and Wales - and perhaps less jurisdictionally in Bella De Paulo's article for Psychology Today, which concludes "All serious forms of prejudice and discrimination go through a similar process of going unrecognized, then getting dismissed and belittled once people start pointing them out, and in the best cases, eventually getting taken seriously. Ruth Bader Ginsburg noted that when she was first appointed to the Supreme Court, the other judges did not think gender discrimination existed. ..." | They can ask, but there is nothing in law - that I can find - which obligates an answer. (There may be some exceptions that require a previous employer to provide a reference which might include this detail, but that does not appear relevant here.) As an aside, there is an ongoing #EndSalaryHistory campaign by the Fawcett Society which is focused on equal pay and sexual equality in the workplace, and they are calling on employers to: stop asking salary history questions... |
How does the US constitution apply to aliens? Does the constitution of the US extend its protections to— legal aliens in the US (e.g. visitors from overseas), and illegal aliens in the US (e.g. someone who has stayed beyond their visa's validity)? | The answer is "it depends on the protection." Even illegal aliens are afforded certain rights by the US Constitution. For example, that fact is one of the reasons for the prison in Guantanamo Bay. Another consideration, for protections or rights that are available to citizens but not to aliens, is that the determination of citizenship or alienage must be subject to the right of due process. Without that, the executive branch of government would be able to, for example, remove or exclude anyone from the United States, or commit anyone to indefinite immigration detention, simply by asserting that the person is an alien, without review by the judicial branch. There is a discussion, with references, here: https://www.law.cornell.edu/wex/alien. This mentions the fifth and fourteenth amendments, as well asthe fourth, as applicable to aliens. Pertinent quotations (emphasis added): Aliens also receive treatment very similar to the treatment that U.S. citizens receive in the context of the judicial system. For instance, the Fifth and Fourteenth Amendments of the United States Constitution apply to aliens residing within the United States. As such, the courts guarantee aliens the right to due process of law and equal protection of the laws. Courts have generally construed the Fourth Amendment as applicable to aliens as well. The Fourth Amendment prohibits the government from conducting unreasonable searches and seizures. Congress has the preeminent power in terms of passing statutes that regulate immigration and alienage. Consequently, the United States Constitution enables Congress to delineate the rights, duties, and liabilities that accompany legal immigrant status. Congressional power in this realm, however, must comply with the qualification that any law resulting in disparate treatment between aliens and citizens must bear some relation to a legitimate goal impacting immigration law. When a law treats an alien differently from a U.S. citizen, courts treat the law as inherently suspect and apply strict scrutiny when considering the law's constitutionality. States possess the power to confer additional rights on aliens within their respective jurisdictions. While states may not pass regulations affecting aliens that directly conflict with federal laws or the U.S. Constitution, states may pass other regulations if they bear some rational relationship to a legitimate state interest. State law controls the right of an alien to hold real property in the particular state. Under common law, the alien had property rights similar to those of citizens. Currently, most states have enacted statutes following the common law, but a few have forbid aliens, ineligible for U.S. citizenship, from holding or acquiring real property. These laws have resulted in some successful challenges by aliens who claimed the laws were unconstitutional. ... When invoking federal question jurisdiction, federal statutes provide aliens with access to the federal court system in the following three scenarios: allegations of civil rights violations by the federal government, allegations of Equal Protection Clause violations by the federal government, and allegations of violations of the Refugee Act of 1980. A strict reading of the text sheds some light on the matter. For example, many constitutional rights are specified by limiting the power of congress; such a limitation applies to all people under the jurisdiction of federal law. For example, the First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Similarly, some rights explicitly granted by the constitution are typically granted to "the People," without reference to nationality. The Fourth Amendment: The right of the People to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (The question of whether "the People" implies "of the United States" may explain the qualifier "generally" in the sentence above discussing applicability of the Fourth Amendment.) Some rights are granted specifically to "persons"; the courts appear to have concluded that this applies to everyone regardless of nationality. The Fifth Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Finally, some rights are expressed as procedural rules applying to the courts. As with limitations on congress, these apply to anyone who is party to a relevant action. For example, the Sixth Amendment applies to "all criminal prosecutions": In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. The Seventh Amendment applies to all "suits at common law": In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by Jury shall be preserved, and no fact, tried by a Jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law. | The US has jurisdiction because the systems that the accused allegedly attacked are in the US. To use an example with older technology, you can't escape criminal liability for defrauding someone in one country simply because you did so through the mail or by telephone from another country. The UK and the US have an extradition treaty. The UK might refuse to extradite the accused; in that case the US would most likely complain loudly. If too many extradition requests are refused on one side, the other side might start limiting cooperation in any of several areas. | In theory, this should be protected by the UN Dec. of Human Rights: Article 13 1. Everyone has the right to freedom of movement and residence within the borders of each State. 2. Everyone has the right to leave any country, including his own, and to return to his country. Since it does not specify the type of movement, or restrict its dimensions, this could be construed to include freedom of movement through time as well as space. Other than that things like this there is no real law regarding this. | The newly-reinstated presidential proclamation says (Sec 3(b)) says The suspension of entry pursuant to section 2 of this proclamation shall not apply to: (i) any lawful permanent resident of the United States; The State department also lists exceptions to the travel ban on 8 countries, identifying those who "will not be subject to any travel restrictions listed in the Proclamation" d) Any lawful permanent resident (LPR) of the United States; Requesting / receiving a passport (or renewed passport) from your current country of citizenship does not invalidate your permanent resident status. Additionally, State says No visas will be revoked pursuant to the Proclamation. Individuals subject to the Proclamation who possess a valid visa or valid travel document generally will be permitted to travel to the United States, irrespective of when the visa was issued. If you stay out of the country too long, that could cause a problem. If you plan to stay away more than a year, you have to first apply for a reentry permit. This is the current state of the law, which is subject to change. | 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. | From Roberts' dissenting opinion: Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition. (The Due Process Clause is not a guarantee of every right that should inhere in an ideal system.) In my opinion, this quote speaks as much to the second question as the first. Assume (hypothetically) for a moment that question one was not at issue. If a state defined marriage as only between opposite sexes, and the right to make a state change its definition of marriage is not in the Supreme Court's purview (in our hypo), then the state is as free to reject the validity of marriages abhorrent to its laws, performed elsewhere, as it is to deny the right to marry under its theory of marriage. | Constitutionally, a person is only required to be granted U.S. citizenship if they are born in the United States. Any other form of citizenship is as provided by statute. So, 8 U.S.C. § 1409 makes some people citizens who would not otherwise be citizens in its absence. In that sense, it grants citizenship. Meanwhile, 8 U.S.C. § 1409(g) supports the proposition, which is a legal fiction in some cases, that someone is a "natural born citizen" of the United States, and hence eligible to run for President someday, and is retroactively considered to have been a citizen in the meantime for myriad other purposes, despite the fact that in the case of an unmarried non-citizen mother and a citizen father, this right is not vested and could never come into being if the required actions aren't taken after the fact. Incidentally, this statute has been upheld against constitutional challenges. Miller v. Albright, 520 U.S. 420 (1997). So, while you would like to clearly distinguish between someone having citizenship granted and having citizenship revoked, Congress, in its wisdom, has not been so accommodating and has declined to clearly distinguish between the two interpretations. This statute is a bit like the question of Schrödinger's cat, who is indeterminately alive and dead at the same time until there is a measurement of its state, in quantum physics. A person with an unmarried non-citizen mother and a citizen father is both a U.S. citizen from birth and always has been, and has never been a citizen of the U.S., until the situation is resolved with an actual determination of the question in accordance with the requirements of the statute. | Does this person have witnesses to his existence? Particularly before the age of five? Under 8 U.S. Code § 1401, native-born citizens include 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; If he appears out of nowhere, he is likely to be suspect of illegal immigration. Age may be a factor there, too. |
Is there a site that lists all EU members' Statutory Instruments for specific laws (like MLD4, UCITS etc.) I'm new here and don't have a law background but my field (finance) often overlaps with legal aspects quite a bit. I was hoping someone might be able to steer me in the direction of a good (free!) online reference that I could search specific EU member statutes? For the overarching directives etc. I have eur-lex.europa.eu which I've found good and I also have my local (Irish) statute (www.irishstatutebook.ie) but what would be really useful is a site where there was effectively a matrix of enacted law dictated by the EU per each member (like again, the UCITS regulations differ slightly form member state to member state).. does such a resource exist? | Each directives page on eur-lex has a "national transposition" page. For example, directive 2009/65/EC, concerning UCITS, is available at https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:32009L0065. There is a navigation box at the top left with several relevant pages: Text Document information Procedure National transposition Summary of legislation (Before the recent site redesign, these were shown as tabs across the top of the page, so for the lack of a better term, I will call these "tabs.") The Document information tab shows, among other metadata, relationships with other EU acts. One useful section on this page is the All consolidated versions section, which is a set of links to consolidated versions of the document, indicated by date. The answer to your question is the National transposition tab, which shows "National transposition measures communicated by the Member States." It is worth noting the disclaimer: The member states bear sole responsibility for all information on this site provided by them on the transposition of EU law into national law. This does not, however, prejudice the results of the verification by the Commission of the completeness and correctness of the transposition of EU law into national law as formally notified to it by the member states. The collection National transposition measures is updated weekly. The list of national acts is in the form of links, which lead to pages that seem designed to present the text of the national legislation, but in the examples I have checked say nothing more than "Text is not available." Perhaps there are some instances, or will be in the future, where these contain links to national legal information sites. As it is, there is enough information to enable one to search the national sites to find the relevant legislation. | One can find contradictory claims out there. Here is an English version of the marriage law. There is a surprising amount of legal rigamarole (in Norway, as well) pertaining to clearing "impediments". Assuming that the parties have done their part, then we move to Chapter 4. Article 16: Marriage may take place before a minister of the church, a representative of a registered religious organization empowered to perform such ceremonies, cf. Article 17, or before a civil official so empowered So turning to Article 17: Religious solemnization of marriage shall be performed by the ministers of the National Church, and priests or other representatives of registered religious organizations in Iceland who have been empowered to perform such ceremonies by the Ministry of Justice and Ecclesiastical Affairs and that is now part of the Ministry of the Interior. I can't find any indication that ULC has been approved. There are 49 religions officially listed by Statistics Iceland, including Siðmennt, a secular humanist organization which gained official status on May 3rd, 2013 when the organization was officially registered as a secular life stance organization under a law passed in the Icelandic Parliament on January 30th of that year. A formal ceremony was held by the Interior Minister Ögmundur Jónasson who had strongly supported our cause, to mark this historical event. As a result, Siðmennt gained the same legal and funding status as religious life stance organizations in Iceland. Weddings conducted by Siðmennt celebrants since then are legal and couples no longer have to go to government offices for that purpose. In light of the fact that Siðmennt is officially listed and ULC is not listed, I would conclude that you did not accidentally marry anyone, even if they had dealt with the impediments. | The EULA is in most jurisdictions a legally binding contract; there is plenty of case law that supports this. You can only be liable under a contract for breaching its terms and only to the extent that the other party suffers harm from that breach. Clearly, if you haven't read the terms then you are greatly increasing the chance that you will inadvertently breach them but not reading them would not, of itself, be a breach and I can't see what harm could flow anyway. | First of all derivative works are not exactly "illegal". They are fully legal if the owner of the copyright in the original work has given permission. If no permission has been given, they may be copyright infringements. But they may fall under an exception to copyright. Under US law, the most common exception is "fair use". See this question and answer for more on fair use. But particularly relevant in this case is that a parody is usually a fair use, although as in every fair-use decision, there is pretty much no clear-cut, hard&fast rule on what is and is not fair use. In the UK and much of the EU (or maybe all of it, I am not sure) there is a somewhat similar concept known as "fair dealing". It is also an exception to copyright. So it is possible that such works fall under fair use, fair dealing, or another exception to copyright, or that the rights-holder has given permission. Secondly, copyright infringement is a tort, not a crime, under most circumstances. It is enforced when, and only when, a copyright-holder chooses to take action, sending a take-down notice or copyright complaint, of filing suit for infringement. Some rights-holders choose as a matter of policy not to take such actions, thinking that such derivative works actually benefit them. That is their choice to make. Some rights-holders don't have the time or money to track down and take action against most infringements, and will only act if they think the derivative work will in some way cost them a lot of money or harm their reputation. Some rights-holders may just not have heard, yet, of specific possible infringing derivative works. As for Acta2, it has not yet been approved, the Wikipedia article linked in the questions says: In order for the text of the directive to become law in the EU, it must be approved by the European Council on 9 April 2019 The article also mentions significant continuing opposition. If it is approved, it is not clear, to me at least, how it will affect sites hosting such content, nor how it will interact with the copyright law of individual EU nations. If approved, it will no doubt take some time before enforcement is widespread. And of course it will only apply when EU law applies. If both site and author are outside the EU -- say if both are from the US -- it seems that it could not apply. | In practice, common law courts turn to academic writing, either law review articles or legal treatises or the "Restatements of Law", on a regular, but infrequent basis. These sources are not binding sources of legal authority but can shed persuasive light on the logic behind a legal rule or the course of action that has been taken in previous similar cases. In civil law countries (i.e. those not descended from the legal system of England), there are far fewer circumstances in which court precedents are sources of law. Much of the gap in credible sources for how ambiguities in the statutory law should be interpreted in these countries comes from academic writing. In a typical civil law country, a leading law professor has more impact on how the law is interpreted than senior appellate court judges. Again, academic writings are not binding legal authority, but in the absence of alternative sources for material interpreting statutes, they are very persuasive. | No GDPR applies to people (not just citizens) who are in the EU. It has no applicability if both parties are not in the EU. | england-and-wales Short Answer: Paying legal fees for a criminal organisation is not (by my reading of the law) an offence. But if it is, retrospective legislation is prohibited in all but a few situations. Long Answer: There are two issues here: Support for an organised crime group This is an offence contrary to section 45 Serious Crime Act 2015: (1) A person who participates in the criminal activities of an organised crime group commits an offence. (2) For this purpose, a person participates in the criminal activities of an organised crime group if the person takes part in any activities that the person knows or reasonably suspects— (a) are criminal activities of an organised crime group, or (b) will help an organised crime group to carry on criminal activities HOWEVER it seems unlikely that "donations to help them afford the legal costs they face after their actions" would meet the emboldened requirements at subsection 2(b) as it does not appear to be supporting "criminal activities." That said, each case will be considered on its own merits. Retrospective legislation Generally, this is prohibited under the European Convention on Human Rights, enacted under Article 7 Human Rights Act 1988: No punishment without law 1 No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2 This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. However, paragraph 2 does allow for retrospective legislation if the need arises. For example the War Crimes Act 1991 retrospectively criminalises murder etc committed in Germany or its occupied territories during the second world war. Although tagged germany, I have answered according to the LawSE Help Centre: "we expect and encourage answers dealing with other jurisdictions ... please tag your answer using the tag markdown: [tag: some-tag]" | No, this would be a huge issue because there are many many treaties, institutions and other agreements which are tied to the EU itself, which would then basically be owned and fully controlled by Hungary. The nation states leaving via Article 50 would have zero claim to those EU-owned assets, and would basically (in the case of the European Central Bank for example) be handing huge amounts of power and wealth over to Hungary. Talk about cutting your nose off to spite your face... |
When and how is the advocacy of violence illegal? Today I saw a t-shirt reading "Kill a liberal, save a taxpayer." Also I have heard that the right to free speech does not extend to the right to shout "fire!" in a public theater. But if I did choose to exercise non-free speech, what would happen? What statutes exist against wearing a t-shirt that advocates violence against a particular group? If I wore such a t-shirt and the police decided it broke the law, what would be the consequence? Is this illegal at the federal, state, or local level? How does it vary, if not enforced by the US federal government? | There are venue restrictions where political speech is restricted, such as on military bases; content restrictions (transmitting classified information to the world); you cannot defraud by saying false things in order to get something, you cannot defame a person, you cannot speak obscenely (though it's hard to tell what counts as "obscenity"). You cannot appropriate other people's property in speaking (i.e. copyright law is a restriction on speech). The type of speech restrictions seem to pertain to speech and violence caused by such speech. A classic limitation is that you cannot speak "fighting words" (Chaplinsky v. New Hampshire 315 U.S. 568), which in 1942 meant calling someone a "damned racketeer" and "damned Fascist", which the court characterized as "inherently likely to provoke a violent reaction". The court subsequently refined its position on "provocative" speech. In Virginia v. Black 538 U.S. 343 a law against cross-burning was found to run afoul of the First Amendment as a restriction on political expression, but it would be fully consistent with The Constitution to outlaw "cross burning carried out with the intent to intimidate". This states may "prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm". The current position is that you cannot incite to the imminent use of force. In Brandenburg v. Ohio 395 U.S. 444, the court stated that the First Amendment does not "permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action". There are myriad laws against threats, for instance in Washington you may not "knowingly threaten(s) to cause bodily injury immediately or in the future to the person threatened or to any other person", and you can't do that ("knowingly cause another to believe that the offender will cause serious physical harm to the person or property of the other person") in Ohio either. You can't get away with threatening "to commit a crime which will result in death or great bodily injury to another person" in California. This class of restrictions on speech seems to be quite robust. You may not induce panic in Ohio, e.g. shout "fire" in a theater -- I don't know if any other state has such a law. | As mentioned in a comment by @Dancrumb, the exact policies of each local police department will be different, and there are thousands of them. There is a relevant requirement at the Federal level according the Department of Justice, but it is not clear to me to what extent this applies to peers and not just supervisors: An officer who purposefully allows a fellow officer to violate a victim's Constitutional rights may be prosecuted for failure to intervene to stop the Constitutional violation. To prosecute such an officer, the government must show that the defendant officer was aware of the Constitutional violation, had an opportunity to intervene, and chose not to do so. This charge is often appropriate for supervisory officers who observe uses of excessive force without stopping them, or who actively encourage uses of excessive force but do not directly participate in them. | "If it were not assize-time, I would not take such language from you." (said while grabbing the handle of sword) This is a famous conditional threat where the speaker/actor was not found to express intent to do harm; perhaps better called a negative condition. This probably confuses matters but if you are to search for more answers this could be a good place to start. One of the elements of common law assault is that the threat must be able to be carried out immediately; it must be imminent. I do not have a cite for this but I recall that this means that conditional threats are excluded from assault. So calling a politician on the phone and telling them that if they do not drop out of a race you will hurt them is not assault. So, "You cut that out now or you’ll go home in an ambulance" sounds a lot like, "stop or you will get hurt." The victim has the opportunity to avoid the danger; the threat is not imminent. But the facts here are interesting because the speaker touched the victim while speaking which might mean fear of imminent was real. But they were in a crowded room in front of cameras - could the victim really feel that threat was imminent? Plus, the "you will go home" implies a future harm. Oh, and the speaker does not say "I will hurt you," maybe she was actually trying to protect the victim from someone else's actions. Like when my teacher knew someone was waiting outside the classroom to fight me and she told me, "if you go out there you will get hurt!" I would hope that a jury would consider this hard bargaining. | Questions about "why a law is ..." are political questions not legal questions and you may get better traction on politics. However, I will address the legal issues and offer some speculation on the politics. The states named in the preamble to the Constitution (an Act of British Parliament) as original states were New South Wales, Victoria, Queensland, South Australia and Tasmania. Western Australia was not named at the time of the passing of the Act or Royal Assent because the people of that colony had not vet made their mind up. Legal Issues WA decided to join in a vote held on 31 December 1900 and Australia came into being on 1 January 1901. Therefore, even though not named as such, WA was an "original state". Since all 6 states in the Federation are "original states" the clauses have no practical effect at present. However, there have been a number of proposals to add new states, either by subdividing existing states or by granting statehood to the territories of Northern Territory and/or the Australian Capital Territory. If such were to come to pass, the clauses would have practical effect. In 1998, Norther Territorials rejected an offer of statehood that would have given them 3 senators as a state and 2 representatives based on population (currently they have 2 senators and 2 representatives). Clearly, they were not being given the same privileges as an "original state". In 2015 all Australian governments agreed in principle that the NT should become a state by 2018, however, as it is now 2017 and no action has been taken this seems unlikely. Political Issues Politics is complicated: just as much in the late 19th century as it is in the early 21st. Negotiations between the colonies were fraught and federation was by no means a certain outcome. New Zealand and Fiji dropped out early and each forged its own path to nationhood. However, by the late 1890s it was clear that the 5 eastern colonies would federate with or without Western Australia. It seems likely that this provision served multiple purposes including: putting pressure on WA to join at the outset - the deal they got as a "Johnny come lately" may not have been as good. protecting "white" Australia - the drafters of the Constitution were men of their times, that is to say: racist, misogynist bigots. Any non-original states were likely to be former British colonies in the Pacific or South-East Asia, this clause would allow the nation to reduce the influence these non-white states might have. | It could lead to investigation and wasting of government resources, but it is not a crime and not civilly actionable, under the circumstances described. The First Amendment right to say crazy things is pretty broad. | The First Amendment generally prohibits the government from taking any actions to limit your speech, the same as adults. There are certain exceptions, particularly if you are enrolled in a public school, which has some latitude to impose speech restrictions to “avoid substantial interference with school discipline or the rights of others” Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, (1969). While you are a minor, though, your parents have virtually unlimited freedom to limit your freedom of speech. If they want to punish you for buying a hat or saying things they disagree with, they can generally do that. EDIT: The hat you've linked to probably would not fall within the Tinker exception. A similar case arose in Schoenecker v. Koopman, 349 F. Supp. 3d 745 (E.D. Wis. 2018), where a student was removed from class for wearing similar apparel supporting Second Amendment rights. The school made a vague allegation that his shirts were disruptive, but the court found that its concerns about disruptions were largely unreasonable and unsubstantiated. See also N.J. ex rel. Jacob v. Sonnabend, No. 20-C-227, (E.D. Wis. Nov. 6, 2020). | An example of where this is not allowed is Seattle, WA. Municipal code SMC 12A.06.025 states It is unlawful for any person to intentionally fight with another person in a public place and thereby create a substantial risk of: Injury to a person who is not actively participating in the fight; or Damage to the property of a person who is not actively participating in the fight. B. In any prosecution under subsection A of this Section 12A.06.025, it is an affirmative defense that: The fight was duly licensed or authorized by law; or The person was acting in self-defense. You can see from adjacent sections that "mutual combat" is not legal. I recognize that there is this meme about Seattle, but this is a distortion of an incident when the police turned a blind eye to a fight. We have police issues, no doubt: there is nothing legal about such fights. Of course, for a licensed event, you can "fight". Of course the potential legality depends on how mutual combat is defined. Illinois v. Austin 133 Ill.2d 118 and citations therein, subsequently Illinois v. Thompson, 821 NE 2d 664 define it thus: Mutual combat is a fight or struggle which both parties enter willingly or where two persons, upon a sudden quarrel and in hot blood, mutually fight upon equal terms and where death results from the combat. Similar death-definitions are found in Donaldson v. State, 289 SE 2d 242, Iowa v. Spates, 779 NW 2d 770. The law looks askance of such behavior. For the sake of clarity, a term other than "mutual combat" would be preferable. | Leonard's law says that the school can restrict speech if it is against the religious tenets of the organization. Now I don't think school uniforms fall are part of the tenets of Catholicism, so why can private schools enforce dress codes? I see there's a misunderstanding of the Leonard's law. But I fault the California legislators (not you) for that confusion, since the statutory language is ambiguous and leads to the reasonable interpretation your inquiry reflects. The statute reads: (c) This section does not apply to a private postsecondary educational institution that is controlled by a religious organization, to the extent that the application of this section would not be consistent with the religious tenets of the organization. It is not that a religious school is allowed to restrict speech if it contravenes the tenets of that religion, but that the statute altogether is inapplicable to religious schools because it is considered an infringement of fundamental liberties to which religious institutions are entitled in the US. The [religious] school would prevail on the basis of the ecclesiastical abstention doctrine. See Dermody v. Presbyterian Church (U.S.A.), 530 S.W.3d 467, 474 (2017): The ecclesiastical-abstention doctrine prohibits courts from deciding cases "dependent on the question of doctrine, discipline, ecclesiastical law, rule, or custom, or church government[.]". (Please note that I strongly disagree with the application of that doctrine in the Dermody case and I consider it impermissibly outdated for the controversy litigated therein, but that is a separate issue). A religious school could convincingly argue that the judicial review of its uniforms policy infringes matters of ecclesiastical discipline/rule/custom, aspects which ultimately "involve an internal church dispute over religious authority or dogma" Roman Cath. Archbishop of LA v. Super. Ct., 32 Cal.Rptr.3d 209, 220 (2005). Infringements of ecclesiastical abstention and akin doctrines would be outweighed only in "compelling" [cases] because "the duty to prosecute persons who commit serious crimes is part and parcel of the government's `paramount responsibility for the general safety and welfare of all its citizens'" Roman Cath. Archbishop of LA v. Super. Ct. at 225 (brackets added in this answer). A free speech controversy such as the school's uniform policy simply does not meet that threshold. |
Does 4th Amendment to the US Constitution apply to city inspections of private residence? My city is conducting its once-every-5-years housing inspection. Inspections are outside-only, but they encompass quite a lot- roof, walls, yard, electrical, foundation, door locks & hinges- a full page of items in tiny 9 point font. Most of what they are inspecting can probably be done from the curb, but they do mention they will "come to your door prior to the inspection." I've no objection to them inspecting from the curb, and they can probably accomplish most of their goals from that alone. But I would not be surprised to find them roaming my yard. (This is the kind of city that measures your lawn with a ruler to enforce the landscaping code.) It feels very invasive and kind of pushy. My question is: does a city have any legal basis for entering a property for housing code inspections? Does the 4th Amendment apply here? I imagine that it would be considered trespassing if I told them to leave, and they refused. I also understand that this will likely cause me more headaches than if I simply let them do their thing. But it feels wrong. | The 4th Amendment applies to administrative inspections. Per Camara v. Municipal Court 387 U.S. 523 (1967), there are some exceptions for tightly regulated industries, but you don't seem to be describing such a situation. If you object to a warrantless inspection, the inspectors would need to get a warrant to do those parts of the inspection that require getting on the curtilage of your property. Curtilage is the part of your property that is so intimately connected with the home that it treated the same for 4th Amendment purposes. Per United States v. Dunn 480 U.S. 294 (1987), a fence doesn't mean everything inside the fence is curtilage (but for a small, city dwelling, the fence is probably going to be considered the curtilage boundary). Not having a fence doesn't mean nothing is curtilage. As you say, even if you object to the warrantless inspection, they can probably do a lot of the inspection from outside your curtilage and avoid infringing your 4th Amendment rights. The inspectors may choose to return with an inspection warrant. An example statute describing an inspection warrant is California Code 1822.50: An inspection warrant is an order, in writing, in the name of the people, signed by a judge of a court of record, directed to a state or local official, commanding him to conduct any inspection required or authorized by state or local law or regulation relating to building, fire, safety, plumbing, electrical, health, labor, or zoning. | 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? | This law sounds likely to be unconstitutional and/or invalid because it is pre-empted by state or federal laws. Among other things it probably violates the First Amendment right to petition the government, and the Fourteenth Amendment right to equal protection of the laws (by depriving people who have had previous police calls of the right to call the police without penalty) and due process (by imposing a penalty based upon a call, without a presumption of innocence, rather than a finding of wrongdoing that overcomes a presumption of innocence). It could also implicate a tenant's right as a Fourth Amendment seizure without probable cause, or a Fifth Amendment taking of property without just compensation. It is probably also pre-empted by state law which establishes the grounds for which someone may be lawfully evicted, which almost certainly do not include this condition. Likewise, the conditions under which liability for police injuries is imposed are also probably pre-empted by state law. California has an express statutory prohibition on this kind of rule at Cal.Civ.Code § 1946.8(c) which provides that: A landlord cannot punish, or threaten to punish, you or another resident for exercising your right to request law enforcement or emergency assistance on behalf of a: victim of abuse; victim of crime; or person in an emergency. Your landlord also cannot put any penalties in place if a person who is not a resident or tenant calls law enforcement or emergency assistance to your residence. To be protected under this law, the person who calls the police must believe that law enforcement or emergency assistance is needed to prevent or deal with an act of abuse, or the heightening or worsening of an act of abuse, a crime, or an emergency. The American Civil Liberties Union is currently actively attempting to identify cases where these laws (often called nuisance laws) are being used in this manner for the purposes of bringing litigation to invalidate the laws or restrain their use. Litigation is in process in Seattle, Washington and East Rochester, New York. The ACLU also notes that: In situations where an alleged "nuisance" offense is related to an incident of domestic violence, landlords may choose to evict all the residents to avoid future incidents or police calls that could result in a fine. Yet, these evictions violate federal law. The U.S. Department of Housing and Urban Development (HUD) has made it clear that tenants who are denied or evicted from housing because they have suffered domestic violence can file sex discrimination complaints with HUD under the federal Fair Housing Act. Thus, there would often be pre-emption of the local law by federal law as well. An op-ed piece in the New York Times reviews similar issues in Lakewood, Ohio and Milwaukee, Wisconsin, pointing out that the U.S. Constitution and federal housing laws are likely to be violated by these statutes. In at least two instances, one included in an edited question in Norristown, Pennsylvania, and one mentioned in another answer, the case of Somai v. City of Bedford in Bedford, Ohio, the ACLU has concluded favorable settlements after litigation to have these ordinances repealed and to win compensation for aggrieved parties, although, because they are settlements, neither case establishes a binding appellate precedent. We don't intend to challenge the laws at this time - they make it easier for us to evict problem tenants whose visitors damage our property - but were wondering if there are examples of similar laws that have either gone unchallenged for a long period of time or that have been challenged and judged to be legal. As landlords, you are in a difficult position. These laws have not gone unchallenged for a long period of time nor have they been challenged and judged to be legal. Instead, in all likelihood, a legal challenge to these newly enacted laws is likely to be imminent. And, while you face violations of local laws in these cases by not taking action, you may face federal housing law liability if you do utilize these laws and these laws are found to be invalid. | The problem with Solution 2 is that government officials in the United States enjoy qualified immunity with respect to actions that they did while acting under color of law. It's not total immunity, but if they do things by the book, they cannot be prosecuted even if something goes wrong (even when doing things by the book, Police deal in very volatile situations and things can still go wrong because of an X factor to specific for the training manual to cover.). In other cases, it may be because multiple officers are working the scene and Office A lied to Officer B about the situation. Consider Officer A pulls over a suspect and realizes it was someone who was suspected of a crime, but couldn't prove it. He calls for back up and Officer B arrives. Upon arriving on scene, Officer A tells B to search the trunk of the car despite the fact that A had not received consent from the suspect nor has a warrant, nor cause to make a search of a trunk of a vehicle. B makes the search and finds [the bloody knife/the stash of drugs/the smoking gun/the match to a child's shoe that was missing from the kidnapping scene/ insert other incriminating evidence]. Under system (2), since it was Officer B who made the illegal search, B would be liable for it, even though Officer A lied about having legal reason for a search of the trunk space. But what's more... if the evidence is gonna be used anyway, what's to stop the cops doing it again? After all, there is very little recourse for those who are illegally searched to contest this in court (If I'm illegally searched and don't have anything on me, I have to take this to civil court, which is a different animal than Criminal Court and exposes me to broader Discovery... aka gives the cops free reign to search my property for a hell of a lot more illegal things.) or just sit back and count my 4th amendment rights (the section of the constitution protecting against unwarranted search and seizures) as worth less than the paper they're printed on. Oh, and by the way... that second word seizure... that means that they will be taking my property (or myself if they arrest me) and will not be giving it back for some time while they process it... if it's a legal to hold item (like my laptop that I do work on) that's going to make it harder for me to do my job which injures me further in lost business and income. In other cases, it could be they have a warrant for a large item (a stolen big screen tv) and while searching for it, open my sugar bowel and find evidence of a crime unrelated to theft of the television (i.e. opening a baggie of weed). This is actually an illegal search because, unless I am a wizard, a Time Lord, or Mary Poppins, there is no reason why a container smaller than a big screen TV should ever be searched when looking for a Big Screen TV and the cops should logically see this as out of bounds of the search warrant. The nature of this is damaging before the legality of the search can be determined, and because the search may have been out of scope of the warrant that was otherwise justified, the rule of making the evidence of a crime inadmissible was held in order to prevent LEOs from doing this because they could. This rule also started to take formation prior to the Revolutionary War. British Law had ruled against compelled confessions being inadmissible as evidence in 1769, a full six years before the Revolutionary war started (1775) and seven years before the publication of the Declaration of Independence (1776). Now there are some exceptions that can get the evidence brought back in, such as plain view ("The suspect's vehicle is a pick up truck with an open bed, the murder weapon was lying in the bed covered in blood"), inevitable discovery ("We have developed evidence by other means that would have lead us to this evidence legally") and Exigent Circumstances ("We believed someone inside the property was in grave danger if we did not enter the property immediately and that's when we found a cache of stolen Big Screen TVs!) and Good Faith (the Warrant was authorized for the wrong street address of the target but we found the evidence of an unrelated crime in a place the warrant authorized us to search. Everything but the goofed up address was done by the book.). | The club renting space from the shopping center makes no difference; the difference is public vs. private land. The legal controller of the land you are on - whether the shopping center, the club or private land around the shopping center - can ask you to leave at any time for any reason. There is no wiggle room. A controller is not necessarily the owner - a tenant is a controller as is an emergency service executing legitimate control. The police are law enforcement; if you don't leave private land by request, their duty is to remove you at the request of the land owner. Private security also has the same function, though their jurisdiction is more limited off their property, as they are private hired by the shopping center or club. Either would ask you to leave, and if you refuse, you could be arrested for trespassing. If arrested, the local district or county attorney would have some discretion on prosecuting you for trespassing. | We need a jurisdiction, because burglary is a statutory crime. Since this is a residence, in Washington, under RCW 9A.52.025(1), the trespasser might have committed residential burglary: A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle. While other states may have a provision requiring intent to commit a felony, or intent to commit a crime other than trespassing, the Washington statute does not say "felony" or "other than trespassing". A person can enter unlawfully by accident, or with no intention to be there unlawfully, in which case the person committed the act without the requisite criminal intent. If a person intends to enter but not remain, and they enter, they have committed the misdemeanor of trespassing. The question of whether unlawful entering with the intent to unlawfully remain satisfies the "intent to commit a crime" called for in the Washington statute has not been directly addressed in case law, as far as I know. While the state generally shoulders the burden of proving beyond reasonable doubt the elements of the crime, in Washington, under RCW 9A.52.040, the accused may bear the burden of disproving intent (this is a permissive inference on the fact-finder's part): In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent. This does not mean that the state shoulders no burden of proof regarding intent, according to State v. Newton: A jury may, however, infer the defendant's specific criminal intent from his or her conduct if it is not "'patently equivocal'" and instead 'plainly indicates such intent as a matter of logical probability' In this instance, the burglary conviction was overturned because no evidence shows his intent was anything other than to show her she could walk The relevant fact is that the accused was under the influence of PCP, and believed that God had told him that his disabled mother could walk, and he broke into the residence to tell her this. Pursuant to State v. Bergeron where the conviction for attempted burglary was upheld, the court held that The intent to commit a specific named crime inside the burglarized premises is not an "element" of the crime of burglary in the State of Washington... The intent required by our burglary statutes is simply the intent to commit any crime against a person or property inside the burglarized premises The court observed in this case that "there is absolutely no evidence in the record to prove what specific crime it was the defendant intended to commit inside". What distinguishes Bergeron from Newton (the latter, not precedential, citing the former) is that there was a good case that Bergeron had an intent to commit some crime, though not a specific identifiable crime; but for Newton, there was no evidence that defendant intended to commit any crime whatsoever, even remaining unlawfully. In the hypothetical instance, the fact that the criminal smashed a vase is evidence of an intent to commit a crime (destruction of property). It's unlikely that a mere assertion "I just did that on the spur of the moment" would carry any weight. If the circumstances make it more likely that he entered intending to do something wrong, such as vandalism, the elements of burglary are present/ If the defendant claims some innocent reason for trespassing, such as escaping a riot, he may avail himself of a defense (RCW 9a.52.090) that The actor reasonably believed that the owner of the premises, or other person empowered to license access thereto, would have licensed him or her to enter or remain If there is no evidence of a riot, such a defense is not credible. Alternatively, if the house is for sale, the "I thought it would be okay" defense is more credible. | You were trespassing The community college is a public institution but they can decide what part of their land you can walk on and in what circumstances. Just like the military is a public institution but they don’t let you walk across their shooting ranges. To be clear, in the absence of clear “no dogs allowed” signage, you were not trespassing until you were told about the policy. At that point, you were legally obliged to remove yourself (or more precisely, your dog) from the campus as soon as possible. When you refused to do so, you became a trespasser. It’s trivially easy to find out who you are. One photograph, one reverse image search they’ll know everything about you right down to your shoe size. Even if you don’t use social media, I’m sure some of your family and friends do. In most US states, trespass is a misdemeanour and also in most states members of the public can arrest someone who is committing a misdemeanour in their presence. They can use reasonable force to do so and can hold the arrestee until they can transfer them to the custody of a law enforcement officer. Admittedly, this seems unlikely but it is possible. If you have caused damage, you can be sued. It seems that your discussion with the college staff was somewhat protected so the loss of productivity of those staff members is a loss that the college suffered and that they could sue you for. Again, not likely but possible. Alternatively, they could just report you to the police who may or may not bring charges. Note: this assumes the dog is a pet. If it’s a disability assistance animal, it can’t be excluded. See: Are sidewalks on a university public or private property? Can a local government charge a fee to enter a public downtown area during an event? Trespassing or Public Property? Is a mall considered a "public place" for copyright purposes? | You're looking for the Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. This prohibits the police from harassing you and stopping you without cause. It is not self-enforcing, though, so you can sue for a violation under 42 USC 1983: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. This is the normal means of enforcing your rights under the Fourth Amendment, as well as the First, Second, and so on. |
Why isn't legal knowledge more easily available? I'm a researcher in economics. For a project I am working on, I've realized I need a better understanding of NYC Real Estate law. I've realized in this pursuit that there is no easily accessible resources available that will teach someone the law they are ruled by. As a citizen bound by law, I feel like I am in some way entitled to resources to help me understand that law if I choose to pursue it. I can scroll through Wikipedia articles for hours on just about anything I want, I should be able to do the same for the law. What forces are stopping such a resource from being available? It seems like it would be a valuable use of government resources. | "Understanding the law" and the availability of information on law and in particular the real estate laws of NYC are different things. There are many online resources for the law; Google "NYC Real Estate law" and look at Wikipedia, Findlaw, Justia, the Cornell and Stanford law sites, state and federal government sites that make codes available, etc. But understanding the law takes your own effort and your skills at reading and critical thinking. It's your choice to read and think and take classes in the law if you choose, i.e. Law | edX. No one or any government is obligated to you in that respect. | The liability shield is the big one, and it can't be achieved with a contract. Just because the contract says you're not liable, that doesn't make it true. If I sign a contract with my friend that says "Nate Eldredge is hereby the King of France", that won't make me the king, nor will it force anyone except maybe my friend to acknowledge me as the king. By its nature, a contract can only bind the parties to the contract, and has no effect on the rights of anyone else. Suppose, then, that Alice and Bob agree to start a pizza delivery business, using a contract like you suggest. Their delivery car crashes, injuring Carol, a bystander, who incurs medical bills that exceed the assets of the business. Carol decides to sue Alice and Bob personally. Sure, Alice and Bob have a contract, and maybe it prevents them from suing each other, but it certainly doesn't prevent Carol from suing them; Carol never signed it. So Carol can still go after Alice and Bob's personal assets. Thus contract law cannot give them a liability shield. However, the government can, since it makes the laws about who can sue whom under what circumstances. And it has made laws saying that Alice and Bob can be protected from such suits, but only if they form a company according to the process that the law sets forth. So that's what they have to do. | What's the use of contracts if you can't take a contract violator to court? A clear, thoughtful contract can be a deterrent to misconduct, and Australia is one of many jurisdictions where pro se litigation is allowed. Self-represented litigants certainly have to undergo a steep learning curve and are expected to comply with a code of conduct, procedural law, and so forth, but my point is that hiring a lawyer is not compulsory. Even if for some reason the defrauded party declines to sue the tortfeasor (thereby forfeiting the recovery of the losses), there is a societal obligation to alert others about the tortfeasor's misconduct. Making the contract available to others facilitates alerting them on objective grounds so they don't become the tortfeasor's next victim, and it simultaneously helps for setting the record straight that the damages/losses were not one's own fault. Without a contract, it would be more difficult for others get a sense of whether misconduct occurred at all. Or worst, halfway down the line, you don't have any money left to pay your lawyers, and they leave the case. Hence the importance to litigate in pro per from the start. It is easy for a person retaining a lawyer to postpone (be it due to family obligations, workload, and so forth) his learning of the law. But that postponement only makes the client more vulnerable to his lawyer's subsequent withdrawal when court proceedings are midway: the client would have the dilemma of either finding another lawyer to resume the case --predictably at a higher cost--, or cram the learning curve in trying to keep up with the proceedings. | 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. | Not a lawyer, but: In many countries, a purchased item is your property once you removed it from the premises of the seller. In practice, this rarely makes a difference. You have entered a contract with the seller where the seller has to deliver the product, and you have to pay the money, you did your part, they have to do their part. There would be a difference if the item was stolen while in the store, or damaged by fire, or if the store went bankrupt and bailiffs took the item. If these rules apply in your country, then what they did is not theft, otherwise it would be theft (in all countries, if the store removed the door from your home after it is installed, that would be theft). You paid for a door, the store owes you a door. You have a legal contract. Both sides are bound by that legal contract. They have to do what the contract says (delivering the door that was displayed in the store), if they can't, then they have to do the nearest thing that isn't to your disadvantage, like delivering a new door. Or possible a different door that was on display. They can't just declare your contract invalid because it suits them better. That wouldn't be the case if this would put the store at an unacceptable disadvantage. For example, if thieves had broken into the store and stolen ten doors, including yours, the store might get away with returning your money. Since they intentionally sold your door again to someone else, I don't think they could use this as an excuse. I'd go once more to the store and ask them whether they want to deliver a door to you, according to your contract with the store, or if they want you to get a lawyer. A letter from a lawyer might work wonders. (Or of course the lawyer might tell you that I'm completely wrong, but they don't know that, so telling them that you will hire a lawyer might be enough). | Consult a lawyer These issues are quite common and their impact depends on your jurisdiction (usually local governments handle this) and the attitude of your potential lenders/buyers. In most cases, local governments have the power, in extremis, of ordering the demolition of unpermitted work. However, this is normally done only when the work is irredeemably unsafe or adversely affects the amenity of neighbours. More common might be an order to make good any defective work, possibly to current rather than historical codes after which they will retroactively grant the permissions. Some lenders will refuse to lend if there are unpermitted works. Others will only lend against the unimproved land value less the cost of demolition. The same is true of insurers. As for buyers, well, its making you stop and think, isn't it? Common solutions are to make your offer contingent on the current owner cleaning all this up before you close or offering less to cover the risks you are assuming. This may cause you to miss the property but that's the risk you run. | 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.) | I will not speak to your specific situation. I am unfamiliar with the jurisdiction and real estate contracts are one of the most highly regulated contracts so local statutes may override common law. In general, the terms of a contract are what the parties agree; the written document is not the contract - it is evidence of the contract. In a case where the parties agree that the written version is wrong then the written version is wrong. Where the parties disagree that the written version is wrong (or agree that it is wrong but disagree as to how) then each will need to provide evidence to support their position. A signed written contract that supports one parties position is extremely strong evidence! The other party would need to provide some overwhelming evidence to trump this. The general position that the courts take is that the written contract accurately documents the agreement unless someone can prove that it doesn't. |
Is it legal for Americans to buy music/movies from those really cheap web sites based in Ukraine? There are several web sites out there that sell MP3 music files for 10 cents each and FLAC music files for 30 cents each. At least one site even sells Hollywood movies (AVI, MKV) from $0.99 (low quality) to $2.99 (1080p). Most of these web sites seem to be based in Ukraine, and they all have FAQs that claim that they are legal. Here are a few examples: From mp3va.com: Q: Is your web site legal? A: Yes, the activity of Mp3va.com is carried out according to the legislation of the license # IT - 07/13 No IT - 07 - 1/13 of the Ukrainian Public Organization "Avtor" issued for Beowner Ltd. Service www.Mp3va.com pays full-scale author's royalties to owners of pieces of music, trademarks, names, slogans and other copyright objects used on the site. Any further distribution, resale or broadcasting is prohibited. Q: If your web site is legal, how can you sell music for $0.15/track compared to iTunes $0.99/track? A: Our company and licensing authority is located outside U.S. area and we do not have to follow $0.99/track minimum regulations. From melodishop.com: Q: Is your web site legal? A: Yes, the activity of MelodiShop.com is carried out according to the legislation of the license agreement # I-003/11 from June, 14 2011 of the State Enterprise "Ukrainian Agency of Copyright and Related Rights" (UACRR). Service www.MelodiShop.com pays full-scale author's royalties to owners of pieces of music, trademarks, names, slogans and other copyright objects used on the site. Any further distribution, resale or broadcasting is prohibited. Q: If your web site is legal, why your prices are so low? A: Our company and licensing authority is located outside of USA and we do not have to follow any minimum regulations of other countries. From mp3million.com: Q: Is your web site legal? A: Yes, the activity of Mp3million.com is carried out according to the legislation of the license agreement # 67/17M-10 of the Rightholders Federation for Collective Copyright Management of Works Used Interactively (NP "FAIR"). Service www.Mp3million.com pays full-scale author's royalties to owners of pieces of music, trademarks, names, slogans and other copyright objects used on the site. Any further distribution, resale or broadcasting is prohibited. Q: If your web site is legal, why your prices are so low? A: Our Company is registered outside US area to minimize the taxation. Also, we can offer such low prices due to guaranteed bulk purchases (minimum deposit on our web site is 15 USD). So is it legal for an American to purchase music/movies from those sites? | No. These companies seem to be saying that they are entitled to sell music under some sort of mandatory licensing agreement authorized by the law of the Ukraine, or by a licensing agreement specific to the Ukraine. Even if this were true, it would only give them the right to distribute the files in the Ukraine. If an American, sitting in the U.S., makes a digital copy of a file on a Ukrainian server by copying it to his or her U.S. hard drive, they have to have a license to do so issued either by the U.S. copyright holder or authorized by U.S. law. A license to distribute in the Ukraine doesn't give the U.S. end user that license. A Ukrainian statute doesn't give the U.S. end user that license. If the end user doesn't have that license, he or she is violating the copyright holder's rights and may be civilly or criminally liable. There is no scienter requirement for copyright infringement. In fact, it's not at all clear that any Ukrainian site is operating even under this dubious legal cover. This report on Ukrainian licensing agencies by an industry group claims that many Ukrainian licensing authorities are actually scams that have no rights to distribute music under any license--one of the "rogue licensing agencies" discussed is Avtor, referenced in your first example. There is some legal confusion over what group does have permission to license music and collect royalties in the Ukraine, but it's clear that Avtor doesn't, and it certainly doesn't have permission to distribute them in the U.S. If a guy came up to you on the street and told you he had written permission from Disney to videotape their latest movies with a camcorder and sell them to you for a dollar, are you violating the law if you buy it? The answer is yes, and it's the same for these Ukrainian sites. | It is hard to say: this article sketches the legal landscape. So-called deep linking that bypasses the main page for a site is not believed to be infringement, following the reasoning of Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146. The URL itself does not have the bare minimum of creativity required for copyright protection, and storing a URL on a computer is not storing the contents that it refers to, so no copy was made in violation of copyright law. It is unlikely that competing theories would develop in other US districts (there don't appear to be any at the present). However, such a link could create secondary liability for infringement, see Erickson Productions, Inc. v. Kast, where a party "has knowledge of another’s infringement and (2) either (a) materially contributes to or (b) induces that infringement". If I link to a file on a pirate website, I am secondarily liable for that infringement. However, if I link to a legally-uploaded file which the author did not intend to make public, there is no infringement. Copyright law requires permission of the copyright owner, which is more than just "explicit denial". The problem is that a person can put a file out there and not say one way or the other whether you have permission to copy the file. The US Copyright office says that "A copyright owner must have expressly or implicitly authorized users to make retainable copies of a work by downloading, printing, or other means for the work to be considered published" (let's not care at the moment whether it is important to be "published"). The court may infer implicit permission from a copyright owner's conduct, but there is no rule "if it's on the internet, you've granted permission". A rights-owner may make a valiant but insufficient effort to block access to the work (except via a password), so in that context, the courts would infer that the rights-owner had not given permission, therefore the copying is infringing and you have secondary liability for your direct link to the material. | Am I as the user of this site in any way liable if the music turns out to violate copyright? Yes. In a similar way to if I give you “permission” to take my neighbour’s car. Only worse. Because stealing requires intent - you have to mean to do it - while copyright violation is strict liability - if you do it, you’re guilty. If the user that uploaded the item did not have the authority to give the site permission then the site does not have permission and neither do you. If you take reasonable precautions such as performing a reverse image source and verifying that the item appears to be owned by the same person everywhere and, perhaps, reaching out to them then your violation will be an “innocent” infringement which mitigates but does not eliminate damages. The only way to be sure with copyright is to know the provenance of the copyright/licences back to the original creator. | How close is such a statement corresponding with the reality? Legally, such language is a meaningless statement of future intent that at best makes clear that the person making the statement isn't waiving any of their legal rights. Certainly, no infringer would have standing to sue if they failed to do so. Whether a joint venture member or foreign reseller could sue the company for failing to enforce its IP rights is another question that presents itself very differently and depends upon much more than what the warning labels state, such as the language in the joint partnership or reseller's agreement with the copyright owner. Also, in criminal copyright violation cases, even if the copyright owner asks for the maximum possible consequences, the U.S. Justice Department is under no obligation whatsoever to go along with that request. Likewise, a judge has no obligation to impose the maximum penalty allowed by law following a criminal conviction, even if the copyright owner and the U.S. Justice Department both request a maximum sentence for someone who pleas guilty or is convicted of the offense following a trial. In practice, something like 98% of federal criminal cases, and a similar percentage of federal civil cases, result in agreed resolutions which result in less severe penalties than the maximum penalties allowed by law. This happens as a result of a mutual agreement to resolve the case with a guilty plea, or a settlement agreement in a civil case, or both. Also, in practice, none of these companies, nor the federal government's prosecutors, have the resources to press anything but the most clear and serious copyright violation cases, and cases that are valuable for P.R. purposes. Anything else is essentially a random lottery from myriad cases that could have been brought in order to counteract the argument (both political and legal) that their copyright protections are empty and completely unenforced is a large part of the cases to which the statutes would make it seem that they apply. Also, in a case brought by a joint venture owner or reseller for failure to enforce a copyright which causes the partner damages, presumably in some sort of breach of contract or breach of fiduciary duty action, there would be no way to prove damages from all of the non-enforcement, since enforcing every known infringement would not be cost effective and would reduce the net profits of everyone involved. | You forgot an element of criminal copyright infringement, a minimum amount of copying. I believe the US statute specifies at least $1,000 worth of copied works within a 6-month period, but by policy the DOJ does not prosecute unless the matter is much bigger than that. A matter of terminology: criminal charges are not "settled". They are prosecuted, leading either to a trial or a plea-bargain. If not prosecuted, charges are dropped. Any country where infringing products are produced or distributed may choose to prosecute criminal infringement. However, the country where the products are produced and thus where the criminals, or some of them, are located, has an advantage in arresting them and bringing them to trial. Thus the country of production is often the one to do any prosecuting that gets done. However, often such criminals choose a country with a relatively weak law-enforcement system, or one that does not much care about enforcing foreign (to it) copyrights, to operate in. Thus the the country that could arrest the criminals doesn't, and the country that might want to, can't get hold of them. International criminal copyright prosecutions are, I believe, rather rare. As a practical matter, almost all copyright enforcement is by private suit, not criminal prosecution. Since each country has jurisdiction on the infringement happen within their country, does the mean the criminal case to be settled in each 179 countries? If that is the case, then don't you think this increases the paperwork? There is no need to "settle" the case in every, or indeed in any, jurisdiction. Any country where a criminal act occurred may prosecute if it chooses. In practice, few if any will choose to do so. Can matters like this only be settled from only one country (plaintiff or defendant)? No, several countries can bring cases if they so choose. There is no such thing as double jeopardy between separate countries, unless an agreement specifies that there is, and that is not common. Such countries may need to negotiate over possession of individual defendants - If country A has arrested Joe Thug, country B may not be able to try Joe without the cooperation of country A. Corporate defendants are, of course, always available. But unless they have an agreement not to do so, multiple countries may legally try Joe or Infringements inc for copyright infringement. Whether they will do so is another matter. | Although the exact answer should depend on the country you are, in general private copies of copyrighted works are allowed. General rules are: You need to have got the work in a legitimate way. That is, that you have purchased a copy of the work with permission from copyright owners or you have got the work from an act of public distribution authorised by copyright owners - if you got it from a website that is not making a copyright infringement itself, you are in the second case. That you don't make a collective or commercial use of the work. (I took these rules from Spanish Intellectual Property law (article 31), but most countries have similar rules, specially in the European Union. Anyway, the exact limits of private copying exception may differ). Since private copying might have an economic effect, some countries collect private copying levies to compensate copyright owners - probably you have already paid for those when purchasing the printer. Therefore, you can print a book downloaded from a website (unless the site is hosting the work without authorization of the copyright owners, as pirate sites do) for your own use. You can't sell the copies or made a collective use of them. Although reach of collective use might be hard to assess, I would suggest that if you want all the people in your class have the book, send them the link so that any one could print their own copy. Update about the USA As the OP has now specified now their country I update the answer with a comment, although an additional answer by anybody more knowledgeable on US law would be great. I'm quite sure that for practical purposes the result is that you can print such a book anywhere in the world. However, I don't know which laws regulates that in the US. Google doesn't return meaningful results for "private copy usa", so I suppose it is know there by another name. Furthermore, statutes in common law countries tend to be less explicit and there might be no case law applicable. For example, I nobody printing a copy of a pdf for himself to read at home has ever been challenged in court in the USA, there might be no explicit rule about the subject. | This basically is about the legal responsibility a web-site owner has for user-created content that violate copyright or other laws (such as libel laws). In the USA, this situation is covered by the DMCA. In the EU, this situation is covered by the e-commerce directive. In other jurisdictions, other regulation may apply. The DMCA (USA) is the simplest of those regulations. It stipulates a protocol of Notice and takedown. A web-site owner that complies with this protocol is given Save Harbour. This means that a compliant web-site owner cannot be sued. This goes both for a web-site that is a registered business, and a site run by an individual. The owner of the IP may, however, take the individual who stole and published copyright protected work to court, and will do probably do so if the financial loss was substantial (e.g. a major motion picture was leaked before hitting the cinemas). In the EU, the law is much less explicit than in the USA. Basically, the Notice and takedown protocol works like in the USA, but since it is not part of the law, it is less formal. In the USA, you can safely not act on any complaint that does not strictly follow the protocol (you just have to give feedback so they can fix it). Not so in the EU. And as follows from Delfi AS vs. Estonia, you can be sued even if you take down stuff. In particular if you create an environment for anonymous postings that encourage transgressions and have no means of moderation in place. So if the web-site is located in the EU, the website owner need to exercise more caution when he lets friends publish content, than when a website owner in the USA. | united-states The license won't let you sell the .stl file. Probably you have created a derivative work, which means you can't sell it without a copyright license (and the CC-A-NC won't do). If it were licensed under CC-A you could sell it without problems (you'd have to give attribution, of course). You could also sell it under the CC-A-SA, but once you do you have no control over the result -- anyone you sold it to could give it to someone else under the terms of the license. This could work, though, if it were (say) a commission and you only expected to sell one copy. I don't know what the situation would be with the physical objects printed under any of these licenses. |
Is it legal to teach a subject you dont have a degree in? I'm quite confused as to how my computer science class even exists right now. Mainly because the teacher knows just as little about coding in python as the students do. My teacher has admitted to getting most of his subject matter from youtube videos and from sites like StackOverflow. He used to teach physics but the administration needed a computer science teacher so when they asked my teacher, it's quite apparent that he lied, said he could code (if he could code it was probably in a different coding language), and subsequently got the job. I'm currently a sophomore in high school (in Texas) if that helps to solve anything. My main question is if there's something wrong here. Should he be allowed to teach this subject that he knows so little about? If so, should I take any actions in order to get a teacher that actually knows what they're doing? | In the US, your recourse is the school board that governs your high school. Talk to them and find out how to bring the situation to their attention. There will be some sort of complaint or grievance process you can participate in. The school board is bound by state (and federal law), but makes many decisions for the school, among them employee policies and standards for teacher qualifications. Yes, there are possible legal actions you could take, but the first step is the school board. The school board will be obligated to tell you the hiring process and how qualifications play a role. But be aware that they have the option to hire temporary teachers who are not fully certified in order to fill vacancies; it's a common practice when the demand for teachers is much higher than their availability. There is little that is illegal about it, unless the board broke their own rules or state or federal law. | There is no case law as yet However, the most likely situation is that there is no copyright in the original works because they are computer-generated. There is certainly copyright in the code that created the art but the output of that code, the art itself, would probably not be subject to copyright. Copyright only exists in art created by humans. The US Ninth Circuit has held that animals cannot create copyrighted works. Subsequently, the US Copyright office has rejected applications for registration (a prerequisite to a suit in the US) of computer-generated art because it “lacks the human authorship necessary to support a copyright claim.” While this position has not been tested in the courts, I don't think they are any more likely to grant copyright to a program than they were to a monkey. What's going on? The OP states that there is litigation: there isn't. What there is, is a DCMA takedown request from Larva Labs. If this is complied with that will be the end of the matter; if it isn't then there may be litigation. However, before Larva Labs could sue CryptoPunks in the US they would first need to get a writ of mandamus to force the USCO to register it. If they try and fail then there will be a legally binding court decision that Larva Labs don't own the copyright in any of their computer-generated art. Which kills their business model and, presumably, them. This would be a very high-risk move. They may choose to sue in a jurisdiction where registration is not a prerequisite, however, that court would still need to be satisfied that there was a copyright that could be breached. So that's just a different take on the same problem. I have ignored the issue of NFTs as these are legally problematic in their own right and irrelevant to the main question. However, the NFT and the artwork are not the same thing. | 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. | I wouldn't say that it "trumps state law". Indeed, the State of Georgia, either expressly by statute or through the common law, establishes that teachers and school administrators have the authority to create rules and regulations governing the conduct of students that are not themselves unconstitutional as applied to students, although, in general these consequences can't resort to criminal punishments. Instead, typical punishments include detention, suspension (in school or out of school), expulsion, and adjustment of grades for an assignment or a course. Marks in one's disciplinary record and public shaming, forfeiture of eligibility to participate in school sponsored extra-curricular activities or honors (including marching at graduation), refusing to release transcripts, and historically (but much less so in recent years) corporal punishments such as spanking, have been options for schools to enforce their punishments. A prohibition on recording in a syllabus certainly wouldn't result in criminal punishments, and probably wouldn't even give rise to civil liability. Depending upon the purpose for which the recording was being used, it is even conceivable that the school's right to punish someone for violating a school rule could be estopped by First Amendment and whistle blower protection law considerations (e.g. if it was used to document harassment and discriminatory conduct for use in sharing with the school board or law enforcement or publishing on radio or TV or an Internet news source). But, the mere fact that conduct is legal outside a school setting does not mean that a school cannot prohibit and punish that conduct in its own rules. The closer case, upon which there is more division of legal authority, is under what circumstances a school can legitimately punish conduct away from school, for example, uploading rap lyrics about a teacher to YouTube from home without using any school resources to do so. | Illegal to write? No. Notwithstanding the First Amendment which would almost certainly make a law prohibiting it illegal, writing such things is an essential part of an IT security professional’s toolkit. You can’t protect against worms if you don’t know how they work. Illegal to distribute on an unauthorised computer? Absolutely. This would be a clear breach of the Computer Fraud and Abuse Act. | The only issue relevant to your age is the (ir)revocability of the license. GPLv3 purports to be an irrevocable license. To be really irrevocable, the license would need to grant certain rights in exchange for something of value, that is, you need a license that passes muster as a contract. Copyright licenses are typically treated as contracts, but it is not clearly established in law that licenses are contracts or are not contracts. Out of the goodness of your heart, you can grant permission to use your property, but you can also withdraw that permission. If you have a contract granting perpetual permission to use your property in exchange for something of value, then you can't later withdraw that permission. In the case of Jacobsen v. Kratzer, the sides advances opposing theories that the license was a "bare license" vs. was a contract. (The matter was ultimately settled out of court). This article puts together the legal factors surrounding the notion of license as contract, see p. 21 ff, and esp. §IV for arguments that licenses should be contracts, to be fully enforceable. A contract for non-essentials formed with a minor is not enforceable, until you are 18. You could therefore revoke the license, until you are 18. Anyone who uses the software does so at their peril. However, if the license is not a contract, no existing legal doctrine (in the US) whereby the permission is irrevocable. In other words, yes you can, at their peril. The whole license-as-contract issue is very complicated, and I'm only focusing on the revocability issue. There is a separate question whether one can sue a user for both copyright infringement and breach of contract. The case of Artifex v. Hancom, see also this analysis, found that (in the particular case), plaintiff can pursue the matter as both infringement and contract breach. | A mnemonic like CRAAP is not protected by copyright. The Copyright office says "Copyright does not protect names, titles, slogans, or short phrases", so you do not run afoul of copyright law using that or any other abbreviation. There is a registry of copyright-registered works, maintained by the copyright office, where authors may register their works, but legal protection exists regardless of registering. Some abbreviations are protected under trademark law, which you can search here. There are 50 registrations that include "AAA" and three that are just "AAA", also you'll find WTF and LOL. Trademark protection doesn't forbid all uses of an registered abbreviation. It turns out that "CRAAP" is not a registered trademark, but it could be the registered trademark of a manufacturer of crab traps, so you would not likewise call your crab trap company CRAAP, but it would be okay for plumbing supplies (trademark is relative to business uses, which are described in the registration). The only other imaginable scenario that would impede your plan is a non-disclosure agreement. For that to be relevant, there would have to be a valid contract between you and the teacher which specifically prohibits disclosure of the acronyms. The chances that there is a contract between you and the teacher is so low that it is hardly worth considering, but let's explore that for a moment. A contract is an agreement between parties where each party promises to do something that they are not already obligated to do, in exchange for getting something that they do not already have a right to. You had a contract with the college, not with the teacher. The college clearly would not prohibit "using any information gained in the course of study here", and the courts would not enforce any such "don't use" wording in a contract as unconscionable (why else do you go to college?). Your contract with the college allows you to take classes and use the knowledge that you gain. The teacher's contract with the college requires her to teach some content, and probably allows her to set certain rules of class conduct. She might have been able to toss you out of class for disseminating her methods, but at this point she has no legal recourse. NDA enforcement is generally limited to protecting "trade secrets", which are defined in terms of information with independent economic value deriving from the fact that the information is non-obvious". Also, an NDA will have a time limit associated with it except in the case of highly-sensitive personal information (social security numbers), so the courts will not enforce language saying "you can never make use of this information, or these names". | At least in the United States (and I'm pretty sure this is true around the world), facts and information cannot be copyrighted. Just because a work is copyrighted, doesn't mean every part of that work is copyrighted, and factual information conveyed by the work is a part which is not subject to copyright. Copyright on a collection of facts is limited to the selection and arrangement of those facts, and only if that selection and arrangement has some bare minimum amount of originality. See Feist v. Rural, 499 U.S. 340. In this case, it looks at first glance like the person who made that site made their own selection of which materials and which sources would be included; the one place where they really seem to have copied their selection is from glass catalogs with datasheets from specific manufacturers, who would have a hard time arguing that "everything we manufacture in this widely-recognized class of substances" is an original selection. What the author of the website has done is relinquish his rights in his selection and arrangement of the data. In some places, there are other rights besides copyright that do apply to databases; for instance, the EU recognizes database rights to protect significant investment in compiling a database of stuff. But the US does not have that concept. For citing stuff, that's not really a legal question, and has more to do with academic standards. Ask your adviser or teacher if you have one. |
Copyright violation: Can a producer/film-maker file a lawsuit if one download a pirated version of their movie? Recently, a company in Denmark called "Njord Law Firm" sent out about 25,000 penalty letters to Swedish citizens regarding downloading pirate movies from Piratebay, Popcorn time, or as such. They got this information from ISPs with a permission from the court. They are asking for about 4,500 Swedish Krona (~514 USD) as a fine for downloading a copyrighted movie material (on behalf of a bunch of film makers/producers). They also mentioned that if subsciber don't pay this amount, they will increase the fine and/or they will file a lawsuit against them! The surprising thing is that they are a 100% legal company and the letter seems legit! I can confirm this is not a scam, as we contacted police and our ISP. Considering almost all internet subscribers today have wifi routers and open internet access, its too vague who had really download such copyrighted materials. If they really file a lawsuit against the subscribers (in case of no payment), can subscibers claim they had a wifi router and they provided the username/password to so many people and its not clear who is the "guilty person" ? | Literal Answer: Anyone can file a lawsuit for anything, doesn't mean you will win or that the judge will let it go as far as trial, but you can certainly file a lawsuit. Deeper answer: Yes they can file a lawsuit assuming they have been given authority to represent the copyright holders. The problem with succeeding in such a lawsuit is proving who is liable. This is contractual, but as the ISP customer it's possible that you signed that you would be responsible for the traffic going to your ISP. If this is not the case, it can be hard to prove who is responsible. There is also the issue of did the movie actually download? Just because you clicked a link to download, does not mean a download happened and that could be hard to for the other side to prove. Then there is the question of what is the intent of the letters? Do they want people to be aware that they will be caught and stop pirating or do they really want 4,500 X 25,000 Swedish Krona? Whether they sue the non-payers or not likely comes down to how many people send in the money but in any case it is in their best interest to make the public at large believe that they will be sued. | Criminal liability is triggered by guilty knowledge. The people who run OnlyFans may know in general terms that it is probable that some illegal images exist on their servers, but so does everyone who allows the public to upload stuff. If that was illegal then the senior management of Google and Facebook would be liable to arrest on the same grounds and the Internet as we know it could not exist. Once the company becomes aware of a specific file that contains such material they need to remove it. If they fail to do so then they become liable. OnlyFans has been doing this: [OnlyFans] provides templates for each successive warning - explaining why material has been removed, and that failure to comply with terms of service may result in the closure of the account. [emphasis added] The site operators also become liable if they have a general policy of tolerating illegal material. This is a grey area; a prosecution would have to prove that the toleration was an active policy rather than merely ineffective moderation. There doesn't seem to be any evidence to support such a claim. Permitting an account to continue after deleting an offending file is not toleration of the offending file. The BBC report does not allege that the OnlyFans policy of multiple warnings has been applied to cases of underage content; rather it talks about cases of incest, bestiality and exploitation of vulnerable adults (such as homeless people), and only where the accounts were particularly popular. The linked articles do report cases where accounts have been set up advertising content by minors, but they were shut down as soon as the company was notified of them. The second article also quotes its source as saying that lots of such accounts get closed down all the time; there doesn't seem to be any evidence of toleration of that material specifically. So in conclusion it seems from the available evidence that OnlyFans have been complying with the law. It is telling that the BBC article specifically does not say that they have done anything illegal. If the BBC had found unambiguous evidence of illegal conduct by OnlyFans management then they would certainly have highlighted this. | In general, yes, though there may be a jurisdiction-specific limit. The basic principle is that the website owner offers something of value in exchange for something else of value: Netflix offers content in exchange for money. What is crucial is that the user must have agreed to make a payment, and the website owner has the obligation to establish that the user agreed. Otherwise, there is no contract and no obligation to pay. There is no legal requirement that a person pay in advance, though it is quite traditional. If you have an obscure file called "legal" with some promise-to-pay term buried in it, the probability is low that the simple existence of such a file would be taken by the court to constitute acceptance of an offer. | It is not obvious what the answer is. There are two fundamental questions – what will Youtube do in response to a particular action, and how can you put an end to the infringement? Youtube's response is driven by federal law, 17 USC 512. There is some danger to Youtube that you could sue them for contributory infringement, and this law specifies the conditions under which they can be immunized against such a suit. Referring to the stage of the DMCA take down process that you are at, they will put the material back up unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network. As a prelude to filing such an action, the infringer must file a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person Observe that the person has to consent to federal jurisdiction, not state jurisdiction. Small claims court is a state court (copyright small claims court does not yet exist). Under 28 USC 1338, "No State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights". For the most part, federal law preempts state law, but that guide might point to something about your case (an added right) that overcomes federal preemption. Supposing that that is the case, you might file a suit in state court over that added right: then, it is literally true that you "filed an action seeking a court order to restrain". You could also just go ahead and file an action in state court, because sometimes the court just does what it thinks is right, even if it doesn't have jurisdiction. Even if the suit is dismissed for lack of jurisdiction, you will have "filed an action seeking a court order to restrain". However, Youtube may not be impressed, the way they would be if you picked Federal District Court. At this point, your options (for getting the material taken down) require filing a suit against the infringer. You can file an infringement suit in the UK, but the material will probably be restored on Youtube until they eventually receive a court order demanding that the material be taken down. You can file a suit right now in the relevant federal court in California and notify Youtube, and they should leave the material taken down. Since you are not suing Youtube in small claims court and the infringer is also not in California, you could not sue in small claims court (somebody has to be in California) unless you are suing Youtube (and will lose because they cannot be sued, per safe harbor rules). | According to a blog post (written by a lawyer who actually has had multiple people ask about that), it depends on several things. The gist is that they're not getting away with this "brilliant plan" unless they take so many steps to make it look legitimate that it will, in fact, become a legitimate porn production enterprise — in which case, why bother with the ruse in the first place? To find you guilty of prostitution, a jury would have to be convinced beyond a reasonable doubt that you were guilty of prostitution and not just making porn. But putting a camera in the room doesn't necessarily make it First-Amendment-protected porn; sometimes it just means you're giving them evidence of your crime. Since juries can differ, there's not really a bright line. But some things look bad to judges and juries. If the director is also doing sexual acts in the film, that looks bad. If he's also never directed or acted in porn before, that looks bad. If a person in the film is paying for the "actresses" instead of getting paid for "acting", that looks very bad; see United States v. Roeder, 526 F.2d 736, 737 (10th Cir. 1975). Having an actual script, on the other hand, may look good. Keep in mind that if the film is not just pornographic but actually obscene, obscenity laws could still apply even if you convince them it isn't prostitution. The First Amendment does not protect obscene materials. Additionally, if you claim it's porn, you will need to properly keep records of the names (and all former names/aliases) and dates of birth of your "actors" and "actresses", unless you want to be guilty of a federal felony. This includes making a copy of their photo ID. The records must also made available for inspection by the Attorney General and his inspectors for a minimum of 20 hours per week, with no advance notice given by them. Is everyone involved really going to be OK with all of this - especially since the law specifically notes that the records may be used as evidence in a federal obscenity prosecution? | There will be single frames from let's say "The Exorcist" that are highly recognisable. You say it's not the heart of the work, but it may be representative for a substantial part. If I wrote a book about the movie, then say 25 frames out of the movie would illustrate the book very nicely, so this is substantial. And there is a market for selling pictures, t-shirts, posters etc. all using a single frame, or selling single frames to book authors wanting to use it for illustrative purposes. You deprive them of income for this activity. So what you said is something similar to what I would expect your lawyer to say in court, but I would expect the opposing lawyer to come up with some very different wording. All in all, I find the argument for "fair use" not convincing. | The facts you describe are very likely an infringing derivative work which would provide a basis for a lawsuit against the person operating the website. But, nothing is certain, and these determinations are highly fact specific. It is highly unlikely that the government would enforce a violation of copyright alleged in these circumstances criminally. | Under Swedish copyright law, a work such as a movie is protected for 70 years after the death of the "creator". It is unclear who the copyright holder is, but it has not been 70 years since the film was made. Unless it was explicitly "released into the public domain", it is still protected, so you can get sued. |
Would it be illegal to include a Disney character's name in my business's Name? For example, "Bambi Publishing" or "Pinocchio Publishing?" | Neither "Bambi" nor "Pinocchio" are original Disney characters and the latter is in the public domain as far as copyright goes. All of the Disney imagery surrounding the characters is Disney property. | The use of the icon must be specific to the function of the icon within the Microsoft software. ... is pretty specific. What you have described isn't so it is not permitted by the licence. | Both Bob and Charles are liable for infringement in the US. The fact that Charles had no idea that Bob was an infringer is not a defense, but it mitigates the statutory damages consequences for him. Either party can negotiate with Alice after the fact for a license, and Alice can grant either party but not the other permission to copy. The terms of the license that Alice gives Bob could either allow CCo reposting, or some more restrictive redistribution right. If the license requires a notice prohibiting further redistribution and Bob omits that notification, Bob will have breached the terms of the license in omitting the notification, so we're back to square 1. If Alice fails to specify a no-redistribution notification condition on Bob's reposting, Alice may have granted an implied license to the world, a matter which has to be determined by the courts. | 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. | Arguably not (or, the example terms are not restricted by copyright, but not for the reasons given, which means this protection may not extend past the examples given in all cases). The protection for "stock characters" comes from the "Scènes à faire" doctrine, which protects elements that are elementary and near-required to be part of a genre. For example, a fairy tale is "obligated" to start with "Once upon a time" and end with "And they lived happily ever after". Character classes, by virtue of being character classes, do not qualify under this doctrine to me, simply by virtue of being "character classes". What matters are: a) the terms used for the classes are generic b) there is prior art to any claimed copyright, with uses of such terms in fantasy fiction stretching back at least hundreds of years and predating, for example, modern English. Note that the above is not universal to all character classes. For example, if you had classes whose names that directly related to various other copyrighted works IP (e.g. "Jedi Councilor", "Yogo Wardmaster", "Grey Warden", "Aes Sedai", "Asha'man" "Eversor Assassin"), those could still be infringing copyright. | 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. | Under United States law: Using a trademark solely to refer to files compatible with a trademarked program would be allowed under the doctrine of nominative fair use. The Ninth Circuit sets out the three-part test for nominative fair use in New Kids on the Block v. New America Pub, 971 F.2d 302 (9th Cir. 1992): "[T]he product or service in question must be one not readily identifiable without use of the trademark" "[O]nly so much of the mark or marks may be used as is reasonably necessary to identify the product or service" "[T]he user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder." Simply referring to the name of a trademarked program to describe its file format (and not doing so in a way that suggests "sponsorship or endorsement by the trademark holder," such as slapping a "Certified Adobe Photoshop Compatible" sticker on the box or something like that) would meet these requirements. The International Trademark Association elaborates a bit on the doctrine and gives some examples here. | Given the clarification provided in the comments to the question, the company has a copyright in the material and as such is legally entitled to demand that you cease using it. |
Is US Immigration policy's per-country quota cap for employment-based immigration illegal? Although United States federal law has provisions against national origin discrimination, why does the immigration system still discriminate against people by national origin? Each country has a 7% quota, which might seem superficially fair except for the fact that the population of countries is highly variable. Currently, Chinese and Indian immigrants have to wait 5-10 years for a greencard, whereas immigrants from some 100+ other countries can get a greencard almost immediately. For example: Suppose immigrants born in China, India, and Sweden are sponsored for an employment-based greencard for the same position. The Swedes will get it within 6 months while the Chinese will have to wait for roughly 5 years and the Indians will likely wait 10 years. If discrimination based on national origin is illegal in employment, then how is it legal to discriminate on that characteristic in employment-based immigration systems? | In fact, the immigration quotas do not discriminate. The described limit is that "No more than 7 percent of the visas may be issued to natives of any one independent country in a fiscal year; no more than 2 percent may issued to any one dependency of any independent country". All countries get the same upper limit. Additionally, anti-discrimination laws are subject matter specific: they exist because Congress passed a law that prohibits using race as a basis for employing a person (which Congress can do because of the Commerce Clause). Congress has not passed any such law pertaining to granting of visas. There is a path of reasoning that could lead to concluding that national quotas violate anti-discrimination laws, based on an "effects test" (disparate impact). It appears to be a fact that an applicant for a visa has a much higher probability of being denied a visa is their country of origin is China or India, as opposed to Sweden, which one could spin into a disparate impact argument. In order for this argument to become the law, there would have to be a case brought to the federal courts to the effect that national quotas are illegal, and as far as I know there has never been such a case. There are no provisions in anti-discrimination legislation that support a disparate impact doctrine in immigration, and pretty clear evidence that it was not congressionally intended since Title 8 Ch. 12 clearly calls for nation-based quotas. A final point: "national origin discrimination" is based on "an individual's, or his or her ancestor's, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group". A Swedish citizen of "Chinese national origin" is subject to the Swedish quota, not the Chinese quota, thus the discrimination is based on country of citizenship, not national origin. | First, let's be clear. Under the relevant Australian law, this person is an Australian citizen, This is for two reasons. First, because he or she is descended from someone who was born in Australia in the time period from January 26, 1949 to August 19, 1986 (or who was a British subject born in Australia prior to January 26, 1949), and second, because a child born in Australia after 19 August 1986 (and who is not otherwise an Australian citizen) and who lives in Australia, automatically acquires Australian citizenship on his or her 10th birthday, if the child has not been granted or otherwise acquired Australian citizenship in the meantime. This occurs automatically (by operation of law), and applies irrespective of the immigration status of the child or his/her parents. So, the question is not one of status as an Australian citizen, but of proof of status as an Australian citizen. This individual is not truly stateless. Also, even if the parents (contrafactually) were stateless rather than being Australian citizens, which they were, children born in Australia whose parents are stateless and not entitled to any other country's citizenship may in some circumstances apply for and be granted Australian citizenship. One of the reasons that Australia allows this rule is that in order to deport someone you have to know that the person deported is a citizen of the country to which the person is deported. If you are a stateless person in Australia (as this person is not, but someone might suspect them of being), you can be denied rights the flow from citizenship, rather than merely from being a person or being a resident. But, you can't deport a stateless person because you have no place to deport them to. Related to this fact is that Australia is a party to the Convention on the Reduction of Statelessness (1961), a multilateral international treaty. In respect of contracting states: "Stateless birth" on their territory attracts the grant of their nationality (article 1). Otherwise stateless persons may take the nationality of the place of their birth or of the place where they were found (in the case of a foundling), otherwise they may take the nationality of one of their parents (in each case possibly subject to a qualifying period of residence in that State) (article 2). A stateless person has some time beyond attaining adulthood to seek to claim the benefit of the Convention. That time is always at least three years from the age of eighteen (article 1(5)). Transfer of territory between states must occur in a manner that avoids the occurrence of statelessness for persons residing in the territory transferred. When a State acquires territory, the inhabitants of that territory presumptively acquire the nationality of that State (article 10). Persons otherwise stateless shall be able to take the nationality of one of their parents (possibly subject to a period of prior residence not more than three years) (article 4). Absent circumstances of fraudulent application or disloyalty toward the contracting state, deprivations and renunciations of citizenship shall only take effect where a person has or subsequently obtains another nationality in replacement (article 8). The United Nations High Commissioner for Refugees (UNHCR) will issue travel documents evidencing nationality to persons, otherwise stateless, having a claim of nationality under the convention. Birth on a sea vessel or aircraft may attract the nationality of the flag of that vessel or craft (article 3). Disloyal or certain criminal conduct may limit an individual's ability to avail the benefit of the Convention (article 8). The benefit of the Convention may be claimed by guardians on behalf of children (article 1(1)). States may impose a period of residence qualification for granting nationality to persons who may be otherwise stateless. That period is a maximum five years immediately prior to application and maximum of ten years overall (article 1(2)). There is also the question of proof. What suffices as proof sufficient for an immigration and nationality official varies, and there are probably presumptions that would be relevant. The fact that you are currently resident in Australia, that you have no recollection of living anywhere else or being told that you live anywhere else, your own testimony under oath regarding your place of birth and ancestry, any documentation that exists of you being in Australia in the past, and the fact that you speak English in an Australian accent fluently and speak no other language, would also be evidence of your citizenship or might trigger a presumption in favor of assuming that you are a citizen unless proven otherwise. The government can also change its processes to fit special circumstances. For example, during the Vietnam War in which the United States was involved, a significant number of children were born to U.S. soldier fathers and Vietnamese mothers in Vietnam. Ordinarily, under U.S. law, it is necessary to establish that a particular person who is a U.S. citizen was your father. But, in the aftermaths of these births, there was a period of time at least, when anyone born in Vietnam to a Vietnamese mother, who was racially part-Vietnamese and part either European or African in ancestry, was presumed based upon appearance alone to be a child of a U.S. citizen present in Vietnam in connection with the war effort and granted citizenship by birth, with their place of birth and mixed race alone sufficing to establish their citizenship. It wouldn't be hard to imagine Australia adopting such a rule in the case that you describe. Also, even if such a per se rule were not adopted, usually the ultimate test in a proceeding to establish citizenship is proof by a preponderance of the evidence that it is more likely than not that this person is an Australian citizen, and that standard could probably be met by any official who was not intentionally inclined to bear ill will to this person or their group. Competent legal representation and expert testimony would likely help the person to establish their citizenship. | The classificational scheme "White; black or African American; American Indian and Alaska Native; Asian; and Native Hawaiian or Pacific Islander" was instituted on May 12, 1977 through Office of Management and Budget Directive 15, which articulates "standard classifications for record keeping, collection, and presentation of data on race and ethnicity in Federal program administrative reporting and statistical activities". In the case of Mostafa Hefny, his classification as white would be a consequence of being from North Africa (Egypt), and the fact that "white" is defined as "A person having origins in any of the original peoples of Europe, North Africa, or the Middle East". A possible point of contention is that he is not from North Africa: the directive does not say where North Africa (as opposed to unmodified Africa) is. Discussion was published in the Federal Register, August 28, 1995, about these standards, and to make a really long story short, there's a problem, and no solution. The October 30, 1997 decision states the current law. This is what you should consult for the current situation: a propos the case of Nubians, the conflict still remains regarding the definition of "white" as "A person having origins in any of the original peoples of Europe, the Middle East, or North Africa", and "black" as "person having origins in any of the black racial groups of Africa" (Nubians fall into both categories: a black racial group of Northern Africa). In non-immigration cases, racial and ethnic data are based on self-reporting. There is no strict rule, but "self-identification is the preferred means of obtaining information about an individual's race and ethnicity" (not possible in some instances, such as birth and death records). The set of categories which the census makes available is somewhat changeable. They currently report that they comply with the 1997 standards, but this report indicates that they had intended to drop "some other race" for 2010, but did not because of a Congressional mandate. The government does not "recognize" individuals racially, instead they "report" them in a particular manner, so that counts can be made for whatever purposes (usually Civil Rights Act compliance). The rules apply to new and revised records, and not to existing records. One would have to look at the record of Hefny's suit, but it is likely that lack of standing and failure to state a legal claim figured prominently in the dismissal, if the case was dismissed. | The comments have basically covered this, but: It's a slightly weird parallel structure ("who shall not be at least 25, and been a citizen for 7 years, and who shall not be a resident"). The Constitution is not written in fluid 21st-century English. But the obviously correct way to parse the sentence is that no one can be a representative who isn't a 25-year-old or older who's been a citizen for at least 7 years; furthermore, no one can be a representative who wasn't a resident of the state they represent when they were elected. With some parts of the Constitution (like the Second Amendment), the drafting results in actual disputes about the intended meaning. With other parts (like here), only one reading makes any sense. It's the same with the requirements to be President. The Constitution says "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President," which could be read as "you're not eligible unless, when the Constitution was adopted, you were either a citizen of the US or a natural-born citizen." But that's a silly reading, so "at the time of the Adoption" is read as only applying to "a Citizen of the United States:" natural-born citizens are eligible period, and people who were born before the US was a thing but were citizens by the time the Constitution was adopted were grandfathered in. | Why is a business allowed to refuse a customer? Because also freedom of contract is a right. Except for discrimination on the basis of protected categories, a person or entity is entitled to discretion on whether or with whom to do business and enter contracts. The last sentence in your post reflects a misconception of "completely different set of values and laws" between the USA and members of the EU. Clearly there are many differences, but a comparison of the Wikipedia link you posted and, for instance, 42 U.S.C. § 2000e-2 reflects an overlap of protected categories in the laws of the Netherlands and of the US, such as religion, sex, race, or national origin/nationality. One would need persuasive evidence to support a finding of unlawful discrimination in the two examples you have experienced. Assuming the bank responded to your GDPR inquiry truthfully, the bank's refusal to open an account might have stemmed from profiling or decision-making that (1) does not precisely require specific data about you, and/or (2) uses information the bank does not need to log for purposes of compliance with the GDPR. Note that the GDPR does not outlaw algorithmic decision-making. Since legislation in the EU (as in the US) portrays an approach of market economy, both bank and landlord are entitled to made decisions on the basis of their inner policies for risk management. The policies might be unclear to you, but that does not necessarily mean they contravene principles of equal opportunity. | I suspect that this person could get a green card under 8 USC 1259 or 1255a, since it seems that he entered in 1952 or so, which was long before the Reagan amnesty. These sections of the code concern those who entered the US before 1972 and 1982, respectively. You might try asking on Expatriates as there are many people there who are familiar with immigration law. A consultation with an immigration lawyer is probably advisable. | Yes. But it isn't illegal discrimination in many places. Laws against discrimination prevent the discrimination based on forbidden categories. Take the national Olympic team: They are allowed to discriminate based on athletic performance, obviously. They are allowed to discriminate based on gender. There are men's teams and women's teams, and men cannot simply apply for a slot on the women's team. They are not allowed to discriminate based on sexual orientation. Discrimination based on a minimum age might be legal, discrimination based on a maximum age probably not. For an employer, it is legal in many places to discriminate based on (formal) qualifications, but not to discriminate based on sexual orientation or race. (It may be legal to discriminate based on nationality, however ...) | Yes, they're able to discriminate as long as its not illegal discrimination; and there's currently no law protecting people with these views. Both at a physical or digital store, they can be refused service and told to leave. |
When a law specifies that documents should be available for examination at "convenient times", for which party should it be convenient? Michigan Compiled Law, CONDOMINIUM ACT (EXCERPT) Act 59 of 1978 Section 559.157 covers books, records, contracts, and financial statements; examination; audit or review; opt-out of requirements of subsection. This law requires a condo without our income level to be audited by a third party, which our property manager has not done. Additionally, we have not voted to waive this requirement. The law gives me the power to sue, but I would bear 1/7th the costs paid to me because of my portion of ownership. Additionally, I do not want to hurt my relationship with 6 neighbors (one of which is the property manager). Instead, I wish to use the right to inspect defined here: The books, records, contracts, and financial statements concerning the administration and operation of the condominium project shall be available for examination by any of the co-owners and their mortgagees at convenient times. The property manager (who owns a unit) has a place of business where the records are held, and they are open Saturdays. However, I cannot determine if the word "convenience" means that I should be able to review documents on a Saturday or if the convenience is the property manager's own convenience. Could he say that I can only review on a Tuesday at 10:30 AM, for instance? Overall, my question is about the legal intention of "convenience": Whose convenience? Can I insist on Saturday so that I don't miss work? Does this convenience require a written note with tracked signature or can I drop in during operating hours? Something in between? | A "convenient time" is a time that is convenient to both parties acting reasonably. See What does "reasonable" mean? | 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. | In a civil action: If you are serving written discovery on a party, under the federal rules of civil procedure, or in any state whose adopted the model rules, (rules 33-37 typically), you need only send your requests for interrogatories, the production of documents, or for admissions to the party (through their counsel unless they are pro se), accompanied by the discovery notice, detailing the time frame in which they are due. It is typical that this time frame will get extended, sometimes by double or triple the original 21 day period plus 3-5 days for mailing. When the party is represented (this is 99% of the time) the attorney will just call you or email you for an extension and it is pro forma to assent to this. The court will not be happy if they need to seek permission of the court for this because you refused, as it is that common, and you will just get a reputation as a non-cooperative pain (not to mention, the time will come when you need an extension, and what comes around goes around). If they seek an unreasonable amount of time (I'm talking so close to the discovery cut off that you'd not have time for depositions after receipt), then you can limit it, but a couple of months is common. This need not go through the court. If they are not represented, they may just be late rather than calling, in which case you have a duty to contact them before involving the court. This is just because they don't know it is the norm, and it is nearly impossible to pull together everything needed from a full set of discovery in 21 days. When there is a true discovery dispute, you must show the court that you made all due diligent efforts to resolve it on your own. I don't have my rules in front of me (I will edit and add this when I do) ... but this is in the rules, it is not just practically speaking. Also, many jurisdictions require that you contact the court's clerk and get permission before filing any discovery motions. Sending a subpoena is not ever how this is dealt with. If the opposing party fails to respond, or if they are continually late and despite numerous contacts they still do not produce, then you would schedule a discovery conference with the court at which time you will seek a motion to compel. The court will typically give them even more time at this point. You are correct in that when a third-party is served with discovery request, since they have no obligation to take part in the case but for the presence of a subpoena; hence, in this situation you would use a subpoena to request whatever it is you are requesting. They may get their own lawyer who will try to limit your right to get anything from them as a non-essential party, but if it is really relevant you can do it. You would also use the subpoena for depositions, to ensure that witnesses present themselves. Otherwise, subpoenas are reserved for acquiring witnesses to appear in court or for custodians of records to bring records to court for hearings or trial. | Michigan law say nothing about landlord entry, so whatever it says in the lease is what is allowed. Various sources like this comment on the lack of such statutory regulations. There does not appear to be any relevant case law for Michigan which impose restrictions on a landlord's right to access a rental. Since there is no statutory or case law restriction on landlord's right to access his property, landlord's agent would have the same right to access. That would mean that if the listing agent were authorized by the landlord to enter, then the agent could enter, and it would not be necessary for the landlord to accompany this agent whenever entry was needed. That does not mean that a "listing agent" that happens to work with a landlord has an independent right to enter the landlord's property. The same would go for repairmen. It is actually not clear to me whether there could be blanket permission for any and all with access to the lock box to enter, since pretty much any realtor can enter a house for sale, subject to whatever the stated limitations are, and they don't call the owner for each entry. I suspect that one would not have legal grounds for imposing a particular additional restriction on a landlord's right to access and permit access to the property, since there's no overriding statute, and restrictions on landlord access mainly derive from statutes. | The usual default rule is that a purchaser is bound to honor a lease on the same terms as the previous owner, and that purchase agreements are subject to existing valid leases. However, the Ontario Residential Tenancies Act, 2006 (S.o. 2006, chapter 17) section 49 (2) says: If a landlord who is an owner as defined in clause (a) or (b) of the definition of “owner” in subsection 1 (1) of the Condominium Act, 1998 owns a unit, as defined in subsection 1 (1) of that Act, that is a rental unit and has entered into an agreement of purchase and sale of the unit, the landlord may, on behalf of the purchaser, give the tenant of the unit a notice terminating the tenancy, if the purchaser in good faith requires possession of the unit for the purpose of residential occupation by, (a) the purchaser; (b) the purchaser’s spouse; (c) a child or parent of the purchaser or the purchaser’s spouse; or (d) a person who provides or will provide care services to the purchaser, the purchaser’s spouse, or a child or parent of the purchaser or the purchaser’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located. 2006, c. 17, s. 49 (2). I take that to mean that IF the purchaser intends to reside in the unit (or have one of the people in (2)(a)-(d) reside there), then and only then, you can be given notice to leave. Acceding to par (3) of the same section the notice must be at least 60 days, and must be to the end of a rental period (probably a month), and that 60 days may not start until after the landlord has actually signed a sales agreement for the unit. And the landlord can only do this if the new owner has specifically indicated a requirement for possession of the unit as a residence, not to rent to someone else. You may want to seek out a tenants assistance organization, or possibly a lawyer, since it sounds as if the landlord is going beyond what the law permits. EDIT: As to showing the unit, section 26(3) of the same act provides that: Entry to show rental unit to prospective tenants (3) A landlord may enter the rental unit without written notice to show the unit to prospective tenants if, (a) the landlord and tenant have agreed that the tenancy will be terminated or one of them has given notice of termination to the other; (b) the landlord enters the unit between the hours of 8 a.m. and 8 p.m.; and (c) before entering, the landlord informs or makes a reasonable effort to inform the tenant of the intention to do so. 2006, c. 17, s. 26 (3). and section 27 (2) and 27 (3) further provide that: (2) A landlord or, with the written authorization of a landlord, a broker or salesperson registered under the Real Estate and Business Brokers Act, 2002, may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry to allow a potential purchaser to view the rental unit. 2006, c. 17, s. 27 (2). (3) The written notice under subsection (1) or (2) shall specify the reason for entry, the day of entry and a time of entry between the hours of 8 a.m. and 8 p.m. 2006, c. 17, s. 27 (3). So it seems that the landlord may show the unit to prospective purchasers during reasonable hours. However another provision says that the landlord may not interfere with your "quiet enjoyment" of the premises, so the frequency of showing probably must be reasonable. | You should contact your local London borough if you wish to lodge a complaint (and you never know, you might get a different result this time). Depending on the nature of work being carried out, and the level of noise, this may fall within either s.60 of the Control of Pollution Act 1974 or possibly under Part 3 of the Environmental Protection Act 1990 if it is deemed a Statutory Nuisance Taking the Royal Borough of Greenwich as an example, they say here: General construction work should be restricted to the following hours: Monday to Friday 8am to 6pm Saturdays 8am to 1pm Noisy work is prohibited on Sundays and bank holidays Therefore it seems the 8am start is allowed. As for the noise levels, independent readings will be required to see if your figure of 80db is accurate but if it is, and continuing with Greenwich as an example, it may be over the permitted levels stated at 6.3 of Greenwich's Code of Practice - assuming that the builders fall within the definition of conducting "major construction and civil engineering works". I have not checked many other boroughs, but the above is consistent with those that I have. | Declaratory judgments clarifying the meaning of a written instrument such as condominium governing documents are possible, but only when there is a bona fide dispute between parties who have personal economic interests in having the issue resolved. For example, if an owner is seeking reimbursement for expenses incurred from the board, and the board cannot agree regarding what is required of it, the board could bring an action naming the owner as a defendant for a declaratory judgment determining what the governing documents require it to do in that situation. | Assuming UCC § 3-407 applies in the the relevant jurisdiction: The recipient of an "incomplete instrument" (i.e., a check without the numbers filled in) cannot fill in those details without permission from the issuer of that check. Such a change would constitute an "unauthorized addition of words or numbers [...] to an incomplete instrument." However, such changes are permitted if the change is authorized (both because it would no longer be unauthorized per 3-407-a and because the change would have "assent" per 3-407-b). In other words, you can use an "NTE" memo on a check, but you'll need to ensure that the recipient of the check is aware that the NTE line constitutes authorization to fill in the value of the check (and what value is authorized). In the case of a county clerk who explicitly instructs issuers to use such a memo line, the use of the memo line likely constitutes authorization for the clerk to fill in the blank values in accordance with the clerk's documented policies. Note that none of this necessarily binds the bank. A bank employee who notices and understands that the NTE line was violated should reject such a check, since the employee has notice of the alteration as described in 3-407-c . However, more often than not the bank will ignore the memo line; I don't believe the bank has any obligation to notice such content. |
What does "reasonable" mean? I have seen the phrase 'reasonable conditions' used quite often in legal texts, and I always get nervous, as I don't know how to interpret it. Imagine a Confidentiality and Assignment Agreement with the following phrase: I also declare that I will assign any and all intellectual property rights generated by me and based on the Proposer’s intellectual property rights or Confidential Information to the Proposer on fair and reasonable conditions, which in case of disputes shall be the same as [...] How would I go about interpreting this part? And how would the legal ramifications be different if the "reasonable conditions were dropped"? I.e: I also declare that I will assign any and all intellectual property rights generated by me and based on the Proposer’s intellectual property rights or Confidential Information to the Proposer, which in case of disputes shall be the same as [...] | "Reasonableness" is meant to be vague, because what is reasonable in one case or contract or industry is not always reasonable in another. Generally, though, you'll probably find courts interpreting it to take into account normal practices in your geographic area, in your industry, and between you and the other party. If one party looks like they're trying to unjustly enrich themselves or is asking for something that people just don't agree to in the real world, it's probably going to be unreasonable. If people are asking for the fair value of their work on terms that are normally agreed to when they're the subject of negotiations, it's probably reasonable. Dropping the reasonableness language would probably leave the assigning party in a bad position, as they're not required to make the assignment, with no qualifications as to the terms. The assignee could argue that they're free to take the IP on any terms whatsoever, though courts often read in a reasonableness requirement anyway. This answer is based on U.S. law, but there will be probably be pretty strong parallels if you're in a common law jurisdiction. | There isn't enough information to give a reliable answer in the abstract. It is a hard concept for lots of people to understand, but words don't have the same meaning in every context. Law is not physics or chemistry. Words that mean one thing in a particular instrument or statute could mean another thing somewhere else, even if exactly the same words are used. More context would be helpful in determining a meaning. It could be a reference to a type of use, like AirBnB or other short term rentals (e.g. use as a hotel or hostel). It could also be a reference to a type of building that is not permanent such as tents, RVs, or other non-permanent structures intended for residential occupancy. Usually, a look at what the adjacent and framing language of the covenants say would clarify the intent as would some sense of the kind of structures built or intended to be built in the vicinity. It also isn't clear from context if the emphasis is on "residential" (e.g. in a property with a storage facility included), or on "temporary" (e.g. in a posh suburb). | A popular word meaning the same would be assigned. See for instance Merriam-Webster entry 2 definition 2: "to set apart for or assign to a particular purpose or use". As an example, if you go into a pub and ask for a pint of beer and the barman says "certainly sir", at that point there is a contract of sale but you are not the owner of any part of the beer in the barrel. But when the barman fills a glass for you at that point the beer is appropriated to the contract of sale and becomes your property. The beer has been appropriated to the contract by the seller with the assent of the buyer. On the other hand if the barman says "certainly sir but I am a bit busy right now so would you mind coming round this side of the bar and filling a glass from the barrel yourself" that means that the beer has been appropriated to the contract by the buyer with the assent of the seller. | GDPR recital 64 says: The controller should use all reasonable measures to verify the identity of a data subject who requests access, in particular in the context of online services and online identifiers. A controller should not retain personal data for the sole purpose of being able to react to potential requests. The GDPR does not specify exactly what methods of verification are "reasonable". GDPR Article 11 paragraph 2 provides: Where, in cases referred to in paragraph 1 of this Article, the controller is able to demonstrate that it is not in a position to identify the data subject, the controller shall inform the data subject accordingly, if possible. In such cases, Articles 15 to 20 shall not apply except where the data subject, for the purpose of exercising his or her rights under those articles, provides additional information enabling his or her identification. This is amplified by Recital 57 which says: 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. Identification 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. GDPR Article 12 paragraph 6 provides: 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. All of the above seems to indicate that the Data Controller must follow reasonable practices, but is not required to guarantee a positive response to a Data Subject who cannot supply reasonable evidence of identity. Moreover the Controller is required to reliably ascertain the identity of the Subject before providing information or acting on a request. Incidentally, good security practice is that the site does not retain the actual password. instead it hashes the password with a good cryptographically secure hash function, and stores the hash. This means that the site cannot reliably determine if a password is unique among all passwords saved by the site, and searches among passwords are not normally done, and would not be reasonable. A site using an email address as the User Identifier would normally enforce at the time an account is created that the email is unique among all emails registered on the site. A user who cannot provide the email would typically be rejected as not able to be identified, unless the site retains additional ID info not listed in the question. I think such a practice would be considered to be reasonable in the current state of technology. | 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. | What does your Data Protection Officer say? It’s their role to be aware of and assess if you policies, procedures and processes comply with the principles. For the particular application is it: “specified, explicit and legitimate purposes”? “adequate, relevant and limited to what is necessary” “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” “processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures” And can you clearly demonstrate compliance with the above? Just a personal observation: WTF are you using a spreadsheet for what is clearly a database problem? This is several dozen steps away from best practice data security. | The government must have reasonable suspicion to stop you and ask you questions. The government must have probable cause to arrest you. The government cannot question you if you have invoked your 5th Amendment rights The government must release you if you post bail which is set by a magistrate in some cases but can be posted without conferring with a magistrate for many minor offenses for which the amount is set in advance. Also, you can only be constitutionally held for a certain period of time without appearing before a court for an initial appearance at which you are charged and typically you have an attorney assigned for you if you cannot afford one. Generally speaking a lawyer for a defendant will either post bail on behalf of the client, or will seek to invoke the client's 5th Amendment right to silence and 6th Amendment right to counsel (including the right of a lawyer to visit his client in jail) making further detention much less useful, while challenging law enforcement to articulate probable cause for the arrest with the implication that a civil lawsuit and suppression of evidence and loss of credibility with the local judge could follow if they fail to do so. If the client is not brought before a court by the constitutional deadline (unusual, but not unheard of), the lawyer can bring this to the attention of the court and have the court demand that his client be brought before the court. Of course, strictly speaking the defense lawyer can't force the police to do anything. Instead, the defense lawyer persuades the police to do something based upon what a court is likely to do, or has already done, as a result of their conduct so far. Also, of course, it isn't always possible for a lawyer to get his client out of jail. If the police do have probable cause and the offense is not one for which bail is set in advance, it is not possible for the client to be released until bail is set by a judicial officer such as a magistrate and bail (if granted at all) is posted, which may be beyond the client's means in the case of a serious offense, particularly if the client is considered by the magistrate to be a flight risk. On TV and books, the person that the police have arrested is usually someone that the police had no probable cause to arrest but suspect of a crime anyway, and the police usually fold when called on the fact that they lack probable cause by the lawyer. Less commonly, on TV and in books, the lawyer facilitates the payment of bail on behalf of his client. | It means that if one party breaks the lease and the other party chooses not to enforce their rights in relation to the breach, it doesn't mean that they won't enforce their rights the next time that provision is breached unless they agree that in writing thereby changing the agreement. Which may just be the longest coherent sentence I have ever written. |
Is dog meat illegal in USA? I want to know if dog meat is illegal in USA. Is its sale banned? Is there any criminal law against it? Is a fine of any kind imposed? Note: I don't in any way support dog meat. I just want to know the law and culture. | There appear to be no explicit federal laws against the practice. Each state has its own laws and many would depend on the individual interpretation of the genera "Humane Treatment of Animals" statutes. It appears that individual states do have laws against killing cats and dogs for food. The California law also protects "any animal traditionally or commonly kept as a pet or companion," Is it legal to eat your cat? Few states have specific laws barring the use of pets for food. The ones that do typically ban the slaughter or sale of dog and cat meat. The state of New York expressly prohibits "any person to slaughter or butcher domesticated dog (canis familiaris) or domesticated cat (felis catus or domesticus) to create food, meat or meat products for human or animal consumption." It's not clear whether the eating itself is outlawed or only the butchery. If you managed to buy dog or cat flesh from someone else who broke the anti-slaughter law, you might be OK. The law also doesn't cover ferrets, gerbils, parakeets, or other less familiar pet species. (Although the general anti-cruelty law might protect exotics.) California's anti-pet-eating law has a broader reach. It bars possession of the carcass, so having bought your cat steaks from someone else wouldn't be a useful alibi. The California law also protects "any animal traditionally or commonly kept as a pet or companion," rather than just Fido and Fluffy. The statute is somewhat untested, though, so no one really knows which animals are included. Pigs are not, even though they are commonly kept as pets, because they are farm animals. Horses are specifically covered by a different section of the code. There's no precedent on iguanas, goldfish, or boa constrictors. In most of the country, the legality of pet-eating would come down to the specific language of the general animal cruelty statute and how a judge interpreted it. Some states, such as Virginia, bar the unnecessary killing of an animal, with a specific exemption for "farming activities." In those places, it's very likely that killing a cat for dinner would get you in trouble, because the killing wouldn't be necessary, and cats aren't commonly associated with farming. On the other end of the spectrum are states like Missouri, where very few restrictions are placed on when, why, and how an owner can kill his pet. In these areas, it would be difficult to lock up a cat-eater, unless his chosen means of slaughter were particularly inhumane. There was also a report that a Los Angeles restaurant had been granted permission to consume and sell dog meat (American Restaurant Granted Permission To Sell Dog Meat - link now dead). However, according to fact checking site Snopes.com, this is not true: Fact Check - American Restaurant Granted Permission to Sell Dog Meat: Claim: A restaurant in Los Angeles or New York has been granted legal permission to serve dog meat. FALSE | There is no case law as yet However, the most likely situation is that there is no copyright in the original works because they are computer-generated. There is certainly copyright in the code that created the art but the output of that code, the art itself, would probably not be subject to copyright. Copyright only exists in art created by humans. The US Ninth Circuit has held that animals cannot create copyrighted works. Subsequently, the US Copyright office has rejected applications for registration (a prerequisite to a suit in the US) of computer-generated art because it “lacks the human authorship necessary to support a copyright claim.” While this position has not been tested in the courts, I don't think they are any more likely to grant copyright to a program than they were to a monkey. What's going on? The OP states that there is litigation: there isn't. What there is, is a DCMA takedown request from Larva Labs. If this is complied with that will be the end of the matter; if it isn't then there may be litigation. However, before Larva Labs could sue CryptoPunks in the US they would first need to get a writ of mandamus to force the USCO to register it. If they try and fail then there will be a legally binding court decision that Larva Labs don't own the copyright in any of their computer-generated art. Which kills their business model and, presumably, them. This would be a very high-risk move. They may choose to sue in a jurisdiction where registration is not a prerequisite, however, that court would still need to be satisfied that there was a copyright that could be breached. So that's just a different take on the same problem. I have ignored the issue of NFTs as these are legally problematic in their own right and irrelevant to the main question. However, the NFT and the artwork are not the same thing. | You would not be liable for a fine (If you think about it, how can you be - Australia does not have jurisdiction over you as you are in New Zealand, and you have broken no NZ law - Further, you declared the item to customs so even in Australia you could not be held liable) Looking at it another way, if you had gotten on a plane with it, declared it to customs on the arrival card, they would have simply asked to see it and made a decision whether to let it in or not - they would not fine you. Customs may or may not confiscate it (ie they may let it through). I've not sent a parcel to Australia, but I have imported seeds into NZ - I made a number of calls and emails to ensure I got the process right - expected to pay quite a lot of money to do it - in the end they just came straight to me - MAF did not even examine the parcel. Being that NZ and AU are pretty similar in terms of legislation (ie both the food standards are the same) - its probably actually Ok to send it anyway - in fact the Imported Food Control At 1992 - which I believe is applicable - specifically exempts many foods imported from New Zealand from the act. The last paragraph of this AU government web page states "The only New Zealand foods that are subject to the IFIS at the border are those classified as risk foods. Equivalence determination of food safety systems covering dairy products was reached in 2007 and seafood, uncooked pigmeat, chicken meat, coconut, pepper, paprika, peanuts and pistachios were aligned in 2011. This enabled these products to be brought under the TTMRA and removed the requirement for border inspection for these products." | Federal deceptive advertising regulations do not apply to restaurant menus, and sale of escolar is legal in the US. Legal recourse would have to be via state law. Such legal action is conceivable, for example it would be "menu fraud" to sell chuck steak as "Kobe beef", and the practice of selling shark meat disks as scallops is likewise illegal. Fish are problematic since multiple species can be commonly called by a single name (sole, halibut, cod, snapper, sardine, herring). It is possible that in a certain market, "white tuna" is standardly understood to be albacore tuna, therefore it would be fraudulent to sell escolar as "white tuna". That would be the point that has to be proven in a legal action, that the term has a specific interpretation. Analogously, there are a number of creamed vegetable products sold as "hummus" which contain no chickpeas (by original definition, hummus is chickpeas and not soybeans). By dint of such variant use over time, it is not deceptive to sell mashed soybeans as "hummus". The tuna industry may well hope to limit the use of the term "tuna", but there is no regulation defining "white tuna". It should be noted that there is a regulation, 21 CFR 161.190 for canned tuna, dictating that only albacore tuna may be called "white meat tuna". | No, it is not illegal to use the symbol of the federal government for your own personal use as it is a public domain symbol. However, the USMC will frown upon it. Marines have a sort of warrior culture ethos to them, when compared to the other branches of the U.S. military and a strong culture among those who served. Among Marine culture "there is no such thing as a former Marine"... that is, once you enter the service, you are a marine even if you retire (a former Marine is usually someone who was dishonorably discharged OR committed an action that would have gotten him/her discharged had they not retired). They do not take kindly to Stolen Valor (pretending or seeming to pretend you served when you did not). While this is legal to do per SCOTUS rule, it's not considered advisable. Most of the US military have dim views of Stolen Valor and will react very negatively. And seeing as how the Marines like to boast in song that they Guard Heaven for God upon Death, these are not enemies you would like to make. Tread extremely cautiously while doing this. | This is totally, flat out wrong. Quite frankly, it is immoral, although not illegal, for the producers to even cause some viewers to believe it is true. The United States criminal code (Title 18) in Chapter 77, prohibits all forms of slavery (except as punishment for a crime which New York State does not authorize) including the one described. It is not legal. This statute implements the 13th Amendment to the U.S. Constitution (abolishing slavery except as punishment for a crime) and was enacted under the enforcement authority provided by that statute. Those statutes have been in force for more than a century. For example, 18 USC § 1590 states: (a)Whoever knowingly recruits, harbors, transports, provides, or obtains by any means, any person for labor or services in violation of this chapter shall be fined under this title or imprisoned not more than 20 years, or both. If death results from the violation of this section, or if the violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse, or the attempt to commit aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title or imprisoned for any term of years or life, or both. (b)Whoever obstructs, attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be subject to the penalties under subsection (a). Similarly, 15 U.S.C. § 1584 is squarely on point: (a)Whoever knowingly and willfully holds to involuntary servitude or sells into any condition of involuntary servitude, any other person for any term, or brings within the United States any person so held, shall be fined under this title or imprisoned not more than 20 years, or both. If death results from the violation of this section, or if the violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse or the attempt to commit aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title or imprisoned for any term of years or life, or both. (b)Whoever obstructs, attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be subject to the penalties described in subsection (a). It also would constitute criminal child endangerment, child abandonment, use of a child to commit a controlled substances offense, conspiracy to commit criminal coercion, conspiracy to have a child engaged in illegal child labor, etc. Possession of controlled substances by the mother is also a crime, although that crime was committed before the mother tried to sell her child to pay her drug debt. (I originally also included crimes like sex trafficking and pimping a child, but from the question it does not appear that the facts implicated those offenses.) It would also constitute grounds to civilly terminate the parental rights of the mother for child abuse and/or neglect, because it violated laws in addition to criminal laws. If the child had a living father whose parental rights had not been terminated (one can't tell from the question, but perhaps the full episode made it clearer), it would violate the father's right to custody of his child. The child, though a guardian or as an adult, could sue the mother for intentional inflection of emotional distress/outrageous conduct, false imprisonment, failure to provide support, etc. | I don't know what you mean by "own a person's DNA", but analogous to owning a car or picture, you can't own a person, which is what would be required to have complete ownership of all of a person's DNA. You can legally own a sample of a person's DNA, for example by buying or bartering tissue, or if you are given tissue. If you grab a handful of hair from a person and pull it out, it is not legally yours, and you can be required to return it. If you lose, misplace or abandon tissue (or a knife), then the finder could end up owning it, depending on the circumstances. Tissue in the trash is more complicated since there may be municipal laws preventing dumpster-diving. Setting aside any such municipal codes, if you abandon your property, someone else can claim it. Hair on the floor of a barbershop, or in the trash, is a good example abandonment: it could also be an example of trespassing, in case the barber objects to you gathering samples from his floor. The 4th Amendment cannot be used to secure your DNA: it could be used to prevent securing DNA, if the intended application is compelled blood drawing. The ruling in Maryland v. King did not say that "your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason", since that was an objection to the majority ruling given in the dissent, not part of the actual ruling. Maybe that will end up being true, but that hasn't been determined to be the law yet. With a warrant, the police can take a tissue sample, and not wait for you to throw a tissue sample in the trash. They can also take a cheek swab from an arrestee just like they can take a photo or fingerprints (that's what Maryland v. King says). Once we've settled the matter of obtaining a DNA sample, the concept of ownership might be relevant if a party could restrict others from using that DNA pattern. But DNA is not subject to patent or copyright, so once I know your DNA pattern, you cannot legally prevent me from using that information. However, you might, if I gave you a sample as part of a contract, and there is a clause in that contract that prevents the other party from ever using that information. | Quite the contrary. In most European countries, shechita is - at least under certain conditions - legal. Only in the blue-marked countries is it generally forbidden; in the green-marked countries prior anaesthesia is required. That is, pre-cut stunning is required in Sweden, Belgium and Denmark (and Iceland, Norway and Switzerland, but these are not in the EU). Simultaneous stunning is required in Finland. Post-cut stunning is required in Austria, Slovakia, Lithuania, Estonia and Greece. Only in Slovenia is ritual slaughter banned. Map source: https://commons.wikimedia.org/wiki/File:Ritual_slaughter_laws_Europe_map.svg |
If you transfer all IP rights to client, can you still reuse parts of source code? I'm trying to get into freelance/contract work for computer programming. Many clients want to "own everything" and have terms like "once paid, the developer transfers all rights to the client". Does this mean I cannot reuse any parts of the source code, even small simple ones? For example if I build a program for a client, and part of the program involves converting 24 hour time into AM/PM time then can I reuse the code in another project or do I have to build it from scratch again? How could one even tell the difference? What about abstract things related to programming itself, like data structures. C++ doesn't have its own linked list so if you use on in a project and transfer all rights to the client, then does that mean you can't reuse that library in another project? Does that mean you can never use a linked list again (I'm guessing not but then does it really matter if you build the code from scratch vs copy/paste from a previous project)? I'm guessing there's some kind of threshold that has to be met for copyright to apply (it can't be too trivial or common place). I'm not trying to rip of the client, I'm legitimately confused as most understandably want to own the source code but does that mean you can't reuse common features between projects? | It does mean that you cannot reuse any parts of the source code, even small simple ones. You would have to rebuild the code from scratch. There is a significant chance that the code would be "substantially similar" to the code that you were hired to build, also that if anybody else were to write a bubble sort or 24-to-am/pm conversion routine, it would look the same, where even variable names (which should describe function) are the same or very similar. In case of an infringement lawsuit, you would have to defend yourself by showing that there are only a few ways to code a given function. Copyright protects only the "expression", not the abstract idea. A linked list is an idea, which can't be protected by copyright; same with recursion, pointers, stacks, object-oriented programming... Anything that involves copy and paste is infringement. If you re-read the copyrighted code and then try to reconstruct it, you probably crossed the infringement line. If you remember the problems and solutions and accidentally write somewhat similar code, that is probably on the safe side. From the perspective of the programmer not wanting to always reinvent the wheel, it would be most useful to make a distinction in the contract between "the essentials of the customer's program" versus "incidental utility work". The difficulty will arise in saying specifically what is essential vs. incidental. For instance, I know that if I were to hire you to develop a speech-recognition system, low-level audio-acquisition and encoding would not be essential to my purpose, whereas DSP parsing routines would be the center of my interest. The programmer would then want to retain recycling rights to all non-essential code. | It's not fair use. Fair use is when you do something that normally only the copyright holder can do. Playing a video game is the ordinary, intended use of the work. In the United States, ordinary use is not protected by copyright. 17 USC 106 sets out the rights protected by copyright. The include copying the work, producing derivative works, distributing the work, and so on. None of these are ordinary use. Someone could perhaps argue that you are creating a derivative work. I doubt that argument would work because you are not taking any protectable elements from the work. But if anyone did argue that, it would make sense to also argue that if that's so, your use would still be covered under fair use because it's transformative, does not substitute for the original work in any way, and takes very little of the work. | I wrote a letter to the Eclipse Foundation. The consultant pointed me to section 5 in their FAQ. My case falls under the term "linking". He warned that he isn't a lawyer, but offered the following short answer: The Eclipse Foundation does not consider linking with EPL content to be a derivative work and so you are not required to disclose your source code. | You need to check what license the library comes with. The fact that you want to create a public domain program doesn't give you any rights to any library. So read the BSD license and see what it tells you whether and how you can use the library. For example, if you used a GPL-licensed library, you could not put your program in the public domain legally. | That depends of the combination of licences, up to the point that there may be no solution valid for all of the components and you have to rework your project. The terms from the different licences must be evaluated to see which terms are appliable to the final product. For example, the GPL licence affects all of the source code of your project, and not only to the GPL licenced components1. So, imagine that you get one component under a licence which does not provide the source code (not even to you, even less for distribution) and a GPL licenced component. Incompatibility! Keep in mind also that usually there are several "flavours" and versions of BSD and GPL licences (with some BSD licences being compatible with GPL while others at not), so there is no general rule. That said, BSD licences are usually pretty open, so if you have a mix of (GPL-compatible) BSD licences and GPL licences, you usually can redistribute this with any licence that meets the GPL licence restriction. And, since the GPL forbids adding any additional restriction to GPL licenced code, that is pretty much it. 1That is why GPL is sometimes called a "viral" licence, because it "infects" all the code of your project. | Company B has created a derived work from company A's copyright-protected work, so yes, B has infringed on A's copyright. It might be difficult for A to prove it, however, so B might get away with it, but it's still infringement. On the other hand, if B creates software that behaves like A's through reverse engineering, that is, by examining the program's function without examining its code, then they will not have infringed the copyright in the code. | You cannot do this through any established public license that I know of, but you could write your own. The model would be any educational use or non-commercial use license, such as CC NC licenses. The main challenge is defining the excluded classes of usage. That is why you should engage an attorney to draft this for you. I don't think there is any point in adding a $5M penalty clause. You offer a separate paid license for individuals who do not want to comply with the particular terms of your license, and set the fee to whatever you want. Saying that you're gonna fine violators is a bad idea because penalty clauses are illegal. Instead, the standard approach is a liquidated damages clause, where you state what a reasonable estimate of your damages would be. In the case of software that is available for purchase, illegal copying of the software obviously results at least in the cost of the software qua lost revenue as damages. Plus shipping and handling. | As long as you own the copyright to the works, you can even publish the source code itself under two different licenses, which can be radically different. For example, MySQL is licensed under both a commercial and an open-source license. Given that you can publish a single piece of work as multiple licenses, it is your choice which one you wish to grant to the book or the code, as long as you own the copyright. |
Employee intimidation A relative of mine has worked at a small company for the past 10 years as a senior design engineer. The MD (and owner) of the company asked him to go and spend the day with another employee filling out some paperwork, which wouldn't normally be part of his job spec. When he returned to his office a few hours later his desk, work computer, everything was cleared out. The MD has stated that there is no longer a need for research, and commented that this employee wouldn't be here for much longer. However this seems quite intimidatory and I would guess this is an attempt to avoid paying redundancy by the employer. This employer has a history of employee lawsuits matters. Can anyone suggest a course of action? Or are there grounds for legal action? Location: Ireland. | Not very nice of the employer, actually quite cowardly. Being not nice and cowardly is not against the law. Being in the EU, and having been employed for ten years, the company will have duties to find a different position in the company at the same pay, and only when that fails, the employee can be laid off and will have a reasonable amount of notice, plus a reasonable amount of redundancy pay due to him. Unfortunately, he can expect only the legal minimum if the company behaved like this already. Good companies would provide a generous redundancy pay, plus pay for you to have any agreements checked by an employment lawyer of your choice - which means the employee can be sure they are not ripped off, and the employer is sure they cannot be sued for any reason. Obviously if they want him to quit, then the one single thing your relative mustn't do is to quit. Let them pay him. Plenty of time to look for a new job. | I'm not a lawyer, but I am an NHS employee, and can more concretely answer your questions. Has any crime been committed, and if so, is there any point in pursuing this with the police? If so, how do I go about it? Yes, in-fact, several crimes have been committed. Firstly, NHS employees are prohibited from viewing patient's personal information that they are not specifically treating. In opening your letter from the NHS, the nurse in question violated this practice. It's a breach of both privacy and trust. This is taught at the NHS and the nurse would be aware of this. Secondly, by cancelling your appointment, the nurse has committed workplace fraud. They have impersonated a patient, and in doing so, cost the NHS money and time it won't get back by cancelling your appointment. Again, this is also taught within the NHS, and the nurse would be aware of this too. Thirdly, by cancelling your appointment, the nurse may have put a life in danger in doing so, which is effectively gross negligence at a minimum. Although this can be reported to the police, it'll be more effective to report it to the appropriate NHS bodies. Even if a crime has not been committed, I would think that at the very least, opening someone's mail and then impersonating them and cancelling the surgery would at least be viewed as unprofessional, especially for someone employed in the NHS. Is there a procedure for making a complaint against an NHS worker? There are several different approaches, given the various breaches of trust. As BlueDogRanch mentioned, you can file a compliant to NHS England, which includes via email. Be sure to get appropriate information like the nurse's name, address, and if possible any details (like appointment reference numbers) to aid the investigation. Secondly, because of the cost incurred via the malicious cancellation of an appointment, costing time and money (and running the risk of opening the NHS to litigation), you can also report the fraudulent aspects to the NHS Counter Fraud Authority. | The "right to be forgotten" is not absolute. It is subject (Art. 17) to certain conditions, in particular the absence of "overriding legitimate grounds for the processing" (1(c)). 3(b) explicitly exempts data controllers from the erasure where needed "for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject". I can even imagine a former employee first claiming his right to be forgotten, and then - a week after getting the confirmation - claiming his right to receive a resumee (a right in existense in Germany), which a company would not be able to fulfill as it hasnt got any data to base the resumee on. If the "right to receive a resumee" indeed exists in Germany and employers need to comply with it, that would be perfectly legitimate ground to only partially fulfil the request to be forgotten — forget everything but the resume. Is it against the law to document these cases? If you document "On 27 February 2020 John Smith requested to be forgotten so we deleted or anonymised all his records", you will effectively NOT forget him. If you actually had to forget him, it will therefore be against the law to document your forgetting that way. | You have a fiduciary duty as a director to act in the best interests of the company. Not your interests, not his interests, not the shareholders' interests (individually or as a group); the company's interests. You must also separate the other guy's performance as an employee from his performance as a director. If he is not performing as an employee then the correct course of action is to sack him as an employee, not as a director; and vice-versa. If he turns up to the board meetings and considers the information he is given as a director then he is not "performing poorly" in that role. However, provided you follow the law and your company's constitution I have no doubt this would be legal. You need to consult a lawyer before you do anything - it can't be the company's lawyer because he does have a conflict of interest. Notwithstanding its legality, it's a stupid idea. It doesn't fix the fundamental problem: you are in business with someone you don't want to be in business with. You need to find a way to not be in business with him and to start that process by ticking him off is a bad move. You need to reach agreement on how to end your relationship: just shoving him out while he is still a shareholder will have him looking for the first opportunity to sue you and the company the instant it underperforms. | It seems that this is known as a "working interview". Asking a candidate to do actual work without paying for it is illegal under Texas law. However asking a person to take an extensive, even a multi-day, skills test is not. Asking a prospective web developer to submit a portfolio of prior work, or to design a web site for a fictional company, say for the Acme Company that supplies the Coyote, is legal. Had the applicant created a web site for the actual employer without being paid, the applicant would own the copyright, and the prospective employer would be in violation of Texas minimum wage law, and would have committed copyright infringement if they used the design, without securing permission. Statutory damages for wilful copyright infringement can be as high as $150,000, and as low as $750. A federal suit must be filed to collect such damages. However, if no actual work was done, I doubt that the applicant has a valid claim. One would need to consult a lawyer to see if some other basis for a claim would apply. Many lawyers will offer an initial consultation for free or a nominal charge. Here are some Texas sources on the issues with "working interviews". The page "Are “Working Interviews” Legal?" from the Gay Reed law firm says: If you bring someone in for a working interview you must pay them for their time in compliance with state and federal law and make appropriate withholding. Some believe that since they are only going to be there for a few days, you don’t have to do new-hire paperwork. Just skip the I-9, background check, application, and W-2. Wrong again. If you hire anyone – for 1 day or 1,000, you have to do new hire paperwork. Depending on how long you would like to conduct your interview, we can create a day contract or a week contract for the prospective employee. This will limit your exposure under unemployment compensation laws, and you can even reduce the amount you pay. Where you might pay a good hygienist $20 per hour or more as a full time wage, you can pay them minimum wage during a working interview. The page "What Is a “Working Interview” and How Does It Work? from CEDR HR Solutions says: A “working interview” is the act of assessing a job candidate’s skills and ability to fit with your existing team by bringing them in to perform work for your business temporarily before you officially bring them on board. Traditionally, working interviews take place after a successful verbal interview. ... However, using working interviews does not exempt you from your obligations as an employer, and performing working interviews without understanding their legal implications can actually get you in a lot of trouble. ... If your “interviewee” is performing work for your business that would usually be performed by one of your employees, in a legal sense, that person must be treated as an employee of your business. By testing your applicants’ abilities and knowledge without having them perform actual work for your business, you can get an idea of their skill level without putting your practice at risk. “Skills tests” are especially helpful when it comes to evaluating candidates for clinical positions. ... Instead of performing an unpaid working interview or trying to call someone an independent contractor when they do not fit those requirements, hire them and use a “Getting Acquainted” period to judge whether a new hire will be a long-term fit for your practice (90 days is often a good span of time for this). The Texas Workforce Commission (TWC) has a page on "Interviews" which says: Interviews When interviewing applicants, apply the same standard that is applied to job applications - ask only about things that are directly related to the job requirements for the position under consideration. Watch out for tape-recording - the applicant might be tape-recording the interview without an employer's knowledge, and a video- or tape-recording of an interview would be discoverable in a discrimination claim or lawsuit. Tell the managers who conduct interviews to be extremely careful about note-taking during interviews - anything like that can be discovered in a claim or lawsuit - many discrimination cases have been lost due to careless and/or embarrassing comments written by interviewers. Test for whether something should be written down: would you feel comfortable explaining it in front of a judge and jury? "Working interviews" are not the same as pre-hire interviews at which an interviewee might demonstrate how he or she would carry out a sample task - an "interview" during which the worker performs actual work and receives what most companies would call "on the job" training or orientation to the company is work time - a company must pay at least minimum wage for such training time, satisfy all of the usual new-hire paperwork requirements (W-4, I-9, new hire report, and so on), and report the wages to TWC and IRS. The TWC can be reached at: 512-463-2222 The TWC page on the minimum wage says that Texas uses the federal minimum wage of $7.25/hr. It lists several exceptions, none of which seem to apply to the situation described in the question, or rather the situation that would have occurred had the applicant accepted an "unpaid trial" or "working interview". The actual Texas law is Chapter 62 of the Labor Code The exact section is 62.051. | As the owner of your own computer, you can dispose of it however you see fit (as long as your choice is legal). The courts could, theoretically, force you do do something with your computer, but installing software is not one of the things that the courts are empowered to force you to do. (Mostly, they can force you to turn it over for a search). A company can't force you to do anything with your property: only the courts can order the use of force. But there is no legal basis for the courts to grant a company's request for an order to install software. A company can perhaps persuade you to install software on your personal computer, in exchange for keeping your employment. I assume you are familiar with the law regarding firing people. If you do not perform your job, you might be terminated for cause. You could hire an attorney and sue for wrongful dismissal, and it's not obvious that you have a valid reason for non-performance. So I would suggest consulting a Canadian employment attorney before sticking your neck too far out. | Yes, this is a valid concern As written, every piece of IP you produce while employed belongs to the employer. This includes your hypothetical game. It also includes your weekly shopping lists, your Christmas card to your Great-Aunt Nellie, the … a-hm … private video you make of you and your significant other. As written this is overly broad and probably unenforceable. However, it’s always better to have clear and legally enforceable clauses in your agreements because unclear, arguably unenforceable ones lead to disputes. To be fair, the employer has probably lifted some (bad) boilerplate and hasn’t actually thought through what it means. Get it redrafted. | Dale M is correct. Lawyers get calls all day long from people who want free advice and have no intention of entering into a paid representation. That is what your letter sounds like. I write separately just to add that you may have better results if you make explicit that you are aware of their rates and prepared to pay them. Even then, though, it may be that whatever you'd pay for the two hours to walk you through this is not as valuable as time they'd spend on other matters. If I have to prioritize between a repeat client and someone who will probably not pay for anything more than having one question answered, that's an easy choice. |
A police officer finds new evidence before a retrial, who should they give it to? Scene: Someone committed a murder. Lots of false evidence led an innocent man to be found guilty at his last jury trial. But, a few minutes before starting the new trial, a police officer finds true evidence proving who the real murderer is. Now to whom should this police officer give this evidence? To the prosecution who is dying to prove an innocent man guilty? Or to the defendant who is dying to prove himself not guilty? | The Legal Answer: An officer's job is to turn over all evidence to the State's attorney and testify at trial truthfully. It is the State's attorney's job to turn over all evidence in discovery to the defense; to only prosecute people they believe are guilty or likely guilty; and to remedy clear and convincing false prosecutions as outlined in ABA rule 3.8 which is echoed in many state laws. Rule 3.8: The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;... ...(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;... ..(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction. If this new exonerating evidence is turned over to the prosecutor they would be required to submit it to the defense and the trial would likely be postponed for both sides to evaluate the new evidence. If they suppress the evidence it would be grounds for appeal and disbarment of the prosecuting attorney. It is not the officer's job to direct the trial, just supply evidence that supports the truth. But it also wouldn't help if the State's own witness suddenly started offering testimony contrary to supporting guilt and in light of new evidence the prosecution may reevaluate to not have this happen. The Ethical Answer: Kind of sticky going into ethics and the exact right response to this situation, but it sounds like the answer you want. Assuming an ethical prosecutor the this would be the same as the legal answer. If this is not the case and the officer reasonably believes evidence will be suppressed, they could turn over evidence to both parties directly or to the prosecution and make the defense aware that he submitted evidence. He could also notify the state bar association of the suppression by the prosecution should that happen. Of course these actions may be at peril to their job as an officer despite whistle blower protections, but if ethics were easy, people wouldn't have to talk about them so much. | Double jeopardy applies to the same facts, not to the same sorts of crimes. Say if you are tried and acquitted of murder of person A, that won't later save you from being tried for murder of person B. Same applies to your question: if the documents/testimony on the second occasion are different from the first occasion, there is no protection. If they are the same, there is. | The answer provided by Dale M is half right, but there are a few things that I think are wrong. Firstly, the actual reality of the situation doesn't matter. What matters is that you act in a reasonable manner, performing assessments of the situation as a reasonable person would do. If you misread the situation, and end up killing a police officer that was acting in a lawful manner, it doesn't necessarily mean you were acting unlawfully yourself. Because police officers are generally exposed to situations where they would be forced to use their firearm, that obviously would impact how a reasonable person would see the situation, but the test for reasonableness would not go out the window. In addition, even if you were found to not be acting in a reasonable manner, there is certainly a question if you would be found guilty of a lesser charge of manslaughter rather than murder. It's possible the self-defence claim would be upheld as an imperfect defence. | Offering up evidence that another person committed a crime is a standard and accepted, although rare, criminal defense strategy. It is mostly not used very much because most crimes for which defendants are charged were not committed by somebody else, and because most innocent defendants lack the investigative and economic resources to identify enough information about another potential suspect to present such a case credibly. The defense would have to articulate to the judge that the reason for offering up evidence about Z is to support Y's theory of the case that Z and not Y committed the crime, in order to overcome a relevance objection. But, the defendant had wide latitude to do so in order to create a reasonable doubt that the defendant committed the crime. In most circumstances, it would be a reversible abuse of discretion to prevent the defendant from introducing evidence to support a theory of this kind. A similar strategy, for example, was recently used in a preliminary hearing in a case involving a high profile murder in Colorado where a man stands accused to murdering his wife (the man is Barry Morphew) has developed a theory that his wife was murdered by someone else based in part, for example, on the evidence of unidentified DNA near the murder scene allegedly associated with previous crimes in DNA databases. | There are two related questions: What factors determine how police will exercise their investigative discretion? How will charging decisions be made? Investigative Discretion I cannot enumerate the multitude of factors that inform the police's investigative discretion, but this guide from the College of Policing is a good resource. At the initial stage, factors include: scene management, risk management, record keeping, community impact. The priorities are to: preserve life, preserve scenes, secure evidence, identify victims, and identify suspects. The initial investigation is aimed at dealing with the immediate needs of victims and witnesses and gathering enough information to allow an investigative evaluation. Whether the investigation goes further depends on the circumstances of the crime, the material gathered so far, and resource requirements. Eventually, the police will coordinate with Crown Prosecution Service to identify further investigative needs of the prosecution, if a charge has been laid or is being considered. More specific steps are discussed here. Importantly: Each force sets their own crime investigation standards, which are disseminated to staff. They should be interdependent with the national intelligence model, to ensure that they support the deployment of appropriate resources to areas of identified priority at the correct time. Police officers exercise a high level of discretion when dealing with situations on the street. This is not directly overseen by sergeants and inspectors, and this makes the supervision of frontline officers challenging. Crime investigation standards are, therefore, useful to monitor and measure the performance of individual investigators and the quality of the investigation. Prosecutorial Discretion Here are two resources describing the charging decision: College of Policing, Charging and case preparation Crown Prosecution Service, Charging (The Director's Guidance) The default is that in order to charge, prosecutors must be satified that there is sufficient evidence to provide a realistic prospect of conviction and that there are no public interest factors tending against prosecution which outweigh factors in favour of prosecution. But, there are a limited range of cases in which the seriousness or circumstances of a case justify making an immediate charging decision, even though there is insufficient evidence to meet the "realistic prospect of conviction" standard. In order to charge in these special circumstances, five conditions must be met. I will not describe these in detail, but there must reasonable grounds to suspect that the person has committed the offence (this is a lower standard than a "realistic prospect of conviction"), there must be further evidence forthcoming, the seriousness of the case justifies making an immediate decision, there are substantial grounds to object to bail, and it is in the public interest to charge. Further, there is a lot of discretion for police or prosecutors to proceed with an out-of-court disposal where it is in the public interest and is an appropriate response. | Yes. The jurisdiction I am familiar with is England and Wales. Conviction requires evidence (witness testimony is evidence) which proves the case "beyond reasonable doubt". It is open to the jury to find the witness so convincing that they find that they are sure the defendant committed the crime. In general of course, prosecutors prefer to have some supporting evidence (either additional witnesses, or circumstantial evidence - like DNA.) | Police officers can lie to you He asked to search your car. He’s allowed to do this. You said no. You’re allowed to do this. He lied to you when he said he would get the K9 to search the car - this would not be legal. But he’s allowed to tell you lies. You made an admission of criminal activity. He now has probable cause to search. He legally searched, confirmed your admission and booked you. Seems legit to me. | There are some complexities here, and several possibilities. First of all, it seems from the question that: There were not any "exigent circumstances" or any other special situation which would justify making a search without a warrant (there are several circumstances which can justify a warrantless search, but none are mentioned in the question). The police had no probable cause, indeed not even any reasonable suspicion. Thus the police had no valid reason even to request a warrant, and if they had asked for one, they should have been refused. No resident of the house consented to any search at any point. The police had no honest belief that they were acting lawfully. They knew, or any reasonable police officer should have known, that they were acting unlawfully. Now, let us consider some of the possibilities left open by the question. For purposes of discussion, let us assume that the house was owned by Bob and Carol, and no one else lived in it. There are several possibilities. Case One: The evidence appears to implicate Bob. Bob is charged, and Bob's lawyer Joan makes a timely motion to suppress the evidence. The judge should hold a suppression hearing, and under these conditions, should suppress the evidence. The trial will go forward without it, or be dismissed if there is not enough other evidence to proceed. Case Two: Much like Case One, but another group of police officers had good reason to suspect Bob, and was already in the process of preparing a request for a warrant, supported by valid probable cause. Had the first group not searched the house unlawfully, the second group would have obtained a valid warrant and found the evidence under its authority. In this situation, known as inevitable discovery the evidence would be admitted, and the unlawful search will not matter. Case Three: The evidence implicates Fred, not Bob or Carol. Fred did not live in the house, but had asked Carol to store some boxes for him. Carol did not know what was in them. Fred has no privacy rights to the house. Bob or Carol could have lawfully consented to a search, and Fred would have no grounds to object. Fred has no grounds to suppress the evidence, as Fred's rights were not violated, and Fred cannot assert Bob or Carol's rights. A trial of Fred would proceed as if the search had been lawful. Bob and Carol may have grounds for a Section 1983 lawsuit against the police for violation of their rights, but that will not help Fred. Case Four: The evidence appears to implicate Bob. The police arrest Bob, and tell him that they have a case against him, and that if he does not confess, they will also arrest Carol as an accomplice. (They lie, but Bob believes them.) Bob pleads guilty. The unlawful search is never raised, and Bob is sentenced as if it had been lawful. Case Five: The evidence appears to implicate Bob. Bob's lawyer Joan fails to request a suppression hearing, or to object at trial to the evidence from the unlawful search. Or more likely, instead of going to trial, Bob's lawyer arranges a plea bargain without raising the issue of the search. Bob is convicted as if the search had been lawful. Bob may have a valid appeal on the grounds of ineffective assistance of counsel, as Joan should have known better. Case Six: The evidence appears to implicate Bob. But the police have other evidence as well. Bob's lawyer raises the issue of the unlawful search. However, the prosecutor convinces Bob's lawyer Joan that they can probably convict Bob even without the evidence from the search. Joan arranges a plea bargain, and Bob accepts it. Bob will be sentenced under the plea deal, and nothing will be done about the unlawful search, except that Bob may get a somewhat better deal because the authorities do not want it exposed in court. Note that only in cases One and Five will a possibly guilty person possibly go free because of the unlawful search, and it is by no means certain even there. It is also possible that a judge will wrongly admit the evidence in a Case One situation. This is likely to be corrected on appeal, with the unlawfulness as blatant as the question assumes. In a case where the unlawfulness is more marginal, this is less sure. |
Absolute immunity, judicial corruption and public interest I'm reading DENNIS v. SPARKS, (1980). It is part of larger reading from Operation Greylord. Part of the decision says: Judicial immunity arose because it was in the public interest to have judges who were at liberty to exercise their independent judgment about the merits of a case without fear of being mulcted for damages should an unsatisfied litigant be able to convince another tribunal that the judge acted not only mistakenly but with malice and corruption. Pierson v. Ray, supra, at 554; Bradley v. Fisher, 13 Wall., at 349, 350, n. The decision also makes reference to 42 U.S.C. 1983, but I have not read it yet. So I may be missing something obvious. (If so, then please accept my apologies). I'm not clear how it is the public's interest not to hold a corrupt judge accountable. In Operation Greylord the 17 judges willfully accepted bribes; it was not a matter of a "honest" mistake or false accusation. Naively, it seems to me a holding a judge accountable for willful criminal acts provides a deterrent. (A similar argument is usually made when the state provides a death sentence and executes its citizens). Or maybe the contra-positive is more import - a judge who knows he or she is not held accountable is free be be as corrupt as they like knowing they will probably not get caught. How is it in the public's interest not to hold a corrupt judge accountable? | Judicial immunity means only that the judge can't be sued by the people negatively affected by his decisions, even if they were made corruptly. The idea is that if this were possible, then anyone who lost a case before the judge could sue him, perhaps falsely claiming that he was corrupt. Defending such suits would be a major nuisance and expense for the judge, and some fraction of such cases might be wrongly decided against him (courts do err sometimes). So, a party who said (or insinuated) to the judge that "you'd better decide my case in my favor or else I'll sue you" would have a credible threat, and the judge might be intimidated into giving in. This would certainly not be in the public interest, and so judicial immunity removes this possibility. It's a trade-off: the harm done by false accusations would outweigh the good done by legitimate lawsuits against truly corrupt judges, and you can't allow the latter without creating the possibility of the former. However, judges can still be held accountable for corruption - just not through the mechanism of lawsuits by the affected parties. This is addressed within the Dennis decision, in the paragraph right above the one you quoted: But judicial immunity was not designed to insulate the judiciary from all aspects of public accountability. Judges are immune from 1983 damages actions, but they are subject to criminal prosecutions as are other citizens. O'Shea v. Littleton, 414 U.S. 488, 503 (1974). So a corrupt judge can still be prosecuted by the state: removed from his job, fined, sent to prison, etc. But the decision to prosecute him would be made by a state prosecutor, who has no personal stake in matters before the court, rather than by a potentially disgruntled litigant. | The probable answer is right there in the article: the Kim Dotcom case has been a PR coup but a legal disaster. Mr Dotcom has not, at this time, been jailed and it may have become apparent to US and NZ law enforcement agencies that he probably never will be! It is really, really easy to accuse someone of committing a crime; it can be really, really hard to prove it beyond reasonable doubt in a court of law. So after initiating a case that has turned out to be a total disaster, why would you expect them to do the same thing a second time? | If the owner of the intellectual property leaves property subject to the jurisdiction of the state of Washington, and it is determined that the owner is dead and has no heirs, then per RCW 11.08.140 it is designated escheat property. Then the following sections specify that title to the property vests in the state. The Department of Revenue has jurisdiction over that property, which has the duty to protect and conserve the property for the benefit of the permanent common school fund. There is no general answer to the question of what would best benefit the school fund. Any form of giving it away would not benefit the school fund, at least if there was an viable option for sale / licensing. There are provisions that relate to the possibility that an heir is eventually uncovered, but I will assume that no heir ever appears. Ohio law is similar. The decendant's property escheats to the state in case there is no heir. Then under ORC 2105.07, the prosecuting attorney of the county in which letters of administration are granted upon such estate shall collect and pay it over to the county treasurer. Such estate shall be applied exclusively to the support of the common schools of the county in which collected. | 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. | 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. | We don't have enough facts to know. What Bob said about having violated the injunction, which could expose him to criminal contempt of court liability, was not true. But, the precise details of what he said, to whom he said it, and his relationship to the case, are not clear. Saying something that isn't true isn't always against the law, and even when it is against the law, the consequences depend upon the context. An intentionally false statement of fact to a police officer or to the court under oath would probably be a crime (but, unlike U.S. practice, criminal defendants who testify are not generally required to testify under oath). An unintentionally false statement of fact to the same persons (e.g. because Bob misheard the question or was drunk at the time and assumed that the statement of fact he was making was true or had dementia) would probably not have legal consequences for him. A mere confession - I am guilty of violating the civil injunction - would probably not be perjury or fraud because guilt of a civil injunction includes opinions and legal conclusions which are not actionable, as well as implied statements of fact, which might be actionable. But, if he confessed in the form of a plea, there probably wouldn't have been a trial at all. Once he made his plea, his factual guilty or innocence might be irrelevant in the face of a judicial admission. Courts can sometimes sanction parties to lawsuits for wasting everyone's time under quite specific circumstances, but we don't know precisely what relationship Bob has to the case in which the injunction was entered. | You have raised two broad questions. The question about reasonable suspicion asks: when is evidence illegally obtained? That's difficult to answer, because it depends on the nature of the evidence and any statute which controlled the way in which it should have been collected. However, the focus of your question seems to be the second issue: what use can the government make of illegally obtained evidence? This is the subject of the exclusionary rule. The short answer is this: The exclusionary rule is a judicial remedy created for the purpose of deterring future unlawful conduct. The rule prohibits both direct and indirect use of illegally obtained evidence ("fruit of the poisonous tree") in a criminal prosecution, but will only be applied where its deterrence benefits outweigh its substantial social costs. To give more insight into how the courts have applied this balancing test, I will summarise its history and rationale. I will then set out the modern formulation of the rule, and try to answer some of your specific hypothetical questions. History and rationale of the exclusionary rule The exclusionary rule originated in Weeks v. United States, 232 U.S. 383 (1914). The government searched Weeks' house without a warrant, seized letters and other property, and charged him with operating an illegal lottery. Weeks applied for the return of the property, but the district court held that "the letters having come into the control of the court, it would not inquire into the manner in which they were obtained, but if competent would keep them and permit their use in evidence." Weeks was convicted. The Supreme Court reversed, holding that: If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution ... The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights. In Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), the doctrine was extended to prevent indirect use of information derived from illegally obtained evidence, unless the information comes from an independent source. The government illegally searched Silverthorne's offices, and copied the records seized before the district court ordered their return. The district court also impounded the copies, so the government issued a regular subpoena to produce the original documents. The district court held Silverthorne in contempt for failure to comply with the subpoena. The Supreme Court reversed, holding that: The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed. The Court acknowledged the 'complexities' of this distinction in Nardone v. United States, 308 U.S. 338 (1939). This case introduced the term 'fruit of the poisonous tree,' and an exception to the doctrine where the connection between the illegality and the evidence presented is 'so attenuated as to dissipate the taint.' Nardone had been convicted of defrauding the revenue twice. The first conviction was based on evidence obtained from an illegal wiretap, and was reversed by the Supreme Court. Nardone was convicted again after a retrial, and argued that the conviction should be set aside because he was not permitted to "examine the prosecution as to the uses to which it had put the [illegally obtained] information." Frankfurter J, delivering the opinion of the Court, quoted the above passage from Silverthorne and said: In practice this generalized statement may conceal concrete complexities. Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government's proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint ... The burden is, of course, on the accused in the first instance to prove to the trial court's satisfaction that wire-tapping was unlawfully employed. Once that is established—as was plainly done here—the trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin. Development of modern limits to the exclusionary rule The Court clarified the purpose of the doctrine in United States v. Calandra, 414 U. S. 338 (1974), declining to extend it to grand jury proceedings. The Court held that Calandra was required to answer questions put to him by a grand jury, even though the questions had been informed by the fruits of an illegal search. The Court said: The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim ... Instead, the rule's prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures ... In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved. Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons ... the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served. The Supreme Court endorsed a good faith exception to the exclusionary rule in United States v. Leon, 468 U.S. 897 (1984). Drugs were found in a search of Leon's house and car pursuant to a facially valid search warrant, but on review the district court found that there was no probable cause to issue the warrant. Therefore, the search was illegal although the officers executing it had acted in good faith. After reviewing the cases in which the Court had declined to apply the rule, the Court held that the evidence against Leon should not have been excluded: The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern ... We have now reexamined the purposes of the exclusionary rule and the propriety of its application in cases where officers have relied on a subsequently invalidated search warrant. Our conclusion is that the rule's purposes will only rarely be served by applying it in such circumstances. In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. In Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357 (1998), the Court cited Leon and explicitly endorsed the use of a balancing test in declining to extend the rule to State parole proceedings: [B]ecause the rule is prudential rather than constitutionally mandated, we have held it to be applicable only where its deterrence benefits outweigh its "substantial social costs" ... A federal requirement that parole boards apply the exclusionary rule ... would severely disrupt the traditionally informal, administrative process of parole revocation. The marginal deterrence of unreasonable searches and seizures is insufficient to justify such an intrusion. We therefore hold that parole boards are not required by federal law to exclude evidence obtained in violation of the Fourth Amendment. The Court endorsed an even more circumspect approach to the rule in Hudson v. Michigan, 547 U.S. 586 (2006). The police executed a valid search warrant and found guns and drugs in Hudson's house, but the search was unlawful because the police did not knock and announce before entering. The Court declined to exclude the evidence obtained in the search, holding that: Suppression of evidence, however, has always been our last resort, not our first impulse. The exclusionary rule generates "substantial social costs", which sometimes include setting the guilty free and the dangerous at large. We have therefore been "cautio[us] against expanding" it, and "have repeatedly emphasized that the rule's 'costly toll' upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application." We have rejected "[i]ndiscriminate application" of the rule, and have held it to be applicable only "where its remedial objectives are thought most efficaciously served,"—that is, "where its deterrence benefits outweigh its 'substantial social costs.'" (citations omitted) Current state of the law As of June 2017, the last word on the rule is the Supreme Court's decision in Utah v. Strieff, 579 U.S. 232 (2016). Again, the Court reversed a State court's decision to suppress unlawfully obtained evidence in a criminal trial. The Court identified three exceptions to the exclusionary rule: First, the independent source doctrine allows trial courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source. Second, the inevitable discovery doctrine allows for the admission of evidence that would have been discovered even without the unconstitutional source. Third, and at issue here, is the attenuation doctrine: Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that "the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained." (citations omitted) Strieff was illegally stopped and asked for ID after leaving a house under surveillance by narcotics police. After discovering an outstanding arrest warrant for a traffic violation, the police lawfully arrested and searched Strieff and found him in possession of methamphetamine. The Court found that the exclusionary rule did not apply because of the attenuation doctrine: The three factors articulated in Brown v. Illinois, 422 U.S. 590 (1975), guide our analysis. First, we look to the "temporal proximity" between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. Second, we consider "the presence of intervening circumstances." Third, and "particularly" significant, we examine "the purpose and flagrancy of the official misconduct." (citations omitted) [W]e hold that the evidence discovered on Strieff's person was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. Although the illegal stop was close in time to Strieff's arrest, that consideration is outweighed by two factors supporting the State. The outstanding arrest warrant for Strieff's arrest is a critical intervening circumstance that is wholly independent of the illegal stop. The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that Officer Fackrell's illegal stop reflected flagrantly unlawful police misconduct. Specific scenarios Can the past arrests serve as a basis for reasonable suspicion to stop a person? As a basis for inclusion of the person on an informal watch list? As mentioned in the introduction, this question is not really about "fruit of the poisonous tree." It is an anterior question about whether or not a police stop was unlawful. The court asks: would the facts available to the officer at the moment of the search warrant a man of reasonable caution in the belief that the action taken was appropriate? Terry v. Ohio, 392 U.S. 1 (1968). Officers are permitted to consider criminal history, as the Fourth Circuit held in United States v. Sprinkle, 106 F.3d 613 (1997): A prior criminal record "is not, alone, sufficient to create reasonable suspicion." Nevertheless, an officer can couple knowledge of prior criminal involvement with more concrete factors in reaching a reasonable suspicion of current criminal activity. (citations omitted) As probable cause for a future search warrant or arrest warrant or wiretap? As basis for active surveillance without a stop or arrest or search warrant? What if law enforcement set up a sting operation targeted at this individual? As with reasonable suspicion, evidence of the suspect's reputation and criminal history can be taken into account in establishing probable cause for an arrest or search warrant. However, a history of past arrests would probably not suffice in itself to "warrant a man of reasonable caution in the belief that an offense has been or is being committed": Brinegar v. United States, 338 U.S. 160 (1949). Could the suppressed evidence be used to counter an entrapment defense (which requires a showing that the defendant didn't have a propensity to commit the crime)? Could the suppressed evidence be used to impeach testimony in a criminal case that the defendant had never used drugs before? If the evidence is suppressed then by definition it cannot be used adversely to the defendant. However, if the evidence is shown to have been obtained illegally, it will only be excluded where the deterrence benefits of exclusion outweigh its substantial social costs: Pennsylvania Bd. of Probation and Parole v. Scott. The evidence is more likely to be admitted if it falls into one of the three exceptions set out in Utah v. Strieff: independent source, inevitable discovery or attenuation. In considering attenuation, the court will pay particular attention to 'the purpose and flagrancy of the official misconduct.' Clearly, it is impossible to say, in general, whether unlawfully obtained evidence could be admitted to counter an entrapment defence or attack the defendant's character and credibility. Not only will the application of the exclusionary rule depend on a wide range of considerations, other rules of evidence may need to be applied (such as the rules against character evidence and extrinsic evidence on a collateral matter). Nevertheless, the cases cited above should give some insight into how the court will approach the fruit of the poisonous tree doctrine. | The law was first promulgated on June 8, 1940 By the 76th Congress. The original text is here. It doesn’t seem to be a particularly important piece of legislation and I can find commentary on it and I’m not going to read the debates - if you do, please get back to us. Two points to note, it was passed at a time when most of the rest of the world was at war and the US was quietly preparing to be at war and it seems to be intended to fill a gap in state law since conviction under state law is a defence under Federal. |
Property manager said my rent was 1/3rd of the usual for an extra 11 days, now says it's full amount As many others, I'm in a leasing pickle, and would like to better know my options. I recently rented an apartment in Seattle for a 3-month stay (Jun 1st - Aug 31st), for $1190 monthly. On July 29th, more than 30 days before my original move-out date, I asked if I could extend my lease for an extra 9 days, since that's when my flight home was and it was more comfortable. Of course, I asked the corresponding rent, and the "property manager" (not the owner, whom I've never dealt with) told me it was $357 (*1). That worked for me, so we decided to go forward (all of this via email with the property manager of the place I was at). My contract required only a 20 days notice to move out or make changes, so everything seemed to be alright. I moved out successfully on Sept 10th and left the place in a pristine condition. I had rented furniture which were picked up on the 11th. About 2 days ago, after sending an email asking when my deposit refund would be mailed to me, the manager said this: So I spoke with my manager and she told me, under no circumstances do we prorate for move out. I'm so sorry, I didn't know we didn't do that. It hadn't come up before. Because of this you still have part of your rent due. We can keep your deposit as part of your payment, but your deposit wasnt very high so you will still have rent due. I will get the totals and let you know. Needless to say, I am a pissed. I do not intend to pay this extra rent (which is a significant amount) since we had agreed in writing (*2) about the new rent. I also would very much like my deposit back. My first instinct is to say exactly that, and that I will seek legal help if they do not comply. It is not my issue that the manager didn't know this, or that my manager's manager hadn't communicated it to her. Should I? Is this a lost cause? Will I be in a world of pain to get my money? I am not living in the US anymore, so I couldn't meet in person with either them or a judge/attorney. A few more details: I payed monthly via an ACH recurring debit form, filling one for each month and choosing one-time payments, so I don't think they can just take the extra rent without my consent. I imagine not paying would hurt my credit score. I do not necessarily care about it deeply, as I am not US based (but I might live there again temporarily). The deposit is $298. The email history with the manager is a bit messy, but I could transcribe and post it here. It was basically me asking questions and getting 1-line answers. The most relevant bit on July 29th, almost unedited is: Me: "Say I wanted to move out on Sept 9th, what would be the rent for September in that case? Is it a full month?" Manager: "Yes because I didn't get [20 days] notice. You would have to pay for the whole month." Me: "But that's around 40 days from now..? In any case, moving out on Aug 31 as the lease says would be fine by me!" Manager: "I am so sorry your right I was thinking August 9th. The rent for September would be. $357." Adding to my anger is the fact that 1) the apartment was an absolute dump when I got there (filth, food in sink/oven, broken shower, ...) which I had to deal with (and got offered a $100 rent refund for, which I took) and 2) my contract specified a first-month's rent of about 50%, and when I realized I had paid more than that she replied "it appears I got the numbers wrong on your lease [...] that was for another unit". At the moment I took it as an honest mistake. (*1) We later agreed that I would stay an extra 11 days instead, but she did not update this amount. I guess I should pay the extra two days, I seem to have missed that. (*2) At least I hope emails count as "in writing". | Unless your lease clearly denies the possibility of prorating, the emails are binding (and yes, emails count as in writing). The landlord ought to honor the conditions outlined in the emails, and it is not your fault that the manager was ignorant about his or her employer's/landlord's policies at the time the manager computed the prorated amount. Additionally, if the lease only speaks in terms of 20-day notice, then it implies that prorating may apply. It is possible that the lease contains language in the sense of when the notice becomes "effective". If so, that would require a more detailed review of the language therein, since even in that scenario you might prevail on the basis of the doctrine of contra proferentem. Here the difficult part seems to be that you are not in the US. Because the amount at issue is not high enough, the grievance/complaint would have to be filed in Small Claims court. And, as far as I know, the parties cannot be represented by a lawyer in Small Claims court. You might have to file your grievance once you are back in the US. | 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. | he is jointly liable for the remaining 3 months, even though he never signed anything. Is this true? That seems unlikely. The lease is between Adam and the landlord. Although the lease might have language making all tenants jointly and severally liable, it would affect Bob only if it can be proved that he was aware of those terms when he moved in. Your description does not elaborate on any agreement(s) between Adam and Bob. But Adam is not allowed to impose on Bob any obligations merely because relations between them broke down. Absent a contract between Adam and Bob, the question of whether Adam is entitled to any recovery from Bob could only be assessed on equitable grounds. | The issue is not enforceability per se, it is the problem of proving what you agreed to. If the landlord adds conditions that are against your interest, he would need to show that you agreed to those conditions: if you add conditions against his interest, you'd have to likewise prove agreement. Since you both have copies of the agreement, it's a matter of comparison to see if the documents are the same. Rather than voiding the earlier agreement and rewriting everything, the change can be initialed. If you were to cross out the rent and insert a lower figure, you would need proof that he agreed to this (hence, his initials on your copy). In your case, the change is apparently in your interest rather than his, so there's no realistic way that this could become an issue (that I can think of: maybe there's a clause that has to do with the move-in date and moving in early actually works against your interest, in which case he would need to prove that you agreed. The fact of moving in early is sufficient proof of agreement). | The tenant wouldn't be involved in this at all. The tenant rents from the landlord, and the landlord gives them an account number where the tenant sends the money every month. How would the tenant be involved with you? Actually, if I was the tenant and I was told to pay the rent to some third party, that would be the reddest of all red flags to me. As a landlord, you buy insurance that covers exactly that situation. It's called "rent guarantee insurance". It's cheaper, and the insurance company doesn't pay enormous sums up front. | I’m asking if I can sue for lost wages because it’s taking time out of my day No, that would be a frivolous claim. You did not specify how much time and effort the walk takes you on a daily basis, but it is extremely doubtful that you could viably claim lost wages. Suing the landlord for this would put you at high risk of being ordered to pay his attorney fees, which surely will exceed that fictitious loss. The allegation "I'm losing work because I’m an independent contractor" is untenable and makes no sense. By that token, a full-time employee typically is more constrained (for instance, in terms of schedule) than an independent contractor. It is also questionable that the time you spend walking back and forth when leaving your apartment is comparable to the time it takes you to do your job or get more clients. Depending on your location, the landlord would defeat your claim also on grounds that you could --and unjustifiably decline to-- take the bus or seek other arrangements if the issue truly were causing you provable losses. It is also very unlikely that the continued failure to recognize your motorcycle would support a claim of breach of contract, since the terms of a lease hardly ever address that kind of minor details. The only circumstance whereby you would have a viable claim is if you were handicapped, but your description nowhere reflects that that is the case. Even in that scenario, the nature of your claim would be other than "lost wages" and mostly would warrant injunctive relief. | 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. | Of course she is living with you. Clothes, toothbrush, cooking and eating, sleeping, I suppose breakfast as well, that's living with you. And it's not illegal, but it is apparently in breach of your leasing contract. I'd study your contract carefully to see what the consequences are if she is living for you for more than 14 days. |
London: actions to take against a landlord who breached the law on many occasions I have been living in London for several years now and experienced issues with one of my last landlords (professional one). I'm looking for your legal advice on what actions to take. To give you a bit of background: it was an Assured Shorthold Tenancy Agreement within a shared house. I had many issues with this letting agency with them breaking into my room without any notice, stealing the keys for the garden (when it was more than 40°C in the house), and many other things I can detail if needed. But the worst was that, at a time where I was spending 2 days abroad every week for work, they rented my room, not respecting the one month notice period on the contract (because they were unable to rent the room next to mine and at some point found a bunch of guys who were happy to rent the two rooms... the house had 4 rooms in total) two weeks before the end of the leaving date. So basically one night, I came back from my business trip and found almost all my stuff in packages downstairs, someone in my room, and was left with no other option then to sleep on the kitchen table where I got bitten by ants all night long. On the next day, I checked my stuff and found out that more than £500 of goods had disapeared. I emailed them and they told me they did not steal anything... I went to see the police, who told me that without CCTV in the house they could not proceed with a charge against my landlord for them stealing my goods. I would like to get your opinion on the kind of action I can take against them as they breached the law/agreement on several points. | Usual disclaimer: I'm not a lawyer. If you are serious about proceeding with this, talk to a lawyer who specialises in this kind of thing. I imagine that you will need to provide proof of the above incidents in order for any legal action to succeed. Accessing a tenant's room without notice or permission, and without a very good reason (e.g. a gas leak) is likely to be classed as harassment; specifically, "acts calculated to interfere with the peace or comfort of the residential occupier". Renting out your room and removing your belongings before the end of a tenancy is likely to be illegal eviction. Both of these are criminal offences under the Protection from Eviction Act 1977. Shelter mentions that it's normally local authorities, rather than the police or individuals, who carry out prosecutions under this act (see also: Shelter articles, Landlord Law Blog articles), so you might want to start there. There is also the matter of civil action, including for breach of contract. For that, consider speaking to a lawyer. | I don't wish to gainsay or contradict a "professional adviser", especially as I have no idea on what information they based their suggestion. All I can do is direct the OP to the relevant extracts from the section headed "II ACCELERATED POSSESSION CLAIMS OF PROPERTY LET ON AN ASSURED SHORTHOLD TENANCY" in the Civil Procedure Rules, especially my emboldened text at the end of Rule 55.15. Rule 55.14 (1) A defendant who wishes to – (a) oppose the claim; or (b) seek a postponement of possession in accordance with rule 55.18, must file his defence within 14 days after service of the claim form. (2) The defence should be in the form set out in Practice Direction 55A. Rule 55.15 (1) On receipt of the defence the court will – (a) send a copy to the claimant; and (b) refer the claim and defence to a judge. (2) Where the period set out in rule 55.14 has expired without the defendant filing a defence – (a) the claimant may file a written request for an order for possession; and (b) the court will refer that request to a judge. (3) Where the defence is received after the period set out in rule 55.14 has expired but before a request is filed in accordance with paragraph (2), paragraph (1) will still apply. (4) Where – (a) the period set out in rule 55.14 has expired without the defendant filing a defence; and (b) the claimant has not made a request for an order for possession under paragraph (2) within 3 months after the expiry of the period set out in rule 55.14, the claim will be stayed. | You would need to know the landlord's reasons for refusal in order to determine their reasonableness or otherwise. If there is a dispute about this (i.e. They think they are reasonable and you don't) you can seek a court order requiring the landlord to accept the sublease or alternatively, that since the landlord has breached the contract, you are entitled to terminate it. Hire a lawyer before you do this. | Summary: More information needed, but I have listed out some legal claims available to homeowners when they have similar concerns. There are several issues here which need elaboration before deciding if you can take legal action. The first is: "the destroyed some vegetation on my street." If the by "my street" you mean that the street is part of your property, you may sue the builders for trespass and/or damage to property. If the street isn't your property, but the vegetation is your property, you may sue them for destruction of your property. What you are probably looking for, however, is a prohibitive injunction. This is a court order forcing the builders to avoid doing something, e.g. An order forcing them to avoid using roads adjacent to your property. To obtain such an injunction you will have to prove that what they are doing is violating your rights, is somehow harmful to you or your property, or inevitably will do either of those things. One way to demonstrate this is if you can show that you have a claim under nuisance, or damage to property, or trespass. On the description you have given us, there isn't enough to say your rights are being violated, or that your property has come to harm or will come to harm because of their actions. You should also be aware of claims under nuisance. Nuisance is when someone is doing something that prevents you from "peaceful enjoyment of your land". It appears from your question that the actions of these builders have, in your mind, done this. However there are several aspects that have to be satisfied for this to amount to private nuisance: What the builder are doing must be a "continuing state of affairs." They may have annoyed you by trampling over vegetation, but if this is a "one-off" event, it is unlikely to amount to nuisance. A reasonable person must find the conduct to interfere with the enjoyment of their land. That is to say: it isn't enough that their conduct is making you unable to enjoy your land peacefully, you have to show that any reasonable person in the same situation would find this conduct unacceptable. Finally, the context of your neighbourhood matters: if the behaviour is something expected in a residential area, then it will not amount to a nuisance. For example, heavy drilling in an industrial location will not amount to a nuisance, while the same may do so in a normally quiet neighbourhood. | If the tenant finds a new place to live before the end of the two months' notice and wishes to leave early, is the tenant required to [give] one month's notice that they are leaving? No, the tenant is not required to give notice if they has already received notice from the landlord. In addition, the tenant is required to pay rent up to the end of the notice period, even if they move out sooner (for now; but see also below). If they don't move out, they must still pay the rent. If the tenant...moves out of the property half way through their rental period, can the tenant claim a refund on the rent already paid which reflects the time between when they left the property and when the rental period would expire? For a tenancy which started before 1 October 2015, there is no automatic right to a refund. The tenant can of course ask the landlord for one, though the landlord would only be obliged to refund rent if a new tenant moves in before the end of that period. For tenancies made after 1 October 2015, s35 of the Deregulation Act 2015 amends s21 of the Housing Act 1988 to allow the 2 months' notice to end on any day (after the end of a fixed term), not just the end of a rental period. s40 then adds a new section which requires the landlord to repay any rent applying during that final period, but after the tenant moves out. If the tenant is not in a strong enough financial position to put together enough money for the deposit for their next home, or have simply been unsuccessful in finding a property which is suitable based on their current income, what course of action should they take? Firstly, the date specified in a s21 notice is not the date by which the tenant must move out -- even though, in practice, this is how it is normally treated. Instead, it is earliest date on which the landlord can begin legal proceedings. So, after that date, there is likely to be a delay until the case can appear before a court. The judge has some discretion as to when the tenancy will actually end, so you can ask for a little more time -- but note that the only way to prevent an eviction under s21 is to show that the landlord failed to follow the correct procedure. See also Shelter's comprehensive guide on the subject for more details. | 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). | The thing I was trying to zero in on was the work/refresh/renovation that needs to be done between tenants, and if they landlord can expect to do it while Tenant A is still paying (up to the date of the 'lease change'), but expecting that Tenant A has vacated before that date, or allows the work to be done while they are still occupying? The first tenant is not required to relinquish possession of the premises while the first lease is in force. The landlord's right of access to the apartment remains unchanged from those specified in the lease and in state landlord-tenant law. So basically the landlord has to wait until the first tenant leaves before doing most of the work. If the first tenant relinquishes possession of the premises before the end of the lease period, the landlord can keep charging rent until the premises has been re-let to a new tenant. But if the landlord has agreed to stop charging rent when the first tenant moves out, the landlord may be bound by that agreement. If the landlord has signed a second lease with a new tenant beginning immediately after the first tenant's mutually agreed early move-out date, then the landlord basically has no time available to fix up the apartment except with the consent of one tenant or the other. | I got and answer from lawyer in Netherlands. To rent out to the company is not without risks. You rent out to the company and the company rents out to the actual user of the apartment. That is subletting. The sub-lessee is protected by law. So when the company fails to pay, you can end the contract with the company (you have to go to court for this), but then you will become the lessor to the actual user (=sub-lessee) then. If you feel that that is against your interests, you have to start a court procedure within half a year to end the contract with the actual user. Also note: it is forbidden to rent out to people that don't have a legal status. So you make sure you trust the company very well if you are going to rent out to them. I recommend to seek help from a real estate agent that is well known and member of NVM or other trustworthy organisation. |
London: how to deal with a landlord not protecting a deposit and not rembursing it? I have been living in London for several years now and experienced issues with one of my last letting agencies. I'm looking for your legal advice on what actions to take. It was an Assured Shorthold Tenancy Agreement within a shared house. The issue with this tenancy which ended almost a year ago was that the landlord never paid me back my deposit and also never protected it under the deposit scheme. This website states that "before I start a court claim, I must send my former landlord a formal 'letter before action'. This letter must set out the detail of my claim." I found out that the court could force my landlord to pay up to 3 times the deposit amount. Is it 3 times on top of the reimbursement of the deposit (i.e. a total of 4 times the deposit in best case scenario), or including the reimbursement of the deposit? So I prepared the template letter as described here. My question to you is: can I decide to take this to court if, let's say, the landlord does not agree to settle for at least 2 times the deposit amount? | Under section 214 of the Housing Act 2004 (as amended), the penalty for not protecting the deposit is considered separately from the deposit itself. In the case where the tenant has already moved out (emphasis mine): (3A) The court may order the person who appears to the court to be holding the deposit to repay all or part of it to the applicant within the period of 14 days beginning with the date of the making of the order. (4)The court must order the landlord to pay to the applicant a sum of money not less than the amount of the deposit and not more than three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order. (See also here and here). In other words, if this goes to court, the landlord may be faced with paying back (in the worst case for him) the entire deposit, plus a penalty of up to three times the deposit. Therefore, unless the landlord is feeling confident, privately agreeing for him to pay two times the deposit could be a good deal, as it's half what a court could award. | No illegal eviction took place, if he wasn't a tenant The term of the room rental was specified beforehand. There was no renewable or extension clause in the rental agreement. Bob also is not a tenant: he is a guest in a hotel. The Hotel offers cleaning services, as the OP specified. By overstaying, his items now were trespassing, the removal was legitimate. However, there is a point at which a short term renting of a hotel becomes living at it. Where this is is often dependant on how long or in what way you stay. Where's the line between a Tenant and a Guest? THAT is the operative question. When does a Guest/Lodger become a Tenant and can get eviction protection? In germany a couple of Hotels actually do have renters with a special rental contract - which is vastly different from the normal room rental. For example, the Maritim in Hamburg has year-rentals. These are actual renters with a rental contract and eviction protection, that give up some tenant rights for services (e.g. room cleaning service for limits in remodeling). However, overstaying at a hotel can actually become a crime: Einmietbetrug - obtaining a room in a hotel or a residency but not wanting to pay or mischaracterizing your ability to do so - is a variant of fraud and thus can be punished under §263 StGB; Under the operating law, a hotel guest is not afforded with all rights of a tenant, unless they are explicitly pointed out like with longstay contracts. In california the line is 30 days, in new-york-state it is the same but they also need to not have a different residency. in england-and-wales, the operative case when someone is a lodger or tenant is Brillouet v Landless (1995) 28 H.L.R. 836: a hotel Guest is not a tenant, even after more than a month of stay. In fact, courts following this case argue, that such a person is only licensed to be on the premises, and the license could be revoked without eviction procedures. In fact, the Brillouet v Landless case is very close to the example. Brillouet rented a room in September, and extended the stay. Then he did not pay (or rather, his accommodation services didn't. In October, Landless sought to get rid of Brillouet for non-payment, just telling him to leave. Brillouet applied for an injunction against the eviction and got a temporary one (to preserve the status-quo) till the hearing. Mere days later, and the first instance court handed out judgement against the application of an injunction to protect Brillouet. The Hotel guest, so the court, was not a tenant under the Housing Act 1988: The Protection from Eviction Act depends on premises having been let as a dwelling. The Court of Appeals affirmed the denial of protection from eviction and seeing no tenancy (emphasis mine): It is an essential prerequisite of any tenancy that the tenant should have, so it is said in some of the authorities, exclusive possession. In my judgment the facts of this case particularly when one bears in mind that Mr Brillouet upon his own assertion avails himself of at least some of the facilities (he goes to the restaurant occasionally for his breakfast) — come nowhere near demonstrating that he has or has had within this room exclusive occupation. At best in my judgment he could conceivably be a licensee. One then has to examine once more the terms of the statute to ascertain whether he is a licensee entitled to protection under the 1977 Act. As the section to which I have alluded makes plain, only licensees who occupy as a dwelling premises which they do occupy are entitled to protection. If, as in my judgment the facts here clearly demonstrate, the occupant is no more and no less than a hotel guest properly so-called, then the accommodation is not let to the licensee as a dwelling. Street v Mountford (1985) AC 809 most likely doesn't apply if any hotel services are offered by the hotel. In the case, Mountford was found a tenant because Street did not offer any services beyond the room and furnishings itself. The presence of any service would change the pattern significantly, as the House of Lords decided: It applies against Bob if the hotel offers cleaning service/room service, and by offering service beyond the room and the furnishing within it, it is lodging, not a tenancy: The occupier is a lodger if the landlord provides attendance or services which require the landlord or his servants to exercise unrestricted access to and use of the premises. A lodger is entitled to live in the premises but cannot call the place his own. [...] Street provided neither attendance nor services and only reserved the limited rights of inspection and maintenance and the like set forth in clause 3 of the agreement. On the traditional view of the matter, Mrs. Mountford not being a lodger must be a tenant. Mehta v Royal Bank of Scotland Plc (2000) 32 H.L.R. 45 doesn't apply, as that case revolved around a verbal contract with the manager for 6 month exclusive use of rooms. Mehta became a tenant by that contract and eviction protection applied. In contrast, due to how agreements with hotels are generally written, Westminster CC v Clarke (1992) might apply: If the contact specified that the hotel does have unlimited access (which is typical) and that reassignments of rooms (like, another guest in the room) might apply, then there is no tenancy. Could Bob be a tenant? For Bob to be a tenant under the E&W interpretation (following the pattern established by Street & Brillouet), the facts must be such, that several things must be true: Exclusive possession: No services are offered at all beyond the room. For example, there can't be any shared facilities with the rest of the hotel that Bob has access to, and services such as room cleaning or fresh towels or laundry are not offered either. Not using them is not enough, they can't be offered at all. (both Street, Brillout) If in exclusive Possession, Bob still isn't a tenant if he is what Street calls a service occupier. That's an employee who is given a place to sleep in to perform his duties to the employer, like a Butler or Maid. (Street) Bob is also not an owner in fee simple, trespasser or mortgagee in possession, or an object of charity - for which all other rules apply. (Street) In the alternative, one fact makes them automatically one: There was a contract that in its form stipulates they are a Tenant (Mehta v RBS) | Under an AST agreement the landlord is not permitted to evict you on a whim - if you refuse to leave, in order to 'take possession' the landlord must persuade a court to give him a court order. http://england.shelter.org.uk/legal/security_of_tenure/assured_tenancies/ending_an_assured_tenancy/applying_for_possession_assured_tenancies In the fixed term the landlord must first serve the tenant a 'section 8 notice' with a 'ground for possession' (there are 20). https://www.legislation.gov.uk/ukpga/1988/50/schedule/2 http://england.shelter.org.uk/legal/security_of_tenure/assured_tenancies/ending_an_assured_tenancy/grounds_for_possession_assured_tenancies Were you to refuse or fight it a court would determine whether the landlord may take possession on the ground in the section 8 notice. That particular clause you are concerned about is common to the AST agreements I've seen. See for example the government's model agreement: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/695944/Model_Agreement_for_an_Assured_Shorthold_Tenancy_and_Accompanying_Guidance.docx The guidance isn't specific about "illegal, immoral, disorderly or anti-social purposes" but examples elsewhere include prostitution in the property (doing it yourself or allowing it to be done) or it being used to store stolen goods. http://england.shelter.org.uk/legal/security_of_tenure/assured_tenancies/ending_an_assured_tenancy/grounds_for_possession_assured_tenancies/discretionary_grounds_assured_tenancies#7 I'm just curious to know if there are any laws protecting me as a tenant from the landlord abusing that i.e immoral is certainly subjective and realistically he could find anything he doesn't like immoral? It is unrealistic to assume the landlord can take possession based on saying anything he doesn't like is immoral. Do any laws exist to ensure there is a limit on what can be considered reasonable? Statute isn't specific about what's "reasonable". Ultimately what's reasonable is what the court says is reasonable. You can look at case law. http://england.shelter.org.uk/legal/security_of_tenure/assured_tenancies/ending_an_assured_tenancy/grounds_for_possession_assured_tenancies/discretionary_grounds_assured_tenancies#1 If not, am I within my rights to ask the landlord to expand on that clause to ensure there is no doubt between the two parties? You are free to ask the landlord what that clause means and to define it specifically - the landlord is free to do so or walk away from the deal. Consider that landlords tend to want tenants who will pay on time, keep the property clean and warn them about maintenance problems - I doubt the majority have any interest in their tenants' private lives that the landlord comes to know about unless the landlord anticipates an economic impact. | Not a lawyer, but: In many countries, a purchased item is your property once you removed it from the premises of the seller. In practice, this rarely makes a difference. You have entered a contract with the seller where the seller has to deliver the product, and you have to pay the money, you did your part, they have to do their part. There would be a difference if the item was stolen while in the store, or damaged by fire, or if the store went bankrupt and bailiffs took the item. If these rules apply in your country, then what they did is not theft, otherwise it would be theft (in all countries, if the store removed the door from your home after it is installed, that would be theft). You paid for a door, the store owes you a door. You have a legal contract. Both sides are bound by that legal contract. They have to do what the contract says (delivering the door that was displayed in the store), if they can't, then they have to do the nearest thing that isn't to your disadvantage, like delivering a new door. Or possible a different door that was on display. They can't just declare your contract invalid because it suits them better. That wouldn't be the case if this would put the store at an unacceptable disadvantage. For example, if thieves had broken into the store and stolen ten doors, including yours, the store might get away with returning your money. Since they intentionally sold your door again to someone else, I don't think they could use this as an excuse. I'd go once more to the store and ask them whether they want to deliver a door to you, according to your contract with the store, or if they want you to get a lawyer. A letter from a lawyer might work wonders. (Or of course the lawyer might tell you that I'm completely wrong, but they don't know that, so telling them that you will hire a lawyer might be enough). | I assume this is "Managed Payment to Landlord" (MPTL) for the tenant's Universal Credit and/or Discretionary Housing Payment, as opposed to for "Housing Benefit" per se, since most people are now on UC instead of HB. But in any case the period of imprisonment is long enough to affect Bob's eligibility. Under the Universal Credit Regulations 2013, Schedule 3, Bob is no longer occupying the property since their absence is expected to be for more than six months; in fact, they lose UC entirely and are meant to reapply when they get out. If this is Housing Benefit then the entitlement ends for being expected to be in prison for 13 weeks or more; see the Housing Benefit Regulations 2006, regulation 7. That's a generic rule for absence, whereas there's a 52-week allowance for pre-trial custody, and some variations for release on probation. DHP top-ups from the local authority follow the same rules. In any event, 2.5 years, even taking into account the anticipated release at the halfway point, is more than any of those thresholds. The claimant is meant to report changes of this kind, but since Alice are receiving the money directly, she is also responsible for informing the government of any relevant changes. See guidance at 10.2, Whilst a MPTL is in place the landlord must notify the department of any changes which a landlord can be reasonably expected to know which might affect the claimant’s entitlement to Universal Credit and the amount awarded. For example, the claimant changes address. When a claimant changes address the MPTL APA will cease from the end of the assessment period before the claimant changed address. If your tenant moves home and you need to end a MPTL, please contact the service centre immediately on 0800 328 5644. As noted below, and following the Social Security Administration Act 1992, sections 71 and 75, If the MPTL is overpaid due to a change that has not been reported by either the claimant or the landlord, the landlord may be asked to repay the overpaid benefit. Universal Credit payments are made every calendar month and take account of changes during that month. It may be that Bob has already done their side of things but the system hasn't caught up yet. In any case, Alice is not entitled to continuing payments and the government has various means to get the money back. Sections 111A and 112 of the 1992 Act (which applies to UC as well) make it a criminal offence for Alice to fail to notify the government about a change of circumstances that affects her right to receive payments. (Simplifying the statutory language a little - Alice is "the recipient" in the context of the full text and Bob is "the claimant", and there are various other conditions about your state of knowledge and intention.) This is not to say that it would necessarily be pursued as a criminal matter, but that possibility exists in principle. | A tenant has a right to "live in a property that’s safe and in a good state of repair". There are additional regulations possibly applicable in your situation if this is a "house in multiple occupation", summarized here. "Hazards" are explained here. However, these rules pertain to the condition of the building, not other tenants (except that "overcrowding" is also a hazard). They also say you should "report anti-social behaviour to your local council". It is legal to rent a room in the UK to a person convicted of a violent crime, so it would also be legal to rent a room to a person who hasn't committed a crime (assuming he is legally in the UK). If the person did not engage in actual anti-social behavior towards you, there is nothing to report to the local council. The landlord has no affirmative duty to disclose such a fact, and it might be illegal to do so under the Data Protection Act, since this is "sensitive personal data". | Yes, you have to give 2 months notice and you have to pay £145 + VAT The first clause says your notice cannot end within 6 months of the start of the lease: that is long gone. You pay the lower fee because you will have stayed longer than 12 months by the time your 2 months notice expires. You can try to negotiate a shorter notice period - they have advantages in relenting if you move out earlier. | Can landlord backbill 4.5 years worth of utilities that were never billed to us bimonthly as directed in the lease? Yes, since the bimonthly billing issue appears to be within the LA statute of limitations for claims of breach of contract: 10 years (see here). But you might want to check the actual legislative language of the statute referred therein and the prior or consecutive ones --all pertaining to statutes of limitations-- so as to ascertain the accuracy of information in the first link (navigating through the bunch of LA two- or three-line statutes for this and that gets annoying). They are desperate to get me to move out since it is a rent-controlled unit and I feel like they have done this to cause issues and force me to default on rent. Is this a legal practice? I am not knowledgeable of state legislation particular to rent-controlled units, but I highly doubt it is lawful for them to proceed that way. Other details you describe reflect that the company has been --or is being-- malicious or grossly negligent. If so, strictly speaking, the company's conduct (1) ought to weaken its position or merits in trying to force you out, and (2) tends to contravene the contract law covenant of good faith and fair dealing (see below). If your lease mentions any statutes regarding rent-controlled units, you may want to search for case law at leagle.com to see how the statutes are applied. Without knowing the terms of your lease, I think your priority should at all times be the rent itself so as to avoid eviction. Does the "billing every two months" in the lease have any hold on this issue if they breached their own lease? Maybe not. The repeated, yet sole, failure to send you the bimonthly billings falls short of landlord's breach of contract. For your argument on breach of contract to prevail, you would have to prove that the landlord knowingly/deliberately let the water bills pile up prior to demanding you to pay everything at once. That would prove that the landlord is not meeting the covenant of good faith and fair dealing that is prerequisite in contract law. |
In which countries does the body of the dead become property of someone? It's been claimed on politics SE that the body of the dead becomes the property of his family. No country was specified, but is there really a country where this happens? | In the US, Pennsylvania specifically, the court in Pettigrew v. Pettigrew, 207 Pa. 313 says that the law recognizes property in a corpse, but property subject to a trust and limited in its rights to such exercise as shall be in conformity with the duty out of which the rights arise. Larson v. Chase, 47 Minn. 307 likewise states in this country it is, so far as we know, universally held that those who are entitled to the possession and custody of it for purposes of decent burial have certain legal rights to and in it, which the law recognizes and will protect. Indeed, the mere fact that a person has exclusive rights over a body for the purposes of burial leads necessarily to the conclusion that it is his property in the broadest and most general sense of that term, viz., something over which the law accords him exclusive control. This is in contrast to the English legal tradition where the church has jurisdiction over a corpse, giving rise to a doctrine that a corpse is not property, citing a dictum from Lord Coke that It is to be observed that in every sepulchre that hath a monument two things are to be considered, viz., the monument, and the sepulture or burial of the dead. The burial of the cadaver that is caro data vermibus is nullius in bonis, and belongs to ecclesiastical cognizance; but as to the monument action is given (as hath been said) at the common law, for defacing thereof. This article provides further analysis and case citations, mostly in the US. The topic of body-ownership is the subject of a book-length analysis (ten Have & Welie, Ownership of the human body). I think, according to this article, that under Islamic law, a body (living or dead) is not property, so an advance directive is not an absolute right. | You can put conditions on bequests (subject to other laws that might require you to provide for children etc.), however, these must be antecedent to the gift: once a gift is given you can't call it back. Of course, you could set up a trust that owns the bequest with rules for when and how the beneficiaries can utilise them that effectively do what you ask. However, this is a morbid and sick way of trying to control people from beyond the grave. The acceptable way to do this is to come back as a ghost, vampire, zombie etc. instead. | Bob's will leaves everything to Abby. Bob has a brokerage account solely in his name with no TOD on the account. Bob then dies. It is my understanding that for Abby to get the money, you have to go through probate. Am I right about that? Yes, this has to go through probate. I have been told that when you are leaving everything to a spouse you can skip probate. I am thinking that is wrong. You are correct. This said, in a very small dollar estate (e.g. $20,000, with the actual dollar amount varying state by state), some states allow you to transfer assets by affidavit rather than via the probate process, if the sold heir at all and will beneficiary are the same and there are no unpaid creditors with a claim against those funds. New Jersey has two sets of small estate procedures for estates under $50,000. The cutoff is sometimes $10,000, sometimes $20,000, and sometimes $50,000 depending upon the circumstances and the nature of the simplified process sought. It isn't clear to me that they apply in cases where the decedent has a will and therefore is not intestate. Small Estates General Summary: Small Estate laws were enacted in order to enable heirs to obtain property of the deceased without probate, or with shortened probate proceedings, provided certain conditions are met. Small estates can be administered with less time and cost. If the deceased had conveyed most property to a trust but there remains some property, small estate laws may also be available. Small Estate procedures may generally be used regardless of whether there was a Will. In general, the two forms of small estate procedures are recognized: Small Estate Affidavit -Some States allow an affidavit to be executed by the spouse and/or heirs of the deceased and present the affidavit to the holder of property such as a bank to obtain property of the deceased. Other states require that the affidavit be filed with the Court. The main requirement before you may use an affidavit is that the value of the personal and/or real property of the estate not exceed a certain value. Summary Administration -Some states allow a Summary administration. Some States recognize both the Small Estate affidavit and Summary Administration, basing the requirement of which one to use on the value of the estate. Example: If the estate value is 10,000 or less an affidavit is allowed but if the value is between 10,000 to 20,000 a summary administration is allowed. New Jersey Summary: Under New Jersey statute, where as estate is valued at less than $50,000, a surviving spouse, partner in a civil union, or domestic partner, may present an affidavit of a small estate before the Superior Court. Upon the execution and filing of the affidavit, the surviving spouse shall have all of the rights, powers and duties of an administrator duly appointed for the estate. New Jersey: New Jersey requirements are set forth in the statutes below. TITLE 3B ADMINISTRATION OF ESTATES–DECEDENTS AND OTHERS 3B:10-3. When spouse, partner in a civil union, or domestic partner entitled to assets without administration. Where the total value of the real and personal assets of the estate of an intestate will not exceed $50,000, the surviving spouse, partner in a civil union, or domestic partner upon the execution of an affidavit before the Surrogate of the county where the intestate resided at his death, or, if then nonresident in this State, where any of the assets are located, or before the Superior Court, shall be entitled absolutely to all the real and personal assets without administration, and the assets of the estate up to $10,000 shall be free from all debts of the intestate. Upon the execution and filing of the affidavit as provided in this section, the surviving spouse, partner in a civil union, or domestic partner shall have all of the rights, powers and duties of an administrator duly appointed for the estate. The surviving spouse, partner in a civil union, or domestic partner may be sued and required to account as if he had been appointed administrator by the Surrogate or the Superior Court. The affidavit shall state that the affiant is the surviving spouse, partner in a civil union, or domestic partner of the intestate and that the value of the intestate’s real and personal assets will not exceed $50,000, and shall set forth the residence of the intestate at his death, and specifically the nature, location and value of the intestate’s real and personal assets. The affidavit shall be filed and recorded in the office of such Surrogate or, if the proceeding is before the Superior Court, then in the office of the clerk of that court. Where the affiant is domiciled outside this State, the Surrogate may authorize in writing that the affidavit be executed in the affiant’s domicile before any of the officers authorized by R.S.46:14-6.1 to take acknowledgments or proofs. amended 1983, c.246, s.1; 2004, c.132, s.77; 2005, c.331, s.24; 2015, c.232, s.1. 3B:10-4. When heirs entitled to assets without administration Where the total value of the real and personal assets of the estate of an intestate will not exceed $20,000 and the intestate leaves no surviving spouse, partner in a civil union, or domestic partner, and one of his heirs shall have obtained the consent in writing of the remaining heirs, if any, and shall have executed before the Surrogate of the county where the intestate resided at his death, or, if then nonresident in this State, where any of the intestate’s assets are located, or before the Superior Court, the affidavit herein provided for, shall be entitled to receive the assets of the intestate of the benefit of all the heirs and creditors without administration or entering into a bond. Upon executing the affidavit, and upon filing it and the consent, he shall have all the rights, powers and duties of an administrator duly appointed for the estate and may be sued and required to account as if he had been appointed administrator by the Surrogate or the Superior Court. The affidavit shall set forth the residence of the intestate at his death, the names, residences and relationships of all of the heirs and specifically the nature, location and value of the real and personal assets and also a statement that the value of the intestate’s real and personal assets will not exceed $20,000. The consent and the affidavit shall be filed and recorded, in the office of the Surrogate or, if the proceeding is before the Superior Court, then in the office of the clerk of that court. Where the affiant is domiciled outside this State, the Surrogate may authorize in writing that the affidavit be executed in the affiant’s domicile before any of the officers authorized by R.S.46:14-6.1 to take acknowledgments or proofs. amended 1983, c.246, s.2; 2004, c.132, s.78; 2005, c.331, s.25; 2015, c.232, s.2. The consent and the affidavit shall be filed and recorded, in the office of the surrogate or, if the proceeding is before the Superior Court, then in the office of the clerk of that court. Where the affiant is domiciled outside this State, the surrogate may authorize in writing that the affidavit be executed in the affiant’s domicile before any of the officers authorized by R.S. 46:14-7 and R.S. 46:14-8 to take acknowledgments or proofs. | Some people seem to believe that just because something happens 'in the internet' it is somehow outside normal jurisdictions. Wrong. In may be harder to investigate and prosecute crimes in the internet, but the laws apply all the same. There are some problems when it is unclear 'where in the world' something did happen -- in the jurisdiction of the perpetrator, the victim, or the service provider? But problems of jurisdiction apply e.g. to international fraud cases in the non-web-world as well. In many jurisdictions, the informed and voluntary consent makes some things legal which would otherwise be illegal. For instance, if two boxers get into the ring, it is understood that each of them did consent to be hit by the other. But usually two fighters could not legally agree to a fight to the death, because even if there are laws on assisted suicide, they do not apply to a fight. Insults, libel, and slander are not on the same level as homicide. There are jurisdictions where they are not prosecuted without the request of the victim. But an insult might also violate other laws, e.g. disturbing the peace. So don't bet on such an app unless you know for sure which jurisdictions are involved. | Under U.S. copyright law, the First Sale Doctrine protects such conduct. As the U.S. Justice Department explains: The first sale doctrine, codified at 17 U.S.C. § 109, provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. The right to distribute ends, however, once the owner has sold that particular copy. See 17 U.S.C. § 109(a) & (c). U.S. law with respect to the First Sale Doctrine is typical, and copyright law is fairly uniform internationally due to some relevant intellectual property treaties. But there are hundreds of countries in the world, and some of them might not include the First Sale Doctrine in their jurisprudence. For example, I do not know how this would be handled under the laws of the People's Republic of China, or under Islamic law. | First sale doctrine is about selling something that you bought. You buy X, you pay your money, you have it and you own it. You don't want it anymore, so you sell it to me for money. Now you don't have X anymore, but I have it. That's what First Sale Doctrine is about: That you can buy something, and then you sell everything you have, including all the copies, to someone else. What you are suggesting is absolutely nothing like that. You buy a DVD, you stream it, and after that you still have the DVD. That is absolutely not covered. What would be covered is that you sell the DVD to me, you hand over the DVD for cash, and you hand all the copies that you made over to me as well and destroy any traces that you still have. After the sale, you have my money and nothing else. | Wills are governed by state law, but yes you may. Almost anything that can be legally owned/possessed can be bequeathed. When a copyright holder dies their copyrights (intangible property) are transfer to the estate or heirs as proscribed in the will or state law if no will exists. | Finding S seems to be hard and I have not much hope, if her siblings cannot provide any information. I think the "inhabitants registry" (Einwohnermeldeamt) is not allowed to give you her first address in Spain ("Zuzugsanschrift im Ausland") (§§ 44 and 45 Bundesmeldegesetz (BMG)). The best option I see is a court auction (Zwangsversteigerung), more precise a "Teilungsversteigerung". If one of S's siblings want money for the land, he can ask for a court auction at the local court (Amtsgericht). The court will get S's first address in Spain (§ 34 BMG) and if it cannot deliver its letter to S, there will be a "public delivery" (öffentliche Zustellung) through a posting in court. It would take a while, but in the end the land could be yours. Be prepared that the cost for the court auction will be much higher than the 1000€. If you plan to take this way, ask a lawyer for detailed advice. Also you need one of S's siblings to participate in the process. If the trees are really a danger for your house, the heirs could also have an obligation to remove them. Maybe this could help you too. |
Contact Microsoft legal department, or other ways to facilitate reinstatement of a Google Play app I used an icon of Microsoft Notepad (taken from Wikipedia) as the icon for a free Notepad application Fast Notepad in Google Play. It probably was beneficial for the community, as it had no ads, and many users could use it for education, and they accepted it with a high rating of 4.7. But currently it is suspended by Google Play, presumably because of the icon. So legal permissions for the image need to be discussed to handle copyright issues. If the app is reinstated for a short time, so I can change the icon to another, this will be the desired result. I have not yet filed an appeal (the owner of a suspended app can send a proof of their rights, but only once). Is there a means to contact Microsoft legal department or similar on this issue or another way of solving the problem? Any information would help. | 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. | OK, so you understand that clickwraps do create enforceable contracts. the person "agreeing" to the dialog can arbitrarily manipulate the contents of the agreement terms So what? I can do a similar thing with a pen and paper agreement. You send me an agreement, I tell you I accept but secretly I have changed it. Well, guess what, when this ends up in court the judge won't care if I wiped my ass with it - I communicated my acceptance of your terms; therefore that is what I accepted. Under the hood, Google can show what the HTML was that their server sent to you and the http response that you sent back. They said "Do you accept?" you sent back "yes", deal done. What you did with the html in your computer does not matter one iota; just like what you did with pen and ink terms would. | First I should point out that the Google question is about a different situation, the "snippet" issue where a tiny part of a web page is redistributed, where the issue of resolved in the US by appeal to the "fair use" defense. The proposed scenario as written here is broader since it would go beyond a couple of lines, and goes up to the limit of copy an entire web page. That is copyright infringement, with or without an associated link. Copyright protection is not just about attribution, it is about control. If you can limit your copying appropriately, you may survive under a fair use analysis; but you need to hire a lawyer with experience in copyright litigation to vet your notions of what is "a small amount" etc. | 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. | First of all, this is probably a poor idea even if it is legal. Verse, and song lyrics, are notoriously hard to translate well, and make poor examples for language learning, They tend to employ metaphor, allusive language, and idiom heavily, and will in many cases distort the sense of the language for the sake of rhyme, meter, or other auditory effects. But suppose you still want to go ahead. The developer of such an app could use songs old enough to be in the public domain. "The Star-spangled Banner' for example is not protected by copyright. Neither is the French national anthem, the La Marseillaise. Most well-known songs published before 1900 will not be under copyright. But more recent songs will almost surely be protected. The use of a line or two from a song might well be permitted under fair use (in the US) or fair dealing (in those countries that recognize this exception to copyright). Use of the entire lyrics of any given song would be more questionable. The use for educational purposes would tend to favor the applicability of any such exception, but the availability of the whole lyric (or even a major part) might serve as a replacement for the original, and harm the market for the original. No one can ever be sure in advance if a given use will be ruled to be a fair use. That determination depends heavily on the specific facts of each case. It would avoid risk to use songs that are out of copyright, or short sections of songs, if songs are to be used at all. | The exact timing of this story makes a bit of a difference, as you're placing the story right around the time of the Berne Convention Implementation Act of 1988, which changed the rules for works first published after March 1, 1989. Before then, most copyrightable works were only treated as protected if they included a proper copyright notice, which required the copyright symbol (or "copyright" or "copr."), the year of first publication, and the original copyright owner. So if this happened in February 1989, the lawyer was correct that you needed to include "a proper copyright notice." But he was probably mistaken to think that your rendering was problematic. The copyright symbol required was the same circled C that you mentioned, but the Copyright Office will also recognize a variant on the symbol if it "resembles the © closely enough to indicate clearly that the variant is intended to be the copyright symbol." The office's current guidance makes clear that your variant would be sufficient: Acceptable variants include: The letter c with a parenthesis over the top. The letter c with a parenthesis under the bottom. (c c) (c) The letter c with an unenclosed circle around it. Examples of unacceptable variants on the © symbol include the following: CO C C/O @ (i.e., the letter a in a circle). The letter c with a circle attached to the bottom of the letter. The letter c in a square. [c] The same was true under the guidance that would have been in effect at the time. See section 1005.01(c)(6). If the advice came after March 1, 1989, the notice would not have been strictly necessary, regardless of how you rendered it. | Here are the jury instructions. These describe how to evaluate witness testimony, burdens of proof, and the four-factor fair use test, among other things. The jury had to answer yes or no to the following question: Has Google shown by a preponderance of the evidence that its use in Android of the declaring lines of code and their structure, sequence, and organization from Java 2 Standard Edition 1.4 and Java 2 Standard Edition Version 5.0 constitutes a "fair use" under the Copyright Act? They answered yes. Juries do not explain their reasoning (different jurors might even have different reasonings), but the assumption is that they followed the jury instructions to arrive at this conclusion. To be clear, the issue wasn't reimplementation of 37 Java APIs, but a more limited taking, including "the declaring code and the structure, sequence, and organization". | Being or not being open source makes fairly little difference in trademark law. If a commercial firm (Yoyodyne, say) had used the name "Portable Network Graphics" and the abbreviation "PNG" in trade, and taken such further steps as would be needed to protect it in the relevant countries, that firm would have a protectable trademark. Note that in some countries, a trademark must be registered to have any protection at all (much of the EU follows this rule). In others, use in commerce can offer some protection even without registration (the US follows this rule). Had this happened (in an alternate reality) Yoyodyne could have sent a cease and desist letter when open source developers started using the mark. If the devs did not cease, Yoyodyne might have obtained an injunction, or damages for trademark infringement, or both. They could also have issued a takedown notie to the site hosting the project. But had Yoyodyne failed to defend the mark effectively and allowed it to become generic, Yoyodyne might have lost all rights to it. Also, had Yoyodyne ceased to use it in trade for a significant period, they might have lost rights. This is a place where the different laws in different countries might lead to different results. Note that "Portable Network Graphics" is rather descriptive, and not particularly distinctive. Descriptive marks, like "Tasty Pizza" generally get weaker protection, while more distinctive marks, such as "LuAnn's Tastee Pizza" are more strongly protected, in general. Again this depends on the country, and the specific facts. In general the first to use, or to register a mark, gets the rights. When one entity is the first to use, but a different one is first to register, things can get confusing, and results will be different in different countries. Note that a Cease and Desist letter is not a legal requirement. It is a threat of possible future legal action, and often an offer to avoid such action if the recipient does as the sender requests. The recipient can comply with the letter, wait for court action, or try to make some sort of compromise deal. Open source projects, as other answers suggest, often choose to comply. |
Neighbors are spying for landlord on Renters is it legal? Can a landlord legally spy on their tentants? Or Have Neighbors constantly spy for landlord | This hinges on what you mean by "spy". Generally, a landlord cannot enter a leased or rented property* without the tenant's consent, nor can their agents. (They can arrive and ask to enter, as can your neighbors whether or not you own your home, but you are not required to acquiesce in either case). A landlord can view the publicly viewable portions of the property at their leisure, as can their agents, or any member of the public for that matter. A landlord could possibly be notified of a tenant's actions in a number of ways: such as viewing the public portions of the property, being notified (or billed) by utilities or public agencies, or receiving complaints from the neighbors. A neighbor has no more, and no less, legal ability to spy on you if you owned your home vs if you rent your home. So, they would have no more right to, say, spy at your house with a telescope than if you owned the property yourself, but no less right to complain if you have a loud (or audible) party or a large number of guests; the only difference being they can complain to someone who could potentially do much more than they could if you owned the property yourself. Thus, the answer to your question depends on what is meant by "spying". *This assumes that this is a separate property; a landlord who rents out a room in their own home often has far greater rights. | The legal position You are quite clearly not running a business and if the matter went to court you could easily prove this be e.g. getting testimony from the people at the party, your testimony etc. In any event, your landlord can’t “fine” you. Fines are a punishment and only government can punish people. They can sue you for breach of contract for damages (which are restitution not punishment) or to seek specific performance. The practical position Take the listing down. Rightly or wrongly, it's souring your relationship with your landlord and their relationship with their HOA. Is having this mildly amusing joke worth damaging these relationships, particularly if you might want to renew your lease? The landlord might feel that they are better off with a tenant who doesn't cause them grief with their HOA. Even if your landlord understands, the HOA might not. If they sue your landlord, they will have very little choice but to join you. Yes, you will almost certainly win your day in court but you will not get reimbursed for the time and effort you had to go to. this includes taking the day off work, subpoenaing all your friends to give testimony etc. Who has time for that crap? Further, whenever you go in front of judge or arbitrator who has the power to force a resolution of your dispute, you are rolling the dice. Sure, you may think you have great evidence and the other sides' is completely bogus but if they present theirs with skill and confidence and you screw yours up then they can walk away with a win. Real court cases depend on who the judge believes. If they believe your landlord's reasonable story about running an illegal bar and they don't believe your crazy tale of it all being a joke - you lose. Remember: free speech can't be restricted but it does have consequences. Further, anyone who bases relationships on legal rights and responsibilities is going to have very shallow relationships. | This would be pointless and wouldn't work. Eviction due to defaulting on rent requires the landlord to give 3 business days notice, in writing. This must include a method by which the tenant can settle their debt. Either the landlord would be forced to accept a payment or this would not be valid. Source Additionally, in this case, there is nothing stopping you physically handing an envelope of cash to the landlord as they live upstairs. However, there is no reason for your landlord to do this. If your landlord hates you that much it would be far easier for them to simply give you 60 days notice and terminate your tenancy that way. | user662852 has a good point -- whoever own the property has the right to make the rules. Is the property, land+construction in fact your's or does it belong to the HOA who just grant you access as a lease holder? Different states has different rules, but in my state it is illegal to maroon a property and there must be a access to public streets even when this necessitate passing over somebody else land. However that is irrelevant if the HOA owns the land your house is build on. I think you will have to look at your HOA agreement and see what it says. | The default rule is that a landlord can refuse to rent to anyone for any reason, in which case the landlord can refuse to rent in this case. There are civil rights laws that limit this discretion in the case, for example, of discrimination based on race, or family status. But, those laws often have exemptions for owners of small amounts of property (e.g. a unit in their own home), which can't easily be determined from the question. If a civil rights law applies, the landlord must choose among potential renters on a non-discriminatory basis - the landlord doesn't have to rent to anyone in particular, but can't use the prohibited reasons to make the choice. If the default rule does not apply because a civil rights law unrelated to immigration bars discrimination against a tenant, someone's undocumented immigrant status probably doesn't provide an absolute defense to the civil rights law, but might be one factor among many that a landlord could consider in choosing among available tenants in much the same way that credit ratings, income, and a prospective tenant's criminal record, and other factors might be considered. | The emails both are and are not hearsay If the landlord seeks to use them as evidence that you did the things stated in the emails, that’s hearsay. However, if he seeks to use them as evidence that he received complaints about you, that’s not hearsay. Notwithstanding, this is no doubt a hearing in a tenancy tribunal or small-claims court - strict rules of evidence generally don’t apply in those. The emails are therefore likely something that will be admissible even if they are hearsay. | Approach the neighbor in your yard and ask him to leave. You are the tenant, you have full rights to do so. Once he refuses to leave he is a trespasser and you can call the police to take care of him, let alone if he makes any threats. Regarding the landlord, just ignore them and take care of the yard and the house as the lease terms bind you. Require them to give 24 hour notice before any appearance as the lease terms bind them. | No If you breach the contract that may allow the rental company to terminate it (among other things), however, termination would need to be communicated to the customer. Only if they kept it after that, with the intention of permanently depriving the company of it, are they stealing it. |
Are martial artists held to a different standard? At the beginning of the movie Con Air, the main character is presented as an ex-Green Beret who is attacked by 3 people outside a bar. He defends himself and his pregnant wife during the fight until one breaks a bottle over his head, after which he recovers and deliberately uses a palm strike to the face, killing one of his assailants. Subsequently, he is arraigned for manslaughter. In an attempt to plea bargain the sentence down from a possible 10 years, he pleads guilty with the expectation he'll get something like 4. The judge accepts the guilty verdict, but rejects the plea terms and sentences him the full amount with the statement, "Your military training makes you a deadly weapon..." This mentality runs contrary to my personal sensibilities (so I probably can't be a juror in this sort of trial), but to me common sense suggests that when you're being attacked in a 3 on 1 scenario and someone has introduced a weapon, it is prudent to no longer be lenient. Does the law disagree with this mentality? Are military members and other persons who study martial arts held to a different standard in cases of assault or manslaughter like this? | In Guam, Any person who is an expert in the art of karate or judo, or any similar physical are in which the hands and feet are used as deadly weapons, is required to register with the Department of Revenue and Taxation but This Chapter shall not apply to duly authorized and appointed peace and law enforcement officers, nor to members of the Armed Forces of the United States However, in general, a person is not at a legal disadvantage for a self-defense defense by dint of the fact of knowing or using martial arts. You are allowed to use necessary and proportionate force to defend yourself or another from harm. The specifics vary by state, so you may be required to retreat and use force only if there is no alternative other than death. Jurors would be given some kind of instructions such as this one and this, the crucial part of which is that one may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of [and prior to] the incident It is possible that jurors would think that lesser force is required in the case of a martial-arts based self-defense. There would probably be expert testimony addressing the question of whether a less energetic response would be obviously effective, given the defendant's expertise. | 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"). | There is a general defence to any crime called self defense. If you commit a crime, but the reason you commit it is because you are acting in self defense, or the defense of another, then you will not be found guilty of that crime. For example, if you kill someone, but the court believes you are acting in self defense, then you will not be found guilty of murder (or manslaughter). This defense extends to other crimes too, and trespassing would be included in this. Acting in the defense of another person has the same effect as acting in self defense. Just note that you would have to prove that it was reasonable for you to be acting in the way you did. Usually this means that the crime you committed was proportional or necessary to prevent the crime that would have occurred, and if self defense is involved, that it was necessary to do what you had to do to prevent harm to you or another. | Police officers are authorized to use force regardless of what they are wearing, to effect an arrest. One issue will be whether the defendants should know that they were under arrest, but there is no requirement to utter particular phrases when dealing with a combative lawbreaker. There will be an internal investigation at some level to determine whether the officers violated any department policy, and no doubt the video and testimony of those in the are would be relevant. There probably is some policy to the effect that you have to distinguish yourself from a street vigilante (you have to state your authority), though I can't find any specific online publicly-available department rules. There is no law that requires an officer to say that he is one, or to show his badge, before starting an arrest. | It is not necessary for a combatant to actually carry arms to become a legitimate target. An uniformed mechanic carrying a screwdriver at an airbase is a combatant, entitled to the protections of the conventions but also a valid target. Of course a civilian commander-in-chief does not wear insignia, but he is presumably recognizable. Civilian targets can be attacked according to the tests of military necessity and proportionality. It can be legal to attack a bridge even if it was built by and for civilians, it can be legal to attack a factory producing arms, it can be legal to attack a power plant also serving a barracks. Taking out a key command-and-control node sounds like miliary necessity to me, but surely there would be lawyers for either viewpoint. | That waiver for the martial arts class is a contract. One can attempt to negotiate any contract and change the terms to one's liking. It is unlikely, however, that a martial arts studio is going to want to negotiate the terms of their waiver of liability on a student-by-student basis. This will probably leave prospective students with a choice of accepting the terms of the waiver or not taking the class. However, such waivers are unenforceable in some jurisdictions. Louisiana Civil Code article 2004 for example: Art. 2004. Clause that excludes or limits liability Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party. Acts 1984, No. 331, §1, eff. Jan. 1, 1985. Here is an interesting article that discusses a lawsuit against Louisiana State University (LSU) over an ankle injury. The court held in that lawsuit that the "release and hold harmless" portion of the waiver was null and couldn't be presented to the jury. However, the parts of the waiver that did not release LSU could be weighed by the jury; these included an obligation of the participant to have adequate health insurance among other provisions. Another article from 2012 regarding such waivers in Virginia mentions: ...,most, if not all states prohibit waivers of liability based on willful or wanton misconduct, gross negligence or intentional acts. A web site titled Sport Waiver has a page, www.sportwaiver.com/about-waivers, that gives advice to businesses which want to use waivers. On the linked page, which is from 2009, it lists each of the states and how they treated such waivers at that time. A business that caters to inherently risky activities will often have participants sign waivers and hold harmless agreements even when those agreements are null as a matter of law. This is done to discourage lawsuits and also, in case of a lawsuit, as a means of demonstrating that the participant knew the risks associated with the activity. | I'm not sure what jurisdiction you're referring to, but here are the state involuntary manslaughter laws. Broad brush, the elements tend to be: Someone was killed as a result of act by the defendant. The act either was inherently dangerous to others or done with reckless disregard for human life. The defendant knew or should have known his or her conduct was a threat to the lives of others. However, you're really backwards planning from a jail vs. army decision, so you might actually be after something like felony hit and run, which can most certainly result in incarceration. The elements of felony hit and run generally include leaving the scene of an accident regardless of fault (hit and run typically becomes a felony when someone was injured in the accident). Since the elements vary from jurisdiction to jurisdiction, it makes sense to look them up wherever the accident will take place in the book. If it takes place in the U.S. this is a state-by-state compendium. Then you can tweak the story to satisfy the applicable elements and induce the jail vs. army decision (even if army policy prohibits it, it's still pretty common fiction!). | Good Samaritan laws are not applicable to the facts Good Samaritan laws give a person civil immunity if they render aid in good faith and that aid turns out to do harm. For example, in a person incorrectly performs CPR in a genuine effort to save a life, Good Samaritan laws prevent them for being sued if the cause damage or fail to save the life. The legal paradigm in your facts is self-defence The doctrine of self-defence extends to the protection of others and allows the use of reasonable force to do so. If a jury considers that the choke hold was a reasonable response to the situation and the maintenance of it to the point of death was also reasonable then the defendant will be not guilty. There would be a lot of evidence around this and it’s difficult to see how this would go. However, for a more straightforward situation, if the defendant verbally challenged the attacker, the attacker persisted in the attack, the defendant struck the attacker, the attacker fell and cracked their skull and died, this is likely to be self-defence. Self-defence does not prevent prosecution. It is a defence that can be raised. Of course, if it seems likely that self-defence will succeed, that may be enough to dissuade the police/prosecutor from proceeding anyway. |
leashed dog on community college campus I live in Virginia. I am told that I am not allowed to walk my leashed dog anywhere 'on campus' of our local community college which, they say, includes the parking lots. Their website only addresses the issue by saying only service animals are allowed on campus. Is that enough legal 'juice' to automatically exclude walking a leashed dog in the parking lot? | A property owner has the legal right to set the rules for their property, which can include a no-pets policy. This includes property owned by the government, by government agencies, and government-funded operations. The service animal exception is the accommodation for disability that is required under the ADA and analogous state laws. So if you take your dog for a walk through the parking lot, they can tell you to pack it up and go away. | Yes they can You are approaching this from the wrong direction. Their right to enforce what you can and can't do doesn't come from radio-spectrum law; it comes from property and contract law. You are on their property subject to a license that they give you to be there. One of the terms of that license is that you won't set up or operate a wireless network. No doubt there are other things you are not permitted to do; for example, you may not be able to sell goods and services. If you breach the terms of the license then you are trespassing and they are within their rights to have you removed. In addition, if you are a student (or staff), this is probably one of the terms of your contract with the university. If you breach it, they can terminate your candidature (employment). Contracts can impose obligations on you that goes beyond what the law obliges you to do. Indeed, there is no contract if it only requires what is already required. | If they have no legal grounds then it would be trespass to chattels However, they do have legal grounds. Following the procedure laid out in the relevant Act makes the car refuse under the Act notwithstanding your opinion. Move it or lose it. Or seek an injunction preventing the council removing the vehicle- this will likely fail. | This isn't about bullying at all, this is about Virginia being a "one-party" state. Virginia Law 19.2-62 outlines that: B.2 It shall not be a criminal offense under this chapter for a person to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception. However what is not said in the article is that the daughter didn't know that the recording device was in the backpack. This means that the mother did not get consent from either party being recorded (it isn't clear that a minor could give consent anyway), and is therefore in violation of 19.2-62. The (US) law has been quite clear on "two wrongs don't make a right", the mother was not getting satisfaction through other channels, but that does not mean she is right in violating the law in pursuit of justice. This is still very much in the early stages of this particular case, but I'm willing to bet that the mother will see very little if any punishment in this matter. As for why the DA doesn't prosecute the children (or their parents) for the bullying, this really depends on what kind of bullying is subject here. If the children are verbally bullying, this may not be a crime (yes, it is morally wrong, but may not be a crime). It isn't to say though that the children in this case haven't been reprimanded according to State law, at least the subject of the bullying has been moved to a different class as a result. Unless the bullying reaches a physical level, most State laws require the schools to deal with the bullying directly (through moving children to different classes, suspensions, expelling, etc), so the DA doesn't typically get involved until physical injury occurs. | No, it is not illegal to use the symbol of the federal government for your own personal use as it is a public domain symbol. However, the USMC will frown upon it. Marines have a sort of warrior culture ethos to them, when compared to the other branches of the U.S. military and a strong culture among those who served. Among Marine culture "there is no such thing as a former Marine"... that is, once you enter the service, you are a marine even if you retire (a former Marine is usually someone who was dishonorably discharged OR committed an action that would have gotten him/her discharged had they not retired). They do not take kindly to Stolen Valor (pretending or seeming to pretend you served when you did not). While this is legal to do per SCOTUS rule, it's not considered advisable. Most of the US military have dim views of Stolen Valor and will react very negatively. And seeing as how the Marines like to boast in song that they Guard Heaven for God upon Death, these are not enemies you would like to make. Tread extremely cautiously while doing this. | The statement that cats cannot commit trespass is technically true, but is also a misreading of ss.4 and 4A of the Animals Act. Those sections replace a common-law doctrine called "cattle trespass", which was a specific tort (a civil wrong) concerning what happens when my cattle stray onto your land. Both old and new rules apply only to livestock, so not just cows but other kinds of farm animals as well - but not to dogs or cats. Horses are a special case (s.4A). Since cats are not livestock, they cannot be the subject of cattle trespass and are not covered by section 4. Further, since they are animals, they cannot commit the tort of trespass at all. Animals themselves are not liable at law. As the keeper of cows, it would be me who was liable in a case of cattle trespass, not the cow. The point of s.4, and its predecessor in common law, is to make me liable for damage done to your property by my cows, regardless of whether I was negligent in the way I looked after them (it is a "strict liability"). The mere fact that they've strayed onto your land and done damage is enough. Because cats are not cows, this particular rule does not apply. That does not mean that cats can't be the subject of other torts. In particular, cats could be involved in the tort of nuisance, which covers all sorts of potential scenarios - noise, smells, etc. This has typically happened when there are lots and lots of cats. And under the Animals Act, the keeper of any animal may be liable for damage that it does, including physical injury or damage to property. Section 2 of the Act establishes a statutory distinction between whether I am liable for the damage, or strictly liable. In a scenario where I am strictly liable, you do not have to prove that I was negligent in my management of the animal. Broadly, that applies if the animal belongs to a dangerous species, or is unusually dangerous in itself. (There has been very complex litigation on this point which I am not discussing here.) If my cat is not a real vicious bastard of a cat, but just a regular cat, then I can still be liable for damage that he does: it's just not automatic. Following Rachael Mulheron's Principles of Tort Law (CUP, 2nd ed., 2016), for an action in negligence there are several key points - Proving that D, the owner/keeper of an animal, owed C a duty of care, where C was injured by that animal, has been a straightforward task. The court must be satisfied that a reasonable person in the position of D, the keeper of the animal, would foresee a real risk of injury to C arising from D's particular acts or omissions in dealing with the animal. Otherwise, in the absence of that foreseeability, a reasonable D would have done nothing different in response to the risk posed by his animal. To fall below the standard of reasonable care as a keeper of an animal, D must have failed to do that which a reasonable keeper would have done (to supervise/fence/control, etc, the animal), or have done something which a reasonable keeper would not have done. In damage-by-animals cases, C must prove that, as in the usual negligence action, D's failure to supervise/handle/care for the animals caused C's injury on the balance of probabilities. As in other negligence cases, there are various defences; if you hassled my cat and it scratched you, then that's your fault and not mine. From the material quoted above, we can see that for a normal cat in the UK, where the owner is not doing anything unusual by letting it roam freely outdoors (as is typical for UK cats), it is going to be hard to meet the tests. Things may be different if D knows that C is allergic to cats, or that the cat has been eyeing up C's delicious prize goldfish, or has a bone to pick with D's own cat and is likely to attack her, or something. Most of the big cases under the Animals Act have involved animals who are more likely to cause damage, such as dogs, horses and cows; a cat is only legally different because (1) unlike for dogs, horses and cows, there are no special rules applying to cats, and (2) factually, most cats don't do much harm. To that point, even if D is liable in the way described, C may not get very much out of them by way of damages. Defecation in C's garden is not pleasant, but is probably not worth a lot of money either. | Yes, police are allowed to touch your car or wipe snow off the windshield to view a parking permit. Indeed, if they just ticketed people because their permit could not be seen through the snow, there would be a huge public outrage. They are not allowed to search your car without permission or probable cause in an emergency, but wiping snow or touching the exterior of your car do not constitute searches. Likewise, towing companies are allowed to touch your car in order to tow it away for whatever legal reasons there are for towing a car. | In various states, you may shoot a dog attacking livestock or running at large (the latter possibly only in Indiana). In Ohio, ORC 955.28 allows shooting a dog that threatens (etc.) "livestock, poultry, other domestic animal, or other animal, that is the property of another person, except a cat or another dog". So in fact, dog against cat is specifically exempted. The Kentucky law allows shooting a dog that trespasses and attempt to harm livestock (not cats). Texas has such a law, which says "A dog or coyote that is attacking, is about to attack, or has recently attacked livestock, domestic animals, or fowls may be killed", if they witness the event. This law is not limited to livestock and does not specifically exclude cats. |
Bribery? $1 million pledged against Collins if she backs Kavanaugh $1 million pledged against Collins if she backs Kavanaugh "The senator and her Republican colleagues are decrying the effort in Maine as attempted bribery, as attention shifts from Kavanaugh's confirmation hearings to the question of how lawmakers will vote on his nomination" How does the pledge fit the label of bribery? or does the notion earn another label? Obviously the donor can not give Senator Collins $1M to vote against Kavanaugh, without a bribery issue being raised. That being said, this is an interesting spin in that if Collins does not vote for Kavanaugh, how can we know that she is not influenced by the pledge? | It sounds less like bribery (where you give someone a benefit in exchange for an official act) than like extortion (where you threaten some harm in the absence of an act). | Yes, the President can certainly veto such a law. Per the US Constitution (emphasis added): Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. This can have a very real effect: legislators are under no obligation to vote the same way on a veto override as on the original bill. The reason the President needs to supply written objections in the first place is that it lets legislators reconsider, see if they're swayed, or see if they think this is a matter where a Congressional majority needs to be respected even if they disagree (they can change their mind in either direction). They can also get a sense of public reaction. And because the threshold for this is "present and voting," it's possible that just more legislators show up. Even if legislators won't be swayed, it still matters for pocket vetoes. That's where the President neither signs the bill nor returns it within 10 days; normally this is equivalent to signing, but if Congress adjourns in the meantime, it means the bill does not become a law. Because "Congress adjourns" is a necessary part of a pocket veto, it's impossible to override the veto (you can't do it if you're not in session). And even when this doesn't apply either, it matters for politics. Example of a futile veto: Public Law 100-4. Passed 406-8 in the House, 93-6 in the Senate. Vetoed; veto was overridden 401-26 in the House and 86-14 in the Senate (note that at least 7 Senators who voted for the bill voted not to override the veto). Example of an effective veto: While technically there was a conference report agreed to by both houses, and it doesn't seem to have had a roll-call vote (my guess is it was agreed to by unanimous consent; side note: many, many laws don't have roll-calls to check on, because they're passed by voice vote or unanimous consent), H.R.10929 from the 95th Congress was passed in the House by a vote of 319-67 and in the Senate by 87-2. After President Carter vetoed it, the House voted on whether to override the veto. The motion to override was defeated 191-206: after the veto, they couldn't even get a simple majority to override the veto of the bill which had been passed by an overwhelming supermajority. I mentioned it above, but the two-thirds threshold is "present and voting." As a general rule, any time you see a fraction of something needed for a vote to succeed in a deliberative assembly, then unless it specifies some other denominator, it's talking about the fraction of members present and voting. Relevant CRS report on override procedure. | When a US Senator or Congressperson poses a question to a private company about some behavior or action of the company, does that carry any legal weight? In other words, (a) is the company required to answer? and (b) if the result is "bad" (however that is defined), can the Senator or Congressperson impose any penalty. Is it all just "showboating" on the part of the politician? Individual members of Congress cannot compel a company to testify, although a failure to respond might result in legislation being adopted in a way contrary to the preferences of the person being asked, while a response might influence legislation in a manner that the person being asked likes. Congressional committees have subpoena power which if disregarded may be enforced in federal district courts on pain of the non-responsive person being held in contempt of court, which is essentially equivalent to the power of a court to subpoena someone's testimony. | The future prospects are negligible, and the present status of such influence is non-existent. In a few cases, you may find an appellate decision citing some statement from a reputable law review. Here is an article that addresses such influences on SCOTUS (which, the authors note, have decreased over time). However, you are describing a wingnut legal theory, and courts do not rely on wingnut legal theories, they rely on what the actual law is. | 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. | Yes, for those who 'liked' the business after reading the post, but less likely for those who had already liked the business. Under contract law, the business's post is an offer to share the winnings with anyone who is a friend of the business on Facebook. A promise is enforceable if consideration is provided under a bargain; the consideration can be of nominal value (e.g. the act of 'liking' a page). In the context of a business page, in a time when 'followers' and the like are regarded as valuable from a marketing perspective, it is entirely reasonable to interpret the post as offering an exchange of likes for a chance to win money. The commercial context and involvement of money would cause a court to presume that there was an intention to create a legally-binding contract (Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; Banque Brussels Lambert SA v Australian National Industries Ltd (1989) 21 NSWLR 502). I am not entirely familiar with how the designation 'Friend' applies to businesses on Facebook. My understanding is that businesses have pages that are different to user pages. Businesses don't have 'friends'. They have people who 'like' the business. However, the word 'Friend' in the post has to be given content and therefore would be read as 'people who are listed as having liked this page'. People who had already liked the page are less likely to be able to enforce the promise to share the winnings, because they didn't do anything. They might be able to argue that they forwent the opportunity to un-like the business and that this forbearance is consideration. However, they would have to show that this was in consideration of the offer to share the winnings. Contract law is based on objective manifestations of agreement, not subjective thoughts (Taylor v Johnson (1983) 151 CLR 422), so it isn't necessary to show that the individual did in fact have the offer in mind when they liked (or didn't un-like) the page. However, it is necessary that the promisee have knowledge of the offer and not be acting out of some completely separate purpose (R v Clarke (1927) 40 CLR 227); therefore if a user had liked the page some time ago and never knew about the offer until after the lottery was won, then they might have a hard time claiming a binding contract. Aside from contract law, the other possible head of liability is equitable estoppel (I mention this particularly for the people who had already 'liked' the business page before the offer was posted). However, equitable estoppel usually requires some element of detrimental reliance. Leaving a pre-existing 'like' on a page in reliance on a promise to share lottery winnings is unlikely to stir a court to find an equitable estoppel, since the detriment is trivial. Contrast Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, where the detrimental reliance was knocking down a building and starting to construct a replacement. Equitable remedies are discretionary, so the judge has plenty of leeway to not order compensation. This answer is based on the common law. There is nothing in Texas law which would make the outcome any different to the outcome in any other common law jurisdiction. | If the question is: "Did she call you and talk about two business contracts? " then this is not hearsay. We have a witness, standing in court, saying that exactly these things happened - that she called, and that she talked about those deals. If the question is: "Did the company sign two business deals that day? " then it is hearsay. We know that she said two deals were signed, because we have a witness for that, but that doesn't mean she said the truth. She could have lied about that. We don't have a witness standing in court saying that the deals were signed. We have a witness in court saying that he heard someone say the deals were signed. In a libel case where Jim sues Joe for libel, a witness says "Joe told me that Jim is a lying thief". That's absolutely not hearsay in a libel case about Joe spreading false rumours. The exact same statement by the exact same witness would be hearsay if someone tried to convict Jim for theft. | Carl may not do this, as he would be prohibited from making this argument at trial. At trial, evidence must be relevant, meaning that it makes a fact of consequence more or less likely to be true. Because the trial is meant to determine whether Carl is or is not guilty, his promises of future philanthropy have no bearing on the matter. And even if they somehow did, Carl still would not be able to tell the jury about them because they would be blocked under Rule 403, which excludes evidence because its probative value is substantially outweighed by its risk of biasing or confusing the jury. If Carl attempts to make these statements anyway, he risks a mistrial, which means he has to start over with with a new jury. In some jurisdictions, Carl may, however, be permitted to make this argument during the sentencing phase, where the court can properly consider the societal effects of whatever punishment it imposes. At this point, though, it's obviously a little late for Carl, as it presumes he has been convicted. |
Does prohibition on titles of nobility make presumption of guilt impossible? The US Constitution prohibits the US government from granting titles of nobility (article I, section 9, clause 8). Has it ever been formally established that giving any group, X, a priority of credulity in court over any other group, Y, would amount to granting the group X a title of nobility? The presumption of innocence, at trial, was established in Coffins v US (1894). This was more than a century after the ratification of the US Constitution. Which meant that up until then there was some give-n-take allowed on this maxim. However, giving an entire group (such as women) a priority in being believed over an entire other group (such as men) would mean that the former group has a higher standing before the law, by birth-right, than the latter group. In the 100 years between the ratification of the US Constitution and "Coffins v US", were there any laws or court decisions which would give any groups de facto nobility over other groups by demanding that their accusations against some other groups must be assumed (if formally stated) true until proven false? Did the argument that this amounted to granting of titles of nobility (which was prohibited) ever come up in any court cases? | Has it ever been formally established that giving any group, X, a priority of credulity in court over any other group, Y, would amount to granting the group X a title of nobility? No. This has never been formally established. In the 100 years between the ratification of the US Constitution and "Coffins v US", were there any laws or court decisions which would give any groups de facto nobility over other groups by demanding that their accusations against some other groups must be assumed (if formally stated) true until proven false? Effectively so. For example, the doctrine of res ipsa loquitor works that way and that have been classes of people who have been historically not eligible to serve as witnesses. There are also many procedural circumstances historically (e.g. confessions of judgment) that operate in this manner. Did the argument that this amounted to granting of titles of nobility (which was prohibited) ever come up in any court cases? No.* The core litmus test under the title of nobility prohibition has been that a privilege granted by the government is hereditary and is not simply ordinary property. Without a hereditary component, the title of nobility prohibition does not apply. A lengthy analysis of this jurisprudence can be found in the answer to the Law.SE question "What exactly is a title of nobility?" While this question isn't a true duplicate of that one, the pertinent legal authorities are all discussed in the answers to that question. Obviously, it isn't possible to know every legal argument that was made orally in a trial court or legal brief for all of the United States for all time by everyone and anyone, often leaving no historical record whatsoever. There are no recorded appellate court opinions of which I am aware, however, that engage with this legal argument and rule upon it (which is usually what someone really means when they say "did this argument ever come up in a court case"). Post-Script This post also confounds a "presumption of guilt" with a per se rule regarding credibility determinations, but while both go to the issue of how evidence is evaluated by a tribunal, the two concepts otherwise have nothing in common, and sometimes it isn't clear which is which. For example, in many U.S. jurisdictions, a marriage certificate in existence at the time someone is born, accompanied by the passage of time under a short (often five year) statute of limitations, conclusively prevails on issues of paternity, over a DNA test that is 99.999% certain to be correct as a matter of genetics. You could interpret that as meaning that marriage clerks are always more credible than genetic scientists. But, of course, that isn't really the intent. Instead, this is effectively a substantive rule of law couched as an evidence rule. Similarly, the requirement that real property can only be conveyed in writing could be interpreted as an evidence rule, but it is more realistically viewed as a rule concerning the definition of what a transfer of real property really is that is useful to make a bright line rule. Thus, an oral statement can be a promise to transfer real property, but it doesn't really happen until there is a signed deed or other conveyance. A traffic ticket basically has a presumption of guilt in some jurisdictions, because if you fail to appear you are found guilty in absentia even without evidence, something that is not permitted as a matter of criminal procedure in the U.S. for more serious offenses for which you can be incarcerated. But, on the other hand, if you do appear, the prosecution has the burden of proving that you committed the offense alleged in the ticket. Perhaps the closest example there is to a presumption of guilt (either rebuttable or conclusive, depending upon the statute and facts) is a statutory rape law, which in theory, presumes that someone under a certain age does not have the capacity to consent to intercourse, rendering the offense rape. But, a more straightforward way of understanding those laws is that sex with a minor in the circumstances described is itself illegal without regard to any conclusive presumption of lack of consent. There are also many laws prohibiting certain people from testifying about certain matters in certain circumstances. For example, spouses may not testify against each other in court over a spouse's objection in many kinds of cases. These rights are called "privileges" and are not considered to be titles of nobility. The U.S. Code of Military Justice, intentionally allocates legal rights in these quasi-criminal proceedings in a manner that treats people with different military ranks unequally. Officers have different legal rights than enlisted soldiers, for example. But, since military offices are not hereditary, these rights are not titles of nobility. | That depends what the issue is. On constitutional issues, and on issues of federal law (which do come up in state cases) , they are binding precedent, at least in that circuit for an appeals court opinion, and in the whole US for a Supreme court opinion. District court opinions are not generally binding unless upheld on appeal. On matters of state law, the state's own highest court is the final word, but a federal opinion could be at least as persuasive as one from a different state. to the best of my understanding one does not use the term "estoppel" to describe the effect of a previous judgement by a different court. If it is in the same case and not on appeal, the term is Res judicata ("A thing (already) judged"). If it is a general matter of adhering to clear precedent, the term Stare decisis (“to stand by things decided.” ) would be used. | Your premise that "the law did not exist previously" is, from the perspective of how courts work, mistaken. The law always existed, it's just that some people (maybe even judges) mistakenly thought the law didn't exist (actually, "meant something else"). Many people have wrong ideas about what the law says, but ignorance of misunderstanding of the law is no excuse. Even having an understandable wrong belief is no excuse. There is an area in which ignorance of the law is excused. Violation of a person's civil rights under color of law is a civil wrong for which the officer can be sued. See Hope v. Pelzer, 536 U.S. 730 and citations therein: Respondents may nevertheless be shielded from liability for their constitutionally impermissible conduct if their actions did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Thus an officer may not use a qualified immunity defense if the court finds that an action is a civil rights violation and this "clarification" of the law is new. | This article may be helpful. The development of a distinct, lower standard of proof for civil cases comes after the US came into existence, thus the expressions were developed independently, after the doctrine itself started to develop. Various expressions are used, often with different implications that could lead to fixing a specific expression to a definite doctrine, for instance "greater weight of the evidence", "more likely than not" as well as the contender expressions. Earliest expressions of the principle in question include Edward Wynne Eunomus (1768) Wherever a verdict is given, the Plaintiff at least must give evidence to maintain his Declaration: where evidence is produced on both sides, the verdict is given for the Plaintiff or Defendant, according to the superior weight of evidence. Richards Wooddeson's 1777 formulation is In causes concerning civil rights and property, that side must prevail, in favor of which probability preponderates: but the (a) humanity of our law never esteems the turn of the balance sufficient to convict a man of any, especially a capital, crime. For it requires a very strong and irrefragable presumption of guilt to justify the infliction of the severer human punishments In Delaware (1801) in the case State v. Crocker, 2 Del. Cas. 150, the doctrine is "named", preponderance of evidence: In civil cases a preponderance of evidence is sufficient for you to convict; in criminal, you should have proof You can find "balance of probabilities" in a UK case Head v. Head (1823). The origin of the construction "balance of probabilities" is philosophy and theology, whereas "preponderance of evidence" is a more-distinctly legal expression. Since the underlying ideas were developed separately in the US and England, it is not surprising that different expressions were attached to the doctrine. | Law The origin of the phrase is from the Supreme Court of the United States in the case Schenck v. United States, 249 U.S. 47 (1919). It specifically rules on the limitation of freedom of speech (first amendment): The original ruling is this: The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. As pointed out by @phoog, this does not saying anything about the lawfullness of shouting "fire", it says that if your speech creates a clear and present danger, the first amendment will not protect you, even if the danger does not result in actual harm. Commentary If these instances are correct then it would seem clear that Freedom of Speech is being honored as it's the result of speech, not the speech itself, that could be an offense. You seem to think that it should be illegal, but only if it results in a panic that endangers people. If people ignore you, you think it should be protected by your first amendment rights. That's not how the law works. The law tries, among other things. To establish norms for human behaviour. For example, you will be punished for driving an automobile while intoxicated, even of this does not result in you running over somebody. In the words of the supreme court: If your actions "are of such a nature as to create a clear and present danger", the congress has the right to prevent you from doing so, despite the first amendment. | 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. | Strictly speaking, that principle isn't even true everywhere in the US. The maxim "nulla poena sine lege" (i.e. "no punishment without a prior penal statute") was historically applicable to civil law systems, such as are found in continental Europe. In common-law systems, there was never a tradition in which a crime wasn't a crime unless it violated a penal law, because crimes themselves were traditionally defined by court precedent instead of by statute. In US federal court, the only allowable common-law offense is contempt of court. This is due to a court decision (United States v. Hudson), in which the Supreme Court ruled that federal courts do not have the constitutional authority to hear a case in which someone is accused of committing a common-law crime. Even so, and even though there is a federal contempt statute, the Supreme Court has ruled that contempt is an inherent power of any court, and statutes around it only regulate the power (but the power would be there even without a statute). At the state level, some states have explicitly passed laws saying something is not a crime if it doesn't violate the penal code (although this doesn't necessarily apply to contempt); see section 6 of the California Penal Code for an example. In other states, like Florida, common-law crimes still exist; Florida has a statute saying that any common-law offense is still a crime unless a statute has explicitly covered that same subject matter (section 775.01), and specifies a generic penalty for anything which is an offense at common law and not addressed by any Florida penal statute (section 775.02). While this is sort of statutory (as it's a statute giving the penal provision), it's also basically not (as no statute has to say "X is illegal," because it's enough that English common law makes X illegal). | Congress can't override substantive rules of constitutional law Marbury v. Madison is a binding interpretation of what the U.S. Constitution permits or denies, and in substance, this law seeks to change that interpretation of the scope of the judicial power, so that interpretation may not be overruled except via a Constitutional amendment. Neither the Supreme Court nor any lower federal court, under their appellate jurisdiction, will declare unconstitutional or otherwise adjudicate unconstitutional any law passed by Congress; neither the Supreme Court nor any lower federal court will hear or otherwise engage in cases or controversies in which one or both parties put into discussion the constitutionality of a law passed by Congress, or ask for a law or a statue passed by Congress to be declared unconstitutional. The language in italics is jurisdiction stripping language, which I discuss below, and which is also discussed in another answer. But, the language in bold is enunciating a substantive rule of law regarding how the judicial branch may resolve a case that is otherwise properly before it. And, Congress does not have the power to change that to make the U.S. Constitution a dead letter under its Article III jurisdiction regulation powers. The language in bold language is a direct attempt to overrule a binding interpretation of the U.S. Constitution and that is beyond the authority of Congress to do, so the statute would be unconstitutional, at least, in part. Jurisdiction stripping Yes, Congress can regulate the jurisdiction of the federal courts pursuant to Article III, Section 2 which states: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under the Regulations as the Congress shall make. But, there are parts of Article III that apply in addition to the power of Congress to create "Exceptions" the appellate jurisdiction of the U.S. Supreme Court, and the power to create and modify the "inferior courts" that exist. The first sentence of Article III, Section 1 of the U.S. Constitution states: 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. This is crucial, and interacts with the Exceptions power. The default provision is that all judicial power as defined in Article III, Section 2 is vested in the "supreme Court" unless and until that power is instead vested in an "inferior Court" established under Article III that Congress creates by law. Therefore, Congress does not have the power to deny every court (or even every federal court) both original and appellate jurisdiction over any constitutionally justiciable claim arising under Article III, even if the claim is not within the express original jurisdiction of SCOTUS. If they deny every inferior Article III federal court jurisdiction over something within the constitutionally defined scope of the judicial power, then it reverts to the original jurisdiction of the U.S. Supreme Court even though it is not expressly made a part of the U.S. Supreme Court's original jurisdiction. The judicial power of the federal courts collectively is defined in Article III, Section 2 of the U.S. Constitution and extends to all cases arising under the U.S. Constitution which would include a claim to have a provision of federal or state law declared unconstitutional as in violation of the constitution. It says: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority; . . . (This analysis is attributed to U.S. Supreme Court Justice Joseph Story.) Now, this is not to say that Congress couldn't do something to make it harder procedurally to have statutes declared unconstitutional. For example, there would be a much harder claim of unconstitutionality if Congress vested original jurisdiction in all such cases in the United States in the U.S. District Court for the District of Wyoming, and then only assigned one judge to that district, and denied the U.S. Courts of Appeal or the U.S. Supreme Court, appellate jurisdiction over those decisions. At some point, however, even this lesser restriction, rather than elimination of a judicial power would still be subject to challenge under the due process protections of the 5th Amendment. Writ jurisdiction Notably, Marbury v. Madison was a case brought in the original jurisdiction of the U.S. Supreme Court under a writ of mandamus, under the All Writs Act, and not in connection with its appellate jurisdiction. So, Congress would also have to repeal or amend the "All Writs Act" to pull off the intent of the proposed statute, because the U.S. Supreme Court's original jurisdiction extends by statute to writs that are not appellate in nature even though this power is very rarely exercised. A writ is a court order directed at a government official directing that government official to do something, or to refrain from doing something. But, there are many ways to back door a seemingly private cause of action, particularly one related to constitutionality, into a writ. And, if a court has jurisdiction over a writ, it has jurisdiction to entertain requests by litigants to have such writs issued. Congress can't remove a state court forum It is worth noting that every single state court from traffic court on up has concurrent jurisdiction with the federal courts to declare that a statute is unconstitutional, and that state courts frequently do declare state statutes to be unconstitutional. Congressional jurisdiction to regulate jurisdiction is largely limited to regulation of the jurisdiction of the federal courts. It can put a federal question (e.g. copyright enforcement or disputes with the IRS) in the exclusive jurisdiction of the federal courts, but there are no cases in which Congress has been permitted to place a federal law in the exclusive jurisdiction of the federal courts while also denying any federal court jurisdiction over claims arising under that law. Otherwise, state court jurisdiction isn't regulated by Congress. And, the Constitution specifically requires all federal, state and local officials to swear to uphold the U.S. Constitution which arguably provides an independent basis for state court jurisdiction over constitutionality claims arising under the U.S. Constitution. This is a really important point. For example, suppose that someone who lives in the same state as you do sues you entirely under state law in a state court, and that state's courts require you to bring any claim you have against that person in state court over which that state court has jurisdiction as a counterclaim or you forfeit that claim forever. If you have federal claims against the person who sued you in state court, and your claims are not one of the handful of issues (e.g. copyright enforcement) that are in the exclusive jurisdiction of the federal courts, you must enforce your federal claims against that person as counterclaims in that state court case, or you will lose them forever. For example, suppose that your employer sues you in state court for conversion (i.e. stealing company property) and you have a right to sue the employer for not paying you the right amount for your overtime work under federal law. Then, you must bring your federal overtime claims in state court as counterclaims to the conversion action, rather than in federal court. Similarly, even though state criminal charges are always brought in state courts, a criminal defendant in a state court criminal case, can raised arguments arising under the U.S. Constitution including a determination that a state criminal law is unconstitutional, in state court as a defense, even though the only federal court recourse a criminal defendant has is through an appeal to the U.S. Supreme Court or a post-conviction writ of habeas corpus brought in federal district court after all state direct appellate relief is exhausted, after petitioning to the U.S. Supreme Court, and after all state post-conviction relief (including petitioning the final state order to the U.S. Supreme Court) is exhausted. In practice, this means, criminal defendants have no meaningful access to the federal courts other than two petitions for certiorari to the U.S. Supreme Court which are discretionary, until they have been incarcerated wrongfully for five or ten years. But, federal defenses can and routinely are raised in the state court trial (and indeed, federal defenses that could be raised in a state trial court may not be raised in a habeas corpus petition in federal court unless they were first raised in or before the original state court trial). N.B.: Federal claims in the exclusive original jurisdiction of state courts The extremes to which jurisdiction stripping is allowed are explored in the handful of claims arising under federal law that are expressly not within the scope of the jurisdiction of any federal trial court or intermediate appellate court, or within the express non-appellate jurisdiction of the U.S. Supreme Court. The most notable of these are affirmative private individual civil lawsuits against offenders under the federal robocall and junk fax law (a.k.a. the Telephone Consumer Protection Act a.k.a. the TCPA a.k.a. 47 U.S.C. § 227), which do not not require a writ, which may only be brought in state court, subject to an ultimate appeal to the U.S. Supreme Court. But, the federal courts have exclusively jurisdiction over litigation many kinds of claims other than private civil actions arising under the TCPA. This law is much less constitutionally concerning than the one proposed in the question, however, because while Congress can't repeal the U.S. Constitution, it doesn't have to pass a law giving private individuals a private cause of action when they receive robocalls or junk faxes at all. It could pass a law that was enforceable by the FCC alone, for example, and in the case of the TCPA, there are persons, including the FCC and regulated persons who want to challenge a regulation issued by the FCC, who are entitled to utilize the federal courts to enforce the TCPA or to dispute it. For example, there is no private cause of action to enforce most federal criminal laws (as such, not just involving the same harm) with a civil lawsuit by the victim against the criminal, in either federal court or state court, but that is not unconstitutional. This is because federal criminal laws can be enforced by government prosecutors and defended against by private individuals, in Article III federal courts. Also, even private causes of action under the TCPA are subject to ultimate U.S. Supreme Court appellate review, and the U.S. Supreme Court is an Article III federal court. |
Is a developer liable for illicit use of an app? A software developer receives a Content Infringement complaint against his app, which facilitates video downloads from YouTube. The software developer believes he is not responsible for the act of someone who downloads videos without permission of the IP owner. My Question is: How can the developer get rid of such IP complaints, by specifying any statements of disclaiming? This answer does not help me. | Liability for copyright infringement can arise directly or vicariously. A person can be direct liable if he personally makes an unauthorized copy of someone else's protected work. A third party can also be held liable for that infringement if he has knowledge of the infringing activity and makes a material contribution to the infringing activity. If an app is basically only good for downloading YouTube videos, the vast majority of which are protected, a court will likely infer that the app was made for the purpose of facilitating copyright violations. That was basically what happened with Grokster, and the U.S. Supreme Court agreed that Grokster was liable for all the copyright infringement happening through its app: Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). The best way for the developer to get rid of the IP complaints is probably to disable the app. | It's really your client that should be asking these questions. Writing the app is perfectly legal. So you can enter a contract with that client to write the app and deliver it to them, ready to be put on the Google Play store or the App Store (entering a contract needs to be done carefully, obviously). I'd make 100 million percent sure that the contract states clearly that you have zero responsibility if the app is rejected or removed for non-technical reasons, and that the legality of actually selling and running the app is also not your responsibility. The reason is that I very much suspect that running the app might be illegal, and that the chances of getting it permanently on one of the stores are rather slim. And solving those problems is outside of what a software developer can competently do. | It's possibe to cover auto-starting apps and cookies under the definition. I'm not convinced and could argue against that but I don't think it matters. The tiny extract you linked isn't a law. It is a definition. It does not say "these things are illegal". For that, we have to zoom out a little. Section 43 includes the offense in question (emphasis mine): If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network... introduces or causes to be introduced any computer contaminant or computer virus... So back to the question. Could Steam be considered a virus? Maybe. Is it illegal? No. On the other hand, if I were to gain access to your computer and download Steam, yes that could be an example of breaking that law. | They'd have a big hurdle to clear. According to 17 U.S. Code § 512(c): (d)Information Location Tools.—A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link, if the service provider— (1) (A) does not have actual knowledge that the material or activity is infringing; (B) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (C) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material; (2) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and (3) upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity, except that, for purposes of this paragraph, the information described in subsection (c)(3)(A)(iii) shall be identification of the reference or link, to material or activity claimed to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link. So long as these conditions are met, Google is immune. So, what is ESPN going to argue? Are they going to argue that Google had actual knowledge of infringement? Are they going to argue that Google received a financial benefit directly attributable to the streaming? Are they going to argue that they sent a DMCA notice to Google and the links were not then expeditiously removed? Or are they going to argue something else entirely? | This is similar to giving a hammer and needing to state to one is not responsible if the taker uses it to hit their head with. I believe this is the wrong analogy to use here. It would be more like giving somebody a hammer and saying you are not responsible if the head flies off and injures you. There is a concept in "things" you obtain called "fitness for purpose", so if you download open-source software like a registry cleaner, and it deletes your entire registry, the "WTFPL" doesn't absolve the authors of liability. Explicitly denying any kind of "fitness for purpose" or warranty helps shield the author from legal claims (even if they are meritless) because it kills it out of the gate. It's possible that the WTFPL license granter/author could still be sued and have to defend themselves in court because it isn't explicitly stated that there is no warranty or fitness for purpose. Open source does not mean that it's "use at your own risk", which is why there are so many types of licenses and disclaimers. From comments: Thank you for this very clear answer. Does the fact that someone willingly retrieves free code with no control of the provider changes anything? (vs a software vendor which provides code suitable for A and B, in exchange for money) I think closer to your hammer analogy where I would sue the producer of hammer XXX, a hammer I found on the street or which was given to me without involvement of vendor XXX. No, this doesn't change anything. The software vendor here is the person who writes the code, even if they don't charge for it. They are the ones who license the software and they are the ones who take some level of responsibility for it. In this case, the software author is the "hammer producer" that you would sue... If you buy "Registry Cleaner XL" from Best Buy and it bricks your computer, you don't sue Best Buy, you sue the person who authored the software. In pretty much every case, the author is the responsible party, not the vendor, and it is the author who licenses it, not the vendor (the vendor just acts as an intermediary). | This is not "unfair competition". You are allowed to ask people for their views and take them into account in designing software, even with the specific intent that it compete successfully with existing software. In the US you have a protected right to do that under the First Amendment. If the chat site where you asked is run by the developer or owners of the app, they can ask you to avoid such question there, and even ban you from the site if they choose, because it is their site. But if you went onto a public site (like Stack Exchange, say, or Quora) the app owners would have no right to insist that you not ask for such opinions. The degree to which the design or interface of an app or other software may be protected against imitation is a complex one, and depends on the country involved. But widely known and used features such as a 'like' button, message threading, or a comment section are almost surely not protectable. Listening to users of existing simile products and getting their ideas on what works well and what is lacking is generally a good idea, and is in no way "unfair". | No, it's still copyright infringement. When you modify a copyrighted work in any way, you generate a derivative work which you are not allowed to distribute without the permission of the original copyright holder. | 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. |
What happens if I alter the text on a web page before clicking "agree"? Modern browsers offer the ability to edit the HTML source of a page while viewing it; for instance, on Firefox, with right click - inspect element - right click on the line highlighted in blue - edit as HTML, I can modify any text appearing in any web page. What happens if I alter the text of a click-through license in this way before clicking "OK"? One could argue that this is equivalent to striking out a clause from a contract before signing it; however, the other party typically has no way to figure out that it has happened, because it is a modification that I make only on my web browser, and the text of the page is usually not sent back to the server together with the button click. What would be the legal validity of this behaviour? Suppose, for instance, that I get a witness to confirm that I clicked "I agree" on a modified page and not on the original one. You may assume that all parties are in the US, for simplicity. | What would be the legal validity of this behaviour? Your changes to the browser source of the website contract or license of Terms of Service (TOS) - essentially a "click-wrap" license - before agreeing to it means nothing in a legal sense, other than to void the contract. The other party (the website) can't possibly agree to those contract changes without them being submitted as contractual changes and agreeing to them, if they did agree to them. That's basic contract law. That website TOS probably has a clause that says that if you don't agree to the TOS in full, as written, without modifications, you can't use the website. And the TOS may also say that they reserve the right to prevent you from using the site by closing your account or even blocking your access. Your "witness" to the contract changes is meaningless, as your witness is not a party to the contract. And any witness to the fact that you have changed the terms of the TOS before agreeing to it would work against you in a civil proceeding as proof of your attempt at modifying the contract. | Registering the text string Starbucks" should prevent anyone else using it in any font for related products. However, I do not think it is useful against "Startducks" that is printed in the standard logo in Starbucks green. With the stylized version, you cover things that misleadingly look like what you see on a Starbucks building. | A web site that is serious on protecting some content behind a paywall will put the protected content, or a version of the page with both protected and unprotected content, on separate page or pages, so arranged that a user will not be able to follow the link until that user has signed in and been accepted as an authorized user. A site that merely uses CSS to hide "protected" content is not really protecting it. CSS is designed to be modified by the ultimate user -- that is part of its function. If the site chooses to send you content, you are entitled to read it. Even if some of the content has a CSS tag attached which suppresses or obscures the display of that content, they know perfectly well that any user can supersede this with local CSS, and so I don't see how they have any legal claim, nor any way of knowing if you have accessed the "hidden" content or not. If you attempt to bypass or hack a login screen, that might be circumvention under the US DMCA, or "Unauthorized computer access" under any of several laws. | 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. | Using software generally does not entail any legal requirement to acknowledge the use of that software, and would only arise as a licensing condition. Google services, including Translate, are subject to certain terms of use especial the part about what they expect of you. They do not impose any requirement regarding acknowledgment, therefore they cannot later demand any royalties. If a translation program imposes any demands on your usage of the program, that has to be part of the original agreement whereby you were allowed to use the software at all. | What if somebody copies your signature on a contract that says you can't sue them? what can the judge do to stop this paradox? I will assume that by "copying the signature" you mean "without the person's consent". In that case, the contract is void and consequently unenforceable. However, it would need to be proved that the person whose signature was unlawfully used did not intend to be a party to that contract. For a contract to be valid, the parties must have knowingly and willfully entered it, whether it is via a document or through their subsequent conduct/actions. False pretenses, identity theft, and akin offenses preclude these two essential requirements of any contract. Moreover, if the person who forged the signature is a party to the contract, then that unlawful act clearly contradicts the prerequisite "covenant of good faith and fair dealing" that is presumed in contracts. The remedies or actionability available to a person whose signature has been forged depend on the laws of each jurisdiction. | 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. | That would likely be treated as a preamble. These have been held in some jurisdictions to not have any weight. For example, see Sherbrooke Community Centre v. Service Employees International Union, 2002 SKQB 101: The preamble to a contract is nothing more than an introduction to that about which the parties have actually agreed. It puts the agreement into context. It describes the goals of the agreement. It speaks to what went before and the spirit in which agreement was achieved. On the other hand, it does not contain any promises. It does not contain any restrictions or commitments. It could be removed entirely without in any way altering that which was agreed to and set out in specific terms. [...] this clause in the preamble does not create or eliminate rights or obligations Granted, the introductory phrase in your hypothetical clause is not literally a preamble, but it has the same characteristics cited in the above decision: "it describes the goals", "it does not contain any promises", "it could be removed entirely without in any way altering that which was agreed to". If you wanted the clause to only take effect if toilets overflowed, use an alternative wording, like: Company B may not resell any products purchased from Company A at a discounted price in a manner that causes toilets to overflow. |
Is Monopoly protected by copyright & trademark? Would a person need to licence the copyright in order to make and distribute a Monopoly video game? | Monopoly is a trademark of Parker Brothers. You would need to get permission to use that trademark. The artwork of the game is copyrighted and cannot be duplicated without violating that copyright. In general, the labels meaning phrases like "Go to Jail" and "New York Avenue" are probably copyrighted and some court decisions have decided that labels are a copyrightable element. However, there is some gray area. The game mechanics are not copyrightable and can be duplicated. What this means is that if you clone the game and use new labels (like new property names and card titles) then you are probably fine. You would have to make a novel board design. If you clone the game, but use the game's labels, then you could potentially lose in court. Of course, remember that corporations will sometimes sue just to intimidate people, even if they have a losing case. Just because your clone is non-infringing doesn't mean they won't sue you. It costs them money to sue people, so if your clone is obscure or not used by many people it could fly under the radar and be ignored by the company. If your clone was a success and became widely used, that would significantly increase the chance you could get sued. In most cases a company will threaten infringers before they sue them, because it is a lot cheaper to threaten somebody than sue them. Therefore, you could make your clone and just plan on discontinuing it if they threaten you. Of course, there is a small risk they would sue you anyway. If you made no money then you are probably safe because it would be a lot harder for them to argue that you commercially damaged them if you made no money. | Yes, assuming the material was given the standard license. You would be creating a derivative work, and only the copyright owner has the right to authorize creation of a derivative work. See the copyright FAQ for general information. The owner can file a DMCA takedown notice with YouTube and they will by policy notify you of the infringement claim and unless you file a counter-notice (you legally couldn't given the facts you're asserting), they will take it down. The owner can also sue you. | united-states The license won't let you sell the .stl file. Probably you have created a derivative work, which means you can't sell it without a copyright license (and the CC-A-NC won't do). If it were licensed under CC-A you could sell it without problems (you'd have to give attribution, of course). You could also sell it under the CC-A-SA, but once you do you have no control over the result -- anyone you sold it to could give it to someone else under the terms of the license. This could work, though, if it were (say) a commission and you only expected to sell one copy. I don't know what the situation would be with the physical objects printed under any of these licenses. | License to use does not mean license to create derivative works These are different rights under copyright. If you want to make a derivative work, which your animations are, you must have a license to do so. | To answer the question in your title: Yes, software licenses are copyrighted. They are written works that involve (significant, expert) creative effort to create. The best solution would be for Grammarly to hire a lawyer and say "we want a new EULA. We think this one covers a number of points our current one doesn't". Most legal documents will be copyright for the same reason (there may be a few that are so stereotypical that there is essentially no creative effort in putting them together). | Yes So far so good. This is a copyright violation but it is probably fair use - certainly there is case law permitting a copy of a backup digital asset to be made so I don’t see why a similar argument wouldn’t work with backing up a physical book. Clear copyright violation. Alice can rent out the original under the first sale doctrine but the ‘backup’ is not so protected. It’s not fair use because it’s use is commercial, the work is a type of work the author expects to profit from, the entire work has been copied and the use is deleterious to the market i.e. the renters are less likely to buy an original - it falls foul of all four factors of the fair use test. | 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 can make a derivative work if: the original is not under copyright, you are the copyright owner, you hold a licence from the copyright owner that says you can, or your usage is fair use or fair dealing as applicable. For your proposal, the image is copyright, you don’t own it, you don’t have a licence and what you propose is neither fair use nor fair dealing. You can’t do it and you can be sued if you do. |
Landlord seizing deposit and also billing us back My 2 roommates and I (all students) were renting an apartment in a community in Dallas, Texas. Among many problems with the landlord, when we were leaving, we spent a full week fully cleaning the apartment. While we were expecting our security deposits back, they seized the deposit ($200), and not only that, surprisingly they also billed us $2000 back with fake reasons just to rob money from us, for things like a single seed in a corner, a small seed in the freezer, the apartment smells of food, etc. We didn't even cook any food for the last 2 months! They didn't do the pest control properly, and we suffered from cockroaches (and they are charging us for that!!). They also charged us for things that landlords must do anyways, like carpet washing. One thought is that they are charging us for maintenance costs (our AC was broken and they replaced it). How can we dispute this? They are threatening to damage our credit report if we don't pay (a good trick to scare students). But is it that easy for someone to just report to the credit company and damage other people's score? They already took our deposit, and we don't believe we need to pay for fake expenses AT ALL and STRONGLY stand on our position. Shall we file a lawsuit? | 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. | The landlady is trying it on. The purpose of a deposit is to protect the landlord from being left out of pocket by: damage to the property rent arrears Reasonable wear and tear does not constitute damage. It seems unlikely that the stiff tap is as a result of damage. The hob is not so clear cut: the landlady could argue that it was damaged, albeit by accident, and the cost of repair taken from your deposit. If she insists that the only remedy is to replace the hob, she should make an appropriate deduction to reflect the fact that it is several years old and will be replaced by one that is new (thereby gaining her some value). It would be reasonable for you to expect to see the written report from the gas inspector who has condemned the whole hob in that case. But I find it hard to believe that: the plastic knob cannot be replaced doing so would make the hob unsafe, if the knob can be removed for cleaning it's my understanding that if the hob is indeed broken, I only have to pay what it was worth at the moment before it was broken. Your liability is to return her to the position she would have been in had the damage not occurred. If that means replacing a removable plastic part instead of the whole hob, that would be a reasonable remedy. | There's a lot of variables here, as many leases are built in different ways within the leeway allowed by law. You will want to contact a local lawyer to see how you can mitigate the damage to yourself, and contact your landlord and see if you can re-negotiate the lease. If the landlord doesn't want to re-negotiate, you're probably facing eviction if you can't come up with the full rent by yourself; many leases don't allow non-related adults to live on the premises if they're not on the lease (this can also result in eviction). However, your roommate will also get an eviction record and be responsible for any damages if the lease survives long enough to cause an eviction. Actually having a random person move in from Craigslist might also cause your roommate to suffer additional liability if they're not allowed to sublet their lease agreement, which many leases do not allow (landlords like knowing who's living on their properties). Having them move in might cause both you and your roommate to be evicted. You probably don't have any rights to sue your roommate until actual damages occur (in other words, after you've already been evicted). You should speak with your landlord as soon as possible to get a new lease. An eviction record will cause problems for your roommate as well, so you might urge them to consider staying long enough to get things sorted out legally. When you ask your landlord, simply ask something like, "My roommate wants to move out. What are my options?" They will tell you what they are willing to accept. | Once your rental contract starts, your landlord must give you access to the rented flat. If he doesn't do so he is in breach of contract. You could sue him, but that would be a bad start for a longer term contractual agreement. It might be less time and effort to look for a new flat. And do you really want to be in a long term contract with someone who breaches contract right from the start based on arbitrary reasons? In any case, you can and you should cut the rent proportionally for every day without access to the flat. Your landlord has by no means a right to check your luggage. Even if there would be such a regulation in the contract, it would be void, because of invasion of privacy. It looks to me that you are in for some bad times with such a landlord. I can assure you that most landlords are not like this. Another reason to probably look for a new flat. Legally you are right, but what does that help you if your landlord is trouble? | If your friend thinks he can live there for free due to his unique interpretation of contract law, he is mistaken. He'll get evicted if he doesn't pay rent, and likely end up with a judgement against him for unpaid rent. At its core, a rental agreement ensures that in exchange for paying rent, he may occupy the property. You can argue up and down about payment methods, but the fact remains he must pay rent in order to live there. Your friend MAY have an argument that he could move out and not be subject to penalty for breaking the lease because the payment terms changed. He'd have to give notice and would still owe for the time he occupied the property. There's just no way he can live there for free. He may find this out the hard way. | With that much potentially at stake, you might want to discuss this with a lawyer. many lawyers will do an initial consultation for free or a low charge. However, you could simply write a letter saying that you do not agree that you owe the money and that you dispute the charge. You may give any reasons why you think you are not liable. It might be a good idea to add that there may be other reasons as well, so you do not foreclose any possible legal arguments that you may learn of later. Send the letter by certified mail, return receipt, and keep a copy with a note of the date that you sent it. It is not a bad idea to get the certified mail form first and include the certified item number as part of the inside address in the letter. Keep the copy, and keep the receipt with it when you get it. It is not a bad idea to send a copy by email, noting that it is a copy of a certified letter. This will put a record of the date and time it was sent in the email service provider's records. Normally it is up to the person who claims another owes money to file suit. If your former landlord takes no action, you need do nothing. However it is a good idea to check your credit reports and see if this was reported as a bad debt. if it is, you can file a statement of dispute with the credit bureaus. If there is any further correspondence on the matter, be sure it is in writing, and that you keep a copy. If you are called on the telephone about it, send a prompt followup letter summarizing the conversation, and particularly any statements made by the other party, and any agreements reached. Keep a copy, and send a copy by email as well as by postal mail. It should probably start something like "In our telephone conversation on {date} about {topic} you stated ..." If you are sued you will need to consider whether to retain a lawyer to represent you. | You are probably entitled to the $100 (more or less) They breached the contract and you are entitled to damages (what it cost you) for dealing with their breach if they are unable or unwilling to remedy their breach. This would include the reasonable cost of your disposing of the unwanted mattress plus or minus any difference in the price from you sourcing the equivalent mattress elsewhere (subject to any legitimate terms of the contract that allow them to cancel the contract if they can’t supply). Of course, it’s not worth suing over such a trivial amount but this is the sort of thing the consumer protection regulator in your jurisdiction would be interested in. | If I don't attend the hearing, can I get evicted? Yes. Never ignore a court hearing date. The Tribunal could otherwise impose an outcome without hearing your side of the story. If you ultimately paid the rent and the late fees, and the Tribunal didn't know that, you could be unjustly evicted if you don't present your side of the story. It could simply be a case, for example, where the landlord confused your non-payment with someone else's. But after the Tribunal rules, fixing that mistake is much more difficult than fixing it at a hearing. It could be that making two late payments that are cured later is still grounds for eviction under the lease, although I very much doubt it. In that case, it still pays to show up to make sure that the Tribunal has all of the facts favorable to you before it makes its decision. |
Can you host a party at a public polling place during voting hours? We are a group on a college campus im Ohio. we are completely nonpartisan and are looking to host a “party at the polls” on an off campus polling location where our students vote. It is at an apartment complex and we were denied permission by them. Are polling places considered public places during voting hours or is there any loop hole to get around this? | They are not considered public places in the way you mean, and in fact, the Ohio revised code specifically prohibits the kind of behavior you're referencing. Bottom line, any kind of party at the polling place itself is out of the question due to the possibility of limiting access or intimidating potential voters. | Yes, this is legal, unless Richardson, TX has a specific local law making it illegal. In the US, discrimination is legal, unless it discriminates against one or more specific enumerated classes. Under federal law, and as far as I am aware, Texas law, students are NOT a protected class. As such discrimination against them is legal, unless Richardson, TX or its incorporating county have a specific law or regulation prohibiting it. Incidentally, age is generally not a protected class, and when it is a protected class, it is generally only illegal to discriminate against people above a specified age, not below. Note that discrimination happens all the time, over a variety of factors, that many people don't even consider discrimination. For example, many colleges and universities discriminate on the basis of GPAs for acceptance to various programs; this is legal. In the past, many colleges and universities discriminated against potential students on the basis of sex or race, which is now illegal. | I'm based in England, but I'm sure the principle is similar in Canada. The night club or concert venue is private property. When someone owns or rents private property one of the main things they are buying is the right to control who is present on that property, and generally they can use reasonable force to remove people who are not authorised. Security guards generally act as agents for a property owner, tenant or similar. | Before the election, can a lawsuit prevent the amendment question from being put on the ballot? No. Generally speaking, the constitutionality of an otherwise procedurally proper ballot initiative is not ruled upon until after it has passed (eliminating the need to rule unnecessarily on the constitutionality of failed initiatives). Of course, if someone tried to put it in the ballot when the existing law conditions for putting it on the ballot were not met (e.g. because a deadline for doing so wasn't met) that could be challenged in court by a party with standing to do so. If passed into the constitution, would a court still have the ability to rule the restrictions unconstitutional? Probably not. The constitution as newly adopted doesn't sound like it would forbid doing that. This seems to be the whole point of the constitutional amendment in the first place and it the amendment to the constition is approved, that requirement is gone. | Yes, you can register in Connecticut. Connecticut previously limited voting eligibility to "permanent" residents, but it later changed that to limit it to people with at least year's worth of residency, and then six months' of residency. Under current law, though, a voter need only be a "bona fide" resident of "some town" in Connecticut. This means you need only to have legitimately moved into the city with some actual intent to stay, even if not forever. The deadline is tomorrow, so register now. | How is banning such events constitutional with the freedom of assembly? The rights created by the First Amendment are not absolute. They are subject to reasonable restrictions as to time, place and manner, especially if those restrictions are content neutral. Restrictions narrowly tailored to protect against genuine threats public health and safety fall within the exception of the First Amendment even if they are not strictly content neutral, that is commonly described by the rubric that you don't have a right to falsely cry "fire" in a crowded theater (causing a riot that could harm people). For example, suppose that a rope bridge over a deep gorge can only support the weight of ten people, and three dozen people want to hold a protest there. A regulation that prohibited more than ten people from engaging in the protest would be constitutional. Even then, however, a lack of content neutrality (e.g., restricting punishment to false statements likely to incite a riot) can't also be a lack of ideological neutrality (e.g. restricting punishment to anti-Catholic but not anti-Jewish statements likely to incite a riot). If it were a political protest/gathering would this change? Generally speaking political protest/gatherings are still subject to content neutral regulations of time, place or manner, and those narrowly tailored to protect genuine threats public health and safety. So, for example, if there is a genuine COVID-19 risk that public health officials are trying to address, and the regulation of gatherings is not viewpoint or content based, it would be upheld as constitutional in the face of a First Amendment freedom of assembly limitation. But, if the regulation applied, for example, only to Republican and not Democratic party protests or gatherings, which is a viewpoint or content based restriction, it would not survive a First Amendment freedom of assembly challenge. | You don't vote directly for candidates. You vote for an Elector in the Electoral College. If the candidate that the Elector has pledged that they will vote for dies before the Elector meets at the Electoral College, they can vote any candidate of their choice. This happened in 1912, when the Vice-Presidential candidate James Sherman died one week before the election. | No In accordance with Article II Clause 3, once the votes are counted (and any deadlock resolved) the President has been chosen. At that point, the election is final. |
Can a landlord refuse my request for rental because of my fluency in the local language Summary I live in Czech Republic and during my search for a new flat, a landlord refused to rent me the flat because I am not fluent enough in the local language. Is this a legitimate reason for refusing to rent a flat ? Full story I have been living in Czech Republic for several years, I am a foreigner from another EU country with a right of living in Czech Republic without a visa. Currently looking for a flat, I visited a nice flat that I wanted to rent. I agreed with the real estate agent to rent it, all our discussion have been in English as my proficiency in Czech cannot allow me to fully converse with him in the local language. The real estate agent gave me his approval and before signing the contract he told me he had to ask the landlord if it was fine with him too. After a few days, the real estate agent wrote me an email stating that the flat would not be rented to me because they want to rent to people speaking Czech and found another person matching this criteria. I quote: "They prefered [the other clients] because they were czech speaking." This does sound a bit odd to me professionally, but also got me thinking if this was a legitimate reason to refuse to rent a flat to somebody. Under Czech and EU law, is it a legitimate reason to turn down a rental request because I do not speak the local language ? Nota Bene: I am just curious about the state of the law in Czech Republic and European Union regarding this matter, I will not be taking this case to court in any sort. | There is a general EU anti-discrimination directive 2000/43 which in Article 3(1)(h) which applies the standards to housing. This document analyzes Czech anti-discrimination law. If you were discriminated against on the basis of being English, that could support legal action. There is no current EU or Czech legislation that guarantees a right to operate in the language of your choice. There have been calls to create some such legislation. Such legislation would be the implementation of Article 21 of the Charter of Fundamental Rights of the EU, which says that Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. There is under Article 9 of the European Charter for Regional or Minority Languages a right to use regional or minority languages in judicial proceedings, but there is no generic "right to use your own language". There are occasional cases where governments are sued because their actions linguistically discriminate. As observed here, there was a case in Belgium where the government was sued for not subsidizing French education in non-French territories, but the court said that "Art. 14 cannot be interpreted as guaranteeing children or parents a right to obtain instruction in a language of his choice". | Unless your lease clearly denies the possibility of prorating, the emails are binding (and yes, emails count as in writing). The landlord ought to honor the conditions outlined in the emails, and it is not your fault that the manager was ignorant about his or her employer's/landlord's policies at the time the manager computed the prorated amount. Additionally, if the lease only speaks in terms of 20-day notice, then it implies that prorating may apply. It is possible that the lease contains language in the sense of when the notice becomes "effective". If so, that would require a more detailed review of the language therein, since even in that scenario you might prevail on the basis of the doctrine of contra proferentem. Here the difficult part seems to be that you are not in the US. Because the amount at issue is not high enough, the grievance/complaint would have to be filed in Small Claims court. And, as far as I know, the parties cannot be represented by a lawyer in Small Claims court. You might have to file your grievance once you are back in the US. | 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. | I don't know Canadian rental law, but as a general rule in civil cases you don't get to play Perry Mason and bring in evidence at the last minute. If you have evidence that the landlord broke the law then disclose it immediately and use it to pressure him into settling. His later lies to you are less important than the fact that he broke the law in the first place. However you can certainly testify about what he said as evidence that he has acted in bad faith. | If it's not in the lease agreement, then you did not agree to it. Even in the absence of the law prohibiting the late fee, the landlord would not be able to impose it because it is not in the lease. It is of course up to you whether you want to test it. It may be more trouble than it is worth. Then again, it's probably not worth the landlord's trouble to begin eviction proceedings over a late fee. Paying late and refusing to pay the fee would probably sour your relationship with the landlord, which is usually something you want to avoid. If you do pay late at some point, you may want to point out to the landlord the relevant provision of Massachusetts law. The matter would probably end there: either the landlord doesn't know about it, or the landlord is hoping that you don't know about it. Pointing it out in a polite manner will inform the landlord of the law and that you are acquainted with the law. Unless the landlord is quite unreasonable, that should take care of it. Whether there is any law prohibiting landlords from announcing an intention to take a prohibited action is indeed a different question. Is there any legal reason for me to bring this up and get the landlord to formally acknowledge that they will not in fact charge illegal late fees? No. You have a contract with the landlord that already says you are going to move in. He cannot modify that contract simply by sending you a letter. | What does "PROVIDED FURTHER" here mean? The term keeps two provisions separate, and hence independent of each other (unconditional). The former provision addresses landlord's initiative [to terminate the lease] whereas the latter addresses tenant's initiative. The latter pertains to early termination of lease and is not to be confused with tenant's default/non-payment. If rent is to be paid on the 1st of each month and the landlord wants the tenant to move out by August 13, the landlord needs to give a written notice at least thirty days prior to August 1 because the 1st of August is "the next rent payment date". This is regardless of tenant's timely payment of rent. Tenant's initiative to prematurely terminate the lease forfeits his security deposit regardless of having hitherto/always paid rent on time. | 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. | 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. |
How is it possible to be on the wrong end of civil forfeiture while not engaging in criminal activity? How is it possible to be on the wrong end of civil forfeiture while not engaging in criminal activity? I'd like to understand this because, tools that victimize or even put the public at risk seem antithetical to principles of the constitution. Even if one is 'squeaky clean' Eagle scout, it makes sense to understand the nature of the issue and best practices to not fall in 'the line of fire' of the war on drugs. | The answer ultimately is very jurisdiction-specific, but there are generalizations that apply to most jurisdictions. This IJ study summarizes how it is possible. The first problem is that civil forfeiture is usually handled administratively, not judicially, so unless you challenge a forfeiture, the agency that takes your property decides whether it was correct in taking your property. One impediment to a court challenge is that you may have to post a large bond of e.g. 10% of the property value. Paired with the fact that you will lose the bond plus have to pay the government's legal costs (plus your own) if you lose, it is risky to challenge a seizure. Adding in the fact that seizures are not usually huge (the IJ found average values in 10 states of between $451 to $2,048), there is a significant disincentive to challenge a seizure. For which reason, the majority of seizures are unchallenged, and the number of successful challenges is low (the latter fact reinforces the former fact). I should point out that statistics on seizure are hard to get, since law enforcement agencies are usually not required to track or report seizures. If you do challenge, state or federal law will specify a certain level of proof necessary for the seizure to be legal. In North Dakota and Massachusetts, that would be bottom-of-the-barrel "probable cause". The majority of jurisdictions require a preponderance of evidence to sustain a seizure. The owner then has the burden of proving that he is innocent. On the better end of things, New Mexico abolished civil forfeiture, and a criminal conviction is required for some or all seizures in California, Nevada, Montana, North Carolina, Minnesota, Missouri and Vermont. However, for instance, California requires that there be a criminal conviction, not that the property owner be convicted. Appendix B of the study gives a state by state summary of standards and case law. For instance, Alabama requires "reasonable satisfaction", and there is case law establishing that in that state, suspicion that the property was involved in a crime is insufficient. | If the government withholds information that is pertinent to the credibility of a witness is that cause for a mistrial? Only if the error is not harmless under the standard applicable to evaluating harmless error in criminal cases (there is a voluminous case law on that point). Basically, it means that a new trial may be held and a conviction vacated on a charge against a particular defendant if there is a reasonable possibility that the withheld evidence, when considered in light of the total picture of evidence presented at trial, might have changed the outcome on guilt or innocence. Does whether the government knowingly or unknowingly withheld this information influence whether a mistrial will be granted? Not really. Knowledge is imputed. If someone in the prosecution team including the police knows, then it is known to the entire team for Brady purposes. If no one knew that it had the information (e.g. a key exculpatory document in possession of the prosecution was misfiled in one of dozens of bankers boxes of documents that it seized in a search and no one reviewed those particular boxes knowing to look for a document like that one or attuned to its potential significance, since it wasn't supposed to be in the place where it was filed), then it hasn't been withheld in the Brady sense unless someone specifically asked for the information in question with enough specificity that it could have been located if they looked at what they already had. The knowledge that must be disclosed is what the prosecutor's office or the police the prosecutor's office is working with knows. So, if a beat cop hides exculpatory evidence from the prosecutor's office, that is a Brady violation, but if the cops do a sloppy investigation that fails to reveal exculpatory evidence that is out there to be found, it isn't a Brady violation. Likewise, if a cop in another department halfway across the state knows something that impacts the credibility of a witness and the prosecutor is totally unaware of the existence of that information as are all the cops working on the case, then that isn't a Brady violation. What If It Isn't A Brady Violation? Exculpatory evidence discovered after the trial that isn't a Brady violation not to disclose may still be grounds for a new trial based upon newly discovered evidence in a motion for post-trial relief. But, the standard to get the court to grant a new trial based upon newly discovered evidence that was not withheld in a Brady violation is much more stringent than the mere harmless error standard. Instead: With a single exception, criminal defendants in the United States seeking a new trial based on newly discovered evidence are required to establish only that the new evidence makes it more likely than not that, in a new trial, they would be acquitted. Ohio requires clear and convincing evidence rather than a mere preponderance. There's a lot of case law on what constitutes newly discovered evidence which is "new, material evidence that was unavailable at the time of the original trial[.]" If evidence was available, but not used at trial, it can't be presented in a motion for new trial based upon newly discovered evidence. Often this means that it can't be considered even if the salience of the evidence previously available is only clear later in the light of other evidence that is genuinely newly discovered, or the defense attorney's failure to use that evidence in the first trial was negligent to a level constituting legal malpractice. | Exactly the same thing that stops the same rogue lawyer from putting on a mask and robbing a bank. One is the crime of fraud and the other the crime of armed robbery but they are both crimes. People commit crimes all the time; that is why nearly 1 million people in the U.S. are in jail right now - some of them may even be in there for crimes they actually committed! Were your lawyer to commit this crime he may get caught or he may not; if he does he's going away for a long time and can never work as a lawyer again. So it's simply a matter of risk assessment; oh, and ethics | It isn't clear that the example you give is illegal police action, but let's assume that it is for the sake of this question, since it doesn't affect the analysis. If possession is not compelled, then it is voluntary. | The main rules in a civil case are the rules of evidence, the rules of civil procedure, and a set of largely unwritten rules governing issues such as the order in which matters are presented in a trial and courtroom conduct. Basically, the rules of evidence are really a subset of a larger set of written and unwritten rules about courtroom conduct the unwritten parts of which are assumed to be known by people using them. Robert's Rules of Order do not apply to courtroom proceedings. The judge also has the "direct contempt" power to summarily punish disrespectful conduct in the courtroom without a trial, with fines or incarceration, even if it wouldn't be a crime outside the courtroom. But what if a party to the proceedings who does not "have the floor" wishes to do things like the following: Obtain a restatement (perhaps because it was unintelligible, or perhaps as a ploy for emphasis) of something uttered by another. If you are a party asking a question (or more likely an attorney for a party asking a question on behalf of a party) it is not improper to say, "I'm sorry, I couldn't hear you." It is also not generally improper for a non-questioning party to interject and state that they can't hear a witness to a judge. Obtain clarification of a statement. This can be done by a party only when it is the party's turn to cross-examine or redirect as the case may be. A judge can ask for clarification, but a party cannot do so when it is not their turn. Determine or clarify the purpose of an ongoing statement or line of questioning Generally the party not asking a question objects and the court asks the party asking the question to clarify the reason. Sometimes, in a jury trial, the party asked to clarify will say "may we approach the bench" and a private discussion will be held between counsel for both sides and the judge regarding an ongoing issue. Determine whether the judge will allow something later in the proceedings. (E.g., "At some point I hope to speak to point X. May I do that now? Or will I be afforded that opportunity at some later point before the conclusion of this hearing?") Lawyers are expected to know this for the most part without having to ask. Also, usually before the court starts to take evidence, and at breaks, the judge will ask "are there any preliminary matters that need to be addressed?" or "are there any procedural matters that need to be addressed?" and questions such as this can be raised at that time. | Keep in mind that a warrant doesn't require proof that you stole the property or have the property. Instead, the warrant is just authorization to look for that proof. The standard for securing a warrant is probable cause, which is a much lower bar to clear than people seem to think. It just requires that given everything the officer knows, there's a "substantial probability" that a piece of evidence will be in a given place at a given time. If the officer swore to a judge that a reliable source had told him that the letter was stolen, then seen in your front yard, and not seen since, I wouldn't be at all surprised if the judge gave him a search warrant. | Many times. See pages 4 and onward here. The 11th circuit (which includes FL) recognizes sentencing manipulation but not sentencing entrapment. The one example from the 11th circuit in that document (US v. Ciszkowski, 492 F.3d 1264) was an unsuccessful claim of sentence manipulation, but it shows the analysis that goes into deciding these types of claims. They say: While our Circuit does not recognize sentencing entrapment as a viable defense, we do recognize the outrageous government conduct defense, and we have considered sentencing manipulation as a viable defense. ... Ciszkowski, however, has not met his burden of establishing that the government's conduct is sufficiently reprehensible to constitute sentencing factor manipulation. Government-created reverse sting operations are recognized and useful methods of law enforcement investigation. Sanchez, 138 F.3d at 1413. The fact that law enforcement may provide drugs or guns essential to a willing and predisposed offender does not necessarily constitute misconduct. We have previously declined to find that the government engaged in prohibited sentencing factor manipulation in other similar contexts. | Under United States law, it is not illegal to simply make an account on a forum where criminal activity takes place. The closest thing I can think of would be misprision of felony (AKA failure to report a crime), which requires active concealment (see United States v. Johnson, 546 F.2d 1225 (5th Cir. 1977)). Simply observing evidence of criminal activity and not reporting it would not qualify. However, if that forum also contains material that is illegal to posses (such as child sexual abuse material), downloading that (even by simply viewing it using your browser) could be a crime. I would note that I am specifically not advising you whether or not doing any of the other things, like making and publishing tutorial videos on how to access such sites, is likely to get you into trouble with the law. If you want that sort of legal advice, you should contact a lawyer, as the advice is going to be very specific to the exact details. |
Church / School / Religion / Disney! / California I attend a public school in California, there is a voluntary field trip day, once a year, where you go to a church. In the church, they put on a Disney show, with nothing religious about it. The subtext is "make churches happy experiences to try to get converts". Are schools and churches allowed to collaborate to get students into the church? Is this illegal, and if so, by what law? This seems slightly fishy, but I can't think of anything that would make this illegal. | It would be unconstitutional for there to be a law against (public) schools having a field trip to a church or other religiously-centered building. The First Amendment requires government action to be neutral with respect to religion. This means that a public school can neither promote nor condemn religion. A field trip where the venue was a church is not per se the promotion of religion in general or a particular religion. A pattern of activity, and associated facts, could, however, establish that a seemingly innocent event is in fact religious proselytizing. If for example the teacher actually says "I want to make churches be a happy experience, so that students would be inclined to convert", that would cross the line from neutrality to advocacy. If there were many possible venues for such field trips and yet only the church is chosen, that might be evidence of non-neutrality. It really depends on the totality of facts. If the church has the only stage in town, that would be a perfectly reasonable basis for repeated trips to that church. | I don't see the contradiction. The ACLU article you link to explains that the Supreme Court found against discrimination on the basis of sexual orientation in principle in the 2018 ruling. Instead they found that the Colorado Civil Rights Commission had taken a dismissive attitude to the religion of the bakery's owners, and that in itself was religious discrimation and a violation of their First Amendment rights. I would say the 2018 ruling paved the way for the more recent one, which is why the article you link is titled: "In Masterpiece, the Bakery Wins the Battle but Loses the War" | Yes: It is legal to deny someone a job as a priest because he is an atheist. Churches are allowed to discriminate in employment based upon religion. See, for example, the EEOC compliance manual. This says, in the pertinent part (citations included after the quoted material): C. Exceptions Religious Organizations Under Title VII, religious organizations are permitted to give employment preference to members of their own religion.[42] The exception applies only to those institutions whose “purpose and character are primarily religious.”[43] That determination is to be based on “[a]ll significant religious and secular characteristics.”[44] Although no one factor is dispositive, significant factors to consider that would indicate whether an entity is religious include: Do its articles of incorporation state a religious purpose? Are its day-to-day operations religious (e.g., are the services the entity performs, the product it produces, or the educational curriculum it provides directed toward propagation of the religion)? Is it not-for-profit? Is it affiliated with or supported by a church or other religious organization? [45] This exception is not limited to religious activities of the organization.[46] However, it only allows religious organizations to prefer to employ individuals who share their religion.[47] The exception does not allow religious organizations otherwise to discriminate in employment on protected bases other than religion, such as race, color, national origin, sex, age, or disability.[48] Thus, a religious organization is not permitted to engage in racially discriminatory hiring by asserting that a tenet of its religious beliefs is not associating with people of other races. Similarly, a religious organization is not permitted to deny fringe benefits to married women but not to married men by asserting a religiously based view that only men can be the head of a household. EXAMPLE 7 Sex Discrimination Not Excused Justina works at Tots Day Care Center. Tots is run by a religious organization that believes that, while women may work outside of the home if they are single or have their husband’s permission, men should be the heads of their households and the primary providers for their families. Believing that men shoulder a greater financial responsibility than women, the organization pays female teachers less than male teachers. The organization’s practice of unequal pay based on sex constitutes unlawful discrimination.[49] Ministerial Exception Courts have held, based on First Amendment constitutional considerations, that clergy members cannot bring claims under the federal employment discrimination laws, including Title VII, the Age Discrimination in Employment Act, the Equal Pay Act, and the Americans with Disabilities Act, because “[t]he relationship between an organized church and its ministers is its lifeblood.”[50] This “ministerial exception” comes not from the text of the statutes, but from the First Amendment principle that governmental regulation of church administration, including the appointment of clergy, impedes the free exercise of religion and constitutes impermissible government entanglement with church authority.[51] Thus, courts will not ordinarily consider whether a church’s employment decision concerning one of its ministers was based on discriminatory grounds, although some courts have allowed ministers to bring sexual harassment claims.[52] The ministerial exception applies only to those employees who perform essentially religious functions, namely those whose primary duties consist of engaging in church governance, supervising a religious order, or conducting religious ritual, worship, or instruction.[53] The exception is not limited to ordained clergy,[54] and has been applied by courts to others involved in clergy-like roles who conduct services or provide pastoral counseling. However, the exception does not necessarily apply to everyone with a title typically conferred upon clergy (e.g., minister).[55] In short, in each case it is necessary to make a factual determination of whether the function of the position is one to which the exception applies. The relevant footnotes: [42] Section 702(a) of Title VII, 42 U.S.C. § 2000e-1(a), provides: This subchapter shall not apply to . . . a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Section 703(e)(2) of Title VII, 42 U.S.C. § 2000e-2(e)(2) provides: it shall not be an unlawful employment practice for a school, college, university, or educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion. While Congress did not include a definition of the § 702(a) term “religious corporation” in Title VII, at least one judge has argued that the legislative history indicates that Congress intended “the § 703(e)(2) exemption to require a lesser degree of association between an entity and a religious sect than what would be required under § 702(a).” See LeBoon v. Lancaster Jewish Cmty. Ctr., 503 F.3d 217, 237 (3d Cir. 2007) (Rendell, J., dissenting). Executive Order 13279, Equal Protection of the Laws for Faith-Based and Community Organizations, issued on December 12, 2002, provides that certain faith-based organizations that provide social programs can deliver those services and make hiring decisions on the basis of their religious beliefs even if they receive federal funding. See 67 Fed. Reg. 77,141 (12/16/02). The Guidance to Faith-Based and Community Organizations on Partnering with the Federal Government, http://www.whitehouse.gov/government/fbci/guidance_document_01-06.pdf (last visited July 2, 2008), issued by the White House Office of Faith Based and Community Initiatives, explains that while religious organizations that receive federal funds to provide social services may choose to hire persons of the same religion, they are also subject to federal, state, and local employment and anti-discrimination laws, such as Title VII. [43] Townley, 859 F.2d at 618; accord Hall v. Baptist Mem. Health Care Corp., 215 F.3d 618, 624-25 (6th Cir. 2000) (college of health sciences qualified as a religious institution under Title VII because it was an affiliated institution of a church-affiliated hospital, had direct relationship with the Baptist church, and the college atmosphere was permeated with religious overtones). [44] Townley, 859 F.2d at 618; see also Killinger v. Samford Univ., 113 F.3d 196 (11th Cir. 1997) (Baptist university was “religious educational institution” where largest single source of funding was state Baptist Convention, all university trustees were Baptists, university reported financially to Convention and to Baptist State Board of Missions, university was member of Association of Baptist Colleges and Schools, university charter designated its chief purpose as “the promotion of the Christian Religion throughout the world by maintaining and operating institutions dedicated to the development of Christian character in high scholastic standing,” and both Internal Revenue Service (IRS) and Department of Education recognized university as religious educational institution). [45] Townley, 859 F.2d at 619 (manufacturer of mining equipment, whose owners asserted that they made a covenant with God that their business “would be a Christian, faith‑operated business,” is not a religious organization because it is for profit; it produces mining equipment, a secular product; it is not affiliated with or supported by a church; and its articles of incorporation do not mention any religious purpose). Cf. EEOC v. Kamehameha Sch./Bishop Estate, 990 F.2d 458, 461 (9th Cir. 1993) (non-profit school not “religious” for Title VII purposes where ownership and affiliation, purpose, faculty, student body, student activities, and curriculum of the schools are either essentially secular, or neutral as far as religion is concerned). [46] See Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987) (a nonprofit church-run business does not violate Title VII if it refuses to hire anyone other than members of its own religion, even for enterprises or jobs that are not religious in nature). [47] Killinger, 113 F.3d at 200 (School of Divinity need not employ professor who did not adhere to the theology advanced by its leadership); Tirpanlis v. Unification Theological Seminary, 2001 WL 64739 (S.D.N.Y. Jan. 24, 2001) (seminary operated by Unification Church cannot be sued for religious discrimination by Greek Orthodox employee who was allegedly terminated for refusing to accept the teachings of the Unification Church). [48] Ziv v. Valley Beth Shalom, 156 F.3d 1242 (Table), 1998 WL 482832 (9th Cir. Aug. 11, 1998) (unpublished) (religious organization can be held liable for retaliation and national origin discrimination); DeMarco v. Holy Cross High Sch., 4 F.3d 166 (2d Cir. 1993) (religious institutions may not engage in age discrimination). [49] EEOC v. Fremont Christian Sch., 781 F.2d 1362 (9th Cir. 1986) (religious school violated Title VII and the Equal Pay Act when it provided “head of household” health insurance benefits only to single persons and married men). [50] McClure v. Salvation Army, 460 F.2d 553, 558-60 (5th Cir. 1972); see also Hollins v. Methodist Healthcare, Inc., 474 F.3d 223 (6th Cir. 2007) (applying ministerial exception to bar claim by resident in hospital’s pastoral care program who alleged disability discrimination); Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036 (7th Cir. 2006) (applying ministerial exception to bar age discrimination claim brought by Catholic Diocese music director who was terminated following a dispute with the bishop’s assistant regarding what to play during the Easter Mass); Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006) (applying ministerial exception to bar age discrimination claim); Combs v. Central Texas Annual Conf. of United Methodist Church, 173 F.3d 343 (5th Cir. 1999) (barring claim because court could not determine whether an employment decision concerning a minister was based on legitimate or illegitimate grounds without entering the constitutionally impermissible realm of internal church management); EEOC v. Catholic Univ. of America, 83 F.3d 455 (D.C. Cir. 1996) (ministerial exception barred Title VII sex discrimination claim brought by tenured member of Catholic University’s department of religious canon law); DeMarco v. Holy Cross High School, 4 F.3d 166 (2d Cir. 1993) (ministerial exception inapplicable to parochial school teacher’s age discrimination claim because employer’s contention that teacher was terminated specifically for failing to attend Mass and to lead his students in prayers could be evaluated without risk of excessive entanglement between government and religious institution); Guianan v. Roman Catholic Archdiocese of Indianapolis, 42 F. Supp. 2d 849 (S.D. Ind. 1998) (ministerial exception inapplicable to parochial school teacher’s age discrimination claim, even though teacher taught at least one class in religion per term, and organized one worship service per month, since vast majority of teacher’s duties involved teaching math, science, and other secular courses). [51] Rayburn v. Gen. Conference of Seventh‑Day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985). [52] Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. 2008) (Title VII race discrimination claim by African-American Catholic priest challenging denial of promotion and subsequent termination was barred by the ministerial exception); Petruska v. Gannon Univ., 462 F.3d 294 (3d Cir. 2006) (ministerial exception bars Title VII sex discrimination claim by female Catholic chaplain against school, alleging that she was forced out as chaplain after she advocated on behalf of alleged victims of sexual harassment and spoke out against the school’s president regarding alleged sexual harassment and discrimination against female employees); Werft v. Desert Southwest Annual Conf. of the United Methodist Church, 377 F.3d 1099 (9th Cir. 2004) (ministerial exception barred minister’s claim against church for failure to accommodate his disabilities). However, some courts have ruled that the ministerial exception does not bar harassment claims by ministers, but rather only applies to claims involving matters such as hiring, promotion, and termination. See Elvig v. Calvin Presbyterian Church, 375 F.3d 951 (9th Cir. 2004) (ministerial exception does not bar sexual harassment claim by minister), reh’g denied, 397 F.3d 790 (9th Cir. 2005) (two concurring and three dissenting opinions); Bollard v. California Province of the Soc’y of Jesus, 196 F.3d 940 (9th Cir. 1999) (novice’s sexual harassment claim could be maintained without excessive entanglement between church and state because religious order did not offer a religious justification for the alleged harassment, and plaintiff did not seek reinstatement or other equitable relief); Dolquist v. Heartland Presbytery, 342 F. Supp. 2d 996 (D. Kan. 2004) (First Amendment Establishment and Free Exercise Clauses did not preclude minister from pursuing Title VII sexual harassment claim against her church, because claims did not involve choice of clergy); see also Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648, 657-59 (10th Cir. 2002) (although “employment decisions may be subject to Title VII scrutiny, where the decision does not involve the church’s spiritual functions,” minister’s Title VII harassment claim was subject to dismissal because it was based on communications protected by the First Amendment under the “church autonomy” doctrine; the doctrine is broader than the ministerial exception and bars civil court review of internal church disputes involving matters of doctrine and church governance). [53] Geary v. Visitation of Blessed Virgin Mary Parish Sch., 7 F.3d 324 (3d Cir. 1993) (lay teacher at church‑operated elementary school not a minister); Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990) (lay teachers of private religious schools who “perform no sacerdotal functions [nor] serve as church governors [and] belong to no clearly delineated religious order” are not ministers despite their sincere belief that theirs is a ministry); but see EEOC v. Catholic Univ. of America, 83 F.3d 455 (D.C. Cir. 1996) (ministerial exception barred Title VII sex discrimination claim brought by tenured member of Catholic university’s department of religious canon law). [54] Alicea‑Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (7th Cir. 2003) (ministerial exception applied to Communications Director who was responsible for crafting the Church’s message to the Hispanic community); EEOC v. Roman Catholic Diocese of Raleigh,213 F.3d 795 (4th Cir. 2000) (ministerial exception applies to cathedral’s director of music ministry and part-time music teacher); Rayburn, 772 F.2d at 1168 (ministerial exception applies to associate pastor who had completed seminary training but was not ordained); Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999) (ministerial exception barred Americans with Disabilities Act claim by church choir director). [55] EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277, 283 (5th Cir. 1981) (“[w]hile religious organizations may designate persons as ministers for their religious purposes free from any governmental interference, bestowal of such a designation does not control their extra‑religious legal status”). This exemption has a constitutional dimension under the First Amendment free exercise clause so this rule cannot be changed, even by statute. | The US does give deference to organizations that claim to be "religious", for example the Religious Freedom Restoration Act, which "Prohibits any agency, department, or official of the United States or any State (the government) from substantially burdening a person's exercise of religion even if the burden results from a rule of general applicability, except that the government may burden a person's exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." Or the Burwell v Hobby Lobby case based on that law "allowing privately held for-profit corporations to be exempt from a regulation its owners religiously object to, if there is a less restrictive means of furthering the law's interest", or Scientology being allowed to not follow minimum wage, or how Title VII of the Civil Rights Act states "This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation". The greater the nexus between the conduct and the religious nature of the organization, the more deference is given. For instance, roles classified as "ministry", such as a priest, will be given more leeway than a more secular role such as a construction worker who happens to be building a church. BTW, as far 501(c)(3) is concerned, there is deference in that classification, as religious organizations do not have the same burden of establishing charitable purpose that secular organizations do. Also, having your nonprofit be a church would mean that Immortals wouldn't be able to fight on the grounds. | A legal paper published in a peer reviewed journal is not science. Universities have faculties of Law and Science because they are not the same thing. while both disciplines use the terms ‘evidence’, ‘fact’ and ‘proof’ they do not mean the same thing. Notwithstanding, the law has already disproved science - see the Catholic Church v Galileo and the Heliocentric model of the Solar System. Yet NASA still uses it to send spacecraft to Pluto - possibly because engineering is neither science nor law. | Someone similar say While it is quite true that no one can have a copyright that excludes all others from preparing their own unique copy of the Bible or other public domain works for copyright protection, our Bibles and other materials are not exactly like any others and are fully protected by copyright laws in all countries So for example, I could theoretically take an ancient public-domain texts and republish it in some modified form. Copyright does not protect the original, but it does protect my modifications. To the extent that Mechon Mamre does include protected material (of their own creation), and Snunit redistributed that material with permission, Mechon Mamre might sue you for copyright infringement. Since they don't say what their creative contribution is, it's hard to evaluate the merits of their claim. | I wouldn't say that it "trumps state law". Indeed, the State of Georgia, either expressly by statute or through the common law, establishes that teachers and school administrators have the authority to create rules and regulations governing the conduct of students that are not themselves unconstitutional as applied to students, although, in general these consequences can't resort to criminal punishments. Instead, typical punishments include detention, suspension (in school or out of school), expulsion, and adjustment of grades for an assignment or a course. Marks in one's disciplinary record and public shaming, forfeiture of eligibility to participate in school sponsored extra-curricular activities or honors (including marching at graduation), refusing to release transcripts, and historically (but much less so in recent years) corporal punishments such as spanking, have been options for schools to enforce their punishments. A prohibition on recording in a syllabus certainly wouldn't result in criminal punishments, and probably wouldn't even give rise to civil liability. Depending upon the purpose for which the recording was being used, it is even conceivable that the school's right to punish someone for violating a school rule could be estopped by First Amendment and whistle blower protection law considerations (e.g. if it was used to document harassment and discriminatory conduct for use in sharing with the school board or law enforcement or publishing on radio or TV or an Internet news source). But, the mere fact that conduct is legal outside a school setting does not mean that a school cannot prohibit and punish that conduct in its own rules. The closer case, upon which there is more division of legal authority, is under what circumstances a school can legitimately punish conduct away from school, for example, uploading rap lyrics about a teacher to YouTube from home without using any school resources to do so. | Invasion of privacy and false light torts would probably not be applicable here. Very few states have adopted the false light tort because of its conflict with First Amendment principles and there was no agreement or even request to keep the text private. The copyright issue is trickier. First all, the TOS may provide that the copyright belongs to the text service provider or that there is a license. But, even in the absence of an express license, sending someone a message which is equivalent to sending them a letter, probably gives rise to an implied license that the person to whom it is sent can use the message that arises merely from the act of sending it without restriction or qualification. Implied license and fair use also heavily overlap. Publishing the text exactly as it was sent to you protects you from defamation liability because it is true. On the whole it would be extremely unlikely for there to be any legal liability for publishing a text from someone that they sent to you. Of course, one can imagine exceptions. If the person receiving the text was in an attorney-client relationship, or priest-parishioner making confession relationship, or was communicating regarding classified national security matters, or there was a non-disclosure agreement in place, among other possibilities, an evidentiary privilege and duty of confidentiality could apply and disclosing the material without the permission of the privilege holder could breach a duty of confidentiality and give rise to liability. If the picture was a nude picture of a minor, there could be a criminal and/or civil liability issue, and some states have also made posting "revenge porn" a criminal offense and/or a basis for civil liability. If the disclosure was effectively a way to facilitate insider trading that could be a problem. If the contents of the text were accurately transmitted but known to be false and were disseminated without disclosure of its falsity for the purpose of defrauding a third party, that could be a problem. But, no facts that obviously flag any exception are identified in the question. The mere fact that the posting may be embarrassing, or hurt someone's reputation, or was made without someone's express consent, in general, would not be a basis for liability. |
Against the law to create a social media account of a deceased person? Is it illegal to create a, say, Facebook/Twitter account under the full legal name of a deceased person and try to mimic or imitate their living likeness, such as using it as if you were them (like they're alive). I mean you can't be stealing from them directly if they're not alive. It may be indecent, but is it illegal to impersonate the person who has passed? Will it count as "posing as another" if the "another" is dead? Most importantly, is it illegal? | You tag the question with "criminal law", suggesting that by "illegal" you mean "is it a crime" -- that would depend on jurisdiction, but in the US or my state, it is not a crime. There are crimes that you could commit with such an account, but violating the TOS is not itself a crime. However, it is illegal, a breach of contract, as you can see from the TOS "You will not provide any false personal information on Facebook, or create an account for anyone other than yourself without permission". | In general, police have no special protection from being recorded; if it is legal to video or audio record a person in that jurisdiction then it is legal to record a police officer in that jurisdiction. Anything that it is legal to do with the recording of a person is legal even if that person is a police officer. As to if it is legal to record a person see: Is it legal to post a photograph that I captured of a stranger in the street? Model release for image without faces How do laws affect photography of non-humans in public when people may be in the frame? What are the legal repercussions of taking a stranger's picture in public? What is considered "public" in the context of taking videos or audio recordings? | How come this is viable? Because it’s legal. What if people use their service to commit crimes? What if people use a Ford in a bank holdup? Or a Glock in a murder? Or the US Postal Service in a Nigerian letter scam? If the goods or services are legal and not provided for an obviously illegal purpose, nothing happens. | Yes. The copyright owner of a work has the exclusive right to "reproduce the copyrighted work" or to make "derivative works" of it. 17 USC 106. Copyright law is older than the photocopier, and it applies to copies made by means of any technology. If your intent is to duplicate the protected work, whether you do it by tracing, photocopying, or even freehand, you are infringing that right. It is possible that you could squeeze into one of the copyright exceptions, such as fair use, but these are much narrower than people tend to assume they are (especially outside of the U.S.), and they boil down to: "Well, yes, I copied your copyrighted work, but..." The bottom line is: is it copyrighted? Did you copy it, in whole or in part? Then, unless you have a very good reason, you've infringed the copyright. Whether you do it by means of tracing paper, jellygraph, or iPhone doesn't matter. | Yes, it's legal. To be illegal, the photographs would have to be obscene or pornographic. Nude people, ordinarily photographed, doing non-sexual, non-excretory things are neither. However, I would strongly advise caution, particularly if you plan to display or share these photographs. There are definitely cases of people who have been charged with sexual exploitation of a minor for sharing nude photographs of their children. | It's not illegal to say things in your profile. SE requires you to license your content to them on a non-exclusive basis pursuant to CC BY-SA 4.0. "Non-exclusive" means that you can also license the material to others on some other basis, e.g. CC0. In that case, a person who uses your material can rely on the other license that you granted. If SE wanted to, it could prohibit putting licenses in a user profile, in which case you would have to promulgate your more generous license elsewhere. | It would probably not be defamation unless it was obvious that it was somehow a very direct metaphor for a real situation. You must, at a minimum, be implying something about reality for something to be defamatory. This would be quite a stretch. You might, however, be liable for commercial appropriation of someone's identity and owe them compensation in much the same way that you have to pay a model damages if you use model's picture for a commercial purpose. The appropriation need not be limited to the physical aspects of someone's appearance and might include also, for example, distinctive use of language or aspects of personal history and life. | It turns out that there is no difference between the ethical answer and the legal answer, in this case. The law recognizes the property right which a person has when they create a thing, such as a font, and that right is encoded in the law of copyright. The relevant US federal code is contained in Title 17, which you can read (essentially identical laws exist in virtually or perhaps actually all countries). The important thing to understand is that there is not a distinction between "privately" trespassing on a person's property and "publicly" trespassing on a person's property. The violation of the owner's property rights comes from taking the material without consent. There is a legally-recognized exception to the owner's rights, in the form of "fair use", which is widely misunderstood to mean "if it's not for profit, the property owner has no legal protection". Simply taking and using someone else's IP non-commercially is not "fair use". |
Under what circumstances can a banker cut your line of credit? I was once offered, and accepted, a line of credit for X. Apparently, I violated the terms (I believe that I made a late payment), and my line of credit was cut in half. What is the legal doctrine or formula that allows a banker to do this? | It's governed by your credit agreement or some similar document, which you surely signed as a condition of receiving credit. There was almost certainly a clause that said the bank could reduce or revoke your credit line if you missed payments. | While it is true that cash is legal tender, this can still be overridden by mutual agreement (i.e. in a contract). So the legal tender status only matters if payment methods were not agreed upon before entering into an agreement. In other words: If a restaurant lets you eat without telling you they do not accept cash, they will have to accept cash. However, if they explicitly tell you they only accept card payments, they can insist on this later. This applies in both the United States, in Germany, and in Canada (see e.g. It may be legal tender, but more businesses are snubbing cash). So to address your points: As I understand the legality would work something like this: 1) I accept the the contract where I agree to pay with card in exchange for food Yes - however, in accepting the contract you also accept that the restaurant is "cashless" (assuming the restaurant clearly tells you so, e.g. by putting up a sign or by saying it in person). I attempt to fulfill the contract to the best of my ability, but am prevented from doing so by circumstances beyond my control Yes. Since you attempted to fulfill the contract, you did not commit the crime of theft (which requires intention not to pay). However, you still owe what you promised when entering into the agreement, which is to pay with a card. At this point I owe the restaurant the money, but since the original transaction failed, this is a debt, which I offer to settle with legal tender No. As explained above, if the agreement stipulates a specific payment method, this generally overrides the "legal tender" aspect. In short: You agreed to pay with a card, so you are required to pay with a card. If you cannot pay with a card, you have not fulfilled your part of the agreement. It is is arguable that it is not your fault, but this does not change your obligation. Now you must either negotiate a suitable alternative (cash, cheque, golden watch...), or come back to pay later with a card. Also, the business may be able to charge you additional costs, such as extra accounting work or interest because of your non-standard payment - that would depend on the details. | 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. | 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. | If two parties have a contract, where one party is required to do X in exchange for the other party doing Y, then the terms specified in that contract would determine what happens. You would have to see exactly what it says, especially if the other party has the option to not give you money. A contract might say "A shall at his option give B $5,000 by date X; if A elects not to make payment, notice must be given 60 days before X". Failing to give timely notice is thus breech of contract. However if the clause only says "A shall at his option give B $5,000 by date X", then there is no requirement for advance notice. And this assumes that there is a contract whereby both parties have some obligation to the other. A gift, on the other hand, carries no obligations on the giving party. There may be some social code to the effect that they should have told you by now, but failing to give advance notice is at most rude and certainly not legally actionable. | Please note that I'm not a lawyer. If you need specific legal advice, please consult a qualified attorney. Every time someone buys an item from someone else, there's at least an implied contract of sale where the seller of the item agrees to give the buyer the item to be purchased in exchange for a sum of money or other object of value which the buyer agrees to pay as consideration. Generally, in an online purchase, a contract of sale is completed when payment is made and the product has shipped. If the seller fails to provide the item you intended to buy after you make your payment, that's a breach of this contract of sale as the seller has failed to execute their end of the contract. I seriously doubt a "no refunds" policy would excuse the vendor for breaching the contract of sale. If you cannot resolve the issue with the vendor, then your best bet is to initiate a dispute through your credit/debit card issuer. | Maybe, maybe not. The answer is implicit in the restraining order, which I assume you have a copy of. If the wording is unclear, you can ask your attorney. The order will state the consequences for violating the order, so you have some idea what the risk factor is. A person may also petition for a new restraining order to include bill-paying, which may or may not be granted. | What "reasonable accommodation" were you requesting? That they lower the bar of determining your ability to pay your bills on time? I don't think that will qualify. A business setting a minimum bar for financial viability isn't a burden tied to a handicap. It's one thing to request a ramp, contracts in braille, etc., but it's another thing to request that they accept a highly-probable financial risk. What would you expect of them the next time "life" got in the way and you couldn't pay your rent? Another accommodation? I think what they were saying is that since you didn't pass the financial background check, and as such were not accepted as a resident, you aren't in a position to make an accommodation request. |
Are most Uber drivers unqualified to operate a vehicle for hire? When applying for a commercial drivers license many life saving and valuable knowledge is to be learned. Commercial classes in the USA ranges to Class D in some States which is a car and to Class A,B, and C recognized Federally in all States. Commercial endorsements can include passengers, triples, hazmat etc. The (Class D non-commercial = Private passenger, regular operator) a common drivers license and is technically invalid when driving people commercially for pay, but most most Uber and others drivers are not qualified according to the regulations. Why is this regulation not upheld or ignored federally in the US? Is this the same in other countries? | Your question seems to be based on some false assumptions. As far as I can tell: There is no federal requirement for an Uber driver to have a class A, B or C license. Just because they are commonly called "commercial" licenses, it does not follow that every kind of commercial driving necessarily requires you to have one. The US Department of Transportation has a website describing what kinds of driving require these license types. Class A: Any combination of vehicles which has a gross combination weight rating or gross combination weight of 11,794 kilograms or more (26,001 pounds or more) whichever is greater, inclusive of a towed unit(s) with a gross vehicle weight rating or gross vehicle weight of more than 4,536 kilograms (10,000 pounds) whichever is greater. Class B: Any single vehicle which has a gross vehicle weight rating or gross vehicle weight of 11,794 or more kilograms (26,001 pounds or more), or any such vehicle towing a vehicle with a gross vehicle weight rating or gross vehicle weight that does not exceed 4,536 kilograms (10,000 pounds). Class C: Any single vehicle, or combination of vehicles, that does not meet the definition of Class A or Class B, but is either designed to transport 16 or more passengers, including the driver, or is transporting material that has been designated as hazardous under 49 U.S.C. 5103 and is required to be placarded under subpart F of 49 CFR Part 172 or is transporting any quantity of a material listed as a select agent or toxin in 42 CFR Part 73. A typical Uber driver operating a typical passenger car (say, 5 passengers and 4000 pounds) would not fall into any of these categories. Some states do require an Uber driver to have a special kind of license; others do not. For example, New York has a Class E license, which for-hire drivers are required to have. (Ordinary people typically get a Class D license instead.) On the other hand, consider Colorado. You can read about Colorado license classes here (PDF). Most ordinary people get a Class R license, and there is no indication that driving a passenger car for hire requires anything other than this. In states where such requirements do exist, it appears that Uber verifies that its drivers do indeed have the appropriate license. For instance, here is Uber's page for prospective New York City drivers. It explains that you have to get a Taxi & Limousine Commission (TLC) license, as well as a Class E driver's license. | Vaccination status does not currently define a protected class under Florida or Federal law. Being or not being vaccinated is not legally recognized as a condition that "substantially limits a major life activity", hence is not an example of disability-related discrimination. The opposite scenario, where an employer refuses to hire an un-vaccinated person, potentially runs afoul of disability discrimination laws when a person has a legal disability that prevents their vaccination. As noted here, due to the scope of the Privacy Rule HIPAA does not directly apply to your question, when the patient discloses information. However, the healthcare provider cannot disclose such information without patient authorization. It's hard to see a First Amendment basis supporting the action (in case the law changes w.r.t. vaccination and discrimination). You could imagine a religion which holds that vaccination against some disease is blasphemy, and forcing an employer to hire the vaccinated is compelled speech which repudiates a fundament of their belief. Even so, it is not sufficient that the business owner holds some odd belief, the belief has to be essential to the nature of the business (see BSA v. Dale). That could be the case of a religious school. | Yes. A license is a legal form of permission to do something (usually, to use a particular property, whether real or digital or intellectual) and the conditions applied to that use. Different licenses for the same property are extremely common, for example, a free license for hobby or non-profit work and a paid license for commercial usage. Other conditions can include the requirement to make the derivative work also available in some manner or to disallow restrictive conditions should the derivative work be licensed itself, even up to requiring the exact same license be applied to all works. Wording the license exactly so that it achieves the goals you intend is the work of a qualified and registered lawyer, and obtaining their services is definitely recommended for this task. | States can, and some states do, have "mini-Sherman" anti-trust laws of their own. Whether a city could have such a law would depend on whether the state had delegated that power to cities. I haven't heard of a city that has such a law, but I haven't really looked. Or if a state has a "mini-Sherman" law, a city could perhaps bring action under such a law, depending on its exact terms. Or a city could impose a licensing scheme on a specific industry that also prevented a monopoly, similar to the requirements that many cities and towns place on taxicabs, or on bars. Both of those typically limit the number of units that a single entity may own. So perhaps it could be done for parking. | Racing parts generally lack EWG certification and thus roadworthiness certificates A part needs to have an EWG registration number matching to the type of vehicle to be allowed to be used on a street-legal motorcycle. If a part has non street-legal parts, its whole registration usually is void. Driving a vehicle without a valid registration is illegal and generally not insured. Please check the regulator or the general information of insurance companies about what replacement parts have to comply with. Your insurance agency usually can help you too. | 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. | If you move to California, you have to register your vehicle in California. You can't continue to operate under the registration of the state you moved from. See California DMV brochure HTVR 33. Even if you don't become a California resident, you might have to register the vehicle in California: "A vehicle must be registered in California if it is based in California or is primarily used on California highways (located or operated in this state for a greater amount of time than any other individual state during the registration period, even if registered to a nonresident owner." California Vehicle Code section 4000.4. Also, getting a California driver's license is not what makes you a California resident. Rather, once you become a California resident, you are required to get a California driver's license. Again, from HTVR 33: "You are considered a California resident if you are present in this state on more than a temporary or transient basis for 6 months or more in a 12-month period (California Vehicle Code section 516) and/or California is the state where: You are registered to vote. You are gainfully employed. Your place of business is located. Resident tuition is paid at a public institution of higher education. Dependents attend a primary or secondary school. Homeowner's property tax exemption is declared. Property is leased for use as a residence. Residence is declared to obtain a license, privilege, or benefit not ordinarily extended to a nonresident. Your current driver license was issued. You are determined to be a resident as evidenced by acts, occurrences or events that indicate presence in the state is more than temporary or transient." | Note: I am not familiar with Washington law, but I can make an educated guess as to what is happening here. I am guessing that the couple in question are the joint registered owners of the motor vehicle. In many jurisdictions, motor vehicles are treated differently from "normal" things, they are treated as inherently dangerous and thus ownership carries a certain set of responsibilities. (Similar to e.g. owning a firearm, which carries with it certain restrictions on how it can be stored, for example.) One of those responsibilities is to keep track of who is operating the motor vehicle. Therefore, unless the operator of the motor vehicle can clearly be identified without incurring unreasonable cost, tickets for traffic violations are generally addressed to the registered owner, who can then forward them to the responsible operator. (Note that "unreasonable cost" does not have to be monetary. It could also be an invasion of privacy: it is less invasive to just ask the owner to identify the operator than to e.g. surveil the owner's property to find out who is using the vehicle or run facial recognition against the owner's family, friends, and colleagues.) In many jurisdictions, there is a form attached to the ticket (or downloadable from some website) which will look something like this: I accept the ticket: [ ] I do not accept the ticket [ ] because … I was operating the vehicle, but I did not run the red light [ ] I was not operating the vehicle [ ] … the vehicle was operated by: name ___, address ___ … I do not know who was operating the vehicle at that time [ ] If you claim not to know who was operating the vehicle at the time in question, that might have other consequences. In some jurisdictions, you can then be ordered to keep a logbook, for example. If the vehicle then gets caught again and you again claim to now know who was operating it, or you cannot produce the logbook, you might get fined for violating the court order to keep a logbook. |
Are there laws requiring the release of PII to participate in wall climbing in Utah? I've been climbing climbing walls for over a decade. It's a lot of fun. But after moving to Utah recently, I find myself at a bit of an impasse. I can't find any place around here that has a climbing wall that will let you climb without filling out what they call "a waiver," except it's totally not a waiver. In every case, it's a big, long form requesting all sorts of personally identifiable information, including DOB, address, phone number, and email address. I look at this information being requested, and here's what goes through my mind: best case scenario, I get put on a mailing list, which I don't want. Slightly worse: they sell that information to advertisers, which I definitely don't want. Worst case: the data gets stolen by hackers or a disgruntled employee, and sold to advertisers or identity thieves. (It goes without saying that I don't want this to happen either.) So there is no scenario in which I'm comfortable turning this information over. Never in my life have I been asked to sign a waiver to climb a wall, let alone provide a huge amount of PII to go along with it. One of the places told me that it's a legal requirement. If so, it has to be local, as I've never run across it elsewhere in the US. Can anyone confirm that 1) this legal requirement actually exists in the state of Utah, or 2) there's a different requirement (such as signing an actual waiver of liability, without requiring PII disclosure) and these are sleazy businesses trying to take advantage of it? It would really be nice to know what's going on here. | "Legal requirement" can and in this case simply means "it's what is required in order for us to be reasonably able to offer you this service", noting that it would be unreasonable for such a dangerous business to operate, when one moron slipping and suing them could put them out of business. It's a little surprising that you've never had to sign a waiver before, but there are quite a number of similar waivers out there, such as REI (Seattle), The Edge (Vt), Croc Center (Coeur d'Alene), YMCA (MI) and U. Nebraska. They all have in common the requirement of a signature (indicating that you've waived your right to sue them), birth date, date of signature. This is the bare minimum that's required to have a valid waiver, and more info would be better (to uniquely identify the customer out of the 1000 John Smith's in the state and 500,000 in the US). If you break yourself and try to sue, they will trot out the waiver to put an end to the suit. Name, address, phone number and birth date do a long ways towards proving that the person who signed the waiver is indeed you. | It depends on where you live, but "restrain" doesn't mean telling a person that they have to stay put, it implies either a physical blockage (locking the door) or a threat of force, and neither of those are present or suggested by the sign. We don't know what the consequences are, for example they might report you to your parents or even restrain you if you are a minor (that's who is in most "gym classes"). If you are an adult, the consequence could be some contractual sanction (read the contract) or termination of the contract for breach (read the contract). You can simply ask a supervisor how they intend to enforce this restriction. | I'd take the city council's advice and realize that you could be charged with a crime. Their job is to know the local laws and put them into place, as well as know how those laws relate to state law. As for state law, the Revised Statutes of Missouri, RSMo Section 574.115 Making a terrorist threat says: 574.115. Making a terrorist threat, first degree — penalty. — 1. A person commits the offense of making a terrorist threat in the first degree if such person, with the purpose of frightening ten or more people or causing the evacuation, quarantine or closure of any portion of a building, inhabitable structure, place of assembly or facility of transportation, knowingly: (1) Communicates an express or implied threat to cause an incident or condition involving danger to life; or (2) Communicates a false report of an incident or condition involving danger to life; or (3) Causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life. 2. The offense of making a terrorist threat in the first degree is a class D felony. 3. No offense is committed under this section by a person acting in good faith with the purpose to prevent harm. A fake gun turret on a porch in the public view that tracks people who walk by could be interpreted as making a terrorist threat because it (3) Causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life. And, it's probably safe to assume your turret has the "the purpose of frightening ten or more people." The fact that the gun turret is on private property doesn't mean much; it is in view of the public and your intent is for it to be seen by the public and you want to invoke fear in the public members who walk by. And it's not going to be seen by the council as some sort of security; threats are not security. If you did put up such a turret, and the state didn't take action under 574.115, and there is no local law on the books that applies, the council can easy put one in place at their regular council meeting with a simple motion and vote. Since you already asked the council, they may already be considering such a law. And, depending on the county, the council could invoke a law addressing threats to the public that has more severe penalties that the state law, because Missouri is a home rule (Wikipedia) state. | My alternative is to put up a sign "Keep Out: Testing Lasers from Space" which is a derivative of this idea and (IMO) would be considered humor. I know there is a line, how and where is that "line" defined? This distinction captures the key point. If your sign stating "Active Mine Field" would, in the overall context, be understood as humor and not as a true statement of fact, it will be protected by the First Amendment. If, however, someone is basically defrauded by a sign, because it appears to a reasonable person to be making a true statement of fact upon which a person reasonably relies to their detriment (or perhaps could reasonably rely to their detriment for criminal law purposes), then it is probably not protected. For example, suppose that your "Active Minefield" sign causes the fire department, when responding to a wildfire next door to your property, to take the long way around your property or to call in the bomb squad at great expense. You could have civil liability as a result. Similarly, if the fire department refused to respond to a fire on your property due to such a sign, your insurance company might have a ground to deny your insurance claim for damages that a prompt fire department response could have prevented. And @user6726 points out circumstances where there could be criminal liability, although there, as in the civil case, the First Amendment would require those criminal statutes to be employed in enough of a common sense fashion to only be invoked in cases where a reasonable person would believe the sign to be purporting to be a true statement of fact in the overall context of the situation, in order to withstand an "as applied" constitutional challenge to a facially valid statute. So, a "space lasers" sign (at least as of 2022 when there are no such things) would probably not give rise to legal or civil liability, but an "Active Minefield" sign without something involved in the presentations to clearly indicate that it is a joke (or a fictional depiction for temporary theatrical purposes, for example) to a reasonable person, could result in civil or criminal liability. Similarly, if the sign was very artistic and also had pictures of Bugs Bunny and Coyote chasing each other, and images of obviously fake "land mines", or if the sign were accompanied by a picture of cow turds everywhere that made clear that the "minefield" was a field full of excrement rather than high explosives, it wouldn't be actionable. | While Colorado does issue driver's licenses to homeless individuals, as you identified in your question, you need the help of a homeless shelter. I can see from your questions that you're reluctant to seek help from family, friends, or a shelter; however, I do not see a lawful way around Colorado's residency requirement without their assistance. Under C.R.S. § 42-2-107(1)(a)(II), the DMV cannot issue a driver's license "until [it] verifies all facts relative to such applicant's right to receive an instruction permit or minor driver's or driver's license including the age, identity, and residency of the applicant." Here is a link to Colorado's statutes. Unfortunately, I can't link to the specific provision cited above. The administrative rules further explain what is required for the department to verify residency. The regulations also talk about the exception for homeless people and specifically state that "Proof of residency documents are waived, if an applicant provides a letter on letterhead, signed by the director of a homeless shelter, certifying that the individual is homeless and stays at the shelter." 1 Colo. Code Regs. § 204- 30:16-2.12. Under the law and applicable registration, you cannot give a PO Box as your residence. You must give an actual address that you are supposed to be residing at. I don't know your individual circumstances; however, you might find it easier to stay at a friends house long enough to get your driver's license. Hope this is helpful to you. | Important story, but BoingBoing also doubts the BBC's wording. It could be an attempted summary of a previous story on BBC Newsnight on 18 July: Lord Porter of Spalding, a former bricklayer, alleged corporations were running tests on the safety of their high-rise building materials but refusing to share the results. Releasing the results could allow residents and local authorities to know if their buildings are at risk of a fire following the Grenfell catastrophe which claimed the lives of at least 80 people. There Lord Porter was talking about results commissioned by private companies including manufacturers, where the labs wouldn't provide information because of 'intellectual property rights' of the client, or presumably commercial confidentiality. Under these situations, it is said the private concerns have no obligation to disclose. If this is what the BBC story was referring to, then at least investigations by government or third parties wanting to reveal characteristics of the products wouldn't have a copyright (or patent etc) problem. | I'm a notary. If someone showed me a marked-up license, I'd refuse to perform the notarization, and make a note of the persons name and phone number, to make sure I would never make another appointment with the person. Is there a law that says I have to refuse? I don't think so. Is there is a law that says I can refuse if I have any doubts about the person's identity? Absolutely. | This doesn't sound like fraud (against you, at least), but it does sound like an unfair or deceptive trade practice, which is outlawed by Section 5 of the Federal Trade Commission Act and perhaps the Pennsylvania Unfair Trade Practices and Consumer Protection Law, both of which prohibit unfair and deceptive trade practices. I don't know about Pennsylvania, but the FTC has on many occasions taken action against companies for engaging in just this kind of behavior. To find out whether you would be able to take action against the other company, you'd want to find a good competition lawyer in Pennsylvania. For some more basic background on the FTC's rules, check out this primer. |
Legality of absolving martial arts class of responsibility if injury or death occurs? Although people sign a declaration before skydiving, that they are aware they may die, the parachuting center can still be charged for manslaughter if the parachute doesn't open. Does the same apply for martial arts classes? This is the clause mentioned in the "Liability waiver" section of a martial arts class application form. Am not mentioning which martial art it is. Will just name it X. I am applying for instruction in martial arts activities involving strenuous exercise and personal body contact. I understand that because of this there is always an inherent risk of injury that cannot be eliminated. As a condition of being admitted to train in X at any training premises, I assume the risk of all injuries, losses and damages and do hereby hold the training center, its instructors and agents or persons otherwise connected with the X classes harmless from any and all liability (including legal costs) for all claims, actions or damages due to injuries, losses or damage suffered by me or caused to a third party by me during the course of X training, or arising out of the activities of the X classes, or any other activities occurring on the premises of the training facilities or elsewhere. I have been given the opportunity to seek legal advice regarding the terms of this document. Even if there is a good amount of discipline during classes, if a student waives liability, that gives opportunity for a rogue student or egoistic or inexperienced master to do whatever they please. They can be rough. They can injure the student and claim that the student was not observant or quick enough. Is it wise to sign such a document as-is or can I scratch off any of the conditions there, write a counter condition and sign at the side of the sheet? An example of a counter condition would be "...unless otherwise proven by witnesses that the injury/death was caused by negligence on the part of the student/instructor". I also felt the sentence "damage suffered by me or caused to a third party by me during the course of X training, or arising out of the activities of the X classes, or any other activities occurring on the premises of the training facilities or elsewhere." was too ambiguous. | That waiver for the martial arts class is a contract. One can attempt to negotiate any contract and change the terms to one's liking. It is unlikely, however, that a martial arts studio is going to want to negotiate the terms of their waiver of liability on a student-by-student basis. This will probably leave prospective students with a choice of accepting the terms of the waiver or not taking the class. However, such waivers are unenforceable in some jurisdictions. Louisiana Civil Code article 2004 for example: Art. 2004. Clause that excludes or limits liability Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party. Acts 1984, No. 331, §1, eff. Jan. 1, 1985. Here is an interesting article that discusses a lawsuit against Louisiana State University (LSU) over an ankle injury. The court held in that lawsuit that the "release and hold harmless" portion of the waiver was null and couldn't be presented to the jury. However, the parts of the waiver that did not release LSU could be weighed by the jury; these included an obligation of the participant to have adequate health insurance among other provisions. Another article from 2012 regarding such waivers in Virginia mentions: ...,most, if not all states prohibit waivers of liability based on willful or wanton misconduct, gross negligence or intentional acts. A web site titled Sport Waiver has a page, www.sportwaiver.com/about-waivers, that gives advice to businesses which want to use waivers. On the linked page, which is from 2009, it lists each of the states and how they treated such waivers at that time. A business that caters to inherently risky activities will often have participants sign waivers and hold harmless agreements even when those agreements are null as a matter of law. This is done to discourage lawsuits and also, in case of a lawsuit, as a means of demonstrating that the participant knew the risks associated with the activity. | The crime often called "involuntary manslaughter", or simply manslaughter in the second degree, is when, with criminal negligence, he or she causes the death of another person The standards for "criminal negligence" as well as "recklessness" are spelled out here. The first term is defined as: A person is criminally negligent or acts with criminal negligence when he or she fails to be aware of a substantial risk that a wrongful act may occur and his or her failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation. You can elaborate the above scenario with some details to make this be a criminally negligent act, but I assume the intent is to have this be a tragic accident. So for example, I assume that she did not see the fireman. The law does not require you to die in a fire in case there is a remote possibility that you could injure another person in the course of saving yourself. Unless you add some evil intent on the girl's part ("I don't care if I land on that fireman, that's his job"), a reasonable person would act likewise and save their own life. | I'll use Wisconsin as a jurisdiction. If you file a false death certificate, that's a felony. But you probably wouldn't go that far. It could be disorderly conduct. In Wisconsin disorderly conduct is described as follows: Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor. There's also a statute prohibiting "Disrupting a funeral or memorial service" but it won't apply in this case unless disorderly conduct applies. It would raise the penalty to a class A misdemeanor (or a class I felony if you somehow did it again after being convicted once.) On the civil side, there could be an action for intentional infliction of emotional distress, either for the false report of your death, or for a "corpse" suddenly coming to life. This kind of lawsuit requires "extreme and outrageous conduct", but if this isn't, I don't know what would be. | What does the contract say? When you signed on for these classes, you signed a contract. This will spell out each party’s rights and obligations. Since the rec centre drafted the contract it probably gives them the right to expel you and probably doesn’t require them to reimburse you if they do; but you would need to read it to be sure. | The relevant (criminal) defence is Sec 11(b)(3) [the Civil defence in Sec 11(a)(iii) is an easier one]: (3) Notwithstanding any other provision of this Act, it shall be a defence to prosecution under this subsection if the defendant committed the offense based on a good faith belief that he was acting to protect himself or herself, a member of his or her family, or any other individual, from bodily harm from any endangered or threatened species. I would say that the defendant could easily demonstrate a "good faith belief that he was acting to ... any other individual, from bodily harm from any endangered or threatened species." Even if there were other ways to rescue the child other than lethal force to the gorilla they all would have necessitated exposing the child to a longer period of danger, exposing another person to danger or may have had less predictable outcomes (e.g. tranquilisers have an onset time) all of which would be unconscionable. | SHORT ANSWER The hold harmless agreement binds you individually if you sign it individually. But, you may have liability to the firm you are contracting with as a matter of law anyway, as an individual, unless that is expressly waived by contract with the person who might otherwise sue you. You should get liability insurance for yourself and your LLC. If the place you are working with doesn't have a waiver in place with students already, you should have your students sign one that is drafted by a lawyer in your particular state. I don't address this is the long answer, but you also shouldn't have signed a W-9 for yourself individually. Only the LLC should have had to fill out the W-9, although this probably doesn't do any great harm. LONG ANSWER Two Main Kinds Of Liability: Contract and Tort There are two main kinds of liability (there are other kinds of liability too, but they come up much less often). One is for entering into a contract with someone and failing to perform that contract causing the other person not to receive the benefit of the bargain, which is called contractual liability. The other kind of liability is called tort liability. Tort liability arises when you have a non-contractual legal duty towards someone (i.e. a duty that arises as a matter of law), you breach that duty, and that duty causes someone to suffer damages. If you also have a contract with that person tort liability can be limited, but not eliminated. The most common form of tort liability by far is liability for "negligence" in which the duty that arise as a matter of law is the duty to use reasonable care under the circumstances to refrain from causing harm to another person. Limiting Contractual Liability It is possible to limit contractual liability by saying so in the express language of the contract. Only parties to a contract have liability under a contract. It is also possible to have broader or narrower scopes of an indemnification clause, or to limit another person's right of subrogation against you (i.e. the right to sue you to pay part of what they had to pay when they are held liable for a wrong you committed). A disclosed agent of a principal (or employee of an employer) including a manager of an LLC, is not contractually liable for breaching the principal's (or employer's) contract. An undisclosed agent or principal (i.e. someone acting on behalf of another but acting as if he or she is acting on his own behalf) is liable on the contract along with the principal or employer. The principal is liable on contracts entered into by a disclosed purported agent with mere "apparent authority" to do so, even if the agent is not actually authorized to enter into the contract, and the principal in that case has recourse only against the agent. So, if you sign a contract in your capacity as a manager of the LLC, rather than in your person capacity, and you do not personally guaranty the contract, you do not have contractual liability on the contract. Typically, to do so, you would sign the contract like this (the italic portion would be signed and underlined; the rest would be printed): XYZ, LLC By Leonara the Great Leonara the Great, as Manager Tort Liability Vicarious Tort Liability Of An Entity A principal or employer, including an entity, has "vicarious" liability for the acts of all of the principal or employer's agents and employees within the scope of their agency or employment, even if the principal or employer prohibited those people from doing that as a matter of policy, contract or a specific instruction not to do so. So, the LLC is liable for anything you do related to the LLC's yoga business. Liability Of Disclosed Agents, Employees, Managers And Officers Of Entities As explained below in a case that is representative of the overwhelming majority rule in the U.S., a human being is responsible to third parties for torts in which he participates in the absence of a waiver for that person, even if acting an an agent or employee or contractor of another company: (I have no idea why I can't get this to appear as text rather than as an image). Limiting Tort Liability Tort liability cannot be limited in the absence of a contract with the person actually harmed, or via a statute that limits tort liability. It is possible to contractually waive tort liability to a person signing a waiver, in advance of a tort occurring, not predicated on contract that arises from negligence or as a matter of strict liability, but not in cases of intentional conduct, reckless conduct, willful and wanton conduct, conduct amounting to bad faith, and conduct that amounts to "gross negligence". Gross negligence is a failure to act using reasonable care that is so extreme and obvious that is comes close to being reckless in character. Practical Options Almost every business that engaged in activities that could give rise to personal injuries buys liability insurance that covers lawsuits against the business and the employees and agents of the business (i.e. in this case, your LLC and you personally acting on behalf of the LLC) to address this risk. This provides two benefits to you and your company: (1) it provides a lawyer, free of charge, to defend you if you are sued for a covered risk, and (2) it pays awards against you in a lawsuit or via a settlement related to a covered risk, up to a stated dollar amount. Insurance is a near necessity, because not all risks can be waived and even if you have a waiver that is upheld by a court, that doesn't prevent you from having to hire a lawyer to defend yourself in that lawsuit. Just to provide a reality check that this really is what people do, my wife was an independent contractor pilates instructor for a while and while she did that she paid for liability insurance in addition to having waivers signed by her students. (Bigger studios will have waivers for students already in place that cover you.) | 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). | 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. |
Can I waive my constitutional rights? e.g. in the EPL (Eclipse Public License) the last statement reads like this. Each party waives its rights to a jury trial in any resulting litigation. Can I waive my fundamental constitutional rights? If that be the case, wouldn't it be possible for a legal entity to coerce or cheat a person into a contract that violates his/her constitutional right/s? Isn't the law of the land above all (including contracts)? Can the law through due process come to conclusion that a person be denied his constitutional rights because he signed a contract that was illegal/unconstitutional in the first place? This is not a duplicate of these questions Can I waive my statutory rights? How can felons be denied Constitutional rights? | Actually, the concept "right" means that it can be waived: you may exercise the right, but do not have to. If it is an obligation, you can't "waive" the obligation; but the right to free speech does not mean that you must speak, and the right to bear arms does not mean that you must bear arms. You may decline to exercise, or waive, a right. Sternlight 16 Ohio St. J. On Disp. Resol. 669 (2001) in "Mandatory Binding Arbitration and the Demise of the Seventh Amendment Right to a Jury Trial" partially addresses this (the focus though is on binding arbitration). One thing to note is that the Seventh Amendment does not appear to apply to issues in state court (it is a separate and fascinating question to wonder what parts of The Constitution are incorporated against states, and why). All is not lost for the constitutional question, we just need a different constitution. By the agreement terms, "This Agreement is governed by the laws of the State of New York". Therefore, New York's Constitution (Article 1 Sect 2) is also applicable: Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. Thus, the right may be waived. Waiver of a right to jury trial is not the same as waiver of the right to trial: what the agreement says is that litigants would have a civil bench trial, where the judge determines whether there was a breach. In New York, NY CPLR § 4102 allows parties to waive civil trial by jury (and unlike California), such waiver terms have been upheld, but the courts have recognized that there is a problem, so it's not always obvious whether such waivers in contracts are legal. | This is largely congruent with* the doctrine of laches. The basic idea, under common law, is that you can lose rights by failing to assert them. This is generally important for many reasons, but specifically in the case of appeals: The argument should have been brought before the trial court. Justice is not a game, but it's important to recognize that the party trying to raise the argument had an opportunity to do so already. They have given up their right to raise this argument, and extending them the privilege of doing so is (for the following reasons) not good for the system. Courts of appeals are typically not well-equipped to evaluate factual evidence. It is not their area of expertise. Witnesses or evidence may be less available. It's just not practical to try to adjudicate factual issues on appeal, most of the time. If anyone could get an appeal by bringing new factual arguments, then everyone would do that. You'd bring your strongest argument before the district court, and then if that fails, bring the second strongest before the circuit court. That way, you get an extra trial. This is inefficient. Allowing factual arguments on appeal would encourage attorneys and their clients to strategically bring different facts before different courts. This kind of forum-shopping is harmful because it has little to do with who has the stronger overall case, and more to do with who has the better lawyer. * "Congruent with" is not the same as "an instance of"; this rule is not formally an application of laches. It just happens to share the same justification. | Speaking strictly from a legal standpoint, what can be said on the issue? Strictly speaking, the Constitutional Court is the top authority on the legality of anything. One can speculate as much as they want on whether the Court was biased, pre-determined, corrupt, defiant, flagrantly blatant or ridiculously unjust. These speculations would be pure politics. They do not change the fact that whatever the Court has decided is legal just by definition. | You are courting seduction by the sovereign citizen doctrine. This is a crackpot legal theory that will get you nowhere. Run away as fast as you can. See, for example, Can a natural US person hold citizenship while remaining non-juridical?. See also "Mercedes-Benz Financial (DCFS Canada Corp.) v. Kovacevic, 2009", CanLII. This person fared particularly poorly because his argument relied in part on the UCC, which is a United States model code, but he was arguing in a Canadian court. Still, even in a US court, he would have lost. See What are "freemen of the land" or "sovereign citizen" theories and do they hold any water?. | If I want to protest for or against President Trump and decide to wear a Trump mask, isn't that speech protected by the first amendment? Probably. The matter of intent, in any event, is for a court to decide (if the prosecutor determines that the question should even be presented to a court). For example, someone seeking to rob a bank in a mask would probably fall afoul of this law, and it's not likely that using a mask of a political figure would enable a successful first-amendment defense. For a political protestor, it could be easy to show that the intent was to make a political statement and not to conceal identity, in which case it would not be necessary to consider the constitutional question, for a critical element of the crime would be missing. That is, if you say "I wasn't trying to hide my identity," and the court believes you, then you haven't violated the statute. That is a separate question from whether the statute is constitutional. For the law itself to be unconstitutional, it would have to be unconstitutional in every application, generally. If some applications of the law are unconstitutional, the law could stand, but prosecutions for the unconstitutional application would not succeed. | Although the constitution doesn't explicitly require your vote to be equal in strength, surely the founders intended with the word 'vote' that you at least get to choose who you vote for. Quite the contrary. The founders specifically intended that smaller states should have disproportionate strength - they knew exactly what they were doing. This was one of the major design goals of the Constitution and is reflected in several other areas (e.g. the structure of the Senate); the smaller states wouldn't have agreed to join the Union if such concessions hadn't been made. There's a general principle in law that "the specific overrides the general". You're not going to get anywhere by trying to read into the word "vote" when there is explicit text saying something different. If the founders intended the word "vote" to imply "equal power for everyone", then why would they have specified, in great detail, a system which does exactly the opposite? For that matter, the founders didn't particularly intend that the people be able to vote for president at all! Article II, Section 1 says only that "each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors..." There is no requirement that the state should hold an election to determine the appointment of the electors. According to Wikipedia, five states initially had the electors chosen by the state legislature, without having the people vote at all, and South Carolina continued to use this system until 1860. The 14th Amendment, section 2, appears to require that all eligible voters (male and 21 at the time, since modified by the 19th and 26th Amendments) be allowed to vote for their electors, but even there the wording is "any election" which appears to leave open the possibility of having no election at all. (It hasn't been tested as far as I know.) I think that your proposed lawsuit would be quickly dismissed, possibly as "frivolous". | I suspect that you would not be convicted in the present case, because the jury would be sympathetic to the plight of the person being dragged out and unsympathetic to the behavior of the draggers. However, we should set aside the emotional elements of a jury trial and focus on legal principles. The basic question is whether a person has the right to use force to defend against an unlawful battery: "a person is privileged to use such force as reasonably appears necessary to defend him or herself against an apparent threat of unlawful and immediate violence from another". This right to defense also extends to defense of others. But it has to appear to be to unlawful, which is to say, you have to reasonably believe that the force used against the victim is unlawful. If a couple of thugs try to drag a person away, then an observer probably has a reasonable belief that this is an unlawful battery. But if a couple of police officers are observed dragging a person away (arresting him), apparently acting officially, the force used (up to a point) is apparently lawful and would not constitute battery of the victim. For defensive force against police to be lawful, the forced used by the police must be excessive. The outcome then depends on what a reasonable person would conclude (this is where the jury or judge makes a rather subjective decision). If a reasonable person would conclude that the assailants are acting lawfully in arresting the person, then a higher bar must be clear to justifiably use force in defense of others. Wearing a jacket that says "Police" favors the "appears lawful" side (though if you happened to know for a fact that the person wearing the jacket is not a police officer, then the "police exception" would not be applicable). In the relevant case, the facts point to the appearance of a lawful arrest (even if were to turn out to be judged unlawful). In the case that this is an apparent arrest, it would have to be the case that a reasonable person would find the force used to be excessive. Generally speaking, force used by officers is held to be reasonable, except in some cases where it is not. See for example the matter of Eric Garner, where the officers involved were not indicted. On the third hand, in this case, it might matter what the actual legal status of the "officers" is (they are not Chicago police). | Amendments to the US Constitution are part of the US Constitution, and this includes the so-called Bill of Rights. The doctrine of applying parts of the US Constitution to states, known as incorporation, comes from the 14th amendment: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The scope of the doctrine of incorporation is logically limited to amendments because the original articles of the constitution state how the federal government is run, and does not guarantee any rights or privileges to individuals. Amendments 1,2,4,8 are fully incorporated against states, 5 and 6 are partially incorporated, third and 7th are not incorporated, and for 9th and 10th there is no ruling. This arrangement derives from decisions by the Supreme Court, interpreting the 14th Amendment and the concept of "due process". If a state were to passe a law forbidding criticism of the governor (violating the First Amendment), an individual could sue to have the law found unconstitutional. Because, under the 14th Amendment, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article", Congress can and has passed a law prohibiting violation of civil rights: 42 USC 1983. Since the state in this hypothetical scenario has violated federal law, the federal government (Dept. of Justice) has standing to sue the state for violating federal law. |
Contract still valid after servicer changed name? There is no clause in the contract about transfer of service (or whatever you call it) like if it's still enforceable even after the service has been transferred to someone else. I had a contract with a company, but that company changed its name. Is my contract still enforceable? | I had a contract with a company, but that company changed its name. Is my contract still enforceable? Yes, because what matters is the entity itself. A contract is not stricken merely because one or more parties changed names or labels. | I can't speak for the US but in Australia this would not be binding. You entered a contract for the vacuum cleaner the terms of conditions of which were made known to you at the time of purchase – the ticketed price, any store or website displayed terms and whatever was written on the outside of the box. Any alleged terms that were not made known when you entered the contract e.g. because they are inside the box are just that: alleged. In addition, the manufacturer would have committed an offence under Australian Consumer Law by misleading you that such terms were binding. This could lead to a fine in the multiple millions of dollars if the breach is widespread and egregious enough. | Agreement You say: my landlord added a clause stating: "All moving must be done in rear of driveway or pay $250 (near basement door)" Was this addition made at the time you signed the lease or subsequently? This matters because the terms of a contract cannot be changed unilaterally, they must be agreed. If the change happened after the lease was signed then , unless you agreed to it, it has no effect whatsoever. Since that resolution is boring; I will assume that it was always there. Enforcability Is this actually enforceable, since I did park in a public space and not necessarily on his property? Yes, it is enforceable. People can agree in a contract to do (or not do) anything so long as that thing is not illegal - that is what a contract is; a legally enforceable agreement for two people to do certain things. You agreed "All moving must be done in rear of driveway ... (near basement door)" and you didn't do what you agreed to do. Therefore you broke a term of the contract. It doesn't matter that you don't know why he wanted you to do this or if it was reasonable or if it meant that you couldn't use your parent's truck - if these were issues for you they should have been raised before you agreed to do it. If the clause said "When moving out you will wear a blue double breasted suit with a yellow and purple bow tie" then that is what you must do. Consequences There are a number of options open to the wronged party when the other party breaches a term of a contract. The most relevant in these circumstances is to sue for damages. So how much are damages? Well, they are an amount to restore the wronged party to the position they would have been in if you hadn't broken the agreement. In situations where damages can be hard to calculate, contracts can make a provision for liquidated damages; a pre-agreed amount of what the damage will be: in this case "$250". However: In the United States, Section 2-718(1) of the Uniform Commercial Code provides that, in contracts for the sale of goods: Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty. This largely mirrors the common law rule, which applies to other types of contracts under the law of most US states. On the face of it, it would appear that $250 may be "unreasonably large" given the nature of the breach where it appears that the landlord has actually suffered no damage. | 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). | What would be the legal validity of this behaviour? Your changes to the browser source of the website contract or license of Terms of Service (TOS) - essentially a "click-wrap" license - before agreeing to it means nothing in a legal sense, other than to void the contract. The other party (the website) can't possibly agree to those contract changes without them being submitted as contractual changes and agreeing to them, if they did agree to them. That's basic contract law. That website TOS probably has a clause that says that if you don't agree to the TOS in full, as written, without modifications, you can't use the website. And the TOS may also say that they reserve the right to prevent you from using the site by closing your account or even blocking your access. Your "witness" to the contract changes is meaningless, as your witness is not a party to the contract. And any witness to the fact that you have changed the terms of the TOS before agreeing to it would work against you in a civil proceeding as proof of your attempt at modifying the contract. | 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. | 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. | The contract is enforceable No one is in any doubt that the parties to the contract are you and Smith Homes and everyone knows that Smith Homes means Smith Homes LLC. The written document is only evidence of the contract, the contract is the entire commercial relationship. Contracts are not invalid because they have typos or minor irregularities- otherwise virtually no written one would be. The law can be very pragmatic sometimes. |
What laws are there regarding being pulled over by an unmarked cop car/undercover cop? Although this has never happened to me, I've read and heard about people driving on the road and then being signaled (in some way, usually with reds and blues) to pull over for a ticket and the car doing this isn't the usual police car for that area but instead an unmarked car. Are you legally required to pull over for this unmarked car just like you would for a regular police car? What laws mention or describe this situation (in any state)? If it is required, how are you to know if the police car is legitimate? | In most states you are required to pull over to the side of the road and come to a stop for any vehicle displaying flashing red and/or blue lights, whether oncoming or overtaking. If you don't you are guilty of a moving violation.1 If the vehicle with the lights then pulls in behind you the same law forbids you from moving your vehicle. So that's the law for being pulled over by an unmarked car. If you are concerned that you were stopped in this manner by someone not authorized to do so (police impersonators have been known to do this) you should call 911 and get the dispatcher to confirm whether the apparent emergency vehicle is legitimate. In general, if you fear for your safety, you can stay in your car and ask to be escorted to a known police station before exposing yourself. E.g., here's the advice of one Ohio State Highway Patrolman: If the area where you stop looks desolate, Miller said you don't have to stop there. In fact, he said, "Proceed to that well lit area or a public building, the fire department, hospital." [B]efore you even stop, if you don't feel safe, "Use your cell phone to dial 9-1-1 and talk to the dispatcher, let her know what's going on, give your location and have her guide you as to what she wants you to do." There are some jurisdictions that restrict the use of "unmarked" cars by police. | In general, people have less expectation of privacy in cars than in their homes. To challenge a search and/or seizure under the Fourth Amendment, a person must have standing - the right to sue (that is, you must have had a reasonable expectation of privacy in the place where the search happened; if you didn't, no standing - can't claim your privacy was violated if you had no privacy). The US Circuit Courts are split on the issue of unauthorized rental drivers and whether they have the same reasonable expectation of privacy as the authorized driver of a rental car would have. Some Circuits allow the unauthorized driver to challenge a car search if the authorized driver gave them permission. Some Circuits look only at the agreement and if the driver isn't authorized on that, they're out of luck. The 6th Circuit is more case-by-case, with a presumption that driver can't challenge the search that can be overcome based on the facts. (All this info from US v. Haywood, 324 F.3d 514) There's a current case before the Supreme Court (argued January 9, 2018), Byrd v. US, on this very issue. This SCOTUSblog page has a lot of information on the case. Edited to add: Texas is in the Fifth Circuit, which follows the rule that unauthorized drivers don't have standing to challenge a search/seizure even with the authorized driver's permission to drive the car; unauthorized drivers of rental cars don't have a reasonable expectation of privacy because they lack a possessory interest in the car and/or they're violating the rental agreement. Basically, even though it seems the cops' stop of the car would've violated the Fourth Amendment if he were the authorized driver, since this happened in Texas, he's not going to be able to challenge the stop. IMO, this is incredibly unjust especially when the cops admitted there was no probable cause, so hopefully the Supreme Court makes this rule obsolete and allows unauthorized drivers to exercise their Fourth Amendment rights. Some law review articles on the topic of unauthorized rental drivers: "Hertz and the Fourth Amendment" "Resolving a Three-Way Circuit Split" | Both the police and the courts are likely to look at the situation as a whole, rather than adopting any policy specifically in relation to drivers or owners. For example, it's unusual for people to rent cars to their friends for months on end. That might suggest there is something untoward about the arrangement. Is there evidence of the commercial arrangement, or is the owner pretending to have rented the car out for months, when in reality they had stashed the drugs then let a friend borrow the car for a day? It would also be unlikely for a drug dealer to stash a large amount of drugs in a car then lend the car out on a long-term basis, so if the car is out of the owner's hands, that would tend to suggest the drugs belong to the person in possession of the car (and not the owner). But if the amount of drugs were small, typical of personal use, then it becomes more credible to imagine they could be forgotten by the car owner before lending the car to a friend. Police intelligence might also have a bearing. Does one party or the other have known links to the drugs trade? Also, is the lifestyle of one or the other, in particular, inconsistent with known sources of legitimate income? My point with all these questions is to highlight how sensitive the issue is to the fine details of the circumstances, and that it's impossible to give a strictly general answer. | Silence is not cause. However, this may not prevent a search. The officer does not need to tell you that he has probable cause, he must simply have it in order to conduct a search. If he obtained the probable cause before he pulled you over (this is likely), then he will order you out of the car and search over your vociferous (and silent?) objections. If the officer does not have probable cause, searches anyway, and can't come up with a convincing one in time for the court date, then yes you have a claim. But remember, just because the officer didn't inform you of the cause doesn't mean it didn't exist. Always consult an attorney before any legal action. | The police performed an "open air sniff". Federal and Pennsylvania law differ on this. Under Federal law, this is not considered a search and can be done on any vehicle- usually to get cause for a more invasive search. (Illinois v. Caballes, 543 U. S. 405 (2005).) Under Pennsylvania law, an open air sniff requires reasonable suspicion. This is lower than probable cause- all it requires is that a reasonable person could suspect from the facts that a crime may have or could be committed. Being overly nervous during a routine traffic stop driving someone else's car could potentially be considered reasonable suspicion- as I only have your second-hand account, I won't speculate further. If there was no reasonable suspicion, any evidence found by that search, or evidence found by a search justified by it would be suppressed. Fourth Ammendment rights also apply here. The police cannot detain someone solely for the purpose of waiting for a sniffer dog. They have ways and techniques to waste time for this purpose, but if the stop was concluded before the dog arrived, your husband would be free to leave. Again, I have only your second-hand account so I won't speculate on whether this happened. He should speak to his lawyer about specifics of the case. | The citation could be written but it should be easy to beat. In the circumstance that you describe the accused could just say the he was not driving his car at the time. If the prosecution is a sham with all your friends saying you all saw this thing, then the defendant can bring all of his friends to say that he was at some other place. The benefit to having a cop on the scene is that the cop will get ID and positive identification. The other thing the cop has is expert judgment. If a cop sees unsafe lane movement and writes a ticket, his testimony in court carries more weight than the "it was not unsafe!" testimony of the accused. Keep in mind, getting all of your witnesses to court on the same day, after continuances and other delays, and getting them all to tell the same story to overcome the presumption of innocence is no small feat. All that to say, it's easier with police as witness. There are two mechanisms which could get you where you want to go. Private prosecution and citizen's arrest. Private prosecutions are a part of history but not strictly unavailable at the state level. You could write up some charging documents to see if you can get your target indicted. Citizen's arrest is interesting because the rules are fairly unclear unless governed by a specific statute. There are two necessary parts of citizens arrest and the first part gets the attention. The first part is the detention (arrest). The crimes for which a citizen can legally detain a suspect are likely defined by state statute. The second part is giving testimony about the witnessed crime. Let's assume that you see a felony happen and watch the perp walk into a gas station bathroom. You are prepared to arrest, do part number one, and then call the cops, to do part number two. But while you wait for the guy to come out of the bathroom a cop walks up. You explain the felony and the cop goes into the bathroom and arrests the guy. It's purely witness testimony that led to the arrest and the indictment (physical evidence - let's say there is none) and even the trial. You successfully get the guy indicted and when you show up to testify you tell the story as you witnessed it. Now the accused gets to take the stand. When he takes the stand he says, "it was the other guy." When asked, "what other guy?" He says, "I was in the bathroom and a guy ran in and went into the stall. Then a cop came in and arrested me." Reasonable doubt right there. How much more if it's a bunch of friends ratting on some lone driver? Police need evidence. Prosecutors need evidence. Judges need evidence. | So I found information from a law firm in Florida about Hit and Run Cases. You definitely want a lawyer as it is a $500 fine and/or 60 days in jail for your case (property damage, no injury or loss of life). The good news is that if you can argue the case correctly, it's very easy to get a Not Guilty verdict. Under Florida Law, a Hit and Run must meet the following criteria to legally find someone guilty: Disputes as to the identity of the driver; Lack of knowledge that a crash occurred; Lack of knowledge that an impact occurred with persons or property; The failure to stop was not willful, but was dictated by circumstances; The defendant stopped as close as possible to the site of the accident; The other driver refused to receive identifying information The other driver became belligerent, necessitating that the defendant leave the scene to call police; The assistance rendered was ‘reasonable’ within the meaning of the statute. Given that you had no lack of knowledge that a crash occurred (2) AND lack of knowledge that an impact occurred with persons or property (3.) AND you would have stopped but for the circumstances of the event prevented you from recieiving knowledge of that the crash had occured (4) you already fail to meet 3 of the 8 criteria. This should be easy to argue in and of itself, but where you need a lawyer to assist is in criteria 7. While you were never fearing the other driver to such a degree that you needed to call the police, his behavior was interpreted by you as "road rage" and you had a reasonable fear to not wish to engage him. It's not rules as written, but it could be that the rules allow for leaving the scene because of the plaintiff's behavior and could be valid in other forms. I'll admit, this will vary wildly on the judge's own interpretation of that rule, BUT it's worth a try. Keep in mind with all of these, the Prosecution will be required to prove all 8 facts against you, while you only have to disprove one, to some level of doubt. As an armchair jury, I have no facts to support your story, but I have no facts to doubt it either. And when doubt happens, you must assume innocence. It would help if you had any hint of the officers attitude at the time. Was he friendly? Dismissive? Distracted? What was the guy who hit you's attitude towards the situation? Was he constantly yelling at you and the officer? Was he quiet and separated? Either way, get a lawyer because 60 days of jail time and a $500 fine is not something you want to fight by yourself. Make calls (the ticketing officer should have a work number or other contact information on the ticket.). Notify the insurance company of the fact that it was cited as hit and run but not proven... it could make the difference of who's company is to pay (It will be his if there was no Hit and Run). | The Highway Code said: Vehicles. Any vehicle driven by a learner MUST display red L plates. In Wales, either red D plates, red L plates, or both, can be used. Plates MUST conform to legal specifications and MUST be clearly visible to others from in front of the vehicle and from behind. Plates should be removed or covered when not being driven by a learner (except on driving school vehicles). [Law MV(DL)R reg 16 & sched 4] The good old Highway Code "Must" vs "Should". "Must" means that it is a legal issue, anything that is "Should" is only advisory |
What happens if you are pulled over for speeding but not given a ticket? This is probably a duplicate question, but I'm very freaked out about what happened. I apologize if it is. I'm a teenager who just got pulled over for the first time (unbeknownst to be, the on-ramp for a local interstate had a speed limit of 45, not 65 as I thought. I was going 71). The cop put on his lights and I pulled over. I gave him my license and he took it to his car and gave it back to me. He then went back to his car and let me go. He didn't give me any papers or anything, but I'm really scared. Did I get a ticket? | In CA, with no papers given to you, there is no ticket. You are required to sign the ticket, which you obviously did not do. | I have not read the news report so cannot comment on the alleged offences and police conduct, but what I can say is that the information to given on arrest may be found at section 28 Police and Criminal Evidence Act 1984 (PACE): (1) Subject to subsection (5) below, where a person is arrested, otherwise than by being informed that he is under arrest, the arrest is not lawful unless the person arrested is informed that he is under arrest as soon as is practicable after his arrest. (2) Where a person is arrested by a constable, subsection (1) above applies regardless of whether the fact of the arrest is obvious. (3) Subject to subsection (5) below, no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as is practicable after, the arrest. (4) Where a person is arrested by a constable, subsection (3) above applies regardless of whether the ground for the arrest is obvious. (5) Nothing in this section is to be taken to require a person to be informed— (a) that he is under arrest; or (b) of the ground for the arrest,if it was not reasonably practicable for him to be so informed by reason of his having escaped from arrest before the information could be given. Note the provisions at subsection (3) do not require anyone else to be told the grounds (reasons) at the time of arrest - including members of the public, protesters, bloggers or the press. Kerb-side debates can seriously or significantly distract the officer from ensuring e.g. public safety or preventing e.g. an escape from custody. Also, depending on what else is going on e.g. say in a dynamic and volatile crowd control or public order situation, the person under arrest does not need to told immediately if it would be impractical to do so. The operative phrase being as soon as is practicable, which is not defined by statute as each case needs to be considered individually according to its own set of circumstances. The relevant case law is DPP v Hawkins [1988] 1 WLR 1166, but the only detailed commentary I can find online is behind the PNLD paywall1. Succinctly, the magistrates initially dismissed the case against Hawkins for assaulting four police officers who kept him under arrest without giving the grounds as required by s.28(3) PACE. The DPP appealed, and the Court of Appeal sent the case back to the magistrates saying, inter alia, although there is an obligation under s.28(3) to tell a prisoner of the reason for his arrest as soon as possible (sic) after his arrest, a constable was also under an obligation to maintain that arrest until it was practicable to do so. 1Or free to law enforcement officers | I do not know whether anyone has ever tried it, but it would not take much for a judge to conclude that the only reasonable interpretation of a speed limit sign is that the speed is to be measured relative to the surface of the road or to any other object that is stationary in that frame of reference. Does there exist provisions in any legal system to fix this legal loophole? Most rules for interpreting legal texts fix "loopholes" of this sort by providing for the consideration only of interpretations that are reasonably likely to have been intended, or that a reasonable person might arrive at. The interpretation that the speed limit could be measured against any frame of reference (or indeed any one other than that of the Earth's surface) is not reasonable. | The exact situation depends on where you are. If you are in Washington state, what you get (but did not realize) is a notice to appear in court. By not paying the fine or showing up to court, you could be subject to RCW 46.64.025, so that the department of licensing is notified. You have 15 days to respond to the notice. We assume that you are a resident, because if you are a non-resident (and not resident of another state with a reciprocal agreement), they would have required you to pay a bond at the time of the ticket (though that isn't possible with automated infraction-detection). When the Dept. of Licensing gets the notice of the unpaid ticket, they may suspend or revoke your license. At this point, you will have received notice that your license was suspended (unless you changed your address and mail isn't forwarded, in which case you have a different problem, that you're supposed to apprise DOL of your current address, and didn't do so). At that point (after they send the letter), you have 15 days to respond. One response is to pay the ticket plus the added fines, or, you can request an administrative review (to appeal the suspension). The point of going to court to plead your case would presumably be to modify the judgment against you, for instance to reduce or eliminate the added fine. You would then need to give a good reason for not being punished: RCW 46.64.025 already has you covered, because the suspension process starts with willfully failing to appear. You would then need to show that your failure to appear was not willful. It does not legally matter whether you are a foreigner or have problems understanding the language. Speeding tickets usually say pretty clearly that you must pay the ticket within a specified time frame, or appear in court, but people don't always read tickets. It is entirely plausible that one's grasp of the language is low enough that there really was a misunderstanding. If you can provide credible evidence that your failure was not willful, by law you would only be liable for the ticket. In other states and countries, the situation could be somewhat or quite different (e.g. Norwegian traffic laws are stricter). In New Mexico, it is more serious to fail to appear. NM Statute 66-8-126 states that "It is a misdemeanor for any person to violate his written promise to appear in court, given to an officer upon issuance of a uniform traffic citation, regardless of the disposition of the charge for which the citation was issued". Your license can/will be suspended (it is not clear whether suspension is automatic), but additionally since failure to appear is a misdemeanor, you can be arrested. Unlike Washington law, there is no willfullness requirement for such a penalty. Given the criminal nature of failure to appear, a traffic attorney would need to suggest an appropriate belated response. | 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. | 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". | "Police" that one would generally encounter in the US are local or state agencies, and the ordinary crimes you mentioned are matters of state law, so they would be reported to local or state police. (There are federal law enforcement agencies, but they only deal with specialized areas of federal law, and you wouldn't ordinarily encounter them in daily life.) On the other hand, immigration is a matter of federal law. The responsibilities of local or state police are governed by state law, and the federal government cannot compel state officers to enforce federal law. A specific state's law could potentially require state and local police to ask about people's immigration status and/or ask the federal government to check on the status of someone they suspect might be illegal. I believe a few red states have enacted, or are considering, such laws, though they usually deal with people stopped by police rather than people filing a report. Some of these laws have been challenged in court, and I am not sure which exact parts of which laws are still being implemented for each of those states. Most states do not have such laws. | If the DA decides to press charges (we don't know) and if he is convicted (looks like a solid case), the problems are not just the sentence itself. There might be a probation period with conditions like drug tests and counseling, with penalties if he misses them. It is legal to discriminate against people based on prior convictions. While California has some restrictions on when employers may ask, they can make it one part of their assessment. |
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