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Can a six year old be charged?
| 13 |
https://law.stackexchange.com/questions/88162/can-a-six-year-old-be-charged
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CC BY-SA 4.0
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<p>CONTEXT: <a href="https://www.cnn.com/2023/01/13/us/newport-news-virginia-shooting-friday/index.html" rel="nofollow noreferrer">https://www.cnn.com/2023/01/13/us/newport-news-virginia-shooting-friday/index.html</a></p>
<p>Assume that the six year old does not understand the concepts of life / death / murder / assault. Can the child be charged with assault or murder? Where are the contours that would preclude charging a child with such a serious crime?</p>
<p>UDPATE: <a href="https://abcnews.go.com/US/prosecutor-charge-6-year-accused-shooting-teacher/story?id=97722288" rel="nofollow noreferrer">https://abcnews.go.com/US/prosecutor-charge-6-year-accused-shooting-teacher/story?id=97722288</a></p>
| 88,162 |
[
{
"answer_id": 88164,
"body": "<p>We cannot stipulate that a 6 year old does not understand the concepts of life / death / murder / assault, but that stipulation might be baked into the laws of the jurisdiction. In Washington, a child under age 8 is <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=9A.04.050\" rel=\"noreferrer\">statutorily incapable</a> of committing a crime. Between 8 and 12, there is a statutory presumption that a child is incapable of committing a crime, but that is rebuttable. The statute says "Children under the age of eight years are incapable of committing crime", and it say nothing about understanding concepts. Florida law used to allow that a 6 year old can commit a crime, then when they arrested a 6 year old, they <a href=\"https://www.flsenate.gov/Session/Bill/2021/626/BillText/c2/HTML\" rel=\"noreferrer\">changed the law</a>. But, the law says</p>\n<blockquote>\n<p>A child younger than 7 years of age may not be taken into custody,\narrested, charged, or adjudicated delinquent for a delinquent act or\nviolation of law based on an act occurring before he or she reaches 7\nyears of age, unless the violation of law is a forcible felony as\ndefined in s. 776.08</p>\n</blockquote>\n<p>so a 6 year old can be arrested (charged, tried, convicted) for murder. Virginia does not appear to have any statute declaring 6 year olds to be categorially incapable of committing a crime. The question of capacity is of course a real consideration – insanity <a href=\"https://law.lis.virginia.gov/vacode/title19.2/chapter16/section19.2-271.6/\" rel=\"noreferrer\">remains a defense</a> against criminal charges.</p>\n",
"score": 18
},
{
"answer_id": 88166,
"body": "<p>If charges are to be filed against any party, the mother would likely face a misdemeanor charge for storing a firearm in a manner that could cause injury to a child (while no child was injured, the law seems to read that actual injury to a child does not have to occur so long as the potential for actual injury to a child existed because of the way the gun was stored. A six year old handling a gun and bringing it into an elementary school where he used it to shoot someone would more than meet that requirement.)</p>\n",
"score": 15
},
{
"answer_id": 88165,
"body": "<blockquote>\n<p>Virginia law does not set a minimum age for criminal defendants. (The\nstate's juvenile detention facilities have a minimum age of 11.)</p>\n</blockquote>\n<p>(<a href=\"https://www.npr.org/2023/01/10/1147954361/virginia-school-shooting-6-year-old-legal-case\" rel=\"noreferrer\">Source</a>)</p>\n",
"score": 8
},
{
"answer_id": 88186,
"body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"england-and-wales-container\">england-and-wales</a></p>\n<blockquote>\n<p>It shall be conclusively presumed that no child under the age of ten years can be guilty of any offence.</p>\n<p>— <a href=\"https://www.legislation.gov.uk/ukpga/Geo5/23-24/12/section/50?view=extent\" rel=\"noreferrer\">Children and Young Persons Act 1933 s.50</a> as amended by the <a href=\"https://www.legislation.gov.uk/ukpga/1963/37/section/16#section-16-1\" rel=\"noreferrer\">Children and Young Persons Act 1963</a></p>\n</blockquote>\n<p>The limit was raised from eight years to ten on 1 February 1964.</p>\n<p><a href=\"/questions/tagged/scotland\" class=\"post-tag\" title=\"show questions tagged 'scotland'\" aria-label=\"show questions tagged 'scotland'\" rel=\"tag\" aria-labelledby=\"scotland-container\">scotland</a></p>\n<blockquote>\n<p>A child under the age of 12 years cannot commit an offence.</p>\n<p>— <a href=\"https://www.legislation.gov.uk/ukpga/1995/46/section/41\" rel=\"noreferrer\">Criminal Procedure (Scotland) Act 1995 s.41</a>, as amended by the <a href=\"https://www.legislation.gov.uk/asp/2019/7/section/1\" rel=\"noreferrer\">Age of Criminal Responsibility (Scotland) Act 2019</a></p>\n</blockquote>\n<p>Scotland's limit came into force in December 2021. Prior to its amendment the limit was eight years.</p>\n<p><a href=\"/questions/tagged/northern-ireland\" class=\"post-tag\" title=\"show questions tagged 'northern-ireland'\" aria-label=\"show questions tagged 'northern-ireland'\" rel=\"tag\" aria-labelledby=\"northern-ireland-container\">northern-ireland</a></p>\n<blockquote>\n<p>It shall be conclusively presumed that no child under the age of 10 can be guilty of an offence.</p>\n<p>— <a href=\"https://www.legislation.gov.uk/nisi/1998/1504/article/3\" rel=\"noreferrer\">Criminal Justice (Children) (Northern Ireland) Order 1998, art.3</a></p>\n</blockquote>\n<p>Northern Ireland's limit came into force on 31 January 1999.</p>\n",
"score": 7
},
{
"answer_id": 88203,
"body": "<p>The term you want is the <a href=\"https://en.wikipedia.org/wiki/Age_of_criminal_responsibility\" rel=\"noreferrer\">age of criminal responsibility</a>. A child below that has the "defense of infancy." There can also be a period where the child is presumed to be incapable of sufficient understanding, but this can be rebutted. Also, children may be tried in juvenile court instead of adult court, which limits punishments; in Virginia, they must be 14 to be tried as an adult.</p>\n<p>It varies from jurisdiction to jurisdiction. Some states do not have a minimum, and in others it ranges from six to ten.</p>\n",
"score": 5
},
{
"answer_id": 88174,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"canada-container\">canada</a></p>\n<p>See <a href=\"https://laws-lois.justice.gc.ca/eng/acts/c-46/FullText.html\" rel=\"nofollow noreferrer\"><em>Criminal Code</em>, s. 13</a>:</p>\n<blockquote>\n<p>No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years.</p>\n</blockquote>\n<p>Even Canada's youth (jeuvenile) offenders regime <a href=\"https://www.justice.gc.ca/eng/cj-jp/yj-jj/tools-outils/back-hist.html\" rel=\"nofollow noreferrer\">applies only to those between who are at least 12 but under 18 years old</a>.</p>\n",
"score": 4
}
] |
[
"united-states",
"murder",
"virginia",
"juvenile-law"
] |
Can the supreme court enforce its rulings on the executive branch?
| 2 |
https://law.stackexchange.com/questions/53739/can-the-supreme-court-enforce-its-rulings-on-the-executive-branch
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CC BY-SA 4.0
|
<p>I've just read <a href="https://slate.com/news-and-politics/2020/07/daca-donald-trump-supreme-court.html" rel="nofollow noreferrer">this article</a> on Slate. In it, they describe how Trump's administration has ignored deadlines imposed by the U.S. District Court after losing a case to SCOTUS (I bolded the most relevant specific example).</p>
<blockquote>
<p>The Trump administration announced on Tuesday that it will continue to defy a federal court order compelling the full restoration of DACA, the Obama-era program that allows 700,000 immigrants to live and work in the United States legally. By doing so, the administration has chosen to flout a decision by the Supreme Court, effectively rejecting the judiciary’s authority to say what the law is.</p>
<p>Donald Trump first attempted to rescind the Deferred Action for Childhood Arrivals program in September 2017, a move that would’ve stripped its beneficiaries of work permits and subjected them to deportation. But his administration continually cut corners, failing to explain the basis for its decision and refusing to consider the impact of DACA repeal on immigrants, their communities, and their employers (including the U.S. Army). This June, the Supreme Court ruled that the administration’s actions were “arbitrary and capricious” under federal law and therefore “set aside” DACA repeal.</p>
<p><strong>To implement that decision, U.S. District Judge Paul Grimm compelled the administration to restore DACA to its pre-repeal condition on July 17.</strong> Grimm’s order required the Department of Homeland Security to let DACA beneficiaries renew their status for two years, accept new applicants, and restore “advance parole,” which permits travel outside the country. <strong>But DHS did not do that. Instead, the agency maintained that it would reject new DACA applicants. It also declined to accept DACA renewals or reinstate advance parole.</strong></p>
</blockquote>
<p>Does SCOTUS and the judicial branch have any way to actually enforce laws on the executive branch? It's one thing to enforce laws on some random citizen, but it seems there is no way for SCOTUS to enforce laws against the branch of government that's responsible for enforcing laws.</p>
| 53,739 |
[
{
"answer_id": 70651,
"body": "<p>The US courts (including the US Supreme Court) do not have an army or even a police force under their direct control, except for a few court bailiffs. Ultimately, if the executive simply defies the courts, the only remedy is a political one.</p>\n<p>A court can order a person held unlawfully to be released from detention, but the jail/prison authorizes might ignore such an order. A court might order DACA applications to be accepted, and if they are not, might rule that deportations or other negative actions are unlawful. A court might hold persons who defy its orders in contempt, and send marshals to jail such persons. But if the executive branch in an organized way defies such orders, there is no judicial power to compel obedience to court orders.</p>\n<p>This is why the judiciary has famously been called the "least dangerous branch" of the government: it cannot actually <strong>do</strong> anything without at least the tacit cooperation of the executive.</p>\n<h3>Cherokee Case (<em>Worcester v. Georgia</em>)</h3>\n<p>There was a reference in the comments above to the the Cherokee Indians case, <a href=\"https://en.wikipedia.org/wiki/Worcester_v._Georgia\" rel=\"nofollow noreferrer\"><em>Worcester v. Georgia</em>, 31 U.S. (6 Pet.) 515 (1832)</a>. In that case the US Supreme Court, in a decision written by Chief Justice Marshall held that the Georgia laws purporting to seize Cherokee lands were invalid as violations of Federal treaties. President Jackson was strongly displeased by this ruling. He was supposed to have said:</p>\n<blockquote>\n<p>John Marshall has made his decision, now let him enforce it.</p>\n</blockquote>\n<p>It appears that President Jackson probably did not say that, at least not publicly. But in fact Jackson did not take any steps to enforce the decision, and the decision was in fact not enforced. The lands were seized, and the Cherokee were forcibly relocated across the infamous trail of tears. This event shows that a court ruling (proper or improper) may have no effect if the executive branch refuses to obey or enforce it.</p>\n",
"score": 4
},
{
"answer_id": 70662,
"body": "<blockquote>\n<p>Does SCOTUS and the judicial branch have any way to actually enforce\nlaws on the executive branch?</p>\n</blockquote>\n<p>Yes, although in practice, it is almost always trial courts and not the U.S. Supreme Court, that enforces orders.</p>\n<p>The most common approach if an executive branch official defies a court order is to <a href=\"https://www.justsecurity.org/38268/holding-federal-government-contempt-court-powers-judges-administration/\" rel=\"nofollow noreferrer\">hold the official in contempt of court</a> subject to incarceration and/or daily fines until the official complies or resigns. Typically, the lowest level official with the power to comply with the order is targeted for contempt of court charges.</p>\n<p>This is not a vanishingly rare procedure and was done, for example, in <a href=\"https://www.npr.org/2021/10/13/1045696978/judge-holds-washington-d-c-jail-officials-in-contempt-in-a-jan-6-riot-case\" rel=\"nofollow noreferrer\">this case in October of 2021</a>: "The judge ordered Quincy Booth, the director of the city's Department of Corrections, and Wanda Patten, the warden of the DC Jail, to be held in contempt of court" (although neither incarceration nor a fine was imposed in that particular case). Also usually the government official can end to ongoing punishment by resigning from office and thereby depriving the official from the authority to carry out the order. This said, it <a href=\"https://This%20said,%20it%20very%20rarely%20reaches%20the%20point%20where%20a%20government%20official%20is%20personally%20punished.\" rel=\"nofollow noreferrer\">very rarely reaches the point</a> where a government official is personally punished in any meaningful way for disobeying the court order:</p>\n<blockquote>\n<p>If any corporate entity disobeys a judicial order, the corporate\nofficer responsible for the entity’s disobedience can be sanctioned\nfor contempt. This would seem to imply that the federal official\nresponsible for an agency’s disobedience can be sanctioned, including\nby imprisonment. The Justice Department itself appears to accept this\nview. To be sure, it hasn’t always done so. Back in the 1950s, DOJ\ncontended that individual federal officials are absolutely immune to\ncontempt sanctions for official acts, similar to their absolute\nimmunity to common-law tort damages. But in more recent briefing in\n1997 and 2008, DOJ distanced itself from this blanket immunity claim.</p>\n<p>That said, there is another line of argument — less categorical and\nmore prudential — for the government to fall back on: that a court\nshould not sanction a person who makes all reasonable efforts to\ncomply. The concept of reasonable effort must be understood in light\nof the nature of the noncompliant organization and each official’s\nposition within it. Recall that compliance problems are most common\nwhen the judge’s order tells the agency to do something costly or\ncomplex. That kind of order implicates the agency’s resource\nlimitations, its competing legal mandates and priorities, and the\nquestion of what kind of technical and scientific information it needs\nto acquire to formulate its action correctly. A judge assessing how\nthe agency handles these issues ends up having to make complicated\njudgments about agency management. Identifying an official as\nblameworthy for noncompliance entails an especially fraught judgment\nof this variety: the judge must figure out which official(s) should’ve\nacted, and what the official(s) should’ve done. To be sure,\nhigher-level agency officials — up to and including the agency head —\nare formally responsible for whatever happens below them, but before a\njudge could imprison an agency head or other manager for\nnoncompliance, she would probably need to find that actions promoting\ncompliance were reasonably within that manager’s grasp and that the\nmanager failed to take them.</p>\n<p>In light of these prudential concerns, the judiciary has shown great\nreluctance to imprison officials. Imprisonment has occurred only\ntwice, never for more than a few hours, and in both instances, the\nbiggest losers proved to be the imprisoning judges, one of whom was\nthrown off the case for bias, while the other recused himself to avoid\na similar fate. Cases coming near to imprisonment are almost equally\nrare. In the most spectacular of these — and the only federal agency\ncontempt case of any kind to get near the Supreme Court — the Commerce\nSecretary in 1951 engaged in unusually clear disobedience when told to\nreturn the shares in a bailed-out company to their private owners.\nThe D.C. Circuit ordered the Secretary jailed, only to have the\nSupreme Court stay the sanction at the eleventh hour — and grant\ncertiorari in the case despite its previous refusal to do so. Justice\nRobert Jackson wrote separately to say the Court should’ve demanded\nimmediate adversary briefing on the stay rather than simply grant it\nindefinitely — a move that, in his view, rewarded the government for\nits disobedience and signaled that the Justices had no stomach to use\nforce against official lawbreaking. Soon after, the plaintiffs\nsettled for a 50% discount, and the case basically disappeared from\nmemory, setting no precedent. Doctrinally, the door remains open to\nimprisoning federal officials, yet judges’ prudential reluctance has\nproven extremely strong.</p>\n</blockquote>\n<p>This is generally carried out by the U.S. Marshal's office, which while located in the U.S. Justice Department, which overall is in the President's chain of command, but directly reports as a practical matter mostly to the orders of the judges of the federal district court to which the marshal is assigned.</p>\n",
"score": 2
},
{
"answer_id": 81862,
"body": "<p>I believe that the SCOTUS can find the agency(s) in contempt of the court and have them jailed pending a hearing or trial as appropriate and that the individuals accountable start with the lowest member with power of compliance all the way up the chain to the president and/or the speaker of the House. Even greater power is available to the SCOTUS if they choose to publicly declare regulations or statutes as being unconstitutional and are therefore unlawful ie; advising the public that such laws are not constitutionally legal, publicly state the actions as null and void and are unenforceable and that citizens do not need to comply. Suppose the SCOTUS establishes an office of public information and legal Compliance. Neither the Executive or Legislative Branches could withstand the publicizing of their refusal to comply.</p>\n",
"score": 0
}
] |
[
"united-states",
"judiciary",
"separation-of-powers",
"enforcing-judgment"
] |
How did Dominion justify the 1.6 billion value they're suing Fox News for?
| 0 |
https://law.stackexchange.com/questions/90238/how-did-dominion-justify-the-1-6-billion-value-theyre-suing-fox-news-for
|
CC BY-SA 4.0
|
<p>Dominion is suing for 1.6 billion in their defamation case against Fox News. Google tells me they make an annual income of less then 100 million and their entire company is only valued at 80 million. To be frank, regardless of whether or not Fox is found liable of defamation it seems hard to believe that the alleged defamation from Fox News alone resulted in losses equal to twenty times Dominion's current net worth.</p>
<p>So I'm wondering if the filing specifies how Dominion came up with such a high number, and what their legal justification for it is. Do these sorts of lawsuit just always toss out some value known to be exaggerated expecting it to be lowered by the court even if they win, or - presuming they did win their lawsuit - would Dominion have reasonable expectation of being awarded the full 1.6 billion claim?</p>
| 90,238 |
[
{
"answer_id": 90251,
"body": "<p>The complaint is <a href=\"https://www.documentcloud.org/documents/20527880-dominion-v-fox-news-complaint\" rel=\"nofollow noreferrer\">available online</a>. In fact, it asks for more than 1.6 billion, because it doesn't suggest any amounts for certain categories. The amounts that are specified include things such as the cost of providing security in the wake of death threats they received. Starting on page 136, they ask for</p>\n<ol>\n<li><p>General compensatory damages in an amount to be determined at trial,</p>\n</li>\n<li><p>Damages of not less than $600,000,000 for lost profits, not less than $1,000,000,000 for lost enterprise value, not less than $600,000 for security expenses, and not less than $700,000 for expenses to fight the disinformation campaign waged against them,</p>\n</li>\n<li><p>Punitive damages in an amount to be determined at trial,</p>\n</li>\n<li><p>Pre- and post-judgment interest, and</p>\n</li>\n<li><p>Expenses and attorneys' fees.</p>\n</li>\n</ol>\n<p>Justification for the amounts in the second item is found in the complaint.</p>\n",
"score": 5
}
] |
[
"united-states",
"civil-law",
"damages"
] |
Trademarking Public Domain Material
| 2 |
https://law.stackexchange.com/questions/73699/trademarking-public-domain-material
|
CC BY-SA 4.0
|
<p>I have a question about a public domain self-help book that has lapsed copyrights in the USA and has been in the public domain for a few decades.</p>
<p>The organization is still in operation and they trademarked the name of the book and its abbreviation.</p>
<p>I'm the author of one mobile app of this self-help book in which the entire book is published along with the book title and its abbreviation in many places. The organization has now asked me to remove the name and its abbreviation from my app.</p>
<p>My question is, is it even possible to trademark the name of a public domain book?</p>
| 73,699 |
[
{
"answer_id": 73702,
"body": "<blockquote>\n<p>is it even possible to trademark the name of a public domain book?</p>\n</blockquote>\n<p>Yes.</p>\n",
"score": 2
}
] |
[
"copyright",
"trademark",
"public-domain"
] |
How can I prove I do not own real-estate property in New Jersey?
| 3 |
https://law.stackexchange.com/questions/90236/how-can-i-prove-i-do-not-own-real-estate-property-in-new-jersey
|
CC BY-SA 4.0
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<p>For purposes of tax exemption in another country, I need to prove that I do not own a house or an apartment in my current state of residence, which is New Jersey. How can I do that?</p>
<p>For example, is there a way to search my identity (SSN) in property records and get an official document verifying there are no matching results?</p>
| 90,236 |
[
{
"answer_id": 90242,
"body": "<blockquote>\n<p>For example, is there a way to search my identity (SSN) in property\nrecords and get an official document verifying there are no matching\nresults?</p>\n</blockquote>\n<p>No. You can search by name on a county by county basis, however.</p>\n<p>A certified search result from your county of residence to corroborate you affidavit or declaration and attached as an exhibit to the affidavit or declaration might be worth including (even if it is something of a matter of form over substance). You might also considering attaching a copy of your lease to the place where you reside in New Jersey if you have one. Both of these documents would only corroborate that you don't own what you claim to be your residential address, rather than proving by themselves that you own no real estate in New Jersey. But the authorities you are seeking to prove something to will inevitably have to take you at your word regarding what your residential address is anyway.</p>\n<blockquote>\n<p>For purposes of tax exemption in another country, I need to prove that\nI do not own a house or an apartment in my current state of residence,\nwhich is New Jersey. How can I do that?</p>\n</blockquote>\n<p>Usually, you would do this by executing an affidavit or declaration under the penalty of perjury to that effect.</p>\n",
"score": 5
}
] |
[
"real-estate",
"new-jersey"
] |
Can / How would a lease (contract) require an injured visitor to hold the renter's insurance liable?
| 2 |
https://law.stackexchange.com/questions/90234/can-how-would-a-lease-contract-require-an-injured-visitor-to-hold-the-renter
|
CC BY-SA 4.0
|
<p>Assume Jane visits Bob (Renter). Mike is the Florida landlord.</p>
<p>Jane slips and falls on the Mike's rental property, Can Mike's attorney construct lease so that Bob is required to have some sort of insurance so that his visitor's injuries are covered by Bob's insurance?</p>
<p>Is there nomenclature for said practice?</p>
| 90,234 |
[
{
"answer_id": 90244,
"body": "<p>There are multiple separate issues presented by this question.</p>\n<p><strong>Allocating Responsibility In The Lease</strong></p>\n<p>One is that the lease between Mike and Bob can attempt to allocate all responsibility for matters that could give rise to personal injuries at the rental property to Bob.</p>\n<p>The lease could also require that Bob indemnify Mike for any claims that are brought against Mike related to the rental property. An indemnification clause basically makes Bob the insurer of Mike with regard to these claims.</p>\n<p>Indemnification requirements are routine in leases.</p>\n<p>Ultimately, it isn't clear that delegating responsibility for claim's on Mike's rental property to Bob could actually relieve Mike from legal liability to a third-party for these claims. Realistically, it probably couldn't because normally two people can't contract to limit the liability of one or all of them to a third-party who didn't agree to that. So, Mike would have residual liability for any claim that Bob couldn't pay.</p>\n<p>So, it would make sense for there to be liability insurance in place to protect Mike directly as well, in addition to any insurance that Bob has in place.</p>\n<p><strong>Requiring Bob To Have Insurance In Force</strong></p>\n<p>The other issue is that the lease could require Bob to have insurance of particular kinds and amounts in place as a condition of the lease, to provide proof of insurance, and to set up the insurance so that Mike receives notice if it is canceled. Failure to do so would be a default under the lease.</p>\n<p>Requirements in a lease that a tenant have certain kinds of insurance in force are routine in leases.</p>\n<p>This said, while such indemnification requirements are common, it isn't obvious that Bob could obtain an insurance policy that would fully cover Bob's indemnification liability in this context as a matter of commercial reality, even though it would be legal to write such an insurance policy.</p>\n<p>It would generally be easier for Mike to obtain liability insurance for the rental property on his own (which his mortgage, if he has one, almost certainly requires him to have in place) and to have the lease provide that Bob is required to pay for Mike's insurance policy on the rental property.</p>\n<p>In certain kinds of leases, such as commercial "triple net" leases, it is routine to have the tenant pay the landlord's expenses related to the property rented. The indemnification requirement would also give Bob a strong incentive to keep his payments of the insurance policy protecting Mike current.</p>\n<p>Alternatively, Mike could pay for his own insurance and increase the base rent by a like amount, which is economically equivalent to having Bob pay for Mike's insurance, and is almost economically equivalent to requiring Bob to have an insurance policy that covers Bob's indemnification liability to Mike.</p>\n<p>If there was an insurance policy in place for Mike that is merely paid for by Bob, then the indemnification obligation of Bob would end up being limited to covering Mike's deductible for each claim under Mike's insurance policy, which would be a manageable uninsured risk for Bob to be responsible for paying.</p>\n<p>If Mike were really worried about Bob's ability to pay the indemnification liability for the deductible under Mike's liability insurance policy, Mike could increase the amount of Bob's security deposit to make sure that Bob would have the ability to pay it out of the security deposit if from no other source.</p>\n<p><strong>Insurance Companies Almost Never Have Direct Liability For Third-Party Claims</strong></p>\n<p>It would almost never be the case that the liability for injuries on the property would be placed directly upon Bob's insurance company, or that Bob would be required to make a claim against his insurance company if he was sued. Liability attaches to people who own and do things. Insurance exists to help people who have liability or potential liability deal with that fact. Insurance companies are almost never (except in the highly specific case where an insured who has liability to someone for acts taken during life dies and leaves an insolvent and/or closed probate estate behind) a proper party to sue for liability for a covered liability.</p>\n",
"score": 2
}
] |
[
"liability",
"florida",
"insurance",
"lease",
"indemnity"
] |
If someone is appointed to a committee, is that member allowed to vote in the same meeting?
| 6 |
https://law.stackexchange.com/questions/90240/if-someone-is-appointed-to-a-committee-is-that-member-allowed-to-vote-in-the-sa
|
CC BY-SA 4.0
|
<p>If a committee appoints a member to itself, is that newly appointed member allowed to vote in the same meeting he/she is elected or must the meeting be adjourned before that right is granted?</p>
| 90,240 |
[
{
"answer_id": 90241,
"body": "<p>First, there are many versions of Robert's Rules of Order: <a href=\"https://www.gutenberg.org/cache/epub/9097/pg9097-images.html#art06\" rel=\"noreferrer\">here</a> is an early free version. §26(c) suggests a procedure for creation of a committee to draft resolutions, and §53 contemplates other (standing) committees. Nothing therein suggests that there are restrictions on the right of a member to vote, in terms of a mandatory adjournment. However, RRO is not a Universal Organizational Bylaws, so in order to have any force, it must be adopted as part of the bylaws (in whole or part). It especially cannot dictate who is eligible to vote – that is a detail that has to be in the organization's bylaws.</p>\n",
"score": 9
}
] |
[
"roberts-rules-of-order"
] |
What happens legally if a majority of both houses of Congress disappear?
| -4 |
https://law.stackexchange.com/questions/90235/what-happens-legally-if-a-majority-of-both-houses-of-congress-disappear
|
CC BY-SA 4.0
|
<p>In the mass-dissapearance scenario from <a href="https://law.stackexchange.com/questions/90213/">my previous question</a>, what happens legally if both houses of Congress are in session and a majority of both houses disappear? Is Congress unable to do business because there is no longer a quorum? Or does the quorum become half of the remaining members?</p>
| 90,235 |
[
{
"answer_id": 90239,
"body": "<p>Likely nothing. Both houses cannot enact legislation without meeting a quorum, which is a more the majority number of members present, so any voting would be suspended pending seats being filled by emergency election or appointment.</p>\n<p>Typically, in the U.S., when a Rep seat is unexpectedly vacated emergency elections are called, while the Senate would have vacancies filled by the state's governors until the end of the term as determined by the seat's election schedule.</p>\n<p>Given that Representative terms are 2 years in duration, Congress has staffers who are there specifically to help freshman Congress members get up to speed on the nuance of Congress, as well as staffers.</p>\n<p>If you want to look into a series that does look directly at a sudden loss of Elected Federal officials in the United States, the tv show "Designated Survivor" has this as part of the central plot, with the main character being the Secretary of Housing and Urban Development who was named the designated survivor for the State of the Union (during which, the capitol building was bombed in a terrorist attack) and finds himself suddenly the President of the United States. One early episode deals with the plans for the reconstitution of Congress and another episode deals with the Reconstitution of SCOTUS. While I'm not sure if it's an actual practice, at least one person from Congress is revealed to be the Congressional equivalent of a designated survivor, but I'm not aware if the role exists (Since leadership is voted on in each new session and sessions are two years.).</p>\n<p>It's not always the most accurate, and at times tends to be a bit overly naive about U.S. politics but does deal with the sudden emergency decently.</p>\n",
"score": 1
}
] |
[
"united-states",
"congress"
] |
Do you need to give the source when making a "Privatkopie" (Germany)?
| 0 |
https://law.stackexchange.com/questions/90232/do-you-need-to-give-the-source-when-making-a-privatkopie-germany
|
CC BY-SA 4.0
|
<p>In Germany, when making a Privatkopie, for example by taking notes in digital form, do you need to include from which book the notes were taken, the author's name, ... if you are only going to privately use your digital notes?</p>
| 90,232 |
[
{
"answer_id": 90237,
"body": "<p><strong>No</strong>, § 63 (1) 1 UrhG, the obligation to attribute the source, concerns only exceptions listed there.\nThe applicable exception of § 53 UrhG, copies for private use, is not listed in § 63.</p>\n",
"score": 3
}
] |
[
"copyright",
"licensing",
"germany"
] |
How did the right for peers to be tried by peers end in 1948?
| 2 |
https://law.stackexchange.com/questions/90195/how-did-the-right-for-peers-to-be-tried-by-peers-end-in-1948
|
CC BY-SA 4.0
|
<p>In another question's comments is claimed that the right for aristocratic peers to be tried by their own kind had ended in 1948. How and why did it end then?</p>
| 90,195 |
[
{
"answer_id": 90204,
"body": "<p>The privilege of peerage in criminal proceedings was abolished by s. 30 of the <a href=\"https://www.legislation.gov.uk/ukpga/Geo6/11-12/58/enacted\" rel=\"nofollow noreferrer\">Criminal Justice Act 1948</a>.</p>\n<p>As for <em>why</em>, see Colin Rhys Lovell, "<a href=\"https://doi.org/10.2307/1841088\" rel=\"nofollow noreferrer\">The Trial of Peers in Great Britain</a>", The American Historical Review, Vol. 55, No. 1 (Oct., 1949). There were "grave disadvantages in the procedure to the accused peer, who could not waive it." The accused could not challenge the jurors or appeal their decisions. It was ultimately decided that the procedure had "outlived its usefulness."</p>\n<p>See also some justification from <a href=\"https://hansard.parliament.uk/lords/1948-04-27/debates/b54ee32a-e679-44ff-b4ad-bfb4036b0f6d/CriminalJusticeBill\" rel=\"nofollow noreferrer\">Hansard</a>:</p>\n<blockquote>\n<p>[...a peer] cannot say, "Waive all this, and treat me like anybody else." The existing law is that he must be tried by this grotesque and antiquated arrangement. It is a Court, but it is a very ancient Court, and it is high time that provisions were made that a Peer who is charged with a felony should be treated in the same way as anybody else.</p>\n</blockquote>\n",
"score": 4
},
{
"answer_id": 90231,
"body": "<p>From the <em>Hansard</em> reference given above:</p>\n<blockquote>\n<p>I hope that before this Bill is presented for the Royal Assent it may include a clause which will get rid, once and for all, of what I regard as a preposterous anachronism which attaches to your Lordships' House.\nThe House is no doubt aware that if a Peer of the Realm is charged with committing a felony, he has, at the present time, to be tried in a special court called the Court of the Lord High Steward, assembled, I suppose, in existing circumstances, in the corridor outside—certainly there would be no room for it here. On the last occasion when it assembled, not so very long ago, in 1936, it was attended by 200 to 300 peers, all wearing their robes. It consists, if I may say so with respect to your Lordships' House, of a mob of persons, presided over by the Lord Chancellor under a special Commission, carrying a white wand, which he solemnly breaks across his knee at the end of the proceedings to show that the Court is for the time being discharged. The Peer has to face this unpleasant experience. He may be innocent, but he cannot say, "Waive all this, and treat me like anybody else." The existing law is that he must be tried by this grotesque and antiquated arrangement. It is a Court, but it is a very ancient Court, and it is high time that provisions were made that a Peer who is charged with a felony should Toggle showing location ofColumn 404be treated in the same way as anybody else.</p>\n<p>In case any noble Lords should be contemplating a breach of the criminal law (which I do not for a moment assume), I would like to point out for your Lordships' information that it would be very useful to learn accurately the difference between a misdemeanour and a felony. If it is a misdemeanour, you go to the Old Bailey and stand in the dock like anybody else. Obtaining money by false pretences is a misdemeanour. Stealing, however, is a felony. The line between those two is sometimes difficult to draw. Take the best legal advice before you commit yourselves to an undesirable form of crime! But there are other absurdities quite as ridiculous. According to the books the rule does not apply to an Irish Peer who is a Member of the House of Commons. To other Irish Peers who are Members of your Lordships' House it does apply. To put it in a more personal form—although each case I take is, of course, the very wildest hypothesis—if Lord Winterton were to commit a felony, he would go to the Central Criminal Court, but if the Lord Chairman of Committees, the Earl of Drogheda, equally improbably, were to be "caught out" in such a case, he would appear before the Court of the Lord High Steward. And still more extraordinary! I see opposite me the Bench of Bishops, and perhaps I may be allowed to mention this, as possibly it will be a piece of information: the Spiritual Peers of this House are not regarded in law as noble by blood. The consequence is that, in the inconceivable case of any member of that Order committing a crime, either felony or misdemeanour, and I will add, being found out, he would be tried just like any common man.</p>\n<p>On the other hand, however—and this is most extraordinary—it is a tradition and right of the Spiritual Peers to attend in this crowd of persons drawn from this House to try a Peer, but with this refinement: that while they attend and take part, they ask leave to withdraw before sentence is pronounced. Is it not high time that we took advantage of this Bill and got rid of all that? If I am able to carry out my present purpose I shall, on my own account—it is not a matter on which I have been able to consult my fellows—put down as a new clause an Toggle showing location ofColumn 405Amendment to that effect, and I hope it may receive special consideration from the noble and learned Viscount the Lord Chancellor.</p>\n</blockquote>\n",
"score": 0
}
] |
[
"england-and-wales",
"magna-carta",
"parliament"
] |
What is "probity"?
| 4 |
https://law.stackexchange.com/questions/90199/what-is-probity
|
CC BY-SA 4.0
|
<p>I have found a number of definitions but none are satisfyingly congruent with the usages that I have seen in legal contexts including several times on here, which generally use it to describe a quality of evidence, even the definitions which I have found through search engines in specifically legal dictionaries.</p>
| 90,199 |
[
{
"answer_id": 90201,
"body": "<p>The definitions you found online and in legal dictionaries are likely correct. I suspect you found something such as:</p>\n<blockquote>\n<p>The quality or condition of having strong moral principles; integrity, good character; honesty, decency. (Oxford English Dictionary)</p>\n</blockquote>\n<p>This is the definition corresponding to the most typical (what many would call the "correct") use of the word. It is often used in phrases like "<a href=\"https://www.canlii.org/en/#search/text=probity\" rel=\"noreferrer\">probity and fair dealing</a>."</p>\n<p>If you have seen other uses, in relation to the quality of evidence, this is an occasional <em>misuse</em>. See Footnote 54 in Matthew Gourlay, et al., <a href=\"https://emond.ca/Emond/media/Sample-chapters/MCE_01_2nd.pdf\" rel=\"noreferrer\"><em>Modern Criminal Evidence</em>, Chapter 1</a>:</p>\n<blockquote>\n<p>There is an unfortunate trend in some recent judicial decisions of using the term "probity" as a synonym for probative value: see e.g. <em>R v Durham Regional Crime Stoppers Inc</em>, 2017 SCC 45, [2017] 2 SCR 157 at paras 43-47. "Probity" refers to moral uprightness and is not the noun form of the adjective "probative." If a new coinage is required, "probativity" would be preferable.</p>\n</blockquote>\n",
"score": 16
}
] |
[
"legal-terms"
] |
Grounds to discharge the accused in CrPc
| 0 |
https://law.stackexchange.com/questions/90215/grounds-to-discharge-the-accused-in-crpc
|
CC BY-SA 4.0
|
<p>The Code of Criminal Procedure at <a href="https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&sectionId=22622&sectionno=227&orderno=256" rel="nofollow noreferrer">CrPc 227</a> states:</p>
<blockquote>
<p>Discharge.</p>
<p>If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.</p>
</blockquote>
<p>what makes a charge groundless ?</p>
| 90,215 |
[
{
"answer_id": 90220,
"body": "<p>It's when there is insufficient <a href=\"https://en.wikipedia.org/wiki/Prima_facie\" rel=\"nofollow noreferrer\"><em>prima facie</em></a> evidence to support the allegation against the accused.</p>\n<p>Or, in other words:</p>\n<blockquote>\n<p>the evidence presented to the court is so weak that it makes a conviction impossible.</p>\n<p><a href=\"https://www.google.co.uk/amp/s/blog.ipleaders.in/section-227-of-crpc/%3famp=1\" rel=\"nofollow noreferrer\"><em>Source</em></a> (<em>and further reading, relevant case law</em>)</p>\n</blockquote>\n",
"score": 1
}
] |
[
"criminal-law",
"india",
"rules-of-court"
] |
Can Oracle sue JSON users?
| 1 |
https://law.stackexchange.com/questions/90208/can-oracle-sue-json-users
|
CC BY-SA 4.0
|
<p>As we know,</p>
<ul>
<li><p>Oracle owns the Java and JavaScript trademarks from its purchase of Sun.</p>
</li>
<li><p>Java and JavaScript are 2 completely unrelated programming languages.</p>
</li>
<li><p>JSON is the abbreviation of "JavaScript Object Notation", and is a popular format for encoding structured data.</p>
</li>
</ul>
<p>Can Oracle sue JSON users?</p>
<ul>
<li>user of parsing softwares,</li>
<li>and developers of parsers and encoders, and</li>
<li>ECMA, who publishes the <a href="https://www.ecma-international.org/publications-and-standards/standards/ecma-404/" rel="nofollow noreferrer">JSON specification</a></li>
</ul>
<p>What can Oracle possibly win (and JSON users possibly lose) in such litigation?</p>
| 90,208 |
[
{
"answer_id": 90217,
"body": "<p>I don't think so. While JSON <em>stands for</em> "JavaScript Object Notation", it doesn't <em>say</em> that. So the term "JSON" isn't infringing on a trademark for "JavaScript".</p>\n<p>To sue somebody because of an alleged trademark infringement, one needs to prove that the offender abused a trade name of the suing company in a way to make the public believe the offending company was related to the suing company. Nobody is even trying that by just using a file format. The file structure itself was developed as an open standard, so they can't claim any rights on that.</p>\n<p>I have not heard about a company claiming rights in file structures recently, because the data is considered the property of the user, not of the company that wrote the program it was created with. And users are often no longer accepting file formats that can only be read by a specific (expensive) application from a particular company. They want to be flexible to change their vendor and keep the data.</p>\n",
"score": 3
}
] |
[
"trademark"
] |
Is a Request to Stay Case Pending Appeal Considered an Equitable Remedy in the USA?
| -1 |
https://law.stackexchange.com/questions/90057/is-a-request-to-stay-case-pending-appeal-considered-an-equitable-remedy-in-the-u
|
CC BY-SA 4.0
|
<p>A request for injunctive relief is an equitable remedy and courts have broad discretion in granting or denying it.</p>
<p>Is a request to stay case pending appeal also considered an equitable remedy?</p>
| 90,057 |
[
{
"answer_id": 90058,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>Yes: "The remedy sought by the appellant [a stay pending appeal] is an equitable one. To be accorded such equitable relief, the applicant must come to the court with clean hands." <em>National Bank Financial Ltd. v. Barthe Estate</em>, <a href=\"https://canlii.ca/t/g1sbx#par26\" rel=\"nofollow noreferrer\">2013 NSCA 127, at para 26</a>.</p>\n<p>In Canada, courts of appeal are statutory courts so all their power derives from statute, but some of those powers (such as the power to grant a stay pending appeal) are still understood to be equitable powers.</p>\n",
"score": 1
}
] |
[
"united-states",
"new-jersey",
"appeal",
"equity",
"injunctions"
] |
Who is supposed to teach the law to the citizens?
| 119 |
https://law.stackexchange.com/questions/48515/who-is-supposed-to-teach-the-law-to-the-citizens
|
CC BY-SA 4.0
|
<p>As I understand, in general, <a href="https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat" rel="noreferrer">not knowing the law does not excuse violating it</a>.</p>
<p>That should apply to most if not all jurisdictions in most cases with very few <a href="https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat#Exceptions" rel="noreferrer">exceptions</a>.</p>
<p>From personal experience, never in my life has school, family or anyone ever actually taught me any laws or showed me where I could consult them myself, and I have already reached legal age a couple of years ago.</p>
<p>So my question is, who, by law or morality, is supposed to teach citizens the law so that they can be aware and abide by it?</p>
<p>Answers can be generalized to include most jurisdictions or be specific.</p>
| 48,515 |
[
{
"answer_id": 48524,
"body": "<p>The answer from @user6726 is a good one. But, I'd like to add to it by pointing out that the body of law applicable to an individual is usually much, much smaller than the entire body of law. I'm a lawyer who has been in private practice for almost 25 years with an extremely diverse practice compared to the average lawyer, and I've never even looked at perhaps 80% of the laws on the books in the states where I practice, and even less elsewhere.</p>\n<p>By statutory and regulatory volume, the vast majority of statutory and regulatory law is applicable to either the internal operations of government, or to the way in which regulated industries and business transactions are conducted. And, it is customary for people in situations in all of those situations to have professional intermediaries such as lawyers, realtors, brokers, architects, general contractors, accountants, tax preparers, and consultants to assist them in complying.</p>\n<p>Some of the more technical areas encountered by average people (e.g. traffic laws) are areas in which training is mandated before you can get a driver's license.</p>\n<p>Many other areas of occupational and industry regulations are similarly distinguished by having a licensing requirement to make sure that everyone involved knows that a new body of law applies to them. You only need to know about nuclear power plant regulations, for example, if you build a nuclear power plant and will soon learn if you try to do so that you need a license to do that.</p>\n<p>Even within areas of law that have broad applicability like tax law and criminal law, a lot of the law has only narrow application. For example, most people don't need to know the rules for determining the taxable income of a life insurance company, or the criminal laws pertaining to people who have security clearances to review top secret national security information.</p>\n<p>The body of "private law" governing the rights of individuals vis-a-vis other private individuals, and of criminal law that an ordinary person is in a position to violate, is very modest. And much of the law in this area is devoted to determining how serious an offense is and what the penalty should be, and what law enforcement is allowed to do in order to investigate these violations, and not to what is legal and illegal in some regard.</p>\n<p>For example, intentionally, recklessly or negligently offensively touching or causing injury to someone else's property or person, is almost always either a crime and/or a civil wrong called a tort for which you can be sued. Some versions of this conduct are more serious (e.g. rape or murder), some are less serious (e.g. pinching someone on Saint Patrick's Day for not wearing green). But the overriding concept, once you strip away the details, is pretty simple.</p>\n<p>Likewise, damaging or taking property that isn't yours, intentionally, recklessly or negligently, is almost always either a crime and/or a civil wrong called a tort for which you can be sued.</p>\n<p>Add the notion that you have to honor your promises in most circumstances and shouldn't lie or deceive in most circumstances, you have to follow authoritative signs and directions from legal authorities, and you have to figure out if you owe income taxes or not each year with professional help, if necessary, and you are well on your way to knowing what you need to know to obey the law.</p>\n<p>Even within "private law" there are lots of areas like patent law, product liability law, and oil and gas property rights, that the average person doesn't need to know. Knowing that if you are injured by someone else you should think about talking to a lawyer is usually good enough.</p>\n<p>These bare bones may prevent you from doing things that are legal close to the boundaries of what is allowed sometimes, but having standards higher than the bare legal minimum is rarely a deep impediment to living a decent life. It should also be enough to let you have some intuition that you are in a gray area and need to confer if you aren't sure if something is illegal or not.</p>\n<p>There are more complicated areas that many average individuals do have to deal with to some extent. The law governing privacy, copyright and speech comes to mind, for example. But, you can go a very long way on some very basic principles. Most law that applies to ordinary people flows from simple moral intuition.</p>\n",
"score": 71
},
{
"answer_id": 48518,
"body": "<p>This is a difficult question in the philosophy of law, which in some views of what \"law\" is, is outside the scope of law (that's the view that \"the law is whatever is enacted by the government\" perspective). In what is generally known as the natural law perspective, \"what the law is\" flows from general moral principles, so you would know that murder is wrong, and therefore that murder is against the law. \"Society\" generally teaches you the difference between right and wrong, and the specific details then devolve into largely irrelevant specifics (family? church? school?). The short article <a href=\"http://www.kathrynpieplow.pwrfaculty.org/wp-content/uploads/2011/01/Fuller.pdf\" rel=\"noreferrer\">\"Eight ways to fail to make law\"</a> is a classical example of this perspective.</p>\n\n<p>There are two problems with this perspective (which I adopt). One is that there are laws that you could never figure out existed in a million years based only on moral principles – often the natural law response is \"there should be no such law\". A second related problem is that there are <em>specifics</em> of laws which are not deducible from the natural law perspective. For example, \"copyright\" is an instance of the general concept \"property\", so you should know that taking someone's intellectual property without permission is wrong. But you don't know whether that property right is perpetual, or does it expire (is the hammer still protected by patent?), and if so, when. You do not know if you are allowed to quote a demagogue's political rhetoric as evidence that the individual is a dangerous crank, since that might be copyright violation and would require his permission to copy (unless you know about \"fair use\" or similar concepts).</p>\n\n<p>By law, nobody is required to teach you what the law is, in fact it is impossible for you to know with certainty what the law is. Society \"ought\" to teach you what the law is, but is your 7th grade teacher really competent to teach you the theory of torts? Law SE is one example of how a person could learn what the law is, and honestly, I think it is one of the best ways to learn what the law is (excluding the option of going to law school, or reading everything you can find about the law). </p>\n",
"score": 28
},
{
"answer_id": 48553,
"body": "<blockquote>\n <p>Who is supposed to teach the law to the citizens?</p>\n</blockquote>\n\n<p>Each individual is responsible for educating himself or herself on the law. That is one condition the individual needs to meet for living in, and preserving, a civilized society. But it is a crucial prerequisite for a government to ensure that its laws are accessible, intelligible, and applied consistently. If the government does not meet that obligation, the individual cannot be reasonably expected to know the laws he is supposed to follow.</p>\n\n<p>The principle you mention (\"<em>not knowing the law does not excuse violating it</em>\") impliedly invalidates a person's pretext of the sort \"<em>But that's what he/they/school/lawyer taught me what the law says</em>\" when that person gets busted for violating the law. To preempt such risk of misinformation, the individual first needs to develop certain level of literacy and then remove the man-in-the-middle. If at that point the law remains confusing or convoluted, it means that the lawmaker did a poor job and/or that the judiciary is failing its duty of equal application of the laws.</p>\n\n<p>People often retain a lawyer as a means to delegate --whether consciously or not-- their duty of self-teaching of the law. But, besides being costly, that decision is ineffective for purposes of learning because in practice the lawyer does not really teach law. Most often a lawyer gives <em>some</em> directions on how to proceed under the narrow circumstances at issue, yet the client remains mostly ignorant of the laws or legal principles involved.</p>\n\n<p>The superficiality of \"knowledge\" transferred in client-attorney interactions rather resembles a client layman acting henceforth under superstitions based per the attorney's directions/advice. Moreover, the layman remains vulnerable to the middleman's greed and possibly the consequences of <em>ineffective assistance by counsel</em>.</p>\n\n<p>Lastly, since the administration justice is monopolized by the regime (although arguably for good reasons), it is in the individual's best interest to be able to make sense [on his own] of the laws and not allow a <em>for-profit</em> guild to also control his understanding thereof.</p>\n",
"score": 14
},
{
"answer_id": 48574,
"body": "<p>Those exceptions exist for England and Wales. <a href=\"https://www.amazon.co.uk/Simester-Sullivans-Criminal-Law-Doctrine/dp/1509926682/ref=dp_ob_title_bk\" rel=\"noreferrer\"><em>Simester and Sullivan’s Criminal Law</em> (2019 7 ed)</a> p. 27.</p>\n\n<blockquote>\n <p>The criminal law\n is not there solely to tell police and judges what to do after someone offends, but also to tell\n citizens what not to do in advance. As such, it is not enough for there to be a law in place\n before people can commit a crime. They should also be told about it:<sup>35</sup></p>\n \n <blockquote>\n <p>“Respect for law, which is the most cogent force in prompting orderly conduct in a civilised\n community, is weakened, if men are punished for acts which according to the general consensus\n of opinion they were justified in believing to be morally right and in accordance with law.”</p>\n </blockquote>\n \n <p>That is the reason why non-publication or unavailability of a statutory instrument may\n be a defence, if a person is charged with a crime under that instrument while incapable of\n knowing about its existence.<sup>36</sup> It also explains why the increasing complexity and obscurity\n of domestic law is a major threat to basic principles of legal justice. Matters are made worse,</p>\n</blockquote>\n\n<p>p. 28.</p>\n\n<blockquote>\n <p>particularly in the area of regulatory criminal law, by the sheer volume of primary and\n secondary\n legislation and the piecemeal additions made regularly to it.<sup>37</sup><br>\n The Rule of Law mandates that people should be governed by concrete rules that are\n ascertainable and certain,38 and which minimise the opportunity for officials to wield\n arbitrary power.39 This requires both that the rule be stated in advance, and also that\n it be stated clearly.40 Clarity is essential if citizens are to have fair warning that by their\n prospective actions they are in danger of incurring a criminal sanction.41 If individuals\n understand the law, they will be able properly to decide what to do in light of the guidance\n that the law is meant to provide. Only then can the law act as the deterrent it is\n intended to be. And only then do citizens have a fair opportunity to steer themselves clear\n of criminal liability.<br>\n Once again, however, fair warning is a Rule of Law aspiration that is not always achieved\n in practice. Prior to the House of Lords decision in <em>Ireland</em>,<sup>42</sup> English criminal lawyers\n would not generally have predicted that the menace of silent phone calls would be curbed\n by including them within the definition of assault. Before the decision in <em>R</em> (above), it was\n widely assumed that a cohabiting husband was immune from the charge of raping his wife.\n Nonetheless, the House found the immunity to be ungrounded in law.</p>\n \n <p><sup>35</sup> <em>State v O’Neil</em> 126 NW 454, 456 (1910) (emphasis added). See, further: Brett, “Mistake of Law as a Criminal\n Defence” (1966) 5 MULR 179; Ashworth, “Ignorance of the Criminal Law, and Duties to Avoid It” (2011) 74 MLR 1.<br>\n <sup>37</sup> Something about which the courts are rightly worried, when neither they nor the enforcement authorities\n can be sure whether they have to hand the current version of the law: <strong>see the extraordinary case of <em>Chambers</em>\n [2008] EWCA Crim 2467.</strong></p>\n</blockquote>\n\n<p><a href=\"https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Crim/2008/2467.html&query=(EWCA)+AND+(Crim)+AND+(2467)\" rel=\"noreferrer\"><em>Chambers</em></a> debunks your assumption that teaching citizens the law makes them \"aware and abide by it\". Let's examine how and why <em>Chambers</em> is EXTRAORDINARY. One of UK's famous Law Lords, Lord Bingham, explains at p. 48 in <a href=\"https://www.amazon.co.uk/Rule-Law-Tom-Bingham/dp/014103453X\" rel=\"noreferrer\"><em>The Rule of Law</em></a> (2010).</p>\n\n<blockquote>\n <p>The biggest loser is, of course, the ordinary person who wants to try and find out, probably with professional help, what the law is.<br>\n A recent case illustrates the problems to which this legislative confusion gives rise.<sup>14</sup> A defendant was accused of a tobacco smuggling offence and pleaded guilty in 2007. A community sentence was imposed, and application was made for a confiscation</p>\n</blockquote>\n\n<p>p. 49</p>\n\n<blockquote>\n <p>order. His liability to a confiscation order depended on his having evaded payment\n of duty which he was personally liable to pay. To show that he was liable, the prosecution relied on some 1992 regulations.\n The trial judge was satisfied that he was liable, and ordered him to pay £66,120 or serve twenty months in prison if he did\n not. He appealed. The appeal came before three senior judges in the Court of Appeal, who heard argument and announced that they would give their judgment later in writing. They concluded that the defendant was liable to pay the duty\n under the 1992 regulations, and circulated a draft judgment upholding the confiscation order. On the eve of formally delivering\n judgment, however, they learned that the 1992 regulations no longer applied to tobacco products, as a result of different\n regulations made in 2001. <strong>Neither the trial judge, nor the prosecutor, nor defending counsel, nor the judges in the Court\n of Appeal knew of these later regulations</strong>, and they were not at fault. As Lord Justice Toulson said, giving judgment allowing\n the appeal:</p>\n \n <blockquote>\n <p>there is no comprehensive statute law database with hyperlinks which would enable an intelligent person, by using a search engine, to find out all the legislation on a particular topic. This means that the courts are in many cases unable to discover what the law is, or was at the date with which the court is concerned, and are entirely dependent on the parties for being\n able to inform them what were the relevant statutory provisions which the court has to apply. This lamentable state of affairs has been raised by responsible bodies on many occasions …15</p>\n </blockquote>\n \n <p> Reporting and commenting on this case in the <em>Guardian</em>, Marcel Berlins suggested that the age-old maxim might have to be revised: ignorance of the law is no excuse, unless there\n is no way of finding out what the law is.16 This was plainly written in jest. But in 1988 and again in 1995 the Italian Constitutional Court ruled that ignorance of\n the law may constitute an excuse for the citizen when the formulation of the law is such as to lead to obscure and contradictory\n results.17 </p>\n \n <p><sup>14</sup><em>R v Chambers</em> [2008] EWCA Crim 2467, 17 October 2008.</p>\n</blockquote>\n\n<p>Let's examine the people in bold. The appellant's barrister was <a href=\"https://www.carmelitechambers.co.uk/members/peter-corrigan\" rel=\"noreferrer\">Peter Corrigan</a>, but he doesn't say what uni he attended. The Crown's barrister was <a href=\"https://www.187fleetstreet.com/barristers/gideon-cammerman\" rel=\"noreferrer\">Gideon Cammerman</a> who became QC 2017. Look at his accomplishments beneath. Undeniably he's very intelligent! </p>\n\n<blockquote>\n <h2><strong>Awards, Qualifications & Other</strong></h2>\n \n <p>Cambridge University, Fitzwilliam College – MA (Hons) Cantab.</p>\n \n <p>1912 Academic Scholar</p>\n \n <p>Academic Prize (for top mark in year) – 1993</p>\n \n <p>Inns of Court School of Law – BVC 1995 – 1996</p>\n \n <p>Harmsworth Scholarship, 1995 and Diplock Major Scholarship, 1995</p>\n</blockquote>\n\n<p>The other two judges were MR JUSTICE GRIFFITH WILLIAMS, HHJ <a href=\"https://www.dailyecho.co.uk/news/3821944.senior-judge-michael-brodrick-to-take-early-retirement/\" rel=\"noreferrer\">Brodrick</a>, but I can't find out which unis they attended.</p>\n",
"score": 7
},
{
"answer_id": 48542,
"body": "<p>Adults are responsible for learning all laws applicable to their activities.\nFor children, their parents or other caretakers are responsible.</p>\n\n<p>This is not as easy as it might seem. <em>Most</em> laws are obvious, do not kill/steal/vandalize etc. Unfortunately there are also some not so obvious laws. Nevertheless, each person is responsible for themselves.</p>\n\n<p>Fortunately there is a class of people, lawyers, who are experts. The rest of us can go to a lawyer and ask them about the law.</p>\n\n<p>If a lawyer enters a lawyer/client relationship, they are giving <em>legal advice</em> to their client. Then they are responsible for the correctness of that advice. There are limits to this responsibility, but I am not a lawyer, so I don't know them. (Also, the details vary with jurisdiction)</p>\n\n<p>If a lawyer who says or writes something without being in a lawyer/client relationship, this does <em>not</em> count as <em>legal advice</em>. The most relevant example is postings to this web site.</p>\n",
"score": 4
}
] |
[
"human-rights",
"legal-concepts"
] |
In what context can one reference or make points about pre-trial correspondence at trial?
| 2 |
https://law.stackexchange.com/questions/90203/in-what-context-can-one-reference-or-make-points-about-pre-trial-correspondence
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CC BY-SA 4.0
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<p>Suppose one has a claim against a corporate defendant, and up until the trial the defendant is represented in correspondence by a solicitor. At trial, a human director of the defendant is called by the defendant party as a witness, but the defendant itself is represented now by a barrister. If one wishes to reference claims or points made (I suppose nonetheless by the defendant, even if through its human solicitor) in pre-trial correspondence, these challenges couldn't necessarily be posed to the human director of the defendant in cross-examination, because the human director of the defendant is not actually the defendant itself, while the barrister will also not have been the one who had written the letters of correspondence (it would have been the solicitor).</p>
<p>If one wishes to quiz or challenge the defendant, what opportunities in trial are there to do this?</p>
<p>Even if we suppose momentarily that the legal representative of the defendant for the trial was the same one who had been writing all of the letters of pre-trial correspondence (ie the solicitor), as the legal representative is not a witness who can be subjective to cross-examination, are there any opportunities in a trial to enter into socratic, examination-style dialogue with the other side's representative?</p>
<p>And which human entity in this scenario most corresponds to the defendant itself which is not a natural person? Is it true that the correspondence despite being humanly written by the instructed solicitor was legally with the defendant, so that they may be held responsible for everything that was written therein?</p>
| 90,203 |
[
{
"answer_id": 90207,
"body": "<p>Evidence of pre-trial correspondence can be adduced if it is relevant to a fact in issue, and not excluded by another rule of evidence. Commonly, pre-trial correspondence is not relevant to a fact in issue, because it consists of legal argument and rhetoric. In other words, the letter is a solicitor's inadmissible <a href=\"https://en.wikipedia.org/wiki/Opinion_evidence\" rel=\"nofollow noreferrer\">opinion</a>. And when pre-trial correspondence does set out the facts, it is often in inadmissible <a href=\"https://en.wikipedia.org/wiki/Hearsay\" rel=\"nofollow noreferrer\">hearsay</a> form.</p>\n<p>Pre-trial correspondence is also likely to attract <a href=\"https://en.wikipedia.org/wiki/Prejudice_(legal_term)#Settlement_negotiations\" rel=\"nofollow noreferrer\">without prejudice privilege</a> (if sent to the other side in an attempt to negotiate a settlement) or <a href=\"https://en.wikipedia.org/wiki/Legal_professional_privilege\" rel=\"nofollow noreferrer\">legal professional privilege</a> (if private between a party and their lawyer). For all of these reasons, pre-trial correspondence is not usually considered by a judge or jury at trial.</p>\n<p>However, in some circumstances pre-trial correspondence is admissible, typically as an <a href=\"https://en.wikipedia.org/wiki/Admission_(law)\" rel=\"nofollow noreferrer\">admission</a>, <a href=\"https://en.wikipedia.org/wiki/Prior_consistent_statements_and_prior_inconsistent_statements\" rel=\"nofollow noreferrer\">prior consistent statement or prior inconsistent statement</a>. Depending on the facts which make the correspondence relevant and admissible, it may also be appropriate to cross-examine the client, a director or other agent of the client who instructed the solicitor, or the solicitor, about it.</p>\n<p>In some cases, a <strong>client</strong> may be cross-examined about a prior statement of their solicitor on the basis that the solicitor would not have made the statement without the client's authority, and would have relied on the client's instructions. If the court accepts that a prior inconsistent statement was made with the client's approval, this may damage their credibility.</p>\n<p>If the client asserts legal professional privilege, or testifies that their lawyer acted without instructions, difficult questions arise. Some of these questions were explored by the High Court of Australia in <em>Hofer v The Queen</em> <a href=\"http://www.austlii.edu.au/au/cases/cth/HCA/2021/36.html\" rel=\"nofollow noreferrer\">[2021] HCA 36</a>. Lawyers and judges will try to conduct cases in a way which avoids these procedural challenges, if at all possible.</p>\n<p>In rare cases, a <strong>lawyer</strong> may be called to give evidence about whether a previous representation was actually made or authorised. This is, for example, the purpose of having a solicitor or other reputable professional <em>witness</em> formal documents. Barristers should <a href=\"https://legislation.nsw.gov.au/view/whole/html/inforce/current/sl-2015-0243#sec.13\" rel=\"nofollow noreferrer\">take special care not to place themselves at risk of becoming a witness</a>, but in exceptional cases where the client waives legal professional privilege, they can also be required to give evidence about the client's previous instructions. Perhaps unsurprisingly, this comes up more often in criminal law.</p>\n<p>The decision in <em>Hofer</em> was an appeal from the New South Wales Court of Criminal Appeal, which had received evidence from a barrister about the reasons for making decisions during the appellant's criminal trial. Conversely, the Court of Appeal of England and Wales dismissed an application for leave to cross-examine a solicitor, by applying the rules of evidence concerning prior consistent statements, in <em>Hall v The Queen</em> <a href=\"https://www.bailii.org/ew/cases/EWCA/Crim/2015/581.html\" rel=\"nofollow noreferrer\">[2015] EWCA Crim 581</a>.</p>\n",
"score": 3
}
] |
[
"common-law",
"trial",
"barristers",
"solicitor",
"legal-person"
] |
Does Canada copyright law address the issue of whether browsing is copyright infringement?
| 3 |
https://law.stackexchange.com/questions/84732/does-canada-copyright-law-address-the-issue-of-whether-browsing-is-copyright-inf
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CC BY-SA 4.0
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<p>If someone merely views copyright infringement material online through their browser, without downloading it, does Canadian law address whether this is copyright?</p>
<p>I know in the UK, the Supreme Court addressed this is 2013, in "Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd & Ors". The judge wrote,</p>
<blockquote>
<p>"if it is an infringement merely to view copyright material, without
downloading or printing out, then those who browse the internet are
likely unintentionally to incur civil liability, at least in
principle, by merely coming upon a web-page containing copyright
material in the course of browsing. This seems an unacceptable
result..."</p>
</blockquote>
<p>Is there a similar finding like this in Canada?</p>
<p>The closest I could find is the Copyright Act section 30.71, which reads,</p>
<blockquote>
<p>30.71 It is not an infringement of copyright to make a reproduction of a work or other subject-matter if</p>
<p>(a) the reproduction forms an essential part of a technological process;</p>
<p>(b) the reproduction’s only purpose is to facilitate a use that is not an infringement of copyright; and</p>
<p>(c) the reproduction exists only for the duration of the technological process.</p>
</blockquote>
<p>But the ambiguity here is where the first condition says, "the reproduction forms an essential part" etc... One can argue that I can make my browser disable loading any images, so having potentially copyright infringement photos appear on my screen is not essential to the technological process.</p>
<p>And sure. The likelihood of one getting sued by merely viewing something online is next to zero. But I'm talking about the principle behind it. Because as the law stands, it seems to be that merely using social media will run afoul of the law, at least in principle.</p>
<p>Any thoughts?</p>
| 84,732 |
[
{
"answer_id": 88978,
"body": "<p>In my understanding under Canadian law, viewing copyright infringement material online without downloading it is still considered an infringement of the copyright holder’s rights.</p>\n<p>Act of Canada, R.S.C., 1985, c. C-42.</p>\n<p>According to section 3 of the Copyright Act, copyright is defined as “the exclusive right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof”.</p>\n<p>Section 27 of the Copyright Act states that “it is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do”. This includes viewing the material online through a browser.</p>\n<p>Section 2 of the Copyright Act defines “reproduce” as “includes reproducing a work in any material form, and includes the making of a photograph or a facsimile of a work and the making of a sound recording or a cinematographic film of the work”. This definition includes the act of temporarily reproducing the work in a computer’s memory when viewing it online.</p>\n<p>In conclusion, the Copyright Act of Canada, R.S.C., 1985, c. C-42, outlines that viewing copyright infringement material online without downloading it is considered an infringement of the copyright holder’s rights. This is in accordance with sections 3, 27 and 2 of the Act, which define copyright and the exclusive rights of the copyright holder, as well as the act of reproducing a work.</p>\n<p>In the case of CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, the Supreme Court of Canada confirmed that viewing copyright-protected material online without downloading it is still considered copyright infringement. In this case, the Law Society of Upper Canada provided access to legal information databases without obtaining the necessary licenses. The Court found that the mere act of accessing the databases was a violation of the copyright holder’s rights, even though the information was not downloaded.</p>\n<p>In another case, Robertson v. Thomson Corp., 2006 SCC 43, the Supreme Court of Canada found that temporary reproductions made in the course of viewing a website, including cached copies of images, can be considered copyright infringement. This case confirms that viewing copyrighted material online without downloading it can still infringe on the rights of the copyright holder.</p>\n<p>As someone mentioned in the comments, the case SOCAN v CAIP (Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers, 2004 SCC 45) is relevant to the question of whether viewing copyright infringement material online without downloading it is considered copyright infringement in Canada.</p>\n<p>In this case, the Supreme Court of Canada addressed the issue of whether internet service providers (ISPs) can be held liable for their customers’ infringing activities, such as downloading copyrighted material online. The Court held that ISPs can be held liable for copyright infringement if they provide access to infringing material, but they are not required to monitor their customers’ activities.</p>\n<p>This case confirms that the act of viewing copyright infringement material online, whether it involves downloading or not, is considered copyright infringement under Canadian law. The Court recognized that the mere act of accessing the copyrighted material constitutes an infringement of the copyright holder’s rights, even if the material is not physically downloaded.</p>\n<p><strong>On the contradictory</strong>\nYou should also look at the case Entertainment Software Association v. SOCAN, 2012 SCC 34 which is a Canadian case that dealt with the issue of whether the act of playing a video game that includes copyrighted musical works constitutes copyright infringement. The case was brought before the Supreme Court of Canada by the Entertainment Software Association, who argued that the act of playing the video game did not infringe on the rights of the copyright holders of the musical works included in the game.</p>\n<p>The Society of Composers, Authors and Music Publishers of Canada (SOCAN), the copyright holder of the musical works, argued that the act of playing the video game constituted copyright infringement because it involves reproducing the musical works. SOCAN sought to collect royalties for the use of the musical works in the video games.</p>\n<p>The Supreme Court of Canada held that the act of playing the video game was not an infringement of the copyright holder’s rights because the copyright holder had not lost control over the use of the work. The Court held that the act of playing the video game was not a “communication to the public” as defined by the Copyright Act, and therefore did not infringe on the rights of the copyright holder.</p>\n<p>This case confirms that Canadian law recognizes that the act of viewing copyrighted material online without downloading it is not necessarily an infringement of the copyright holder’s rights. However, it also demonstrates that the specific circumstances of the case must be considered in determining whether an act constitutes copyright infringement.</p>\n",
"score": 1
}
] |
[
"copyright",
"intellectual-property"
] |
are there any legal systems in the world where the judiciary and the legislature are the same?
| 4 |
https://law.stackexchange.com/questions/90160/are-there-any-legal-systems-in-the-world-where-the-judiciary-and-the-legislature
|
CC BY-SA 4.0
|
<p>it's well known that the limited lawmaking power that a judiciary has comes from interpretation of statutes but are there any systems where the judiciary and the legislature are one and the same and have broad lawmaking powers ?</p>
| 90,160 |
[
{
"answer_id": 90162,
"body": "<p>Historically, this was true in the Icelandic Commonwealth in the Middle Ages, and in some democratic Greek city-states in the classical era.</p>\n<p>Similarly, in non-democratic feudal regimes, the lord or monarch was both the law giver and sitting in court was also the arbiter of all disputes arising under the lord's own laws. In places like Saudi Arabia where the monarchy's power is more than symbolic, the system still works this way to a significant extent. The practical reality in most one party Communist states is similar.</p>\n<p>In the United Kingdom, historically, the Appellate committee of the House of Lords (staffed by a subset of aristocrats usually appointed for life by the Prime Minister to the post) was the highest court of appeal of other courts in the British Commonwealth (with the Judicial committee of the Privy Council handling final appeals from outside Britain), and it was also a court of original jurisdiction for certain criminal cases against other aristocrats to satisfy the Magna Carta's notion that one is entitled to a jury of one's peers.</p>\n<p>Top level general purpose legislatures rarely serve as courts at the highest level, except in very isolated political matters.</p>\n<p>A good example of narrow quasi-judicial legislative power is the power of the Congress in the U.S., to be the ultimate judge for Congressional election disputes and of some Presidential election disputes. Congress also has quasi-judicial jurisdiction over impeachments of government employees whether or not they are elected, and over expulsions for cause of its own members and over other ethical sanctions of its own members.</p>\n<p>Many other legislatures have some sort of quansi-judicial impeachment and/or explusion power exercised as a whole by by some committee within it.</p>\n<p>It is common in the United States for administrative agencies, within their narrow area of competence to exercise both quasi-legislative power to enact regulations with a broad mandate in a subject area, and also to have quasi-judicial power in that same subject area. The Securities and Exchange Commission, the National Labor Relations Board, the Internal Revenue Service, the Environmental Protection Agency, and the Merit System Protection Board, for example, all operate in this fashion to some extent.</p>\n<p>Likewise, it is very common at the local government level for a city council and its planning board to carry out both legislative roles and quasi-judicial role when disputes come up regarding its land use regulations.</p>\n<p>Similarly, school boards routinely both establish employment regulations and other school rules, and serve in a quasi-judicial role with respect employee discipline or termination, and with respect to student discipline. This dual role is also common for the boards of other public institutions like hospitals and state colleges, and for private non-profit organizations.</p>\n<p>A recent example in that kind of situation is <a href=\"https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2021/21SC885.pdf\" rel=\"nofollow noreferrer\">Colorado's State School Board</a> which both exercises legislative power over when charter schools (i.e. public schools not under the direct supervision of any elected local school board) may be formed, and has the ultimate and final judicial review role over decisions by local school boards to grant or deny school charters.</p>\n",
"score": 4
}
] |
[
"judiciary",
"judicial-review"
] |
What would happen if you entered a building and didn’t leave because you didn’t think the person there was the owner?
| 0 |
https://law.stackexchange.com/questions/90143/what-would-happen-if-you-entered-a-building-and-didn-t-leave-because-you-didn-t
|
CC BY-SA 4.0
|
<p>Imagine you come across a building in a public place with some signs on it and an unlocked door. The signs make it seem like a shop or activity center rather than saying anything like “Keep Out”.</p>
<p>You go inside and inside a person coldly says you aren’t welcome there and it isn’t a public place you can just enter at will, and you shouldn’t have just opened the door and walked in.</p>
<p>If they actually owned or managed the building, I am pretty sure there are laws where if you do not leave a place after the owner, representative or resident asks you to, you are trespassing and it’s a crime.</p>
<p>But, what if it turned out that the person inside was not who they tried to seem, or simply didn’t have the authority they claimed to. Maybe it is actually a public building, and you do have the right to go in, and that person isn’t telling the truth.</p>
<p>Given the legitimate possibility on reasonable grounds that someone inside some given building is not actually supposed to be there, how might this apply to the law about it being mandatory to leave? What if you claimed you either did not think they were really in charge, or that you simply had no way of verifying?</p>
<p>In other words, if it turns out it is their building, you have committed trespassing for not leaving, but this would seem to imply that you must follow the orders even of imposters or themselves intruders, just to avoid that potential illegal entering. You may not be legally required to leave, but you would have to even in that circumstance to avoid the claim against you.</p>
<p>Does the law have any way of acknowledging that you cannot always make perfect legal decisions in situations where you are lacking the precise information you would need, to do so?</p>
| 90,143 |
[
{
"answer_id": 90154,
"body": "<p>While the elements of criminal trespass vary from one U.S. state to another, the majority rule is that a good faith belief that you have a claim of a legal right to be present on property (even if you are ultimately found to be incorrect on the merits) prevents you from having the intent necessary to commit criminal trespass.</p>\n<p>The majority rule is that there is strict civil liability for trespass without regard to intent, but the minority rule that civil trespass is an intentional tort isn't terribly uncommon either, in which case criminal and civil liability for trespass would often be the same.</p>\n<blockquote>\n<p>Given the legitimate possibility on reasonable grounds that someone\ninside some given building is not actually supposed to be there, how\nmight this apply to the law about it being mandatory to leave? What if\nyou claimed you either did not think they were really in charge, or\nthat you simply had no way of verifying?</p>\n</blockquote>\n<p>This is irrelevant. The burden is on you not to go into property where you are not allowed to be, and not on someone else to tell you to leave.</p>\n<p>If you know you have no right to be on the property, the fact that you believe someone else may also not have the authority to control who is on the property is not a defense to criminal trespass. You can be guilty of criminal trespass in most jurisdictions even if no one asks you to leave, if you know that you do not have permission to be on the property. Lack of permission is the default in the absence of someone with apparent authority to do so telling you otherwise.</p>\n",
"score": 3
}
] |
[
"theory-of-law",
"trespassing",
"acknowledgement",
"knowledge"
] |
What happens if a Supreme Court decision is obviously wrong?
| 0 |
https://law.stackexchange.com/questions/81099/what-happens-if-a-supreme-court-decision-is-obviously-wrong
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CC BY-SA 4.0
|
<p><em>Edited to add this summary:</em> What happens if the Supreme Court issues a ruling that is obviously unconstitutional, such as interpreting a clause to mean something no reasonable person would believe it means, or ruling based on a nonexistent article?</p>
<hr />
<p>Suppose John Doe says "Dogs are the best pets ever." He is (for some reason) prosecuted for this. He is convicted, and appeals the decision, and keeps being convicted and appealing the decisions until he reaches the Supreme Court.</p>
<p>The Supreme Court rules that Article XVII Section 381 Clause 29 of the Constitution clearly states that cats are better than dogs, and Clause 30 says that anyone who says dogs are better must be imprisoned for at least 20 years, and Clause 31 says Clauses 30 and 31 override all other parts of the Constitution, including the First Amendment, and therefore John Doe is guilty and must go to prison. The President refuses to pardon him. What happens now?</p>
| 81,099 |
[
{
"answer_id": 81114,
"body": "<p>The US Supreme Court has made some decisions that legal scholars, other judges, lawyers, and people in general have strongly criticized as mistaken, but none anywhere nearly as wild as the one suggested in the question. Many such, well let me call them "disputed", rulings have been later overturned by the court itself. A well known example is <a href=\"https://en.wikipedia.org/wiki/Minersville_School_District_v._Gobitis\" rel=\"nofollow noreferrer\"><em>Minersville School District v. Gobitis</em>, 310 U.S. 586 (1940)</a>, which was overruled a few years later by <a href=\"https://en.wikipedia.org/wiki/West_Virginia_State_Board_of_Education_v._Barnette\" rel=\"nofollow noreferrer\"><em>West Virginia State Board of Education v. Barnette</em>, 319 U.S. 624 (1943)</a>. Many of the so-called <a href=\"https://en.wikipedia.org/wiki/Lochner_era\" rel=\"nofollow noreferrer\"><em>Lochner</em> era</a> economic decisions were also eventually overturned by the Court itself.</p>\n<p>Some disputed holdings have been altered by changes in the law, State or Federal. Some have been overturned via a constitutional amendment, such as <a href=\"https://en.wikipedia.org/wiki/Barron_v._Baltimore\" rel=\"nofollow noreferrer\"><em>Barron v. Baltimore</em>, 32 U.S. (7 Pet.) 243 (1833)</a>, which is now held to have been overruled by the Fourteenth Amendment, although the Court did not come to that conclusion until early in the 20th century.</p>\n<p>Perhaps the most notorious case is <a href=\"https://en.wikipedia.org/wiki/Dred_Scott_v._Sandford\" rel=\"nofollow noreferrer\"><em>Dred Scott v. Sandford</em>, 60 U.S. (19 How.) 393 (1857)</a> which held that a person of African descent could never become a US citizen, and that Congress was without power to prohibit slavery in any US state or territory. This is perhaps the most denounced decision of the US Supreme Court in its history (See the linked Wikipedia article for a few such comments.) This decision was undone <em>de facto</em> by the outcome of the US Civil War, and <em>de jure</em> by the adoption of the Thirteenth and Fourteenth Amendments.</p>\n<p>Some cases have later been treated as "bad law" even though not formally overturned. An example is <a href=\"https://en.wikipedia.org/wiki/Korematsu_v._United_States\" rel=\"nofollow noreferrer\"><em>Korematsu v. United States</em>, 323 U.S. 214 (1944)</a>, in which the Supreme Court upheld the removal of US citizens of Japanese ancestry from the US Pacific coast during WWII, and their confinement in what has been described as a series of concentration camps. This has not been formally overruled, but in <a href=\"https://en.wikipedia.org/wiki/Trump_v._Hawaii\" rel=\"nofollow noreferrer\"><em>Trump v. Hawaii</em> No. 17-965, 585 U.S. ___ (2018)</a>, Chief Justice Roberts wrote:</p>\n<blockquote>\n<p>The dissent's reference to <em>Korematsu</em>, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—'has no place in law under the Constitution.' 323 U. S., at 248 (Jackson, J., dissenting). [quoting Jackson's dissent in <em>Korematsu</em>]</p>\n</blockquote>\n<p>And some cases, although much disputed, still stand as good law. The case of <a href=\"https://en.wikipedia.org/wiki/Flood_v._Kuhn\" rel=\"nofollow noreferrer\"><em>Flood v. Kuhn</em>, 407 U.S. 258 (1972)</a>, holding that Baseball continued to be exempt from anti-trust laws, federal and state, has been much criticized, but remains in force to this day. (See the section "Subsequent jurisprudence" in the linked Wikipedia article) Congress has not, so far, acted to limit the exemption, as the opinion indicates that it had the power to do.</p>\n<p>In short, a US Supreme Court decision, however "erroneous" or "absurd" commentators or the public may consider it, remains the law of the land until it is overturned or distinguished by the court, or made obsolete by changes in statute or in the Constitution itself. It the highly unlikely situation described in the question, John Doe would remain in prison until his sentence expired or he received a pardon.</p>\n",
"score": 11
},
{
"answer_id": 81107,
"body": "<p>Your scenario is that the person has exhausted all avenues of appeal and the highest authorities in the land decide the person must be imprisoned.</p>\n<p>Surely, in any jurisdiction, whether the case is mundane or bizarre, if the authorities decide a person should be in prison then the person will be imprisoned until the authorities decide otherwise (e.g. on appeal, pardon, probation, changed mind etc). Unless the person escapes or for some reason no-one physically acts to imprison the person or all prisons are blockaded (i.e. acts outside the law).</p>\n<p>How could it be otherwise / what is the possible alternative?</p>\n",
"score": 9
},
{
"answer_id": 81106,
"body": "<h2>John serves 20 years</h2>\n<p>That’s what the “supreme” in the Supreme Court means: if they say it, it’s the law.</p>\n",
"score": 5
}
] |
[
"united-states",
"us-constitution",
"us-supreme-court"
] |
Does Tennessee HB9/SB3 make it illegal to wear drag in a non-sexual show in Tennessee?
| 0 |
https://law.stackexchange.com/questions/90186/does-tennessee-hb9-sb3-make-it-illegal-to-wear-drag-in-a-non-sexual-show-in-tenn
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CC BY-SA 4.0
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<p><a href="https://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=SB0003&ga=113" rel="nofollow noreferrer">This bill</a> recently passed in Tennessee and became law. It purports to ban adult entertainment (e.g. erotic dances) for kids. It's <a href="https://www.newschannel5.com/news/tennessee-residents-business-owners-worry-about-the-unintended-consequences-of-new-drag-bill" rel="nofollow noreferrer">been controversial</a> because it's thought to ban non-sexual drag events such as Drag Queen Story Hour (in fact, some would argue that's the entire point of the bill).</p>
<p>Does this bill ban non-sexual events such as Drag Queen Story Hour?</p>
| 90,186 |
[
{
"answer_id": 90187,
"body": "<p>So, going over of a read of the bill, specifically the definitions in the overview. The bill specifically bans "adult cabaret entertainment" which it defines as:</p>\n<blockquote>\n<p>adult-oriented performances that are harmful to minors, as such term is defined under present law; feature go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers; and include a single performance or multiple performances by an entertainer.</p>\n</blockquote>\n<p>And further defines "harmful to minors" as the present law under Tennessee law:</p>\n<blockquote>\n<p>that quality of any description or representation, in whatever form, of nudity, sexual excitement, sexual conduct, excess violence, or sadomasochistic abuse when the matter or performance:</p>\n<p>(1) Would be found by the average person applying contemporary community standards to appeal predominantly to the prurient, shameful, or morbid interests of minors;</p>\n<p>(2) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and</p>\n<p>(3) Taken as a whole lacks serious literary, artistic, political, or scientific values for minors.</p>\n</blockquote>\n<p>So, for example, a man, dressed as a woman, reading to children would likely not qualify but for the second caveat, which is the most difficult to uphold. After all, very few people would balk at the show in show "Ms. Doubtfire" seen at the ending of the film of the same name. Nor would anyone find a historically accurate production of Shakespear's work (i.e. all male cast) to follow under this (At least one play (Merchant of Venice) pokes fun at the fact that everyone knew it was all male cast, but relying on the character of Portia appearing in drag for an extended period of time (The gag being the actor playing Portia was essentially a man, pretending to be a woman, pretending to be a man). Nor a Bugs Bunny Cartoon (the distinction here is the audience is well aware Bugs is pretending to be a woman... Elmer Fudd is just too stupid to notice.). Hell, I would say that much of the work of Eddie Izzard (save for some choices of language) are fine enough to avoid this, as he insists, he is a transvestite and finds women's clothing more comfortable to wear... and it's not the point of the show beyond that.</p>\n<p>Where it would probably catch is if the Drag Queen Story Hour is making the performance overly sexual in nature or drawing to much interest to sexualized elements of the drag apparel.</p>\n<p>That said, what will determine if this is permissible is through the testing of court cases. That said, we regularly limit access to minors to performances that are "adult entertainment" already, and I've seen some drag shows that are clear their appeal is adult in nature, so it's not something that is historically out of left field.</p>\n",
"score": 1
}
] |
[
"tennessee",
"entertainment-law"
] |
Can private prosecution be brought against anoymous identifying placeholder?
| 5 |
https://law.stackexchange.com/questions/90179/can-private-prosecution-be-brought-against-anoymous-identifying-placeholder
|
CC BY-SA 4.0
|
<p>In a civil case, the proper name of the defendant need not be known and it can simply be filed against "the individual with this phone number" and their identity possibly later subpoenaed from the phone company. But what about in a criminal prosecution, private or public?</p>
| 90,179 |
[
{
"answer_id": 90181,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>The name of the accused must appear in the indictment or information. See <em>R. v. Turmel</em>, 2005 QCCA 6, interpreting <em>Criminal Code</em>, s. 581:</p>\n<blockquote>\n<p>Nowhere is it mentioned that the name of the accused must be included in each count: the fact that the name of the accused appears in the heading of the indictment is sufficient.</p>\n</blockquote>\n<p>Practically, this is one of the barriers to private prosecutions. Private individuals do not have the same investigatory resources and powers as government to allow them to identify people that they will charge.</p>\n",
"score": 5
},
{
"answer_id": 90183,
"body": "<p>No</p>\n<p>Those wishing to instigate a private prosecution must follow <a href=\"https://www.legislation.gov.uk/uksi/2020/759/part/7?timeline=false#f00218\" rel=\"noreferrer\">Part 7</a> of the Criminal Procedure Rules 2020 beginning with Rule 7.1(1)(a), when...</p>\n<blockquote>\n<p>a prosecutor wants the court to issue a summons or warrant under section 1 of the Magistrates’ Courts Act 1980...</p>\n</blockquote>\n<p>The relevant requirements in <a href=\"https://www.legislation.gov.uk/ukpga/1980/43/part/I/crossheading/jurisdiction-to-issue-process-and-deal-with-charges\" rel=\"noreferrer\">Section 1</a> of the Act are that..</p>\n<blockquote>\n<p>... the justice [<em>i.e. magistrate</em>] may issue—</p>\n<ul>\n<li><p>(a) a summons directed to <strong>that person</strong> requiring him to appear before a magistrates' court to answer the information, or</p>\n</li>\n<li><p>(b) a warrant to arrest <strong>that person</strong> and bring him before a magistrates' court.</p>\n</li>\n</ul>\n</blockquote>\n<p>It follows that if the prosecutor cannot, or will not, identify <strong>that person</strong> then the court cannot issue a summons or warrant (as the case may be) against that person.</p>\n",
"score": 5
}
] |
[
"criminal-law",
"england-and-wales",
"criminal-procedure",
"any-jurisdiction",
"prosecution"
] |
Are you allowed to solve an exercise from a book more than seven times?
| 7 |
https://law.stackexchange.com/questions/90182/are-you-allowed-to-solve-an-exercise-from-a-book-more-than-seven-times
|
CC BY-SA 4.0
|
<p>In Germany, apparently, you are allowed to make a "Privatkopie" at most seven times. Are you allowed to write down an exercise on a device using a note taking app more than seven times?</p>
<p>Does writing down exercises count?
Precisely, in math, when you solve an algebraic problem, you usually start by writing down the initial problem and proceeding from there.
Now that means you made one "Privatkopie"?</p>
<p>Now what if you some time later want to solve the same algebraic problem again, writing down the initial problem, ...</p>
<p>You made another "Privatkopie"?</p>
<p>I'm precisely talking about Germany, and books that the author told not to copy, ...</p>
| 90,182 |
[
{
"answer_id": 90185,
"body": "<p>You can make as many "manual copies" of math homework for yourself as you like.</p>\n<p>The seemingly arbitrary number of "7" came into being because with the invention and popularity of devices for copying, private persons could make copies without considerable loss of quality.</p>\n<p>As it was impossible to control who made a copy and whom it was given to, a compromise was found: buying a copying machine (tape recorder, cd burner, dvd burner) or empty media (empty cassette tapes, empty CDs) came with an extra fee on top to be paid by the consumer, that would go to the copyright holders in general, with the assumptions that that would cover the "normal, uncontrollable, private between friends" copying. Like if you burn your mom a CD. Or gift your girlfriend a mix tape. Or copy a page of the book and hand out the excercise to your two study buddies.</p>\n<p>So there was a <a href=\"https://de.wikipedia.org/wiki/Privatkopie#Anzahl_der_Kopien\" rel=\"noreferrer\">court decision</a> that "more than seven" was more than what you would normally consider a private copy covered by this fee. If you make more than seven copies of a cassette for example, it would be okay to assume that you no longer did that "for a close friend".</p>\n<p>Obviously, copying something from a book as you describe, by writing it down with a pencil on a notepad, is in no way "a lossless copy". Even if you type it into an app, manually copying something into another medium is not lossless. Ever. It is also for your very personal use, you don't give it to anyone, not even close friends.</p>\n<p>So yes, you can make as many copies as you like, for yourself. If one breaks, and you make another, that is fine. If one breaks every day and you need 700 over the course of two years? Fine. But if you made 700 exact copies to give them to your "700 closest friends", that is not how the law thinks "closest friends" work. That is where the arbitrary number 7 comes from.</p>\n",
"score": 32
}
] |
[
"copyright",
"licensing",
"germany"
] |
What is a “submission”?
| -1 |
https://law.stackexchange.com/questions/90177/what-is-a-submission
|
CC BY-SA 4.0
|
<p>It was used in a recent answer to mean “a legal argument”. Is it necessarily of this nature? Or is it broader (i.e. “anything one submits”)?</p>
| 90,177 |
[
{
"answer_id": 90180,
"body": "<p><em>Submission</em> is a legal term of art in Commonwealth jurisdictions, which refers specifically to OED sense 2(b):</p>\n<blockquote>\n<p>Something submitted for decision or consideration; a point of view, a theory of a case; a proposal, an application; <em>spec</em>. <strong>a proposition or argument submitted by counsel to a judge or jury</strong>.</p>\n</blockquote>\n<p>Parties can <em>submit,</em> in the ordinary sense of the word, various documents for the court's consideration, including evidence. <em>Submissions,</em> however, are legal arguments, not evidence. Preparing submissions is part of advocacy and in jurisdictions with a split legal profession, specialised in by barristers.</p>\n<p>This is the sense in which <a href=\"https://www.supremecourt.uk/docs/practice-direction-03.pdf\" rel=\"nofollow noreferrer\">Supreme Court of the United Kingdom Practice Direction 3</a> uses the word, to describe the written submissions to be filed in advance, and the oral submissions to be made at any hearing, as distinct from the various other documents a party must file to conduct a Supreme Court appeal.</p>\n",
"score": 4
},
{
"answer_id": 90178,
"body": "<p>It's broader, and means anything that is put to the court to consider.</p>\n<p>See these examples of it's use in the <a href=\"https://www.legislation.gov.uk/uksi/2020/759/contents\" rel=\"nofollow noreferrer\">Criminal Procedure Rules 2020</a>:</p>\n<blockquote>\n<p><a href=\"https://www.legislation.gov.uk/uksi/2020/759/rule/3.9?timeline=false\" rel=\"nofollow noreferrer\">Rule 3.9</a> the submission of proposed questions</p>\n</blockquote>\n<blockquote>\n<p><a href=\"https://www.legislation.gov.uk/uksi/2020/759/rule/13.7?timeline=false\" rel=\"nofollow noreferrer\">Rule 13.7</a> written material that was submitted to the court</p>\n</blockquote>\n<blockquote>\n<p><a href=\"https://www.legislation.gov.uk/uksi/2020/759/rule/45.6?timeline=false\" rel=\"nofollow noreferrer\">Rule 45.6</a> Where the application was under paragraph (4)(d), the Crown Court officer may—</p>\n<ul>\n<li><p>(a)submit it to the Crown Court; or</p>\n</li>\n<li><p>(b)serve it on the magistrates’ court officer, for submission to the magistrates’ court.</p>\n</li>\n</ul>\n</blockquote>\n",
"score": 2
}
] |
[
"legal-terms",
"rules-of-court",
"definition"
] |
What parts of the Code of Criminal Procedure deal with appeal from a sentence?
| 2 |
https://law.stackexchange.com/questions/90164/what-parts-of-the-code-of-criminal-procedure-deal-with-appeal-from-a-sentence
|
CC BY-SA 4.0
|
<p>I've been browsing through the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPc) and there doesn't seem to be any provision for appeals from sentencing (reduction) there seems to be sections for enhancing it (section 377 and section 378) are there any provisions I'm missing or not reading properly?</p>
| 90,164 |
[
{
"answer_id": 90165,
"body": "<p><a href=\"https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&orderno=420\" rel=\"nofollow noreferrer\">Section 374</a> CrPc gives the general right of appeal, but there are exclusions, such as those found within <a href=\"https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&orderno=421\" rel=\"nofollow noreferrer\">section 375</a> and <a href=\"https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&orderno=422\" rel=\"nofollow noreferrer\">section 376</a>.</p>\n<p>Although s.374 does not mention on what grounds an appeal may be laid, an alleged unduly harsh sentence is permitted (as long as the correct procedural processes are followed) as it is not expressly excluded anywhere within the CrPc.</p>\n<p>In fact, it is specifically referenced within <a href=\"https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&orderno=431\" rel=\"nofollow noreferrer\">section 385</a>:</p>\n<blockquote>\n<p>(3) Where the only ground for <strong>appeal from a conviction is the alleged severity of the sentence</strong>, the appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground.</p>\n</blockquote>\n",
"score": 1
}
] |
[
"criminal-law",
"india",
"appeal",
"indian-penal-code",
"sentencing"
] |
In the USA, do parents have the right to control their children's possessions?
| 22 |
https://law.stackexchange.com/questions/24455/in-the-usa-do-parents-have-the-right-to-control-their-childrens-possessions
|
CC BY-SA 3.0
|
<p>Let's say a minor (17 or younger) living with his parents gets a job or does chores, and with the money thereby earned, buys a video game console.</p>
<p>The parents decide that the console is not appropriate for the child and take it away. In fact, they sell it and put the money into their own bank account, with no plans to ever give it back to the child.</p>
<p>Setting aside any question of ethics or morality, is this <em>legal</em> on the part of the parents? If the police are called in, will they seek to charge the parents with a crime (such as theft)?</p>
<p>I am under the impression that there is no legal case here, as the parents are the custodians/guardians of everything for the child. Imagine a situation where the parents are very poor, and ongoingly need the fruits of their child's labor to simply put food on the table and pay for the electricity. In my mind, while parents should generally allow their children to own possessions and enjoy the fruits of their labor, they also have every right to take every last penny from their child if it is urgently needed for the basic good of the whole family.</p>
<p>When considering this situation, perhaps it would be easier for you to think of the purchased item as something most would agree is unhealthful for the child, though not necessarily illegal for him to possess—say, a book on how to construct a bomb or on how to commit suicide. Perhaps it is a chain saw, or a gun, or a set of lawn darts, or pornography, or anything else that most/many people would recognize is good for parents to take away from their minor children, no matter where the money came from or what previous recognition there was in the family of the item's belonging to the child. In this way, please try to avoid responding from any distaste about the parents violating your <em>personal feelings</em> about a child's rights, as this question is specifically about the <em>law only</em>.</p>
<p>I'd like to know if my impression here stands at odds with any laws or precedents that could inform me better.</p>
<p>If a more specific jurisdiction is needed, let's hear answers from Washington state, California, Florida, and Maine. Or chime in with a few other states, so we can get an idea of what the laws are throughout the nation. Feel free to add information on laws in other countries, as well, but please try to answer the USA question first.</p>
| 24,455 |
[
{
"answer_id": 24474,
"body": "<p>The fundamental question is whether children can own property: they clearly can. See <a href=\"https://play.google.com/books/reader?id=nrsEAQAAIAAJ&printsec=frontcover&output=reader&hl=en&pg=GBS.PA1654\" rel=\"noreferrer\">Cyclopedia of Law and Procedure</a> (I improved the link so it can be more easily read).</p>\n\n<blockquote>\n <p>As a general rule any property acquired by the child in any way except\n by its own labor or services belongs to the child, and not to the\n parent</p>\n</blockquote>\n\n<p>McClosky v. Cyphert, 3 Casey (27 Pa.) 220</p>\n\n<blockquote>\n <p>The right of an infant to be the owner of property is as clear and as\n well protected as that of a person who has arrived at full age. When\n anything is given to an infant to be held by him in his own right, he\n has the title to it, and the parent, guardian or master has in law no\n more right to take it (for any purpose beyond safekeeping) than a\n stranger.</p>\n</blockquote>\n\n<p>Wheeler v. R. Co., 31 Kan. 640, 3 P. 297, 300:</p>\n\n<blockquote>\n <p>As a matter of law a minor may own property the same as any other\n person. He may obtain it by inheritance, by gift, or by purchase; and\n there is nothing in the law that would prevent even a father from\n giving property to his minor child. A father may also so emancipate\n his minor child as to entitle him to receive his own wages. It is\n probably true that where a minor child lives with his father, and is\n supported by him, all things given to the child in the way of support,\n such as clothing, for instance, would still belong to the father and\n not to the child. But things given by the father to the child, not in\n the way of support, but with the understanding that they should become\n the property of the child, would, undoubtedly, become the property of\n the child.</p>\n</blockquote>\n\n<p>Banks v. Conant, 14 Allen 497, the father</p>\n\n<blockquote>\n <p>has no title to the property of the child, nor is the capacity or\n right of the latter to take property or receive money by grant, gift\n or otherwise, except as a compensation for services, in any degree\n qualified or limited during minority. Whatever therefore an infant\n acquires which does not come to him as a compensation for services\n rendered, belongs absolutely to him, and his father cannot interpose\n any claim to it, either as against the child, or as against third\n persons who claim title or possession from or under the infant.</p>\n</blockquote>\n\n<p>However, a parent does have the right to prevent their child from using or acquiring a computer, car (also prohibited statutorily in Washington), television, cell phone; they can also prevent a child from spending their savings. Parents do retain their property right in things that they give to their children for general support and maintenance, such as a pair of shoes, or books. </p>\n\n<p>There can also be specific statutes such as the <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=11.114&full=true\" rel=\"noreferrer\">Uniform Transfers to Minors Act</a> (Washington version) which partially recognize this right, making it easy for a person to transfer property to a minor, where the property is in the care of a custodian, but not owned by the custodian.</p>\n",
"score": 16
},
{
"answer_id": 65055,
"body": "<p><em>Moderation note: this answer was merged from a duplicate question that focused on <a href=\"/questions/tagged/iowa\" class=\"post-tag\" title=\"show questions tagged 'iowa'\" rel=\"tag\">iowa</a></em></p>\n<h2>Overview</h2>\n<p>Minors in most US states can and do own property, and their parents have no automatic right to take that property.</p>\n<p>In some states there is a rule, dating to 18th- and 19th-centuary law, that a child owes labor to his or her father (or more recently parents) and that if the child works for wages the father may claim those wages. I do not find any indication that Iowa has such a rule. Even in states with such a rule, property, including money, received by a child as a gift or inheritance is the child's property, and may not be permanently taken by the child's parents, or either of them.</p>\n<p>A parent may in some cases be allowed to take possession and control of child's property, provided that the action is for the benefit of the child. But the child retains ownership, and the property must be restored to the child after a predetermined time.</p>\n<h2>Sources</h2>\n<p><a href=\"https://www.legis.iowa.gov/docs/code/599.pdf\" rel=\"nofollow noreferrer\">Iowa laws chapter 599 (minors)</a> says in section 599.2:</p>\n<blockquote>\n<p>A minor is bound not only by contracts for necessaries, but also by the minor’s other contracts, unless the minor disaffirms them within a reasonable time after attaining majority, and restores to the other party all money or property received by the minor by virtue of the contract, and remaining within the minor’s control at any time after attaining majority\nexcept as otherwise provided.</p>\n</blockquote>\n<p>Section 599.4 provides that:</p>\n<blockquote>\n<p>Where a contract for the personal services of a minor has been made with the minor alone, and the services are afterwards performed, payment therefor made to the minor, in accordance with the terms of the contract, is a full satisfaction therefor, and the parent or guardian cannot recover a second time.</p>\n</blockquote>\n<p>Findlaw's page <a href=\"https://blogs.findlaw.com/law_and_life/2018/08/do-parents-own-their-childrens-property.html\" rel=\"nofollow noreferrer\">"Do Parents Own Their Children's Property?"</a> says:</p>\n<blockquote>\n<p>All children under the age of 18 have the same rights with respect to owning property. They cannot enter into a contract without a parent co-signing, unless they are emancipated minors. But assuming that a minor came into the possession of the item without having entered into a contract, as is the case with most purchases and gifts, parents have no ownership rights over the property of children. Parents do, however, have legal responsibility for their children's actions, both criminally and civilly, under the doctrine of parental liability.</p>\n<p>Merging these two concepts of minor ownership and parental liability can be a real problem, in an age when parents are feeling like they have run out of disciplinary resources. For instance, if you don't like the way your child is behaving at home, can you legally take away their toy? Or their X-Box? Or their iPhone? The answer is, it depends, but it is never under a concept of ownership, but rather, custodial rights. But more often the real question is, are you seeing the bigger picture?</p>\n<p><strong>Custodial Control of Property</strong></p>\n<p>Parents, as legal guardians, may be allowed to take temporary custodial control of their children's property, and hold it in good care for them until a set time, and then return it. The child still owns the property, though they may not be constantly in possession.</p>\n</blockquote>\n",
"score": 5
},
{
"answer_id": 60104,
"body": "<p>A very specific case in CA is child actors. They are protected by California Code, Labor Code - <a href=\"https://codes.findlaw.com/ca/labor-code/lab-sect-1308-9.html\" rel=\"nofollow noreferrer\">LAB § 1308.9</a> and others. This involves setting up trusts for the child actor's wages to go into.</p>\n",
"score": 4
}
] |
[
"united-states",
"property",
"minor",
"parental-rights"
] |
Are you allowed to take notes on a book you bought with a note taking app?
| 1 |
https://law.stackexchange.com/questions/90171/are-you-allowed-to-take-notes-on-a-book-you-bought-with-a-note-taking-app
|
CC BY-SA 4.0
|
<p>Most books have something like "no part of this work may be copied" written on their first page.
Are you allowed to take notes on a book after you have purchased it with a note taking app, or would that count as a derivative work, which is not allowed either?
The notes would be stored on your device after you have saved them with note taking app.</p>
<p>I'm specifically asking about Germany.</p>
| 90,171 |
[
{
"answer_id": 90173,
"body": "<p>Copyright is not absolute. While copyright is reserved by default, copyright law contains many exceptions, and a disclaimer in a book's imprint cannot override them. What exceptions are available depends on national laws. The <em>fair use</em> exception is famous, but specific to U.S. law. German law instead provides a number of exceptions for specific situations. For example:</p>\n<ul>\n<li><p>§ 51 UrhG: publication of citations is legal, if the amount of cited material is justified by the specific context. In particular, including citations is justified in academic works that discuss the cited work.</p>\n</li>\n<li><p>§ 53 Abs 1 UrhG: private copies are allowed, as long as the original was acquired in a manner that was not obviously illegal, and as long as the copy is not used directly or indirectly for commercial purposes. See the German Wikipedia Article <a href=\"https://de.wikipedia.org/wiki/Privatkopie\" rel=\"nofollow noreferrer\"><em>Privatkopie</em></a> for context. Limitation: entire books may only be duplicated by manual transcription.</p>\n</li>\n<li><p>§ 53 Abs 2 UrhG: analogue (non-digital) copies for personal purposes are allowed in some additional circumstances.</p>\n</li>\n<li><p>And some specific exceptions for schools, teaching, research, and data mining.</p>\n</li>\n</ul>\n<p>What does this mean for taking notes?</p>\n<ul>\n<li><p>Notes that capture your own thoughts, or a summary of the copyrighted material in your own words, are not derivatives in the sense of copyright. (However, German copyright law doesn't have a 1:1 equivalent to the term “derivative”. Instead, “adaptation” might be a better fit for the German <em>Bearbeitung</em>.)</p>\n</li>\n<li><p>If these notes are purely personal, you can likely copy parts of the book into your notes. For example, this might cover a diary in which you write down poems that you like.</p>\n</li>\n<li><p>Quotes/citations can be allowed when necessary to discuss the book in your notes. Remember to clearly cite the source.</p>\n</li>\n</ul>\n<p>Personally, I keep extensive notes in digital form, for personal and for work purposes, and make extensive use of my right to cite parts of others' works, as necessary for discussion my notes. I generally keep those citations down to a level so that my notes could be published without copyright concerns, even if quoting longer passages could be allowed as an § 53 private copy.</p>\n",
"score": 2
}
] |
[
"copyright",
"licensing",
"germany"
] |
Can counterpart's counsel be cross-examined on the validity/merit of their arguments, or only witnesses?
| 0 |
https://law.stackexchange.com/questions/90128/can-counterparts-counsel-be-cross-examined-on-the-validity-merit-of-their-argum
|
CC BY-SA 4.0
|
<p>In court, a legal representative may be conducting the case and calling witnesses and cross examining the other side's witnesses.</p>
<ol>
<li><p>Are these representatives "sworn in" under oath?</p>
</li>
<li><p>As they may also deliver submissions of legal arguments, if not, perhaps, statements of fact, can they also be cross-examined by the counterparty?</p>
</li>
</ol>
| 90,128 |
[
{
"answer_id": 90130,
"body": "<p>In the <a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a>, attorneys are almost never placed under oath. Their statements -- whether they are assertions of fact or legal arguments -- are not evidence, and they are not subject to cross examination.</p>\n<p>There are limited circumstances in which an attorney would be competent to present actual evidence. In such cases, the attorney would be sworn in as a witness and subject to cross examination, but the attorney would likely also be disqualified from acting as an attorney in such a situation under <a href=\"https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_7_lawyer_as_witness/\" rel=\"noreferrer\">Model Rule 3.7</a>.</p>\n",
"score": 5
},
{
"answer_id": 90129,
"body": "<p>Only witnesses are cross-examined. See various rules of procedure: e.g. <a href=\"https://www.ontariocourts.ca/scj/practice/rules-forms/\" rel=\"nofollow noreferrer\">Ontario</a>, <a href=\"https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/168_2009_00\" rel=\"nofollow noreferrer\">British Columbia</a>.</p>\n<p>The procedure for responding to counsel submissions of their legal arguments is to make submissions in reply. These would be done at opening and closing.</p>\n",
"score": 3
},
{
"answer_id": 90170,
"body": "<h2>Counsel do not give evidence</h2>\n<p>As such, they are not subject to the rules of evidence including cross-examination.</p>\n<p>When they argue to law they are making submissions, not giving evidence. In general, a wise judge asks them to make their submissions to each other before submitting them - most sensible attorneys actually agree on 99% of what the law is if they listen to each others points.</p>\n",
"score": 3
}
] |
[
"england-and-wales",
"court",
"rules-of-court",
"cross-examination"
] |
Age you have to be to drive with a disabled parent
| 4 |
https://law.stackexchange.com/questions/85823/age-you-have-to-be-to-drive-with-a-disabled-parent
|
CC BY-SA 4.0
|
<p>I was in a car accident 9 years ago. My spine was fused twice and I know I am permanently disabled. I have 2 kids, one is 12 years old and another is 14.</p>
<p>Can the oldest child get an early driver's license? If so, what age can he do so?</p>
| 85,823 |
[
{
"answer_id": 85824,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"united-states-container\">united-states</a></p>\n<p>Possibly, depends on the state. <a href=\"https://codes.findlaw.com/tx/transportation-code/transp-sect-521-223/\" rel=\"noreferrer\">Texas law</a> allows early drivers licenses under this circumstance, though there is an age requirement (15 years). California allows such a license for 14 years olds. OTOH, Washington state does not have such hardship exceptions to the general age rule. Also, in various states (e.g. <a href=\"https://doa.alaska.gov/dmv/akol/permit.htm\" rel=\"noreferrer\">Alaska</a>), a person 14 years old can obtain a learner's permit, which would allow them to do the driving is there is a licensed driver at least 21 years old with at least one year of driving experience in the passenger's seat.</p>\n",
"score": 14
}
] |
[
"driving",
"minor",
"age"
] |
Rent office space and sleep there
| 2 |
https://law.stackexchange.com/questions/90151/rent-office-space-and-sleep-there
|
CC BY-SA 4.0
|
<p>Could someone theoretically rent out some office space in Pennsylvania in the United States and sleep in it?</p>
<p>Some business owners work late all the time and some may sleep in their office. When does someone sleeping in an office become illegal? Or does it ever become illegal?</p>
| 90,151 |
[
{
"answer_id": 90155,
"body": "<p>Whether it is legal to sleep in office space is generally determined under local zoning ordinances and wouldn't be uniform across an entire state.</p>\n<p>This said, the vast majority of localities would prohibit doing so under the relevant building and zoning ordinances of the municipality, or in unincorporated areas, the relevant building and zoning ordinances of the county. Typically, the penalty for doing so in violation of a local ordinance would be similar to the penalty for violating a minor to mid-grade misdemeanor, and each day you violate the ordinance would be a separate offense.</p>\n<p>Typically, the question under a local ordinance would be how the office space is being used. If the office space is being used for residential purposes, the building owner and/or tenant under a lease would be violating the ordinance. But, an isolated instance of falling asleep at your desk during the work day would not normally be considered to be a residential use of the property.</p>\n<p>If someone routinely spends the night at the office, not doing work, and has clothing and bedding and toiletries there, especially if the person doing so has no other residence, this would normally be treated as a residential use of the office building.</p>\n<p>This said, local code enforcement officials have great discretion to enforce such ordinances strictly, or to ignore arguable violations of them. A private citizen (perhaps a neighbor, for example) has no authority to compel the local government in question to enforce its ordinances as strictly as the law would permit.</p>\n",
"score": 3
}
] |
[
"rental-property",
"real-estate",
"rent",
"business-lease",
"commercial-lease"
] |
Does the exemption in 17 USC 110(1) apply to nonprofit educational institutions that are non-accredited?
| 0 |
https://law.stackexchange.com/questions/90124/does-the-exemption-in-17-usc-1101-apply-to-nonprofit-educational-institutions
|
CC BY-SA 4.0
|
<p>It is clear that the exemptions under 17 USC 110(2) apply only to nonprofit educational institutions that are accredited; the language is there on the face of the statute, and 110(11)(A) provides more detail. <strong>BUT</strong> 110(1) applies to "nonprofit educational institutions" without specifying an accreditation requirement.</p>
<p>What's the proper rule of interpretation here? Can non-accredited institutions take advantage of 110(1)? I could argue it both ways. Have courts or commentators interpreted 110(1) on this issue? What do the experts here think?</p>
| 90,124 |
[
{
"answer_id": 90157,
"body": "<p>The structure and the language of <a href=\"https://www.law.cornell.edu/uscode/text/17/110\" rel=\"nofollow noreferrer\">17 U.S.C. § 110</a> (which provides certain non-profit exemptions to copyright infringement) makes clear that the requirement that a non-profit educational institution be accredited applies only to 17 U.S.C. § 110(2), a point that is underscored by the definition of an accredited institution found in 17 U.S.C. § 110(11).</p>\n<p>The exemption of 17 U.S.C. § 110(1) applies to "nonprofit educational institutions" even if they are not accredited. I have no doubt whatsoever, that the legislative history and the case law would support that interpretation. It isn't a close call.</p>\n",
"score": 2
}
] |
[
"copyright"
] |
Does the "reasonable person" standard change based on social acceptance?
| 5 |
https://law.stackexchange.com/questions/90122/does-the-reasonable-person-standard-change-based-on-social-acceptance
|
CC BY-SA 4.0
|
<p>The "reasonable person" standard is the standard of care that a reasonably prudent person would observe under a given set of circumstances. It serves as a comparative standard for courts to assess liability. However, Society is constantly evolving. Acceptance of things change over time. Does that mean that the "reasonable person" standard also changes over time?</p>
| 90,122 |
[
{
"answer_id": 90156,
"body": "<blockquote>\n<p>Does that mean that the "reasonable person" standard also changes over\ntime?</p>\n</blockquote>\n<p>The reasonable person standard changes every time a new finder of fact, either a judge or a jury, considers a case.</p>\n<p>To a great extent the whole point of a "reasonable person" standard is to inject irreducible uncertainty into the question of what conduct someone can be held liable for, thereby giving juries (or judges in bench trials) discretion to evaluate complex factual situations and consider those situations in light of the fact finders' collective moral judgment.</p>\n<p>There are seemingly objective tests by which reasonableness can be measured, such as the "Learned Hand test" which compares the risk of harm caused by not taking a precaution times the likelihood that the harm will manifest itself. But ultimately, this is very rarely so clear a standard that it overcomes the broad discretion of the finder of fact to determine what is and isn't reasonable under a particular set of circumstances.</p>\n",
"score": 4
},
{
"answer_id": 90125,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>What is considered to be reasonable may change over time, but not <em>because</em> of reference to what the ordinary or average person in society would expect. These positions may move in unison, but that is coincidental, not necessarily causal.</p>\n<p>See <em>Bou Malhab v. Diffusion Métromédia CMR inc.</em>, <a href=\"https://canlii.ca/t/2frk1\" rel=\"nofollow noreferrer\">2011 SCC 9</a>:</p>\n<ul>\n<li>"the concept of a reasonable person is <em>normative</em> in nature rather than <em>descriptive</em>"</li>\n<li>"A reasonable person approves of average behaviour, that is, the behaviour of the majority of people, <em>only if it is rational and consistent with the nature of things</em>"</li>\n<li>"Although the ordinary person reacts like a sensible person who, like the reasonable person, respects fundamental rights, <em>care must be taken not to idealize the ordinary person and consider him or her to be impervious</em> to all negligent, racist or discriminatory comments, as the effect of this would be to sterilize the action in defamation."</li>\n</ul>\n<p>See also <em>R. v. Collins</em>, <a href=\"https://canlii.ca/t/1ftnd\" rel=\"nofollow noreferrer\">[1987] 1 SCR 265</a>:</p>\n<ul>\n<li>"The reasonable person is usually the average person in the community, <em>but only when that community's current mood is reasonable</em>."</li>\n</ul>\n<p>In many legal contexts, it is "up to the jury to decide whether, <em>in fact</em>, [a person's] perceptions and actions were reasonable": <em>R. v. Lavallee</em>, <a href=\"https://canlii.ca/t/1fsx3\" rel=\"nofollow noreferrer\">[1990] 1 S.C.R. 852</a>. In that case, expert evidence (about the cyclical and predictable nature of abuse) was available that left it open to the jury to find that the mental state of the accused was a reasonable one in the circumstances. In another case, from an earlier era, without such expert evidence, the jury may have found otherwise.</p>\n",
"score": 0
}
] |
[
"reasonableness"
] |
Is there a line that excludes preaching religious murders from first amendment protection?
| 4 |
https://law.stackexchange.com/questions/90142/is-there-a-line-that-excludes-preaching-religious-murders-from-first-amendment-p
|
CC BY-SA 4.0
|
<p>In general, religious beliefs can be as free under the first amendment as they come. You can believe in any god or pantheon, or nothing at all in pretty much any fashion. Very free indeed. But is it truly unlimited? So to illustrate, let's take a look at a fictitious <em>religion</em> that is defined by how repulsive it is:</p>
<p>Welcome to the world of Marvel Comics, where people like <a href="https://en.wikipedia.org/wiki/William_Stryker" rel="nofollow noreferrer">Reverend William Stryker</a> create fringe cults with bloomy names like <a href="https://en.wikipedia.org/wiki/Purifiers_(Marvel_Comics)" rel="nofollow noreferrer">Purifiers</a> that propagate hatred, demand genocide and hunt humanoid people for their cause since 1982.</p>
<p>The ideology of the purifiers is simple in its core tenet: People carrying a specific gene shall be found and killed. For that they develop technology to combat those individuals.</p>
<p>While most of the shadow-hidden acts that the purifiers do in the comics are crimes in themselves (abduction, mutilation, murder, genocide...), the Purifiers also are alluded to have a more public-facing side: They preach a rather fundamental offshoot of Christianity, heavily infested with their core tenet to kill mutants.</p>
<p>Now, does that make the religious belief to <em>kill the mutants</em> protected by the Freedom of Religion? At what point does preaching the <em>need</em> for some kind of religious killing from a protected activity to unprotected speech and a crime?</p>
| 90,142 |
[
{
"answer_id": 90149,
"body": "<p>As edited, this asks two different questions:</p>\n<ol>\n<li>Is it legal to have a religious belief that killing mutants is a moral necessity?</li>\n<li>Is it legal to preach a religious belief that killing mutants is a moral necessity?</li>\n</ol>\n<p>The answer to the first question is pretty clearly <strong>yes</strong>. Your right to think whatever you want is essentially ironclad under the First Amendment, under both the Free Exercise and the Free Speech clauses.</p>\n<p>The answer to the second question is more nuanced. Although it can be tricky to actually apply, there's little question that merely advocating for murder is generally protected under the First Amendment:</p>\n<blockquote>\n<p>The teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future</p>\n</blockquote>\n<p><a href=\"https://casetext.com/case/noto-v-united-states-2#p297\" rel=\"nofollow noreferrer\"><em>Noto v. United States</em>, 367 U.S. 290, 298 (1961)</a></p>\n<p>Over time, the courts have developed a two-part test for evaluating whether the advocacy of crime can itself be criminalized. We now assume that speech advocating for the commission of a crime as protected under the First Amendment, unless and until that speech is: (1) intended to cause imminent lawless action; and (2) likely to actually result in imminent lawless action. <a href=\"https://casetext.com/case/brandenburg-v-ohio\" rel=\"nofollow noreferrer\"><em>Brandenburg v. Ohio</em>, 395 U.S. 444, (1969)</a>.</p>\n<p>So if Rev. Stryker meets Charles Xavier for a televised debate on the merits of killing all mutants, that speech would likely be protected by the First Amendment. Although he may sincerely hope his words will inspire others to kill mutants, the time between speaking them and any resulting murder is too great to say they are either intended or likely to cause <em>imminent</em> lawless action.</p>\n<p>But if the X-Men confront Rev. Stryker on television, and Rev. Stryker urges his studio audience to storm the stage and kill them all, that's more likely to result in immediate violence, and therefore more likely to be considered unprotected incitement.</p>\n<p>There's of course a lot of middle ground between those two options, so the tough part for judges and juries is figuring out the speaker's actual intent and how imminent is too imminent.</p>\n",
"score": 3
},
{
"answer_id": 90148,
"body": "<p>The religious belief of the requirement to kill the mutants is protected protected by the First Amendment. Advocacy of mass murder is protected by the First Amendment. The line that you are looking for is the <a href=\"https://www.mtsu.edu/first-amendment/article/970/incitement-to-imminent-lawless-action\" rel=\"nofollow noreferrer\">"imminent lawless action test"</a>, first defined in Brandenburg v. Ohio and tuned up in Hess v. Indiana because there is no evidence that statement was "intended and likely to produce imminent disorder". The cert. denied case of <a href=\"https://www.law.cornell.edu/supct/html/02-20.ZA.html\" rel=\"nofollow noreferrer\">Stewart v. McCoy</a> draws attention to the question of whether particular</p>\n<blockquote>\n<p>speech “was mere abstract advocacy” that was not constitutionally\nproscribable because it did not incite “imminent” lawless action</p>\n</blockquote>\n<p>but Stevens makes the striking comment that</p>\n<blockquote>\n<p>the same justification does not necessarily adhere to some speech that\nperforms a teaching function.\nAs our cases have long identified, the First Amendment does not\nprevent restrictions on speech that have “clear support in public\ndanger.” Thomas v. Collins, 323 U.S. 516, 530 (1945). Long range\nplanning of criminal enterprises–which may include oral advice,\ntraining exercises, and perhaps the preparation of written\nmaterials–involves speech that should not be glibly characterized as\nmere “advocacy” and certainly may create significant public danger.</p>\n</blockquote>\n<p>This is, of course, just a "comment" and not a legal holding, but it does indicate a possible direction for a move that restricts freedom of speech in the US – a resurrection of the "clear and present danger" test.</p>\n",
"score": 0
}
] |
[
"united-states",
"law-in-fiction",
"freedom-of-religion"
] |
Is it possible to prove copyright infringement when artificial intelligence is used?
| 2 |
https://law.stackexchange.com/questions/86500/is-it-possible-to-prove-copyright-infringement-when-artificial-intelligence-is-u
|
CC BY-SA 4.0
|
<p>If there are two significantly similar pieces of fiction, but no word to word sentences, is it possible to use artificial intelligence to prove the similarities ( or reverse engineer in the case artificial intelligence was used to write one, when the other has been used as a prompt to train the program) ? What is the law concerning non consenting parties whose work was used to “teach” the machine?</p>
| 86,500 |
[
{
"answer_id": 86502,
"body": "<p>In such a case, a court would generally look at the result. If the later work is found to have "substantial similarity" to the earlier work, or to be a derivative work of the earlier work, and if <em><strong>fair use</strong></em> (in a US court) or another <em><strong>exception to copyright</strong></em> (elsewhere, including <em><strong>fair dealing</strong></em> in the UK) is not found, then the court might well find that there was an infringement of copyright.</p>\n<p>Note, both "substantial similarity" and "derivative work " are intentionally somewhat vague terms in copyright law, allowing case-by-case decision and flexibility.</p>\n<p>The court will probably care little about whether or how an AI was used. It is the output, not the input, that will be the issue, I think. I do not know of a case with exactly this fact pattern, however.</p>\n",
"score": 2
},
{
"answer_id": 90145,
"body": "<p>There seem to be a number of questions here. One is, suppose a program actually generates a literary text, which happens to be sufficiently like another human-created text. Then who holds copyright? The human-created text is protected by copyright, the machine-created text is not in the US, until the courts say that computer-generated text is copyrightable (unlikely, without an act of Congress). The monkey-selfie case clarified that only human outputs are protected.</p>\n<p>The second question is whether a program could be used to address the question of whether there was copying. Logically, it it seems that two works are similar, the similarity could be a coincidence, A might have copied from B (or the opposite). This is a factual question which ideally involve expert testimony (which incidentally can only be provided by a human). The expert can and really <em>should</em> rely on some computer program that instantiates scientific knowledge about the structure of texts. The expert could testify that it is highly probable that certain similarities are coincidental (the presence of the sentence "Well, then, let's go!") or that it is highly improbable that the texts arose independently (the text "It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way—in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only"). Scientific evidence in copyright infringement cases is no more legally obligatory than DNA is required in criminal cases, it's just harder to disagree with a one-sided cold-hard scientific argument. Instead, courts may rely on ideas like "striking similarity", "probative similarity" or "substantial similarity" as a subjective standard for determining whether copying took place. A program would instead give you a number, such as a p-value.</p>\n<p>Such expert testimony would be subject to an admissibility challenge, where the opposing side would argue that the supposedly scientific methodology was no better that entrail-divination. So far, no court has allowed ChatGPT dialogues to be admitted as expert testimony. Courts routinely allow experts to base their testimony on the output of statistical programs, because they are reliable at that. Ultimately, any computer-assisted testifying requires the expert to understand the logical basis for asserting "this was copied" vs. "this is just a coincidence".</p>\n",
"score": 0
}
] |
[
"copyright",
"artificial-intelligence"
] |
NSW, AU Living in a Class-1A approved shed, that's not a "dewlling"
| 4 |
https://law.stackexchange.com/questions/90093/nsw-au-living-in-a-class-1a-approved-shed-thats-not-a-dewlling
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CC BY-SA 4.0
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<p>We've been living in a shed as a house for the last ~12 years. Now it has come to the attention of the local council, and they're sending out inspectors, etc.</p>
<p>The shed was approved (to 1A standards) by the council for the previous owner.
All the water/sewage/electricity connections are all official and approved.
The previous owner fitted out the shed as a "house", and we simply bought it and moved in. The previous owners had a development application to build a shed and a house, but seem to have only gone through with the shed.</p>
<p>Can the council kick us out of our shed/house?
Does the amount of time we've lived here make any difference?</p>
| 90,093 |
[
{
"answer_id": 90139,
"body": "<blockquote>\n<p>Can the council kick us out of our shed/house?</p>\n</blockquote>\n<p>Potentially, yes. Although this is very unlikely.</p>\n<blockquote>\n<p>Does the amount of time we've lived here make any difference?</p>\n</blockquote>\n<p>No.</p>\n<h2>Building and development in <a href=\"/questions/tagged/new-south-wales\" class=\"post-tag\" title=\"show questions tagged 'new-south-wales'\" aria-label=\"show questions tagged 'new-south-wales'\" rel=\"tag\" aria-labelledby=\"tag-new-south-wales-tooltip-container\">new-south-wales</a></h2>\n<p>The law that governs building and construction in NSW is the <a href=\"https://legislation.nsw.gov.au/view/html/inforce/current/act-1979-203\" rel=\"nofollow noreferrer\">Environmental Planning and Assessment Act 1979</a>. It's a very broad law and covers everything from a flagpole or barbeque to airports and railways and has a hierarchy of controls from State Environmental Plans (SEP) down to Local Environmental Plans (LEP) and finally the Building Code of Australia (BCA) and Plumbing Code of Australia (PCA). Electricity and gas installations are covered by different laws.</p>\n<p>However, for housing, there is a SEP that allows them to be constructed without Development Consent providing they comply with all relevant LEPs and the BCA & PCA. These so-called Complying Developments (CD) must be notified to the council but do not need the Council's approval. If you want to break the rules, you can't use this process and must go for a full Development Approval (DA). For completeness, there are also Exepnt Developments and State Significant Developments but neither are relevant here.</p>\n<p>Once you have your DA or CD, you need to engage a Principal Certifying Authority (PCA) - a private certifier who ensures that the work is in compliance with the DA/CD and the BCA. They will issue a Construction Certificate (CC) which details the work that needs to be done. When its all finished to their satisfaction, they will issue an Occupation Certificate (OC) and the building can now be used.</p>\n<p>You state that you have a DA (or maybe a CD) for a house and shed but only the shed was built and then fitted out as a house. Prima facie, this isn't compliant because it isn't what was approved. I am willing to bet that there is no OC and possibly no CC. This happens a lot.</p>\n<p>When you brought the property, your conveyancer should have checked that all building work was compliant. Maybe they did and told you about it but you didn't understand and went ahead anyway; maybe they didn't and just stuffed up.</p>\n<p>Now, if the building complies with the LEP and the BCA, all that may be necessary is to lodge a CD, hire a PCA to inspect the property and issue an OC and all the paperwork will be in order and everyone's happy.</p>\n<p>If there are non-compliances, the council can, and probably will issue you a notice to fix them within a specified time frame. Providing you do that, you can then get the retroactive approvals and all will be good.</p>\n<p>However, if it's something that can't be readily fixed - like the building is too near the boundary, for example, that's when things get interesting.</p>\n",
"score": 1
}
] |
[
"australia",
"local-authorities",
"new-south-wales",
"building-code"
] |
If you are serving a life sentence, die, are legally declared dead, and are brought back to life, are you now free?
| 7 |
https://law.stackexchange.com/questions/25675/if-you-are-serving-a-life-sentence-die-are-legally-declared-dead-and-are-brou
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CC BY-SA 3.0
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<p>Apologies if this is too hypothetical and not allowed. I'm not trained in law, but am curious about the following question:</p>
<p>If you are sentenced to 1 life sentence, die, are legally declared dead, and you are brought back to life (not going to address how, but who knows, maybe it's something that could happen in the future), will you now be free, having technically served a life sentence? You were in prison until your death. Would the second interval of life be considered the same life, and so imprisonment should continue, or would it be a second life? </p>
<p>I understand that there is probably no precedent for this and so any answer may just be speculation. But if you were the judge, what would your opinion be?</p>
<p>As a follow up question, if the answer is that your second life would be free, then what if you have 2 life sentences? Would you serve another life sentence upon your second life? In that case, would the second life sentence be considered served to completion upon your second death, in which case you would be free if you were lucky enough to be revived once more?</p>
| 25,675 |
[
{
"answer_id": 25677,
"body": "<p>If you can be revived, you are <strong>not</strong> <a href=\"https://en.m.wikipedia.org/wiki/Legal_death\" rel=\"noreferrer\">legally dead</a>.</p>\n\n<p>To be declared dead you must be in cardio-pulmonary failure and have all attempts at resuscitation cease or be brain dead - no one has ever recovered from these conditions.</p>\n\n<p>Notwithstanding, if you are declared legally dead and show up alive, that declaration can be nullified i.e. you were never dead.</p>\n",
"score": 9
},
{
"answer_id": 25739,
"body": "<p>Not a life sentence, but close enough to post it. After all, once you are dead you stop serving time; you no longer are a prisoner.</p>\n\n<p>Recently in Spain a prisoner was found in a deep coma (apparently he attempted to suicide) and was certified dead, only to be revived later (<a href=\"http://www.bbc.com/news/world-europe-42609239\" rel=\"nofollow noreferrer\">http://www.bbc.com/news/world-europe-42609239</a>).</p>\n\n<p>And no, he was not freed because of the incident. I have read that he has asked for an amnesty on the basis of the \"mental pain\" from the incident, but that is all.</p>\n",
"score": 1
}
] |
[
"sentencing"
] |
Are police legally obligated to read warrants out to you if asked?
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https://law.stackexchange.com/questions/90116/are-police-legally-obligated-to-read-warrants-out-to-you-if-asked
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CC BY-SA 4.0
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<p>If you ask police to read warrants out before they enter your premises, are the forced to? Can police being asked to read out a warrant and not doing so be grounds for having a warrant deemed invalid?</p>
| 90,116 |
[
{
"answer_id": 90123,
"body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"tag-england-and-wales-tooltip-container\">england-and-wales</a></p>\n<p>No.</p>\n<p>The only<sup>1</sup> requirement is for the officer serving the warrant to show the occupier the original and provide a copy or, if there's no one in, to leave it in a prominent position as per <a href=\"https://www.legislation.gov.uk/ukpga/1984/60/section/16?timeline=false\" rel=\"nofollow noreferrer\">section 15</a> Police and Criminal Evidence Act 1984:</p>\n<blockquote>\n<p>...</p>\n<p>(5)Where the occupier of premises which are to be entered and searched is present at the time when a constable seeks to execute a warrant to enter and search them, the constable—</p>\n<ul>\n<li><p>(a)shall identify himself to the occupier and, if not in uniform, shall produce to him documentary evidence that he is a constable;</p>\n</li>\n<li><p>(b)shall produce the warrant to him; and</p>\n</li>\n<li><p>(c)shall supply him with a copy of it.</p>\n</li>\n</ul>\n<p>(6)Where—</p>\n<ul>\n<li><p>(a)the occupier of such premises is not present at the time when a constable seeks to execute such a warrant; but</p>\n</li>\n<li><p>(b)some other person who appears to the constable to be in charge of the premises is present,subsection (5) above shall have effect as if any reference to the occupier were a reference to that other person.</p>\n</li>\n</ul>\n<p>(7)If there is no person who appears to the constable to be in charge of the premises, he shall leave a copy of the warrant in a prominent place on the premises.</p>\n</blockquote>\n<p>Delaying entry in order to read out the entire warrant could result with evidence being lost or destroyed, or suspects absconding.</p>\n<hr />\n<p><sup>1</sup> there's also going to be some other paperwork depending on the particular circumstances.</p>\n",
"score": 3
},
{
"answer_id": 90120,
"body": "<p>If the police have a valid warrant, they can search the premise. The primary procedural distinction on the execution of the warrant is that "knock and announce" can be a component of a reasonable search, see <a href=\"https://supreme.justia.com/cases/federal/us/514/927/\" rel=\"nofollow noreferrer\">Wilson v. Arkansas</a>, 514 U.S. 927, therefore unannounced entry can be unreasonable. A no-knock warrant is possible (deemed reasonable) if there is an immediate threat to the safety of the officers or probability that evidence will be destroyed.</p>\n<p><a href=\"https://www.law.cornell.edu/rules/frcrmp/rule_41\" rel=\"nofollow noreferrer\">Rule 41(f) (FRCRMP)</a> states the federal rules for executing and returning a warrant. You will note that there is no rule about how you actually initiate or conduct the search, once you have the warrant. An occupant can consent to a search, which is irrelevant if there is a warrant: apart from giving consent as one means of making a search reasonable, the occupant is out of the picture. Instead, the defendant in any resulting prosecution could move to exclude evidence, if it is determined that it was illegally obtained. It is a courtesy but not a right to be shown the warrant (nb an actual verbal reading of the warrant would be a delay tactic, which the law does not endorse).</p>\n<p><a href=\"https://www.uscourts.gov/sites/default/files/ao093.pdf\" rel=\"nofollow noreferrer\">This federal warrant form</a> includes a statement (to the executing officer) that</p>\n<blockquote>\n<p>Unless delayed notice is authorized below, you must give a copy of the\nwarrant and a receipt for the property taken to the person from whom,\nor from whose premises, the property was taken, or leave the copy and\nreceipt at the place where the property was taken.</p>\n</blockquote>\n<p>I have found no evidence that failure to supply a copy of the warrant to the person (when property is seized) results in exclusion of the evidence, and the language does not make it a precondition for entry that a copy be given to the owner.\n<a href=\"https://www.fletc.gov/audio/execution-search-warrant-i-mp3\" rel=\"nofollow noreferrer\">This description</a> of the warrant-execution procedure says that "Then ideally they would show the occupants the copy of the search warrant if possible, they are not always going to have the warrant at the very beginning of the search but at lease by the time they are done they should have shown someone in the premises a copy of that warrant". Should have is different from "must".</p>\n<p>A state might add a requirement that police must show a warrant to an occupant who demands to see the warrant, but Washington state is a state that is likely to have such a requirement, and there is no such requirement (there are 49 other states).</p>\n",
"score": 1
}
] |
[
"united-states",
"constitutional-law",
"police",
"search-and-seizure"
] |
In US law, what is the legal difference between an alcoholic beverage in an open container and one in a closed container?
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https://law.stackexchange.com/questions/90096/in-us-law-what-is-the-legal-difference-between-an-alcoholic-beverage-in-an-open
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<p>Watching TV and discussing <a href="https://law.stackexchange.com/a/90054/8683">https://law.stackexchange.com/a/90054/8683</a>, the matter of whether a container of an alcoholic beverage is open or closed may be of importance. I've heard of minors being arrested for being in possession of an <em>open</em> container of alcohol.</p>
<p>So:</p>
<p>In US law, what is the legal difference between an alcoholic beverage in an open container and one in a closed container?</p>
| 90,096 |
[
{
"answer_id": 90109,
"body": "<p>These laws are state-by-state in the US. The great State of Louisiana has defined these as such. Note 3b, allowing drive-through daiquiri sales, lol.</p>\n<p>Possession of alcoholic beverages in motor vehicles</p>\n<p>A. It shall be unlawful for the operator of a motor vehicle or the passenger in or on a motor vehicle, while the motor vehicle is operated on a public highway or right-of-way, to possess an open alcoholic beverage container, or to consume an alcoholic beverage, in the passenger area of a motor vehicle.</p>\n<p>[Alcoholic beverages are described in-depth]</p>\n<p>(3)(a) "Open alcoholic beverage container" means any bottle, can, or other receptacle that contains any amount of alcoholic beverage and to which any of the following is applicable:</p>\n<p>(i) It is open or has a broken seal.</p>\n<p>(ii) Its contents have been partially removed.</p>\n<p>(b) "Open alcoholic beverage container" shall not mean any bottle, can, or other receptacle that contains a frozen alcoholic beverage unless the lid is removed, a straw protrudes therefrom, or the contents of the receptacle have been partially removed.</p>\n",
"score": 1
},
{
"answer_id": 90102,
"body": "<p>Largely the difference is in your ability to transport alcohol. In all but 7 states, open container laws typically do not permitted one to have open containers of alcoholic beverages in a vehicle and having such can be evidence of a DUI or DWI in and of itself. The idea is that the open container can be used by the driver who was pulled over, and in the time, it takes the cops to walk from their car to the suspects, the driver can pass the open container to a friend and claim it was the friend who was drinking, not the driver.</p>\n<p>Generally, "open containers" will be considered such if there is no possible means of closing the container (Think your typical "Red Solo Cups") such that liquid cannot escape if the container is turned upside down. A previously un-corked and re-corked bottle of wine would be less suspicious, especially if the driver and passengers cannot regularly access it.</p>\n<p>Specifically, the law makes it illegal to have an open container in the passenger compartment. If you intend to transport an opened container, it's advised to place it in the trunk space of the vehicle though there can be some trouble if your trunk has no separation from the passenger compartment (i.e. In a van or SUV where the cargo space is accessible behind the back seat of the vehicle). It also excuses vehicles that are driven commercially for human transport (so Buses, Limos, and Taxis), many of which have a separation of the driver and passenger compartments. Additionally, the vehicle must be being driven at the time of the offense AND on a public right of way (so tailgating does not fall under this, since the vehicle is parked, often in a privately owned parking lot).</p>\n<p>When not dealing with vehicles, open carry laws are usually to prevent drinking on publicly owned property, so you cannot drink while you are walking on a sidewalk. Usually this is a local ordinance, and not a state law.</p>\n<p>In all cases, "Open containers" legally imply an intent to drink, whereas closed containers legally imply no intent to drink. As such, any minor (legally defined as Under 18 years of age, occasionally under 21 when dealing with alcohol laws) is not allowed to possess an open container with few exceptions (typically letting a minor drink on rare occasions such as holidays OR for religious ceremonies such as Sacramental Wine in various sects of Christianity).</p>\n",
"score": 0
},
{
"answer_id": 90103,
"body": "<p>In the US, federal law does not control the open vs. closed container condition. This is left to the states and in many cases the locality.</p>\n<p>In my state, Indiana, IC 7.1-5-7-7 defines what is illegal with respect to minors and alcohol. See: <a href=\"https://iga.in.gov/legislative/laws/2021/ic/titles/7.1#7.1-5-7\" rel=\"nofollow noreferrer\">Indiana Minors and Alcohol</a></p>\n<p>Note that there is no mention here about open vs. closed containers.</p>\n<p>There is, however, relevant law regarding open containers in the Motor Vehicle portion of the code. Specifically IC 9-30-15-3 governs open containers, alcohol, and motor vehicles. See: <a href=\"https://iga.in.gov/legislative/laws/2021/ic/titles/009#9-30-15\" rel=\"nofollow noreferrer\">Motor Vehicles open container</a></p>\n<p>Note that there also may be local laws governing open containers in other circumstances but state law does not deal with those.</p>\n<p>These obviously vary between the states so there is no universal answer across the US.</p>\n",
"score": 0
}
] |
[
"united-states",
"definition",
"alcohol"
] |
If police seize property that is not on a warrant can you accuse them of theft?
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https://law.stackexchange.com/questions/90115/if-police-seize-property-that-is-not-on-a-warrant-can-you-accuse-them-of-theft
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<p>If police seize property that is not on a warrant are they basically stealing from you? What is your recourse if this is to happen? Can you make a case of theft against the police or is there nothing else to do but to start a <a href="https://www.law.cornell.edu/uscode/text/42/1983" rel="nofollow noreferrer">section 1983</a> suit?</p>
| 90,115 |
[
{
"answer_id": 90117,
"body": "<p>Police liability under state law has meaningful variation from state to state.</p>\n<p>Most prominently, one could seek to regain possession of property unlawfully taken that belongs to the person bringing suit by some means or another, although the procedural framework for doing so varies quite a bit from state to state and can be quite arcane. This can't be done, however, of course, in the case of contraband (e.g. if cocaine is seized in a search made without a search warrant where a search warrant should have been required).</p>\n<p>It is also generally in almost every jurisdiction in the U.S. some sort of state law crime for law enforcement officers to take property for personal use from a private citizen.</p>\n<p>There are three main theories under federal law:</p>\n<ol>\n<li><p>A suit under Section 1983 for an intentional violation of a well established constitution right by a state and local government official.</p>\n</li>\n<li><p>A <em>Bivens</em> lawsuit for an intentional violation of selected well established constitutional rights by federal government officials.</p>\n</li>\n<li><p>A reverse takings clause lawsuit (also called an inverse condemnation action) against the entity that employs a government official alleging that property was taken without due process of law and without justice compensation - but this is limited by a police power exception in most cases where the action can be colorable tied to a legitimate use of police powers.</p>\n</li>\n</ol>\n",
"score": 2
},
{
"answer_id": 90118,
"body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"tag-england-and-wales-tooltip-container\">england-and-wales</a></p>\n<p>It depends on what the property is, and why the police seized it.</p>\n<p>In addition to any power granted by a warrant, the police have what's colloquially termed <em>the general power of seizure</em> under <a href=\"https://www.legislation.gov.uk/ukpga/1984/60/section/19?timeline=false\" rel=\"nofollow noreferrer\">section 19</a> Police and Criminal Evidence Act 1984:</p>\n<blockquote>\n<p>(1) The powers conferred by subsections (2), (3) and (4) below are exercisable by a constable who is lawfully on any premises.</p>\n<p>(2) The constable may seize anything which is on the premises if he has reasonable grounds for believing—</p>\n<ul>\n<li><p>(a) that it has been obtained in consequence of the commission of an offence; and</p>\n</li>\n<li><p>(b) that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed.</p>\n</li>\n</ul>\n<p>(3) The constable may seize anything which is on the premises if he has reasonable grounds for believing—</p>\n<ul>\n<li><p>(a) that it is evidence in relation to an offence which he is investigating or any other offence; and</p>\n</li>\n<li><p>(b) that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed.</p>\n</li>\n</ul>\n<p>(4) The constable may require any information which is stored in any electronic form and is accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible or from which it can readily be produced in a visible and legible form if he has reasonable grounds for believing—</p>\n<ul>\n<li>(a) that—</li>\n</ul>\n<blockquote>\n<p>(i) it is evidence in relation to an offence which he is investigating or any other offence; or</p>\n<p>(ii) it has been obtained in consequence of the commission of an offence; and</p>\n</blockquote>\n<ul>\n<li>(b) that it is necessary to do so in order to prevent it being concealed, lost, tampered with or destroyed.</li>\n</ul>\n<p>(5) <strong>The powers conferred by this section are in addition to any power otherwise conferred.</strong></p>\n</blockquote>\n<p>So, if the warrant was to search for drugs and the police happen across, say, stolen items and if the above s.19 criteria are met, it would lawful to seize them.</p>\n<p>If one believes the items were seized unlawfully, they can make an application to the <a href=\"https://www.legislation.gov.uk/ukpga/2001/16/section/64?timeline=false,\" rel=\"nofollow noreferrer\">appropriate judial authority</a>, under <a href=\"https://www.legislation.gov.uk/ukpga/2001/16/section/59?timeline=false\" rel=\"nofollow noreferrer\">section 59</a> Criminal Justice and Police Act 2001 claiming, for example:</p>\n<blockquote>\n<p>that there was no power to make the seizure;</p>\n</blockquote>\n",
"score": 1
}
] |
[
"united-states",
"police",
"us-constitution",
"search-and-seizure"
] |
Is shipping an 80% lower to someone in Washington Illegal
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https://law.stackexchange.com/questions/46884/is-shipping-an-80-lower-to-someone-in-washington-illegal
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CC BY-SA 4.0
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<p>I was apart of a conversation where one person who lives in the state of Washington wanted someone who lives in Texas to buy a glock <code>80% lower</code> for them and ship it to them in Texas. To me, this sounds like a really bad idea and I alerted the Texan about my concerns. I tried looking up the legality on it and it seems like it might technically be legal because the ATF doesn't consider an 80% lower a firearm until it's been milled. Can someone please explain to me if this would be a legal transaction, or should I continue to urge these two to back out.</p>
<p>edit: An <code>80% lower</code> is described as "An 80 lower is an unfinished lower - "80" meaning it is 80% percent complete. To turn an 80% lower into a 100% lower you have to mill out the fire control group"</p>
| 46,884 |
[
{
"answer_id": 46891,
"body": "<p>Note, <a href=\"http://lawfilesext.leg.wa.gov/biennium/2019-20/Pdf/Bills/Senate%20Bills/5061.pdf\" rel=\"nofollow noreferrer\">Washington State Senate Bill 5061</a> seeks to block certain \"untracable\" firearms without a serial number. This relates in part to \"3D printable\" guns, but the act of milling of a 80% lower (in Washington) could be a violation, if and when it passes. But <a href=\"https://app.leg.wa.gov/billsummary?BillNumber=5061&Year=2019\" rel=\"nofollow noreferrer\">it appears the bill hasn't been made a law yet</a>... Is Washington specific news this issue what drives the question?</p>\n\n<p>Federally, the <a href=\"https://www.atf.gov/firearms/qa/are-%E2%80%9C80%E2%80%9D-or-%E2%80%9Cunfinished%E2%80%9D-receivers-illegal\" rel=\"nofollow noreferrer\">ATF web site</a> says:</p>\n\n<blockquote>\n <p><strong>Receiver blanks that do not meet the definition of a \"firearm\" are not subject to regulation under the GCA. The ATF has long held that items such as receiver blanks, \"castings\" or \"machined bodies\" in which the fire-control cavity area is completely solid and un-machined have not reached the \"stage of manufacture\" which would result in the classification of a firearm per the GCA.</strong></p>\n</blockquote>\n\n<p>But this gets a bit technical. For further risk mitigation, the Texan could mitigate any risk related to both Federal and Washington state law by shipping it to a federal firearms licensee (FFL) in Washington as if it were a firearm, <a href=\"https://www.atf.gov/firearms/qa/whom-may-unlicensed-person-transfer-firearms-under-gca\" rel=\"nofollow noreferrer\">per ATM instructions which say</a> (in part):</p>\n\n<blockquote>\n <p><strong>Generally, for a person to lawfully transfer a firearm to an unlicensed person who resides out of State, the firearm must be shipped to a Federal Firearms Licensee (FFL) within the recipient’s State of residence. He or she may then receive the firearm from the FFL upon completion of an ATF Form 4473 and a NICS background check.</strong> </p>\n</blockquote>\n\n<p>That FFL is then responsible for ensuring the transaction properly conducted in the state of Washington, including federal and state requirements. The FFL I contacted only charged $25.00 (plus collecting the state sales tax). <a href=\"https://www.atf.gov/firearms/atf-form-4473-firearms-transaction-record-revisions\" rel=\"nofollow noreferrer\">Form 4473</a> was easy enough; only about one page for me to fill out. Of course, I've got a clean record, so going through channels isn't a problem for me, it took less than an hour. </p>\n\n<p>The FFL confirmed for me that it wasn't necessary for something like an antique musket, which legally isn't a firearm by the federal defeinitions. In my case the sender was a nervous \"trust\" lawyer who wasn't sure, hired yet another lawyer to advise him. The FFL didn't charge me anything for receiving that musket. </p>\n",
"score": 5
}
] |
[
"united-states",
"texas",
"washington",
"firearms",
"shipping"
] |
Are legislators and legislative drafts people legally one and the same?
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https://law.stackexchange.com/questions/90110/are-legislators-and-legislative-drafts-people-legally-one-and-the-same
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CC BY-SA 4.0
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<p>If they are legally seen as such, this seems to me a pretty egregious (egregiously counterproductive) legal fiction. There is no way that members of a legislature can have the time to go through the minute levels of detail and wording that would be as carefully considered as it would by the actual draftspeople.</p>
<p>In this way, certain wording and grammatically ambiguous idiosyncrasies can seemingly never be debated on the legislatures' floors, or any level of detail perhaps beyond debates of the inclusion or omission of an entire particular clause or section etc, on which legislators seem to be briefed. So in interpretation, often when a question turns on minute grammatical seeming-oversights, Hansard (or international equivalent) debate transcripts would seem to be of no help, and the only way that one could gain the equivalent (yet useful) insight in interpreting true intent to the extent that it was actually possessed by any humans involved in the legislative process would be to look into the internal notes remnant from the drafting process in the Office of Legislative Draftspeople.</p>
<p>Is this distinction of legislature and legislative drafts office ever recognised to enable one to look behind the scenes, beyond the actual legislature-members themselves to the people actually turning the gears, in a legal context?</p>
<p>Not sure how this question would intersect with parliamentary (or international equivalent, so far as it exists) privilege.</p>
<p>Corollary, this question is premised in the first paragraph on an assumed answer to the question of the level of familiarity that actual legislators/MPs gain with the minutiae of legislation, ie that they don't have time to go into all the minute details and in fact fairly far from it. Is that actually accurate? Perhaps this is a second question.</p>
| 90,110 |
[
{
"answer_id": 90112,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>These roles are distinct. See e.g. <em>Mikisew Crew First Nation v. Canada (Governor General in Council)</em>, <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17288/index.do\" rel=\"nofollow noreferrer\">2018 SCC 40 at para. 160</a>. There, the reasons distinguish between all the various actors involved in a bill's preparation. The legislation drafting team at the Department of Justice (and in fact, <em>all</em> of the executive branch process leading up to a bill's introduction) is presented as distinct from the consideration of the bill in Parliament.</p>\n<p>The internal preparatory work and drafting is protected by Parliamentary privilege.</p>\n",
"score": 1
}
] |
[
"united-kingdom",
"any-jurisdiction",
"parliamentary-procedure",
"legislative-intent",
"legislative-drafting"
] |
Are there any official or unofficial principles about if a law is sufficiently interpretable?
| 0 |
https://law.stackexchange.com/questions/90101/are-there-any-official-or-unofficial-principles-about-if-a-law-is-sufficiently-i
|
CC BY-SA 4.0
|
<p>I have been really interested in how it seems like there is an unavoidable limit to how sort of objective the meaning of a law can be. There are plenty of things in life where you can ask if some assertion a person has made is even well-defined; if it is even clear what it means, how to decide what meets a description and what doesn’t; or, more importantly, if it is subjectively up to people to decide what does and does not meet certain criteria, if they are illogically choosing cases based on conventions in their mind but which don’t seem to correspond to self-consistent principles; the decider may have a kind of self-consistency in the sense of regularity, only it isn’t clear if that’s arbitrary or if it has some principle that actually explains the decisions.</p>
<p>So, when people create laws, do they just subjectively decide if they think the law is sufficiently clear, not ambiguous, and interpretable, or is there any theory people refer to to try to decide if a law simply is unclear to the point of meaningless?</p>
<p>In a hypothetical case, if someone wanted to pass a gibberish law of randomly scrambled alphabetical letters, would legislators / judges freely say anything they wanted to, like, “The law doesn’t look good to me, I vote No”, or would they refer to a more rarefied or developed theory about what specific principles the law fails to attain, which is why they dispute it, like, “the principle of interpretability”? If so, what are the specifics of that theory?</p>
| 90,101 |
[
{
"answer_id": 90105,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>A law is impermissibly vague only when it prevents a court from giving sensible meaning to its terms. Difficulty, ambiguity, and <a href=\"https://en.m.wikipedia.org/wiki/Open_texture\" rel=\"nofollow noreferrer\">open texture</a> do not equate with impermissible vagueness. See generally, <em>Reference re: ss. 193 and 195.1(1)(c) of the Criminal Code (Man.)</em>, <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/611/index.do\" rel=\"nofollow noreferrer\">[1990] 1 S.C.R. 1123</a>.</p>\n<p>At the legislative stage, there is no express theory of interpretabilty that legislators are using. This is a practical activity. The drafters attempt to convey a meaning consistent with their purposes. People vote according to the meaning that the words conjure in their minds. As Wittgenstein says, "the meaning of a word is its use." Our shared concepts in public language spring forth from shared use.</p>\n",
"score": 2
}
] |
[
"theory-of-law"
] |
Is awarding a day off for women employees on 8 March a discrimination against the male employees?
| 2 |
https://law.stackexchange.com/questions/90074/is-awarding-a-day-off-for-women-employees-on-8-march-a-discrimination-against-th
|
CC BY-SA 4.0
|
<p>Early this year I joined a new company. As part of the benefits they give to their employees is included a day off, paid by the company, to all female employees for the 8 of March because of the International Woman's Day celebration.</p>
<p>So women employees get one benefit more than men employees, simply because they are women.</p>
<p>I'm curious to understand under what conditions can employees be treated differently differently by the company based on their gender and not be considered discrimination.</p>
| 90,074 |
[
{
"answer_id": 90085,
"body": "<p>In the US, prohibitions against sex discrimination in employment do not include an exception when males are the targets of a discriminatory practice, whatever the underslying rationale may be. The specific language of <a href=\"https://www.law.cornell.edu/uscode/text/42/2000e-2\" rel=\"noreferrer\">42 USC 2000e-2</a> is</p>\n<blockquote>\n<p>It shall be an unlawful employment practice for an employer— (1) to\nfail or refuse to hire or to discharge any individual, or otherwise to\ndiscriminate against any individual with respect to his compensation,\nterms, conditions, or privileges of employment, because of such\nindividual’s race, color, religion, sex, or national origin</p>\n</blockquote>\n<p>Although sex discrimination <a href=\"https://www.reminger.com/publication-772\" rel=\"noreferrer\">lawsuits are infrequent</a> when the victim is male, extending a beneficial condition of employment to females only would be as illegal as extending a beneficial condition of employment to whites only.</p>\n",
"score": 5
},
{
"answer_id": 90075,
"body": "<p>Discrimination in non-government employment settings is defined by statute; what is prohibited or permitted will vary from jurisdiction to jurisdiction.</p>\n<p><a href=\"/questions/tagged/british-columbia\" class=\"post-tag\" title=\"show questions tagged 'british-columbia'\" aria-label=\"show questions tagged 'british-columbia'\" rel=\"tag\" aria-labelledby=\"tag-british-columbia-tooltip-container\">british-columbia</a></p>\n<p>The BC Human Rights Code says that, in employment, a person must not\ndiscriminate against a person regarding employment or any term or condition of employment because of gender identity or expression" (<a href=\"https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_96210_01#section13\" rel=\"nofollow noreferrer\">s. 13</a>).</p>\n<p>However, <a href=\"https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_96210_01#section42\" rel=\"nofollow noreferrer\">s. 42</a> deems that <em>it is not discrimination</em> to adopt an equity program that "has as its objective the amelioration of conditions of disadvantaged individuals or groups who are disadvantaged because ... sex, sexual orientation, or gender identity or expression." The BC Human Rights Tribunal and the Court of Appeal for British Columbia have both held that such preferential treatment does not require prior approval: see <em>Reid et al. v. Vancouver (City) et al. (No. 5)</em>, 2000 BCHRT 30 <a href=\"https://canlii.ca/t/h1qxl#par204\" rel=\"nofollow noreferrer\">at para 204</a>; <em>Miller v. The Union of British Columbia Performers</em>, 2022 BCCA 358 at <a href=\"https://canlii.ca/t/jsmcx#par59\" rel=\"nofollow noreferrer\">paras. 52, 54, 59</a>.</p>\n<p>The question will turn on <strong>whether</strong> the distinction is:</p>\n<ol>\n<li>"ameliorative"</li>\n<li>with respect to a disadvantaged group</li>\n</ol>\n<p>in the sense that it furthers <em>substantive</em> equality (<em>Miller</em> at <a href=\"https://canlii.ca/t/jsmcx#par58\" rel=\"nofollow noreferrer\">para. 58</a>):</p>\n<blockquote>\n<p>... a program that distinguishes between individuals based on a protected ground to ameliorate the conditions of a disadvantaged group furthers substantive equality and is not discriminatory even though such programs necessarily exclude people from other groups. This is because differential treatment in the service of equality for disadvantaged groups is an <em>expression</em> of equality, not an exception that requires exemption. The Court explained that disadvantaged groups are identifiable by their protected characteristics, which connote “vulnerability, prejudice and negative social characterisation”.</p>\n</blockquote>\n<p>This is an inherently <strong>fact-specific inquiry that would be left to the assessment of the Human Rights Tribunal</strong> absent some error rising to the level of patent unreasonableness.</p>\n",
"score": 3
},
{
"answer_id": 90083,
"body": "<p><a href=\"/questions/tagged/new-zealand\" class=\"post-tag\" title=\"show questions tagged 'new-zealand'\" aria-label=\"show questions tagged 'new-zealand'\" rel=\"tag\" aria-labelledby=\"tag-new-zealand-tooltip-container\">new-zealand</a></p>\n<blockquote>\n<p>Is awarding a day off for women employees on 8 March a discrimination against the male employees?</p>\n</blockquote>\n<p>It would be if it was done.</p>\n<p>The <a href=\"https://en.wikipedia.org/wiki/International_Women%27s_Day\" rel=\"nofollow noreferrer\">International Women's Day</a> is not an official public holiday — pretty much like in all the Western world. Even if it was, <em>all</em> employees would have a day off, not only women.</p>\n<p>Thus, (not) giving an employee a day off based merely on their sex would be blatant illegal discrimination.</p>\n<p>As a side note, a closest thing would be <a href=\"https://en.wikipedia.org/wiki/Menstrual_leave\" rel=\"nofollow noreferrer\">menstrual leave</a> which would not be discrimination based on sex as it would grant leave only to those individuals who actually menstruate (and only when they do; women after certain age & not women by birth excluded). But, this is not a thing in NZ yet either as of writing this answer.</p>\n",
"score": 3
}
] |
[
"discrimination",
"workplace",
"sex-discrimination",
"employee"
] |
Does qualified immunity still apply if an officer resigns?
| 1 |
https://law.stackexchange.com/questions/90091/does-qualified-immunity-still-apply-if-an-officer-resigns
|
CC BY-SA 4.0
|
<p>Here is a <a href="https://www.youtube.com/watch?v=OnmqsnugGw0" rel="nofollow noreferrer">video</a> showing some details about the case.</p>
<p>A business owner is falsely arrested at his place of business. The business owner was unable to obtain the name of all the officers involved. The business owner then sees the officer that was involved with his false arrest during an incident near his business.</p>
<p>The department conducts an internal investigation and admitted it was a false arrest. The officer is allowed to resign prior to a complaint being filed.</p>
<p>Is the officer still protected under qualified immunity if they are not police officers when the complaint is filed?</p>
| 90,091 |
[
{
"answer_id": 90097,
"body": "<h2>Yes</h2>\n<p>What’s relevant is if they were a police officer at the time the violation occurred.</p>\n",
"score": 2
}
] |
[
"united-states"
] |
Is it legal for a Police officer to say "I will kill you"?
| 0 |
https://law.stackexchange.com/questions/90084/is-it-legal-for-a-police-officer-to-say-i-will-kill-you
|
CC BY-SA 4.0
|
<p>Here is a <a href="https://www.youtube.com/watch?v=u1JMWOnMOdk" rel="nofollow noreferrer">video</a> of the incident.</p>
<p>Mr. George Dickerson was driving on the highway when a police officer initiated a traffic stop. When he approached the vehicle, the officer started saying "Do that shit again. Throw your car at me again and I will fucking kill you".</p>
<p>Is it legal for officers to threaten to kill you?</p>
| 90,084 |
[
{
"answer_id": 90087,
"body": "<p>Title 5 Ch. 22 of the Texas Penal Code deems it to be assault if a person "intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse". The conditional wording of the threat does not make this an imminent threat. Another possible criminal charge is "brandishing a weapon", Sec. 46.02 technically unlawfully carrying a weapon: "A person commits an offense if the person carries a handgun and intentionally displays the handgun in plain view of another person in a public place", also disorderly conduct §42.01 if one "displays a firearm or other deadly weapon in a public place in a manner calculated to alarm". However, there are peace officer exceptions that allow police to draw their weapons while on duty. As we observed from the officer's termination the conduct is against departmental policy, but it is not criminal conduct.</p>\n",
"score": 2
},
{
"answer_id": 90094,
"body": "<p>Depending on the situation, a police officer is allowed to use various forms of force. This ranges from lethal force on one end of the <a href=\"https://en.wikipedia.org/wiki/Use_of_force_continuum\" rel=\"nofollow noreferrer\">use of force continuum</a> to verbal orders on the other end.</p>\n<ul>\n<li>Verbal orders <em>should</em> be clear and understandable. (There are occasional videos where one officer yells "don't move" and another officer yells "get out of the car." Or one officer yells both ...)</li>\n<li>Verbal orders <em>may</em> include a threat with the consequences. (The officer yells "stop struggling or I will tase you.")</li>\n</ul>\n<p>It would not be helpful if an officer shouts "stop the car or I will escalate to the use of lethal force." Too long, too convoluted, too confusing.</p>\n",
"score": 1
}
] |
[
"united-states"
] |
4th Amendment violation during a terry stop?
| 0 |
https://law.stackexchange.com/questions/90086/4th-amendment-violation-during-a-terry-stop
|
CC BY-SA 4.0
|
<p>Lets say Bob is walking down the street, somewhere in the US. A police officer stops and detains Bob. Bob has not broken any laws. The officer asks Bob for an ID and he refuses.</p>
<p><a href="https://en.wikipedia.org/wiki/Terry_v._Ohio" rel="nofollow noreferrer"><em>Terry v. Ohio</em> 392 U.S. 1 (1968)</a> says that the officer is allowed to do an exterior search of the person for weapons. Bob doesn't have any personal items on him except his ID. The officer feels his ID in his back pocket and pulls it out to run his ID. Bob has no record and is cut loose.</p>
<p>Did the officer violate Bob's 4th amendment rights?</p>
| 90,086 |
[
{
"answer_id": 90089,
"body": "<p>In <em>Terry</em>, the court said that the "scope of the search must be 'strictly tied to and justified by' the circumstances which rendered its initiation permissible", and "The sole justification of the search ... is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer". McFadden "patted down the outer clothing of petitioner and his two companions. He did not place his hands in their pockets or under the outer surface of their garments until he had felt weapons, and then he merely reached for and removed the guns... Officer McFadden confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons. He did not conduct a general exploratory search for whatever evidence of criminal activity he might find".</p>\n<p>The search, as you describe it, is plainly an unlawful search of the person for the purpose of overcoming the person's lawful refusal to provide ID.</p>\n",
"score": 2
}
] |
[
"united-states",
"fourth-amendment"
] |
precrime options
| 1 |
https://law.stackexchange.com/questions/90067/precrime-options
|
CC BY-SA 4.0
|
<p>If a governmental institution, either police or a court, has information of an intention of a person who intends to commit a crime, is it their job description to prevent it from happening?</p>
| 90,067 |
[
{
"answer_id": 90088,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<p>Per <a href=\"https://en.wikipedia.org/wiki/Warren_v._District_of_Columbia\" rel=\"nofollow noreferrer\">Warren v. District of Columbia</a>, in the United States, there is no duty on the part of any police to protect any individual citizen. In that case, the police were actually told of a crime in progress, showed up at the crime scene, and left again without stopping it. They would certainly not have the duty to prevent a future crime.</p>\n",
"score": 2
},
{
"answer_id": 90072,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>This depends on which institution has the information and in what role it is acting. I will just provide a few examples.</p>\n<ul>\n<li>A court, when considering whether to declare a person to be a "dangerous offender" (<em>Criminal Code</em>, <a href=\"https://laws-lois.justice.gc.ca/eng/acts/C-46/section-753.html\" rel=\"nofollow noreferrer\">s. 753</a>) should take into account evidence of the likelihood of recidivism. To declare somebody a dangerous offender, there must be a "high likelihood of harmful recidivism" (<em>R. v. Boutilier,</em> 2017 SCC 64 <a href=\"https://canlii.ca/t/hpg4c#par26\" rel=\"nofollow noreferrer\">at para. 26</a>).</li>\n<li>A court, when considering whether to order someone to be detained in custody prior to trial, must consider whether the detention is "necessary for the protection or safety of the public... including any substantial likelihood that the accused will, if released from custody, commit a criminal offence..." (<em>Criminal Code</em>, s. <a href=\"https://laws-lois.justice.gc.ca/eng/acts/C-46/section-515.html\" rel=\"nofollow noreferrer\">515(10)(b)</a>).</li>\n<li>In British Columbia, one of the duties of a municipal police department is to "prevent crime" (<em>Police Act</em>, <a href=\"https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96367_01#section26\" rel=\"nofollow noreferrer\">s. 26(2)(c)</a>).</li>\n<li>Members of the Royal Canadian Mounted Police who are peace officers have the duty to prevent crime, subject to the orders of the Commissioner (<em>Royal Canadian Mounted Police Act</em>, <a href=\"https://laws-lois.justice.gc.ca/eng/acts/r-10/page-2.html#h-421036\" rel=\"nofollow noreferrer\">s. 18</a>).</li>\n<li>"The police are statutorily obligated to prevent crime, and, at common law, they owe a duty to protect life and property." <em>Doe v. Metropolitan Toronto (Municipality) Commissioners of Police</em>, <a href=\"https://canlii.ca/t/1w9kn\" rel=\"nofollow noreferrer\">1998 CanLII 14826</a> (Ont. Sup. Ct.) (only in extraordinary circumstances does this result in a specific duty of care to specific individuals or groups).</li>\n<li>Other government agencies are not tasked with a duty to prevent crime. For example, the <a href=\"https://www.pas.gov.on.ca/Home/Agency/433\" rel=\"nofollow noreferrer\"><em>Civil Rules Committee</em> of Ontario</a> is not tasked with the prevention of crime. The <a href=\"https://www.pas.gov.on.ca/Home/Agency/493\" rel=\"nofollow noreferrer\">University of Guelph Board of Governors</a> is not tasked with the prevention of crime.</li>\n</ul>\n",
"score": 1
},
{
"answer_id": 90078,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<p>That depends on the job. <a href=\"https://www.wawd.uscourts.gov/sites/wawd/files/23-WAW-10_IntakeClerk_Seattle.pdf\" rel=\"nofollow noreferrer\">This</a> is an opening for an intake clerk in the US federal courts. The job description part says</p>\n<blockquote>\n<p>Intake clerks assist the public and counsel with filing procedures,\ncase information and other court services. Related duties include\nopening civil and miscellaneous cases, processing appeals, posting\ncourt orders, managing prisoner and immigration cases, responding to\narchive requests, overseeing attorney admission and discipline orders,\nreceipting payments, creating and maintaining procedural\ndocumentation, mail sorting and reviewing documents to ensure\ncompliance with the Court’s quality control standards</p>\n</blockquote>\n<p>Crime prevention is not part of the job description.</p>\n<p>There is a different and much longer <a href=\"https://www.wsp.wa.gov/wp-content/uploads/2022/03/trooper-position-description.pdf\" rel=\"nofollow noreferrer\">job description</a> for State Trooper which includes.</p>\n<blockquote>\n<p>Conduct proactive patrol of assigned area and respond to calls for\nservice during day and/or night shifts, to ensure assigned area has\npatrol coverage up to an including 24 hours/day, 7 days/week.</p>\n</blockquote>\n<p>However, the state patrol does not normally investigate graffiti rings, which would be the job of municipal law enforcement. <a href=\"https://skagitcounty.net/CivilService/Documents/Patrol%20%20Detective%20Description.pdf\" rel=\"nofollow noreferrer\">This</a> is an even longer job description for a county sheriff patrol/detective position, which includes more investigative duties.</p>\n<p>There may also be implicit "code of conduct" job requirements to the effect that you can't turn a blind eye to a plan to commit a crime. However, law enforcement agents are strongly limited in what they can do to prevent a crime. I might report to the police that I think Smith is planning to rob a bank, but that would not suffice to justify a search warrant. If I add more details e.g. attest that I heard concrete planning, the police might get a warrant on that basis, but they <em>would</em> need a warrant. However, if there is strong evidence (e.g. from screams) that Smith is about to murder Jones, under the <a href=\"https://www.law.cornell.edu/wex/exigent_circumstances\" rel=\"nofollow noreferrer\">exigent circumstances</a> rule, police could enter and stop the crime.</p>\n<p>There are basically two underlying questions here: duty, and power. Legally-enforceable duties are relatively few and generally the result of a specific law. The general rule is that a law enforcement agent has discretionary power to chose what enforcement actions to take, but there may be cases where "may" is replaced with "shall" in the law.</p>\n",
"score": 1
}
] |
[
"criminal-law"
] |
Are all GPL Licensed projects free to use for commercial use even if they appear to be paid content?
| 2 |
https://law.stackexchange.com/questions/11135/are-all-gpl-licensed-projects-free-to-use-for-commercial-use-even-if-they-appear
|
CC BY-SA 4.0
|
<p>I'm having a few issues understanding how sites like <a href="https://gpldl.com/" rel="nofollow noreferrer">gpldl.com</a> can call themselves legal. This site appears to purchase paid plugins from various developers like</p>
<ul>
<li>WooThemes</li>
<li>iThemes</li>
<li>Gravity Forms</li>
<li>WPML</li>
<li>WPMU DEV</li>
<li>Elmastudio</li>
<li>Elegant Themes</li>
</ul>
<p>Sites like gpldl.com state that since their plugins/themes are licensed under GNU General Public License, they can then share them with members of their site for free.</p>
<p>Are sites like these actually legal to use? Can I download plugins and themes from this site and use them on a commercial project?</p>
| 11,135 |
[
{
"answer_id": 15006,
"body": "<p>They are GPL licensed. Each WordPress file contains either a licence.txt or readme.txt file that clearly states they are GPLv2 or higher. As such they are free to redistribute the files as they wish.</p>\n\n<p>Disclaimer: We also own a website that distributes GPL licenced WordPress software at <a href=\"https://www.gplvault.com\" rel=\"noreferrer\">https://www.gplvault.com</a> and only accept files that are 100% GPL. The thing to watch out for is that none of the files carry a so called split licence where the PHP and HTML is GPL and the Images and CSS are non-GPL. </p>\n",
"score": 6
},
{
"answer_id": 11140,
"body": "<p>There's two possibilities here.</p>\n\n<h3>1. The themes are actually under the GPL</h3>\n\n<p>If this is actually the case, then you can use the projects/plugins/themes commercially, as long as you follow the rest of the terms of the licence.</p>\n\n<h3>2. The themes aren't under the GPL</h3>\n\n<p>Then no. The media was licensed wrongfully. All a copyright holder needs to do is tell you, and boom. You can't use the media anymore. That can seriously cause you problems: you would then have to remove anything and everything that used that media, so it can disappear without a trace.</p>\n\n<p>The decision to choose whether the items are properly licensed is yours.</p>\n\n<hr>\n\n<p>As a side note, you can ask open source licensing questions as <a href=\"http://opensource.stackexchange.com\">Open Source SE</a> (disclaimer: I'm a moderator there) as well.</p>\n",
"score": 3
},
{
"answer_id": 89545,
"body": "<p>With GPL licensed software, here’s the rules:</p>\n<ol>\n<li><p>You can charge any amount for the software. Nobody can force you to sell the software at all, or cheaply.</p>\n</li>\n<li><p>You can charge a reasonable amount for providing the source code, basically if I want the source code I’ll have to pay for your effort to produce it for me.</p>\n</li>\n<li><p>You are not allowed to charge for the GPL license.</p>\n</li>\n</ol>\n<p>Obviously if you sold the software once for a million dollar, I can ask you for the source code say for $20, build the software and sell it for half a million. So your ability to sell it at a very high price is practically limited.</p>\n",
"score": 1
}
] |
[
"licensing",
"gpl"
] |
Can I use footage from House.gov in a (mostly) free web application?
| 0 |
https://law.stackexchange.com/questions/90063/can-i-use-footage-from-house-gov-in-a-mostly-free-web-application
|
CC BY-SA 4.0
|
<p>Right now, I am working on an information service website relating to political offices in the U.S.</p>
<p>This is something I'm working on in my own time, not for a company. But, I would like to potentially make money from this in some way, whether this be from donations or by monetizing part of it in some way. (For example, selling commercial access to bulk data)</p>
<p>All that aside, I would like to embed clips from House.gov congressional recordings in the web application. However, they specify that recordings cannot be used for 'political or commercial purposes'.</p>
<p>If I were to sell ANY part of the web app, would using the recordings be considered commercial use, or would it only be considered commercial use if I were to sell access <strong>to the recordings themselves?</strong></p>
<p>Additionally, do I need to worry about <strong>fair use</strong> in this case? Since only commercial use is prohibited, does this mean noncommercial use is permitted? Otherwise, according to <a href="https://www.linkedin.com/pulse/can-i-embed-videos-from-other-sites-devin-miller/" rel="nofollow noreferrer">LinkedIn's summary of a court case</a>, embeds do not infringe copyright? Is that right?</p>
<p>Thank you.</p>
<p><a href="https://i.stack.imgur.com/tGqXh.jpg" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/tGqXh.jpg" alt="enter image description here" /></a></p>
| 90,063 |
[
{
"answer_id": 90077,
"body": "<p>The answer depends on some missing facts. The first is, who do you get the footage from. For the sake of discussion, I will assume this is from C-Span. This matters because under US copyright law, works of the US government are not protected by copyright, but that does not mean that works <em>about</em> the US government are unprotected. C-Span is not a government employee, therefore C-Span is entitled to copyright protection. The <a href=\"https://www.c-span.org/about/copyrightsAndLicensing/\" rel=\"nofollow noreferrer\">C-span FAQ</a> suggests a complex of considerations related to the need for a license.</p>\n<p>The House of Representatives can establish its own rules which could prohibit making a recording of sessions with the intent to make political comments on the content, but those rules can only pertain to conduct in the House chambers. The house cannot unilaterally pass a law, that requires cooperation of the Senate and the president, or massive cooperation of the two houses, and such a law that prohibits political commentary on House conduct would not long survive judicial review. The C-span FAQoid does not suggest that there is any restriction on political usage of their footage, so perhaps the footage comes from somewhere else.</p>\n<p>The main point is that you would have to dig deep to see who is distributing the footage, and under what authority they impose restrictions on redistribution. Ordinary copyright could be the source, though it is also an open question whether automatically recorded video has the scintilla of creativity required to make a work protectable.</p>\n<p>Another possible source is the <a href=\"https://www.loc.gov/programs/audio-visual-conservation/using-the-collections/congressional-floor-proceedings/\" rel=\"nofollow noreferrer\">Library of Congress</a>, which unlike C-Span is full of government employees creating government works (which are unprotected). They do say that there is a form that has to be signed avowing that you will not use the work for political or commercial purposes. In order to find out what their requirements are, you have to call or mail an exact order, which will be forwarded to another office, and you will get the required form. Again, though, it is an open legal question whether a branch of the US government can prohibit making political comments about congressional sessions. It is a little less controversial that Congress can regulate interstate commerce.</p>\n<p>If a person actually holds copyright in a work, the question of commercial / non-commercial and fair use does not come down to a simple commercial / non-commercial dichotomy. Furthermore, "non-commercial" is not the same as "free". Two opposites on the "nature of the work" continuum are "educational" vs. "commercial", but vast numbers of educational works cost money. If you were to freely distribute the entirety of a recent commercial movie, that would be a "non-commercial" use, but also highly infringing. If you extract 2 seconds from said film, that might be fair use. If you sell copies of that extract, that works against a fair use analysis.</p>\n",
"score": 1
}
] |
[
"licensing",
"fair-use"
] |
California Prop65 Warning on food labels; how to protect against litigation from products sold without the Prop65 warnings
| -2 |
https://law.stackexchange.com/questions/89875/california-prop65-warning-on-food-labels-how-to-protect-against-litigation-from
|
CC BY-SA 4.0
|
<p>I would like to understand if a statement, “not for sale in California” on a product label, which is not labeled with a Prop65 warning to meet California’s Prop65 requirements, and is not intended or sale in California, would provide any legal protection should an unknown third-party seller purchase and sell non-Prop65 labeled product, knowingly or unknowingly, to a California customer? Background: Products intended by manufacture for sale in California ARE labeled with the required Prop65 warnings, but the manufacture would prefer not to label all products sold outside of California with CA Prop65 warnings.</p>
| 89,875 |
[
{
"answer_id": 90076,
"body": "<blockquote>\n<p>would provide any legal protection should an unknown third-party seller purchase and sell non-Prop65 labeled product</p>\n</blockquote>\n<p>The label "<em>Not for sale in California</em>" provides <em>at least some</em>, perhaps enough, legal protection.</p>\n<p>The FAQ you <a href=\"https://law.stackexchange.com/questions/89875/california-prop65-warning-on-food-labels-how-to-protect-against-litigation-from#comment202967_89875\">linked</a> states that "<em>the exposure must result from a deliberate act, like the sale of a product</em>", and the label reflects that the manufacturer's intent is the opposite of that deliberate act.</p>\n<p>You will also notice in the event of a claim of violation the FAQ recommends to "<em>cease sale of the product, [and] instruct retail customers to stop selling the product</em>" (brackets added), which is exactly what the label "<em>Not for sale in California</em>" preemptively does.</p>\n",
"score": 1
}
] |
[
"california"
] |
Are citizen-recorded videos catalogued as evidence by the police exempt from public records requests?
| 4 |
https://law.stackexchange.com/questions/76850/are-citizen-recorded-videos-catalogued-as-evidence-by-the-police-exempt-from-pub
|
CC BY-SA 4.0
|
<p>Presuming videos recorded in public, are such videos generally open to public inspection?</p>
<p>If not, are such videos open to public inspection in non-criminal proceedings, for e.g. in traffic investigations where the police finds no criminal misconduct?</p>
| 76,850 |
[
{
"answer_id": 88864,
"body": "<p>It depends on what stage of the investigation they are in and if the evidence is useful at all to police. If it's going to be used as evidence of a crime against someone, it will be disclosed to the public likely before the trial, as in the United States, all evidence must be publically disclosed at trial. There are some exceptions that the courts may withhold (such as in cases with a minor child as the victim) but they will be presented to the jury. Journalist Ethics and Broadcast standards may also add blurs to keep the identities of bystanders from being aired, but that is on the burden of the network to make sure those edits are made.</p>\n",
"score": 1
}
] |
[
"united-states",
"california",
"police",
"evidence",
"public-records"
] |
What can a lawyer do if the client wants to be acquitted of everything despite serious evidence?
| 17 |
https://law.stackexchange.com/questions/89902/what-can-a-lawyer-do-if-the-client-wants-to-be-acquitted-of-everything-despite-s
|
CC BY-SA 4.0
|
<p>Alex the accused has been charged with a series of crimes. The list of charges is long (beating up his wife, speeding while drunk, trafficking...) and for most crimes, the evidence presented by the state attorney is very strong.</p>
<p>Dave the defense attorney, seeing the evidence, suggests his client should follow the "I'm sorry, it will never happen again" strategy to get a small, maybe even suspended sentence. But Alex is very stubborn and sympathizes with the "Reichsbürger"-Movement, so he asks his attorney to plead for innocence, saying that it's <em>his</em> wife, so he can do with her what he wants, and traffic laws, given he is a good driver, won't apply to him etc.</p>
<p>Dave is very certain that with this strategy, Alex will not only be convicted and given not only a long prison sentence, but maybe even a long-term preventive detention.</p>
<p>What can Dave do to follow the wishes of his client while still representing him as best as he can?</p>
| 89,902 |
[
{
"answer_id": 89960,
"body": "<p>In several civil law systems, including in Switzerland, the involvement of a defence lawyer can be mandatory, <em>even against the will of the accused</em>.\nIf the accused does not appoint a lawyer, a duty lawyer must be appointed by the director of the proceeding (the prosecutor or the judge depending on the stage of the proceedings). The obligation to have a lawyer may extend to important civil cases in some countries before higher courts to avoid wasting judicial resources. In criminal cases, this is also to ensure the accused's rights to a competent, diligent and effective defence.</p>\n<p>The accused is responsible for the costs of the lawyer, within their financial circumstances and subject to government legal aids, if they are found responsible for procedural costs. All lawyers at bar in a canton are required to accept mandates assigned to them due to obligatory provisions of law, provided that they are competent to do so.</p>\n<p>This is regulated by art. 130 to 135 of the federal Criminal Procedure Code, in particular,</p>\n<blockquote>\n<ol start=\"130\">\n<li>A defence lawyer must be appointed to represent the accused if:</li>\n</ol>\n<ul>\n<li>a. the period on remand including the period when under arrest has continued for more than 10 days;</li>\n<li>b. the offence concerned carries a custodial sentence of more than a year or a custodial measure or may result in expulsion from\nSwitzerland;</li>\n<li>c. the accused is unable to safeguard his or her interests in the proceedings adequately due to his or her physical or mental\ncondition or for other reasons, and his or her statutory\nrepresentative is unable to do so either;</li>\n<li>d. the prosecuting lawyer is appearing in person before the court of first instance or the court of appeal;</li>\n<li>e. accelerated proceedings (Art. 358–362) are being conducted.</li>\n</ul>\n</blockquote>\n<p>Essentially, all serious offences are subject to this obligation.</p>\n<p>Until now this is not a direct answer to the question posed, but it is a factor that shows the relationship between the lawyer and the client is not a simple one.</p>\n<hr />\n<p>Now going back to your question. In Switzerland, or indeed in most legal systems, the lawyer is to ensure that the accused receives a competent, diligent and effective defense. Indeed, if the public prosecutor or the judge believes or reasonably ought to have believed the defence is clearly incompetent or otherwise negligent in their professional duties, the proceedings must be suspended until a suitable defence is appointed by choice of the accused or by the proceeding director.</p>\n<blockquote>\n<p>so he asks his attorney to plead for innocence, saying that it's his wife, so he can do with her what he wants, and traffic laws, given he is a good driver, won't apply to him etc.</p>\n</blockquote>\n<p>The lawyer is a professional that must exercise their professional judgement.\nThey are also a 'servant of the law' and a 'collaborator in the administration of justice' and bear responsibility for the correct functioning of the justice system (Federal Court rulings <a href=\"http://relevancy.bger.ch/php/clir/http/index.php?highlight_docid=atf%3A%2F%2F106-IA-100%3Ade&lang=de&type=show_document\" rel=\"noreferrer\">106 IA 100</a>, <a href=\"http://relevancy.bger.ch/php/clir/http/index.php?lang=de&type=show_document&page=1&from_date=&to_date=&from_year=1954&to_year=2023&sort=relevance&insertion_date=&from_date_push=&top_subcollection_clir=bge&query_words=&part=all&de_fr=&de_it=&fr_de=&fr_it=&it_de=&it_fr=&orig=&translation=&rank=0&highlight_docid=atf%3A%2F%2F130-II-270%3Ade&number_of_ranks=0&azaclir=clir#page270\" rel=\"noreferrer\">130 II 270</a>). In general, they are not allowed to induce the justice and the authorities in error.</p>\n<p>Thus, they cannot simply present baseless arguments before the judicial authorities.</p>\n<blockquote>\n<p>Dave is very certain that with this strategy, Alex will not only be convicted to a long prison sentence, but maybe even to a long-term preventive detention.</p>\n<p>What can Dave do to follow the wish of his client while still representing him as best as he can?</p>\n</blockquote>\n<p>If the lawyer is convinced that the strategy imposed by the client is clearly contrary to the client's interest, they may decide to withdraw from the mandate, if they can do so without seriously prejudicing the client's interest. This is the case when the accused had chosen their own lawyer, who under contractual law must follow the client's instructions and the recourse to avoid unprofessional conducts is withdrawal.</p>\n<p>For the duty defence lawyers, the accused cannot waive the right to a defence lawyer, indeed, it is an obligation on the accused, the lawyer and the judicial authority. While the law provides for replacement of the lawyer if the mutual trust between the lawyer and the client is seriously compromised, this is not simply so because the client says so. Loss of confidence on subjective grounds alone does not constitute a reason to change a duty lawyers unless the attitude of the lawyer is seriously prejudicial to the interests of the accused (Federal Court ruling\n<a href=\"https://www.bger.ch/ext/eurospider/live/de/php/aza/http/index.php?highlight_docid=aza%3A%2F%2F04-06-2012-1B_307-2012&lang=de&type=show_document&zoom=YES&\" rel=\"noreferrer\">1B_307/2012</a>).</p>\n<p>For lack of a better analogy, the duty defence lawyer would proceed to represent the interests of the accused as if the accused was mentally deficient or otherwise incompetent (not that the accused is recognized as so with respect to their criminal responsibility, but that the accused is unable, or in this case unwilling, to cooperate fully with the lawyer on their own defence).</p>\n<p>The duty lawyer can impose their own defence strategy and <em>must</em> do so if they sincerely believe it is in the best interests of their client (<a href=\"https://www.penalex.ch/faq-avocats/mon-avocat-doffice-peut-il-mimposer-sa-strategie/\" rel=\"noreferrer\">https://www.penalex.ch/faq-avocats/mon-avocat-doffice-peut-il-mimposer-sa-strategie/</a>).</p>\n<p>Of course, the accused still has a right to be directly heard by the court, but such right is not unlimited. They can make their own representations and may note their disagreement with the defence counsel, but the accused does not have the right just ramble for two hours in the court. As it is not an adversarial system, the decision maker will take all circumstances into account and the disagreements between the client and their own counsel (despite being imposed by the law and the state) are not as much of an issue as in an adversarial common law trial.</p>\n<hr />\n<p>Note that an acquitted accused may still be found responsible for procedural costs (including for any obligatory defence fees) if they had deliberately caused the penal procedure to be opened unlawfully or wrongfully (even if "criminally" not guilty), or that they had deliberately made the proceeding more difficult (e.g. through multiple unjustified requests to change lawyers, or indeed possibly, presenting the arguments of Reichsbürger with insistence).</p>\n<hr />\n<p>Other consulted references:</p>\n<p>L'avocat dans la défense pénale : de l'obligation de dire la vérité à un droit de mentir, Flavien Morard <a href=\"https://sui-generis.ch/article/view/sg.53/661\" rel=\"noreferrer\">https://sui-generis.ch/article/view/sg.53/661</a></p>\n",
"score": 38
},
{
"answer_id": 89904,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>Defence counsel needs to make clear the permissible scope of argument that they can make, consistent with the lawyer's ethical obligations to the profession and to the court.</p>\n<p>The arguments that the accused is asking for are beyond what would be acceptable for defence counsel to make: they have no basis in law.</p>\n<p>If the accused insists, defence counsel will be forced to withdraw as counsel. See <em>R. v. Cunningham</em>, 2010 SCC 10 at <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7849/index.do\" rel=\"noreferrer\">paras. 48-49</a>:</p>\n<blockquote>\n<p>... Counsel seeking to withdraw for ethical reasons means that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue in good conscience to represent the accused. Counsel may cite “ethical reasons” as the reason for withdrawal if, for example, the accused is requesting that counsel act in violation of his or her professional obligations... or if the accused refuses to accept counsel’s advice on an important trial issue...</p>\n<p>If withdrawal is sought for an ethical reason, then the court must grant withdrawal. ... Where an ethical issue has arisen in the relationship, counsel may be required to withdraw in order to comply with his or her professional obligations. It would be inappropriate for a court to require counsel to continue to act when to do so would put him or her in violation of professional responsibilities.</p>\n</blockquote>\n",
"score": 21
},
{
"answer_id": 89911,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<p>In the USA, my daughter (who is quite good at this) believes the key skill for a criminal defense attorney is convincing their clients to do the things that will result in the best possible outcome. Let's be clear: the client has absolute power to testify in their own defense and to plead not guilty. But being good at your job means convincing them to do things they might normally not want to. A phrase my daughter leans on is "it isn't about whether you are guilty or not, it's about what we can get a jury to believe."</p>\n<p>The standard for defense is to mount a <strong>zealous</strong> defense of the client. I think that quitting the case just to pass the problem off to a different attorney is a cop out. It accomplishes nothing. In the example presented, you would go to trial and call the defendant as a witness, but not make any claims that are not supported by law.</p>\n<p>If it were an easy job, anyone could do it.</p>\n",
"score": 12
},
{
"answer_id": 89926,
"body": "<h2>The duty to the client is secondary to the duty to the court</h2>\n<p><a href=\"/questions/tagged/australia\" class=\"post-tag\" title=\"show questions tagged 'australia'\" aria-label=\"show questions tagged 'australia'\" rel=\"tag\" aria-labelledby=\"tag-australia-tooltip-container\">australia</a></p>\n<p>Barristers in Australia are governed by the <a href=\"https://legislation.nsw.gov.au/view/html/inforce/current/sl-2015-0243#sec.79\" rel=\"nofollow noreferrer\">Legal Profession Uniform Conduct (Barristers) Rules</a> in the state or territory where they are working. Rules 79 to 82 deal with “Delinquent or guilty clients”.</p>\n<p>Summarising, a barrister who:</p>\n<ul>\n<li>becomes aware that their client or a witness has lied or materially misled the court must take no further part in the case until they get the client’s permission to reveal that to the court.</li>\n<li>is representing a guilty client who maintains a plea of not guilty must have the client agree that they will:\n<ul>\n<li>not falsely suggest someone else did it</li>\n<li>not set up an alternative case inconsistent with the confession</li>\n<li>require the prosecution to prove the case</li>\n<li>be able to argue that evidence as a whole does not prove guilt</li>\n<li>be able to argue that some element of the law means the case is not proven. An actual element not one the client made up</li>\n<li>be able to argue for not guilty for any other reason not inconstant with the above</li>\n<li>no longer be able to act if the client insists on giving evidence denying guilt or requires making a statement suggesting the client is innocent.</li>\n</ul>\n</li>\n</ul>\n<p>If the client doesn't not agree and the barrister is therefore unable to act, they make a submission to the court that they cannot continue because of an ethical conflict and the judge discharges them. This usually happens after the judge has spoken to the client and explained the difficulties they will face if they persist in this course of action.</p>\n",
"score": 10
},
{
"answer_id": 89908,
"body": "<p>Typically most lawyers would ask the judge for permission to be removed from the case following the revelation that the lawyer cannot offer a competent defense. I'm not familiar with Swiss legal and ethical practices, so this process may depend on the body in Swiss law that has the power of lawyer accreditation and their legal and ethical standards and practices. As Switzerland is a Federal nation, this could mean having to go to the individual Canton (the equivalent of a State in the U.S. or a Province in Canada) which could mean there is no blanket answer for this question as the rules would change depending on who is doing the prosecuting.</p>\n",
"score": 5
},
{
"answer_id": 90029,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<p>A very similar situation has actually happened in the case of <a href=\"https://www.oyez.org/cases/2017/16-8255\" rel=\"nofollow noreferrer\"><em>McCoy v. Louisiana</em></a>, except that the defendant (McCoy) was facing the death penalty. His lawyer wanted to admit guilt and push for a life sentence, but McCoy insisted that he was innocent. They were unable to come to an agreement before trial, and the court was unwilling to let the attorney withdraw (by this point, McCoy had already gotten rid of his previous lawyer).</p>\n<p>At trial, the lawyer admitted his client's guilt during opening arguments, and tried to make a case for leniency on the basis of diminished capacity. Possibly because McCoy was uncooperative, or possibly because the jury just didn't buy it, this went poorly, and the defendant was sentenced to death.</p>\n<p>On appeal, the Supreme Court reversed, holding that the lawyer was not at liberty to make such a decision on behalf of his client. The majority held that the right to assistance of counsel implicitly includes the autonomy to make one's own decisions about the overall objectives and direction of the defense, including whether or not to admit guilt.</p>\n<p>The court then went on to characterize a lawyer violating the defendant's autonomy in this way as "structural error." This means that a defendant whose lawyer behaves in such a manner is entitled to a new trial as of right, without having to prove a substantial likelihood of a different outcome.</p>\n",
"score": 1
}
] |
[
"rules-of-court",
"switzerland",
"legal-representation"
] |
What sort of facts are considered when determining if a work is inspired by or derived from another?
| 1 |
https://law.stackexchange.com/questions/90061/what-sort-of-facts-are-considered-when-determining-if-a-work-is-inspired-by-or-d
|
CC BY-SA 4.0
|
<p>All art is inspired by what came before. This is particularly obvious in visual art, where the progression of the medium can be seen from the cave art of the neolithic to the art of today, but is equally true for music and all other forms of art that occur to me.</p>
<p>The creation of derivative works of art is a right protected by copyright. Being inspired by a work of art to create another work is not restricted by copyright and is how art happens. I assume the distinction between these two would come up in court, possibly in <a href="https://en.wikipedia.org/wiki/List_of_songs_subject_to_plagiarism_disputes" rel="nofollow noreferrer">the various music plagiarism cases</a>, possibly in <a href="https://githubcopilotlitigation.com/" rel="nofollow noreferrer">upcoming</a> AI <a href="https://www.polygon.com/23558946/ai-art-lawsuit-stability-stable-diffusion-deviantart-midjourney" rel="nofollow noreferrer">cases</a>.</p>
<p>When making these determinations, what sort of facts are considered? How similar the works are? How original each is? How competitive they are in the market? How much work was involved?</p>
| 90,061 |
[
{
"answer_id": 90065,
"body": "<p>In considering whether a work is derivative, the key question is whether multiple, significant distinctive elements of the source work are used in the allegedly derivative work. It is also significant whether the two works display "substantial similarity". The amount of effort that goes into a work is not relevant. Nor is the market value of each work. A work need not be totslly distinct from previous works to be protectable by copyright.</p>\n<p>In <a href=\"https://en.wikipedia.org/wiki/Nichols_v._Universal_Pictures_Corp.\" rel=\"nofollow noreferrer\"><em>Nichols v. Universal Pictures Corporation</em>, 45 F.2d 119 (2d Cir. 1930)</a> the 11th circuit court of appeals held that a mere stock figure was not enough to make a work derivative. This case is still considered the basic rule on derivative works. <a href=\"https://law.justia.com/cases/federal/appellate-courts/F2/45/119/1489834/\" rel=\"nofollow noreferrer\">The opinion</a> held that copying musty be "substantial" to make a work an infringement. Judge Learned Hand wrote:</p>\n<blockquote>\n<p>It is of course essential to any protection of literary property, whether at common-law or under the statute, that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations.</p>\n<p>...</p>\n<p>... the question is whether the part so taken is "substantial," and therefore not a "fair use" of the copyrighted work; it is the same question as arises in the case of any other copyrighted work. <em>Marks v. Feist</em>, 290 F. 959 (C. C. A. 2); -Emerson v. Davies*, Fed. Cas. No. 4436, 3 Story, 768, 795-797. But when the plagiarist does not take out a block in situ, but an abstract of the whole, decision is more troublesome. Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his "ideas," to which, apart from their expression, his property is never extended. <em>Holmes v. Hurst</em>, 174 U.S. 82, 86, 19 S. Ct. 606, 43 L. Ed. 904; <em>Guthrie v. Curlett</em>, 36 F.(2d) 694 (C. C. A. 2). Nobody has ever been able to fix that boundary, and nobody ever can.</p>\n<p>...</p>\n<p>In such cases we are rather concerned with the line between expression and what is expressed. As respects plays, the controversy chiefly centers upon the characters and sequence of incident, these being the substance.</p>\n<p>...</p>\n<p>It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.</p>\n<p>...</p>\n<p>... granting that the plaintiff's play was wholly original, and assuming that novelty is not essential to a copyright, there is no monopoly in such a background. Though the plaintiff discovered the vein, she could not keep it to herself; so defined, the theme was too generalized an abstraction from what she wrote. It was only a part of her "ideas."</p>\n<p>...</p>\n<p>The testimony of an expert upon such issues, especially his cross-examination, greatly extends the trial and contributes nothing which cannot be better heard after the evidence is all submitted. It ought not to be allowed at all; and while its admission is not a ground for reversal, it cumbers the case and tends to confusion, for the more the court is led into the intricacies of dramatic craftsmanship, the less likely it is to stand upon the firmer, if more naïve, ground of its considered impressions upon its own perusal. We hope that in this class of cases such evidence may in the future be entirely excluded, and the case confined to the actual issues; that is, whether the copyrighted work was original, and whether the defendant copied it, so far as the supposed infringement is identical.</p>\n</blockquote>\n<p>See also: <a href=\"http://copyrightlawcasebook.blogspot.com/2014/01/class-4-originality-part-2.html\" rel=\"nofollow noreferrer\">"Open Source Copyright Casebook; Class 4: Derivative Works </a> by Brian L. Frye, Assistant Professor of Law, University of Kentucky College of Law. This discusses image copying and reproduction specifically.</p>\n<p>Frye writes:</p>\n<blockquote>\n<p>Notably, copyright only protects the original elements of a derivative work or compilation: "The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work."</p>\n<p>...</p>\n<p>Notably, a work that copies the ideas expressed by a preexisting work is not a derivative work, because it is not a copy of that work. Copyright cannot protect ideas, so the author of the new work has not copied a protected element of the preexisting work.</p>\n</blockquote>\n<p>See further Frye's long discussion of <a href=\"http://openjurist.org/698/f2d/300/gracen-v-bradford-exchange-m\" rel=\"nofollow noreferrer\"><em>Gracen v. Bradford Exch.</em>, 698 F.2d 300 (7th Cir. 1983)</a> in which questions of whether a painting was a derivative work of a film, and what rights the painter had, are dealt with.</p>\n",
"score": 3
}
] |
[
"copyright"
] |
What is the consensus on retrospective operation of judgments?
| 0 |
https://law.stackexchange.com/questions/90031/what-is-the-consensus-on-retrospective-operation-of-judgments
|
CC BY-SA 4.0
|
<p>I am working on a project whereby I in a particular section I am required to argue against the possible retrospective operation of a judgment of the Supreme Court of a fictional nation. Since there is no evidence available on whether that court's decision would have a retrospective operation in the facts given to us, I am examining as to whether there is any general principle in favor of or against the retrospective operation of judgments around the world. I found a paper regarding the rules of the US Supreme Court, and I am aware of the principles as far as the retrospective operation of statutes is concerned, but any leads on other important jurisdictions around the world would be appreciated.</p>
| 90,031 |
[
{
"answer_id": 90033,
"body": "<ul>\n<li>The Romans had the concept of <a href=\"https://en.wikipedia.org/wiki/Nulla_poena_sine_lege\" rel=\"nofollow noreferrer\">nulla poena sine lege</a>, no punishment without law. This has become part of many legal systems.</li>\n<li>You might read up on the <a href=\"https://en.wikipedia.org/wiki/Nuremberg_trials#Legal_basis\" rel=\"nofollow noreferrer\">Nuremberg Trials</a> after WWII. They faced the problem that many (but not all) of the German actions were legal according to German law at the time, yet morally repugnant. There were writings and thoughts about this, which came to the point that the perpetrators should have recognized the manifest injustice of their acts even if the acts were instigated by the government.</li>\n<li>Things might look slightly different when it comes to administrative law, e.g. the question if the state can require home owners to apply a <em>new</em> fire safety regulation to their <em>old</em> houses, or a <em>new</em> environmental regulation to their <em>old</em> cars.</li>\n</ul>\n",
"score": 1
},
{
"answer_id": 90051,
"body": "<h2>Retrospective or retroactive?</h2>\n<p>These don’t mean quite the same thing.</p>\n<blockquote>\n<p>A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospective statute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted.</p>\n</blockquote>\n<p>An example of a retroactive law is one that criminalises an activity that happened at the time that was not illegal a that time. A retrospective law is one that changes the penalty for a criminal activity that happened in the past but has not yet been prosecuted.</p>\n<p>Most jurisdictions are fine with retrospective laws but are wary of, or outright ban, retroactive ones.</p>\n<h2>Judgements are never retrospective or retroactive</h2>\n<p>This is due to the <a href=\"https://en.wikipedia.org/wiki/Legal_fiction\" rel=\"nofollow noreferrer\">legal fiction</a> that judges find the law, they do not make the law. A precedent setting judgement legally clarifies law that was already “out there”; so, even if this is the first time a court has found a particular activity illegal, it always was illegal its just that no one had ever prosecuted it before.</p>\n<p>Of course, there is no practical difference between finding law and making law.</p>\n<h2>Statutes and administrative law</h2>\n<p>The common law is fine with retrospective statutes but is wary of retroactive ones. It doesn’t like either in actions taken by the executive branch.</p>\n<p>Whether the legislature can make retrospective or retroactive laws is usually a Constitutional question. Retrospective laws are AFIK, fine everywhere. In the USA, retroactive (or ex post facto) criminal laws are outright banned. However, in most (all?) other common law jurisdictions they are something that is available to Parliament but it is a power rarely and carefully executed.</p>\n<p>In criminal matters, a retroactive law is generally considered to be antithetical to the basic Rule of Law that those subject to the law should be able to know what the law is. A statute that retroactively criminalises previously lawful acts needs to explicitly override this part of the common law.</p>\n<p>In civil matters, the courts tend to be more sympathetic because retroactivity does not lead to punishment even if it changes the rights of the parties to a case vis a vis one another.</p>\n<p>In administrative law, the power to make retrospective or retroactive rules must be explicitly delegated by the legislature in the law that empowers the executive.</p>\n",
"score": 1
}
] |
[
"interpretation",
"judgment"
] |
Copying from the internet about certain topics and making notes then writing them on exam
| 1 |
https://law.stackexchange.com/questions/90038/copying-from-the-internet-about-certain-topics-and-making-notes-then-writing-the
|
CC BY-SA 4.0
|
<p>Is it legal to copy-paste some lines of a topic from the Internet (e.g. Wikipedia, Britannica etc) and then make notes and write them on the exams. Thanks in advance.</p>
| 90,038 |
[
{
"answer_id": 90040,
"body": "<p>You must distinguish between copyright infringement and plagiarism.</p>\n<p>Copyright infringement = copying without permission. Plagiarism = using someone elses work without stating it is not your work. Both are independent.</p>\n<p>Take material from Britannica and use it in your thesis, without permission, but telling truthfully what the source is, that may be copyright infringemnt, but not plagiarism. So you might go to court (hypothetically) and be ordered to pay damages, but your thesis will be fine. On the other hand, take material from me where you have my written permission to use it, but you use it in your thesis without telling anyone, that's plagiarism. No copyright infringement at all because you had my permission, but your university might not give you the degree that you wanted.</p>\n",
"score": 1
},
{
"answer_id": 90039,
"body": "<p>One option would be to seek permission from the copyright holder(s) for your intended use of the material. Many, perhaps most, have fairly lenient policies for granting permission for certain users especially educators.</p>\n<p>Another option is the "Fair Use Doctrine" which you can find a summary of here:</p>\n<p><a href=\"https://www.copyright.gov/fair-use/\" rel=\"nofollow noreferrer\">Fair Use Doctrine</a></p>\n<p>I won't quote the entire article, which I encourage you to read and if you don't understand, consult an attorney experienced in copyright law. But this section:</p>\n<blockquote>\n<p>Purpose and character of the use, including whether the use is of a\ncommercial nature or is for nonprofit educational purposes: Courts\nlook at how the party claiming fair use is using the copyrighted work,\nand are more likely to find that nonprofit educational and\nnoncommercial uses are fair. This does not mean, however, that all\nnonprofit education and noncommercial uses are fair and all commercial\nuses are not fair; instead, courts will balance the purpose and\ncharacter of the use against the other factors below. Additionally,\n“transformative” uses are more likely to be considered fair.\nTransformative uses are those that add something new, with a further\npurpose or different character, and do not substitute for the original\nuse of the work.</p>\n</blockquote>\n<p>Indicates that your proposed use, which you only provided a high-level idea of, may fall into this category.</p>\n",
"score": 0
}
] |
[
"copyright"
] |
Can Police ask you to leave a public easement if you have committed no crime in Florida?
| 1 |
https://law.stackexchange.com/questions/90045/can-police-ask-you-to-leave-a-public-easement-if-you-have-committed-no-crime-in
|
CC BY-SA 4.0
|
<p>Lets say Bob is right next to utility power lines poles and within the public easement of a road. The location adjacent the road is a government property. He is recording anything he can see in public and that causes the Police to see Bob as suspicious. When approached by the Police and asked for id. Bob refuses because he has not broken a law. For the context of this question, we will say Bob is in Florida and the relevant law the Police use as context for the stop is <a href="http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0900-0999/0901/Sections/0901.151.html" rel="nofollow noreferrer">901.151</a>.</p>
<ul>
<li>Can Police LEGALLY trespass Bob for being on a public easement even thou he broke no laws?</li>
<li>Can Police FORCE Bob to leave the area?</li>
</ul>
| 90,045 |
[
{
"answer_id": 90046,
"body": "<p>A public road easement is a <a href=\"http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0704/0704.html\" rel=\"nofollow noreferrer\">right of way</a> recognized under Florida law which includes the right to enter for certain purposes, which limits a property owner's otherwise exclusive right to his property. If a road easement exists, that means that at some point the county or an adjacent property owner could put in a road. It does not make that land public property: Bill still owns the land. Bob is trespassing on Bill's land, and can call the police to have Bob ejected. The situation is not substantially changed if there is also a power line easement, though of course if he is trespassing next to power lines there is some additional urgency to ejecting the trespasser. It is reasonable to suspect an intent to violate <a href=\"http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0800-0899/0812/Sections/0812.14.html\" rel=\"nofollow noreferrer\">Fla. Stat. 812.14</a> "Trespass and larceny with relation to utility fixtures".</p>\n<p>It would be a violation of <a href=\"https://www.flsenate.gov/Laws/Statutes/2011/0810.09\" rel=\"nofollow noreferrer\">810.09</a> to enter and remain if\nnotice against entering has been given, or\nthe property is the unenclosed curtilage of a dwelling and the offender has the intent to commit an offense (e.g. 812.14). Bill or his agents can order Bob to leave, and if he does not comply, he has committed a crime. However, the police are not empowered to serve such notice on Bob, in case Bill is a <a href=\"http://www.myfloridalegal.com/ago.nsf/Opinions/4CCE6BD22D33B334852563BE00703E1E\" rel=\"nofollow noreferrer\">regular old landowner</a>. That opinion only applies to private landowners, so if the landowner is a government agency, they could well be enabled to serve the requisite notice to leave.</p>\n",
"score": 2
}
] |
[
"united-states",
"florida",
"easement"
] |
Automatic gratuity (tips) in restaurants
| 0 |
https://law.stackexchange.com/questions/90027/automatic-gratuity-tips-in-restaurants
|
CC BY-SA 4.0
|
<p>I have seen something along the lines of "parties of 8 or more will have a 25% gratuity added to the check" on menus in many US restaurants. Its been on menus for as long as I can remember. I <em>assume</em> its legal if it is visible, as it is virtually no different than listing the cost of the food - it just requires more mental math. However, that doesnt make it so, so I was curious. Is this legal? What if you didnt read that part of the menu? Can you be expected to read the entire menu?</p>
<p>I went to lunch by myself today (in Virginia) and I was shocked to find a 20% gratuity already added to my check. It was <em>not</em> written on the menu, nor was I told about it. I have been to this restaurant dozens of times previously, but this was the first time in ~6 months. When I asked the waitress, she said there was a sign at the front of the restaurant. I went to the front and there was no sign. I asked for the manager, who (of course) said it was legal and the waitress should have told me (she didnt). He went to look for the sign, but it was not there. He found it behind the cashier's counter (as in someone took it down and it was not displayed). He offered to take the gratuity off, to which I said no. I normally tip 15% for normal service, 20% for good. so I wasnt going to argue over a change.</p>
<p>On a side note/rant, charging almost 2x the cost of a 2 liter bottle of soda for a glass of soda should be illegal :P</p>
| 90,027 |
[
{
"answer_id": 90028,
"body": "<p>Automatic tips are only legal where they have been communicated in advance by whatever means (visible sign at the front, note in the menu etc.).</p>\n<p>As in your case it wasn't communicated, it wasn't legal. This is pretty much why the manager offered to refund it.</p>\n<blockquote>\n<p>Can you be expected to read the entire menu?</p>\n</blockquote>\n<p>Moot point. It probably can be argued that you can't, and that any notion of automatic tip must be prominently visible.</p>\n",
"score": 2
},
{
"answer_id": 90037,
"body": "<h2><a href=\"/questions/tagged/italy\" class=\"post-tag\" title=\"show questions tagged 'italy'\" aria-label=\"show questions tagged 'italy'\" rel=\"tag\" aria-labelledby=\"tag-italy-tooltip-container\">italy</a> It has to be noted clearly</h2>\n<p>In Italy, there are several different types of extra charges that can apply to a dinner in a restaurant:</p>\n<ul>\n<li>Table/Service Charge - either flat per seat or a percentage of the ordered food + wine</li>\n<li>Bar Charge - per drink pulled from the tap or percentage of the costs of the drinks</li>\n<li>Life Music Fee - usually a flat amount</li>\n</ul>\n<p>All of this need to be clearly stated on the menu in a readable and visible place. This is <strong>NOT</strong> a gratuity or tip, but an ordinary billing item.</p>\n<h2><a href=\"/questions/tagged/france\" class=\"post-tag\" title=\"show questions tagged 'france'\" aria-label=\"show questions tagged 'france'\" rel=\"tag\" aria-labelledby=\"tag-france-tooltip-container\">france</a> <a href=\"https://www.economie.gouv.fr/dgccrf/Publications/Vie-pratique/Fiches-pratiques/Pourboire\" rel=\"nofollow noreferrer\">A mandatory Gratitude is not allowed</a></h2>\n<p>In France, any service fee <strong>needs</strong> to be part of the addressed prices. Those prices already have to contain the <em>15% service compris</em> since 1985. As such, a mandatory tip would violate law.</p>\n",
"score": 2
},
{
"answer_id": 90030,
"body": "<p>Service charges (automatic gratuities) may require notification, or not, depending on state law.</p>\n<p>In <a href=\"/questions/tagged/washington\" class=\"post-tag\" title=\"show questions tagged 'washington'\" aria-label=\"show questions tagged 'washington'\" rel=\"tag\" aria-labelledby=\"tag-washington-tooltip-container\">washington</a>, <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=49.46&full=true\" rel=\"nofollow noreferrer\">RCW 49.46.160</a> requires customer notification of automatic service charges:</p>\n<blockquote>\n<p>An employer that imposes an automatic service charge related to food,\nbeverages, entertainment, or porterage provided to a customer must\ndisclose in an itemized receipt and in any menu provided to the\ncustomer the percentage of the automatic service charge that is paid\nor is payable directly to the employee or employees serving the\ncustomer.</p>\n</blockquote>\n<p>There are no particular requirements as to how that notification is to be made. <a href=\"/questions/tagged/michigan\" class=\"post-tag\" title=\"show questions tagged 'michigan'\" aria-label=\"show questions tagged 'michigan'\" rel=\"tag\" aria-labelledby=\"tag-michigan-tooltip-container\">michigan</a> <a href=\"http://www.legislature.mi.gov/documents/2001-2002/billintroduced/House/htm/2001-HIB-4657.htm\" rel=\"nofollow noreferrer\">Michigan attempted</a> to pass such laws twice but failed.</p>\n",
"score": 0
}
] |
[
"payment",
"restaurants"
] |
Is it illegal to deface graffiti in England?
| 3 |
https://law.stackexchange.com/questions/58485/is-it-illegal-to-deface-graffiti-in-england
|
CC BY-SA 4.0
|
<p>From this site - <a href="http://www.environmentlaw.org.uk/rte.asp?id=49" rel="nofollow noreferrer">http://www.environmentlaw.org.uk/rte.asp?id=49</a>:</p>
<blockquote>
<p>In England and Wales, graffiti is considered an act of criminal damage
under the Criminal Damage Act 1971 and offenders can be punished with
an unlimited fine.</p>
</blockquote>
<p>Is it illegal to deface graffiti? For example, spray painting over existing graffiti on a public wall.</p>
<p>By defacing I mean black-boxing, drawing a line through, painting over with the colour of the wall. So not tagging, but just spoiling or covering.</p>
| 58,485 |
[
{
"answer_id": 58502,
"body": "<p>It depends...</p>\n<p>The statutory defence relevant to the OP may be found at s.5(2)(a) of the Criminal Damage Act 1971\n<a href=\"https://www.legislation.gov.uk/ukpga/1971/48/section/5?timeline=false\" rel=\"nofollow noreferrer\">https://www.legislation.gov.uk/ukpga/1971/48/section/5?timeline=false</a></p>\n<blockquote>\n<p>if at the time of the act or acts alleged to constitute the offence he\nbelieved that the person or persons whom he believed to be entitled to\nconsent to the destruction of or damage to the property in question\nhad so consented, or would have so consented to it if he or they had\nknown of the destruction or damage and its circumstances...</p>\n</blockquote>\n<p>So the burden of proof is on the over-painter to establish that they believed they had consent to commit further criminal damage (by over-painting black boxes etc).</p>\n",
"score": 3
}
] |
[
"england-and-wales",
"criminal-damage"
] |
Getting employed by different company than you sign contract with (without your knowledge)
| 0 |
https://law.stackexchange.com/questions/90019/getting-employed-by-different-company-than-you-sign-contract-with-without-your
|
CC BY-SA 4.0
|
<p>This is in Germany.</p>
<p>So there is company A.
Recently i applied for a job with A, got interviewed, got accepted and signed a <em>Arbeitsvertrag</em> (work contract) with company A.
Now i got my first <em>Gehaltsabrechnung</em> (payroll / payslip) including <em>Meldebescheinigung zur Sozialversicherung</em> (register for social security). But both those documents have Company B as my employer.</p>
<p>Some background: Companies A and B were both founded by the same person (my boss), are still owned by that very person, are even located in the same building. But are registered as fully seperate companies (different HRB numbers in the Handelsregister).
Through a coworker i found out that when i was hired, Company A had some employees on <em>Kurzarbeit</em> (shortened work hours for less pay). Hiring new personal while having existing employees on Kurzarbeit is not allowed in general as far as i know, which makes me strongly suspect this was the reason for this charade.</p>
<p>I had no knowledge of all of that until discovering the inconsistencies in my documents now and, suffice it to say, never gave my consent for these proceedings. I think this is quite shady and, while i overall like the job and people there, it has definitely soured the whole deal for me. I have already decided to look for and switch jobs as soon as possible, but still have some legal questions:</p>
<ol>
<li>Was this whole sign contract with A and get employed by B legal ? Would they have required my consent to do this ?</li>
<li>More important: In which company am i employed now ?</li>
<li>Am i properly employed and therefore secured in cases of e.g. workplace accidents ?</li>
<li>Personal advice ? Am i making more of this than it actually is ? Should i keep my head down and get out asap ?</li>
</ol>
| 90,019 |
[
{
"answer_id": 90032,
"body": "<p>Depending on the structure of the companies under a common holding/ownership, it should be possible for the management to <strong>shift departments between companies</strong> without the consent of the employees. But at least after you actually start work, you should have been formally informed, and possibly been given the opportunity to resign without the contracted notice period if you disagree.</p>\n<ul>\n<li>Failure to keep the paperwork straight could be a minor red flag. Depends on the size of the company and the level of trust.</li>\n<li>The law is rather strong on the concept that if you work there, you are employed. So you could sue <em>B</em> to get a proper employment contract <em>at B</em>.</li>\n<li>I presume that you were paid the agreed sum. Do you have the <em>Lohnsteuerbescheinigung</em> and <em>Bescheinigung zur Sozialversicherung</em>? Then you are legally employed somewhere.</li>\n<li>Does either of the companies have a <em>works council</em> (Betriebsrat)? Talk with them.</li>\n<li>Otherwise, talk to the trade union which is responsible for your sector.</li>\n</ul>\n",
"score": 1
},
{
"answer_id": 90034,
"body": "<p>A non-malicious explanation would be that both A and B use the same company P for payroll processing, and P was confused while preparing the paperwork. You have a contract with A and work for A, so notify your boss in company A that your payslip looks incorrect, and that they could please correct this aspect. No one likes to admit a mistake, but it's definitely possible to re-issue corrected documents.</p>\n<p>By the way, some employers might think that running two companies together would have advantages. There might be advantages regarding limited liability, but it has little effect on workers' rights. Most relevant legislation does not look at <em>Unternehmen</em> (companies, legal entities), but at <em>Betriebe</em> (~plants, establishments). If two companies pool their employees in one office, have them work towards common goals, and have shared leadership, then it is likely that there is only a single <em>Betrieb</em>. In particular, rules around <em>Kurzarbeit</em> mostly apply on the per-<em>Betrieb</em> level.</p>\n",
"score": 1
}
] |
[
"germany",
"workplace"
] |
Does the XR vs. Shell case create precedent for environmental activism being necessary?
| 5 |
https://law.stackexchange.com/questions/64446/does-the-xr-vs-shell-case-create-precedent-for-environmental-activism-being-nec
|
CC BY-SA 4.0
|
<p><a href="https://extinctionrebellion.uk/2021/04/23/breaking-the-xr-activists-who-took-on-oil-giant-shell-and-won/" rel="nofollow noreferrer">Six Extinction Rebellion activists were charged</a> with criminal damage to the Shell HQ building in London’s Waterloo in April 2019. All admitted the actions, and five of the six relied on the defense that their actions were necessary, in that their actions that day were required to prevent greater harm, specifically that they raise the alarm about the threat of climate change and pressure the UK government to act. The judge directed the jury that these 5 defendants had no defense under the law. The sixth defendant claimed that he believed Shell (considered as a whole, including all the staff, shareholders and management) would have consented to his actions, and this was accepted by the judge as recognised under law. All six were found not guilty by the jury.</p>
<p>Does this create precedent for environmental activism being necessary, such that it could be cited in subsequent cases to demonstrate that similar action may be protected by the law?</p>
| 64,446 |
[
{
"answer_id": 64447,
"body": "<p><strong>Does this create precedent?</strong></p>\n<p><strong>NO</strong> This was a Crown Court case, only the Supreme Court and the Court of Appeal can set precedent which it did with similar circumstances in <a href=\"https://www.google.co.uk/amp/s/swarb.co.uk/regina-v-hill-and-hall-cacd-1989/amp/\" rel=\"noreferrer\">R v Hill 1989</a></p>\n",
"score": 4
}
] |
[
"united-kingdom",
"jury",
"precedent",
"environmental",
"criminal-damage"
] |
What are the consequenses of reporting criminal damage by my partner?
| 4 |
https://law.stackexchange.com/questions/17245/what-are-the-consequenses-of-reporting-criminal-damage-by-my-partner
|
CC BY-SA 4.0
|
<p>My domestic partner - we are unmarried - has maliciously destroyed a computer belonging to me (approx value £2000) following an argument. I don't want to respond in kind, but I want to send a signal that this is not acceptable behaviour.</p>
<p>If I report criminal damage to the local police, will this be taken seriously? And is a prosecution automatic or will I need to press charges? I don't actually want to end our relationship (we have young children) but I want this incident officially logged.</p>
| 17,245 |
[
{
"answer_id": 17254,
"body": "<p>If the police become aware of the domestic violence through you reporting it or otherwise the matter is entirely in their hands. They will decide if they want to prosecute or not.</p>\n",
"score": 3
}
] |
[
"united-kingdom",
"vandalism",
"criminal-damage"
] |
If a law is new but its interpretation is vague, can the courts directly ask the drafters the intent and official interpretation of their law?
| 29 |
https://law.stackexchange.com/questions/89894/if-a-law-is-new-but-its-interpretation-is-vague-can-the-courts-directly-ask-the
|
CC BY-SA 4.0
|
<p>The problem with old laws seems to be that many times the drafters aren't alive to tell what their intent or interpretation is of a given law, but in case a law is new and the drafter or drafters are alive, can courts ask them about the interpretation and intent behind a law?</p>
| 89,894 |
[
{
"answer_id": 89907,
"body": "<p>No.</p>\n<p>Under U.S. Jurisprudence, any vagueness in a criminal law must be given an interpretation favorable to the people, rather than the government, since the government had the opportunity to make their intentions clear when drafting the law. Additionally, the U.S. Constitution has what is called the "Vagueness Doctrine" which renders vague laws at any level of government to be unenforceable (Found in the 5th and 14th Amendment as an interpretation of the Due Process clauses).</p>\n<p>The quickest way to overturn the court's ruling is for a legislature to pass an amended law that defines the vague terms in terms that are better understood and can give the courts a proper interpretation of what should happen, however, no one who was charged under the law can be recharged under the new definition.</p>\n",
"score": 40
},
{
"answer_id": 89903,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a><sup>*</sup></p>\n<p>There are three ways that Parliament or a legislature can communicate to a court.</p>\n<p>In important cases of statutory interpretation, the Government will often be allowed to <a href=\"https://www.scc-csc.ca/ar-lr/notices-avis/21-11-eng.aspx\" rel=\"noreferrer\">intervene</a> to present its views on how the law should be interpreted.</p>\n<p>Parliament and legislatures have already provided significant direction to courts about how to interpret statutes via <a href=\"https://laws-lois.justice.gc.ca/eng/acts/i-21/\" rel=\"noreferrer\">Interpretation Acts</a>.</p>\n<p>Parliament and legislatures often will include a preamble or explicit purpose provisions in an Act. These play a significant role in directing a court's understanding of the intent behind a law.</p>\n<hr />\n<p><sup>* <a href=\"https://law.stackexchange.com/help/on-topic\">See this help page</a>: <em>Even if you supply a jurisdiction tag, we expect and encourage answers dealing with other jurisdictions – while it might not answer your question directly, your question will be here for others who may be from those jurisdictions. If you do this, please tag your answer using the tag markdown: [tag: some-tag]</em>. </sup></p>\n",
"score": 21
},
{
"answer_id": 89914,
"body": "<p>In the US, courts do not ask questions, except that in appellate courts, after an attorney presents his arguments, the justices can ask questions of the attorney. <a href=\"https://jcc.granicus.com/player/clip/3353?meta_id=105715&redirect=true&h=7fc0da3a1fdc48df867cb2c50397a777\" rel=\"noreferrer\">Here</a> is a recording of argumentation before the California Supreme Court (e.g. 4:46). In inquisitorial systems, judges are tasked with interrogating witnesses, but not here.</p>\n<p>There is an opportunity for parties to submit briefs that bear on a case, and such brief can be quite wide-ranging. The briefs can inform the justices, but they cannot command them. The problem with your proposal is that there is not even a reasonable chance of identifying an "authority" as to intent. The identity of the drafter of a piece of legislation is in a black box, and there is likely to not be a single person who wrote the legislation. There is probably a list of members of the legislature who introduced the legislation, but they have staff who write bills, and it would be impossible to definitively trace who exactly wrote a particular phrase.</p>\n<p>Besides which, the courts are not charged with enforcing the intentions of the staff person who drafted a clause, they are charged with enforcing the law that was enacted by the legislature, regardless of who wrote it. The concept of "collective intent" is kinda sketchy, but it does exist in certain schools of jurisprudence, as a way of determining the meaning of the text that was actually enacted. Therefore (thanks to the aforementioned briefs) one side can present evidence from legislative committee reports that might inform the court of bits of reasoning that was actually used in the creation of the bill. No individual is in the privileged psition of being able to say "this is what the group was thinking, in using that phrase".</p>\n",
"score": 17
},
{
"answer_id": 89941,
"body": "<p>A bill that is passed, is passed as presented for vote, not as intended. In most circumstances, the original intent of the bill is not the bill that was passed.</p>\n<p>Even if the original intent could be known, the point of all the discussion is to modify the text of the bill. Often there is significant modification of the text in order to make it more acceptable for the legislature and executive to pass. Going back to some previous meaning would be, in essence, a bait-and-switch scam.</p>\n<p>Consider: some time after a bill becomes law, we ask the original drafter what they intended. They could give any answer. We'd want some way for them to write down their intent upon drafting. We have that: it is the bill that was drafted.</p>\n<p>However, as for what a judge may do, they may use any source they wish including their own opinion, as a basis for a ruling. It is not uncommon for a judge to have conversations about anything with many people. This may include the drafter of a bill.</p>\n<p>Whatever the judge is <em>supposed to</em> do, legal training is largely based around finding ways to justify one's opinion using specific means allowable in a given context. Most judges will be good at this, having had significant practice at doing it.</p>\n<p>While technically the answer is no, practically, this could happen through other means.</p>\n",
"score": 6
},
{
"answer_id": 89899,
"body": "<h2>No</h2>\n<p>If Parliament can tell the courts how to read the law in particular cases, rather than in general, it doesn't make the courts independent.</p>\n",
"score": 4
},
{
"answer_id": 90026,
"body": "<p>There is precedent, kinda.</p>\n<p>First, to be very clear, I generally agree with everyone who is saying no; but, sometimes judges do do additional research to determine intent.</p>\n<p>For example, the U.S. Supreme Court and other courts have been known to cite the Federalist Papers, for example <a href=\"https://en.wikipedia.org/wiki/Federalist_No._78\" rel=\"nofollow noreferrer\">Federalist Paper #78</a>. Though, apparently the <a href=\"https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1428&context=concomm\" rel=\"nofollow noreferrer\">most cited federalist paper</a> is Federalist No. 42.</p>\n<p>Obviously the jurists are not directly asking the writers of the constitution, but they are using sources to determine intent.</p>\n<p>How prevalent this practice is outside this one example I cannot say as a non-expert.</p>\n",
"score": 2
},
{
"answer_id": 90022,
"body": "<p>First off, what you ask is impossible: Laws are generally written by committees, and are then rewritten by other committees and then probably passed by yet another committee.</p>\n<p>In a well functioning democracy, the people that hate the law can shape it just as much as the people that love it.</p>\n<p>Secondly, even if it was possible, say bills were required to be written by a single legislator and passed or failed without modification, that still wouldn’t make that person an authority on what the law meant, quite the opposite, because then it would mean what people with no input into it wanted it to mean —- they would be passing the bill hoping for Y, but with no way to actually require Y.</p>\n<p>It would be giving them special status as compared to everyone else, they would effectively be the final judge. It says what they say it means, no more, and no less.</p>\n<p>Their arguments may be instructive, but is not binding.</p>\n<p>Finally, there is an old and well known remedy for vagueness —- reject and rewrite.</p>\n",
"score": 1
}
] |
[
"criminal-law",
"california"
] |
Do I need to worry about inheriting Polish debt from a family member when based in the UK?
| 6 |
https://law.stackexchange.com/questions/74436/do-i-need-to-worry-about-inheriting-polish-debt-from-a-family-member-when-based
|
CC BY-SA 4.0
|
<p>Apparently, under Polish law you inherit debt, though you can choose not to accept the inheritance.</p>
<p>"Polish inheritance law follows the rule of general succession which means that heirs are liable for the debts of the estate."</p>
<p>My family live in the UK.
I am British and my wife is Polish born but has lived in the UK since she was 2 years old and only holds a British Passport and is a British citizen.
My wife’s parent are also Polish born and live in the UK and are British citizens.</p>
<p>My wife’s cousin recently passed away with circa £50k in dept and no assets. He's Polish and lived in Poland.</p>
<p>When a family member rejects an inheritance, it is then automatically passed to the next family member in this order.</p>
<p>• his spouse and children are the first in line, followed by
• grandchildren, followed by
• great grandchildren, followed by
• parents, followed by
• siblings etc.</p>
<p>All family members based in Poland will be rejecting the inheritance.
They can do this for a sum of circa 50zl but you need a Polish passport and you need to be in Poland to do this via an appointment with the consulate.</p>
<p>What this means is my wife and her mother will need to reject the inheritance for the same reasons. But to do this in the UK without a Polish passport required Notary service and quotes are coming in from UK based solicitors at £420 per person.</p>
<p>It’s also not clear how far down the family hierarchy this needs to be carried out for.
If my children also need to reject, then the price for the family starts to get silly.</p>
<p>So my question is, is this really required to reject the inheritance since we are based in the UK.
Can Polish authorities / bailiffs really chase us for money oversees? And if not, is this a problem if we visit Poland in the future?</p>
| 74,436 |
[
{
"answer_id": 79290,
"body": "<p>Most civil law jurisdictions, including Poland, have a concept called "universal succession."</p>\n<p>What this means is that the default rule is that the persons entitled to receive a decedent's property, as established by a notarized will or intestate succession in the absence of a will, collectively receive the property of the decedent subject to the debts of a decedent, with a legal obligation to share the proceeds and obligations between each other as provided by law and the terms of the Will.</p>\n<p>But, it is possible, instead, to have the estate of a decedent formally administered. In these cases, the assets and liability of a decedent are formally determined and set off against each other. Successors of the decedent (either under a Will or intestate succession) are not subject to the debt's of the decedent if this is done, and instead, receive only the residuary assets of the estate remaining after the assets of the decedent have been used to pay the decedent's debts. This leaves only assets exempt from claims of creditors by statute (which are few) in the case of an insolvent estate, which is in most cases almost equivalent to giving up one's inheritance entirely.</p>\n<p>In the exception case when an estate is formally administered in this fashion, this is normally done either by non-family executors, in cases where it seems sure that the estate will be insolvent, or by an executor chosen by the successors of the decedent or the Will, in cases where a complicated estate of a decedent is probably solvent, but its solvency is uncertain because it is hard to exactly value some assets and some liabilities, or because there is a likelihood that some unknown assets and/or some unknown liabilities exist.</p>\n<p>Formal administration of a decedent's estate normally involves a process involving court filings or filings with a notary public that must be followed to affirmative elect to have a decedents estate formally administered. If this process is not followed within the specified time frame, the estate is usually, instead, governed by default process of universal succession.</p>\n<p>The nitty gritty details of the process are beyond my knowledge, but that is the basic conceptual outline and baseline of how the process of handling decedent's estate is usually managed in civil law countries from which any country specific laws may deviate or further elaborate.</p>\n<p>There is a summary of the law in Poland <a href=\"https://www.mondaq.com/wills-intestacy-estate-planning/610880/which-debts-of-the-deceased-may-be-inherited-by-the-heirs-according-to-polish-intestacy-rules\" rel=\"nofollow noreferrer\">here</a>. Basically, it provides that an heir's liability can be limited either by refusing the inheritance altogether or accepting it with the liability amounting to the value of the estate (so called "benefit of inventory"). So, in Poland, to get the benefits of formal administration the heirs need to prepare and file an inventory of the estate within six months of the date of death. They also have six months from the date of death to instead disclaim their inheritance and the obligations that come with it.</p>\n<blockquote>\n<p>Under Polish law, the heirs should make declaration on accepting an\ninheritance or refusing an inheritance within 6 months from the date\nthey became aware of the fact that they are to inherit after the\ndecedent. Where there is no declaration on acceptance or rejection of\ninheritance within a period of 6 months, this will be considered as\nthe beneficiary accepting the inheritance with the benefit of\ninventory. That is a good solution as the liability would be limited\nto the value of the assets of the estate. Therefore, the heir would\nnot have to pay more debts then the inherited value. However, that\nentails a duty to prepare an inventory list of the estate by the\nheirs. That is why the refusal of inheritance is also worth\nconsidering. . . .</p>\n<p>Sometimes it is . . . better to take action and refuse the inheritance\ninstead of passively accepting the inheritance with the benefit of\ninventory and dealing with unpaid debts which were not yours, even if\nthey do not exceed the estate's value.</p>\n</blockquote>\n<p>The extent to which a debt arising by universal succession would be honored as a foreign judgment after established in the country where the decedent is domiciled at death is a question that honestly doesn't come up very much.</p>\n<p>I don't know what preconditions a U.K. court would place on converting that debt to a U.K. money judgment.</p>\n<p>I suspect that a U.S. court would be quite skeptical of recognizing a foreign judgment arising by universal succession because it would probably not meet the usual requirements of U.S. law for recognition of judgments, such as service of process on the resident judgment debtor, the existing of personal jurisdiction <em>in personam</em> over the resident judgment debtor in the court where the judgment was entered, and the lack of an adequate opportunity to litigate the obligation on the merits that was known to the resident judgment debtor.</p>\n<p>But, I also wouldn't count on these defenses if I were a U.S. person and would instead seek to hire counsel in Poland to insist that the decedent's estate by having an inventory of the estate prepared and filed in a timely fashion, or by disclaiming the inheritance, based upon an evaluation of the benefits, risks, and administrative costs involved, and thus limiting the U.S. person's liability, unless the decedent's estate was solvent beyond any reasonable doubt.</p>\n<p>In the U.S., in contrast, heirs or successors of a decedent are never subject to the debts of a decedent except to the extent the obligation arises from their own mismanagement of the administration of the estate, and typically only receive inheritances once all liabilities of the decedent have been adjudicated and paid out of the decedent's assets, making a U.S. probate proceeding, unlike a civil law universal successor proceeding, an <em>in rem</em> proceeding that only adjudicates rights to a specific collection of property and does not create new personal obligations for heirs that can be enforced with money judgments against those heirs.</p>\n",
"score": 2
},
{
"answer_id": 74444,
"body": "<blockquote>\n<p>Can Polish authorities / bailiffs really chase us for money oversees?</p>\n</blockquote>\n<p>No, they have no legal authority in the UK.</p>\n<p>What they can do is get a judgement against you in a Polish court, bring that to an English, Scottish or Northern Ireland court (depending where you live) who will issue a local judgement. Now UK officers can enforce it.</p>\n<blockquote>\n<p>And if not, is this a problem if we visit Poland in the future?</p>\n</blockquote>\n<p>Potentially. It’s more likely to be a problem if the debt is owed to the government than a private individual.</p>\n",
"score": 0
}
] |
[
"united-kingdom",
"debt",
"inheritance",
"poland"
] |
If an employer owns any work you produce whilst employed, do you have to be un-employed before you can begin a startup?
| 23 |
https://law.stackexchange.com/questions/78432/if-an-employer-owns-any-work-you-produce-whilst-employed-do-you-have-to-be-un-e
|
CC BY-SA 4.0
|
<p>I've always liked the idea of owning a start-up company, during my employment history I've encountered problems and developed solutions I think could be developed into an actual product. I'm concerned about what effects the standard "company X owns all work produced whilst employed" has on my ability to take an idea and begin a start-up in my free time.</p>
<p>For example, I've previously made software which collects specific data from the factory floor and displays it live. This software is very specific to the company's needs, but could be generalised and adapted to work across a variety of manufacturing companies.</p>
<p>In theory, this idea could be packaged as a product, sold separately and be the foundation for a software startup. The end product, whilst inspired by the original task, would be very different from its current implementation.</p>
<p>Would the previously mentioned clause mean that the idea (and any development on it) is owned by the employer as it was originally conceived on company time?</p>
<p>Is this still property of the company, no matter how much external development is done?</p>
<p>In a similar vein, If something I encounter at work inspires me with a different idea and I start work on it in my free time rather than during office hours, does the company own that idea? As I wouldn't have encountered the problem my idea solves if I didn't work at the company?</p>
<p>Surely there is a limit to what a company can reasonably claim as their intellectual property, as it seems unreasonable for a magnetics manufacturer to claim a app which provides cooking recipes as IP just because it was developed by one of their employees.</p>
<p>To properly pursue any start-up ideas I have, would I have to be completely unemployed or otherwise out of the industry for a grace period before I can legally work without infringing on the company's IP?</p>
<p>Any help is greatly appreciated!</p>
| 78,432 |
[
{
"answer_id": 78433,
"body": "<h2>Ideas <em>aren't</em> property</h2>\n<p>Your employer does not own your ideas. However, neither do you.</p>\n<p>Ideas are not something that is protected by intellectual property law. To be IP, you need <em>more</em> than an idea.</p>\n<h2>What <em>is</em> IP?</h2>\n<p>The most <a href=\"https://business.gov.au/planning/protect-your-brand-idea-or-creation/intellectual-property#:%7E:text=Intellectual%20property%20(IP)%20is%20the,opportunity%20to%20commercialise%20their%20creations.\" rel=\"noreferrer\">common</a> types are:</p>\n<ul>\n<li>Patents - protect inventions and new processes</li>\n<li>Trade marks - protect logos, words and other branding</li>\n<li>Copyright - protects art, writing, music, film, and computer programs</li>\n<li>Registered designs - protects the visual design of a product</li>\n<li>Circuit layout rights - protect layout designs or plans of integrated circuits used in computer-generated designs</li>\n<li>Plant breeders rights - protect the commercial rights of new plant varieties.</li>\n</ul>\n<p>The normal operation of IP law is that if a person is engaged under a contract <em>of</em> service (e.g. an employment contract) then their employer owns all the IP they make which includes progress towards something that might be IP (e.g. all the work that leads up to a patentable invention). However, if they are engaged under a contract <em>for</em> service (e.g. an independent contractor), then the worker owns the IP.</p>\n<p>The work the employer owns is generally limited to work in the course of the employment. So if you are a software developer they will generally own all code you write that is useful for their business but won't own the romantic novel you write in your spare time.</p>\n<p>In either case, the specific contract can override the default assumption.</p>\n<h2>What can you do?</h2>\n<p>You can certainly use the <em>idea</em> for the app but you can't use <em>anything</em> that is subject to your employer's IP. That means you can't use any code or copy the user interface - it all has to be redeveloped from scratch. You also can’t develop something that would be of use to their business while you are still an employee.</p>\n",
"score": 19
},
{
"answer_id": 78439,
"body": "<p>Contract terms are a negotiation. If you think "company X owns all work produced whilst employed" is an unreasonable term, then your legal option is to refuse to sign it.</p>\n<p>Of course, the company can turn around and say "no deal" but this is because you are not Linus Torvalds (or any other prominent free software developer). Imbalance in bargaining power is generally not a legal issue though.</p>\n<p>I don't know what the job market is where you are but it's generally worth asking the question. I'm sure a lot of HR teams will have heard it before, and you won't be the first person that asked about side gigs. Maybe it's the culture in your country/industry that terms aren't negotiable and maybe you just need to ask.</p>\n",
"score": 19
},
{
"answer_id": 78441,
"body": "<p>Draconian employment agreements are not always enforceable. This is especially true in "right to work" jurisdictions. Courts have essentially ruled that employers can't have it both ways. That is they cannot fire at will and control all aspects of an employees life.</p>\n<p>Additionally (from a legal perspective) many are poorly written and can be voided on other technical errors.</p>\n<p>To be 100% sure you would need to consult a lawyer, however, one thing is sure. If at any time you use your company's assets to develop your idea into a product they probably have some right to ownership.</p>\n<p>The key is to keep things 100% separate, your own computer, internet access, email, office supplies, phone, web site provider, etc....</p>\n<p>As richarddb pointed out in his answer, there is nothing stopping you from renegotiating this agreement now. Then you are free to turn your idea into a product with impunity.</p>\n",
"score": 11
},
{
"answer_id": 78471,
"body": "<p>As you're not providing a country, in Germany this is regulated like this ("Mehrfachbeschäftigung"):</p>\n<ul>\n<li>In principle, an employer cannot forbid you to have secondary employment, or be self-employed, or earn money on the side with whatever method you're choosing, as long as you're fulfilling the contract with your employer. I.e., if your side work taxes you so much that you cannot work the amount of hours for your employer, and just don't show up, that is simply a regular breach of contract, it has nothing to do with the reason why you can't fulfill it. If you are so overworked that your performance suffers heavily, this will just be treated as such - your employer can / will treat you like any other employee who performs badly.</li>\n<li>One exception to this basic principle is that your employer <em>can</em> forbid you to do a side job which is more or less the same as the work you are doing for your employer. For example, if I work as a DevOps Engineer for my employer, but on my side I <em>also</em> offer my skills as DevOps Engineer to another company or as a freelancer, it definitely becomes interesting. Especially if I do that for a customer which would potentially or actually a customer of my employer. There could be real conflicts of interest here - e.g. I could use my knowledge from my work at the employer to undercut his rates towards the customers, steal customers wholesale, and so on and so forth.</li>\n<li>Using any IP from your employer (where "IP" has a concrete meaning; random ideas or general approaches to solve problems are never IPs) can and will get you in trouble - that's what the term "intellectual property" (emphasis "property") means. <em>If</em> what you are using <em>is</em> property of your employer, he can and must protect his property if he thinks that is more important in your individual case than keeping you as an employee. The example you're giving (to create a system which visualizes a factory) can be very general (no problem) or very specific (potentially a problem if your employer decides to go to court).</li>\n</ul>\n",
"score": 5
},
{
"answer_id": 78467,
"body": "<p>Even if you agree to the general clause in the contract about all IP belonging to your employer (and yes, in the UK at least, technically that does mean ALL IP, including random stuff completely unrelated to your work that you do outside of company time and using no company equipment or resources), if you have an idea that you wish to pursue and to retain ownership of, you can negotiate that with the employer. It's pretty common in my line of work for people to turn up at HR and say "I've had this idea I want to pursue, please can I have a waiver for it" and then the company gives them a signed letter saying "we waive all our rights to X" and then off they go to work on it in their spare time.</p>\n",
"score": 4
},
{
"answer_id": 78485,
"body": "<p>In the <a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" rel=\"tag\">united-states</a> the default rule, in the absence of a contract, is that the copyright of any work created by an employee "prepared by an employee within the scope of his or her employment" is a work-made-for-hire and the copyright belongs to the employer, see <a href=\"https://www.copyright.gov/title17/92chap1.html#101\" rel=\"nofollow noreferrer\">17 USC 101</a>. This means that work done as part of the employee's assigned tasks, and work of the same sort (narrowly construed) as the work normally assigned to the employee by the employer. Beyond that, the employee retains any copyrights except as a written contract may provide otherwise.</p>\n<p>An independent contractor owns all copyrights of work created during the assignment except as a written contract may provide otherwise.</p>\n<p>I believe that the US rule for patents and other IP is similar.</p>\n<p>Using the code created for and owned by the employer as a basis for a new, more general app, might well make the new app a derivative work. If it did, the employer's permission would be needed to lawfully create or distribute such an app.</p>\n",
"score": 4
},
{
"answer_id": 78484,
"body": "<p>I worked in an Indian IT shop once (in India, where I live) which had language like this in their contract; I told them I wanted to work on an app and got the relevant clause changed. They mostly wanted me to promise not to compete with them and not to work on it during weekdays, so it was an easy negotiation</p>\n",
"score": 3
},
{
"answer_id": 78469,
"body": "<p>If your idea is related to your company's business then it likely belongs to them.</p>\n<p>Examples:</p>\n<ol>\n<li><p>You work at Google. You work on maps. While at home you have an idea for a better coffee maker.</p>\n</li>\n<li><p>You work at Google. You work on Android's audio system. While at home you have an idea for a better search algorithm.</p>\n</li>\n<li><p>You work at Google. You work on Search. While at home you have an idea for a better search algorithm.</p>\n</li>\n<li><p>You work at Google. You work on Search. While at home you have an idea of how to solve the bug you're fixing at work.</p>\n</li>\n</ol>\n<p>I gave 4 examples to hopefully show there's a spectrum and I hope the last one shows why, at least in some states/countries, the general thinking is "if it's related to the company" or "if it's related to your work" then it belongs to the company.</p>\n<p>In #4, it seems common sense (to me at least), that having an idea directly related to your work that you happen to have outside normal hours doesn't make it yours. It would seem untenable for you to be able to go to work the next day and demand more money because you had this idea of how to solve your work problem outside of work hours. Every employee would just claim all solution ideas happened outside of work. The company likely pays you a salary, not an hourly wage which is supposed to cover the fact that you'll be thinking about the company and your job at irregular times. Second, you wouldn't even be aware of the bug except for the fact that you're working on their product.</p>\n<p>In #3, it's not really too far from #1. Especially for knowledge work, the company is paying you for your knowledge regardless of when it occurs to you.</p>\n<p>In #2, it's more iffy. My guess is again, the company's business includes search. I don't know how this would go in court. My personal guess is Google would win because they're in the search business even though your job is not personally in search.</p>\n<p>In #1, it seems relatively clear you're safe.</p>\n<p>Unfortunately between #2 and #1 there's a big range of projects, especially for a company like Google that does a zillion things. Fortunately, at Google, as an employee, you can ask them and they'll tell you up front if they see it as a conflict and if not they'll give you a legal letter stating they have no ownership of your idea. Of course not all companies have such a system.</p>\n<p>To your specific questions, your first question sounds very much like #3 above. The thing you want to make is in direct competition with your employer. As such it would likely belong the company. If you want to pursue it you'd need to quit (and hopefully live somewhere that doesn't have non-compete clauses)</p>\n<p>For your second question, it's not clear what the ideas are and how close they are to your company's line of business. The closer the more likely they could claim ownership. None of us can answer if they are too close or far enough. You options are (1) quit and pursue your ideas (2) ask for legal permission/clarification (3) do it anyway and pray you don't have your work taken from you.</p>\n",
"score": 2
},
{
"answer_id": 78498,
"body": "<p>Some more on the situation in <a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" rel=\"tag\">germany</a>, in addition to what AnoE says:</p>\n<ul>\n<li><p>What IP your employer can claim does <em>not</em> depend on it being developed during working hours e.g. for inventions and software. The rules how to decide whether the employer has a right differ between different types of IP.</p>\n</li>\n<li><p>There are some situations where IP is yours, but you have to tell your employer. One would usually not want this, and in many cases it is plain impossible to do business under such obligations (e.g. I usually have NDAs with my customers)</p>\n</li>\n</ul>\n<hr />\n<p>If you want to start a side business, the legal default is IMHO not suitable: even if your software turns to not be in your employer's sphere of interest (which I would not bet on in the case you describe), there is a substantial legal risk. And you'd want to spend your time developing your product rather than preparing a defense for meeting your employer in court.</p>\n<p>So my recommendation would be to be entirely open about you wanting to start a business and negotiate suitable changes to your working contract. This will include clauses that very clearly separate what IP your employer can claim and what is yours.<br />\nThis advise may be biased due to the fact that I have successfully negotiated exactly this: a part-time contract giving me time in parallel to start my business with clauses suitable for starting my business - even though the services my business provides are essentially what I did for the employer (but my business is not competition for them - they don't sell this particular service, they need it).</p>\n",
"score": 0
},
{
"answer_id": 90024,
"body": "<p>"Beginning a startup" will involve many things that have nothing to do with your current employment. Creating a company, finding office space (possibly at your home), finding a company director (often yourself), getting financing, writing business plans, finding out about all kinds of legalities, like what taxes to pay, that is all work that for most people has nothing to do with their current employment.</p>\n<p>So independent of any IP problems, you can start your startup company while still employed.</p>\n",
"score": 0
}
] |
[
"united-kingdom",
"employment",
"business"
] |
What crime is hiring someone to kill you and then killing the hitman?
| 38 |
https://law.stackexchange.com/questions/62103/what-crime-is-hiring-someone-to-kill-you-and-then-killing-the-hitman
|
CC BY-SA 4.0
|
<p>Suppose that yesterday I was suicidal and decided to hire a hitman on the internet to kill me.</p>
<p>Today, when they turn up, I have changed my mind and defend myself by killing the hitman.</p>
<p>What crime(s) have I committed? This is completely hypothetical, so any jurisdiction would be interesting.</p>
| 62,103 |
[
{
"answer_id": 62109,
"body": "<p>It appears you want to go for a defense strategy based on a self-defense argument.</p>\n<p>This won't work in many jurisdictions, because self-defense usually doesn't apply when you intentionally caused a situation where you knew you would have to harm someone in self-defense. Similar case:</p>\n<blockquote>\n<p>Bob regularly mugs old women in the park by threatening them with a gun. Charlie finds out and wants to stop him. But instead of reporting it to the police, he wants to take care of this himself. Charlie get a gun, dresses up as an old woman and waits in the park. When Bob shows up and tries to mug Charlie, Charlie shoots first.</p>\n</blockquote>\n<p>Well, anyone else who would have found themselves in a park threatened by Bob with a deadly weapon might have had a self-defense argument. But Charlie knew that by dressing up as an old woman, he would provoke Bob to attempt to mug him. This of course doesn't exonerate Bob. But Charlie actively caused the situation which would give him the opportunity to kill Bob "in self defense". Charlie even made a complex plan to arrange this situation and put serious effort into setting it in motion. It's premeditated murder.</p>\n<p>Your situation is basically the same. You caused someone to make an attempt at your life, and then killed them to "defend yourself". And you had plenty of other options:</p>\n<ul>\n<li>There are lots of ways to end your life without requiring the help of a hitman. By getting them involved, you incited them to commit murder (killing someone who wants to die is still murder under most circumstances). By hiring the hitman, you created two possible options: Either you kill the hitman, or the hitman kills you and they would be guilty of murder. Both are the direct consequences of your actions.</li>\n<li>You could have tried to cancel the hit when you changed your mind (if you tried and failed, that <em>might</em> give you a <em>slightly</em> better legal argument)</li>\n<li>You could have called the police and ask them for protection.</li>\n</ul>\n<p>Further, when you hired the hitman you committed a crime: incitement to commit murder. The fact that you were also the victim of that crime doesn't really matter. It also doesn't matter that you <em>wanted</em> to die: <a href=\"https://en.wikipedia.org/wiki/Assisted_suicide\" rel=\"noreferrer\">Assisted suicide</a> is only permitted in very few jurisdictions, and those only allow it if performed by medical professionals under very narrow circumstances. Those circumstances would certainly not have applied, so the hitman would have been guilty of murder if he had succeeded (he is at least guilty of <em>attempted</em> murder, but you can't put a dead person on trial), so you would too. When you commit a crime and cause someone to die in the process, then that falls under the <a href=\"https://en.wikipedia.org/wiki/Felony_murder_rule\" rel=\"noreferrer\">felony murder rule</a> in many jurisdictions.</p>\n<p>You will likely be convicted of manslaughter or murder of the hitman, depending on when you decided to kill the hitman before they kill you. When you can convince the court that you did not premeditate to kill the hitman but only panicked in the last minute, and no felony murder rule applies, then you might get away with manslaughter. You might also be found guilty of incitement of attempted murder (your own murder).</p>\n",
"score": 56
},
{
"answer_id": 62112,
"body": "<p>Applying the Model Penal Code, which is the law in most of the United States:</p>\n<ul>\n<li><p>By requesting that A kill B, you are guilty of <a href=\"https://www.inazu-crimlaw.com/502\" rel=\"noreferrer\">soliciting murder</a>.</p>\n</li>\n<li><p>By reaching an agreement with A to pay to kill B, you are guilty of <a href=\"https://www.inazu-crimlaw.com/503\" rel=\"noreferrer\">criminal conspiracy</a>.</p>\n</li>\n<li><p>Because A attempted to kill B, he is guilty of attempted murder. Because you solicited that attempt, <a href=\"https://www.inazu-crimlaw.com/206\" rel=\"noreferrer\">you are an accomplice</a> to the attempted murder; because you are an accomplice, you are also liable for attempted murder.</p>\n</li>\n<li><p>By purposely killing A, you are guilty of <a href=\"https://www.inazu-crimlaw.com/2102\" rel=\"noreferrer\">murder</a>.</p>\n</li>\n<li><p>Because you provoked A's use of force against you, you are not entitled to claim <a href=\"https://www.inazu-crimlaw.com/304\" rel=\"noreferrer\">self-defense</a>.</p>\n</li>\n</ul>\n",
"score": 39
},
{
"answer_id": 62105,
"body": "<blockquote>\n<p>defend myself by killing the hit man. What crime(s) have I committed?</p>\n</blockquote>\n<p>Generally it would be <em>manslaughter</em> or [1st or 2nd-degree] <em>murder</em>, depending on whether premeditation can be proved. <em>Justifiable homicide</em> is ruled out because the client had the alternative of rescinding the agreement—perhaps subject to agreed constraints on reimbursement—as soon as he changed his mind or sometime later.</p>\n<p>Even a short lapse of time between the client's change of mind and hitman's appearance could support a finding of premeditation because of what is at stake: client's awareness that he will be "visited" by someone whose purpose is nothing short of killing him and who made arrangements to that effect. The nature of this scenario implies that killing the hitman is a foreseeable outcome.</p>\n<p>Additionally, each jurisdiction might or might not outlaw any or all forms of "assisted suicide", the hiring of a hitman (regardless of the target being the client himself), and/or the use of a computer for that purpose.</p>\n",
"score": 9
},
{
"answer_id": 62132,
"body": "<p>Well, others have covered conspiracy and incitement to murder, I’d like to touch on another angle. So, ignoring those charges, you still aren’t home free.</p>\n<p>So, let’s give a little hypothetical background to take away some of confusion. You meet someone who shares the fact that he is a hitman looking for his next job, you say you have been out of a job for over a year and are down to your last 50 bucks and you’ve been diagnosed with cancer, you’ll have the 50 on your kitchen counter at noon the next day, and you would like to have some help committing suicide. Not a lot, but some people don’t need a lot.</p>\n<p>Next day at 11:58 you get a text from your dr, it was a lab error, you’re good, 11:59 lotto ticket announced, you won multiple million jackpot, 12:00 hitman walks through your kitchen door, you jump aside saying stop, he shoots. You grab a nice knife and throw it, not to kill but just to get him to pause while you offer a few million not to kill you, unfortunately hits, killing him instantly.</p>\n<p>Even if you argue that it wasn’t a murder you were conspiring to commit, it could still be a felony (depending upon jurisdiction), in which case a felony murder charge would be a slam dunk. You were part of conspiracy to commit a felony, someone died during an attempt to commit the crime, you’re doing 20 to life.</p>\n<p>Your self defense argument is basically a confession.</p>\n",
"score": 4
},
{
"answer_id": 62108,
"body": "<p>Conspiracy to commit murder (self) and murder (killing the hit man) the affirmative defense for the second murder charge would be self defense.</p>\n",
"score": 1
}
] |
[
"murder",
"self-defense",
"hypothetical",
"suicide"
] |
Is chalk a form of graffiti in Ohio?
| -3 |
https://law.stackexchange.com/questions/30686/is-chalk-a-form-of-graffiti-in-ohio
|
CC BY-SA 4.0
|
<p>Just curious because children keep drawing chalk in my neighbor’s and my driveway. I am also curious, do we have the right to regulate street laws on the street we live on?</p>
| 30,686 |
[
{
"answer_id": 30687,
"body": "<p>With respect of Graffiti, this generally fall under vandalism, and with respect of Ohio law, chalk is unlikely to qualify under <a href=\"https://codes.findlaw.com/oh/title-xxix-crimes-procedure/oh-rev-code-sect-2909-05.html\" rel=\"nofollow noreferrer\">Ohio Revised Code Title XXIX. Crimes Procedure</a> as there is unlikely to be any lasting damage.</p>\n\n<p>Depending on what is being written, you might be able to do something about it under <a href=\"http://codes.ohio.gov/orc/2917.11\" rel=\"nofollow noreferrer\">disorderly conduct</a> laws.</p>\n",
"score": 2
},
{
"answer_id": 30694,
"body": "<p>If your concern is just that they're marking up your driveway without your permission, it probably doesn't matter whether it's "graffiti" as much as it matters whether it's illegal.</p>\n<p>I can't find a record of any prosecution for the use of sidewalk chalk, but the behavior sounds like it fits within the description of criminal mischief (<a href=\"http://codes.ohio.gov/orc/2909.07v1\" rel=\"nofollow noreferrer\">R.C. 2909.07</a>):</p>\n<blockquote>\n<p>No person shall ... Without privilege to do so, knowingly ... deface ... The property of another....</p>\n<p>Except as otherwise provided in this division, criminal mischief ... is a misdemeanor of the third degree.</p>\n</blockquote>\n<p>And coming into your driveway (I'm assuming you aren't complaining about chalk that is just on the sidewalk) would probably be <a href=\"http://codes.ohio.gov/orc/2911.21v1\" rel=\"nofollow noreferrer\">criminal trespass</a> if you have notified them that they may not be there.</p>\n<p>This all assumes that you (or you and your neighbor) are the only ones with the rights to this driveway. If we're dealing with a driveway into a building with six units and children from other units are drawing on it, you're probably not going to get anywhere trying to stop them.</p>\n",
"score": 1
}
] |
[
"ohio",
"vandalism",
"criminal-damage"
] |
Why was Alex Murdaugh sentenced so quickly after the guilty verdict?
| 0 |
https://law.stackexchange.com/questions/90020/why-was-alex-murdaugh-sentenced-so-quickly-after-the-guilty-verdict
|
CC BY-SA 4.0
|
<p>Normally, isn't there a big pre-sentencing investigation and victim impact statements and stuff like that?</p>
<p>Not surprized about the withering rebuke and sentence, but that it occurred so immediately after the verdict.</p>
| 90,020 |
[
{
"answer_id": 90021,
"body": "<p>Nobody who would have given a victim impact statement wished to speak to the court: Erik Ortiz, NBC, "<a href=\"https://www.nbcnews.com/news/us-news/live-blog/murdaugh-sentencing-live-updates-rcna73228#rcrd11223\" rel=\"nofollow noreferrer\">No victim impact statements</a>". And the prosecution did not seek the death penalty: N'dea Yancey-Bragg, USA Today, "<a href=\"https://www.usatoday.com/story/news/nation/2023/03/03/alex-murdaugh-sentencing-murder-conviction-updates/11389486002/\" rel=\"nofollow noreferrer\">Former South Carolina attorney Alex Murdaugh sentenced to life after murder convictions</a>".</p>\n",
"score": 3
}
] |
[
"criminal-law",
"trial",
"sentencing"
] |
Is training an AI on the internet processing personal information?
| 2 |
https://law.stackexchange.com/questions/90000/is-training-an-ai-on-the-internet-processing-personal-information
|
CC BY-SA 4.0
|
<p><a href="https://www.theregister.com/2023/03/02/chatgpt_considered_harmful/#:%7E:text=I%20decided%20to%20test%20it%20for%20myself.%20Given%20I%20had%20never%20interacted%20with%20ChatGPT" rel="nofollow noreferrer">There is an article on El Reg</a> where the author asks ChatGPT about themselves, and they get back some information. If this data acquisition and dissemination process was being performed specifically by a company it would clearly be a situation where the GDPR applies, and the company would have certain responsibilities. However it seems probable that the actual design and implementation of ChatGPT was a bit higher level than that.</p>
<p>Does the GDPR apply to ChatGPT and the other chatbots that are in development around the world that are trained by reading the internet?</p>
| 90,000 |
[
{
"answer_id": 90017,
"body": "<h2><a href=\"https://gdpr-info.eu/art-4-gdpr/\" rel=\"nofollow noreferrer\">Yes</a></h2>\n<blockquote>\n<p>‘processing’ means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, <strong>structuring,</strong> storage, <strong>adaptation or alteration,</strong> <strong>retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available</strong>, alignment or combination, restriction, erasure or destruction;</p>\n</blockquote>\n<p>ChatGPT, or more precisely the owner of Chat GPT, certainly does all the things in bold and probably some of the others as well.</p>\n",
"score": 4
}
] |
[
"gdpr",
"artificial-intelligence",
"computer"
] |
As IPC 497 is struck down - can any married person now file a divorce based on the fundamental 'right to choose'?
| 1 |
https://law.stackexchange.com/questions/79509/as-ipc-497-is-struck-down-can-any-married-person-now-file-a-divorce-based-on-t
|
CC BY-SA 4.0
|
<p>Supreme Court of India has <a href="https://qz.com/india/1404196/adultery-no-longer-crime-in-india-rules-supreme-court/#:%7E:text=Extramarital%20sex%20is%20not%20a%20criminal%20offence%20in,offence%20still%20remains%20a%20valid%20ground%20for%20divorce." rel="nofollow noreferrer">struck down</a> IPC section 497:</p>
<blockquote>
<p>A five-judge bench of the court ruled that section 497 of the Indian Penal Code violates
women’s right to equality and treats them like the property of their
husbands. “It’s time to say that (a) husband is not the master of
(his) wife,” Chief Justice of India, Dipak Misra read out from the judgement.</p>
</blockquote>
<ul>
<li>So, now, can any married person get a divorce without any arguments and/or accusing their partners, based on
the 'right to choose' as a fundamental right?</li>
</ul>
| 79,509 |
[
{
"answer_id": 89965,
"body": "<p>No.</p>\n<p>Different civil codes provide methods for divorce, but in all of them, they have outlined clear "<a href=\"https://timesofindia.indiatimes.com/readersblog/lawpedia/grounds-for-divorce-in-india-35652/\" rel=\"nofollow noreferrer\">grounds for divorce</a>". One must provide one of these as a reason for divorce.</p>\n<p>While adultery is no longer a crime, it is still a ground for divorce.</p>\n",
"score": 1
}
] |
[
"india",
"divorce",
"legal-research",
"indian-penal-code"
] |
During a traffic stop, does silence serve as probable cause for arrest and search?
| 3 |
https://law.stackexchange.com/questions/32051/during-a-traffic-stop-does-silence-serve-as-probable-cause-for-arrest-and-searc
|
CC BY-SA 4.0
|
<p>Jurisdiction: Anywhere United States</p>
<p>Valid driver license is provided during the stop, along with insurance and registration as required by the traffic code. </p>
<p>Fifth Amendment provides a right against self incrimination. The law legally obligates a person to poses a driver license to operate a vehicle. Other than presenting a valid driver license, is a person required to answer any questions asked by a police officer?</p>
<p>Example:</p>
<p>I am driving in Dallas, Texas. I exceed speed limit by five miles. A police officer pulls me over for speeding. He approaches the window and asks for my ID. I provide a valid driver licence.</p>
<p>The Officer Asks me:
Where are you coming from?
Where are you going to?
Have you had something to drink?
Etc...</p>
<p>I respond:
I am only required to provide you with a valid driver license. I do not have to answer any of your questions.</p>
<p>I remain silent. </p>
<p>I have broken no law. Right?</p>
<p>Further, if police officer calls for back up, and searches my vehicle over my vociferous objections, I would have a valid §1983 Complaint for "unlawful search and seizure."</p>
<p>Is my understanding correct?</p>
| 32,051 |
[
{
"answer_id": 43023,
"body": "<p><strong>Silence is not cause.</strong>\nHowever, 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.</p>\n<p>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.</p>\n<p>Always consult an attorney before any legal action.</p>\n",
"score": 3
}
] |
[
"united-states",
"search-and-seizure"
] |
In the Dominion lawsuit at what point does a statement implying, but not explicitly stating, fraud occurred rise to the level of defamation?
| 0 |
https://law.stackexchange.com/questions/89987/in-the-dominion-lawsuit-at-what-point-does-a-statement-implying-but-not-explici
|
CC BY-SA 4.0
|
<p>It seems the primary defense Fox News' lawyers are making in the Dominion defamation lawsuit seems to be that Fox was only sharing alleged allegations and expressing opinion, but they never explicitly said the Dominion fraud allegations were true so defamation didn't happen. However Fox has undeniable had moments when it's hosts stated opinions that implied they questioned the validity of the election, which Dominion apparently felt raised to the level of defamation to file a lawsuit.</p>
<p>So for now let's presume there is no smoking gun of someone on air saying that the believed Dominion undeniable engaged in fraud. How much could Fox News, or anyone else, get away with statements that might imply they believed fraud occurred without explicitly saying it, and at what point does the implication of belief alone become blatant enough to constitute defamation?</p>
<p>To give an example of what I mean <a href="https://www.nytimes.com/2023/02/27/business/media/fox-news-dominion-rupert-murdoch.html" rel="nofollow noreferrer">it appears</a> that Hannity told his audience that it was “impossible to ever know the true, fair, accurate election results”. As a result Fox's lawyer told executives that “Hannity is getting awfully close to the line with his commentary and guests tonight.” Where exactly is the line that Hannity was getting close to suppose to be, and what would be required to prove he, or anyone, had overstepped the aforementioned line?</p>
<p>I realize that proving defamation also requires a statement to be false, or at minimum that the speaker had a reckless disregard of the accuracy of their statement, and for the statement to be proven to have harmed the one defamed against. I think I understand all those requirements, they aren't what I'm curious about so for now let's not waste time on them. If we presume all the other requirements for defamation have already been proven how much can a theoretical speaker get away with implying belief in the false claim without explicitly saying it before it rises to the level of defamation?</p>
| 89,987 |
[
{
"answer_id": 89997,
"body": "<h2>When it can be “reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference.”</h2>\n<p>Which is the <a href=\"https://www.rcfp.org/new-york-court-adopts-standard-defamation-implication/\" rel=\"nofollow noreferrer\">standard</a> the New York appeals court endorsed in 2014 for “defamation by implication”.</p>\n<p>So, on the face of the statements, they have to imply fraud and they have to show that the speaker intended to imply fraud. Whether they did that is up to the jury.</p>\n",
"score": 4
}
] |
[
"united-states",
"civil-law",
"defamation",
"slander"
] |
Memoirs - What's Allowed To Write About An Ex
| 1 |
https://law.stackexchange.com/questions/89871/memoirs-whats-allowed-to-write-about-an-ex
|
CC BY-SA 4.0
|
<p>I'm not famous. I've just had a very interesting life story so far. I wish to publish certain aspects of my life, it covers all aspects of my life and includes some chapters about significant ex-partners.</p>
<p>When everything I've written is true, do I have to prove it to be true or will they have to prove it false?</p>
<p>Can you please use simple words in your answer? I've no idea who the 'defendant' or 'plaintiff' or other legal terms are :/</p>
| 89,871 |
[
{
"answer_id": 89872,
"body": "<p>See the material in <a href=\"https://law.stackexchange.com/a/85996/46948\">this Q&A</a>.</p>\n<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>Once a statement is shown to be defamatory, the burden is on the <a href=\"https://en.m.wikipedia.org/wiki/Defendant\" rel=\"nofollow noreferrer\">defendant</a> to show that it is true, as a defence. See <em>Grant v. Torstar</em>, 2009 SCC 61 at paras. 28–29.</p>\n<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<p>The <a href=\"https://en.m.wikipedia.org/wiki/Plaintiff\" rel=\"nofollow noreferrer\">plaintiff</a> must prove that the defamatory statement is also false. See for example, <em>Pegasus v. Reno Newspapers, Inc.</em>, 118 Nev. 706 (Nev. 2003):</p>\n<blockquote>\n<p>The general elements of a defamation claim require a plaintiff to prove: "(1) a false <strong>and</strong> defamatory statement...</p>\n</blockquote>\n",
"score": 1
}
] |
[
"libel",
"publishing"
] |
Right to inspect HOA Contracts in Georgia, USA
| 0 |
https://law.stackexchange.com/questions/82899/right-to-inspect-hoa-contracts-in-georgia-usa
|
CC BY-SA 4.0
|
<p>I would like to inspect a contract that the HOA has signed and is in effect.</p>
<p>The HOA is in Fulton County GA, USA.</p>
<p>I have asked for a copy and they have declined my request.</p>
<p>Here is the law that I think applies:</p>
<p><a href="https://casetext.com/statute/code-of-georgia/title-14-corporations-partnerships-and-associations/chapter-3-nonprofit-corporations/article-16-records-and-reports/part-1-records/section-14-3-1602-members-right-to-copy-and-inspect-records" rel="nofollow noreferrer">Section 14-3-1602</a> - Members' right to copy and inspect records</p>
<blockquote>
<p>(a) A corporation shall keep a copy of the following records:</p>
</blockquote>
<blockquote>
<p>(a1) Its articles or restated articles of incorporation and all amendments to them currently in effect;</p>
</blockquote>
<blockquote>
<p>(a2) Its bylaws or restated bylaws and all amendments to them currently in effect;</p>
</blockquote>
<blockquote>
<p>(a3) Resolutions adopted by either its members or board of directors increasing or decreasing the number of directors or the classification of directors, or relating to the characteristics, qualifications, rights, limitations, and obligations of members or any class or category of members;</p>
</blockquote>
<blockquote>
<p>(a4) Resolutions adopted by either its members or board of directors relating to the characteristics, qualifications, rights, limitations, and obligations of members or any class or category of members;</p>
</blockquote>
<blockquote>
<p>(a5) The minutes of all meetings of members, executed waivers of notice of meetings, and executed consents, delivered in writing or by electronic transmission, evidencing all actions taken or approved by the members without a meeting, for the past three years;</p>
</blockquote>
<blockquote>
<p>(a6) All communications in writing or by electronic transmission to members generally within the past three years, including the financial statements furnished for the past three years under Code Section 14-3-1620;</p>
</blockquote>
<blockquote>
<p>(a7) A list of the names and business or home addresses of its current directors and officers; and</p>
</blockquote>
<blockquote>
<p>(a8) Its most recent annual registration delivered to the Secretary of State under Code Section 14-3-1622.</p>
</blockquote>
<blockquote>
<p>(b) A member is entitled to inspect and copy, at a reasonable time and location specified by the corporation, any of the records of the corporation described in subsection (a) of this Code section if the member gives the corporation written notice or a written demand at least five business days before the date on which the member wishes to inspect and copy.</p>
</blockquote>
<blockquote>
<p>(c) A member is entitled to inspect and copy, at a reasonable time and reasonable location specified by the corporation, any of the following records of the corporation if the member meets the requirements of subsection (d) of this Code section and gives the corporation written notice at least five business days before the date on which the member wishes to inspect and copy:</p>
</blockquote>
<blockquote>
<p>(c1) Excerpts from minutes of any meeting of the board of directors, records of any action of a committee of the board of directors while acting in place of the board of directors on behalf of the corporation, minutes of any meeting of the members, and records of action taken by the members or the board of directors without a meeting, to the extent not subject to inspection under subsection (a) of this Code section;</p>
</blockquote>
<blockquote>
<p>(c2) Accounting records of the corporation; and</p>
</blockquote>
<blockquote>
<p>(c3) Subject to Code Section 14-3-1605, the membership list.</p>
</blockquote>
<blockquote>
<p>(d) A member may inspect and copy the records identified in subsection (c) of this Code section only if:</p>
</blockquote>
<blockquote>
<p>(d1) The member's demand is made in good faith and for a proper purpose that is reasonably relevant to the member's legitimate interest as a member;</p>
</blockquote>
<blockquote>
<p>(d2) The member describes with reasonable particularity the purpose and the records the
member desires to inspect;</p>
</blockquote>
<blockquote>
<p>(d3) The records are directly connected with this purpose; and</p>
</blockquote>
<blockquote>
<p>(d4) The records are to be used only for the stated purpose.</p>
</blockquote>
<blockquote>
<p>(e) This Code section does not affect:</p>
</blockquote>
<blockquote>
<p>(e1) The right of a member to inspect records under Code Section 14-3-720 or, if the member is in litigation with the corporation, to the same extent as any other litigant; or</p>
</blockquote>
<blockquote>
<p>(e2) The power of a court, independently of this chapter, to compel the production of corporate records for examination.</p>
</blockquote>
<p>Note that c.2. refers to accounting records.</p>
<p>Is the case law that would lump contracts into accounting records so I could demand to see it?</p>
<p>[EDIT] I am a member. The contract is with a service provider that is very subjective on the value of the service.</p>
| 82,899 |
[
{
"answer_id": 82976,
"body": "<p>No pertinent case law or commentary squarely addresses the scope of the inspection right for nonprofit corporations, but interpretation of the parallel provision of the for profit corporation act in Georgia (Section 14-1-1602) with essentially identical language is informative.</p>\n<p>An official comment to that statute states:</p>\n<blockquote>\n<p>the right of inspection granted by Section 14-2-1602 is an independent\nright of inspection that is not a substitute for or in derogation of\nrights of inspection that may exist (1) under Section 14-2-720, to\ninspect the shareholders' list at a meeting; (2) as part of a right of\ndiscovery that exists in connection with litigation; and (3) as a\n“common law” right of inspection, if any is found to exist by a court,\nto examine corporate records</p>\n</blockquote>\n<p>The common law right which the statute does not abrogate provides that</p>\n<blockquote>\n<p>A bona fide stockholder has right to inspect books and records, where\nexamination is asked for in good faith and for specific and honest\npurpose, but not to gratify curiosity or for speculating or for\nvexatious purposes, provided that purpose is germane to his interest\nas stockholder, proper and lawful in character, and not inimical to\ninterests of corporation itself, and inspection is made during\nreasonable business hours; demands for material not relevant to these\npurposes should not be granted.</p>\n</blockquote>\n<p><em>Master Mortg. Corp. v. Craven</em>, 193 S.E.2d 567 (Ga. App. 1972).</p>\n<p>This common law right of inspection could very well extend to copies of material contracts that are not strictly speaking accounting records, and many other states interpret the phrase "books and records" of a corporation to include a right to examine its material contracts (a right also present with respect to publicly held companies under the 1934 Securities Exchange Act).</p>\n<p>In one case, a court properly required a corporation to reveal to its minority shareholder invoices showing types of products sold, with only names and addresses of customers redacted, even though minority shareholder was competitor of corporation, because product type information was needed to allow minority shareholder to value its shares. <em>G.I.R. Systems, Inc. v. Lance</em>, 491 S.E.2d 530 (Ga. App. 1997).</p>\n<p>The most comprehensive review of what is included in the inspection right can be found in <em>Riser v. Genuine Parts Co.</em>, 258 S.E.2d 184 (Ga. App. 1979). In that case, the appellate court reasoned:</p>\n<blockquote>\n<p>[I]t is apparent that although shareholders have some rights to\ncorporate information not available to the general public, shareholder\nstatus does not in and of itself entitle an individual to unfettered\naccess to corporate confidences and secrets . . . shareholders have\nless right to acquire corporate information than do directors. This\nproposition is also supported by the interpretations governing the\nscope of attorney-client privilege.” And the right does not, at least\nin the absence of other considerations, extend automatically to the\nobtention of income tax returns, and general demands which are overly\nbroad in their scope. <em>Master Mtg. Corp. v. Craven</em>, 127 Ga.App.\n367(2), 193 S.E.2d 567 (1972). The term “books and records of account”\nhas been held not to apply to a file on a proposed merger. <em>State ex\nrel. Armour & Co. v. Gulf Sulphur (Del.)</em>, 231 A.2d 470 (1967).</p>\n<p>It is also recognized that requests for certain documents are to be\ngranted as a matter of course, while more peripheral documents may be\nproduced or not dependent on circumstances. The “law looks more\nfavorably upon requests for access to the stock register than for\naccess to other company records.” <em>NVF Co. v. Sharon Steel Corp.</em>, 294\nF.Supp. 1091, 1093.</p>\n<p>As to these more peripheral requests, the Georgia statute has\nstructured a summary decision-making process leaving much to the\ndiscretion of the trial judge. . . . when documents called for by a\nshareholder who has demonstrated a proper purpose are refused and he\nestablishes that he is qualified and entitled to an inspection, it\nshall be ordered “subject to any limitations which the court may\nprescribe.”</p>\n<p>The common law right of a shareholder to inspect the books and records\nof the company has long been recognized in Georgia. <em>Winter v.\nSouthern Securities Co.</em>, 155 Ga. 590(1), 118 S.E. 214; <em>G. S. & M.\nCo. v. Dixon</em>, 220 Ga. 329, 138 S.E.2d 662 (1964); <em>Southern\nAcceptance Corp. v. Nally</em>, 222 Ga. 534, 150 S.E.2d 653 (1966). While\nthe statutory language is frequently enlarged over that of its common\nlaw ancestry (see 15 ALR2d, Anno., p. 11 et seq.) it also places much\ndiscretion in the trial judge to determine whether the purpose named\nis a proper one, whether the request is vexatious or arising from idle\ncuriosity, whether the documents called for are relevant, material,\nand not over burdensome, whether granting the requests would violate\nprinciples of confidentiality, lead to legal difficulties with federal\nagencies, or give an unfair advantage to the petitioning stockholders\nin all such matters the Unbridled right which attaches to stockholders\nlists does not apply.</p>\n<p>As the trial judge stated, the burden of showing a proper purpose as\nto specific materials is on the plaintiff and “this burden should\nbecome somewhat heavier as the information sought becomes increasingly\nremote from the statutory objects of ‘books and records of account,\nminutes and record of shareholders,’ ” the language cannot be enlarged\nto include “every document generated by or received by Genuine Parts,\neven including confidential management date, confidential legal\nopinions and personnel evaluation” in the absence of a more compelling\nreason than the plaintiff has shown.</p>\n</blockquote>\n<p><em>Riser v. Genuine Parts Co.</em>, 258 S.E.2d at 186–87.</p>\n<p>Also, keep in mind that HOA specific statutes such as Georgia Statutes § 44-3-220, et seq., may be relevant. For example, Section 44-3-231 provides for a slightly broader duty to maintain records than other non-profit corporations.</p>\n<p>If the HOA is a condominium and not just a property owner's association, then Section 44-3-70 et seq. applies and provides more regulation, although the additional requirements related to records at Section 44-3-106 aren't that different than for other property owner's associations.</p>\n<p>Both of these statutes require HOAs to keep and make available for inspection: "<strong>Any books and records as may be required by law or be necessary to reflect accurately the affairs and activities of the association.</strong>" This is quite a bit broader than mere "accounting records", at least prior to considering the common law right of inspection in Georgia.</p>\n<p>Likewise, <strong>the governing documents of the HOA frequently independently provide inspection rights and obligations for the HOA</strong> and are often drafted in a less one-sided manner than business contracts. Additional remedies are also provided to HOA members for governing document violations at § 4-3-223 (for Property Owner's Associations, and under a parallel section for Condominiums).</p>\n<p>The "proper purpose" condition to the inspection right in the context of for profit corporations is likely to be applied in the context of an HOA to involve matters relevant to carrying out one's right to vote on matters and exercise your other rights in the HOA.</p>\n<p>A specific request for a relevant contract for a specific purpose is much more likely to be granted than an omnibus request for all contracts of the HOA, for example, since it is less burdensome and is highly relevant to the member participating in HOA governance.</p>\n<p>Also, even if there isn't a firm legal right to pre-litigation disclosure of the contract, the fact that it would have to be disclosed if there was litigation related to it could also influence an HOA to disclose it even if it wasn't strictly required to do so yet, to keep down future litigation costs.</p>\n",
"score": 2
},
{
"answer_id": 82917,
"body": "<blockquote>\n<p>Is the case law that would lump contracts into accounting records so I could demand to see it?</p>\n</blockquote>\n<p>That is unlikely as well unavailing because accounting records might not reflect all the rights and duties pursuant to the contracts. Although you did not specify the HOA's reason(s) for denying your request, your request seems within the scope of (c)(1).</p>\n<p>Item (c)(1) encompasses "<em>records of any action of a committee of the board of directors [...] and records of action taken by the members or the board of directors without a meeting [...]</em>". The details of the contract(s) in which you are interested necessarily qualify as <em>records of any action by the committee [or] board</em>. By contrast, records or minutes that barely mention that the HOA entered some contract or purport to describe those contracts would be meaningless or of questionable reliability, respectively.</p>\n",
"score": 0
},
{
"answer_id": 90011,
"body": "<p>To inspect and copy the <strong>record of action</strong> that documents the contract signed with a 3rd party. This means that you can request to see the actual document or a copy of it, as long as it falls under the category of "records of action taken by the members or the board of directors without a meeting."</p>\n",
"score": 0
}
] |
[
"hoa",
"georgia"
] |
Limits on right to demand a jury?
| 5 |
https://law.stackexchange.com/questions/89939/limits-on-right-to-demand-a-jury
|
CC BY-SA 4.0
|
<p>Section 21 of the Washington State Constitution states:</p>
<blockquote>
<p><strong>The right of trial by jury shall remain inviolate,</strong> but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto.</p>
</blockquote>
<p>RCW 4.48.010 goes on to state in part:</p>
<blockquote>
<p>The court shall order all or any of the issues in a civil action, whether of fact or law, or both, referred to a referee upon the written consent of the parties which is filed with the clerk. <strong>Any party shall have the right</strong> in an action at law, upon an issue of fact, <strong>to demand a trial by jury.</strong> No referee appointed under this chapter may preside over a jury trial. The written consent of the parties constitutes a waiver of the right of trial by jury by any party having the right.</p>
</blockquote>
<p>However, RCW 3.50.135 imposes a restriction where it states in part:</p>
<blockquote>
<p><strong>In all civil cases, the plaintiff or defendant may demand a jury,</strong> which shall consist of six citizens of the state who shall be impaneled and sworn as in cases before district courts, or the trial may be by a judge of the municipal court: PROVIDED, That <strong>no jury trial may be held</strong> on a proceeding involving a traffic infraction.</p>
</blockquote>
<p>Similarly, RCW 35.20.090 states:</p>
<blockquote>
<p><strong>In all civil cases and criminal cases</strong> where jurisdiction is concurrent with district courts as provided in RCW 35.20.250, within the jurisdiction of the municipal court, <strong>the plaintiff or defendant may demand a jury,</strong> which shall consist of six citizens of the state who shall be impaneled and sworn as in cases before district courts, or the trial may be by a judge of the municipal court: PROVIDED, That <strong>no jury trial may be held</strong> on a proceeding involving a traffic infraction.</p>
</blockquote>
<p><strong>Question:</strong> Does the wording of 3.50.135 and 35.20.090 impose a limit on the individual's right to demand a trial by jury, or is it instead a restriction on the ability of traffic courts to conduct a jury trial? The wording would seem to indicate the latter because <em>individuals do not hold trials or proceedings</em>, but courts do.</p>
<p>And if my interpretation is correct, what would be an appropriate response or course of action on the part of the traffic court if the defendant in a traffic case insisted on their right to a trial by jury?</p>
| 89,939 |
[
{
"answer_id": 89953,
"body": "<p><strong>The right to trial by jury under the Washington State Constitution does not attach to mere regulatory infractions</strong>: <em>City of Pasco v. Mace</em>, <a href=\"https://casetext.com/case/pasco-v-mace\" rel=\"nofollow noreferrer\">98 Wn. 2d 87 (Wash. 1982)</a> (still being cited as of <a href=\"https://casetext.com/case/state-v-mansfield-40\" rel=\"nofollow noreferrer\">2019</a>).</p>\n<p>While not at issue in that case, the Court listed "traffic offenses" and the corresponding "uniform and expeditious system for the disposition of these 'infractions'" as an example where a jury is not required by the state Constitution.</p>\n<blockquote>\n<p>At the same time, the Legislature has shown itself cognizant of the distinction between offenses which are criminal in nature and those to which such a stigma is not attached. This awareness is reflected in RCW 46.63, decriminalizing certain <strong>traffic offenses and providing a uniform and expeditious system for the disposition of these "infractions"</strong>. As long as the offender commits only an infraction, no prison sentence can be imposed. RCW 46.63.060(2)(b). If it is thought that our conclusions here today will unduly burden the courts of limited jurisdiction, that situation can undoubtedly be ameliorated by legislative "decriminalization" of those offenses which are in fact regulatory, rather than criminal in nature, and limiting the penalty accordingly. As <strong>for those offenses which carry a criminal stigma and particularly those for which a possible term of imprisonment is prescribed, the constitution requires that a jury trial be afforded</strong> unless waived.</p>\n</blockquote>\n",
"score": 6
},
{
"answer_id": 89942,
"body": "<p>It precludes a trial by jury in an alternative municipal court for a traffic infraction. The right to a jury trial is preserved in district court. <a href=\"https://app.leg.wa.gov/RCW/default.aspx?cite=3.50&full=true\" rel=\"noreferrer\">RCW 3.50.020</a> says that</p>\n<blockquote>\n<p>The municipal court shall have exclusive original jurisdiction over\ntraffic infractions arising under city ordinances and exclusive\noriginal criminal jurisdiction of all violations of city ordinances\nduly adopted by the city and shall have original jurisdiction of all\nother actions brought to enforce or recover license penalties or\nforfeitures declared or given by such ordinances or by state statutes</p>\n</blockquote>\n<p>which precludes taking the matter to district court in order to get a jury trial. The same municipal courts hear civil and criminal cases where the right to trial is preserved, thus this is a limit on the right of a person to demand a jury, and not a limit on the ability of the courts to hold jury trials.</p>\n",
"score": 5
}
] |
[
"united-states",
"washington"
] |
Is it safe to talk about ideas that I have not patented yet over public email?
| 2 |
https://law.stackexchange.com/questions/89927/is-it-safe-to-talk-about-ideas-that-i-have-not-patented-yet-over-public-email
|
CC BY-SA 4.0
|
<p>I have an idea with which I may someday make a startup. I can talk about it with experienced people, over public emails for example. However, I wonder if from patent point of view this is safe. My concern is from two separate perspectives:</p>
<ol>
<li><p>Publication, for example, can prevent a later patent if I understand correctly. However, this is over, for example, Gmail, and would not go into much details about it.</p>
</li>
<li><p>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 in order not to have my current company have any claim over my idea. I wonder if later one says, "looking at your email, you seem to had this idea when you were employed by X company, so even if you filed a patent after leaving this company, X can still have claims on your idea."</p>
</li>
</ol>
| 89,927 |
[
{
"answer_id": 89930,
"body": "<p>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.</p>\n<p>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.</p>\n<blockquote>\n<p>Since I am at the moment employed by a company, even though the idea\noriginates from myself, it seems that I should quit my job first not\nto have my current company have any claim over my idea.</p>\n</blockquote>\n<p>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.</p>\n<p>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.</p>\n",
"score": 5
}
] |
[
"intellectual-property",
"employment",
"patents"
] |
What is the relevant age for a crime? When it is committed, when one is charged of it, or when one is sentenced for it?
| 3 |
https://law.stackexchange.com/questions/89985/what-is-the-relevant-age-for-a-crime-when-it-is-committed-when-one-is-charged
|
CC BY-SA 4.0
|
<p>Bob committed a crime when he was young. After successfully getting away, many years later, it comes out (with good evidence) that he committed the crime, and so he is charged for it. Lastly, after many years in court (due to any number of complicating factors), Bob is finally successfully convicted.</p>
<p>My question is, when sentencing Bob, which age is the most relevant? The age when he committed the crime, the age when he was charged, or the age when he was convicted in court?</p>
<p>Just two examples:</p>
<ol>
<li>Bob committed murder at age 12, was caught and convicted at age 25</li>
<li>Bob committed murder at age 14, was charged at age 16, and only successfully convicted at age 19</li>
</ol>
<p>Feel free to swap out the crime/ages with what you think is most relevant.</p>
<p>Edit: Of particular note for consideration: isn't the fact that Bob, as an adult, hides a murder, worthy of being charged for any crime whatsoever?</p>
| 89,985 |
[
{
"answer_id": 89986,
"body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"tag-england-and-wales-tooltip-container\">england-and-wales</a></p>\n<p>It's the date, and therefore Bob's age, when the offence was committed</p>\n<blockquote>\n<p>The basic position when an offender is sentenced is that it should be according to the law at the time the offence was committed, not the law at the time when they are sentenced. This has been reinforced by Article 7 of the European Convention of Human Rights.</p>\n<p>It is a general legal principle that the law should not be applied retrospectively – so that people are able to know the penalty for an offence.</p>\n<p><a href=\"https://www.sentencingcouncil.org.uk/blog/post/how-sentencing-of-historic-offenders-works/\" rel=\"noreferrer\"><em>Source</em></a></p>\n</blockquote>\n",
"score": 6
},
{
"answer_id": 90007,
"body": "<p>In the U.S. Bob is of age to be criminally responsiblity is set by Indivdual States. This Age denotes the youngest possible age that a person can be held criminally liable for a crime. Federally, this age is 11 years old. Massachusetts has the oldest criminal liability age, at 12 years of age, so had he been one year younger and committed the crime in Massachusetts, Bob would never have been charged, even if he was 25 at the time the case was solved.</p>\n<p>With that said, in both cases, Bob being charged as a juvenile vs. charged as an adult is case specific and tends to reflect upon factors of Bob's and Bob's mental motive for committing the crime, though typically in murder cases, most children over 10 years old are charged as adults. At either rate, as Bob is a minor at the time of the crime, he would be ineligible for the death penalty regardless of the age he was not a legal adult at the time and the supreme court has determined that subjecting minor offenders to death penalty is cruel and unusual punishment.</p>\n<p>For any other case other than murder or rape, scenario one would not result in Bob being charged and convicted as Statute of Limitations would have existed for the crimes. Typically, unless stated by law, statute of limitations is typically 5 years following the date of the last criminal act. Afterwards, the case would be tossed. Murder and Rape have no statute of limitations, and thus can be prosecuted any number of years following the criminal action (Rape has only recently had statute of limitations removed, so there are cases that are still not possible to prosecute because they happened prior to the change in the law, however, it's highly unlikely that a teenager would have been able to take advantage of this change.</p>\n",
"score": 1
}
] |
[
"united-states",
"criminal-law",
"california",
"age",
"juvenile-law"
] |
How did Dominion legally obtain text messages from Fox News hosts?
| 19 |
https://law.stackexchange.com/questions/89881/how-did-dominion-legally-obtain-text-messages-from-fox-news-hosts
|
CC BY-SA 4.0
|
<p>In the current case of Dominion v Fox News, we saw that text messages from Fox News hosts have been admitted as legal evidence in court.</p>
<p>My understanding was that text messages either had to be turned voluntarily, or they had to be forcefully retrieved by law-enforcement if they have a warrant.</p>
<p>Either scenario seems somewhat unlikely to me : I cannot imagine Fox News hosts to voluntarily hand over incriminating texts, and I also struggle to see how they would have been forced to enforce it, given how hard defamation is to prove in the US.</p>
<p>Does anyone have more details on how these text messages were obtained, and accepted in court?</p>
| 89,881 |
[
{
"answer_id": 89884,
"body": "<h2>Because the hosts are part of the defendants.</h2>\n<p>A party in a lawsuit can demand documents to be turned over to them from the opposing party. That is called <a href=\"https://www.law.cornell.edu/wex/discovery\" rel=\"noreferrer\">Discovery</a> and participation is mandatory. Not turning over the documents requested and not providing a good reason why they should not be turned over is contempt of court.</p>\n<blockquote>\n<p>Discovery under the Federal Rules is very broad. According to Rule 26(b)(1), "Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." The federal rules also provide several tools that can be used to get information from other parties, including interrogatories, depositions, and requests for admission. <strong>A party may also compel other parties to give them access to documents</strong>, real property, <strong>or other things for review</strong> or testing. See <a href=\"https://www.law.cornell.edu/rules/frcp#chapter_v\" rel=\"noreferrer\">Rules 26-37.</a></p>\n</blockquote>\n<p>The Delaware rules of Civil Procedure mimic the Federal Rules of Civil Procedure very closely, and <a href=\"https://casetext.com/rule/delaware-court-rules/rules-of-civil-procedure-for-the-superior-court-of-the-state-of-delaware/depositions-and-discoery/rule-26-general-provisions-governing-discovery\" rel=\"noreferrer\">their Rule 26</a> is close to the <a href=\"https://www.law.cornell.edu/rules/frcp/rule_34\" rel=\"noreferrer\">Federal Rule 34</a>. Especially interesting here is:</p>\n<blockquote>\n<p>Del. R. Civ. P. Super. Ct. 26 (b) (1) In general. - <strong>Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim</strong> or defense and <strong>proportional to the needs of the case</strong>, <strong>including the existence, description, nature, custody, condition and location of any</strong> documents, <strong>electronically stored information</strong> (EST), or tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial. [...]</p>\n</blockquote>\n<p>The hosts are employees of the defendant, the phones contain EST that is regarding the matter and relevant to Dominion's claim, and disclosure is proportional to the needs of the case. As such, The employer has to make them comply with discovery requests by the opposing party and hand over the text messages.</p>\n",
"score": 34
},
{
"answer_id": 89885,
"body": "<p>This was apparently part of the normal <a href=\"https://en.wikipedia.org/wiki/Discovery_(law)\" rel=\"noreferrer\">discovery</a> process. Discovery can compel disclosure from parties and even non-parties upon subpoenas. The lawsuit is in the Superior Court of the State of Delaware, so discovery is governed by Rules of Civil Procedure for the Superior Court of the State of Delaware, <a href=\"https://casetext.com/rule/delaware-court-rules/rules-of-civil-procedure-for-the-superior-court-of-the-state-of-delaware/depositions-and-discoery/rule-26-general-provisions-governing-discovery\" rel=\"noreferrer\">Rule 26</a> (as opposed to federal rules, but they are essentially the same).</p>\n<blockquote>\n<p>Through the discovery process, Dominion has gained access to internal Fox emails, and several network hosts and executives have sat for depositions, as has Fox Corp. chair Rupert Murdoch.</p>\n<p>CBC, "<a href=\"https://www.cbc.ca/news/world/fox-dominion-defamation-suit-1.6752030\" rel=\"noreferrer\">Fox's Murdoch called election fraud claims a 'Trump myth,' Toronto's Dominion says in court filing</a>"</p>\n</blockquote>\n<p>In <a href=\"https://int.nyt.com/data/documenttools/redacted-documents-in-dominion-fox-news-case/dca5e3880422426f/full.pdf\" rel=\"noreferrer\">Dominion's Brief in Support of its Motion for Summary Judgment</a>, it refers to discovery, saying (among other things):</p>\n<blockquote>\n<p>Fox produced many text messages with a date stamp in "UTC" time...</p>\n</blockquote>\n",
"score": 15
}
] |
[
"civil-law",
"rules-of-evidence"
] |
Is it legal to ignore "Do Not Track" for data subjects who fall under the GDPR?
| 2 |
https://law.stackexchange.com/questions/37468/is-it-legal-to-ignore-do-not-track-for-data-subjects-who-fall-under-the-gdpr
|
CC BY-SA 4.0
|
<p>The "<a href="https://en.wikipedia.org/wiki/Do_Not_Track" rel="nofollow noreferrer">Do Not Track</a>" (DNT) flag is an optional header field in HTTP requests sent by web browsers to web servers. It requests that the website not track the user, or not track the user across different websites (the ambiguity remains unresolved, according to Wikipedia).</p>
<p>The GDPR provides a number of <a href="https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/lawful-basis-for-processing/" rel="nofollow noreferrer">lawful bases</a> for processing personal data, one of which is consent. If a website is relying on consent for collecting data about the user, would it therefore be a breach of the law to ignore the user's expressed preference in the form of the DNT flag?</p>
<p>I ask because it seems that DNT is <a href="https://gizmodo.com/do-not-track-the-privacy-tool-used-by-millions-of-peop-1828868324" rel="nofollow noreferrer">widely ignored</a>, at least in the US. As I am in the EU, and have DNT set in my browser, I wonder if anyone who tracks me across the Web is thereby breaking the law.</p>
| 37,468 |
[
{
"answer_id": 90002,
"body": "<p>The GDPR actually does require you to follow DNT in Article 21:</p>\n<blockquote>\n<ol start=\"5\">\n<li>In the context of the use of information society services, and notwithstanding Directive 2002/58/EC, the data subject may exercise his or her right to object by automated means using technical specifications.</li>\n</ol>\n</blockquote>\n<p>I think this is quite explicit.</p>\n",
"score": 5
},
{
"answer_id": 90004,
"body": "<p>DNT might interact with two legal bases: <em>consent</em> and <em>legitimate interests</em>.</p>\n<p>The DNT header can have three states:</p>\n<ul>\n<li><code>1</code>: do not track, object, opt-out (sometimes a default setting)</li>\n<li>(absent): no decision (usually the default setting)</li>\n<li><code>0</code>: user prefers to allow tracking</li>\n</ul>\n<p>It is clear that <code>DNT: 0</code> cannot be GDPR-<strong>consent</strong> for tracking. While this would be an indication of the user's wishes to allow tracking, that is not sufficient to satisfy the GDPR criteria for consent. In particular, consent must be <em>specific</em> to a particular processing purpose. “Tracking” in general is too broad, since this doesn't distinguish between different kinds of tracking and tracking by different actors.</p>\n<p>A more complex question is whether <code>DNT: 1</code> is an Art 21 GDPR objection to processing that was based on a <strong>legitimate interest</strong>. Objections via technical means are in principle valid, <a href=\"https://law.stackexchange.com/a/90002\">as noted by Stephan in another answer</a>. However, there are a number of practical problems:</p>\n<ul>\n<li>“Tracking” is not further specified. It is possible that there would be substantial disagreement about whether a processing activity counts as tracking or not.</li>\n<li>While objections to direct marketing purposes are automatically valid, some forms of tracking are not done for marketing-related purposes.</li>\n<li>Objections shall be grounded on the data subject's individual circumstances. The DNT header does not provide sufficient nuance to account for this.</li>\n<li>When <code>DNT: 1</code> is a system's default setting, it is possible that the presence of this header doesn't indicate that the data subject invoked their right to object.</li>\n</ul>\n<p>Thus, I think that it can often be safe to ignore this header.</p>\n<ul>\n<li>If the header is absent or if <code>DNT: 0</code> is set, no conclusions can be drawn. This does not consitute consent or the lack of opt out.</li>\n<li>It is very likely safe to treat <code>DNT: 1</code> as an objection (opt-out). However, this might not be required.</li>\n<li>If <code>DNT: 1</code> is set, it may arguably be OK to ignore this header. There is a risk to this, but it is currently the mainstream approach.</li>\n</ul>\n<p>Due to the confusion about this header's meaning, it has effectively failed. Users cannot be expected to use this mechanism, and site operators cannot be expected to use this rarely-used technology. If site operators rely on legitimate interests as a legal basis, they should satisfy their GDPR obligation to offer an opportunity to object, by implementing such an opt-out as part of the website.</p>\n<p>There are approaches such as <a href=\"https://globalprivacycontrol.org/\" rel=\"nofollow noreferrer\">Global Privacy Control</a> to address the limitations of the failed DNT header. GPC is primarily designed to meet the requirements of the CCPA, though it also might indicate a GDPR Objection. By default, I think that GPC has limited use, because it fails to build consensus around what exactly this header is supposed to mean. However, the GPC mechanism is extensible, and those extensions might be useful to describe granular and mandatory choices around consent and objections in the future.</p>\n",
"score": 4
},
{
"answer_id": 37476,
"body": "<p>It may be that they'll claim that their processing of behaviour that doesn't take place within the Union falls outside the Territorial Scope (Paragraph 2(b), Article 3, <a href=\"https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32016R0679&from=EN\" rel=\"nofollow noreferrer\">2016/629</a>) :</p>\n\n<blockquote>\n <ol start=\"2\">\n <li>This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not\n established in the Union, where the processing activities are related\n to:</li>\n </ol>\n \n <p>(a) the offering of goods or services, irrespective of whether a\n payment of the data subject is required, to such data subjects in the\n Union; or</p>\n \n <p>(b) the monitoring of their behaviour as far as their behaviour takes\n place within the Union.</p>\n</blockquote>\n\n<p>If they're not claiming that, it would be difficult to argue informed consent at the moment of opening a web page, so any site relying on that could do with a better legal advisor. Website Terms and Conditions could fall under (basis (b)), or they could claim legitimate interests that are not overridden (basis (f)), Article 6.</p>\n\n<p>Depending what the data collected is, and how it's processed, there may also be an argument that at time of processing it doesn't specifically identify a particular Natural Person.</p>\n",
"score": 0
}
] |
[
"gdpr",
"website"
] |
legality of stopping a foreign ship and seizing goods
| 0 |
https://law.stackexchange.com/questions/89994/legality-of-stopping-a-foreign-ship-and-seizing-goods
|
CC BY-SA 4.0
|
<p>I read today that in the Gulf of Oman, in international waters, a small Iranian ship was detected by the American navy. They assumed that it transported weapons to Yemen. The Americans contacted the British navy, who sent a frigate to intercept the Iranian boat and confiscate the weapons on board, on the grounds that they were illegal.</p>
<p>I wonder what the legality is of this action.</p>
| 89,994 |
[
{
"answer_id": 89999,
"body": "<p>The United Nations Security Council made <a href=\"http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_res_2216.pdf\" rel=\"noreferrer\">Resolution 2216</a> on 14 April 2015, and reaffirmed the key provisions recently in <a href=\"https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_res_2675.pdf\" rel=\"noreferrer\">Resolution 2675</a> of 15 February 2023 (see the reference in paragraph 1). Resolution 2216, in paragraphs 14-17, imposes an arms embargo for Yemen. In particular, it calls on all Member States to "take the necessary measures to prevent the direct or indirect supply, sale or transfer" of armaments, and to inspect Yemen-bound cargo for the same, "in accordance with ... the law of the sea" and other relevant law.</p>\n<p>The UK and USA are both Member States of the UN, so they are specifically empowered to implement the embargo.</p>\n<p>The reason the Security Council can do this is because the UN Charter says that it can. "Interruption of economic relations" and "blockade" are among the possibilities explicitly mentioned (<a href=\"https://www.un.org/en/about-us/un-charter/full-text\" rel=\"noreferrer\">Articles 42 and 43</a>), but this is well within the scope of the Security Council's power.</p>\n<p>By saying that interdiction should be in accordance with the law of the sea, the UNSC is bringing in well-established rules about the conduct of maritime operations, jurisdiction in the high seas and elsewhere, compensation for wrongful interdiction, use of force, and so on. In other words, they are not trying to override the standard rules. This is not the first embargo in history and there is no need to outline everything in the resolution text.</p>\n",
"score": 5
}
] |
[
"international",
"law-of-the-sea"
] |
Is it legal to hijack a plane to prevent the pilot from committing a murder-suicide?
| 2 |
https://law.stackexchange.com/questions/89943/is-it-legal-to-hijack-a-plane-to-prevent-the-pilot-from-committing-a-murder-suic
|
CC BY-SA 4.0
|
<p>If the pilot of a single-pilot aircraft carrying passengers (not an airliner) attempts to commit a murder-suicide by crashing the plane, is it legal for a passenger, who is not a pilot, to use force to restrain the pilot, hijack the plane, and (attempt to) land it?</p>
<p>If the pilot is "successful" in causing the crash, but everyone survives, with what crimes could he be charged? What if the passenger(s) die? What if someone on the ground dies?</p>
<p>Assume that it is obvious that the pilot's intent is to cause a fatal accident, and there is clear evidence of everything that happened in the plane.</p>
<p>I'm interested in answers from any country.</p>
| 89,943 |
[
{
"answer_id": 89946,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>Taking control of an aircraft from a pilot in command without their consent would normally be an offence under <a href=\"https://laws-lois.justice.gc.ca/eng/acts/a-2/page-7.html#h-8320\" rel=\"nofollow noreferrer\">s. 7.3(1) and 7.41</a> of the <em>Aeronautics Act</em> (but I'm doubtful that the act of the passenger in your scenario is "endangering the safety" of the aircraft) and possibly <a href=\"https://laws-lois.justice.gc.ca/eng/acts/C-46/section-76.html\" rel=\"nofollow noreferrer\">s. 76</a> of the <em>Criminal Code</em> (I'm also doubtful that the <em>mens rea</em> is met in the specific scenario you describe). Restraining the pilot would be at least plain assault (<em>Criminal Code</em>, <a href=\"https://laws-lois.justice.gc.ca/eng/acts/c-46/section-265.html\" rel=\"nofollow noreferrer\">s. 265</a>).</p>\n<p>Regardless, in your scenario, the otherwise illegal acts of the passenger would most likely be justified by <a href=\"https://law.stackexchange.com/a/87387/46948\">self-defence</a> (in response to force or threat of force) or the <a href=\"https://law.stackexchange.com/a/89684/46948\">defence of necessity</a> (no reasonable legal alternative to avoid imminent peril).</p>\n<p>Possible offences for the pilot: murder, attempted murder, manslaughter, criminal negligence causing bodily harm, criminal negligence causing death. Oddly, the offence of "endangering the safety of an aircraft" (<em>Criminal Code</em>, <a href=\"https://laws-lois.justice.gc.ca/eng/acts/C-46/section-77.html\" rel=\"nofollow noreferrer\">s. 77</a>) does not seem to apply here.</p>\n",
"score": 10
},
{
"answer_id": 89980,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a>, under the Federal government's <a href=\"https://www.law.cornell.edu/uscode/text/18/7\" rel=\"nofollow noreferrer\">Special Maritime and Territorial Jurisdiction</a></p>\n<p>The pilot is guilty of, at least, common-law assault. (I cannot find a Federal definition of assault, so AFAIK that means the common-law definition is used.) <a href=\"https://www.law.cornell.edu/wex/assault_and_battery\" rel=\"nofollow noreferrer\">Assault is "the wrong act of causing someone to reasonably fear imminent harm."</a> (Please correct this if there is a Federal definition of assault, but I'm sure the pilot's actions are still in violation of any such definition.)</p>\n<p>"Murder is the unlawful killing of a human being with malice aforethought," according to <a href=\"https://www.law.cornell.edu/uscode/text/18/1111\" rel=\"nofollow noreferrer\">18 USC § 1111</a>(a). Because the pilot's intent is to commit murder, he is guilty of assault with intent to commit murder, and can be sentenced to up to 20 years in prison under <a href=\"https://www.law.cornell.edu/uscode/text/18/113\" rel=\"nofollow noreferrer\">18 USC § 113</a>(a)(1).</p>\n<p>If the pilot does kill someone, this is murder. Because it is "willful, deliberate, malicious, and premeditated," it is first degree murder under <a href=\"https://www.law.cornell.edu/uscode/text/18/1111\" rel=\"nofollow noreferrer\">18 USC § 1111</a>(a). In Special Maritime and Territorial Jurisdiction, the pilot can be sentenced to death or to life in prison under <a href=\"https://www.law.cornell.edu/uscode/text/18/1111\" rel=\"nofollow noreferrer\">18 USC § 1111</a>(b).</p>\n<p>The pilot's actions may be aircraft piracy. According to <a href=\"https://www.law.cornell.edu/uscode/text/49/46502\" rel=\"nofollow noreferrer\">49 USC § 46502</a>(a)(1)(A), "'aircraft piracy' means seizing or exercising control of an aircraft in the special aircraft jurisdiction of the United States by force, violence, threat of force or violence, or any form of intimidation, and with wrongful intent." The pilot is exercising control of the aircraft, is doing so with wrongful intent, is likely using force in order to prevent the passenger from taking control. According to 49 USC § 46502(a)(2), the pilot is subject to imprisonment for at least 20 years if everyone survives, or death or life imprisonment if anyone dies.</p>\n",
"score": 1
}
] |
[
"aviation"
] |
Copyright issues when journal is defunct
| 12 |
https://law.stackexchange.com/questions/89954/copyright-issues-when-journal-is-defunct
|
CC BY-SA 4.0
|
<p>Consider a seminal paper published 40 years ago in a journal that went belly up 30 years ago. Many cite it but hardly anyone has seen it. Can I expect trouble if I make an electronic copy available on my blog?</p>
| 89,954 |
[
{
"answer_id": 89967,
"body": "<h2>Factual assumptions</h2>\n<p>ohwilleke's answer is entirely correct. However, it makes factual assumptions based on the standard meaning of "journal" and "author", which I believe to be unwarranted. From the question, it seems likely that we are talking about a <em>scientific paper</em>, which operates under a <a href=\"https://en.wikipedia.org/wiki/Academic_journal\" rel=\"noreferrer\">very different economic and legal model</a>.</p>\n<p>I am going to assume that:</p>\n<ul>\n<li>the authors sent a draft of the paper, the <em>preprint</em>, to the journal editor;</li>\n<li>the journal editor sent the draft to external experts (the <em>reviewers</em>); those reviewers, and possibly the editor, gave some feedback;</li>\n<li>the authors modified their draft based on that feedback to produce the final version;</li>\n<li>throughout all this, the authors, editor and reviewers agreed with the journal’s policies;</li>\n<li>the journal policies require a transfer of copyright to the <em>publisher</em>, a legal entity that "owns" large number of journals and provides some technical services (article typesetting, maintenance of a web site with the journal contents, maintenance of DOIs, etc.);</li>\n<li>neither the authors, nor the editor, nor the reviewers received monetary compensation for their work (this is a key economic difference from non-academic journals, but as we shall see, it has little legal effect)</li>\n</ul>\n<h2>In theory, all depends on the copyright release agreement</h2>\n<p>When the author(s) submit a draft to a journal, they have to click through an agreement to release copyright. Such a clause could, in theory, be anything the authors and the publisher agreed that does not violate contract law. In practice, because the publishers are a small oligopoly, the agreements are more or less standardized.</p>\n<p>The "sample publishing agreement" given as example at <a href=\"https://www.elsevier.com/about/policies/copyright\" rel=\"noreferrer\">https://www.elsevier.com/about/policies/copyright</a> (as downloaded on March 2, 2023) is more or less representative:</p>\n<blockquote>\n<p>I hereby assign to the Copyright Owner the copyright in the manuscript identified above (where Crown Copyright is asserted, authors agree to grant\nan exclusive publishing and distribution license) and any tables, illustrations or other material submitted for publication as part of the manuscript (the\n“Article”). This assignment of rights means that I have granted to the Copyright Owner the exclusive right to publish and reproduce the Article, or any\npart of the Article, in print, electronic and all other media (whether now known or later developed), in any form, in all languages, throughout the world,\nfor the full term of copyright, and the right to license others to do the same, effective when the Article is accepted for publication. This includes the\nright to enforce the rights granted hereunder against third parties.</p>\n</blockquote>\n<p>The authors are the sole intellectual contributors to the preprint version, but a copyright release agreement could still bar them from publishing it. The vast majority of agreements between novel authors and publishing houses forbid the author from selling the book rights to another publisher or posting drafts of the novel on the author’s website (two actions that would result in greatly diminished sales for the publisher).</p>\n<p>The published version incorporate revisions where the reviewers and possibly the editor contributed significant intellectual contributions. Again, all depends on the copyright agreement - the publisher terms could in theory require that the reviewers and editors release their contribution under an irrevocable license to the authors. In practice, all goes to the publisher.</p>\n<h2>The financial structure is irrelevant</h2>\n<p>The fact that authors (and reviewers, and editors) are not paid by the publisher is irrelevant. Yes, a contract (in <a href=\"/questions/tagged/common-law\" class=\"post-tag\" title=\"show questions tagged 'common-law'\" aria-label=\"show questions tagged 'common-law'\" rel=\"tag\" aria-labelledby=\"tag-common-law-tooltip-container\">common-law</a> countries) requires consideration from both sides; however, consideration needs not be monetary.</p>\n<p>There is not much doubt that publication of an article is "consideration", at the very least because that is considered prestigious among a significant fraction of the population. In addition, there is ample evidence that funding agencies and university HR staff evaluate and promote scientists based primarily on the papers they publish in scientific journals.</p>\n<h2>In practice, preprint rules are lax</h2>\n<p><a href=\"https://en.wikipedia.org/wiki/List_of_academic_publishers_by_preprint_policy\" rel=\"noreferrer\">The vast majority of academic publishers allow authors to publish the preprint version</a> although conditions vary (only the preprint, only on a personal website, only for a limited time, only after some embargo period, only if you cite the final article with the correct DOI, etc.).</p>\n<p>I would speculate that this is the result of cultural pressure. Many academics decided to post their articles (sometimes the preprint before sumbission, sometimes the published version) on the internet without much regard to pesky questions of copyright law, because they viewed publishers as gatekeeping greedy monopolistic parasites. The publishers decided to embrace the practice in order to be able to put some limits on it, rather than try to mass-fire lawsuits against the people who provided them with free labor.</p>\n<p>Regardless of whether that speculation is correct, the current arrangement is not the inevitable result of legal rules, and publishers could conceivably decide to change their preprint sharing policies at any moment.</p>\n<h2>Limitations to the copyright of research papers</h2>\n<p>This section is quite obviously not exhaustive, but given that the original question does not specify a jurisdiction, I did not search beyond what I already know.</p>\n<p>In the <a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a>, works produced by employees of the federal government as part of their work duties are generally public domain (<a href=\"https://www.law.cornell.edu/uscode/text/17/105\" rel=\"noreferrer\">17 U.S. Code § 105</a>; do note that subsection (b) means certain works produced by certain institutions still are under copyright). Hence, if the authors were both researchers at a federal research institution, the preprint is public domain and can be republished irrespective of the publisher’s will. (I am led to believe, however, that most US researchers are <em>not</em> employees of the federal governments, but rather of private or state universities.)</p>\n<p>In <a href=\"/questions/tagged/europe\" class=\"post-tag\" title=\"show questions tagged 'europe'\" aria-label=\"show questions tagged 'europe'\" rel=\"tag\" aria-labelledby=\"tag-europe-tooltip-container\">europe</a>, as a result of public pressure against publishers (see "greedy monopolistic parasites", above), the European Commission published non-binding guidelines (<a href=\"https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32012H0417\" rel=\"noreferrer\">2012/417/EU</a>) asking that</p>\n<blockquote>\n<p>there should be open access to publications resulting from publicly funded research as soon as possible, preferably immediately and in any case no later than 6 months after the date of publication, and 12 months for social sciences and humanities</p>\n</blockquote>\n<p>That (non-binding) recommendation has been adopted with varying adaptations in various EU countries. The exact implementation in a given country should be checked before relying on it. For instance, in France, <a href=\"https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000033205794/2016-10-09\" rel=\"noreferrer\">article L533-4 du code de la Recherche</a> allows authors (after the six or twelve months embargo period) to post the published version (not just the preprint), irrespective of what what signed with the publisher, as long as at least half of the funding for the research came from public funds.</p>\n<p>I will assume neither of those apply.</p>\n<h2>The copyright owner is likely still around</h2>\n<p>Academic journals are born and die regularly. However, academic <em>publishers</em> rarely do (Elsevier is almost 150 years old).</p>\n<p>As ohwilleke says, the copyright release contract signed 40 years ago is likely still valid; even if the publisher folded, it would apply to the publisher’s legal successor. (The question of how legal rights are liquidated in a bankruptcy would be an interesting question that I am not competent to answer; it is plausible that under certain circumstances the contract would be dissolved.)</p>\n<p>If the authors can access the copyright release they signed back when they submitted the article, you might be able to determine that posting the preprint or the final article is acceptable. (I realize that this is a fairly ludicrous hypothetical, given that the paper was published 40 years ago.)</p>\n<p>Otherwise, it is extremely likely that the publisher would be able to sue, even if the publication occurs with the authors’ full support. Whether they are likely to do so, and whether publishing anyway is ethical, are of course non-legal questions.</p>\n",
"score": 25
},
{
"answer_id": 89955,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<p>The unavailability of the journal that published an article or the author is not a defense to copyright infringement. U.S. law does not recognize an "orphan works" exception to copyright infringement. The copyright probably belongs to the author or the estate of the author of the article rather than to the journal in any case. And, a copy of 100% of an article made available to anyone on the Internet, even if not for profit and for educational purposes, probably doesn't constitute fair use.</p>\n<p>So, if you were sued for copyright infringement, you would probably lose.</p>\n<p>Whether the author, or the author's estate, or the journal are likely to sue you for doing so is another matter. It probably isn't very likely, but there are no guarantees. And, if you were sued, full statutory damages and attorney fees would probably be available to the person suing.</p>\n",
"score": 11
},
{
"answer_id": 89988,
"body": "<p>If you're in the US, try searching the article in question in the catalog of <a href=\"https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?DB=local&PAGE=First\" rel=\"nofollow noreferrer\">US Copyright Office</a>.</p>\n<p>Works which are registered with the copyright office have a stronger protection against infringement: the plaintiff doesn't have to prove that he suffered actual losses or damages and sue you for statutory damages instead, which is between $750 and $30000 per work, and could be even higher in some cases.</p>\n<p>If the article you want to share is not registered, the risk becomes significantly lower, as proving that a defunct journal has suffered profit losses due to your infringement will simply not be worth it. You can still be sued in theory, but in practice a reasonable copyright holder will just send you a takedown request and won't bother to sue if you comply.</p>\n<p>PS. Remember that none of the answers here constitute actual legal advice.</p>\n",
"score": 4
},
{
"answer_id": 89991,
"body": "<p>I am aware of analogous problems in my own field, which arose from legally-sloppy practices. The fundamental question is what license the author gave to the publisher. Some academic publishers are well-organized profitable businesses, some are not (they may not be businesses in any sense). In the latter case and especially for a work created in the early 80's, the odds are high that no explicit license was granted, in which case at most a court could find that the publisher was granted a non-exclusive license to distribute. The first question then would be, what license / transfer did the author grant (does the author even remember? or keep a copy?).</p>\n<p>Assume that the author transferred copyright to the publisher (more probable with a well-organized profitable business publisher). The journal "going belly up" could mean that the publisher stopped publishing the journal but is still in business; or, the <em>publisher</em> went belly up. If copyright was transferred to the publisher, then the publisher or publisher's successor could sue you for infringement, assuming they can prove that copyright was transferred. If the work was only licensed, not transferred, and if the author grants you permission to distribute, that is the end of the matter.</p>\n<p>It is entirely possible that transferred copyright can lie dormant for decades (the publisher went out of business and nobody tried to auction off the copyrights to the works published) – until one day something happens (somebody dies, a folder with copyright transfers is uncovered, and the rights were sold to a big commercial publisher). Now you face a threat from a new owner of the copyright. Without a good historical account of the author and publisher, there is a danger of a copyright infringement lawsuit.</p>\n<p>One solution to the distribution problem is to have it available via a library or archive which is allowed to make copies, under <a href=\"https://www.law.cornell.edu/uscode/text/17/108\" rel=\"nofollow noreferrer\">17 USC 108</a>, which says that</p>\n<blockquote>\n<p>it is not an infringement of copyright for a library or archives, or\nany of its employees acting within the scope of their employment, to\nreproduce no more than one copy or phonorecord of a work, except as\nprovided in subsections (b) and (c), or to distribute such copy or\nphonorecord, under the conditions specified by this section, if— (1)\nthe reproduction or distribution is made without any purpose of direct\nor indirect commercial advantage; (2) the collections of the library\nor archives are (i) open to the public, or (ii) available not only to\nresearchers affiliated with the library or archives or with the\ninstitution of which it is a part, but also to other persons doing\nresearch in a specialized field; and (3) the reproduction or\ndistribution of the work includes a notice of copyright that appears\non the copy or phonorecord that is reproduced under the provisions of\nthis section, or includes a legend stating that the work may be\nprotected by copyright if no such notice can be found on the copy or\nphonorecord that is reproduced under the provisions of this section.</p>\n</blockquote>\n<p>There is a legal way to get what you want, without you doing it. Not an endorsement, but <a href=\"https://www.hathitrust.org/ingest\" rel=\"nofollow noreferrer\">Hathi Trust</a> solves may of these "out of print" problems.</p>\n",
"score": 3
}
] |
[
"copyright",
"intellectual-property"
] |
Rent Car to Friend using the friend's car insurance
| 0 |
https://law.stackexchange.com/questions/89989/rent-car-to-friend-using-the-friends-car-insurance
|
CC BY-SA 4.0
|
<p>Let's say someone owns a car and rents it out to a friend. the owner tells the friend "you can't drive this car unless you put your own car insurance on the car" and has the friend sign a contract that specifies the same thing.</p>
<p>Now 5 months later the friend is driving the car without insurance and gets in an accident which harms someone else and someone else vehicle. Who is responsible for the damages? Would the owner of the car be responsible for anything?</p>
<p>This should be hypothetically in the United States and in New York.</p>
| 89,989 |
[
{
"answer_id": 89990,
"body": "<p>In the United States, car insurance is generally required by law in order to operate a motor vehicle. However, in this scenario, the owner of the car allowed their friend to use the vehicle on the condition that the friend obtained their own insurance coverage.</p>\n<p>If the friend did not comply with this agreement and drove the car without insurance, they could be held personally liable for any damages or injuries they caused in the accident. This would include any harm caused to other people or their vehicles.</p>\n<p>The owner of the car, who had required the friend to obtain their own insurance, may not be held directly responsible for the damages. However, it is possible that the injured party or their insurance company could try to hold the owner responsible under a theory of negligence, arguing that the owner should have taken steps to ensure that the friend was actually covered by insurance before allowing them to drive the car.</p>\n<p>Ultimately, the specific details of the situation and the language of the contract between the owner and the friend would likely play a key role in determining legal liability.</p>\n",
"score": 1
}
] |
[
"insurance",
"rent",
"accident",
"car",
"car-insurance"
] |
EU and CLOUD Act
| 0 |
https://law.stackexchange.com/questions/89963/eu-and-cloud-act
|
CC BY-SA 4.0
|
<p>I can't find anything what's on this in 2023 - is EU anyhow working towards and agreement with US to allow not to give away private data? - As I see on Wikipedia, so far only UK has got this agreement with US.</p>
| 89,963 |
[
{
"answer_id": 89975,
"body": "<p>As far as the EU is concerned, the main issue with the CLOUD act is whether it's possible to allow (personal) data transfers to a country where that's the law whithout violating the GDPR. The Commission really wants to do it but its efforts to create a legal framework for that have been repeatedly thwarted in court.</p>\n<p>Where we are now is that the Commission published a <a href=\"https://commission.europa.eu/law/law-topic/data-protection/international-dimension-data-protection/eu-us-data-transfers_en\" rel=\"nofollow noreferrer\">draft adequacy decision</a> to replace the International Safe Harbor Privacy Principles and is trying to get it adopted. It's not the law yet but there is no indication the Commission would be working on something else as it already has an agreement. <a href=\"https://noyb.eu/en/statement-eu-comission-adequacy-decision-us\" rel=\"nofollow noreferrer\">Schrems</a> and the <a href=\"https://edpb.europa.eu/our-work-tools/our-documents/opinion-art-70/opinion-52023-european-commission-draft-implementing_en\" rel=\"nofollow noreferrer\">EDPB</a> seem unconvinced and it remains to be seen how this plays out when it ends up being challenged in some way.</p>\n",
"score": 2
}
] |
[
"gdpr",
"european-union",
"cloudact"
] |
When an author published a set of lecture notes on his website but didn't include a license, are you allowed to download it?
| 2 |
https://law.stackexchange.com/questions/89976/when-an-author-published-a-set-of-lecture-notes-on-his-website-but-didnt-includ
|
CC BY-SA 4.0
|
<p>Many authors put up their lecture notes online on their personal webpages, available for anyone to download, but many of them don't include a license.
Are you allowed to download them or not (as someone not in their university/course, but they put it up on their webpage so anyone can download it)?</p>
<p>As an example, you can look for lecture notes on any topic, most of them won't have a license at the beginning.</p>
<p>(Specifically, I'm asking about Germany)</p>
| 89,976 |
[
{
"answer_id": 89982,
"body": "<h2>You do not have permission</h2>\n<p>That doesn’t mean you can’t download it, it just means that you have to comply with whatever fair use/fair dealing rules are for your jurisdiction. Downloading in some circumstances will be fine, in others it won’t exact details vary by jurisdiction. See <a href=\"https://law.stackexchange.com/questions/48359/what-is-the-practical-difference-between-fair-use-and-fair-dealing-in-copyri/48380#48380\">What is the practical difference between "fair use" and "fair dealing" in Copyright law?</a></p>\n<blockquote>\n<p><a href=\"https://www.lexology.com/library/detail.aspx?g=5a9f6b59-1014-4d39-a4f0-7f83bb4428f9\" rel=\"nofollow noreferrer\">German</a> copyright law does not recognise a general ‘fair use’ doctrine. Rather the Copyright Act contains a chapter including several specific provisions limiting the scope of rights for the copyright owner with respect to lawfully permitted uses. For instance, such lawfully permitted uses refer to collections for religious use, newspaper articles and broadcast commentaries and, most importantly, the reproduction for private and other personal uses.</p>\n</blockquote>\n",
"score": 2
}
] |
[
"copyright",
"licensing",
"germany"
] |
Would I sue seller or manufacturer for a new appliance that does not function correctly?
| 0 |
https://law.stackexchange.com/questions/89972/would-i-sue-seller-or-manufacturer-for-a-new-appliance-that-does-not-function-co
|
CC BY-SA 4.0
|
<p><strong>TLDR</strong></p>
<p>We bought a dishwasher. It doesn't work. Mfg just keeps delaying with service visits and attempted fixes. I'm done and ready to buy a new dishwasher and sue for the cost of the old. Who do I sue?</p>
<p><strong>Background</strong></p>
<p>We purchased a new dishwasher from a big box store. We want to return it for a slew of reasons, top among them being:</p>
<ul>
<li>Dishes do not come clean</li>
<li>Dishes smell of chemicals, most likely from detergent not being washed off</li>
<li>Sound level is 26 db above rated level (I expected 5-10, but not 20+)</li>
</ul>
<p>These problems can be partially mitigated by running every load twice, but that's wasteful of water, time, energy, etc and not what we paid for.</p>
<p><strong>Attempted Resolution</strong></p>
<p>I contacted the big box store who told me to talk to the manufacturer first, and they asked me to try a few things, such as:</p>
<ul>
<li>Different types of detergent</li>
<li>Different types of rinse aid</li>
<li>With and without rinse aid</li>
<li>Running the hot water in the sink first</li>
</ul>
<p>After none of these worked I contacted the big box store, and they told me I was past the 30 day return window at that point and had no recourse other than through manufacturer.</p>
<p>The manufacturer said they had to sent a tech before approving a return. The tech said these problems were definitely real, and there was no apparent cause, and I should get a new machine. The manufacturer then said they had to send another tech. That tech said the only thing they could guess it might be is a faulty motor that works, but not strongly enough. They offered to replace it, but said it would be 3+ weeks.</p>
<p><strong>Now What?</strong></p>
<p>At this point I've already lost close to an hour a day double washing and hand washing dishes and pots and pans for a month, and am unwilling to wait any longer, especially since I believe the manufacturer is just trying to delay until I go away. And I didn't buy a refurbished dishwasher, I bought a new one. So I'm planning to just buy another dishwasher, and sue the manufacturer or big box store for the money I spent on the first.</p>
<p>Who do I sue? My sales contract is with the big box store. However, the problems seem related to a manufacturer defect or, more likely, faulty design by the manufacturer.</p>
<p>And if I win, what do I do with the dishwasher?</p>
<p><strong>Limitations</strong></p>
<ul>
<li>I do not have a vehicle to transport this dishwasher</li>
<li>I have a back problem and do not want to try lifting this dishwasher to transport it</li>
</ul>
| 89,972 |
[
{
"answer_id": 89981,
"body": "<blockquote>\n<p>Would I sue seller or manufacturer for a new appliance that does not function correctly?</p>\n</blockquote>\n<p>You have viable claims against both seller and manufacturer, and you may sue both of them in the same complaint. Hopefully the tech's assessment that you "<em>should get a new machine</em>" is <em>in writing</em>, since that evidence seems dispositive (i.e., decisive) and immune to manufacturer's potential denial. Regardless of what approach you choose, the award you might be granted is subject to the prohibition of <em>double recovery</em>.</p>\n<p>It seems that the seller's directions were purposefully dilatory. Coupled with its subsequent pretext about expiration of the 30 day period, seller's conduct is in violation of legislation regarding <em>unfair and misleading practices</em>. Your post does not specify which jurisdiction in the US you have in mind, but consumer protection laws are rather uniform all over the country.</p>\n<p>If the provision of 30-day return period is reflected in a document such as the invoice, or in seller's signs/advertisements, you also have a claim of <em>breach of contract</em> for seller's failure to abide by the corresponding clause or policy.</p>\n<p>A similar rationale applies with respect to the manufacturer. The manufacturer is not entitled to arbitrarily postpone compliance as to the warranty. Seller's 30-day deadline serves as comparison in your argument that the manufacturer's open-ended schedule is excessive, a schedule which is on top of the delay from the interactions with both techs.</p>\n<blockquote>\n<p>if I win, what do I do with the dishwasher?</p>\n</blockquote>\n<p>Wait for the party who reimburses you or replaces the dishwasher to determine whether it opts to take the defective dishwasher. That party is responsible for transportation costs and related expenses if it decides to pick up the appliance.</p>\n<p>If the party is not interested in retrieving the defective appliance, make sure it signs a waiver. Otherwise you would be at risk that that party maliciously tries to turn the tables by alleging that you unlawfully got a second dishwasher for free.</p>\n",
"score": 3
}
] |
[
"united-states",
"contract-law",
"small-claims-court"
] |
Who would be legally responsible for the application of mainstream wrong psychological/psychiatrist therapies?
| 2 |
https://law.stackexchange.com/questions/39088/who-would-be-legally-responsible-for-the-application-of-mainstream-wrong-psychol
|
CC BY-SA 4.0
|
<p>Several times has happened that the definition of mental disorders/ psychological-psychiatrist therapies/theories have been proven wrong. Yet they have been applied over people causing them problems and harm in their lives. Usually graduated psychologists/ psychiatrists are ignorant which is the supposed proof of these theories. They've been told they have been proven sometimes, sometimes they've been given some details, and they don't know they don't have a real basis behind them until it's massively accepted they are wrong. Personally, I see little to no responsibilities in them. In the other hand, governments and states promote these theories in secondary schools, they teach them and form professionals in national universities, and they hold the power to treat people in trials and to internate someone for being ill under these theories. Some other organizations, which I'm not very aware who they are, but I assume they might be colleges or agrupations of psychiatrists/psychologists regulate their professional's activities, and I assume they might be the ones giving the content to national universities for the formation of professionals under these theories. When one of these theories/therapies are proven wrong and have caused harm over people, who is the legal responsibility? </p>
<p>I assume there aren't many cases like this, but I make the parallelism with biological sciences. If an association or group produces a medicament which is proven harmful for people later, and that association teaches doctors to give this medicament to people, with the approval and fundings/places of national government created universities, it would be pretty much the same. Then, in the case stated in the topic question, who would be legally responsible for the application of these mainstream wrong psychological/psychiatrist therapies?</p>
| 39,088 |
[
{
"answer_id": 39094,
"body": "<p>Your question is almost too general to answer, but the basic answer is; being wrong is not a crime. Negligence is, but applying generally accepted medical diagnoses and treatments is not negligent. Malpractice is also a crime (or at least reason to suspend a medical licence); but evolving a theory based on experimental evidence, submitting it to peer review and having it generally accepted, and then later seeing it superseded by another theory is not malpractice, it is the normal scientific method.</p>\n\n<p>And no definition has ever been \"proven wrong\" since a definition, like an axiom, is neither verifiable nor falsifiable. The definitions of disorders vary betweeen countries, and most certainly change over time, but that is not because of any discovery or proof.</p>\n",
"score": 4
},
{
"answer_id": 89979,
"body": "<h1>Do your best</h1>\n<p>If a skilled and licensed physician does her best and follows what is currently medical best practices, she generally does not bear liability even if those best practices are later shown to be misguided. Medicine is a field where best practices are determined within the community of professionals rather than by law (with some exceptions where specific treatments are made illegal). Doctors know that they need to balance treatment against the possibility that their actions could do more harm than good. Here's one version of the Hippocratic Oath. Several passages reflect the fact that doctors don't know everything and are really trying to do their best.</p>\n<blockquote>\n<p>I swear to fulfill, to the best of my ability and judgment, this\ncovenant:</p>\n<p>I will respect the hard-won scientific gains of those physicians in\nwhose steps I walk, and gladly share such knowledge as is mine with\nthose who are to follow.</p>\n<p>I will apply, for the benefit of the sick, all measures [that] are\nrequired, avoiding those twin traps of overtreatment and therapeutic\nnihilism.</p>\n<p>I will remember that there is art to medicine as well as science, and\nthat warmth, sympathy, and understanding may outweigh the surgeon's\nknife or the chemist's drug.</p>\n<p>I will not be ashamed to say "I know not", nor will I fail to call in\nmy colleagues when the skills of another are needed for a patient's\nrecovery.</p>\n<p>I will respect the privacy of my patients, for their problems are not\ndisclosed to me that the world may know. Most especially must I tread\nwith care in matters of life and death. If it is given me to save a\nlife, all thanks. But it may also be within my power to take a life;\nthis awesome responsibility must be faced with great humbleness and\nawareness of my own frailty. Above all, I must not play at God.</p>\n<p>I will remember that I do not treat a fever chart, a cancerous growth,\nbut a sick human being, whose illness may affect the person's family\nand economic stability. My responsibility includes these related\nproblems, if I am to care adequately for the sick.</p>\n<p>I will prevent disease whenever I can, for prevention is preferable to\ncure.</p>\n<p>I will remember that I remain a member of society, with special\nobligations to all my fellow human beings, those sound of mind and\nbody as well as the infirm.</p>\n<p>If I do not violate this oath, may I enjoy life and art, respected\nwhile I live and remembered with affection thereafter. May I always\nact so as to preserve the finest traditions of my calling and may I\nlong experience the joy of healing those who seek my help.</p>\n</blockquote>\n",
"score": 0
}
] |
[
"criminal-law"
] |
Is it legal for one email-service-provider to send emails using the exact identical email-address of another email-service-provider?
| 0 |
https://law.stackexchange.com/questions/89940/is-it-legal-for-one-email-service-provider-to-send-emails-using-the-exact-identi
|
CC BY-SA 4.0
|
<p>Question -<br />
Is it legal for one email-service-provider to send emails using the exact identical email-address of another email-service-provider ?</p>
<ul>
<li>This happened to me in the last 3 days, <strong>the two companies are not connected</strong>.</li>
<li>I have an email-account with company-A, and used it to make an account with company-B, and when I tried the email-service of company-B it uses the completely identical email-address as my account with company-A.</li>
<li>I have replicated the problem ( with company-B ) by using a 2nd account from company-A.</li>
</ul>
<p><strong>More Detail</strong> -
Outlook.com apparently can send emails using gmail addresses, if you go through the steps. However, what about if you have no MS-accounts at all, then, you use your gmail address to make a Skype account, it may involve a verification-code being sent to your gmail address. Then you decide to use your open Skype account to sign-in to Outlook.com for the first time ever, and suddenly you notice that Outlook.com uses your gmail address to send emails, without you having in any way given any types of permissions to do anything like that.</p>
| 89,940 |
[
{
"answer_id": 89952,
"body": "<p>As people realize time and again in the fight against spam and scam, <strong>the email protocol is not secure</strong>. One can write anything into the "From" or "Reply-To" field. But that's for sending. To receive mail, the technical address has to be resolved.</p>\n<p>An email address can consist of <a href=\"https://www.rfc-editor.org/rfc/rfc5322#section-3.4\" rel=\"nofollow noreferrer\">two parts</a>, the <em>optional</em> display name and the <em>actual</em> address. Say Alice registers <em>"Alice and Bob" <alice@example.test></em> and Bob registers <em>"Alice and Bob" <bob@other.sample></em>. Those are different emails. One gets resolved at <em>example</em> in the <em>test</em> top level domain, the other gets resolved at <em>other</em> in the <em>sample</em> top level domain.</p>\n<p>If two different companies can operate mailboxes with the same actual address, someone has "broken the internet" in a rather serious way, either locally on your network or globally. I do not think the internet is broken that way.</p>\n<hr />\n<p>Which leaves the problem of identical display names. If the display name is trademarked or copyrighted, there could be problems, depending on details of the jurisdiction. It is usually not possible to copyright a personal name. There could also be questions of fraud. But those do not apply if the same person uses identical display names on different systems.</p>\n",
"score": 1
}
] |
[
"internet",
"email",
"internet-scam"
] |
How can I prove that I designed the site?
| 1 |
https://law.stackexchange.com/questions/89966/how-can-i-prove-that-i-designed-the-site
|
CC BY-SA 4.0
|
<p>I have designed a website for a client,
But there is no contract between us.</p>
<p>The client does not pay my salary,
But our text and voice messages are available.</p>
<p>How can I prove that I designed the site and complain about him?</p>
| 89,966 |
[
{
"answer_id": 89971,
"body": "<p>By "complain" I assume you mean "take legal action against him". You would need a legal basis, and a lawyer. When you say that you don't have a contract, I assume you mean that you don't have a piece of signed paper, but you do have an agreement – which <em>is</em> a contract. As far as websites are concerned, there are only a few likely causes of legal action: copyright infringement, and non-payment for services. As far as copyright is concerned, <a href=\"https://web.archive.org/web/20110505081941/http://softreg.ir/rules/copyright.html\" rel=\"nofollow noreferrer\">this law</a> may be relevant. If we assume that you and the client are operating in Iran, your copyright is protected, but Iran does not enforce other country's copyright laws (they are not signatories to the Berne Convention).</p>\n<p>If the issue is that the client is not paying for services rendered, you can sue them. The civil code (in English) is <a href=\"https://www.refworld.org/pdfid/49997adb27.pdf\" rel=\"nofollow noreferrer\">here</a>. See article 219 ff. for the specifics, but basically you show the judge that there is an agreement, and that you were not paid. The client can then argue that you didn't actually do the job agreed to, or that you were paid. There are other possible responses (e.g. the "client" might prove that you agreed to do the work for free), the details of which will come out in your discussion with the lawyer.</p>\n",
"score": 4
}
] |
[
"internet"
] |
Hotels and code requirements for living space
| 0 |
https://law.stackexchange.com/questions/89948/hotels-and-code-requirements-for-living-space
|
CC BY-SA 4.0
|
<p>Do hotels in the United States in New York City for example have to uphold code requirements for living space?</p>
<p>If they don't couldn't someone just open up a couple of sheds in their backyard call it a hotel and rent them out?</p>
| 89,948 |
[
{
"answer_id": 89957,
"body": "<p>This question is controlled almost entirely by local municipal and county ordinances. It is not a question of federal law that is uniform across the U.S. and in most cases it is not even a question of state law. So, there is no single answer to your question.</p>\n<p>Most localities regulate this with some combination of hotel specific building codes (usually incorporated by reference from a uniform building code promulgated by a private non-profit organization as a model building code provision) and hotel specific local zoning ordinances.</p>\n",
"score": 4
},
{
"answer_id": 89970,
"body": "<p><a href=\"/questions/tagged/washington\" class=\"post-tag\" title=\"show questions tagged 'washington'\" aria-label=\"show questions tagged 'washington'\" rel=\"tag\" aria-labelledby=\"tag-washington-tooltip-container\">washington</a></p>\n<p>Hotels are regulated, my neighbor's house is not. A 'hotel' is defined in <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=19.48&full=true\" rel=\"nofollow noreferrer\">RCW 19.48.010</a>:</p>\n<blockquote>\n<p>Any building held out to the public to be an inn, hotel or public\nlodging house or place where sleeping accommodations, whether with or\nwithout meals, or the facilities for preparing the same, are furnished\nfor hire to transient guests, in which three or more rooms are used\nfor the accommodation of such guests, shall for the purposes of this\nchapter and chapter 60.64 RCW, or any amendment thereof, only, be\ndefined to be a hotel, and whenever the word hotel shall occur in this\nchapter and chapter 60.64 RCW, or any amendment thereof, it shall be\nconstrued to mean a hotel as herein described.</p>\n</blockquote>\n<p>My neighbor does not call it a hotel, and there is only a single room occasionally rented out as a sleeping accommodation.</p>\n<p><a href=\"https://app.leg.wa.gov/RCW/default.aspx?cite=70.62&full=true\" rel=\"nofollow noreferrer\">RCW Chapter 79.62</a> addresses safety laws, this time referring to "transient accommodation" which means</p>\n<blockquote>\n<p>any facility such as a hotel, motel, condominium, resort, or any other\nfacility or place offering three or more lodging units to travelers\nand transient guests</p>\n</blockquote>\n<p>and note that it doesn't have to be a building. Also, this definition does not include "for hire". Most of the implementational details are spelled out in the regulations administratively written to say exactly what one must do, in <a href=\"https://app.leg.wa.gov/wac/default.aspx?cite=246-360&full=true\" rel=\"nofollow noreferrer\">246-260 WAC</a>, which covers "facilities offering three or more lodging units to guests for periods of less than thirty days", including "rustic resorts" and B&Bs. As you can see, it depends on how many sheds or how big a shed you have.</p>\n<p>Rustic resorts typically fail to be "up to code", in fact many buildings are not up to current code. "Code" is a concept that applies to construction: you can be up to code in 1947 and totally out of code 60 years later. There can, then, be specific requirements of particular establishments – hotels – regarding safety and sanitation. 246-260 WAC says what you have to do in that respect.</p>\n<p>The government has regulatory discretion to waive requirements if you can devise a decent argument for doing so. An example is that any such facility has to have electricity, water, sewer etc. and that is an unreasonable requirement for a cabin in the mountains that you hike to. It is hard to predict when they will consider exemption to be reasonable vs. unreasonable, but as far as an urban tool shed is concerned, it would be unreasonable to suspend the health and safety regulations.</p>\n<p>Before you decide to start renting your tool shed out, you should also consult municipal ordinances. Seattle also regulates businesses and has <a href=\"http://seattle.legistar.com/View.ashx?M=F&ID=5707790&GUID=6EE24175-0711-4616-8260-6C0A0116FE1E\" rel=\"nofollow noreferrer\">ordinances related to operating B&Bs</a>, which were recently made more draconian to cut back on the number of B&Bs. The ordinance uses the expression "dwelling unit<strong>s</strong> or portions thereof", and does not specify a threshold of three as per state law. The trigger is being "occupied by a person for less than 30 days". Therefore, in Seattle, your shed-motel is regulated.</p>\n",
"score": 1
}
] |
[
"united-states",
"rental-property",
"real-estate",
"local-ordinance",
"zoning"
] |
Why are trials on "Law & Order" in the New York Supreme Court?
| 14 |
https://law.stackexchange.com/questions/89968/why-are-trials-on-law-order-in-the-new-york-supreme-court
|
CC BY-SA 4.0
|
<p>On the TV show "Law & Order", when they cut to the trial it's usually accompanied by a chiron (along with the trademark "dun-dun" sound) saying something like "New York State Supreme Court, Part 7". Is this an accurate representation of where trials like these would be held? Isn't the NY Supreme Court an appeals court, like SCOTUS? These are always ordinary jury trials. (Considering the contorted logic the prosecutors employ, I expect that most of these convictions get appealed, but the show never goes that far.)</p>
| 89,968 |
[
{
"answer_id": 89969,
"body": "<p>As described at the State of New York Court of Appeals <a href=\"https://www.nycourts.gov/ctapps/outline.htm\" rel=\"noreferrer\">website</a>, the supreme court is the system of trial courts for serious cases. The highest court in New York is the Court of Appeals. It serves the same role as what many other states call a supreme court.</p>\n",
"score": 22
}
] |
[
"new-york-state",
"trial"
] |
Legal recourse if fellow patient recorded and distributed group therapy session
| -1 |
https://law.stackexchange.com/questions/89883/legal-recourse-if-fellow-patient-recorded-and-distributed-group-therapy-session
|
CC BY-SA 4.0
|
<p>Person A is participating in a PTSD/Abuse recovery program in Tennessee. During a private conversation (not part of any official therapy) they divulge to patient B highly personal information regarding why they (Patient A) are in the program. Patient B, without Patient A's knowledge or consent, records the conversation and sends the recording to dozens of other patients in the program.</p>
<p>What legal recourse does A have, if any?</p>
| 89,883 |
[
{
"answer_id": 89886,
"body": "<blockquote>\n<p>What legal recourse does A have, if any?</p>\n</blockquote>\n<p>It mostly depends on whether person A had a <em>reasonable</em> expectation of privacy. The fact that the session was a group therapy suggests that such expectation is not reasonable.</p>\n<p>Tennessee is a one-party-consent state, thereby entitling <em>any</em> participant to record the session. Also, your description nowhere indicates that patient B has a duty of confidentiality toward person, A or that the group therapy has a rule that overrides that entitlement.</p>\n<p>Under Tennessee law the invasion of privacy is a tort, but it requires the intentional intrusion "<em>upon the solitude or seclusion of another or his private affairs or concerns</em>", <a href=\"https://www.leagle.com/decision/intnco20091215730\" rel=\"noreferrer\"><em>Harris v. Horton</em>, 341 S.W.3d 264, 271 (2009)</a> (overruled on other grounds; citing the Restatement (Second) of Torts at 652B). The term "group therapy" seemingly strikes the notion of solitude or seclusion.</p>\n",
"score": 6
}
] |
[
"recording",
"mental-health",
"tennessee"
] |
What are the precise criteria for making a place a legal residence for a person in Denmark?
| 2 |
https://law.stackexchange.com/questions/89581/what-are-the-precise-criteria-for-making-a-place-a-legal-residence-for-a-person
|
CC BY-SA 4.0
|
<p>I would like to know the legal requirements for a dwelling to be considered legal and fit for registering as a residence with the government, in Denmark.</p>
<p>I would prefer a complete, clear checklist, if possible. For example:</p>
<ol>
<li><p>Is there a specific size that the space must be, per person? How might this affect things like tiny homes, or a family member sleeping in a small family apartment’s couch, or a spouse spending lots of time with you even though the room is a small single, or a bunch of people packing in to one apartment to save money? I feel like there is probably some law that you can’t have a certain number of people in one room, but I wonder how that affects someone who genuinely wants to live in a tiny, tiny home, like a little shack/mini-cottage, basically.</p>
</li>
<li><p>In order for it to have an address, if it were somewhere rural, would it be mandatory to be connected to physical roads, and then apply for a street address with the local government, who approve it? In other words, how much or little freedom do you have to create a new address somewhere - i.e., buying a cheap, empty piece of land in a remote area, and simply stating that this is your residence on paper, even if there’s no house there, and no official street name. I know that situation would be turned out, but when does it cross the threshold into permissible? Can one normal residential property, like a house, choose to split their sidewalk space in half, and have a second address and mailbox, for maybe someone they sublet to, who now technically lives at a different address, of their own?</p>
</li>
</ol>
<p>Also, I would appreciate hearing the distinction between illegal and enforced, illegal but less/not enforced, and legal.</p>
<p>Thank you.</p>
| 89,581 |
[
{
"answer_id": 89964,
"body": "<p>In practice, the legal requirements for a dwelling to be considered legal and fit for registering as a residence with the government in Denmark are often enforced by the local municipalities, which have the power to interpret and apply the laws and statutes according to their specific circumstances and needs. The checklist provided below is based on the general principles and guidelines set out in the relevant legislation and regulations, but it may vary depending on the local context and the specific characteristics of each dwelling.</p>\n<ul>\n<li><p>The Danish Building Act (Byggeloven):\nThe Danish Building Act sets out the basic requirements for all buildings in Denmark, including dwellings. It defines the minimum requirements for size, health, safety, and location, and provides guidelines for construction, renovation, and demolition. The act is constantly updated to reflect new building technologies and changes in society's needs and expectations.</p>\n</li>\n<li><p>The Danish Water Supply Act (Vandforsyningsloven):\nThe Danish Water Supply Act sets out the requirements for the quality and safety of drinking water, as well as the responsibilities of the water supply companies and the consumers. The act ensures that all buildings have access to clean and safe drinking water and that the drainage system does not cause pollution or health hazards.</p>\n</li>\n<li><p>The Danish Wastewater Act (Spildevandsloven):\nThe Danish Wastewater Act regulates the disposal of sewage and other wastewater, and sets out the requirements for the treatment and discharge of wastewater. The act ensures that all buildings have proper drainage and that the environment is protected from pollution.</p>\n</li>\n<li><p>The Danish Planning Act (Planloven):\nThe Danish Planning Act sets out the guidelines for land use planning, including the designation of residential zones and the approval of building permits. The act ensures that all buildings are located in appropriate areas and that the surrounding environment is protected from inappropriate development.</p>\n</li>\n<li><p>The Danish Rent Act (Lejeloven):\nThe Danish Rent Act regulates the relationship between landlords and tenants, including the rent level, the notice periods, and the rights and obligations of both parties. The act ensures that all dwellings are rented out fairly and that the tenants have adequate housing standards.</p>\n</li>\n</ul>\n<p>The following laws seem to be relevant when we start considering applying them to your conditional checklist:</p>\n<h2>Size Occupancy Problem</h2>\n<ul>\n<li><p>There is no minimum size requirement for a dwelling in Denmark, but there are regulations that specify how much space is required per person. The Danish Building Regulations specify that a dwelling must have a minimum floor area of 20 square meters per person. However, this does not necessarily apply to tiny homes or other non-traditional forms of housing, as long as they meet the minimum space requirements and other safety and health standards.</p>\n</li>\n<li><p>The maximum number of occupants allowed in a dwelling is determined by its size, layout, and facilities, as well as the health and safety requirements set out in the Building Act and other regulations. Overcrowding is not permitted.</p>\n</li>\n</ul>\n<h2>Health Care Facility</h2>\n<ul>\n<li><p>The Danish Water Supply Act sets out the requirements for the quality and safety of drinking water, as well as the responsibilities of the water supply companies and the consumers. The act ensures that all buildings have access to clean and safe drinking water and that the drainage system does not cause pollution or health hazards. This act deals with land property too.</p>\n</li>\n<li><p>The dwelling must have adequate access to emergency services, such as fire, police, and ambulance. Enforced by this, residence must have it.</p>\n</li>\n<li><p>The water supply and drainage system must meet the requirements set out in the Danish Water Supply Act (Vandforsyningsloven) and the Danish Wastewater Act (Spildevandsloven) in residence.</p>\n</li>\n</ul>\n<h2>Legal and enforced</h2>\n<ul>\n<li><p>If a dwelling does not meet the legal requirements for size, health, safety, or location, it is considered illegal and can be subject to fines, demolition, or other enforcement measures by the local municipality or the Building Appeals Board (Huslejenævnet).</p>\n</li>\n<li><p>Illegal dwellings are those that are not approved for residential use, or that have been altered without the necessary permits and inspections.\nThe local municipality has the authority to enforce the Building Act and other relevant legislation and regulations.</p>\n</li>\n<li><p>Permits and approvals: Depending on the specific circumstances, a dwelling in Denmark may require various permits and approvals from local authorities, such as planning permission or building permits.</p>\n</li>\n</ul>\n<hr />\n<p>There might be many more laws, bindings, and promises to make, but these are compulsion with some relaxation to above situations. The question examples and requirements deal to land reforms, and health-care facility.</p>\n",
"score": 3
}
] |
[
"rental-property",
"real-estate",
"property",
"ownership",
"denmark"
] |
Why did FBI establish such intense surveillance to prove Jeremy Hammond's guilt?
| 1 |
https://law.stackexchange.com/questions/89958/why-did-fbi-establish-such-intense-surveillance-to-prove-jeremy-hammonds-guilt
|
CC BY-SA 4.0
|
<p><a href="https://en.wikipedia.org/wiki/Jeremy_Hammond" rel="nofollow noreferrer">https://en.wikipedia.org/wiki/Jeremy_Hammond</a></p>
<p>Jeremy Hammond was a computer hacker who attacked Stratfor firm. Once FBI was able to pinpoint the real identity of the person behind one of the nicknames who claimed they hacked Startfor, they started extensive investigation on Hammond.</p>
<p><a href="https://arstechnica.com/tech-policy/2012/03/stakeout-how-the-fbi-tracked-and-busted-a-chicago-anon/" rel="nofollow noreferrer">https://arstechnica.com/tech-policy/2012/03/stakeout-how-the-fbi-tracked-and-busted-a-chicago-anon/</a></p>
<blockquote>
<p>While sup_g may indeed have been a "credible threat," he was in the
end no match for the overwhelming federal resources of the FBI agents
hunting him down. Over the last month, federal agents staked out his
home in Chicago constantly, dug up old police surveillance records,
tapped his Internet connection, used directional wireless finders to
locate and identify his wireless router, and relied on Sabu back in
his New York City apartment to let them know when sup_g went on or
offline.
"sup_g" was one of Hammond's nicknames.</p>
</blockquote>
<p>Why would FBI go to such great lengths if they already revealed the identity of the perpetrator? Why FBI considered it not enough to correlate an Internet nickname to a physical person? If they required evidence, why did they just not search Hammond's computers after making sure one of aliases that claimed to have hacked Startfor is indeed Jeremy Hammond?</p>
| 89,958 |
[
{
"answer_id": 89959,
"body": "<p>The cited Wikipedia article explains why the FBI took the case so seriously, and in a serious case, the FBI is meticulous about being able to prove its case beyond a reasonable doubt on all possible charges. It also didn't know what other crimes or conspiracies might be involved and needed to be able to prosecute any newly discovered offenses. The Wikipedia article notes, in the pertinent part:</p>\n<blockquote>\n<p>On March 5, 2012, Hammond was arrested by Federal Bureau of\nInvestigation (FBI) agents in the Bridgeport neighborhood of Chicago\nfor his involvement in the December 2011 cyberattack on Stratfor, a\nprivate intelligence firm. <strong>The intrusion compromised 60,000 credit\ncard numbers, $700,000 in fraudulent charges, and involved the\ndownload of 5 million emails, some of which were subsequently\npublished by WikiLeaks.</strong> . . . He was one of six individuals from the\nUnited States, England and Ireland indicted.</p>\n<p>The FBI was led to Hammond through information given by computer\nhacker Hector Xavier Monsegur ("Sabu"), who became a government\ninformant immediately after his arrest in early 2011, and subsequently\npleaded guilty in August 2011 to twelve counts of hacking, fraud, and\nidentity theft. . . . Information from Monsegur helped lead the\nauthorities to at least eight co-conspirators, including Hammond,\nand <strong>helped to disrupt at least 300 cyberattacks</strong>. . . .</p>\n<p>Sabu was detained pending trial; in denying bail, Judge Loretta A.\nPreska described Hammond as "a very substantial danger to the\ncommunity." . . .</p>\n<p>In May 2013, Hammond pleaded guilty to one count of violating the\nComputer Fraud and Abuse Act (CFAA). Upon his guilty plea, Hammond\nissued a statement saying, "<strong>I did work with Anonymous</strong> to hack\nStratfor, among other websites" . . . Hammond was sentenced on\nNovember 15, 2013, to the maximum of ten years in prison, followed by\nthree years of supervised release.</p>\n</blockquote>\n",
"score": 3
}
] |
[
"evidence",
"investigation"
] |
Signed but modified document?
| 3 |
https://law.stackexchange.com/questions/89843/signed-but-modified-document
|
CC BY-SA 4.0
|
<p>One party drafts and signs a document and sends it to another party (assuming no 3rd party site is used). The other party signs the document and returns it EXCEPT that a critical part has been secretly modified. The first party didn't thoroughly check the document and they go on doing business until a dispute happens. One party say the contract is violated. The other shows the modified contract and says there's nothing wrong.</p>
<p>How to determine who's right?</p>
<p>We have to assume that these are not super big corporations with advanced tools and lawyers. Maybe it's individuals signing a loan contract. Maybe it's freelancers having their clients to sign a contract. And the contracts are being sent over using Google Drive or Dropbox or attached to an email.</p>
| 89,843 |
[
{
"answer_id": 89932,
"body": "<p>I've litigated that issue before in Colorado, in the context of a dozens of pages long contract not governed by the Uniform Commercial Code.</p>\n<p>The party who signed the modified contract has an uphill battle because a signature is presumed to be a representation that the contract was read before being signed.</p>\n<p>This said, it isn't impossible to overcome this on the theory that the change was fraudulently concealed or actively misrepresented in order to induce the other party to sign it.</p>\n<p>For example, if the final draft comes with a cover email that says "this is the same as the version you previously reviewed except for one change on page 3" and the change that is concerning was on page 8, this would probably overcome that presumption.</p>\n<p>Courts weight these competing legal theories based upon the evidence.</p>\n<p>As noted in other answers, a different analysis applies to a "battle of forms" in contract for the sales of goods governed by the Uniform Commercial Code.</p>\n",
"score": 2
},
{
"answer_id": 89855,
"body": "<h2>Last shot wins</h2>\n<p>This situation has a name: the <a href=\"https://hwlebsworth.com.au/battle-of-the-forms-may-the-best-shot-win/\" rel=\"nofollow noreferrer\">battle of the forms</a>.</p>\n<p>This is how the analysis goes down for your example:</p>\n<ul>\n<li><p>Party A made an offer by sending the contract</p>\n</li>\n<li><p>Party B rejected that offer and made a counter-offer by modifying the contract</p>\n</li>\n<li><p>Party A accepted that counter-offer by conduct</p>\n</li>\n</ul>\n<p>So, in this situation, Party B’s modified contract applies.</p>\n",
"score": 1
},
{
"answer_id": 89880,
"body": "<blockquote>\n<p>The other shows the modified contract and says there's nothing wrong. How to determine who's right?</p>\n</blockquote>\n<p>It primarily depends on the jurisdiction and the type of contract.</p>\n<p>The scenario you describe is known as the <em>last-shot</em> doctrine. In the US the Uniform Commercial Code "<em>aim[s] to abrogate the criticized common-law mirror image rule and its attendant last-shot doctrine</em>". <a href=\"https://www.leagle.com/decision/19981339711a2d62811339\" rel=\"nofollow noreferrer\"><em>Superior Boiler Works, Inc. v. R.F. Sanders, Inc</em>, 711 A.2d 628, 636 (1998)</a>. The purpose is to preempt "<em>undue advantages derived solely from the fortuitous positions of when a party sent a form</em>", <em>Id.</em>, (citation omitted). A number of state legislatures in the US have enacted legislation that largely mimics the model UCC.</p>\n<p>The premise that "<em>a critical part has been secretly modified</em>" and went unnoticed to the offeror weakens the validity of altered contract. <a href=\"https://www.leagle.com/decision/19892136882f2d125411922\" rel=\"nofollow noreferrer\"><em>Trans-Aire Intern. v. Northern Adhesive Co.</em>, 882 F.2d 1254, 1260 (1989)</a> points out that material alteration by means of the additional terms "<em>are to be construed as proposals for addition to the contract and will not become part of the contract</em>" (citations and internal quotation marks omitted). Incorporation of material alterations requires the express assent of the offeror/counterofferee, <em>Id.</em> at 1261.</p>\n<p>Even if strictly speaking the UCC were inapplicable, the offeree's shadiness in altering a contract already signed by the offeror sounds in breach of the implied <em>covenant of good faith and fair dealing</em> (this covenant is implied in many other jurisdictions besides or beyond the US). That is because the offeror's signature in the contract indicates the offeror is ready to perform the contract <em>as is</em>, and does not expect its terms to be materially modified. In such instances, material alterations that go unnoticed resemble the conditions outlined in <a href=\"http://www.oneclubofjusticides.com/p/restatement-second-contracts.html\" rel=\"nofollow noreferrer\">Restatement (Second) of Contracts</a> at §153 for a contract to be voidable by the adversely affected party.</p>\n<p>The counterofferor ought to ensure the offeror's express acceptance of any material alterations.</p>\n",
"score": 1
}
] |
[
"contract-law"
] |
Is a copyright license by default revocable or irrevocable?
| 11 |
https://law.stackexchange.com/questions/832/is-a-copyright-license-by-default-revocable-or-irrevocable
|
CC BY-SA 3.0
|
<p>If I grant someone a license to use a copyrighted work of mine, do I need to detail my ability to revoke the license within the terms of the license grant, or is that ability inherent to all licenses?</p>
<p>I understand that a copyright license could have terms like, "This license is irrevocable" (as the <a href="http://www.gnu.org/licenses/gpl.html">GPLv3 does</a>) or, "This license may be revoked under any of the following circumstances..." Absent any explicit language about revocability or irrevocability, what is the default rule for revoking a license?</p>
<p>I'm interested in copyright licenses that are granted publicly to anyone who wants them (e.g., how open source software licenses are typically granted), but also interested in the general rule, including licenses granted to specific parties.</p>
| 832 |
[
{
"answer_id": 837,
"body": "<p>Basically, if you own it you get a chance in 35 years to make changes. You must provide notice, date, 2-10 years before the date, and record the notice with the copyright office. Any derivative works during the time of the license continue to be licensed even after revocation.</p>\n\n<p>Companies that have a GPL and want to change it typically just increase the version number and change the license at that time. There, the new license applies to that version on, and the older versions stay with the GPL.</p>\n\n<hr>\n\n<p><a href=\"https://www.law.cornell.edu/uscode/text/17/203\">17 U.S.C. S203</a>:</p>\n\n<blockquote>\n <p>In the case of a grant executed by one author, termination of the grant may be effected by that author or, if the author is dead, by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author’s termination interest. [There are many conditions on if one person or another has rights.] . . . </p>\n \n <p>Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier. </p>\n \n <p>The termination shall be effected by serving an advance notice in writing, signed by the number and proportion of owners of termination interests required under clauses (1) and (2) of this subsection, or by their duly authorized agents, upon the grantee or the grantee’s successor in title. </p>\n \n <blockquote>\n <p>(A) The notice shall state the effective date of the termination, which shall fall within the five-year period specified by clause (3) of this subsection, and the notice shall be served not less than two or more than ten years before that date. A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect. </p>\n \n <p>(B) The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation. </p>\n </blockquote>\n \n <p>(5) Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant. </p>\n</blockquote>\n",
"score": 8
},
{
"answer_id": 88721,
"body": "<p>While the question assumes that irrevocability clauses are legally effective, it is sometimes suggested that even the GPL is a gratuitous licence which is revocable at will. For example, see:</p>\n<ul>\n<li><p>this <a href=\"https://softwareengineering.stackexchange.com/questions/209036/does-an-open-source-license-exist-that-allows-me-to-retain-rights-to-revoke-usag#209064\">Software Engineering Stack Exchange answer</a> (2013) citing an <a href=\"https://web.archive.org/web/20160312022558/http://www.ilaw.com.au/public/licencearticle.html\" rel=\"nofollow noreferrer\">article by an Australian lawyer</a> (2003)</p>\n</li>\n<li><p>this <a href=\"https://news.ycombinator.com/item?id=14556931\" rel=\"nofollow noreferrer\">Hacker News thread</a> (2017)</p>\n</li>\n<li><p>this <a href=\"https://hackaday.com/2018/09/27/can-you-take-back-open-source-code/\" rel=\"nofollow noreferrer\">Hackaday article</a> (2018) citing a <a href=\"https://lkml.org/lkml/2018/9/23/212\" rel=\"nofollow noreferrer\">post to the Linux Kernel Mailing list</a> (2018)</p>\n</li>\n</ul>\n<p>Andrew's answer confirms that in the U.S., even a licence which was paid for and agreed to be irrevocable can be revoked after 35 years. However, as explained in the comments, I am not sure if 17 U.S.C. § 203 prevents revocation of a gratuitous licence within 35 years. In any case, I am more interested in the law in Commonwealth countries.</p>\n<p>The most authoritative analysis I have been able to find is contained in Fitzgerald and Suzor, <a href=\"http://www.mulr.com.au/issues/29_2/29_2_3.pdf#page=26\" rel=\"nofollow noreferrer\">Legal issues for the use of free and open source software in government</a> (2005) 29(2) <em>Melbourne University Law Review</em> 412 at 437 (footnotes omitted):</p>\n<blockquote>\n<p>… a gratuitous licence can normally be revoked at will. This means that, in the case where one single entity controls a significant portion of the copyright in the source code for a free software package, that entity may be able to terminate the licence and users will no longer be entitled to copy or redistribute the software … <strong>In the event that a licence is revoked, it is likely that the doctrine of estoppel would prevent the copyright owner from asserting his or her rights.</strong> Equitable estoppel has been developed to prevent a person from unconscionably denying an expectation where they induce in another party (here the licensee) an assumption that a particular legal relationship exists between them, and that party subsequently acts, reasonably, in reliance upon that expectation. If a licensor releases software under a free software licence, they are essentially inviting others to perpetually use, reproduce, modify and distribute that software. If another person does in fact make use of the software, and the original licensor purports to revoke the licence (a departure clearly to that person’s detriment), the doctrine of equitable estoppel would arguably prevent the licensor from denying that the licence could not be revoked.</p>\n</blockquote>\n<p>The authors conclude that the issue is ultimately of more theoretical than practical concern:</p>\n<blockquote>\n<p>In practical terms, however, it would be hard for any single licensor to revoke a licence partially supporting a program — especially one which forms part of a large, distributed project … While revocation may be technically possible, it is unlikely to occur in the face of public opposition and a vigilant open source community. Regardless, as has been demonstrated over the last 12 months by the <em><a href=\"https://en.wikipedia.org/wiki/SCO_Group,_Inc._v._International_Business_Machines_Corp.\" rel=\"nofollow noreferrer\">SCO Group Inc v International Business Machines Corp</a></em> litigation, the developer community is more than willing to replace any code for which the licence has been revoked or that otherwise infringes copyright. For these reasons, the issue of revocability is much more a theoretical than a practical concern.</p>\n</blockquote>\n",
"score": 2
}
] |
[
"united-states",
"copyright",
"licensing"
] |
Why does the term "counsel" typically refer to barristers rather than solicitors?
| 0 |
https://law.stackexchange.com/questions/88666/why-does-the-term-counsel-typically-refer-to-barristers-rather-than-solicitors
|
CC BY-SA 4.0
|
<p>It seems arbitrary that it seems to conventionally refer to one rather than the other, but is actually even more confusing that it refers to barristers rather than solicitors when one typically seeks advice from a solicitor by consulting them for their opinion of the legal position, and not from a barrister. By the time to instruct a barrister to appear in court on one's behalf, it seems that one is largely clear on one's position already and has rather to <em>instruct</em> the barrister on what they wish for them to represent to the court, rather than to seek their <em>counsel</em>. So, what is the basis for this nomenclatural convention?</p>
| 88,666 |
[
{
"answer_id": 89934,
"body": "<p>The use of the word <em>counsel</em> for barristers has a long history. It was used in England before the modern legal profession developed.</p>\n<p>Baker, <a href=\"https://www.jstor.org/stable/4505317\" rel=\"nofollow noreferrer\">Counsellors and barristers: an historical study</a> (1969) traces <em>homo consiliarius</em> back to the 13th century <a href=\"https://en.wikipedia.org/wiki/Plea_rolls\" rel=\"nofollow noreferrer\">plea rolls</a>:</p>\n<blockquote>\n<p>The sum of [a pleader or counsellor's] functions may be termed "counselling" in its widest sense, and the subject of the present study must be what the plea rolls call <em>homo consiliarius</em>, the counsellor. Even this compendious name can mislead. It eventually became synonymous with "barrister," in the sense of "jurisconsult," while some of the counselling came in fact to be done by attorneys and solicitors.</p>\n</blockquote>\n<p>Sense 8(a) of <a href=\"https://www.oed.com/view/Entry/42604\" rel=\"nofollow noreferrer\">counsel (<em>n</em>.) in the OED</a> ("A body of legal advisers, engaged in the direction or conduct of a cause") is dated back to the <em><a href=\"https://en.wikipedia.org/wiki/Confessio_Amantis\" rel=\"nofollow noreferrer\">Confessio Amantis</a></em> (1393):</p>\n<blockquote>\n<p>Help, that I hadde counseil here<br>\nUpon the trouthe of my matere.</p>\n</blockquote>\n<p>Sense 8(b) ("A single legal adviser; a counsellor-at-law, advocate, or barrister") is first quoted in 1709, but seems also to cover sense 8(a)'s quotation of Greene's <a href=\"https://en.wikipedia.org/wiki/Coney-catching\" rel=\"nofollow noreferrer\">coney-catching</a> pamphlets (1591), by distinguishing between counsel and attorney:</p>\n<blockquote>\n<p>[He] hath his mind so full of cares to see his counsell and to plie his Atorney.</p>\n</blockquote>\n<p>As barristers came to replace the <a href=\"https://en.wikipedia.org/wiki/Serjeant-at-law\" rel=\"nofollow noreferrer\">serjeants at law</a>, the association of <em>counsel</em> with barristers may have become entrenched with the appointment of Sir Francis Bacon as the first <a href=\"https://en.wikipedia.org/wiki/King%27s_Counsel\" rel=\"nofollow noreferrer\">King's Counsel</a> (1603). According to Holdsworth, <a href=\"https://archive.org/details/historyofenglish06holduoft/page/472/mode/1up\" rel=\"nofollow noreferrer\">A history of English law</a> (1924), vol 6, p 472:</p>\n<blockquote>\n<p>It soon became clear that the king's attorney and solicitor could not by themselves do all the work which their office imposed upon them. It is to this cause that we must ascribe the rise of a body of "king's learned counsel," who are the ancestors of our modern king's counsel. It would seem from D'Ewes that a body of persons so designated was known at the very beginning of Elizabeth's reign [1558 – 1603].</p>\n</blockquote>\n",
"score": 3
},
{
"answer_id": 88682,
"body": "<h2>It doesn’t</h2>\n<p><a href=\"https://www.merriam-webster.com/dictionary/counsel\" rel=\"nofollow noreferrer\">Counsel</a> means a lawyer running a case <em>in court</em>. In jurisdictions with a solicitor-barrister split, these are most often barristers, however, the term is not exclusive to them. In a lower court case being run by a solicitor they could be called counsel, however, it’s far more likely they would be referred to by name.</p>\n<p>American usage is the same - a lawyer in court is a counsel or councillor.</p>\n",
"score": 2
}
] |
[
"england-and-wales",
"legal-terms",
"barristers"
] |
Spouse responsibly for deceased wife
| -1 |
https://law.stackexchange.com/questions/89935/spouse-responsibly-for-deceased-wife
|
CC BY-SA 4.0
|
<p>My wife recently passed in our home in Kansas. Am I responsible for her own medical bills and her own credit card debt</p>
| 89,935 |
[
{
"answer_id": 89937,
"body": "<p>In Kansas and other states that are not community property states, the sole debts of someone who dies are the responsibility of that person's probate estate, but are not the responsibility of their surviving spouse.</p>\n<p>So, with regard to the credit card debt, if the spouse did not co-sign the card or make purchases with the cars, the surviving spouse is not responsible for the debt beyond assets in the name of the decedent spouse in the spouse's probate estate (unless the "necessities doctrine applies).</p>\n<p>In the case of medical debt, if the surviving spouse was not a guarantor for the deceased spouse there should not be liability on that debt beyond the assets of the probate estate either. But Medicaid estate recovery claims also apply to <a href=\"http://www.kslegislature.org/li_2022/b2021_22/statute/016_000_0000_chapter/016_003_0000_article/016_003_0004_section/016_003_0004_k/\" rel=\"nofollow noreferrer\">certain assets owned by the decedent spouse</a> that would otherwise have passed outside of the probate estate with a beneficiary designation.</p>\n<p>Also as noted in <a href=\"https://law.stackexchange.com/questions/41844/is-a-surviving-spouse-responsible-for-the-medical-bills-of-the-deceased-spouse\">a 2019 answer at this site</a>:</p>\n<blockquote>\n<p>Kansas recognizes the doctrine of necessaries, under which a spouse\ncan be held liable when the other spouse obtains necessary items, like\nfood or medical care, on credit.</p>\n<p>See also St. Francis Regional Med. Center, Inc. v. Bowles for support\nthat the doctrine survives in Kansas.</p>\n</blockquote>\n",
"score": 1
}
] |
[
"debt"
] |
Renting a car to a friend
| -1 |
https://law.stackexchange.com/questions/89845/renting-a-car-to-a-friend
|
CC BY-SA 4.0
|
<p>Lets say there is a person who wants to rent his car out to his friend for a month In the United States and In Pennsylvania . He calls up the insurance company and lets them know his friend should be driving the car for a month. He then collects money for rent each month from his friend. He does this for several months. Then the friend gets in a car crash.</p>
<p>Who is held responsible for the damages caused in the crash? or would it depend on the insurance policy? Was it insurance fraud to rent the car out to the friend? or would that also depend on the insurance policy?</p>
<p>If it depends on the insurance policy then please base your answer on what the most standard car insurance policy looks like.</p>
| 89,845 |
[
{
"answer_id": 89852,
"body": "<p>This is tricky. In the UK, your "normal" car insurance covers private usage. That includes driving to work, driving on a private holiday to southern spain, lending your car to a friend who drives it for private use.</p>\n<p>Commercial use is not covered (you can get insurance for commercial use which is substantially more expense). That's what an Uber driver would need, for example. If you <em>rent</em> your car to a friend, not lend it for free, <em>and</em> the accident is expensive, your insurance may very well refuse to pay.</p>\n<p>It could be insurance fraud if you asked the insurance to pay for the accident, and you didn't tell them truthfully who was driving, and if you told them you didn't tell them that you rented your car out.</p>\n<p>Your "friend" may be guilty of driving without insurance, if the insurance doesn't cover him. That would in the UK be very expensive for your friend, and could cost them their driving license. You may be guilty of defrauding your friend who obviously expects to be insured.</p>\n<p>On top of everything else, surely you told HMRC (or Inland Revenue, or Finanzamt, depending on where you are) of your income and paid income tax, right? Because if you don't that can be more trouble for you. Plus I have no idea what legal obligations car rental companies have.</p>\n<p>Unless you have in writing from your insurance company that it is Ok to rent your car to a friend, and that your friend is insured, don't do it.</p>\n",
"score": 2
},
{
"answer_id": 89936,
"body": "<blockquote>\n<p>Lets say there is a person who wants to rent his car out to his friend\nfor a month In the United States and In Pennsylvania. He calls up the\ninsurance company and lets them know his friend should be driving the\ncar for a month. He then collects money for rent each month from his\nfriend. He does this for several months. Then the friend gets in a car\ncrash.</p>\n<p>Was it insurance fraud to rent the car out to the friend?</p>\n</blockquote>\n<p>No. If you told the insurance company what was going on, by definition, you did not defraud them. Fraud means lying about something or concealing something from someone. Nobody did that.</p>\n<p>But, you may have violated the state law that requires you to have car insurance in force on the people driving your car up to certain dollar amounts, because you don't say what happened after the call with the insurance company to let them know this was being done.</p>\n<blockquote>\n<p>Who is held responsible for the damages caused in the crash?</p>\n</blockquote>\n<p>The driver of the car is always responsible for the damages caused in the crash by the driver's negligence (except in cases covered by Pennsylvania's "choice" no fault system discussed below). The injured person has to sue the driver not the insurance company (sometimes an owner of a car will also be responsible, but almost never an insurance company, except in the rare cases where the driver is insured but dies before being sued and has a closed probate estate).</p>\n<p>The question is whether the driver is insured or uninsured for liability that is primarily the driver's responsibility, and if the driver is uninsured, what impact that has on the owner of the car.</p>\n<p>Of course, if the accident is another driver's fault, your injured renter and companions can sue the at fault driver, and you can sue the at fault driver for the damage to the car that you owned (subject to no fault insurance considerations discussed at the end of this answer). You and/or the driver might get a ticket for being uninsured if either of you are uninsured, however.</p>\n<p>The owner of the vehicle is, at a minimum, responsible for making sure that the vehicle and the driver have the state required insurance policies in place covering the vehicle and the driver.</p>\n<p><strong>Normally, if you contact the insurance company in advance, they would modify the insurance policy to provide additional coverage to this rental driver in this vehicle for an additional charge (which you can pay for with part of the money paid to rent the vehicle). The policy would have to be modified because usually a non-commercial automobile insurance policy will expressly exclude from coverage insurance on driver's who are renting your vehicles. This is what should happen.</strong></p>\n<p>For example, if your car is part of a car sharing program, usually it is necessary to get special additional insurance policies to do this.</p>\n<p>Normally, people who rent cars can allow the driver to waive insurance from them if the driver has car insurance of the driver's own that covers their limited use of a rental car instead of the car car that the driver owns and usually uses (which is common, but is sometimes not a part of a bare bones car insurance policy), and if they also sign a form waiving coverage (which is usually required by state law).</p>\n<p>If you rent your car to someone without having insurance coverage in place on the rental driver from either you or the driver, then you are violating state law by having an uninsured motorist. This violation, in addition to being punishable with a fine and maybe even a comparatively minor criminal incarceration sentence, also would usually make the car owner vicariously liable for any liability that the driver incurs in an accident (which would not be covered by the car owner's insurance policy).</p>\n<p>Pennsylvania recognizes a cause of action for <a href=\"https://www.dhdlaw.com/may-entitled-sue-car-owner-accident/\" rel=\"nofollow noreferrer\">negligent entrustment</a> (see also <a href=\"https://www.theparrishlawfirm.com/faqs/who-is-liable-in-a-car-accident-the-owner-or-driver/\" rel=\"nofollow noreferrer\">here</a>) of your car in the hands of someone who owns the vehicle who you have reason to know is likely to get into an accidents (e.g. the driver has a suspended license or a history of drunk driving), but does not have general car own liability.</p>\n<p>If both the car owner ands the driver have insurance that covers the accident (because the car owner's insurance covers accidents involving a rental driver), then <a href=\"https://www.theparrishlawfirm.com/faqs/who-is-liable-in-a-car-accident-the-owner-or-driver/\" rel=\"nofollow noreferrer\">the car owner's insurance pays first and the renter's insurance pays second</a> if the car owner's insurance limits are exhausted.</p>\n<p>If the driver did have insurance in an amount required by law and the owner did not have insurance in place, and the limits of liability were exceeded, the driver would still definitely be liable for the excess liability, but the owner would not.</p>\n<p>All of the above is predicated on the assumption of a "fault based" insurance system, but Pennsylvania has <a href=\"https://www.nolo.com/legal-encyclopedia/pennsylvania-car-accident-laws.html\" rel=\"nofollow noreferrer\">a hybrid system</a> that is a mix of fault based and no fault car insurance.</p>\n<blockquote>\n<p>Pennsylvania is a "choice" no-fault car insurance state. That means,\nif you choose no-fault coverage when you purchase a car insurance\npolicy, after a car accident you typically need to file a claim under\nyour own personal injury protection coverage to get compensation for\nmedical bills and other financial losses, regardless of who caused the\ncrash. Only if your injuries are serious enough can you step outside\nof no-fault and bring a claim directly against the at-fault driver.</p>\n</blockquote>\n<p>If the driver has no fault insurance and is insured, the driver goes to the driver's own insurance company for the driver's injuries and damages to the car, rather than suing the at fault driver, in a minor accident. Likewise, if the driver hits someone else and is at fault, but the person hit has no fault automobile insurance, the driver and the car owner won't be sued.</p>\n",
"score": 1
},
{
"answer_id": 89854,
"body": "<p><a href=\"/questions/tagged/australia\" class=\"post-tag\" title=\"show questions tagged 'australia'\" aria-label=\"show questions tagged 'australia'\" rel=\"tag\" aria-labelledby=\"tag-australia-tooltip-container\">australia</a></p>\n<h2>Liability for injury</h2>\n<p>Every state and territory in Australia runs a no fault insurance scheme for personal injury. That means, no matter who is at fault, the medical, rehabilitation, and lifetime care and support of anyone and everyone who was injured is covered.</p>\n<p>A motor vehicle cannot be registered unless and until this insurance policy is paid. Notwithstanding, the scheme still covers uninsured vehicles and collisions where the vehicle involved isn’t identified, that is, hit and runs.</p>\n<p>This has been the system for more than 20 years and it is far cheaper and leads to better outcomes than suing each other.</p>\n<p>Insurance premiums are higher for commercial rather than private vehicles so paying for the latter but doing the former is subject to fines but it doesn’t invalidate the insurance.</p>\n<h2>Liability for property and other damage</h2>\n<p>The at fault driver of the car is liable. In addition, if the driver is an agent of the owner (e.g. an employee), the owner is also liable. Contributory negligence rules apply where more than one driver (or pedestrian, cyclist etc.) is at fault.</p>\n<p>Whether an insurance policy will respond to indemnify the driver/owner depends of the policy.</p>\n<p>In general, auto insurance companies in Australia operate on a knock-for-knock basis and don’t bother trying to work out which driver was liable. The way this works is that if two insured vehicles collide, each insurer will repair their own and split the costs of any third party damage. In aggregate, they figure it all balances out in the wash and is cheaper than hiring lawyers to sue each other.</p>\n",
"score": 0
}
] |
[
"rent",
"accident",
"car",
"car-insurance",
"car-title"
] |
Why are barristers in England and Wales not officers of the court?
| 4 |
https://law.stackexchange.com/questions/87358/why-are-barristers-in-england-and-wales-not-officers-of-the-court
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CC BY-SA 4.0
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<p>In <em>Assaubayev v Michael Wilson & Partners Ltd</em> <a href="https://www.bailii.org/ew/cases/EWCA/Civ/2014/1491.html" rel="nofollow noreferrer">[2014] EWCA Civ 1491</a>, in a discussion about the court's supervisory jurisdiction over solicitors, Christopher Clarke LJ said [32]:</p>
<blockquote>
<p>Those who appear before the Court but who are not, and do not purport, to be, solicitors or recognised bodies, do not come within the jurisdiction. <strong>The most obvious example is barristers. They owe duties to the Court but are not subject to the jurisdiction of the Court over its officers, which they are not.</strong> All those who appear before the Court, whether lawyers, litigants, witnesses or watchers of proceedings may, of course, face the sanction of contempt if they misbehave … But neither contempt nor criminal conduct of itself brings them within the supervisory jurisdiction.</p>
</blockquote>
<p>To my knowledge, the term <a href="https://en.wikipedia.org/wiki/Officer_of_the_court" rel="nofollow noreferrer">officer of the court</a> is understood differently in the rest of the common law world, and would invariably include a person practising in the manner of a barrister – that is, a qualified lawyer appearing for a client as an advocate in court.</p>
<p>For example, the <em>Legal Profession Uniform Law</em> that applies in New South Wales, Victoria and Western Australia <a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-2014-16a#sec.25" rel="nofollow noreferrer">provides</a> that an Australian lawyer (which includes barristers and solicitors) is an officer of the Supreme Court of the relevant jurisdiction.</p>
<p>Is England and Wales the only jurisdiction where barristers are not considered to be officers of the court? What are the historical reasons for this? Are there any practical consequences?</p>
| 87,358 |
[
{
"answer_id": 87488,
"body": "<p>The following is my attempt at the question after a very brief historical research. The history of the court system and of the regulation of legal professions in English is just... chaotic until late 19th century, so there will be many points that are incorrect or can be more precise below.</p>\n<p>At the advent of legal system, <em>advocacy</em> was a different from <em>representation</em>. Barristers advocate at the bar under instruction; attorneys and solicitors represent their clients. At their roots, attorney means one appointed as an agent (e.g. power of attorney = power to act on behalf of someone), and solicitors are called solicitors because they solicit causes on behalf of a client.</p>\n<p><a href=\"https://en.wikipedia.org/wiki/Champerty_and_maintenance\" rel=\"nofollow noreferrer\">Champerty and maintenance</a>, or the encouragement of disputes by non-affected parties, were and remain (though with various modifications) in several jurisdictions illegal or contrary to public policy. The profession of lawyers, who are not parties to a dispute, is also concerned, even today (e.g. the controversy about contingency fees). Barristers were the original men who were learnt at (English) law and the King allowed them to give counsel as their profession against payment without being found guilty of maintenance or champerty. It was only in 1967 that a person other than a barrister may represent another person in a litigation before a court (although various exceptions existed) in England. At the same time, barristers considered themselves learnt men who should not practice laws only for the fees, but for the advancement of public good and justice; this is also why the lawyer fees are still sometimes called honorarium.</p>\n<p>Attorneys and solicitors were not originally persons who learnt law "properly", at least in the eyes of the Inns, and could not represent their clients before a court without violating the prohibition against maintenance, as law was not their profession.</p>\n<p>The high fees and limited number of barristers, as well as the explosion of commercial and industrial activities, made it attractive for people to consult "lesser" legal practitioners, such as those who were in the business of <em>soliciting</em> (acting as an agent in) causes for a master (e.g. instructing a barrister on behalf of a client). The Inns of barristers were not very happy about it; it should be noted that Inns are professional guilds that have an interest in having a monopoly over their profession (much like the case of many professions, including legal ones, in modern times).</p>\n<p>But non-barrister legal practitioners became commonplace anyway and the regulation of these non-barristers became necessary. While initially solicitors were not seen as independent professional advocates, a limited right of audience was gradually granted.</p>\n<p>As the regulation becomes necessary to protect the public, attorneys in common law courts, and solicitors in equity courts, were given the privilege of practicing the law in limited form by the courts themselves. An attorney or a solicitor was sworn and accredited as an officer of their respective court by a judge, whose court controlled the legal practitioners (other than barristers) in their court and regulated them in absence of royal or statutory intervention.</p>\n<p>The courts maintained rolls of admitted attorneys and solicitors, which still exist today. The Roll of solicitors (the profession most attorneys were absorbed into) is now maintained by the Solicitors Regulation Authority (originally by the Master of the Rolls in the Chancery court, then by the Law Society, then by the SRA).</p>\n<p>In England and Wales, solicitors today are subject to statutory regulations under the various <a href=\"https://en.wikipedia.org/wiki/Solicitors_Act\" rel=\"nofollow noreferrer\">Solicitors Acts</a> (notably the 1974 one). They are statutorily officers of the Senior Courts who retain disciplinary power over the solicitors admitted to practice before them.</p>\n<p>Barristers on the other hand are mostly self-regulated by the Inns. Although the regulation of barristers now has a statutory basis and subject to public supervision (from the Courts and Legal Services Act 1990 to Legal Services Act 2007), they are not as extensively subject to rules set by the Parliament or government as solicitors.</p>\n<hr />\n<p>To summarize, the barristers always had the "vibe" of being the learnt men (and now persons of all genders) of law who are independent, honourable and capable of self-regulation, while the profession of solicitors developed from mostly unregulated legal service agents, who were eventually regulated at the motion of the courts in the way of requiring them to be sworn as officers of the courts (such to give the courts disciplinary powers over them).</p>\n<p>With the development of modern legal system, the distinction between barristers and legal professions has become less clear in some jurisdictions and ceased to be relevant at all in others.</p>\n<p>As to the reason why the distinction is still so much more pronounced in the UK than elsewhere. I would guess the following. The legal, justice and judicial systems in the colonies benefited from the fact everything was started from the beginning, without historical baggage of the several different English courts which were not consolidated until 1870s. And it is also easier to never afford such privileges in the first place, or to take them away without the historical baggage, than to take away existing privileges with historical claims in England. The general anti aristocratic attitudes in colonies probably also restricted the rather elitist tendency of the likes of the Inns of barristers. The governments were more willing to regulate the legal profession in its state capacity.</p>\n<hr />\n<p>The articles <a href=\"https://www.jstor.org/stable/4505317\" rel=\"nofollow noreferrer\">Counsellors and Barristers. An Historical Study</a>, <a href=\"https://www.jstor.org/stable/4505640\" rel=\"nofollow noreferrer\">Solicitors and the Law of Maintenance 1590-1640</a>, and the book <a href=\"https://academic.oup.com/book/34968/chapter/298610707\" rel=\"nofollow noreferrer\">Introduction to English Legal History</a> (chapter 10), were particularly helpful during my research.</p>\n",
"score": 3
},
{
"answer_id": 89933,
"body": "<p>Holdsworth, <a href=\"https://archive.org/details/historyofenglish06holduoft/page/434/mode/1up\" rel=\"nofollow noreferrer\">A history of English law, Volume VI</a> (1924), p 434, on the historical reasons for this distinction:</p>\n<blockquote>\n<p>The mode of the appointment of the barristers and attorneys was quite different. In the case of the barrister the judges had delegated to the Inns of Court the power of admitting their members to practise in the courts. They accepted those whom the benchers called to the bar of the Inn. On the other hand, the attorney was admitted directly by the judges of the court in which he sought to practise …</p>\n<p>The mediaeval statutes, which regulated professional attorneys, had given the judges power to control as well as to admit them. This control increased in stringency all through this period. Orders of the courts provided for their examination before admission, and for their conduct after admission. The cases show that the courts were ready to act with severity, even to the throwing an attorney over the bar, in a case of grave misconduct …</p>\n<p>The barrister, on the other hand, was in no sense an officer of the court, and was much less directly under its control. It is true that he could be disbarred either by the benchers of his Inn, or by the Court for unprofessional conduct, and in this period for professional incapacity. But he was not so strictly controlled by the orders of the judges; and no statute of this period attempted any regulation. He was much more directly under the control of his Inn of Court who called him to the bar, who made him Reader and finally bencher, and thus qualified him for promotion to the ranks of the Serjeants and the judges.</p>\n</blockquote>\n",
"score": 1
}
] |
[
"england-and-wales",
"legal-history",
"barristers"
] |
Even when English law lets suspects to remain silent, when ought Suspect choose to talk to the police without a lawyer?
| 0 |
https://law.stackexchange.com/questions/89897/even-when-english-law-lets-suspects-to-remain-silent-when-ought-suspect-choose
|
CC BY-SA 4.0
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<p>Presuppose that at the time of stating something to the police, no lawyer represents Suspect, and English law lets suspects exercise the qualified right to silence. <a href="https://law.stackexchange.com/a/75315">Unlike in USA</a>, in England,</p>
<blockquote>
<p><a href="https://yjlc.uk/resources/legal-terms-z/adverse-inferences" rel="nofollow noreferrer">Where a defendant fails to mention any fact when questioned under caution, that they later relies on in their defence in those proceedings, a court or a jury can draw an adverse inference when deciding upon the guilt of the defendant.</a></p>
</blockquote>
<p>No space here to quote Reeds Solicitors LLP's whole article on <em>Adverse Inferences and Remaining Silent</em>!</p>
<blockquote>
<p><a href="https://www.reeds.co.uk/insight/legal-guidance-adverse-inferences" rel="nofollow noreferrer">Many of us know about the ‘right to remain silent’ when speaking with the authorities. Though in some circumstances, remaining silent can have a negative impact on your case. This is where your silence can lead the court to draw an ‘adverse inference’ (i.e. a negative conclusion or understanding of the person’s position).</a></p>
</blockquote>
<h4>1. To <a href="https://en.wikipedia.org/wiki/Anti-proverb" rel="nofollow noreferrer">anti-proverb</a> <a href="https://www.georgiacriminallawyer.com/never-speak-to-the-police" rel="nofollow noreferrer">SCOTUS Justice Robert Jackson's proverb in <em>Watts v. Indiana</em> 338 U.S. 49 (1949)</a>, when would a lawyer worth his salt tell Suspect in certain terms to state something to the police?</h4>
<h3>2. For instance, to avoid adverse inferences?</h3>
<p>Stating basic biographical facts, like your name + date of birth, to the police appears hurtless? By way of comparison,</p>
<blockquote>
<p><a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/geneva-convention-relative-treatment-prisoners-war" rel="nofollow noreferrer">Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information.</a></p>
</blockquote>
<h2>3. As Article 17 of the Geneva Convention require PoW's to state their names + date of birth, then how can stating these to police harm Suspect? If even names + date of birth ought be kept silent, then Article 17 of the Geneva Convention would not require their disclosure!</h2>
<p>There is a logical contradiction between prisoners' being "bound to give only his" names + date of birth to an enemy, but not suspects to police. Even if suspect doesn't state them, the police can suss out these two basic biographical facts themselves.</p>
<p>Obviously, I am NOT referring to circumstances when English law requires suspects to speak to police, like</p>
<ul>
<li><p><a href="https://law.stackexchange.com/a/56142">"give the officer or servant his name and address" in section 5(1) of the Regulation of Railways Act 1889</a>, or</p>
</li>
<li><p><a href="https://law.stackexchange.com/a/80">"produce his licence for examination, so as to enable the constable or vehicle examiner to ascertain the name and address of the holder of the licence, the date of issue, and the authority by which it was issued" in section (1)(d) of the Road Traffic Act 1988.</a></p>
</li>
</ul>
| 89,897 |
[
{
"answer_id": 89900,
"body": "<h2>When the individual makes the assessment that being silent will be more damaging than speaking</h2>\n<p>This depends on so many circumstances that it is impossible to state more than that.</p>\n",
"score": 0
},
{
"answer_id": 89905,
"body": "<p>Only to say they will not be speaking to the cops without their lawyer. At this stage, any statements you make can only be used to hurt your case, so it's best to shut up and lawyer up.</p>\n",
"score": 0
}
] |
[
"england-and-wales",
"never-talk-to-police"
] |
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