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How many times must a warrantied product be replaced?
| 1 |
https://law.stackexchange.com/questions/88256/how-many-times-must-a-warrantied-product-be-replaced
|
CC BY-SA 4.0
|
<p>I bought a pair of boots in the US. They were advertised as being waterproof, but after some [reasonable] use they ceased to be waterproof. I called the company, and their response was basically:</p>
<blockquote>
<p>The boots should have been waterproof, they weren't. We're sorry, we'll give you a brand new pair.</p>
</blockquote>
<p>They kept their word and replaced the boots. The new ones, so far, are waterproof and they have retained a happy customer with dry feet. But all this leads me to wonder. If it was a manufacturing defect in my original pair that caused them to fail then it's completely likely these new ones will remain waterproof for the remainder of the warranty period. When they eventually fail, I'd just buy a new pair.</p>
<p>But what if the boots failed because the design of the boots is not good enough to stay waterproof for the whole warranty period? If these new boots fail within the original warranty period should I expect another replacement? As a general rule, is a company who warranties their product responsible for making it right for the entire warranty period even if that means multiple replacements?</p>
| 88,256 |
[
{
"answer_id": 88288,
"body": "<p>It depends on what the warranty says. For example, <a href=\"https://www.nike.com/help/a/shoe-warranty\" rel=\"nofollow noreferrer\">here</a> is a shoe warranty (actually, it's a manufacturer's statement about their warranty), then</p>\n<blockquote>\n<p>If you believe your item is flawed, and it’s within 60 days of your\npurchase, you can simply return it to us for a full refund.</p>\n</blockquote>\n<p>They also note that if you want an exchange, you have to talk to them. This avoids the infinite regress of warranty claims and exchanges. The term of the warranty is is time-limited: "within two years of the manufacture date". The simple return solution is limited to 60 days from data of purchase (that's what they say). They also say</p>\n<blockquote>\n<p>If it’s been longer than 60 days, and less than two years since the\nmanufacture date (located on the item’s tag), and the item has\ndeveloped a flaw, here's what you need to do...</p>\n</blockquote>\n<p>i.e. discovered more that 60 days from purchase, less that 2 years from manufacture.</p>\n<p>You can straightforwardly get a refund within 60 days of purchase, as long as the goods haven't been sitting on the shelf for a couple of years. If you want an exchange, then we actually do not know, because all exchanges are on a "contact us" basis, and the exchange may come with a different warranty. Sure, you might be able to argue in court that advertising the shoes as "waterproof" when they are clearly not waterproof is deceptive advertising (against the law), but this is not an issue of warranty law. As far as warranty law is concerned, the terms of the warranty are whatever you see in the warranty. There is no requirement that a product be replaced under the <em>same</em> terms as the initial purchase.</p>\n",
"score": 1
}
] |
[
"united-states",
"warranties"
] |
Is an NDA binding for sex workers or escorts?
| 1 |
https://law.stackexchange.com/questions/89244/is-an-nda-binding-for-sex-workers-or-escorts
|
CC BY-SA 4.0
|
<p>I have heard of some sex workers or escorts signing a non disclosure agreement with the person who is hiring them. Or their agency already has a policy in place. Since paying for sex isn't legal in Canada, would such policies or NDAs be enforceable? For example would it be breach of contract if a escort signed an NDA then told her friends she slept with you?</p>
<p>Charlie Sheen had <a href="https://www.intouchweekly.com/wp-content/uploads/2015/11/charlie-sheen-non-disclosure01.jpg?fit=600%2C791&quality=86&strip=all" rel="nofollow noreferrer">this NDA</a> but I don't think money was involved, and I'm not sure if it was considered enforceable anyway.</p>
| 89,244 |
[
{
"answer_id": 89255,
"body": "<h2>If correctly structured, probably</h2>\n<p>First, there is no issue with escorts in Canada. If you are in Toronto and need a plus one for the big gala dinner, you can hire a date provided sexual gratification is not part of the deal. An NDA as part of that sort of contract would be fine.</p>\n<p>Similarly, in jurisdictions where sex work is legal, there’s also no problem.</p>\n<p>So, we will just focus on contracts where one of the fundamental obligations involves an illegality. This doesn’t have to be prostitution, it could be a contract for murder, or the supply of illicit drugs, or the supply of unpasteurised milk.</p>\n<p><strong>One of the requirements for a valid contract is legality of objects.</strong> A contract for an illegal purpose is void. See <a href=\"https://law.stackexchange.com/questions/6263/what-is-a-contract-and-what-is-required-for-them-to-be-valid\">What is a contract and what is required for them to be valid?</a></p>\n<p>Therefore, an NDA that was a term of such a contract is also void.</p>\n<p>However, an NDA that was a separate contract, even a collateral contract, would be enforceable because NDAs do not have illegal objects.</p>\n<p>This can probably best be illustrated by an example. Let's imagine there is an establishment where people can go for food, drink, entertainment, and socialise - we'll call it the club. As part of the contract for using the club or being an employee or supplier to the club or its patrons, there is an NDA not to reveal anything that happens in or is associated with the club. There is no reason to believe that this NDA would not be a valid and enforceable contract - subject to the normal laws that limit such agreements.</p>\n<p>Now, if visitors entered other agreements that were void, with each other or with the club - such as for the supply of sex or illegal drugs - this would not, on its own invalidate the NDA contained in the other contract.</p>\n<p>If a court decided that the whole operation was a sham and that the club was merely a front for a brothel, they may find the original contract is void as being against public policy or, it quite likely may be an irrelevancy, because people engaged in a joint criminal enterprise have very few rights against one another anyway. However, if the club is primarily a legitimate business, then there would be no reason to impugn the original contract.</p>\n",
"score": 4
}
] |
[
"canada",
"non-disclosure",
"enforceability"
] |
Is there any legal maximum amount of time that a bank may take to refund a customer's account following a failed wire transfer?
| 0 |
https://law.stackexchange.com/questions/89296/is-there-any-legal-maximum-amount-of-time-that-a-bank-may-take-to-refund-a-custo
|
CC BY-SA 4.0
|
<p>Wire transfers sometimes <a href="https://money.stackexchange.com/q/155051/5656">fail</a>. Is there any legal maximum amount of time that a bank may take to refund a customer's account following a failed wire transfer?</p>
<p>I'm interested in the following jurisdictions: France, Lithuania and USA (WA state).</p>
<hr />
<p>Example of failed wire transfer:</p>
<p><a href="https://i.stack.imgur.com/ndSc9.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/ndSc9.png" height="400" alt="IMG: " title=""></a></p>
| 89,296 |
[
{
"answer_id": 89297,
"body": "<p><a href=\"https://app.leg.wa.gov/rcw/default.aspx?Cite=19.230&full=true#19.230.330\" rel=\"nofollow noreferrer\">RCW 19.230.330(3)</a> says that</p>\n<blockquote>\n<p>Every money transmitter licensee and its authorized delegates shall\nrefund to the customer all moneys received for transmittal <strong>within ten\ndays of receipt of a written request</strong> for a refund unless any of the\nfollowing occurs:</p>\n<p>(a) The moneys have been transmitted and delivered to the person\ndesignated by the customer prior to receipt of the written request for\na refund;</p>\n<p>(b) Instructions have been given committing an equivalent amount of\nmoney to the person designated by the customer prior to receipt of a\nwritten request for a refund;</p>\n<p>(c) The licensee or its authorized delegate has reason to believe that\na crime has occurred, is occurring, or may potentially occur as a\nresult of transmitting the money as requested by the customer or\nrefunding the money as requested by the customer; or</p>\n<p>(d) The licensee is otherwise barred by law from making a refund.</p>\n</blockquote>\n<p>I expect that the software is not written to guess whether a customer is in Washington state, so it may be necessary to alert them to the subtleties of Washington law. When you formally submit the request for refund, you could point to that provision. They may in turn point to clause (c). This law does not create a private action, so you would have to file a complaint with the AG.</p>\n",
"score": 1
}
] |
[
"united-states",
"consumer-protection",
"finance",
"france",
"lithuania"
] |
Have a child but reduce the risk of child support
| -3 |
https://law.stackexchange.com/questions/89286/have-a-child-but-reduce-the-risk-of-child-support
|
CC BY-SA 4.0
|
<p>Lets say a Man and a Women agree to have a child. But the Man want's to make sure that before they have a child the man is granted full custody over the child and that the women can never file for child support.</p>
<p>Isn't this already kind of done in practice by sperm donors or women that birth a baby for a couple that cannot conceive?</p>
<p>Can this be done via a contract and maybe a NDA?</p>
| 89,286 |
[
{
"answer_id": 89291,
"body": "<h2>No</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=\"australia-container\">australia</a></p>\n<p>You seem to be labouring under the misaprehention that the male and female parents are the only people involved and only their needs and desires are relevant.</p>\n<p>Child support, as the name implies, is for the support of the <strong>child</strong>. The law is that that <a href=\"https://guides.dss.gov.au/child-support-guide/2/1/3\" rel=\"nofollow noreferrer\">parents</a> are responsible for the wellbeing of the child and, barring of removal of the child by the state, this is not an obligation they can avoid.</p>\n",
"score": 4
},
{
"answer_id": 89287,
"body": "<p>No.</p>\n<p>This cannot be done in U.S. law, subject to the exception discussed below.</p>\n<p>Some states authorize a sperm donor arrangement with this effect (and somewhat similar surrogacy contracts), but sperm donor arrangements and <a href=\"https://www.americanbar.org/groups/family_law/publications/family-advocate/2019/summer/assisted-reproductive-technology-law-10-faqs/\" rel=\"nofollow noreferrer\">surrogacy arrangements</a> generally require the arrangement to be done within a state statute authorized safe harbor and generally involve artificial insemination or implantation of a fertilized egg in the woman.</p>\n<p>Similarly, in Canada, one must come within the scope of the <a href=\"https://laws-lois.justice.gc.ca/eng/acts/a-13.4/\" rel=\"nofollow noreferrer\">Assisted Human Reproduction Act</a> for something along these lines to be permitted.</p>\n",
"score": 2
}
] |
[
"contract-law",
"divorce",
"non-disclosure",
"child-support",
"custody"
] |
Can I record myself cooking on camera, in the kitchen community space of the house that I rent a room at, and not be in violation of 9.73.030?
| 1 |
https://law.stackexchange.com/questions/57201/can-i-record-myself-cooking-on-camera-in-the-kitchen-community-space-of-the-hou
|
CC BY-SA 4.0
|
<p>I rent a room with a few other housemates, and I was wondering if I can record myself in the kitchen cooking and not be in violation of 9.73.030.</p>
<p>I understand that Washington State is a two party consent state, and that it would be a violation of 9.73.030 to record audio or a private conversation of a person without the consent of everyone involved.</p>
<p>However, if I am making a cooking video in the kitchen for say YouTube, and someone wants to use the kitchen before I am done with it, and they attempt to have a conversation with me, would that be a violation of 9.73.030?</p>
<p>Ultimately, would it be a crime to record cooking videos in the community space of where I live, without the consent of other people?</p>
| 57,201 |
[
{
"answer_id": 57210,
"body": "<p>As is often the case with the recording statutes, the meaning of the law is refined by case law. Specifically, the consent requirement holds when the parties have a reasonable expectation of privacy. The statutory language limits the restriction to "private communication": therefore, a person does not gain veto power over a public recording session simply by walking into the arena. Consent is implied when the fact of recording is self evident (you can see the operating recording device): by continuing to speak knowing that your speech is being recorded is implicit consent. Also, consent is only required for participants in the communication, and a person who happens to wander into the scene is not a participant in that communication.</p>\n<p>You may not want to test the edges of the law, in case a person wanders into the scene oblivious to their surroundings and talking on their cell phone. There might be a scenario where you're recording yourself but they are <em>unaware</em> of that fact, and they are having another private communication. The law does not prohibit accidentally overhearing someone else's private communication, it prohibits <em>recording</em> it. An unavoidable sign may aid you in your quest to not get sued.</p>\n",
"score": 5
}
] |
[
"criminal-law",
"recording",
"washington"
] |
Why do adjectives sometimes follow nouns in legal phrases?
| 0 |
https://law.stackexchange.com/questions/89280/why-do-adjectives-sometimes-follow-nouns-in-legal-phrases
|
CC BY-SA 4.0
|
<p>For example, consider the phrase "bodies corporate." Would the more natural English construction not simply be "corporate bodies"?</p>
<p>Why is the former form so often used?</p>
| 89,280 |
[
{
"answer_id": 89283,
"body": "<blockquote>\n<p>The postpositive adjectives in many legal noun phrases in English—attorney general, fee simple—are a heritage from Law French.</p>\n<p><a href=\"https://en.wikipedia.org/wiki/Law_French\" rel=\"nofollow noreferrer\">Source</a></p>\n</blockquote>\n<p>See also the <a href=\"https://en.wikipedia.org/wiki/Norman_Conquest\" rel=\"nofollow noreferrer\">Norman Conquest</a> of England</p>\n<p>And also see <a href=\"https://www.legislation.gov.uk/ukpga/2005/15/section/69?timeline=false\" rel=\"nofollow noreferrer\">section 69</a> SOCPA2005, specifically at s.69(3)(a) and s.69(4)(a), for the use of "<em>body corporate</em>" in <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> legislation.</p>\n",
"score": 3
}
] |
[
"united-kingdom",
"legal-terms",
"legal-history"
] |
FTCA and US Abortion
| 1 |
https://law.stackexchange.com/questions/89243/ftca-and-us-abortion
|
CC BY-SA 4.0
|
<p><a href="https://www.plannedparenthoodaction.org/issues/abortion" rel="nofollow noreferrer">Planned Parenthood's major point</a> against abortion bans has been the mother's health. Specifically, where pregnancy could risk an early-pregnancy death of both the kid and the mother.</p>
<p>If a mother was not able to get an abortion, and both died in, say, a federal hospital (like a VA hospital), could you sue the Federal Government under the Federal Tort Claims Act (FTCA) for negligence even if there was a local/state abortion ban in place?</p>
| 89,243 |
[
{
"answer_id": 89246,
"body": "<p>The Federal Tort Claims Act provides a limited waiver of of federal sovereign immunity for certain claims, among them, negligence in the provision of medical services by health care providers at certain federal health care facilities (i.e. for certain medical malpractice cases).</p>\n<p>A claim for medical malpractice asserts that a health care provider failed to use reasonable care in a manner consistent with care that a reasonable ordinary practitioners of the type of medical profession in which they performed their services should perform, causing harm to a patient.</p>\n<p>What constitutes reasonable care for a medical practitioner is judged in the context of the law that applies to the place where the medical practitioner is practicing their profession.</p>\n<p>Usually, that standard of care is governed by state law, and a failure to provide medical care that is illegal under state law will generally not constitute medical malpractice. In particular, the <a href=\"https://www.justice.gov/archives/jm/criminal-resource-manual-667-assimilative-crimes-act-18-usc-13f%20Congress\" rel=\"nofollow noreferrer\">Assimilative Crimes Act</a>, 18 U.S.C. § 13, makes state law crimes applicable to conduct occurring on lands reserved or acquired by the Federal government as provided in 18 U.S.C. § 7(3), when the act or omission is not made punishable by an enactment of Congress, by incorporating those crimes by reference into federal law as federal crimes.</p>\n<p>So, a state law criminalizing abortion in a state where a federal facility is located would also be a federal crime which would be enforceable by federal prosecutors and would cabin the standard of care for health care in a state, unless the Department of Justice clearly stated an express policy not to enforce that statute. There are nuances to how the Assimilative Crimes Act applies, however, which are discussed at the link and it does not incorporate by reference state regulatory schemes.</p>\n<p>Thus, while federal medical facilities can be immune to the restrictions of state law pursuant to the Property Clause of the U.S. Constitution, in practice, this is usually not the case (at least in substance). So, as a general rule, failing to perform medical services that are illegal in the state where the medical services are provided will not constitute medical malpractice. The federal government, by statute, regulation, or a binding opinion of the Department of Justice, can abrogate state law for the conduct of medical practitioners at a federal facility, but this is the exception rather than the rule.</p>\n<p>I am not aware of instances of the federal government asserting this authority to authorize abortion procedures at a federal facility, although I acknowledge that I am not all knowing and that there may be some specific case where this has been done of which I am not aware. In part, this hasn't been done, because before <em>Roe v. Wade</em> was overturned by the recent <em>Dobbs</em> decision of the U.S. Supreme Court, it wasn't necessary to do so.</p>\n<p>The federal government has the power to adopt its own laws regarding the legality of abortion procedures in its own health care facilities that would pre-empt state law. But, by and large, it has not done so. Indeed, in most circumstances there is a ban on using federal funds for health care involving abortion except to save the life of the mother, under <a href=\"https://en.wikipedia.org/wiki/Hyde_Amendment#:%7E:text=In%20U.S.%20politics%2C%20the%20Hyde,arises%20from%20incest%20or%20rape.\" rel=\"nofollow noreferrer\">the Hyde Amendment</a>. This means that the vast majority of abortion procedures have to be performed outside federal health care facilities (although a more in depth analysis must be undertaken in circumstances like a foreign military base where there are no alternative sources of health care for a patient).</p>\n<p>The exact parameters of the "health of the mother situation", the policies of the federal health care facility, the parameters of the state law abortion restrictions, and the nature of the patient's relationship to the facility (inmates are entitled to bring medical malpractice suits only in much more limited circumstances than other patients), would all be relevant in the analysis of whether an FTCA claim for medical malpractice in a case where a physician at a federal health care facility refused to provide abortion services necessary to protect the life of the mother.</p>\n",
"score": 1
}
] |
[
"united-states",
"us-federal-government",
"abortion"
] |
How are multiple and/or clauses in contracts interpreted?
| 0 |
https://law.stackexchange.com/questions/89271/how-are-multiple-and-or-clauses-in-contracts-interpreted
|
CC BY-SA 4.0
|
<p>If a contract includes multiple and/or statements, how are these generally interpreted?</p>
<p>For example when defining the competing fields in a hypothetical non-compete clause as</p>
<blockquote>
<p>in the field of automation and/or design of cars and/or trucks</p>
</blockquote>
<p>what would be the common interpretation?</p>
<p>Option 1:</p>
<ul>
<li>automation, and/or</li>
<li>design of cars, and/or</li>
<li>design of trucks</li>
</ul>
<p>Option 2:</p>
<ul>
<li>automation of cars, and/or</li>
<li>automation of trucks, and/or</li>
<li>design of cars, and/or</li>
<li>design of trucks, and/or</li>
</ul>
| 89,271 |
[
{
"answer_id": 89281,
"body": "<p>The example given is a case of an ambiguous statement in a contract.</p>\n<p>When a contract is ambiguous, a court looks to the overall context of the contract and "extrinsic evidence" (i.e. evidence other than the text of the contract such as evidence regarding how the contract was negotiated or drafted) in an effort to determine the intent of the parties, if indeed the ambiguity is relevant to facts that actually arise.</p>\n<p>If the ambiguity is not relevant to facts that actually arise, the ambiguity is left unresolved.</p>\n",
"score": 2
}
] |
[
"contract-law",
"employment",
"definition",
"interpretation",
"non-compete"
] |
Testamentary Trust
| 2 |
https://law.stackexchange.com/questions/89275/testamentary-trust
|
CC BY-SA 4.0
|
<p>A person is thinking about leaving his money to four people. I will call them p1,p2,p3 and p4. When he dies he wants his money to go into a trust. In addition, he wants p1, p2 and p3 to be able to take out a small percentage of the trust every year. When three of the following people are dead: p1,p2,p3 and p4 ; he wants the money to go to the remaining survivor.</p>
<p>Is there any problem doing this? Would this be considered a QTIP trust?</p>
| 89,275 |
[
{
"answer_id": 89278,
"body": "<blockquote>\n<p>Is there any problem doing this?</p>\n</blockquote>\n<p>This is not a problem. This is a typical and plain vanilla testamentary trust.</p>\n<blockquote>\n<p>Would this be considered a QTIP trust?</p>\n</blockquote>\n<p>No. QTIP stands for "qualified terminable interest property". A <a href=\"https://www.investopedia.com/terms/q/qtip.asp\" rel=\"nofollow noreferrer\">QTIP trust</a> is a trust for the benefit of a surviving spouse that is allowed to qualify for the marital deduction from gift and estate taxation despite the fact that it would not qualify for that deduction in the absence of the tax code provision authorizing the QTIP election. It allows the decedent spouse to exert more control over the final disposition of the trust assets than would otherwise be possible while still qualifying for the marital deduction.</p>\n",
"score": 2
}
] |
[
"united-states",
"wills",
"trusts-and-estates"
] |
copyright of a translated text
| 1 |
https://law.stackexchange.com/questions/89265/copyright-of-a-translated-text
|
CC BY-SA 4.0
|
<p>Who owns copyright of a translated text?</p>
<p>Person A wrote a text. Person B translated the text to a different language, as requested by a person A, as a paid translation service. Does the person A need to buy copyright or some other right of the translated version from the person B in order to edit or use for commercial purposes the translated text in the future?</p>
<p>Thank you.</p>
| 89,265 |
[
{
"answer_id": 89268,
"body": "<p>Likely depends on the jurisdiction, so my answer will be general, assuming European Union:</p>\n<p>If the original is copyrightable (usually, if it is "creative enough" and not belonging to the list of exceptions), the translated text is creative as well and is considered an adaptation of the original, and as such the copyright is shared between the original author and the translator.</p>\n<p>Usually, the distribution and property rights of the translator are agreed on in a license agreement beforehand, otherwise it might very well become impossible to publish/distribute.</p>\n",
"score": 2
},
{
"answer_id": 89266,
"body": "<p>You are missing the country, and you are missing which contract was signed. If the translator was paid to make the translation, then unless the copyright holder is very stupid, there will be a contract that tells exactly which rights the copyright holder has. That may be a license to financially exploit the translation, or a contract that says copyright will be transferred from the translator to the original author. Without a contract, you'd have to look at the law of the company where this happens.</p>\n",
"score": 0
}
] |
[
"copyright",
"copyright-transfer",
"translation"
] |
Can a Lawyer represent a client in a business deal where he knows that his client is being screwed over?
| -1 |
https://law.stackexchange.com/questions/89249/can-a-lawyer-represent-a-client-in-a-business-deal-where-he-knows-that-his-clien
|
CC BY-SA 4.0
|
<p>Two people are partnering to purchase a business deal. A lawyer is representing Partner A. The lawyer knows that Partner A is being screwed over by Partner B, i.e. Partner B has no money to contribute, etc. Is the lawyer ethically allowed to represent Partner A?</p>
| 89,249 |
[
{
"answer_id": 89259,
"body": "<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=\"british-columbia-container\">british-columbia</a></p>\n<p>The lawyer must give "<a href=\"https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/chapter-3-%E2%80%93-relationship-to-clients/#3.7-7\" rel=\"nofollow noreferrer\">an open and undisguised opinion of the merits and probable results of the client’s cause</a>."</p>\n<p>"<a href=\"https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/chapter-3-%E2%80%93-relationship-to-clients/#3.2-2\" rel=\"nofollow noreferrer\">When advising a client, a lawyer must be honest and candid and must inform the client of all information known to the lawyer that may affect the interests of the client in the matter</a>."</p>\n<p>As long as the lawyer is satisfied that "<a href=\"https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/chapter-3-%E2%80%93-relationship-to-clients/#3.2-9\" rel=\"nofollow noreferrer\">the client has the ability to understand the information relative to the decision that has to be made and is able to appreciate the reasonably foreseeable consequences of the decision or lack of decision</a>," the lawyer can take instructions from that client.</p>\n<p>The lawyer would only be <em>required</em> to withdraw if the client <a href=\"https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/chapter-3-%E2%80%93-relationship-to-clients/#3.7-7\" rel=\"nofollow noreferrer\">persists in instructing the lawyer to act contrary to professional ethics</a>.</p>\n",
"score": 4
},
{
"answer_id": 89256,
"body": "<h2>there's only few rules against representation</h2>\n<h3>What means representing a client?</h3>\n<p>The lawyer is retained to represent <strong>only the interests Partner A</strong>. His obligation is <strong>to do that to the best of his capacity.</strong> That's exactly what he is paid for.</p>\n<p>If he notices that Partner B tries to screw Partner A over, he should tell his client, Partner A, about this based on ethical reasons, and suggest a way to deal with that, and also propose solutions.</p>\n<p>When Partner B conducts illegal or at least very shady business in the transaction, Parter A's lawyer is obligated to do the best to protect the interest of his client, partner A, and thus shield Partner A by the necessary steps. For example, the lawyer could make sure to include a passus that makes it possible to either exclude Partner B for nonpayment ("If B doesn't pay his share until X, all his rights in the transaction are extinguished") or to make the deal contingent on Partner B's payment ("A only agrees to the transaction on the condition that B has paid his share by X"). Partner A of course has to be informed of this by his lawyer, but <strong>unless the lawyer is specifically instructed by his client not to take such steps, he has to protect his client's interests.</strong></p>\n<h3>What does ending representation mean?</h3>\n<p>The moment he drops representation, the Lawyer is no longer obligated to do anything in the pending matter. There are many reasons a lawyer can end his representation of A, but most of them are about what transpires between A and his lawyer.</p>\n<h3>What prevents representation by a lawyer?</h3>\n<p>The most common reason that would bar a lawyer from representing A is, if B had retained the very lawyer for the same or a very related matter, posing a conflict of interest. For example, if B had retained the lawyer last year for a similar deal, and knowledge of that deal's happenings would unduly influence this new deal, then the lawyer is barred to represent A.</p>\n<blockquote>\n<p>What's the law if he can't tell Partner A ...</p>\n</blockquote>\n<p>This idea is absolute idiocy. The ethical rules are worded in such a way that it is the lawyer's duty that he <strong>has</strong> to tell his client.</p>\n<blockquote>\n<p>what's the law even if he tells Partner A but the Partner doesn't seem to understand the situation</p>\n</blockquote>\n<p>The lawyer has to do his best to protect the interest of the client, as long as he represents his client. If instructed by Partner A to still go through with the deal in the way that it damages Partner A, the lawyer can either drop the representation or go through with it.</p>\n",
"score": 2
}
] |
[
"contract-law",
"professional-ethics"
] |
Can I record a disciplinary hearing with school officials in WA state
| 2 |
https://law.stackexchange.com/questions/89251/can-i-record-a-disciplinary-hearing-with-school-officials-in-wa-state
|
CC BY-SA 4.0
|
<p>My child is 12 and has a long documented disability. The (public) school district has not provided appropriate support and has even mislead me on qualifications of the paraeducator assigned to him. She is assigned to support him with behavior and de-escalation but she has no training or professional certification in behavioral support, which has just now been admitted after 2 suspensions since September. We want to record the disciplinary hearing. I can not attend but my husband will be. The attendees include the principal, vice principal, school counselor, my husband, son, and the newly assigned special education case manager. They have made the meeting available for me to attend via Google Classrooms.<br />
I want proof that the administration will say one thing and then completely change their verbiage. Example is "the paraeducator isn't certified, but she has a lot of experience with difficult children."</p>
<p>Or they will admit in person the paraeducator wasn't available to de-escalate him, but by email they will state they believe they have followed his 504. His new case manager seems to be wonderful but she does work for the same system that has lied and mislead me for the past 6 years.
I am truly concerned for my sons education and mental health/ emotional safety. They have engaged in discriminatory discipline several times now. I feel recording them without their knowledge is the only way I can prove my son is being discriminated against and get him transferred to another school or district. I know Washington is a 2 party consent state unless it is an emergency / threat of harm or there is no expectation for privacy. So if they have 6 attendees and are offering it on Google Meets does that satisfy no expectation of privacy?</p>
| 89,251 |
[
{
"answer_id": 89253,
"body": "<h2>Not secretly.</h2>\n<p>Washington is a Two Party Consent state. <strong>Unless all parties agree,</strong> you can not legally make a recording of any telephone call, in-person conversation or otherwise digital conversation. The exceptions for emergency services, phone stalking, and hostage-taking don't apply. Neither are you a news reporter under the applicable subsection, which just requires the obviousness of the recording. See <a href=\"https://app.leg.wa.gov/RCW/default.aspx?cite=9.73.030\" rel=\"nofollow noreferrer\">RCW 9.73.030</a> for the details.</p>\n<p>Discipline hearings can be public or private, depending on the agency performing them. If the accused is a lawyer, <a href=\"https://www.wsba.org/for-legal-professionals/professional-discipline/office-of-disciplinary-counsel\" rel=\"nofollow noreferrer\">bar association discipline hearings in Washington</a> are public. However, a student disciplinary hearing is usually confidential, yet <a href=\"https://cdn5-ss11.sharpschool.com/UserFiles/Servers/Server_141067/File/Departments/Compliance%20Services/Rights%20and%20Responsibilities%2020_21%20SY%20Final.pdf\" rel=\"nofollow noreferrer\">suspension and expulsion appeal hearings have to be recorded</a> due to the severe nature of the matter. A teacher's hearing might be anywhere between those two. Even if the meeting is to be considered private or confidential, it might or might not be recorded as a matter of policy by the board of education, in which case they'd use the <a href=\"https://app.leg.wa.gov/RCW/default.aspx?cite=9.73.030\" rel=\"nofollow noreferrer\">exception to wiretapping of subsection 4.</a></p>\n<p>Illegally obtained evidence (in this case: recordings) will be most likely inadmissible in court, either as <em>fruit of the poison tree</em>, or inadmissible hearsay,</p>\n",
"score": 2
}
] |
[
"privacy",
"recording",
"washington"
] |
What determines whether or not legislation is re-printed (or digital equivalent) to integrate added or modified provisions?
| -1 |
https://law.stackexchange.com/questions/89237/what-determines-whether-or-not-legislation-is-re-printed-or-digital-equivalent
|
CC BY-SA 4.0
|
<p>Sometimes one finds a reference to section 8zb of a law, and proceeds to refer to the law on legislation.gov.uk, only to realise that there is apparently no section 8zb there. One then has to google section 8zb uksi YYYY/NNNN, and then if one is lucky, they may find the law that effects section 8zb's insertion to the first law. Others, section 8zb is right there next to section 8b, and one is able to see the law as it was before the modifications, and with them integrated, and the date and cross referenced origin, etc, of each separate modification. What processes determine when each of these scenarios is the case?</p>
| 89,237 |
[
{
"answer_id": 89254,
"body": "<p>Assuming the question is referring to <a href=\"https://www.legislation.gov.uk/\" rel=\"nofollow noreferrer\">legislation.gov.uk</a>, which is the official home of UK legislation:</p>\n<p>The website has <a href=\"https://www.legislation.gov.uk/understanding-legislation#revisedlegislation\" rel=\"nofollow noreferrer\">a policy</a> of updating primary legislation (i.e. Acts of Parliament, etc) as they are amended, but generally <strong>not</strong> updating secondary legislation (i.e. statutory instruments, etc), though it appears that policy may be changing.</p>\n<p>In addition, updating legislation on the website takes time, so even Acts don't always appear in their latest form. However, when this is the case, there is normally a message at the top to indicate this.</p>\n<p>(I assume that the reason for not updating secondary legislation is simply because of quantity. Thousands of statutory instruments are issued each year, so the National Archives (who run the site) may simply not have the staff to handle them in addition to primary legislation. Note that there are resources - e.g. <a href=\"https://legalsolutions.thomsonreuters.co.uk/en/products-services/westlaw-uk/features.html\" rel=\"nofollow noreferrer\">Westlaw</a> - who do do this, but their service requires a subscription.)</p>\n",
"score": 1
}
] |
[
"united-kingdom",
"england-and-wales",
"legislation",
"parliament"
] |
Legal "we": when is it appropriate to use "we" in legal correspondence?
| -1 |
https://law.stackexchange.com/questions/89238/legal-we-when-is-it-appropriate-to-use-we-in-legal-correspondence
|
CC BY-SA 4.0
|
<p>Similarly to how a party's representative is often referred to in the third person as "solicitors," it seems often that in legal submissions and other correspondence, individual solicitors will use a first-person plural as well, a kind of "legal 'we'."</p>
<p>What is the basis and significance of it, and when is it appropriate? Is it understood to reflect that an entire firm (and so team) of lawyers perhaps, to some degree or other, collaborated to arrive at the conclusions contained in the correspondence, thus lending them a greater credibility and kind of clout? "We submit" "We contend" "We believe".</p>
<p>Warren Buffett's famous shareholders seem to do the same thing, but that seems more easily explained by the fact that the letter is to shareholders, and so inherently, the relationship of a shareholder with a company is very specifically with the company itself, on the behalf of which Buffett would then necessarily be writing, so we could be understood to encompass all of those who make up the company.</p>
<p>One also recalls the conventional "royal we," where monarchs (and perhaps some other nobility?) are conventionally entitled to refer to themselves in the plural.</p>
| 89,238 |
[
{
"answer_id": 89252,
"body": "<h2>A group is not an “I”</h2>\n<p>Plural pronouns are appropriate when it is collective that is speaking (we, us) or being referred to (they, them). So, partnerships, clubs, companies, governments, families etc. are all pluralities.</p>\n<p>Specifically for lawyers, when they speak, they are doing so on behalf of their client so there are always two people involved - the lawyer and the client. “We contend” means “My client and I contend”.</p>\n",
"score": 1
}
] |
[
"united-kingdom",
"england-and-wales",
"legal-terms",
"lawyer",
"any-jurisdiction"
] |
Is it legal to submit fake digital identification documents to private companies?
| 8 |
https://law.stackexchange.com/questions/5017/is-it-legal-to-submit-fake-digital-identification-documents-to-private-companies
|
CC BY-SA 3.0
|
<p>Suppose that Facebook asks me to verify my identity. Is it then legal for me to create a fake digital image of a passport showing my pseudonym as the real name and submit that as if it were an image of a real passport? </p>
| 5,017 |
[
{
"answer_id": 5018,
"body": "<p>Nope.</p>\n<p><a href=\"https://www.law.cornell.edu/uscode/text/18/1028\" rel=\"noreferrer\">18 U.S. Code § 1028</a> - Fraud and related activity in connection with identification documents, authentication features, and information</p>\n<blockquote>\n<p>(a) Whoever, in a circumstance described in subsection (c) of this section—</p>\n<p>(1) knowingly and without lawful authority produces an identification document, authentication feature, or a false identification document;</p>\n<p>[...]</p>\n<p>(c) The circumstance referred to in subsection (a) of this section is that—</p>\n<p>(1) the identification document, authentication feature, or false identification document is or appears to be issued by or under the authority of the United States or a sponsoring entity of an event designated as a special event of national significance or the document-making implement is designed or suited for making such an identification document, authentication feature, or false identification document;</p>\n</blockquote>\n<p>So you're 1) producing a false identification document that 2) appears to be issued by the United States.</p>\n<p>Whether you'd actually be prosecuted for this is something that I'm not qualified to answer.</p>\n",
"score": 6
}
] |
[
"passport"
] |
Are social media TOS invalid because lack of due process and mutuality creates an unenforceable illusory contract?
| -4 |
https://law.stackexchange.com/questions/89219/are-social-media-tos-invalid-because-lack-of-due-process-and-mutuality-creates-a
|
CC BY-SA 4.0
|
<p>Generally speaking, the TOS of social media platforms share certain common features.</p>
<p>They do not give the user the right to any "due process." If the platform wishes to cancel, block or suspend the user, they can do so with impunity. The platform can exercise its sole discretion and the user has no right to due process or a fair hearing.</p>
<p>Even worse, these social media platforms routinely engage in the practice of so-called "shadow banning." This practice effectively cuts off users from accessing the platform with an elaborate ruse and conspiracy designed to deceive the user into believing they still are using the platform normally. But, in fact, all their posts are disappeared into the either by the platform to intentionally trick the user into wasting their time creating more posts that go nowhere.</p>
<p>My hypothesis is that these common practices (deceptive shadow banning ruse conspiracy, lack of due process, no right to any appeal or fair hearing and lack of mutuality -- the platform can do whatever they want with autonomous impunity and the user can't even register a complaint) combined with the plain language of the TOS of these social media platforms that grant complete autonomous impunity to the platform constitutes an ILLUSORY CONTRACT and, therefore, renders the TOS invalid in their entirety.</p>
<p>Does my hypothesis have any merit?</p>
<h4>Edit</h4>
<p>I am using the following <a href="https://www.law.cornell.edu/wex/illusory_promise" rel="nofollow noreferrer">definition of illusory contract</a>:</p>
<blockquote>
<p>A promise that is unenforceable due to indefiniteness or lack of mutuality, where only one side is bound to perform.</p>
</blockquote>
<p>The TOS I am referencing seem to meet all the requirements to me.</p>
<ol>
<li><p>They lack mutuality.</p>
</li>
<li><p>Only one side is bound to perform.</p>
</li>
</ol>
| 89,219 |
[
{
"answer_id": 89222,
"body": "<h2>No</h2>\n<p>Contracts are not bound by due process. Due process is a rule of how a lawsuit has to be handled, not how a contract is to be handled. All the Due Process clauses in the US constitution simply don't apply. The only things that apply are the contract language, and the underlying/overwriting laws.</p>\n<p>If your contract stipulates that it is terminated by winning a coin flip against the other party, that's fine. If it stipulates, that you have to find 15 people supporting you in terminating the contract, that's fine. If it states that the other party can terminate for any and all reasons, including no reason, that's what the contract says, and fine. The contract would have to establish that you actually have a process, and how it is handled.</p>\n<blockquote>\n<p>My hypothesis is that these common practices combined with the plain language of the TOS of these social media platforms that grant complete autonomous impunity to the platform[...]</p>\n</blockquote>\n<p>This part is correct. They have the complete impunity because of how the contract is written. However, that does <strong>not</strong> make the contract illusory: you can decide not to agree to it and not go to the place, so it is mutual acceptance. Both sides are bound to perform <em>something</em> until the contract is terminated.</p>\n<p>An illusory contract would be that Alice gets 2000 USD for nothing (only one side performs). But both sides perform. The contract is to follow the TOS in exchange for site access. Both sides offer something: access in exchange for adherence to rules.</p>\n<p>The claim of non-mutuality is frivolous: If you claim "I don't agree to the TOS and contract", you can't at the same time get the benefits of the contract either: you signed the contract to follow the TOS in exchange to access the site, and if you don't want to follow the TOS, you have to terminate the contract and can't access the site. You can't eat your cake and have it too.</p>\n<p>Also, there is a <a href=\"https://law.stackexchange.com/questions/55635/what-does-severability-mean-in-the-following-context\">severability clause</a>, which is valid: even <strong>if</strong> a clause would be illegal, it would be replaced by the closest legal clause, overwritten by the legal minimum, or removed, whichever is the least impact. The rest of the TOS is untouched and fully valid.</p>\n<p><strong>Your conclusion is wrong and meritless.</strong></p>\n",
"score": 5
},
{
"answer_id": 89226,
"body": "<p>Terms of service are often not contractual (although many are, particularly when associated with payments). They often merely state the conditions under which the provider is allowing you to use their service (akin to a licence, but not even necessarily a licence) or just stating transparently what behaviour they expect from you, what they will do with your data, and what actions they might take if you don't follow their expectations.</p>\n<p>In that sense, it is not meaningful to ask if a TOS is "enforceable" (in that the provider could deny a person access) because the provider simply retains the proprietary rights to control access to its product. That power does not come from the TOS.</p>\n<p>That power can be constrained by some contractual duty to the user (e.g. via a payment) or statutory duty (e.g. in relation to data protection).</p>\n<p>Another implication of a TOS <em>not</em> being contractual is that neither you nor the provider could sue the other for breach of contract.</p>\n",
"score": 4
},
{
"answer_id": 89245,
"body": "<blockquote>\n<p>Are social media TOS invalid because lack of due process and mutuality\ncreates an unenforceable illusory contract?</p>\n</blockquote>\n<p>No.</p>\n<p>The American Bar Association has a <a href=\"https://www.americanbar.org/groups/business_law/safeselling/terms/\" rel=\"nofollow noreferrer\">nice distillation of the state of the law with respect to terms of service</a>, and I reproduce the most relevant portions of that analysis below:</p>\n<blockquote>\n<p>Are my terms and conditions enforceable?</p>\n<p>Courts are now regularly enforcing so-called "click wrap" agreements,\nwhere a user's assent to the terms and conditions posted on a website\nis rendered by clicking on a button that says "I agree" or "yes". When\nthese agreements are upheld, users are deemed bound by the terms in\nthe same way that they would be bound by a signed contract, whether or\nnot they actually read the agreement, so long as there was an adequate\nopportunity to do so. Requiring the user to expressly agree or\ndisagree with the terms and conditions posted on a website goes a long\nway to ensuring that an enforceable contract was created. Whether\nposted terms and conditions that do not require the user to click an\n"I agree" button can create an enforceable contract. is less certain.\n(See "Can I simply post terms and conditions?")</p>\n<p>Yet, even where an electronic agreement requires express assent, there\nare still reasons why a court may not enforce it. A court will\nconsider whether the terms were presented in a way that provided\nreasonable notice, i.e., Was the typeface legible? Was the full text\nof the agreement easy to find? Was the text, even if large, easy to\nunderstand? Another element of adequate notice is whether the user was\nmade reasonably aware that it was agreeing to a contract, i.e., was\nthe button meant to indicate assent designated as "I agree" or "Yes",\nor in an ambiguous manner, such as "submit", "continue" or "show me\nthe lenders?"</p>\n<p>To increase the prospects of enforcement, website terms and\nconditions, like all standard form contracts, should be drafted in a\nclear manner, without technical jargon and excessive legalese. Thus,\ncare should be taken that terms and conditions are not unduly long by\nvirtue of irrelevant clauses or extraneous boilerplate. They should\nalso be presented as legally-binding terms, and not mixed with\nmarketing messages, and they should be scoured for inconsistencies\nwith other statements made on the site. It is also important that the\nsite allows the user adequate time to review to terms, both when first\npresented with them and for later reference. (For other factors\nrelating to the presentation of terms and conditions, see "Are\nelectronic contracts enforceable?" and "Can I simply post terms and\nconditions on my site?")</p>\n<p>Terms and conditions should be capable of being retained by the user\nin electronic or printed form, if they are not being sent directly to\nthe user by another means, such as by mail or fax. Some industries,\nsuch as financial services, are required to provide copies of\ncontracts to the user in hard-copy form. In addition, as to electronic\ntransactions generally, Section 8 of the Uniform Electronic\nTransactions Act, adopted in some form in nearly all 50 states\n("UETA"), prohibits a website proprietor from inhibiting a user's\nability to store or print the contractual terms if the parties have\nagreed to contract electronically and the law requires that the user\nbe provided information in writing. One might expect the same\nrequirement in other jurisdictions even without UETA. Under Section\n101(d)(1)(B) of the Electronic Signatures In Global and National\nCommerce Act ("E-Sign") terms and conditions must remain available to\nthe user, in a form capable of reproduction for later reference, if\nthe applicable law requires that a record be retained regarding the\ntransaction.</p>\n<p>In order to avoid errors that result from typos or improper navigation\nof the site, the user should be able to view and approve an order\nsummary or confirmation screen prior to the placement of an on-line\norder. In fact, UETA Section 10(2), gives an individual the right to\nrescind a website transaction resulting from his or her error if there\nwas no opportunity to correct it, assuming that the individual\npromptly notifies the seller of the error, takes reasonable steps to\nreturn or destroy any product or service received, and has not used\nany benefits provided.</p>\n<p>Finally, an issue that underlies all standard form consumer contracts,\nwhich are presented on a "take it or leave it basis," is whether the\nterms are so unfavorable as to be considered "unconscionable" and,\ntherefore, unenforceable, regardless of whether the customer has\nmanifested his or her assent to them. (See "What provisions are not\nenforceable?")</p>\n</blockquote>\n<p>A <a href=\"https://www.americanbar.org/groups/business_law/safeselling/terms/\" rel=\"nofollow noreferrer\">2021 article</a> from the New York Times explains that for the most part, Terms of Service are enforceable and that any regulation of limitation of them will require regulatory or legislative intervention.</p>\n<p>As noted in another answer, "due process" is not something that a private business, as opposed to a governmental entity, is required to afford you.</p>\n<p>A ToS is generally not invalidated either on the ground of lack of mutuality or on the ground that only one side is bound to perform (and the website with a ToS is usually providing something of value to the user, so it isn't truly one sided).</p>\n<p>One fruitful way to understand a ToS is that it legally defines the intangible product that the website or online service is providing.</p>\n",
"score": 1
}
] |
[
"contract-law",
"breach-of-contract",
"social-media",
"digital-contract"
] |
Is a similar name and synonym to existing brand a trademark infringement?
| 0 |
https://law.stackexchange.com/questions/89241/is-a-similar-name-and-synonym-to-existing-brand-a-trademark-infringement
|
CC BY-SA 4.0
|
<p>A company named Blackboard exists, with trademarks on the name. I would like to use the brand name "Greenboard." Is there any possibility of trademark infringement if I use this name?</p>
<ul>
<li><p>I don't think it would cause confusion among consumers</p>
</li>
<li><p>I did not know the company existed when I came up with the name</p>
</li>
<li><p>I would have distinct logos for my own brand</p>
</li>
<li><p>We would be businesses in the same industry with competing products</p>
</li>
</ul>
| 89,241 |
[
{
"answer_id": 89247,
"body": "<p>The legal standard is whether the allegedly infringing mark is confusingly similar to the mark that is allegedly infringed. This is a mixed question of fact and law usually determined by the trier of fact (which is the jury, in a jury trial where there is a colorable dispute of fact regarding the issue).</p>\n",
"score": 5
},
{
"answer_id": 89242,
"body": "<p>As a naïve customer, I would expect that a "green board" is likely a variation of the "black board", made by the "blackboard" company, probably manufactured in some more environmentally safe way, and therefore probably a bit more expensive. I would expect that the blackboard company will handle any problems that I have with a "green board", just as they do with a "black board".</p>\n<p>That's just me, but the blackboard company will argue that my view is quite common for customers. So there would be confusion in the market, and you could easily be sued. I wouldn't predict whether you win or lose, but it will cost you money.</p>\n",
"score": 3
}
] |
[
"trademark",
"branding"
] |
When has Judicial Review not been the process used to deem an act unconstitutional?
| 4 |
https://law.stackexchange.com/questions/72/when-has-judicial-review-not-been-the-process-used-to-deem-an-act-unconstitution
|
CC BY-SA 3.0
|
<p>Are there any examples where Judicial Review has not been the process used to deem an act unconstitutional? </p>
| 72 |
[
{
"answer_id": 89239,
"body": "<p>Several examples come to mind. This may not be comprehensive.</p>\n<p><strong>Attorney General's Opinions Ands The Equivalent</strong></p>\n<p>In state and federal governments in the United States, there is typically an official in the Attorney General's office who reports directly to the Attorney General who writes Attorney General's opinions which are binding legal authority on the government officials in that state or in the federal government, as the case may be, on legal issues.</p>\n<p>One purpose for which an Attorney General's Opinion is frequently used is to declare that a law shall be considered unconstitutional for all purposes by government officials in that governmental body.</p>\n<p>Typically, this is only done when the precedents regarding a law's unconstitutionality are unequivocally clear, for example, because the U.S. Supreme Court or the state supreme court in the state in question, has declared a virtually identical law to be unconstitutional (e.g. a religious test to run for public office in a state constitution), even though a court has not ruled on this particular law and it remains on the books.</p>\n<p>County attorneys and city attorneys in their respective local governments often do the same thing.</p>\n<p>State and federal tax collection agencies often following the federal model of regulation like documents called "Revenue Rulings" and "Revenue Procedures" will sometimes make determinations that are binding on the government that are essentially identical in process and effect to an attorney-general's opinion, except that these are typically issued under the supervision of the top tax policy official in the tax collection agency, rather than by an official in the Attorney General's office.</p>\n<p>This is also sometimes done by administrative or independent agency boards in the course of carrying out their determinations.</p>\n<p>For example, the Environmental Protection Agency might determine, by regulation, that a "right to farm" law under a state statute or state constitution is unconstitutional to the extent that it interferences with its environmental regulation of farms.</p>\n<p><strong>Prosecutorial Discretion</strong></p>\n<p>Frequently prosecuting attorneys refrain from bringing charges under laws that they believe to be unconstitutional (at least in the circumstances that present themselves where the law could theoretically be used) as a matter of explicit or implicit policy.</p>\n<p>Even when a policy is explicit, however, it is often an internal policy not disclosed to the general public. And, since prosecutors routinely exercise prosecutorial discretion for all manner of reasons, it isn't easy to identify cases where a failure to bring a particular charge is a result of a determination by a prosecuting attorney that a law is unconstitutional, at least as applied in the circumstances of a particular case.</p>\n<p><strong>Real Estate Title Standards</strong></p>\n<p>A somewhat similar practice is found in real estate title work, most often in cases involving racially restrictive real estate covenants. Often there is a statute, regulation, or simply an industry standard privately adopted title standard that title companies trying to determine the state of title to real property use to disregard racially restrictive real estate covenants (and certain other less well known title issues) on the grounds that they are unconstitutional. This is done notwithstanding the general common law rule that duly executed and recorded real estate covenants are binding and run with the land.</p>\n<p><strong>Mass Implementation Of Retroactive Precedents</strong></p>\n<p>In rare circumstances, when a once widely used legal practice is determined to be unconstitutional and to have retroactive effect, such as convictions of crimes by non-unanimous juries in the State of Oregon, an ad hoc administrative process is established to identify and summarily invalidate the unconstitutional convictions or judgments, without litigating those cases in the courts on a case by case basis.</p>\n<p><strong>Legislative Determinations and the Veto Power</strong></p>\n<p>A legislative body will often repeal or amend a law for the reason that the law in question is believed to be unconstitutional, even if the constitutionality of this particular law has not been adjudicated in a court. In theory, this is a way in which a legislative body deems an existing law unconstitutional. In practice, however, different legislators will justify the repeal or amendment of an existing law for different purposes and there is no obvious way for someone not familiar with the legislative history of an act and the related deliberations to know if a law was repealed or amended because it was unconstitutional.</p>\n<p>Similarly, sometimes a President or Governor vetos legislation for the reason that this politician believes that a bill passed by the legislature is unconstitutional. But there is generally no definitive way to determine which vetos are for this reason and which vetos are for some other reason.</p>\n<p><strong>Pre-Litigation Advisory Opinions</strong></p>\n<p>The federal courts are not allowed to issue advisory opinions in the absence of a genuine case or controversy as a rules of the jurisdictional limits on their authority under Article III of the United States Constitution.</p>\n<p>But some states grant either the state supreme court, or a special committee or council, the authority to review newly enacted statutes, and/or proposed ballot initiative, to determine if they are unconstitutional on their face, before they take effect. In many civil law countries outside the United States, a constitutional court, or a "council of state" has similar authority.</p>\n<p><strong>Military Law</strong></p>\n<p>Under the Uniform Code of Military Justice (UCMJ) in the United States, disobeying a lawful order is a ground to impose military justice penalties, but court-martial or otherwise.</p>\n<p>Implicit in the provision of the UCMJ, is the right and obligation of people subject to this provision of the UCMJ (basically active duty military personnel), to exercise independent judgment to disobey an unlawful order. One form of unlawful order is a military order to do something unconstitutional.</p>\n<p>So, in the first instance, a soldier given an order must evaluate whether or not the order which has the force of law as to them, is unconstitutional, and secondarily, this is raised as a defense before the appropriate military justice body (e.g. a court martial) to a prosecution seeking to discipline the soldier for disobeying an order under the UMCJ.</p>\n<p>To the extent that raising a defense in a court martial is equivalent to raising a defense in a court proceeding, that really isn't any different than ordinary judicial review. But, when a soldier refuses to follow an order on the grounds that the order is unconstitutional, this amounts to an invalidation of the order on constitutional grounds by a means other than judicial review.</p>\n<p><strong>Constitutional Amendments</strong></p>\n<p>The 14th Amendment to the United States Constitution specifically held that all laws adopted by the Confederate government during the U.S. Civil War issuing public debts were void as a matter of law.</p>\n<p>Similarly, the adoption of various other constitutional amendments, such as the 13th Amendment prohibiting slavery, upon adoption, immediately caused all laws authorizing and regulating the institution of slavery in the United States to become unconstitutional.</p>\n<p>Prohibition and the abolition of poll taxes provide other examples of existing laws being determined to be unconstitutional immediately, when constitutional amendments take effect.</p>\n<p><strong>Non-Court Precedents</strong></p>\n<p>Specific historical acts and courses of dealing are often treated as determinations that different kinds of conduct are, or are not, constitutional.</p>\n<p>For example, the U.S. Civil War was taken as a non-court precedent establishing that a U.S. state does not have a right to unilaterally secede from the United States of America, even before a court reached that determination. This likewise implicitly resulted in the conclusion that all confederate laws were unconstitutional.</p>\n<p>Many examples of this involve separation of powers provisions of the constitution and provisions adjudicating the internal affairs of legislative bodies.</p>\n<p>The former are rarely litigated so custom, practice, and political pronouncements have to suffice instead.</p>\n<p>The latter are often expressly non-justiciable (i.e. beyond the jurisdiction of the courts) so determinations of when legislative procedures are constitutional or not are often vested in the discretion of the legislative bodies themselves.</p>\n<p>Most constitutional questions related to electoral college results, Congressional elections, and the constitutional amendment process are non-justiciable and are therefore resolved by legislators rather than judges.</p>\n",
"score": 5
},
{
"answer_id": 73,
"body": "<p>The Apportionment Act of 1792 allocating members of the House of Representatives is an example. After it was passed by Congress, President Washington determined that it violated the Constitution in two ways: it gave different states different ratios of population to members of the House, and it gave eight states more than one member of Congress per thirty thousand residents (the Constitution says \"the number of Representatives shall not exceed one for every thirty thousand,\" which can be read as either a restriction on the number of representatives in each state or as a restriction on the total number of representatives). In response, Washington vetoed the bill, and the veto was not overridden (Congress passed a different act, which he signed).</p>\n\n<p>Granted, this never entered into law. However, it was passed by Congress, and preventing the enactment of unconstitutional statutes was one of the original purposes of the veto. If an act isn't deemed unconstitutional through judicial review, it means it was deemed unconstitutional through the political branches of government, by people who are just as sworn to uphold the Constitution as a judge is.</p>\n",
"score": 3
},
{
"answer_id": 89235,
"body": "<blockquote>\n<p>Are there any examples where Judicial Review has not been the process used to deem an act unconstitutional?</p>\n</blockquote>\n<p>Any and every time a jury nullifies an act, law or edict intended to prosecute a fellow citizen on grounds of unconstitutionality, with or without a rationale given in the verdict. Also when Congress acts within its purview to repeal unconstitutional laws, when an executive makes the same admission with regard to the prior acts of his office, and so on, said acts are being appropriately deemed unconstitutional by someone in an authoritative role per the Constitutional rules of government to do so.\nNo one has any authority to act contrary to the Constitution, regardless of office, and every subordinate and every other branch and person has license to find such acts unconstitutional by virtue of their own <a href=\"https://www.uscis.gov/citizenship/learn-about-citizenship/the-naturalization-interview-and-test/naturalization-oath-of-allegiance-to-the-united-states-of-america\" rel=\"nofollow noreferrer\">oaths of office or of citizenship</a> and refuse to comply.</p>\n<p>In short, every body pertaining to the government has authority to declare an act unconstitutional, including the Executive, Judicial, and Legislative branches, and first and foremost, the people themselves.</p>\n",
"score": 0
}
] |
[
"united-states",
"judicial-review"
] |
Package recieved after full refund, illegal to keep it?
| 4 |
https://law.stackexchange.com/questions/25838/package-recieved-after-full-refund-illegal-to-keep-it
|
CC BY-SA 4.0
|
<p>So I ordered a package with a company (a Chinese company), after it not arriving and reaching the deadline I got a full refund (490 USD). The day after I received the money, I bought the same product locally for more money.</p>
<p>2 weeks after the refund I received the package that I got a refund for anyway.</p>
<p>I already contacted the company and we are currently figuring out what to do with the package. Either buying it with a discount or shipping it back.</p>
<p>But out of curiosity, <strong>If I decided to keep my mouth shut to the company and keep the package. Would that be Illegal? Would it be considered theft or fraud?</strong></p>
<p>Thanks in advance,</p>
<p>Robbert</p>
<p><strong>PS</strong>: I have no clue on what tags I should add to this, but seeing that I ordered the package online, I added the online tag.</p>
| 25,838 |
[
{
"answer_id": 25840,
"body": "<p>It is their property, so keeping it without permission could well be seen as theft. I think you are obliged to make reasonable attempts to notify them you have their property before using it or selling it. Just like if someone left the item at your house after a party.</p>\n\n<p>If they want it back, however, it is at their cost, you should not be out of pocket for their failure to deliver within a reasonable time-frame; you may find they've already claimed the cost of the product from the courier and don't want it back.</p>\n\n<p>You are well within your rights to offer to buy it from them, and them to accept or reject that offer, this is a separate contract to the original sale.</p>\n",
"score": 6
}
] |
[
"european-union",
"netherlands",
"online"
] |
Why are inserted legislation section identifiers often preceded by a "z"?
| 4 |
https://law.stackexchange.com/questions/89234/why-are-inserted-legislation-section-identifiers-often-preceded-by-a-z
|
CC BY-SA 4.0
|
<p>Many times, in UK legislation, the structure is of numbered sections, like 1., 2., 3...</p>
<p>Sometimes a subsequent act will insert sections that append lettered suffixes to the numbered section identifiers that precede their placement position within the act being amended, so that you might easily end up with sections 1, 1A, 2, 3, etc., which is also very sensibly understandable.</p>
<p>Other times, one finds added sections that add a Z before the A/B/C, etc. So you may get 1, 2, 2za, 2zb, 2zc, 3, etc. Obviously these are just section enumeration conventions, and could just as easily be entirely arbitrary subject to the whim and caprice of Parliament, but I assume that there is a discernible formula and pattern to them, and I wonder what it is. What is the significance or motivation for the convention of adding an additional 'Z' to inserted subsections?</p>
<p>As a corollary, what general procedural codes exist to guide (or bind) the parliamentary legislative draftspeople? Surely there must be style guides that they are bound to follow. What are these, and would they have the force of law?</p>
| 89,234 |
[
{
"answer_id": 89236,
"body": "<p>They follow the rules within the <a href=\"https://www.gov.uk/government/publications/drafting-bills-for-parliament\" rel=\"nofollow noreferrer\">Office of the Parliamentary Counsel drafting guidance</a></p>\n<blockquote>\n<p><strong>6.4 NUMBERING OF INSERTED PROVISIONS</strong></p>\n<p><strong>At the beginning of a series</strong></p>\n<p>6.4.1 Number as follows when inserting a new whole provision at the beginning of an existing series of provisions (e.g. a subsection at the beginning of a section or a Schedule before the first Schedule).</p>\n<ul>\n<li><p>New sections inserted before the first section of an Act are preceded by a letter, starting with “A” (A1, B1, C1 and so on).</p>\n</li>\n<li><p>The same approach is taken in relation to all other divisions of text (other than lettered paragraphs).</p>\n</li>\n</ul>\n<blockquote>\n<p>Thus the Insolvency Act 2000 inserted a Schedule A1 before Schedule 1 to the Insolvency Act 1986, and the Enterprise Act 2002 inserted a new Schedule B1 after Schedule A1.</p>\n</blockquote>\n<ul>\n<li><p>A provision inserted before “A1” (or “ai”) is “ZA1” or (“zai”).</p>\n</li>\n<li><p>In the case of lettered paragraphs, new paragraphs inserted before paragraph (a) are (za), (zb) etc.</p>\n</li>\n<li><p>And paragraphs inserted before (za) are (zza), (zzb) etc.</p>\n</li>\n</ul>\n<p><strong>At the end of a series</strong></p>\n<p>6.4.2 Where adding a provision at the end of an existing series of provisions of the same kind (e.g. a subsection at the end of a section or a Schedule at the end of the Schedules), the numbering should continue in sequence.</p>\n<p><strong>Between existing provisions</strong></p>\n<p>6.4.3 The following applies when inserting whole provisions between existing provisions.</p>\n<p>New provisions inserted between 1 and 2 are 1A, 1B, 1C etc.</p>\n<ul>\n<li><p>New provisions inserted between 1A and 1B are 1AA, 1AB, 1AC etc.</p>\n</li>\n<li><p>New provisions inserted between 1 and 1A are 1ZA, 1ZB, 1ZC etc. (and not 1AA etc.)</p>\n</li>\n<li><p>New provisions inserted between 1A and 1AA are 1AZA, 1AZB, 1AZC etc.</p>\n</li>\n</ul>\n<p>6.4.4 Do not generate a lower level identifier unless you have to.</p>\n<ul>\n<li><p>A new provision between 1AA and 1B is 1AB not 1AAA.</p>\n</li>\n<li><p>But a new provision between 1AA and 1AB is 1AAA.</p>\n</li>\n</ul>\n<p>6.4.5 The above recommendations apply equally to sub-paragraphs with roman numerals and lettered paragraphs.</p>\n<ul>\n<li><p>New sub-paragraphs between sub-paragraphs (i) and (ii) are (ia), (ib), (ic) etc.</p>\n</li>\n<li><p>New paragraphs between paragraphs (a) and (b) are (aa), (ab), (ac) etc.</p>\n</li>\n<li><p>New paragraphs between paragraphs (a) and (aa) are (aza), (azb), (azc) etc.</p>\n</li>\n</ul>\n<p><strong>Series of more than 26</strong></p>\n<p>6.4.6 After Z use Z1, Z2, Z3 etc. For example, after section 360Z insert sections 360Z1, 360Z2 and so on; after paragraph (z) insert paragraphs (z1), (z2), (z3).</p>\n<p><strong>Re-using numbers</strong></p>\n<p>6.4.7 If you are inserting new text at a place where there has previously been a repeal, do not re-use the number.</p>\n</blockquote>\n",
"score": 4
}
] |
[
"united-kingdom",
"england-and-wales",
"parliamentary-procedure",
"legislation"
] |
What is the legal status of the accusations on Pakistan by Bangladesh?
| 0 |
https://law.stackexchange.com/questions/89015/what-is-the-legal-status-of-the-accusations-on-pakistan-by-bangladesh
|
CC BY-SA 4.0
|
<ol>
<li><p>Bangladesh and India routinely accuse Pakistan of committing a genocide of 3 million people in 1971.</p>
</li>
<li><p>Bangladesh also demands an apology from Pakistan.</p>
</li>
</ol>
<p>The demand for an apology is only due when the atrocities are proven beyond doubt. Then again, if the atrocities are proven beyond doubt, an apology won't suffice. It would automatically go to a criminal court.</p>
<p>However, surprisingly, Bangladesh never went to ICC or ICJ to resolve this matter.</p>
<p>Please correct me if I am wrong, but as far as I know, after <a href="https://en.wikipedia.org/wiki/Delhi_Agreement" rel="nofollow noreferrer">1973's tri-party Delhi Agreement</a>, Bangladesh cannot demand the above two.</p>
<p>What is the legal status of this matter?</p>
<p>Is this a legally viable case for Bangladesh?</p>
| 89,015 |
[
{
"answer_id": 89032,
"body": "<p>All three nations are under the jurisdiction of the <a href=\"https://en.wikipedia.org/wiki/International_Court_of_Justice\" rel=\"nofollow noreferrer\">International Court of Justice</a>, and also agreed to the <a href=\"https://en.wikipedia.org/wiki/Genocide_Convention\" rel=\"nofollow noreferrer\">Convention on the Prevention and Punishment of the Crime of Genocide</a>, which was in force at the time. There are current cases (Ukraine v. Russia, The Gambia v. Myanmar) under that agreement, so in principle there is no legal impediment to a complaint by Bangladesh. The Delhi agreement is irrelevant first because it does not negate any legal rights of Bangladesh and second because the agreement is just between India and Pakistan. So there is no compelling legal reason why Bangladesh never filed a <a href=\"https://en.wikipedia.org/wiki/List_of_International_Court_of_Justice_cases\" rel=\"nofollow noreferrer\">case with the ICJ</a>.</p>\n<p>It turns out that there were some important holdouts on the <a href=\"https://en.wikipedia.org/wiki/List_of_parties_to_the_Genocide_Convention\" rel=\"nofollow noreferrer\">Genocide Convention</a> – two of the permanent members of the Security Council (PRC, US), which have veto power. This can explain why there were no ICJ cases on genocide until 1993. It should be noted that the US was a supporter of Pakistan at the time.</p>\n",
"score": 3
},
{
"answer_id": 89029,
"body": "<h2>The <a href=\"https://en.wikipedia.org/wiki/International_Criminal_Court\" rel=\"nofollow noreferrer\">ICC</a> has no jurisdiction</h2>\n<p>None of Bangladesh, India, or Pakistan are signatories to the Rome statute.</p>\n",
"score": 2
},
{
"answer_id": 89232,
"body": "<p>The allegations of genocide and other violations of human rights that occurred during the 1971 Bangladesh Liberation War are complex and contentious. The specific actions taken by the parties involved as well as the relevant international legal frameworks determine the matter's legal status.</p>\n<p>It is true that India, Pakistan, and Bangladesh signed the tri-party Delhi Agreement in 1973, which sought to resolve a number of conflict-related issues. The agreement stipulated, among other things, the recognition of Bangladesh as an independent nation, the return of displaced individuals, and the release and repatriation of prisoners of war. However, this agreement does not necessarily mean that Bangladesh cannot sue for alleged war crimes or other violations of international law.</p>\n<p>In general, there are a few different options available for seeking justice for such crimes. The International Criminal Court (ICC), which has jurisdiction over a number of serious international crimes like genocide, war crimes, and crimes against humanity, is one option. However, it is important to note that the ICC generally only deals with crimes committed after its establishment in 2002. Consequently, it is unlikely that the ICC would have jurisdiction over 1971 events.</p>\n<p>The International Court of Justice (ICJ), which has the authority to hear cases involving disputes between states and violations of international law, is another option. However, both parties must consent to the ICJ's jurisdiction before a case can be brought before it. Pakistan's willingness to submit to the ICJ's jurisdiction in this matter is unknown.</p>\n<p>Last but not least, the alleged war crimes could be the subject of legal action in Bangladeshi or other national courts. However, depending on the jurisdiction and the particulars of the case, the legal mechanisms that can be used in these situations may differ significantly.</p>\n<p>In a nutshell, the issue's legal status is nuanced, and a legal case's viability is contingent on a number of variables. It is ultimately up to the parties involved to decide whether or not to take legal action and how to do so in the most effective manner, despite the fact that there are some possible avenues for seeking justice in connection with the events of 1971.</p>\n",
"score": 0
}
] |
[
"international-court-of-justice"
] |
Welfare and the Covid Vaccine
| -3 |
https://law.stackexchange.com/questions/72575/welfare-and-the-covid-vaccine
|
CC BY-SA 4.0
|
<p>Could the Federal government say that if you are not vaccinated against Covid then you lose your welfare benefits? Would it be constitutional?</p>
<p>What I am asking is, would a federal law (passed by congress) requiring people on welfare to be vaccinated be constitutional?</p>
| 72,575 |
[
{
"answer_id": 89206,
"body": "<blockquote>\n<p>Could the Federal government say that if you are not vaccinated\nagainst Covid then you lose your welfare benefits? Would it be\nconstitutional?</p>\n<p>What I am asking is, would a federal law (passed by congress)\nrequiring people on welfare to be vaccinated be constitutional?</p>\n</blockquote>\n<p>For the most part yes. Arguably, a religious exemption might be required. But the federal government absent other countervailing considerations, generally has the power to mandate vaccination and other responses to a contiguous disease in cases where the vaccination would affect interstate commerce.</p>\n<p>All manner of things can be established as conditions to federal spending and federal programs. In cases where the program is purely federal, that discretion is almost unlimited (except for individual liberty considerations like freedom of religion). In cases where state cooperation is required, as noted in the answer by user6726, this discretion isn't absolutely unbounded if the state objects.</p>\n",
"score": 4
},
{
"answer_id": 89172,
"body": "<p>"Welfare" is a fairly broad concept. Some benefits, e.g. Temporary Assistance for Needy Families, are funded by the federal government and administered by states. Some are entirely state-run. There may be some federal-only programs. As far as state programs are concerned (including TANF), there are limits on the extent to which the federal government can command states to enact particular laws (a 10th Amendment question). The relevant question from Dole v. South Dakota is whether where the federal requirement would be coercive. The anti-coercion doctrine is one of the issues investigated in <a href=\"https://crsreports.congress.gov/product/pdf/R/R45323\" rel=\"nofollow noreferrer\">this report</a> on federalism and Congressional power. In <a href=\"https://supreme.justia.com/cases/federal/us/567/519/\" rel=\"nofollow noreferrer\">National Federation of Independent Business v. Sebelius</a>, 567 U.S. 519 SCOTUS indicated that cutting off a large-enough federally-supported program – over 10% of a state's budget – is coercive.</p>\n<p>The Federal government would not have the power to directly prevent state welfare payments to un-vaccinated individuals e.g. by arresting them for receiving funds, or arresting state officials for disbursing funds. At most, they could declare that a state is ineligible to receive funds unless... and then there is the question of what the state is indirectly commanded to do.</p>\n",
"score": 3
},
{
"answer_id": 89170,
"body": "<h2>Probably</h2>\n<p>Congress may generally condition direct federal assistance on any basis it chooses, provided that no <em><strong>suspect classification</strong></em> is used, and that the law passes <em><strong>rational basis</strong></em> scrutiny. That is, congress must assert, or the courts must find, some plausible connection between the restriction and the purposes of the act.</p>\n<p>Funds distributed through the states, and particularly ones partly funded by the states, are subject to different and stricter constraints. Congress does not have as free a hand in those cases.</p>\n<p>In this case, it is valid a purpose of welfare legislation to encourage beneficiaries to find and accept paying jobs when possible and as soon as possible. Congress might think that being vaccinated makes that more likely.</p>\n<p>However, no such federal law has been passed, and politically I think it is unlikely that one would be. Until and unless such a law is passed and then challenged, one cannot be sure if it would be found constitutional.</p>\n",
"score": 0
}
] |
[
"united-states",
"us-constitution"
] |
Can a person be held liable for copyright infringement for sharing a meme on social media?
| 7 |
https://law.stackexchange.com/questions/89200/can-a-person-be-held-liable-for-copyright-infringement-for-sharing-a-meme-on-soc
|
CC BY-SA 4.0
|
<p>This has been a topic of debate in recent years, as memes often include images or videos that are copyrighted. Some argue that sharing a meme constitutes fair use, as it is typically used for comedic or satirical purposes. However, others argue that sharing a meme is no different from sharing any other copyrighted material and that the person who shares it should be held liable for infringement. The answer to this question is still unclear and continues to be debated in courts around the world.</p>
<p>What is international law on it?</p>
| 89,200 |
[
{
"answer_id": 89203,
"body": "<blockquote>\n<p>Can a person be held liable for copyright infringement for sharing a\nmeme on social media?</p>\n</blockquote>\n<p>Yes, unless some other exception applies.</p>\n<p>There is no specific exemption from copyright law for sharing a meme on social media.</p>\n<p>Generally speaking, since sharing a meme on social media involves publishing the entire work to everyone in the world with Internet access, "fair use" is not a very strong defense to a copyright infringement claim in this context.</p>\n<p>A more viable defense is the doctrine of "implied license" which is the idea that the original person to post a meme on the Internet did so with the implied intent that it be shared widely without a further grant of permission. For this reason, copyright disputes rarely arise from the sharing of a meme on social media.</p>\n<p>But if the original person to post a meme on the Internet did so without permission of the owner of the copyright to the meme, it is an infringement of the copyright of the meme to share it on social media. This is true even if sharing the meme on social media is merely an innocent infringement made in the good faith belief that it was being shared with the permission of the copyright owner.</p>\n<p>A claim of innocent infringement status for someone infringing a copyright by sharing a meme on social media is supported by Terms of Service for social media sites that turn over copyright to posted material to the social media provider (with an express right to share it on the site) in cases where the material is provided by the author of or owner of the meme for copyright purposes. Also, another Terms of Service states that users promise not to post copyright infringing materials on the site without permission to do so. Both of these terms of service provisions are ubiquitous on social media sites.</p>\n<p>But, innocent infringers are still subject to lawsuits for money damages for copyright infringement, just not with all of the same remedies as in cases of intentional copyright infringement.</p>\n<p>Social media sites themselves are immune from copyright infringement liability under Section 230 of the Digital Millennium Copyright Act (DMCA) under U.S. law (where most social media firms are based), however, so long as they comply with takedown notices in the manner provided by the DMCA. Usually, if a copyright infringing meme is taken down by a social media site, the copyright owner will not pursue other users of the site who innocently infringed their copyright by sharing a meme posted by someone else, although the law does not require them to do so.</p>\n<blockquote>\n<p>What is international law on it?</p>\n</blockquote>\n<p>Copyright law primarily arises under the domestic laws of a country. There are some treaties such as the <a href=\"https://www.wipo.int/treaties/en/ip/berne/\" rel=\"nofollow noreferrer\">Berne Convention</a> that seek to standardize copyright law internationally, which many, but not all countries, have adopted.</p>\n<p>But, in every case, analysis of the specific instance of sharing a meme on social media is not specifically addressed by international treaties, in part, because the practice did not exist when the vast majority of these treaties were entered into by the countries that are parties to them.</p>\n<p>Facebook, for example, didn't come into existence until October 28, 2003, and the widespread practice of sharing memes on social media is more recent than that.</p>\n",
"score": 9
}
] |
[
"copyright",
"international"
] |
Terminating the contract early (before tenant moves in)
| 1 |
https://law.stackexchange.com/questions/14252/terminating-the-contract-early-before-tenant-moves-in
|
CC BY-SA 4.0
|
<p>I live in the UK and am renting out a flat in Netherlands, my tenant gave me the deposit but the agreement states he has to pay one month in advance. Two weeks have passed since we signed contract but still no money.</p>
<p><strong>If the tenant hasn't moved into the property yet is there a way to terminate contract on the spot (or some other faster procedure)?<br />
If not, how long do I have to wait to start termination due to non payment, and how do I do this?</strong></p>
| 14,252 |
[
{
"answer_id": 89231,
"body": "<p>You have the right to end the lease if the tenant hasn't moved into the property yet and hasn't paid the necessary deposit. However, you should ensure that you follow the correct termination procedures by reviewing the contract's terms. You can notify the tenant in writing that the contract is terminated due to nonpayment if the procedure for termination is not specified in the contract.</p>\n<p>In the Netherlands, you must follow the eviction procedure if the tenant has already moved in. In most cases, this means giving the tenant notice that they haven't paid. If the tenant still hasn't paid, you can start legal proceedings to evict them. Depending on the particulars of the case, this procedure may take a different amount of time. In order to ensure that you adhere to the correct procedures for terminating the contract and evicting the tenant, you should consult a Dutch lawyer.</p>\n",
"score": 1
}
] |
[
"contract-law",
"rental-property",
"residential-lease",
"rent",
"netherlands"
] |
Is evidence of rumours of a defendant's racism unhelpful in a defamation case involving accusations of cheating?
| -9 |
https://law.stackexchange.com/questions/88985/is-evidence-of-rumours-of-a-defendants-racism-unhelpful-in-a-defamation-case-in
|
CC BY-SA 4.0
|
<p>Defendant accuses Plaintiff of cheating in a competition. Plaintiff sues Defendant for defamation.</p>
<p>Plaintiff has heard rumours that Defendant is racist. <strong>Assuming these could be substantiated in some way:</strong></p>
<ol>
<li><p>Would it have been unhelpful for Plaintiff to bring this up in the lawsuit (given that Plaintiff did not do so)?</p>
</li>
<li><p>Would it be unhelpful for Plaintiff to bring this up later on eg in depositions or actual trial?</p>
</li>
</ol>
| 88,985 |
[
{
"answer_id": 88996,
"body": "<p>Information about a defendant’s character or past misdeeds are not generally admissible during a court proceeding.</p>\n<p>It can be brought in to rebut testimony. If the defendant takes the stand and asserts that they never discriminated against anyone due to their nation of origin, then evidence they they have done so becomes relevant.</p>\n",
"score": 7
},
{
"answer_id": 88986,
"body": "<p>Bringing up rumors is rarely helpful in litigation. Rumors are hearsay, and therefore typically inadmissible.</p>\n",
"score": 5
}
] |
[
"united-states",
"discrimination",
"defamation",
"sport",
"courtroom-strategy"
] |
Is it common/normal for barristers of the same chambers to represent opposing sides in a case?
| 7 |
https://law.stackexchange.com/questions/89184/is-it-common-normal-for-barristers-of-the-same-chambers-to-represent-opposing-si
|
CC BY-SA 4.0
|
<p>The case of Rakusen v Jepson was recently heard in the UKSC. Appellant Rakusen was represented by Tom Morris of Landmark Chambers, the respondents meanwhile by Edward Fitzpatrick of Garden Court. However, the intervenor on the side of the Respondents were apparently represented by Charles Bishop and Justin Bates, both as well of Landmark Chambers, opposing their colleague Mr. Morris of the same Chambers.</p>
<p>Is this at all unusual? I don’t want to restrict the question to insights prompted by the following, but chambers apparently in principle are meant to merely be a logistical arrangement of sharing physical facilities and clerks, while each member is fully independent. However, I have noticed that in practice that is really not how many chambers in fact function.</p>
<p>So, whether or not it is an explicit ethical breach, is it not even unusual so as to likely raise eyebrows?</p>
| 89,184 |
[
{
"answer_id": 89186,
"body": "<p>As your question is concerned on English law, a clear answer is <code>yes</code> but is specific for English law.</p>\n<p>Barristers from the same chamber may represent opposing sides in a case. This is normal and common practice. Barristers are independent practitioners in the British and many other common law systems who represent clients in court but are not in charge of the case as a whole. As a result, they may be instructed to represent clients whose interests diverge, and each barrister is responsible for deciding whether or not to accept a particular case.</p>\n<p>While each barrister acts independently and is free to take on any case they choose, chambers are groups of barristers who share resources and facilities. Even if they are representing opposing sides in the same case or different cases, barristers are typically required to adhere to the professional code of ethics and maintain client confidence.</p>\n<p>It is important to note that ethical rules prohibit lawyers from representing opposing sides in the same case, and the concept of barristers and chambers does not exist in some jurisdictions, such as the United States.</p>\n",
"score": 11
}
] |
[
"england-and-wales",
"professional-ethics",
"barristers"
] |
Expungement of Arrest and Court Records after Death
| 8 |
https://law.stackexchange.com/questions/26169/expungement-of-arrest-and-court-records-after-death
|
CC BY-SA 3.0
|
<p>If someone with a few criminal arrests and deferred sentences passes away, can a friend or family member have these Misdemeanor and Felony arrest records expunged on behalf of the person who passed away? In particular, how would this situation be handled under Texas law?</p>
| 26,169 |
[
{
"answer_id": 26170,
"body": "<p>Sorry for your loss.</p>\n\n<p>It appears that this is generally possible. <a href=\"http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.55.htm#55.011\" rel=\"noreferrer\">Texas Code of Criminal Procedure, Title I, Chapter 55, Article 55.011</a>:</p>\n\n<blockquote>\n <p>Art. 55.011. RIGHT OF CLOSE RELATIVE TO SEEK EXPUNCTION ON BEHALF OF\n DECEASED PERSON. (a) In this article, \"close relative of a deceased\n person\" means the grandparent, parent, spouse, or adult brother,\n sister, or child of a deceased person.</p>\n \n <p>(b) A close relative of a deceased person who, if not deceased, would\n be entitled to expunction of records and files under Article 55.01 may\n file on behalf of the deceased person an ex parte petition for\n expunction under Section 2 or 2a, Article 55.02. If the court finds\n that the deceased person would be entitled to expunction of any record\n or file that is the subject of the petition, the court shall enter an\n order directing expunction.</p>\n</blockquote>\n",
"score": 16
}
] |
[
"criminal-law",
"privacy",
"texas",
"expungement"
] |
Economic Duress Induced Illegally Makes a Contract Void or Voidable?
| -3 |
https://law.stackexchange.com/questions/89192/economic-duress-induced-illegally-makes-a-contract-void-or-voidable
|
CC BY-SA 4.0
|
<p><a href="https://law.stackexchange.com/a/48892/36096">This answer</a> explains the difference between a void and voidable contract:</p>
<blockquote>
<p>Void means it never happened</p>
</blockquote>
<blockquote>
<p>Voidable means someone has the right to declare it void (q.v.)</p>
</blockquote>
<p>If a contract was signed due to illegal economic duress, I understand the contract can be voided. But is it automatically void or is it voidable by the victim if they choose? Can the victim choose to enforce the contract if s/he so wishes?</p>
<p>What if the victim only wants to enforce certain parts of the contract (assume the contract contains a clause stating that if one clause is unenforceable it shall shall not prevent other clauses from being enforced)? Does the victim have the option to enforce specific parts?</p>
<p><strong>Update</strong>:</p>
<p>By illegal economic duress I mean duress that was not induced simply due to one side having better bargaining power but duress that was induced in violation of the law.</p>
| 89,192 |
[
{
"answer_id": 89193,
"body": "<blockquote>\n<p>If a contract was signed due to economic duress, is it void or\nvoidable?</p>\n</blockquote>\n<p>No.</p>\n<p>Economic duress is not a ground to find that a contract is void or voidable.</p>\n<blockquote>\n<p>is it automatically void or is it voidable by the victim if they\nchoose?</p>\n</blockquote>\n<p>Some kinds of conduct do give rise to a duress defense to a contract (e.g. a threat of violent conduct directed at the other party to the contract or someone connected to them which also constitutes criminal extortion), and while I'm not familiar with cases specific to illegal economic duress as defined in the question, usually, duress that is an affirmative defense to contractual liability causes a contract to be voidable but not void.</p>\n<p>I can't recall ever seeing anyone prevail on an affirmative defense of illegal economic duress, although I recognize that such cases exist in circumstances that include the conditions described by the question (i.e. in circumstances where the economic pressure applied arose from or involved illegal conduct by the party seeking to enforce the contract).</p>\n<blockquote>\n<p>Can the victim choose to enforce the contract if s/he so wishes?</p>\n</blockquote>\n<p>A victim of conduct that makes a contract voidable can generally enforce a voidable contract. In contrast, no one can enforce a void contract (e.g., if it is void due to illegality or because the person who supposedly assented to it didn't execute it knowing that it was a contract which is called fraud-in-the-factum).</p>\n<blockquote>\n<p>What if the victim only wants to enforce certain parts of the contract\n(assume the contract contains a clause stating that if one clause is\nunenforceable it shall shall not prevent other clauses from being\nenforced)? Does the victim have the option to enforce specific parts?</p>\n</blockquote>\n<p>Generally not.</p>\n<p>One exception is the "severability" doctrine is applied to arbitration clauses in contracts that are voidable as a whole due to the existence of an affirmative defense. The doctrine will allow such contracts to be subjected to arbitration, unless there is a problem specific to the arbitration clause, even if there is an affirmative defense to enforceability of the contract, such as duress, that otherwise renders the contract as a whole voidable.</p>\n",
"score": 4
},
{
"answer_id": 89217,
"body": "<h2>Voidable</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=\"australia-container\">australia</a></p>\n<p><a href=\"https://www.australiancontractlaw.info/law/duress\" rel=\"nofollow noreferrer\">Duress</a> must be “illegitimate” pressure by one party on another and can include illegitimate <a href=\"http://lawcentral.com.au/LCNewsArchive/LCNewsIssueDetails_Public.asp?NormalViewIssueNumber=691\" rel=\"nofollow noreferrer\">economic</a> pressure.</p>\n<blockquote>\n<p>Historically in Australia and other jurisdictions, the concept of economic pressure was not considered a legitimate basis for common law duress. This changed in <em>Universe Tankships Inc. of Monrovia v. International Transport Workers Federation and Others</em> [1982] 2 All ER 67 where the English courts established the precedent that economic duress can give rise to a duress claim. While this position has been adopted in Australia, some more recent developments have altered the doctrine.</p>\n</blockquote>\n<p>What constitutes illegitimate economic pressure has conflicting precedents and the High Court has not resolved the ambiguity. It is accepted that conduct that is unlawful (e.g. a threatened breach of contract) is illegitimate but it is not clear if lawful but unconscionable conduct is illegitimate.</p>\n",
"score": 1
}
] |
[
"united-states",
"contract-law",
"civil-law",
"new-jersey"
] |
Can a Tenant File a Counterclaim in Summary Eviction Proceedings?
| -2 |
https://law.stackexchange.com/questions/89211/can-a-tenant-file-a-counterclaim-in-summary-eviction-proceedings
|
CC BY-SA 4.0
|
<p>I was reading <a href="https://newjerseyevictionlaw.com/eviction-law/evict-tenant-non-payment-rent/" rel="nofollow noreferrer">this blog post</a> which states:</p>
<blockquote>
<p>The good news is that the courts classify the eviction process as a
“summary action,” meaning that it is about as quick a legal process as
can be. There is no discovery allowed, and the tenants do not have
the opportunity to submit an answer and/or counterclaim. The primary
issue at hand is simply whether or not the tenant owes money to the
landlord.</p>
</blockquote>
<p>If a landlord files a suit to evict a tenant due to nonpayment of rent & the tenant overpaid rent in previous months, can the tenant file a counterclaim against the landlord and ask the court to consolidate the two claims in order to prevent eviction? Or is the tenant required to pay the full amount owed and then file a separate lawsuit against the landlord to collect the amount overpaid?</p>
| 89,211 |
[
{
"answer_id": 89212,
"body": "<p>The facts are not described clearly, but the bottom-line question is "was the rent actually paid?". For example is the total over-paid rent is equal or greater to the amount owed for the current month, then the tenant is not in arrears. It is s defense to an eviction that you do not owe money. As explained <a href=\"https://www.lsnjlaw.org/legal-topics/housing/landlord-tenant/evictions/pages/defenses-to-eviction-aspx\" rel=\"nofollow noreferrer\">here</a>, if you paid some of the rent but not enough, you can have the eviction dismissed by paying the rent and court costs the court closes on the day of the hearing. Then the tenant avoids eviction (for non-payment), and also does not have to file a separate proceeding.</p>\n",
"score": 2
}
] |
[
"united-states",
"landlord",
"tenant",
"new-jersey",
"eviction"
] |
Can I use a celebrity’s likeness in a meme for advertising purposes?
| -2 |
https://law.stackexchange.com/questions/89205/can-i-use-a-celebrity-s-likeness-in-a-meme-for-advertising-purposes
|
CC BY-SA 4.0
|
<p>Can I use a common meme that contains a celebrity for advertising purposes without the celebrity’s permission?</p>
<p>For example, the Jim Halpert Whiteboard Meme. This is a very common meme.</p>
<p>Can I use this meme in the format “X is a problem, and My Company is the solution” as an advertisement for my company without John Krasinski’s permission to do so?</p>
<p>Here is a link to the meme:</p>
<p><a href="https://i.imgflip.com/3rsxfo.jpg" rel="nofollow noreferrer">https://i.imgflip.com/3rsxfo.jpg</a></p>
| 89,205 |
[
{
"answer_id": 89209,
"body": "<h2>No, you can’t</h2>\n<p><strong>For at least 1 and up to 4 reasons</strong></p>\n<ol>\n<li>You don’t own the copyright in the photograph.</li>\n<li>You risk the tort of passing off by implying that Jim endorses your company when he in fact knows nothing about it. While it may be well understood in the memosphere that there is no such endorsement, you are taking it outside that context.</li>\n<li>In jurisdictions with laws against misleading and deceptive conduct, the same facts that lead to passing off are also likely misleading and deceptive.</li>\n<li>In jurisdictions which protect personality rights or require model releases, you don’t have consent.</li>\n</ol>\n",
"score": 5
}
] |
[
"copyright",
"advertisements"
] |
How generic a trademark has to be to receive less protection?
| -1 |
https://law.stackexchange.com/questions/89175/how-generic-a-trademark-has-to-be-to-receive-less-protection
|
CC BY-SA 4.0
|
<p>When more generic a trademarked name is, the less protection it will get. E.g. names taken from mythology and folklore (or real world cities/locations) can possibly receive less protection, but how generic a trademarked name has to be to receive less protection? (Another note: searching on the trademark database of the USPTO for a name like "Venus" or "Neptune" returns a lot of results, so why are many uses of these names not infringing?)</p>
| 89,175 |
[
{
"answer_id": 89179,
"body": "<h2>You misunderstand what a "generic" trademark is</h2>\n<p>It is not true that a generic word used as a trademark receives less protection than a made-up word. And not just because:</p>\n<p><a href=\"https://i.stack.imgur.com/xT4sh.png\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/xT4sh.png\" alt=\"Thor "All words are made up"\" /></a></p>\n<p>Some of the <a href=\"https://www.visualcapitalist.com/top-100-most-valuable-brands-in-2022/\" rel=\"nofollow noreferrer\">strongest</a> brands in the world are generic words: Apple, Amazon, China Construction Bank, Agricultural Bank of China, State Grid, Deutsche Bank, Home Depot, Shell, Bank of China, Allianz, China Mobile, Bank of America, Nike, United Health Care, Chase, Oracle, Target, American Express, China Merchants Bank, China Life, Uber, General Electric. All of these are generic words (not all are English words).</p>\n<p><a href=\"https://www.digip.com/en/blog/post/the-ultimate-guide-to-generic-trademarks\" rel=\"nofollow noreferrer\">Generic</a> in a trademark context has a specific meaning - that the trademark has become synonymous with the thing itself through general use. Once the general usage is such that the trademark no longer identifies the particular goods or services of the trade mark holder, it is no longer a valid trademark. This is why trade mark holders need to be vigorous in defending their rights and actively pursue all (or most) infringements. Disney isn't hard on third-party creators because they're nasty: they're hard on them because if they don't defend their trademarks they can lose them.</p>\n<p>Some trademarks that have gone generic are:</p>\n<ul>\n<li>aspirin</li>\n<li>heroin</li>\n<li>escalator</li>\n<li>granola</li>\n<li>trampoline</li>\n<li>jet ski</li>\n<li>ping-pong</li>\n<li>taser</li>\n<li>tarmac</li>\n<li>teflon</li>\n<li>velcro</li>\n<li>photoshop</li>\n</ul>\n",
"score": 2
}
] |
[
"trademark"
] |
Is the reading of website meta tags generally prohibited?
| 5 |
https://law.stackexchange.com/questions/89130/is-the-reading-of-website-meta-tags-generally-prohibited
|
CC BY-SA 4.0
|
<p><strong>Problem:</strong> I would like to create a plugin for my website. This Plugin makes it possible to recognise a shared link in a comment field. Afterwards the plugin fetch the link and scrape the meta data of the shared source (link). After successfully scraping the Link will reformat to a nice "Card" with thumbnail and description text (<em>Note 1</em>). A kind of card instead of just a link. Or better the way Google does it.</p>
<p><strong>Question:</strong> Is it allowed to "scrape" metadata without prior consent of the website operator?</p>
<p><strong>My thoughts on this:</strong> Since I am only scraping the metadata by machine and it is there to be used by search engine bots, social platforms anyway, that one is allowed to do it.</p>
<p><em>Note 1</em> : <em>(only pages that are public and explicitly allowed to be crawled by search engines).</em></p>
<h2>Update</h2>
<h3>Example for better understanding</h3>
<p>Below you can see an example of the metadata I read from a page. Below you can see the editing on my page with my own style.</p>
<pre><code><title>Kanada: Abgeschossenes Flugobjekt hatte zylindrische Form - DER SPIEGEL</title>
<meta charset="utf-8">
<meta name="viewport" content="width=device-width,initial-scale=1,user-scalable=no">
<meta name="MSSmartTagsPreventParsing" content="true">
<meta http-equiv="imagetoolbar" content="no">
<meta name="apple-itunes-app" content="app-id=424881832">
<link rel="manifest" href="https://www.spiegel.de/public/spon/json/manifest.json">
<meta name="theme-color" content="#e64415" media="(prefers-color-scheme: light)">
<meta name="theme-color" content="#D03D12" media="(prefers-color-scheme: dark)">
<meta name="google-site-verification" content="lwpSnwoyvMkHS9nHmLBZuYOashAHfooOHSHeA_KS7ek">
<meta name="robots" content="index, follow, noarchive, noodp, max-snippet:-1, max-image-preview:large, max-video-preview:-1">
<meta name="Googlebot-News" content="index, follow">
<meta name="copyright" content="DER SPIEGEL, Hamburg, Germany">
<meta name="email" content="spiegel_online@spiegel.de">
<meta name="author" content="DER SPIEGEL">
<meta name="date" content="2023-02-12T07:08:39+01:00">
<meta name="last-modified" content="2023-02-12T07:08:39+01:00">
<meta name="locale" content="de_DE">
<meta name="description" content="Es war innerhalb von zwei Tagen das zweite Objekt im Luftraum über Nordamerika, das von US-Kampfjets abgeschossen wurde. Nun gibt es erste Angaben der kanadischen Regierung, wie der Flugkörper aussah.">
<meta name="news_keywords" content="Ausland, USA, Kanada, Justin Trudeau, Volksrepublik China, Spionage, Luftfahrt">
<meta name="twitter:card" content="summary_large_image">
<meta name="twitter:site" content="@derspiegel">
<meta name="twitter:title" content="Erste Erkenntnisse der kanadischen Regierung: Abgeschossenes Flugobjekt hatte zylindrische Form">
<meta name="twitter:creator" content="@derspiegel">
<meta name="twitter:image" content="https://cdn.prod.www.spiegel.de/images/c431237d-0187-4cc6-95f6-c3bc8c12ede1_w1280_r1.77_fpx59.37_fpy50.jpg">
<meta property="og:title" content="Erste Erkenntnisse der kanadischen Regierung: Abgeschossenes Flugobjekt hatte zylindrische Form">
<meta property="og:type" content="article">
<meta property="og:url" content="https://www.spiegel.de/ausland/kanada-abgeschossenes-flugobjekt-hatte-zylindrische-form-a-8134d1f8-6259-46d3-b1bc-0de4446380fc">
<meta property="og:image" content="https://cdn.prod.www.spiegel.de/images/c431237d-0187-4cc6-95f6-c3bc8c12ede1_w1280_r1.77_fpx59.37_fpy50.jpg">
<meta property="og:description" content="Es war innerhalb von zwei Tagen das zweite Objekt im Luftraum über Nordamerika, das von US-Kampfjets abgeschossen wurde. Nun gibt es erste Angaben der kanadischen Regierung, wie der Flugkörper aussah.">
</code></pre>
<p>And now a screenshot of my page where the metadata is displayed.
<a href="https://i.stack.imgur.com/d6gyy.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/d6gyy.png" alt="enter image description here" /></a></p>
<p><strong>What I store in my database?</strong> The content from the metatags: title, description, author, sourcelink, tags and the link to the thumbnail.</p>
| 89,130 |
[
{
"answer_id": 89133,
"body": "<p>You are asking the wrong question. It should be: <em>When</em> you have downloaded the content and metadata, what are you allowed to do with it and what is forbidden?</p>\n<p>Somebody owns the copyright to the text and images in the thumbnail. This could be the operator of the third party website, or that site has licensed the content from yet another party. You haven't licensed it from anybody. So you can <strong>watch</strong> the content in accordance with the TOS, and your computer can evaluate the metadata to do it, but you cannot <strong>display</strong> it on your own site.</p>\n<p>Details will differ between jurisdictions, of course. You might also be held responsible for illegal content in the thumb you generate.</p>\n<hr />\n<p><em>Follow-up: There seems to be some question of what 'thumbnail' and 'card' mean in this context. This answer assumes a somewhat scaled-down representation of the content of the entire page, not just a collection of actual</em> metadata <em>like content length and expiry.</em></p>\n",
"score": 14
},
{
"answer_id": 89154,
"body": "<blockquote>\n<p>Question: Is it allowed to "scrape" metadata without prior consent of the website operator?</p>\n</blockquote>\n<p>Yes, it is. The whole <em>point</em> of meta data is that you know what this page is about. If the page did not want copy-righted material in it, it would just not put it into the meta fields.</p>\n<p>The preview you see when you paste a link into a chat window, for example in Teams or Facebook, is built on the <a href=\"https://ogp.me/\" rel=\"nofollow noreferrer\">Open Graph Protocol</a>, an <em>optional</em> part of a website that the owner can include if they <em>want</em> their page displayed in such a neat little preview.</p>\n<p>This protocol is explicitely made to give a third party (for example Facebook) enough data to present said preview/thumbnail of the page. It is not limited to any one company, Facebook is just an example, <em>any</em> company can use it. This is what is was made for!</p>\n<p>I would assume that the owner voluntarily giving any visitor and any third party the information how to view their link as a preview, in a structured way that assumes this will be used by third parties, automatically means they <em>want</em> the third party to show it this way.</p>\n<p>A note: <em>only</em> metadata though. Leave the actual non meta data content alone. That is theirs, they gave it to their direct viewers in a way that the direct viewers can see it. The fact that you technically <em>can</em> scrape it does not give you permission to display it anywhere.</p>\n",
"score": 3
},
{
"answer_id": 89173,
"body": "<p>I used to scrape the web professionally for a search engine.</p>\n<p>The Web is a consensual operation. You send</p>\n<pre><code> GET /page.html HTTP/1.1 \n Host: example.com \n</code></pre>\n<p>And then their server does whatever the heck <em>it chooses</em> to do. It can give you dead air, error return or content. They can't force terms & conditions onto you merely for giving the above request; that is not a legally binding signature.</p>\n<p>But once they give you content unauthenticated, they have no leg to stand on to claim that you "did them wrong". However, there are a few exceptions to that rule.</p>\n<h2>Don't DOS them</h2>\n<p>The problem is, when a stone cold novice writes their first web crawler, they usually write something like this:</p>\n<pre><code> foreach url (list.of.URLs) {\n fetch url; \n new.urls = searchTextForURLs (url); \n append new.urls to list.of.urls; \n sleep(5000); # this line is forgotten\n }\n</code></pre>\n<p>This particular example is spidering, which is much worse. But regardless --</p>\n<p>Invariably without fail, a novice's first URL scraper will forget to include that last line. Even if it's scraping a multitude of sites, it ends up doing a lot of consecutive URLs on a single site, and that can hammer a small site to death. That is a DOS (Denial Of Service) and they have a cause of action.</p>\n<h2>Don't get lost in infinite recursion</h2>\n<p>It's common for sites to be designed, for completely legitimate reasons, to have an infinite namespace of URLs. You will never stop discovering URLs, just because of the way they structure them. Or they may syndicate content, so their /shop/ space may entail Amazon's entire catalog. Crawling this can lead to DOS, but even if you get that <code>sleep(5000)</code> line in there and pace yourself, doing a page every 5 seconds for eternity still adds up to significant server burden. And again they may have a cause of action.</p>\n<h2>Respect robots.txt and other directives</h2>\n<blockquote>\n<p><meta name="robots" content="index, follow, noarchive, noodp, max-snippet:-1, max-image-preview:large, max-video-preview:-1">\n</p>\n</blockquote>\n<p>Your crawler needs to parse robots.txt and similar on-page directives like the above Robots meta-tag, and respect what it is telling you. They don't really have much standing to complain if you are crawling stuff they don't want crawled, yet, they "forgot" to exclude it in Robots.txt or other means.</p>\n<p>Of course once they notice your crawler, the first thing they'll do is amend robots.txt to exclude it. So check it <em>periodically</em>. I've been on the receiving end of many a user complaint because we cached robots.txt (so we weren't hammering robots.txt with every query; that would be rude) ... as a result, their change didn't result in the <em>immediate</em> abatement of traffic that they were hoping for, and they had to wait a few hours.</p>\n<p>If you want to be polite, it also helps to give your crawler a unique name, so they can call it out specifically. In that case you need to respect robots.txt directives against that particular crawler name.</p>\n",
"score": 0
},
{
"answer_id": 89185,
"body": "<p>There have already been answers and they have not all definitively answered the question. I have thought about this again and would like to share it here. In my opinion, the best answer was from nvoigt. That's why I'm summarising it again and adding my thoughts.</p>\n<p><strong>Basic consideration</strong></p>\n<p>It can be assumed that anyone who puts a website on the internet and operates it wants to make the information accessible to the public. If you don't want to do that, you can protect your site with different possibilities: <code>html access, programmatic authentication etc</code>. Those who do not want "hard" protection may only want their site not to be indexed by search engines.</p>\n<p>This is where <code>robots.txt</code> comes into play. With this you can exclude your entire page from the search engine index or only parts of it. By default, every page visited by a search engine robot is included in the index. Exceptions are, of course, websites that violate the guidelines of the search engine operator.</p>\n<p>Metadata describe and give a short summary about the respective page.\nThe site operator can enrich the meta data with more information through special notations with more information. Page operators make such metatag optimizations in order to be found even better. For example, through appealing short descriptions. To generate a better click through rate. The presence and use of so-called <code>OG tags</code> in the head area are also indicators that show that the site operator is actively spreading his content. This is an conclusive / implied act.</p>\n<p>If you also explicitly mention in the <code>robots.txt</code> file that your page may be indexed, you also explicitly want the metadata to be read. The site operator can also explicitly exclude search engines and user agents. The bot operator should also respect this.</p>\n<h3>Conclusion and answer</h3>\n<p>If all factors are given, nothing stands in the way of reading out the metadata. And so I would claim that there is no copyright infringement.</p>\n<p>But as soon as you earn money with the snippets on your page, another level comes into play. In Germany, it is called the Leistungsschutzgesetz für Verlage (ancillary copyright law for publishers). The Leistungsschutzgesetz is primarily understood as a right to protect investments. Ancillary copyright is also referred to as "neighbouring rights". Sometimes also as "neighbouring rights", in Anglo-American terms "neighbouring rights". Thus, neighbouring rights apply alongside copyrights. In Germany, publishers had complained that Google and Co. were making money from advertising by displaying snippets on their site. The publishers wanted a piece of that. A long and tough process ended with Google, Facebook and others paying the publishers a share of the revenue. So anyone who pursues all the above-mentioned points and non-commercial goals can relax here. But you should still not feel safe. Because as soon as the small and non-commercial site becomes successful (traffic), one or the other company would certainly get in touch with its lawyer.</p>\n<h2>Final personal comment</h2>\n<p>The answer of my question is yes and no. This example shows once again that the original idea of the internet. Free knowledge transfer for everyone no longer applies. It's always about stupid money.</p>\n",
"score": 0
}
] |
[
"copyright",
"internet",
"ownership"
] |
Case record if the case is lost (UK)
| 2 |
https://law.stackexchange.com/questions/89140/case-record-if-the-case-is-lost-uk
|
CC BY-SA 4.0
|
<p>How can I search for a case record if the case is lost?
It was originally filed by the trustee as a small claim but might have been moved up to a higher court due to the complexity.</p>
<p>The case was not about me but the judgement has serious implications for me and my neighbours.</p>
| 89,140 |
[
{
"answer_id": 89202,
"body": "<p>If you have lost a case record, you can try the following steps to find it:</p>\n<ol>\n<li><p>Contact the Court Clerk at: Get in touch with the clerk of the court in the jurisdiction where the case was first filed. They might be able to help you find the case file.</p>\n</li>\n<li><p>Utilize the Court's Online Database: Case records can be found in many courts' electronic databases. The docket or case index, which can provide details about the case's status, parties, and court appearances, may be included in this.</p>\n</li>\n<li><p>Obtain a Copies of the File: You can request a copy of the file from the Clerk of Court if the case record cannot be found in the electronic database. This service may be available for a fee in some jurisdictions.</p>\n</li>\n<li><p>Examine the Files of the Appellate Court: If the case was moved to a higher court because of its complexity, you can look for information about the case in the records of the appellate court. This can frequently be accomplished by contacting the Clerk of Court or visiting the website of the appellate court.</p>\n</li>\n<li><p>Hire a lawyer: You might want to think about hiring an attorney to help you find the case record if you are unable to do so on your own. You may be able to locate the case record and gain a better understanding of the judgment's impact on your situation with the assistance of an attorney who has the knowledge and resources necessary to do so.</p>\n</li>\n</ol>\n<p>It is essential to keep in mind that it may be challenging to ascertain the case's outcome if the case record has been lost. It might be in your best interest to speak with an attorney if you are worried about how the decision will affect your situation.</p>\n",
"score": 1
}
] |
[
"united-kingdom",
"contract-law"
] |
Responsibility for a traffic infraction commited by someone else?
| 2 |
https://law.stackexchange.com/questions/89183/responsibility-for-a-traffic-infraction-commited-by-someone-else
|
CC BY-SA 4.0
|
<p>Let's say Bob owns a vehicle and his wife uses the car. The wife doesn't come to a complete stop at a red light and the traffic camera catches it. They issue a ticket in Bob's name as he owns the car but he did not commit the traffic infraction. Bob has proof he was not driving that day. Would Bob still be responsible for the traffic infraction his wife committed? Can the authorities compel Bob to say who was driving? What happens if he doesn't know who was driving?</p>
| 89,183 |
[
{
"answer_id": 89201,
"body": "<p>Under Florida law (<a href=\"http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0300-0399/0316/0316.html\" rel=\"nofollow noreferrer\">316.0083</a>), an officer can view the infraction and issue a notification of infraction "to the registered owner of the motor vehicle involved in the violation". Thereupon, the owner has the right to remedies under <a href=\"http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0300-0399/0318/0318.html\" rel=\"nofollow noreferrer\">§318.14</a>, which include arguing that the owner did not commit the infraction. The camera evidence may sufficiently prove that an infraction was committed, but not necessarily that the vehicle owner committed the infraction. This is a civil matter, so the official who disposes of the appeal must determine whether it is more likely than not that the owner committed the infraction. That effectively means that in the face of evidence that the owner committed an infraction, some evidence is needed to show that the owner did not commit the infraction. Thus proof that he was not driving (I suppose witnesses to his whereabouts in Timbuktu on the day in question) would suffice, and there is no requirement that the owner prove someone else did the deed.</p>\n",
"score": 4
},
{
"answer_id": 89199,
"body": "<p>In most states in the US, the registered owner of a vehicle is responsible for any traffic violations that occur while the vehicle is being driven, regardless of who was actually behind the wheel. This is known as the "owner liability" principle.</p>\n<p>However, if Bob can provide proof that he was not driving the car at the time of the infraction and that his wife was, he may be able to transfer the liability to her. This may involve providing evidence such as witness statements, security camera footage, or travel records.</p>\n<p>As for the authorities compelling Bob to say who was driving, they may request this information, but Bob is not required to incriminate himself or his spouse. If Bob does not know who was driving the car at the time of the infraction, he can simply state that he does not have that information.</p>\n<p>In conclusion, it depends on the specific laws and regulations of the state in question and the evidence available, but in general, the registered owner of a vehicle may be held responsible for traffic violations committed by someone else using the car, but they are not required to incriminate themselves or their spouse.</p>\n",
"score": 2
},
{
"answer_id": 89195,
"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<p>Bob, as the car's registered keeper, will get a <a href=\"https://www.legislation.gov.uk/ukpga/1988/53/section/1?timeline=false\" rel=\"nofollow noreferrer\">Notice of Intended Prosecution</a> which stipulates he has to name the driver at the relevant time.</p>\n<p>Although he cannot be compelled to name her, he commits an offence if he doesn't do do so - unless he satisfies the "due diligence" statutory defence at <a href=\"https://www.legislation.gov.uk/ukpga/1988/52/section/172?timeline=false\" rel=\"nofollow noreferrer\">section 172(4)</a>, Road Trafic Act 1988:</p>\n<blockquote>\n<p>A shall not be guilty of an offence ... if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.</p>\n</blockquote>\n",
"score": 1
}
] |
[
"united-states",
"traffic",
"florida"
] |
Why is Rakusen v Jepsen cited in that order?
| 1 |
https://law.stackexchange.com/questions/89196/why-is-rakusen-v-jepsen-cited-in-that-order
|
CC BY-SA 4.0
|
<p><a href="https://www.supremecourt.uk/cases/uksc-2021-0188.html" rel="nofollow noreferrer"><em>Rakusen v Jepsen</em></a> is a high profile Rent Repayment Order (RRO) application case, in which the Applicant’s name typically comes before that of the respondent when the case is referred to. In this one, Rakusen is the name of the landlord (ie respondent party), yet their name seems invariably to be cited in front. Why is this?</p>
| 89,196 |
[
{
"answer_id": 89198,
"body": "<p><a href=\"https://www.bailii.org/ew/cases/EWCA/2021/1150.html\" rel=\"nofollow noreferrer\">Rakusen was the appellant at the Court of Appeal</a>. Many, but not all, appellate courts adopt the norm of listing the appellant as the first party in the style of cause, even if they were the respondent or defendant in the underlying matter.</p>\n<p>This style decision can vary between courts within the same country and can even differ between courts within the same appeal hierarchy. E.g. in Canada different provinces do it different ways, and not all of them match the Supreme Court's style.</p>\n",
"score": 4
}
] |
[
"england-and-wales",
"landlord",
"legal-citation"
] |
Can attorneys act as privacy proxies for a business transaction and conceal the identities of their clients?
| 1 |
https://law.stackexchange.com/questions/88829/can-attorneys-act-as-privacy-proxies-for-a-business-transaction-and-conceal-the
|
CC BY-SA 4.0
|
<p>Can attorneys act as privacy proxies for a business transaction and conceal the identities of their clients? Is this a form of power of attorney? Or attorney-client privilege?</p>
<p>Is a corporation structure required to preserve anonymity?</p>
<p>Are two attorneys even needed for this kind of transaction below? Could Attorney A complete this transaction while representing both Person A and Person B and not revealing Person A's identity to Person B?</p>
<p>Synopsis:</p>
<p>Person A wants to sell their business, which consists of digital "virtual" property, such as a website and/or a website domain. This property is not real estate, not a corporation holding assets, doesn't concern copyright or trademark, or is physical property which requires legal documents of ownership such as a title, deed, etc.</p>
<p>Person A hires Attorney A to be in intermediary and legal counsel for a business transaction. Person A advertises (without revealing their identity to the public) and soon finds out that Person B is interested in buying. Person A tells Person B that they want to complete the transaction without revealing their identity, and to find a Attorney to oversee the transaction. Person B hires Attorney B.</p>
<p>Attorney A and Attorney B negotiate the price and other transfer details for their clients, such as email addresses and passwords for the actual transfer of ownership, as well as form of payment.</p>
<p>The key is that Person A wants to conceal their identity from Person B and Attorney B. Person B doesn't care who Person A is, they only want to complete the transaction.</p>
<p>Is it possible for Person A to sell the digital property (with Attorney A acting as a proxy with Attorney B) to Person B without their identity being revealed to Person B?</p>
<p>Can Attorney B send payment (check, bank draft, or crypto) to Attorney A, who then deposits/moves it into an intermediate account (their own account or a temporary account), and then transfers payment (check, bank draft, or crypto) to Person A?</p>
<p>Would Attorney A have to reveal Person A's identity to Attorney B? If so, could Attorney B conceal Person A's identity from their own client Person B?</p>
<p>Would both attorneys need to determine between themselves that the transaction was not illegal in any way (IP theft, money laundering, etc.) before they agreed to complete the transaction between their clients? Would they be liable if the transaction turned out to be illegal?</p>
<p>Would records of the real identities of Person A and Person B need to be maintained by one or both the attorneys for a certain time frame?</p>
<p>Jurisdiction US.</p>
| 88,829 |
[
{
"answer_id": 89197,
"body": "<p>In general, an attorney in the United States can act as a privacy proxy for a business transaction and conceal their clients' identities. Pseudonyms or other means of hiding the identities of the parties can be used to accomplish this. However, the specific laws and regulations that apply in the jurisdiction where the transaction takes place may determine the extent to which an attorney can conceal the identities of their clients.</p>\n<p>In this scenario, Attorneys A and B can negotiate the transaction's specifics, including the method of payment, on their clients' behalf. Without disclosing Person A's identity to Person B or Attorney B, Attorney A could receive payment from Attorney B on behalf of Person B and then transfer the payment to Person A. However, the attorneys would need to take ethical considerations into account and take steps to avoid conflicts of interest. In addition, they would be held accountable if the transaction turned out to be illegal in any way, such as for the purpose of money laundering or theft of intellectual property.</p>\n<p>As required by applicable laws and regulations, the attorneys would likely be required to keep records of Person A and Person B's true identities. The particular facts of the transaction and the jurisdiction would determine the specific requirements for record keeping.</p>\n",
"score": 2
}
] |
[
"united-states",
"attorney-client-privilege",
"power-of-attorney",
"sale-of-goods",
"proxy"
] |
How can consent-banner as a service be GDPR compliant?
| 14 |
https://law.stackexchange.com/questions/89188/how-can-consent-banner-as-a-service-be-gdpr-compliant
|
CC BY-SA 4.0
|
<p>A couple of months ago I've read that hosting google fonts on your own server is a better but maybe slower solution as loading content from google servers is already something that the users must be informed about due to submitting your IP to google.</p>
<p>Now I am realizing that basically the same thing is true for consent services that host the entire experience on their servers and give users only the service, am I right?
They all claim they are safe to use, but I fail to understand how so.</p>
<p>I was testing a consent service that requires me to basically load their cloud hosted javascript code:</p>
<p><code><script type="text/javascript" charset="UTF-8" src="https://cdn.cookie-consent-provider.com/<SOME-ID>.js"></script></code></p>
<p>Now I can't get my head around whether this is already some sort of non-compliant GDPR behaviour because even if this provider would do everything to protect the data and be compliant, etc, I still would have to establish a connection to their servers first, in order to be able to inform the users because in some cases self-hosting this service is not possible due to a paywall or not-available at all.</p>
<p>So basically</p>
<ol>
<li>loading my website</li>
<li>script loads cookie consent from remote server</li>
<li>cookie consent is displayed</li>
</ol>
<p>would be invalid because the user could not decide, nor decline step 2? He or she would send their IP to the remote address without consent.</p>
<p>The fun part is: What if the consent banner has no way of declining step 2.? I mean, this is weird because you would decline consent to access the consent servers.</p>
<p>§6 <a href="https://gdpr-info.eu/art-6-gdpr/" rel="noreferrer">https://gdpr-info.eu/art-6-gdpr/</a> states that consent is required and if this is true, then no consent service unless self-hosting would actually be compliant?</p>
<p>Where am I wrong?</p>
| 89,188 |
[
{
"answer_id": 89189,
"body": "<p>The critical part is the nature of the relationship between you, the website provider, and the provider of the material you embed.</p>\n<p>If the embed-provider acts as your <strong>data processor</strong>, then things are generally fine. The GDPR does not really distinguish between personal data processing activities that you perform yourself versus activities that you've outsourced to third parties. However, you would remain responsible for compliance. This also means that per Art 28 GDPR, you will need a contract with that embed-provider (sometimes called a “Data Processing Agreement”, DPA). This contract stipulates that the processor will only use the personal data as instructed by you, but not for their own purposes.</p>\n<p>With the Google Fonts case, it must be highlighted that Google does not act as a processor for this service. Google does not offer a DPA that covers the Fonts CDN. While Google <em>promises</em> that it doesn't use the personal data collected in this context in any nefarious way, there are zero contractual guarantees for website providers.</p>\n<p>So we have to consider the scenario when the embed-provider is an <strong>independent data controller</strong>. We as the website provider have no control over what the embed-provider does with the collected data, our control only extends to whether or not we cause the website to disclose data to that third party. But this is still processing as personal data (see also the CJEU <em>Fashion ID</em> case), and we need a legal basis for this data sharing.</p>\n<p>In the Google Fonts case, the court in Munich found that there was no legal basis for using Google's CDN. There was no consent, no contractual necessity, and no necessity for a legitimate interest. After all, these fonts could all be self-hosted.</p>\n<p>(Technical remark: and given how modern browsers enforce cache isolation and provide HTTP/2, serving fonts from your main domain is probably faster anyway).</p>\n<p>Consent management services will typically act as your data processor. You don't need a legal basis for “sharing” data with them, because the processing remains under your control. As far as the GDPR is concerned, loading a script from your processor's servers is equivalent to loading a script from your own servers (which you're probably hosting via a another data processor anyway). Sometimes, the necessary data processing agreement is already part of the standard terms of service, sometimes it's a separate document that has to be signed. Figuring this out is your responsibility as the data controller, before deploying the service.</p>\n<p>Art 6 GDPR doesn't say that you always need consent. It says that you need a legal basis, for which paragraph 1 enumerates six choices. For a lot of use cases, a “legitimate interest” will be appropriate, though it requires a balancing test. Sometimes, other laws mandate that you use a particular legal basis. For example, the ePrivacy Directive says that you must get GDPR-consent when accessing or storing information on the user's device (such as cookies), unless that access/storage is strictly necessary to provide a service explicitly requested by the user.</p>\n",
"score": 23
}
] |
[
"gdpr"
] |
Is sharing image images from OnlyFans revenge porn under English law?
| 4 |
https://law.stackexchange.com/questions/83407/is-sharing-image-images-from-onlyfans-revenge-porn-under-english-law
|
CC BY-SA 4.0
|
<p><em>This is a hypothetical question about behaviour that would, at the very least, be copyright infringement, and isn't very nice, so shouldn't be done, but I'm specifically interested in the 'revenge porn' aspects.</em></p>
<p>V is a young woman who sells naked pictures of herself on OnlyFans. D purchases those pictures and posts them online to forums for pornographic images, with no apparent motivation to harm V (though V finds this distressing).</p>
<p>Has D committed 'revenge porn' under English law by posting these intimate images without V's consent or does the fact V consented to the commercial sale of these images mean this is 'just' copyright infringement?</p>
| 83,407 |
[
{
"answer_id": 83408,
"body": "<p>It depends, in part, what is meant (and what can be proven) by D's intent:</p>\n<blockquote>\n<p>no apparent motivation to harm V</p>\n</blockquote>\n<p>Revenge porn, or more accurately, "<em>Disclosing, or threatening to disclose, private sexual photographs and films with intent to cause distress</em>" contrary to <a href=\"https://www.legislation.gov.uk/ukpga/2015/2/section/33?timeline=false\" rel=\"nofollow noreferrer\">section 33</a> of the Criminal Justice and Courts Act 2015 which states:</p>\n<blockquote>\n<p>(1)A person commits an offence if—</p>\n<ul>\n<li><p>(a)the person discloses, or threatens to disclose, a private sexual photograph or film in which another individual (“the relevant individual”) appears,</p>\n</li>\n<li><p>(b)by so doing, <strong>the person intends to cause distress to that individual</strong>, and</p>\n</li>\n<li><p>(c)the disclosure is, or would be, made without the consent of that individual.</p>\n</li>\n</ul>\n</blockquote>\n<p>If there is no intent, then the offence is not committed.</p>\n<p>If there is intent to cause distressto V, then <a href=\"https://www.legislation.gov.uk/ukpga/2015/2/section/35?timeline=false\" rel=\"nofollow noreferrer\">setion 35</a>\nneeds to be considered, especially subsection (2):</p>\n<blockquote>\n<p>Meaning of “private” and “sexual”</p>\n<p>(1)The following apply for the purposes of section 33.</p>\n<p><strong>(2)A photograph or film is “private” if it shows something that is not of a kind ordinarily seen in public.</strong></p>\n</blockquote>\n<p>(3)A photograph or film is “sexual” if—</p>\n<blockquote>\n<ul>\n<li><p>(a)it shows all or part of an individual's exposed genitals or pubic area,</p>\n</li>\n<li><p>(b)it shows something that a reasonable person would consider to be sexual because of its nature, or</p>\n</li>\n<li><p>(c)its content, taken as a whole, is such that a reasonable person would consider it to be sexual.</p>\n</li>\n</ul>\n</blockquote>\n<p>I cannot find and caselaw or guidance on the particular issue - i.e. whether or not V's commercial sales of her own images would fall within this definition - and as D's intent is not clear, it would probably be a matter for a jury to decide.</p>\n",
"score": 3
}
] |
[
"criminal-law",
"england-and-wales",
"sexual-offences"
] |
Is rendering Markdown to HTML considered an "adaptation" under CC BY-SA 3.0?
| 6 |
https://law.stackexchange.com/questions/45392/is-rendering-markdown-to-html-considered-an-adaptation-under-cc-by-sa-3-0
|
CC BY-SA 4.0
|
<p>Title pretty much sums it up. Are the rights given to adaptations granted if someone renders Markdown?</p>
| 45,392 |
[
{
"answer_id": 89157,
"body": "<p><strong>Usually not, usually</strong></p>\n<p>Translating literary works is generally regarded as an adaptation, but I don't think translation programs—and HTML and Markdown, two markup languages with similar principles—are adaptations. According to the description on Creative Commons,</p>\n<blockquote>\n<p>Merely changing the format never creates a derivative.</p>\n</blockquote>\n<p>So changing WAV to MP3 is not considered an adaptation, nor is changing DOC to PDF. As for HTML and Markdown, it seems a bit vague, but it can be said that although their encoding methods are different, the results presented are very similar.</p>\n<p>According to <a href=\"https://creativecommons.org/faq/#when-is-my-use-considered-an-adaptation\" rel=\"nofollow noreferrer\">https://creativecommons.org/faq/#when-is-my-use-considered-an-adaptation</a>,</p>\n<blockquote>\n<p>a modification rises to the level of an adaptation under copyright law\nwhen the modified work is based on the prior work but manifests\nsufficient new creativity to be copyrightable</p>\n</blockquote>\n<p>Adaptation produces a derivative. <strong>A derivative contains both the will of the original author and the adapter.</strong> Creation involves choice, the painter chooses the colors to use, and the translator chooses the words to translate. There are inherently fewer options to create a program. Rendering markdown to html can be done directly through other programs, and it is difficult to see the shadow of the adapter. Editorial originality is very import.</p>\n<p>Yet one more thing is important: legal definitions. This is what it says in the <a href=\"https://creativecommons.org/faq/#what-is-an-adaptation\" rel=\"nofollow noreferrer\">https://creativecommons.org/faq/#what-is-an-adaptation</a> FQA page</p>\n<blockquote>\n<p>What constitutes an adaptation depends on applicable law</p>\n</blockquote>\n<p>So, the laws of where you live still matter. We all know that there is a large gray area in copyright law, which often makes everything depend on the actual situation.</p>\n<p>This is just a little bit of my personal thoughts for your reference :)</p>\n",
"score": 3
},
{
"answer_id": 89187,
"body": "<p>A clear answer is yes, MD was the original source, and it is modified to an entirely differentiated version of HTML. Under the definitions of the Creative Commons Attribution-ShareAlike 3.0 (CC BY-SA 3.0) adaptation is generally covered. Citing the <a href=\"https://creativecommons.org/licenses/by-sa/3.0/legalcode\" rel=\"nofollow noreferrer\">legal code</a> of the paper, adaptation is defined by Section 1 of Article a as:</p>\n<blockquote>\n<p>"Adaptation" means a work based upon the Work, or upon the Work and other pre-existing works, such as a translation, adaptation, derivative work, arrangement of music or other alterations of a literary or artistic work, or phonogram or performance and includes cinematographic adaptations or any other form in which the Work may be recast, transformed, or adapted including in any form recognizably derived from the original, except that a work that constitutes a Collection will not be considered an Adaptation for the purpose of this License. For the avoidance of doubt, where the Work is a musical work, performance or phonogram, the synchronization of the Work in timed-relation with a moving image ("synching") will be considered an Adaptation for the purpose of this License.</p>\n</blockquote>\n<p>From this, you have to note this instruction clearly:</p>\n<blockquote>\n<p>or adapted including in any form recognizably derived from the original,</p>\n</blockquote>\n<p>The output of the HTML seems that content is clearly derived from the original work does not mean it is not an adaptation. It is counted as an adaptation.</p>\n<p>However, there are no exclusive rights granted, the adaptation is of similar content so using the same license and citing the original author is compulsory.</p>\n",
"score": 0
}
] |
[
"copyright",
"creative-commons",
"derivative-work"
] |
What laws regulate the use and ownership of firearms by British-flagged ships?
| 4 |
https://law.stackexchange.com/questions/88816/what-laws-regulate-the-use-and-ownership-of-firearms-by-british-flagged-ships
|
CC BY-SA 4.0
|
<p>Firearms are heavily regulated in the UK, especially handguns and automatic weapons, after several horrific shootings in the late 20th century. Long-guns, such as shotguns and rifles are also tightly controled, one or more licenses being required. One exception that there seems to be for this regulation is for <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/282006/msn1704.pdf" rel="nofollow noreferrer">British-flagged vessels</a>. There are also <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/439852/Armed_guard_guidance.pdf" rel="nofollow noreferrer">a document</a> which publicly available on armed guards for ships, but it is not clear to me if this includes otherwise illegal weapons.</p>
<p>In order to better explain question, here's a scenario - <em>ACME shipping</em> has a cargo ship that frequently travels round the <a href="https://en.wikipedia.org/wiki/Horn_of_Africa" rel="nofollow noreferrer">Horn of Africa</a>, a known high-risk area for piracy. ACME decide that in order to safeguard their ships, crew and cargo, they must have a contingent of armed guards on board each ship. What firearms would these guards be allowed, under British law, to carry? (Only Rifles and Shotguns, or could these guards also be authorised by the Secretary of State to carry Assault rifles and handguns as well?)</p>
| 88,816 |
[
{
"answer_id": 89134,
"body": "<p>Authorisation under <a href=\"https://www.legislation.gov.uk/ukpga/1968/27/section/5?timeline=false\" rel=\"nofollow noreferrer\">section 5</a><sup>1</sup>, Firearms Act 1968 is required but only if the criteria in the <a href=\"https://www.gov.uk/government/publications/firearms-law-guidance-to-the-police-2012\" rel=\"nofollow noreferrer\">Home Office Guide on Firearms Licensing Law</a> at <a href=\"https://www.gov.uk/government/publications/firearms-law-guidance-to-the-police-2012/guide-on-firearms-licensing-law-accessible-version#chapter-28-authorisation-of-armed-guards-on-uk-registered-ships\" rel=\"nofollow noreferrer\">Chapter 28: Authorisation of armed guards on UK registered ships</a> is met:</p>\n<blockquote>\n<p>The policy to allow the use of armed guards applies only in exceptional circumstances:</p>\n<blockquote>\n<p>to ships transiting the area at risk of attack by pirates within the High Risk Area (HRA) which is bounded: in the Red Sea: northern limit: Latitude 15°N; in the Gulf of Oman: Northern limit: Latitude 22°N; Eastern limit: Longitude 065°E; Southern limit: Latitude 5°S;</p>\n<p>when ‘Best Management Practices’ to deter piracy is being followed fully but, on its own, is not deemed by the shipping company and the ship’s master as sufficient to protect against acts of piracy; AND</p>\n<p>the use of armed guards is assessed to reduce the risk to the lives and wellbeing of those on board the ship.</p>\n</blockquote>\n<ul>\n<li><p>The policy applies to internationally trading passenger ships and cargo ships of 500 gross tonnage and above. The policy only applies in relation to the protection of UK registered ships.</p>\n</li>\n<li><p>The assurance process for the authorisation of private maritime security companies is to ensure that as far as possible public safety is not endangered by the use of armed guards.</p>\n</li>\n<li><p>Private Maritime Security Companies (PMSCs) wishing to employ armed guards on board UK registered ships in these exceptional circumstances must be authorised to possess a range of firearms (which may include section 1 and section 2 weapons), including those requiring an authority from the Secretary of State for the Home Department under section 5 of the 1968 Act, and be able to deploy them as necessary. All PMSCs wishing to employ armed guards on UK registered ships must receive clearance via the Home Office section 5 authorisation process.</p>\n</li>\n<li><p>It is an offence for a person to have in his possession, purchase, acquire, manufacture, sell or transfer, or possess, purchase or acquire for sale or transfer, a weapon prohibited under section 5 of the 1968 Act without the authority of the Secretary of State. It is also an offence not to comply with any condition of the authority.</p>\n</li>\n</ul>\n<p>[...]</p>\n<p>28.14 The PMSC must provide details of the number and type of section 5 prohibited firearms they wish to possess on board the UK registered ship, and why this number and type of weapon is necessary. <strong>All PMSCs must be authorised to possess section 5 firearms.</strong></p>\n</blockquote>\n<p>The High Risk Area covered by this policy is shown by the red/orange hatching on this map, sourced from <a href=\"https://www.ukwarrisks.com/ap-areas/\" rel=\"nofollow noreferrer\">UK War Risks</a> (<em>no affiliation</em>):</p>\n<p><a href=\"https://i.stack.imgur.com/hu9i5.jpg\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/hu9i5.jpg\" alt=\"enter image description here\" /></a></p>\n<hr />\n<p><sup>1</sup>Section 5(3) of the 1968 Act states:</p>\n<blockquote>\n<p>In this section “authority” means an authority given in writing by—</p>\n<ul>\n<li><p>(a) the Secretary of State (in or as regards England and Wales), or</p>\n</li>\n<li><p>(b) the Scottish Ministers (in or as regards Scotland).</p>\n</li>\n</ul>\n</blockquote>\n<p>In this instance, the authorisation would presumably be given by the <a href=\"https://en.m.wikipedia.org/wiki/Home_Secretary\" rel=\"nofollow noreferrer\">Home Secretary</a></p>\n",
"score": 4
}
] |
[
"united-kingdom",
"firearms",
"law-of-the-sea"
] |
It is really illegal to plug in a device to watch BBC iPlayer or Live TV in a Starbucks?
| 25 |
https://law.stackexchange.com/questions/89138/it-is-really-illegal-to-plug-in-a-device-to-watch-bbc-iplayer-or-live-tv-in-a-st
|
CC BY-SA 4.0
|
<blockquote>
<p>Please note: it is unlawful to plug in your device in our stores if you are watching live TV or downloading or watching programmes on demand on BBC iPlayer.By using the WiFi, you agree to the terms of use</p>
</blockquote>
<p>This is the warning that appears in Starbucks' Wi-Fi network captive portal (this is <strong>not</strong> in the UK (this is in France, but this very much looks like a generic worldwide warning than anything else, BBC iPlayer is geo-blocked here), tagged <a href="/questions/tagged/united-kingdom" class="post-tag" title="show questions tagged 'united-kingdom'" aria-label="show questions tagged 'united-kingdom'" rel="tag" aria-labelledby="united-kingdom-container">united-kingdom</a> because it seems to more suit the warning)</p>
<p>What law are they referring to?</p>
<p>The</p>
<blockquote>
<p>plug in your device in our stores</p>
</blockquote>
<p>Is watching iPlayer/Live TV on battery legal, then?</p>
| 89,138 |
[
{
"answer_id": 89142,
"body": "<p>I suspect this relates to the UK TV Licencing provisions as listed <a href=\"https://www.tvlicensing.co.uk/check-if-you-need-one/topics/watching-live-online-and-on-mobile\" rel=\"noreferrer\">here</a>,</p>\n<p>Specifically :</p>\n<blockquote>\n<p>Can I watch TV on my mobile phone without a TV Licence?</p>\n<p>If you’re using a mobile device powered solely by its own internal\nbatteries – like a smartphone, tablet or laptop – you will be covered\nby your home’s TV Licence, wherever you’re using it in the UK and\nChannel Islands.</p>\n<p>However, if you’re away from home and plug one of these devices into\nthe mains and use it to watch live on any channel, TV service or\nstreaming service, or use BBC iPlayer*, you need to be covered by a\nseparate TV Licence at that address (unless you’re in a vehicle or\nvessel like a train, car or boat).</p>\n</blockquote>\n<p>I've said "I suspect" as I don't know for certain what Starbucks are doing, but it looks like this is means that either they are not providing you with use of their Licence at those premises, or that they don't have one for those premises (particularly likely if they're not in the UK, also possible if they are). Without mains power connection (ie. batteries only) it would be the user's home Licence that was relevant.</p>\n<p>TV Licencing is covered by <a href=\"https://www.legislation.gov.uk/ukpga/2003/21/part/4/2022-06-10\" rel=\"noreferrer\">Part 4 of the Communications Act 2003.</a></p>\n<p>[Edit : The official source of the summary at my first link can be found at <a href=\"https://www.legislation.gov.uk/uksi/2004/692/schedule/1\" rel=\"noreferrer\">Schedule 1 paragraph 2(c) of the Statutory Instrument</a>. Thanks to Carcer for the comment.]</p>\n",
"score": 40
},
{
"answer_id": 89161,
"body": "<p>I checked what the BBC site has to say, mostly about iPlayer. Note that they are sometimes a bit vague, not aimed at lawyers but at the general public.</p>\n<p>It seems that ones you pay the licence fee, everyone living in your home is covered, except other people who rent a room within your home; they need their own license. You are covered when you are away from home, so you are allowed to use iPlayer. There are exceptions, for example students who live in a second home.</p>\n<p>That only allows you watching iPlayer within the UK for on demand streamed or for live programs. If you go abroad, you are allowed to record programs onto your device in the UK, and then watch abroad. So it is indeed not legal to watch streamed programs through iPlayer in France (but legal in the UK, assuming you have a TV license in the first place). How much legal responsibility a restaurant would have, for example, is not clear to me. And obviously providing video streams has some amount of cost, so the restaurant wouldn't like this even if legal.</p>\n<p>After thinking about it, the BBC could probably easily go after the customer who streams BBC videos in France, assuming that customer has a UK license, but probably wouldn't be able to go after the restaurant.</p>\n",
"score": 1
}
] |
[
"united-kingdom"
] |
What is the basis for the convention of referring to representative solicitors in the plural?
| -1 |
https://law.stackexchange.com/questions/89176/what-is-the-basis-for-the-convention-of-referring-to-representative-solicitors-i
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CC BY-SA 4.0
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<p>Often a party’s representative seems to be referred to in formal legal contexts as their “solicitors”, even when it appears to be a single individual who is managing the case on the party’s behalf. Why then is the representative so often referred to as their “solicitors”?</p>
| 89,176 |
[
{
"answer_id": 89181,
"body": "<h2>Because "solicitors" refers to the firm</h2>\n<p>Historically, solicitors were only permitted to operate as sole traders or in partnership with other solicitors (but not with any other professionals). Either way, they were referred to as a firm. So when a person is represented, the firm is their "solicitors" plural.</p>\n<p>Many jurisdictions have modified these historic practices to allow non-solicitors to be partners and/or to allow solicitors to operate through corporations.</p>\n<p>Note that an in-house lawyer for a non-law firm only represents their employer and is not acting as a solicitor to the general public.</p>\n",
"score": 1
}
] |
[
"england-and-wales",
"legal-terms",
"legal-history",
"solicitor"
] |
What does "support" mean, in oaths of office in the U.S.A.?
| 1 |
https://law.stackexchange.com/questions/13664/what-does-support-mean-in-oaths-of-office-in-the-u-s-a
|
CC BY-SA 4.0
|
<p>The third paragraph of Article VI of the Constitution of the United States includes this:</p>
<blockquote>
<p>The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;</p>
</blockquote>
<p>I would guess that "support" does not forbid them to express disagreement with something in the Constitution or to propose that something in it be amended.</p>
<p>I would also guess that it does mean they acknowledge that whatever power and authority they have is subordinate to the federal Constitution.</p>
<p>Doubtless someone somewhere has more than just guesses about this.</p>
| 13,664 |
[
{
"answer_id": 89180,
"body": "<p>The current wording of the oath of office is:</p>\n<blockquote>\n<p>I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.</p>\n</blockquote>\n<p>This is used for members of Congress, and for military officers. It is specified by <a href=\"https://www.govinfo.gov/content/pkg/USCODE-2011-title5/html/USCODE-2011-title5-partIII-subpartB-chap33-subchapII-sec3331.htm\" rel=\"nofollow noreferrer\">5 USC 3331</a>. This wording was changed in 1862 to make it stricter, in the face of fears of disloyalty on the outbreak of the US Civil War. The language was further revised in 1884, and again in 1966. See <a href=\"https://www.senate.gov/artandhistory/history/common/briefing/Oath_Office.htm\" rel=\"nofollow noreferrer\">"Oath of Office"</a> an official page of the US Senate, and <a href=\"https://history.house.gov/Institution/Origins-Development/Oath-of-Office/\" rel=\"nofollow noreferrer\">"Oath of Office"</a> an official page of the US House of Representatives.</p>\n<p>However, none of these clearly define the precise meaning of "support", which has ben part of the oath since the version prescribed by the First Congress in 1789.</p>\n<p>I am not aware of any legal case in which a person was charged with having failed to support Constitution, and so no court interpretation of this wording seems to have been made.</p>\n<p>It would seem, by the "ordinary meaning" rule, that a person who vows to "support" the Constitution is promising to adhere to its lawful commands, and to be loyal to the government established by the Constitution. It does not include a promise not to advocate for lawful changes in the Constitution, nor would it be violated by expressing the view that changes in the constitution would be improvements.</p>\n",
"score": 1
}
] |
[
"us-constitution"
] |
Is the restriction on receiving a "present" in the Emoluments Clause applicable?
| 0 |
https://law.stackexchange.com/questions/45868/is-the-restriction-on-receiving-a-present-in-the-emoluments-clause-applicable
|
CC BY-SA 4.0
|
<p>The Emolument Clause:</p>
<blockquote>
<p>No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.</p>
</blockquote>
<p>The part about receiving a title from a King, Prince... is clear enough; the question is about the receiving a "present".</p>
<p>Is a "present" a "<em>thing of value</em>" not paid for at fair value?</p>
<p>Is a thing of value a well defined legal concept when dealing with immaterial goods and ideas?</p>
<p>What is fair value? Can immaterial goods ever have a defined, measurable fair value?</p>
<p>Is an honor a "gift"? Can a US President receive the honor (not money) of a Nobel prize?</p>
| 45,868 |
[
{
"answer_id": 89177,
"body": "<p>§III of the complaint <a href=\"https://ia600600.us.archive.org/28/items/gov.uscourts.dcd.187220/gov.uscourts.dcd.187220.83.0.pdf\" rel=\"nofollow noreferrer\">Blumenthal et al. v. Trump</a> especially para 23- provide useful historical background on the Emoluments Clauses, in connection with preventing corruption, especially the practice of monarchs giving "the usual presents" to diplomats and ministers. This resulted in provisions both in the Articles of Confederation and in The Constitution prohibiting acceptance of "any present, Emolument, Office, or Title". Plaintiffs argue that</p>\n<blockquote>\n<p>the word “emolument” was defined broadly in the eighteenth century to\nmean “profit,” “advantage,” “benefit,” and “comfort.”</p>\n</blockquote>\n<p>Para 24 present a series of examples of "things given" which were found to be within the purview of the Emoluments Clauses, which includes employment, payment for work, also an honorary military insignia, a photograph, as well as <a href=\"https://www.justice.gov/file/20796/download\" rel=\"nofollow noreferrer\">a piece of paper</a> conferring honorary Irish citizenship on President Kennedy. In the latter case, the question is whether he could receive the piece of paper – the conclusion was that he could receive it and then deposit it with the Dept. of State pending Congressional approval (actual citizenship was not conferred, only an honor was conferred, but also a piece of paper was given, which brought the matter within the scope of the Foreign Emoluments Clause. The House of Representatives took up a specific matter on <a href=\"https://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=008/llac008.db&recNum=184\" rel=\"nofollow noreferrer\">May 4, 1789</a> (p. 1581), with ample mention of "presents" (no mention of "emoluments"), receipt of which is prohibited without congressional approval. In the context of that debate, during the 5th Congress, it is clear that "present" means "something that is presented" and not "something of significant value".</p>\n<p>Since the <a href=\"https://crsreports.congress.gov/product/pdf/IF/IF11086\" rel=\"nofollow noreferrer\">three relevant lawsuits</a> never reached the stage of evaluating the merits of the arguments, we can only guess how SCOTUS would interpret the word "present", but it is most likely that at least the present court would adhere to a more historical understanding of the term as "something presented", cash value being irrelevant.</p>\n<p>It is also most probable that a person holding such an office <em>would</em> be legally allowed to say "Thank you" in response to the King of Norway declaring "Wonder speech, Mr. Secretary", even though doing so is acceptance of an honor.</p>\n",
"score": 2
}
] |
[
"constitutional-law",
"us-constitution",
"gift",
"bribery"
] |
How does the Florida homestead exemption apply to a house on .51 acres?
| 2 |
https://law.stackexchange.com/questions/89129/how-does-the-florida-homestead-exemption-apply-to-a-house-on-51-acres
|
CC BY-SA 4.0
|
<p>If my Florida primary residence is on a .51 acre lot in a municipality and I get sued, can the creditor take my house because I am over the .5 acre limit?</p>
<p>I understand that I would keep .5/.51 = 98% of the proceeds, but would I have to go through the hassle of moving over the extra .01 acres?</p>
| 89,129 |
[
{
"answer_id": 89174,
"body": "<h3>You would have to move</h3>\n<p>At least one Florida attorney has spelled this out:</p>\n<p><a href=\"https://www.alperlaw.com/florida-asset-protection/florida-homestead-law/\" rel=\"nofollow noreferrer\">https://www.alperlaw.com/florida-asset-protection/florida-homestead-law/</a></p>\n<blockquote>\n<p>Example of Florida Homestead Law\nGeorge and Martha live on a one-acre lot in Tampa, Florida. The property is worth approximately $500,000.</p>\n</blockquote>\n<blockquote>\n<p>The Constitution affords protection only to one-half acre lots in a city. The homestead protection would apply to 50% of the $500,000 value, or $250,000.</p>\n</blockquote>\n<blockquote>\n<p>George and Martha may not survey the lot, allocate the protected portion to the physical dwelling, and then allocate the unprotected portion to the less valuable backyard. A creditor can record a judgment against the property and force its sale. The creditor would get $250,000 of the sale proceeds applied to its judgment.</p>\n</blockquote>\n",
"score": 2
}
] |
[
"liability",
"florida",
"homeownership"
] |
Does "district" in the Sixth Amendment include state judicial districts?
| 3 |
https://law.stackexchange.com/questions/52541/does-district-in-the-sixth-amendment-include-state-judicial-districts
|
CC BY-SA 4.0
|
<p>The Sixth Amendment refers to:</p>
<blockquote>
<p>"an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law"</p>
</blockquote>
<p>Presumably this originally applied to federal offenses and the "districts" were federal judicial districts. Later the Fourteenth Amendment was construed as applying to the states as much as to the federal government. Would that mean "districts" could mean districts within which the courts of a state have jurisdiction?</p>
| 52,541 |
[
{
"answer_id": 89169,
"body": "<p>The key phrase here is:</p>\n<blockquote>\n<p>... which district shall have been previously ascertained by law</p>\n</blockquote>\n<p>That means the relevant "district" must be specified by law. In the case of a state criminal case, by state law. In some states it would be a county, when the relevant court is a county court. In any case, it would be whatever district the relevant court of criminal jurisdiction had as its area of jurisdiction.</p>\n",
"score": 2
}
] |
[
"us-constitution",
"criminal-procedure"
] |
How is a wealthy criminal expected to get a good lawyer?
| 9 |
https://law.stackexchange.com/questions/89062/how-is-a-wealthy-criminal-expected-to-get-a-good-lawyer
|
CC BY-SA 4.0
|
<p>Say Carl the criminal is a bad guy who's rich. One day, he gets caught. They confiscate his phone and lock him up and deny bail. How is Carl supposed to find a good lawyer? He's locked up and doesn't have access to the internet or even his phone contacts. To be clear, he has tons of money that the very best lawyers would work for. But it means nothing if he can't search online for who's good, etc.</p>
<p>Or is it the case that they let Carl use a laptop and access Yelp or something to look for good lawyers?</p>
| 89,062 |
[
{
"answer_id": 89067,
"body": "<p>If Carl is rich, he already has a lawyer.</p>\n<p>Even if he doesn't already have a lawyer, he can hire the first lawyer he finds to find him another lawyer more to his liking.</p>\n",
"score": 54
},
{
"answer_id": 89063,
"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<p>Everyone who has been arrested and is held in custody at a police station is entitled to free and independent legal advice (FILA) - see <a href=\"https://www.legislation.gov.uk/ukpga/1984/60/section/58?timeline=false\" rel=\"noreferrer\">section 58</a> Police and Criminal Evidence Act 1984 (PACE).</p>\n<p>If Carl doesn't know of, or can't contact, a solicitor he can get one from the on-call duty solicitor list available from the custody officer at the police station.</p>\n",
"score": 10
},
{
"answer_id": 89122,
"body": "<p>Generally, police and prosecution want convictions to happen and stick. They do not want convictions tossed out by an appeals court on the argument that the defendant was denied access to counsel.</p>\n<p>As such, the authorities will bend over backwards to make sure the defendant has access to independent counsel.</p>\n<p>Now that the defendant has a lawyer sworn to serve their legal interests, they now have a minion on the outside who will serve their requirements, certainly including recruiting more high-powered counsel.</p>\n",
"score": 7
},
{
"answer_id": 89139,
"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<p>Carl has a right to have someone informed of his arrest (PACE, section 56):</p>\n<blockquote>\n<p>Where a person has been arrested and is being held in custody in a police station or other premises, he shall be entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told, as soon as is practicable except to the extent that delay is permitted by this section, that he has been arrested and is being detained there.</p>\n</blockquote>\n<p>He should choose as that person someone he expects to find and engage the most suitable lawyer (or to make sure that happens), as well as to collect the children, feed the chickens and turn off the oven.</p>\n",
"score": 4
}
] |
[
"united-states",
"criminal-law",
"california",
"lawyer",
"attorney-client-relationship"
] |
At what point is it "legal" to overthrow the government?
| 32 |
https://law.stackexchange.com/questions/89019/at-what-point-is-it-legal-to-overthrow-the-government
|
CC BY-SA 4.0
|
<p>It has been <a href="https://imprimisarchives.hillsdale.edu/file/archives/pdf/2013_03_Imprimis.pdf" rel="noreferrer">argued</a> that the point of the 2nd amendment is to overthrow a tyrannical government.</p>
<p>In the Declaration it states that “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.”</p>
<p>At what point "Legally", are we allowed to overthrow the government?</p>
| 89,019 |
[
{
"answer_id": 89020,
"body": "<p>Think through the logical combinations of two questions: The government is tyrannical or just, the revolution is successful or not.</p>\n<ul>\n<li>Tyrannical government, revolution successful:<br />\nThe revolutionaries will congratulate each other, and of course they are not persecuted by the new government <em>they install</em>.</li>\n<li>Just government, revolution successful:<br />\nThe revolutionaries will congratulate each other, and of course they are not persecuted by the new government <em>they install</em>.</li>\n<li>Tyrannical government, revolution not successful:<br />\nThe legal system will find the justified attempt illegal (because they are the legal system defending a tyrannical government), the would-be revolutionaries are persecuted.</li>\n<li>Just government, revolution not successful:<br />\nThe legal system will find the unjustified attempt illegal (because they are the legal system of a just government), the would-be revolutionaries are prosecuted.</li>\n</ul>\n<p>So 'legal' is the wrong category for your question. The 2nd Amendment allows the citizens to stockpile arms, which helps both <strong>justified</strong> and <strong>not justified</strong> revolutions. Finding the justification for a revolution is a moral category, not strictly a legal question.</p>\n",
"score": 85
},
{
"answer_id": 89035,
"body": "<blockquote>\n<p>At what point "Legally", are we allowed to overthrow the government?</p>\n</blockquote>\n<p>Never.</p>\n<p>But, if you are successful, the government you have overthrown can't prosecute you for it, since it no longer exists.</p>\n",
"score": 50
},
{
"answer_id": 89028,
"body": "<p>It is pretty much never <strong>legal</strong> to engage in a revolution against the currently established government. Not by the laws created by and supporting that government, it isn't. I am reminded of the couplet by John Harrington:</p>\n<blockquote>\n<p>Treason nae'r doth prosper, what's the reason?<br />\nWhy if it prosper, none dare CALL it treason.</p>\n</blockquote>\n<p>The US Declaration of Independence was a political document, attempting to justify a revolution then in progress, it was not and is not a legal document, and it does not make actions similar to those undertaken by the Americans who revolted against Britain legal in future.</p>\n<p>A revolution may be justified. It may even be morally essential. But those are judgement calls. No court, except the court of public opinion, and later the court of history, will rule on them.</p>\n<p>There is no mechanism in existing law that states that allows for some kinds of revolution to be legal.</p>\n<p>The Second Amendment as currently interpreted allows people to purchase and posses firearms and other weapons, and rules out most regulations of such ownership, although not all. The formal reason for this in the amendment itself is:</p>\n<blockquote>\n<p>A well regulated Militia, being necessary to the security of a free State ...</p>\n</blockquote>\n<p>That would suggest a possible need to call on the militia to defend the country against foreign invaders, or possibly against revolts. Nothing in it says that the purpose is to allow the people to oppose tyrannical governments. At the time the US Constitution was written, the militia was considered to be an important source of reserve military power against invasions and rebellions.</p>\n<p>The relatively recent US Supreme Court decisions which used the 2nd amendment to overturn local gun control laws cited the need for an ordinary, law-abiding citizen to be able to defend against criminals, particularly against home invasions. That case was in the context of a law which made it almost impossible for anyone to lawfully own a handgun, even an off-duty police officer. It explicitly said that some regulation would be permitted. It did not in any way say that ownership of weapons would be useful for legal rebellion, or justified rebellion.</p>\n<p>As <a href=\"https://law.stackexchange.com/a/89020\">the answer by o.m.</a> says:</p>\n<blockquote>\n<p>The 2nd Amendment allows the citizens to stockpile arms, which helps both <strong>justified</strong> and <strong>not justified</strong> revolutions. Finding the justification for a revolution is a moral category, not strictly a legal question.</p>\n</blockquote>\n<p>I fully agree.</p>\n",
"score": 40
},
{
"answer_id": 89034,
"body": "<p>The answer to this question depends on one's perspective about what the law <em>is</em>.</p>\n<p>Through the <a href=\"https://en.wikipedia.org/wiki/Legal_positivism\" rel=\"noreferrer\">positivist lens</a>, a revolution against a government (assuming such government has at least formally enacted rules against such acts) will always be illegal. For example, <a href=\"https://en.wikipedia.org/wiki/Jeremy_Bentham\" rel=\"noreferrer\">Bentham</a> and <a href=\"https://en.wikipedia.org/wiki/John_Austin_(legal_philosopher)\" rel=\"noreferrer\">Austin</a> both asserted that "it could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law" (<a href=\"https://en.wikipedia.org/wiki/H._L._A._Hart\" rel=\"noreferrer\">HLA Hart</a>, "<a href=\"https://www.jstor.org/stable/1338225\" rel=\"noreferrer\">Separation of Law and Morals</a>", Harvard Law Review (1958), p. 599). However, Hart would also argue that just because something is a law need not entail it is to be obeyed (<em>ibid</em>, p. 618).</p>\n<p><a href=\"https://en.wikipedia.org/wiki/Natural_law\" rel=\"noreferrer\">Natural law</a> theorists (e.g. <a href=\"https://en.wikipedia.org/wiki/Lon_L._Fuller\" rel=\"noreferrer\">Lon Fuller</a>) would require that for something to count as a law, it must adhere to basic principles of legality, some of which would include basic principles of morality. One could say, "This thing is the product of a system so oblivious to the morality of law that is not entitled to be called a law." (Lon L. Fuller, "<a href=\"https://www.jstor.org/stable/1338226\" rel=\"noreferrer\">Positivism and Fidelity to Law: A Reply to Professor Hart</a>", Harvard Law Review (1958), p. 661).</p>\n",
"score": 10
}
] |
[
"united-states",
"us-constitution",
"abolishment",
"2nd-amendment"
] |
Is it unethical to file a claim against an attorney who lied?
| -3 |
https://law.stackexchange.com/questions/89150/is-it-unethical-to-file-a-claim-against-an-attorney-who-lied
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CC BY-SA 4.0
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<p>Is it unethical to file a claim with the American Bar Association against the attorney of the opposing party when the attorney lied in court to tip things in his favor (e.g, made a false statement of fact)?</p>
<p>What if the Judge ultimately rejected the attorney's claim?</p>
<p>Is it wrong to bring it to the attention of the judge or do judges frown on such things (since the attorney is representing the other party)?</p>
| 89,150 |
[
{
"answer_id": 89159,
"body": "<blockquote>\n<p>Is it unethical to file a claim against an attorney who lied?</p>\n</blockquote>\n<p>No. It is actually <em>encouraged</em> if the claimant can submit proof of attorney's misconduct. The grievance is to be filed in the <a href=\"https://www.njcourts.gov/attorneys/ethics\" rel=\"nofollow noreferrer\">claimant's jurisdiction</a> rather than with the American Bar Association.</p>\n<p>An attorney's lies may be severe enough to constitute <em>fraud on the court</em> and possibly warrant disbarment. See <a href=\"https://www.leagle.com/decision/1991420122nj298180\" rel=\"nofollow noreferrer\"><em>Matter of LaRosee</em>, 122 N.J. 298, 311 (1991)</a>.</p>\n<p>The real question from a practical standpoint is whether the Disciplinary Review Board and related entities will follow through or be unduly lenient about that attorney's misconduct.</p>\n<blockquote>\n<p>What if the Judge ultimately rejected the attorney's claim?</p>\n</blockquote>\n<p>That does not reduce the impropriety of the attorney's misconduct. The so-called "zealousness" with which lawyers advance their clients' position does not justify indulging in dishonesty <em>devised</em> to result in miscarriage of justice.</p>\n<blockquote>\n<p>Is it wrong to bring it to the attention of the judge or do judges frown on such things (since the attorney is representing the other party)?</p>\n</blockquote>\n<p>No. Judges generally are not up-to-date about attorneys' misconduct. Putting them on notice might frustrate a crook's further attempts to mislead the court in that and other cases the judge presides.</p>\n<p>By not reporting a crook, the public remains exposed to risks from that lawyer's pattern of misconduct.</p>\n",
"score": 3
}
] |
[
"united-states",
"civil-procedure",
"court",
"new-jersey"
] |
What will happen if many people commit one crime?
| 2 |
https://law.stackexchange.com/questions/26923/what-will-happen-if-many-people-commit-one-crime
|
CC BY-SA 3.0
|
<p>For example, if 100 or 1000 participants plan and murder someone in such a manner that they are equally guilty for example, they mutually came with the idea and willingly participated and so on, you get the idea. </p>
<p>Will all be convicted of murder?</p>
| 26,923 |
[
{
"answer_id": 26925,
"body": "<p>If the act and the evidence is sufficient, they will all be convicted. It would not be necessary, for example, to prove that it was Brutus's stab that killed the victim. It is not guaranteed that <em>all</em> of the participants committed the act knowed as <a href=\"http://app.leg.wa.gov/RCW/default.aspx?cite=9A.32.030\" rel=\"nofollow noreferrer\">1st degree homicide</a> (picking Washington law), some may be guilty of <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=9A.28.040\" rel=\"nofollow noreferrer\">conspiracy to murder</a>. <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=9A.08.020\" rel=\"nofollow noreferrer\">Liability for a crime</a> can extend to others besides the person who \"did it\":</p>\n\n<blockquote>\n <p>(3) A person is an accomplice of another person in the commission of a\n crime if: (a) With knowledge that it will promote or facilitate the\n commission of the crime, he or she: (i) Solicits, commands,\n encourages, or requests such other person to commit it; or (ii) Aids\n or agrees to aid such other person in planning or committing it</p>\n</blockquote>\n",
"score": 3
},
{
"answer_id": 89163,
"body": "<p>There was a cause in the UK where a group of 15 people beat up a man, who died from the assault. It was not clear whether anyone wanted him to die, and there is no evidence that anyone on his own would have killed him.</p>\n<p>All fifteen were convicted for conspiracy to murder.</p>\n",
"score": 0
}
] |
[
"criminal-law"
] |
Can a policeman have his service weapon on him in a building that does not allow guns?
| 26 |
https://law.stackexchange.com/questions/60692/can-a-policeman-have-his-service-weapon-on-him-in-a-building-that-does-not-allow
|
CC BY-SA 4.0
|
<p>I am French, so the US regulations about who can hold a gun where are complicated for me, I apologise if the question is obvious in the US.</p>
<p>YouTube brought me to a 2019 case (the <a href="https://www.youtube.com/watch?v=TE85BO6vUYM" rel="noreferrer">TV News version</a> and the <a href="https://www.youtube.com/watch?v=Xi7cjvB32Yw" rel="noreferrer">bodycam version</a> with more details) where a policeman in uniform (and with his service weapon) entered an IRS building for personal business.</p>
<p>He was then stopped and "chased" by a security guard because he did not want to remove his service weapon. The policeman was being asked whether he was on official duties (in which case I assume that the service weapon is fine, having all the right paperwork or situation), he said no and wanted to leave.</p>
<p>He was stopped by the security guard and finally, it is all the security guard's fault.</p>
<p>My questions:</p>
<ul>
<li>Can a policeman enter a no-gun building with his service weapon while on duty, but for personal business?</li>
<li>Can a policeman enter a no-gun building with his service weapon while not on duty (again, for personal business)?</li>
<li>Can a security guard stop someone who entered the no-gun building by all reasonable means awaiting for police to intervene? (the rationale being that someone broke the law)</li>
</ul>
| 60,692 |
[
{
"answer_id": 60694,
"body": "<p>A <a href=\"https://www.13abc.com/content/news/Security-guard-receives-probation-after-May-incident--567733751.html\" rel=\"noreferrer\">follow-up story</a> appears on the local ABC television station, indicating that the security guard pleaded no contest to simple assault. The fact that the security guard was convicted of a misdemeanor does not necessarily indicate that the deputy was allowed to have the gun in the IRS office, only that the security guard's response to the situation was not acceptable.</p>\n<p>I am not able to locate any firearm policy for the Lucas County, Ohio' sheriff's office. Many US law enforcement agencies have a policy that their officers carry their firearms essentially at all times, so that they can respond to unexpected incidents even when they are off duty.</p>\n<p>At the same time, owners of private property ordinarily can admit people, or not, for any reason at all. Unless the officer has an official reason for entering a property when the owner doesn't want the officer there, the officer isn't allowed to enter. It appears that in this case the officer had no official law-enforcement reason to enter.</p>\n<p>But this case doesn't involve private property, it involves federal property. A <a href=\"https://leb.fbi.gov/articles/legal-digest/legal-digest-off-duty-officers-and-firearms\" rel=\"noreferrer\">digest from the FBI</a> states "Federal laws or regulations are not superseded by <a href=\"https://en.wikipedia.org/wiki/Law_Enforcement_Officers_Safety_Act\" rel=\"noreferrer\">LEOSA</a>. Qualified officers may not carry concealed weapons onto aircraft under the act. They also cannot carry firearms into federal buildings or onto federal property."</p>\n",
"score": 50
},
{
"answer_id": 60708,
"body": "<p>The owner of a property can prohibit people from entering the property. If they want to make entering the property contingent on not carrying a gun, they are generally free to do so. There are, however, cases where a police officer doesn't need permission from the owner of a building to enter, and in such a case they probably will be allowed to carry a gun, absent further facts. Examples of such cases are executing a search or arrest warrant and exigent circumstances (for instance, if they see through a window that someone is being beaten).</p>\n<p>Whether they are "on official business" is not dispositive; if a cop comes to your house and asks to interview you regarding a crime, that is official business, but it doesn't mean that they have the right to enter your house without your permission.</p>\n",
"score": 13
}
] |
[
"united-states",
"police",
"firearms"
] |
Locked room double murder
| 5 |
https://law.stackexchange.com/questions/46148/locked-room-double-murder
|
CC BY-SA 4.0
|
<p>Consider a hypothetical room with in it two murder victims. Two people are both suspects of both murders. There is overwhelming evidence to show that the victims were not killed by the same person. It can also be proven that no one besides the two suspects could possibly have commited the murders.</p>
<p>We can deduce logically that both suspects committed precisely one murder, but we don't know who killed who.</p>
<p>Can the suspects be found guilty of murder?</p>
| 46,148 |
[
{
"answer_id": 46168,
"body": "<h2>Yes</h2>\n<p>Now, murder needs a definition because they are all subtly different. Let’s use the one in the <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=\"new-south-wales-container\">new-south-wales</a> Crimes Act 1900:</p>\n<blockquote>\n<p>Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.</p>\n</blockquote>\n<p>The only real difficulty is in the phrase “causing the death charged”. So a sensible prosecutor would charge both defendants with both deaths. A jury would find them guilty beyond reasonable doubt of one of the “death[s] charged”.</p>\n<p>The case is similar to <a href=\"https://www.abc.net.au/news/2016-09-02/roger-rogerson-and-glen-mcnamara-jailed-jamie-gao-murder/7808336\" rel=\"nofollow noreferrer\">Rogerson and McNamara</a> who took a live Jamie Gao into a storeroom and came out with a body. Each accused the other of the murder - the jury didn’t believe either of them.</p>\n",
"score": 3
}
] |
[
"murder",
"hypothetical"
] |
To what extent can Disney restrict Actively commissioned police officers from carrying firearms on Disney property?
| 2 |
https://law.stackexchange.com/questions/89151/to-what-extent-can-disney-restrict-actively-commissioned-police-officers-from-ca
|
CC BY-SA 4.0
|
<p>A friend I know told me of an incident where he was approached by several security officers at Disney Springs outdoor shopping area. At the time, he was an active duty police officer that always carried off-duty. Not thinking there would be restrictions in an outdoor shopping area, he carried his off-duty weapon (concealed). He went to a restaurant with his 3 children and sat down to eat. After he sat down, he was approached by, at least, 5 security officers (uniformed and plain clothed). They asked him if he was carrying and told him that he is not allowed to carry his weapon on the property. Embarrassed and upset about the encounter, my friend identified himself and said "yes, I carry.". He was told that he had to store his weapon at there facility and was escorted by the squad to their security office to fill out paperwork and store his weapon. He told me that he never exposed or talked about his weapon at any time before this encounter. Also, he was embarrassed about being treated like a criminal and that he had to leave his children (unsupervised) at the restaurant until he filled out his paperwork and stored his weapon (approx. 40 minutes).</p>
| 89,151 |
[
{
"answer_id": 89152,
"body": "<p>Disney World is a private entity and private property, and they are free to impose and enforce their own security procedures and requirements, and that includes restricting guns. It doesn't matter how Disney security found that the person was carrying, and it doesn't matter if he was a police officer who happened to be off duty. <a href=\"https://disneyworld.disney.go.com/park-rules/\" rel=\"nofollow noreferrer\">https://disneyworld.disney.go.com/park-rules/</a></p>\n<p>Also see <a href=\"https://thefirearmfirm.com/carrying-a-firearm-at-disney/\" rel=\"nofollow noreferrer\">https://thefirearmfirm.com/carrying-a-firearm-at-disney/</a></p>\n<p>Some states do have laws that allow for firearms on private land and in private businesses, but Florida is not one. <a href=\"https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3789216\" rel=\"nofollow noreferrer\">https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3789216</a></p>\n",
"score": 4
}
] |
[
"police",
"second-amendment"
] |
What does it mean that one may go by whatever name they like by English law?
| -1 |
https://law.stackexchange.com/questions/89145/what-does-it-mean-that-one-may-go-by-whatever-name-they-like-by-english-law
|
CC BY-SA 4.0
|
<p>It seems to be a long-standing and fairly fundamental perception in English law that people may assume or use any name they so like. I’ve seen this discussed in House of Lords decisions, possibly also court of appeal ones, and it further came up last night in a discussion with an English person on the history of personal monikers in England and the proposition that all English surnames come from one of four origins (patronymic, locative, profession, personal characteristic).</p>
<p>In any event, what is the basis and/or rationale for that doctrine, and what are the particular terms of its functioning?</p>
<p>Has it changed and evolved over the centuries? What did it mean in the past? Was there an expectation that one maintained a consistent identity across all of the spheres and contexts in their life over any one period? Or could one assume one identity in their work, another at university, and then marry under yet another name? And maintain all of these identities simultaneously?</p>
<p>Or is it more to say that any time one wishes to change their moniker they are allowed to so long as they assume that new identity in all aspects of their life?</p>
<p>To what extent and how has that doctrine changed over the years, and did the domesday book play a pivotal role in the situation changing?</p>
| 89,145 |
[
{
"answer_id": 89149,
"body": "<h2>The common law is permissive</h2>\n<p>That is to say that, in a common law jurisdiction, the law is about what you <strong>must not</strong> do rather than about what you <strong>must</strong> do. Now, particular statutes may be phrased as requiring certain actions but, if you read them the “common law way” to coin a phrase, they are really imposing sanctions for doing the prohibited thing that falls outside those parameters.</p>\n<p>Since there is no legal prohibition on using multiple names (simultaneously or sequentially) you are free to do so.</p>\n<p>Now, there are common law prohibitions of, for example, fraud or tax evasion. So, if you use different names <em>for the purpose</em> of doing those prohibited things, then that is illegal but it is the specific criminality that is sanctioned, not the use of the alias in perpetrating it.</p>\n<p>The UK has a law that makes it a crime to not register the birth of a child. It also imposes some (and by most country’s standards, very few) restrictions on the name a child can be registered under. But there is no legal obligation on the child or their parents to use the registered name in any particular circumstances. There may be difficulties (amounting to impossibility in some cases) in obtaining a passport, opening a bank account, or claiming social security under a non-registered name but that is due to the necessity to <em>identify</em> the individual for which the name serves as a proxy.</p>\n<p>However, outside the requirements of specific statutes or administrative procedures, the common law position is that your name is what people call you and you identify as your name. The second part is important - I have been called dickhead on many occasions but I do not consider it to be my name.</p>\n<p>The UK has a patronymic tradition for surnames so, usually, on marriage, the female adopts the surname of the male and that, through the marriage certificate, becomes her registered name. However, it is extremely common for women to continue to use their original (and now not registered) name in their professional life and her new name in her private life. This can be problematic. My wife, has on server all occasions been refused permission to board a plane because the ticket (booked by others) was in her maiden name - a name for which she has no official identification. However, that’s a procedural problem - she didn’t do anything illegal.</p>\n",
"score": 3
}
] |
[
"england-and-wales",
"common-law",
"legal-history",
"name"
] |
Which case is "Sheperd" and is it still relevant?
| 1 |
https://law.stackexchange.com/questions/89146/which-case-is-sheperd-and-is-it-still-relevant
|
CC BY-SA 4.0
|
<p>While doing some handiwork and idly listening to a reading of a memorandum of law in a case called Khoberger from Idaho, the court repeatedly argues a SCOTUS case only named as "Sheperd" or similar, with unknown spelling as I only had audio. Most of that filing is about the restriction of a lawyer from acting as a spokesperson for their clients that don't appear to be a party of the Khoberger case.</p>
<p>In any way, the facts of that "Sheperd" case are:</p>
<ul>
<li>During the trial, the jurors were named in the press with names and addresses.</li>
<li>The accused was found guilty</li>
<li>SCOTUS reversed as the case was not impartial.</li>
<li>It was supposedly heard before Miranda, so in or before 1966</li>
</ul>
<p>Which is this mysterious case and is it still as relevant as the memorandum of law I listened to makes it seem from repeating it again and again?</p>
| 89,146 |
[
{
"answer_id": 89147,
"body": "<p>This is the famous <a href=\"https://supreme.justia.com/cases/federal/us/384/333/\" rel=\"nofollow noreferrer\">Sam Sheppard case</a>, (<em>Sheppard v. Maxwell, 384 U.S. 333 (1966)</em>), where the court determined that the defendant had been deprived of his right to a fair trial consistent with the Due Process Clause owing to massive, widespread, and prejudicial publicity.</p>\n<p>See <a href=\"https://www.mtsu.edu/first-amendment/article/334/sheppard-v-maxwell\" rel=\"nofollow noreferrer\">this</a> for more details on that trial. This is quite relevant to Kohberger's future trial, for which a non-dissemination stipulation can be found <a href=\"https://static.foxnews.com/foxnews.com/content/uploads/2023/01/Nondissemination-Stip.pdf\" rel=\"nofollow noreferrer\">here</a>.</p>\n",
"score": 2
},
{
"answer_id": 89148,
"body": "<p>In all likelihood, the case is <em>Sheppard v. Maxwell</em>, <a href=\"https://tile.loc.gov/storage-services/service/ll/usrep/usrep384/usrep384333/usrep384333.pdf\" rel=\"nofollow noreferrer\">384 U.S. 333</a> (1966).</p>\n<p>The holding was that the disruption caused by the media and allowed by the court prevented the accused from receiving a fair trial consistent with the Due Process Clause of the Fourteenth Amendment:</p>\n<blockquote>\n<p>We have concluded that Sheppard did not receive a fair trial consistent with the Due Process Clause of the Fourteenth Amendment and, therefore, reverse the judgment.</p>\n</blockquote>\n<p>It appears to still be good law. It was cited by the Arizona Court of Appeals in <em>State v. Arias</em>, <a href=\"https://casetext.com/case/state-v-arias-2008\" rel=\"nofollow noreferrer\">248 Ariz. 546</a> (Ariz. Ct. App. 2020).</p>\n<p>(Since <em>Sheppard</em> was a habeas petition from a state conviction, the Court applied the Due Process Clause of the Fourteenth Amendment, but the reasoning was infused with Sixth Amendment considerations, such as the defendant's right to an impartial jury.)</p>\n",
"score": 2
}
] |
[
"us-supreme-court",
"case-law",
"identification"
] |
In places where constitutions don't disallow irrational laws to be passed by a legislature, can peremptory norms override irrational laws?
| 1 |
https://law.stackexchange.com/questions/89016/in-places-where-constitutions-dont-disallow-irrational-laws-to-be-passed-by-a-l
|
CC BY-SA 4.0
|
<p>Has there been any case like this anywhere in the world? Or does <a href="https://en.m.wikipedia.org/wiki/Peremptory_norm" rel="nofollow noreferrer">peremptory norm</a> only apply to international law? Can courts recognise peremptory norms and customary law and does codified law take precedence over it or <em>vice versa</em>?</p>
| 89,016 |
[
{
"answer_id": 89036,
"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<blockquote>\n<p>does peremptory norm only apply to international law?</p>\n</blockquote>\n<p>The peremptory norm rule applies only to international law, although other legal doctrines may have a similar effect.</p>\n<blockquote>\n<p>Where constitutions don't disallow irrational laws passed by a\nlegislature , can peremptory norms override irrational laws?</p>\n<p>can courts recognize . . .customary law and does codified law take\nprecedence over it or vice versa?</p>\n</blockquote>\n<p><strong>Rational Basis Constitutional Review</strong></p>\n<p>The U.S. Constitution doesn't explicitly prohibit irrational laws. But it does provide constitutional protections that are enforced more strictly (which is to say that the laws possibly violating a right are subject to "strict scrutiny" in "intermediate scrutiny") in some circumstances, and more leniently with more deference to the legislature in other circumstances (which is to say that the laws are subject to "rational basis" review). These standards of review, including rational basis review, are the product of court interpretations of the U.S. Constitution in case law.</p>\n<p>Often a law will colorably violate equal protection clause of the 14th Amendment to the U.S. Constitution protections in U.S. law. If the law does so, but the non-equal treatment does not involve a 'protected class", it is subject to "rational basis" review for constitutionality, which is very lenient.</p>\n<p>For example, the law might say that people on the north and west sides of their streets get to vote in the morning, and people on the south and east sides of their streets get to vote in the afternoon. People on different sides of the street are not treated exactly equally. But, the side of the street that you live on is not a protected class, so this law would be upheld against a constitutional equal protection challenge if there was any rational basis for it. In this case, it would probably be upheld on the grounds of administrative convenience and managing scarce election administration resources.</p>\n<p>On the other hand, a law that said that black people vote in the morning and white people vote in the afternoon, since it involves race, a protected class, are subject to strict scrutiny and a law that made that distinction would be struck down.</p>\n<p>So probably, would a law that said that women vote in the morning and men vote in the afternoon, since sex distinctions are usually subject to intermediate scrutiny. And, while the intermediate scrutiny standard wouldn't be met under modern U.S. law in modern U.S. conditions of society, in the circumstances of daily life of the 1880s, when women were overwhelmingly home makers in some localities, and many men worked at 9-5 jobs away from home in those localities (perhaps a mining town), the law might even have been upheld under an intermediate scrutiny standard. In reality world, cases like that more often come up, not in election law cases, but in cases where there is discrimination on the basis of gender in tee time allocations at public golf courses.</p>\n<p>Also, when a law is subject to rational basis review, the reasons that the legislature passes the law, if they would be rational if true, are sufficient to validate a law even if the reasons that would make the legislation rational are not, as the legislature believed them to be, actually true as a factual matter, unless it is physically impossible for what is described to happen under a law of nature, for example (e.g., it the prison warden is ordered to hold a prisoner in a cell in which the law of gravity does not exist).</p>\n<p>For example, if the law says that school children must have their route diverted if a black cat would otherwise have crossed their path, because otherwise they will have bad luck, that law could be upheld in a rational basis analysis, even though crossing the path of a black cat does not, in fact, give you bad luck.</p>\n<p>Likewise, a law doesn't have to be the best or most accurate way to make a rational distinction to meet the rational basis. The fact that a better alternative way to handle the issue that the law addresses doesn't mean that it fails to survive rational basis review.</p>\n<p>But if a law truly is, as the question has assumed by definition, completely irrational, it will not be found constitutional even under a rational basis test. So, if there is any colorable equal protection violation or other colorable constitutional violation subject to rational basis review, a completely irrational law will be struck down.</p>\n<p>There are maybe half a dozen or a dozen cases in all of U.S. case law since the adoption of the 14th Amendment that have been found not to meet that test out of hundreds or thousands of challenges on grounds where the rational basis test applies. But on rare occasions, it does happen.</p>\n<p><strong>Canons Of Statutory Construction</strong></p>\n<p><em>The Canon Against Absurdity</em></p>\n<p>Also, there is a canon of statutory construction against absurdity. Generally speaking, if a plain reading of a statute leads to an absurd result, a court will apply this canon of statutory construction to determine that the legislative intent was something other than what the law actually literally said even if that is the clear plain meaning of a statute.</p>\n<p>This often comes up when the word "not" gets omitted in a complex sentence, reversing the clear intent of the law. In this situation, the canon of statutory instruction against absurdity will often supply the missing word giving the law the opposite meaning of what it irrationally actually says.</p>\n<p>The canon of statutory construction against absurdity is often applicable if the statute read as it was actually adopted is irrational.</p>\n<p><em>The Canon Against Interpretations In Degradation Of The Common Law</em></p>\n<p>Another canon of statutory interpretation that sometimes comes into play pertinent to "customary" law or "common law" established by cases rather than a statute in the U.S., is that statutes will not be deemed to be "in degradation of the common law" (i.e. to override a common law rule of law) unless the legislative intent to do so is clear. So, often a law that seems odds with be interpreted in the context of a way to simultaneously honor it (even if it isn't the most natural interpretation of the language) while leaving the existing common law and equity jurisprudence established by case law in place.</p>\n<p>For example, if a statute holds that someone who signs a document is bound by it, this statute would usually not be held to override the common law rule that a signature obtained through fraud about what someone is actually signing (e.g. substituting a check when someone thinks that they are signing a receipt), called fraud in the factum, would usually held not to be pre-empted and contradicted by the statute, even though the statutory does not expressly identify this common law exception to its plain language.</p>\n<p>On the other hand, the degradation of the common law canon of statutory construction is usually not applied, often with irrational or absurd result, in the case of a federal statute related to employee benefits called the Employee Retirement Income Security Act (ERISA), which has been held to have extraordinarily broad pre-emptive effects.</p>\n<p><strong>The General Rule Is That Stupid Or Unwise Laws Are Valid</strong></p>\n<p>This said, there is a difference between irrational, and merely stupid or unwise. The legislature is free to pass otherwise constitutional law that are stupid or unwise. And, if there is no doubt, given the legislative history and the language of the statute, that the legislature really did mean what the statute says, and the statute doesn't colorable violate any constitutional right, even equal protection, it will be upheld, even if it seems bizarre or irrational.</p>\n<p>For example, if it is absolutely clear that you can convict dead people of crimes and that the legislature really meant what it said when it said that if you do, the corpse of the dead person needs to be kept in a prison cell for the duration of the prison sentence, then that law would probably be upheld and enforced by a court, even though it is bizarre and crazy.</p>\n<p>There are probably at least half a dozen or a dozen decided cases in which a court has said, that a law is completely stupid or unwise, but it is not colorably unconstitutional or complete irrational, and so the court upholds the law.</p>\n",
"score": 1
},
{
"answer_id": 89023,
"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>In domestic law, legislation is paramount to international law, even that which is automatically incorporated (<em>Nevsun Resources Ltd. v. Araya</em>, <a href=\"https://canlii.ca/t/j5k5j#par94\" rel=\"nofollow noreferrer\">2020 SCC 5 at para. 94</a>). However, as far as possible, courts will attempt to interpret domestic legislation consistently with international obligations (<em>Kazemi Estate v. Islamic Republic of Iran</em>, <a href=\"https://canlii.ca/t/gdwht#par60\" rel=\"nofollow noreferrer\">2014 SCC 62 at para. 60</a>), especially where the obligation is a peremptory norm (<em>Bouzari v. Iran</em>, <a href=\"https://canlii.ca/t/1hdv4#par65\" rel=\"nofollow noreferrer\">2004 CanLII 871 at para. 65</a> (Ont. C.A.)).</p>\n<p>Parliament and provincial legislatures retain the ability to legislate contrary to <em>jus cogens</em> / peremptory norms. "[W]hether Canada's obligations arise pursuant to treaty or to customary international law, it is open to Canada to legislate contrary to them. Such legislation would determine Canada's domestic law although it would put Canada in breach of its international obligations." <em>Bouzari v. Iran</em>, <a href=\"https://canlii.ca/t/1hdv4#par66\" rel=\"nofollow noreferrer\">2004 CanLII 871 at para. 66</a> (Ont. C.A.)</p>\n",
"score": 0
}
] |
[
"constitutional-law"
] |
The Social Action Responsibility and Heroism Act (England and Wales)
| 3 |
https://law.stackexchange.com/questions/86589/the-social-action-responsibility-and-heroism-act-england-and-wales
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CC BY-SA 4.0
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<p>Is there an equivalent law in SCOTLAND and NORTHERN IRELAND to <a href="https://www.legislation.gov.uk/ukpga/2015/3" rel="nofollow noreferrer">The Social Action Responsibility and Heroism Act 2015</a> (England and Wales)?</p>
| 86,589 |
[
{
"answer_id": 87173,
"body": "<p>just found this when I had a similar question of my own so thought I would share the response I got:\nno there isn't a Scottish equivalent to the English SARHA.\nAnd there has been some criticism of it:</p>\n<ul>\n<li><a href=\"https://www.modernlawreview.co.uk/january-2017/my-legislation-copy-4/\" rel=\"nofollow noreferrer\">https://www.modernlawreview.co.uk/january-2017/my-legislation-copy-4/</a></li>\n<li><a href=\"https://www.bristollawreview.com/single-post/2018/06/12/is-sarah-heroic-at-all\" rel=\"nofollow noreferrer\">https://www.bristollawreview.com/single-post/2018/06/12/is-sarah-heroic-at-all</a></li>\n<li><a href=\"https://www.lexisnexis.co.uk/blog/dispute-resolution/whats-the-point-of-the-social-action-responsibility-heroism-act\" rel=\"nofollow noreferrer\">https://www.lexisnexis.co.uk/blog/dispute-resolution/whats-the-point-of-the-social-action-responsibility-heroism-act</a></li>\n</ul>\n",
"score": 3
}
] |
[
"civil-law",
"scotland",
"emergencies",
"good-samaritan",
"northern-ireland"
] |
If a rift expands the surface of one's land (e.g., resulting from an earthquake), who owns the new land?
| 3 |
https://law.stackexchange.com/questions/89135/if-a-rift-expands-the-surface-of-ones-land-e-g-resulting-from-an-earthquake
|
CC BY-SA 4.0
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<p>Looking at the geological pictures of the 2023 Turkey–Syria earthquake made me wonder: If a rift expands the surface of one's land, who owns the new land (i.e., the rift)?</p>
<p>I'm mostly interested in the United States.</p>
<p><a href="https://www.turkiyegazetesi.com.tr/fotogaleri/deprem-sonrasi-dehsete-dusuren-goruntu-koca-tarla-ikiye-bolundu-32968?p=8#image-8" rel="nofollow noreferrer">Example of a rift that significantly expanded someone's property</a>:</p>
<p><a href="https://i.stack.imgur.com/sYcE6.jpg" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/sYcE6.jpg" alt="enter image description here" /></a></p>
| 89,135 |
[
{
"answer_id": 89136,
"body": "<p><a href=\"/questions/tagged/california\" class=\"post-tag\" title=\"show questions tagged 'california'\" aria-label=\"show questions tagged 'california'\" rel=\"tag\" aria-labelledby=\"california-container\">california</a></p>\n<p>The relevant parties may go to court for an equitable solution.</p>\n<p>See the <a href=\"https://law.justia.com/codes/california/2010/ccp/751.50-751.65.html\" rel=\"noreferrer\">2010 California Code of Civil Procedure\nChapter 3.6. Cullen Earthquake Act</a>:</p>\n<blockquote>\n<p>751.50. If the boundaries of land owned either by public or by private entities have been disturbed by earth movements such as, but not limited to, slides, subsidence, lateral or vertical displacements or similar disasters caused by man, <strong>or by earthquake</strong> or other acts of God, so that such lands are in a location different from that at which they were located prior to the disaster, an <a href=\"https://en.m.wikipedia.org/wiki/In_rem_jurisdiction\" rel=\"noreferrer\"><strong>action in rem</strong></a> may be brought to equitably reestablish boundaries and to quiet title to land within the boundaries so reestablished.**</p>\n<p>(<em>my emboldenment and embedded link</em>)</p>\n</blockquote>\n",
"score": 5
}
] |
[
"united-states",
"ownership",
"homeownership",
"real-property"
] |
Is it legal for police to travel with a film crew and publicize arrest footage without consent?
| 5 |
https://law.stackexchange.com/questions/7458/is-it-legal-for-police-to-travel-with-a-film-crew-and-publicize-arrest-footage-w
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CC BY-SA 3.0
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<p>Am I right to assume that police bodycam footage is only allowed to be released as part of a court order / as evidence? </p>
<p>If this were true, than wouldn't a news crew accompanying the police officer be illegal? I'll explain this further:</p>
<p>I recently saw a video on Youtube where a person is being arrested by a traffic officer for a minor violation. Accompanying the officer is a videographer who apparently works for a news network. The traffic stop is being filmed as part of a <em>Cops</em>-type series called <em>Bad Drivers</em> or something. </p>
<p>If the news crew were to have simply stumbled upon the arrest, I can understand their right to publicize. But this situation happened on the side of the freeway, and it's clear the news crew was either following or being transported by the police. Furthermore, as the stopped driver is basically under arrest, the cop is the only one in this situation who can command the filmers to stop.</p>
<p>Since the filming would not occur without the cop's support, it seems like the cop should be responsible for the filming (and the same laws as body cameras should apply). </p>
<p>I am in San Francisco, California, USA, but interested in other areas' laws as well. </p>
| 7,458 |
[
{
"answer_id": 7466,
"body": "<p>It's really the other way around: film crews can legally travel with the police.</p>\n\n<p>This is very similar or identical to what you saw on YouTube. From <a href=\"http://blogs.findlaw.com/celebrity_justice/2014/04/cops-and-suspects-rights-whatcha-gonna-do-when-they-record-you.html\" rel=\"noreferrer\">http://blogs.findlaw.com/celebrity_justice/2014/04/cops-and-suspects-rights-whatcha-gonna-do-when-they-record-you.html</a> <em>(dated 4/18/2014)</em> </p>\n\n<blockquote>\n <p>\"Cops\" will soon begin a 10-week filming stretch in San Jose,\n California, for the first time in the show's 26-year history, reports\n the San Jose Mercury News. The \"Cops\" crew will hit the streets\n alongside San Jose's finest to provide a window into what these men\n and women do in America's 10th largest city.</p>\n</blockquote>\n\n<p>More from that link:</p>\n\n<blockquote>\n <p>When the officers on \"Cops\" arrest most of their suspects, the\n circumstances leading up to the arrest are out in public. However, in\n order to avoid unlawfully appropriating the images of those caught on\n \"Cops'\" cameras, the crew asks the arrestees to sign a release form.</p>\n</blockquote>\n\n<p>The \"news crew\" are producers who have permission from the police to follow along. As above, they ask each suspect to sign a release after the arrest. These arrests take place in public, on public streets and right-aways, where filming of the public is legal. If the arrestee does not sign the release, their face is blurred in the resulting footage that is made public.</p>\n\n<p>This does not mean the producers or videographers are automatically allowed into a private residence. They need a release to go onto private property (unlike the police involved in an investigation) and as such, the resident can actually forbid the cameramen from entering the house even while the police have entered.</p>\n\n<p>The footage from the body cams of the police are a different story; they are public employees of the local government and are bound by the laws of the locality. A search of Google News shows that in San Fransisco, the issues of the use of body cams by police and public access to that video is an ongoing issue; some laws have been finalized, others are bound to change.</p>\n\n<p>Around the US, some localities at this point in time allow public access to the footage from police cams; others only after department or local governmental review; still others only on in as need basis for prosecutions.</p>\n\n<blockquote>\n <p>...the cop is the only one in this situation who can command the\n filmers to stop.</p>\n</blockquote>\n\n<p>Even if the \"news crew\" is not a news crew and just someone from the general public, it is generally legal for the public to film the police, as long as they are not causing issues with the police and stay out of the way (re: all of the recent news regarding police shootings and the footage available on YouTube and in news sources). There is case law pertaining to that, but IANAL, so I'll let someone else outline that.</p>\n\n<p>But <a href=\"https://photographyisnotacrime.com/\" rel=\"noreferrer\">https://photographyisnotacrime.com/</a> is a good resource. In the US, you pretty much have no expectation of privacy while in public.</p>\n",
"score": 7
},
{
"answer_id": 89143,
"body": "<p><strong>There is no expectation of privacy when in public.</strong></p>\n<p>News crews (who despite the common misunderstanding of “press credentials” have no special privileges that an ordinary citizen does not have), can film whatever they can see while on public property. Some states are 1 party consent, others are 2 party consent, but that only applies when there is an expectation of privacy —- you can’t stand in the middle of the road and shout and also prevent people from recording you.</p>\n<p>How the videographers get to the scene is irrelevant, as long as they have a legal right to be there and there is no expectation of privacy, they have a legal right to film.</p>\n<p>The cops do NOT have the authority to tell the videographers to stop filming, at most they can tell them to keep a safe distance away (and since they brought them, even that would be a bit questionable or reduced as they most likely can’t claim fear of someone they brought).</p>\n",
"score": 3
}
] |
[
"united-states",
"california",
"privacy",
"police"
] |
what does "probable consequence" mean?
| 0 |
https://law.stackexchange.com/questions/89131/what-does-probable-consequence-mean
|
CC BY-SA 4.0
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<p>In various laws related to abetment and aid of offences the offenders are also held liable for any other criminal acts done by the person who has been aided or instigated to commit an offence if the separate offences were a probable consequence of the abetment. how is probable consequence known ?</p>
| 89,131 |
[
{
"answer_id": 89137,
"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<blockquote>\n<p>Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a <strong>probable consequence</strong> of carrying out the common purpose is a party to that offence.</p>\n<p><em>Criminal Code</em>, s. 21(2).</p>\n</blockquote>\n<p>This is a kind of foreseeability/remoteness analysis.</p>\n<p>It requires that, in order to be guilty of an offence that another committed while carrying out an unlawful common purpose, there was at least <em>objective foreseeability</em> that the charged offence was a probable consequence of carrying out the common purpose. E.g. a jury could find that a person ought to have known that assault was a probable consequence of carrying out a robbery.</p>\n<p>This must be more than just <em>possible</em>; it needs to be <em>probable</em>. But this does not necessarily mean more probable than not.<sup>1</sup></p>\n<p>And in the case where the offence is murder or attempted murder, the inquiry changes from an objective test (what someone ought to have foreseen to be a probable consequence) to a <em>subjective test</em> (what the accused <em>actually</em> foresaw to be a probable consequence).</p>\n<p>This is treated as a question of fact, to be determined by the trier of fact (e.g. the jury, if there is one).</p>\n<h3>Some language from courts</h3>\n<blockquote>\n<p>The English cases in their examination of the scope of the common purpose are of some assistance in scrutinizing the relationship between the common purpose and the consequential offence. A consequence, if remote enough from the common intention, may not be reasonably foreseeable. The greater distance the ultimate offence is from the common intention, the less likely it can be termed a probable consequence.</p>\n<p>(<em>R v. Kawal</em>, <a href=\"https://canlii.ca/t/ht86w#par59\" rel=\"nofollow noreferrer\">2018 ONSC 4560 at para 59</a>).</p>\n</blockquote>\n<blockquote>\n<p>There may, of course, be situations where the level of physical violence contemplated is so minimal that serious bodily harm is merely a possibility rather than a probability. And it may indeed be the case that this observation would hold true even in some situations where the unlawful purpose is an assault of a sexual nature. While I personally would not have thought that what occurred in this case is one of those instances, the question whether the causing of bodily harm short of death was a probable consequence of the sexual offence committed against Elizabeth Johnson was for the jury to decide.</p>\n<p>(<em>R. v. Kirkness</em>, <a href=\"https://canlii.ca/t/1fsqc\" rel=\"nofollow noreferrer\">[1990] 3 S.C.R. 74 at 113</a>, in dissent, but there was no disagreement on this point, and cited in <em>R. v. Jackson</em> (1991), <a href=\"https://canlii.ca/t/g97k2\" rel=\"nofollow noreferrer\">68 C.C.C. (3d) 385</a> at 423 (Ont. C.A.), Doherty J.A., for the Court of Appeal; affirmed on appeal to S.C.C.)</p>\n</blockquote>\n<hr />\n<p><sup>1. I do see this hasn't been absolutely resolved in Canadian jurisprudence. See for example the language the <em>R. v. Kirkness</em> dissent, adopted by the Court of Appeal for Ontario, which implies to remove a consequence from the range of probable consequences, its likelihood should be "so minimal that [it] is merely a possibility." On the other side, there is also a reference to a criminal law treatise in <em>R. v. Kawal</em> that <em>does</em> suggest the "more likely than not" interpretation—this was not clearly adopted by the trial judge in that case but has been followed by three other trial judgments since. No court of appeal has confirmed this position. My view is that the language from the <em>R. v. Kirkness</em> dissent is the better position. I also see a judgment along these lines from the Court of Appeal for England and Wales (Criminal Division) (<em>Bryce v. R.</em> <a href=\"https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Crim/2004/1231.html\" rel=\"nofollow noreferrer\">[2004] EWCA Crim 1231</a>) that cited with approval language that said it is too favourable to the accused to find that "probably" must mean "more probably than not." It also cited with approval that "probably" means the "existence of a substantial or real risk that [the offence] would be committed and was not something which could be dismissed as negligible."\n</sup></p>\n",
"score": 1
}
] |
[
"criminal-law",
"criminal-procedure"
] |
US: Is it legal to jam radio/cell communications if entirely confined to your own private property?
| 6 |
https://law.stackexchange.com/questions/14257/us-is-it-legal-to-jam-radio-cell-communications-if-entirely-confined-to-your-ow
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CC BY-SA 3.0
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<p>In the US, is it legal to jam radio/cell communications if such jamming is entirely confined to your own private property? And does it matter whether you are in a building or not?</p>
<p>Imagine now that you have constructed a Faraday cage on your property so that external radio/cell signals cannot enter and internal radio/cell signals cannot exit. If you are inside the Faraday cage, is it legal or illegal to operate a radio/cell jammer?</p>
<p>These questions are intended to ask about the legality of a private citizen doing this without knowledge or approval by any governmental authority. If the jurisdiction typically matters let's say New York, New York, USA.</p>
| 14,257 |
[
{
"answer_id": 15011,
"body": "<p>Yes, if it works. <a href=\"https://www.gpo.gov/fdsys/pkg/FR-2013-04-29/pdf/2013-08528.pdf\" rel=\"noreferrer\">FCC regulations</a> allow operation of interfering equipment (for tests and experiment) provided the interference is fully contained in a Faraday cage. You must still \"comply with the general prohibition against causing harmful interference to other spectrum users\".</p>\n",
"score": 7
},
{
"answer_id": 14258,
"body": "<p><a href=\"https://www.law.cornell.edu/uscode/text/47/333\" rel=\"nofollow\">No.</a> It is a criminal offense, punishable by up to 1 year in jail or up to a $10,000 fine (plus forfeitures) for a first offense, and up to two years in prison or up to a $10,000 fine (plus forfeitures) for a second or subsequent offense. </p>\n",
"score": 0
},
{
"answer_id": 14262,
"body": "<p>I am not a lawyer, but probably. Many companies (antenna makers, test equipment makers, etc) effectively do exactly that in <a href=\"https://en.wikipedia.org/wiki/Anechoic_chamber\" rel=\"nofollow\">https://en.wikipedia.org/wiki/Anechoic_chamber</a>. As long as your anechoic chamber has no leakage, you can probably do anything you want in it from an RF perspective. </p>\n",
"score": 0
}
] |
[
"united-states",
"radio"
] |
Is it a crime in the United States to say "the people want to bring down the regime"?
| 6 |
https://law.stackexchange.com/questions/15299/is-it-a-crime-in-the-united-states-to-say-the-people-want-to-bring-down-the-reg
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<blockquote>
<p><a href="https://i.stack.imgur.com/CHPHV.jpg" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/CHPHV.jpg" alt="enter image description here" /></a></p>
<p><a href="https://twitter.com/Fiberton/status/797723009649876992" rel="nofollow noreferrer">Link</a></p>
</blockquote>
<p>The said law says:</p>
<blockquote>
<p>Whoever knowingly or willfully advocates, abets, advises, or teaches
the duty, necessity, desirability, or propriety of overthrowing or
destroying the government of the United States or the government of
any State, Territory, District or Possession thereof, or the
government of any political subdivision therein, by force or violence,
or by the assassination of any officer of any such government; or</p>
<p>Whoever, with intent to cause the overthrow or destruction of any such
government, prints, publishes, edits, issues, circulates, sells,
distributes, or publicly displays any written or printed matter
advocating, advising, or teaching the duty, necessity, desirability,
or propriety of overthrowing or destroying any government in the
United States by force or violence, or attempts to do so; or</p>
<p>Whoever organizes or helps or attempts to organize any society, group,
or assembly of persons who teach, advocate, or encourage the overthrow
or destruction of any such government by force or violence; or becomes
or is a member of, or affiliates with, any such society, group, or
assembly of persons, knowing the purposes thereof—</p>
<p>Shall be fined under this title or imprisoned not more than twenty
years, or both, and shall be ineligible for employment by the United
States or any department or agency thereof, for the five years next
following his conviction.</p>
<p>If two or more persons conspire to commit any offense named in this
section, each shall be fined under this title or imprisoned not more
than twenty years, or both, and shall be ineligible for employment by
the United States or any department or agency thereof, for the five
years next following his conviction.</p>
<p>As used in this section, the terms “organizes” and “organize”, with
respect to any society, group, or assembly of persons, include the
recruiting of new members, the forming of new units, and the
regrouping or expansion of existing clubs, classes, and other units of
such society, group, or assembly of persons. (June 25, 1948, ch. 645,
62 Stat. 808; July 24, 1956, ch. 678, § 2, 70 Stat. 623; Pub. L.
87–486, June 19, 1962, 76 Stat. 103; Pub. L. 103–322, title XXXIII,
§ 330016(1)(N), Sept. 13, 1994, 108 Stat. 2148.)</p>
<p><a href="https://www.law.cornell.edu/uscode/text/18/2385" rel="nofollow noreferrer">Reference</a></p>
</blockquote>
<p>My question is,</p>
<p>Does saying, "the people want to bring down the regime" constitute knowingly or willfully advocating the "overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession"?</p>
| 15,299 |
[
{
"answer_id": 27365,
"body": "<p>It is not a crime to say, "The people want to bring down the regime."</p>\n<p>This specific tweet is almost certainly not illegal. Even if this guy is subjectively trying to overthrow the government, this would probably be an impossible prosecution for a lot of reasons.</p>\n<p>First: <a href=\"https://casetext.com/statute/united-states-code/title-18-crimes-and-criminal-procedure/part-i-crimes/chapter-115-treason-sedition-and-subversive-activities/section-2385-advocating-overthrow-of-government\" rel=\"nofollow noreferrer\">18 USC 2385</a> deals with "overthrow or destruction of the government." Does "regime" mean the government or does it just mean the Trump administration? I'm guessing it just means the administration, and if that's the case, you're dealing with a matter of public concern rather than a true threat of overthrow. Especially because this comes right after the election, you've got strong arguments that this is commentary on a matter of public concern, e.g., "the people want to end the Trump regime," or maybe "the people wanted regime change and therefore voted for Trump, or that you need a change in the constitutional form of government to do away with the Electoral College." Whatever it means, commentary on a matter of public concern cannot be punished under Section 2385. <a href=\"https://casetext.com/case/rankin-v-mcpherson\" rel=\"nofollow noreferrer\"><em>Rankin v. McPherson</em>, 483 U.S. 378 (1987)</a>.</p>\n<p>Second: 18 USC 2385 deals with overthrow by "by force or violence." To say you want to bring down the regime says nothing about how you want to bring down the regime.</p>\n<p>Third: The invocation of the Arab Spring could sort of cut in either direction, as it involved regime changes effected both through nonviolent protest and violent revolution.</p>\n<p>Fourth: Even if we interpret this as Ayloush saying that regime change would be good, that he personally wants regime change, or that other people should want or work toward regime change, that's still not enough to get you into the conduct prohibited by Section 2385, which does not prohibit "doctrinal justification of forcible overthrow." Here's some relevant language from <a href=\"https://casetext.com/case/noto-v-united-states-2\" rel=\"nofollow noreferrer\"><em>Noto v. United States</em>, 367 U.S. 290 (1961)</a>:</p>\n<blockquote>\n<p>[T]he mere abstract teaching of Communist theory, including 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 which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material.</p>\n</blockquote>\n<p>This seems like pretty solidly First Amendment-protected political speech.</p>\n",
"score": 6
}
] |
[
"united-states",
"freedom-of-speech"
] |
What does the phrase "in this act unless context requires otherwise" mean?
| 2 |
https://law.stackexchange.com/questions/89100/what-does-the-phrase-in-this-act-unless-context-requires-otherwise-mean
|
CC BY-SA 4.0
|
<p>Various <a href="https://en.wikipedia.org/wiki/Commonwealth_of_Nations" rel="nofollow noreferrer">Commonwealth</a> countries, like <a href="https://en.wikipedia.org/wiki/Malaysia" rel="nofollow noreferrer">Malaysia</a>, <a href="https://en.wikipedia.org/wiki/Singapore" rel="nofollow noreferrer">Singapore</a> and <a href="https://en.wikipedia.org/wiki/India" rel="nofollow noreferrer">India</a>, use this phrase in sections which include definitions or explanation of a law. What does it mean? E.g., Article 13 of the Indian Constitution has the phrase</p>
<blockquote>
<p>in this article unless context requires otherwise: law means any rule, order or custom established by a competent authority</p>
</blockquote>
<p>Can this be used to broaden or narrow the scope based on the context?</p>
| 89,100 |
[
{
"answer_id": 89104,
"body": "<blockquote>\n<p>what does the phrase "in this act unless context requires otherwise" mean?</p>\n</blockquote>\n<p>It means that the provision or statutory definition is not to be imposed where its application would make no sense or would lead to an absurd outcome.</p>\n<p>Using the example point out, statutory or judicial references to "<em>laws of physics</em>", "<em>law of supply and demand</em>", and so forth are not to be construed as enactments or rulings issued by some authority. Accordingly, such laws are not susceptible to violation, enforcement, or repeal.</p>\n",
"score": 9
},
{
"answer_id": 89102,
"body": "<p>This just establishes a presumptive rule of interpretation that can be overcome by context.</p>\n<p>A similar phrase is used in Interpretation Acts in Canada.</p>\n",
"score": 3
}
] |
[
"constitutional-law",
"legal-terms",
"definition",
"interpretation"
] |
at what point is my original character considered inspired by an existing character versus, when is it considered copyright infringement?
| 0 |
https://law.stackexchange.com/questions/89085/at-what-point-is-my-original-character-considered-inspired-by-an-existing-charac
|
CC BY-SA 4.0
|
<p>To avoid revealing context of my question I will use an example.</p>
<p>Let's say I have a business, could be plumbing electrical consultation whatever.
And to promote my business I come up with a gimmick or slogan of.... Idk... "Ironclad work from ironclass workers."
I like my slogan and what it represents for my company, so I take the basic structure of iron Man's helmet, change a few of the lines, maybe space the eyes and nose differently, and render it in new colors and textures to reflect the element of my business. We will say that my business is steel work.
So now I have a logo for my company with my company's name and my company slogan and the only thing I'm taking amuse from is the overall design of iron Man's helmet. Very clipart and plane.
The ultimate basis of my question is...
How much do I need to strip from the original copyrighted character, in order to avoid copyright infringement in this particular case?
Another simple example would be to make SpongeBob SquarePants a wider rectangle with red pants and green skin with no holes.... How abstract does the new character need to be so that it does not cross copyright infringement?
Especially with a company like Disney.</p>
<p>Can I create my own costume of my own character with his own background that follows the similar guidelines of the character iron Man? How many of those characteristics do I need to alter?</p>
| 89,085 |
[
{
"answer_id": 89090,
"body": "<h2>When ‘the work as a whole or any substantial part of it’ has no longer been copied</h2>\n<p>Ideas are not subject to copyright, only the expression of ideas is. So, the idea of a flying, armoured superhero is not subject to copyright but if it looks, talks, or acts too much like Ironman - that’s copyright violation.</p>\n<p>Similarly, an iron helmet can only look so many ways before it won’t work as a helmet. At the same time, Ironman’s helmet, both as drawn in the comics, used in the movies, and as a stylised icon are so distinctive as to be instantly recognisable and anything that looks like that will at least raise the suspicion of copyright violation.</p>\n<p>Your “wider rectangle with red pants and green skin with no holes” is copyright violation if it looks too much like SpongeBob SquarePants:</p>\n<p><a href=\"https://i.stack.imgur.com/2UpPB.png\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/2UpPB.png\" alt=\"SpongeBob SquarePants\" /></a></p>\n<p>But BMO isn’t a copyright violation because, while looking a lot like SBSP, the inspiration is obviously something else - namely a portable game console:</p>\n<p><a href=\"https://i.stack.imgur.com/EkWp7.jpg\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/EkWp7.jpg\" alt=\"BMO\" /></a></p>\n<p>There is no way to know in advance what is acceptable and what isn’t - it’s ultimately up to the judge based on the evidence in a particular case. <a href=\"https://www.copyrightuser.org/understand/rights-permissions/using-reusing/\" rel=\"nofollow noreferrer\">This</a> article includes things that judges have said in the past. Many of these will be binding on other judges but the exact position of the line is subject to the reasonable person test - looking at all the evidence, would a reasonable person say this is a copy or not.</p>\n",
"score": 2
}
] |
[
"copyright",
"business"
] |
Is the Wilhelm scream copyrighted?
| 3 |
https://law.stackexchange.com/questions/70763/is-the-wilhelm-scream-copyrighted
|
CC BY-SA 4.0
|
<p>The <a href="https://en.wikipedia.org/wiki/Wilhelm_scream" rel="nofollow noreferrer">Wilhelm scream</a> originated in a 1951 movie called Distant Drums. Since then, it has become a ubiquitous sound effect used in countless movies, TV shows, and video games.</p>
<p>It seems to me that a movie made in 1951 would still be under copyright. Does this mean that Warner Bros could potentially sue practically every production studio for copyright infringement?</p>
<p>Would this be considered "fair use"? On the one hand, it is not a very transformative usage, which is one of the most important components of fair use. But it is a very small portion of the movie. I have no idea how to analyze the sales impact.</p>
<p>Even if it is fair use in terms of the original movie, is there an argument that Ben Burtt would hold a copyright since he is credited with isolating and popularizing the sound?</p>
| 70,763 |
[
{
"answer_id": 70789,
"body": "<p>The "Wilhelm scream" is (of course) copyrighted. It has been released as part of multiple sound effects libraries. While the licensing of these libraries vary, in general a person or organization will pay a single flat fee for a copy of the sounds in the library and a license to use them as sound effects mixed with an a/v work (a "synchronization" license). The license may be time-limited or perpetual (though works created with the effects within the time limit would still be licensed after it had expired). Sound effects libraries are not particularly expensive, and any studio would likely have several of them available, so presumably the majority of the uses of the Wilhelm Scream were licensed.</p>\n",
"score": 3
},
{
"answer_id": 70767,
"body": "<p>The actual recording, which has apparently been used in many films would be protected by copyright, just like any sound recording, until the copyright expires. Use of that recording without permission would be copyright infringement unless an exception to copyright (such as fair use in the US) applies, and that seems unlikely to be the case.</p>\n<p>However, there is no protection on the idea of a scream happening as a character is injured or killed, nor is the scream a musical composition with a composition copyright. A new scream, not made by copying the existing recording, even if it sounds similar to the "Wilhelm scream", would not be covered by the copyright on the existing recording and could be used by its creator or anyone it was licensed to.</p>\n",
"score": 2
},
{
"answer_id": 70766,
"body": "<p>The first question is whether copyright in the work has expired, which given the date of creation means, was it renewed? If not, the movie is in the public domain. Assuming it is still protected, then the question is whether "fair use" would be a viable defenses: maybe, maybe not. If you use the scream in a commercial movie, you are maximally likely to get sued for infringement. Sound effects are a lucrative commercial product: using an effect without buying a proper license has a substantial effect on market that weighs against a fair use analysis.</p>\n",
"score": 0
}
] |
[
"united-states",
"copyright",
"fair-use"
] |
concept of exchange in a donation contract
| 0 |
https://law.stackexchange.com/questions/89112/concept-of-exchange-in-a-donation-contract
|
CC BY-SA 4.0
|
<p>In a hypothetical scenario, Mr. Peter intends to donate a car to Mr. Joe.</p>
<p>There has to be a contract, a piece of paper, signed by both of them.</p>
<p>According to the contract law, every contract is an exchange of something.</p>
<p>What is being exchanged in such a contract, if the car is to be donated?</p>
<p>Thank you.</p>
| 89,112 |
[
{
"answer_id": 89113,
"body": "<p>The "contract" (sometimes called a charitable pledge or a pledge to make a donation) is not enforceable under contact law because there is no consideration. From a contract law perspective, it isn't really a contract at all. This fact pattern is literally the "standard" example of a "contract" that is unenforceable for lack of consideration.</p>\n<p>The promises made in the charitable pledge might be enforceable under an equitable doctrine called promissory estoppel, if someone detrimentally relies upon the promise made in the contract and it is not inequitable to do so. As a practical matter, however, donees almost never sue to enforce a pledge to make a donation.</p>\n<p>A donative pledge should also be distinguished from a transfer document, which is also not a contract. In a transfer document, the donor is unilaterally giving something to someone, and the recipient is signing merely to affirm that they accept the transfer being made to them, rather than rejecting the donation and disclaiming it.</p>\n",
"score": 4
},
{
"answer_id": 89114,
"body": "<p><a href=\"https://go.boarddocs.com/ca/fremont/Board.nsf/files/9WJ33N04EC69/$file/Donation%20Agreement%20DWK_revtg.pdf\" rel=\"nofollow noreferrer\">This contract</a> makes a fair attempt at dressing up a gift as a contract. Para 15 states that</p>\n<blockquote>\n<p>The parties have herein set forth the whole of their agreement. The\nperformance of this agreement constitutes the entire consideration for\nsaid document and shall relieve Donee of all further obligation or\nclaims. Donors have no other right or claim to compensation arising\nout of or connected with the acquisition of the Property by Donee.</p>\n</blockquote>\n<p>There are a number of perfunctory obligation on the Donee, such as to "knowledges and agrees that\nDonee is acquiring the Property in its “AS IS” condition, with all faults, if any, and without any\nwarranty, express or implied," or releasing the Donor "from and against all claims, actions, causes of action,\ndemands, rights, damages, costs, expenses or compensation whatsoever, direct or indirect,\nknown or unknown, foreseen or unforeseen", also "Donee shall pay the Closing Agent’s Escrow Fee, transfer tax\nand recording fees".</p>\n<p>So it does have the form of a contract.</p>\n",
"score": 0
}
] |
[
"contract-law"
] |
Is parent allowed to use child support money on himself/herself in Arkansas?
| 0 |
https://law.stackexchange.com/questions/89095/is-parent-allowed-to-use-child-support-money-on-himself-herself-in-arkansas
|
CC BY-SA 4.0
|
<p>State Arkansas:</p>
<p>Parent “A” works full time. Parent “B” is unemployed. “A” and “B” are divorced.</p>
<p>“A” pays $1,000 in child support to “B” monthly. Joint custody, week on week off.</p>
<p>Parent “B” spends $1,000 in the following way: $400 on all monthly household expenses. $600 on monthly rent.</p>
<p>Question: Is Parent “B” allowed to use the child support money to pay for rent? The child only stays in parent “B”’s house half of any month (week on week off). Therefore parent “B” is essentially using $300 to pay for rent while child is not there, and $300 for rent when the child is there. Is this legal?</p>
<p>Also, is parent “B” allowed to use child support money on himself/herself?</p>
<p>If possible are there any links to the official legal sites quoting the law</p>
| 89,095 |
[
{
"answer_id": 89098,
"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><sup>*</sup></p>\n<h3>What you describe is completely acceptable</h3>\n<p>First, one of the goals of child support is to provide a similar standard of living in each household, so spending an amount on rent that happens to be a large portion of the child support amount is understandable.</p>\n<p>Second, <em>the fact that the child only spends part of their time at Parent B's home is already accounted for in the computation of the amount owing.</em> Child support in Canada is based almost exclusively on the income of the parents, taking into account the proportion of time the child spends with each parent. And this is all subject to any specific hardships of the paying parent.</p>\n<p>Only where a portion of child support is based on a special and extraordinary expenditure (e.g. a specific extracurricular activity, or medical insurance) is it expected the claimant make that specific expenditure. If they stop making that expenditure, then the child support add-on associated with that expenditure is removed.</p>\n<hr />\n<p><sup>* I understand the question is directed to Arkansas, but I have provided an answer for those interested in Canadian law, in line with the guidance <a href=\"https://law.stackexchange.com/help/on-topic\">here</a> ("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]").</sup></p>\n",
"score": 4
},
{
"answer_id": 89110,
"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<blockquote>\n<p>Is Parent “B” allowed to use the child support money to pay for rent?\nThe child only stays in parent “B”’s house half of any month (week on\nweek off). Therefore parent “B” is essentially using $300 to pay for\nrent while child is not there, and $300 for rent when the child is\nthere. Is this legal?</p>\n</blockquote>\n<p>Yes.</p>\n<blockquote>\n<p>Also, is parent “B” allowed to use child support money on\nhimself/herself?</p>\n</blockquote>\n<p>Yes.</p>\n<p>There are no restrictions on how many paid to a parent for child support may be spent.</p>\n",
"score": 4
}
] |
[
"family-law",
"child-support",
"arkansas"
] |
Is it possible the free contracts I find online are actually superior to the ones lawyers are paid to write?
| -3 |
https://law.stackexchange.com/questions/89107/is-it-possible-the-free-contracts-i-find-online-are-actually-superior-to-the-one
|
CC BY-SA 4.0
|
<p>Without going into details - you could figure them out if you really tried :P - I often deal with people wanting a contract to cover a rather obscure situation. It is one where most states don't have precedent yet, but of the few that do some states don't respect these contracts and at least one does. The net result is that in most cases we don't really unknown rather or not a contract will be respected until/unless it ends up in court but my advice is that it's always better to have one in case it will be respected then to have none if a situation comes up where you end up in court.</p>
<p>Yes I'm aware of the obvious danger of a contract that may not be respected, but it's a situation that's happening anyways, often does happen without issue, and the contract is just meant as a backup. People will be doing this rather or not a contract exists. I do try to stress to everyone the potential risks and the fact that contracts are on average more likely not going to be respected then respected even as I tell them I think it's better to have something then nothing.</p>
<p>I have found a few places that have provided free standard contracts for this situation online, and looked through them to find the one I felt was best written. I've also seen a number of people who went to a lawyer for a contract and got one written for them.</p>
<p>Looking at the two types of contracts, the free and the paid ones, from my mostly-layman perspective the free ones actually look substantially better. They tend to be longer, better cover potential issues, and have more fallback statements; which is to say they have three or four slightly different ways getting to approximately the same end goal so that if one line is deemed unenforceable there are still other lines that the court may rule enforceable and thus ensure the main point of the contract stands.</p>
<p>For most of these contracts I see they are for a state that I know does not have precedent for these types of contracts. I imagine things may be different if one is in a state that does already have a precedent. Then again so far precedent seems to be "yes we respect them" or "no we don't" with little nuance so I imagine even in a state with precedent you are no worse off with a free contract; worse case you think you have a backup that won't be respected but people should already be going in knowing that's a possible outcome.</p>
<p>In short, even ignoring the expense, It seems like people are better off not going to a lawyer because the free contract is the better one. I imagine the reason for this is that a lawyer can't be bothered to become an expert in such an obscure situation required to figure out all the edge cases they may want to cover, and knowing both that the contract is unlikely to be tested and ultimately will usually end up being just as likely to be respected, or not respected, rather they throw together a quick generic one or go all out trying to make the best contract they can so they go for the quick easy contract as a 'good enough' solution. Whereas the free ones online are written by experts in the field who have really tried to create the best contract they possible can.</p>
<p>I'm wondering two things, is my layman perspective correct and the free contracts likely are better to use then the very generic paid ones I see. Second if the free ones may be superior is it common that this sort of situation comes up, that you can find prewritten contracts that have more effort put into it then a randomly selected lawyer is likely to put into one? Or is it only because of the lack of precedent that using one contract regardless of your state might make sense?</p>
<p>Slightly off topic bonus question, assuming the free contracts really are superiors why aren't paid lawyers using them as a basis for creating paid contracts rather then writing inferiors ones themselves? I always see these contracts made available but without explicitly spelled out licensing agreements that I can find, is it going to be presumed a lawyer can't charge for a contract they get from somewhere else, even if they vetted and potentially modified it?</p>
| 89,107 |
[
{
"answer_id": 89109,
"body": "<p>It is possible that a free online contract is superior to one specifically written for your situation, and it is possible that the opposite is true. It is more likely that a curated paid contract is superior, if (a) it is drafted by an attorney who is experienced and specializing in that area, (b) you discuss your goals with the attorney, (c) the issue is complex and jurisdiction-specific. It is more likely that the free contract is superior if (a) the attorney you hire doesn't listen to you, (b) doesn't know the area (e.g. specializes in DUI cases and has never touched a contract), (c) if there is already a well worked-out standard contract form (leases and real estate sales contracts come to mind), (d) deals with a very stable area of law where there is negligible state-to-state difference and (e) isn't powered by ChatGPT.</p>\n",
"score": 3
}
] |
[
"united-states",
"contract-law"
] |
Requirement to sign debt acknowledgement with date and amount in blank, to be filled later
| 1 |
https://law.stackexchange.com/questions/89105/requirement-to-sign-debt-acknowledgement-with-date-and-amount-in-blank-to-be-fi
|
CC BY-SA 4.0
|
<h2>Question</h2>
<p>Are there other countries than Chile where private institutions and government alike require people to sign a debt acknowledgement with date and amount in blank (sometimes validated at the notary), to be filled some time after the signing?</p>
<p>Related: I posted a distinct but similar question on
<a href="https://academia.stackexchange.com/questions/193376/research-funding-conditionned-to-the-signing-of-a-debt-acknowledgment-with-amoun">https://academia.stackexchange.com/questions/193376/research-funding-conditionned-to-the-signing-of-a-debt-acknowledgment-with-amoun</a>
about such debt acknowledgments used as a prerequisite for researchers to receive state research funding.</p>
<h2>Context</h2>
<p>In Chile, private hospitals routinely require their clients to sign a debt acknowledgment with an amount in blank before being admitted to the emergencies. It is considered as a (desirable) way to speed-up the admission process, permitting to people in pain to skip a long administrative process in order to insure that the cost of their medical treatment will be covered.</p>
<p>The institution distributing state research funding <a href="https://www.anid.cl/" rel="nofollow noreferrer">ANID</a> (formerly known as <a href="https://www.conicyt.cl/" rel="nofollow noreferrer">CONICYT</a>) via various "Fondecyt" competitions ("Fondecyt Initiation" for young researchers, "<a href="https://www.anid.cl/proyectos-de-investigacion/fondecyt-regular/" rel="nofollow noreferrer">Fondecyt Regular</a>" for other researchers, etc.) is doing the same, requesting researchers who "won" the competition to sign at a notary's office a debt acknowledgment with both the amount and the date in blank, as a condition to get access to the research funding. Only a few notaries accept to validate such documents, but only because they normally compute their fees for validating such a document based on a percentage of the amount of the debt acknowledgment (which they cannot do when the amount is left blank).</p>
<h2>Motivation</h2>
<p>I thought that this would be illegal: signing a document is supposed to mean that one has read the terms of the documents and agrees with them, which is of course does not mean that one will agree with the terms of the documents once it has been modified. I was told that such document was indeed legal in Chile.</p>
<p>As an academic in Chile, I am expected to apply for state research funding, and to sign such debt acknowledgment if awarded such funding (and told "not to worry, as such debt acknowledgment is never enforced by the government"). I find this the most note worthy example of systemic corruption, in the sense that the very meaning of a signed contract is corrupted. I would like to gather arguments in order to try to convince higher instances of the inadequacy of such a policy.</p>
| 89,105 |
[
{
"answer_id": 89108,
"body": "<p>This <a href=\"https://www.conceptosjuridicos.com/reconocimiento-de-deuda/\" rel=\"noreferrer\">Reconocimiento de deuda</a> is a real and standard thing, and they also use them in <a href=\"https://www.mondaq.com/financial-services/1206666/what-one-needs-to-know-about-an-acknowledgment-of-debt\" rel=\"noreferrer\">Zimbabwe</a>, but it says that the amount should be stated exactly ("Se debe indicar con exactitud la cuantía de la deuda que se reconoce"). Unless you fill in an amount that you are willing to accept as your debt, you are trusting that the various people who come to be in possession of the document are trustworthy. The document basically deprives you of the right to oppose the debt.</p>\n",
"score": 4
},
{
"answer_id": 89106,
"body": "<p>This looks like a very very big red flag to me. A document where I acknowledge a debt, and someone else can fill in the date and the amount at any time, that is absolutely totally 100% unacceptable. Do not sign this under any circumstances.</p>\n",
"score": 1
}
] |
[
"debt"
] |
Can a software include a list of deities/gods?
| -2 |
https://law.stackexchange.com/questions/88970/can-a-software-include-a-list-of-deities-gods
|
CC BY-SA 4.0
|
<p>Consider a software that allows users to create profiles that identify the user. If this software includes and allows users to choose what god/deity they believe in (or their favorite god/deity), is this legal?</p>
| 88,970 |
[
{
"answer_id": 88979,
"body": "<p>Under the First Amendment, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". Consequently, there can be no government action requiring the expression of beliefs of a particular religion, nor prohibiting such expressions – or, requiring or prohibiting expression of a general belief or disbelief in religions as a whole. This neutrality requirement holds only of governments, therefor a person can in his dealings with others require or prohibit expression of a religious viewpoint to the extent that they can make such a (non)expression a pre-condition for such dealings. Such dealings can be purely social, or they can be financial.</p>\n<p>However, there are currently some limitations arising from commercial dealings and the Commerce Clause of the Constitution, which allows Congress to regulate business.\nFor example, Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees based on religion. This limits an employer's right to religious expression, for example if they announce that Pastafarians need not apply. Title VII only addresses employment. Title II has an analogous prohibition against consideration of religion in "public accommodations" (theaters, hotels, restaurants...). The Fair Housing Act similarly prohibits religious discrimination in housing.</p>\n<p>We need not get into the question of whether prohibitions against religious discrimination contravene the First Amendment. Until SCOTUS or Congress says otherwise, there are specific narrow limits on one's First Amendment rights w.r.t. religion. There is no software anti-discrimination law, so no basis for thinking about the question in terms of anti-discrimination laws. In lieu of a law that addresses religion and software, you may express your religious or non-religious views in software as you please.</p>\n<p>Insofar as all anti-discrimination law are based on the premise "You may not consider X in making decisions", and setting X to be "religion", an anti-discrimination law applied to software would at most prohibit the <em>prohibition</em> of a religious expression, that is, would make it illegal to prevent a customer from making a religious expression within the scope of the software. A law which required software to <em>suppress</em> religious expression would be a maximal contravention of the First Amendment. So it is legal to allow a user to use the FSM as his avatar.</p>\n",
"score": 1
}
] |
[
"united-states",
"software",
"is-x-legal",
"religion"
] |
GDPR: Do I have to IP log "every" login for a customer?
| 6 |
https://law.stackexchange.com/questions/88866/gdpr-do-i-have-to-ip-log-every-login-for-a-customer
|
CC BY-SA 4.0
|
<p>IP addresses are personal data according to GDPR as far as I know. Whenever customer registers, I log IP address, timestamp, other details which are given by the customer such as name, address etc. After that, when customer logs in again with the same IP address, do I have to log that login with new timestamp?
If I don't log every login and when customer asks for GDPR data, I will only be able to provide IP addresses he/she was having with only one timestamp, not subsequent logins' timestamps.
Is this a good implementation or wrong/inadequate in terms of regulation/law?</p>
| 88,866 |
[
{
"answer_id": 88869,
"body": "<p>The intention of the GDPR is to <strong>minimize</strong> the amount of personally identifiable information (PII) you store. So the GDPR never tells you that you <em>have</em> to log certain events. The simplest way to make sure you comply with the GDPR is to simply not store any PII at all. But that might of course conflict with legitimate business interests and with other legal obligations you might have. So when you <em>do</em> store PII, then the GDPR regulates under which conditions you are <em>allowed</em> to store PII, for how long and what you are allowed to do with that PII.</p>\n<p>So when you receive a GDPR request from a customer to see their data, then you can say that you only have that one timestamp of their registration, because you didn't log their subsequent logins (assuming this is the truth).</p>\n<p>I hope your privacy policy says that you store all that PII on registration and that you have some good arguments why storing that information is a "legitimate interest" of your organization.</p>\n",
"score": 20
},
{
"answer_id": 88868,
"body": "<p>GDPR means that <strong>if</strong> you handle personal data, <strong>then</strong> you need proper procedures and a valid reason for doing so. Customer consent is one valid reason, but not the only one.</p>\n<ul>\n<li>Do you have a technical or business reason to preserve records of every login, including the IP? If not, just don't do it. Data without a good purpose is just a headache for you.</li>\n<li>If you want to log every login (a bank might do so, I guess ...), decide what your reason is. Is it <em>necessary</em> to fulfill a contract? Then the contract is your reason. You have to document that and explain it in your legal boilerplate. But if you want to collect data for better targeted advertising, you probably need the consent of the data subject.</li>\n<li>If you have a valid reason, you also need to decide <em>how long</em> the data must be stored, and implement data access procedures, etc.</li>\n</ul>\n<p>If you have <em>customers,</em> then you are a business, and you should hire an expert to advise you. You might be required to appoint a Data Protection Officer for your company, too.</p>\n",
"score": 14
},
{
"answer_id": 89009,
"body": "<p>As already mentioned, GDPR does not require you to collect any data; in contrary - data minimization principle requires one to use as little as possible data. But when you use data you need to have a valid purpose (why you use data? what you want to achieve?) and legal grounds (for example - consent or your legitimate interest in e.g. ensure security of your site).\nThere are though requirements in GDPR like to ensure proof of collecting consent or ensuring security of data processing (all activities related to data on individual). That's where collecting of IP may be needed.\nFrom your question, however, it seems that you do not know why you are registering IP addresses and how would you use them. So my suggestion is to stop collecting them until you define the specific need and way you will use them.</p>\n",
"score": 1
}
] |
[
"gdpr"
] |
Does any country apply universal jurisdiction to coups d'état?
| 0 |
https://law.stackexchange.com/questions/89055/does-any-country-apply-universal-jurisdiction-to-coups-d%c3%a9tat
|
CC BY-SA 4.0
|
<p>Several countries apply <a href="https://en.wikipedia.org/wiki/Universal_jurisdiction" rel="nofollow noreferrer">universal jurisdiction</a> when suspects are prosecuted for major crimes such as genocide, war crimes, ethnic cleansing and crimes against humanity. Among other examples, this allowed for <a href="https://en.wikipedia.org/wiki/Anwar_Raslan" rel="nofollow noreferrer">Anwar Raslan</a> to be convicted of crimes against humanity in Germany, for crimes committed while he was in Syria. Considering some of the answers to <em><a href="https://law.stackexchange.com/q/89019/3569">At what point is it "legal" to overthrow the government?</a></em> which essentially state that if you succeed in overthrowing the government, nobody will prosecute you for it, I wonder:</p>
<p>Is there any country applying universal jurisdiction allowing for prosecuting a coup d'état happening in another country?</p>
<p>Wikipedia doesn't seem to list any, but Wikipedia may be incomplete.</p>
| 89,055 |
[
{
"answer_id": 89078,
"body": "<h2>Sort of</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=\"australia-container\">australia</a></p>\n<p>A coup d'état would, almost certainly, involve acts or planning for acts captured by Australia’s laws against <a href=\"https://www.ag.gov.au/national-security/australias-counter-terrorism-laws\" rel=\"nofollow noreferrer\">terrorism</a>.</p>\n<blockquote>\n<p>A terrorist act is an act, or a threat to act, that meets both these criteria:</p>\n<ul>\n<li><p>it intends to coerce or influence the public or <strong>any government</strong> by intimidation to advance a political, religious or ideological cause.</p>\n</li>\n<li><p>it causes one or more of the following:</p>\n</li>\n</ul>\n<p>. - death, serious harm or danger to a person\nserious damage to property</p>\n<p>. - a serious risk to the health or safety of the public</p>\n<p>. - serious interference with, disruption to, or destruction of critical infrastructure such as a telecommunications or electricity network.</p>\n</blockquote>\n<p>As drafted, the laws require no connection to Australia.</p>\n",
"score": 2
}
] |
[
"international",
"extraterritorial-jurisdiction"
] |
What's my entitlement if prize not received
| 2 |
https://law.stackexchange.com/questions/16398/whats-my-entitlement-if-prize-not-received
|
CC BY-SA 3.0
|
<p>Let's say I pay money to enter a raffle (assuming raffle is legal as I understand it may not be legal in all states) and win the raffle. </p>
<p>The prize is either an item of value or the value of the item if the item is no longer available. </p>
<p>Now if the raffle holder decides not to award either prize, am entitled to the prize/value of prize or a refund of purchase price of ticket or nothing at all? </p>
<p>I know there would be several things to factor in, but is there any kind of example that would give me an idea how a court would view a lawsuit of this situation?</p>
| 16,398 |
[
{
"answer_id": 16399,
"body": "<p>Since a raffle is typically a game of chance, it's not highly likely that it is legal, though it is possible. In Washington, some charitable organizations can hold a raffle, if they follow a bunch of rules – it depends on the state. Assuming that the raffle is legal, the right to a prize falls within contract law (<a href=\"http://courts.mrsc.org/appellate/057wnapp/057wnapp0802.htm\" rel=\"nofollow noreferrer\">Thao v. Contral Data</a>, <a href=\"http://www.leagle.com/decision/197742677MichApp349_1382/COLEMAN%20v.%20LOTTERY%20BUREAU\" rel=\"nofollow noreferrer\">Coleman v. Lottery Bureau</a>). It is possible that the terms of the contest were not satisfied – that was an issue in some real estate raffles, that there had to be some minimum number of sales. If the minimum sales figure is not met, then the raffle would be canceled and tickets would be refunded. Other reasons to cancel a raffle include being told by the state that you have to (they decide it's illegal). Another possibility is that the customer is mistaken about what was being raffled off. Unless there is something in the terms that clearly indicates that the 'customer' is simply making a donation and this really isn't a raffle, then you have an offer, acceptance, consideration and mutuality, i.e. a contract. The rafflers could them be legally obligated to award the prize (or equivalent). So the main questions would be: is it legal, is it just a donation, was there an actual winner. I don't see any way that they could legally just keep the money. </p>\n",
"score": 2
}
] |
[
"contract-law",
"civil-law"
] |
What is a sure shot way of proving citizenship of India?
| 12 |
https://law.stackexchange.com/questions/89050/what-is-a-sure-shot-way-of-proving-citizenship-of-india
|
CC BY-SA 4.0
|
<p>According to a ruling by the Bombay High Court in 2013, an Indian passport cannot prove citizenship. Also, in 2019, the Government of India claimed that 'common documents' were enough to prove citizenship.</p>
<p>What are the documents or paperwork which can prove someone is an Indian citizen?</p>
<p>Reference: <a href="https://theleaflet.in/indian-citizenship-law-a-mess-proving-citizenship-even-messier/" rel="nofollow noreferrer">https://theleaflet.in/indian-citizenship-law-a-mess-proving-citizenship-even-messier/</a></p>
| 89,050 |
[
{
"answer_id": 89051,
"body": "<blockquote>\n<p>What are the documents or paperwork which can prove someone is an Indian citizen?</p>\n</blockquote>\n<p>As is often the case, it depends on the context: who is seeking to prove the person's Indian citizenship? For what purpose? How did the person become an Indian citizen?</p>\n<p>For example, if the person became Indian by naturalization, a naturalization certificate would usually be necessary. If a person became Indian by birth then evidence establishing the relevant facts will be needed, and this evidence will typically include a birth certificate.</p>\n<p>We can see that a passport isn't necessary to prove citizenship because a first-time passport applicant needs to prove citizenship in the application. Whatever documents are acceptable for this must therefore constitute proof of citizenship.</p>\n<p>But there is always the possibility that an Indian citizen in possession of any document, including a passport, does something that causes the automatic loss of Indian nationality, such as naturalizing in a foreign country. At that point, the former Indian citizen will be in possession of documents that appear to show Indian citizenship without actually being an Indian citizen. Therefore, we can establish that <em>no document or set of documents can be conclusive proof of Indian citizenship.</em></p>\n<p>Depending on the context, the person who needs to be convinced of a person's Indian citizenship may or may not need to take into account the likelihood that the person has somehow done something that would cause loss of citizenship. An airline agent boarding a passenger for an international flight to India will be satisfied by the passport. The immigration officer processing the passenger on arrival might however make a brief inquiry into possible expatriating acts. A judge in a court case may go as far as to undertake an intensive legal-factual analysis in which documents play a limited role, if any.</p>\n<p>Thus, the answer to your question</p>\n<blockquote>\n<p>What is the sure shot way of proving citizenship of India?</p>\n</blockquote>\n<p>is that there is none. There is always the possibility that a good-faith attempt to prove the citizenship of an Indian citizen will fail. There is always the possibility of a noncitizen having documents that were issued legitimately and purport to show that the person is an Indian citizen.</p>\n<p>In the 2013 case, it <a href=\"https://m.timesofindia.com/india/Passport-alone-no-proof-of-citizenship-Bombay-HC/articleshow/22244467.cms\" rel=\"noreferrer\">appears that the passports were issued in error</a>. The court did not rule that passports <em>cannot be used</em> to prove Indian citizenship but that it "may not be enough to prove you are an Indian citizen if you were born after July 1, 1987" (quoting the Times of India here, not the court).</p>\n",
"score": 13
},
{
"answer_id": 89092,
"body": "<p>The <a href=\"https://indiancitizenshiponline.nic.in/acquisition1.htm\" rel=\"nofollow noreferrer\">Indian citizenship law</a> states that (emphasis mine)</p>\n<blockquote>\n<p>Indian citizenship can be acquired by birth, descent, registration and\nnaturalization. The conditions and procedure for acquisition of Indian\ncitizenship as per the provision of the Citizenship Act, 1955 are\ngiven below:</p>\n<p>(1) By Birth (Section 3)</p>\n<p><strong>A person born in India on or after 26th January 1950 but before 1st July, 1987 is citizen of India by birth</strong> irrespective of the nationality of his parents.</p>\n<p><strong>A person born in India on or after 1st July,1987 but before 3rd December, 2004 is considered citizen of India by birth if either of his parents is a citizen of India</strong> at the time of his birth.</p>\n<p><strong>A person born in India on or after 3rd December, 2004 is considered citizen of India by birth if both the parents are citizens\nof India or one of the parents is a citizen of India and the other is\nnot an illegal migrant</strong> at the time of his birth.</p>\n<p>An 'illegal migrant' as defined in section 2(1)(b) of the Act is a foreigner who entered India.</p>\n<p>(i) without a valid passport or other prescribed travel documents : or</p>\n<p>(ii) with a valid passport or other prescribed travel documents but remains in India beyond the permitted period of time.</p>\n<p>(2) By Descent (Section 4)</p>\n<p><strong>A person born outside India on or after 26th January 1950 but before 10th December 1992 is a citizen of India by descent, if his father was a citizen of India by birth at the time of his birth</strong>.\nIn case the father was a citizen of India by descent only, that person shall not be a citizen of India, unless his birth is registered at an Indian Consulate within one year from the date of birth or with the permission of the Central Government, after the expiry of the said period.</p>\n<p><strong>A person born outside India on or after 10th December 1992 but before 3rd December, 2004, is considered as a citizen of India if either of his parents was a citizen of India by birth at the time of his birth</strong>. In case either of the parents was a citizen of India by descent, that person shall not be a citizen of India, unless his birth is registered at an Indian Consulate within one year from the date of birth or with the permission of the Central Government, after the expiry of the said period.</p>\n<p>A person born outside India on or after 3rd Decmber, 2004 shall not be a citizen of India, unless the parents declare that the minor does not hold passport of another country and his birth is registered at an Indian consulate within one year of the date of birth or with the permission of the Central Government, after the expiry of the said period.</p>\n</blockquote>\n<p>Thus the "paper" necessary to prove citizenship varies by your date and place of birth.</p>\n<p>If you were born in India before July-1-1987, a birth certificate from relevant authority is enough.</p>\n<p>If you were born in India after that date but before Dec-3-2004, you need to have your birth certificate and birth certificate of either parent (assuming they were born in earlier time frame).</p>\n<p>If born after that time, you need birth certificates for yourself and your parents. If the birth certificates are not enough to prove parents' citizenship, you need birth certificates of your grandparent(s) too.</p>\n<p>Note that this answer only touches upon the "citizenship by birth" aspects. Other aspects (naturalization, renounciation) have been already explained well by phoog in his answer.</p>\n",
"score": 2
}
] |
[
"india",
"citizenship"
] |
Is it possible to plead 'indifferently'?
| 1 |
https://law.stackexchange.com/questions/89071/is-it-possible-to-plead-indifferently
|
CC BY-SA 4.0
|
<p>I'm aware of the concept of non-standard pleas, but I'm unsure about how they operate in practice.</p>
<p>What might happen if a person were to plead something to the effect of 'I plead indifference to/non-recognition of the proceedings and judgement of the judiciary'? Would this simply be regarded as a type of not-guilty plea? Can a person be compelled to select a standard plea under the threat of being found in contempt of court?</p>
| 89,071 |
[
{
"answer_id": 89072,
"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>Section 606 of the Criminal Code says that "[a]n accused who is called on to plead may plead guilty or not guilty, or the special pleas authorized by this Part."</p>\n<p>One of the special pleas is <em>res judicata</em>, but there is no special plea amounting to indifference.</p>\n<p>If an accused "refuses to plead or does not answer directly, the court shall order the clerk of the court to enter a plea of not guilty."</p>\n",
"score": 4
},
{
"answer_id": 89091,
"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=\"united-states-container\">united-states</a>, it may be possible to plead <a href=\"https://en.wikipedia.org/wiki/Nolo_contendere\" rel=\"nofollow noreferrer\">no contest</a>. Doing so does recognize the proceedings, but it saves the defendant from actively admitting <em>guilt</em>.</p>\n",
"score": 1
}
] |
[
"united-states",
"plea",
"contempt-of-court"
] |
Liability when using content from third party content distributor
| 0 |
https://law.stackexchange.com/questions/89082/liability-when-using-content-from-third-party-content-distributor
|
CC BY-SA 4.0
|
<p>There are sites that offer images and music that is supposedly usable without paying any royalities (for youtube videos, placeholder images, and so on). The content is uploaded by third party (from my point of view) users to this site and the site is supposed to vet that it is indeed usable without having to pay royality.</p>
<p>Recently on one of those sites I have had the impression that there are some content producers that are pushing the limit especially in the music area. If you know the original song you can clearly connect the dots and it really sounds similar, yet they are listed on the webpage as usable without restriction. I am no expert in copyright law but several times I thought it is definitely at least in a gray area.</p>
<p>Am I as the user of this site in any way liable if the music turns out to violate copyright? For original music I know I can steer clear to avoid any issues, but I dont know every original piece of music.</p>
<p>/EDIT: I did not add a special location tag because I do believe the answer is probably quite similar in various jurisdictions.</p>
| 89,082 |
[
{
"answer_id": 89089,
"body": "<blockquote>\n<p>Am I as the user of this site in any way liable if the music turns out to violate copyright?</p>\n</blockquote>\n<p>Yes.</p>\n<p>In a similar way to if I give you “permission” to take my neighbour’s car. Only worse. Because stealing requires intent - you have to <em>mean</em> to do it - while copyright violation is strict liability - if you do it, you’re guilty.</p>\n<p>If the user that uploaded the item did not have the authority to give the site permission then the site does not have permission and neither do you. If you take reasonable precautions such as performing a reverse image source and verifying that the item appears to be owned by the same person everywhere and, perhaps, reaching out to them then your violation will be an “innocent” infringement which mitigates but does not eliminate damages.</p>\n<p>The only way to be sure with copyright is to know the <a href=\"https://en.wikipedia.org/wiki/Provenance\" rel=\"nofollow noreferrer\">provenance</a> of the copyright/licences back to the original creator.</p>\n",
"score": 3
}
] |
[
"copyright",
"music",
"digital-content"
] |
Do I have any legal options if a game is released with the same name as one I already publicly have under development?
| 4 |
https://law.stackexchange.com/questions/88018/do-i-have-any-legal-options-if-a-game-is-released-with-the-same-name-as-one-i-al
|
CC BY-SA 4.0
|
<p>I have had a game in development since October 2020. There is an audit trail in the form of public GitHub code commits showing how long I have been using the name. Unfortunately I had not yet done any public marketing for the game so there isn't really anything in the way of press or social media presence.</p>
<p>In November 2021, a wordmark application was filed for the same name by a major studio and the game was released on major retailers later that year. I could find no public usage of that name by them or even an announcement that they were working on such a game at all until that point.</p>
<p>I am now under a year away from being ready for release and am wondering what my options are.</p>
<p>I understand that trademarking is a "first come, first serve" deal and I imagine I have no legal grounds (or resources) to stop them from using it but my question is, do I have any protections or options that I can take to allow me to continue using the name/prevent them from forcing me to change it? Or if I must change it, am I still bound by normal rules that would prevent me from making the name too similar to the existing name?</p>
| 88,018 |
[
{
"answer_id": 88976,
"body": "<p>Trademark rights are generally based on actual use of a mark in commerce, so the first party to use the mark in connection with goods or services has priority. In your case, it sounds like the major studio started using the same name after you had already started using it in your game development.</p>\n<p>However, without conducting a full trademark search and analysis of both parties' rights, it is not possible to determine whether you have any legal grounds to prevent the major studio from using the name. In some cases, it is possible to argue that you have acquired "common law" rights in a mark through your use, even if you have not registered the mark with the trademark office. However, these rights can be limited and difficult to enforce.</p>\n<p>If the major studio has filed a trademark application for the same name and you believe that your use of the name may infringe on their rights, it may be wise to consider changing the name of your game to avoid any potential legal issues. You may want to consult a trademark attorney to discuss your specific situation and any potential legal risks.</p>\n<p>Regarding the similarity of the new name to the existing name, there are rules against creating a "confusingly similar" mark that may infringe on another party's rights. These rules apply regardless of whether the other party has a registered trademark.</p>\n",
"score": 2
}
] |
[
"intellectual-property",
"trademark",
"video-games"
] |
Collateral damage when an atttorney lies in civil court?
| -1 |
https://law.stackexchange.com/questions/89074/collateral-damage-when-an-atttorney-lies-in-civil-court
|
CC BY-SA 4.0
|
<p>When an attorney knowingly makes a false statement in civil court in an attempt to tip the scale in his client's favor, what are the possible ramifications?</p>
<p>I'm aware that a lie under oath can be prosecuted as a criminal offense but when a defendant proves that the plaintiff's attorney lied to the judge in order to perturb justice to what extent can the defendant use this in his favor?</p>
<p>(I'm aware that if the defendant can prove the attorney lied the obvious outcome is that the court will not accept the attorney's statement as being true - the question is whether this has any "collateral damage" on the overall case? If yes, is the "collateral damage" embedded in the law or is it up to the judge's discretion whether to impose sanctions / a penalty?)</p>
<p>Is it worse if the attorney lied to the court when the defendant was a ProSe litigant?</p>
| 89,074 |
[
{
"answer_id": 89088,
"body": "<h2>The lawyer can be disciplined</h2>\n<p>At the extreme, this can result in disbarment or even criminal charges if there is intent to pervert the course of justice.</p>\n<p>It may result in a mistrial and/or may be grounds for appeal.</p>\n<p>The lawyer does not have civil liability because lawyers are not liable for what they do in court.</p>\n",
"score": 1
}
] |
[
"united-states",
"criminal-law",
"civil-law",
"rules-of-court",
"new-jersey"
] |
Is it illegal to threaten to present criminal charges in a civil lawsuit?
| 0 |
https://law.stackexchange.com/questions/89076/is-it-illegal-to-threaten-to-present-criminal-charges-in-a-civil-lawsuit
|
CC BY-SA 4.0
|
<p>New Jersey Rule of Professional Conduct 3.4(g) provides that an attorney “shall not … present, participate in presenting, or threaten to present criminal charges to obtain an improper advantage in a civil matter.” Doing so “is a form of intimidation and harassment that threatens the integrity of the civil process and is prejudicial to the administration of justice.”</p>
<p>I have two questions:</p>
<ol>
<li><p>Is this illegal or only unethical?</p>
</li>
<li><p>Does the above apply to a ProSe plaintiff/defendant or only to an attorney?</p>
</li>
</ol>
| 89,076 |
[
{
"answer_id": 89087,
"body": "<p>The Rules of Professional Conduct apply only to lawyers and are the foundation for a lawyer to be suspended from the practice of law or disbarred or receive other license related professional discipline. They are neither criminal offenses, nor on their own, a grounds for a civil lawsuit (although they may be relevant to an element of a civil cause of action giving rise to a lawsuit).</p>\n<p>The Rules of Professional Conduct also prohibit using a non-lawyer as a sock puppet to violate the Rules of Professional Conduct.</p>\n<p>But, the Rules of Professional Conduct themselves are not applicable to pro se parties or even to non-lawyer parties who are acting fully independently of the lawyers they have retained.</p>\n<p>In some circumstances, a violation of Rule of Professional Conduct 3.4(g) could also constitute the crime of extortion, or could constitute duress such that an action taken in the course of litigation or a business deal is not actually legally considered to be voluntary and making it potentially voidable. But this would not always, or necessarily even usually, be the case.</p>\n<p>Incidentally, Rule of Professional Conduct 3.4 is one of the Rules of Professional Conduct with the most state to state substantive variations and it also has multiple differing interpretations even in cases where the language is verbatim identical between states. The appropriate scope of this rule as a matter of policy is one of considerable controversy. And, it isn't unusual for the converse to happen (i.e. for a criminal prosecutor or an attorney regulation system official to force the hand of a civil litigant in the course of negotiations about those charges).</p>\n",
"score": 5
}
] |
[
"united-states",
"criminal-law",
"civil-law",
"new-jersey",
"legal-concepts"
] |
Involving a witness in the settling of an objection
| 4 |
https://law.stackexchange.com/questions/89073/involving-a-witness-in-the-settling-of-an-objection
|
CC BY-SA 4.0
|
<p>In the trial of Jodi Arias, <em>during direct examination</em>, the prosecutor objects to the details of some evidence. As a result both the prosecutor and the defence ask questions of the witness* about the validity of the evidence.</p>
<p>Move to admit evidence resulting in objection: <a href="https://youtu.be/1ABR8glQeG4?t=8751" rel="nofollow noreferrer">https://youtu.be/1ABR8glQeG4?t=8751</a></p>
<p>I have never seen this before - is it common practice? standard procedure?</p>
<hr />
<p>*At this point it is the defendant who is on the stand</p>
| 89,073 |
[
{
"answer_id": 89083,
"body": "<h2>It’s a <a href=\"https://en.wikipedia.org/wiki/Foundation_(evidence)\" rel=\"noreferrer\">foundation</a> objection</h2>\n<p>The basis of a foundation objection is the witness does not have first hand knowledge of the physical evidence sought to be introduced. It’s perfectly normal for the court to establish if they do or do not have such knowledge.</p>\n<p>In the linked case, the objection to the document is that it contains annotations that the witness did not make i.e. the witness did not have first hand knowledge of <em>this annotated</em> document. There are also some objections to parts of the document on the grounds of relevance because they deal with other people.</p>\n",
"score": 9
}
] |
[
"rules-of-court"
] |
Waiver of a Right During Appeal When the Lower Court Rules that such a Right Does Not Exist?
| 1 |
https://law.stackexchange.com/questions/89043/waiver-of-a-right-during-appeal-when-the-lower-court-rules-that-such-a-right-doe
|
CC BY-SA 4.0
|
<p>Let's say two parties enter into an arbitration agreement and one of the parties seeks to enforce the arbitration agreement while the second party seeks to annul it. The two parties appear in court and the judge rules that the arbitration agreement is invalid.</p>
<p>The party seeking to enforce the arbitration agreement appeals the decision to the Appellate Division. However, at the same time they are forced to act in a way that is inconsistent with the enforcement of the arbitration agreement. For example, suppose Party A sues Party B for a breach of contract for $50,000. Party B attempts to compel arbitration but the court denies the request. While the case is pending appeal, Party B counter sues Party A for $25,000 for breach of the same contract with the logic that until the higher courts reverse the decision of the lower courts, Party B wants the courts to get a full picture of their version of the story.</p>
<p>Could it be argued that Party B now forfeited their right to appeal by filling a suit in court against Party A and not waiting until the appeal is either accepted or denied?</p>
| 89,043 |
[
{
"answer_id": 89057,
"body": "<p>No... I forget the specific term but in court you can bring in multiple points of contradiction that are all contradictory to your other arguments, but would not be contradicting to your case, because they all contradict your legal adversaries case. The example as I heard it is A man is bitten by a neighbor's Pit Bull and the man takes takes his neighbor to court for damages. The neighbor mounts his defense by saying 1.) I don't own that dog. 2.) If I did own a dog, I wouldn't own that breed of dog. 3.) I always keep my dogs on a leash when I take them out of the house and would pull it away before it bit someone. 4.) On the day in question my dog was in the kennel.</p>\n<p>In this case, the defense would be valid because the Plaintiff would have to disprove all 4 statements, any one of which would impact the case against the neighbor. In a criminal case, the defendant doesn't have to prove his story is true, he just has to prove that the Prosecution's story isn't. In a civil case, both sides merely have to prove their story is more likely to be true than the other side's. What's more, none of those statements is contradictory, they only seem so (Neighbor doesn't own that dog (he dog sits for his sister). If he did own a dog, it would be a different breed (He doesn't like Pitt Bulls). He never takes a dog out of his house without putting a leash on the dog and maintains control of the dog (Because that's what any dog owner would do). The dog was in the kennel on the day of the incident (because for his own reasons, he can't dog sit for his sister.)).</p>\n<p>In effect, to avoid damage, the argument of "That's not my dog" is to argue that the neighbor isn't the responsible party for the dog's behavior. The second argument is that the neighbor would never own a pit bull even if he did own a dog, the third would demonstrate that even when there is a dog that the neighbor is caring for, he does so in a responsible way AND the dog being in the kennel shows that the dog couldn't possibly have been the one who bit the plaintiff.</p>\n<p>What's more, the defendant can counter sue his neighbor for harassment, who just plain hates Pit Bulls and has been shouting at defendant for daring to care for his sister's dog even on days where the dog is not on the man's property and instantly blamed the Defendant in court without considering the possibility that there could be another Pit Bull owner in the area and their Pit Bull got loose.</p>\n<p>In OP's case, the filing of a countersuit is just "Hope for the Best, prepare for the worst". They could be filing because the appellant court's decision may not come out in the window of time they have before they lose the ability to file counter claims. In that case, if the appeal goes in their favor, the suit is dismissed as well as the countersuit and goes to arbitration. If it goes against them, they will be arguing their claim at the trial.</p>\n",
"score": 1
},
{
"answer_id": 89081,
"body": "<blockquote>\n<p>Could it be argued that Party B now forfeited their right to appeal by filling a suit in court against Party A and not waiting until the appeal is either accepted or denied?</p>\n</blockquote>\n<p>No, party B is not at risk of forfeiture of the appeal.</p>\n<p>Party B may file in trial court a counterclaim and a motion for a stay pending appeal. In turn, a denial of that motion may be appealed. See <a href=\"https://www.njcourts.gov/attorneys/rules-of-court/stay-proceedings-civil-actions-contempts-and-arbitrations\" rel=\"nofollow noreferrer\">NJ Court Rule 2:9-5(c)</a>. Party B ought to be explicit on his intent to enforce the arbitration agreement as to his counterclaim. Otherwise, the trial court might interpret the counterclaim as a "remaining claim" outside the scope of the appeal.</p>\n<p>Even if the statute of limitations for B's counterclaim has expired by the time the appellate review has taken place, under NJ case law the counterclaim may still be allowed as <em>recoupment</em> against party A's claim. See <a href=\"https://www.leagle.com/decision/1978618163njsuper4551560\" rel=\"nofollow noreferrer\"><em>Biddle v. Biddle</em>, 163 N.J.Super. 455, 459-460 (1978)</a>.</p>\n",
"score": 0
}
] |
[
"united-states",
"civil-law",
"new-jersey",
"appeal",
"arbitration"
] |
Legality of the right to refuse admission by a privately owned restobar
| 6 |
https://law.stackexchange.com/questions/796/legality-of-the-right-to-refuse-admission-by-a-privately-owned-restobar
|
CC BY-SA 3.0
|
<p>A friend of mine recently tried to go into a restobar in India, and to his surprise, was informed that he couldn't because he was a male who was not accompanied by a female. Admittedly shocked, he spoke to the manager of that restobar to find out why, and was informed that due to other peace-disturbing, presumably single males (who caused fights and such), they had to implement such a rule.</p>
<p>This restobar is privately owned, but is open to the public without restriction (i.e. doesn't require membership like a club, and such).</p>
<p>I understand that almost every place of entertainment across the globe displays this "Rights to admission reserved" disclaimer. However, the second clause of <a href="http://india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf" rel="nofollow">Article 15 of the Constitution of India</a> says:</p>
<blockquote>
<p>No citizen shall, on grounds only of religion, race, caste, sex, place
of birth or any of them, be subject to any disability, liability,
restriction or condition with regard to -</p>
<ol>
<li>access to shops, public restaurants, hotels and places of public entertainment; or</li>
<li>the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or
dedicated to the use of general public.</li>
</ol>
</blockquote>
<p>And then clause three of the same article goes on to say:</p>
<blockquote>
<p>Nothing in this article shall prevent the State from making any
special provision for women and children.</p>
</blockquote>
<p>Thus, by my understanding, the above-mentioned restobar's rule of not allowing single males in is illegal according to the Constitution of India.</p>
<p>Am I correct to arrive at this conclusion? Or are there any additional relevant laws that I may have overlooked?</p>
| 796 |
[
{
"answer_id": 11192,
"body": "<p>Article 15(2) of the Indian Constitution prohibits restriction to any citizen of India on entry to a public hotel, restaurant or place of entertainment on the grounds \"only of religion, race, caste, sex [and/or] place of birth\". It is a fundamental right guaranteed to all citizens of India.</p>\n\n<p>The Supreme Court of India has held a \"public place\" to mean any place which is open to the public and to also include private places functioning to serve a non-exclusive group of people. Hence, a club or premise opened only to serve its affiliates or members shall not be considered a public place for the purpose of this provision of law.</p>\n\n<p>Hence, if a citizen of India is not denied admission purely on the basis of his/her religion, race, caste, sex or place of birth, his admission to a restaurant or a hotel owned and operated by the government or private concerns may be prohibited as the rights of admission may be reserved with the management of the premises. </p>\n\n<p>Just to conclude you can sue the hotel for denying entry</p>\n",
"score": 3
},
{
"answer_id": 798,
"body": "<p>I don't know Indian law, but I will answer as an American for legal concept.</p>\n\n<p>Discrimination against people for race, caste, sex, religion etc. is for <em>permanent</em> conditions, and therefore disallowed. Not having a female escort is a <em>temporary</em> condition that can be easily remedied.</p>\n\n<p>In America, there is also something called a bona fide occupational qualification (BFOQ). That is you can discriminate in job roles if the job actually requires it; e.g. you can require that a priest in a church or temple be of a certain faith, but not the janitor, because \"faith\" is not required for the janitor's job. Similarly, the restobar can claim that its experience is that unescorted men cause more trouble than escorted men, and therefore having an escort is a \"bona fide\" qualification.</p>\n",
"score": 2
}
] |
[
"india",
"constitutional-law"
] |
Is marriage rejection on the basis of caste a criminal offence?
| 6 |
https://law.stackexchange.com/questions/61704/is-marriage-rejection-on-the-basis-of-caste-a-criminal-offence
|
CC BY-SA 4.0
|
<p>I am a Brahmin and my girlfriend is Schedule caste, and my parents are denying our marriage because of caste. Will it be considered a criminal offence under Indian caste discrimination law, if any?</p>
| 61,704 |
[
{
"answer_id": 61705,
"body": "<p>The applicable law of India is <a href=\"https://cjp.org.in/wp-content/uploads/2018/01/The-Scheduled-Castes-And-the-Scheduled-Tribes-Prevention-of-Atrocities-Act-1989-1.pdf\" rel=\"noreferrer\">The Scheduled Castes And the Scheduled Tribes (Prevention of Atrocities) Act, 1989</a> plus the <a href=\"https://cjp.org.in/wp-content/uploads/2018/01/Atrocities-Amendment.pdf\" rel=\"noreferrer\">2015 amendment</a>. There are various prohibited acts, the majority of which are already crimes, such as numerous kinds of assault, trespass, unlawful eviction, also including knowingly making obscene gestures at a woman belonging to a Scheduled Caste or a Scheduled Tribe. It also includes social and economic boycotts, to some extent (as a means of preventing such a person from voting). Parents can freely refuse to sanction / support the marriage of whoever they chose, but they cannot forcibly interfere, for instance by kidnapping one of the participants.</p>\n",
"score": 10
}
] |
[
"india",
"marriage",
"indian-penal-code",
"indian-constitutional-law"
] |
Reservation category of people born out of inter-caste marriages
| 4 |
https://law.stackexchange.com/questions/68089/reservation-category-of-people-born-out-of-inter-caste-marriages
|
CC BY-SA 4.0
|
<h1 id="background-men5">Background</h1>
<p>In India there is reservation (for government employment and admissions etc) based on caste and income among other types.</p>
<p>For caste based reservation <em>mainly</em> following categories are there —</p>
<h4 id="reserved-categories-ttt1">Reserved categories</h4>
<ul>
<li>SC (scheduled caste)</li>
<li>ST (scheduled tribe)</li>
<li>OBC-NCL (Other Backward Class — Non creamy layer)</li>
<li>General-EWS (Economically Weaker Section)</li>
</ul>
<h4 id="non-reserved-categories-5uwa">Non-reserved categories</h4>
<ul>
<li>OBC-CL (Creamy layer)</li>
<li>General-others (non EWS)</li>
</ul>
<hr />
<h1 id="my-questions-mw0s">My questions —</h1>
<ol>
<li><p>Is there default caste of child born out of inter-caste marriage? Or parents get to choose caste for child from among castes of theirs?</p>
</li>
<li><p>What will be the reservation category of a child when—</p>
<ul>
<li>One parent belongs to non-reserved category and other belongs to reserved one.</li>
<li>Both parents belong to different reservation categories.</li>
</ul>
</li>
</ol>
| 68,089 |
[
{
"answer_id": 68127,
"body": "<p><strong>Is there default caste of child born out of inter-caste marriage?</strong></p>\n<p><strong>Short answer</strong></p>\n<ul>\n<li>The child normally takes the father's caste, but it may be contested if it can be shown that the child is brought up by the mother.</li>\n</ul>\n<p><strong>Long answer</strong></p>\n<ul>\n<li>The case law has been evolving in recent years, the latest findings by the Supreme Court of India can be found at <a href=\"https://indiankanoon.org/doc/197038546/\" rel=\"noreferrer\">Rameshbhai Dabhai Naika vs State Of Gujarat & Ors on 18 January, 2012</a></li>\n</ul>\n<blockquote>\n<p>[T]he legal position that seems to emerge is that in an inter-caste marriage or a marriage between a tribal and a non-tribal <strong>the determination of the caste of the offspring is essentially a question of fact</strong> to be decided on the basis of the facts adduced in each case. The determination of caste of a person born of an inter-caste marriage or a marriage between a tribal and a non-tribal cannot be determined in complete disregard of attending facts of the case. In an inter- caste marriage or a marriage between a tribal and a non-tribal <strong>there may be a presumption that the child has the caste of the father</strong>. This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal the husband belongs to a forward caste. <strong>But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the scheduled caste/scheduled tribe.</strong> </p>\n</blockquote>\n",
"score": 4
}
] |
[
"civil-law",
"india",
"marriage",
"caste"
] |
Effect of Kennedy v Bremerton on political speech
| 0 |
https://law.stackexchange.com/questions/89038/effect-of-kennedy-v-bremerton-on-political-speech
|
CC BY-SA 4.0
|
<p>Most media coverage of <em>Kennedy v. Bremerton</em> revolves around religious exercise and whether the school was hostile to it. However, the majority opinion holds that Kennedy's prayer was protected by both the Free Exercise <em>and</em> Free Speech Clauses.</p>
<p>This would seem to suggest nonreligious speech, such as political speech, may also be protected if delivered in a similar manner to Kennedy's prayers. To what extent does the ruling guarantee a teacher's a right to express political opinions?</p>
<p>For example, suppose a coach wanted to "take a knee" a la Kaepernick in protest of police brutality, or give a midfield land acknowledgment denouncing America's colonial past. Is it constitutionally permissible for the school district to prohibit this?</p>
| 89,038 |
[
{
"answer_id": 89044,
"body": "<p>I don't think Kennedy v. Bremerton would have much effect, because there has been little question that governments cannot prohibit the expression of a political viewpoint. There have been a number of rulings based on the Establishment Clause which say that it is impermissible for the government to establish a particular religion, or religions in general, which has resulted in a struggle between the Establishment Clause and the Free Exercise Clause, leading to a particular resolution in Kennedy v. Bremerton. I see nothing new in that opinion that bears on Free Speech. We can paraphrase the tail end of the holding in the opinion for any such future case: "a government entity sought to punish an individual for engaging in a personal political expression, based on a\nmistaken view that it has a duty to suppress political expressions <s>even as it allows comparable secular speech</s>. The Constitution neither\nmandates nor tolerates that kind of discrimination". Since there is nothing that vaguely suggests that it is okay to suppress political expression, nothing fancy is required to conclude that the school cannot suppress political expression.</p>\n",
"score": 2
}
] |
[
"freedom-of-speech",
"first-amendment",
"religion",
"politics",
"civil-rights"
] |
Is hiring a dominatrix legal in Canada?
| 0 |
https://law.stackexchange.com/questions/89048/is-hiring-a-dominatrix-legal-in-canada
|
CC BY-SA 4.0
|
<p>According to <a href="https://en.wikipedia.org/wiki/Prostitution_in_Canada" rel="nofollow noreferrer">Wikipeidia</a> it is illegal "to purchase or advertise sexual services". This statement seems very broad and would include more than copulation.</p>
<p>I noticed on a dominatrix website, they asked for photo ID and payment by credit card. If the activity was illegal I would have thought they would avoid leaving a paper trail. I heard the ID is to make sure the clients are not minors. Is this true?</p>
<p>I had once gone to a dungeon party. Personally I found many activities not at all sexual. Just for example's sake some people pretended to be dogs. Since there was no money exchanged this wouldn't break the law, but if someone paid a dominatrix to treat them like a dog, would it? Would details like if they were nude or if genitals were touched make a difference? Does the law define what is meant by "sexual"? In general "BDSM" refers to something sexual and from a quick search most definitions of dominatrix refer to BDSM. So in this sense would they be illegal?</p>
| 89,048 |
[
{
"answer_id": 89056,
"body": "<p>The closest possible prohibition is found in s. 286.1 of the Criminal Code, which makes it an offence to pay for the "sexual services of a person."</p>\n<p>"Sexual services" is not a defined term. The Department of Justice <a href=\"https://www.justice.gc.ca/eng/rp-pr/other-autre/c36faq/\" rel=\"nofollow noreferrer\">provides its opinion about what this term might cover</a>, but that is not determinative.</p>\n<p>In relation to a charge of the previous version of this prohibition (which also used the term "sexual services"), counsel was unable to direct the judge to a definition of the term, and the judge was unable to find one (<a href=\"https://canlii.ca/t/gm78b\" rel=\"nofollow noreferrer\">2015 ABPC 241</a>). The judge adopted a test that requires the service to include "some sexually suggestive physical act on the part of the person providing the sexual service". This is a test somewhat stricter than the one proposed by the Department of Justice in that in addition to merely being "sexually stimulating or gratifying," there physical act itself must be "sexually suggestive."</p>\n<blockquote>\n<p>[50] What is a “sexual service”? Counsel have not directed me to, nor have I been able to find a definition of the term “sexual services”.</p>\n<p>[51] Sexual services” would clearly include any type of sexual intercourse,\nor physical contact for purposes of masturbation. It would also\ninclude posing for nude photographs. A request “to touch or feel\nthe breasts of the [female] complainant” is an attempt to obtain the\nsexual services of the complainant. In my view, “sexual services” would\nalso include dancing in a sexually provocative or stimulating fashion.\nIn terms of a general definition, I think the phrase “sexual favours\nrendered ...for the sexual gratification of the customer” is sufficient.</p>\n<p>[52] However, I am of the view that the “sexual services” or\n“sexual favours for the sexual gratification” of a person requires\nthat there be some sexually suggestive physical act on the part of the\nperson providing the sexual service. The sexually suggestive physical\nact may be many things, such as posing nude, or sexually suggestive\ndancing, or suggestively removing clothing. That list is not\nexhaustive, and, with the creativity of the human mind, I doubt one\ncould ever create an exhaustive list. However, the common element is\nthat some sort of sexually suggestive physical act is necessary to\nconstitute the sexual service.</p>\n<p>[53] In the case at bar, the accused had M.C. engage in what\none might call “fantasy role playing”. If the role playing involved\nM.C. performing a sexually suggestive physical act, then the\ndefinition of “sexual service” might well be satisfied. However, in\nthe case at bar, M.C. took on the fantasy role of being the slave in a\nmaster/slave relationship. M.C. did not perform any acts as a slave.\nThe “slave role” was one in the mind of the accused (and perhaps\nM.C.), and had its expression in the content of emails and text\nmessages between Mr. Peterson and M.C., but M.C. did not engage in\nphysical acts for the sexual gratification of the accused. ...</p>\n<p>[54] M.C. was cast in the\nrole of a slave in fantasy role playing, but the playing really only\noccurred in the heads of Mr. Peterson and M.C. That does not\nconstitute the act of Mr. Peterson obtaining the sexual services of\nM.C.</p>\n<p>[citations removed]</p>\n</blockquote>\n<p>But this was a lower trial court's reasoning that has not been adopted by others yet, and no other court has needed to develop the definition at the margins.</p>\n",
"score": 3
},
{
"answer_id": 89054,
"body": "<h2>If the service is not sexual, yes</h2>\n<p>A <a href=\"https://www.justice.gc.ca/eng/rp-pr/other-autre/c36faq/\" rel=\"nofollow noreferrer\">sexual service</a> “is a service that is sexual in nature and whose purpose is to sexually gratify the person who receives it” including “sexual intercourse; masturbation; oral sex; lap-dancing, which involves sitting in a person’s lap and simulating sexual intercourse; and, <strong>sado-masochistic activities</strong>, <em>provided that the acts can be considered to be sexually stimulating or gratifying.</em>”</p>\n<p>Whether they are or not is for the trier of fact to decide.</p>\n",
"score": 2
}
] |
[
"canada",
"sexual-offences",
"prostitution"
] |
Would it be / have been unhelpful for Hans Niemann to bring up Magnus Carlsen's own cheating?
| -6 |
https://law.stackexchange.com/questions/88625/would-it-be-have-been-unhelpful-for-hans-niemann-to-bring-up-magnus-carlsens
|
CC BY-SA 4.0
|
<p>This is about the <a href="https://en.wikipedia.org/wiki/Carlsen%E2%80%93Niemann_controversy" rel="nofollow noreferrer">Carlsen–Niemann controversy</a> asked about previously:</p>
<ol>
<li><p><a href="https://law.stackexchange.com/questions/86939/why-dont-courts-punish-time-wasting-tactics">Why don't courts punish time-wasting tactics?</a></p>
</li>
<li><p><a href="https://law.stackexchange.com/questions/85546/how-can-magnus-carlsen-a-norwegian-be-sued-for-defamation-by-hans-niemann-in-m">How can Magnus Carlsen, a Norwegian, be sued for defamation by Hans Niemann in Missouri?</a></p>
</li>
<li><p>Update: <a href="https://law.stackexchange.com/questions/88985">Are (evidence of) rumours of a defendant's racism unhelpful in a defamation case involving accusations of cheating?</a></p>
</li>
</ol>
<hr />
<p>Unlike Magnus, Hans never (provably)</p>
<ol>
<li><p>cheated OTB (over the board),</p>
</li>
<li><p>cheated as an adult or</p>
</li>
<li><p>cheated against a minor.</p>
</li>
</ol>
<p>In all of the following, Magnus cheated as an adult.</p>
<ol>
<li><p>Magnus cheated online twice against GM <a href="https://www.youtube.com/watch?v=vLvN3aL_gdE" rel="nofollow noreferrer">Danya Naroditsky in lichess</a>. 1 was in 2021 by getting help from SGM David Howell (aka GM <a href="https://reddit.com/xlyhq5" rel="nofollow noreferrer">HansSchmidt</a>) on lichess.</p>
</li>
<li><p>Magnus cheated OTB against then-minor 16yo prodigy Alireza Firouzja in 2019 blitz world chess championship</p>
<ul>
<li>See <a href="https://www.youtube.com/watch?v=lmUgUetQBk8&t=498s" rel="nofollow noreferrer">here</a> 8:18 - 8:22. Initially, Magnus talks on own time after Alireza moves. That's fine. But later after moving and then punching clock Magnus still continues to make noise. It is talked more about <a href="https://www.youtube.com/watch?v=YPysTEW0YZU" rel="nofollow noreferrer">there</a>. Poor kid. Alireza even wrote this appeal:</li>
</ul>
</li>
</ol>
<blockquote>
<p><a href="https://i.stack.imgur.com/Tzwk1.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/Tzwk1.png" alt="enter image description here" /></a></p>
</blockquote>
<p>It was denied because Alireza did not call arbiter during the game. Probably kids are too afraid to call arbiters on world chess champions like how <a href="https://www.youtube.com/watch?v=j5ut_uytScA" rel="nofollow noreferrer">Judit Polgar was afraid to call an arbiter</a> on Garry Kasparov <a href="https://www.youtube.com/watch?v=5M5RE1M3uY0" rel="nofollow noreferrer">in 1994</a>.</p>
<ol start="3">
<li>Magnus cheated OTB against SGM Ian Nepomniachtchi in the 2021 world chess championship by touching a piece without saying 'adjust' and then not moving it. Magnus definitely intended to move the piece according to SGM <a href="https://www.youtube.com/watch?v=9hxbpj42DkE" rel="nofollow noreferrer">Hikaru Nakamura</a> (yet strangely <a href="https://reddit.com/z7ae0s" rel="nofollow noreferrer">co-defendant of Magnus</a> in this lawsuit. Traitor). Unfortunately, Nepo was <a href="https://chess.stackexchange.com/questions/18779/touch-move-rule-when-the-opponent-is-not-present-on-the-board">not in the room and so could not claim</a> a touch move rule violation against Magnus.</li>
</ol>
<blockquote>
<p><a href="https://twitter.com/Patralgan_/status/1468364867996377092" rel="nofollow noreferrer">As per FIDE rules, unless you announce adjustment, you MUST move the piece you've touched. Of course it's the responsibility of the opponent to claim it, but it's a violation of the rules nonetheless. This is why I view it firmly as a fair play issue.</a></p>
</blockquote>
<ol start="4">
<li>'<a href="https://www.reddit.com/r/chess/comments/yajal1/magnus_carlsen_admitted_to_breaking_chesscoms/itd2h36/?context=8&depth=9" rel="nofollow noreferrer">Magnus Carlsen admitted to breaking Chess.com's fair play rules "a lot" in a Reddit AMA</a>'</li>
</ol>
<blockquote>
<p><a href="https://i.stack.imgur.com/zVORV.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/zVORV.png" alt="enter image description here" /></a></p>
</blockquote>
<h1>Questions:</h1>
<ol>
<li>Would it have been unhelpful for Hans to have brought this up in the lawsuit? (Not sure of my grammar?)</li>
<li>Would it be unhelpful for Hans to bring this up later on eg in depositions or actual trial?</li>
</ol>
<p><a href="https://twitter.com/BMB_Esq/status/1584282331824607232" rel="nofollow noreferrer">Response from a lawyer</a> (Brodie Butland aka BMB_Esq on twitter - Oct 24, 2022)</p>
<blockquote>
<p>Let’s assume for sake of argument that’s all true. At most it would show that Magnus is a hypocrite. It doesn’t show actual malice as to the specific defamatory statements that the lawsuit is based upon, which was the focus of my analysis.</p>
</blockquote>
| 88,625 |
[
{
"answer_id": 88633,
"body": "<p>Your question is essentially this:</p>\n<ul>\n<li>consider a defamation lawsuit in which A alleges that B falsely stated that A did X (and it is not contested that B made the statement)</li>\n<li>also consider that B has done X in the past</li>\n<li>is it of any relevance to A's defamation suit that B has done X in the past</li>\n</ul>\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=\"canada-container\">canada</a></p>\n<h3>Evidence must be relevant to a live, material issue</h3>\n<p>In order for evidence to be admissible it must be "<a href=\"https://canlii.ca/t/hx9v4#par107\" rel=\"noreferrer\">relevant to a live, material issue in the case</a>" (this is from a dissent, but there is no disagreement about this point).</p>\n<h3>Stage 1: Did B make a defamatory statement about A that was published - no relevance to this issue</h3>\n<p>Defamation is <em>prima facie</em> proven if B's statement was published and if it tended to lower the reputation of A. <strong>The fact that B has done X in the past is irrelevant to this aspect of the analysis</strong>, especially when the defendant is not alleging that they did not say "A did X."</p>\n<h3>Stage 2: Defences - there is a very narrow path for relevance on this issue</h3>\n<p>Once defamation is <em>prima facie</em> proven, the burden flips to the defendant to establish a defence. Of all the possible defences, the only one in which I could see B having done X in the past being relevant is the defence of <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/5670/index.do\" rel=\"noreferrer\">fair comment</a>:</p>\n<blockquote>\n<p>(a) the comment must be on a matter of public interest;</p>\n<p>(b) the comment must be based on fact;</p>\n<p>(c) the comment, though it can include inferences of fact, must be\nrecognisable as comment;</p>\n<p>(d) the comment must satisfy the following objective test: could any\n[person] honestly express that opinion on the proved facts?</p>\n<p>(e) even though the comment satisfies the objective test the defence\ncan be defeated if the plaintiff proves that the defendant was\n[subjectively] actuated by express malice.</p>\n</blockquote>\n<p>The fact the B has done X in the past could be relevant to this defence if B were to use that familiarity with the activity X as part of the commentary on why they believe that A has done X. It could also be relevant (not on its own, but along with much more context) for an allegation of malice on B's part.</p>\n<h3>Conclusion: Evidence that B did X in the past would likely not be relevant</h3>\n<p>I see it very unlikely that B having done X in the past would be relevant. It would likely be treated as a collateral issue, unless B's credibility somehow became absolutely central to the litigation and if the judge was convinced that such acts relate to credibility. On the facts as described, and even for a fair comment defence, I don't see that being the case.</p>\n",
"score": 7
},
{
"answer_id": 88632,
"body": "<blockquote>\n<p>Would it be / have been unhelpful for Hans Niemann to bring up Magnus Carlsen's own cheating?</p>\n</blockquote>\n<p>No. Proving someone's history of cheating may be valid for attacking the cheater's <em>credibility</em>, something that a jury ponders as part of its fact-finding (more specifically, when pondering that person's sworn testimony).</p>\n<p>The excerpt you posted from Twitter is somewhat inaccurate, or at least debatable. <a href=\"https://www.law.cornell.edu/rules/fre/rule_404\" rel=\"nofollow noreferrer\">FRE 404</a>(b)(1) indicates that the defendant's history of cheating would be inadmissible for proving that the defendant made the defamatory statements. However, FRE 404(b)(2) permits the use of that evidence "<em>for another purpose, such as proving [...] intent, preparation, plan, knowledge, [...] or lack of accident</em>" (Rules of Evidence of other jurisdictions in the US also list <em>method</em> among the permissible purposes). Since these purposes relate to a party's state of mind, they could be relevant whether on the issue of <em>actual malice</em> specifically or on the issue of party's credibility in general.</p>\n<p>Not every evidence of prior cheating is necessarily relevant/admissible, though. For instance, Magnus's failure to say "adjust" and his failure to stay quiet during an opponent's time seem <em>a priori</em> irrelevant --and therefore inadmissible-- in a claim of defamation. That is because those types of conduct are unrelated to hurting or tending to hurt a person's good name and reputation by means of defamatory falsehoods.</p>\n<blockquote>\n<p>Would it be unhelpful for Hans to bring this up later on eg in depositions or actual trial?</p>\n</blockquote>\n<p>There are procedural constraints on how late in court proceedings evidence can be filed. The purpose of these constraints is to eliminate the "surprise factor". See the five-factor test in <a href=\"https://www.leagle.com/decision/2003910318f3d5921852\" rel=\"nofollow noreferrer\"><em>Southern States Rack & Fixture v. Sherwin-Williams</em>, 318 F.3d 592, 596 (2003)</a>. Other than that, deciding when to bring up the party's history of cheating is largely a matter of litigation strategy.</p>\n",
"score": 3
}
] |
[
"united-states",
"international",
"defamation",
"sport",
"courtroom-strategy"
] |
What is the difference between a "barbecue pit" and a "campfire" you can cook food on?
| 2 |
https://law.stackexchange.com/questions/88009/what-is-the-difference-between-a-barbecue-pit-and-a-campfire-you-can-cook-fo
|
CC BY-SA 4.0
|
<p>My friend has a fire pit you can cook on. <a href="https://www.texasoriginalpits.com/product/spindletop-45-fire-pit-copy/" rel="nofollow noreferrer">It looks kind of like the "SPINDLETOP 45″ FIRE PIT" seen here</a>.</p>
<p><a href="https://i.stack.imgur.com/Xa7be.jpg" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/Xa7be.jpg" alt="Fire PIt" /></a></p>
<p>Would it require a permit to use one of these in Houston? Here is the regulation, <a href="https://www.houstontx.gov/fire/business/standard16.pdf" rel="nofollow noreferrer">HOUSTON FIRE DEPARTMENT LIFE SAFETY BUREAU (LSB) LSB STANDARD 16, REV. 05 OPEN BURNING AND RECREATIONAL FIRES</a></p>
<ul>
<li><a href="https://www.houstontx.gov/fire/business/standard16.pdf" rel="nofollow noreferrer">https://www.houstontx.gov/fire/business/standard16.pdf</a></li>
</ul>
<p>The problem is there are two categories in this</p>
<ul>
<li>Section 16.3 - Barbecue Pit</li>
<li>Section 16.6 - Campfire</li>
</ul>
<p>Because you can always cook campfire, and you can always put a barbecue pit in the center of people for warmth I'm not sure which way this would go? Can you have a barbecue pit that you're burning logs in for warmth that is not a camp fire for the purpose of needing a permit?</p>
| 88,009 |
[
{
"answer_id": 88012,
"body": "<h2>Look at the definitions</h2>\n<blockquote>\n<p>16.2.1 Open Burning.</p>\n<p>Open burning’, for the purpose of this standard is the burning of: a bonfire, rubbish fire, campfire, trench fire, or other fire in an outdoor location where fuel being burned is not contained in an approved incinerator, outdoor fireplace, barbecue grill or barbecue pit.</p>\n</blockquote>\n<p>This is an "outdoor fireplace" and not a "campfire".</p>\n",
"score": 1
}
] |
[
"houston"
] |
What happens to the possessions of a convicted person?
| 12 |
https://law.stackexchange.com/questions/88989/what-happens-to-the-possessions-of-a-convicted-person
|
CC BY-SA 4.0
|
<p>What happens to a person's assets, such as a vehicle, house, or company, when they are given a long prison sentence, such as several years or life? Are these items automatically turned over to the state, or does the individual retain the right to determine how their property is distributed?</p>
<p><em>P.S. What about when a person has been arrested but not yet convicted, do most jurisdictions impose a temporary freeze on their assets, or does the principle of "innocent until proven guilty" apply and they still have complete control over their property?</em></p>
| 88,989 |
[
{
"answer_id": 88990,
"body": "<p>A person's property cannot be seized in the US except by due process of law. There is no law that declares the property of a convicted person to be forfeit to the state. A person who is convicted might be subject to a fine, in which case a court could order seizure of property to pay the fine. Your property might also be seized as a result of a civil forfeiture proceeding (where the government sues your property for being the fruit of an illegal enterprise), but that only applies to property believed to be connected to a crime (e.g. purchased with the proceeds of a crime). Civil forfeiture doesn't even require that you be arrested.</p>\n<p>Barring that circumstance, the person retains their rights to their property. It is then up to them to make suitable arrangements for the protection or disposition of their property.</p>\n",
"score": 19
},
{
"answer_id": 89041,
"body": "<h2>They are not <em>taken</em>, but they may be <em>lost</em></h2>\n<p>They stay where they are and their spouse or other authorized person continues to use them, if any. Or the convicted's CPA or attorney may tend to the assets.</p>\n<p>However, often certain "time bombs" begin ticking, such as mortgage payments, rent, property tax, or a car parked for a long time on the street getting a "move in 72 hours" notice. (that last one happens <em>a lot</em> on even minor crimes).</p>\n<p>We hope friends, family or counsel (or the defendant themselves if out on bail) will be pro-active and manage this, and get valued assets secured.</p>\n<p>Other than that, the "bomb" cooks off, the car gets towed, eviction or foreclosure runs unopposed. The personal property abandoned there gets handled in the same way as for a non-imprisoned person.</p>\n<p>Note that many types of property aren't physical like that. Someone who has shares of a stock, for instance, will still own the stock. A lottery annuity will continue to pay. Those assets will await the defendant's freedom, or at worst <em>escheat</em> to the state, e.g. a bank account which has gone inactive.</p>\n<p>"escheat" means the money is in the care of the state, but the defendant or heirs can claim it whenever able.</p>\n<h2>But the victims will go after assets, probably</h2>\n<p>However, if the defendant has assets of value, the victims may go after it - via a civil lawsuit essentially parallel to the criminal charges. One advantage of a "guilty", <a href=\"https://en.wikipedia.org/wiki/Alford_plea\" rel=\"noreferrer\">"Alford"</a> or <a href=\"https://en.wikipedia.org/wiki/Nolo_contendere\" rel=\"noreferrer\">"nolo contendre"</a> plea is that no trial occurs, so there is no gold mine of evidence; the plaintiffs must make their case from scratch. Still, in a civil suit they <em>do</em> get to hold your guilty plea against you, so you're likely to lose. They can then go after the defendant's assets.</p>\n<p>Note that certain asset types - notably 401(K)s - are not targetable. And the defendant can <em>always</em> declare bankruptcy, and preserve whatever their state allows one to exempt from bankruptcy: e.g. in Florida, your homestead <strong>of <em>any</em> value</strong>. And now you know why OJ Simpson lives in Florida. Bankruptcy cannot cancel debts owing from willfully illegal actions, but, creditors can't go after assets that <em>would be</em> protected by bankruptcy.</p>\n",
"score": 8
},
{
"answer_id": 89045,
"body": "<p>In the big picture, the state recognizes that you still have a property interest in many things, such as your home, your company, your bank account, or your car. You still have ownership of most of the items that were yours in the first place, but the issue becomes exercising control over those items due to your being incarcerated. Someone who is incarcerated will usually grant their power of attorney to someone else to handle their affairs, including management of various property interests. That person has the authority to act in your stead, such as selling your car, managing your bank account, or renting out your house.</p>\n<p>This can also include management of a business, however, most businesses will simply carry on without you, promoting the assistant manager to manager and carrying on as best they can - that's part of the point of businesses, is that they're simply intended to operate independent of the people who comprise it. Those businesses which cannot function without you will usually cease to operate if you are incarcerated. Remember, conviction of a crime is a long, long process, so it's not like you (or your business) wouldn't have had an opportunity to set up a succession plan or some sort.</p>\n<p>Property that has an evidentiary value will be seized and held as long as needed. If you're arrested for a murder committed with a firearm and a gun is in your possession (or in your home, when they search it with a warrant), that gun is being held as evidence, and it will continue to be held as evidence until such time as it is no longer needed or until it is determined to not have evidentiary value (such as if analysis of the rifling indicates that this gun is not the murder weapon). That process may take a very long time. Evidentiary property can be reclaimed after it is no longer needed, though much property is not reclaimed and is as a result disposed of. I will note that this is how this should <em>generally</em> operate, but there are complexities to this regarding forfeiture which go outside of my scope of knowledge.</p>\n<p>Property on your person when you're arrested and brought to jail will generally be processed and stored by the jail. This would include your clothes, your wallet, your car keys, etc. This will be searched and then stored, with the idea being that when you walk out of jail later (whether you were bonded out, served a sentence, were found innocent, etc.) that you'll have your property returned. This storage process often divides your "small property" from your clothes. "Small property" is your personal effects (wallet, keys, phone, jewelry, etc.) and valuables that can get sealed in a small plastic bag to verify that no one stole your watch or rings or whatever. Inmates in jail can then release their property to a family member, and this can be done either as "all property" (including the clothes, such as if you don't plan on getting out of jail) or just the "small property" (in case you want your wife to be able to get your car keys to get your truck from the bar you were at last night).</p>\n<p>There may be additional institutional requirements regarding the storage of property, but that's a general guideline. When you are released to the street, your property will be returned to you. If you're being transferred to another facility (such as another jail or prison) your property will either be transferred with you or the facility may hold your property for a period of time to be picked up by someone you've designated (or you may be able to pay to have the property mailed). If the property is not picked up in that timeframe, it will be destroyed or forfeited. Such forfeited clothing is often added to a "lost and found" bin that may be used when inmates are released to the street without suitable clothing. (You might be surprised how many people get arrested in their birthday suit.)</p>\n<p>The issue of personal property upon arrest does get more complicated when you're dealing with situations of people having more than just their clothes and wallet on them. Jails will often not store anything beyond "small property" and clothes due to space constraints, so if you are arrested with a backpack or a suitcase on hand, they will refuse to accept this property. Oftentimes, if you are arrested and have other people around, the arresting officer may let you give the backpack or suitcase to your friend so they simply don't have to deal with it. Assuming that this wasn't the case though, the way that this should <em>generally</em> go is that the arresting agency will hold the property for a short period of time before destroying it, and during that time, you can designate someone to come pick up your items. If your property is loose, rather than at least being organized into a backpack or a suitcase, such as if you're homeless and arrested from your camp... well, you're not <em>supposed</em> to be deprived of property without due process of law, but that's exactly what's going to happen.</p>\n<p>As for other property not on your person, such as your belongings in your apartment, your car, or even your home, that starts to depend on the particular situation. If you have a loan or a lease, and you fail to pay your obligations on that loan or lease, then it will be confiscated, whether that means a repo man taking your truck or a landlord taking your apartment back over. All of those situations generally have well-worn civil processes, such as repossession of a vehicle for an unpaid loan or eviction from an apartment for unpaid rent, so I'll avoid going too deep into those possibilities. Again, you would usually have established someone as a power of attorney to deal with these things for you.</p>\n",
"score": 5
}
] |
[
"united-states",
"criminal-law",
"canada"
] |
Does a counter claim stop an eviction for non payment of rent?
| -2 |
https://law.stackexchange.com/questions/89033/does-a-counter-claim-stop-an-eviction-for-non-payment-of-rent
|
CC BY-SA 4.0
|
<p>In NJ (and most other states), when a landlord attempts to evict a tenant due to non payment of rent, the tenant can raise the defense that the landlord did not properly upkeep the premises and use this to offset from the amount of rent owed.</p>
<p>Can the tenant also raise a defense that the landlord owes the tenant money for some other reason? For example, the tenant mistakenly overpaid for certain months or that the tenant paid multiple security deposits? What if the landlord owes the tenant money for an entirely different reason that isn't directly related to their LT relationship (such as a overdue loan payment etc.)? For the purpose of this question, assume the landlord does not dispute the tenants underlying claim. His only argument is that the tenant should counter-sue and that it should not be raised as a defense for non payment / stop the eviction.</p>
<p>This question is different than the question <a href="https://law.stackexchange.com/questions/45306/would-this-situation-be-a-counterclaim-or-a-different-claim">asked here</a>, because that question doesn't specifically ask whether it would stop an eviction. It merely ask whether it is classified as a counterclaim or not. In this question, I am specifically asking whether a claim such as the above is sufficient to stop an eviction for non payment of rent.</p>
| 89,033 |
[
{
"answer_id": 89039,
"body": "<p>Often, evictions are bifurcated. An initial hearing determines all evidence necessary to determine if there is a default existing sufficient to justify an eviction, and if so, the eviction goes forward immediately despite the fact that not all issues in the case have been resolved. A later hearing resolved the precise dollar amount of any damages claim.</p>\n<p>If the grounds for eviction is non-payment of rent, and the amount of payments or the amount of obligations of the landlord that can be setoff against the rent due exceeds the amount of rent found to have not be paid, then it is a defense to an eviction in the initial possession phase. If the counterclaim is smaller than the amount of rent owed (or cannot for some reason be set off against the amount owed) then it is only at most, a setoff against a damages award in favor of the landlord.</p>\n<p>I'm have not researched, in particular, how this is handled in New Jersey, but I am providing this answer on the theory that some insight is better than nothing.</p>\n<blockquote>\n<p>For the purpose of this question assume the landlord does not dispute\nthe tenants underlying claim. His only argument is that the tenant\nshould counter sue and that it should not be raised as a defense for\nnon payment / stop the eviction.</p>\n</blockquote>\n<p>If this is true, it is both an affirmative defense to the eviction claim and a basis for a counterclaim in most cases. The better practice would be to raise it both ways in the same lawsuit.</p>\n<p>But, if the counterclaim is not sufficient to overcome the claim that rent is owed and not paid in full, or triggers some other different alternative ground for an eviction (e.g., maybe the lease provides that application of a security deposit against rent owed is itself an event of default), then that wouldn't prevent an eviction.</p>\n",
"score": 4
}
] |
[
"united-states",
"landlord",
"tenant",
"new-jersey",
"eviction"
] |
Does cascade of ownership indicate ownership?
| 1 |
https://law.stackexchange.com/questions/89017/does-cascade-of-ownership-indicate-ownership
|
CC BY-SA 4.0
|
<p>Does cascade of ownership indicate ownership?</p>
<p>Person A owns 100% shares of a business entity B. Business entity B owns a business entity C. Business entity C owns a house D.</p>
<p>Two questions please:</p>
<ol>
<li><p>Does the person A own house D, in legal terms?</p>
</li>
<li><p>Can the person A live in the house D without a rental contract from the business entity C?</p>
</li>
</ol>
<p>Thank you.</p>
| 89,017 |
[
{
"answer_id": 89021,
"body": "<p>Likely not, unless A finds a jurisdiction with sufficiently lax accounting and taxation standards.</p>\n<p>As described in the question, A, B, and C are <em>distinct</em> legal entitites. For <em>each entity</em>, the tax office would want to know what the revenue, expenses, and net income are. By providing a service (<em>use of the house</em>) free of charge between two entites of the shell construct, profits are moved from C to A. This is usually illegal.</p>\n<p>The required paperwork might not have to look like a normal rental contract between a tenant and a landlord, since many questions are resolved by the ownership, but it would have to specify payments. The tax office should complain if they differ too much from the going market rate.</p>\n<p>Consider that C might be a LLC, and that C might be a civil judgement against C. Someone would look at the assets owned by C, and that includes the house D.</p>\n",
"score": 5
},
{
"answer_id": 89022,
"body": "<p>If the business entities are corporations they are entities separate from person A. The management of corporation C may have never heard of A and may have rented to entity XYZ. Person A will need permission from C.</p>\n<p>It might be easy to get that permission.</p>\n",
"score": 4
},
{
"answer_id": 89040,
"body": "<blockquote>\n<p>Does the person A own house D, in legal terms?</p>\n</blockquote>\n<p>The legal owner of the house is entity C. But, person A is described for some legal purposes as an "equitable owner" or an "indirect owner" of house D.</p>\n<p>For example, in international taxation, indirect ownership can often be considered for purposes of determining if a company is a controlled foreign corporation. Likewise, indirect ownership of entity C is relevant for purposes of federal diversity jurisdiction if entities B and C are LLCs rather than corporations.</p>\n<blockquote>\n<p>Can the person A live in the house D without a rental contract from\nthe business entity C?</p>\n</blockquote>\n<p>Person A does not have a legal right to live in house D without a rental contract or other permission from entity C. But if person A does so anyway, only entity C would have standing to sue person A in most cases for doing so, and person A could exert their indirect control of entity C to cause entity C to decline to bring suit to enforce its rights.</p>\n<p>Person A could also use person A's indirect control of the entity C to cause entity C to ratify person A's use of house D after the fact on whatever terms and conditions person A desired (although this might not suffice if done after an alter ego veil piercing claim is asserted to defeat the alter ego claim).</p>\n<p>However, if entity C does not enforce its rights and gets nothing in return, it has arguably made a fraudulent transfer of the fair market rental value of house D to person A during the time it was occupied by person A.</p>\n<p>In an extreme case, person A's failure to have an agreement or express permission from entity C could even be a ground upon which a creditor could pierce the corporate veil and ignore the existing of the entities B and C argument that person A's disregard for corporate formalities has the effect of making entities B and C the alter egos of person A.</p>\n",
"score": 1
}
] |
[
"rental-property",
"rent",
"ownership"
] |
Is a bank account history of transactions considered personal data in the sense of GDPR?
| 2 |
https://law.stackexchange.com/questions/89018/is-a-bank-account-history-of-transactions-considered-personal-data-in-the-sense
|
CC BY-SA 4.0
|
<p>For archival purposes, I'm trying to get the full history of transactions on my bank account since I opened it in 2019. I know my bank still has it since it's visible in the mobile app (I can scroll down to the very first transaction). However, there's no way to export it in a processable manner (the online export form only gives one month of transactions, and there's a paid service that can get up to two years).</p>
<p>I sent an e-mail to my bank asking for a dump of all the personal data their systems contain about me (as per GDPR article 15), and they provided me with... my name, address, phone number and SSN. In their (the DPO's) response, they wrote that any request about the transaction history is to be made to my bank advisor – this is not what I want, since they then point me to the paid service that only gives 2 years of operations.</p>
<p>In any case, I understand that transactions on my account fit the definition of personal data since they're directly attached to my bank account, which is under my name, and that since the transactions are stored on their systems I should be able to get them in a processable format as per article 15.</p>
<p>Am I wrong in that understanding?</p>
| 89,018 |
[
{
"answer_id": 89037,
"body": "<p>Yes, your transaction history is your personal data. Personal data is any information relating to an identifiable person. Your transaction history relates to you, and you're definitely identifiable for the bank.</p>\n<p>You have access to the transaction history to the app, which would probably satisfy Art 15 GDPR.</p>\n<p>You do also have a right to data portability under Art 20 GDPR which allows you to get your data in a machine-readable format – but strictly speaking this right only applies to data you provided yourself. You could try to explicitly invoke this right. Your GDPR rights must be satisfied without cost.</p>\n<p>Your bank almost certainly does provide machine-readable API access, in conformance with the open banking mandate from the Revised Payment Services Directive (PSD2, Directive (EU) 2015/2366). The Directive requires your EU member state to have passed a law that gives you “the right to make use of services enabling access to account information”, if you're already using online banking. However, the exact details of that right will depend on the laws in your EU member state. You might already be able to connect to your transaction history via Open Banking software such as GNU Cash.</p>\n",
"score": 3
},
{
"answer_id": 89030,
"body": "<h2>Yes, it is personal data</h2>\n<p>That means they must provide you with access to it, and they have - through the app. They don’t have to provide it to you in any particular way or in a format you request.</p>\n",
"score": 2
}
] |
[
"gdpr",
"european-union",
"france",
"banking",
"personal-information"
] |
Was it legal to shoot down the Chinese balloon?
| 2 |
https://law.stackexchange.com/questions/89024/was-it-legal-to-shoot-down-the-chinese-balloon
|
CC BY-SA 4.0
|
<p>Recent news headlines read: "US fires air-to-air missile and takes down alleged Chinese spy balloon." It happened in February 4th, 2023.</p>
<p>The balloon, as far as we know, was not armed and did not contain any ordnance. Though the result of the analysis of the debris may shed some light into this, for the sake of being charitable, let's assume this is true.</p>
<p>China claims it was a meteorological balloon that accidentally strayed into US airspace.</p>
<p>There are several treaties and UN resolutions regarding civil aviation, some of them are binding to the US.</p>
<p>The political aspect is not up for discussion here. A post on Politics.SE might be better suited for that discussion.</p>
<p>Regarding international law, treaties, and/or UN regulations regarding civil aviation and the use of force against unarmed aircraft, did the US commit any irregularity by shooting down the balloon.</p>
| 89,024 |
[
{
"answer_id": 89031,
"body": "<h2>Probably</h2>\n<p>The US, like all other nations, has absolute sovereignty over its airspace. There is no clear line between airspace and space but 60,000 feet is clearly in the former.</p>\n<p>The US, like all other nations except Lichtenstein for some reason, is a signatory to the <a href=\"https://en.wikipedia.org/wiki/Chicago_Convention_on_International_Civil_Aviation\" rel=\"nofollow noreferrer\">Chicago Convention on International Civil Aviation</a> which, among other things, makes it an act of war to use force against a civilian aircraft. Now, acts of war are not, per see, illegal - there are international laws about armed conflict and there are philosophical arguments about just and unjust wars but war itself is a political rather than a legal construct.</p>\n<p>Article 5 of the convention gives the right to all other states the right to operate <em>civil</em> aircraft within US airspace (and vice-versa) without prior permission (apart from regularly scheduled flights which do require permission) subject to compliance with the convention. Relevantly, unmanned balloons are dealt with in Annex 4 - it states that permission is not needed for light meteorological balloons but is needed for any other balloon which might enter foreign airspace.</p>\n<p>The Chinese claim that the balloon was “mainly” meteorological but the convention requires it to be “exclusively” meteorological. It also requires it to be “light” meaning having a payload weighing less than 4kg - unless the payload of this ballon was made of unobtainum, it weighed more than 4kg.</p>\n<p>They also argue that it drifted off course and entered US airspace inadvertently. This would be a legitimate claim if the entry of US airspace was unlikely at the planning and launch stages of the operation. We simply do not have the information to assess this claim.</p>\n<p>The US claim that this was a surveillance aircraft. If this is so, then the aircraft is not a civil aircraft and the Chicago Convention does not apply which brings us back to pure sovereignty - the US can do what it likes with things in its own airspace.</p>\n<p>There is a treaty between NATO members and former Warsaw Pact members dating from the 1990s that allow surveillance overflights of each other’s territories. However, there are two problems with this: China was never a signatory, and the US withdrew during the Trump Presidency.</p>\n<p>So, if this wasn’t a balloon that inadvertently and unexpectedly drifted off course, the US was allowed to shoot it down.</p>\n",
"score": 4
},
{
"answer_id": 89026,
"body": "<p>It was a foreign craft in sovereign US airspace, in violation of numerous FAA regulations. (<a href=\"https://law.stackexchange.com/questions/88909/is-the-china-balloon-breaking-any-laws?rq=1\">see answer here</a>) Whether armed or not, it presented a possible hazard to navigation. The US was within its rights to disable and take possession of the craft.</p>\n",
"score": 3
}
] |
[
"united-states",
"international",
"treaty",
"china",
"aviation"
] |
Is it theft if you take money (with out permission) but return it the next day?
| -1 |
https://law.stackexchange.com/questions/51667/is-it-theft-if-you-take-money-with-out-permission-but-return-it-the-next-day
|
CC BY-SA 4.0
|
<p>Supposed that a person A used another person's credit card (B) to buy a $1 item (without permission) while A was doing B's shopping but A returned the money. Has A committed theft?</p>
| 51,667 |
[
{
"answer_id": 51678,
"body": "<h2>Depends where you are</h2>\n<p>At common law, theft (or more generally, <a href=\"https://en.wikipedia.org/wiki/Larceny\" rel=\"nofollow noreferrer\">larceny</a>) requires an intent to permanently deprive the owner of possession.</p>\n<p>However, many jurisdictions have removed this element from the crime. For example, <a href=\"http://www6.austlii.edu.au/au//legis//nsw//consol_act//ca190082/s118.html\" rel=\"nofollow noreferrer\">s118</a> of the <a href=\"/questions/tagged/new-south-wales\" class=\"post-tag\" title=\"show questions tagged 'new-south-wales'\" rel=\"tag\">new-south-wales</a> <em>Crimes Act</em> 1900 says:</p>\n<blockquote>\n<p><strong>118 Intent to return property no defence</strong></p>\n<p>Where, on the trial of a person for larceny, it appears that the accused appropriated the property in question to the accused's own use, or for the accused's own benefit, or that of another, but intended eventually to restore the same, or in the case of money to return an equivalent amount, such person shall not by reason only thereof be entitled to acquittal.</p>\n</blockquote>\n",
"score": 5
},
{
"answer_id": 51695,
"body": "<p>In Germany, the situation is similar to the one under Common Law (as explained in\nDale M's answer):</p>\n\n<p>Theft (<em>Diebstahl</em> in the <em>Strafgesetzbuch</em>, the German criminal code) is defined in <a href=\"https://dejure.org/gesetze/StGB/242.html\" rel=\"nofollow noreferrer\">§242 Strafgesetzbuch</a> as:</p>\n\n<blockquote>\n <p>§242</p>\n \n <p>Wer eine fremde bewegliche Sache einem anderen in der Absicht\n wegnimmt, die Sache sich oder einem Dritten rechtswidrig zuzueignen, [...]</p>\n</blockquote>\n\n<p>Translated:</p>\n\n<blockquote>\n <p>Whoever takes movable property belonging to another away from another\n with the intention of unlawfully appropriating it for themselves or a third party\n [...]</p>\n</blockquote>\n\n<p>So, just as under Common Law, the crucial question is whether you <em>intended to return the money all along</em>. If yes, then the definition of theft is not fulfilled.</p>\n\n<p>However, if you originally did not intend to return the money, but did so anyway after you found it, it would still be theft. That would be for a judge to decide. A judge would probably look a the circumstances, such as whether you returned the money after you were found out, or before.</p>\n",
"score": 2
},
{
"answer_id": 51671,
"body": "<p>Yes, you purchased something without her permission or authorization. </p>\n\n<p>Whether 1 dollar or 1000, if someone did that to you, right away you're going to be weary the next time.</p>\n\n<p>Justifying an unauthorized purchase, no matter how small, will lead you to keep doing these kinds of things.</p>\n\n<p>It's probably better to mention it beforehand, most of the time, people are willing to help.</p>\n",
"score": 0
},
{
"answer_id": 88945,
"body": "<p>When "theft of money" was a property theft, involving the taking of actual physical bank notes, which could be proven by records of the serial numbers of the actual bank notes involved, there were separate crimes of</p>\n<p>'conversion' (knowing or intentional exertion of unauthorized control over property of another person)</p>\n<p>and of</p>\n<p>'embezzlement' (theft or misappropriation of funds placed in one's trust),</p>\n<p>and you could have been charged with 'exerting unauthorized control' of $1, or 'misappropriation of" $1.</p>\n<p>Depending on your location, one or both of those crimes may have been included in a statutory re-definition of "theft".</p>\n<p>But -- in my jurisdiction, if you thought that it wasn't theft, and you intended to return it ... then it wasn't theft. Here, the "criminal intent" of common law hasn't been removed, just replaced with a more restricted version that requires ignorance of legal technicalities as well as lack of criminal intent. That means you can get away with it here, maybe, but certainly not after you've been warned.</p>\n<p>As it happens, there isn't any reasonable way for me to report an incidental embezzlement. I'd have to know what the actual legislation is, and who to report it to, because that information is not published by the police force here, nor known to the desk officers here, who only deal in intentional crimes. And after reporting an amount of $1, to the correct department, on the correct form, it would not be investigated, because the fraud office classifies crimes as "important" or not.</p>\n<p>On the other hand, they got Al Capone on Tax Evasion. If they are looking for a crime to nail on you, a $1 embezzlement is a crime in a lot of places, and could cost you your job in a lot of places. Using somebody else's credit card without explicit permission is a very bad idea.</p>\n",
"score": 0
},
{
"answer_id": 88948,
"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=\"washington-container\">washington</a></p>\n<p>I focus the question by pointing to the law in Washington that pertains to theft, <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=9a.56&full=true\" rel=\"nofollow noreferrer\">RCW 9a.56</a>. As you describe it, the person acquired the credit card lawfully – with permission – and used it in a manner not explicitly endorsed by the credit card owner. Under no stretch of the imagination has there been "theft of money". There was no intent to deprive the card owner of the card. Although 9A.56.060 is in the general chapter containing "theft", deliberately writing a rubber check is deemed to be "unlawful issuance of bank check", not "theft" (and clearly this has nothing to do with checks – but under a plain reading of the theft statute, this simply is not <em>theft</em>). RCW 9A.56.220 somewhat stretches the definition of theft in defining a crime "theft of subscription television services" (the provider is not deprived of the thing that was "taken"), but again this form of theft doesn't relate to what happens in the above scenario.</p>\n<p>RCW 9A.56.290 becomes more relevant since it relates to credit cards inter alia, but it is specifically limited to "unlawful factoring of transactions", which is using skimmers etc to get credit card information or to present to a bank something unlawfully purporting to be a transaction between merchant and card owner. Finally, RCW 9A.56.320 defines a set of crimes like "unlawful production of payment instruments" (pertaining to checks and the like), which includes "unlawful possession of a personal identification device", where credit cards are included in the set of such devices. The crime is if one "possesses a personal identification device with intent to use such device to commit theft, forgery, or identity theft". Well, the intent is to buy some product, and the card is not being used to commit a crime".</p>\n<p>What happened is that in using the card to purchase goods not requested by the card holder (who gave you permission to make purchases with the card) is that you caused her financial damage. You are legally liable for that damage, and she can sue you to recover her loss. But this is not a crime, in Washington.</p>\n",
"score": 0
}
] |
[
"theft"
] |
Who owns geocaches and their contents?
| 6 |
https://law.stackexchange.com/questions/84163/who-owns-geocaches-and-their-contents
|
CC BY-SA 4.0
|
<p>When someone places a geocache, presumably that person owns the container; it wouldn't make sense for anyone except them (or possibly Groundspeak? I don't think the ToS transfer ownership) to own it.</p>
<p>What about the contents placed by the geocache owner? Probably the cache owner, until someone takes the items?</p>
<p>When someone else puts an item in the geocache, who owns that item? The person who owns the cache or the one who placed the item?</p>
<p>What about trackables? One person buys the item and puts a tracking code on it if it doesn't already have one, then they activate it on the Geocaching Web site. They then place it in a geocache somewhere, and other people take it and move it to other caches. Who owns the trackable?</p>
| 84,163 |
[
{
"answer_id": 89025,
"body": "<p>Let us assume the following facts:</p>\n<ul>\n<li>Alice places a container, log, and some item(s) at some place, publicizes its location and invites others to come and swap objects</li>\n<li>Bob comes, takes the item(s) present in the container and leaves some other item(s) in exchange.</li>\n<li>Carol comes after Bob, takes "everything" (see below) and leaves nothing.</li>\n<li>The police somehow finds out irrefutable proof of all the above, and decides to charge Carol for theft.</li>\n</ul>\n<h2>Easy case #1: Carol does not know what she is doing</h2>\n<p>Carol is the farmer on whose land the geocache was placed. She has no interest in or knowledge of geocaching. She removes the container and discards it. (Alternatively, Carol is an eco-friendly hiker, and wants to clean up garbage left by unethical hikers.)</p>\n<p>Carol(’s lawyer) will argue that under <a href=\"https://oregon.public.law/statutes/ors_164.035\" rel=\"nofollow noreferrer\">ORS 164.035</a> (1)(b) she reasonably believed she "had a right to acquire or dispose of it as [she] did". It seems likely to succeed.</p>\n<p>Such a defense would of course be less likely to work depending on certain circumstances - for example, it becomes untenable if the prosecution can show that Alice has an active account on geocaching sites.</p>\n<h2>Easy case #2: Carol knows geocaching, and she takes the box</h2>\n<p>My understanding after reading the geocaching.com policies is that whoever places a container is responsible for their maintenance, and if necessary removal. There is therefore little doubt that this person is and remains the owner of the container (and possibly the log), and that anyone familiar with geocaching should be aware of it.</p>\n<p>Therefore, Carol took some property with full knowledge that she deprived the legitimate owner from it. She is guilty of the theft of the box at least (under 164.015). The exact status of its content does not matter much for criminal purposes of establishing guilt. (It might or might not be relevant to sentencing.)</p>\n<h2>Interesting case: Carol knows geocaching, takes the items and leaves the box</h2>\n<p>I am not a practitioner of US law (let alone Oregon law), and therefore what follows is highly speculative. I think the prosecution can successfully argue that Carol stole the items.</p>\n<p>Carol can try to rely on either prong of ORS 164.035 (1).</p>\n<p>Prong (b) seems likely to fail. If Carol is aware of geocaching basics, she knows that the social expectation is to replace the items one takes. There might be some debate about what a proper replacement could be, but "nothing" does not fit the bill.</p>\n<p>Prong (a) is where Carol argues that the items were abandoned (without owner) and therefore ripe for taking by anyone. The prosecution will try to argue that they were not. I think they have the better side of the argument, (but see above: not an Oregon law practitioner).</p>\n<p>I can see two possible arguments from the prosecution:</p>\n<ol>\n<li>the items were Bob’s all along</li>\n<li>it is not clear who the items belong to, but the circumstances in which Carol took them are not reasonable</li>\n</ol>\n<p>Option 1 relies on the similarity with a shop. Shoppers can physically pick up goods, but the goods belong to the shop until money changes hand at the checkout. The fact that the shop left the items easily accessible to shoppers does not establish the shop’s intention of abandoning them; if one takes items out of the shop with the intention not to pay, that is theft.</p>\n<p>In that theory, Bob, by leaving his items in the geocache, is offering a contract of "I give you my items, you give yours to someone else". (Bob accepted a similar contract from Alice.) Carol might refuse to accept that contract, but she has no right to take Bob’s items without compensation. The contract might be vague (how does "equal or higher value" apply exactly?), but there is no doubt that Carol, by leaving nothing, did not follow its terms.</p>\n<p>The defense would likely argue that a shop keeps precautions to avoid shoplifting, that unsold products are taken back in storage or disposed of by the owner, etc. - that is, a shop exercises more control over the items than Bob does.</p>\n<p>Option 2 would be to say that Bob left Alice, the maintainer of the geocache, in charge of handling the items he left. It might be that Bob kept title to the items, or it might be that he transferred that title to Alice. At any rate, the rest of the story is similar to option 1: Alice (instead of Bob) offers a contract to Carol ("take something from my box, leave something else, and I promise I will let others do the same thing for a reasonable period of time"), Carol refuses and steals the items instead.</p>\n<p>A hypothetical would be if Carol walked to the lost&found counter at a train station, and claimed falsely that she had lost a green bag. If Alice (the train station clerk) had found a green bag sooner in the day, and delivered it to Carol, Carol would be guilty of theft; even if nobody really knows whose bag it was, it was certainly <em>someone’s</em>, and not Carol’s.</p>\n<p>The defense would likely argue that a mislaid bag is significantly different. The owner of a mislaid bag presumably wants it to be returned (Carol should take reasonable steps so that it happens per <a href=\"https://oregon.public.law/statutes/ors_164.065\" rel=\"nofollow noreferrer\">164.065</a>). On the other hand, Bob does not want the items to be returned to him, therefore they are not mislaid (and it does not matter that he wants <em>something else</em> to happen to them).</p>\n",
"score": 2
},
{
"answer_id": 84167,
"body": "<p>Starting in the middle of the chain, a person owns their stuff until they abandon it, or transfer ownership. Transfer can be effected as a unilateral gift, or as a mutual exchange, it doesn't matter. So the store owner owns it until he sells it to the customer. You could write a legal document declaring that you transfer ownership of your property to whomever finds it. Or, you could let the finder comply with <a href=\"https://oregon.public.law/statutes/ors_chapter_98\" rel=\"nofollow noreferrer\">ORS Ch. 98</a>.</p>\n<p>Under the lost property provisions of Oregon law, the first question is, is it worth more than $250 and is the owner unknown? If so, you file a written notice with the county clerk and publish repeated descriptions of the items in the county newspaper (there is a presupposition there not addressed by the legislature). Then in three months, it becomes yours. There are exclusions, such as pre-paid transportation cards, which you simply cannot lay claim to.</p>\n<p>If you find multiple unrelated items in different locations, the multiple original owners remain the legal owners until you have published notices and wait 3 months. If you find 8 physical items in a bag each worth $40, you haven't had 8 separate findings, you have 1 finding with value over the reporting threshold.</p>\n<p>Whether or not the item-purchaser or the sack-owner owns the item depends on the transaction between the two. Did the purchaser give the item to the bag-holder, or did he lend it with the expectation that it would be returned?</p>\n<p>Third parties are mostly irrelevant, so we don't care if some website has a TOS. <em>Except</em>, if a website issues some thing, like a bar code, and keeps track of the code and an inventory list, or simply allows uses of an insignia, then they can impose a duty on the website user. For example, they can require that the person who registers the bag must obtain waivers and transfer papers from any contributors; they can require that the bag include explicit property-ownership related statements.</p>\n<p>In that case, the guy holding the bag should comply with those requirements, or face the legal wrath of the website. Contributors still retain their property rights (which may have been extinguished by <em>giving</em> the bag man the goods), and the finder is still only bound by Oregon law (if in Oregon).</p>\n<p>However, a tracking code might defeat the defense that the owner of the property is unknown. Suppose that the name, address and phone number of the owner is included in the bag, but you don't know "Paul Jarvis Whillikers". The courts are not unlikely to interpret the statutory expression "unknown" as meaning "not be personally acquainted with". You know who owns the property. A tracking code could be means of "knowing who the owner is", especially if it is clear what the code is (not every random-looking sequence of numbers is an index to a person).</p>\n",
"score": 0
}
] |
[
"united-states",
"property",
"ownership",
"oregon"
] |
Claiming a copycat version of a well-known, out of print board game is similar to the original
| 0 |
https://law.stackexchange.com/questions/88969/claiming-a-copycat-version-of-a-well-known-out-of-print-board-game-is-similar-t
|
CC BY-SA 4.0
|
<p>Under intellectual property law, is it permissible to create a version of an out-of-print board game that is protected by copyright, but not by patent, by changing its design elements (cards, game pieces, packaging, name, logo, and symbols) while retaining the original game's rules and only writing them in other words, and advertising the game as having the same concept as the original?</p>
<p><strong>Example:</strong> The new game is called "FlowerPoly" and is a copycat version of the game "Monopoly". In FlowerPoly, instead of estates and streets, there are lands and farms, and instead of buying a hotel or a house, the player buys a Nature Reserve. The currency used in the game is Nature-points instead of dollar bills. Despite these changes, the gameplay remains exactly the same and players who have played both games would recognize the similarities immediately.</p>
<p><strong>Note:</strong> The original game does not hold a patent. I understand that copyright protection applies only to the design and names, not the mechanics, so using a different design should be acceptable. However, I seek clarification on whether claiming the game is similar to the original would infringe on the original game's intellectual property. (Maybe Trademark? because i am connecting it to the original game)</p>
<p><strong>Edit:</strong> To clarify my main question is whether claiming the copycat is similar to the original would infringe on the original game's intellectual property.</p>
| 88,969 |
[
{
"answer_id": 89001,
"body": "<h2>IP in Game Rules</h2>\n<p>Game rules and other game "mechanics" are not protected by copyright. They are considered to be "ideas, methods or procedures". <a href=\"https://www.copyright.gov/title17/92chap1.html#102\" rel=\"nofollow noreferrer\">17 USC 102(b)</a> provides that:</p>\n<blockquote>\n<p>(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.</p>\n</blockquote>\n<p>If the wording of the rules is not the same, and no art or visual design was copied or imitated, the fact that the gameplay is the same does not afford any copyright claim.</p>\n<h2>Claims of Similarity</h2>\n<p>A comment from the OP says:</p>\n<blockquote>\n<p>I seek clarification on whether claiming the game is similar to the original would infringe on the original game's intellectual property.</p>\n</blockquote>\n<p>If the maker or distributor of the new game states that it is similar to the old game, something like "<em>This is a Flower version of Monopoly.</em>" would that be any sort of IP infringement?</p>\n<p>Such a statement would in no way infringe any copyright. Would it infringe the trademark rights on the mark "Monopoly". That is harder to say.</p>\n<p>The key question in a trademark case is whether the use of a mark, or of words or images that refer to or suggest a mark, would cause reasonable people to falsely think that the new product or service is endorsed, sponsored, or approved by the makers of the old, or to falsely believe that the new product or service comes from the same source as the old one, that is, is made by the same firm or the same people. Whether a particular statement of similarity would do that is a question of fact, and would depend on the details of the statement and the overall presentation of the new game. But a disclaimer can and often does avoid a potential trademark infringement issue. A statement something like:</p>\n<blockquote>\n<p>FlowerPoly is not endorsed, approved, or sponsored by Hasbro, the makers of Monopoly, and holders of the trademark on that name. FlowerPoly was created by a completely different group of people. One should not rely on the reputation of Monopoly when deciding to purchase or play FlowerPoly.</p>\n</blockquote>\n<p>It would be wise to have the exact details of any statement of similarity, of any disclaimer, and of the name itself, reviewed by a lawyer with experience specifically in trademark law.</p>\n<p>In general, merely suggesting a similarity is not trademark infringement. Specifically, comparative advertising is not infringement. For example, a new drink could advertise that "<em>NewCola is better than Cokle.</em>" That would not be an infringement of the trademark "Coke", because it makes clear that the products are different, and come from different sources.</p>\n",
"score": 4
},
{
"answer_id": 89007,
"body": "<p>David already quoted why copying a game's rules non-verbatim is indeed allowed, if you manage to keep out all branded and trademarked language out of your version.</p>\n<p>However, the term "FlowerPoly" is not a word on it's own and clearly a stab at the original "Monopoly". Whether that is a problem, you could probably find out in a costly lawsuit where a judge will rule over the closeness of two words, and the meaning for the brand or trademark. Something that could probably swing in either direction, but certainly sink years of time and tons of money.</p>\n<p>Or you could just pick a name that has nothing to do with Monopoly, like "Flower Market" or "Nature Reserves" that is perfectly fine because it has nothing to do with the brand and/or trademark name.</p>\n",
"score": 2
}
] |
[
"intellectual-property",
"trademark",
"games"
] |
Is monetizing a piano video playing others' sheets illegal?
| 0 |
https://law.stackexchange.com/questions/88992/is-monetizing-a-piano-video-playing-others-sheets-illegal
|
CC BY-SA 4.0
|
<p>Say, I bought a piano sheet from a youtuber in websites like <a href="https://www.mymusicsheet.com/FonziMGM" rel="nofollow noreferrer"><em>mymusicsheet</em></a>. I made some rearrangement to it or not, (does this make any change?) then I uploaded a video playing it in youtube and monetized it.</p>
<p>Is this illegal?</p>
| 88,992 |
[
{
"answer_id": 88995,
"body": "<p>Publicly performing a work is one of the rights protected by copyright. Doing so, particularly for money, without authorization would be copyright infringement.</p>\n<p>It is possible to obtain authorization via a <em><strong>mechanical license</strong></em>. This is a license created by statute. In US law this is covered by <a href=\"https://www.copyright.gov/title17/92chap1.html#115\" rel=\"nofollow noreferrer\">17 USC 115</a>. That section provides that when a musical work has already been recorded and placed on sale or offered to the public, another person may send a notice of intention to make and distribute recordings to the copyright owner, or the copyright office if the owner is not known. The person must pay a royalty established by the law, and comply with various other conditions.</p>\n<p>Or permission may be obtained from the copyright owner or the owner's agent, often for a fee.</p>\n<p>In the absence of such authorization or permission, making and distributing recordings of performances of the musical work is infringement, and the copyright owner may sue and collect damages.</p>\n<p>The site, <a href=\"https://www.mymusicsheet.com/main\" rel=\"nofollow noreferrer\">MyMusicSheet</a>, includes a TOS document that implies that rights are granted to the user when music is purchased. But this document is not at all clear on just what rights are purchased with the sheet music. In particular, it does not say if the purchase includes a license to perform the music, and if so, if it includes doing so commercially. Perhaps after one signs up with the service, more detailed information is provided.</p>\n<p>If the purchase includes a license to perform the work commercially, and to distribute recordings of such performances, all would be well. If not, doing so might well be copyright infringement unless the user goes through the steps to obtain a mechanical license, or gets permission from the copyright owner directly.</p>\n",
"score": 3
},
{
"answer_id": 88993,
"body": "<p>It does not seem to be possible to determine if it would be legal from that site, since I guess you have to make a purchase and then see if you purchased a license. It would be legal if you obtained a license to perform the work (and to re-arrange if that's what you also want to do), and then it would depend on whether the license stipulates only non-commercial performances. As usual, it depends on what the license says: if the license doesn't say, then it is illegal.</p>\n",
"score": 2
}
] |
[
"united-states",
"music"
] |
Does the 6th April 2023 date for reduced CGT personal allowance apply to date of sale, or exchange of contracts?
| 5 |
https://law.stackexchange.com/questions/89012/does-the-6th-april-2023-date-for-reduced-cgt-personal-allowance-apply-to-date-of
|
CC BY-SA 4.0
|
<p>We are selling a rental property and as such Capital Gains Tax (CGT) applies on profits. <a href="https://www.gov.uk/government/publications/reducing-the-annual-exempt-amount-for-capital-gains-tax/capital-gains-tax-annual-exempt-amount" rel="noreferrer">On 6th April 2023, the personal CGT allowance is being reduced from £12,300 to £6000</a>.</p>
<p>Our sale is likely to complete around this date and with two owners, that means we potentially stand to pay CGT on an additional £12,600.</p>
<p>Somebody told me that the key factor in the date cut-off is when contracts are exchanged for the sale, rather than when the sale is completed. But I cannot find any information supporting or rejecting this claim. Can anyone give an evidence-based answer either way?</p>
| 89,012 |
[
{
"answer_id": 89014,
"body": "<p>It's the date of exchange, referred to as the "disposal date".</p>\n<p>See the <a href=\"https://www.gov.uk/capital-gains-tax\" rel=\"noreferrer\">gov.uk</a> guidance:</p>\n<blockquote>\n<p>Capital Gains Tax is a tax on the profit when you sell (or ‘dispose of’) something (an ‘asset’) that’s increased in value.</p>\n</blockquote>\n<p>And the HMRC <a href=\"https://www.gov.uk/hmrc-internal-manuals/capital-gains-manual/cg-app18-230\" rel=\"noreferrer\">Capital Gains Manual</a>:</p>\n<blockquote>\n<p><em>What date did you exchange contracts?</em></p>\n<p>This is the disposal date. The contract exchange date is usually when the buyer and seller exchange contracts and is usually when the new owner pays a deposit.</p>\n<p>The tax year of exchange is the tax year that the disposal is chargeable in, even if completion of the contract occurs in a later tax year.</p>\n</blockquote>\n",
"score": 5
}
] |
[
"england-and-wales",
"tax-law",
"rental-property",
"real-estate"
] |
Internal country rules for repealing a treaty
| 0 |
https://law.stackexchange.com/questions/88997/internal-country-rules-for-repealing-a-treaty
|
CC BY-SA 4.0
|
<p>Most countries have rules and procedures set (usually) in their constitution about how to sign and ratify international treaties and what standing they have compared to the laws and the constitution of the country. For instance, in the US a treaty must be ratified by the Senate unless it's an executive-level-only international agreement, and in france a treaty cannot be ratified if the CC declared it contrary to the constitution.</p>
<p>But what are the procedures, in each country, to repeal a treaty or international agreement ? In the US it's pretty clear that Congress has the power to do that with an ordinary law, from what I could see. How does it work in other countries ? I'm mostly asking about France, Germany (since it kinda treats inter-Länder relations as international relations), and other countries are welcome too.</p>
<p>Clarification : I am <em>not</em> asking about what are the international rules for untying oneself from an international treaty (because that would mostly depend on the terms of the treaty itself).</p>
| 88,997 |
[
{
"answer_id": 89011,
"body": "<p><a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"germany-container\">germany</a></p>\n<p>The German Federal Foreign Office is responsible for the termination of international treaties.</p>\n<hr />\n<blockquote>\n<p><a href=\"https://www.verwaltungsvorschriften-im-internet.de/bsvwvbund_05032014_50150555.htm\" rel=\"nofollow noreferrer\">Richtlinien für die Behandlung völkerrechtlicher Verträge (RvV)</a></p>\n<p><strong>§40 Vertragsbeendigung, Kündigung</strong><br />\n...<br />\n(2) <strong>Zuständigkeit</strong><br />\nDie Kündigung von <strong>Staatsverträgen und Regierungsabkommen</strong> obliegt dem Auswärtigen Amt. Adressat einer Kündigung ist in diesen Fällen das Außenministerium der anderen Vertragspartei, nicht deren diplomatische Vertretung in Deutschland.</p>\n<p><strong>Ressortabkommen</strong> werden vom Fachressort selbst gekündigt. Adressat der Kündigung ist das Fachressort der anderen Vertragspartei.</p>\n<p>Adressat einer Kündigung eines mehrseitigen (multilateralen) Vertrags ist der Verwahrer.</p>\n<blockquote>\n<p>Guidelines for dealing with international treaties</p>\n<p><strong>§40 Termination of Contract</strong><br />\n...<br />\n(2) <strong>Jurisdiction</strong><br />\nThe Federal Foreign Office is responsible for terminating <strong>state treaties and intergovernmental agreements</strong>. In these cases, the addressee of a notice of termination is the foreign ministry of the other contracting party, not their diplomatic representation in Germany.</p>\n<p><strong>Departmental agreements</strong> are terminated by the department itself. The addressee of the termination is the specialist department of the other contracting party.</p>\n<p>The addressee of a termination of a multilateral (multilateral) contract is the custodian.</p>\n</blockquote>\n</blockquote>\n<p><strong>Note</strong>: The word <strong>Vertrag</strong> means both <em>contract</em> and <em>treaty</em>.</p>\n",
"score": 3
},
{
"answer_id": 89004,
"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>Entering and exiting a treaty is a <a href=\"https://www.canada.ca/en/department-national-defence/corporate/reports-publications/military-law/crown-prerogative/introduction.html\" rel=\"nofollow noreferrer\">prerogative Crown power</a>.</p>\n<p>This means the power is formally in the Crown. <a href=\"https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/200845E\" rel=\"nofollow noreferrer\">But the power to undertake a specific action in relation to a treaty is typically delegated via an Order in Council to a specific member of the executive</a>, typically the Minister of Foreign Affairs. It is this person that would sign the treaty, or, in the case of withdrawal, take whatever steps the treaty has required for withdrawal.</p>\n<p>Thus, treaty withdrawal is entirely within the power of the executive, with the legislature playing only a consultative role, if at all.</p>\n",
"score": 2
}
] |
[
"germany",
"france",
"treaty"
] |
GDPR When using an external CV formatting company
| 1 |
https://law.stackexchange.com/questions/89010/gdpr-when-using-an-external-cv-formatting-company
|
CC BY-SA 4.0
|
<p>As a recruitment company, if I use an external company to format CVs that have been shared, do I need to inform the candidates? What are the potential pitfalls of an external company being given confidential CVs that include private information?</p>
| 89,010 |
[
{
"answer_id": 89013,
"body": "<p>Yes, candidates must receive transparent information about this.</p>\n<p>Your exact obligations depend on whether your company is acting as a data controller, or as a data processor on behalf of another data controller.</p>\n<p>Data controller is whoever determines the purposes and means of processing. If you're working on behalf of candidates, you're likely a controller. If you're working on behalf of companies, you may be a controller or processor depending on further context.</p>\n<p>A <strong>controller</strong> is responsible for the compliance of all processing activities for which they determine the purposes, even if the activities are outsourced to another company.</p>\n<p>As the controller, you are responsible for fulfilling data subject rights, in particular the right to transparent information under <a href=\"https://www.legislation.gov.uk/eur/2016/679/article/13\" rel=\"nofollow noreferrer\">Art 13 UK GDPR</a>. Per Art 13(1)(e), this information must include “the recipients or categories of recipients of the personal data, if any”. Data processors working on your behalf are recipients. Information is typically provided via a privacy notice.</p>\n<p>As a data controller, you are also responsible for ensuring the security and compliance of your processing activities, by determining and implementing appropriate technical and organizational measures (TOMs). See Art 24 and 32. Such measures might include encryption, backup strategies, access controls, training and screening for staff, confidentiality agreements, and anything else. What is appropriate depends on the specific risks you face, the costs of implementing these measures, and on the state of the art. See also the <a href=\"https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/security/\" rel=\"nofollow noreferrer\">ICO guidance on security</a>.</p>\n<p>Per <a href=\"https://www.legislation.gov.uk/eur/2016/679/article/28\" rel=\"nofollow noreferrer\">Art 28(1) UK GDPR</a>, if you engage an external company to process personal data on behalf of you, you will ensure that this external company provides “sufficient guarantees to implement appropriate technical and organisational measures”. Per Art 28(3), these sufficient guarantees must be based on an enforceable contract with the data processor (commonly called a Data Processing Agreement, DPA).</p>\n<p>A <strong>processor</strong> is primarily responsible for following the instructions of their controller, as laid down in the DPA pursuant to Art 28(3). Processors are not directly responsible for handling data subject rights, so they need not (and must not) provide their own privacy notice to data subjects. However, they must assist their controller as appropriate, for example by providing necessary information so that the controller can satisfy their responsibilities.</p>\n<p>When a processor wants to engage a sub-processor to further delegate processing activities, this must be done in accordance with Art 28. Specifically, the sub-processor must be bound by the same data protection obligations as you are, see Art 28(4). So you'd need to enter a processor-to-processor DPA. Also, you need to obtain prior authorization from your controller to engage that additional processor per Art 28(2).</p>\n",
"score": 2
}
] |
[
"united-kingdom",
"gdpr",
"data-protection",
"confidentiality"
] |
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