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At what point does combining integrated circuits yield something patentable?
| 18 |
https://law.stackexchange.com/questions/88930/at-what-point-does-combining-integrated-circuits-yield-something-patentable
|
CC BY-SA 4.0
|
<p>I am considering at which point an electronic circuit-based product becomes patentable. If I were to simply design a new electronic circuit by implementing a single integrated circuit (IC) from a manufacturer, I would think that this cannot be patentable. I would also presume that the IC manufacturer has some kind of patent on their own IC. In this case, I would suppose that there is no patentable product and therefore you can sell this product without needing to worry about patent law.</p>
<p>But, what about when you combine two ICs that work together to do something than one of the ICs cannot do on its own? At this point, assuming it is novel, useful, nonobvious, and not previously patented, is this patentable? Do I need to begin searching to see if someone else has patented that combination of two ICs before I begin productising an invention? Fundamentally, I would like to understand if combining ICs in a certain way leads to something that is patentable, or is something more complex required?</p>
| 88,930 |
[
{
"answer_id": 88931,
"body": "<p>Electronic designs can be patented provided they meet the criteria for a patentable idea. But patenting a design using specific ICs is probably not a good idea as all someone has to do is redesign the same function using different ICs and they have worked around your patent.</p>\n<p>The best approach is to patent your circuit function using "functional blocks" that are more generic so that the overall circuit's function, which is the novel idea, it patented and not the specific implementation.</p>\n<p>Patents can be tricky to navigate. You might do well to consult a patent attorney who can advise you how best to protect your intellectual property.</p>\n",
"score": 26
},
{
"answer_id": 88937,
"body": "<p>I did a short course once from our in-house patent attorney, and he said that, under Australian law, patent was for solving a problem. So:</p>\n<ol>\n<li><p>I combine two circuits for the hell of it. Not patentable.</p>\n</li>\n<li><p>I want to make automobiles go faster, which I achieve by combining the same two circuits. Patentable (subject to novelty and all that).</p>\n</li>\n<li><p>I want to test for a particular cancer, which I achieve by combining the same two circuits. Patentable (solution to a totally different problem).</p>\n</li>\n<li><p>I combine two circuits in the hope that someone will find an application, and I can extort royalties. Not patentable. (There was a case in Australia where the judge said that one party was inventing patents instead of patenting inventions).</p>\n</li>\n</ol>\n",
"score": 23
},
{
"answer_id": 88962,
"body": "<p>The criteria for patentability are usefulness (not necessarily optimized or better than previous solutions), novel (not been done or described in a publication anywhere anytime in the past), and not obvious (to someone of ordinary skill in the art who knows about everything that has ever been done or published in the field ever in any language previously).</p>\n<p>The number of off-the-shelf components it takes to make it is not directly relevant. If you are concerned that your new circuit might be patented by someone else you can have a freedom-to-operate search done</p>\n",
"score": 2
},
{
"answer_id": 89006,
"body": "<p>QuadmasterXLII made a comment that I think deserves to be promoted to an answer:</p>\n<blockquote>\n<p>The heuristic "You can patent literally anything if you have money, but you can only enforce on people with less money than you" will get the practical answer 99 times out of 100</p>\n</blockquote>\n<p>This is USA-centric, but so is most of the world these days.</p>\n<p>The US patent office will accept any patent that uses the proper forms and is paid for.</p>\n<p>The hard part starts when somebody tries to enforce a patent. This involves a lot of lawyers on both sides and quickly becomes very expensive for both parties. The deciding factor is often who runs out of money first.</p>\n<p>Now everybody knows this, so if a big company threatens to sue a small company, the small company will usually fold immediately. This typically involves paying some sort of licence fee for the allegedly infringed patent.</p>\n",
"score": 2
},
{
"answer_id": 88960,
"body": "<p>It would be rare that anything as similar as combining a small number of ICs would be patentable.</p>\n<p>If the idea is "obvious" to someone skilled in the relevant technical field, given the current state of the art, then is may not be patented, even if it is novel and useful.</p>\n<p>Unless you were doing something that conventional wisdom inaccurately led skilled practitioner's to believe couldn't be done, it is highly unlikely that something this straightforward could meet that test.</p>\n<p>It also doesn't help that there are multiple elite patent law firms that are monitoring anything related to IC patents very carefully and are likely to proactively contest any new effort to patent something in their field, since IC manufacturers have big $$ at stake in that corner of patent law.</p>\n",
"score": 1
}
] |
[
"patents"
] |
Is there a "court of law" for treaty disputes between nations?
| 4 |
https://law.stackexchange.com/questions/89000/is-there-a-court-of-law-for-treaty-disputes-between-nations
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CC BY-SA 4.0
|
<p>For example, say the USA and Canada sign a treaty. But then Canada feels that the USA broke the treaty, but the USA maintains that they didn't. Is there some "court of law" equivalent where both sides can argue and have a decision reached as to guilt/consequences/damages that must be paid? Or is it simply up to diplomacy, and the nations just have to reach some new agreement based on threats/leverage?</p>
| 89,000 |
[
{
"answer_id": 89003,
"body": "<p>It depends on the treaty. Some treaties refer disputes to the international court of justice; some to regional courts; others, especially bilateral investment treaties refer disputes to customized tribunals or even arbitration.</p>\n",
"score": 2
},
{
"answer_id": 89002,
"body": "<p>Depending on the detail agreed within the treaty (or convention) one avenue is the <a href=\"https://www.icj-cij.org/en/treaties\" rel=\"nofollow noreferrer\">International Court of Justice</a>, because...</p>\n<blockquote>\n<p>...Some treaties or conventions confer jurisdiction on the Court. It has become a common international practice for international agreements - whether bilateral or multilateral - to include provisions, known as jurisdictional clauses, providing that certain categories of disputes shall or may be subject to one or more methods of pacific dispute settlement. Numerous clauses of this kind provide for recourse to conciliation, mediation or arbitration; others provide for recourse to the Court, either immediately or if other means of dispute settlement fail.</p>\n</blockquote>\n<p>The ICJ website (linked above) lists treaties etc which contain clauses relating to the jurisdiction of the Court in contentious proceedings.</p>\n<p>Although there does not appear to be one between Canada and the USA, Note that:</p>\n<blockquote>\n<p>The inclusion or omission of a treaty is without prejudice to its possible application by the Court in a particular case.</p>\n</blockquote>\n",
"score": 1
}
] |
[
"united-states",
"international",
"canada",
"treaty",
"united-nations"
] |
I have copyright of a precious notebook that its thief bequeathed to a museum that refuses to give me back the notebook. What is my recourse?
| 1 |
https://law.stackexchange.com/questions/88988/i-have-copyright-of-a-precious-notebook-that-its-thief-bequeathed-to-a-museum-th
|
CC BY-SA 4.0
|
<p>The museum does not dispute that this historically important notebook belongs to my family. Nor does it dispute how it came into the thieving family's hands. In correspondence the museum offers a "finders keepers" argument, knowing full well it cannot display or make copies of this notebook without my permission. It is in effect, holding it hostage pending my agreeing to grant copyright (which I will never do). In the current situation no one can see, study or benefit from this notebook's immense importance. Have I any recourse?</p>
| 88,988 |
[
{
"answer_id": 88999,
"body": "<h2>You likely have no legal recourse</h2>\n<p>Your copyright claim is irrelevant and your title claim is likely statute barred.</p>\n<p>It is a little unclear exactly what is going on here so I will state my understanding and answer on this basis.</p>\n<ol>\n<li>There is a historic artifact (the notebook) that contains words and possibly pictures made by someone, now deceased, who was a relation of yours.</li>\n<li>You believe that in the normal course of inheritance, that notebook should have become a possession of yours or others in your near family.</li>\n<li>At some point in the (distant?) past the notebook came into the possession of another family.</li>\n<li>The museum acquired the item from someone in this family; I will assume in good faith - that is, without knowing about your claim to it.</li>\n</ol>\n<h2>Copyright</h2>\n<p>You say you have "copyright of a precious notebook" - this is not true. Any copyright you might have is in the words and drawings in the notebook - they give you no claim to the notebook itself. The distinction here might be illustrated by considering the words of the Declaration of Independence (which are available for the Googling) and the <em>actual</em> engrossed copy held in the National Archives.</p>\n<p>Copyright is a bundle of exclusive rights that attach to literary and artistic expression once placed in a tangible form. The notebook is the tangible form but it is the words and pictures that the copyright subsists in.</p>\n<p>Assuming that you own the copyright that does not give you any right over the physical notebook; it only gives you rights to prevent or allow copies or derivative works to be made and only to the extent that those uses are not permitted by copyright law.</p>\n<p>Based solely on copyright, you could not prevent the museum from displaying the notebook (as an artifact without displaying the copyrighted words), including photographs of it in catalogues or on their website, or even reproducing small parts of it for educational purposes.</p>\n<p>In any event, copyright only lasts for a set period of time. The exact details depend on which nation's law the copyright was originally created and sometimes when. The US is particularly <a href=\"https://en.wikipedia.org/wiki/Public_domain_in_the_United_States\" rel=\"nofollow noreferrer\">tricky</a> here but other <a href=\"https://www.copyright.com.au/about-copyright/duration/\" rel=\"nofollow noreferrer\">nations</a> can also make things challenging. In addition, when suing for copyright infringement, the laws of the nation where the infringing copy is produced are also relevant.</p>\n<h2><a href=\"https://en.wikipedia.org/wiki/Title_(property)\" rel=\"nofollow noreferrer\">Title</a></h2>\n<p>Title is the legal term for the bundle of rights that we commonly think of as ownership of property. For our purposes we are going to limit ourselves to just these:</p>\n<ol>\n<li><strong>possession</strong>: who physically has the property whether they have a right to it or not.</li>\n<li><strong>right of possession</strong>: who has the legal right to be in possession, whether they presently have it or not</li>\n<li><strong>right or property</strong>: is the right which, if all relevant facts are known (and allowed), defeats all other claims</li>\n</ol>\n<p>These exist in a hierarchy - 3 beats everyone, 2 beats everyone but 3, and 1 beats everyone but 2 or 3. Often these rights are possessed by a single person - when I'm driving my car I have possession, I have the right of possession, and I have the right of property. When I take my car to the mechanic and it gets stolen - the thief has possession, the mechanic has the right of possession, and I have the right of property.</p>\n<p>Here the museum has possession of the notebook - which gives them the best claim so far. To defeat that, you would need to be able to prove that you either have a right of possession or a right of property.</p>\n<p>This is not as easy as it sounds.</p>\n<p>To do this thoroughly, you would need to prove that the original author had one of these rights in the notebook - that he didn't steal it, or buy it from somebody who stole it, or that it wasn't made with stolen paper, or stolen glue etc. This could be presumed unless someone had evidence to contest it. Then you would need to prove that the notebook should have come to you through gift or purchase.</p>\n<p>This is particularly troublesome. Let's assume that this notebook originally belonged to your great-grandfather (that is he had all three rights above) and, when he passed, he had three surviving children. Unless he specifically willed it to one of those children (or the cat's home) then the three children will inherit the right of property and the right of possession collectively. Of course, unless they share a house, only one of those children can actually possess it. Then each of those children has 3 surviving children; when all three pass on, those 9 will own it collectively - and so on.</p>\n<p>Now, because this becomes such a bloody mess, governments have passed statutes of limitations that draw a line in how far back people can go in pursuing these claims against the person in possession. These limits vary by jurisdiction but ranges of 2-10 years are typical; they may sometimes be extended in exceptional circumstances by the courts.</p>\n<p>So, when the other family took possession of the notebook, the clock started running for your family to file a claim to get it back. Unless this happened within say, the last half-decade, you basically have no legal recourse.</p>\n",
"score": 3
},
{
"answer_id": 88991,
"body": "<p>Possession of stolen property is a crime in all states, and at the minimum violates <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=9A.56&full=true#9A.56.170\" rel=\"nofollow noreferrer\">RCW 9A.56.170</a> if the property "does not exceed seven hundred fifty dollars in value" (it's a more serious crime if it is worth more than that). Possessing stolen property is defined as</p>\n<blockquote>\n<p>knowingly to receive, retain, possess, conceal, or dispose of stolen\nproperty knowing that it has been stolen and to withhold or\nappropriate the same to the use of any person other than the true\nowner or person entitled thereto.</p>\n</blockquote>\n<p>By your description, the museum knows that the notebook in their possession was not transferred to them legally, unless you are omitting important factual details such as whether there is a dispute over who holds title to the object. Your lawyer could presumably use that fact to reach a satisfactory resolution of the problem.</p>\n",
"score": 1
},
{
"answer_id": 88998,
"body": "<p>The museum has currently physical control of the notebook. Legal ownership of this artifact will depend on when and where it was stolen, when and where it 'resurfaced' again, and when and where the claim was made. Note the large number of artworks <a href=\"https://www.ushmm.org/collections/bibliography/looted-art\" rel=\"nofollow noreferrer\">stolen by the Nazis</a>, and the long road to legal recognition.</p>\n<p>Somebody may or may not own the copyright. This depends, mostly, on the time of death of the author. When this expires exactly is again a question of national law, but there is the <a href=\"https://en.wikipedia.org/wiki/Berne_Convention\" rel=\"nofollow noreferrer\">Berne convention</a> to try and harmonize things.</p>\n<p>Even if you do hold the copyright, there are usually exceptions for use in a scientific context, again with details depending on national law. The US has <em>fair use</em>, others have similar but different doctrines.</p>\n<p>You characterize the situation as 'theft' and 'holding the notebook hostage.' I expect that the museum <strong>believes</strong> that it has <strong>some</strong> but not all rights, and now offers a settlement to you. How fair their offer is depends very much on national legislation where you are.</p>\n",
"score": 1
}
] |
[
"copyright",
"theft"
] |
Is sharing sites where copyrighted songs can be downloaded freely illegal?
| 1 |
https://law.stackexchange.com/questions/88758/is-sharing-sites-where-copyrighted-songs-can-be-downloaded-freely-illegal
|
CC BY-SA 4.0
|
<p>If Alan knows of some sites where copyrighted songs can be downloaded freely, and he sends the links to Betty, is this criminal?</p>
| 88,758 |
[
{
"answer_id": 88899,
"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<h3>Crime</h3>\n<p>Even if this is contributory copyright infringement, it is very unlikely to be <strong>criminal</strong>. The relevant US law is <a href=\"https://www.copyright.gov/title17/92chap5.html#506\" rel=\"nofollow noreferrer\">17 USC 506</a>. To be a crime, the act must be committed</p>\n<blockquote>\n<p>for purposes of commercial advantage or private financial gain</p>\n</blockquote>\n<p><strong>and</strong> must consist of</p>\n<blockquote>\n<p>the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000;</p>\n</blockquote>\n<p>or</p>\n<blockquote>\n<p>the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.</p>\n</blockquote>\n<p>Simply sharing a web address does not fulfill either of these conditions. Moreover, as a practical matter, charges of criminal copyright infringement are only brought when infringing copies are made and/or distributed on a mass basis, as a business.</p>\n<h3>Contributory Infringement</h3>\n<p>However, the act of sharing the address <strong>could</strong> constitute <em><strong>contributory infringement</strong></em>. Cornell's <a href=\"https://www.law.cornell.edu/wex/contributory_infringement\" rel=\"nofollow noreferrer\">LII article on this</a> states:</p>\n<blockquote>\n<p>One who knowingly induces, causes or materially contributes to copyright infringement, by another but who has not committed or participated in the infringing acts themselves, may be held liable as a contributory infringer if they had knowledge, or reason to know, of the infringement. See, e.g., <a href=\"https://www.law.cornell.edu//supremecourt/text/545/913\" rel=\"nofollow noreferrer\">Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005)</a>; <a href=\"https://www.law.cornell.edu/copyright/cases/464_US_417.htm\" rel=\"nofollow noreferrer\">Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984)</a>.</p>\n</blockquote>\n<p>The <a href=\"https://en.wikipedia.org/wiki/Contributory_copyright_infringement\" rel=\"nofollow noreferrer\">Wikipedia article on this topic</a> states (<em>citations omitted</em>):</p>\n<blockquote>\n<p>The requirements for fulfilling the threshold of contributory infringement and imposing liability for copyright infringement on a party are:</p>\n<ol>\n<li>The defendant having knowledge of a direct infringement; and</li>\n<li>The defendant materially contributing to that infringement.</li>\n</ol>\n<p>...</p>\n<p>Material contribution is the second requirement of contributory infringement. For instance, merely providing facilities or the site for an infringement might amount to material contribution. But, some courts put emphasis on the contribution to be 'substantial' and therefore, would hold that providing equipment and facilities for infringement is not in itself determinative of material contribution.</p>\n</blockquote>\n<p>The key US court case defining contributory infringement and holding that a contributory infringer may be liable is <a href=\"https://en.wikipedia.org/wiki/Gershwin_Publishing_Corp._v._Columbia_Artists_Management,_Inc.\" rel=\"nofollow noreferrer\"><em>Gershwin Publishing Corp. v. Columbia Artists Management, Inc.</em>, 443 F.2d 1159 (2d Cir. 1971)</a></p>\n<p>In that case, the firm <strong>Columbia Artists Management, Inc</strong> (CAMI) assisted various local organizations arranging or sponsoring community concerts, some of which were for profit, helped plan and arrange a concert at when a copyrighted song was performed without permission. CAMI knew that the song would be performed, and know or should have known that the song was protected by copyright and no permission was being sought.</p>\n<p>The Second Circuit Court of Appeals held that CAMI was liable to the copyright owner for this infringement.</p>\n<h3>Practical Issues</h3>\n<p>As such contributory infringement would be a <em><strong>tort</strong></em>, that is a cause for a civil suit, not a crime, any legal action would have to be taken by the copyright owner or the owner's agent. In the situation described inn the question, it might be doubted whether an owner would bring suit, and it is not clear whether merely providing a web address would constitute <strong>materiel</strong> assistance in committing infringement. Also, the owner would need to prove actual damages, or else rely on the statutory damages provided by <a href=\"https://www.copyright.gov/title17/92chap5.html#504\" rel=\"nofollow noreferrer\">17 USC 504 (c)</a>. Under <a href=\"https://www.copyright.gov/title17/92chap4.html#412\" rel=\"nofollow noreferrer\">17 USC 412</a> statutory damages are not available unless the work involved was registered with the copyright office before the infringement started, or within three months after the work was fist published. There are other limitations as well.</p>\n",
"score": 2
}
] |
[
"copyright",
"music"
] |
Statute of limitations in the USA
| 0 |
https://law.stackexchange.com/questions/88949/statute-of-limitations-in-the-usa
|
CC BY-SA 4.0
|
<p>I was reading <a href="https://www.schneier.com/blog/archives/2023/01/kevin-mitnick-hacked-california-law-in-1983.html" rel="nofollow noreferrer">this</a> interesting article by Bruce Schneier, where he explains how a notorious hacker called Kevin Mitnick "hacked" California Law in 1983 by researching the statute of limitations on his crimes and avoiding prison.</p>
<p>I noticed the following comment on the article:</p>
<blockquote>
<p>No, his attorney was just a bad attorney. Statutes of limitations
toll, but jurisdiction is an absolute bar; it does not toll. A
competent attorney would know that.</p>
</blockquote>
<p>I was curious if this were true, and whether someone could explain the difference between the statute of limitations (which can be tolled whilst someone has a warrant) and jurisdiction absolute bar?</p>
| 88,949 |
[
{
"answer_id": 88954,
"body": "<p>The distinction being made here is far more subtle than it is made out to be in the article.</p>\n<p>There is a whole cottage industry of case law in almost every state (and under federal law) to determine which deadlines are jurisdictional and which are not. The case law is not uniform nationwide, and often, it isn't even consistent in seemingly analogous circumstances in a single state. The analysis is also more results driven than it is logical.</p>\n<p>And, it isn't unheard of for a state supreme court to decide that a deadline that lower courts have called jurisdictional for decades, but that the state supreme court has never had an occasion to consider, isn't jurisdictional after all and can be tolled. I've seen it happen more than once (although I don't have citations to those cases easily at hand).</p>\n<p>There may be practical importance to a parole officer deciding that the deadline has run. This might prevent the issue from ever being litigated.</p>\n<p>But, the person quoted in the article on that point is a non-lawyer government civil servant who isn't the person who will make the final call if the issue were ever litigated, something that would instead be handled by a senior lawyer in the California Attorney General's office.</p>\n<p>The author, like a lot of IT professionals and engineers, expects the law to be more consistent, logical, and predictable than it really is, and it so happens that this time he got lucky in his own case, so he thinks he's an expert.</p>\n",
"score": 4
},
{
"answer_id": 88987,
"body": "<blockquote>\n<p>someone could explain the difference between the statute of limitations (which can be tolled whilst someone has a warrant) and jurisdiction absolute bar?</p>\n</blockquote>\n<p>The comment you quote seemingly misapplies the term "absolute bar".</p>\n<p>The statute of limitations determines for how long charges may be pressed (or claims may be filed, accordingly). Having commenced court proceedings, the question becomes whether the court has jurisdiction and, if so, at what point it would expire. A court's want of jurisdiction does not necessarily prevent a timely filed claim from moving forward. For instance, the case might be transferred to other court that does have jurisdiction.</p>\n<p>Only a defendant may waive the statute of limitations (although generally that would be against his best interest). By contrast, there are constraints for a court to prevent its jurisdiction from expiring. For instance, <a href=\"https://www.leagle.com/decision/invaco20210615e85\" rel=\"nofollow noreferrer\"><em>Bailey v. Commonwealth</em>, 858 S.E.2d 423, n.5-7 (2021)</a> identifies "<em>[the timely] entry of an order nunc pro tunc as exception</em>" to the expiration of its jurisdiction. Likewise, "<em>by entering an order that modifies, vacates, or suspends the previously entered final order [...] the circuit court retains jurisdiction to allow it additional time</em>".</p>\n<p>In some types of cases there are additional options for remedying or preempting the expiration of jurisdiction. In (unpublished) <a href=\"https://www.leagle.com/decision/inilco20220210189\" rel=\"nofollow noreferrer\"><em>People v. Wells</em>, 2002 IL App (5th) (Dec. 2022)</a>, "<em>[t]he court found that there was no chance to work on rehabilitation before the expiration of the juvenile court's handling of the case</em>" and "<em>concluded that the defendant's case must be transferred to adult criminal court</em>". The greatest weight is to be given to "<em>the seriousness of the alleged offense and the minor's prior record of delinquency [...]. The State may also ask the juvenile to designate a case as an Extended Jurisdiction Juvenile Prosecution</em>", <em>Id</em>.</p>\n<p>The aforementioned options seem unwarranted or unavailable for the nonviolent crime to which the linked story refers. Also the story showcases how a diligent, skilled non-attorney can identify a decisive detail applicable to his own case, and which hitherto had been going unnoticed to a <em>for-profit</em> attorney who simultaneously represents a multitude of clients.</p>\n",
"score": 1
}
] |
[
"united-states",
"criminal-law",
"jurisdiction",
"statute-of-limitations",
"time-periods"
] |
How can a finding of suicide (on the death certificate) by the Office of Chief Medical Examiner be legally contested in the City of New York?
| 2 |
https://law.stackexchange.com/questions/88953/how-can-a-finding-of-suicide-on-the-death-certificate-by-the-office-of-chief-m
|
CC BY-SA 4.0
|
<p>Inspired by some <a href="https://skeptics.stackexchange.com/questions/47735/did-jeffrey-epstein-take-his-own-life">real-life case</a>, what is the legal procedure by which a finding of suicide by <a href="https://en.wikipedia.org/wiki/Office_of_Chief_Medical_Examiner_of_the_City_of_New_York" rel="nofollow noreferrer">Office of Chief Medical Examiner</a> can be contested in New York City?</p>
<p>An <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5508151/" rel="nofollow noreferrer">article</a> authored by some Centers for Disease Control personnel suggests that such a procedure might exist in general (without ref. to New York City particulars):</p>
<blockquote>
<p>if the family opposes a suicide determination and the ME/C finds the evidence supporting suicide lacking in any way, the ME/C may declare the death undetermined to avoid a potential legal dispute</p>
</blockquote>
<p>(ME/C - there stands for "medical examiners and coroners". The reason for the latter distinction is <a href="https://www.cdc.gov/phlp/publications/coroner/newyork.html" rel="nofollow noreferrer">somewhat complicated</a>, but not terribly relevant here since New York City has abolished coroners in 1918, according to Wikipedia, although other New York [State] counties might not have done that.)</p>
<p>So, how can one legally dispute that finding of suicide recorded on the death certificate in New York City, in particular?</p>
| 88,953 |
[
{
"answer_id": 88956,
"body": "<p><a href=\"https://nycadmincode.readthedocs.io/t17/c02/\" rel=\"nofollow noreferrer\">Here is the section</a> of NYC law on the medical examiner. §17-207 provides for a "Root cause analysis", in case there is a "significant event". A significant event, as defined in that section, is where there is probably a technical screw-up in the office of chief medical examiner; the designated root cause analysis officer then develops guidelines for determining whether a significant event has occurred, then reporting, and other procedures. Then if it is determined that there was a screw-up, there shall be a report written, and this may get reported to the mayor or city council. Although there is no explicit statement therein about outsiders <a href=\"https://www.nyc.gov/site/doh/about/contact-doh.page\" rel=\"nofollow noreferrer\">filing a complaint</a>, you can always file an administrative complaint, and the law does say that there shall not be any disclosure of the identity of "any complainant, victim or decedent".</p>\n<p>I assume the purpose of this complaint would be to force the medical examiner to change his report. If you simply just want to proffer an alternative claim, you can hire your own pathologists to make a different conclusion. One might care about the suicide / homicide distinction in case there was for instance an insurance policy that depended on the cause of death not being suicide. In which case, you would sue the insurance company, and the jury would look at the evidence for and against the suicide claim. As far as I can tell, there is no mechanism purporting to force the medical examiner to re-write his report and reach a different conclusion (the courts will not compel him to express a particular viewpoint).</p>\n",
"score": 3
},
{
"answer_id": 88984,
"body": "<p>The coroner is just simply a government employee who gives his or her expert opinion.</p>\n<p>If there is some sort of litigation that relies on the coroners report any opposing party is free to employ other expert testimony that may illustrate the coroners perceived ineptitude.</p>\n",
"score": 0
}
] |
[
"death",
"new-york-city",
"death-certificate"
] |
Can a 401k plan exclude Union members?
| 25 |
https://law.stackexchange.com/questions/77896/can-a-401k-plan-exclude-union-members
|
CC BY-SA 4.0
|
<p>John Hancock manages our 401k at work, they have under eligibility,</p>
<blockquote>
<p>Excluded employees: Union employees, Nonresident Aliens, and Leased Employees; 21 years of age and 3 consecutive months</p>
</blockquote>
<p>My workplace isn't even unionized. It just shocks me that a 401k can exclude a Union: obviously the Union can negotiate for the members, but can a company say that if you join the union you'll be kicked out of the company's 401k? Also, what happens then if you have a 401k with the company and a union forms and you want to join it?</p>
| 77,896 |
[
{
"answer_id": 77898,
"body": "<p>The reason for that standard boilerplate is that any union members would be covered by the terms of their Collective Bargaining Agreement (often called the Contract). This isn't an attempt to exclude union members, it's just wording that if you are in a union, your CBA takes precedence.</p>\n",
"score": 30
},
{
"answer_id": 77899,
"body": "<p>This <a href=\"https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/faqs/retirement-plans-and-erisa-for-workers.pdf\" rel=\"noreferrer\">fact sheet on the "Employee Retirement Income Security Act of 1974" or ERISA</a>, published by the United States Department of Labor, includes this quote:</p>\n<blockquote>\n<p><strong>Who can participate in your employer's retirement plan?</strong></p>\n</blockquote>\n<p>...</p>\n<blockquote>\n<p>Find out if you are within the group of employees covered by your employer's retirement plan. Federal law allows employers to include certain groups of employees and exclude others from a retirement plan. For example, your employer may sponsor one plan for salaried employees and another for union employees.</p>\n</blockquote>\n",
"score": 15
},
{
"answer_id": 77921,
"body": "<p>As Tiger Guy mentioned, union members have a separate agreement for salary and benefits that typically includes some sort of retirement plan. Your company is offering a 401k for those who <em>aren't</em> covered by the union's retirement plan. An employee will either be eligible for one or the other, but not both. There are all sorts of convoluted tax rules regarding retirement plans that can make it impractical or impossible for an employee to participate in both. For example, there are limits to how much you and your employer can contribute to your 401k accounts each year. If you had two 401k accounts (one through the union and one directly through your employer) the limit wouldn't change, it would just be split across two accounts and you'd have twice as many management fees.</p>\n<blockquote>\n<p>Also, what happens then if you have a 401k with the company and\na union forms and you want to join it?</p>\n</blockquote>\n<p>This gets treated more or less the same as if you have a 401k and then switch employers. The 401k account belongs to you. All the money that you contributed (and any gains that money earned) will remain in the account. Your employer's contributions (and the associated gains) will remain in the account based on how fully "<a href=\"https://en.wikipedia.org/wiki/Vesting#Retirement_plans\" rel=\"nofollow noreferrer\">vested</a>" you are. Your employer would no longer be able to contribute to that account. However, anything in the account would continue to grow and you are still free to make investment changes (move your money from one stock to another, etc). What many people do with these old 401k accounts is <a href=\"https://www.schwab.com/ira/rollover-ira/how-to-rollover-a-401k\" rel=\"nofollow noreferrer\">roll them over</a>, either into their current 401k with their new employer or into an IRA. Your accountant and/or financial advisor can help you decide where is the best place to keep your retirement funds in terms of tax consequences, investment options, and management fees. The key takeaway, though, is that a 401k belongs to <em>you</em>, so you won't lose it if you change employers or to a union-sponsored plan.</p>\n",
"score": 2
}
] |
[
"united-states",
"labor-law",
"unions"
] |
What kinds of treason are there in Turkey?
| 7 |
https://law.stackexchange.com/questions/5872/what-kinds-of-treason-are-there-in-turkey
|
CC BY-SA 4.0
|
<p>I have read that a Turkish MP has publicized that Sarin gas has been sent through Turkey to Syria, and that he is now wanted for treason.</p>
<p>I am from Germany, and in our law, it is treason ("Landesverrat") if you leak state secrets to the enemy or the public, with the intent to harm the F.R.G. or to benefit a foreign power.</p>
<p>Telling outright lies is not punishable under that law.</p>
<p>Now if I understand correctly, the allegations of that Turkish MP are vague and would have been plausibly deniable, which they are no longer if the Turkish head of state orders an investigation for treason as per the German definition of "Landesverrat".</p>
<p>Is the assumption correct that by ordering a treason investigation, Erdogan has given away that the story is true? Or what other "kinds" of treason are there in Turkey, that may allow for plausible deniability despite an investigation?</p>
| 5,872 |
[
{
"answer_id": 88982,
"body": "<p>In Turkey, treason is considered to be an act that threatens the security of the state and the integrity of the nation. According to the Turkish Penal Code, there are several types of treason, including:</p>\n<ul>\n<li><p>Espionage: The act of obtaining, disclosing, or using state secrets or classified information with the intention of harming the state or benefiting a foreign power.</p>\n</li>\n<li><p>High treason: This includes acts such as rebellion, sedition, and plotting against the state.</p>\n</li>\n<li><p>Seditious propaganda: The act of spreading false or misleading information that threatens the stability of the state or the nation.</p>\n</li>\n<li><p>Collaborating with the enemy: This includes acts such as providing aid or comfort to an enemy during war or conflict.</p>\n</li>\n</ul>\n<p>In the case of the Turkish MP who claimed that Sarin gas was sent through Turkey to Syria, he may be charged with treason for spreading false information or for disclosing state secrets, if the allegations are proven to be true.</p>\n<p>However, it is important to note that in Turkey, the government has been accused of using treason charges as a means of suppressing political opposition and limiting freedom of expression. In recent years, there have been several high-profile cases where journalists, academics, and opposition politicians have been arrested and charged with treason based on their speech or political activities.</p>\n<p>It is difficult to say whether the treason investigation into the Turkish MP is based on credible evidence or if it is a politically motivated action. The exact nature of the treason charge will depend on the specific facts and circumstances of the case.</p>\n<p>In conclusion, treason in Turkey is a serious crime that can have serious consequences, including imprisonment and loss of citizenship. It is important to understand the different types of treason and the laws surrounding treason in Turkey in order to avoid any potential legal trouble.</p>\n<p><strong>P.S.</strong> The provisions regarding treason in the Turkish Penal Code can be found in the following articles:</p>\n<ul>\n<li><p>Espionage: Article 330 of the Turkish Penal Code outlines the crime of espionage and provides for a sentence of up to life imprisonment for individuals who obtain, disclose, or use state secrets or classified information with the intention of harming the state or benefiting a foreign power.</p>\n</li>\n<li><p>High treason: Article 311 of the Turkish Penal Code outlines the crime of high treason and provides for a sentence of up to life imprisonment for individuals who engage in acts such as rebellion, sedition, and plotting against the state.</p>\n</li>\n<li><p>Seditious propaganda: Article 312 of the Turkish Penal Code outlines the crime of seditious propaganda and provides for a sentence of up to ten years imprisonment for individuals who spread false or misleading information that threatens the stability of the state or the nation.</p>\n</li>\n<li><p>Collaborating with the enemy: Article 312/2 of the Turkish Penal Code outlines the crime of collaborating with the enemy and provides for a sentence of up to life imprisonment for individuals who provide aid or comfort to an enemy during war or conflict.</p>\n</li>\n</ul>\n",
"score": 1
}
] |
[
"criminal-law",
"treason",
"turkey"
] |
How much violence is legally permitted to defend property?
| 0 |
https://law.stackexchange.com/questions/88977/how-much-violence-is-legally-permitted-to-defend-property
|
CC BY-SA 4.0
|
<p>Supposing a new business opens, and as usual the local criminals demand "protection money" under threat of property damage. If the business owner decides to spend the night at his business to defend his property from intentional, targeted damage, what level of violence is <em>generally</em> permitted to achieve his goals? For instance, I assume that screaming profanities at the criminals is legally permitted, yet murder is not. Is pushing somebody who is breaking your windows legally permissible, <em>in general</em>? Is punching them? What options do citizens have <em>in general</em> to protect their property from extortion?</p>
<p>Note that "call the police" is not an option - the police have no interest nor manpower to deal with this very common situation. My jurisdiction is Israel, but I am interested in what is the norm in other places as well, particularly Europe. Answers from all jurisdictions welcome for comparative purposes.</p>
| 88,977 |
[
{
"answer_id": 88980,
"body": "<p>The level of violence legally permitted to defend property varies from jurisdiction to jurisdiction, but there are general principles that are followed by many countries. In general, the use of force to defend property must be reasonable, proportional, and necessary. This means that the level of violence used must be appropriate to the situation, not excessive, and the only reasonable option available.</p>\n<p>For example, in the United States, the use of force to defend property is governed by state law and the common law principle of self-defense. Under most state laws, the use of force is only justifiable if it is necessary to prevent the commission of a crime or to prevent immediate harm to oneself or another. However, the level of force used must be reasonable and proportional to the perceived threat. In the case of a person breaking windows at a business, it would likely not be considered reasonable to use deadly force, but it might be considered reasonable to use non-deadly force, such as pushing or hitting the person, if there is no other way to stop the damage.</p>\n<p>In Europe, the use of force to defend property is generally governed by the European Convention on Human Rights, which provides for the right to respect for private and family life, home, and possessions. This includes the right to use reasonable force to defend property, but the use of force must be proportionate to the threat and necessary to achieve the goal of protecting the property. Some countries in Europe, such as the United Kingdom, have specific laws that govern the use of force for self-defense and defense of property. Under UK law, the use of force to defend property is only justifiable if it is reasonable, proportionate, and necessary in the circumstances.</p>\n<p>In Israel, the use of force to defend property is governed by the Penal Code, which provides for the right to use reasonable force in self-defense and defense of property. However, the use of force must be proportional to the threat and necessary to achieve the goal of protecting the property. In cases of extortion, the use of force may be justifiable, but it must be reasonable and proportionate to the threat. In Israel, the use of deadly force is generally not considered reasonable in these circumstances, unless the person is in immediate danger of death or serious injury.</p>\n<p>In conclusion, the level of violence legally permitted to defend property is dependent on the jurisdiction and the specific circumstances of the situation. However, in general, the use of force must be reasonable, proportional, and necessary, and the level of force used must be appropriate to the perceived threat. It is important to be aware of the specific laws and principles governing the use of force in one's jurisdiction, and to act within those laws when defending property.</p>\n<p><strong>P.S.</strong> You may also find interesting the following case\nGraham v. Connor (1989), in which the Supreme Court of the United States established the principle of "objective reasonableness" in the use of force. The court held that the use of force must be evaluated from the perspective of a reasonable officer on the scene, rather than the perspective of the person using force. This case is important in establishing the principle that the use of force must be reasonable and proportional to the threat, even when defending property.</p>\n",
"score": 1
},
{
"answer_id": 88981,
"body": "<p>First, the legal answer <em>is</em> "call the police". The retort "the police don't care" points to a political problem, and you can ask on Politics SE how to convince the government to reform the police.</p>\n<p>As far as what the shop owner can legally do, you look in the local laws to see what is said about use of force in defense of property. In Washington state, you go to <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=9a.16&full=true\" rel=\"nofollow noreferrer\">RCW 9A.16.020</a>, which says</p>\n<blockquote>\n<p>The use, attempt, or offer to use force upon or toward the person of\nanother is not unlawful in the following cases... (3) Whenever used by\na party about to be injured, or by another lawfully aiding him or her,\nin preventing or attempting to prevent an offense against his or her\nperson, or a malicious trespass, or other malicious interference with\nreal or personal property lawfully in his or her possession, <em>in case\nthe force is not more than is necessary</em></p>\n</blockquote>\n<p>What is conspicuously missing is a provision that allows a shop owner to forcibly eject a rowdy patron. You can use force to prevent them from trashing the place, but you cannot use force them to shut up. That is where you have to call the police, and where the police have to care. The proprietor would have to just put up with the rowdy person, and sue the police later (and in that case, the chances of getting a judgment against the police are slim, given sovereign immunity).</p>\n<p>The judgment of how much force is necessary to prevent property damage is very fact-intensive, so it is impossible to say in general terms whether shooting a thug is "necessary".</p>\n",
"score": 1
}
] |
[
"european-union",
"israel"
] |
Can I use the last name of a book author for my project
| 2 |
https://law.stackexchange.com/questions/88622/can-i-use-the-last-name-of-a-book-author-for-my-project
|
CC BY-SA 4.0
|
<p>Suppose that a person has written a computer program that s/he wants to publish on GitHub using as its name the last name of a professor who wrote a book on a topic related to the computer program.</p>
<p>My gut feeling is telling me, that the developer should probably try to contact the family of the professor (supposing that he died at least 10 years ago) and have their consent. The name of the computer program would be intended as a kind of the tribute to his work in the area.</p>
<p>Does it make any difference if such a program is published commercially?</p>
| 88,622 |
[
{
"answer_id": 88673,
"body": "<h2>Copyright, No</h2>\n<p>Copyright does not protect names, titles or short phrases at all. While it might be ethical to obtain the permission of the family of this professor, they could not successfully bring a copyright suit because of such use.</p>\n<h2>Personality Rights, Maybe</h2>\n<p>However, in some jurisdictions (including some, but not all, US states) a natural person has <em><strong>personality rights</strong></em>, sometimes also called <em><strong>rights of publicity</strong></em>. Where these rights are recognized, one cannot use a person's name, image, voice, or "persona" to market a commercial product without permission from the person whose identity would be used.</p>\n<p>In some jurisdictions personality rights end with the death of the person, in others they last for a number of years after the person's death. Without knowing the specific jurisdiction involved, it is not possible to say what rights the family of the professor might have under this theory. In some jurisdictions the matter is not yet clearly settled.</p>\n<p>The relevant jurisdiction is usually the place where the person resides, or resided at the time of the person's death.</p>\n<p>One would be wise to do research on personality rights in the relevant jurisdiction, or engage a lawyer who is knowledgeable in this area.</p>\n",
"score": 1
}
] |
[
"software",
"name"
] |
Is it legal for ProtonMail to suspend access to your email until you pay for subscription periods that haven’t yet elapsed or for you’ve not had use?
| 0 |
https://law.stackexchange.com/questions/88972/is-it-legal-for-protonmail-to-suspend-access-to-your-email-until-you-pay-for-sub
|
CC BY-SA 4.0
|
<p>ProtonMail runs on an annual subscription model. If your pre-yearly renewal payment fails, then you lose access to your data until you pay the yearly rate in respect of the year ahead of the date on which it was first attempted and ostensibly due.</p>
<p>Suppose you don’t wish to renew for a full year, but only for a further month. Apparently this is tough nuggies</p>
<p>Then suppose six months pass and you don’t make the payment. Then you are still one year’s worth of fees in arrears, but you’ve not had access to the service for half of the year of which the payment is in respect.</p>
<p>Is it legal for them to do this? The potential issues that come up in my mind is that they may be barred from taking your data hostage under GDPR provisions, or that charging you so inflexibly for contract periods that you cannot even enjoy the service for may be an unfair consumer contract term.</p>
| 88,972 |
[
{
"answer_id": 88975,
"body": "<p>To the degree that ProtonMail is subject to the UK GDPR, they cannot charge you for exercising your right to Access to your Personal Data, or for exercising your right to Data Portability. However, they need not provide access via their application, and the exercise of these rights would be hampered by their end-to-end encrypted nature. That is, exercising your rights may only be able to give you a copy of your account metadata and an encrypted blob.</p>\n<p>I am not convinced that ProtonMail is subject to the UK GDPR in the first place. For GDPR to apply, either Art 3(1) must be fulfilled, or Art 3(2).</p>\n<ul>\n<li>Art 3(1) GDPR will probably not apply since ProtonMail is a Swiss company. Switzerland is not part of the EU or UK. The presence of EU and UK employees does complicate this, but it would need further analysis to show that personal data is processed in the “context” of those EU and UK establishments.</li>\n<li>Art 3(2) of the EU GDPR does apply since the ProtonMail website is clearly offering its services to people who are in the EU. For example, pricing in EUR is evidence of such an offer. However, the EU GDPR is irrelevant in your scenario since you're not from the EU.</li>\n<li>Art 3(2) of the UK GDPR might not apply – I can't see how ProtonMail would be marketing its services specifically to people who are in the UK.</li>\n</ul>\n<p>(see <a href=\"https://www.legislation.gov.uk/eur/2016/679/article/3\" rel=\"nofollow noreferrer\">Art 3 UK GDPR on legislation.gov.uk</a>)</p>\n<p>You are concerned that being blocked from using the ProtonMail applications while your account is in arrears would lead to a scenario where you have paid for services that you didn't receive. However, ProtonMail would have provided some services during this time, for example keeping your data around (rather than deleting it immediately), or continuing to receive emails on your behalf. There is an argument that withholding access to the applications could be an unfair practice, but this is not at all an obvious conclusion.</p>\n<p>It would also be necessary to consider whether UK or Swiss consumer protection law is applicable here. The choice of law clause in the terms of service suggests that all disputes would be under Swiss law, though of course this can't override consumer protection laws if those laws actually apply.</p>\n",
"score": 2
}
] |
[
"united-kingdom",
"contract-law",
"gdpr",
"data-protection",
"unfair-terms"
] |
Can a Lower Court Claim to be "Smarter" than the Supreme Court?
| -2 |
https://law.stackexchange.com/questions/88958/can-a-lower-court-claim-to-be-smarter-than-the-supreme-court
|
CC BY-SA 4.0
|
<p>In Coinbase, Inc. v. Bielski the Supreme Court agreed to review as to whether a denial of a motion to compel arbitration ousts a district court’s jurisdiction to proceed with litigation pending appeal.</p>
<p>I understand that the Coinbase case is being stayed since they are waiting for the Supreme Court to issue a verdict.</p>
<p>When a matter currently present before a federal or state court is actively being litigated in the Supreme Court, do the lower courts have the jurisdiction to issue an order on the merits of a dispute before the US Supreme Court releases an opinion relating to the issue?</p>
<p>As it applies to the Coinbase v Bielski, when a party files a
Motion to Stay pending appeal the question is whether the lower courts are required to stay the case until the Supreme Court issues a verdict? In other words, if the U.S Supreme Court says it hasn't decided as to what the law is in this regard, can a lower court issue a ruling that might eventually be in conflict with the Supreme Court? Can a lower court essentially claim that "we know better" than the Supreme Court?</p>
| 88,958 |
[
{
"answer_id": 88963,
"body": "<p>Lower courts are only bound by US Supreme Court precedent on questions of federal law once the US Supreme Court releases an opinion on an issue. Until that point in time, the US Supreme Court is officially undecided on an issue.</p>\n<p>You ask:</p>\n<blockquote>\n<p>if the U.S Supreme Court says it hasn't decided as to what the law is in this regard, can a lower court issue a ruling that might eventually be in conflict with the Supreme Court?</p>\n</blockquote>\n<p>This is commonplace. For many matters, the US Supreme Court is undecided (new statutes, novel circumstances, etc.). In order for a matter to even get to the Supreme Court in the first place, it is often the case that a lower court ruled on a question for which the Supreme Court had not previously announced its opinion.</p>\n<p>I know you are asking about the circumstance where the US Supreme Court has agreed to hear an appeal but has not yet issued judgment. However, with respect to precedential value, it is the same until the time of judgment.</p>\n",
"score": 3
},
{
"answer_id": 88959,
"body": "<p>This isn't automatic one way or the other. If a party requests a stay, the court rules on it, analyzing the relevant legal factors.</p>\n",
"score": 1
}
] |
[
"united-states",
"civil-law",
"us-supreme-court",
"court"
] |
German law: Food in a coffee shop
| 1 |
https://law.stackexchange.com/questions/88967/german-law-food-in-a-coffee-shop
|
CC BY-SA 4.0
|
<p>I am planning to open a coffee shop in the near future (as soon as it becomes legal).
I don´t ask for help about the entire coffee shop thing, however I want to know which requirements I must meet to also sell self made (or bought) baked THC goods there.<br />
Would this be part of the <a href="https://www.gesetze-im-internet.de/gastg/BJNR004650970.html" rel="nofollow noreferrer">Gaststättengesetz</a>?
I also plan to deliver them.<br />
Does someone know which requirements I need to meet to sell and deliver the self made (or bought) baked goods?</p>
| 88,967 |
[
{
"answer_id": 88968,
"body": "<p>According to <a href=\"https://www.bundesgesundheitsministerium.de/fileadmin/Dateien/3_Downloads/Gesetze_und_Verordnungen/GuV/C/Kabinettvorlage_Eckpunktepapier_Abgabe_Cannabis.pdf\" rel=\"nofollow noreferrer\">this draft</a>, the sale would be highly regulated. They plan to <em>evaluate</em> an extension to edibles, so this is not clear yet. And the shops would have to be distinct from other <em>Genussmittel</em>, i.e. alcohol or tobacco. A delivery service seems impossible.</p>\n<p>So while I can understand that you want to move early in a new market, your business plan should wait for the details of the law. As the proverb goes, no law leaves parliament the way it went in.</p>\n",
"score": 2
}
] |
[
"germany",
"food",
"drugs"
] |
Leave provisions for part-time employees in Australia
| 1 |
https://law.stackexchange.com/questions/88938/leave-provisions-for-part-time-employees-in-australia
|
CC BY-SA 4.0
|
<p>What is the basis for the Fair Work Ombudsman's <a href="https://www.fairwork.gov.au/leave/sick-and-carers-leave/paid-sick-and-carers-leave#how-much" rel="nofollow noreferrer">assertions</a> that both:</p>
<ul>
<li>part-time employees entitlement to leave is pro-rata, according to total <em>hours</em> of service as compared to full-time employees, and,</li>
<li>leave entitlements are unaffected by how the hours are <em>spread</em> over the week,</li>
</ul>
<p>as pertains to <em>personal/sick/carer's</em> and <em>annual/recreational</em> leave?</p>
<p>If a HR system tracks accrued leave in units of <em>days</em>, should the reported balances get reduced if an employee adopts a compressed schedule (and increased if they revert to a standard schedule or otherwise reduce their average hours per work day)?</p>
<p>For context, quite different rules apply to other forms of leave (for example, for <em>long service leave</em> there is commonly a system of separate credits for full-time and part-time service; and for <em>domestic violence leave</em>, employees are entitled to the same amount whether they are full-time or even just casual). For <em>personal</em> and <em>annual leave</em>, the <em>Australian Federal <a href="https://www.legislation.gov.au/Details/C2023C00036" rel="nofollow noreferrer">Fair Work Act</a>, part 2-2 (National Employment Standards) div. 6 & 7A</em> doesn't appear to distinguish between full-time and part-time.</p>
| 88,938 |
[
{
"answer_id": 88961,
"body": "<p><a href=\"https://www.hcourt.gov.au/assets/publications/judgment-summaries/2020/hca-29-2020-08-13.pdf\" rel=\"nofollow noreferrer\">MONDELEZ AUSTRALIA PTY LTD v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS UNION (AMWU) & ORS; MINISTER FOR JOBS AND INDUSTRIAL RELATIONS v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS UNION (AMWU) & ORS\n[2020] HCA 29</a></p>\n<blockquote>\n<p>A majority of the High Court rejected the "working day" construction and instead held that what is meant by a "day" or "10 days" must be calculated by reference to an employee's ordinary hours of work. "10 days" in s 96(1) is two standard five-day working weeks. One "day" refers to a "notional day" consisting of one-tenth of the equivalent of an employee's ordinary hours of work in a two-week period. Because patterns of work do not always follow two-week cycles, the entitlement to "10 days" of paid personal/carer's leave can be calculated as 1/26 of an employee's ordinary hours of work in a year.</p>\n</blockquote>\n<p>So we deal with “notional days” that are measured in hours equivalent to 1/26 (or 1/13 for annual leave for non-shift workers). What an employees actual shift is is irrelevant.</p>\n<p>Similarly, their accrued hours don’t change if their normal hours of work change.</p>\n",
"score": 1
}
] |
[
"employment",
"australia"
] |
Is the China balloon breaking any laws?
| 4 |
https://law.stackexchange.com/questions/88909/is-the-china-balloon-breaking-any-laws
|
CC BY-SA 4.0
|
<p>It's reported in the news that China have sent a balloon over America. Some say it's a spy camera and some say it's a weather balloon.</p>
<p>Has China broken any American or international laws, such as spying or trespass?</p>
| 88,909 |
[
{
"answer_id": 88955,
"body": "<p>First, it is highly unlikely that it would remain continuously exactly at 60,000 feet. I mention this because that altitude happens to be the boundary between Class "A" airspace, and Class "E". (<em>see graphic below</em>)</p>\n<p><a href=\"https://i.stack.imgur.com/2lkVz.png\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/2lkVz.png\" alt=\"enter image description here\" /></a></p>\n<p>Class A airspace is the domain of a lot of commercial air traffic, so the FAA regulates it closely. Specific requirements for aircraft can be found in <a href=\"https://www.law.cornell.edu/cfr/text/14/91.135\" rel=\"nofollow noreferrer\">14 CFR 91.135</a>.</p>\n<p>If no prior coordination was made with FAA Air Traffic Controllers, and no clearance was explicitly given, the balloon would be in violation of this regulation at a minimum.</p>\n<p>Presuming it would drift above 60,000', it would still be in Class E airspace, which the FAA has jurisdiction over, even if the flight requirements are less stringent.</p>\n<p>Specific requirements for balloons can be found in 14 CFR Subpart D, <a href=\"https://www.law.cornell.edu/cfr/text/14/101.33\" rel=\"nofollow noreferrer\">101.33</a>, <a href=\"https://www.law.cornell.edu/cfr/text/14/101.35\" rel=\"nofollow noreferrer\">101.35</a>, <a href=\"https://www.law.cornell.edu/cfr/text/14/101.37\" rel=\"nofollow noreferrer\">101.37</a>, and <a href=\"https://www.law.cornell.edu/cfr/text/14/101.39\" rel=\"nofollow noreferrer\">101.39</a>. Presuming the Chinese did not comply, it would also be in violation of these sections.</p>\n",
"score": 3
}
] |
[
"united-states",
"trespass",
"air-travel",
"china",
"espionage"
] |
Is a nonprofit LLC required to have a Board of Directors?
| 1 |
https://law.stackexchange.com/questions/25571/is-a-nonprofit-llc-required-to-have-a-board-of-directors
|
CC BY-SA 3.0
|
<h1>Background:</h1>
<p>I'm in the process of forming an LLC nonprofit, with the intention to file <a href="https://www.irs.gov/pub/irs-pdf/f1023.pdf" rel="nofollow noreferrer">Form 1023</a>, for tax exemption under <a href="https://www.irs.gov/charities-non-profits/charitable-organizations/exemption-requirements-section-501c3-organizations" rel="nofollow noreferrer">IRS Code Section 501(c)(3)</a>.</p>
<p>I'm sure the charitable nonprofit mission of the LLC will not conflict with definitions of a nonprofit under 501(c)(3), however, there are <strong>elements of my LLC organizational structure</strong> I fear might conflict with section 501(c)(3). </p>
<hr>
<h1>Questions:</h1>
<ol>
<li><p>Is it okay that my LLC is Member Owned and Operated? This seems to conflict with the <strong>Board of Directors based governance</strong> central to 501(c)(3) nonprofits. </p></li>
<li><p>Is it okay to adopt a Board just for the purposes of <strong>advising</strong> and <strong>breaking ties</strong> among Members of the Company?</p></li>
</ol>
<hr>
<h1>Conclusion:</h1>
<p>I know that LLCs are eligible to apply for tax emption under 501(c)(3) via IRS Form 1023, but just how restrictive the IRS is in terms of <strong>an LLC's organizational structure differing from that of a 501(c)(3) nonprofit</strong> is not that clear in the documents I've read so far.</p>
| 25,571 |
[
{
"answer_id": 25635,
"body": "<p><strong>General Considerations</strong></p>\n\n<p>Most non-profits either have self-perpetuating boards of directors, or have members or delegates whose elect a board. Membership in a typical non-profit would be defined to include donors and/or volunteers, or people who have affirmed the organization's principles. In very large organizations, members frequently elect delegates to a convention or annual meeting and the delegates rather than the members directly elect the board of directors. But, there are non-profit corporation statutes that are better suited to these kinds of structures than an LLC.</p>\n\n<p>A non-profit LLC can have members and/or a manager, in lieu of a board of directors. But, the only good way to convey how an LLC could be used as a non-profit is really by example. Almost all of these LLCs would have very custom terms - you couldn't use an off the shelf operating agreement in many of these cases.</p>\n\n<p>Being member operated and controlled is just fine (although a manager managed form of LLC almost always works better in my experience), but being member \"owned\" is only O.K. in a quite restrictive sense of the word \"owned\" because basically, the whole point of a 501(c)(3) is to have an organization that is \"unowned\" where there is no one who can privately benefit from it in the crass economic sense.</p>\n\n<p>While an LLC can be a good fit for some niche applications of non-profits, it is an organizational form that isn't a good choice for all non-profits and only makes sense where it addresses issues that a conventional non-profit corporation or unincorporated association does not. As a default for a \"generic\" non-profit, a non-profit corporation or unincorporated association should be the first choice and the LLC should be used only when it provides a more natural fit to the organization, which will be more than exception than the rule.</p>\n\n<p>Unlike business organizations, which mostly have a great deal in common with each other, non-profits have very diverse governance needs that can't be applied generically and instead their governance must reflect the substance and details of what they are trying to do.</p>\n\n<p>A core principal of a 501(c)(3) (although not all non-profits) is a lack of personal benefit to the people who control it. </p>\n\n<p><strong>Examples</strong></p>\n\n<p>There are various ways that LLCs could be used.</p>\n\n<p>One is as a joint venture of multiple non-profit members. One might, for example, have an LLC whose members were the various synagogues of a region for the purpose of jointly operating a regional Jewish Community Center.</p>\n\n<p>Similarly, LLCs can make more sense for non-profits that are not 501(c)(3)s in many instances. It could be a good organizational form for organizing membership in a country club or condominium association or stock exchange, where transferability of a more or less permanent membership would be a useful feature.</p>\n\n<p>In a 501(c)(3) with a permanent transferable membership, you have a couple of choices.</p>\n\n<p>One would be to give members voting rights but not economic rights, which might make sense, for example, for an organization that conducts an periodic family reunion or governs a family charitable foundation, or perhaps some other hereditary type non-profit like the Daughters of the American Revolution. One could similarly imagine an LLC organization for a non-profit compose of property owners or <em>de facto</em> trust protectors in an LLC whose purpose was to enforce a conservation easement or a covenant that property in a neighborhood or HOA was maintains as open space. </p>\n\n<p>Or, for example, perhaps membership in an LLC running a 501(c)(3) library of ancient books or museum with art or ancient relics could be attached <em>ex officio</em> to endowed professorships in appropriate departments at universities across the nation or the world, or to people holding clergy positions - for example, memberships might be <em>ex officio</em> to specific bishop or archbishop positions in one or more church denominations (this might work well, for example, for a joint venture of multiple Orthodox denominations - Greek, Russian, Ethiopian - that want to cooperate with each other).</p>\n\n<p>Not all non-profits are permanent either. An LLC could be a good model for a single project, limited time period non-profit venture. Donors could have voting memberships equal to their contribution, while the promoter of the idea of a kickstarter-like project like a non-profit documentary project, or a one time event, would be the manager of the LLC but could be removed and replaced by a majority vote of the members if the manger floundered or quit or engaged in misconduct. Any funds left over after the event would be donated to a pre-agreed (or an after the fact member determined) charity.</p>\n\n<p>Another approach would be to flip the script even more completely where members were required to make annual contributions rather than receiving annual profits, and could relieve themselves of this obligation only by transferring it to someone who assumes this obligation. There are synagogues that are functionally organized somewhat like this and this also might be a decent fit for a cemetery association. Japanese cemetery associations are organized in a manner somewhat similar to this kind of structure. More grandly, the United Nations and many of its associated institutions are organized somewhat along these lines.</p>\n\n<p>Yet another format would be to have a single member LLC form on the model of a \"corporation sole\" which is how most Roman Catholic institutions and many other religious institutions are organized. This is essentially the same idea as a trusteeship with some succession mechanism worked out. This could also be a pretty good fit to the traditional organizational structure of many mosques, which are often established primarily by a lead donor and his family in a manner a bit analogous to a private foundation in the West.</p>\n",
"score": 2
}
] |
[
"non-profit",
"irs"
] |
Is "not committing a crime" sufficient consideration?
| 1 |
https://law.stackexchange.com/questions/88912/is-not-committing-a-crime-sufficient-consideration
|
CC BY-SA 4.0
|
<p>Alice sees John attempting to steal her car. For some reason, instead of calling the police, she says "I'll give you $1,000 tomorrow if you don't steal my car." John agrees.</p>
<h2>Scenario 1</h2>
<p>Alice gives John $1,000 and he doesn't steal the car. Has either of them committed a crime (e.g. extortion)?</p>
<h2>Scenario 2</h2>
<p>One of them breaches the contract and the other sues. Is there consideration for a valid contract?</p>
<h3>Scenario 2A</h3>
<p>Alice does not give John the money the next day. Can he sue her for breach of contract? Can he legally take her car?</p>
<h3>Scenario 2B</h3>
<p>Later that day, before the money is due, John steals the car. Can Alice sue for breach of contract, in addition to the typical theft-related claims?</p>
<h3>Scenario 2C</h3>
<p>The next day, after Alice gives him the money, John steals her car. Can she sue to get the $1,000 back?</p>
| 88,912 |
[
{
"answer_id": 88913,
"body": "<p>Forbearance from action can be consideration, but it must be forbearance from something that is one's legal right. It is sufficient that a person has restricted their <em>lawful</em> freedom of action. See <em>Hamer v. Sidway</em>, <a href=\"https://www.nycourts.gov/reporter/archives/hamer_sidway.htm\" rel=\"noreferrer\">(1891) 124 NY 538</a>.</p>\n<p>A promise to not do something that one has no right to do in the first place is not consideration. Throughout your entire spectrum of examples:</p>\n<ul>\n<li>there is no contract to breach;</li>\n<li>the intitial attempted theft was an offence;</li>\n<li>absent consent, it will never be lawful for John to take the car;</li>\n<li>any money accepted by John is likely an unjust enrichment.</li>\n</ul>\n",
"score": 6
},
{
"answer_id": 88916,
"body": "<p>The promise is not sufficient consideration. The <a href=\"https://en.wikipedia.org/wiki/Pre-existing_duty_rule\" rel=\"nofollow noreferrer\">Pre-existing duty rule</a>, coming from <a href=\"http://www.bailii.org/ew/cases/EWHC/KB/1809/J58.html\" rel=\"nofollow noreferrer\">Stilk v Myrick [1809] EWHC KB J58</a> is that performance of a pre-existing duty does not amount to good consideration to support a valid contract. Everyone has a pre-existing duty to not steal a car: the purported contracts adds nothing. Therefore there is no contract, no breach, and John has no right to Alice's money.</p>\n",
"score": 2
},
{
"answer_id": 88944,
"body": "<p><a href=\"/questions/tagged/france\" class=\"post-tag\" title=\"show questions tagged 'france'\" aria-label=\"show questions tagged 'france'\" rel=\"tag\" aria-labelledby=\"france-container\">france</a></p>\n<h2>Alice is not bound by her promise</h2>\n<p>In <a href=\"/questions/tagged/civil-legal-system\" class=\"post-tag\" title=\"show questions tagged 'civil-legal-system'\" aria-label=\"show questions tagged 'civil-legal-system'\" rel=\"tag\" aria-labelledby=\"civil-legal-system-container\">civil-legal-system</a>, unilateral promises are enforceable. A contract does not require reciprocal consideration, and therefore, even if John’s promise to not break the law amounts to nothing, Alice’s promise has to be looked at.</p>\n<p>Yet, if Alice consented under "violence", then her promise is void (<a href=\"https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000032040901\" rel=\"nofollow noreferrer\">article 1130 du Code Civil</a>). "Violence" is defined at <a href=\"https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000032040977\" rel=\"nofollow noreferrer\">article 1140</a>:</p>\n<blockquote>\n<p>Il y a violence lorsqu'une partie s'engage sous la pression d'une contrainte qui lui inspire la crainte d'exposer sa personne, sa fortune ou celles de ses proches à un mal considérable.</p>\n</blockquote>\n<blockquote>\n<p>There is violence when either party commits under a constraint that makes him or her fear to expose his or her person or wealth or that of others to a large danger.</p>\n</blockquote>\n<p>Clearly, Alice only promised John $1000 under the threat of having her car stolen, hence her consent is void. John has no legal recourse against Alice in scenario 2A, neither for the money she promised her, nor for any actions he took in reliance of that (void) promise.</p>\n<h2>John is guilty of extortion in all scenarios</h2>\n<p><a href=\"https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006418160\" rel=\"nofollow noreferrer\">Code Pénal, article 312-1</a>:</p>\n<blockquote>\n<p>L'extorsion est le fait d'obtenir par violence, menace de violences ou contrainte soit une signature, un engagement ou une renonciation, (...)</p>\n</blockquote>\n<blockquote>\n<p>Extorsion is when one obtains by violence, threat of violence of constraint either a signature, a promise or renunciation, (...)</p>\n</blockquote>\n<p>In all scenarios, John has obtained a promise for money by his threat to steal the car. It does not matter that actually obtains money or a car, or that he intended to steal the car and only switched to extortion in the heat of the moment.</p>\n<h2>Alice can claim compensation for anything John took</h2>\n<p>Civil liability comes from a three-prong test of 1. fault, 2. damage, and 3.connection between fault and damage.</p>\n<p>Per the above, John’s conduct is illegal (1). Any money or property that changes hand in the various scenarios does so as an immediate consequence of John’s actions (3), and to Alice's detriment (2).</p>\n<p>Therefore, John has civil liability at least for the value of the car and/or $1000 that he obtained from Alice.</p>\n<p>If Alice had additional expenses (such as moving her car into a guarded parking lot), I would expect those not to qualify, because there is no clear causal connection between those costs and John’s actions (3).</p>\n",
"score": 2
}
] |
[
"criminal-law",
"contract-law",
"common-law",
"theft",
"any-jurisdiction"
] |
on what matters does the ICJ have compulsory jurisdiction?
| 2 |
https://law.stackexchange.com/questions/88942/on-what-matters-does-the-icj-have-compulsory-jurisdiction
|
CC BY-SA 4.0
|
<p>in the ICJ statute it is stated</p>
<blockquote>
<p>The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.</p>
</blockquote>
<p>does this mean ICJ have compulsory jurisdiction on matters related to UN charter ?</p>
| 88,942 |
[
{
"answer_id": 88943,
"body": "<p>The scope of compulsory jurisdiction at the ICJ is by unilateral declaration of each nation. You can see the declarations of states that have assented to compulsory jurisdiction of the ICJ here: <a href=\"https://www.icj-cij.org/en/declarations\" rel=\"nofollow noreferrer\">https://www.icj-cij.org/en/declarations</a></p>\n<p>Each declaration specifies the scope of compulsory jurisdiction that the state is assenting to.</p>\n<p>For example, Romania has said it does not accept compulsory jurisdiction for "any dispute regarding to the protection of the environment."</p>\n<p>I believe all the states that have conditioned their acceptance of compulsory jurisdiction on the opposing state having accepted the same obligation. E.g. Sweden</p>\n<blockquote>\n<p>accepts as compulsory ipso facto and without special agreement, <strong>in relation to any other State accepting the same obligation</strong>, the jurisdiction of the International Court of Justice, ...</p>\n</blockquote>\n",
"score": 2
}
] |
[
"treaty"
] |
Must medical providers/businesses give a copy of a patient's medical record to the patient if the patient requests it in France?
| 2 |
https://law.stackexchange.com/questions/88936/must-medical-providers-businesses-give-a-copy-of-a-patients-medical-record-to-t
|
CC BY-SA 4.0
|
<p>In the US, medical providers must by law give a copy of a patient's medical record to the patient within 30 days if the patient requests it, according to <a href="https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/index.html#:%7E:text=Timeliness%20in%20Providing%20Access,164.524(b)(2)." rel="nofollow noreferrer">45 CFR 164.524(b)(2)</a>:</p>
<blockquote>
<p>Timeliness in Providing Access: In providing access to the individual, a covered entity must provide access to the PHI requested, in whole, or in part (if certain access may be denied as explained below), no later than 30 calendar days from receiving the individual's request. See 45 CFR 164.524(b)(2). The 30 calendar days is an outer limit and covered entities are encouraged to respond as soon as possible.</p>
</blockquote>
<p>I wonder whether a similar law exists in France.</p>
| 88,936 |
[
{
"answer_id": 88946,
"body": "<p>Yes, see <a href=\"https://www.service-public.fr/particuliers/vosdroits/F12210\" rel=\"nofollow noreferrer\">https://www.service-public.fr/particuliers/vosdroits/F12210</a>.</p>\n<p><em>The rest of the answer is a partial summary in English of what that link says. If you can read French, go read the link instead. service-public.fr is a government website, hence it is unlikely to be taken down; it is generally accurate, up-to-date, and includes links to the relevant law statutes.</em></p>\n<p>Any individual can request access their own medical records from whichever health provider produced them.</p>\n<p>When those records are "fresh" (less than 5 years old), access must be granted at most 8 days after the request but at least 48h after it ("délai de réflexion" / thinking time).</p>\n<p>"Access" means you can consult the files on-premise for free, but the health provider can charge you to make any copies or mail them.</p>\n",
"score": 2
}
] |
[
"medical",
"france",
"data-ownership",
"data"
] |
What power do I have as a driver if my interstate route is blocked by a protest?
| 63 |
https://law.stackexchange.com/questions/15190/what-power-do-i-have-as-a-driver-if-my-interstate-route-is-blocked-by-a-protest
|
CC BY-SA 3.0
|
<p>I recently read about protests blocking an interstate. I feel like ethically <s>no one</s> no (non-police) citizen has the right to obstruct my travel (on a public interstate for the sake of protest), therefore I'm interested to know if I personally have any legal route to retaliate against the individuals stopping my travel (exercising their rights at the expense of mine).</p>
<p>Just because I think I should have the right to slowly push through a crowd unlawfully impeding my travel, doesn't make it the law, unfortunately. But that's why we have laws, right? So we can retaliate against people we feel are impeding our freedom in a peaceful manner. My question is simply of whether I have the ability to legally retaliate against the protesters who may have just made me an hour late for an important event by blocking a public freeway.</p>
<p>Edit: Another way to look at it: If a police officer detained me without cause, and there were witnesses and video to verify this, I could sue the police department and win. Why then, can a group of citizens detain me without cause, without also facing legal repercussion?</p>
<ul>
<li>I'm curious to know what legal grounds I would have in this situation to travel unobstructed.</li>
<li>Can I only call the police and hope they press charges?</li>
<li>Can I video the protesters and press charges against each of them, even sue each protester for damages?</li>
<li>In other words, is there any way for me to retaliate against the (unlawful) protesters legally and peacefully?</li>
</ul>
<p><strong>Note:</strong> Many are responding with something along the lines of "What if it were an accident? You couldn't press charges on the drivers in an accident for detaining you". There's a huge difference between being detained by an accident, and a group of people intentionally and unlawfully detaining me on a public freeway. So I really don't understand these responses.</p>
<hr>
<p>My initial wording to the question seemed to confuse my intentions and lead to alot of "no, you can't run them over" rhetoric (which wasn't actually my question at all), so I've edited and simplified the question.</p>
| 15,190 |
[
{
"answer_id": 15192,
"body": "<p><strong>tl;dr</strong></p>\n\n<p>Hitting the pedestrians is a separate crime, even if they shouldn't be there.</p>\n\n<p><strong>Background</strong></p>\n\n<p><em>On a highway, you might have a legal right of way and therefore a claim against the pedestrians for failing to yield.</em></p>\n\n<p>Since the states (and not the federal government) own and operate the interstate highway system, your specific answer depends on the state law. </p>\n\n<p>In North Carolina, for example, pedestrians walking along or upon a highway have a <a href=\"http://www2.acs.ncsu.edu/trans/wolftrails/documents/wt-ped-laws.pdf\" rel=\"noreferrer\">statutory duty</a> to yield the right of way to all vehicles. So you could probably videotape and press misdemeanor charges against them individually. That said, contacting the police and waiting (or taking an alternate route) is the best recourse.</p>\n\n<p><em>Having the right of way (or feeling ethically justified) doesn't allow you to commit an offense like hitting a pedestrian.</em></p>\n\n<p>The fact that the pedestrians aren't supposed to be in your way is of little consolation in the charges you'll face if you injure or kill one. The court will see this as a legal/ethical problem, but one that won't go in your favor.</p>\n\n<p>In particular, you deliberately directed your vehicle into the crowd with the knowledge that the action might cause harm. One doesn't have to imagine the <a href=\"https://www.youtube.com/watch?v=y_PrZ-J7D3k\" rel=\"noreferrer\">Austin Powers steamroller</a> scenario to know that injuries are possible when cars go through crowds. That will pull all of the \"involuntary\"-flavored mitigations off the table.</p>\n\n<p>In particular, driving a car into a crowd might be considered \"an inherently dangerous act or omission, done in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty.\" In the worst case scenario, where someone died as a result, a North Carolina prosecutor might push for <a href=\"http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_14/GS_14-17.html\" rel=\"noreferrer\">second-degree</a> murder (which operates on a \"recklessness-plus\" standard and might not be as crazy as it sounds since driving into the crowd is likely reckless, and driving in slowly with them yelling at you to stop could push a jury over the top). In that case, as a defendant, you'd hope your charge could be mitigated down to something like <a href=\"http://www.ncleg.net/gascripts/statutes/statutelookup.pl?statute=20-141.4\" rel=\"noreferrer\">death by vehicle</a> (which is similar to \"vehicular manslaughter\" in other states), and you'd shoot for the misdemeanor version of death by vehicle since you weren't driving under the influence. However, a key element of proving death by vehicle is that you <em>unintentionally</em> caused the death---and the fact that you deliberately drove into the crowd might ruin your defense. In the case where you just hurt someone, you'd likewise hope to mitigate intentional charges to unintentional ones.</p>\n\n<p><em>A claim for false imprisonment is unlikely to succeed.</em></p>\n\n<p>False imprisonment is called a variety of things---like felonious/misdemeanor restraint, unlawful detainment, etc.---depending on where you live. To prove it (and generalizing a bit since this varies by state), you typically have to show (1) detention or restraint against your will, and (2) unlawfulness of the detention or restraint. A big challenge here is that courts often interpret this to mean detention or restraint by exercise of force or threat of force, as in <em>Harris v. Stanioch</em>, 150 Wash. 380 (1928) for example. The protesters are just in the way, so it's unlikely this would hold up.</p>\n\n<p><em>Self defense almost surely won't be a viable excuse.</em></p>\n\n<p>The idea of driving the car slowly through the crowd relies on the notion that you should be able to escape the alleged detention. The escape you're considering in driving through the crowd likely comes at the expense of making contact with members of the crowd. Making unprivileged contacts might be allowable in self defense. However, self defense probably hold up either. Setting aside notions of proportional defense, you have to be defending yourself against something: force or threats of it by the protesters. So if they don't use force, or threaten it, against you, then your defense is going to be really shaky.</p>\n",
"score": 61
},
{
"answer_id": 15221,
"body": "<h1>Powers</h1>\n<blockquote>\n<p><strong>What power do I have as a driver if my interstate route is blocked by a protest?</strong></p>\n</blockquote>\n<p>As an ordinary citizen, no <em>powers</em> in most jurisdictions.</p>\n<p>You have the <em>right</em> to report obstruction of the highway to the local police.</p>\n<p>You likely have the <em>right</em> to sue those people if you have evidence of significant harm they have caused you.</p>\n<h1>Right to Obstruct</h1>\n<blockquote>\n<p><strong>I feel like ethically no one has the right to obstruct my travel</strong></p>\n</blockquote>\n<p>You are wrong to put this in absolute terms. For example, a roadworker holding a "stop" sign has the right to temporarily obstruct your travel. A school bus unloading children has the right to obstruct your travel. Someone lying injured on a pedestrian crossing may have rights which rank higher than yours.</p>\n<p>Also, since you ask in the context of this specific website, rights are limited to those granted to individuals by laws enacted by government. Your personal sense of ethics does not directly determine what legal rights you have.</p>\n<hr />\n<h1>Retaliation</h1>\n<blockquote>\n<p><strong>But that's why we have laws, right? So we can retaliate against people we feel are impeding our freedom in a peaceful manner.</strong></p>\n</blockquote>\n<p>Merriam Webster full definition of retaliate:</p>\n<blockquote>\n<p>transitive verb: to repay (as an injury) in kind</p>\n<p>intransitive verb: to return like for like; especially: to get revenge</p>\n</blockquote>\n<p>Retaliate is the wrong word to use for what you mean. The law does not provide for you to repay in kind or return like for like. The law is not about enabling revenge.</p>\n<blockquote>\n<p>Retaliation generally is the act of seeking revenge upon another. Various federal and state laws, which vary by state, protect certain persons who seek to assert their legal rights from retaliation.</p>\n</blockquote>\n<p>- <a href=\"http://definitions.uslegal.com/r/retaliation/\" rel=\"nofollow noreferrer\">uslegal.com</a></p>\n<hr />\n<h1>Vehicular Misdemeanour</h1>\n<p>Note: The question was later amended to remove the following:</p>\n<blockquote>\n<p><strong>driving forward slowly, giving the protesters an opportunity to move, but not stopping my vehicle if they refuse, would be an ethically fair option.</strong></p>\n</blockquote>\n<p>Not, for example, according to Minneapolis City Attorney Susan Segal on March 24 2015.</p>\n<blockquote>\n<p>The law requires drivers to use due care to avoid pedestrians.</p>\n</blockquote>\n<p>The context was a driver using a car to push through protesters on the highway.</p>\n<hr />\n<p>It may be worth considering that the people you hit (no matter how slowly) with your car may have their own (perhaps equally incorrect) assessment of the ethics of the situation:</p>\n<ul>\n<li><a href=\"http://www.mcall.com/news/breaking/mc-allentown-driver-shot-struck-pedestrians-20161112-story.html\" rel=\"nofollow noreferrer\">Driver shot in leg after striking pedestrians</a></li>\n<li><a href=\"http://www.mystatesman.com/news/news/police-driver-hit-cars-pedestrian-before-shot-to-d/ns3h3/\" rel=\"nofollow noreferrer\">Driver hit cars, pedestrian before shot to death</a></li>\n</ul>\n<p>Using force to escalate a conflict doesn't always lead to the outcome you desire.</p>\n<hr />\n<p>Here's an example from the\n<a href=\"http://www.startribune.com/driver-who-rolled-into-protest-charged-with-3-traffic-offenses/297425131/\" rel=\"nofollow noreferrer\">Star Tribune</a>:</p>\n<blockquote>\n<p>The motorist who rolled through a busy Minneapolis intersection packed Ferguson street protesters last November, slightly injuring one demonstrator, was charged Tuesday afternoon with three misdemeanor traffic violations.</p>\n<p>Jeffrey P. Rice, 40, of St. Paul, was charged in Hennepin County District Court with reckless or careless driving, careless driving and failure to avoid colliding with a pedestrian. Rice was charged by summons and has an April 14 court date.</p>\n<p>Last month, the county attorney’s office decided not to charge Rice with a felony in connection with when he drove through the protesters late in the afternoon on Nov. 25 at E. Lake Street and Minnehaha Avenue, where he knocked over one of the participants. The case was then presented by police to the city attorney’s office for potential prosecution on misdemeanor or gross misdemeanor counts.</p>\n<p>Rice admitted to police that he saw the people in the street before he went ahead and “drove through them,” the criminal complaint read.</p>\n<p>In a statement explaining the charges, City Attorney Susan Segal said, “The law requires drivers to use due care to avoid pedestrians. We don’t believe that standard was met in this case.”</p>\n</blockquote>\n<p><a href=\"http://www.startribune.com/motorist-pleads-guilty-to-misdemeanor-is-fined-for-driving-through-protesters-in-minneapolis/330442631/\" rel=\"nofollow noreferrer\">followup</a></p>\n<blockquote>\n<p>Jeffrey P. Rice, 41, of St. Paul, was fined $575 and ordered to attend a driver's education course within six months for failure to yield to a pedestrian.</p>\n</blockquote>\n<p>...</p>\n<blockquote>\n<p>several hundred protesters were blocking the intersection.</p>\n</blockquote>\n",
"score": 52
},
{
"answer_id": 15191,
"body": "<p>Your main power as a US citizen is to politically persuade lawmakers to do something to guarantee your unimpeded use of the roads in a legally-defined manner (i.e. you can't expect legislation to abolish rush hour traffic). You can call the police, in case they haven't been called. You can video anyone that you want. What you may not do is speed up and plow through the crowd.</p>\n\n<p>If protesters attack you or your vehicle, you would have an actionable cause (but remember that they wear masks, so identifying the people who assaulted you could be challenging – not impossible), because assault and property damage are actionable torts, as well as crimes. Blocking your path may also technically be a tort (false imprisonment) depending on how trapped you are, and assuming that the blockage is unlawful. I don't know if anyone has ever sued a protester for making them late.</p>\n",
"score": 9
},
{
"answer_id": 15198,
"body": "<p><strong>You can do whatever you like as long as it's legal</strong>. </p>\n\n<p>Broadly speaking, one person carrying out an illegal action (like blocking a road) does not justify an illegal action by another (like striking them with a car).</p>\n",
"score": 8
},
{
"answer_id": 15193,
"body": "<p>The term for intentionally driving a vehicle into a person who is blocking the path of your vehicle (regardless of whether you have the right of way) is <strong>vehicular assault</strong> and it's not something you want to be charged with. Tow operators can tell you all about it because they run into it quite often when they, or the person who called them, is preventing the person whose vehicle is about to be towed from moving it away from the location where it's illegally parked.</p>\n",
"score": 5
},
{
"answer_id": 15234,
"body": "<p><strong>General arguments concerning travel vs. obstruction:</strong> I can imagine an abundance of situations where not only people have an ethical <em>right</em> to block an interstate, but actually have an ethical <em>obligation.</em> From a utilitarian point of view this would be the case any time a higher good than your (undisputed) right to use the interstate is at stake. Some examples are obvious: A person in danger of dying needing immediate help, for example by transportation, would ethically and perhaps legally <em>require</em> bystanders to stop vehicles with any reasonable means at hand, for example by blocking the road.</p>\n\n<p>If the danger to the good is less immediate, or if the good at stake is less valuable than a person's life, the right to block the road becomes less clear. For example events that attract crowds who share legitimate interests, like big funerals, protest marches or even sports and entertainment events may lead to ad-hoc road blockages. </p>\n\n<p><strong>Your specific question about protests:</strong> To congregate in order to take part in the political decision-making is a constitutional guarantee codified in the <a href=\"http://www.senate.gov/civics/constitution_item/constitution.htm#amdt_1_(1791)\" rel=\"nofollow noreferrer\">first amendment:</a></p>\n\n<blockquote>\n <p>Congress shall make no law [...] abridging [...] \n the right of the people peaceably to\n assemble [...].</p>\n</blockquote>\n\n<p>There is no explicit constitutional guarantee concerning highway use (although the general freedom of movement could be considered having constitutional status, and has been asserted repeatedly by the Supreme Court.) </p>\n\n<p>Note that the issue here is not about \"detaining\" somebody, which is obviously not a constitutional right. In the assumed scenario — a peaceful protest — you are free to leave, but not through the assembly.</p>\n\n<p>In the case of conflicting legitimate interests (here: freedom of movement vs. first amendment) the weight of each interest must be considered. One issue is numbers: If one million protesters block one automobilist, the case seems clear, and vice versa. Another criterion is the values at stake. An assembly of soccer fans may not have the same standing as a political protest which is part of the democratic decision-making process.</p>\n\n<p>Like always different people may come to different ethical conclusions. Like always, the law tries to mediate these conflicts in a way that most people can live with. Typically the law cannot and, for reasons of flexibility and adaptability, does not want to enumerate all possible contingencies, so that in the end the courts must apply the vague legal standards to the concrete circumstances.</p>\n\n<p>Last not least allow me a remark about Germany, where I live: It is unlawful — not only unconstitutional, but violating immediately applicable law established by the <em>Grundgesetz</em> — to use grossly disproportionate violence in order to protect your rights. This is even true if it is the only available way to protect that right. If protecting your right would mean disproportionate harm to others, you have to forfeit it.</p>\n\n<p>The classical example is the boy stealing an apple who is shot dead by the tree owner. It was legal in the <em>Weimarer Republik</em> but is no longer legal in the <em>Bundesrepublik.</em> A brief discussion of this case in context can be found in <a href=\"http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1290&context=djcil\" rel=\"nofollow noreferrer\">this paper.</a>, nominal p. 293.</p>\n\n<p>The case is not as clear-cut in the U.S. where this proportionality principle has not been formally established (even though it is often being applied as part of common judicial reasoning on a case-by case basis).</p>\n",
"score": 3
}
] |
[
"united-states",
"travel"
] |
Selling Reading Guides For Novels
| 0 |
https://law.stackexchange.com/questions/88940/selling-reading-guides-for-novels
|
CC BY-SA 4.0
|
<p>Can I create and sell reading guides for novels on teacher resource sites such as Teacher Pay Teacher without getting into copyright issues. I would, of course credit, the author for all of the book content, and wouldn’t include any images or large chunks of text. Maybe a cited sentence here or there at most. I would really just be selling the questions I write based on the novel in the organizational structure I create. I wouldn't be adding to or building off of their work, just providing questions teachers could use with the book. (They would still need a copy of the book to use the guide.)</p>
| 88,940 |
[
{
"answer_id": 88941,
"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<h2>Copyrighted Works</h2>\n<p>If a work is protected by copyright, creating a work with comments on, analyzes, or criticizes it is, under US law, usually a <em><strong>fair use</strong></em> of the source work. If the new work contains "excessive" quotation, then it may be held not to be fair use. The usual "reading guide" is a fair use of the book it is about. But what is and is not fair use is very fact-dependent, and is ultimately determined on a case-by-case basis.</p>\n<p>Crediting the author for quotes can help the case for fair use somewhat, but it does not automatically decide then issue.</p>\n<p>If the guide could be used as a substitute for then original novel, that would weigh against fair use rather strongly.</p>\n<p>If the guide is a fair use, selling it would not normally change that.</p>\n<p>Note, "fair use" is a specifically US legal concept. The issue would be covered by other legal concepts in other countries, but a similar result would often occur.</p>\n<h2>Trademark issues</h2>\n<p>Use of the title or the names of characters would not infringe any trademarks on those, if they were trademarked, provided it is made clear that the guide ism not authorized, sponsored or approved by the author or publisher of the novel. Titles and names are never protected by copyright.</p>\n<h2>Public Domain Works</h2>\n<p>If the novel is in the public domain, whether because the copyright has expired, or for any other reason, anyone may use as much of it as s/he pleases, because there is no copyright. In that case one could freely quote half then novel if one choose to, legally. Whether that would make a good guide is another question.</p>\n",
"score": 2
}
] |
[
"copyright",
"fair-use",
"public-domain",
"publishing"
] |
Nokia G10 Android kernel source code availability and GPL request procedure
| -1 |
https://law.stackexchange.com/questions/88935/nokia-g10-android-kernel-source-code-availability-and-gpl-request-procedure
|
CC BY-SA 4.0
|
<p>I'm thinking about doing a LineageOS port for the Nokia G10. One part of doing the port is getting access to the Android kernel sources. Since the Android kernel is <a href="https://www.gnu.org/licenses/old-licenses/gpl-2.0.html" rel="nofollow noreferrer">GPL 2</a>, HMD - the company behind the Nokia phone - is obligated to release it. So far I have not found the sources anywhere.</p>
<p>Because I have not found the sources, I have contacted the support. The first contact with the first level support by email showed that this topic is unknown. I have looked into my phone again and found in the device's "about section" the statement:</p>
<blockquote>
<p>This product includes open source software that is included under the GPL ... Please send a written request to:
Source Code Requests, Legal Department, HMD Global Oy, Bertel Jungin aukio, 02600 Espoo, Finland. ...</p>
</blockquote>
<p>Has someone experience with the process? Providing a postal address seems to me an indication that any request is actually unwanted. It seems that the goal is to make it as hard as possible when a link would be sufficient.</p>
<p>The GPL states:</p>
<blockquote>
<p>The source must be provided as machine-readable source code.</p>
</blockquote>
<p>What should I expect here? E.g. would it be still acceptable to receive a CD (for which I have no reader anymore) or some magnetic tape (which I also cannot read)?</p>
<p>What quality can I expect from the source code? The GPL states:</p>
<blockquote>
<p>complete source code means all the source code for all modules it contains, plus any associated interface definition files, plus the scripts used to control compilation and installation of the executable.</p>
</blockquote>
<p>Will it be an accessible compatible format or what are the options to obfuscate it? Or is my concern not reasoned?</p>
<p>How much can it cost? The GPL states:</p>
<blockquote>
<p>for a charge no more than your cost of physically performing source distribution</p>
</blockquote>
<p>I would assume it is the physical media what is meant here. Can it be more? What are the limits?</p>
<p>The GPL does not define a maximum expected time until the request must be fulfilled. Will I have to wait for months?</p>
<p>What other institutions could assist me, if my request is ignored?</p>
<p>I'm based in Germany and HMD is in Finland. I'm mentioning this, if the place of the legislation matters. Some legislation might have wrong-headed interpretations about the GPL validity and the rights of software users.</p>
| 88,935 |
[
{
"answer_id": 88939,
"body": "<p>In a comment you ask</p>\n<blockquote>\n<p>How can I assure that my written request is not getting accidently "lost" and I will receive an answer?</p>\n</blockquote>\n<p>Send the request by registered mail with proof of delivery.</p>\n<blockquote>\n<p>The GPL states:</p>\n<blockquote>\n<p>The source must be provided as machine-readable source code.</p>\n</blockquote>\n<p>What should I expect here? E.g. would it be still acceptable to receive a CD (for which I have no reader anymore) or some magnetic tape (which I also cannot read)?</p>\n</blockquote>\n<p>Who knows? The only way to find out is to send a request and see how they respond. If you are not satisfied with their response, you can consider hiring a lawyer and taking them to court.</p>\n<p>I note that "machine readable" passports are so called because they are designed to be read by an optical scanner. If they are serious about making it difficult to reuse their source code, it is entirely possible that they will send you a printed listing on the argument that it can be read with a scanner.</p>\n",
"score": 1
}
] |
[
"gpl"
] |
Why are there 23 members of the grand jury?
| 13 |
https://law.stackexchange.com/questions/88870/why-are-there-23-members-of-the-grand-jury
|
CC BY-SA 4.0
|
<p>I know that a petit (trial) jury in a criminal case requires 12 jurors and I understand why the number 12 was chosen. But why does our U S Constitution, which is modeled after the Magna Carta, require 23 members of the grand jury when the Magna Carta only required 12 members of a grand jury?</p>
<p>Why was the number of members of the grand jury set at 23 instead of 12 by the framers of the Constitution?</p>
| 88,870 |
[
{
"answer_id": 88897,
"body": "<p>I completely agree with <a href=\"https://law.stackexchange.com/a/88871/9517\">Jen's answer</a> and I am writing here to discuss some deeper historical dimensions to the question.</p>\n<p><a href=\"https://www.sanmateocourt.org/court_divisions/grand_jury/history.php\" rel=\"noreferrer\">Historically</a>, notion of using a 23 member grand jury dates to the reign of King Edward III whose reign started in the year 1368 in England.</p>\n<p>It is not derived from the 23 members of the Lesser Sanhedrins in ancient Israel. The grand jury was changed from having 12 members to having 23 members at least seventy-eight years after King Edward I <a href=\"https://en.wikipedia.org/wiki/Edict_of_Expulsion\" rel=\"noreferrer\">expelled all Jews from England</a> in the year 1290, at a time when the expulsion of Jews from England was still in effect.</p>\n<blockquote>\n<p>The Grand Jury can also be traced to the time of the Norman conquest\nof England in 1066. There is evidence that the courts of that time\nsummoned a body of sworn neighbors to present crimes that had come to\ntheir knowledge. Since the members of that accusing jury were selected\nfrom small jurisdictions, it was natural that they could present\naccusations based on their personal knowledge.</p>\n<p>Historians agree that the Assize [court session or assembly] of\nClarendon in 1166 provided the ground work for our present Grand Jury\nsystem. During the reign of Henry II (1154-1189), to regain for the\ncrown the powers usurped by Thomas Becket, Chancellor of England, 12\n"good and lawful men" in each village were assembled to reveal the\nnames of those suspected of crimes. It was during this same period\nthat juries were divided into two types, civil and criminal, with the\ndevelopment of each influencing the other.</p>\n<p>The oath taken by these jurors provided that they would carry out\ntheir duties faithfully, that they would aggrieve no one through\nenmity nor deference to anyone through love, and that they would\nconceal those things that they had heard.</p>\n<p>By the year 1290, these accusing juries were given the authority to\ninquire into the maintenance of bridges and highways, defects of\njails, and whether the Sheriff had kept in jail anyone who should have\nbeen brought before the justices. "Le Grand Inquest" evolved during\nthe reign of Edward III (1368), when the "accusatory jury" was\nincreased in number from 12 to 23, with a majority vote necessary to\nindict anyone accused of crime.</p>\n</blockquote>\n<p>A grand jury is an <em>ex parte</em> proceeding run by a prosecutor in secret with only the most minimal judicial involvement. Counsel for the suspects can represent the suspects as witnesses if they are called to testify before the grand jury, but cannot make arguments on applying the law to the facts or legal arguments to a grand jury.</p>\n<p>To indict, <a href=\"https://www.justice.gov/usao/justice-101/charging\" rel=\"noreferrer\">twelve members of a grand jury must vote to indict</a> (no matter how many members the grand jury has), and a majority of the grand jury must support the indictment (which is why 23 grand jurors is the upper limit). So, for example, in a federal grand jury with 16 members, three quarters of them must vote in favor of doing so to indict a suspect.</p>\n<p>The increase in the size of the grand jury from twelve to twenty-three made it easier to indict criminal defendants by relaxing the unanimity requirement for an indictment that had existed when there were only twelve jurors on a grand jury.</p>\n<p>The grand jury is supposed to vote to indict if it finds that there is probable cause to find that a defendant committed a crime under the law explained to it by the prosecutor and the evidence that is presented to it by the prosecutor. One grand jury's refusal to indict a suspect does not preclude a prosecutor from presenting the same charges against the same suspect to a different grand jury later on.</p>\n<p>Federal grand juries almost always vote to indict. At the state level, indictment rates vary widely from one county to another, and from state to state.</p>\n<p>The grand jury requirement exists in the U.S. under state law mostly in states in the Eastern U.S., while most Western states allow grand juries to be convened but only do so in exceptional cases (usually for political reasons or as a secret means for prosecutors to gather evidence).</p>\n<blockquote>\n<p>In the early decades of the United States grand juries played a major\nrole in public matters. During that period counties followed the\ntraditional practice of requiring all decisions be made by at least\ntwelve of the grand jurors, (e.g., for a twenty-three-person grand\njury, twelve people would constitute a bare majority).</p>\n<p>Any citizen could bring a matter before a grand jury directly, from a\npublic work that needed repair, to the delinquent conduct of a public\nofficial, to a complaint of a crime, and grand juries could conduct\ntheir own investigations. In that era most criminal prosecutions were\nconducted by private parties, either a law enforcement officer, a\nlawyer hired by a crime victim or their family, or even by laymen. A\nlayman could bring a bill of indictment to the grand jury; if the\ngrand jury found there was sufficient evidence for a trial, that the\nact was a crime under law, and that the court had jurisdiction, it\nwould return the indictment to the complainant.</p>\n<p>The grand jury would then appoint the complaining party to exercise\nthe authority of an attorney general, that is, one having a general\npower of attorney to represent the state in the case. The grand jury\nserved to screen out incompetent or malicious prosecutions. The advent\nof official public prosecutors in the later decades of the 19th\ncentury largely displaced private prosecutions.</p>\n</blockquote>\n<p>(<a href=\"https://en.wikipedia.org/wiki/Grand_juries_in_the_United_States\" rel=\"noreferrer\">Source</a>)</p>\n<p>Grand juries were popular in the Eastern states because in the Revolutionary War period and the period leading up to the Revolutionary War in the United States, grand juries were used as a tool of resistance to what was perceived as oppressive British rule by citizens of the American colonies.</p>\n<p>But, that fervor had faded and the difficulty of finding grand jurors on the frontier discouraged the use of this institution of people migrated to the west to form new states, and as the prosecution of crimes came to be the sole or predominant province of professional prosecutors employed by the state.</p>\n<p>In states that don't require grand jury indictments in all felony cases, an adversarial preliminary hearing before a judge to screen for probable cause is used in in lieu of a grand jury in some felony cases.</p>\n<p>The only country other than the United States which still uses grand juries is Liberia, which was founded by freed slaves from the U.S.</p>\n",
"score": 25
},
{
"answer_id": 88871,
"body": "<p>The Constitution does not require a 23-member grand jury; it does not specify a size:</p>\n<blockquote>\n<p>No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, ...</p>\n</blockquote>\n<p>If there is a constitutional minimum, it is not apparent from the text, and I am not familiar with any judicial pronouncement on this issue.</p>\n<p>The <a href=\"https://www.law.cornell.edu/rules/frcrmp/rule_6\" rel=\"noreferrer\">Federal Rules of Criminal Procedure</a> allow for grand juries of 16 to 23.</p>\n<p><a href=\"https://law.stackexchange.com/a/88897/46948\">ohwilleke's answer</a> presents a brief history of grand jury composition and explains why 23 makes practical sense.</p>\n<p>The United States Supreme Court has held that the grand jury requirement is not incorporated against the states: <em>Hurtado v. California</em>, <a href=\"https://tile.loc.gov/storage-services/service/ll/usrep/usrep110/usrep110516/usrep110516.pdf\" rel=\"noreferrer\">110 U.S. 516</a> (1884). Therefore, the procedure for indictment in state courts, including grand juries if they are used, is a matter of state law.</p>\n",
"score": 22
},
{
"answer_id": 88934,
"body": "<p>Here are a few minor historical details regarding juries. Although it was commonly thought that the Magna Carta guaranteed the right to trial, it did not. This is discussed extensively in <a href=\"https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1031&context=nclr\" rel=\"nofollow noreferrer\">an article</a>\nby Walter Clark (CJ, North Carolina Supreme Court). There are multiple versions of the <a href=\"https://en.wikipedia.org/wiki/Magna_Carta\" rel=\"nofollow noreferrer\">Magna Carta</a>, the <a href=\"https://www.nationalarchives.gov.uk/education/resources/magna-carta/british-library-magna-carta-1215-runnymede/\" rel=\"nofollow noreferrer\">first of which</a> (1215)\nhas clause (39)</p>\n<blockquote>\n<p>No free man shall be seized or imprisoned, or stripped of his rights\nor possessions, or outlawed or exiled, or deprived of his standing in\nany way, nor will we proceed with force against him, or send others to\ndo so, <em>except by the lawful judgment of his equals or by the law of\nthe land</em>.</p>\n</blockquote>\n<p>The <a href=\"https://www.nationalarchives.gov.uk/education/resources/magna-carta/magna-carta-1225-westminster/\" rel=\"nofollow noreferrer\">1225 version</a>, reissued by Edward I in 1297, restates this as (29)</p>\n<blockquote>\n<p>No free man shall in future be arrested or imprisoned or disseised of\nhis freehold, liberties or free customs, or outlawed or exiled or\nvictimised in any other way, neither will we attack him or send anyone\nto attack him, except by the lawful judgment of his peers or by the\nlaw of the land. To no one will we sell, to no one will we refuse or\ndelay right or justice.</p>\n</blockquote>\n<p>This is the Due Process clause, sort of.</p>\n<p>Before the Magna Carta, the <a href=\"http://www.law.harvard.edu/faculty/cdonahue/courses/ELH/mats/Mats4A_B.pdf\" rel=\"nofollow noreferrer\">Assize of Clarendon 1166</a>\nestablished a procedure for seizing those suspected of crimes:</p>\n<blockquote>\n<p>In the first place the aforesaid King Henry, on the advice of all his\nbarons, for the preservation of peace, and for the maintenance of\njustice, has decreed that inquiry shall be made throughout the several\ncounties and throughout the several hundreds through twelve of the\nmore lawful men of the hundred and through four of the more lawful men\nof each vill upon oath that they will speak the truth, whether there\nbe in their hundred or vill any man accused or notoriously suspect of\nbeing a robber or murderer or thief, or any who is a receiver of\nrobbers or murderers or thieves, since the lord king has been king.\nAnd let the justices inquire into this among themselves and the\nsheriffs among themselves.</p>\n</blockquote>\n<p>Subsequently, the “grand assize” (1179) (Magna Assisa, Assize of Windsor) – said to be the origin of the grand jury, created a method for resolving property disputes. The original text is lost, but is summarized in a contemporary work by <a href=\"http://www.law.harvard.edu/faculty/cdonahue/courses/lhsemelh/materials/Mats4B.pdf\" rel=\"nofollow noreferrer\">Rannulf Glanvill</a> (book 2).</p>\n<p><a href=\"https://www.jstor.org/stable/pdf/1321755.pdf\" rel=\"nofollow noreferrer\">This article</a> fills in more detail. There was a requirement under the Magna Assisa that 12 knights agree as to a dispute over property rights. The sheriff would summon 4 (local) knights who would choose twelve lawful knights who were most cognizant of the facts, there would be “voir dire” to determine if a knight knew the facts, until twelve were found who knew and agreed upon the facts. If the jurors could not all agree, others were added to the number, until twelve at least agreed in favor of one side or\nthe other. That is, there would be an increase in the size of the "jury" until the required number of agreements was found.\n23 is the number of jurors required to get 12 knights to agree.</p>\n",
"score": 2
}
] |
[
"united-states",
"grand-jury"
] |
Determining Fair Use of Images in an Online Encyclopedia
| 0 |
https://law.stackexchange.com/questions/84122/determining-fair-use-of-images-in-an-online-encyclopedia
|
CC BY-SA 4.0
|
<h2>Background</h2>
<p><a href="https://www.nolo.com/legal-encyclopedia/fair-use-the-four-factors.html" rel="nofollow noreferrer">Fair use hinges on four factors</a>, which are then <em>weighed</em> by judges:</p>
<ol>
<li><strong>Purpose and Character of the Use</strong></li>
<li><strong>Nature of the Copyrighted Work</strong></li>
<li><strong>Amount of Copyrighted Work Used</strong></li>
<li><strong>Effect of the Use on Potential Market for the Work</strong></li>
</ol>
<p>Fair use is also defined generally/vaguely, so it is to be determined on a case-by-case basis, where a judge and jury <em>weigh</em> these 4 factors to come to a determination on whether a use is considered a <em>fair</em> use.</p>
<p>For (1), Nolo says:</p>
<blockquote>
<p>Since copyright law favors encouraging scholarship, research, education, and commentary, a judge is more likely to make a determination of fair use if the defendant's use is noncommercial, educational, scientific, or historical. However, an educational or scientific use that is for commercial purposes may not be excused by the fair use doctrine.</p>
</blockquote>
<p>For (3), the amount of work in my case would be a full high resolution image.</p>
<p>For (2), a lot of the examples I have found are about fiction vs. non-fiction ("informational") works, which mostly applies to artwork and text, but not photography of things you would find in an encyclopedia (pictures of places, things, and people, for example).</p>
<p>For (4), the effect on the market of the work could be positive (if it is a generally good encyclopedia article) or negative.</p>
<p>All of these 4 factors should be weighed to determine if it is considered fair use to use the images.</p>
<h2>Question</h2>
<p>What are the key court cases and or factors to consider if you are making an online Encyclopedia or database of facts so to speak (like Wikipedia), where you have topics, and each topic might have several <strong>images</strong> to go along with custom articles describing or teaching about or analyzing the topic? The images can be CC of various kinds, or perhaps it is okay to use <em>any</em> image, even if it doesn't have a permissive license. Specifically I am looking for a list of the key examples regarding the combination of <em>education</em> (scientific, documentary, library, etc.) and <em>images</em>. Or if there aren't any related examples, if this situation could generically be assumed to be fair use.</p>
<p>The determining factors are, in my head, (a) are you trying to do a good thing, and (b) do you add anything to the equation? In terms of an Encyclopedia using arbitrary images published by various authors to the web, writing about the topic in which the image is used seems like it would count as fair use.</p>
<p>For example, say you were writing about the Origin of Tokyo, and used a modern high-res creative photograph of Tokyo taken by someone, such as <a href="https://www.history.com/news/six-things-you-should-know-about-tokyo" rel="nofollow noreferrer">this</a>:</p>
<p><a href="https://i.stack.imgur.com/xYbuz.jpg" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/xYbuz.jpg" alt="enter image description here" /></a></p>
<p>And you wrote about the <a href="https://en.wikipedia.org/wiki/History_of_Tokyo" rel="nofollow noreferrer">Origin of Tokyo</a> in your own words. Is that something which might be considered "fair use"?</p>
<ol>
<li>The purpose is for education and to push society forward, and the photograph is transformed in the sense that the image is now in the context of an educational article, with "commentary" or "analysis" not necessarily about the image itself, but the image weaves into the fabric of the article to impress new knowledge on the consumer in a unique way.</li>
<li>The copyrighted work is not fiction (although it is a creative angle of a non-fiction thing).</li>
<li>The whole original work is used (i.e. the "original" high-res photograph available on the web).</li>
<li>If anything, traffic will increase or stay the same to the original image.</li>
</ol>
<p>Also note, this is modeled after Wikipedia in the sense that it is a non-profit, doing this to spread free knowledge, but might rely on donations. If the donations count against it, in what way could you lower the risk so you can pretty much guarantee a fair use determination.</p>
| 84,122 |
[
{
"answer_id": 84130,
"body": "<p><a href=\"https://fairuse.stanford.edu/overview/fair-use/cases/#artwork_visual_arts_and_audiovisual_cases\" rel=\"nofollow noreferrer\">This repository</a> has a list of numerous fair use cases that would be relevant. You have listed the criteria that go into a fair use defense, then you would want to make the arguments for and against these factors (plus the fifth, transformativeness). In a hypothetical exercise, you also have to explicitly state the factual assumptions that will come up. For example, "educational" use is a continuum, and for-profit technically-educational exploitation is less likely to benefit from the educational use desideratum, compared to free and serious-research exploitation (graduate seminars).</p>\n<p>It is a mistake to try to reduce fair use to "does some good, and adds something". For example, if you willfully take a whole image for which permission can be reasonably obtained (upon payment of a nominal $10 fee), you are unlikely to benefit from a fair use analysis. We don't know how much the History Channel paid for the rights to that photo. Putting a copy of that image out there for anybody to take if they want does have an effect on market – it dilutes the sale value of the work to the copyright holder. A "balancing" analysis does not just go through a positive checklist to the effect that you can find some connection of the statutory factors, you also have to consider the arguments <em>against</em> fair use.</p>\n",
"score": 1
}
] |
[
"copyright",
"fair-use",
"photography"
] |
Are German Police allowed to ask about private contact information?
| 10 |
https://law.stackexchange.com/questions/59600/are-german-police-allowed-to-ask-about-private-contact-information
|
CC BY-SA 4.0
|
<p>This question is based on a story that happened a couple of days ago.</p>
<p>Two friends and I were walking outside. Right now, in Germany there are strict regulations about the number of persons and households that are allowed to meet together. So, as we were seen from a police car passing by, the car stopped and two officers went towards us.</p>
<p>One of us, a friend who didn't want any contact with the police, instantly ran away, which was seen by the officers. They didn't try to chase him. They then stopped us and started to ask questions about the friend who escaped. Seems like the fact of us gathering wasn't a problem at all, compared to the fact that one person escaped from them.</p>
<p>We told that we were just hanging around as friends, after which the officers asked if we could call our buddy and ask why he ran away and if he could get back. We told that his phone is dead, after which we should prove it to the police by calling him. After a failed call, police asked us to provide them the contact information, which we obviously had, because we tried to call him.</p>
<p>We were let go after police got our IDs but it just doesn't feel right that they tricked us to get the phone number of our friend who escaped. I understand that it was our own fault, that we responded to the question if we could call him, but could we just refuse to call him or answer any of their questions in that situation?</p>
<p>Were the officers even allowed to ask if we could call him or to ask us to show our phones to them, so they could get the contact information?</p>
| 59,600 |
[
{
"answer_id": 59601,
"body": "<p>From the German lawyer association ("Deutscher Anwaltverein") one can find the <a href=\"https://anwaltauskunft.de/magazin/gesellschaft/strafrecht-polizei/was-darf-die-polizei-bei-einer-personenkontrolle?full=1\" rel=\"noreferrer\">following</a> (Google-translation):</p>\n<blockquote>\n<p>In the case of a purely preventive identity check, the officers are initially only allowed to determine the identity of the respondent. This means that you can ask for your name, date and place of birth, home address and nationality and have your ID shown - by the way, as a German citizen you don't have to always have your ID with you.</p>\n</blockquote>\n<blockquote>\n<p>"You don't have to answer any questions beyond that," says lawyer Robert Hotstegs from the German Lawyers' Association (DAV). Of course, police officers often try to gather more information with emphatically casual questions. "Well, where do we come from" or: "And where are we going now?" Are typical examples. The police are not allowed to insist on an answer. Anyone who, as a respondent, is voluntarily too willing to provide information can harm themselves and possibly even give rise to concrete suspicions.</p>\n</blockquote>\n<p>So they are allowed to ask such things, but you don't need to answer everything.</p>\n<p>How to handle such situations, again according to the link above:</p>\n<blockquote>\n<p>“I recommend answering the survey as briefly and politely as possible. This has a de-escalating effect and helps to end the unpleasant situation as quickly as possible, ”says Attorney Hotstegs.</p>\n</blockquote>\n<blockquote>\n<p>However, you should always answer the questions about yourself. Because if the police cannot determine the identity of a person or only with great effort, they may take further measures to determine the identity. This includes taking it to the police station and, under certain circumstances, a search. Otherwise, these measures are not permitted without a specific reason.</p>\n</blockquote>\n",
"score": 12
}
] |
[
"police",
"germany"
] |
If I use a CC-BY background music track in my video on YouTube, is it enough to give credits in the video description or must credits be in the video?
| 0 |
https://law.stackexchange.com/questions/88926/if-i-use-a-cc-by-background-music-track-in-my-video-on-youtube-is-it-enough-to
|
CC BY-SA 4.0
|
<p>If I use a <a href="http://beta.ccmixter.org/licenses" rel="nofollow noreferrer">CC-BY background music track</a> in my video on YouTube, is it enough to give credits to the musicians in the video description or must credits be shown in the video?</p>
| 88,926 |
[
{
"answer_id": 88932,
"body": "<p>Section 3(a)(2) of the CC BY 4.0 license describes how to satisfy the attribution requirement:</p>\n<blockquote>\n<p>You may satisfy the conditions in Section 3(a)(1) in any reasonable manner based on the medium, means, and context in which You Share the Licensed Material. For example, it may be reasonable to satisfy the conditions by providing a URI or hyperlink to a resource that includes the required information.</p>\n</blockquote>\n<p>It is definitely reasonable to put hyperlinks to the original track into the YouTube video description, and it would be less reasonable to show a link in the video itself.</p>\n<p>However, a link to the original work is not the only attribution that may be required under CC BY 4.0. In particular, you may also want to identify the original track (e.g. by name), the artist's name, and that the track is CC licensed. It may very well be quite reasonable to show all of that in the video itself, for example with an overlay at the bottom of the screen when the music starts playing, or in the closing credits.</p>\n<p>My rule of thumb: wherever you assert your own authorship, you should also provide attribution for other's contributions that are part of your work.</p>\n<p>This principle was also codified in the earlier license version, CC BY 3.0 Section 4(b):</p>\n<blockquote>\n<p>The credit required by this Section 4 (b) may be implemented in any reasonable manner; provided, however, that in the case of a Adaptation or Collection, at a minimum such credit will appear, if a credit for all contributing authors of the Adaptation or Collection appears, then as part of these credits and in a manner at least as prominent as the credits for the other contributing authors.</p>\n</blockquote>\n",
"score": 1
}
] |
[
"licensing",
"music",
"creative-commons",
"youtube"
] |
What is the legality of webscraping reviews from Goodreads?
| 0 |
https://law.stackexchange.com/questions/88798/what-is-the-legality-of-webscraping-reviews-from-goodreads
|
CC BY-SA 4.0
|
<p>Suppose a developer creates a project which involves webscraping reviews. In particular, reviews from <a href="https://www.goodreads.com/" rel="nofollow noreferrer">Goodreads</a>.</p>
<p>When actually using this scraped data, the project displays a note that it is from Goodreads, e.g:</p>
<blockquote>
<p><strong>User_Name</strong> <em>Posted on Goodreads</em></p>
<p>Review Here</p>
</blockquote>
<p>The robots.txt file, in my understanding, outlines whether scraping is allowed, but I am not sure whether for Goodreads this is permissible.</p>
<p>I have been researching this, and I have not been able to find any real definitive answer, except don't violate GDPR or cause any damage to the website.</p>
| 88,798 |
[
{
"answer_id": 88809,
"body": "<h2>Copyright</h2>\n<p>User posts remain the copyright of the author and you can only use them if you have permission (which you don’t - see clause 4 of the <a href=\"https://www.goodreads.com/about/terms\" rel=\"nofollow noreferrer\">terms</a>) or if your use is fair use or fair dealing depending on where you are. See <a href=\"https://law.stackexchange.com/questions/48359/what-is-the-practical-difference-between-fair-use-and-fair-dealing-in-copyri/48380#48380\">What is the practical difference between "fair use" and "fair dealing" in Copyright law?</a> - it might be, you haven’t given us enough information on what you plan to do with it to tell.</p>\n<h2>Privacy</h2>\n<p>Privacy law vary around the world but based on the EU’s GDPR, both the user name and the review are personal information (since they can be linked to an individual) and you must have a lawful basis for collecting the data or it must be for purely personal or household use.</p>\n<p>If you are doing it for personal study as part of a recognised course, that meets the copyright fair dealing test. If you are doing it for practice and won’t submit it to someone who is covered by the GDPR, like your school, that covers the privacy issue. Once you choose to submit it, you are now no longer in “purely personal or household use” and you must have a lawful basis and go through all the hoops of the GDPR (as must your school when you give them the data).</p>\n",
"score": 2
},
{
"answer_id": 88802,
"body": "<p>They post <a href=\"https://www.goodreads.com/about/terms\" rel=\"nofollow noreferrer\">GoodReads Terms</a></p>\n<blockquote>\n<p><strong>4. Our Proprietary Rights</strong></p>\n</blockquote>\n<blockquote>\n<p>Except for your User Content, the Service and all materials therein or transferred thereby, including, without\nlimitation, software, images, text, graphics, illustrations, logos,\npatents, trademarks, service marks, copyrights, photographs, audio,\nvideos, music, and User Content (the "Goodreads Content"), and all\nintellectual property Rights related thereto, are the exclusive\nproperty of Goodreads and its licensors. Except as explicitly provided\nherein, nothing in this Agreement shall be deemed to create a license\nin or under any such intellectual property Rights, and you agree not\nto sell, license, rent, modify, distribute, <strong>copy</strong>, reproduce, transmit,\npublicly display, publicly perform, publish, adapt, edit or create\nderivative works from any materials or content accessible on the\nService. Use of the Goodreads Content or materials on the Service for\nany purpose not expressly permitted by this Agreement is strictly\nprohibited.</p>\n</blockquote>\n<p>So your "scraping" is clearly in the "copy" category and is prohibited under the terms their service is licensed to you.</p>\n<p>If this is a school project you might consider contacting them and getting permission to do what you plan. Otherwise you could just continue on and take the risk that they will discover what you are doing.</p>\n",
"score": 1
}
] |
[
"copyright",
"internet"
] |
Denial of a motion to compel arbitration
| 0 |
https://law.stackexchange.com/questions/88887/denial-of-a-motion-to-compel-arbitration
|
CC BY-SA 4.0
|
<p>When a motion to compel arbitration is denied in a lower court and the defendant files an appeal, does that automatically stay proceedings in the lower court?</p>
<p>Since the rules and laws can vary from one court to another, the question is in relation to Special Civil Part (eviction) in NJ.</p>
<p>Based on my understanding, if the defendants can prove significant harm if the case proceeds in the lower courts before it has a chance to be reviewed in the Appellate Division it would cause a stay to proceedings.</p>
<p>Would an eviction be considered significant harm?</p>
| 88,887 |
[
{
"answer_id": 88929,
"body": "<p>According to the <a href=\"https://www.njcourts.gov/sites/default/files/forms/appellateprocess.html#civil\" rel=\"nofollow noreferrer\">Appellate Process</a> on NJCourts.gov:</p>\n<blockquote>\n<p>The filing of a notice of appeal does not automatically stay the\njudgment, order or decision that you are appealing. To secure a stay\npending appeal, you should move before the trial court or agency for\nthat stay. If it is denied, you may repeat the motion to the Appellate\nDivision.</p>\n</blockquote>\n<p>So apparently the answer to the question is that it is up to the discretion of the Judge in the lower courts whether to grant or deny a stay after an appeal is filed.</p>\n",
"score": 2
}
] |
[
"united-states",
"civil-procedure",
"new-jersey",
"appeal",
"motion"
] |
How do I find out if I still have citizenship in a country (Romania)?
| 0 |
https://law.stackexchange.com/questions/88927/how-do-i-find-out-if-i-still-have-citizenship-in-a-country-romania
|
CC BY-SA 4.0
|
<p>I was born in another country (Romania) and moved to the US but I haven't been back in a while and out of curiosity I wanted to know if I still have citizenship.</p>
<p>I found a website (<a href="https://romaniancitizenship.ro/services/proof-romanian-citizenship/" rel="nofollow noreferrer">https://romaniancitizenship.ro/services/proof-romanian-citizenship/</a>) but really can't tell if it's an official website or not.</p>
<p>Is there any more official way to check or a way to tell whether the site is real?</p>
| 88,927 |
[
{
"answer_id": 88928,
"body": "<p>If you simply moved to the US, nothing more, then nothing would have disturbed your Romanian citizenship. Even if you became a US citizen and officially renounced your Romanian citizenship, under the Romanian constitution Art 5(2) "Romanian citizenship cannot be withdrawn if acquired by birth". It's yours for life.</p>\n",
"score": 4
}
] |
[
"citizenship",
"romania"
] |
Can I trick an innocent third party into doing something that would be illegal if the third party had mens rea without either of us being guilty?
| 26 |
https://law.stackexchange.com/questions/88803/can-i-trick-an-innocent-third-party-into-doing-something-that-would-be-illegal-i
|
CC BY-SA 4.0
|
<p>Lets say I want something to happen but doing it directly would be a crime. This is one crime that requires intent or mens rea.</p>
<p>So I hunt down an innocent third party, someone naïve, perhaps even a child, and I tell them they should go do some action X. I convince them it's a good thing to do and no harm will come, basically ensure they aren't guilty of the intent <em>I</em> have when I trick them into doing something.</p>
<p>Would using a naïve third party allow both the third party and me to get away with the action, since the person doing it lacks mens rea and the law doesn't explicitly make tricking someone else a crime? Or am I still considered to have committed the crime despite using a third party as an intermediary?</p>
<p>I'll accept answers for any common law location, though I'm mildly more interested in USA.</p>
| 88,803 |
[
{
"answer_id": 88814,
"body": "<p>It depends on the jurisdiction, but generally speaking, this will not permit you to evade criminal responsibility.</p>\n<p>In Ohio, for instance, the <a href=\"https://codes.ohio.gov/ohio-revised-code/section-2923.03\" rel=\"noreferrer\">complicity</a> statute treats the conduct you're describing as equivalent to soliciting another to commit an offense or to aiding and abetting another in committing an offense:</p>\n<blockquote>\n<p>No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:</p>\n<p>(1) Solicit or procure another to commit the offense;</p>\n<p>(2) Aid or abet another in committing the offense;</p>\n<p>(3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code;</p>\n<p><strong>(4) Cause an innocent or irresponsible person to commit the offense.</strong></p>\n</blockquote>\n<p>The penalty for complicity is the same as for the underlying offense, so you don't really get any kind of break for running your offense through an innocent party; you just get a pissed off witness who can testify against you.</p>\n",
"score": 35
},
{
"answer_id": 88805,
"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<h3>General intent is usually enough</h3>\n<p>I believe you are largely conflating motive and intent (see generally <em>R. v. Hibbert</em>, <a href=\"https://canlii.ca/t/1frjf#par24\" rel=\"noreferrer\">[1995] 2 S.C.R. 973, para. 24</a>; <em>The Queen v. George</em>, <a href=\"https://www.canlii.org/en/ca/scc/doc/1960/1960canlii45/1960canlii45.pdf#page=7\" rel=\"noreferrer\">[1960] S.C.R. 871, p. 877</a>). For most crimes, there is no need to intend a particular outcome or to have a specific reason for doing the <em>actus reus</em>.</p>\n<p>Take assault, for example (<em>Criminal Code</em>, <a href=\"https://laws-lois.justice.gc.ca/eng/acts/c-46/section-265.html\" rel=\"noreferrer\">s. 265</a>). The <em>mens rea</em> for the simplest variant of this crime is <em>intention</em>: intention to apply force to another person.</p>\n<p>If you convince another person to apply force to another person, they will still have intentionally applied force to another person. That means they will have had the <em>mens rea</em> for assault. It is no defence for them that you told them to apply the force or told them that it was okay.</p>\n<h3>Party liability</h3>\n<p>You would also be guilty as a party to that offence, via <em>counselling</em> (<a href=\"https://laws-lois.justice.gc.ca/eng/acts/c-46/page-3.html\" rel=\"noreferrer\">s. 22 of the <em>Criminal Code</em></a>).</p>\n<h3>Some crimes <em>do</em> require specific (ulterior) intent or knowledge of certain facts</h3>\n<p>Some crimes are defined in a way where knowledge and specific intent <em>does</em> matter. <a href=\"https://laws-lois.justice.gc.ca/eng/acts/c-46/section-366.html\" rel=\"noreferrer\"><em>Forgery</em></a> for example, requires that the accused "makes a false document, knowing it to be false, with intent... that it should in any way be used or acted on as genuine."</p>\n<p>If you merely direct someone to make a false document, they will not have the required <em>mens rea</em>. However, <em>you</em> could still have committed an offence by making a forged document via the third party. There is also the standalone offence of using or possessing or trafficking a forged document (which also has a knowledge requirement).</p>\n",
"score": 12
},
{
"answer_id": 88920,
"body": "<p>Most legislatures have been running for many centuries, so they've had plenty of time to fix any loopholes like the one you're looking for.</p>\n<p>Whilst your victim may be innocent because they act without intent, the mere fact that you intend some illegal act to occur and take <em>any</em> action upon that intent is enough to make you guilty of something.</p>\n<p>Exactly which crime you commit would depend on how you convince another person to act, but possibilities include commissioning (you tell the victim the truth), blackmail (you tell the victim "or else"), fraud (you tell the victim a lie), planning (you tell nobody, but trigger events in some other way), or conspiracy (you tell a 3rd party).</p>\n<p>(Some jurisdictions include "planning" as a version of "conspiracy", without requiring more than one person to be involved.)</p>\n<p>Or in many cases, the crime's relevant Act will provide directly for your actions being the primary cause. In some cases you could still be guilty even if the intended act didn't actually occur..</p>\n<p>If it came to a court case, the prosecutor would just throw the book at you, knowing that one of the alternative charges would stick (assuming they could prove their case).</p>\n",
"score": 1
}
] |
[
"common-law",
"any-jurisdiction",
"mens-rea"
] |
Do criminals really "have no recourse" if their ill-gotten property is stolen by a third party?
| 2 |
https://law.stackexchange.com/questions/80851/do-criminals-really-have-no-recourse-if-their-ill-gotten-property-is-stolen-by
|
CC BY-SA 4.0
|
<p>From the TV series Better Call Saul (S1E7 - Bingo) main character Jimmy McGill is involved in a case wherein a client of his, Craig Kettleman, stands accused of stealing 1.6 million dollars.</p>
<blockquote class="spoiler">
<p>A crime which the client truly did commit. Later, Jimmy orchestrates the theft of the money from their client's home and has it returned to the District Attorney. Jimmy blackmails his client saying that "criminals have no recourse" when it comes to theft.</p>
</blockquote>
<p>The money his client is accused of stealing was, itself, stolen from them. What can their client do in this circumstance?</p>
<p>Craig Kettleman is <i>accused</i> of stealing the money but has not been <i>convicted</i> of the crime. Because of these circumstances does that mean Craig would be able to inform the police of the theft without undue legal repercussions associated with announcing his possession of a suspicious amount of money?</p>
<p>Filing a police report would surely be unwise, but does would involving the police put Craig in as much legal jeopardy as threatened in the show?</p>
| 80,851 |
[
{
"answer_id": 80854,
"body": "<blockquote>\n<p>Do criminals really "have no recourse" if their ill-gotten property is\nstolen by a third party?</p>\n</blockquote>\n<p>Basically yes.</p>\n<p>At sentencing, they can argue that restitution or fines should be limited because the money was in turn stolen from them and they don't have it.</p>\n<p>For example, I once had a client who was the sole heir to the estate of someone who had a substantial amount of illegal drugs in their possession at the time of the decedent's death (worth perhaps $100,000 USD), but the illegal drugs were stolen after the death of the decedent by someone known to my client. There was no legal way for my client to gain possession that stolen property or its worth.</p>\n",
"score": 5
},
{
"answer_id": 80863,
"body": "<p>Apply some logic: an item you steal isn't legally yours so if it is then stolen from you you still have no right to it.</p>\n<p>Where it gets tricky is if you say steal a million dollar worth of jewelry, pawn it for a quarter million in cash, buy a Ferrari with that cash, and then the Ferrari gets stolen.</p>\n<p>That'd depend on jurisdiction I guess. If the money used on the Ferrari can be traced back to the jewelry theft it may well be impounded and auctioned off if recovered to provide partial compensation to the original owner of the jewelry (or more likely their insurance company who by now will have paid out).\nThat's most likely what would happen here.\nBut it'd happen because property of the criminal gets impounded under criminal asset forfeiture, not as part of getting the criminal his car back.</p>\n",
"score": 3
},
{
"answer_id": 80861,
"body": "<p>The idea that "criminals have no recourse when it comes to theft." is at best overstated.</p>\n<p>Yes, if the authorities know that something is stolen, they won't return it to the thief, but rather to the original owner (if they know who that is). Yes, by reporting a theft, a thief could draw unwelcome attention from law enforcement. But if the first theft is not known, neither of those applies.</p>\n<h2>Example</h2>\n<p>Let's say that Bob has a cache of money, which he got through unlawful activity, loansharking, for example. Now George steals this from, Bob. Bob does not report this to the police, for fear they would discover proof of his loansharking -- they already suspect him. Now let's say that Mark steals this same money from George. Can George safely report this theft? It depends. The police don't know that the money was stolen, because Bob didn't report the theft. The police may ask George where the money came from. Obviously, George won't say "I stole it." But suppose George says "It is the cash earnings from my tavern, "Bar None". If the police believe this, or at least can't disprove it, they will not be able to seize the money (if they can find it) and will eventually have to return it to George, <strong>if</strong> they can recover it from Mark. So, in a case like this. George does have some practical recourse. Of course now George may well have to pay taxes on the money.</p>\n<h2>Conclusion</h2>\n<p>If the thief thinks that the theft is not known to the authorities, and that the second theft can be reported without disclosing the first theft, the thief may choose to report it. If the thief is correct, there will have been effective recourse.</p>\n<p>In strict legality, a thief is not entitled to any recourse, because a thief does not acquire valid title to what s/he steals. But the thief does not care about what is legal (s/he is a <strong>thief</strong>, after all). If a thief can abuse the system to get the stolen goods back from the second thief, so much the better, from the thief's point-of-view.</p>\n<p>So it all depends on the details -- as so many things do.</p>\n",
"score": 2
}
] |
[
"theft",
"law-in-fiction"
] |
three person contract mutual obligations
| 3 |
https://law.stackexchange.com/questions/88889/three-person-contract-mutual-obligations
|
CC BY-SA 4.0
|
<p>From my understanding of the contract law, I know that in a two person contract, there has to be a form of exchange, e.g. a promise of a future payment for a service being done.</p>
<p>If three people (A,B,C) sign a three person contract</p>
<ol>
<li>does every of them have to provide something to both remaining two?</li>
</ol>
<p>or</p>
<ol start="2">
<li>does every of them have to provide something to at least one from the remaining two?</li>
</ol>
<p>or</p>
<ol start="3">
<li>does every of them have to provide something to exactly one from the remaining two?</li>
</ol>
<p>or</p>
<ol start="4">
<li>does every of them have to provide something to at least zero from the remaining two?</li>
</ol>
<p>related: <a href="https://law.stackexchange.com/questions/88698/one-person-contract">one person contract - thread in law stack exchange</a></p>
<p>Thank you.</p>
| 88,889 |
[
{
"answer_id": 88925,
"body": "<h2>Each party must provide <a href=\"https://www.australiancontractlaw.info/law/consideration\" rel=\"nofollow noreferrer\">consideration</a></h2>\n<p>Who they provide it to is irrelevant - it might be one or more of the other parties or it could be someone not involved in the contract. For example, if you agree to pay me to fix your brother’s car then my consideration is flowing from me to your brother, not to you, but this is still a valid contract.</p>\n",
"score": 2
}
] |
[
"contract-law"
] |
Can a State exploit the 11th Amendment to bypass Diversity jurisdiction?
| 0 |
https://law.stackexchange.com/questions/88907/can-a-state-exploit-the-11th-amendment-to-bypass-diversity-jurisdiction
|
CC BY-SA 4.0
|
<p>It seems that the <a href="https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/diversity-jurisdiction-overview" rel="nofollow noreferrer">Diversity Clause</a> of the US Constitution, which give jurisdiction to federal courts to hear cases between citizens of different States, was included by Framers to avoid a State court to favor its own citizens during a case.</p>
<p>Before developing how I think that States could bypass this clause, I'd say that nowadays this may be less useful that in the past, because since <a href="https://en.wikipedia.org/wiki/Erie_Railroad_Co._v._Tompkins" rel="nofollow noreferrer">Erie Railroad Co. v. Tompkins</a> (1938) even federal courts must apply state law when no federal question is involved in a case.</p>
<p>However, if a State would like for any reason to take civil suits between its citizens and citizens of another state in its own courts, I think it could use criminal law to do so.</p>
<p>Diversity jurisdiction only applies in civil cases, that I only define as cases arising between private parties, contrasting to criminal cases which oppose an offensor to the State, in violation of criminal law. However, this distinction between civil and criminal may be distorted in any way the statute law wants, such that something arising in fact between parties would rather being considered in law as a crime, and thus not be considered a civil case between citizens, but between a citizen and a State, as a criminal case.</p>
<p>Since the <a href="https://en.wikipedia.org/wiki/Eleventh_Amendment_to_the_United_States_Constitution" rel="nofollow noreferrer">Eleventh Amendment</a>, it is explicit that cases arising between a State and citizen of another state cannot be handled in a federal court, which means that something that would fall under diversity jurisdiction could, if determined by the State as a criminal offense, instead be handled in its own courts. Then the State may collect fines for the original plaintiff (which here becomes the complainant), and it has avoided diversity jurisdiction.</p>
<p>My question is, could the US Supreme Court declare this kind of state law, which would have the goal to resolve an informally civil suit under a criminal case to avoid diversity jurisdiction as a violation of the US Constitution ? I am not aware of any SCOTUS decision which would restrict what could be considered civil or criminal case under state law.</p>
| 88,907 |
[
{
"answer_id": 88924,
"body": "<blockquote>\n<p>Since the Eleventh Amendment, it is explicit that cases arising between a State and citizen of another state cannot be handled in a federal court, ...</p>\n</blockquote>\n<p>This is not correct. What the 11th amendment actually says is that:</p>\n<blockquote>\n<p>The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.</p>\n</blockquote>\n<p>That means that if a person from state A directly sues state B, that suit cannot be heard in Federal court. But if state B sues a person from state A, <strong>that</strong> suit <strong>can</strong> be herd in Federal court, and probably will be.</p>\n<p>The amendment arose in part because of <a href=\"https://en.wikipedia.org/wiki/Chisholm_v._Georgia\" rel=\"nofollow noreferrer\"><em>Chisholm v. Georgia</em>, 2 U.S. (2 Dall.) 419 (1793),</a> in which A suit against the State of Georgia for an unpaid debt dating from the Revolutionary War was brought in he US Supreme Court by Alexander Chisholm, acting as executor of the Estate of Robert Farquhar. Both Chisholm and Farquhar were residents of South Carolina. The Court, voting 4-1, found for the plaintiff. This decision was overturned, as far as future cases went, by the 11th amendment.</p>\n<p>In <a href=\"https://en.wikipedia.org/wiki/Cohens_v._Virginia\" rel=\"nofollow noreferrer\"><em>Cohens v. Virginia</em>, 19 U.S. (6 Wheat.) 264 (1821),</a> the Supreme Court ruled that the amendment did not bar an appeal of a state criminal court conviction from being heard ion a Federal court, when issues of Federal law were relevant.</p>\n<p>In <a href=\"https://en.wikipedia.org/wiki/Hans_v._Louisiana\" rel=\"nofollow noreferrer\"><em>Hans v. Louisiana</em>, 134 U.S. 1 (1890)</a> the amendment was interpreted more broadly, and was held to prohibit suits by an individual even against that state ofm which that person was a citizen. This was confirmed in <a href=\"https://en.wikipedia.org/wiki/Alden_v._Maine\" rel=\"nofollow noreferrer\"><em>Alden v. Maine</em>, 527 U.S. 706 (1999)</a>, in which state employees alleged violations of the overtime provisions laid out in the federal Fair Labor Standards Act (FLSA). The court held that such suits were not allowed, and that Congress had no power to waive state immunity in general, but that congress did have power to waive state immunity to enforce the guarantees, particularly the due process guarantee, of the 14th amendment. Specifically, it held:</p>\n<blockquote>\n<p>in adopting the Fourteenth Amendment, the people required the States to surrender a portion of the sovereignty that had been preserved.... Congress may authorize private suits against nonconsenting States pursuant to its §5 enforcement power... When Congress enacts appropriate legislation to enforce this Amendment, see <em>City of Boerne v. Flores</em>, 521 U.S. 507 (1997), federal interests are paramount.</p>\n</blockquote>\n<p>This ruling was later restricted by <a href=\"https://en.wikipedia.org/wiki/Central_Virginia_Community_College_v._Katz\" rel=\"nofollow noreferrer\"><em>Central Virginia Community College v. Katz</em>, 546 U.S. 356 (2006)</a>, in which the court held that the Bankruptcy clause of the constitution allowed federal bankruptcy law to authorize suits against states.</p>\n<p>However, suits against state officials, which are not in name suits against the state, but have the effect of restricting state action, are allowed in Federal courts. In particular, requests for injunctions against state officials seeking to halt ongoing violations of Federal law, or to prevent clearly threatened future violations, are allowed.</p>\n<p>Note that the existence of diversity jurisdiction <strong>permits</strong> cases to be heard in a Federal court, but it does not bar such cases from state courts. If an out-of-state defendant wishes, s/he may petition for removal of the case to a Federal court. An out-of-state plaintiff may bring the case in Federal court in the first place, but may chose to bring it in state court instead.</p>\n<p>A state can pass laws making certain conduct a crime, and in proper cases apply those laws to out-of-state defendants. But that woulds not replace or eliminate a civil cause of action based on the same events. Moreover, in such a case the state would have to prove the conduct beyond a reasonable doubt, rather than the preponderance of the evidence standard normal in civil cases. All the special rights and protections of criminal defendants would apply. The state would have to assume the financial burden of bringing and prosecuting such a suit, costs which would normally be borne by the plaintiff. All this would make such laws, designed to restrict the use of diversity jurisdiction, unlikely.</p>\n<p>The US Supreme Court cannot prevent a state from applying its criminal laws against a non-resident of the state. But it can and does enforce against the state the guarantees of the fourteenth amendment, and the various other rights that have been incorporated into the 14th against the states. A prosecution such as is described in the question might run afoul of some of these rights, particularly the right to Equal Protection of the laws. That would depend on exactly what was being prohibited by the state, and whether the law also applied to state residents. A law that applied only to non-residents might well be held to be a violation of the Equal Pprotection Clause of the 14th.</p>\n",
"score": 1
}
] |
[
"constitutional-law"
] |
Can private text messages be considered defamation in Canada?
| -2 |
https://law.stackexchange.com/questions/88922/can-private-text-messages-be-considered-defamation-in-canada
|
CC BY-SA 4.0
|
<p>I've had long chats via text messages with a friend, where I accused other people of sexually assaulting me (which was true, but I have no way of proving it really...), and mocking other people with insults (opinionated remarks only). My friendship with this person has recently gone sour, and I'm worried that she is going to use these text messages to hurt me in some way. I read here that defamation can be a criminal offense:</p>
<p><a href="https://laws-lois.justice.gc.ca/eng/acts/c-46/section-298.html#:%7E:text=298%20(1)%20A%20defamatory%20libel,concerning%20whom%20it%20is%20published" rel="nofollow noreferrer">https://laws-lois.justice.gc.ca/eng/acts/c-46/section-298.html#:~:text=298%20(1)%20A%20defamatory%20libel,concerning%20whom%20it%20is%20published</a>.</p>
<p>It mentions "published", but I don't know if private text messages are considered something that is "published"?</p>
<p>Can I go to jail for any of this? Or be sued if she passes it to them?</p>
| 88,922 |
[
{
"answer_id": 88923,
"body": "<p>§299 says that</p>\n<p>A person publishes a libel when he</p>\n<blockquote>\n<p>(a) exhibits it in public;</p>\n<p>(b) causes it to be read or seen; or</p>\n<p>(c) shows or delivers it, or causes it to be shown or delivered, with\nintent that it should be read or seen by any person other than the\nperson whom it defames.</p>\n</blockquote>\n<p>Publish does not mean just "get printed in a newspaper of general circulation", it includes "writing in a text message to a third person", i.e. a person other than the one whom you defame.</p>\n",
"score": 2
}
] |
[
"defamation",
"libel",
"slander"
] |
Could open source software illegally provide legal advice?
| 6 |
https://law.stackexchange.com/questions/88914/could-open-source-software-illegally-provide-legal-advice
|
CC BY-SA 4.0
|
<p>There is <a href="https://donotpay.com/" rel="noreferrer">a company called DoNotPay</a>. It bills itself as "The World's First Robot Lawyer", and at least <a href="https://www.techdirt.com/2023/01/24/the-worlds-first-robot-lawyer-isnt-a-lawyer-and-im-not-sure-its-even-a-robot/" rel="noreferrer">in January was providing services</a> such as "Defamation Demand Letter", "Divorce Settlement Agreement", and "Sue Anyone in Small Claims Court", and had <a href="https://abovethelaw.com/2023/01/1-million-on-the-table-to-let-ai-lawyer-bot-argue-supreme-court-case/" rel="noreferrer">an offer of $1,000,000 if anyone let the AI argue a case in the US Supreme Court</a>. <a href="https://www.businessinsider.com/donotpay-ceo-says-risks-jail-ai-robot-lawyer-used-court-2023-1" rel="noreferrer">After a certain amount of publicity the CEO has said</a> they will back off and focus on consumer rights (arguing with customer service as I understand it).</p>
<p>While this certainly does not show that AI can produce useful legal advice, it does seem to show that it is possible for a computer to produce something that would be considered legal advice under the US standard requiring a licenced legal profesional, such that a company providing such for a fee could be charged.</p>
<p>Suppose that the founder and author of the code had, rather than founding a company to provide this as a paid service, instead released the code under an open source licence such as the GPL and made it available publically, would there be a risk of prosecution for anyone? If there was a bit of computer code that performed something that would undoubtedly be legal advice if performed by a human, and individuals could get this code, run it on their own machines and take action in response, would there be anyone who could be legally liable for unlicensed practice of law?</p>
| 88,914 |
[
{
"answer_id": 88917,
"body": "<p>Many products can be used for illegal purposes, so selling something that could be used for illegal purposes won't generally result in liability for the producer. Think of software used for computer system and network security testing; it's both useful for legitimate testing and securing systems, but of course it can be used by hackers to find and exploit security holes. Clorox can be used to clean the bathroom or poison someone.</p>\n<p>If you look at the Terms of Service for <a href=\"https://donotpay.com/learn/terms-of-service-and-privacy-policy/\" rel=\"nofollow noreferrer\">https://donotpay.com/learn/terms-of-service-and-privacy-policy/</a> , you'll see</p>\n<blockquote>\n<p>DoNotPay is Not a Law Firm</p>\n<p>DoNotPay provides a platform for legal information and self-help. The\ninformation provided by DoNotPay along with the content on our website\nrelated to legal matters ("Legal Information") is provided for your\nprivate use and does not constitute advice. We do not review any\ninformation you provide us for legal accuracy or sufficiency, draw\nlegal conclusions, provide opinions about your selection of forms, or\napply the law to the facts of your situation.</p>\n<p>If you need advice for a specific problem, you should consult with a\nlicensed attorney. As DoNotPay is not a law firm, please note that any\ncommunications between you and DoNotPay may not be protected under the\nattorney-client privilege doctrine.</p>\n</blockquote>\n<p>and</p>\n<blockquote>\n<p>Your use of the Service is subject to all applicable federal, state\nand local laws and regulations. Unauthorized use of the Service is\nprohibited, and violators can be prosecuted under federal and state\nlaws. Virginia law and Federal law will govern the interpretation and\nenforcement of these Terms.</p>\n</blockquote>\n<p>That's for the web service, but it's useful to point out the distinction between a user using DoNotPay for themselves and getting a script to read in court, and the DoNotPay service actually participating in a court appearance representing the user.</p>\n<p>The reason DoNotPay pulled the plug on the court appearance, as pointed out in the article <a href=\"https://www.businessinsider.com/donotpay-ceo-says-risks-jail-ai-robot-lawyer-used-court-2023-1\" rel=\"nofollow noreferrer\">https://www.businessinsider.com/donotpay-ceo-says-risks-jail-ai-robot-lawyer-used-court-2023-1</a> is that DoNotPay's AI "robot" lawyer was going to <em>actively argue in court</em>, and the state bar objected, because that's what only lawyers are licensed to do.</p>\n<p>If the DoNotPay source code was released and someone used it on their own computer to analyze a legal situation and give themselves options and offer decisions, this could probably be seen as little different than someone reading books that analyze the law and strategies and offer options of how to go about representing oneself in a court. The software would be used to make decisions before and after court; the software is not actively arguing and making decisions for the user in court.</p>\n<p>Of course, in this brand new world of AI, the final assessment of whether or not AI software can be used to give others (or oneself) legal advice - either in court and/or prep for court - will likely have to be finally determined by litigation and courts.</p>\n<p>The idea of open source or closed source could possibly come into play to determine exactly how the software works, but would not be the sole criteria to determine if the use of the software is legal or not. The software could be simply a "decision tree" (little different than textbooks) that follows a hard-coded if/else script, such as If you get a ticket, go to court; if you plead guilty, this is what happens; if you plead not guilty, these are your options. Or, the software could have true AI aspects, i.e. it develops arguments for being not guilty from your past legal history, and develops and responds to the court's actions with counter arguments, and actually gives opinions to the user on what they should do.</p>\n<p>If the software is open source, we all see how it works and if it is a decision tree or real AI (and the software can also be modified by users and other developers.) If the software is closed source, we can't see how it works, and we don't know if it is a decision tree or AI, unless it it is opened, possibly through court order during possible litigation to determine if it is giving legal advice. Again, AI is a brand new thing in the legal world.</p>\n",
"score": 4
}
] |
[
"unlicensed-practice",
"computer"
] |
What are the possible copyright and other legal issues faced by an individual in the US running a Mastodon server?
| 4 |
https://law.stackexchange.com/questions/88918/what-are-the-possible-copyright-and-other-legal-issues-faced-by-an-individual-in
|
CC BY-SA 4.0
|
<p>What are the possible copyright and other legal issues faced by an individual in the US running a Mastodon server?</p>
<p>The social network Mastodon <a href="https://en.wikipedia.org/wiki/Mastodon_(social_network)" rel="nofollow noreferrer">https://en.wikipedia.org/wiki/Mastodon_(social_network)</a> has become very popular in the past few months as a possible alternative to Twitter, and there are some important differences between the two services: Twitter is a centralized, corporate-based commercial service, running datacenters in different countries, but operated as one service. Mastodon is decentralized and is run on any number of commercial and private servers by individuals and organizations located in different countries, and server administrators can have little or no formal relationship with other administrators. (The Mastodon software is free and open source and there are no copyright issues with using or modifying the software itself.)</p>
<p>Twitter is a for-profit business which has a legal team, a corporate structure to protect employees and assets, and insurance for civil claims. Mastodon administrators may or may not be organized under a corporate structure or have insurance for civil clams.</p>
<p>One possible source of copyright issues is that Individual Mastodon servers share posts and content by being "Federated," meaning being members of relays that share content between independent servers. This means that content by users who have accounts on other Mastodon servers around the world can appear in the timelines of users on any other independent server, and some of that content my be "cached" or stored on those Federated servers.</p>
<p>For the sake of this question, the Mastodon instance owner - who is an individual and who runs a server in the US and has the sole account and is the administrator of the server - will be referred to as AMastodonAdmin. The Mastodon instance run by AMastodonAdmin will be referred to as MyMastodonInstance.</p>
<p>Can AMastodonAdmin legally "ban" or block users (and their content) who have accounts and post on other servers but their content is shown on MyMastodonInstance by Federation? Can AMastodonAdmin ban users for any reason? Does AMastodonAdmin need a TOS that outlines reasons for user bans and blocks?</p>
<p>Is a AMastodonAdmin liable for copyright infringement committed by users who have accounts and post the copyrighted content on other servers which is then Federated to (and in some instances cached on) MyMastodonInstance?</p>
<p>Does AMastodonAdmin running MyMastodonInstance in a US datacenter need to be aware of GDPR <a href="https://gdpr.eu/" rel="nofollow noreferrer">https://gdpr.eu/</a> ? Does AMastodonAdmin need to respond to requests by EU members whose posts were federated to MyMastodonInstance?</p>
| 88,918 |
[
{
"answer_id": 88919,
"body": "<p>To the extent that Admin is running a business rather than a free relay server, Admin will have various legal concerns. As I understand the system as you describe it, a user uploads some content to a machine, operated by AMastodonAdmin, which then makes that content available to others. W.r.t. US law, the admin needs to be concerned with a number of things. Copyright violation is one: he may get sued for contributory infringement. The DMCA safe harbor provision reduce the risk, if complied with. Defamation is another potential issue (a publisher is liable for damages under defamation law, as well as the author). <a href=\"https://en.wikipedia.org/wiki/Section_230\" rel=\"noreferrer\">"Section 230"</a> may provide protection, but there is a large body of case law mentioned in there that would heave to be taken into consideration – and two upcoming Supreme Court cases. (Basically, Section 230 says that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider").</p>\n<p>The administrator has a property right to include / exclude anyone they want to, on their machine, except that a contract between Admin and User might limit his right. A TOS is a contract, which typically says "You can use my machine in a specific way as long as you follow these rules". Requiring payment in exchange for access limits Admin's right to do whatever they want. For free-access systems, there is typically a clause saying "we can kick you off if we want", though also implying that they will only kick you off for a specific action ("violating community standards").</p>\n<p>In order to legally receive content from User, you need permission from User to redistribute their intellectual property (therefore a TOS is virtually mandatory). This would include a warranty from User that they have the right to upload whatever they do upload, granting a correct license to Admin (read the Stack Exchange TOS), and while you are at it, you should say explicitly that if a user misbehaves, they can be banned. Silence is legally problematic, compared to explicit permission or prohibition, because then there may be a long legal wrangle over whether lack of prohibition is implicit permission.</p>\n<p>Admin technically should care about GDPR, though enforcement may make this a non-issue. A US company operating as Admin would have a real concern with GDPR, but a guy running a free basement server, having no ties to the EU, might ignore GDPR, the same way they might ignore some other nation's law against apostacy.</p>\n",
"score": 5
}
] |
[
"copyright",
"gdpr",
"privacy",
"civil-law"
] |
Why all caps first and last names in id cards / passports?
| 2 |
https://law.stackexchange.com/questions/51442/why-all-caps-first-and-last-names-in-id-cards-passports
|
CC BY-SA 4.0
|
<p>I am wondernig what is the reason, if any, that in the national identification cards the <strong>names</strong> (first and last) are written in <strong>ALL CAPS</strong>?</p>
<p><a href="https://i.stack.imgur.com/6viLI.jpg" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/6viLI.jpg" alt="enter image description here"></a></p>
<p><a href="https://i.stack.imgur.com/GaU8A.jpg" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/GaU8A.jpg" alt="enter image description here"></a></p>
| 51,442 |
[
{
"answer_id": 51446,
"body": "<p>Some jurisdictions do that. Others don't (see, for example, the <a href=\"https://en.wikipedia.org/wiki/Dutch_identity_card\" rel=\"nofollow noreferrer\">Dutch national identity card</a>).</p>\n\n<p>My New York driver's license is in all caps, and I rather suspect that it's a holdover from the days in which licenses were processed using a computer system that had only upper-case characters.</p>\n\n<p>But that's just a guess. The real answer is that the premise of the question is incorrect.</p>\n",
"score": 3
},
{
"answer_id": 52609,
"body": "<p>The League of Nations Passport Conference of 1926 contained <strong>suggestions</strong> on how christan and surnames should be written:</p>\n<blockquote>\n<p><strong>Annex</strong><br />\n<em>Various Entries.</em>.<br />\nThe question of the entries to be made on the passport form has given rise to the following observations:</p>\n<ol>\n<li>Sufficient space should be provided for the full name of the holder;</li>\n<li>Christian names and surnames should be written either in block capitals or in what is known as English roundhand;</li>\n<li>The surname should be underlined.</li>\n</ol>\n<p>It is agreed that christian names need not be translated.</p>\n</blockquote>\n<p>United States Passports that I have seen, never underlined the surnames. Other countries often did. Sometimes spaces between the letters of the surname were used instead of underlining.</p>\n<p>With the introduction of typewritten passports, in the United States since 1931-01-02, all entries were mostly uppercase.</p>\n<p><a href=\"https://i.stack.imgur.com/vt5jl.jpg\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/vt5jl.jpg\" alt=\"enter image description here\" /></a></p>\n<p><strong>Note</strong>: The typed letters are red. A passport issued in September 1931 (and later) are black.</p>\n<p>A 1934 passport of Moritz Feibusch, which was retrieved from the ruins of the Hindenburg, can be seen here:</p>\n<ul>\n<li><a href=\"https://www.flickr.com/photos/magnesmuseum/albums/72157624208880791\" rel=\"nofollow noreferrer\">Moritz Feibusch and the Hindenburg</a></li>\n</ul>\n<hr />\n<p><strong>Sources</strong>:</p>\n<ul>\n<li><a href=\"https://books.google.co.ao/books/download/The_United_States_passport.pdf?id=YtaPAAAAMAAJ&hl=pt-PT&output=pdf&sig=ACfU3U3f5VW9pf3K-1ABSexqG5UeyeNt8Q\" rel=\"nofollow noreferrer\">The United States passport: past, present, future, Issue 153 by United States. Passport Office. 1976</a> (PDF)</li>\n</ul>\n",
"score": 2
},
{
"answer_id": 52601,
"body": "<blockquote>\n<p>In the national identification cards the names (first and last) are written in ALL CAPS</p>\n</blockquote>\n<p>That's incorrect, another example is <a href=\"https://en.wikipedia.org/wiki/Thai_identity_card\" rel=\"nofollow noreferrer\">Thai identity cards</a>, which don't use all caps.</p>\n<p><a href=\"https://i.stack.imgur.com/A2KuI.png\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/A2KuI.png\" alt=\"enter image description here\" /></a></p>\n<p>(<a href=\"https://www.google.com/url?sa=i&url=http%3A%2F%2Fwww.suchanannakmai.com%2F&psig=AOvVaw3KVF06KgxNhcZg2eSlabyL&ust=1592941864938000&source=images&cd=vfe&ved=0CA0QjhxqFwoTCOi88IeZluoCFQAAAAAdAAAAABAD\" rel=\"nofollow noreferrer\">image source</a>)</p>\n",
"score": 0
}
] |
[
"california",
"france",
"passport"
] |
Can a company own intellectual property created off the clock?
| 1 |
https://law.stackexchange.com/questions/88892/can-a-company-own-intellectual-property-created-off-the-clock
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<p>In an employment agreement, can a company claim intellectual property created off the clock unrelated to your their core business?</p>
<p>Specifically if their core business is in a narrow domain of software, can they claim to owning all intellectual property created by the employee at all times outside of that domain but within "software".</p>
| 88,892 |
[
{
"answer_id": 88895,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"united-states-container\">united-states</a></p>\n<p>If they have a contract with the employee which specifies that such IP is assigned to the company at creation, such a contract is valid until and unless a court holds that it is void. It might be held void as against public policy,. or as being "unconscionable", but it might well not be so held.</p>\n<p>An even broader contract, which claimed any and every kind of IP created by an employee, even if crated during off hours and not at the work site nor with company resources is more likely to be held void, but even this is not certain to be held void.</p>\n<p>In the absence of a contract explicitly assigning such IP to the company, the company might attempt to apply the rule that makes works created by an employee within the scope of employment works-made-for-hire (WFH). This is in <a href=\"https://www.copyright.gov/title17/92chap1.html#101\" rel=\"nofollow noreferrer\">17 USC 101</a> (the definitions section of the copyright law). This would affect copyrights, but not patents or other IP.</p>\n<p>There is very little US case law interpreting the "scope of employment". But there seems some reason to believe that work that was not assigned by the employer, not intended to benefit the employer, not used by the employer, not done within usual working hours nor using company resources, and not of the specific type normally assigned to or carried out by the employee, is probably not "within the scope" of the employee's employment. <strong>If</strong> that is so, the work would not be WFH, and only an explicit written contract, signed by the employee (or the employee's authorized agent) could transfer the copyright.</p>\n",
"score": 4
}
] |
[
"intellectual-property",
"employment",
"texas"
] |
Which statutes cover a customer’s rights to not upgrade software in an automobile?
| 0 |
https://law.stackexchange.com/questions/88898/which-statutes-cover-a-customer-s-rights-to-not-upgrade-software-in-an-automobil
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CC BY-SA 4.0
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<p>Here’s a hypothetical scenario:
A customer drops off a vehicle at the vehicle manufacturer’s service center for some repair to the body of the car (let’s say a broken bumper). While dropping off the car for repairs, the customer tells the service advisor not to update software on the car (and has informed them in writing as well). The service center performs the body work but also upgrades the software. The customer then points out the upgraded software and asks to revert it back to the version it had when dropping off. The service center refuses and says it doesn’t have a way to do so.</p>
<p>The customer doesn’t want the newer version of the software because it significantly alters functionality of the vehicle (let’s say it deactivates the air suspension functionality - when purchased, the car was offered as having an air suspension and the air suspension worked until the software was updated. There is documentation to prove that a specific software version deactivates said functionality). The software upgrade was not part of/does not contain any remedies required by law (such as a safety recall campaign registered with the NHTSA). The functionality that was deactivated is not in violation of any law.</p>
<p>The repair work done did not require a software update. The service center did not inform the customer that a software was needed nor sought consent before doing so.</p>
<p>In this instance, are the actions of the service center in violation of any statutes?</p>
<p>** Clarification **: This question is about laws in the United States and the state of Washington in particular. The software update was not mandated by law or by any federal or state agency - I mentioned NHTSA as an example but meant to say any agency/government body that has oversight and legal basis to enforce updates to automobiles.</p>
| 88,898 |
[
{
"answer_id": 88900,
"body": "<p>As far as I know, no state in the US has enacted a "must ask first" requirement on vehicle servicing. There are numerous requirements where a repair must be authorized if it costs more than... about $100, but no absolute requirement that all repairs and modifications must be spelled out in detail and approved. (Changing a flat tire could take a week, if every action had to be pre-approved). You two main protections are (1) that if a mechanic damages your car when working on it, you may be able to sue them for those damages and (2) if they breech their contract with you, you can sue them for the damage done.</p>\n<p>If it is foreseeable that the software change will cause a loss in value of the car, it would be negligent of the mechanic to make the change. Also, if it is part of the contract that no software is to me modified, then modifying the software is a breech of contract. As you describe it, this is a breech of contract. Your right to sue for breech of contract is probably somehow encoded in the statutes of your state, but I can't find a statute in Washington that says "You can file an action for breech of contract", since this is part of common law and Washington basically said years ago "we hereby adopt the common law".</p>\n",
"score": 1
}
] |
[
"automotive"
] |
I bought a bottle of spirits with the security tag intact. Have I committed theft?
| 1 |
https://law.stackexchange.com/questions/88906/i-bought-a-bottle-of-spirits-with-the-security-tag-intact-have-i-committed-thef
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CC BY-SA 4.0
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<p>I bought a bottle of spirits from a local supermarket, when I got home I noticed the <a href="https://www.catalyst-direct.com/media/1080/bottlelox-product.jpg?width=1400&mode=max" rel="nofollow noreferrer">BottleLox</a> anti-theft cap hadn't been removed.</p>
<p>I paid for my shopping (including the bottle!) at a self-service till, and the shop-assistant verified I was over 18 to purchase alcohol, however she didn't remove the tag, and nothing beeped at me when I left the store. The tag itself was around the neck of the bottle, inside a cardboard box.</p>
<ul>
<li><p>Did I commit theft when I left the shop with their security tag? Or....</p>
</li>
<li><p>Since I legitimately purchased the bottle, and the tag was (at time
of purchase) intrinsically part of the bottle, can I assume I also
purchased the tag?</p>
</li>
</ul>
| 88,906 |
[
{
"answer_id": 88908,
"body": "<p>Theft in the U.K. requires "intention of permanently depriving the other of it" (<a href=\"https://www.legislation.gov.uk/ukpga/1968/60\" rel=\"nofollow noreferrer\">Theft Act 1968</a>, s. 1).</p>\n<p>A person not knowing they have a thing in their possession does not have the intention of depriving someone of that thing.</p>\n",
"score": 2
}
] |
[
"united-kingdom",
"theft",
"shoplifting"
] |
What type of human being can help? Which one specifically?
| -4 |
https://law.stackexchange.com/questions/88903/what-type-of-human-being-can-help-which-one-specifically
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CC BY-SA 4.0
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<p>I have with me more than 1500 documents associated with abduction and human trafficking as well as probate fraud and political corruption associated with the district attorney's Office in Orange County and the public defender's office. While making every effort to try to protect law enforcement I've been unable to contact the FBI successfully or have anyone even file a case report on the matter and have had my rights violated in every way. All these people are robbing individuals of their inheritance. I have no ill will about the situation but I'm drastically concerned since they impounded our truck and sold it off within 3 weeks. Every time we've tried to escape the county we literally have been physically stopped while being extorted and threatened. I'm scared that they might literally throw us in jail and we'll never be seen again at this point. All the attempts to contact a civil rights lawyer have failed and I'm not sure what else to do.</p>
| 88,903 |
[
{
"answer_id": 88905,
"body": "<p>So you are convinced that the government and police of Orange Country, California, conspire against you.</p>\n<ul>\n<li>Try reaching the ACLU. The Southern California branch has an <a href=\"https://www.aclusocal.org/en/seeking-legal-help-aclu\" rel=\"nofollow noreferrer\">online contact form</a>.</li>\n<li>Hire a lawyer to represent you. If you <em>should</em> be locked up, the lawyer could follow up on that.</li>\n</ul>\n",
"score": 1
}
] |
[
"human-rights",
"probate",
"civil"
] |
Are the loans on subreddits r/borrow and r/simpleloans even legal?
| -1 |
https://law.stackexchange.com/questions/88901/are-the-loans-on-subreddits-r-borrow-and-r-simpleloans-even-legal
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CC BY-SA 4.0
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<p>Many places have a max legal interest rate, and the loans on those subreddits surely exceed those rates. For example, a borrower might say I will repay $150 in 10 days for a $100 loan, and some lender will agree to that.</p>
<p>So if the interest is illegal, then are all those lenders committing a crime on those subreddits? If a borrower decides to not pay a lender, will there be protection for the lender (say that they signed a contract before hand)?</p>
| 88,901 |
[
{
"answer_id": 88902,
"body": "<p><strong>Florida</strong>\nTitle XXXIX, chapter 687 of the 2022 Florida Statutes covers usury. The technical definitions of what it is are earlier, but the punishment is as follows (I skipped the couple of exceptions to it)</p>\n<blockquote>\n<p>687.04 Penalty for usury; not to apply in certain situations.—Any person, or any agent, officer, or other representative of any person, willfully violating the provisions of s. 687.03 shall forfeit the entire interest so charged, or contracted to be charged or reserved, and only the actual principal sum of such usurious contract can be enforced in any court in this state, either at law or in equity; and when said usurious interest is taken or reserved, or has been paid, then and in that event the person who has taken or reserved, or has been paid, either directly or indirectly, such usurious interest shall forfeit to the party from whom such usurious interest has been reserved, taken, or exacted in any way double the amount of interest so reserved, taken, or exacted.</p>\n</blockquote>\n<p>So basically the lender can only collect the original amount loaned, no interest, and if they already collected some of the interest, they have to return that at a 2 for 1 rate.</p>\n<p>It's a civil law, so I don't know if that's what you meant by "breaking the law/illegal", but they can go to court to recover the interest doubled.</p>\n<p>The contract wouldn't change anything, as you can't enforce the terms of an illegal contract.</p>\n",
"score": 3
}
] |
[
"contract-law"
] |
I was offered a job, but the contract concerns me
| 1 |
https://law.stackexchange.com/questions/78667/i-was-offered-a-job-but-the-contract-concerns-me
|
CC BY-SA 4.0
|
<p>I have been offered a job, but while looking over the contract I found a paragraph that concerns me. I don't want to lose the right to any software that I write or develop outside of the company that I am hired at. For example, if I make a game. Is this a valid concern?</p>
<p>The Paragraph:</p>
<blockquote>
<p>"Employee acknowledges and agrees that all right, title and interest of every kind and nature whatsoever, whether now known or unknown, in and to any intellectual property, including, without limitation, any inventions, patents, trademarks, trade names, copyrights, films, video tapes, scripts, software, computer/software code, formulae, creations and properties invented, created, written, developed, taped, filmed, furnished, produced or disclosed by or to Employee while employed by COMPANY shall, as between Employee and COMPANY, be and remain the sole and exclusive property of COMPANY for any and all purposes and uses whatsoever, and are by Employee’s execution hereof are assigned to COMPANY. Employee and Employee’s successors and assigns shall have no right, title or interest of any kind or nature therein or thereto, or in and to any results and proceeds therefrom. Where applicable, works of authorship created by Employee for COMPANY in performing Employee’s responsibilities hereunder shall be considered “works made for Hire” as defined in the U.S. Copyright Act. All computer/software code shall be solely stored on COMPANY’s servers (or COMPANY’s vendor’s servers) at all times and Employee shall not maintain duplicates thereof."</p>
</blockquote>
<p>EDIT: After reading this again out loud to myself I can see that the first half refers to COMPANY IP, and the second half refers to work performed by the employee (me) while developing FOR THE COMPANY. Meaning that code that I write at home on personally owned devices is not something covered by this statement. Can anyone confirm?</p>
| 78,667 |
[
{
"answer_id": 78672,
"body": "<h2>Yes, this is a valid concern</h2>\n<p>As written, every piece of IP you produce while employed belongs to the employer. This includes your hypothetical game. It also includes your weekly shopping lists, your Christmas card to your Great-Aunt Nellie, the … a-hm … private video you make of you and your significant other.</p>\n<p>As written this is overly broad and probably unenforceable. However, it’s always better to have clear and legally enforceable clauses in your agreements because unclear, arguably unenforceable ones lead to disputes. To be fair, the employer has probably lifted some (bad) boilerplate and hasn’t actually thought through what it means.</p>\n<p>Get it redrafted.</p>\n",
"score": 6
},
{
"answer_id": 78676,
"body": "<p>This is a very broad provision, broader than that which many companies use, but that does not make it unlawful or invalid.</p>\n<p>The key phrase in the quoted part of the agreement is "<em><strong>while employed by COMPANY</strong></em>". The relevant phrase from copyright law (17 USC 101) is "<em><strong>within the scope of his or her employment</strong></em>" The first is broader than the second.</p>\n<p>According to the LII page "Scope of Employment](<a href=\"https://www.law.cornell.edu/wex/scope_of_employment\" rel=\"nofollow noreferrer\">https://www.law.cornell.edu/wex/scope_of_employment</a>):</p>\n<blockquote>\n<p>The phrase “scope of employment” is a common law concept that often arises in civil litigation, especially in workers’ compensation cases and personal injury cases. Generally, the scope of employment is the range of activities and conducts that an employee is reasonably expected to perform as part of his or her job.</p>\n</blockquote>\n<p>The page <a href=\"https://boisestate.pressbooks.pub/buslaw/chapter/agency-and-employment/\" rel=\"nofollow noreferrer\">"Introduction to Agency Law"</a> from hr Boise State Business Law series states:</p>\n<blockquote>\n<p>In general, the broadest liability is imposed on the master in the case of tortious physical conduct by a servant or employee. If the servant or employee acted within the scope of their employment—that is, if the servant’s wrongful conduct occurred while performing their job—the master will be liable to the victim for damages unless, as we have seen, the victim was another employee ...</p>\n</blockquote>\n<p>Legal Match's page <a href=\"https://www.legalmatch.com/law-library/article/scope-of-employment-definition.html\" rel=\"nofollow noreferrer\">Scope of Employment Definition</a> reads:</p>\n<blockquote>\n<p>In legal terms, the scope of employment refers to the range of activities that an employee is reasonably expected to participate in as part of their job duties.Within this range of activities, the employer could be held liable for their employee’s actions when a third party is injured or otherwise negatively affected by the employee’s conduct. The term is often used in personal injury cases.</p>\n<p>When the scope of a person’s employment is questioned, it is generally to determine whether an employee’s actions during an accident were part of their job. If not, it would be said that the actions in question fell outside the scope of employment.</p>\n</blockquote>\n<p>In all these sources, "within the scope of employment" is equated to "while performing their job" or being within "the range of activities and conducts that an employee is reasonably expected to perform as part of his or her job".</p>\n<p>The US Copyright Office's Circular 09 "Works Made for Hire" discusses the tests fore who is an employee in some detail, but does not discuss the "scope of employment".</p>\n<p>The only US Supreme Court case, since the passage of the Copyright Ac of 1909, to deal with whether a work is a work made for hire is <a href=\"https://en.wikipedia.org/wiki/Community_for_Creative_Non-Violence_v._Reid\" rel=\"nofollow noreferrer\"><em>Community for Creative Non-Violence v. Reid</em>, 490 U.S. 730 (1989)</a> In that case the Court held that Reid was not an employee, so only the second section of the definition in 17 USC 101 (the "specially commissioned" section) was relevant. The Court held that the work was not a work-made-for-hire because it did not fit any of the limited set of categories specified in the law, and otherwise did not fit part 2 of the 17 USC 101 definition because there wass no written agreement making the work a work-for-hire. The court did not consider the first part of the definition beyond its finding that Reid was not an employee.</p>\n<p>However, in the <a href=\"https://supreme.justia.com/cases/federal/us/490/730/\" rel=\"nofollow noreferrer\"><em>Community for Creative Non-Violence v. Reid</em> opinion</a> Justice Marshall wrote:</p>\n<blockquote>\n<p>[<em>490 U. S. 739-740</em>] In the past, when Congress has used the term "employee" without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common law agency doctrine. See, e.g., <em>Kelley v. Southern Pacific Co</em>., 419 U. S. 318, 419 U. S. 322-323 (1974); <em>Baker v. Texas & Pacific R. Co</em>., 359 U. S. 227, 359 U. S. 228 (1959) (<em>per curiam</em>); <em>Robinson v. Baltimore & Ohio R. Co.</em>, 237 U. S. 84, 237 U. S. 94 (1915). Nothing in the text of the work for hire provisions indicates that Congress used the words "employee" and "employment" to describe anything other than "the conventional relation of employer and employe.'" <em>Kelley</em>, supra, at 419 U. S. 323, quoting <em>Robinson</em>, supra, at 237 U. S. 94; compare <em>NLRB v. Hearst Publications, Inc.</em>, 322 U. S. 111, 322 U. S. 124-132 (1944) (rejecting agency law conception of employee for purposes of the National Labor Relations Act where structure and context of statute indicated broader definition).</p>\n</blockquote>\n<p>The page <a href=\"https://lawshelf.com/videocoursesmoduleview/work-made-for-hire-doctrine--module-1-of-5\" rel=\"nofollow noreferrer\">"Work Made for Hire Doctrine- Module 1 of 5"</a> from LawShelf states:</p>\n<blockquote>\n<p>One method for having a work qualify under the doctrine is for an employee to create the work when he’s acting within the scope of his job duties. When an employee creates a copyrightable work as part of his job duties, then a court will find that the resulting creative work is a work made for hire and copyrights associated with that work are owned by the employer, not by the individual employee.[3]</p>\n<p>The individual who creates the work made for hire must be a true employee, not an independent contractor or consultant. Also, works created by an employee must be created within the scope of his employment to qualify as work made for hire. Allen operates a ceramics shop and hires George as his employee. All ceramics made during employment are owned by Allen but if George creates a ceramic bowl <strong>on his own time, in his own home</strong> and then sells it later to Allen, the ceramic bowl won’t qualify as a work made for hire, so George will own all rights associated with it. [<em>Emphasis added</em>]</p>\n</blockquote>\n<p>In <a href=\"https://repository.law.uic.edu/cgi/viewcontent.cgizz/article=1495&context=ripl\" rel=\"nofollow noreferrer\"><em>The Scope of Employment Test Under The Work-Made-For-Hire Doctrine Revisited: How Covid-19, Remote Working, and the Restatement (THIRD) of Agency Could Change It</em></a> by DIANA J. SIMON (published in <em>UIC REVIEW OF INTELLECTUAL PROPERTY LAW</em> Vol 20 p 232 (2021)) the author writes [footnotes in {braces}]:</p>\n<blockquote>\n<p>This article explores the intersection between\nthe work-made-for-hire doctrine under the Copyright Act of 1976, agency theory, the updated Restatement (Third) of Agency, and our changing workforce in a postCOVID-19 world. Specifically, as of now, whether an employee was “in the scope of employment” at the time a work was created is evaluated, in part, by whether the work occurred “substantially within time and space limits.” But this test is derived from the Restatement (Second) of Agency, which has been amended, and the Restatement (Third) no longer includes this as a factor. On top of the changing Restatement, employment conditions for many in this country have also changed dramatically. Now, where home is not only where the heart is but where the office is, this raises complex issues about whether the test for scope of employment should change and discusses the implications of such a change.</p>\n<p>...</p>\n<p>Subsequently, the Fourth Circuit, taking its direction from the Supreme Court, [in <em>Community for Creative Non-Violence v. Reid</em>] applied the Restatement (Second) of Agency in analyzing whether a party, indisputably an employee, created a work within the scope of thier [<em>sic</em>] employment.{in <em>Avtec Sys. Inc. v. Peiffer</em>, 21 F.3d 568, 571 (4th Cir. 1994).} Based on <em>CCNV</em>, the court turned to section 228 of the <em>Restatement (Second) of Agency</em> and laid out the three-part test from that section as follows: A servant’s conduct is within the scope of employment if:</p>\n<blockquote>\n<p>(a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; [and] (c) it is actuated, at least in part, by a purpose to serve the master. {<em>Restatement</em> § 228 (1958))}</p>\n</blockquote>\n<p>Other circuits then followed suit. Thus, the Copyright Act, and the work-for-hire doctrine became enmeshed with the common-law agency doctrine and the Restatement (Second) of\nAgency.</p>\n<p>While some commentators and courts alike have characterized the three-part test above as rules that are either “not rigid”{Robert A. Kreiss, <em>Scope of Employment and Being an Employee Under the Work-Made-For-Hire Provision of the Copyright Law: Applying the Common-Law Agency Tests</em>, 40 U. KAN. L. REV. 119, 128} or just factors, none of which are\ndispositive,{<em>Kurakyn Holdings, LLC v. Ciro, LLC</em>, 242 F. Supp. 3d 789, 804 (W.D. Wis. 2016)} the courts have not been uniform in this approach. First, the test itself is worded in the conjunctive [and], as opposed to the disjunctive [or], which could be why courts have stated that the test is conjunctive requiring that all three prongs must be\nsatisfied.{Woodson v. Atlantic City Bd. of Educ., No. 19-14572, 2020 WL 1329918, at *5 (D.N.J. Mar. 23,\n2020); Quinn v. City of Detroit, 988 F. Supp. 1044, 1049 (E.D. Mich. 1997); City of Newark v. Beasley,\n883 F. Supp. 3, 7–8 (D.N.J. 1995) (noting that “the [employer] must prove all three elements set forth\nin the Restatement” because the test is worded in the conjunctive); Roeslin v. Dist. of Columbia, 921\nF. Supp. 793, 798 (D.D.C. 1995). Interestingly, in the context of determining vicarious liability using\nthese same three factors in a tort case, several courts have also held that all three criteria must be met. E.g., <em>Bagent v. Blessing Care Corp</em>., 862 N.E.2d 985, 992 (Ill. 2007); <em>Grager v. Schudar</em>, 770 N.W.2d 692, 699 (N.D. 2009) (observing that the scope of employment determination requires consideration of each element in section 228} Second, some courts refer to the prongs as “elements,” and elements, as opposed to factors, are</p>\n<blockquote>\n<p>a component of a legal test that must be proved . . . and [a]s constituent parts, all of the elements . . . must be proved to establish the legal claim in question. {Michael R. Smith, Elements v. Factors, 39 WYO. LAW. 46, 46 (2016)}</p>\n</blockquote>\n<p>Third, on the time and space factor, some courts have held that the work was not for hire because the employee did the work at home during off hours, and thus, the employer “failed to meet its burden of proof” on the second prong. For example, the United States District Court for the District of Columbia, after stressing that the employer must demonstrate all three factors to prove a work is one for hire, held that\nthe computer program at issue was not created within time and spatial bounds because the employee spent 3,000 hours outside of normal hours working on it, even though he did test each module at work.{<em>Roeslin</em>, 921 F. Supp. at 798.} Similarly, when a police officer created a workbook and training manual at home during off hours, the court held that the defendant employer utterly failed to meet its burden of proof that the employee used authorized hours to create the work.{<em>Beasley</em>, 883 F. Supp. at 8.}</p>\n<p>Nonetheless, several courts have said that the second factor—time and space limits—is given less weight assuming the work was the kind the employee was hired to perform,{E.g., <em>Avtec</em>, 21 F.3d at 571; see also <em>TD Bank N.A. v. Hill</em>, 928 F.3d 259, 277 (3d Cir. 2019)} or have found that the factor was satisfied even though the work was\ndone at home or during off hours. For example, the Fourth Circuit held that the source code an employee created was within authorized space limits even though it was\ncreated at home because there was no strict differentiation between “work and home or between work hours and off hours.”{<em>U.S. Auto Parts Network, Inc. v. Parts Geek, LLC</em>, 692 F.3d 1009, 1018 (9th Cir. 2012).} Similarly, the Second Circuit held that work done at home was still within authorized bounds because the “very nature of a teacher’s duties involves a substantial amount of time outside of class.”{Shaul v. Cherry Valley-Springfield Cent. Sch. Dist., 363 F.3d 177, 186 (2d Cir. 2004).}</p>\n</blockquote>\n<p>The article then cites Section 7.07 (2) of the <em>Restatement\n(Third) of Agency</em> which defines "within the scope of employment as:</p>\n<blockquote>\n<p>(2) An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control. An\nemployee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended\nby the employee to serve any purpose of the employer</p>\n</blockquote>\n<p>The article goes on to discuss the possible replacement of the 2nd restatement's definition with that from the 3rd. But this distinction is not of great import here.</p>\n<h2>Conclusion</h2>\n<h3>Unrelated Work is not Work Made for Hire</h3>\n<p><em>Work done by an employee, but not assigned by an employer to an employee, nor intended to further an employees job functions, nor of the kind generally done by the employee for the employer, nor dome during work hours nor using company facilities, will not constitute work-made-for-hire under US copyright law.</em></p>\n<p>Thus a computer programmer who, say, writes a novel during off-hours will not have that novel treated as a work made for hire. Indeed an employee hired to create and maintain a database engine will not have work on artificial intelligence visual processing treated as a work for hire.</p>\n<p>However, a copyright may be transferred by contract, even if not a work-made-for-hire. The quoted language purports to do exactly that.</p>\n<p>The extremely broad terms pf the quoted language might lead to it being held unenforceable if the outside work is clearly not "within the scope of employment" and is of a nature clearly unrelated to the work which the employee has been hired to do. This is not an outcome on which an employee can rely, however. It is very much a case-by-case matter.</p>\n<p>A prospective employee could attempt to negotiate for narrower language. Or such an employee could send a written communication, probably by certified mail, expressing that the employee's understanding is that the provision is limited to works "within the scope of employment". This would help to establish that there was no "meeting of the minds" for any transfer of IP outside of such scope.</p>\n<p>Such an employee might be wise to consult an IP lawyer on such matters for a more specific and reliable answer.</p>\n",
"score": 2
},
{
"answer_id": 78677,
"body": "<p>The part that should set off an alarm is the part that says “…produced or disclosed by or to Employee while employed by COMPANY”. This chunk modifies the preceding long list of kinds of IP. If you, while employed by the company, produce <strong>any</strong> IP, then you have agreed that the IP shall be the sole and exclusive property of the company. It does not matter if it is a novel. The reason why it is virtually impossible to see that this is what it says is that it is laden with ungrammatical or redundant gibberish. If you don’t understand it, you should not sign it.</p>\n",
"score": 2
}
] |
[
"united-states",
"intellectual-property",
"employment",
"washington",
"new-jersey"
] |
What is the thing called RICO?
| 0 |
https://law.stackexchange.com/questions/60509/what-is-the-thing-called-rico
|
CC BY-SA 4.0
|
<p>I'm not a law junkie, but I keep hearing this term, RICO, over and over again in different American TV shows (like Better Call Saul, for instance). So could you please explain to me what it is in simple terms (but in a detailed enough manner still)?</p>
| 60,509 |
[
{
"answer_id": 60510,
"body": "<p>I can do it simple, but <a href=\"https://www.popehat.com/2016/06/14/lawsplainer-its-not-rico-dammit/\" rel=\"noreferrer\">the Popehat can lawsplain it better</a>. The crucial part is:</p>\n<blockquote>\n<p>It's never RICO!</p>\n<p>I mean, not literally never. But I can say with a very high level of confidence that if you're asking me, it's not RICO.</p>\n</blockquote>\n<p>Ok, now, what is Rico? Well, it's short for the <a href=\"https://www.law.cornell.edu/uscode/text/18/part-I/chapter-96\" rel=\"noreferrer\">Racketeer Influenced and Corrupt Organizations Act</a>, and to use it you need to show a lot of stuff as <a href=\"https://www.ce9.uscourts.gov/jury-instructions/node/134\" rel=\"noreferrer\">the RICO jury instructions</a> show. By the way, that is you need to prove <strong>all these points</strong> list:</p>\n<blockquote>\n<p>To recover under § 1962(c), a plaintiff must prove (1) conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity (known as "predicate acts"), (5) causing injury to the plaintiff's "business or property" by the conduct constituting the violation.</p>\n</blockquote>\n<p>Judges <strong>hate</strong> RICO. Some even have pre-written orders to demand whoever brings up RICO to show why they believe it is RICO - and <a href=\"https://www.popehat.com/wp-content/uploads/2016/06/Rico-Order.pdf\" rel=\"noreferrer\">Popehat can show you such a model order.</a></p>\n",
"score": 7
}
] |
[
"united-states"
] |
When can you file a lawsuit against a "parody" website?
| 3 |
https://law.stackexchange.com/questions/53723/when-can-you-file-a-lawsuit-against-a-parody-website
|
CC BY-SA 4.0
|
<p>Hypothetically speaking, if someone were to make a website about 4 different lawyers and 2 different firms and promote it as a parody website using elements of breaking bad, better call saul, etc.</p>
<p>Assuming statements are either based on objective facts or in reference to pop culture for comedic reasons:</p>
<p>What grounds would those lawyers have to sue you?
What legal precedent exists on either end?</p>
| 53,723 |
[
{
"answer_id": 53730,
"body": "<p>In the United States, a website that is labeled as parody and that a reasonable reader would, upon reflection, recognize as not stating true facts is protected under the First Amendment, so no liability will attach.</p>\n<p>The key case on this point is <a href=\"https://www.law.cornell.edu/supremecourt/text/485/46\" rel=\"nofollow noreferrer\"><em>Hustler Magazine v. Falwell</em>, 485 U.S. 46 (1988)</a>. At the time, Campari Liqueur was running an ad campaign in which people talked about their first time drinking Campari, but in a context setting up extended double-entendres about losing their virginity. Playing off that format, Hustler ran a <a href=\"https://frontpageconfidential.com/wp-content/uploads/2017/11/Falwell-Ad-e1511466570818.jpg\" rel=\"nofollow noreferrer\">fake interview with Jerry Falwell</a> about his "first time," which can really only be understood if reprinted in full:</p>\n<blockquote>\n<p><strong>Falwell:</strong> My first time was in an outhouse outside Lynchburg, Virginia.</p>\n<p><strong>Interviewer:</strong> Wasn’t it a little cramped?</p>\n<p><strong>Falwell:</strong> Not after I kicked the goat out.</p>\n<p><strong>Interviewer:</strong> I see. You must tell me all about it.</p>\n<p><strong>Falwell:</strong> I never really expected to make it with Mom, but then after she showed all the other guys in town such a good time, I figured, "What the hell!"</p>\n<p><strong>Interviewer:</strong> But your Mom? Isn’t that a little odd?</p>\n<p><strong>Falwell:</strong> I don’t think so. Looks don’t mean that much to me in a woman.</p>\n<p><strong>Interviewer:</strong> Go on.</p>\n<p><strong>Falwell:</strong> Well, we were drunk off our God-fearing asses on Campari, ginger ale and soda—that’s called a Fire and Brimstone—at the time. And Mom looked better than a Baptist whore with a $100 donation.</p>\n<p><strong>Interviewer:</strong> Campari in the crapper with Mom. How interesting. Well, how was it?</p>\n<p><strong>Falwell:</strong> The Campari was great but Mom passed out before I could come.</p>\n<p><strong>Interviewer:</strong> Did you ever try it again?</p>\n<p><strong>Falwell:</strong> Sure. Lots of times. But not in the outhouse. Between Mom and the shit, the flies were too much to bear.</p>\n<p><strong>Interviewer:</strong> We meant the Campari.</p>\n<p><strong>Falwell:</strong> Oh, yeah, I always get sloshed before I go to the pulpit. You don’t think I could lay down all that bullshit sober do you?</p>\n<p><strong>Campari, like all liquor, was made to mix you up. It's a light, 48-proof, refreshing spirit, just mild enough to make you drink too much before you know you're schnockered. For your first time, mix it with orange juice. Or maybe some white wine. Then you won't remember anything the next morning. Campari. The mixable that smarts.</strong></p>\n</blockquote>\n<p>Predictably, Falwell sued, claiming defamation and extreme emotional distress. A jury awarded Falwell $150,000, and Hustler appealed. The Supreme Court reversed, holding that Falwell could not recover for defamation because the ad "was not reasonably believable," and that he could not recover for emotional distress because the First Amendment does permit such claims when "the conduct in question is the publication of a caricature such as the ad parody involved here":</p>\n<blockquote>\n<p>Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate. ... From the viewpoint of history it is clear that our political discourse would have been considerably poorer without them. ... There is no doubt that the caricature of respondent and his mother published in Hustler is at best a distant cousin of the political cartoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description "outrageous" does not supply one.</p>\n</blockquote>\n<p>Since then, the principles from <em>Hustler</em> have evolved and distilled into a test that generally requires the plaintiff to prove that reasoanble readers would view the material in question as actually telling the truth about the defendant. For your hypothetical, then, the question would become whether people reading the website believed that about it.</p>\n<p>This is a trickier question than it might sound like. For more elaboration on the boundaries of parody and how we identify, you could check out the decision in <a href=\"https://www.opn.ca6.uscourts.gov/opinions.pdf/19a0170p-06.pdf\" rel=\"nofollow noreferrer\"><em>Novak v. City of Parma</em>, 932 F.3d 421, 427–28 (6th Cir. 2019)</a>.</p>\n",
"score": 8
}
] |
[
"liability",
"defamation",
"freedom-of-speech"
] |
Wire tap law - Better Call Saul
| 3 |
https://law.stackexchange.com/questions/11162/wire-tap-law-better-call-saul
|
CC BY-SA 4.0
|
<p>At the season finale of Better Call Saul: Season 2. Chuck records Jimmy admitting to committing a felony. The recording was obtained without Jimmy's permission (the tape recorder was hidden). Wouldn't this recording be inadmissible in court as it violates the wire tap law?</p>
| 11,162 |
[
{
"answer_id": 11166,
"body": "<p><em>Better Call Saul</em> is set in <strong>New Mexico</strong> where as long as one-person involved in the conversation is aware that it is being recorded, it is legal. Known as \"one-party consent\". This varies state to state.</p>\n\n<p><a href=\"http://www.detectiveservices.com/2012/02/27/state-by-state-recording-laws/\" rel=\"nofollow\">http://www.detectiveservices.com/2012/02/27/state-by-state-recording-laws/</a></p>\n\n<p><a href=\"http://www.aapsonline.org/judicial/telephone.htm\" rel=\"nofollow\">http://www.aapsonline.org/judicial/telephone.htm</a></p>\n\n<p>If <em>neither</em> Jimmy nor Chuck knew the conversation was being recorded, <em>then</em> it would be illegal.</p>\n",
"score": 3
},
{
"answer_id": 11163,
"body": "<p>It turns out that TV is not entirely faithful to reality, so plot development may explain something. I don't know where the calls were made from and to, but if both parties are in New Mexico, the recording is legal, since New Mexico is a 1-party consent state. If either party is in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania or Washington, then there could be a two-party consent issue. So I would check the assumption that the recording violates a wiretap law.</p>\n",
"score": 2
}
] |
[
"criminal-law",
"law-in-fiction",
"wiretapping"
] |
Does putting a dollar in a lawyer's pocket entitle you to attorney client privilege (like Saul Goodman from breaking bad)
| 5 |
https://law.stackexchange.com/questions/64134/does-putting-a-dollar-in-a-lawyers-pocket-entitle-you-to-attorney-client-privil
|
CC BY-SA 4.0
|
<p>Breaking Bad Season 2 Episode 8, Saul Goodman tells Walt and Jesse (who just kidnapped him) to put a dollar in his pocket so they'll have attorney-client privilege.</p>
<blockquote>
<p>first things first you're gonna put a dollar in my pocket both ya. You want attorney-client privilege don't you so that everything you say is strictly between us I mean it put a dollar in my pocket come on make it official come on do it that's it come on just a dollar</p>
</blockquote>
<p><a href="https://www.youtube.com/watch?v=4bNdRWDDIqo" rel="nofollow noreferrer">Link to YouTube clip</a></p>
<p>Would this actually give Walt and Jesse attorney-client privilege?</p>
| 64,134 |
[
{
"answer_id": 64136,
"body": "<h2>There's no privilege.</h2>\n<p>Under <a href=\"https://casetext.com/rule/new-mexico-court-rules/new-mexico-rules-of-evidence/article-5-privileges/rule-11-503-lawyer-client-privilege\" rel=\"noreferrer\">N.M. Evid. R. 11-503.</a>, New Mexico's attorney-client privilege protects communications that are:</p>\n<ul>\n<li>confidential; and</li>\n<li>made for the purpose of facilitating or providing professional legal services to that client; and</li>\n<li>between a client and his lawyer.</li>\n</ul>\n<p>The test doesn't ask if money changed hands, so paying a lawyer does not mean your communications are privileged. There are many services a lawyer can provide for money that are not shrouded behind privilege, and courts will routinely compel the disclosure of communications they deem to be "business advice" rather than "legal advice." <a href=\"https://caselaw.findlaw.com/nm-court-of-appeals/1642874.html\" rel=\"noreferrer\"><em>Bhandari v. Artesia General Hosp.</em>, 317 P.3d, 856 (2013)</a> ("Butler provided the memorandum as a mixture of legal and business advice in his capacity as both in-house counsel and a senior vice president of the Corporation. We hold that the memorandum is business advice and thus unprivileged."). And if money were required, defendants with public defenders or <em>pro bono</em> counsel wouldn't have privilege.</p>\n<p>Under Rule 11-503, there's no privilege for Saul's conversation with Walt and Jesse. Saul is representing Badger, who is adverse to Walt and Jesse, so there isn't an attorney-client relationship. Further, Saul isn't providing legal assistance to Walt or Jesse; he's providing them advice on how to evade detection.</p>\n<p>You could try to interpret that as a request for legal advice, but the argument would be self-defeating. Because the advice to procure a stand-in defendant would amount to <a href=\"https://codes.findlaw.com/nm/chapter-30-criminal-offenses/nm-st-sect-30-22-3.html\" rel=\"noreferrer\">concealing identity</a>, <a href=\"https://codes.findlaw.com/nm/chapter-30-criminal-offenses/nm-st-sect-30-22-4.html\" rel=\"noreferrer\">aiding a felon</a>, and <a href=\"https://codes.findlaw.com/nm/chapter-30-criminal-offenses/nm-st-sect-30-22-6.html\" rel=\"noreferrer\">compounding a crime</a>, it would fall within the crime-fraud exception, which says that the privilege does not apply to communications made "to enable or assist anyone in committing or planning to commit what the client knew or reasonably should have known to be a crime or fraud." Rule 11-503(D).</p>\n",
"score": 6
},
{
"answer_id": 64135,
"body": "<p>In the <a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" rel=\"tag\">united-states</a>, if the lawyer has agreed to represent Walt and Jesse, then they are covered by the privilege, even if they have not yet payed any fee at all. Paying a retainer, even a nominal one dollar, can help confirm that a lawyer/client relationship exists, but it is the agreement to enter into the relationship that matters, not the fee that establishes the relationship and thus the privilege.</p>\n<p>The Louisiana State Bar Association page on <a href=\"https://www.lsba.org/PracticeAidGuide/PAG1.aspx\" rel=\"nofollow noreferrer\">"Establishing the Attorney-Client Relationship"</a> says::</p>\n<blockquote>\n<p>The establishment of the attorney-client relationship involves two elements: a person seeks advice or assistance from an attorney; and the attorney appears to give, agrees to give or gives the advice or assistance. If the client reason- ably believes that there is an attorney-client relationship, then the lawyer has professional obligations to that client. Further, lawyers also have certain professional obligations to non-clients, including former clients (see La. Rule of Prof. Conduct 1.9) and prospective clients who ultimately do not retain the lawyer (see La. Rule of Prof. Conduct 1.18) Therefore, it is essential that both attorney and client understand whether the attorney-client relationship exists.</p>\n<p>...</p>\n<p>After you have screened a prospective client, conducted the conflicts check, and gathered information and impressions through an initial interview, you must tell the client whether you will represent her, preferably in writing. That writing should clearly define the scope of the attorney-client relationship. The best practice is to discuss the scope of the representation with the potential client in the initial consultation and then to confirm that in writing in the engagement letter.</p>\n</blockquote>\n<p>Note that there is no mention of a fee as essential to forming the relationship. The Louisiana guidance above is, as I understand it, typical of US rules on the subject.</p>\n<p>I should note that I have not watched this show, and am not familiar with the fictional events in it. If it is not plausible that an actual attorney/client relationship is being formed, or if the advice is on how to commit or escape the detection of a crime, there would be no privilege.</p>\n",
"score": 1
}
] |
[
"united-states",
"professional-ethics",
"attorney-client-privilege",
"law-in-fiction",
"new-mexico"
] |
What are the limits of removing judicial recourse through arbitration clauses?
| -1 |
https://law.stackexchange.com/questions/88738/what-are-the-limits-of-removing-judicial-recourse-through-arbitration-clauses
|
CC BY-SA 4.0
|
<p>Suppose a FINRA-regulated financial institution is notorious for littering its service agreement with purportedly binding arbitration clauses, but then exercises a policy that amounts to depriving a customer of their assets without any lawful basis.</p>
<p>As their line of business is heavily regulated by statutes and regulations, surely there are certain immutable parameters as to how they should operate that cannot simply be contracted away with provisions in their terms of service that one may be required to sign on the dotted line of in opening an account.</p>
<p><strong>If such a company oversteps one of these parameters for lawful operation, are arbitration clauses binding in respect of these breaches, in removing judicial recourse for the customer in court, rather than in arbitration venues?</strong></p>
<p><strong>And what other scenarios give rise to causes of action that can immutably transcend arbitration clauses?</strong></p>
| 88,738 |
[
{
"answer_id": 88740,
"body": "<blockquote>\n<p>If such a company oversteps one of these parameters for lawful\noperation, are arbitration clauses binding in respect of these\nbreaches, in removing judicial recourse for the customer in court,\nrather than in arbitration venues?</p>\n</blockquote>\n<p>In this situation, the arbitration clause (assuming it was actually entered into) is binding and there is no meaningful judicial recourse through a civil lawsuit. It does not bar criminal prosecutions or administrative agency action.</p>\n<blockquote>\n<p>And what . . . scenarios give rise to causes of action that can\nimmutably transcend arbitration clauses?</p>\n</blockquote>\n<p>Civil actions seeking redress from sexual assaults are exempt from arbitration in the U.S., pursuant to H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which was signed into law on March 3, 2022.</p>\n",
"score": 4
}
] |
[
"united-states",
"contract-law",
"terms-of-service",
"banking",
"arbitration"
] |
What happens when the law changes?
| 2 |
https://law.stackexchange.com/questions/88891/what-happens-when-the-law-changes
|
CC BY-SA 4.0
|
<p>Assume a criminal offence occurred in the past (for example 2015), before a new law was passed at a future date (for example 2016).</p>
<p>What law would be referred to by the judge when it comes to sentencing the offender? I think there is a legal term for this in Latin but I cannot find it.</p>
<p>My question is focusing on the United States and the United Kingdom.</p>
<p>I have done some research, and it appears that ex de facto law is not allowed in the United Kingdom to follow directions given by the European Union. However, I am not sure if this covers my question, as it is for actions that were previously legal, whereas my question is about actions that were illegal and then had changes made to them.</p>
| 88,891 |
[
{
"answer_id": 88893,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"united-states-container\">united-states</a></p>\n<p>An <em>ex post facto</em> law criminalizes conduct after the fact that was legal at the time, something that is prohibited under U.S. constitutional law. But, as the question states:</p>\n<blockquote>\n<p>my question is about actions that were illegal and then had changes\nmade to them.</p>\n</blockquote>\n<p>If something is a crime in 2015 and this criminal law is violated, and the conduct is then legalized in 2016, the conduct committed while it was a crime does not cease to be punishable as a crime and may be punished criminally.</p>\n<p>Often a judge would consider the fact that the conduct was later legalized when evaluating the seriousness of the crime at a post-legalization sentencing, but a judge is not required to do so.</p>\n<p>A significant number of pardons and commutations of criminal sentences by Presidents and Governors in the U.S. involve people convicted of crimes for conduct that is now legal or is now punished less severely. But pardons and commutations are purely discretionary.</p>\n<p>As an aside, France has constitutional protections that give newly lenient treatment of crimes retroactive effect, but the United States does not.</p>\n",
"score": 3
}
] |
[
"united-states",
"united-kingdom",
"criminal-law",
"common-law"
] |
Is a auto body shop required to send me a copy of documents that they said I signed?
| -2 |
https://law.stackexchange.com/questions/88884/is-a-auto-body-shop-required-to-send-me-a-copy-of-documents-that-they-said-i-sig
|
CC BY-SA 4.0
|
<p>I requested through text message that they send me a copy of every document that I signed. They have not responded yet. In this situation, they have added $1300 of additional repair costs onto my original estimate. They never notified or called be before going on with these additional repairs. Nevada law states that any additional repairs over $100 need to be authorized. Do they legally have to provide me with the paperwork I signed? I’m intending on filing a complaint against their business for deceptive practices since they charged well above the written estimate and didn’t notify me.</p>
| 88,884 |
[
{
"answer_id": 88890,
"body": "<blockquote>\n<p>Is a auto body shop required to send me a copy of documents that they said I signed?</p>\n</blockquote>\n<p>During court proceedings there is a phase known as <em>discovery</em>. That is where parties obtain evidence, such as the paperwork you mention, that previously was unavailable due to an adversary or non-party being uncooperative.</p>\n<p>Alternatively, the defendant would have the burden of proof that you authorized the additional charges. This is likelier the path to follow if you file the complaint in Small Claims Court, since there the proceedings are simplified or shorter than in trial court.</p>\n",
"score": 2
}
] |
[
"contract-law",
"fraud",
"deception"
] |
Typo in end date of a contract
| 1 |
https://law.stackexchange.com/questions/88876/typo-in-end-date-of-a-contract
|
CC BY-SA 4.0
|
<p>I am working with a contract company in the UK (I am in the US) and we need to terminate our contract with them. We have provided written notice on Feb 2, 2023 stating we would like to end service on April 3. They have replied stating that we are in contract with them until July of 2023. Below is the clause stating dates both parties agreed to:</p>
<p>This SOW shall commence on 1 October 2022 ("Effective Date") and continue with no provision for
termination (other than the provisions listed agreed in Clause "Termination" below) until 30 June
2022 ("Initial Term").</p>
<p>Unless terminated by 30 April 2022, the SOW shall tacitly renew from 1 July 2022 onwards from full
calendar quarter to calendar quarter until terminated by either party with a notice period of two
months.</p>
<p>The termination clause states we can exit at any time if the company is liquidated (which is not the case).</p>
<p>Are we bound to stay in the contract until July 2023 even though the contrat states July 2022?</p>
| 88,876 |
[
{
"answer_id": 88881,
"body": "<p>If the contract commenced on 1st October 2022 the dates 30 April 2022 and 1 July 2022 are plainly a mistake (2022 for 2023). If so, you can give notice before 30th April 2023 to terminate at the end of June.</p>\n<p>Even if you want to hold them to those dates, the current "full calendar quarter" (which has been tacitly renewing) will end on 31st March, and 2nd February was too late to give the required 2 months notice.</p>\n<p>Either way, the contract cannot end until 30th June 2023, the end of the next full calender quarter.</p>\n",
"score": 6
}
] |
[
"contract-law"
] |
Employee acting illegally on direction from management
| 13 |
https://law.stackexchange.com/questions/88783/employee-acting-illegally-on-direction-from-management
|
CC BY-SA 4.0
|
<p>I thought of this when reading the Meta case regarding negative testing.</p>
<p>Say a state has a law regarding data-retention of log files for banks.</p>
<p>A manager instructs an employee to wipe drive of logs. The employee is knowledgeable enough to know that this log, it is for data-retention, but they do not know any laws regarding how long data must be retained, or what needs to be retained (or deleted).</p>
<p>Could employees have charges filed against them for such type of actions? Has this already occurred?</p>
<p>What obligation does the employee need to know of laws if they have some knowledge, but not expert knowledge. e.g. "Sure boss, I will wipe that important drive. vs I do not think it is legal to wipe that important drive. vs I was informed by counsel that it is illegal to wipe that important drive."</p>
<p>How would an employee know that negative testing is illegal in New York? Where in the chain of obedience is the responsibility laid at(corporate officers)?</p>
| 88,783 |
[
{
"answer_id": 88786,
"body": "<p>An employer doesn't have the authority to authorize its employees to violate the law. An employee who personally participates in a crime has both criminal and civil liability for the employee's actions.</p>\n<p>Private sector employers have vicarious <em>respondeat superior</em> civil liability for the actions of their employees taken in the scope of their duties. In other words, anything that an employee of a private sector employer is liable for, the employer is also liable for.</p>\n<p>Governmental employers do not have vicarious <em>respondeat superior</em> civil liability for the civil rights violations of the employees.</p>\n<p>Direct civil as opposed to vicarious civil liability, and criminal liability for an employer (governmental or private) is generally limited to acts carried out by employees of the entity at the direction of senior management or pursuant to a policy, explicit or implicit, of the employer.</p>\n<p>This said, it is the nature of large employers to break tasks into component parts spread over many employees in different parts of the employing entity. In some circumstances, an individual employee's role may be such that the employee lacks sufficient information about the overall course of action of the employer to know that their actions are part of an overall course of conduct by the employer that constitutes a crime or tort.</p>\n<p>For example, to retreat to an old school example, suppose that there is an employee who sits in front of a shredding machine all day and feeds paper into and clears paper jams, etc. whose job is to shred whatever documents are put in a bin next to his work station. This guy, who makes no decisions regarding what is to be shredded and has no real knowledge of why documents are being shredded, probably doesn't have criminal or civil liability if his labor is used to illegal destroy some documents. For all the shredder guy knows, he could simply be destroying redundant copies of documents to free up space in the filing cabinets while a single archival copy is retained.</p>\n<p>Typically, criminal laws require some level of <em>mens rea</em> (i.e. intent) which may be intent to do something in particular, it may be knowledge of certain facts, or what have you. An employee is generally only going to face criminal liability is the employee who carries out the wrongful act on behalf of the employer does so with the requisite knowledge and intent set forth in the criminal statute.</p>\n",
"score": 16
},
{
"answer_id": 88795,
"body": "<p>Directions from management doesn’t change the legality of one’s actions. Knowledge of what one is doing can. In your described scenario, unless the employees position placed a duty on them, their ignorance will probably protect them.</p>\n<p>Disclaimer: actual innocence is not a 100% guarantee of acquittal, let alone protection from prosecution. If one suspects that records are being illegally destroyed and they either will or have participated in the destruction, they might want to retain an attorney.</p>\n",
"score": 5
},
{
"answer_id": 88785,
"body": "<p>Your description doesn't point us to a specific state law, so we can't tell for sure. However, it is highly unlikely that it is a general crime in any state for a person to delete records. A data retention law would impose the obligation on the bank, not on "the bank and all employees". Murder and theft are laws that apply to everybody, but restrictions on commerce generally apply to the business and not to everybody with some relation to the business. The business might get fined, but even if an employee "willfully" deletes data that is supposed to be retained, they cannot be prosecuted. Less slack is cut for government employees, so that a government clerk willfully destroying government records can be a crime. Unless you have in mind some surprising law where personal liability is created, an employee will not be prosecuted for an action in violation of a business regulation. If you have a specific real law in mind, that would be worth discussing.</p>\n",
"score": 4
}
] |
[
"criminal-law",
"incorporation"
] |
Can salaried employees be forced to attend meetings without being able to charge the time?
| 1 |
https://law.stackexchange.com/questions/88852/can-salaried-employees-be-forced-to-attend-meetings-without-being-able-to-charge
|
CC BY-SA 4.0
|
<p>Background: I work in Maryland</p>
<p>I am a salaried employee; however, I am required to fill out a time card in order to specify which hours are worked on which contract, and am required to work a minimum of 40 hours a week. Recently, we had a mandatory company wide meeting over lunch, that covered some internal company training. When I ask for a charge code to charge for the meeting, I was told that it was a "Lunch and Learn", and that no charge code would be provided, effectively forcing me to work extra time in order to meet the minimum required hours.</p>
<p>I found the following on the Maryland department of labors website on a article about compensable time:</p>
<blockquote>
<p>Trainings and Meetings:
Generally, an employee must be paid for training time and meetings -- whether held during regular work hours or not -- if attendance at a training or meeting is required and not "voluntary". Trainings and meetings are not "voluntary" if it is generally known, or the employee reasonably believes, that non-attendance will result in some negative effect on employment.</p>
</blockquote>
<p>My question is does the fact that I am salaried mean that this above statement does not apply or is it illegal for my employer to not provide a charge code in order to cover the mandatory lunch meeting?</p>
| 88,852 |
[
{
"answer_id": 88853,
"body": "<p>Salaried employees who are exempt from overtime laws under the Fair Labor Standards Act and parallel Maryland laws do not have to be further compensated for any particular work activity including a company meeting.</p>\n<p>Not all salaried employees, however, are exempt from overtime laws under the FLSA and parallel state overtime laws. Basically, salaried employees who are not exempt who work more than 40 hours a week (calculated in a very specific way), are entitled to 1.5/40 times their weekly salary of addition compensation per overtime hour worked.</p>\n<p>Mandatory employee meetings count as working hours that count towards the 40 hours of non-overtime work per week for these employees.</p>\n<p>Given that the employee is required to keep track of the employee's hours, it is likely that the employee is a non-exempt salaried worker, although this is only circumstantial evidence. The employee's company might be tracking exempt salaried worker's hours for other purposes such as for internal bonus and productivity evaluations that don't relate to overtime requirements.</p>\n<p>There are several categories of workers who are exempt from overtime laws and it is a highly fact intensive inquiry.</p>\n<p>The question does not provide enough information to determine whether or not the employee is exempt from overtime laws. Resources to determine how an employee should be classified can be found, for example, from <a href=\"https://www.dol.gov/agencies/whd/overtime\" rel=\"nofollow noreferrer\">the U.S. Labor Department's website</a>. Most exempt employees fall into one of five categories:</p>\n<ol>\n<li>administrative employees,</li>\n<li>computer employees,</li>\n<li>executives,</li>\n<li>outside sales personnel, and</li>\n<li>professional employees.</li>\n</ol>\n<p>Different legal standards apply to determine if employees fall into any on of these five categories.</p>\n",
"score": 1
}
] |
[
"contract-law",
"employment",
"is-x-legal",
"salary",
"employee"
] |
Suits: How can Simon Lowe, with Daniel Hardman, sue Harvey Specter in connection with the doctrine of unclean hands?
| 1 |
https://law.stackexchange.com/questions/37890/suits-how-can-simon-lowe-with-daniel-hardman-sue-harvey-specter-in-connection
|
CC BY-SA 4.0
|
<p>In the last 2 episodes of <em>Suits Season 8</em>, Simon Lowe sues, via his attorney Daniel Hardman, Harvey Specter for breaking privilege. </p>
<p>What happened was the lawyers Harvey Specter and Alex Williams who both work at the law firm Zane-Specter-Litt-Wheelers-Williams both represented clients, Simon Lowe and Thomas Kessler, respectively, on opposing sides of the same case.</p>
<ul>
<li><p>This of course is a conflict of interest, and so Lowe and Kessler signed conflict of interest waivers.</p></li>
<li><p>The case is that Lowe wanted to make a deal with Kessler, to either buy something from Kessler or sell something to Kessler, I kinda forgot, but I don't think this was a settlement negotation. Kessler and Lowe engage in a verbal contract (and physical if you include a handshake), in the presence of their attorneys Harvey and Alex (and I think the managing partner, Louis Litt, was present as well, I forgot).</p></li>
<li><p>Later, Lowe reveals Harvey that Lowe intended or had intended to use Kessler as a stalking horse (I forgot if Lowe was planning to betray Kessler from the beginning or just decided to betray later on) and thus break the verbal contract.</p></li>
<li><p>Finally, Harvey breaks privilege and then Lowe fires and sues Harvey via Hardman. The manner in which Harvey breaks privilege is as follows:</p></li>
<li><ul>
<li><blockquote class="spoiler">
<p> Harvey told Donna Paulson, their chief operating officer who then told Lowe (Donna and Lowe have been romantically involved for a few episodes now). The reason I recall Harvey did so was because Donna is very good at reading people, especially those she already knows and knew something was up when she and Harvey spoke after Harvey, Alex, Lowe and Kessler had met and made a verbal agreement (but also after Lowe had revealed Lowe's intentions to Harvey).</p>
</blockquote></li>
</ul></li>
<li><ul>
<li>This next part is another spoiler for the audience but pretty obvious to the lawyers here:</li>
</ul></li>
<li><ul>
<li><blockquote class="spoiler">
<p> One could argue that technically it was Donna and not Harvey who broke privilege. This legal argument is a spoiler because this was a potential legal strategy pointed out (but not suggested to be used) by someone else.</p>
</blockquote></li>
</ul></li>
<li><ul>
<li><blockquote class="spoiler">
<p> Of course another could argue that Harvey should not have told Donna because privilege didn't extend to her. Yet still another could argue that the conflict of interest waivers might have or should have protected Harvey or Donna. And so on.</p>
</blockquote></li>
</ul></li>
</ul>
<p>Finally, my question:</p>
<p>Lowe's hands seem very unclean to me, in the sense of <a href="https://en.wikipedia.org/wiki/Clean_hands" rel="nofollow noreferrer">unclean hands or clean hands or dirty hands</a>. So either</p>
<ol>
<li><p><em>Case 1</em>: I'm misinterpreting unclean hands. <strong>How am I misinterpreting?</strong></p></li>
<li><p><em>Case 2</em>: I'm interpreting unclean hands correctly but have missed or misinterpreted something in the show. <strong>What is it?</strong> (<a href="https://movies.stackexchange.com/questions/97553/how-can-simon-lowe-with-daniel-hardman-sue-harvey-specter-in-connection-with-t">Asked on movies stackexchange just in case</a>.)</p></li>
<li><p><em>Case 3</em>: I'm interpreting unclean hands correctly and have not missed or misinterpreted anything in the show. <strong>How does Simon Lowe overcome</strong> <a href="https://en.wikipedia.org/wiki/Clean_hands" rel="nofollow noreferrer"><strong>unclean hands</strong></a> to sue Harvey? ("<a href="https://www.reddit.com/r/suits/comments/aximtm/disappointing_season_8_finale/" rel="nofollow noreferrer">Bad writing</a>" or "unrealistic scenario" or "mistake" is an acceptable response.)</p></li>
<li><p><em>Case 4</em>: There is another case. <strong>What is the other case?</strong></p></li>
</ol>
| 37,890 |
[
{
"answer_id": 37899,
"body": "<p>The ‘clean hands’ doctrine only applies to <a href=\"https://en.m.wikipedia.org/wiki/Equitable_remedy\" rel=\"nofollow noreferrer\">equitable remedies</a>, not remedies at <a href=\"https://en.m.wikipedia.org/wiki/Common_law\" rel=\"nofollow noreferrer\">law</a>.</p>\n\n<p>Breaking confidence is, in this case, breach of an implied term of a contract. It is also a tort and this might be argued as well. Both of these are legal, not equitable, remedies. When you bring an action at law rather than at equity your hands can be as filthy as you like. If you broke a contract or committed your own tort that may give the defendant a counter-claim but it doesn’t eliminate your claim.</p>\n",
"score": 1
},
{
"answer_id": 88883,
"body": "<p>Unclean hands is an affirmative defense to someone seeking a remedy from a court. It generally isn't an offensive claim or counterclaim.</p>\n<p>In some jurisdictions, the distinction between law and equity that used to exist in England and some other common law legal systems is retained to allow it only a defense to claims in equity, as DaleM describes, other jurisdictions where law and equity have been merged no longer limit this defense to claims historically allowed in equity and also allow it as a defense to claims that historically arose in law. <em>See, e.g., Vessels v. Hickerson</em>, 327 P.3d 277 (Colo. 2012) (holding that equitable defenses can be asserted against claims arising at law in Colorado).</p>\n<p>The offensive claim asserted from this conduct is also often brought as a cause of action for breach of fiduciary duty. Sometimes, claims of breach of fiduciary duty are considered to arise in equity, and not law, facilitating the availability of an unclean hands defense even in jurisdictions that limit the defense only to claims historically arising in equity.</p>\n",
"score": 0
}
] |
[
"united-states",
"new-york-state",
"law-in-fiction",
"remedies",
"equitable-relief"
] |
Which security is the social security number about?
| 9 |
https://law.stackexchange.com/questions/88825/which-security-is-the-social-security-number-about
|
CC BY-SA 4.0
|
<p>Everywhere online this seems to be a given, no source even attempts to explain it:</p>
<p>If the social security number is about <strong>identifying</strong> an individual/citizen/taxpayer, why is it not called social <strong>identification</strong> number?</p>
<p>What <strong>security</strong> is the SSN about?</p>
| 88,825 |
[
{
"answer_id": 88826,
"body": "<p><a href=\"https://www.ssa.gov/policy/docs/ssb/v69n2/v69n2p55.html\" rel=\"noreferrer\">Social Security numbers</a> are called Social Security numbers because were invented to implement the <a href=\"https://www.ssa.gov/history/35act.html\" rel=\"noreferrer\">Social Security Act of 1935</a>, which was one of the important programs adopted by Congress as part of the <a href=\"https://www.history.com/topics/great-depression/new-deal\" rel=\"noreferrer\">New Deal</a> during the <a href=\"https://en.wikipedia.org/wiki/Great_Depression\" rel=\"noreferrer\">Great Depression</a>.</p>\n<p>These individual identifying numbers made it easier for the government to compile and collate information about the payroll taxes on the wages and salaries of workers potentially entitled to Social Security benefits which was (and is) collected by employers to pay for Social Security benefits.</p>\n<p>Compiling this data was necessary because under the Act one's lifetime history of Social Security payroll taxation history is used to determine if you, or your dependents, are eligible for Social Security benefits at all, and if so, to determine how big the benefit check should be according to formulas adopted by the government agency administering the program.</p>\n<p>This agency is now called the Social Security Administration. But, this agency has been relocated in the federal government bureaucracy now and then since the Act was passed in 1935 as part of general reorganizations of the federal government bureaucracy.</p>\n<p>Keep in mind that all of this data collection and collation was done by hand. Computers adequate to assist government agencies in administering government programs wouldn't come into being for another thirty years.</p>\n<p><strong>The "security" referenced is the economic security that the Social Security Act of 1935 provided to elderly people, widows, and orphans.</strong> Before the Social Security Act was adopted, the elderly, widows, and orphans, who often lacked the ability to earn a living wage in the economic marketplace, routinely faced extremely high poverty rates, and employer survivor's and disability benefits were uncommon.</p>\n<p>In time, Social Security numbers began to be used as a tool for the government to identify people for purposes other than administering the Social Security Act, such as for purposes of administering state and federal income taxes. But, by then, the name "Social Security number" for these identifying numbers originally used to administer the Social Security program was already firmly established.</p>\n",
"score": 50
},
{
"answer_id": 88845,
"body": "<p>The SSN was originally meant to be used <strong>strictly</strong> for tracking a worker’s lifetime earnings in order to calculate retirement benefits after age 65 under the Social Security Act of 1935.</p>\n<p>In fact, until 1972, Social Security cards explicitly had “<strong>For Social Security Purposes Not For Identification</strong>” on them:</p>\n<p><a href=\"https://i.stack.imgur.com/JlA83.jpg\" rel=\"noreferrer\"><img src=\"https://i.stack.imgur.com/JlA83.jpg\" alt=\"enter image description here\" /></a>\n<a href=\"https://www.ssa.gov/history/ssn/ssnversions.html\" rel=\"noreferrer\">https://www.ssa.gov/history/ssn/ssnversions.html</a></p>\n<p>But then, since some sort of national ID system is useful and the US is resistant to the idea due to Federalism, SSNs have transformed into an ersatz national ID by default:\n<a href=\"https://www.theverge.com/2012/9/26/3384416/social-security-numbers-national-ID-identity-theft-nstic\" rel=\"noreferrer\">https://www.theverge.com/2012/9/26/3384416/social-security-numbers-national-ID-identity-theft-nstic</a></p>\n",
"score": 19
}
] |
[
"legal-terms",
"legal-history",
"identification",
"social-security-card"
] |
Washington v Davis in How To Get Away With Murder
| 1 |
https://law.stackexchange.com/questions/30974/washington-v-davis-in-how-to-get-away-with-murder
|
CC BY-SA 4.0
|
<p>In How To Get Away With Murder <a href="https://www.springfieldspringfield.co.uk/view_episode_scripts.php?tv-show=how-to-get-away-with-murder-2014&episode=s04e13" rel="nofollow noreferrer">S04E13</a>, a character says</p>
<blockquote>
<p>In Washington v.
Davis, your predecessors decided that even if a law has a discriminatory effect, it is unconstitutional if that was not its intended purpose.</p>
</blockquote>
<p>Should this instead be any of the following:</p>
<ol>
<li><p>'if a law has a discriminatory effect, it is unconstitutional <strong>even</strong> if that was not its intended purpose'</p>
</li>
<li><p>'even if a law has a discriminatory effect, it is <strong>constitutional</strong> if that was not its intended purpose'</p>
</li>
</ol>
<p>?</p>
| 30,974 |
[
{
"answer_id": 30978,
"body": "<p>Washington v. Davis held that if a law or other action (in this case, a Verbal Skill Test as part of D.C. police hiring practices) is not necessarily unconstitutional if it results in discriminatory outcome. In order to be actionable against the state, one must prove that the law was intended to discriminate from the creation of the law. Your quoted source is in fact wrong and your number 2 option is the correct summation of the quote.</p>\n\n<p>Only laws that are purposefully discriminatory are unconstitutional.</p>\n",
"score": 4
}
] |
[
"united-states",
"discrimination",
"us-supreme-court",
"law-in-fiction",
"legislature"
] |
Insane Shonda Rhimes coincidence: The last name of the lead actors of HTGAWM and Scandal match the last names in Washington v Davis
| -3 |
https://law.stackexchange.com/questions/83537/insane-shonda-rhimes-coincidence-the-last-name-of-the-lead-actors-of-htgawm-and
|
CC BY-SA 4.0
|
<p>There's a cited court case in <em>How To Get Away With Murder</em> season 4, episode 13, called <a href="https://en.wikipedia.org/wiki/Washington_v._Davis" rel="nofollow noreferrer">Washington v Davis</a>. See <a href="https://law.stackexchange.com/questions/30974/washington-v-davis-in-how-to-get-away-with-murder">here</a> about the incorrect citation:</p>
<blockquote>
<p>In Washington v. Davis, your predecessors decided that even if a law has a discriminatory effect, it is unconstitutional if that was not its intended purpose.</p>
</blockquote>
<p>I just realised that Shonda Rhimes has these 2 series...</p>
<div class="s-table-container">
<table class="s-table">
<thead>
<tr>
<th style="text-align: left;">Series...</th>
<th style="text-align: left;">Scandal</th>
<th style="text-align: left;">HTGAWM</th>
</tr>
</thead>
<tbody>
<tr>
<td style="text-align: left;">has this lead character</td>
<td style="text-align: left;">Olivia Pope</td>
<td style="text-align: left;">Annalise Keating</td>
</tr>
<tr>
<td style="text-align: left;">who is played by Lead Actor</td>
<td style="text-align: left;">Kerry <strong>Washington</strong></td>
<td style="text-align: left;">Viola <strong>Davis</strong></td>
</tr>
</tbody>
</table>
</div>
<p>Question: Is there perhaps some court case similar to Washington v Davis in which case maybe Washington v Davis was just chosen to match the last names? Or is this really just an insane coincidence (<a href="https://movies.stackexchange.com/questions/104488/what-makes-the-tweety-bird-saw-a-romulan-joke-funny-in-the-original-version">like the tweety bird romulan joke in the French dub of TBBT</a>)?</p>
| 83,537 |
[
{
"answer_id": 83542,
"body": "<p>There are many cases that announce the same rule as <em>Washington v. Davis</em>, as the same issue has come up in many cases in lower courts both before and after the Supreme Court decided it.</p>\n<p>A competent attorney, however, would not cite to those cases in a Supreme Court argument when there was an on-point precedent from the Supreme Court itself.</p>\n",
"score": 2
}
] |
[
"united-states",
"discrimination",
"us-supreme-court",
"law-in-fiction",
"legislature"
] |
Loan contracts with very high interest: are they even legally binding?
| 0 |
https://law.stackexchange.com/questions/88873/loan-contracts-with-very-high-interest-are-they-even-legally-binding
|
CC BY-SA 4.0
|
<p>Say the borrower agreed to a loan contract of repaying $250 for a $200 in 10 days. Obviously, that is a very high annual interest rate, and illegal in many places. First of all, did the lender just commit a crime in signing that contract with the borrower?</p>
<p>Now, the borrower decides to not repay the loan, and this case gets brought to court. Would the court enforce this contract and say the borrower has to pay? Would the court ignore this because the interest rate is above the legal limit? Would the court even punish the lender for giving out a contract like this?</p>
| 88,873 |
[
{
"answer_id": 88880,
"body": "<p>In <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>, an effective annual rate that exceeds 60% is a criminal interest rate (<em>Criminal Code</em>, <a href=\"https://laws-lois.justice.gc.ca/eng/acts/c-46/page-48.html\" rel=\"nofollow noreferrer\">s. 347</a>). A person who agrees to receive such interest is guilty of an offence. In <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>, credit products with more than 32% annual percentage rate of interest <a href=\"https://www2.gov.bc.ca/gov/content/family-social-supports/borrowing-money/expensive-loans/high-cost-credit-products\" rel=\"nofollow noreferrer\">must be licensed and meet regulatory requirements</a>.</p>\n<p>Contracts that exceed these rates are not necessarily void. Instead, the Court may notionally sever the interest rate to the maximum allowable by law: <em>Forjay Management Ltd. v. 625536 B.C. Ltd.</em>, <a href=\"https://canlii.ca/t/j5jkc#par59\" rel=\"nofollow noreferrer\">2020 BCCA 70, para. 59</a>; <em>Transport North American Express Inc. v. New Solutions Financial Corp.</em>, <a href=\"https://canlii.ca/t/1gd53#par6\" rel=\"nofollow noreferrer\">2004 SCC 7, para. 6</a>.</p>\n<blockquote>\n<p>At one end of the spectrum are contracts so objectionable that their illegality will taint the entire contract. For example, exploitive loan-sharking arrangements and contracts that have a criminal object should be declared void <em>ab initio</em>. At the other end of the spectrum are contracts that, although they do contravene a statutory enactment, are otherwise unobjectionable. Contracts of this nature will often attract the application of the doctrine of severance.</p>\n</blockquote>\n",
"score": 4
},
{
"answer_id": 88878,
"body": "<p>It is over the <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=19.52.020\" rel=\"nofollow noreferrer\">legally allowed interest rate</a> in Washington. It might be a crime, under the <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=9a.82&full=true\" rel=\"nofollow noreferrer\">Criminal Profiteering Act</a>, specifically extortionate extension of credit which is a felony. The requirement for conviction under that law is that the following must be true:</p>\n<blockquote>\n<p>(a) The repayment of the extension of credit, or the performance of\nany promise given in consideration thereof, would be unenforceable at\nthe time the extension of credit was made through civil judicial\nprocesses against the debtor in the county in which the debtor, if a\nnatural person, resided or in every county in which the debtor, if\nother than a natural person, was incorporated or qualified to do\nbusiness.</p>\n<p>(b) The extension of credit was made at a rate of interest in excess\nof an annual rate of forty-five percent calculated according to the\nactuarial method of allocating payments made on a debt between\nprincipal and interest, pursuant to which a payment is applied first\nto the accumulated interest and the balance is applied to the unpaid\nprincipal.</p>\n<p>(c) The creditor intended the debtor to believe that failure to comply\nwith the terms of the extension of credit would be enforced by\nextortionate means.</p>\n<p>(d) Upon the making of the extension of credit, the total of the\nextensions of credit by the creditor to the debtor then outstanding,\nincluding any unpaid interest or similar charges, exceeded one hundred\ndollars.</p>\n</blockquote>\n<p>The contract is civilly unenforceable and the interest rate is above the criminal threshold, also the amount is more than $100. The uncertain part in your description is (c), whether the creditor intended you to believe that the agreement would be enforced by extortionate means, which is defined as</p>\n<blockquote>\n<p>the use, or an express or implicit threat of use, of violence or other\ncriminal means to cause harm to the person, reputation, or property of\nany person.</p>\n</blockquote>\n<p>Threatening to sue a person is not an extortionate means, theft or knee-breaking is.</p>\n<p><a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=19.52&full=true\" rel=\"nofollow noreferrer\">RCW 19.52.030</a> addresses what happens to such contracts in court. First, "the contract shall be usurious, but shall not, therefore, be void". Second,</p>\n<blockquote>\n<p>the creditor shall only be entitled to the principal, less the amount\nof interest accruing thereon at the rate contracted for; and if\ninterest shall have been paid, the creditor shall only be entitled to\nthe principal less twice the amount of the interest paid, and less the\namount of all accrued and unpaid interest; and the debtor shall be\nentitled to costs and reasonable attorneys' fees plus the amount by\nwhich the amount the debtor has paid under the contract exceeds the\namount to which the creditor is entitled</p>\n</blockquote>\n<p>So there is some financial penalty, but the debtor does not get to walk off with all of the creditor's money.</p>\n<p>There does not appear to be any definitive Washington case law deciding whether "not void" mean "is enforceable", therefore since the contract is not void, it might <em>not</em> be "unenforceable".</p>\n",
"score": 2
}
] |
[
"united-states",
"contract-law",
"loan"
] |
Do contracts have to be equal in terms of the amount of information shared?
| 1 |
https://law.stackexchange.com/questions/88858/do-contracts-have-to-be-equal-in-terms-of-the-amount-of-information-shared
|
CC BY-SA 4.0
|
<p>For example, can one party only share the name (or even just a nickname/pseudonym/online name) and the other party has to share full legal name, address, phone number, email, etc? Or both parties have to share the equal amount of information to each other.</p>
| 88,858 |
[
{
"answer_id": 88863,
"body": "<h2>Freedom of contract</h2>\n<p>Parties are (within legal limits) free to contract on whatever terms they like.</p>\n<p>For example, I just had dinner in quite a nice restaurant. I know their name, they don’t know mine.</p>\n",
"score": 2
},
{
"answer_id": 88865,
"body": "<p>No, there is no need for each party to have the same amount of information about each other, subject to the limit of <a href=\"https://www.canlii.org/en/commentary/doc/1945CanLIIDocs61#!fragment/ROOT/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAlAeSvwEoAaZbUwiARUUNwE9oByfgwiEwuBJ259Bw0eJABlPKQBCfCgFEAMhoBqAQQByAYQ0NSYAEbRS2OHTpA\" rel=\"nofollow noreferrer\">mistake as to party</a>, or identity requirements imposed for special categories of contracts.</p>\n<p>For example, it is well-accepted that buying food at a restaurant (or any goods, from any shop) is a contract of sale: <em>Gee v. White Spot Ltd.</em> (1986) <a href=\"https://canlii.ca/t/210nf\" rel=\"nofollow noreferrer\">32 DLR (4th) 238</a> (B.C.S.C):</p>\n<blockquote>\n<p>Counsel for the plaintiffs is, in my opinion, right when he submits that, when persons go into a restaurant and order food, they are making a contract of sale in exactly the same way as they are making a contract of sale when they go into a shop and order any other goods. ... <em>the person who orders the food in a hotel or restaurant prima facie makes himself or herself liable to pay for it</em></p>\n</blockquote>\n<p>The customer knows much more about the restaurant than the seller knows about the customer.</p>\n",
"score": 2
}
] |
[
"contract-law"
] |
Is there a general definition for "with good manners"?
| 0 |
https://law.stackexchange.com/questions/88831/is-there-a-general-definition-for-with-good-manners
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CC BY-SA 4.0
|
<p>Is there a general definition for "with good manners"?</p>
<p>Like it's used e.g. in relation to termination of employment relationship.</p>
<p>The Finnish employment law for example states that termination of employment relationship must be "with good manners" (it's translated as "factual"):</p>
<p><a href="https://www-minilex-fi.translate.goog/a/ty%C3%B6suhteen-p%C3%A4%C3%A4tt%C3%A4minen-ja-luottamuspula?_x_tr_sl=auto&_x_tr_tl=en&_x_tr_hl=fi&_x_tr_pto=wapp" rel="nofollow noreferrer">https://www-minilex-fi.translate.goog/a/ty%C3%B6suhteen-p%C3%A4%C3%A4tt%C3%A4minen-ja-luottamuspula?_x_tr_sl=auto&_x_tr_tl=en&_x_tr_hl=fi&_x_tr_pto=wapp</a></p>
<blockquote>
<p>The employer is always required to provide a reason for dismissal, which in this context would be a lack of trust. This <strong>basis must also be factual and weighty</strong>. A similar reason for termination is not required from the employee, so the employee can terminate the employment relationship without reason.</p>
</blockquote>
<p>However, if the expression was interpreted using:</p>
<blockquote>
<p>with good manners:</p>
<p>The treatment of other people with courtesy and politeness, and
<strong>showing correct public behaviour</strong>.</p>
</blockquote>
<p>then the question arises.</p>
<hr />
<p>In particular, maybe the confusion is from double meaning in Finnish where "asiallinen" may mean both "factual" or "good-mannered". And I actually read the latter, and thought that what it means is that it cannot be based on e.g. a racist or sexist remark, which may be seen as not good-mannered.</p>
| 88,831 |
[
{
"answer_id": 88840,
"body": "<p>The Finnish government's English version of <a href=\"https://www.finlex.fi/fi/laki/ajantasa/2001/20010055\" rel=\"nofollow noreferrer\">Työsopimuslaki</a> does not refer to "manners". It does refer to "particularly weighty reason" in Ch. 3 §5, and regarding termination in Ch. 7 §1 "The employer shall not terminate an indefinitely valid employment contract without proper and weighty reason". Subsequent §2 states what those reasons are <em>not</em> (illness, strike, politics, religion, filing a grievance). It is not prohibited to fire a person for being rude, if the factual circumstances are "weighty". The official Swedish version refers to "vägande sakskäl" in 7§1 and "sakliga och vägande" in 7§2, which I would unofficially translate as "weighty (factual) reason". The official Finnish version refers to "painavasta syystä" which Google tells me means "for a compelling reason".</p>\n",
"score": 3
}
] |
[
"employment",
"finland"
] |
Buying a car for temporary use outside of my home state?
| 0 |
https://law.stackexchange.com/questions/88854/buying-a-car-for-temporary-use-outside-of-my-home-state
|
CC BY-SA 4.0
|
<p>Strange scenario here: I live in Idaho, and would like to be in Colorado for a few weeks. Cars are cheaper in Colorado than Idaho (assume this is true).</p>
<p>I'd like to fly to Colorado, buy a car, use it there for a few weeks, and drive it back to Idaho. I don't have any immediate intent to sell the car on returning to Idaho.</p>
<p>Everything I can find about buying a car out of state assumes you're buying the car and immediately going back to your home state. This isn't what I want to do. I want to use the car in Colorado for a while first.</p>
<p>I'm happy to pay registration/tax/title/etc. fees in Idaho, but if I have to make a roundtrip just to visit the DMV once, that'd be kinda silly and I might as well buy the car before leaving.</p>
<p>I keep coming up short on finding out how to pull this off. I'd much appreciate any pointers ya'll have!</p>
| 88,854 |
[
{
"answer_id": 88857,
"body": "<p>Colorado law applies to Colorado citizens and requires licensing a car bought from a dealer within 60 days <a href=\"https://dmv.colorado.gov/registration-requirements\" rel=\"nofollow noreferrer\">Colorado DMV</a>. Idaho law applies to Idaho residents and requires registering it in 30 days. <a href=\"https://itd.idaho.gov/wp-content/uploads/2018/08/DMV_Vehicle-Titles.pdf\" rel=\"nofollow noreferrer\">Idaho DMV</a>.</p>\n<p>So it looks like only the Idaho one would apply, and even if Colorado's would too, they would give you even more time. So fly to Colorado, buy a car from a dealer, have fun for a few weeks, then drive home and get it registered before 30 days is up and you should be all good.</p>\n",
"score": 1
}
] |
[
"vehicle",
"colorado",
"idaho"
] |
Are deities from classic mythology free to use?
| -1 |
https://law.stackexchange.com/questions/88656/are-deities-from-classic-mythology-free-to-use
|
CC BY-SA 4.0
|
<p>For instance the deities (or gods) from Japanese, Roman, Greek, Hindu etc. mythologies. Can they be used in modern times without authorization from any copyright holders?</p>
| 88,656 |
[
{
"answer_id": 88658,
"body": "<p>It is not clear to me how you "use" a mythological entity, and I take no position as to the divine consequences of any unauthorized uses, but you are entitled to incorporate then in your own intellectual creations for two reasons. First, any imaginable copyright on original texts (e.g. the Bhagavad Gita) has long since expired. Not all texts are of such certifiably ancient provenance, so there may be contemporary texts created by a practitioner of Ásatrúarfélagið which is protected. Second, names (Amitāyus, Zaraθuštra, Ngai) are not protected by copyright, so you can use names.</p>\n",
"score": 3
}
] |
[
"copyright"
] |
Interpretation of 'wrongly detained' goods in English law
| 1 |
https://law.stackexchange.com/questions/88846/interpretation-of-wrongly-detained-goods-in-english-law
|
CC BY-SA 4.0
|
<p>If a party applying for a court order alleges that another party has 'wrongly detained' goods, how can/should this be interpreted. It was written in the context of:</p>
<blockquote>
<p>Given that defendant has wrongly detained the goods, the court should order...</p>
</blockquote>
<p>My initial reading is that wrongly detained implies that the goods are in the possession of the defendant unlawfully.</p>
<p>It's worth noting, that in this circumstance, the defendant gained possession of the goods lawfully, there is no prior or contemporaneous agreement with respect to returning goods.</p>
<p>Is it correct to interpret 'wrongly detained' as meaning held unlawfully? Are there any other interpretations likely possible?</p>
| 88,846 |
[
{
"answer_id": 88847,
"body": "<blockquote>\n<p>Is it correct to interpret 'wrongly detained' as meaning held\nunlawfully? Are there any other interpretations likely possible?</p>\n</blockquote>\n<p>Retaining possession doesn't have to be wrongful prior to the point at which a person with a superior right to possession demands that possession be transferred to them.</p>\n<p>For example, suppose that I own a custom desk, and I direct my employee and agent to retrieve the desk for me, which has been paid for in full and is being held at a furniture store awaiting my pickup. The furniture store's possession of the desk isn't wrongful until my employee goes to the furniture store and asked to be given the desk and the furniture store can confirm that my employee is authorized to pick it up, but refuses to turn over the desk to my employee anyway. And, this happens while I'm abroad on an ethnography research mission deep in the Amazon jungle for the next year, and I am unavailable.</p>\n<p>My employee could sue the furniture store which upon refusing my employee's demand had wrongfully detained my custom desk to gain possession of it. This is because my employee has a superior right to possess the custom desk to the furniture store, even though I own the desk.</p>\n<p>Similarly, if I buy a car with a car loan and then default on my loan in a way that authorizes its repossession upon the demand of the lender under the loan agreement and the applicable chattel mortgage law, and I refuse to allow it to be turned over to the repo man for the lender, either the lender or the repo man would have superior right to possession of the car to me, and I would be wrongfully detaining the car. This is true even though I came into possession of the car rightfully and was not wrongfully detaining it until the lender had the right to repossess it and demanded that I turn it over. Even then, my wrongful detention might be merely a breach of contract, rather than a crime.</p>\n<p>So, yes it is unlawful possession in the technical sense, but wrongful possession includes a much broader range of conduct than, for example, criminal theft.</p>\n<blockquote>\n<p>It's worth noting, that in this circumstance, the defendant gained\npossession of the goods lawfully, there is no prior or contemporaneous\nagreement with respect to returning goods.</p>\n</blockquote>\n<p>In this situation, absent other extenuating circumstances (like a possessory repairman's lien or storage costs lien, or possession of something by a spouse while a divorce is pending, or a court order directing someone to hold property pending a determination of ownership by a court), anyone with a greater right to possession than the person who is currently in possession of it can simply demand that possession be turned over immediately, and their possession then becomes wrongful detention if they don't promptly comply.</p>\n<p>For example, if you loan you backhoe to your neighbor with no other agreement, your neighbor has to return it to you or your agent upon demand.</p>\n<p>Someone who is in possession of property of another lawfully entrusted to them, who has no other relationship to the owner of the property, is a "bailee" of the property for the owner or other person with a superior right to possession of it who delivered the property to the bailee, who is the "bailor" of the property.</p>\n",
"score": 1
}
] |
[
"england-and-wales",
"civil-law",
"interpretation"
] |
Could the U.S. Federal government constitutionally enact laws that duplicate the de facto regional differences caused by circuit splits?
| 9 |
https://law.stackexchange.com/questions/88832/could-the-u-s-federal-government-constitutionally-enact-laws-that-duplicate-the
|
CC BY-SA 4.0
|
<p>Circuit splits have the effect of treating people in America differently with regards to the law depending on where they live, due to differing interpretations of the same statute. Some of these differing interpretations involve what seems like major questions of rights that such as in <a href="https://en.wikipedia.org/wiki/Circuit_split#cite_ref-61" rel="noreferrer">these cases</a> about warrentless seizures of a person based on suspicion of the person having committed a misdemeanor.</p>
<p>Would it pass constitutional muster for the U.S. code to enact de jure laws that have these de facto effects, i.e. a law that says in Texas police have this power and in Florida they do not, etc.?</p>
<p>If not, is there any legal scholarship arguing that whatever legal principle would prevent the law from being made intentionally should also preclude the de facto situation being allowed to stand rather than having some forcing mechanism for resolution, whether through congress or the Supreme court? I know this obviously isn't the case now as circuit splits do exist and have these effects, just wondering if anyone in the Academy is putting forth arguments against it.</p>
| 88,832 |
[
{
"answer_id": 88833,
"body": "<p><sup>(The original title of your question suggested you might think that federal circuit precedent binds state courts: <a href=\"https://law.stackexchange.com/a/87111/46948\">it generally does not</a>, even on matters of federal law.)</sup></p>\n<p>But regardless, Congress would not be able to legislatively lower the constitutional floor. If a certain police act is prohibited by the Constitution, Congress cannot legislatively allow that act, whether in a single state or uniformly across all states. That means that if the Fifth Circuit has decided that the use of some new investigatory tool is a search under the Fourth Amendment, no law that Congress passes could affect that holding.</p>\n<p>When congress creates laws that result in different effects for different people (e.g. people in Texas vs. people in Florida, as in your hypothetical), the distinction must be rationally related to a legitimate government purpose. Many of the enumerated powers allow for local distinction, some prohibit it. Some examples where Congress has distinguished between states include: localized agricultural programs, time zones, voting rights protections, and various others listed in <a href=\"https://law.stackexchange.com/a/88835/46948\">ohwilleke's review</a>. Some distinctions between states could also intrude on principles of federalism and state sovereignty (e.g. the Supreme Court has said that the Voting Right Act does this).</p>\n<p>Maybe I am unimaginative, but I cannot think of a legitimate federal government purpose that would call for the powers that police have against the people to vary from state to state. Any such variation would have to come from the states themselves: from their state constitutions, or legislative choices to provide heightened protections.</p>\n<p>Discord between circuits is problematic (see a <a href=\"https://en.wikipedia.org/wiki/Circuit_split#Examples_of_existing_circuit_splits\" rel=\"nofollow noreferrer\">list of examples of existing splits</a>), and this is why the Supreme Court of the United States will often hear an appeal where there is a <a href=\"https://law.stackexchange.com/q/21647/46948\">circuit split</a> on a question of constitutional rights.</p>\n",
"score": 7
},
{
"answer_id": 88835,
"body": "<p>Generally speaking, Congress does enact uniform federal laws, and there may be some constitutional boundaries and limitations on enacting local laws (as noted below with respect to bankruptcy court costs). But there isn't a hard and fast rule permitting federal law to be different in different states or on some other geographic basis. The United States Congress has some authority to pass "local" laws.</p>\n<p>For example, the extent to which mineral rights belong to the federal government or are reserved to private landowners differs in different parts of the United States. Similarly, the circumstances under which easements can arise over federal property are not uniform, and homesteading acts have always been limited to particular parts of the country.</p>\n<p>The United States can and does enact different environmental laws governing oil extraction in the Gulf of Mexico than it does in Alaska. There are different federal air pollution laws relating to motor vehicle emissions that apply in California and some Northeastern U.S. states than in the rest of the country.</p>\n<p>Federal alcohol regulation applies different labelling laws to whisky based upon whether or not a certain portion of the product is distilled in Kentucky, even if whisky distilled in, say, Ohio, is chemically indistinguishable. The constitutional amendment ending prohibition is an "anti-uniformity" statute and specifically provides that the states may regulate alcohol differently at the state level.</p>\n<p>The United States can and does enact different regulations for national parks in Florida than it does in Wyoming.</p>\n<p>Postal system regulations can and do single out Hawaii and Alaska for special treatment.</p>\n<p>Federal law concerning Indian tribes is very piecemeal with different tribes and different reservations governing by different laws.</p>\n<p>Eligibility for the joint state-federal Medicaid program differs with some states accepting Obamacare subsidies to expand eligibility, and other states declining to do so. States can differ in having or not having health insurance exchanges under the Affordable Care Act, and subsidies for non-employer health insurance under the Affordable Care Act likewise differ from state to state.</p>\n<p>One of the paradoxical areas is bankruptcy law.</p>\n<p>The Constitution states that federal bankruptcy laws must be "uniform" and in the area of the court costs charged to parties, a pilot project to have a different fee structure in different court districts was held to be unconstitutional on that ground.</p>\n<p>Yet, the assets that someone filing for bankruptcy may retain free of creditor's claims is allowed to (at the election of each U.S. state) and in practice, almost always does, track the same exemptions from creditors that exist in that state outside of bankruptcy proceedings. So, for example, there are basically fifty different sets of rules among the fifty U.S. states regarding when home equity can be exempt from creditor's claims (subject to some limitations in certain cases that set a uniform cap on such protections, for example, for home equity that a debtor wants to shield from securities fraud claims).</p>\n<p>There are also assimilative statutes that adopt by reference the criminal laws of a state where certain federal property is located as federal crimes. And, there are also laws that apply only in areas subject to U.S. jurisdiction which are outside any U.S. state.</p>\n<p>There are a number of U.S. tax laws that apply only in specific geographic areas, such as special tax treatment for Puerto Rico, and Opportunity Zones. Similarly, there are differences in how certain income tax and estate tax provisions apply in community property states from how those provisions apply in separate property states.</p>\n<p>The most famous example is probably the Voting Rights Act which for many decades applied more strict federal regulation of election administration on states with a history of discrimination in election laws than those that did not. Eventually, this provision was struck down by the U.S. Supreme Court. But the U.S. Supreme Court did not hold that the disparate treatment of states under the Voting Rights Act was initially illegal. Instead, it held that the basis for treating those states (and localities) differently had grown stale (in a controversial opinion) and no longer justified this treatment.</p>\n<blockquote>\n<p>Would it pass constitutional muster for the U.S. code to enact de jure\nlaws that have these de facto effects, i.e. a law that says in Texas\npolice have this power and in Florida they do not, etc.?</p>\n</blockquote>\n<p>I could imagine that a law justified by the enforcement clause of the 14th Amendment could be used in connection with Congressional findings in order to, for example, prohibit police in states with a history of discrimination against Hispanics or other populations with a high proportion of immigrants from requiring people to present ID in stops short of an arrest (so called <em>Terry</em> stops), while not imposing that requirement on states without a history of that kind of conduct, which would be upheld as constitutional.</p>\n",
"score": 4
}
] |
[
"united-states",
"due-process",
"equal-protection",
"circuit-splits"
] |
Is it legal to scan a copyrighted book for personal use?
| 0 |
https://law.stackexchange.com/questions/88838/is-it-legal-to-scan-a-copyrighted-book-for-personal-use
|
CC BY-SA 4.0
|
<p>Is it legal to use a scanner or camera to digitize a copyrighted book if it's only for personal use? I own the book, and I have no plans to sell it or give it away.</p>
<p>If so, once the copyright expires, can I share my copy, or do I have to scan it again?</p>
| 88,838 |
[
{
"answer_id": 88839,
"body": "<p>US copyright law does not distinguish "personal use" from "non-personal use", though it does distinguish <a href=\"https://www.justice.gov/archives/jm/criminal-resource-manual-1847-criminal-copyright-infringement-17-usc-506a-and-18-usc-2319\" rel=\"nofollow noreferrer\">commercial</a> from non-commercial, where stronger sanctions can arise from commercial infringement – which can include <a href=\"https://www.justice.gov/archives/jm/criminal-resource-manual-1851-copyright-infringement-fourth-element-commercial-advantage-or\" rel=\"nofollow noreferrer\">"private financial gain"</a>. Copying a whole book which you own <em>is</em> copying which is what define infringement, and because of the extent of copying, it is unlikely to be found to be fair use. There is a special provision for software in <a href=\"https://law.stackexchange.com/questions/41874/legality-of-creating-your-own-backup-copies-of-video-games-you-own\">17 USC 117</a> that allows for making backup copies, which is not applicable to physical books. You are not a statutory archive, which is another escape hatch.</p>\n",
"score": 3
}
] |
[
"united-states",
"copyright"
] |
What fiduciary responsibilities do real estate agents have for a buyer?
| 1 |
https://law.stackexchange.com/questions/88807/what-fiduciary-responsibilities-do-real-estate-agents-have-for-a-buyer
|
CC BY-SA 4.0
|
<p>As the title states, What fiduciary responsibilities do real estate agents have for a buyer?</p>
<p>As a example to stir the thought process. Real estate agents have an inherit benefit of a buyer paying a higher price for a home as they get more commission since its based on a percent of the home's final sell price. If you can prove they give you advice in offering a higher price than required to buy the home. Can they be held liable for something?</p>
<p>Another example, What if you want to make a lowball offer on a home. The buyers agent says "Hey to guarantee you get the home, you can offer over asking price by 40K and still get the home". You say to them, "I can offer at asking or below and still get the home. Why should I over pay?". They then proceed to say they will put in the offer but never do. Then the home sells for the same amount you proposed to them. Are they liable for not putting in the offer?</p>
| 88,807 |
[
{
"answer_id": 88820,
"body": "<h2>Since you ask specifically about <a href=\"https://www.thebalancemoney.com/fiduciary-definition-2866602\" rel=\"nofollow noreferrer\">fiduciary duties</a> ...</h2>\n<p>These exist in common law and are in addition to and complement any statutory or contractual duties.</p>\n<p>First, real estate agents do owe a fiduciary duty to their clients. The linked article breaks them into six categories, even though the duty is a wholistic one it gives a reasonable framework to think about it:</p>\n<blockquote>\n<p>Obedience: You must obey your client’s lawful instructions.</p>\n<p>Loyalty: You must always act in your client’s best interests, even if it means forgoing your own interests.</p>\n<p>Disclosure: You must disclose any material facts about the transaction, including your relationship to the other party.</p>\n<p>Confidentiality: You must keep your client’s information confidential unless you have their permission to do otherwise.</p>\n<p>Accounting: You must keep accurate records of all money and property involved in the transaction.</p>\n<p>Reasonable Care: You must use reasonable care and skill when handling your client’s business.</p>\n</blockquote>\n<p>Urging a buyer to offer a higher price, even though it is good for the agent, doesn't mean it's a breach of the fiduciary duty. If the objectively assessed reason (i.e. by the judge after the event) is that the advice was commercially sound and in the best interest of the buyer, then there is no breach of duty.</p>\n<p>Failing to follow the client's instructions to make an offer is more likely to be a breach of this duty but it still depends on the circumstances. It's always best for the client to give clear instructions, preferably in writing, or the agent may genuinely confuse an <em>instruction</em> as a <em>discussion</em>. Even where there is clear instruction the agent still has to act in the best interests of the client. For example, if while taking the offer to the seller's agent they are informed "My client (the seller) has told me to reject all offers below the asking price and to no longer deal with that prospective buyer" then it would not be in the client's interest to make the offer.</p>\n",
"score": 1
},
{
"answer_id": 88808,
"body": "<p>The <a href=\"https://app.leg.wa.gov/RCW/default.aspx?cite=18.86.050\" rel=\"nofollow noreferrer\">duties of a buyer's agent</a> are statutorily specified in Washington State. The most relevant provision is</p>\n<blockquote>\n<p>(a) To be loyal to the buyer by taking no action that is adverse or\ndetrimental to the buyer's interest in a transaction</p>\n</blockquote>\n<p>In addition there are <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=18.86.030\" rel=\"nofollow noreferrer\">general broker duties</a> that apply to buyer's and seller's agents, the most relevant of which is</p>\n<blockquote>\n<p>(b) To deal honestly and in good faith</p>\n</blockquote>\n<p>An agent can honestly say "I'd like to offer an extra 40K, to increase my commission". They might honestly believe that an over-asking offer is necessary given the fact of the market. But they cannot propose offering 40K more unless there is a good-faith reason to believe that it will be necessary.</p>\n<p>There is also a general duty to present all offers</p>\n<blockquote>\n<p>(c) To present all written offers, written notices and other written\ncommunications to and from either party in a timely manner, regardless\nof whether the property is subject to an existing contract for sale or\nthe buyer is already a party to an existing contract to purchase</p>\n</blockquote>\n<p>It does say "written", so put it in writing.</p>\n",
"score": 0
},
{
"answer_id": 88828,
"body": "<p>In Colorado, the Colorado Real Estate Commission requires <a href=\"https://hallhall.com/wp/wp-content/uploads/2018/06/CO.pdf\" rel=\"nofollow noreferrer\">the following disclosure</a> as a matter of course from someone acting as a realtor. There are three different kinds of real estate broker relationships in Colorado, each of which comes with different duties:</p>\n<blockquote>\n<p>DEFINITIONS OF WORKING RELATIONSHIPS:</p>\n<p>SELLER’S AGENT:</p>\n<p>A seller’s agent (or listing agent) works solely on behalf of the\nseller to promote the interests of the seller with the utmost good\nfaith, loyalty and fidelity. The agent negotiates on behalf of and\nacts as an advocate for the seller. The seller’s agent must disclose\nto potential buyers all adverse material facts actually known by the\nseller’s agent about the property. A separate written listing\nagreement is required which sets forth the duties and obligations of\nthe broker and the seller.</p>\n<p>BUYER’S AGENT:</p>\n<p>A buyer’s agent works solely on behalf of the buyer to promote the\ninterests of the buyer with the utmost good faith, loyalty and\nfidelity. The agent negotiates on behalf of and acts as an advocate\nfor the buyer. The buyer’s agent must disclose to potential sellers\nall adverse material facts actually known by the buyer’s agent\nincluding the buyer’s financial ability to perform the terms of the\ntransaction and if a residential property, whether the buyer intends\nto occupy the property. A separate written buyer agency agreement is\nrequired which sets forth the duties and obligations of the broker and\nthe buyer.</p>\n<p>TRANSACTION-BROKER:</p>\n<p>A transaction-broker assists the buyer or seller or both throughout a\nreal estate transaction by performing terms of any written or oral\nagreement, fully informing the parties, presenting all offers and\nassisting the parties with any contracts, including the closing of the\ntransaction without being an agent or advocate for any of the parties.\nA transaction-broker must use reasonable skill and care in the\nperformance of any oral or written agreement, and must make the same\ndisclosures as agents about all adverse material facts actually known\nby the transaction-broker concerning a property or a buyer’s financial\nability to perform the terms of a transaction and if a residential\nproperty, whether the buyer intends to occupy the property. No written\nagreement is required.</p>\n<p>CUSTOMER:</p>\n<p>A customer is a party to a real estate transaction with whom the\nbroker has no brokerage relationship because such party has not\nengaged or employed the broker, either as the party’s agent or as the\nparty’s transaction-broker.</p>\n</blockquote>\n",
"score": 0
}
] |
[
"united-states",
"liability",
"real-estate"
] |
In the USA what state's laws do I have to abide by when rafting on a river boundary?
| 14 |
https://law.stackexchange.com/questions/88787/in-the-usa-what-states-laws-do-i-have-to-abide-by-when-rafting-on-a-river-bound
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CC BY-SA 4.0
|
<p>Lets say I'm rafting in a river that marks the boundary between state A and B. While in said river I perform an action legal in state A but not in state B. I want to know if I broke the law.</p>
<p>How do I know which state's laws apply? Is it based on whether I am closer to one state's side of the river than the other? Do I have any defense for breaking breaking state B's law if I assumed I was still in state A's jurisdiction?</p>
| 88,787 |
[
{
"answer_id": 88788,
"body": "<p>In most cases, the state boundary line controls.</p>\n<p>For example, Kentucky owns the Ohio River along its border with Ohio, Indiana, and Illinois. In essence, the boundary between Kentucky and these three future states is the low point of the Ohio River's northernmost bank. This was established by a Congressionally passed law in 1792.</p>\n<p>The boundary is defined by federal statute on a case by case basis for each of the rivers that is a boundary between U.S. states. Most codifications of a state's statutory laws also restate the federal statute defining the state's boundary at the beginning before the actual portion setting forth state laws begins.</p>\n<p>In the case of the Rio Grande river, which is a boundary between the U.S. and Mexico, an international boundary treaty determines where the boundary between the U.S. and Mexico is for this purpose. International treaties similarly define all other international water boundaries of the United States.</p>\n<p>This isn't the end of the story, however, because many activities that take place in the "navigable waters of the United States" (which basically means with respect to rivers, rivers wide and deep enough to be used for commercial transportation, like the Mississippi and Ohio Rivers and the Colorado River) are governed by federal <a href=\"https://en.wikipedia.org/wiki/Admiralty_law\" rel=\"nofollow noreferrer\">admiralty law</a>, rather than by state law (even if both sides of the river are in the same state).</p>\n<p>For example, the employment law of ship crews operating on the navigable waters of the United States are governed by admiralty law, and so are most laws governing tort liability in collisions between boats/ships, and most laws governing salvage of boats/ships that have sunk.</p>\n<p>Some admiralty law cases must be litigated in the U.S. District Courts (i.e. in the federal court system's trial courts) which have exclusive jurisdiction over some admiralty law issues, while other admiralty law issues, while still governed by federal admiralty law, may be litigated in either state or federal courts which have concurrent jurisdiction over some admiralty law issues.</p>\n<p>Still, to the extent that admiralty law does not apply, the state law of the state in which that part of the river is located will govern.</p>\n<p>Fun fact: As a young lawyer I once was part of a group of lawyers litigating an admiralty law case arising out of an incident taking place on the Colorado River near Grand Junction, Colorado.</p>\n<blockquote>\n<p>Do I have any defense for breaking breaking state B's law if I assumed I was still in state A jurisdiction?</p>\n</blockquote>\n<p>No. You could argue at trial that you really were in state A jurisdiction. But if the finder of fact at trial determines that you were in state B, then state B law applies.</p>\n",
"score": 20
}
] |
[
"united-states",
"jurisdiction",
"water",
"admiralty"
] |
Is it common to cross out part of a contract in USA?
| 20 |
https://law.stackexchange.com/questions/88744/is-it-common-to-cross-out-part-of-a-contract-in-usa
|
CC BY-SA 4.0
|
<p>My wife is doing a master in New York and we have 2 weeks here, and we found an apartment but we are confused with the way they handle the contracts.</p>
<p>First they told us via email that pets are allowed but the contract they later sent said that pets are not allowed. After we asked about that (because we don't want to sign it as we have a pet) they said that we can cross out that part.</p>
<p>Is this a common practice in USA? In my country when this happens the contract is rewritten and reprinted.</p>
<p><strong>Another doubt is, we are running this contract with a broker, so they are a third party company, but my wife and I are the first who need to sign, is it possible for the landlord to un-cross out what we crossed out about the allowance of pets?</strong></p>
| 88,744 |
[
{
"answer_id": 88745,
"body": "<p>It isn't uncommon to interlineate contract language, or to cross out contract language, with the initials of the parties to the contract.</p>\n<p>This is normally only done with smaller businesses, however, where there is someone who has the authority to do so. Some contracts, such as insurance contracts, for example, have to have their language approved by state regulators before they can be used and can't be modified in that fashion.</p>\n",
"score": 31
},
{
"answer_id": 88764,
"body": "<p>Yes, but note that all parties should sign their initials and date next to the change, so that if it is later disputed no-one can claim the contract was fraudulently modified after signing. For the same reason you should get a copy of the exact version you signed, with changes, initials and final signature for your records.</p>\n<p>You see this kind of things with small businesses using model contracts not well customized to their needs like landlords, but wouldn't see it in dealing with large businesses (where the contract for services is usually take it or leave it), or some specific contract negotiated with a lawyer like a freelancer.</p>\n",
"score": 22
}
] |
[
"contract-law",
"rent",
"sublease"
] |
Can "agreeing not to know anything" be enough to constitute "knowledge" of a waiver?
| 1 |
https://law.stackexchange.com/questions/88823/can-agreeing-not-to-know-anything-be-enough-to-constitute-knowledge-of-a-wai
|
CC BY-SA 4.0
|
<p>For example, if I waive my rights to know what you'll be doing with my internet search history, is that a knowing and intelligent waiver?</p>
| 88,823 |
[
{
"answer_id": 88824,
"body": "<p>The question is rendered moot because <a href=\"https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CIV&division=3.&title=1.81.5.&part=4.&chapter=&article=\" rel=\"nofollow noreferrer\">Cal. Civ. §1798.100</a> declares that</p>\n<blockquote>\n<p>Any provision of a contract or agreement of any kind, including a\nrepresentative action waiver, that purports to waive or limit in any\nway rights under this title, including, but not limited to, any right\nto a remedy or means of enforcement, shall be deemed contrary to\npublic policy and shall be void and unenforceable. This section shall\nnot prevent a consumer from declining to request information from a\nbusiness, declining to opt out of a business’s sale of the consumer’s\npersonal information, or authorizing a business to sell or share the\nconsumer’s personal information after previously opting out.</p>\n</blockquote>\n<p>You can fail to request such information, and you can tell a business that you don't plan to ever exercise that right, but you cannot be bound by such promises, which is to say, this is an un-waivable right. For another right, you might be able to waive that right. Your 5th amendment rights can be waived, but we would have to know more of the circumstances to know if that was a knowing and intelligent waiver.</p>\n",
"score": 4
}
] |
[
"california",
"waivers",
"knowledge",
"knowing"
] |
Is not stopping for a damaged car wing mirror counted as a hit-and-run?
| 1 |
https://law.stackexchange.com/questions/88817/is-not-stopping-for-a-damaged-car-wing-mirror-counted-as-a-hit-and-run
|
CC BY-SA 4.0
|
<p>It is a fairly common occurance for many motorists to have either a car wing mirror damaged or knocked off, especially on tight and difficult to navigate roads in the UK where there is little room to maneuver:
<a href="https://i.stack.imgur.com/j3BlO.jpg" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/j3BlO.jpg" alt="A picture of a narrow country road" /></a></p>
<p>Assuming a car mirror has been knocked off, and the driver has not stopped, does this constitute a road collision or an example of failing to stop, even if no-one has been injured?</p>
| 88,817 |
[
{
"answer_id": 88821,
"body": "<h2>Depends on what you damaged</h2>\n<p>If you are the driver and the accident resulted in personal injury to someone other than you or damage to another vehicle, property or an animal then you must stop and provide your details with the other parties to the accident. You don't have to stop if only you or your property was damaged.</p>\n<p>It's possible that you damaged the hedge and should have left a note but it seems unlikely that you would be prosecuted.</p>\n<p>Of course, if you leave bits of your wing mirror at the scene, that's littering.</p>\n",
"score": 1
}
] |
[
"united-kingdom",
"criminal-law",
"england-and-wales",
"motor-vehicle"
] |
Can a person work for free in a country with a minimum hour rate?
| 1 |
https://law.stackexchange.com/questions/88769/can-a-person-work-for-free-in-a-country-with-a-minimum-hour-rate
|
CC BY-SA 4.0
|
<p>In some countries there is a minimum hourly rate for an employee, given by law.</p>
<p>In a hypothetical scenario, Mr. David intends to work for a company for free for a certain amount of time, either to get some experience or to give back to a community as a volunteer. Would that be a conflict with the law of the minimum hourly rate?</p>
| 88,769 |
[
{
"answer_id": 88790,
"body": "<h2>It depends</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.fairwork.gov.au/tools-and-resources/fact-sheets/unpaid-work/unpaid-work-unpaid-work\" rel=\"nofollow noreferrer\">Unpaid work</a> might be lawful without the person being an employee (and therefore engaging minimum pay laws among other things) in these circumstances:</p>\n<ol>\n<li><strong>Vocational placement</strong> as part of formal work experience in connection with a recognised education or training course.</li>\n<li><strong>Unpaid Trials</strong> for the purpose of demonstrating suitability for a position. Such a trial is valid only for long as it takes to demonstrate (un)suitability and must be under the direct supervision of the potential employer. An hour to a shift is about the limit here.</li>\n<li><strong>Unpaid work experience and unpaid internships</strong> when a person works for a business to gain experience in a particular occupation or industry. The person must not be doing "productive" work, the main benefit of the arrangement must be for the worker, and it must be clear that they are receiving a meaningful learning experience.</li>\n<li><strong>Volunteering</strong> doing work for the main purpose of benefitting someone else, such as a church, sporting club, government school, charity or community organisation. Key components are that neither party intends to create an employment relationship, the volunteer is under no obligation to attend or perform work, and the volunteer does not expect to be paid.</li>\n</ol>\n<p>Notwithstanding, paid or unpaid, workers are protected by Work Health and Safety laws and the Person Controlling a Business or Undertaking (PCBU) is responsible for their safety and welfare.</p>\n",
"score": 2
}
] |
[
"employment",
"conflict-of-laws"
] |
GDPR @ ePrivacy & Data Controller & Local processing PII & Mobile App
| 0 |
https://law.stackexchange.com/questions/88811/gdpr-eprivacy-data-controller-local-processing-pii-mobile-app
|
CC BY-SA 4.0
|
<p>I'm developing an open source client mobile app that allows user to use third-party social media. So the app logs in directly to the interface with the credentials entered by the user and makes direct requests to it. Will the app developer be considered the data controller even though I do not have access to the user's data and the app does not make any requests to my server? All data is processed in memory but the credentials are stored into user's device local storage.</p>
<p>For example, Infinity For Reddit and Nitter.</p>
| 88,811 |
[
{
"answer_id": 88813,
"body": "<p>Data controller is whoever determines the purposes and means of processing. But one app might be involved in lots of different processing activities, and they might have different controllers.</p>\n<p>Clearly, the app developer cannot control for what purposes a third-party social media service might use the data. So the app developer wouldn't be controller for the activities on the social media backend. But the app developer is responsible for sending personal data to the third party service in the first place. And some processing activities might relate solely to the app, not to the social media service, for example analytics or crash reports.</p>\n<p>Relevant case law here is the <em>Fashion ID</em> case, where the CJEU found that website operators who embedded a Facebook “Like” button on their pages are data controllers for the data collection via this embedded button, but not for what Facebook subsequentially does with the data.</p>\n<p>If the app developer is the data controller for sending personal data to the social network, there would be the question of legal basis. However, this will typically be Art 6(1)(b) necessity for performing a contract with the data subject (providing the core services of the app), or maybe consent. This is not going to be a hurdle.</p>\n<p>EPrivacy issues like access to on-device storage are squarely on the app developer – the remote service has no part in that.</p>\n",
"score": 0
}
] |
[
"gdpr",
"privacy"
] |
Does the EU need a condemnation from a member state court to add an organization in the EU's terrorist organization list?
| 0 |
https://law.stackexchange.com/questions/88804/does-the-eu-need-a-condemnation-from-a-member-state-court-to-add-an-organization
|
CC BY-SA 4.0
|
<p>On January 23, the High Representative of the EU for Foreign Affairs <a href="https://en.wikipedia.org/wiki/Josep_Borrell" rel="nofollow noreferrer">Josep Borrell</a> <a href="https://www.youtube.com/watch?v=PAjbP3nSEb0" rel="nofollow noreferrer">claimed </a> that the EU would need a "condemnation from a court in one member state" to insert the <a href="https://en.wikipedia.org/wiki/Islamic_Revolutionary_Guard_Corps" rel="nofollow noreferrer">Islamic Revolutionary Guard Corps (IRGC)</a> in the EU's list of terrorist organizations.</p>
<p>Is this true?</p>
<p>According to the <a href="https://www.consilium.europa.eu/en/policies/fight-against-terrorism/terrorist-list/#criteria" rel="nofollow noreferrer">European Council's web page on the EU terrorist list</a>:</p>
<blockquote>
<p>The common position establishes that the list will be drawn up from precise information indicating that a decision has been taken by a judicial or equivalent competent authority in respect of the person, group or entity concerned. This decision may concern:</p>
<ul>
<li>initiation of investigations or prosecution for a terrorist act or an attempt to carry out or facilitate such an act
conviction for any of those actions</li>
<li>Persons, groups and entities identified by the UN Security Council as being related to terrorism and against whom it has ordered sanctions may also be added to the list.</li>
</ul>
</blockquote>
<p>Does "common position" mean that the procedure is written in law or that it's just common practice? Have all other entities on the EU's terrorist organization list been condemned by a member state court? And what is an "equivalent competent authority"?</p>
| 88,804 |
[
{
"answer_id": 88812,
"body": "<blockquote>\n<p>Does "common position" mean that the procedure is written in law or that it's just common practice?</p>\n</blockquote>\n<p>Neither. It means that that is the position of all member states in common.</p>\n<blockquote>\n<p>Have all other entities on the EU's terrorist organization list been condemned by a member state court?</p>\n</blockquote>\n<p>Not necessarily - the court does not have to be in a member state. A finding by a US, Australian, or Indian court for example may be sufficient.</p>\n<blockquote>\n<p>And what is an "equivalent competent authority"?</p>\n</blockquote>\n<p>What it says. Examples might be a <a href=\"https://en.wikipedia.org/wiki/Military_tribunals_in_the_United_States\" rel=\"nofollow noreferrer\">military tribunal</a> or a <a href=\"https://en.wikipedia.org/wiki/Royal_commission\" rel=\"nofollow noreferrer\">Royal Commission</a>.</p>\n",
"score": 2
}
] |
[
"european-union"
] |
What does leaving a company imply in legal speak? Does it mean termination or quitting a company?
| 1 |
https://law.stackexchange.com/questions/88762/what-does-leaving-a-company-imply-in-legal-speak-does-it-mean-termination-or-qu
|
CC BY-SA 4.0
|
<p>I specifically refer to this example:</p>
<blockquote>
<p>You will receive a $***** relocation bonus. In the event that you
leave within 12 months of your hire date, you will be
responsible for reimbursing the company for the entire bonus.</p>
</blockquote>
<p>Let's say the employee took the money, moved and quit right after he moved. Then he's obligated to pay the employer back. This makes sense.</p>
<p>However say if he came worked for 9 or 10 months then was fired by the employer, based off of the language above is the employee obligated to pay?. Morally it looks like the employee was screwed over as he moved over for no reason and now has to pay for the move.</p>
<p>That clause doesn't look like it should apply to employees getting fired. Should it? How are such matters interpreted by the court?</p>
<p>This clause can allow employers to easily screw over employees after a week right? The employee moves, the employer decides to outsource his job to China then fires him within a week and then demands the relocation bonus back AFTER the person screwed himself over and moved. Who would sign such a contract like that? The intention of the clause is suppose to be there for protection of the company, but the technical language is being specifically interpreted to screw over the employee.</p>
<p>Anyway are there examples of cases similar to this?</p>
<p>The specific location of this is California.</p>
| 88,762 |
[
{
"answer_id": 88792,
"body": "<p>Like most states in the US, there is in California no extra-contractual legal distinction between "for cause" and "for the heck of it" termination. It is possible that your contract has a specific term or tenure clause ("cannot be fired without cause after such-and-such period"), but in lieu of that, you can be fired at any time for any and no reason. The ordinary meaning of "leave a job" is that you quit, and the bonus is an incentive to you to stick with the job – it encourages you to make certain choices, like, not quitting. <em>Since</em> firing for cause (bad behavior of employee) is legally the same as firing to save money, the courts will not reward cynical misuse of the concept of retention bonus by allowing a company to fire you and claw back the bonus.</p>\n",
"score": 2
}
] |
[
"contract-law",
"california",
"employment"
] |
If I obfuscate someone else's source code, can I avoid copyright infringement?
| 2 |
https://law.stackexchange.com/questions/24088/if-i-obfuscate-someone-elses-source-code-can-i-avoid-copyright-infringement
|
CC BY-SA 3.0
|
<p>I know the answer is probably no, but I'm confused about something. The underlying algorithm is never copyrightable. So as long as you "learn from the code" someone else has wrote, and re-implement it, you are allowed to reuse what you learned. But isn't this the same as making a few changes to the source code, i.e. reordering things, changing names etc.? So does this mean running source code through a code obfuscater would avoid copyright infringement issues? I know it's a strange question, but I'm serious. </p>
<p>I'm talking about small portions of code, less than 100 lines, not whole programs. </p>
<p>I ask this question after having read <a href="https://law.stackexchange.com/questions/4097/does-copyrighted-code-protect-intellectual-property-rights-on-novel-algorithms-i">Does copyrighted code protect intellectual property rights on novel algorithms it implements?</a> and <a href="https://law.stackexchange.com/questions/23877/algorithm-pseudocode-in-academic-papers-what-is-the-copyright-license-statu?noredirect=1&lq=1">Algorithm (pseudo)code in academic papers -- what is the copyright/license status?</a> </p>
| 24,088 |
[
{
"answer_id": 24095,
"body": "<p>No, it's still copyright infringement. When you modify a copyrighted work in any way, you generate a <a href=\"https://en.wikipedia.org/wiki/Derivative_work\" rel=\"nofollow noreferrer\">derivative work</a> which you are not allowed to distribute without the permission of the original copyright holder.</p>\n",
"score": 4
},
{
"answer_id": 24102,
"body": "<blockquote>\n <p>So as long as you \"learn from the code\" someone else has wrote, and\n re-implement it, you are allowed to reuse what you learned. But isn't\n this the same as making a few changes to the source code, i.e.\n reordering things, changing names etc.?</p>\n</blockquote>\n\n<p>Not, it is not the same. In practice, to make your re-implementation not infringing copyright, it needs to be written <em>from scratch</em> without copying the original code.</p>\n\n<p>It might be indeed difficult to write an implementation of a fewer than 100-lines algorithm that would not look copied and re-shuffled original. But if you do it as if you have never seen the original but have been taught the algorithm only, you'll make it. A definitive way to make it is to explain the algorithm to somebody else who won't have access to the original, and ask them to code it.</p>\n\n<p>So, to avoid doubt, running code through a code obfuscater will produce <em>derivative work</em>, which means copyright infringement issues cannot be avoided this way.</p>\n",
"score": 1
},
{
"answer_id": 88799,
"body": "<p>The copyright holder has the right to state who is allowed to copy, and who is allowed to modify their creation to create derived works. All the actions you talked about <em>modify</em> the original source code. Including the source code obfuscator, which is modification on a huge scale, but nevertheless just obfuscation and therefore not allowed without permission by the copyright holder.</p>\n<p>What you are allowed to do, is write a program from scratch, not using anyone else's code, and implement someone else's idea.</p>\n<p>Now in practice (that is if you are taken in court), a judge or jury has to decide whether your work is a derived work. You might think that a code obfuscator hides the evidence - but this would be in a civil court, and the court only has to decide what is more likely. With obfuscated code, it's obvious there must be some code that you obfuscated, so you will be asked to show that code. If you show the code, it will be found that it was derived, if you don't show the code the judge will assume that you are not showing it because you know it is derived.</p>\n<p>And it is recommended that you find someone to write <em>your</em> code who has never seen the original code. Because then you can say in court "I swear I didn't modify the original, but more, I couldn't have modified it even if I wanted". It's not a matter what you are allowed to do, but how to prove you didn't do anything wrong.</p>\n",
"score": 0
}
] |
[
"copyright",
"software"
] |
Is it legal to publish APK source code?
| 2 |
https://law.stackexchange.com/questions/83956/is-it-legal-to-publish-apk-source-code
|
CC BY-SA 4.0
|
<p>There is an Android backgammon program (several million downloads, most of them free and sponsored by ads, the rest of them paid for) that I have long suspected is cheating.</p>
<p>I have finally, after a lot of hard work and my own programming skills, managed to reverse engineer the APK (even though the developer has tried to conceal his dodgy dealing behind ProGuard).</p>
<p>Is it illegal for me to publish the bits of code that do the cheating?</p>
<p>I'm mindful of the whole "intellectual property" thing......but if something is dodgy, it needs exposing surely?</p>
| 83,956 |
[
{
"answer_id": 83957,
"body": "<p>You could experimentally test the legality of this action. The law does not generally condone vigilante action, and copying and distributing program source code is, on the face of it, illegal copyright infringement. However, in the US you can try the "fair use" defense. That means you would have to go to court, but your lawyer would advance an argument that this is allowed copying. The main argument would be based on "limited extent of copying" (if you only publish a fraction of the code), and the "comment" purpose (essentially, expression a political position by showing "This is what he did").</p>\n",
"score": 1
}
] |
[
"software"
] |
Dilligence implications of VWPITTPA
| 1 |
https://law.stackexchange.com/questions/88796/dilligence-implications-of-vwpittpa
|
CC BY-SA 4.0
|
<p>The U.S. has <a href="https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visa-waiver-program.html" rel="nofollow noreferrer">Visa Waiver Program (VWP)</a> that allows citizens of several countries to travel to the U.S. without a visa.</p>
<p>Entry isn't guaranteed and exceptions do apply. There is <a href="https://www.cbp.gov/travel/international-visitors/visa-waiver-program/visa-waiver-program-improvement-and-terrorist-travel-prevention-act-faq" rel="nofollow noreferrer">Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015</a> (VWPITTPA), which enforces (among everything else) the following,</p>
<blockquote>
<p>travelers in the following categories are no longer eligible to travel or be admitted to the United States, without a waiver, under the VWP:<br />
Nationals of VWP countries <strong>who have traveled to or been present in Iraq, North Korea, Syria, Iran, Sudan, Libya, Somalia, or Yemen at any time on or after March 1, 2011</strong> (with limited exceptions)...</p>
</blockquote>
<p>I noticed that VWPITTPA Act was passed in <strong>2015</strong>, whereas it applies to travelers from <strong>2011</strong> onwards. In other words, VWPITTPA applies retroactively. This seems to imply that a law-abiding individual from VWP-eligible countries, from 2011 to 2015, must have known that they shouldn't or mustn't to travel to Iraq, North Korea, Syria, Iran, Sudan, Libya, Somalia, or Yemen.</p>
<ol>
<li>What is the implied criteria for VWP-eligible individual to know not to travel to these countries from 2011 to 2015? For example, is it implied that an individual is watches the news, consults American embassies or consulates abroad about their travel plans, or perhaps something else?</li>
<li>Let's say a VWP-eligible individual plans to travel to questionable, but otherwise unrestricted locations, such as Venezuela. Based upon the criteria above, can it be reasonably predicted that such individial will be barred from entering the U.S. via VWP in the future?</li>
</ol>
<p>P.S. I am not a national of any of these countries, nor did I ever travel to these countries listed in VWPITTPA. I'm just curious about the reasoning here.</p>
| 88,796 |
[
{
"answer_id": 88797,
"body": "<blockquote>\n<p>This seems to imply that a law-abiding individual from VWP-eligible countries, from 2011 to 2015, must have known that they shouldn't or mustn't to travel to Iraq, North Korea, Syria, Iran, Sudan, Libya, Somalia, or Yemen.</p>\n</blockquote>\n<p>This reflects a misunderstanding. The act does not make it illegal to visit these places. Law abiding people do not need to avoid doing so. People who have traveled to those places are not prohibited from traveling to the US altogether; they are only disqualified from using the VWP. They are expected to apply for a B-1 or B-2 visa, as appropriate, to visit the US. With that in mind:</p>\n<ol>\n<li><p>There is no expectation that people eligible for the visa waiver program should have known not to travel to those places between 2011 and 2015, and</p>\n</li>\n<li><p>There is no way to predict whether or when any other country might be added to the list.</p>\n</li>\n</ol>\n",
"score": 2
}
] |
[
"united-states",
"travel"
] |
Divorce without the process of divorce; is it possible to obtain a dissolution after 15 years?
| -2 |
https://law.stackexchange.com/questions/88722/divorce-without-the-process-of-divorce-is-it-possible-to-obtain-a-dissolution-a
|
CC BY-SA 4.0
|
<p>Suppose a couple eloped to Idaho in 2008. They have not seen each other since 2009. Suppose that one lives in Washington and then other lives in Colorado.</p>
<p>Is there a way for such a couple to get a dissolution of marriage without going through the divorce process?</p>
<p>Suppose further that there is one common child involved. Suppose further that he is 14 years old.</p>
<p>Suppose further that there was a no-contact order in effect from 2009 to 2019 because of an assault by one member of the couple on the other, and the child.</p>
| 88,722 |
[
{
"answer_id": 88727,
"body": "<p>The party who lives in Washington can petition dissolution under <a href=\"https://app.leg.wa.gov/RCW/default.aspx?cite=26.09&full=true\" rel=\"nofollow noreferrer\">this chapter</a>. It does not matter where they were married or lived, what just matters that the party filing the petition lives in Washington. Having a child is not a bar to dissolution. That much is extremely simple. If the two parties cannot agree to the dissolution and to the child-custody plan, lawyers would be involved to reach an agreement.</p>\n<p>It is worth noting that for 50 years, divorce has been replaced in Washington with dissolution. It is also worth noting that there is an alternative path which may be more efficiency, namely legal separation. The primary downside of a separation is that it is a bar to re-marriage (you are still married). But, under RCW 26.09.150</p>\n<blockquote>\n<p>No earlier than six months after entry of a decree of legal\nseparation, on motion of either party, the court shall convert the\ndecree of legal separation to a decree of dissolution of marriage or\ndomestic partnership.</p>\n</blockquote>\n<p>This is a matter of right that cannot be objected to.</p>\n",
"score": 2
}
] |
[
"divorce"
] |
If the employer tells me via text message that I will be paid 2 weeks of severance, how much obligation is he under to fulfill that statement?
| 3 |
https://law.stackexchange.com/questions/88779/if-the-employer-tells-me-via-text-message-that-i-will-be-paid-2-weeks-of-severan
|
CC BY-SA 4.0
|
<p>If an employer promised me in informal writing (text message) that I was owed 2 weeks of severance pay and then fails to pay me or present me with any formal contract, is he under any form of legal obligation to get me something?</p>
<p>These were the exact words:</p>
<blockquote>
<p>Also it wasn't mentioned in the meeting but you'll be getting 2 weeks of severance pay</p>
</blockquote>
<p>The jurisdiction is California.</p>
| 88,779 |
[
{
"answer_id": 88780,
"body": "<p>Contracts do not have to be written and signed on pieces of paper, except in a few cases specified by law. Writing style (ordinary style of talking vs. high-register formulaic language) does not affect the validity or a writing in contract law. You do have something in writing.</p>\n<p>What matters most is what he actually said (exact words, not your belief of what it must have meant), and how it relates to any existing contractual obligation. For example if the message says "You're fired, turn your badge in at the desk. I'll think about giving you two weeks pay", that's not an enforceable promise. But your existing contract might say "You get 2 weeks severance pay when we fire you", and that can't be walked by by saying "I'll thinking about it". And it also depends on whether there are any laws mandating severance pay (but California does not have any mandatory severance pay law).</p>\n",
"score": 4
}
] |
[
"contract-law",
"california",
"employment"
] |
What are the legal requirements of running a giveaway competition where people play for free
| 1 |
https://law.stackexchange.com/questions/88773/what-are-the-legal-requirements-of-running-a-giveaway-competition-where-people-p
|
CC BY-SA 4.0
|
<p>What are the legal requirements of running a giveaway competition where people play for free but will win something?</p>
<p>Also is a competition like a singing/ talent competition where there are judges (and people can win something) have the same legal requirements like a giveaway? If so, why? If not so, why?</p>
<p>Lastly are there any legal loopholes of legally running giveaways with less legal overhead?</p>
| 88,773 |
[
{
"answer_id": 88794,
"body": "<h2>Gambling</h2>\n<p>Most jurisdictions regulate gambling. Exactly what constitutes gambling (and how different types are regulated) varies by jurisdiction but the criteria usually turn on whether the outcome is primarily determined by luck or skill. If it is primarily luck based, it's gambling - if it's skill-based, it isn't.</p>\n<blockquote>\n<p>What are the legal requirements of running a giveaway competition where people play for free but will win something?</p>\n</blockquote>\n<p>The common name for such a competition is a <a href=\"https://en.wikipedia.org/wiki/Sweepstake\" rel=\"nofollow noreferrer\">sweepstake</a> if entry is free, or a <a href=\"https://en.wikipedia.org/wiki/Lottery\" rel=\"nofollow noreferrer\">lottery</a> if some kind of purchase is required or if the promotion is limited to, say, existing customers.</p>\n<p>The legal requirements vary by jurisdiction - they may be freely allowed, require registration, or be prohibited. There might also be differences if the promoter is a for-profit business or a not-for-profit community organisation.</p>\n<blockquote>\n<p>Also is a competition like a singing/ talent competition where there are judges (and people can win something) have the same legal requirements like a giveaway? If so, why? If not so, why?</p>\n</blockquote>\n<p>No. As stated above, the outcome of these is driven primarily by skill, not luck. Also in this category are sporting competitions, game tournaments, colouring-in competitions etc.</p>\n",
"score": 2
}
] |
[
"contract-law",
"constitutional-law",
"social-media",
"gambling",
"money-service"
] |
business entity cross country relocation
| 1 |
https://law.stackexchange.com/questions/88770/business-entity-cross-country-relocation
|
CC BY-SA 4.0
|
<p>Is it possible to relocate a company from a country A to a country B? Lets say that in both these two countries are there is an approximate equivalent of the company type, say private company limited by shares, in UK an Ltd.</p>
<p>Thank you.</p>
| 88,770 |
[
{
"answer_id": 88791,
"body": "<h2>No</h2>\n<p>Each country (and sometimes each state/province) has their own laws and registration requirements for companies.</p>\n<p>It is possible to transfer a <em>business</em> and other assets from one company to another (within or across jurisdictions) - this will usually have tax implications. It is also usually possible to operate in a country with a foreign company.</p>\n",
"score": 1
}
] |
[
"corporate-law"
] |
Can personal dashcam footage recorded by a third party be used for traffic violation enforcement?
| 10 |
https://law.stackexchange.com/questions/88742/can-personal-dashcam-footage-recorded-by-a-third-party-be-used-for-traffic-viola
|
CC BY-SA 4.0
|
<p>X is sitting at a red light (in the US). Another car (driver Y) behind X swerves around X to drive through the red light. X's vehicle has a recording dashcam which captures the license plate of Y's vehicle as well as showing the clearly red light. X sends the video of the incident to local law enforcement.</p>
<p>Is the dashcam evidence admissible in a traffic violation proceeding, and can the evidence be used to issue a ticket against Y?</p>
<p>I understand that this may be somewhat locale-specific, and various states do have policies regarding <a href="https://www.iihs.org/topics/red-light-running/automated-enforcement-laws" rel="nofollow noreferrer">use of video cameras for automated traffic enforcement</a>, <a href="https://www.blackboxmycar.com/pages/are-dash-cams-legal-in-my-area-dash-cam-laws-in-every-us-state" rel="nofollow noreferrer">use of dashcams</a>, and the <a href="https://www.jeremywanglaw.com/blog/uncategorized/dash-cams-are-they-acceptable-evidence-in-a-court-case/" rel="nofollow noreferrer">admissibility of dashcam footage in court</a> (generally provided by the defendant to prove innocence or police to prove guilt). However, the laws are somewhat imprecise regarding:</p>
<ol>
<li>What sources of video footage are admissible for traffic violation enforcement?</li>
<li>Can third-party tips and willingly-provided evidence of illegal driving be used to raise traffic violations? Perhaps in certain states?</li>
</ol>
| 88,742 |
[
{
"answer_id": 88746,
"body": "<p>If a police officer reviewed the footage and then went out and issued a citation in person to the offender, this could probably be used. Many states limit tickets issued by mail based upon camera evidence alone. But, while some state laws have specific requirements, but in general, authenticated video recordings are admissible evidence in court proceedings, and a citizen complaint can be a basis for initiating a traffic offense prosecution.</p>\n<p>To prove some offenses, like speeding, dashcam evidence of a third-party may not be very good evidence, but for running a red light or a stop sign, it could be powerful evidence.</p>\n",
"score": 11
},
{
"answer_id": 88747,
"body": "<p>Washington state law regarding citations for traffic infractions is governed by <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=46.63&full=true#46.63.030\" rel=\"noreferrer\">RCW 46.63.030(1)</a>\nunder 5 conditions:</p>\n<blockquote>\n<p>(a) When the infraction is committed in the officer's presence, except\nas provided in RCW 46.09.485;</p>\n<p>(b) When the officer is acting upon the request of a law enforcement\nofficer in whose presence the traffic infraction was committed;</p>\n<p>(c) If an officer investigating at the scene of a motor vehicle\naccident has reasonable cause to believe that the driver of a motor\nvehicle involved in the accident has committed a traffic infraction;</p>\n<p>(d) When the infraction is detected through the use of an automated\ntraffic safety camera under RCW 46.63.170; or</p>\n<p>(e) When the infraction is detected through the use of an automated\nschool bus safety camera under RCW 46.63.180.</p>\n</blockquote>\n<p>The exception in (a) pertains to ATVs. There is no officer present in the scenario, and no accident. X's camera is not an <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=46.63&full=true#46.63.170\" rel=\"noreferrer\">automated traffic safety camera</a> or school bus safety camera. So the officer is not authorized to issue a ticket, in Washington.</p>\n",
"score": 9
}
] |
[
"united-states",
"traffic"
] |
What permits needed for a company to issue its own prepaid card?
| 0 |
https://law.stackexchange.com/questions/88410/what-permits-needed-for-a-company-to-issue-its-own-prepaid-card
|
CC BY-SA 4.0
|
<p>What laws apply to companies that wish to issue their own prepaid cards?</p>
<ul>
<li>The cards can only be used to buy goods/services from the company</li>
<li>The cards are refundable, and the remaining balance can be returned.</li>
</ul>
| 88,410 |
[
{
"answer_id": 88506,
"body": "<p>No permit is required. The <a href=\"https://law.justia.com/codes/new-jersey/2013/title-56/section-56-8-110/\" rel=\"nofollow noreferrer\">NJ law</a> that applies is the same in substance as the federal laws, <a href=\"https://www.ecfr.gov/current/title-12/chapter-X/part-1005#p-1005.20(a)(3)\" rel=\"nofollow noreferrer\">under which</a> this is a "store gift card" or "gift certificate" depending on whether it can be re-filled. It is not a "general-use prepaid card" because it can only be used with the company and affiliates, and cannot be used generally. Regardless of the specifics of the card, 12 CFR Part 1005 as linked above is the set of federal regulations that you would have to comply with. There are relatively few distinctions between the classes of cards, the main requirement being that you cannot mislabel a card that is of one type as being a card of another type; see <a href=\"https://www.ecfr.gov/current/title-12/chapter-X/part-1005/subpart-A/section-1005.20\" rel=\"nofollow noreferrer\">here</a> for cards that are not "general-purpose".</p>\n",
"score": 1
}
] |
[
"united-states",
"business",
"finance",
"new-jersey",
"credit-card"
] |
GDPR - Are technical identifiers personal data?
| 10 |
https://law.stackexchange.com/questions/88776/gdpr-are-technical-identifiers-personal-data
|
CC BY-SA 4.0
|
<p>I've built devices for an internet service provider company (in EU) to measure internet speed at subscribers' home. The devices are used by company technicians when fixing network speed problems reported by subscribers. For every measurement the devices store the location and the time of measurement, and the measured network speed. The location is stored as the <strong>technical identifier</strong> of the subscriber's <strong>network endpoint</strong>, which basically identifies the "internet cable" installed at the subscriber's home.</p>
<p><strong>Question 1. Are technical identifiers personal data?</strong> Inside private company databases, they are definitely linked to subscriber data. They are also printed on invoices sent to the subscriber. But they are not public information.</p>
<p><strong>Question 2. Can technical identifiers be stored in measurement devices?</strong> The devices I made only measure a physical parameter, the network speed, for a given location in the company's IP network. I think this has nothing to do with the subscribers themselves.</p>
<p>Someone told me endpoint identifiers <strong>should not be stored</strong> in the devices, or at least <strong>should be deleted after a while</strong>, "because of GDPR". I think deleting the endpoint identifiers would make the measurements unusable, because the location of the measurement is very important for solving network problems. Delayed deletion is also problematic: if there is a 2nd speed problem months later, then it would be useful to have previous measurements at the same location. What should I do?</p>
| 88,776 |
[
{
"answer_id": 88777,
"body": "<blockquote>\n<p>Question 1. Are technical identifiers personal data?</p>\n</blockquote>\n<p>Yes. If they identify a person. For example an IP Address is considered personal data, because a person or household can be identified by an IP. Yes, I know that technically there are a lot of exceptions. But in general, if you have an IP, you can identify the subscriber given the right databases. So if your identifier, lets say a generated GUID, identifies a customer or something the customer can be linked to, it is personal data.</p>\n<blockquote>\n<p>Question 2. Can technical identifiers be stored in measurement devices?</p>\n</blockquote>\n<p>Just because something is personal data, does not mean you are forbidden from using it. As long as you <em>need</em> it to do your job, you can store it. The internet would not work, if everybody was forbidden from storing any IP address.</p>\n<p>So to summarize it: yes, it is personal data since it identifies a subscriber. However, it is needed for the job your subscriber asked you to do. So for as long as the job takes, it is legal to store it.</p>\n<p>Once your job is done, you would be required to delete it.</p>\n<p><strong>But</strong> consent trumps everything. If your subscriber consents to you keeping all data of such incidents to improve your network and handle future incidents better, then it's legal. Just let them sign it with your other legal paperwork. Done. No problem. You could just periodically delete all records that have no consent for long term storage beyond the current incident. Lets say every 24h or 48h. You should get the details on the wording of the paperwork and the period that it is legal to keep the data as "current incedent related" from your data protection officer or legal department.</p>\n",
"score": 9
},
{
"answer_id": 88782,
"body": "<p>TL;DR: yes it's personal data, yes you can store the identifier in the device, yes the data should eventually be deleted, but no, this doesn't have to complicate how your device works.</p>\n<p>Personal data is any information that relates to an identifiable person. The GDPR has an extremely broad view of identification: it recognized both direct and indirect identification with additional data, and also if you need the help from third parties. Even just singling out the data relating to one person counts as identification, so that even “anonymous” identifiers (such as cookie IDs) are typically personal data.</p>\n<p>In your case, the technical identifier is very likely to be personal data: it clearly relates to an identifiable subscriber.</p>\n<p>This does not prevent you from storing or otherwise processing the personal data. You just need to do so in a GDPR compliant manner. In particular, this means:</p>\n<ul>\n<li>having a clear purpose of processing</li>\n<li>having a legal basis that authorizes this processing activity</li>\n<li>only processing the personal data as necessary for the purpose</li>\n<li>implementing appropriate technical and organizational measures to ensure the security and compliance of processing</li>\n<li>providing transparent information about the processing to the data subjects</li>\n<li>preparing to satisfy data subject requests (e.g. access, erasure, and so on)</li>\n</ul>\n<p>An Art 6(1) GDPR legal basis is necessary to authorize the processing of personal data. This could be:</p>\n<ul>\n<li>the processing is necessary to fulfil a contract with the data subject</li>\n<li>the processing is necessary to fulfil a legal obligation</li>\n<li>the processing is necessary for a legitimate interest (requires conducting a balancing test and usually requires offering an opt-out)</li>\n<li>the data subject has given consent</li>\n</ul>\n<p>An ISP might rely on any of these legal bases depending on context. For example, diagnosing connectivity problems might be necessary to fulfil the contract. Or the subscriber has consented to pre-emptive network monitoring. The ISP might have a legitimate interest in keeping logs for a reasonable duration in case there are recurring problems.</p>\n<p>Only processing the data as necessary also means that it should be deleted when it is no longer necessary. The GDPR does not prescribe fixed retention periods. Instead, how long data can be kept depends on the purpose for which it is being kept.</p>\n<p>Technical and organizational measures might include the device capability and corresponding training for service personnel to factory-reset a measurement device when it is uninstalled from a subscriber.</p>\n<p>It seems that you are not the ISP. For GDPR aspects, the <em>data controller</em> is responsible for compliance. Controller is whoever determines purposes and means of processing, i.e. who decides <em>why</em> and <em>how</em> personal data is being processed. If you just design a device for another company but do not control how it is operated, it is quite possible that you're not a data controller. This greatly simplifies your obligations to general product liability questions. You'll likely want to develop a product that can be used in a GDPR-compliant manner, but you have no influence over many aspects of GDPR compliance such as selecting an appropriate legal basis.</p>\n",
"score": 5
}
] |
[
"gdpr",
"data-protection",
"personal-information"
] |
Can mythological names be trademarked and become associated with an entity (eg. a company)?
| 0 |
https://law.stackexchange.com/questions/88774/can-mythological-names-be-trademarked-and-become-associated-with-an-entity-eg
|
CC BY-SA 4.0
|
<p>Can the names of creatures, deities (gods), locations, etc. be trademarked and become associated with a specific entity (so it receives protection against dilution)?</p>
| 88,774 |
[
{
"answer_id": 88775,
"body": "<p>Yes. For example, <a href=\"https://www.uspto.gov/trademarks/search\" rel=\"nofollow noreferrer\">search the USPTO trademark database</a> for "<a href=\"https://en.m.wikipedia.org/wiki/Deimos_(deity)\" rel=\"nofollow noreferrer\">Deimos</a>."</p>\n<p>See also "<a href=\"https://www.caranddriver.com/news/a18738574/lamborghini-trademark-for-deimos-may-point-to-future-model/\" rel=\"nofollow noreferrer\">Lamborghini Trademark for 'Deimos' May Point to Future Model</a>".</p>\n",
"score": 1
}
] |
[
"trademark"
] |
who has the power to interpret the UN charter?
| 2 |
https://law.stackexchange.com/questions/88765/who-has-the-power-to-interpret-the-un-charter
|
CC BY-SA 4.0
|
<p>does the power to interpret the UN charter explicitly fall within the hands of the state parties ? and what would be the consequences of multiple state parties having different interpretations ?</p>
| 88,765 |
[
{
"answer_id": 88768,
"body": "<p>Everyone has the power to interpret the charter, as with any document. The important question is <em>who has the power to resolve disputes of interpretation?</em> Even there, as with most of international law, the answer is more or less "anyone whose authority all parties to the dispute accept."</p>\n<p>The charter itself establishes (chapter 14) the International Court of Justice as the UN's "principal judicial organ" (article 92). Members of the United Nations agree to comply with the court's decisions subject to enforcement by the UN Security Council on application of the opposing party (article 94). Article 95, however, says that members may also seek dispute resolution in other tribunals. It does not apply any limits to this freedom, much less exclude disputes of interpretation of the charter itself.</p>\n",
"score": 1
},
{
"answer_id": 88772,
"body": "<p>The UN Charter would be interpreted by any entity for which it has relevance, whether judicial, legislative, or executive.</p>\n<p>For example, in Canadian law, the United Nations Charter has been relevant for revealing Canada's committment to international human rights norms and the corresponding presumption of conformity that results in domestic law. As that is a matter of domestic law, it is of little significance that states might differ in their precise interpretation of the UN Charter, although given its level of generality and the use to which it would be put in domestic law, the differences would not be significant.</p>\n<p>Domestic courts might also look to others' interpretations as a comparative exercise when interpreting; this is another factor that would keep interpretations similar.</p>\n<p>Executive and legislative actors would interpret the UN Charter to understand the state's obligations to the world. And they would certainly look to judicial decisions for guidance.</p>\n<p>At international law, any UN body can interpret the UN Charter: judicial bodies, committees, special rapporteurs, etc. They of course would look to each others' interpretations, especially that of the ICJ, with the goal of coherence.</p>\n",
"score": 0
}
] |
[
"treaty"
] |
Do courts generally run at a loss, run at a profit, or generally break even?
| 18 |
https://law.stackexchange.com/questions/88676/do-courts-generally-run-at-a-loss-run-at-a-profit-or-generally-break-even
|
CC BY-SA 4.0
|
<p>Pursuant to a previous question, about a case where the courts seem to have incurred a significant loss in hearing it, what is the general/average position?</p>
<p>For example, many types of routines matters may be decided in a 5 or 10 minute hearing during a block listing, and they may cost upward of $100/£100. I imagine that these are mostly fairly profitable for the courts as they may hear dozens of them per day. Against these fees of course, the judges and other court staff must be paid, along with the court's utility costs etc.</p>
<p>Other types of more complex litigations requiring multiple day trials presumably are heard at a loss. But what is the aggregate position, generally speaking, for courts? I'm primarily interested in the situation across the common law world, but all jurisdictions are nonethesless most welcomed.</p>
| 88,676 |
[
{
"answer_id": 88688,
"body": "<p>This isn’t a matter of law in (in the US at least), but rather politics and civil service design.</p>\n<p>Courts are a public service and <em><strong>should</strong></em> run at a loss. Likewise the police department. Water and sewage are <a href=\"https://en.wikipedia.org/wiki/Public_works\" rel=\"noreferrer\">public works</a> and might break even.</p>\n<p>Public works may run at a loss and may be supplemented by taxes. It may in some cases be more efficient (aka cheaper) to make them regulated industries instead.</p>\n<p>And although there is no law against it, courts making a profit are an abomination and should at the least result in disbarment and being kicked out of office as appropriate for all concerned if proposed. When a public service becomes a source of revenue, then providing the service is no longer the goal and it becomes a business at best, but more likely simply a corrupt organization, either way the supposed service is going to become unimportant.</p>\n<p>As a matter of practice courts are not profit centers.</p>\n",
"score": 51
},
{
"answer_id": 88711,
"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>The depends on which part of the court system you're referring to. In England, the courts are divided into a '<em>Courts & Tribunal Service</em>' <a href=\"https://www.stowefamilylaw.co.uk/blog/2017/07/20/government-makes-more-than-100-million-in-profit-from-the-court-system/#:%7E:text=Government%20makes%20more%20than%20%C2%A3100%20million%20in%20profit%20from%20the%20court%20system,-Family%20Law%20%7C%2020\" rel=\"noreferrer\">which turns a small (£100M-ish) profit from fees</a>, and the 'Criminal & Youth Courts' which <a href=\"https://questions-statements.parliament.uk/written-questions/detail/2022-02-21/126654\" rel=\"noreferrer\">generate a significant amount of fines (over £700M)</a> versus a cost of around £500M in running the courts, but the monies generated from these fines don't go directly back to the courts, instead going into central government revenue.</p>\n<p>Additionally, over £1Bn was spend in the past 2-3 years renovating the courts themselves, making various pay awards and paying COVID outlays to remote access, so the short answer is that the UK courts <em>could be</em> made to turn a profit, but currently don't.</p>\n",
"score": 20
},
{
"answer_id": 88680,
"body": "<p><a href=\"https://open.alberta.ca/dataset/a78bb4dd-3eb5-46f1-ad45-169ae9907bde/resource/c2624956-7d49-49d2-b5ac-dc52cca3f5fb/download/jsg-annual-report-2021-2022.pdf\" rel=\"noreferrer\">In 21-22</a>, "Other Premiums, Fees and Licences" collected by Alberta's Ministry of Justice and Solicitor General totaled $28.1 million. This includes "fees for some of the services provided to the public, including: ... trial."</p>\n<p><a href=\"https://open.alberta.ca/dataset/6d0f1358-beb5-4bb7-8da1-a350a138039c/resource/36771cab-bee0-44b5-99ad-a03d88da653c/download/budget-2022-fiscal-plan-2022-25.pdf\" rel=\"noreferrer\">In 21-22</a>, Alberta's "Court and Justice Services" had operating expenses of $190 million. This includes the 136 provincially paid Provincial Court judges, <a href=\"https://kings-printer.alberta.ca/1266.cfm?page=1998_176.cfm&leg_type=Regs&isbncln=9780779837359&display=html\" rel=\"noreferrer\">who were paid $318,500 for this period</a>.</p>\n<p>That does not include the salaries paid by Canada to the 80 judges of the Court of King's Bench and the Alberta Court of Appeal, <a href=\"https://laws-lois.justice.gc.ca/eng/acts/j-1/FullText.html\" rel=\"noreferrer\">who are paid $338,800 each, except for the Chief Justices and Associate Chief Justices, who are paid $371,400 each</a>.</p>\n<p>In 2012, <a href=\"https://canlii.ca/t/frfk7#par143\" rel=\"noreferrer\">Deloitte provided accounting of British Columbia's hearing fee revenue compared to the costs of the trials/hearings</a>. It concluded that from 2007-09, fees were only recovering between 43 and 49% of the costs of trials/hearings. This was not even counting "costs for courtroom equipment, CSB headquarters or regional administration costs, building occupancy costs for maintaining washrooms, hallways and other facility services and registry or judicial furniture, computers IP charge/LAN drops and telephone line charges."</p>\n",
"score": 13
},
{
"answer_id": 88683,
"body": "<h2>They run at a loss</h2>\n<p>First, and most significantly, no one pays anything to the court for running criminal cases. If you are charged with an offence, whether convicted or not, you don’t pay for your trial. You might pay a fine but that goes to the government, not the court.</p>\n<p>For civil cases, the filing fees and per diem charges by the court are nominal where they are not waived for financial hardship. All up, they might cover the cost of the electricity needed to keep the lights on.</p>\n",
"score": 11
},
{
"answer_id": 88733,
"body": "<h2>Court fees are not always covering all costs, and fines don't fill its own coffers</h2>\n<p>Besides wages and electricity, the courtrooms run a considerable maintenance and construction cost. The amount each case taxes the system depends on the complexity and involvement of the court, and who gets the fees., so let's break it down into rough divisions.</p>\n<h3>Trafic court-style can break even... for the government.</h3>\n<p>Let's take a typical traffic courtroom and paint a scene.</p>\n<p>There's the judge, their Bailiff and stenographer. There's also a traffic enforcement officer that is to testify about the tickets. That's 4 people's wages and electricity to account for that ultimately end at the government's bill: three via the court and one from general police. Add to that the courtroom building and its maintenance, as well as the traffic enforcement that runs before that. Let's account that all in bulk for a total of... let's say at the top maybe one thousand an hour at the lowest level. Let's say they manage to run through 6-10 cases an hour, each resulting in a fine that averages to 100 units of currency. That's 600-1000 bucks into the coffers, so <em>maybe</em> breaking even. But it's not into the court's coffers, but those of the government's fines division. It doesn't subsidize the court, so it's a tax on the funds allocated to the courts, while <em>maybe</em> running a slight profit for the government.</p>\n<h3>Small Claims Court <em>tries</em> to break even for the court.</h3>\n<p>Small Claims Court is similar in setup to Traffic Court, but with both sides being civil, filing fees apply. Those fees generally cover the costs of an average small claims duration in front of the judge, and these fees do go directly to the court, so Small Claims Court <em>generally</em> is cost-neutral.</p>\n<h3>larger Civil cases try to stay mostly cost neutral for the court.</h3>\n<p>In a civil case, filing and courtroom fees apply. Filing fees are usually per filing, courtroom fees just about cover the maintenance and maybe the stenographer or clerk of the court. In a typical civil case, the party's lawyers' cumulate to at least one to two magnitudes more than the court gets in various fees. This is most visible when a case with fee-shifting is litigated - copyright cases are the best example here.</p>\n<p>In a fast case where people just want a judge's signature (e.g. "amicable divorce"), the court can maybe run a (slight) profit, but usually, such a case is neutral, though in high profile or complicated cases, it's costly to the system.</p>\n<p>Also, note that people filing their cases <em><a href=\"https://en.wikipedia.org/wiki/In_forma_pauperis\" rel=\"noreferrer\">in forma pauperis</a></em> usually can skip court fees, resulting even in small cases at times running a loss.</p>\n<h3>Criminal Trials are very costly for little (financial) gain, or even more costs.</h3>\n<p>In a criminal trial, the costs running by the government are extreme: The basic setup is <em>multiple</em> bailiffs, the judge, the state attorney, multiple investigators, and experts, all of them ending on the government dime one way or another. Think in thousands per hour of hearings, about halfway split between the court itself and the prosecution, possibly adding the costs of a public defender and detainment.</p>\n<p>In contrast, the possible outcomes are a fine for the benefit of the government's bucket, that <em>maybe</em> might sum up to about the amount spent, but the longer (=complicated) the trial is and the higher the public interest in it, the less such payment is likely to cover costs. Again, any fine is not ending in the court's coffers, but with the treasury. Also, detainment time does not add anything to either coffer but instead costs even more. However, detainment bills the government, not the court's budget.</p>\n<p>Note that only in a few systems a criminal defendant is forced to pay court fees. In fact, some countries, like <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>, do repay the defense's attorney's costs and missed wages for court dates if they are found not guilty.</p>\n",
"score": 6
},
{
"answer_id": 88767,
"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<h2>The technical answer</h2>\n<p>At least for Germany, that is strictly speaking not a meaningful question, because courts do not do accounting the way a business does. They do have a budget (called <em><a href=\"https://de.wikipedia.org/wiki/Haushaltsplan\" rel=\"nofollow noreferrer\">Haushaltsplan</a></em>), which is a list of money they are expected to take in or receive, but it is not directly comparable to the balance sheet of a business, because the rules are quite different.</p>\n<h2>The pragmatic answer</h2>\n<p>If you look at the <em>Haushaltsplan</em>, you can take the difference between income and costs. Here, for example, is the <a href=\"https://www.mj.niedersachsen.de/download/183130\" rel=\"nofollow noreferrer\">Haushaltsplan for the Oberlandesgerichtsbezirk Braunschweig</a>, a higher court in the city of Braunschweig. On the last page, you can see that, with rounding, the total cost is 144 mio €, and income about 62 mio €, making a shortfall of 82 mio €.</p>\n<p><a href=\"https://www.rechnungshof.baden-wuerttemberg.de/de/veroeffentlichungen/denkschriften/210382/210504.html\" rel=\"nofollow noreferrer\">This article from the Bundesland of Baden-Württemberg</a> provides a summary for the whole land, indicating that courts only covered 51% of their costs, and recommends raising court fees to alleviate that. However, it also recognizes that courts covering 100% of their costs is not realistic.</p>\n<p><strong>So the court is operating "at a loss" in that sense.</strong> At least in Germany, that is expected, as the operation of courts is considered a public service which is paid by the public, just like police, schools and transportation infrastructure, which are all (mostly) free to the users.</p>\n<hr />\n<p>Interestingly, many people are asking similar questions. Traditionally, government budgets were fairly simple and did not consider for what purpose the money was used; in the last one or two decades, there has been a push for budgets that are more similar to what is used in the private sector, including budgets that define "products" and assign costs to them (<a href=\"https://olev.de/p/produkthaushalt.htm\" rel=\"nofollow noreferrer\"><em>Produkthaushalt</em></a>). The goal is to make it more transparent where exactly the money is going, and to possibly enable savings. That is an ongoing project :-).</p>\n",
"score": 1
},
{
"answer_id": 88741,
"body": "<p>In the U.S. I'm not aware of the judicial system having consistent problems with the budgets for their cases. Part of the reason is that the U.S. legal system is very very, tolerant of plea bargin deals, as it's a cost saving measure for the portions of the court system that are financially supported by tax payer money (i.e. The Judiciary and the Prosecution). Generally, of all cases that are entered into the court system in any given day, 90% will resolve before a jury is ever convened. The only government supported part of the justice system that does have chronic budget issues are the Public Defender's Office, though this is a factor of a high work load due to the fact that the state must provide a defense attorney for a criminal defendant regardless of the defendant's ability to afford an attorney (though if you can afford one, the price will usually be well worth it as they can be selective on intake. It generally means they will have less of a case load and more time for you specifically.).</p>\n<p>Almost every case that actually goes before a judge will be assessed a "court fee" that is usually given to the losing party in the case (In Civil Cases, the damagages will almost always include the winner's full legal fees, including any filing fees in the list of damages and if there is any finding in the favor of just one party, the court fees are granted with no argument.</p>\n",
"score": 0
}
] |
[
"united-states",
"england-and-wales",
"canada",
"any-jurisdiction"
] |
Is creating and selling "cheats" or "hacks" for games illegal?
| 6 |
https://law.stackexchange.com/questions/25825/is-creating-and-selling-cheats-or-hacks-for-games-illegal
|
CC BY-SA 3.0
|
<p>I sell game hacks for a living, but wanted to learn more about the laws regarding what I do.</p>
<p>Most of you probably haven't heard of this, but there are people like me who reverse engineer games, and make software that exploit the games code and memory in order to gain an advantage.</p>
<p>Basically, we have to reverse games to know where the game stores different information, like your players health, position, and weapon. Reverse engineering involves taking an executable you get when you buy the game, and seeing where the code stores information.</p>
<p>Based on this information, you can make a program to access the information you found while reversing, and modify it to give you an advantage. </p>
<p>I've only read some stuff on the DMCA, but I am unsure if this qualifies for it. Most games have an "anti-cheat" which try to detect people who use cheats and ban them from the game. As a cheat developer, you have to bypass these counter measures, and sometimes these counter measures are present in the executable in the form of packing / obfuscation which just makes it harder to analyze.</p>
<p>If I take information from an executable given to me since I bought a game, and make a game cheat based on the information then sell, is this illegal?</p>
<p>If you have any questions, let me know. I live in the United States.</p>
| 25,825 |
[
{
"answer_id": 25830,
"body": "<h2>Yes</h2>\n\n<p>The relevant legal concepts are <a href=\"https://en.wikipedia.org/wiki/Copyright\" rel=\"noreferrer\">copyright</a>, <a href=\"https://en.wikipedia.org/wiki/Contract\" rel=\"noreferrer\">contract law</a> and the <a href=\"https://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act\" rel=\"noreferrer\">Computer Fraud and Abuse Act</a>. You are liable to be sued by the people affected for damages and/or be prosecuted by the government for the felony under either or both laws.</p>\n\n<p>Let's start here: \"I bought a game\". <strong>No, you didn't</strong>; you bought a licence to use the software in accordance with the terms of service (licence) that you freely agreed to. <strong>All modern ToS will not allow you to reverse engineer the software.</strong> </p>\n\n<p>If you breach those terms of service then you have broken a contract - that is what allows them to sue you. They will no doubt argue that the prevalence of cheat routines developed by people like you reduce the number of people willing to play the game - say 100,000 users x $10/month * 12 months = $12,000,000. They will also ask the court to impose punitive damages to discourage this sort of thing.</p>\n\n<p>Which brings us to the copyright violation. You are allowed to copy their software provided you comply with the ToS. But you didn't. Therefore you are in breach of the Copyright Act and subject to additional civil and criminal sanctions.</p>\n\n<p>Finally, your \"cheats\" access their servers in a way that the ToS doesn't authorize. This puts you in breach of the CFFA - breaking this carries serious jail time penalties. Not to mention that in the US, a criminal conviction will preclude you from many jobs, including, naturally, any with access to company computer systems.</p>\n\n<p>Putting aside the illegalities, cheats are unethical and ruin the game experience for hundreds of thousands of people who don't use cheats.</p>\n\n<p><strong>You are a criminal - stop being one!</strong></p>\n",
"score": 7
},
{
"answer_id": 25834,
"body": "<p>This appears to be criminal infringement. I'm going to try to point to the places in the law that make this illegal, step by step.</p>\n\n<p><a href=\"https://www.law.cornell.edu/uscode/text/17/106\" rel=\"nofollow noreferrer\">17 U.S. Code § 106 - Exclusive rights in copyrighted works</a> says:</p>\n\n<blockquote>\n <p>Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:<br>\n (2) to prepare derivative works based upon the copyrighted work;</p>\n</blockquote>\n\n<p>The definition of a derivative work is <a href=\"https://www.law.cornell.edu/uscode/text/17/101\" rel=\"nofollow noreferrer\">here</a>:</p>\n\n<blockquote>\n <p>A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.</p>\n</blockquote>\n\n<p>This seems to apply to what you're doing - you're modifying the original work to create a new one. </p>\n\n<p>According to <a href=\"https://www.law.cornell.edu/uscode/text/17/501\" rel=\"nofollow noreferrer\">17 U.S. Code § 501</a>:</p>\n\n<blockquote>\n <p>Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122... is an infringer of the copyright</p>\n</blockquote>\n\n<p>Since you don't have permission to create a derivative work (and don't seem to qualify for an exception like fair use), you're infringing the owner's exclusive right to do this. You are therefore officially infringing.</p>\n\n<p>Not all infringement is criminal - but it appears yours is. <a href=\"https://www.law.cornell.edu/uscode/text/17/506\" rel=\"nofollow noreferrer\">17 U.S. Code § 506 - Criminal offenses</a> says:</p>\n\n<blockquote>\n <p>In general.—Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed—<br>\n (A) for purposes of commercial advantage or private financial gain;</p>\n</blockquote>\n\n<p>You say you're selling it, so almost certainly it's for private financial gain, and I can't describe your infringement as anything but willful. So you appear to qualify for criminal charges, if the federal government felt like prosecuting you.</p>\n\n<p>If you look at <a href=\"https://www.law.cornell.edu/uscode/text/18/2319\" rel=\"nofollow noreferrer\">18 U.S. Code § 2319</a>, you can see the penalty is as follows:</p>\n\n<blockquote>\n <p>Any person who commits an offense under section 506(a)(1)(A) of title 17—<br>\n (1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies..., of 1 or more copyrighted works, which have a total retail value of more than $2,500;<br>\n (2) shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a felony and is a second or subsequent offense under subsection (a); and<br>\n (3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case</p>\n</blockquote>\n\n<p>So, on a first offense, it's up to 5 years in federal prison assuming you're doing at least 10 copies and $2500 worth of infringing software per 180 days, and up to 1 year in federal prison if you're doing less business than that. </p>\n",
"score": 1
},
{
"answer_id": 88761,
"body": "<p>When you talk about creating a "cheat" or a "hack" for a video game you could be talking about a myriad of different things, which is what I assume has confused the other posters into giving incorrect and misguided information in response to your question (especially surrounding the negative stigma of the word hack in the legal field).</p>\n<p>I will answer under the assumption that you are talking about creating and selling a bot for a video game, and not hacking into a video game server or stealing and selling game currency.</p>\n<p>Let's discuss this under US law and make a few assumptions, which is what I assume you mean by a game cheat. By making these assumptions we can avoid a lengthy discussion on topics such as wire fraud, money laundering, racketeering, etc.</p>\n<p>It is my understanding the common commercial cheat has the following:</p>\n<ul>\n<li>A standard bot to automate some behavior eg an aimbot and features to enhance visuals (coloring enemies through walls, adding textual information, a radar).</li>\n<li>The bot runs on your computer</li>\n<li>The bot acts as an accessory program to the game. Users must still hold a valid license of the game to use it, eg, no piracy is involved.</li>\n<li>You are selling the bot</li>\n</ul>\n<p>Let's examine the law</p>\n<h2>Derivative Work</h2>\n<ul>\n<li>As per Lewis Galoob Toys Inc v. Nintendo of America Inc the cheat would not incorporate any copyrighted work in any concrete or permanent form. It would be a computer program consisting of it's own algorithms and instructions with copyright belonging to it's author. Hence, it would not be considered a derivative work.</li>\n</ul>\n<h2>Copyright Infringement</h2>\n<ul>\n<li>As per MDY Industries, LLC v. Blizzard Entertainment, Inc the cheat would not be liable for copyright infringement because the End User License Agreement's clauses which prohibit cheating would be considered contractual covenants and not license conditions. Hence, it would not be considered copyright infringement or contributory copyright infringement.</li>\n</ul>\n<h2>Computer Fraud and Abuse Act</h2>\n<ul>\n<li>As per MDY Industries, LLC v. Blizzard Entertainment the license conditions prohibiting cheating would be considered contractual covenants so we would still be accessing the game server within our authorization. Several courts have ruled similarly: Terms of Service cannot be used to determine what access is considered unauthorized. Even more, the DOJ has stated so in their own press release <a href=\"https://www.justice.gov/opa/press-release/file/1507126/download?utm_medium=email&utm_source=govdelivery\" rel=\"nofollow noreferrer\">here, page 3</a>.</li>\n</ul>\n<h2>DMCA Anti-circumvention</h2>\n<ul>\n<li>If the game has no anti-cheat, then there are no violations.</li>\n<li>If the game has an anti-cheat, it must control access to the server (what would be called the dynamic non-literal elements in the MDY case) and upon detecting your cheat it should block access immediately to the server. If the anti-cheat implements any kind of delayed banning mechanism (delayed as in days or weeks, not minutes or hours), it would most likely not be considered an effective measure hence I would argue there would be no circumvention.</li>\n<li>If the game does have an anti-cheat that blocks access immediately to the server and you have circumvented this by modifying your cheat to unblock it after it has been blocked then the infringement must also be willful: Typically you would be warned and told to stop and made aware that your actions of selling the cheat are harmful. Ignoring this warning and continuing to sell your cheat and continuing to unblock it from the anti-cheat would be considered willful infringement.</li>\n<li>If the above point holds, the outcome is not clear because there is a circuit split between the Ninth Circuit (MDY Industries) and the Federal Circuit (Chamberlain I and II). I am not aware of any criminal charges being made ever in the United States for DMCA Anti-Circumvention violations where there is no direct nexus between copyright infringement and anti-circumvention (as in this case)- and the fact that there is a circuit split on this very matter makes me believe we won't see any unless the laws change. But it is clear under Ninth Circuit jurisdiction you would be liable for civil remedies.</li>\n</ul>\n<h2>Civil Remedies</h2>\n<p>Without expanding into this too much, many game cheat developers have been made to pay large amounts of money in court.</p>\n<h2>Conclusion</h2>\n<p>Will you face criminal penalties? No. Will you be sued in court for obscene amounts of money and lose? Absolutely.</p>\n<p>My advice? Don't sell cheats. These companies have huge legal teams and you will probably go broke from lawyer fees before you even step in court.</p>\n",
"score": 1
},
{
"answer_id": 27739,
"body": "<p>To be clear - they are selling a software. They are not 'reselling' a modified version of the game. Which is why anti-cheat measures are in place. They are selling their own product which is capable of modifying a game while playing it. Selling a cheat isn't illegal. You are not breaking the ToS if your not the one using it. The EULA is by definition END USER license agreement. The consumer purchases the cheat they are breaking their own EULA. If I am to take a game and resell it for my own personal financial gain than yes thats copyright. But if I am selling my own software that just so happens to be able to incorporate itself into their software. Thats a simple ToS breach by the END USER. </p>\n",
"score": 0
}
] |
[
"united-states",
"dmca"
] |
What is the status of Rand Paul's criminal referral to the DOJ relating to allegations levied against Dr. Anthony Fauci?
| 2 |
https://law.stackexchange.com/questions/77953/what-is-the-status-of-rand-pauls-criminal-referral-to-the-doj-relating-to-alleg
|
CC BY-SA 4.0
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<p>On July 26th 2021, Senator Rand Paul of Kentucky sent a <a href="https://twitter.com/JerryDunleavy/status/1419036445805776898/photo/1" rel="nofollow noreferrer">letter</a> to Attorney General Merrick Garland to criminally investigate Dr. Anthony Fauci for allegations of lying to congress on May 11, 2021, specifically, the alleged violation of <a href="https://www.law.cornell.edu/uscode/text/18/1001" rel="nofollow noreferrer">18 U.S.C Section 1001</a>.</p>
<p>This issue still seems to be a perceived concern in conservative media and specifically <a href="https://www.foxnews.com/opinion/rand-paul-faucis-gain-of-function-conspiracy" rel="nofollow noreferrer">Rand Paul</a>. However, I have not seen any formal legal progress on this front, such as a justification for dismissal as to why it is frivolous. Hence my question:</p>
<h1>Question</h1>
<p>Has there been any further legal fillings made, or investigations started relating to Rand Paul's letter to the DOJ as described above?</p>
| 77,953 |
[
{
"answer_id": 77956,
"body": "<p>The exchange between Fauci and Paul was reported in <a href=\"https://www.cnbc.com/2021/07/20/if-anybody-is-lying-here-senator-it-is-you-fauci-tells-sen-paul-in-heated-exchange-at-senate-hearing.html\" rel=\"nofollow noreferrer\">"‘If anybody is lying here, senator, it is you,’ Fauci tells Sen. Paul in heated exchange at Senate hearing"</a> from <em>CNBC</em>.</p>\n<p>The formal referral was reported in the news story <a href=\"https://thehill.com/changing-america/well-being/prevention-cures/564803-rand-paul-sends-official-criminal-referral-on\" rel=\"nofollow noreferrer\">"Rand Paul sends official criminal referral on Anthony Fauci to DOJ"</a> from <em>The Hill</em></p>\n<p>An October 2021 <em>Washington Post</em> editorial <a href=\"https://www.washingtonpost.com/opinions/2021/07/22/what-the-fight-between-anthony-fauci-and-rand-paul-is-really-about/\" rel=\"nofollow noreferrer\">"What the fight between Anthony Fauci and Rand Paul is really about"</a> discussed the accusations from both men but did not mention any further investigation by the DoJ.</p>\n<p>The October 2021 <em>Rolling Stone</em> story ["‘Molecularly Impossible’: Fauci Blasts Rand Paul for Covid Lab Theory"], also discussed the accsuations by Paul, but made no mention of any DoJ investigation.</p>\n<p>The October 25, 2021 story <a href=\"https://www.businessinsider.com/fauci-gain-of-function-research-wuhan-institute-rand-paul-2021-10\" rel=\"nofollow noreferrer\">"Fauci disputes NIH-funded research at Wuhan Institute involved gain of function as Rand Paul calls for his firing"</a> by <em>The Insider</em> again mentions the accusations by Paul and the counter-accusations by Fauci, but makes no mention of any DoJ investigation.</p>\n<p>In December 2021 <em>The Independant</em> published <a href=\"https://www.independent.co.uk/news/world/americas/us-politics/rand-paul-dr-fauci-lies-congress-b1968856.html\" rel=\"nofollow noreferrer\">"Rand Paul says Fauci should be jailed for five years for lying to Congress – something fact checkers insist he did not do"</a>. That story quotes Paul as saying:</p>\n<blockquote>\n<p>But he should be prosecuted for lying, but at the very least he should be taken out of his position because I think he cost people's lives through misinformation</p>\n</blockquote>\n<p>and goes on to cite various inaccurate statements by Paul on Covid-related issues. The story does not mention any action taken by the DoJ on the referral, roughly six months after the formal accusation.</p>\n<p>In a story from <em>NBC</em> <a href=\"https://www.nbcnews.com/politics/congress/fauci-says-sen-paul-s-attacks-kindle-crazies-who-have-n1287299\" rel=\"nofollow noreferrer\">"Fauci says Sen. Paul's attacks 'kindle the crazies' who have threatened his life"</a> dated Jan 11 2022, there is mention of the earlier exchange but still no mention of any investigation being undertaken by the DoJ.</p>\n<p>In fact, I can find no mention of the US DoJ ever having opened or conducted any investigation into Fauci lying to Congress. The DoJ is not required to start an investigation for every referral or letter asking it to do so, not to announce its reasons for not starting an investigation. Nor does it publicly announce all investigations that it starts or closes.</p>\n<p>The (lack of) evidence available is consistent with the DoJ having simply ignored Paul's letter of referral, but it does not prove that. There could be a non-public investigation in progress.</p>\n",
"score": 8
},
{
"answer_id": 88759,
"body": "<p>October 21, 2021 during the committee hearing on the oversight of the United States Department of Justice the following question was asked by House representative Andy Biggs from Arizona:</p>\n<blockquote>\n<p>On May 24th, 2021, under oath before a congressional committee, Dr.\nAnthony Fauci denied the National Institute of Health provided any funding for gain-of-function research, saying "that, categorically, was not done". Today, this very day, the NIH issued a statement contradicting that testimony, which suggests that Dr. Fauci may have committed perjury.</p>\n<p>This is a criminal offense, and I'm left to wonder if you intend to\nlook into that and send in the communications, such as a letter or a\nmemo similar to the October 4th memo that you issued regarding parents\ngoing to school board meetings, to investigate Dr. Fauci's potential\nperjury.</p>\n</blockquote>\n<p>Attorney General Merrick Garland replied:</p>\n<blockquote>\n<p>Again, I'll refer to the long-standing departmental norm that we don't\ncomment investigations pending or unpending. The general point that\nyou're making normally comes with -- would come with a referral from\nthe relevant committee, but other than that, I can't say anything.</p>\n</blockquote>\n<p>Watch online: <a href=\"https://www.youtube.com/watch?v=v_5Cxa6u1v0&t=11510s\" rel=\"nofollow noreferrer\">https://www.youtube.com/watch?v=v_5Cxa6u1v0&t=11510s</a></p>\n<p>Source: search result from <code>site:justice.gov "gain of function"</code></p>\n",
"score": 1
}
] |
[
"united-states",
"criminal-procedure"
] |
Is sharing anime songs downloaded from youtube with my family across countries illegal?
| 0 |
https://law.stackexchange.com/questions/88753/is-sharing-anime-songs-downloaded-from-youtube-with-my-family-across-countries-i
|
CC BY-SA 4.0
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<p>Say, I live in America, my family are in Turkey. If I download anime songs like <a href="https://www.youtube.com/watch?v=g9biTrDIHNs&ab_channel=sweetARMS-Topic" rel="nofollow noreferrer">this</a> from youtube, then I send them to my family, is this illegal? If it is, and someone sue me, what would be the sentence?</p>
<p>Does it make any change if the medium contains cartoon scenes like <a href="https://www.youtube.com/watch?v=gHTqQSW_g4k&ab_channel=CrunchyrollCollection" rel="nofollow noreferrer">this</a>?(Note that the earlier sample doesn't, it just contains a still picture.) What if it only contains the photo of the singer like <a href="https://www.youtube.com/watch?v=UljR2IQAVfw&ab_channel=LiSA-Topic" rel="nofollow noreferrer">this</a>?</p>
| 88,753 |
[
{
"answer_id": 88757,
"body": "<p>Let's examine some laws that may apply to your case</p>\n<h2>Digital Millennium Copyright Act (DMCA)</h2>\n<p>There are criminal penalties for willful infringement for personal financial gain. If you are only sending it to one family member through a private communication (eg not posting it publicly) and not selling it and one copy of the music video has a retail value of $1,000 or less then there will be no criminal penalties. But you may be liable for civil penalties.</p>\n<h2>Computer Fraud and Abuse Act (CFAA)</h2>\n<p>Courts have ruled that ToS violations do not constitute unauthorized access (or exceeding access) so you aren't in violation of the CFAA</p>\n<h2>Civil Liability</h2>\n<p>By downloading a video off of YouTube you are in violation of their ToS. There isn't enough prior case law for me to tell you the outcome here. You may be committing some sort of civil wrong by the act of downloading. In addition, you are distributing a copyrighted work without permission which would open you to more civil penalties.</p>\n<p>The real question is how likely is it for this to be enforced? Not likely.</p>\n",
"score": 3
}
] |
[
"copyright",
"music"
] |
Is it a violation of the Computer Fraud and Abuse Act (CFAA) to use my work computer to browse Facebook?
| 0 |
https://law.stackexchange.com/questions/88752/is-it-a-violation-of-the-computer-fraud-and-abuse-act-cfaa-to-use-my-work-comp
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<p>My employer recently sent out an email stating work computers being used for personal activities such as browsing social media will be considered unauthorized access and that any past, present, or future incidents are now being investigated by IT and will be reported to the FBI. I am very concerned about this because I have used my work computer for Facebook during lunch breaks and after work hours. Am I in major trouble?</p>
| 88,752 |
[
{
"answer_id": 88756,
"body": "<p>No, you will not be arrested or even charged for doing this. To sooth your anxiety, here's an official statement from the DOJ (<a href=\"https://www.justice.gov/opa/press-release/file/1507126/download?utm_medium=email&utm_source=govdelivery\" rel=\"nofollow noreferrer\">https://www.justice.gov/opa/press-release/file/1507126/download?utm_medium=email&utm_source=govdelivery</a>)</p>\n<p><code>A CFAA prosecution may not be brought on the theory that an employee has used a computer generally designated for his or her exclusive use in a way the employer’s policy prohibits—for example, by checking sports scores or paying bills at work</code></p>\n<p>I would advise you to stop using your work computer for anything personal, because IT can monitor it and you may even be terminated for it.</p>\n",
"score": 2
},
{
"answer_id": 88755,
"body": "<p>There is no law prohibiting the use of a company's computer equipment to browse Facebook. You tagged CFAA but that applies to fraud using computing equipment and Facebook is not fraud.</p>\n<p>There may, however, be a company POLICY that prohibits such use but I doubt it otherwise they would have said that instead of lying about the FBI.</p>\n",
"score": 1
}
] |
[
"united-states",
"hacking",
"cfaa"
] |
UK law regarding permits for tables on public land/footpaths outside pubs
| 1 |
https://law.stackexchange.com/questions/88750/uk-law-regarding-permits-for-tables-on-public-land-footpaths-outside-pubs
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CC BY-SA 4.0
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<p>I’ve recently come across this issue several times where people have been asked to leave when bringing a dog to an outside area at Wetherspoons pubs where they have tables on public ground/footpaths/pavements.</p>
<p>Personally I have no problem with this as the majority of (much nicer) pubs allow pets and it’s up to the business whether they allow it or not. However, given that these businesses apply for permits that seem to merely give them permission for tables/chairs on otherwise public spaces, I am intrigued what the law says about pub’s rights to remove pets from areas that are not technically part of their property.</p>
<p>Obviously Wetherspoons are a national business and likely know exactly what they’re doing, I just find it strange that they have any jurisdiction on public land, even if you’re sitting at a table they put there.</p>
| 88,750 |
[
{
"answer_id": 88754,
"body": "<h2>They have control of the land</h2>\n<p>The arrangement with the owner of the land is that they hold a licence to use the land and that gives them rights and obligations to manage the land - just like any other tenant. It is the same type of arrangement that gives local football and cricket clubs control over council playing fields during matches.</p>\n<p>This may be spelled out in a written agreement (for a business with a pub, this is likely), however, this is a common law rule given to the controller of a premises.</p>\n",
"score": 2
}
] |
[
"united-kingdom",
"public-law",
"common-property"
] |
Can a person in BDSM relationship legally protect themselves?
| 6 |
https://law.stackexchange.com/questions/88692/can-a-person-in-bdsm-relationship-legally-protect-themselves
|
CC BY-SA 4.0
|
<p>A large part of BDSM lifestyle is the "SM" part - namely, a desire by two sides of a couple, to inflict pain on another, or have pain inflicted on them (if done right, <strong>obviously in a consensual manner</strong>, duh). Often, this is done in ways that would - outside the context of BDSM relationship - be classified as a crime (assault, battery, etc...). Clearly, this produces a sizeable legal risk.</p>
<p>As such, is there a way for a "S" partner in a relationship (the one inflicting pain), to protect themselves legally in a reasonable way in either the case of third-party exposure (e.g. some nosy person calls the cops on the couple); or worse yet, the relationship breaking down and the "M" partner of the relationship filing charges over what they supposedly consented to previously? <strong>Just to re-iterate, the scope of the question is activity that is (at the time it happens) fully consensual</strong>.</p>
<p>In general societal context, obviously there is a way to engage in consensual violence without being charged - for example, a boxer or martial artist would never be charged for participating in a martial arts competition or training, which involves acts that - outside of them - would be criminally penalized.</p>
<p>Is there a way to do that in a BDSM relationship context - <strong>that would actually stand up in a judicial setting</strong>? In other words, anyone can sign any "BDSM contract" (probably the only thematically accurate BDSM related topic in the otherwise deplorable "50 shades" series); but did any such contract ever stand up in court when one of the partner was charged with perpetrating violence on another?</p>
<p>I'm mostly interested in an answer related to criminal justice system; but an answer covering civil charges from one partner on another also would be welcome, if the two answers differ. Jurisdiction is USA, if more precision is needed let's say New York City where BDSM is common enough that things like this probably actually made it to court.</p>
| 88,692 |
[
{
"answer_id": 88700,
"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<h3>The law</h3>\n<p>"The [Criminal] Code requires 'ongoing, conscious consent' to 'each and every sexual act' and can be revoked at any time." See <em>R. v. Sweet</em>, <a href=\"https://canlii.ca/t/hvc04#par129\" rel=\"nofollow noreferrer\">2018 BCSC 1696</a>, citing <em>R. v. J.A.</em>, <a href=\"https://canlii.ca/t/flkm1\" rel=\"nofollow noreferrer\">2011 SCC 28</a>. "The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance." <em>R. v. J.A.</em>, <a href=\"https://canlii.ca/t/flkm1#par66\" rel=\"nofollow noreferrer\">para. 66</a>.</p>\n<p>The Supreme Court has explicitly declined to decide "whether or in which circumstances individuals may consent to bodily harm during sexual activity" (<em>R. v. J.A.</em>, <a href=\"https://canlii.ca/t/flkm1#par21\" rel=\"nofollow noreferrer\">para. 21</a>). However, in the context of a non-sport fist fight or brawl, one cannot consent to another intentionally applying force that causes serious hurt or non-trivial bodily harm: <em>R. v. Jobidon</em>, <a href=\"https://canlii.ca/t/1fskj\" rel=\"nofollow noreferrer\">[1991] 2 S.C.R. 714</a>.<sup>1</sup> And at the provincial appellate level, it has been held that "consent is not a defence to a charge of sexual assault causing bodily harm in circumstances where the accused has deliberately inflicted pain or injury upon a person that gave rise to bodily harm" (<em>R. v. Quashie</em> (2005), <a href=\"https://canlii.ca/t/1l3dd\" rel=\"nofollow noreferrer\">198 C.C.C. (3d) 337</a> (Ont. C.A.)).</p>\n<p>Consent would be irrelevant in a charge of criminal negligence or manslaughter, if the activities were to escalate this far (<em>R. c. Deschatelets</em>, <a href=\"https://canlii.ca/t/fwk0p#par175\" rel=\"nofollow noreferrer\">2013 QCCQ 1948, para. 175-77</a>).</p>\n<p>The content of advance negotiations is not relevant to whether the complainant was consenting to the impugned conduct, however, it may be relevant as evidence of expectations about <em>how</em> consent would be communicated between the parties throughout the conduct. See <em>R. v. Barton</em>, <a href=\"https://canlii.ca/t/j0fqj#par93\" rel=\"nofollow noreferrer\">2019 SCC 33, para. 93</a> (citations omitted):</p>\n<blockquote>\n<p>For example, in some cases, prior sexual activities may establish legitimate expectations about how consent is communicated between the parties, thereby shaping the accused’s perception of communicated consent to the sexual activity in question at the time it occurred. American scholar Michelle Anderson puts it this way: “… prior negotiations between the complainant and the defendant regarding the specific acts at issue or customs and practices about those acts should be admissible. These negotiations, customs, and practices between the parties reveal their legitimate expectations on the incident in question.” These “negotiations” would not, however, include an agreement involving broad advance consent to any and all manner of sexual activity. As I will explain, a belief that the complainant gave broad advance consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law, not fact.</p>\n</blockquote>\n<p>See also <em>R. v. Sweet</em>, 2018 BCSC 1696, <a href=\"https://canlii.ca/t/hvc04#par141\" rel=\"nofollow noreferrer\">para. 141</a>:</p>\n<blockquote>\n<p>... consenting adults may enjoy the personal autonomy to establish rules such as “no means yes”. If so, in my view, this passage suggests a corollary requirement to establish an alternative “safe word” or other mechanism to ensure that each party is also able to maintain their personal autonomy to put an end to unwanted sexual activity.</p>\n</blockquote>\n<h3>Application</h3>\n<p>A contract cannot provide advance consent, therefore it is irrelevant as to proof of consent during the acts. However, advance agreements can (and several courts suggests <em>should</em>) set out the expectations about <em>how</em> consent will be communicated. Any evidence of such agreements would be relevant to establishing the defence of "mistaken belief in communicated consent."</p>\n<p>None of this would assist an accused in the circumstance where a court finds that any consent was vitiated because the accused deliberately inflicted pain or injury that gave rise to bodily harm (this position has not been confirmed by the Supreme Court).</p>\n<p>If you are simply asking how to prove a fact in litigation, see <a href=\"https://law.stackexchange.com/a/86826/46948\">this Q&A</a>.</p>\n<hr />\n<p><sup>1. Since this is a judicially-developed limit, the conception of "bodily harm" used here does not necessarily have to match that codified in the Criminal Code. But: "The common law definition of 'bodily harm' has been substantially incorporated in s. 245.1(2) of the Criminal Code, and means 'any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling'" (<em>R. v. Martineau</em>, <a href=\"https://canlii.ca/t/1fssd\" rel=\"nofollow noreferrer\">[1990] 2 S.C.R. 633</a>).</sup></p>\n",
"score": 4
},
{
"answer_id": 88751,
"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 there a way to do that in a BDSM relationship context - that would\nactually stand up in a judicial setting? In other words, anyone can\nsign any "BDSM contract" (probably the only thematically accurate BDSM\nrelated topic in the otherwise deplorable "50 shades" series); but did\nany such contract ever stand up in court when one of the partner was\ncharged with perpetrating violence on another?</p>\n</blockquote>\n<p><strong>Not really.</strong> At best, it can discourage law enforcement or prosecutors from exercising their discretion to bring criminal charges, even though they could be brought.</p>\n<h3>Consent to the conduct in question can't be given irrevocably</h3>\n<p>You can't irrevocably provide consent of this kind in a contract. Historically, you could do that through marriage, but marriage is no longer a defense to sexual assault claims, or as was the case even earlier, against almost all criminal charges involving one spouse against another.</p>\n<p>A contract like that would provide one piece of evidence that a jury would consider in addition to testimony, possible audio or video recordings, statements made after episodes of BSDM activity, or records/testimony concerning times that "safe words" were invoked or honored.</p>\n<p>It is particularly relevant because it goes to the <em>mens rea</em> (i.e. intent) of the person who is at risk of being a criminal defendant. If that person sincerely and reasonably believes that consent is present, even if it is not, that person hasn't committed a crime in many cases. Still, subsequent events can cast doubt on the reasonableness of continuing to rely on consent given in a contract in advance.</p>\n<p>Testimony from an alleged victim under oath that something was consensual is very helpful, but even then, is not conclusive. The jury could conclude that the alleged victim is still under hidden duress of some kind.</p>\n<p>Moreover, it is essentially impossible to protect oneself reliably from betrayal in which an episode was actually consensual, but the alleged victim falsely testifies otherwise in court.</p>\n<p>This shouldn't be terribly surprising.</p>\n<p>BDSM, by its very nature, simulates activity that is otherwise undertaken only in a non-consensual context, that when it is non-consensual would constitute serious crimes. The thin line between consensual BDSM and non-consensual abuse is to some extent the source of the thrill that is the whole point of BDSM for many people who engage in it.</p>\n<h3>Consent isn't always a defense</h3>\n<p>Another risk is that not all forms of conduct, which is within the scope of what is called BDSM, is conduct for which consent may lawfully be given.</p>\n<p>Generally speaking, competent adults can consent to sex (outside select special relationships like parent and child, or guard and prisoner, where consent isn't a defense).</p>\n<p>Likewise, one usually isn't capable of "false imprisonment" if the person constrained consents to being bound or confined, unless it is in circumstances where consent can't be promptly withdrawn, or in circumstances where there is an obvious risk of harm.</p>\n<p>But, it is not in general, in all U.S. jurisdictions (or even in most U.S. jurisdictions) permissible to consent to another person doing bodily harm to you outside of select safe harbor situations. There are safe harbor cases for certain contact sports, medical treatment, and medical research. But there is no similar safe harbor for BSDM conduct. More than <em>de minimis</em> infliction of physical pain or physical injury is often something for which the consent of the victim is not a defense at all.</p>\n",
"score": 3
},
{
"answer_id": 88699,
"body": "<p>In <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>, assault charges can be negated by the consent of an informed and mentally competent victim. Two boxers in the ring can batter each other, and the assumption is that they mutually consented to being attacked within the rules of the sport. That is, a jab or a left hook would be covered, even if it breaks a jaw, but a boxer could not stomp on an opponent on the ground.</p>\n<p>In your case, the question would be just what the victim consented to, if that can be proven, and if the court accepts it as sane (the term SSC, <em>safe, sane, and consensual</em>, thanks for that comment). <em>"You can kill me"</em> would not be accepted even if it was put in writing (the assisted suicide debate is an entirely different issue). Going to a professional sex worker who specializes in such 'services' (prostitution is legal, but regulated) could be interpreted as consent to getting spanked. In between is a wide field.</p>\n<ul>\n<li><p>There was a case where members of rival biker gangs agreed to 'go outside and settle things.' The survivor wanted to use the consent defense, but IIRC the court ruled that not even the consent that was claimed would have covered drawing a knife.</p>\n</li>\n<li><p>In a different case, a man with serious burns claimed to have given consent. No charges against his partner on these counts, but she went to court for some other things.</p>\n</li>\n</ul>\n",
"score": 1
}
] |
[
"contract-law",
"assault"
] |
Does SIPC offer protection in any scenarios other than a brokerage firm being liquidated due to being financially troubled?
| 0 |
https://law.stackexchange.com/questions/88705/does-sipc-offer-protection-in-any-scenarios-other-than-a-brokerage-firm-being-li
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CC BY-SA 4.0
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<p>I can imagine funds being lost due to hackers or fraudsters stealing assets from an account, or simply an unreasonable brokerage institution refusing access to a customer of their assets. Does SIPC have any role in these scenarios, or is it just strictly limited to when a financially troubled brokerage institution gets liquidated under the Securities Investor Protection Act?</p>
| 88,705 |
[
{
"answer_id": 88749,
"body": "<p>It is:</p>\n<blockquote>\n<p>just strictly limited to when a financially troubled brokerage\ninstitution gets liquidated under the Securities Investor Protection\nAct</p>\n</blockquote>\n<p>The <a href=\"https://www.sec.gov/about/laws/sipa70.pdf\" rel=\"nofollow noreferrer\">SIPA</a> is the securities industry analog to the FDIC (which protects depositors of insolvent banks). The SIPC's authority to take action is triggered by information from certain sources suggesting that a securities industry firm is insolvent.</p>\n<p>There are similar laws and agencies addressing insolvent savings and loan institutions, and insolvent defined benefit pension plans.</p>\n<p>In general, there are not similar agencies addressing insolvency by insurance companies (which is why some business contracts require insurance companies used to fulfill covenants in the contract to have a certain minimum credit rating), or most kinds of mutual companies (i.e. consumer owned companies) which have a history pre-FDIC of having very low insolvency rates because they aren't incentivized to leverage themselves in the same way.</p>\n<p>The SIPA was in many ways prescient. Securities firms didn't go bankrupt in large numbers until the 2007-2008 financial crisis when many brokerage and investment banking firms converted themselves from being owned by the managing partners of those firms to being owned by third-party investors. This led to incentives that reduced a focus on risk management and increased a focus on leverage (i.e. investing with borrowed money), and resulted in mass bankruptcies in the next significant recession.</p>\n",
"score": 1
}
] |
[
"united-states",
"finance",
"banking",
"securities"
] |
What are GDPR Laws concerning requirement to back up data
| 1 |
https://law.stackexchange.com/questions/88717/what-are-gdpr-laws-concerning-requirement-to-back-up-data
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CC BY-SA 4.0
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<p>I want to create an application where I want to act as a data controller & data processor.
The only data I want to record myself is basic user data like username, address , etc.</p>
<p>But I want to run an analytics platform that would work on users' provided data. I do not want to own this data and keep it in user owned data storage (like Dropbox, Google Drive etc.)</p>
<p>How does it affect compliance with GDPR specification with right to access & right to erasure? Especially because as a processor we do not own any data (even data collated from users' data).</p>
| 88,717 |
[
{
"answer_id": 88731,
"body": "<p>As a Data Controller, you have an obligation to implement appropriate technical and organizational measures (TOMs) to ensure compliance and security. Art 32 suggests that you'll want to consider an appropriate strategy, to ensure, if appropriate,</p>\n<blockquote>\n<p>the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;</p>\n</blockquote>\n<p>aka. backups.</p>\n<p>As a Data Processor, you have different obligations though.</p>\n<p>Your primary responsibility is to follow the Controller's instructions as specified in the Art 28 data processing agreement or similar contract. Art 28 does say that the Controller must require the Processor to implement appropriate measures per Art 32, so this contract will typically have an appendix with a list of security measures. Per EDPB guidance, it is also OK if you offer a SaaS service with a fixed list of security measures, and by signing up to the service the Controller agrees that the measures are appropriate. But ultimately, only the Controller can determine what is appropriate.</p>\n<p>As a Processor, you are not allowed and not required to handle data subject requests, unless instructed to do so by the Controller. However, you're required by Art 28(1)(e) to <em>assist</em> the Controller with these responsibilities. For example, an SaaS solution might offer an admin panel for deleting and exporting data.</p>\n<p>If you (and your sub-processors) do not store the source data and derived personal data, this greatly simplifies your responsibilities. Your TOMs will likely focus on managing access tokens and protecting the data while it is being analyzed.</p>\n<p>The tricky question for you is now to figure out for which activities you act as a Controller, and for which as a Processor. EDPB guidelines <a href=\"https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-072020-concepts-controller-and-processor-gdpr_en\" rel=\"nofollow noreferrer\">07/2020 on the concepts of controller and processor</a> or the ICO guide for <a href=\"https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/controllers-and-processors/\" rel=\"nofollow noreferrer\">Controllers and Processors</a> might help. While the GDPR says that a Controller is whoever participatea in determining the purposes and means of processing, some low-level decisions (such as concrete details of a backup strategy) can be left to Processors.</p>\n",
"score": 2
}
] |
[
"gdpr"
] |
When speaking to a judge in court, what do barristers mean by "May I take instructions?"
| 21 |
https://law.stackexchange.com/questions/88650/when-speaking-to-a-judge-in-court-what-do-barristers-mean-by-may-i-take-instru
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CC BY-SA 4.0
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<p>I know what <a href="https://www.legalsecretaryjournal.com/instructing_counsel" rel="noreferrer">instructions</a> to a barrister are, BEFORE court.</p>
<blockquote>
<p>When it is appropriate to use a barrister, the barrister is sent ‘Instructions' (when asked to give an opinion on a case) or a 'Brief' (if the barrister is to appear in court). Good instructions should give background on a case and will generally include the following:</p>
<ul>
<li>Who you are and whom you act for</li>
<li>Who your dispute or potential dispute is with, and the nature of it (e.g. ‘unfair dismissal claim by former employee’ or ‘boundary dispute’)</li>
<li>A brief background which usually sets out the relevant events in chronological order</li>
<li>Any relevant deadlines (e.g. limitation dates, hearing dates or time limits for serving evidence)</li>
<li>What you want the barrister to do</li>
</ul>
<p>There are no set rules on how the instructions or briefs should appear or what papers should be sent. However, where you are asking counsel to draft pleadings or appear in court, you should consider the following additional points:</p>
</blockquote>
<p>But "instructions" appear to mean something else, when blurted by the barrister himself IN court TO a judge! What's this second sense of "instructions"?</p>
<ul>
<li>Geoffrey Robertson QC in <a href="http://www.bailii.org/ew/cases/EWHC/Admin/2008/203.html" rel="noreferrer"><em>British Board of Film Classification, R (on the application of) v Video Appeals Committee</em> [2008] EWHC 203 (Admin) (24 January 2008)</a></li>
</ul>
<blockquote>
<ol start="52">
<li><p>MR ROBERTSON: <strong>May I take instructions</strong> on another matter?</p>
</li>
<li><p>MR JUSTICE MITTING: Certainly. (Pause)</p>
</li>
</ol>
</blockquote>
<ul>
<li>Paul Bowen (now KC) in <a href="http://www.bailii.org/ew/cases/EWHC/Admin/2010/3259.html" rel="noreferrer"><em>Public Interest Lawyers Ltd, R (On the Application Of) v Legal Services Commission</em> [2010] EWHC 3259 (Admin) (05 November 2010)</a></li>
</ul>
<blockquote>
<ol start="89">
<li>MR BOWEN: <strong>May I take instructions?</strong></li>
</ol>
</blockquote>
<ul>
<li><a href="https://www.matrixlaw.co.uk/member/gavin-millar" rel="noreferrer">Gavin Millar QC</a> in <a href="http://www.bailii.org/ew/cases/EWCA/Crim/2011/100.html" rel="noreferrer"><em>MGN Ltd & Ors, RE Application for Leave To Appeal</em> [2011] EWCA Crim 100 (25 January 2011)</a></li>
</ul>
<blockquote>
<p>MR MILLAR: <strong>May I take instructions</strong> so that I can find out what our position is?</p>
<p>THE LORD CHIEF JUSTICE: Yes, by all means. I am speaking for myself -- and if my colleagues have anything to say on it they will say so themselves -- my only concern relates to the five people we have called the "young witnesses".</p>
</blockquote>
<ul>
<li>David Blundell (now KC) in <a href="http://www.bailii.org/ew/cases/EWHC/Admin/2012/2364.html" rel="noreferrer"><em>Fawcett, R (on the application of) v Health Safety Executive</em> [2012] EWHC 2364 (Admin) (24 February 2012)</a></li>
</ul>
<blockquote>
<ol start="36">
<li><p>MR BLUNDELL: I am very grateful for that judgment, <strong>may I take instructions for a brief moment?</strong> There was a consultation on the point that I am going to address your Lordship, I am taking instructions on in just a moment.</p>
</li>
<li><p>MR JUSTICE BEATSON: Whilst you are getting instructions let me explain to -- can you wait a minute?</p>
</li>
<li><p>What I have done is you have failed but if you heard what I said then you will see and I have not made an order of costs against you, and of course Mr Blundell may try to persuade me that I ought to, but I have not because of what I have said in the judgment. Yes Mr Blundell?</p>
</li>
<li><p>MR BLUNDELL: In fact <strong>I will just take instructions.</strong> (Pause)</p>
</li>
<li><p>My Lord I am very grateful for the indication your Lordship has given. Those behind me have taken instructions, we are not going to seek to persuade your Lordship to make any other order.</p>
</li>
</ol>
</blockquote>
<ul>
<li><a href="https://www.landmarkchambers.co.uk/people/richard-moules" rel="noreferrer">Richard Moules</a> in <a href="http://www.bailii.org/ew/cases/EWHC/Admin/2014/2232.html" rel="noreferrer"><em>Wheeler v Norfolk County Council</em> [2014] EWHC 2232 (Admin) (13 June 2014)</a></li>
</ul>
<blockquote>
<ol start="52">
<li><p>MOULES: Indeed. <strong>May I take instructions</strong> on one final matter? Your Lordships do have discretion not only to quash the order, but also to remit the matter back. Insofar as my client has incurred costs resisting Mr Dixon's application in the Magistrates', that matter falls due to be decided.</p>
</li>
<li><p>MR JUSTICE CRANSTON: Do you want time to think about it?</p>
</li>
</ol>
</blockquote>
| 88,650 |
[
{
"answer_id": 88653,
"body": "<p>Lawyers <a href=\"https://www.canlii.org/en/commentary/doc/2021CanLIIDocs2001#!fragment/zoupio-_Toc87612856/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAvbRABwEtsBaAfX2zgA4B2ANgEYATBwCsPAJQAaZNlKEIARUSFcAT2gBydRIiEwuBIuVrN23fpABlPKQBCagEoBRADKOAagEEAcgGFHE0jAAI2hSdjExIA\" rel=\"noreferrer\">cannot act for their client without instructions</a>.</p>\n<p>"May I take instructions" is a request by the barrister to have a conversation in confidence with their client about what to do next or how to respond to the court. Sometimes this is just a momentary discussion, but if necessary, this can even result in the court standing down for a short break, or fully adjourning to another day.</p>\n<p>It is not a euphemism used to disparage the client.</p>\n",
"score": 54
},
{
"answer_id": 88652,
"body": "<h2>It means “We’re going somewhere I didn’t anticipate and I need to ask my client what they want to do”</h2>\n<p>Quite often it also means “My dickhead client hasn’t given me all the facts and now they’re f#%ked and I need to advise them how to mitigate the damage.”</p>\n",
"score": 39
},
{
"answer_id": 88715,
"body": "<p>It's simply a request to turn their back on the judge or bench and consult with their client. Not everything which comes up during a hearing can be forseen and often the lawyer needs to check how to respond to it; for example, unanticipated evidence from a witness, or to check whether a fine can be paid at once or will need to be in instalments.</p>\n",
"score": 7
}
] |
[
"united-kingdom",
"barristers"
] |
Avoiding a speeding ticket by refusing to tell who the driver was?
| 4 |
https://law.stackexchange.com/questions/59525/avoiding-a-speeding-ticket-by-refusing-to-tell-who-the-driver-was
|
CC BY-SA 4.0
|
<p>This hypothetical question is based on a real incident I saw in the news.</p>
<p>Suppose that a car is driving over the speed limit by a significant amount, causing a police car to turn around and go after the car. When the police get to the car, it’s parked in a rest stop and all passengers are sitting in the back seat of the car. When the police asks who the driver was, all passengers deny being the driver.</p>
<p>What happens in such a situation? Clearly someone was driving the car, but only one of the multiple passengers. Suppose that there is no evidence of who the driver was (no camera footage, for instance). Maybe one of the passengers is the owner of the car, but that doesn’t guarantee that they were the one driving.</p>
| 59,525 |
[
{
"answer_id": 59530,
"body": "<p>In Spain, most traffic offenses are usually considered administrative sanctions and involve just a relatively small fine, and perhaps losing some points in your licence. In those cases, if the driver if the vehicle cannot be established (your example, or a far regular one of a parking violation in which the officer did not see who did park it and will not wait by the side of the parker until the driver appears), the fine just goes to the registered owner.</p>\n<p>When the fine is reported to the registered owner of the vehicle, he can report who was the actual driver who broke the law at the time of the offense. I do not know what would happen if the person named does not recognize his responsability, but my guess is that the owner has to pay the fine (HINT: do not lend your car to someone who cannot be trusted).</p>\n<p>If the infraction is so excessive that it becomes a matter of penal law then there must be a trial and then the accused must be established without reasonable doubt, so in that case such a stunt maybe could work.</p>\n",
"score": 7
},
{
"answer_id": 59536,
"body": "<p><a href=\"/questions/tagged/australia\" class=\"post-tag\" title=\"show questions tagged 'australia'\" aria-label=\"show questions tagged 'australia'\" rel=\"tag\" aria-labelledby=\"australia-container\">australia</a></p>\n<p>In Australia the owner of the vehicle is legally responsible for knowing who is driving it at all times. If they can’t (or won’t) name the driver by statutory declaration they are fined for failing this duty. The fine is considerably more than the summary fine for the offence being equal to the maximum fine that a court can hand out.</p>\n",
"score": 6
},
{
"answer_id": 59573,
"body": "<p>Germany: I think the holder should know who the driver is, but can refuse to tell if it was a close relative. A judge will order the holder of the car to keep a diary where every journey is recorded, including driver obviously. That in itself is highly inconvenient. If it happens again, the holder will show his diary, and if the journey is not in the diary the car holder is in serious trouble.</p>\n<p>For less serious offences (parking) there was an effort to get a law that the holder of the car had to pay the ticket, but had the right to demand the money back from the driver, and paying the ticket would not be seen as any evidence that the holder of the car had actually done anything wrong. I don't know if this went anywhere.</p>\n",
"score": 2
},
{
"answer_id": 88734,
"body": "<p>In the U.S. it's very dependant on the relevant state law. Usually in this situation, the speeding is a misdemenor crime, and thus the driver needs to be identified correctly. The officer only making contact after all occupants exit the vehicle and the refusal to identify the driver would create enough reasonable doubt to result in an acquittal (presuming all any number of occupants were legally able to drive). If this was caught by a speed camera, then it will be charged as a civil offense and the ticket is mailed to the registered owner of the vehicle. Here the burden of proof is lesser, so the registered vehicle owner is responsible for the fine getting paid, however, would not be responsible for any punishment as if he was pulled over by a cop (I.E. Points are not placed on a license).</p>\n",
"score": 1
}
] |
[
"european-union",
"police",
"traffic"
] |
Does uploading music to a site imply responsibility for copyright infringement?
| 3 |
https://law.stackexchange.com/questions/6405/does-uploading-music-to-a-site-imply-responsibility-for-copyright-infringement
|
CC BY-SA 3.0
|
<p>In a game called <a href="https://en.help.roblox.com/hc/en-us/articles/203314100-Developer-Exchange-DevEx-" rel="nofollow noreferrer">ROBLOX</a>, users can monetize their games through a program called <a href="https://en.help.roblox.com/hc/en-us/articles/203314100-Developer-Exchange-DevEx-" rel="nofollow noreferrer">DevEx</a>. Many users who use this program what seems to be obvious copyright infringement issues in their game to a certain degree at least.</p>
<p>I understand that this isn't ROBLOX's liability based on their <a href="http://www.roblox.com/info/terms-of-service" rel="nofollow noreferrer">Terms of Service</a>, but I'm unsure of how to determine user liability.</p>
<p>Users may upload music for a virtual currency fee to the site and often upload a plethora of popular songs, and game developers can use those uploads for free in their own game. If the owner of a copyright files a complaint, does it fall under the responsibility of the user that uploaded it originally or the game creator?</p>
| 6,405 |
[
{
"answer_id": 6406,
"body": "<p>Both. The user made an infringing copy with the upload, the developer did with the download.</p>\n\n<p>Further the ToS between the app owner and the user will not protect them from being sued by the owner of the copyright. They don't have any ToS with them.</p>\n",
"score": 4
},
{
"answer_id": 88737,
"body": "<p>Uploading music (or any other protected work) to which the up-loader does not have the rights, is making a copy. Unless the recording was released under a permissive license, or its copyright has expired (not likely here) this is copyright infringement.</p>\n<p>A game developer using such recordings in a game without permission from the copyright holder is also infringement.</p>\n<p>Either the holder of the copyright on the recording, or of the copyright on the musical composition (these may well be different people or entities), or both holders, could sue he uploader, the developer, or both, and collect damages. That a fee in "game currency" was paid to the uploader may make the damages somewhat larger, but otherwise will not matter.</p>\n<p>No TOS provision could protect either the uploader or the developer in question, unless the copyright owner had agreed to it. That all this is in the context of a game does not excuse the infringement at all.</p>\n<p>However, the person who uploaded the recording would probably not be liable for the developer's use of it in a game, only for the infringement by uploading.</p>\n<p>The copyright holder (either one) may decide to sue, or not. If the holder thinks the probable damage award is too small to justify the time, trouble, and expense of bringing suit, s/he may choose not to sue. Or of course if the holder never learns of the infringement, there will be no suit.</p>\n<p>The person or firm that runs the site might also be liable for damages if the site encouraged or solicited such infringements, or built its business on them.</p>\n",
"score": 2
}
] |
[
"united-states",
"copyright",
"liability"
] |
Becoming a US person after making a gift
| 0 |
https://law.stackexchange.com/questions/88728/becoming-a-us-person-after-making-a-gift
|
CC BY-SA 4.0
|
<p>US does not have a foreign gift tax. But I had a question on whether someone needs to report it or not. Let's assume I receive a gift from a foreign family member and it is less than 100k$. So as far as I know since this is less than the threshold mentioned, it does not require me to report it to IRS. Also since the donor is also foreigner obviously they don't have to file the form 709.</p>
<p>Now what happens if within the same tax year the family member that gave the gift travels to US and applies to green card via adjustment of status. Does this put some form of burden on the donor or recipient of the gift to report it somewhere? (Note that gift was made before the travel of the donor to US)</p>
<p>Does the answer change if we assume that the total gift value of the donor is more than 100k$ but it is made to different people such that for each it does not surpass 100k$.</p>
| 88,728 |
[
{
"answer_id": 88736,
"body": "<blockquote>\n<p>Also since the donor is also foreigner obviously they don't have to\nfile the form 709.</p>\n</blockquote>\n<p>The <a href=\"https://www.irs.gov/instructions/i709\" rel=\"nofollow noreferrer\">IRS instructions for form 709</a> has a long section that starts:</p>\n<blockquote>\n<p><strong>In general</strong>. If you are a citizen or resident of the United States, you must file a gift tax return (whether or not any tax is ultimately\ndue) in the following situations.</p>\n</blockquote>\n<p>After that it says</p>\n<blockquote>\n<p><strong>Who does not need to file.</strong> If you meet all of the following requirements, you are not required to\nfile Form 709.</p>\n</blockquote>\n<ul>\n<li><p>You made no gifts during the year to your spouse.</p>\n</li>\n<li><p>You did not give more than $16,000 to any one donee.</p>\n</li>\n<li><p>All the gifts you made were of present interests.</p>\n</li>\n</ul>\n<p>There is no statement excluding "foreigners". You may be correct that a "foreigner" does not have to file form 790, but the <a href=\"https://www.law.cornell.edu/uscode/text/26\" rel=\"nofollow noreferrer\">US tax code</a> is not trivial, and does call for focused individualized legal analysis. Your main interest here seems to be the interest of the non-US person, so I assume you know about <em>your</em> obligation to file IRS Form 3520.</p>\n<p>A nonresident alien may be <a href=\"https://www.irs.gov/individuals/international-taxpayers/nonresident-aliens\" rel=\"nofollow noreferrer\">obligated to file a tax return</a>, thus any general idea that "foreigners" don't have US tax obligations is incorrect. A person who does not pass the green card test may still pass the <a href=\"https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test\" rel=\"nofollow noreferrer\">substantial presence test</a>. In addition, there are tax treaties between the US and some other countries, whereby a person from Sudan isn't treated the same as a person from Norway.</p>\n<p>The law regarding income tax, including gifts, is generally stated in terms of the tax year, and not "the moment of the event". If a person with no legal connection to the US makes a gift of $20,000 to a US person, and within that year becomes a US person (obtains a green card), that US resident will have made a gift within the tax year in excess of the tax-free limit, therefore must file form 709. They or their tax specialist would consult the <a href=\"https://www.irs.gov/instructions/i709\" rel=\"nofollow noreferrer\">instructions on form 709</a>, reading whether there might be an exception for <a href=\"https://www.irs.gov/instructions/i709#en_US_2022_publink16784xd0e511\" rel=\"nofollow noreferrer\">transfers not subject to tax</a> (esp. educational or medical exclusion) or <a href=\"https://www.irs.gov/instructions/i709#en_US_2022_publink16784xd0e1553\" rel=\"nofollow noreferrer\">certain gifts to spouse</a>.</p>\n<p>Which is a long-winded way of saying "ask your (tax) attorney".</p>\n",
"score": 1
}
] |
[
"united-states",
"tax-law",
"gift"
] |
If a tenancy deposit is paid by one other than the tenant (ie, a Relevant Person), who does the deposit less deductions get returned to post-tenancy?
| 1 |
https://law.stackexchange.com/questions/88629/if-a-tenancy-deposit-is-paid-by-one-other-than-the-tenant-ie-a-relevant-person
|
CC BY-SA 4.0
|
<p>Raphael pays a tenancy deposit on behalf of Timothy, who lives in a property for a 12 month tenancy. Who should the deposit be returned to at the end of the tenancy?</p>
<p>I'm wondering specifically if there are statutory provisions that address this question, not to be referred to the relevant contract.</p>
| 88,629 |
[
{
"answer_id": 88716,
"body": "<p>The <a href=\"https://www.legislation.gov.uk/ukpga/2004/34/part/6/chapter/4\" rel=\"nofollow noreferrer\">Housing Act 2004</a> requires that the deposit is returned to the Tenant, thus you return the deposit to Timothy, and what happens after that is between Raphael and Timothy.</p>\n",
"score": 2
},
{
"answer_id": 88712,
"body": "<p>It depends whether:</p>\n<ul>\n<li>Raphael is a party to the tenancy agreement</li>\n<li>Timothy considered the money a gift, which he used to pay the deposit</li>\n<li>Raphael considered the money to be a loan</li>\n</ul>\n<p>In the absence of a written agreement, and assuming they dispute who should get it, some arbitration is going to be required (which may or may not be in a court).</p>\n",
"score": 0
}
] |
[
"united-kingdom",
"england-and-wales",
"deposit",
"tenancy"
] |
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