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Transfer business ownership between spouses for tax purposes
| 3 |
https://law.stackexchange.com/questions/88677/transfer-business-ownership-between-spouses-for-tax-purposes
|
CC BY-SA 4.0
|
<p>I live in UK, and I have a full-time job with a salary that makes me a higher rate income taxpayer. Additionally, I am registered as a sole trader: I operate a software-as-a-service website, and I provide access to it for a fee. Because I already have a high salary from my main job, the income from my website is taxed at a higher rate (40%).</p>
<p>Is it legally possible for me to transfer the ownership of my website to my wife, who is currently a non-taxpayer, and have her receive all the profits into her own sole trader bank account? This would make the income from the website non-taxable, saving our family a considerable amount on taxes. In theory, I could give her exclusive administrative access to the website (all passwords, etc.), and she is totally capable of assuming all responsibility for it, including her becoming the GDPR data controller. The website itself is fully automated and does not currently require any regular work from my side to keep it operational (except for paying for web hosting once a year), so it's largely passive income.</p>
<p>Are such transfers considered legal in UK?</p>
| 88,677 |
[
{
"answer_id": 88689,
"body": "<blockquote>\n<p>Are such transfers considered legal in UK?</p>\n</blockquote>\n<p>Yes they should be fine.</p>\n<p>Essentially, you've built a business. You can sell or gift it to anybody, including your wife.</p>\n<p>So long as the income generated by the business is truly passive (as opposed to requiring your ongoing work effort), your wife simply profits from it as the owner. Easy-peasy.</p>\n",
"score": 1
},
{
"answer_id": 88735,
"body": "<p>A sole trader has no legal entity seperate from the owner. If somebody slips and breaks there ankle in a sole traders store when there is no sign the owner can be sued in his private capacity.</p>\n<p>If the owner of a sole trading business dies then the business ceases to exist. There is also no distinction between the business profits and the owners income tax. It is one and the same.</p>\n<p>The more important in your case is that ownership of sole traders are not transferable.</p>\n<p>You would have to change the business type to a form of ownership where the business is a seperate legal entity if you want to bring your wife into the situation.</p>\n<p>The thing is you can do that but all the money the business pays your wife will still very much count as income when payroll tax is paid.</p>\n<p>In South Africa the burden of income tax ultimately falls on the individual. That means you cannot dodge income tax and have your employer be liable for not taking the taxmans cut of your salary. Uk tax authorities may very easily have similiar rules.</p>\n<p>Many countries have strict laws about only having one permanent job also.</p>\n",
"score": 0
}
] |
[
"united-kingdom",
"tax-law"
] |
Was any statute violated when Tyre Nichols was kicked in the head?
| -1 |
https://law.stackexchange.com/questions/88709/was-any-statute-violated-when-tyre-nichols-was-kicked-in-the-head
|
CC BY-SA 4.0
|
<p><a href="https://www.cbsnews.com/live-updates/tyre-nichols-bodycam-video-memphis-police-release/" rel="nofollow noreferrer">https://www.cbsnews.com/live-updates/tyre-nichols-bodycam-video-memphis-police-release/</a></p>
<p>"The videos show different angles of Nichols being pepper sprayed, <strong>kicked in the head while being restrained</strong>, punched and struck multiple times with a baton."</p>
<p><a href="https://www.wdsu.com/article/body-cam-footage-released-of-tyre-nichols-deadly-arrest/42691615" rel="nofollow noreferrer">https://www.wdsu.com/article/body-cam-footage-released-of-tyre-nichols-deadly-arrest/42691615</a></p>
<p>"Two officers can then be seen atop Nichols on the ground, with a third nearby, for about 40 seconds. Three more officers then run up and one can be seen kicking Nichols on the ground."</p>
<p>If Nichols is handcuffed in a prone position, under what circumstances can Police kick Nichols in the head?</p>
<p><strong>Was any statute violated when Tyre Nichols was kicked in the head?</strong></p>
| 88,709 |
[
{
"answer_id": 88730,
"body": "<h2>The one that allows police to use reasonable force to effect an arrest and detention</h2>\n<p>I don’t specifically know which one that is in Tennessee law but it’s bound to be there. If it isn’t, and police are operating under ancient common law, then this is the standard anyway.</p>\n<p>Whether force used in a particular case is reasonable is a matter of fact for the jury to decide. The judge will instruct the jury on the relevant law as to what circumstances would justify kicking a restrained person in the head, if any.</p>\n",
"score": 1
}
] |
[
"police"
] |
one person contract
| 1 |
https://law.stackexchange.com/questions/88698/one-person-contract
|
CC BY-SA 4.0
|
<p>Can a person write a contract with themselves? Say that a person works in a second-hand car store. Let's assume that the same person intends to sell their car. Can that person sign a one person contract, representing seller of a car and also representing an employee of a specific second-hand car store?</p>
<p>Thank you.</p>
| 88,698 |
[
{
"answer_id": 88729,
"body": "<h2>Contracts are a relationship between two or more people</h2>\n<p>Just as it is meaningless to speak of marrying yourself, it is equally meaningless to speak of a contract with yourself. Even if you were to draft such a thing, you would not have standing to sue because you can’t sue yourself.</p>\n<h2>Your example probably isn’t a “one person contract”</h2>\n<p>It’s a contract between the car owner (person 1) and the car yard (person 2) - probably a corporation. The fact that person 1 is representing both parties to the contract doesn’t make it a “one person contract”. There are potential conflicts of interest with this but they are not necessarily ones that can’t be overcome.</p>\n<p>However, if the car owner runs a business as a car dealer as a sole trader, then, no, they cannot make this kind of contract.</p>\n",
"score": 3
}
] |
[
"contract-law"
] |
Revoking a previously granted permission on usage of a copyrighted work
| 0 |
https://law.stackexchange.com/questions/88661/revoking-a-previously-granted-permission-on-usage-of-a-copyrighted-work
|
CC BY-SA 4.0
|
<p>I am new to Law.SE.</p>
<p>Can I revoke a grant on usage, of a copyrighted work? (not licensed)</p>
<p>Say I give permission to someone to use my copyrighted work. After some time I change my mind, for whatever reason, can I explicitly ask the grantee to stop using my work? Despite the fact that I have previously (verbally) agreed for the grantee to use said copyrighted work?
If yes, under what circumstances am I permitted to pursue legal action, if the grantee fails to comply with my request of removal?</p>
| 88,661 |
[
{
"answer_id": 88662,
"body": "<p>Possibly. If you have a contractual agreement, where you grant permission to use in exchange for something of value, then you cannot just cancel the contract. If you have granted a "bare license" meaning you said "sure, you can use my pencil", then you might be able to "take it back". However it depends on what exactly you said: your permission might have reasonably seemed to be a regular license, and the person could have relied on your promise, so you could be estopped from asserting that there is no permission.</p>\n",
"score": 2
},
{
"answer_id": 88681,
"body": "<h2>Unless your grant was irrevocable, you can end the licence going forward</h2>\n<p>A “grant on usage, of a copyrighted work” <strong>is</strong> a licence - a licence is simply permission to do something that the law would not normally allow.</p>\n<p>So, yes, you can revoke the licence. However, you cannot invalidate anything that was done while the licence was in effect. If the grantee had say, made derivative works during the period of the grant, they would be allowed to use those works and to create more copies of those (because they own the copyright in them). They would not be able to make new derivative works.</p>\n",
"score": 0
}
] |
[
"copyright"
] |
How are civil judgments most typically settled?
| 2 |
https://law.stackexchange.com/questions/88274/how-are-civil-judgments-most-typically-settled
|
CC BY-SA 4.0
|
<p>A is suing B, and the court has awarded A £5000. Who decides how this balance should be paid, and what is the most common method of payment? Is it usually done through a bank transfer or a cheque?</p>
<p>Can A insist on a cash settlement?</p>
| 88,274 |
[
{
"answer_id": 88310,
"body": "<p>I can't say how they are typically settled, and there are no hard-and-rules that I can find. However, <a href=\"https://www.gov.uk/county-court-judgments-ccj-for-debt/pay-the-judgment-if-you-do-owe-the-money\" rel=\"nofollow noreferrer\">Gov.uk</a> offers this:</p>\n<blockquote>\n<p>You’ll have to pay the person or business you owe the money to, or their solicitor. The name and address will be on the judgment form. Do not pay the court.</p>\n<p>Make sure you can prove you’ve paid. Send a cheque or postal order by post, or make a bank transfer. <strong>Do not send cash through the post.</strong></p>\n<p>Keep a record of your payments and make sure you pay in time.</p>\n<p>If you’re paying in instalments, ask the person or business you owe the money to about the best way to pay.</p>\n<p>You may want to set up a standing order to pay the money directly from your bank account.</p>\n</blockquote>\n<p>As for A insisting on a cash payment, it's B's debt and as long as it's not unreasonable and in accordance with the Order B should decide on how it is settled if they can't come to an amicable arrangement.</p>\n",
"score": 3
},
{
"answer_id": 88309,
"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>In order to prevent this collection activity, B can pay A some or all of the amount due on the judgment, which can reduce post-judgment interest as well. There is usually a brief period of time after a judgment is entered in which the judgment can be paid before collection activities begin (typically two weeks). This could be done with hand delivered cash for which a receipt is given, a personal check (if the creditor will accept it), or good funds such as a money order, cashier's check or wire transfer.</p>\n<p>A has the right to collect the funds involuntarily from B, for example, by garnishing bank accounts, garnishing wages, placing liens on real property owned by the debtor and foreclosing on those liens, or seizing tangible personal property and having it sold. In the case of a garnishment, the bank or employer will turn over funds otherwise payable to B to A. In the case of a seizure of real or personal property to pay a debt, the sheriff conducts an open auction and the proceeds needs of the costs of the process itself and higher priority payments of mortgage holders or the equivalent are turned over to A.</p>\n<p>Sometimes, A will agree to forebear from engaging in collection activity if B agrees to make regular payments towards the debt and actually does so by a method that is agreed.</p>\n<p>Another fairly common scenario is that after judgment is entered, B posts a bond to stay collection activities during the pendency of an appeal. If this is done and B loses the appeal, A can collect the judgment from the bond.</p>\n",
"score": 2
},
{
"answer_id": 88714,
"body": "<p>There are no rules about settlement. A judgement ordering an award of money is just that; the court does not enforce the transfer nor dictate how it's done.</p>\n<p>If the parties can't reach an agreement themselves the claimaint can appoint Certificated Enforcement Agents (bailiffs) to collect on their behalf, and there are fees added to the claim. For judgements over £600 the claimant can also apply to the court for a <em>writ of control</em> and then use that to instruct High Court Enforcement Officers, who have more powers of enforcement. Bailiffs and HCEOs do have acceptable methods of payment, and cheques are typically no longer among them.</p>\n",
"score": 1
}
] |
[
"england-and-wales",
"payment",
"civil-judgment",
"any-jurisdiction"
] |
How does a judge decide how to examine an unrepresented defendant giving evidence?
| 6 |
https://law.stackexchange.com/questions/87335/how-does-a-judge-decide-how-to-examine-an-unrepresented-defendant-giving-evidenc
|
CC BY-SA 4.0
|
<p>It is my understanding that if a defendant in a criminal case in the Crown Court decides to represent themselves, and further decides to give evidence personally, the judge in the trial puts questions to them before they are cross-examined by the prosecution.</p>
<p>If my understanding is correct, how does the judge decide what questions to ask the defendant? Does the defendant provide a rough line of questioning, a specific list of questions, or is it completely up to the judge? Is there any guidance or precedent which governs how a judge should proceed in these circumstances?</p>
| 87,335 |
[
{
"answer_id": 88710,
"body": "<p>As in the magistrates court, it's the unrepresented defendent's responsibility to present their evidence and then be cross-examined on it - just as any other witness would. Many defendents are inexperienced in doing this in a way that is easy for everybody to follow, includes salient information, progresses in a logical order etc. Therefore the magistrates, their legal advisor, or in the Crown Court the judge, can assist (but not lead) the defendent to present their evidence to the highest standard possible. Generally that process is through clarifying questions.</p>\n",
"score": 1
}
] |
[
"criminal-law",
"england-and-wales",
"judiciary",
"legal-representation",
"crown-court"
] |
source code authorship laws
| -2 |
https://law.stackexchange.com/questions/88695/source-code-authorship-laws
|
CC BY-SA 4.0
|
<p>Please advise me with the following three situations:</p>
<ol>
<li><p>situation one - There are two programmers employed by a company. One writes a source code of a computer program. Can the second one edit it? (modify the source code)</p>
</li>
<li><p>situation two - A person A hires a programmer to write a source code of a computer program, the programmer is hired only for that one particular job. After the work is done and payment is provided, can the person A modify the source code that the mentioned programmer wrote?</p>
</li>
<li><p>situation three - A person B owns 100% shares of a legal entity. This legal entity bought authorship, copyright or license to a source code of a computer program, written by a programmer. Can person B modify the source code or does he/she has to buy it from the legal entity that they own 100% shares of?</p>
</li>
</ol>
| 88,695 |
[
{
"answer_id": 88706,
"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>There are two programmers employed by a company. One writes a source code of a computer program. Can the second one edit it? (modify the source code)</p>\n</blockquote>\n<p>If these are regular preferment employees, then the code will be a work-made-for-hire (WFH) unless they have a contract that says otherwise. In that case the employer will be legally the "author" under US law (many other countries do not take this position) and the copyright will be owned by the employer. The employer can therefore authorize anyone to edit or otherwise use the code.</p>\n<blockquote>\n<p>A person A hires a programmer to write a source code of a computer program, the programmer is hired only for that one particular job. After the work is done and payment is provided, can the person A modify the source code that the mentioned programmer wrote?</p>\n</blockquote>\n<p>This depends entirely on the agreement between the coder and the employer. The code will not be a WFH unless a written contract explicitly says so, and such a work would probably not qualify as a WFH even if a contract says so, because only certain types of work may be WFH from a contractor. But the contract could transfer the copyright to the client (employer), or grant the client an extensive and long0-term license which includes the right to create derivative works. In either case the client may make, or authorize others to make, changes to the code without further permission from the coder. If the agreement did not convey such rights, the client would need separate permission for such changes.</p>\n<blockquote>\n<p>A person B owns 100% shares of a legal entity. This legal entity bought authorship, copyright or license to a source code of a computer program, written by a programmer. Can person B modify the source code or does he/she has to buy it from the legal entity that they own 100% shares of?</p>\n</blockquote>\n<p>If the legal entity owns the copyright, or has obtained a license which permits code modifications, it may authorize anyone to make such modifications, including the owner of the entity. No separate "sale" or payment is needed.</p>\n<p>One cannot "buy authorship" except by making the work a WFH, and that is not always possible. But one may buy the copyright, or a license giving extensive and long-term rights, including the right to create derivative works or modified versions.</p>\n<h2>Source Code</h2>\n<p>There is nothing in any of this that is specific to source code. The same rules would apply if the work in question were a technical manual, a novel, a work of graphic art, or any other "original work of authorship". The only difference would be whether the work is one of the types for which a contract may create a WFH arrangement. And even that would only matter if there was an explicit contract purporting to make the work a WFH.</p>\n",
"score": 2
}
] |
[
"licensing",
"authorship"
] |
Does adding an In-app purchase to my Google Play app require any additional privacy requirements?
| 1 |
https://law.stackexchange.com/questions/88649/does-adding-an-in-app-purchase-to-my-google-play-app-require-any-additional-priv
|
CC BY-SA 4.0
|
<p>Suppose that a developer has created an android app. It doesn't collect any user data except that when a user clicks on advertisements, some information is shared with to third party companies like Google.</p>
<p>Now suppose the developer adds an in-app purchase feature to the app (managed by Google Play). Does this change impose any additional legal requirements to add something to the apop's privacy policy or anywhere else?</p>
| 88,649 |
[
{
"answer_id": 88708,
"body": "<p><a href=\"/questions/tagged/gdpr\" class=\"post-tag\" title=\"show questions tagged 'gdpr'\" aria-label=\"show questions tagged 'gdpr'\" rel=\"tag\" aria-labelledby=\"gdpr-container\">gdpr</a></p>\n<h2>GDPR</h2>\n<p>This depends on what data protection laws apply, if any. For purposes of this answer I will assume that the GDPR applies, either because the app operator (who may or may not be the same as the developer) is located in the EU or UK, or because the operator has "targeted" a jurisdiction where the GDPR applies, and at least some of the users a located in such a jurisdiction. Another data protection law may apply instead, in which case the rules will be more or less different. In some cases no such law will apply at all.</p>\n<h3>Lawful basis</h3>\n<p>Under the GDPR, and particularly under <a href=\"https://gdpr-info.eu/art-6-gdpr/\" rel=\"nofollow noreferrer\">Article 6</a>, the Data Controller (DC) must specify the purpose of, and a lawful basis for, any processing of Personal Data (PD) Paragraph 1 of <a href=\"https://gdpr-info.eu/art-4-gdpr/\" rel=\"nofollow noreferrer\">Article 4</a> defines personal data:</p>\n<blockquote>\n<p>"personal data" means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; ...</p>\n</blockquote>\n<p>That would include "user data", the user's IP address, and other information that is related to the user, including the user's choices and activities while using the app.</p>\n<p>A plausible basis might well be item (b):</p>\n<blockquote>\n<p>processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject ...</p>\n</blockquote>\n<p>Or it might be item (a), consent. The other possible lawful bases do not seem likely to apply in the situation described in the question.</p>\n<h3>Informing the Data Subject</h3>\n<p>Under <a href=\"https://gdpr-info.eu/art-13-gdpr/\" rel=\"nofollow noreferrer\">article 13</a> and <a href=\"https://gdpr-info.eu/art-14-gdpr/\" rel=\"nofollow noreferrer\">article 14</a> of the GDPR, the DC must provide a variety of intimation to the DS whenever PD is collected, either from the DS or from a third party. This includes the purpose(s) of the processing as well as the lawful basis. It also include who is going to receive the PD, and whether it will be transferred to a third country.</p>\n<p>The GDPR does not specify exactly how this information must be provided, whether it must be in a privacy policy, or in a TOS document, or sent individually to the DS, or in some other way. But it must be provided, and must be provided "in a concise, transparent, intelligible and easily accessible form, using clear and plain language" according to [Article 12]((<a href=\"https://gdpr-info.eu/art-12-gdpr/\" rel=\"nofollow noreferrer\">https://gdpr-info.eu/art-12-gdpr/</a>). A privacy policy might well be a good way to provide this information.</p>\n",
"score": 1
}
] |
[
"privacy",
"payment"
] |
Before Terry, did the Fourth Amendment require a warrant for all searches and seizures or only the "unreasonable" ones?
| 4 |
https://law.stackexchange.com/questions/88664/before-terry-did-the-fourth-amendment-require-a-warrant-for-all-searches-and-se
|
CC BY-SA 4.0
|
<p>I'm trying to understand the direct meaning of the Fourth Amendment as best as possible. The Amendment states the following (emphasis added):</p>
<blockquote>
<p>The right of the people to be secure in their persons, houses, papers, and effects, <strong>against unreasonable searches and seizures</strong>, shall not be violated, and <strong>no Warrants shall issue, but upon probable cause</strong>, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.</p>
</blockquote>
<p>Is the statement that warrants require probable cause limited to the context of "unreasonable" searches and seizures, or was the idea that <em>all</em> searches and seizures, reasonable or otherwise, require a warrant? And in case Supreme Court precedent made the answer time-specific, I'm asking specifically how the Amendment would have been understood before <em>Terry v. Ohio</em>, as I want to know, as best as possible, which interpretation was originally held.</p>
<p>Before <em>Terry</em>, did only "unreasonable" searches or seizures require a warrant?</p>
| 88,664 |
[
{
"answer_id": 88668,
"body": "<blockquote>\n<p>was the idea that all searches and seizures, reasonable or otherwise, require a warrant?</p>\n</blockquote>\n<p>No.</p>\n<blockquote>\n<p>The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.</p>\n</blockquote>\n<p>This means that unreasonable searches are prohibited. A prohibited search can't require a warrant because the search is prohibited.</p>\n<p>If a warrant was issued for an unreasonable search then the warrant was issued in error.</p>\n",
"score": 5
},
{
"answer_id": 88665,
"body": "<p>Before <em>Terry</em>, and from the founding, there have been many warrantless searches that were considered reasonable.</p>\n<blockquote>\n<p>It was recognized by the framers of the constitution that there were reasonable searches for which no warrant was required.</p>\n<p><em>United States v. Rabinowitz</em>, <a href=\"https://tile.loc.gov/storage-services/service/ll/usrep/usrep339/usrep339056/usrep339056.pdf\" rel=\"nofollow noreferrer\">339 U.S. 56</a>, 60 (1950).</p>\n</blockquote>\n<p>As just one example, in <em>Harris v. United States</em>, <a href=\"https://tile.loc.gov/storage-services/service/ll/usrep/usrep331/usrep331145/usrep331145.pdf\" rel=\"nofollow noreferrer\">331 U.S. 145</a> (1947), a warrantless search incidental to an arrest, even of an entire dwelling, was held to be reasonable. There are many other historically (and still) recognized exceptions to the warrant requirement relating to exigency and searches incident to arrest.</p>\n<blockquote>\n<p>The touchstone of the Fourth Amendment is reasonableness. The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable.</p>\n<p><em>Florida v. Jimeno</em>, <a href=\"https://tile.loc.gov/storage-services/service/ll/usrep/usrep500/usrep500248/usrep500248.pdf\" rel=\"nofollow noreferrer\">500 U.S. 248</a> (1991).</p>\n</blockquote>\n<p>The test "is not whether it is reasonable to procure a search warrant, but whether the search was reasonable": <em>United States v. Rabinowitz</em>, <a href=\"https://tile.loc.gov/storage-services/service/ll/usrep/usrep339/usrep339056/usrep339056.pdf\" rel=\"nofollow noreferrer\">339 U.S. 56</a> (1950).</p>\n<p>Whether a warrant has been obtained is <em>part</em> of the analysis into whether a search is reasonable.</p>\n",
"score": 3
},
{
"answer_id": 88707,
"body": "<p>A unreasonable search is an unreasonable search, regardless of whether a warrant exist. The warrant does not make the search reasonable, the warrant is a process whereby the police prove that the search is reasonable.</p>\n<p>Note that this means that if the officer lies either actively or through omission, or conspires with the judge to get a warrant for an unreasonable search, the warrant is invalid.</p>\n<p>The majority (and binding) decision, could in a way be interpreted as a SOCIAL statement, that it is considered reasonable for the police to search a person they have detained for weapons their own safety. The authorized search is limited to officers safety, they can not be searching for other evidence, only weappns.</p>\n<p>IMO this was a step along the road to unacceptable deferment to the police and civil authority (previous step being Pierson v. Ray making up qualified immunity, Douglas dissenting in both cases).</p>\n",
"score": 0
}
] |
[
"legal-history",
"search-and-seizure",
"fourth-amendment",
"warrant",
"reasonable"
] |
Are objects such as Rubiks Cube and Smiley faces really forbidden for use?
| -2 |
https://law.stackexchange.com/questions/88701/are-objects-such-as-rubiks-cube-and-smiley-faces-really-forbidden-for-use
|
CC BY-SA 4.0
|
<p>I am a designer and a part time web developer. I recently designed a web UI for a pet project of mine and before going public consulted my legal advisor. To my surprise, my advisor recommended that I totally drop my idea as it would get me into trouble.</p>
<p>My design:</p>
<ol>
<li>A website whose banner would have my workstation desk as an image (think of it as a stock image)</li>
<li>Somewhere on my desk I have a Rubik's cube with my initials on it, and a sticker on the wall with a Smiley face ( :) )</li>
<li>As the user scrolls through the page, a Rubik's cube at the bottom right will spin, and arrange in a manner which shows my initials on the cube once the user reaches the end of the page</li>
</ol>
<p>My advisor's feedback:</p>
<ol>
<li>The workstation has the name of the manufacturer which is problematic</li>
<li>Using Rubik's cube (a rotating 3x3x3 cube of any color scheme) for any purpose is problematic</li>
<li>Smiley faces and other emoticons are not to be used</li>
<li>The screen on my workstation shows a popular software which could also lead to trouble</li>
</ol>
<p>This just scraps my entire idea.</p>
<p>Per my understanding, "creative expression" of everyday objects can be copyrighted, and should not result in an infringement, right? I am not a legal expert, so kindly pardon my naivety, but I thought objects like desks, chairs, computers, some sticker on a wall and some nerdy puzzles, or a "creative expression" involving a combination of these cannot count as infringement of rights owned by their manufacturers, right? It's not like I am advertising their products as mine, nor am I seeking to snatch away their rights by attempting to copyright a picture of them. I also don't think I would cause any brand damage by just using a picture. I mean, think of all the gaming desktop builds over the internet and how many images they post</p>
<p>So what's the problem?</p>
<p>I am just not sure of what can be used anymore, for non-profit or commercial purposes. I can no longer use the equipment I have to click an image of them, and use it to brand my work (as a copyright/logo etc.)? How is this possible? Should I now build my own equipment from stone and wood? Should I also write my own software? Is there anything in the world that CAN be used as a logo/copyrighted property?</p>
<p>Thanks for being patient, and thanks for any opinions.</p>
<p>PS: I am <em><strong>not</strong></em> seeking legal opinion, I already did that. I am only trying to refine my understanding of the way the legal world works.</p>
| 88,701 |
[
{
"answer_id": 88704,
"body": "<p>I cannot be sure why your advisor has given the advice that s/he did. Note that when an IP lawyer says that something is "problematic", the lawyer may mean not "That would clearly be an infringement" but rather something more like:</p>\n<blockquote>\n<p>We might win a suit over that, but a plaintiff would have a reasonable case so we could lose, and even if we won it wouldn't be dismissed at once, and the costs and tiem required to mount a defense would likely be prohibitive.</p>\n</blockquote>\n<p>A Lawyer advising a client must take risks and probable costs into account, as well as what is and is not clearly required by the law. That said, I am <strong>not</strong> a lawyer advising a client, so I can address the more theoretical legal aspects here, and ignore the risks and cost to a degree.</p>\n<blockquote>\n<p>The workstation has the name of the manufacturer which is problematic</p>\n</blockquote>\n<p>Names cannot be copyrighted, but can be and often are protected by trademark law. But showing a products or manufacturer's name on an image of a product is pretty much never trade mark infringement if one is not advertising that or a similar product, or in some way conveying the idea that the product begin sold is from, or endorsed or sponsored by the manufacturer. In any case, surely the image of the workstation could be edited to remove the name, or change it to a fictional name?</p>\n<blockquote>\n<p>Using Rubik's cube (a rotating 3x3x3 cube of any color scheme) for any purpose is problematic</p>\n</blockquote>\n<p>The idea of a rotating 3x3x3 array of cubes is an <strong>idea</strong>, and as such is not at all subject to copyright. There was a patent on the particular mechanism Rubic used to implement this idea, but that has long since expired, and would not be on display in any case. An image of a particular version of the cube (and its name) might be protected as a trademark, but I do not see how this could cover the general use of any such array.</p>\n<blockquote>\n<p>Smiley faces and other emoticons are not to be used</p>\n</blockquote>\n<p>This is, in my view, far too broad a statement. The WIPO Magazine article <a href=\"https://www.wipo.int/wipo_magazine/en/2018/03/article_0006.html\" rel=\"nofollow noreferrer\">"Emojis and intellectual property law"</a> published by the World Intellectual property organization, states:</p>\n<blockquote>\n<p>... most individual emojis will not receive copyright protection for at least three reasons.</p>\n<p>First, some emojis are so simple that they do not have enough expression to constitute a work of authorship. Also, some emoji designs are so venerable that they are not original.</p>\n<p>Second, emojis are subject to the merger doctrine, which eliminates copyright protection when an idea can be expressed only in a limited number of ways, and <em>scènes à faire</em>, which eliminates copyright protection for details that, in context, are common or expected. ...</p>\n<p>Third, though Unicode’s IP policy is not crystal clear, Unicode likely either disclaims ownership or freely grants unrestricted usage of its emoji definitions. Platform-specific implementations of Unicode-defined emojis are based on the Unicode outlines, so most implementations should be derivative works of Unicode’s definitions.</p>\n<p>...</p>\n<p>Even if an individual emoji qualifies for copyright protection, its scope of protection may be quite narrow. For example, many courts in the United States will apply the fair use defense broadly to authorize non-identical emoji implementations, and even identical depictions could qualify as fair use.</p>\n</blockquote>\n<p>I think that the classic smiley face would almost surely not be protected under the merger doctrine. The rules for emoticons in general might differ.</p>\n<blockquote>\n<p>The screen on my workstation shows a popular software which could also lead to trouble</p>\n</blockquote>\n<p>This might have soem value. Showing screen shots is generally fair use when used for comment or instruction. But the appearance of a particular software package can be covered by copyright, and use of it for commercial purposes that are not comment on the application might not come under fair use. This would depend very much on the details of the program and exactly what is shown. But a designer ought to be able to chose the display to be shown so that it was not likely to be infringement, or to obtain permission for the software maker.</p>\n<p>You could ask your advisor to go into more detail as to why s/he made these recommendations. That might require an additional fee, and perhaps would not be worth it.</p>\n<p>It is worth remembering that what is and is not allowable in an IP context is often not clear cut, and a possible lawsuit involves significant risk and expense, even when an academic lawyer would say there is little chance of an adverse verdict, and even if that judgement proves correct in the end.</p>\n",
"score": 1
}
] |
[
"copyright",
"intellectual-property",
"interpretation"
] |
For a criminal attempt, when is an act more than merely preparatory?
| 5 |
https://law.stackexchange.com/questions/88696/for-a-criminal-attempt-when-is-an-act-more-than-merely-preparatory
|
CC BY-SA 4.0
|
<p>In several jurisdictions, the <em>actus reus</em> of a criminal attempt is taking an act beyond mere preparation towards the completion of a criminal offence. What is the test for determining when an act is beyond mere preparation?</p>
| 88,696 |
[
{
"answer_id": 88697,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"canada-container\">canada</a></p>\n<p>Maybe it is unsatisfying, but there is no bright line test.</p>\n<h3>The statutory language</h3>\n<p>The <em>Criminal Code</em> says:</p>\n<blockquote>\n<p>The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.</p>\n</blockquote>\n<h3>Some judicial expressions</h3>\n<p>"[A] precise and satisfactory definition of the <em>actus reus</em> is perhaps impossible." And "[n]o abstract test can be given for determining whether an act is insufficiently proximate to be an attempt."</p>\n<p>See <em>R. v. Cline</em> (1956), <a href=\"https://canlii.ca/t/g176x\" rel=\"nofollow noreferrer\">115 C.C.C. 18</a> (Ont. C.A.):</p>\n<blockquote>\n<p>The consummation of a crime usually comprises a series of acts which have their genesis in an idea to do a criminal act; the idea develops to a decision to do that act; a plan may be made for putting that decision into effect; the next step may be preparation only for carrying out the intention and plan; but when that preparation is in fact fully completed, the next step in the series of acts doen by the accused for the purpose and with the intention of committing the crime as planned cannot, in my opinion, be regarded as remote in its connection with that crime. The connection is in fact proximate.</p>\n</blockquote>\n<p>Here is a summary from <em>R. v. Root</em>, <a href=\"https://canlii.ca/t/2200k\" rel=\"nofollow noreferrer\">2008 ONCA 869</a>, citations removed:</p>\n<blockquote>\n<p>[96] The authorities have yet to develop a satisfactory general criterion\nto assist trial judges in making the crucial distinction between mere\npreparation, on the one hand, and an attempt on the other. We leave\nthe determination of where on the continuum the conduct lies to the\ncommon sense judgment of trial judges.</p>\n<p>[97] The distinction between preparation and attempt is a\nqualitative one involving the relationship between the nature and\nquality of the act said to constitute the attempt and the nature of\nthe substantive offence attempted in its complete form.</p>\n<p>[98] To determine on which side of the preparation/attempt\ndivide an accused’s conduct falls, a trial judge should consider the\nrelative proximity of that conduct to the conduct required to amount\nto the completed substantive offence. Relevant factors would include\ntime, location and acts under the control of the accused yet to be\naccomplished.</p>\n<p>[99] Relative proximity may give an act, which might otherwise\nseem to be mere preparation, the quality of an attempt. Further, an act on its face an act of commission does not lose its quality as the actus reus of an attempt simply because further\nacts are required, or because a significant period of time may elapse\nbefore the completion of the substantive offence.</p>\n<p>[100] To constitute the <em>actus reus</em> of an\nattempt, the act of an accused need not be the last act before the\ncompletion of the substantive offence. To constitute the actus reus of\nan attempt, an act must be sufficiently proximate to the intended\ncrime to amount to more than mere preparation to commit it. This\nrequirement of proximity, expressed in the divide between preparation\nand attempt, has to do with the sequence of events leading to the\ncrime that an accused has in mind to commit. To be guilty of an\nattempt, an accused must have progressed a sufficient distance (beyond\nmere preparation) down the intended path. An act is proximate if it is the first of a\nseries of similar or related acts intended to result cumulatively in a\nsubstantive crime.</p>\n</blockquote>\n",
"score": 5
}
] |
[
"criminal-law",
"inchoate-offences",
"attempt"
] |
what are some common defences to criminal attempt charges?
| -1 |
https://law.stackexchange.com/questions/88690/what-are-some-common-defences-to-criminal-attempt-charges
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CC BY-SA 4.0
|
<p>Generally factual impossibility isn't a defence but are there other kinds of defences to criminal attempt and criminal preperation other than factual impossibility defence ? Also can factual impossibility defence apply to criminal preperation and conspiracy charges ? Or is it a prohibited defence generally in these cases too ?</p>
| 88,690 |
[
{
"answer_id": 88691,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"canada-container\">canada</a></p>\n<p>Attempts are criminalized in Canada by s. 24(1) of the Criminal Code:</p>\n<blockquote>\n<p>Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.</p>\n</blockquote>\n<p>The <em>mens rea</em> of an attempt requires the accused to have <em>intended</em> to carry out the actual offence. The <em>actus reus</em> of an attempt requires the accused to have taken steps that were more than "mere preparation" (<em>R. v. Cline</em>, <a href=\"https://www.canlii.org/en/on/onca/doc/1956/1956canlii150/1956canlii150.html\" rel=\"nofollow noreferrer\">115 C.C.C. 18</a> (Ont. C.A.)).</p>\n<p>All the typical defences are available:</p>\n<ul>\n<li>denying the <em>mens rea</em> or the <em>actus reus</em> (i.e. that the accused did not actually have the intent to carry out the offence or that their actions did not amount to anything more than mere preparation)</li>\n</ul>\n<p>And, as long as they would be available for the underlying offence:</p>\n<ul>\n<li><a href=\"https://www.canlii.org/en/ca/scc/doc/1995/1995canlii110/1995canlii110.html\" rel=\"nofollow noreferrer\">duress</a></li>\n<li><a href=\"https://www.canlii.org/en/ca/scc/doc/2022/2022scc18/2022scc18.html\" rel=\"nofollow noreferrer\">automatism</a> (including due to extreme intoxication, but subject to the limitations in <a href=\"https://laws-lois.justice.gc.ca/eng/acts/c-46/page-5.html#h-115821\" rel=\"nofollow noreferrer\">s. 33.1</a>)</li>\n<li><a href=\"https://www.canlii.org/en/ca/scc/doc/1984/1984canlii23/1984canlii23.html\" rel=\"nofollow noreferrer\">necessity</a></li>\n</ul>\n<p>You are correct that <a href=\"https://law.stackexchange.com/a/88611/46948\">factual impossibility is not a defence</a> to an attempt charge: "<a href=\"https://www.canlii.org/en/on/onsc/doc/2006/2006canlii730/2006canlii730.html\" rel=\"nofollow noreferrer\">an attempt to do the factually impossible is still an attempt for the purposes of s. 24(1) of the Code</a>."</p>\n",
"score": 2
},
{
"answer_id": 88693,
"body": "<p>First you can claim that it wasn’t you. If you have an alibi for example, you couldn’t be guilty of an attempted crime. Without an alibi, police would need evidence that it was you and not someone else.</p>\n<p>Second you can claim that you didn’t intend to commit the crime. That your failure wasn’t due to incompetence or luck, but deliberately. So if I open the door, you shoot, and the bullet misses me, you can claim that this was your intention.</p>\n<p>The police will try to find evidence for your intent. And at best it creates doubt, but it’s up to a jury to decide whether it is reasonable or unreasonable doubt.</p>\n<p>Third, you must have done steps that are more than just preparatory. So if you wanted to commit a crime, it would depend on when exactly you were stopped. So you claim that what you did was merely a preparation and not any actual attempt to commit the crime (yet).</p>\n<p>“Attempted” crimes all failed for some reason, so if there are facts that made it impossible that’s no excuse. Unless you knew about the impossibility and use this to show that you didn’t want to commit the crime. Say you have a gun, take it to a gun store to make sure it isn’t loaded, then took the gun and pulled the trigger pointing at someone. In this case you can argue successfully that you had no intent to murder anyone. But if you didn’t check the gun was loaded and I removed the bullets because I don’t trust you then it would be attempted murder.</p>\n",
"score": 0
}
] |
[
"criminal-law"
] |
Is deadly self defense in Germany legal?
| 9 |
https://law.stackexchange.com/questions/22735/is-deadly-self-defense-in-germany-legal
|
CC BY-SA 3.0
|
<p>Since I am an American in Germany I have had this discussion with a few Germans but haven't got a concrete answer. If i am at home in Germany and someone breaks into my house and I see that they have a gun am i allowed to use a gun that I have legally or a knife as self defense? </p>
| 22,735 |
[
{
"answer_id": 23110,
"body": "<p>Deadly self-defense is legal in Germany. The self-defense law (in particular Sect. 32 of the Criminal Code) makes no restrictions as far as the type of aggression and the type of defense is concerned. That means that - in principle - you can defend yourself against an attack by any means that is necessary to stop it. The principle behind that is <em>\"das Recht muss dem Unrecht nicht weichen\"</em>, which translates to \"the law does not have to yield to the unlawful\". That particularily means that:</p>\n\n<ul>\n<li>You do not have to run.</li>\n<li>You do not have to yield.</li>\n<li>You do not have to wait for help from public authorities (notably the police).</li>\n</ul>\n\n<p>You can defend yourself (against any attack on you, be it life, limb or property), no matter if that would mean commiting a crime (even if that crime is killing a person). This is called <em>\"Trutzwehr\"</em> or <em>\"schneidiges Notwehrrecht\"</em>, which can be translated to \"active defense\" or \"aggressive defense\" as opposed to passive defense.</p>\n\n<p>However...</p>\n\n<p>This regulation is not without pitfalls and limitations. There are quite a few, which means that in practice deadly force could be considered unlawful in self-defense. Books have been written about this subject alone, so it can not be exhaustively handled here. Some examples for corner cases are:</p>\n\n<ul>\n<li>Attackers that <em>clearly</em> can not understand the severity of their actions have to be spared from extreme effects of your self-defense. The classical book case is that you can't shoot little children stealing apples from your tree.</li>\n<li>If there is a massive discrepancy between what you want protect and the damage the attacker has to endure (called <em>\"qualitativer Notwehrexzess\"</em> - translating to \"qualitatively eccessive self-defense\"). If someone insults you, shooting him might go to far, since while your honour is attacked (which is protected by Sect. 185 Criminal Code), the attacker's life (protected by Sect. 212 Criminal Code) <em>by far</em> outweighs it. Note that, to ensure the effectiveness of the self-defense laws, the discrepancy must be extreme. And it does not mean you can't defend yourself. You just have to choose a less severe measure. So you <em>might</em> get away with knocking the insulter out.</li>\n<li>After the attack is over you hit the attacker once too often, which causes his death (called <em>\"quantitativer Notwehrexzess\"</em> - \"quantitatively eccessive self-defense\"). The attack was over at the time of the deadly blow, so your right for self-defense had ended. You might get away without punishment, if it was impossible for you to realize that the attack was over.</li>\n<li>If you only think an attack is happening, but it is not (for example someone attacking you with a rubber knife on Halloween). In this case there is no attack and so technically there is no right for self defense (called <em>\"Putativnotwehr\"</em>). Similar to the cases of excessive self-defense, it depends on your individual case (notable if you had a chance to realize the attack was false) if you are punished or not.</li>\n</ul>\n\n<p>To sum it up: You have the right to defend yourself by any means necessary, but you are held responsible if you go to far (not just a little, but really really to far).</p>\n",
"score": 10
},
{
"answer_id": 22745,
"body": "<p>This is governed by <a href=\"https://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/criminal_code_germany_en_1.pdf\" rel=\"noreferrer\">Sections 32 through 35 of the German Criminal Code</a> which are admittedly a bit vague:</p>\n\n<blockquote>\n <p>FOURTH TITLE: SELF-DEFENCE, NECESSITY AND DURESS</p>\n \n <p>Section 32 Self-defence</p>\n \n <p>(1) A person who commits an act in self-defence does not act\n unlawfully.</p>\n \n <p>(2) Self-defence means any defensive action that is necessary to avert\n an imminent unlawful attack on oneself or another.</p>\n \n <p>Section 33 Excessive self-defence</p>\n \n <p>A person who exceeds the limits of self-defence out of confusion, fear\n or terror shall not be held criminally liable.</p>\n \n <p>Section 34 Necessity</p>\n \n <p>A person who, faced with an imminent danger to life, limb, freedom,\n honour, property or another legal interest which cannot otherwise be\n averted, commits an act to avert the danger from himself or another,\n does not act unlawfully, if, upon weighing the conflicting interests,\n in particular the affected legal interests and the degree of the\n danger facing them, the protected interest substantially outweighs the\n one interfered with. This shall apply only if and to the extent that\n the act committed is an adequate means to avert the danger.</p>\n \n <p>Section 35 Duress</p>\n \n <p>(1) A person who, faced with an imminent danger to life, limb or\n freedom which cannot otherwise be averted, commits an unlawful act to\n avert the danger from himself, a relative or person close to him, acts\n without guilt. This shall not apply if and to the extent that the\n offender could be expected under the circumstances to accept the\n danger, in particular, because he himself had caused the danger, or\n was under a special legal obligation to do so; the sentence may be\n mitigated pursuant to section 49(1) unless the offender was required\n to accept the danger because of a special legal obligation to do so.</p>\n \n <p>(2) If at the time of the commission of the act a person mistakenly\n assumes that circumstances exist which would excuse him under\n subsection (1) above, he will only be liable if the mistake was\n avoidable. The sentence shall be mitigated pursuant to section 49(1).</p>\n</blockquote>\n\n<p>In practice, to the extent that you are in genuine fear for the safety of a human being from an intruder armed with a gun, in all likelihood you would be justified in using a deadly weapon in self-defense unless there was some reason that you could protect yourself completely without doing so, for example, by retreating into a panic room. </p>\n\n<p>On the other hand, if your fear is only for property and not harm to a human being, you are probably not justified. Certainly, for example, you would not be justified in shooting and killing a fleeing burglar, or someone rustling your cattle out of your barn.</p>\n\n<p>Germany does not have a \"stand your ground\" law, or something similar that automatically makes shooting someone who is an intruder in your home lawful. But, if a guy with a gun intrudes and puts some innocent person at genuine risk, it would be justified to defend yourself - and Section 33 gives you the benefit of the doubt in close cases.</p>\n",
"score": 7
},
{
"answer_id": 27544,
"body": "<p>I've had a student of law in Germany explain to me that in this example case (part of his studies):</p>\n\n<blockquote>\n <p>A teenager breaks off a part of a car. The owner sees this happening and fires a low-caliber sports gun, hitting and killing the teenager in a fringe accident, e.g. tearing an artery close to the skin.</p>\n</blockquote>\n\n<p>the actual judgment may depend on whether or not the teenager pocketed the part broken off:</p>\n\n<ul>\n<li>if the teenager pocketed the part, that's theft (regardless of the value of the item). The crime is ongoing while the teenager is carrying the part. The owner has the right to defend their property (the part broken off the car, not the car!) by appropriate means, e.g. firing a gun at the legs with intent to hinder the teenager from escaping (even if serious wounds are probable).</li>\n<li>if the teenager let the part fall to the ground, the crime committed is property damage instead. The damage is done and the crime can neither be stopped nor prevented. The owner is not allowed to shoot at all.</li>\n<li>if the owner uses a hunting rifle instead of the sports gun the means could (and probably would) be deemed inappropriate, because a hunting rifle aimed at a human can be interpreted as intention to kill (instead of stopping the crime).</li>\n<li>the owner can be hold accountable for neglect of help, if not calling an ambulance as soon as possible (after becoming aware of how badly the shot wounded the teenager)</li>\n</ul>\n",
"score": 4
}
] |
[
"germany",
"self-defense"
] |
Attributing the Assistance of an Online Translator for a Book's Chapter---Is It Necessary?
| 4 |
https://law.stackexchange.com/questions/88672/attributing-the-assistance-of-an-online-translator-for-a-books-chapter-is-it
|
CC BY-SA 4.0
|
<p>I have recently finished a work in which one of the chapters is based upon a translation of a nineteenth century document in which I have made use of a free online translator. Where the translator seemed to be at fault, I have done the translation myself; though in the end, the major portion of the whole translation used in that chapter relies on the output of the online translator.</p>
<p>The book, in three volumes, contains sixty chapters, only one of which, includes output from the the aforementioned translator.</p>
<p>QUESTION: Am I obligated to acknowledge the use of this free online tool; and if so, how should that be done? Can the writer of the software legally demand some sort of royalties when the book is published? I anticipate that it will be published in the United States.</p>
<p><strong>UPDATE</strong>
A <em>follow-up</em> to this question is found here: <a href="https://law.stackexchange.com/questions/88686/copyright-ownership-of-a-translated-article-appearing-in-a-book-in-which-an-onli">Copyright Ownership of a Translated Article Appearing in a Book in Which an Online Translator was Used</a></p>
| 88,672 |
[
{
"answer_id": 88675,
"body": "<p>Using software generally does not entail any legal requirement to acknowledge the use of that software, and would only arise as a licensing condition. Google services, including Translate, are subject to certain <a href=\"https://policies.google.com/terms?hl=en-US\" rel=\"noreferrer\">terms of use</a> especial the part about what <a href=\"https://policies.google.com/terms?hl=en-US#toc-what-we-expect\" rel=\"noreferrer\">they expect of you</a>. They do not impose any requirement regarding acknowledgment, therefore they cannot later demand any royalties. If a translation program imposes any demands on your usage of the program, that has to be part of the original agreement whereby you were allowed to use the software at all.</p>\n",
"score": 6
}
] |
[
"united-states",
"online",
"attribution"
] |
Using licensed merchandise and copyright law
| 0 |
https://law.stackexchange.com/questions/88667/using-licensed-merchandise-and-copyright-law
|
CC BY-SA 4.0
|
<p>I was in a thrift store the other day and came across a cast-iron cookie skillet. It was in the shape of Darth Vader's helmet and had a relief of the face. I had to buy it and make Darth Vader chocolate chip cookies. The Dark Side never tasted so good!</p>
<p>Looking at the cookie skillet - there was none of the original packaging - I see no marking on it other than what I assume is the manufacturer. I have no idea if it was a legally licensed product from LucasFilm... But let us assume it was.</p>
<p>Not that I will, but could I use this cookie mold to make <em>and sell</em> Darth Vader cookies? Or would that violate copyright?</p>
<p>Also, what about bakeries themselves? You can go in buy a children's birthday cake and ask for a theme like Star Wars, Harry Potter, whatever and they will sell it to you... Is that legal? Or is it illegal and copyright holders just dont bother enforcing it?</p>
| 88,667 |
[
{
"answer_id": 88670,
"body": "<p>It depends on what rights the copyright owners choose to grant. In the case of the skillet, <strong>assuming</strong> that it was properly licensed, it seems safe to assume that LucasFilms or their agent intended that it be used to create cookies using an image of Darth Vader, so that use was approved by them. Whether <strong>commercial</strong> use of the image, by selling cookies, was included in such a license, cannot be determined from the info in th4 question. Quite possibly not. Even if such a license was granted, it would be hard for one who bought the skillet second hand to prove that, in the face of a challenge from LucasFilms . So if they brought suit over such a use, they might well win.</p>\n<p>As to the bakeries where cakes and other good with images of cartoon and movie characters are sold, they should have bought rights that allow them to make and sell such products. They may have. Or they may be infringing, but the copyright or trademark owners choose not to sue. It depends entirely on what agreements the various bakeries may have entered into, and those are not normally public.</p>\n",
"score": 4
}
] |
[
"copyright"
] |
Copyright Ownership of a Translated Article Appearing in a Book in Which an Online Translator was Used
| 1 |
https://law.stackexchange.com/questions/88686/copyright-ownership-of-a-translated-article-appearing-in-a-book-in-which-an-onli
|
CC BY-SA 4.0
|
<p>As a follow-up to <a href="https://law.stackexchange.com/questions/88672/attributing-the-assistance-of-an-online-translator-for-a-books-chapter-is-it">Attributing the Assistance of an Online Translator for a Book's Chapter---Is It Necessary?</a>, and at the suggestion of @DaleM:</p>
<p>QUESTION: Would an author of a book who incorporates an English translation of an article which was first published in the 19th century (and presumably, in the public domain worldwide) by relying heavily on an online translator (such as DeepL Translate <em>free version</em> or Google Translate)---own also---a copyright, specifically, on the translated article which appears in that book?</p>
| 88,686 |
[
{
"answer_id": 88687,
"body": "<h2>Probably Not</h2>\n<p>The creator or owner of a piece of software does not in general have any copyright over the output when others run the software, unless that output is itself a derivative work of input supplied by the copyright owner, or forming part of the software.</p>\n<p>In this case the translation is a derivative work of the 19th century original, but that is assumed to be in the public domain. SAo google has no copyright on the resulting translation. But copyright protection is only available for "original works of authorship". (See <a href=\"https://www.copyright.gov/title17/92chap1.html#102\" rel=\"nofollow noreferrer\">17 USC 102</a> in the US, and similar laws elsewhere.) A machine-produced translation is not an original work, and it is surely not then work of the author of the overall book.</p>\n<p>However, the author would still have a copyright on the book <strong>as a whole</strong>. The legal situation is no different than if the author had simply quoted a 19th century work. One may incorporate public domain works into a later work, and that later work is still protected by copyright, provided that there is enough original contentr to make the work as a whole "an original work of authorship". Others may use the PD [arts, or the original from which they are taken, but not the rest of the work (beyond what fair use would allow in any case).</p>\n<p>For example, I have made a number of posts here on LAW.SE. In several,of those I quoted sections from one of the numbers of <em>The Federalist</em>. That 19th century work is in the public domain. Anyone else may re-quote the passages I quoted from it. But that gives them no rights to use the rest of my work, except as the CC-BY-SA license or fair use permits.</p>\n<p>So the author would retain copyright on the book as a whole. But soemoen who merely quotes or uses the translated 19th century article but none of the original parts of the book would not be infringing that copyright.</p>\n<p>I say <strong>probably</strong> in the header, because I do not have any actual case-law to cite here. It is possible that some court has rules otherwise on the subject of the copyright on the output of a software tool, but I strongly doubt it.</p>\n",
"score": 3
}
] |
[
"copyright",
"ownership",
"public-domain",
"online",
"translation"
] |
When an author sells the underlying copyright to a third party, where does the publisher now send the royalties?
| 8 |
https://law.stackexchange.com/questions/88615/when-an-author-sells-the-underlying-copyright-to-a-third-party-where-does-the-p
|
CC BY-SA 4.0
|
<p>A book publishing contract typically starts with an author who owns a copyright and licenses it to a publisher for the term of the copyright. The publisher (or the literary agent) sends royalty checks to the author. (I'm using royalties as a stand-in here for all the various obligations the publisher typically owes under a contract.)</p>
<p>Here's the wrinkle: Suppose the author, while alive, transfers the underlying copyright to a third party. Where does the publisher send the royalty check? To the author, or to the new copyright owner?</p>
<p>Another way of asking the question: Does the publisher's contractual obligation flow to the individual person (the author) who signed the publishing contract, or does it flow to the owner of the copyright, whoever that may be? If the first is true, then a separate transfer of contractual obligations would presumably be needed to vest the third party with all rights. But if the second is true, then the shift of royalties (obligations) would be automatic.</p>
<p>(A related question: In the normal case, the author still owns the copyright when he dies, at which point the heirs succeed to the author's rights under the publishing contract. No problem. But if the copyright ownership has been transferred to a third party during author's lifetime, does that third party have any claim to the royalties going forward?)</p>
<p>Geographically, this question pertains to the U.S. (but it would be interesting to hear if other jurisdictions have different approaches).</p>
| 88,615 |
[
{
"answer_id": 88621,
"body": "<p>Any obligation to pay royalties comes from the agreement between the publisher and the copyright holder. In a particular agreement, "the Author" is defined as the specific person, and the royalties clause says that "During the legal period of copyright Publisher shall pay to the Author...". Whether or not Author retains copyright (merely grants a non-exclusive license) or transfers copyright to Publisher is specified in the agreement. If (per the hypothetical) Author has the right to transfer copyright i.e. has not transferred copyright to the Publisher, this does not extinguish the Publisher's original obligation to pay royalties – unless that is what the copyright agreement says (I've never seen such a clause, but who knows). Change the Royalties clause to read "shall pay the owner of the copyright", then you get a different result.</p>\n",
"score": 10
},
{
"answer_id": 88619,
"body": "<blockquote>\n<p>Where does the publisher send the royalty check? To the author, or to\nthe new copyright owner?</p>\n</blockquote>\n<p>To the new owner, as soon as the publisher is informed of the change in ownership of the copyright.</p>\n<p>If the published sends to check to the author because the published hasn't yet been informed of the transfer (usually something that only happens once or twice until it is cleared up), the author has to hold the funds received in a constructive trust for the new copyright owner and pay them over to the new copyright owner promptly.</p>\n<blockquote>\n<p>Does the publisher's contractual obligation flow to the individual\nperson (the author) who signed the publishing contract, or does it\nflow to the owner of the copyright, whoever that may be? If the first\nis true, then a separate transfer of contractual obligations would\npresumably be needed to vest the third party with all rights. But if\nthe second is true, then the shift of royalties (obligations) would be\nautomatic.</p>\n</blockquote>\n<p>The contract of sale would make this fine distinction irrelevant 99% of the time anyway by expressly providing for an assignment of all contracts licensing the copyright, but this assignment would very likely be implied in law even if the transfer of copyright contract was very poorly drafted and omitted this provision (unless the contract expressly provided for some other disposition of the license fees which would be extremely unlikely since it defeats the point of transferring the copyright anyway, except for a possible reservation of a final payment covering some time period before and after the transfer for administrative expediency - for example, I have some works for which I earn royalties of about $25 every four months, and it wouldn't be worth the trouble to split the transition period check if I sold my copyrights in those works).</p>\n<blockquote>\n<p>In the normal case, the author still owns the copyright when he dies,\nat which point the heirs succeed to the author's rights under the\npublishing contract. No problem. But if the copyright ownership has\nbeen transferred to a third party during author's lifetime, does that\nthird party have any claim to the royalties going forward?</p>\n</blockquote>\n<p>If the copyright has been sold to a third-party during life then this intellectual property isn't part of the estate of the author and doesn't pass to the author's heirs, just like any other property that someone transfers during life. The heirs have no claim to the royalties going forward.</p>\n<p>In non-U.S. jurisdictions, there are two separate kinds of rights associated with copyright. A transferrable economic right that can be transferred to third-parties and works as explained above, and separate noneconomic rights called "<a href=\"https://www.copyright.gov/policy/moralrights/\" rel=\"noreferrer\">moral rights</a>" that are non-transferrable. As explained at that U.S. government link discussing the possibility of amending U.S. law to provide for moral rights:</p>\n<blockquote>\n<p>Chief among these rights are the right of an author to be credited as\nthe author of their work (the right of attribution) and the right to\nprevent prejudicial distortions of the work (the right of integrity).</p>\n</blockquote>\n<p>U.S. practice, rather than treating moral rights as something legally enforceable, treats moral rights as a question of academic ethics and industry custom (sometimes further implemented in the performing arts by collective bargaining agreements between industry-wide labor unions of people in professions who are legally "authors" in countries with a moral rights regime, and associations of the people who hire them).</p>\n<p>I am not familiar with the law governing moral rights after an author's death because U.S. copyright law doesn't give rise to moral rights, so I've never had occasion to deal with the issue.</p>\n",
"score": 6
},
{
"answer_id": 88660,
"body": "<h2>It would need to be in the contract 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></h2>\n<p>In Germany, all royalties stem from a license contract for usage rights. Due to how usage rights are handled, you can't sell the exclusive usage right twice: once you sold it, you can't even use the work yourself unless it is specified that you can. You can't sell a non-time-limited non-exclusive usage right and then an exclusive right without canceling the other license first. <strong>As a result, there's no situation where you can <em>sell your copyright</em></strong>, which takes the shape of an exclusive, non-cancelable contract without royalties, while such other license exists. It takes a special contract that accounts for the previous contract, and that would also address how incoming royalties from the previous contract are to be handled - if they are to be forwarded or allowed to be kept would need to be spelled out.</p>\n",
"score": 3
}
] |
[
"copyright",
"copyright-transfer"
] |
Why don't courts punish time-wasting tactics?
| 22 |
https://law.stackexchange.com/questions/86939/why-dont-courts-punish-time-wasting-tactics
|
CC BY-SA 4.0
|
<p>Inspired by the lawsuit filed amidst an ongoing controversy in the chess world. In brief, one player (Carlsen) accused another (Niemann) of cheating, and Niemann filed a defamation lawsuit against Carlsen + two other defendants (Chess.com & Nakamura) in response. In an article about the lawsuit, the Chessbase <a href="https://en.chessbase.com/post/carlsen-and-chess-com-seek-dismissal-of-lawsuit" rel="noreferrer">writes</a>:</p>
<blockquote>
<p>On December 2, the legal counsel of the plaintiffs, notably Magnus Carlsen, Chess.com, Danny Rensch, and Hikaru Nakamura filed a 25-page memorandum seeking a summary dismissal with prejudice of the lawsuit, citing irreconcilable flaws such as the inability to properly prove a conspiracy among the plaintiffs.</p>
<p>“It is so plainly without merit that it could have been brought only as a public relations stunt,” lawyers for Chess.com stated in the filing.</p>
<p>Carlsen’s lawyers added, “After years of trying to curate a reputation as the bad boy of chess, Plaintiff Hans Niemann wants to cash in by blaming others for the fallout from his own admitted misconduct.”</p>
<p>While it seems unlikely a dismissal will take place, this sort of maneuvering is standard and was to be expected.</p>
</blockquote>
<p>Since a dismissal is unlikely, this is basically time-wasting. Why then do courts not punish this kind of time-wasting?</p>
<p>Although this question is inspired by this particular lawsuit, the question is more general, since as Chessbase writes, <em>this sort of maneuvering is standard and was to be expected</em>.</p>
<p>I've tagged this with <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> because the suit is being argued in a US court.</p>
| 86,939 |
[
{
"answer_id": 86940,
"body": "<p>I haven't reviewed the filings, but I can tell you that it's perfectly routine for lawyers to describe the other side's position as "plainly without merit," with no regard for the actual merits. The lawyer's job is to make his client look good, in court and in public; the existence of this question shows that he's doing a good job at least on the latter half of that equation.</p>\n<p>But in truth, it's such a generic thing to say that no lawyer who hears it will actually think it means anything.</p>\n<p>In all likelihood, the filing is like most others, in that it makes a good case on some points and a bad case on others, and the opposing lawyer's job is to argue that all of them are bad.</p>\n<p>In the rarer case that a filing is actually "plainly without merit," courts can and sometimes do impose penalties under <a href=\"https://casetext.com/statute/united-states-code/title-28-appendix/federal-rules-of-civil-procedure/rules-of-civil-procedure-for-the-united-states-district-courts-1/title-iii-pleadings-and-motions/rule-11-signing-pleadings-motions-and-other-papers-representations-to-the-court-sanctions\" rel=\"noreferrer\">Rule 11</a>, which allows for sanctions against parties and attorneys who make factual assertions that are not supported by reality or arguments that are not supported by the law.</p>\n",
"score": 46
},
{
"answer_id": 86945,
"body": "<h2>the court is mandated to accept these filings</h2>\n<p>The rules say, that they <strong>can't</strong> deny a party to file for every form of relief\nthat isn't frivolous. It is never frivolous to request dismissal on the lack of merits. The proposition in that filing is pretty much proposing a yes or no statement to the court: <em>Even if everything the party suing us is true, they have no case.</em></p>\n<p>Ruling on <em>that</em> proposition can <em>preserve</em> enormous amounts of resources that would be spent on litigating in case - if the case really is without merit.</p>\n<p>The lawyers on the other hand <strong>need</strong> to file any argument to preserve the argument for an appeal of the case. Punishing the party for filing a valid brief that poses the question if the case is meritless would not just be a misuse of the court's power, which just opens <strong>more</strong> avenues of appeal.</p>\n<h2>Sanctions are reserved for <a href=\"https://en.wikipedia.org/wiki/Frivolous_litigation\" rel=\"noreferrer\">frivolous filings</a> and real misconduct</h2>\n<p>Frivolous filings are generally arguments that could not even hold water if they were looked at in the light most favorably to the one bringing it. Like... "My dog ate my sister-in-law's son's homework one state west of us, because of which my boss stubbed his toe on the door of his office three states east and because of that I was late for court." - Absolute nonsense.</p>\n<p>Or try heavy misconduct, like being a <a href=\"https://law.stackexchange.com/a/85158/10334\">copyright troll</a> that was <a href=\"https://ia902802.us.archive.org/11/items/gov.uscourts.nysd.518931/gov.uscourts.nysd.518931.68.0.pdf\" rel=\"noreferrer\">outright lying to the court, violating a half dozen court orders and other misconduct</a>. Yes, that's the gist of a court order that a certain <a href=\"https://en.wikipedia.org/wiki/Richard_Liebowitz\" rel=\"noreferrer\">Richard P Liebowitz</a> was sanctioned for in a <em>single</em> court order in 2020. That Man had a long history of sanctions for bringing frivolous arguments and other misconduct before he was disbarred in November 2021. Or to say it differently, in the words of another judge of the same court, from a 2019 sanctions order:</p>\n<blockquote>\n<p><a href=\"https://www.abajournal.com/images/main_images/Lebowitz.pdf\" rel=\"noreferrer\">Indeed, it is no exaggeration to say that there is a growing body of law in this District devoted to the question of whether and when to impose sanctions on Mr. Liebowitz.</a></p>\n</blockquote>\n",
"score": 8
}
] |
[
"united-states",
"lawyer",
"rules-of-court",
"sport"
] |
How can Magnus Carlsen, a Norwegian, be sued for defamation by Hans Niemann in Missouri?
| 4 |
https://law.stackexchange.com/questions/85546/how-can-magnus-carlsen-a-norwegian-be-sued-for-defamation-by-hans-niemann-in-m
|
CC BY-SA 4.0
|
<p>Hans Niemann is <a href="https://www.cnbc.com/2022/10/20/chess-grandmaster-hans-niemann-files-100-million-defamation-suit-over-cheating-accusation.html" rel="nofollow noreferrer">suing</a> multiple people for defamation (<a href="https://drive.google.com/file/d/1DMDaKgv4NdPFNic896Y5dbXYa7eD-LL8/view" rel="nofollow noreferrer">full complaint</a>):</p>
<blockquote>
<p><a href="https://i.stack.imgur.com/2CjMJ.jpg" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/2CjMJ.jpg" alt="screenshot of the claim" /></a></p>
</blockquote>
<p>Among the defendants, Norwegian <a href="https://en.wikipedia.org/wiki/Magnus_Carlsen" rel="nofollow noreferrer">Magnus Carlsen</a> is listed. I don't get how this is possible: they're two separate countries with separate legal systems, and Missouri's legal system is not a recognized authority in Norway. It seems like Carlsen could just ignore it without problems (unless he goes to the USA, or Missouri), unless there's some kind of international treaty I'm unaware of.</p>
<p><strong>Question</strong>: How can Magnus Carlsen (from Norway) be sued for defamation by Hans Niemann in Missouri?</p>
| 85,546 |
[
{
"answer_id": 85550,
"body": "<p>It is not required that you sue each defendant in their own courts. Two of the defendants are natural persons living in the US (Utah, Florida), one is a US company (Utah and California), one is a Norwegian company, and one is a Norwegian natural person. This is one case, not five unrelated cases. If the court find against Carlsen, the plaintiff would need to go to Norwegian courts to enforce the claim. This is helped by the\nNorwegian Enforcement Act of 26 June 1992, the Dispute Act of 17 June 2005 and the Arbitration Act of 14 May 2004, which basically say that if you're found liable for a tort in US courts, you can collect via the Norwegian courts. <a href=\"https://www.mondaq.com/litigation-mediation-arbitration/854350/enforcement-of-foreign-judgments-comparative-guide\" rel=\"noreferrer\">Here</a> is a more detailed analysis of the Norwegian legal situation. It is possible that under Norwegian law the US judgment against Carlsen would be reduced, depending on how big the award is.</p>\n<p>The suit involves, in part 15 USC Ch. 1 (antitrust law) where the US has asserted jurisdiction if there is a nexus to the United States (not just American companies), and under <a href=\"https://www.law.cornell.edu/uscode/text/28/1367\" rel=\"noreferrer\">28 USC 1367</a>, plaintiff asserts that federal courts have supplementary jurisdiction over the state claims.</p>\n",
"score": 9
},
{
"answer_id": 85554,
"body": "<p>For such a suit to be maintained, the courts of the state where the suit is brought (the forum state) must assert jurisdiction over the defendants. This happens routinely and often. It does not require that the defendants be residents of the forum state. It merely requires that the law of the forum state allows such an assertion.</p>\n<p>In most US states such jurisdiction is allowed if a defendant has "sufficient connection" with the forum state. Exactly what constitutes a "sufficient connection" varies, but the bar is usually fairly low. Doing remote business in the state is usually enough, and other action will suffice. In this case the plaintiff alleges that the defendant made false and defamatory statement about the plaintiff, that were published in the forum state. This is more than sufficient to support jurisdiction in any US state, and any other country that I know enough about the law of to come to a conclusion on the matter. There is no problem in bringing such a suit lawfully.</p>\n<p>However, when a defendant is not a citizen of the same country as the forum court, there may be a problem in collecting damages, if any are awarded. The forum court probably does not have direct personal authority over the defendant. If the defendant does business in the forum, the court can seize assets to satisfy a judgement. The forum court can ask an appropriate court in the defendant's home country to enforce a judgement. Such a court may or may not do so, there is no automatic or universal rule. There may be other ways to collect on such a judgement. It depends on the specifics of the case.</p>\n",
"score": 7
},
{
"answer_id": 85552,
"body": "<h2>Because Missouri has jurisdiction</h2>\n<p>It’s alleged that Mr Carlsen defamed Mr Niemann while competing in an online tournament organised by the St Louis Chess Club. St Louis is in Missouri.</p>\n<p>The plaintiff in a defamation suit can commence action anywhere that the defamatory statement was published and their reputation was damaged. In this case that it pretty much everywhere - I haven’t played chess for more than 30 years and even I have heard about this matter. However, the court has to decide they are the <em>most appropriate</em> court to hear the case. The courts in Missouri probably are given the nexus in St Louis. Courts in Azerbaijan probably aren’t. Other contenders would be California where the plaintiff lives or Norway where one of the primary defendants lives.</p>\n<p>Like any defendant, Mr Carlsen can choose to participate in the suit or ignore it, however, ignoring it would be unwise. Mr Carlsen can raise arguments that the Missouri court does not have jurisdiction; this would likely fail.</p>\n<p>Assuming the case proceeds to judgement and damages are assessed against Mr Carlsen the Missouri judgement can be taken to the relevant Norwegian court for enforcement. Courts in Norway (as elsewhere) have the power to enforce foreign judgements if they are for a wrong that would give rise to damages in Norway and enforcement is in the public interest. Enforcement of foreign judgements is pretty much routine so the Norwegian court would almost certainly allow it and Mr Carlsen’s assets would be seized under Norwegian law to settle the debt that exists under Missouri law.</p>\n",
"score": 6
}
] |
[
"united-states",
"international",
"defamation",
"sport",
"norway"
] |
What court fees were payable in respect of the case Meads v. Meads?
| 1 |
https://law.stackexchange.com/questions/88669/what-court-fees-were-payable-in-respect-of-the-case-meads-v-meads
|
CC BY-SA 4.0
|
<p>Presumably one of the parties had brought the case and (at least initially) had to pay the claim/application fee to the court, whether or not they were later reimbursed. In total, when all was said and done, how much money did the courts receive in respect of this case?</p>
<p>This is perhaps driving toward a larger question, which maybe ought to be posted separately, but I'm not fully convinced that is needed: do courts generally run at a loss, a profit, or breaking even?</p>
| 88,669 |
[
{
"answer_id": 88674,
"body": "<p>Alberta's schedule of court fees is <a href=\"https://www.alberta.ca/court-fees.aspx\" rel=\"nofollow noreferrer\">published here</a>. To bring a claim under the Family Law Act at the Court of King's Bench is $50. And each subsequent application is $50. To set a matter for trial would have been $600.</p>\n<p>There are no futher reported decisions in relation to this litigation; my best guess is that this was resolved without any futher significant litigation (although there could very well be unreported judgments confirming relatively straightforward support payments or issuing orders on consent of the parties).</p>\n<p>Paragraphs 8-10 suggest there were at least two applications in this matter.</p>\n",
"score": 1
}
] |
[
"court",
"fees",
"alberta"
] |
In the US, what defines a court of law
| 1 |
https://law.stackexchange.com/questions/88641/in-the-us-what-defines-a-court-of-law
|
CC BY-SA 4.0
|
<p>This seems like such a simple question, but I cannot find an answer.</p>
<p>What defines a court of law in the US?</p>
<p>Is it the court building itself? Is it wherever the judge chooses it to be? Is it a defined address? Can a federal judge set up shop in a state or local court and it be legal?</p>
| 88,641 |
[
{
"answer_id": 88643,
"body": "<h2>Law defines a court of law</h2>\n<p>A court is a legal construct. Like a government department, a corporation, an army, a police force, or a fire department.</p>\n<p>For example, the US Supreme Court is defined in Artice Three of the US Constitution:</p>\n<blockquote>\n<p>The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.</p>\n</blockquote>\n<p>Other US Federal Courts that "Congress may from time to time ordain and establish" are defined in the laws that do that.</p>\n<p>State Constitutions and laws define the various state courts.</p>\n<p>The court building is more accurately described as a courthouse - a home for the court - but "court" can refer to the building.</p>\n<p>A properly appointed judge can "hold court" wherever they like in accordance with the rules, but they usually use the courthouse because that's where they keep their stuff. Plus, they get a parking place, a furnished office, and often a private bathroom.</p>\n<p>Historically, Federal judges would use the local courthouse when they <a href=\"https://en.wikipedia.org/wiki/Circuit_riding\" rel=\"nofollow noreferrer\">rode circuit</a>; however, the Federal judiciary now has its own courthouses, so they don't do this anymore. However, there is no law preventing them from doing so with the permission of the building's owner (the state or county)</p>\n",
"score": 1
},
{
"answer_id": 88663,
"body": "<p>A court is not a building, it is a combination of people and processes.</p>\n<p>Court could be held outdoor in a park, in a convention center, and as recently proven, over the internet.</p>\n<p>All that is for the participants to be “gathered” together to do their part.</p>\n",
"score": 1
}
] |
[
"court"
] |
Is it necessary for a signature to be reasonably legible on a legal document?
| 0 |
https://law.stackexchange.com/questions/88624/is-it-necessary-for-a-signature-to-be-reasonably-legible-on-a-legal-document
|
CC BY-SA 4.0
|
<p>In general some legal documents must be signed. So what determines whether a signature on such a document requiring to be signed is valid or not?</p>
<p>More specifically, is a signagure that is completely illegible invalid, or does a signer have more or less total latitude to define what their own signature looks like, however legible or indecipherably sloppy? If indecipherably sloppy signatures are acceptable, must there then be at least some clear indication somewhere on the document as to whose identity the signature is meant to convey, like a printed name above or below it?</p>
<p>This would seem to depend in turn on what the purpose of a signature is: authentication seems one very commonly intended purpose in which case it seemingly ought to be possible for a recipient or reader of the document to be able to compare the signature with signatures on other documents that are by the same person as is thought possibly to have signed the document in question.</p>
<p>Or is it to provide accountability so that the document can be certainly ascribed to a certain individual in case there are questions about the document to be addressed to its author/signer? For example, suppose a document is issued in the name of a company, and a director signs the document with their own personal name, but their customary signature happens to be utterly illegible, and the company in fact has multiple directors. In case the document becomes the subject of dispute in later legal proceedings, it seems that one would want to be able to cross examine the signer of the document as a witness in their personal capacity so as to ascertain the authenticity of the document and perhaps their true status as an authorised signatory for the company. In this case, it would be very helpful and indeed inportant to the recipient to be able to know whose signature that is on the document it is in fact intended to be.</p>
<p>So, what are the basic purposes of certain documents requiring signatures, and what makes a signature valid to fulfill these requirements?</p>
| 88,624 |
[
{
"answer_id": 88636,
"body": "<h2>No, it doesn’t have to be <a href=\"https://legalvision.com.au/what-does-my-signature-need-to-look-like/\" rel=\"nofollow noreferrer\">legible</a></h2>\n<p>It doesn’t even have to be a name, let alone <em>your</em> name.</p>\n<blockquote>\n<p>Most people indicate agreement to a contract by putting their name in a fancy font on the dotted line. However, this method of acceptance is more of a convention than a requirement. The courts have taken quite a broad interpretation to the definition of what can be a signature. It can be any mark on paper that indicates the parties accept the terms of an agreement.</p>\n</blockquote>\n",
"score": 2
},
{
"answer_id": 88659,
"body": "<p>The purpose of the signature is to acknowledge final acceptance of the terms of a contract. The signature need not (as Dale points out) even be a name, let alone a legible one.</p>\n<p>Basically the signature is what sets the final form of the contract, further amendments are done with addition paperwork, not just reprinting with changes and a new signature.</p>\n<p>The signature legibility or consistency is irrelevant, you don’t lose the right to make a contract because your hand has been damaged for instance.</p>\n<p>Consistency may be of help in a case of fraud, but it’s actually more likely that other factors will play a more significant role and in any case, it would be a matter for a jury to decide.</p>\n<p>If you draw a rabbit and say that’s your mark and you accept the contract, you have accepted the contract. You’ll have better luck saying your identical twin signed it than arguing that the signature is invalid.</p>\n<p>If you aren’t committing fraud, you hold up your end of the deal, and it would be crazy to give the other side the power to subsequently declaim their responsibility because they don’t like how you accepted…imagine it, “members of the jury, we acknowledge that the plaintiff handed over 100,000 dollars for a new car, but it must have been a gift, that signature is obviously not adequate and so we have no obligation to turn over the car and will be keeping the money” and the going “hmn, that 'a' does look a bit fishy, ok they can keep the car and money”</p>\n",
"score": 1
}
] |
[
"contract-law",
"england-and-wales",
"common-law",
"signature",
"any-jurisdiction"
] |
Tax-harvesting multiple years small losses
| 0 |
https://law.stackexchange.com/questions/88642/tax-harvesting-multiple-years-small-losses
|
CC BY-SA 4.0
|
<p>Is it possible to add up multiple years small losses (let's say $200 lost each year in the period 2015-2021) and harvest them altogether in one year (in this case $1400 in losses for 2022)?</p>
| 88,642 |
[
{
"answer_id": 88654,
"body": "<p>"Harvesting" is a phrase used almost exclusively in relation to capital losses (usually of securities) rather than other expenses. So, I will answer about capital losses.</p>\n<p>Also, the "harvesting" is the act of selling the asset at a loss, not the act of claiming the losses together.</p>\n<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"canada-container\">canada</a></p>\n<p><a href=\"https://www.canada.ca/en/revenue-agency/services/tax/individuals/topics/about-your-tax-return/tax-return/completing-a-tax-return/personal-income/line-12700-capital-gains/capital-losses-deductions/you-use-a-capital-loss.html\" rel=\"nofollow noreferrer\">Yes, you can carry forward <em>net capital losses</em> to any future year</a>:</p>\n<blockquote>\n<p>You can use a net capital loss to reduce your taxable capital gain in any of the three preceding years or in any future year.</p>\n</blockquote>\n<p>But the capital loss must be declared in the year that it occurred and must <a href=\"https://www.canada.ca/en/revenue-agency/services/tax/individuals/topics/about-your-tax-return/tax-return/completing-a-tax-return/deductions-credits-expenses/line-25300-net-capital-losses-other-years.html\" rel=\"nofollow noreferrer\">first be applied against any taxable capital gain in that same year</a>. Any leftover becomes <em>net capital loss</em> that may be applied in any future year.</p>\n",
"score": 1
},
{
"answer_id": 88644,
"body": "<h2>No</h2>\n<p>Income earned and expenses incurred must be accounted for in the tax year that they happened. Most tax systems allow overall losses (i.e. when total expenses exceed total income) to be carried forward to offset future earnings.</p>\n<p>Depending on the nature of the taxpayer, accounting may be done on a cash or accrual basis. While income and expenses may occur in different periods depending on the basis, within the system you use, you can't move them to another period.</p>\n",
"score": 0
}
] |
[
"tax-law"
] |
Can people who are mistaken in their beliefs be convicted of criminal attempts?
| 0 |
https://law.stackexchange.com/questions/88610/can-people-who-are-mistaken-in-their-beliefs-be-convicted-of-criminal-attempts
|
CC BY-SA 4.0
|
<p>For example:</p>
<ul>
<li>Self proclaimed exorcists who claim to put curses and blessings on people. If that person performs a ritual, fully believing it will kill the person they are cursing.</li>
<li>Or some guys hanging out with various militias believing they can assist them in their plans to commit acts of terrorism.</li>
</ul>
<p>Can they be convicted with criminal attempt?</p>
| 88,610 |
[
{
"answer_id": 88611,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"canada-container\">canada</a></p>\n<p>The fact that the chosen means could never have actually killed the target does not preclude an attempt conviction.</p>\n<p>See <em>United States v. Dynar</em>, <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1526/index.do\" rel=\"nofollow noreferrer\">[1997] 2 S.C.R. 462</a>:</p>\n<blockquote>\n<p>The only relevant distinction for purposes of s. 24(1) of the Criminal Code is between imaginary crimes and attempts to do the factually impossible. The criminal law of Canada recognizes no middle category called “legal impossibility”. Because Mr. Dynar attempted to do the impossible but did not attempt to commit an imaginary crime, he can only have attempted to do the “factually impossible”. For this reason, Mr. Dynar’s proposal that s. 24(1) criminalizes only attempts to do the factually impossible does not help him.</p>\n</blockquote>\n<p>An example of a "factual impossibility" cited by the court was "impossibility due to inadequate means... For example, A tries to kill B by shooting at him from too great a distance or by administering too small a dose of poison."</p>\n<blockquote>\n<p>That this man’s design is premised on a mistaken understanding of the facts does not make it any less his design. A mistaken belief cannot be eliminated from the description of a person’s mental state simply because it is mistaken.</p>\n</blockquote>\n<h3>Example 1: the curse</h3>\n<p>In your examples, the person who took steps to kill a person via inadequate or factually impossible means could be guilty of an attempt. Of course, this is subject to proof of the required mental state (intention to kill) beyond a reasonable doubt.</p>\n<h3>Example 2: hanging out</h3>\n<p>However, the <em>actus reus</em> of attempt in Canada is that the accused must have taken "some step towards the commission of the offence attempted going beyond mere acts of preparation." You haven't described anything about the person who hangs out with a militia that would constitute a step beyond a mere act of preparation.</p>\n",
"score": 4
},
{
"answer_id": 88648,
"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>, attempt to commit a crime is normally a crime (<a href=\"https://www.gesetze-im-internet.de/stgb/__23.html\" rel=\"nofollow noreferrer\">§23 StGB</a>). For instance, when a would-be murderer administers a substance that is not actually poisonous to the victim, that would still be a crime.\nHowever, when the attempt is not feasible (<em>untauglicher Versuch</em>), the court may reduce the punishment or exempt it completely.</p>\n<p>This is distinct from a superstitious attempt (<em>abergläubischer Versuch</em>), where the would-be perpetrator tries to enlist the help of supernatural entities in the attempt. Criminal law does not believe in those supernatural entities.</p>\n<p>So your first example, the curse, would not be punished. The second example, the militia, runs into other criminal laws regarding criminal or terrorist gangs.</p>\n",
"score": 1
}
] |
[
"criminal-law"
] |
Right of way: U-turn vs right turn (California)
| 4 |
https://law.stackexchange.com/questions/26732/right-of-way-u-turn-vs-right-turn-california
|
CC BY-SA 3.0
|
<p>I see this all the time, and it's often a topic of debate among friends. I'm curious to know what the answer is. I can see it going either way.</p>
<p>Car at red light making right turn and another car coming from the right making a u-turn. This car has a green light.</p>
<ol>
<li>The car at red light should yield, as it has a red light.</li>
<li>But how does the car at red light know that the intersection allows for u-turns? There are no signs for the car in 1 to see the intersection allow for u-turns, and there is no signal on the vehicle coming from the right to indicate it's making a u-turn. If you see the signal for left, wait until you know it's not making a u-turn?</li>
<li>It's California, and none of the laws here make sense ;0</li>
</ol>
| 26,732 |
[
{
"answer_id": 26744,
"body": "<p>The person turning right with a red light must yield to cars that have a green light. From the <a href=\"https://www.dmv.ca.gov/portal/dmv/detail/pubs/hdbk/turns\" rel=\"nofollow noreferrer\">California DMV Driver Handbook</a>:</p>\n\n<blockquote>\n <p>Right turn against a red traffic signal light–Signal and stop for a\n red traffic signal light at the marked limit line. If there is no\n limit line, stop before entering the crosswalk. If there is no\n crosswalk, stop before entering the intersection. You may turn right\n if there is no sign to prohibit the turn. <strong>Yield to pedestrians,\n motorcyclists, bicyclists, or other vehicles moving on their green\n traffic signal light.</strong></p>\n</blockquote>\n\n<p>(Emphasis mine)</p>\n\n<p>It's up to the driver who wants to turn right on red to make sure the lane is clear before the person turns into it.</p>\n",
"score": 4
}
] |
[
"california",
"traffic"
] |
Does the gavel have a legal significance, or is it purely ceremonial?
| 11 |
https://law.stackexchange.com/questions/119/does-the-gavel-have-a-legal-significance-or-is-it-purely-ceremonial
|
CC BY-SA 4.0
|
<p>Judges in US courtrooms famously use a gavel at appropriately dramatic points in a trial. If a judge fails to use a gavel, or uses it at the wrong moment, is this legally significant? Or is the gavel purely ceremonial?</p>
| 119 |
[
{
"answer_id": 124,
"body": "<p>It is purely ceremonial. The tendency in modern jurisprudence is towards the practical and away from legalisms and technicalities. Even if a judge used a gavel in some way inappropriately, it would be unlikely to have any legal significance for anyone but the judge.</p>\n<p>An argument based on gavel misuse would fall into the "fringe-on-the-flag" category of legal arguments (yes, there are people who think that the court's powers are determined entirely by the fringe on the courhouse flag). The gavel is a traditional trapping of a common law courtroom, but has no legal significance.</p>\n",
"score": 12
}
] |
[
"united-states",
"rules-of-court",
"judge"
] |
Social Security Card Uses?
| 2 |
https://law.stackexchange.com/questions/6364/social-security-card-uses
|
CC BY-SA 4.0
|
<p>In my years living in the United States, I've used my SSN several times, but I've never been required to use my Social Security Card. Is there any process or activity that requires the card that your Social Security Number is printed on?</p>
| 6,364 |
[
{
"answer_id": 6365,
"body": "<p>They can be used for ID. For government purposes various type of cards have points and a certain number of points is needed for various purposes. A social security card can be used as such.</p>\n\n<p>For example, when we go to get a drivers license, you can bring an ATM Card, Passport, Utility Bill, SS Card (as examples) for ID. Each of those has a different value (passport high, utility bill low). They add the values you present and they have to be above a threshold. </p>\n",
"score": 5
},
{
"answer_id": 88639,
"body": "<p>The law does not ever <em>require</em> you to show your Social Security card, or even possess a physical card. However, your employer is required, <a href=\"https://www.irs.gov/businesses/small-businesses-self-employed/hiring-employees\" rel=\"nofollow noreferrer\">by the IRS</a>, "to get each employee's name and Social Security number (SSN) and to enter them on Form W-2". If you present a physical card, that is sufficient. Otherwise, the employer must <a href=\"https://www.ssa.gov/employer/ssnv.htm\" rel=\"nofollow noreferrer\">verify the number</a>. There does seems to be widespread confusion in HR offices over whether an employee must present a physical card.</p>\n",
"score": 0
}
] |
[
"united-states",
"social-security-card"
] |
How much effort could have gone into composing the judgement for Meads v. Meads?
| 2 |
https://law.stackexchange.com/questions/88635/how-much-effort-could-have-gone-into-composing-the-judgement-for-meads-v-meads
|
CC BY-SA 4.0
|
<p>Any intelligent/educated guesses by people who perhaps work more or less full time as lawyers as to how much time it would have taken the judge to research and to write up all of the precedents and to address all of the different aspects of the vexatious party's peculiar quirks would be welcome. Alternatively, are there any mechanisms by which one could possibly learn on a less speculative basis, perhaps by a FOIA request or the local equivalent, for the judge's timesheet entries that might have logged his efforts deliberating and working on that case as a government employee? Or simply writing to him on an informal and candid basis inquiring as to how long this impressively comprehensive reference on vexatious litigation tactics took him to produce?</p>
| 88,635 |
[
{
"answer_id": 88637,
"body": "<p>Judges don't have timesheet entries (and are often expressly excluded from FOIA obligations). They get paid salaries and are expected to work hard enough to clear their dockets in reasonable periods of time, however long that takes.</p>\n<p>If you wanted a more direct evidentiary estimate, you could estimate that a judge and his clerk together probably work 90-120 hours a week, figure out how many trials and hearings of what length were conducted and deduct that time spent on that from the total, and then divide the remaining hours by the number of opinions one can estimate that the judge wrote (or better yet, a reasonable estimate of the number of pages of opinions that one can estimate that the judge wrote).</p>\n<p>Typically, a lot of the legal research grunt work and more boilerplate parts of an opinion are written by the law clerk under some general instructions from the judge, with the judge writing the more substantive sections personally and heavily (or lightly, depending upon the quality of the law clerk) revising the draft opinion as a whole. The longer the opinion, the more likely it is that a substantial portion of it was written by the law clerk.</p>\n<p>For similar kinds of legal writing (e.g. appellate briefs and motions for summary judgment and proposed orders or written closing arguments) one to six hours per page from all professionals working on the document would be in the right ballpark.</p>\n<p>Judicial opinions come with some efficiencies, because once a judge decides a point of law or reaches a factual conclusion it doesn't have to be belabored in the same way that a litigant who isn't sure if their reasoning will be persuasive or not must.</p>\n<p>But, judicial opinions also typically have to spell out a greater proportion of legal and factual foundation for the end analysis that isn't hotly contested, will summarize all of the material points from the evidence presented in the case, and will frequently also recap in some detail the arguments made by the advocates for both sides of the case before actually engaging with those arguments in an analysis section.</p>\n<p>On balance, those factors probably pretty much balance out.</p>\n<p>If the judicial opinion is shorter, elegantly written, contains pithy turns of phrase, and/or contains lots of legal citations or factual analysis not raised by either party, it is probably closer to five or six hours per page or more. If the opinion is longer, has a rote and mechanical feel to it, and has very little factual analysis or references to law not mentioned by the parties, it is probably closer to one hour per page or even less. When some of these factors go one way, and other of these factors go the other way, it is probably in between in terms of hours per page.</p>\n<p>This said, sometimes it takes a judge a long time to write an opinion, but the end product is very short and elegant. In these situations, often what happened is that the judge and the judge's clerk spent lots and lots of hours writing a long and detailed first draft, then got an insight that provided a much more efficient and succinct way to reach a resolution to the case. In those circumstances, there would be dozens or scores of hours of work that went into the discarded first draft, only to be superseded by a half a dozen or dozen hours devoted to a much shorter final draft. In those cases, the final draft of the opinion might be ten or twenty hours per page or more once you include the time spent on the discarded draft.</p>\n<p>Of course, another factor is that some judges are just more efficient legal writers than others, and some judges have more familiarity with some areas of law than others. A opinion that might take one judge twenty hours to write might take another judge presiding over the very same case and producing an opinion of the same length and quality a hundred hours to write.</p>\n<p>The opinion in <em>Meads v. Meads</em> was <a href=\"https://www.slaw.ca/2012/10/01/meads-v-meads-the-vexatious-litigants-case/\" rel=\"nofollow noreferrer\">176 pages</a>. If I had to make a best guess, I'd estimate that it probably took about 600 hours to write, probably about two-thirds of which was law clerk hours and probably about one-third of which was judge time.</p>\n",
"score": 3
}
] |
[
"canada",
"judge",
"freedom-of-information",
"opca"
] |
What is the "fringe on the flag" argument?
| 2 |
https://law.stackexchange.com/questions/88631/what-is-the-fringe-on-the-flag-argument
|
CC BY-SA 4.0
|
<p>Another answer on <a href="https://law.stackexchange.com/questions/119/does-the-gavel-have-a-legal-significance-or-is-it-purely-ceremonial?rq=1">this question</a> refers to the "fringe on the flag" category of arguments. What is the "fringe on the flag" argument?</p>
| 88,631 |
[
{
"answer_id": 88634,
"body": "<p>See <em>Meads v. Meads</em>, <a href=\"https://www.canlii.org/en/ab/abqb/doc/2012/2012abqb571/2012abqb571.html\" rel=\"nofollow noreferrer\">2012 ABQB 571</a>, para. 272</p>\n<blockquote>\n<p>OPCA litigants who advance these schemes will often focus on certain aspects of court formalities. Like Mr. Meads, they may scrutinize the court for some hidden indication of its true nature. <strong>A strange but common belief is that a flag with yellow or gold thread ‘fringes’ “denotes a military jurisdiction, not common law”</strong>. In <em>R. v. J.B.C. Securities Ltd.</em>, 2003 NBCA 53 at para. 2, 261 N.B.R. (2d) 199, Chief Justice Drapeau of the New Brunswick Court of Appeal rejected a motion by Lindsay “... removing the gold‑fringed Canadian flag that has adorned the Court of Appeal’s hearing room for years ...”. This motion, and the argument that “[t]here is no lawful reason for a Canadian flag to be present other than the regular statutory authorized flag” was frivolous and vexatious: para. 9.</p>\n</blockquote>\n",
"score": 3
}
] |
[
"common-law",
"legal-concepts",
"theory-of-law",
"opca"
] |
"Jingle bells, Batman smells, etc" -- any copyright or trademark problems in that now-famous song lyric?
| 2 |
https://law.stackexchange.com/questions/88617/jingle-bells-batman-smells-etc-any-copyright-or-trademark-problems-in-tha
|
CC BY-SA 4.0
|
<p>"Jingle bells, Batman smells, Robin's laid an egg" -- any copyright or trademark problems, <em>per se</em>, in that now-famous song lyric?</p>
| 88,617 |
[
{
"answer_id": 88620,
"body": "<p>The original Jingle Bells song was first published as a Thanksgiving Song in 1857 and has lapsed into public domain. The Batman lyrics constitute parody which would further put their singing under fair use. You may sing it as part of your own musical arrangement with little discourse from Warner Bros, the current copyright holders of Batman and related properties OR the original parody lyricist, who has not to my knowledge done anything to protect his copyright claim to the song. You may not sell the version of the Batman version as sung by Mark Hamil in the 1992 Batman: The Animated Series episode "Christmas with the Joker" without permission of Warner Bros.</p>\n",
"score": 4
},
{
"answer_id": 88623,
"body": "<p>Any original work is protected by copyright, though in the case of a parody, only the newly created elements of the work are protected, that is those parts of Smells Like Nirvana that aren't copied from Smells Like Teen Spirit. Th underlying music in the Batman song is not protected by copyright (copyright has lapsed). The lyrics could be, except that we don't know for sure who first composed the lyrics in the 60's. The names Batman, Robin and Joker are not protected by copyright.</p>\n",
"score": 1
}
] |
[
"copyright",
"trademark"
] |
How are laws organized/structured in Arizona?
| 1 |
https://law.stackexchange.com/questions/88612/how-are-laws-organized-structured-in-arizona
|
CC BY-SA 4.0
|
<p>How are laws structured/numbered/organized in Arizona? Pursuant to ARS 1-101, we know there are titles and sections, but where can I find how they are organized further?</p>
<p>Based on reading, I gather there are titles, chapters, articles, sections, subsections, and paragraphs. However, what comes after paragraphs and what am I missing?</p>
| 88,612 |
[
{
"answer_id": 88618,
"body": "<p>There is a legally important distinction, which you may encounter in statutory language where a codified law states "As defined in this title", "notwithstanding contrary provisions in this chapter", "as defined in this subsection". Ultimately, one has to look at the law as passed. For example, <a href=\"https://www.azleg.gov/legtext/56leg/1R/bills/HB2324P.htm\" rel=\"nofollow noreferrer\">this bill</a> refers to "Section 1. Section 16-332, Arizona Revised Statutes", and contains things labeled A and B. <a href=\"https://www.azleg.gov/legtext/56leg/1R/bills/HB2309P.htm\" rel=\"nofollow noreferrer\">This bill</a> refers to Section 1. Title 1, chapter 2, article 4, Arizona Revised Statutes and makes an amendment by adding section 1-273.</p>\n<p><a href=\"https://www.azleg.gov/legtext/56leg/1R/bills/HB2512P.htm\" rel=\"nofollow noreferrer\">This bill</a> is much bigger. We learn from the language that there are subsections C, H, etc. and when Subsection G says "may extend the time period provided in this subsection", we can infer what the scope of "subsection" is (it's the stuff labeled with capital letters). <a href=\"https://www.azleg.gov/ars/13/00105.htm\" rel=\"nofollow noreferrer\">ARS 13-105</a> (the codified law, not the enacted bill) states</p>\n<blockquote>\n<ol start=\"10\">\n<li>"Culpable mental state" means intentionally, knowingly, recklessly or with criminal negligence as those terms are defined in this\nparagraph:</li>\n</ol>\n</blockquote>\n<p>which is then followed by</p>\n<blockquote>\n<p>(a) "Intentionally" or "with the intent to" means, with respect to a\nresult or to conduct described by a statute defining an offense, that\na person's objective is to cause that result or to engage in that\nconduct.</p>\n<p>(b) "Knowingly" means, with respect to conduct or to a circumstance\ndescribed by a statute defining an offense, that a person is aware or\nbelieves that the person's conduct is of that nature or that the\ncircumstance exists. It does not require any knowledge of the\nunlawfulness of the act or omission.</p>\n<p>(c) "Recklessly" means, with respect to a result or to a circumstance\ndescribed by a statute defining an offense, that a person is aware of\nand consciously disregards a substantial and unjustifiable risk that\nthe result will occur or that the circumstance exists. The risk must\nbe of such nature and degree that disregard of such risk constitutes a\ngross deviation from the standard of conduct that a reasonable person\nwould observe in the situation. A person who creates such a risk but\nwho is unaware of such risk solely by reason of voluntary intoxication\nalso acts recklessly with respect to such risk.</p>\n<p>(d) "Criminal negligence" means, with respect to a result or to a\ncircumstance described by a statute defining an offense, that a person\nfails to perceive a substantial and unjustifiable risk that the result\nwill occur or that the circumstance exists. The risk must be of such\nnature and degree that the failure to perceive it constitutes a gross\ndeviation from the standard of care that a reasonable person would\nobserve in the situation.</p>\n</blockquote>\n<p>There are two imaginable meanings of "this paragraph". One is that is just refers to</p>\n<blockquote>\n<p>(a) "Intentionally" or "with the intent to" means, with respect to a\nresult or to conduct described by a statute defining an offense, that\na person's objective is to cause that result or to engage in that\nconduct.</p>\n</blockquote>\n<p>The other possibility is that is refers to the entire sequence of text each part headed by a lower-case letter. We can reject the narrow scope reading of "this paragraph" because the other three paragraphs are necessary in order to actually define what "10" ("10" is apparently a subsection – the first division of the section is into numerical parts, i.e. sub-sections).</p>\n<p><a href=\"https://www.azleg.gov/legtext/55leg/2R/bills/HB2210P.pdf\" rel=\"nofollow noreferrer\">This bill</a> was enacted in 2022, and you can compare the enacted bull with the <a href=\"https://www.azleg.gov/ars/6/00122.htm\" rel=\"nofollow noreferrer\">current ARS</a>, which is about a particular section. Both versions refer to "subsection B" and "paragraph 5". This allows us to conclude that subsections have capital letter designators, paragraphs (which are subordinate to subsections) have Arabic number designators. There does not seem to be any official name for the lowest-level designators (a), (b), (c)...</p>\n<p>In Arizona, as in <a href=\"https://app.leg.wa.gov/RCW/default.aspx\" rel=\"nofollow noreferrer\">Washington</a>, permanent laws that are enacted then get codified into the "Revised Code" or "Revised Statutes". This process changes "which" to "that" and adds or deleted sections or subsections (etc), and is typically what people see when they read about a law. <a href=\"https://app.leg.wa.gov/RCW/default.aspx?cite=9.12&full=true\" rel=\"nofollow noreferrer\">RCW 9.12.010</a> originated at least in 1854 on <a href=\"https://leg.wa.gov/CodeReviser/documents/sessionlaw/1854pam1.pdf\" rel=\"nofollow noreferrer\">p 92, §91</a> (the first session of the territorial legislature), but this is already-codified law and I have no idea whether there is a record of what the legislature initially enacted. At any rate, the current Title-Chapter-Section scheme (title 9, chapter 12, section 010) has been adopted for a long time in Washington. In case it matters (and sometimes it does), the courts will look at the enrolled bill and not the revised statutes to understand what the law says.</p>\n",
"score": 1
}
] |
[
"arizona",
"legal-citation"
] |
Assuming a one trillion dollar coin exists, and is stolen, is there are sequence of events that could lead to someone legally owning it?
| 2 |
https://law.stackexchange.com/questions/88567/assuming-a-one-trillion-dollar-coin-exists-and-is-stolen-is-there-are-sequence
|
CC BY-SA 4.0
|
<p>A funny (and seemingly legal, if absurd) proposal during the current debt ceiling debate is <a href="https://en.wikipedia.org/wiki/Trillion-dollar_coin#Legal_basis" rel="nofollow noreferrer">to mint a one trillion dollar platinum coin and deposit it with the Treasury</a> to reduce the debt below the limit. This leads to the amusing hypothetical case of someone stealing said trillion dollar coin from the Treasury, or the coin somehow going missing (gets lost in a couch and the couch is sold as-is in a federal auction).</p>
<p><strong>Are there any means by which someone could become the legal owner of this coin, and thereby have a one trillion dollar plus net worth, without actually earning one trillion dollars and buying it?</strong> I figure if it's actually stolen property, even if all statutes of limitation have passed and even if you committed no crimes in acquiring it, you'd <em>probably</em> be required to return it, but I'm not sure on this, especially in cases where you committed no crime yourself (e.g. if the auction scenario mentioned above occurred because the thieves dropped the coin on their way out of the building with the buyer legally and inadvertently acquiring the coin as part of the auctioned item).</p>
<p>We can ignore the practical issues with proving it's "the real coin" rather than a counterfeit; I'm just curious about the legality assuming the coin was made in some way that rendered it immune to counterfeiting (<em>handwaves explanation</em>).</p>
<hr />
<p>Yes, this is a hypothetical, but I'd be willing to bet if any such coin existed, there'd be at least one movie made that involved either stealing it or becoming an overnight trillionaire by accident, so I figured I'd get the jump on the plausibility of such a movie.</p>
| 88,567 |
[
{
"answer_id": 88568,
"body": "<p>As current law stands, it would be property of the US Mint if coined, US Treasury, if printed as a treasury note, not federal reserve note.</p>\n<p>This was decided by appellate court in regards to 1933 gold double eagles, coins that were struck, but never released to public.</p>\n<p><a href=\"https://www.scotusblog.com/wp-content/uploads/2016/11/16-612-opinion-below-3d-cir.pdf\" rel=\"nofollow noreferrer\">3rd circuit pdf</a></p>\n",
"score": 5
},
{
"answer_id": 88585,
"body": "<h2>Yes</h2>\n<p>The coin is <a href=\"https://www.jstor.org/stable/4508252\" rel=\"nofollow noreferrer\">currency</a>, a holder in good faith who acquired the coin for consideration is the legal owner. So, if someone steals the coin and uses it to buy something without the seller knowing the coin was stolen, then the seller would become the legal owner. As would anyone further along in a chain of buying and selling.</p>\n<p>For this particular coin there are a number of obvious difficulties with this.</p>\n<p>First, it’s very hard to give change for a trillion dollar coin - the largest ever <a href=\"https://dealroom.net/blog/successful-acquisition-examples\" rel=\"nofollow noreferrer\">purchase</a> was\nthe takeover of Mannesmann by Vodafone in 2000, and was worth ~$203 billion, that means you need to find $793 billion in change.</p>\n<p>Second, given the uniqueness of the coin, it would be hard for anyone to argue they received it in good faith. They <em>must</em> know what it is and where it came from.</p>\n<p>However, in <em>theory</em> it’s possible.</p>\n",
"score": 4
},
{
"answer_id": 88616,
"body": "<p>If the coin is lost behind the cushions of a sofa which is then sold in a “market overt” in British Columbia then (at least under BC law) the purchaser acquires a clean legal title to the sofa and the coin regardless of whether or not the seller actually had a good title, as long as the buyer (but not necessarily the seller) was acting in good faith at the time of the transaction. One could argue that they couldn’t possibly be acting in good faith if they knowingly bought the coin, but they could easily buy a sofa in good faith and find the coin later. “Markets overt” are an ancient English legal concept which has now been abolished in UK law but survives in some other common law jurisdictions.</p>\n",
"score": 3
},
{
"answer_id": 88601,
"body": "<p>A series of very-fortunate events:</p>\n<ul>\n<li>Criminal mastermind AJ Raffles manages to steal away the trillion\ndollar coin. He takes it home to his estate in Yorkshire and throws\nit into a cardboard box along with hundreds of ancient Roman gold\ncoins. He then hides that box in his henhouse.</li>\n<li>Time passes. Raffles passes away, and his material possessions are sold off.</li>\n<li>Basil Baker buys the Yorkshire estate. One day while cleaning out the\nhenhouse he discovers a hoard of coins!</li>\n<li>Basil promptly and properly notifies his local coroner, as required under <a href=\"https://en.wikipedia.org/wiki/Treasure_Act_1996\" rel=\"nofollow noreferrer\">Treasure Act 1996</a></li>\n<li>As per the Act, he offers the treasure trove for sale to various museums\nat the assigned price. All decline to purchase it.</li>\n<li>Basil Baker is now the legal owner of the trillion-dollar coin, free and clear.</li>\n</ul>\n",
"score": 2
}
] |
[
"united-states",
"property",
"theft",
"ownership",
"currency"
] |
Can a Data Controller refuse a second SAR from the same person?
| 0 |
https://law.stackexchange.com/questions/88613/can-a-data-controller-refuse-a-second-sar-from-the-same-person
|
CC BY-SA 4.0
|
<p>Suppose that a business subject to the GDPR responds to an SAR (Subject Access Request) from a customer, providing video footage of the customer in the store's entry, captured by a security cam. Fulfilling this is a bit of a hassle for the store's IT department. Perhaps two months later th4e same customer makes a similar request. Can the business refuse this? How can the customer enforce his or her right to the data?</p>
| 88,613 |
[
{
"answer_id": 88614,
"body": "<p><a href=\"https://gdpr-info.eu/art-15-gdpr/\" rel=\"nofollow noreferrer\">Article 15</a> of the GDPR provides that:</p>\n<blockquote>\n<p>The data subject shall have the right to obtain from the controller confirmation as to whether or not personal data concerning him or her are being processed, and, where that is the case, access to the personal data...</p>\n</blockquote>\n<p>There is no exception for having previously provided data to the same subject.'\n<a href=\"https://gdpr-info.eu/art-12-gdpr/\" rel=\"nofollow noreferrer\">Article 12</a> paragraph 1 provides:</p>\n<blockquote>\n<p>The controller shall take appropriate measures to provide any information referred to in Articles 13 and 14 and any communication under Articles 15 to 22 and 34 relating to processing to the data subject in a concise, transparent, intelligible and easily accessible form, using clear and plain language ...</p>\n</blockquote>\n<p>Paragraph 3 of article 12 further provides that:</p>\n<blockquote>\n<p>The controller shall provide information on action taken on a request under Articles 15 to 22 to the data subject without undue delay and in any event within one month of receipt of the request. That period may be extended by two further months where necessary, taking into account the complexity and number of the requests. The controller shall inform the data subject of any such extension within one month of receipt of the request, together with the reasons for the delay.</p>\n</blockquote>\n<p>However paragraph 5 of article 12 provides that</p>\n<blockquote>\n<p>Information provided under Articles 13 and 14 and any communication and any actions taken under Articles 15 to 22 and 34 shall be provided free of charge. Where requests from a data subject are manifestly unfounded or excessive, in particular because of their repetitive character, the controller may either:</p>\n<p>(a) charge a reasonable fee taking into account the administrative costs of providing the information or communication or taking the action requested; or</p>\n<p>(b) refuse to act on the request.</p>\n<p>The controller shall bear the burden of demonstrating the manifestly unfounded or excessive character of the request.</p>\n</blockquote>\n<p>If the data controller (DC) claims that the SAR is "manifestly unfounded or excessive" it can be refused, but the DC must be able to prove that this is in fact the case, if challenged..</p>\n<p>All these provisions can be enforced by the relevant Data Protection Authority (DPA), the national regulatory agency which handles GDPR and other data protection issues. In addition, privates suits under the GDPR are authorized under <a href=\"https://gdpr-info.eu/art-82-gdpr/\" rel=\"nofollow noreferrer\">Article 82</a>. Paragraphs 1 and 6 of that article provide:</p>\n<blockquote>\n<p>1 Any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered.</p>\n<p>...</p>\n<p>6 Court proceedings for exercising the right to receive compensation shall be brought before the courts competent under the law of the Member State referred to in Article 79(2).</p>\n</blockquote>\n<p>So a retaliatory refusal to respond to an SAR, or an unexplained refusal, could result in fines or other sanctions from the relevant DPA, or in a private suit, or both.</p>\n",
"score": 2
}
] |
[
"gdpr",
"data-protection"
] |
EU Employer demands birth certificate - Why?
| 2 |
https://law.stackexchange.com/questions/18576/eu-employer-demands-birth-certificate-why
|
CC BY-SA 4.0
|
<p>My brother is Irish, he starts a job as manager of a bar in France. He provided his Irish Passport for id, and the employer wants an original birth certificate. </p>
<p>My understanding is birth certificate, without being notarised, are not recognised outside there country of issue. In addition, they are not official documents for id (since they lack a photo). However, my understanding is passports are officially recognised internationally as id. Two other brothers live in Germany and Spain, both residents of those countries, both obtained their residency without any need for birth certificates (just passports).</p>
<p>Birth certificates can be used as part of identity theft so alarm bells ring for me.</p>
<p>Is there any reason why an employer might demand a birth certificate? Is there any reason why an Irish passport would not suffice?</p>
| 18,576 |
[
{
"answer_id": 18594,
"body": "<p>This is weird. Within the EU, a passport is proof of identity, and it is also proof that you are allowed to take a job in the EU. There is nothing that a birth certificate would add to this.</p>\n<p>Either the bar manager is badly misinformed, or he doesn't want to give your brother a job, and will come up with something even more ridiculous if he gets the birth certificate.</p>\n",
"score": 6
}
] |
[
"employer",
"identity-theft",
"birth-certificate"
] |
What is the difference between typeface derivative works and a "document created using the font"
| 2 |
https://law.stackexchange.com/questions/59727/what-is-the-difference-between-typeface-derivative-works-and-a-document-created
|
CC BY-SA 4.0
|
<p>I like the Humor Sans font and have been using it to create infographics. These are png/jpg files and do not contain information about the font typeface, nor do they contain any of the source code of the font ttf files.</p>
<p>The font/ttf files are licensed under <a href="http://antiyawn.com/uploads/Humor-SansOFL-1.0.txt" rel="nofollow noreferrer">this license</a>, which states;</p>
<blockquote>
<p>[This license] allows the licensed fonts to be used, studied, modified and
redistributed freely as long as they are not sold by themselves. The
fonts, including any derivative works, can be bundled, embedded,
redistributed and/or sold with any software provided that any reserved
names are not used by derivative works. <strong>The fonts and derivatives,
however, cannot be released under any other type of license. The
requirement for fonts to remain under this license does not apply to
any document created using the fonts or their derivatives.</strong></p>
</blockquote>
<p>My understanding of what constitutes <em>derivative works</em> comes from <a href="https://www.legalzoom.com/articles/what-are-derivative-works-under-copyright-law" rel="nofollow noreferrer">this online document</a>, which states that;</p>
<blockquote>
<p>A derivative work is based on a work that has already been copyrighted.</p>
</blockquote>
<p>My initial assumption based on this was that producing an image file that is generated using the font <strong>is</strong> a form of <em>derivative works</em>. However, this assumption has led me to some confusion, as I am now reading the two bold sentences as contradictory:</p>
<blockquote>
<p>The fonts and derivatives, however, cannot be released under any other
type of license</p>
</blockquote>
<p>This seems to tell me that my image has to be licensed under the same license.</p>
<blockquote>
<p>The requirement for fonts to remain under this license does not apply
to any document created using the fonts or their derivatives.</p>
</blockquote>
<p>My lay understanding here is that an image file is almost certainly a <em>document created using the font</em>. So this seems to suggest I am exempt from any licensing requirements.</p>
<p>So which is it?</p>
<p>I live in Australia, but my content will be published from a webserver in the United States.</p>
| 59,727 |
[
{
"answer_id": 59739,
"body": "<p>A document, or an image of a document, created using a font would not be considered to be a derivative work of that font. If it were, our system of licensing fonts would need to be significantly different.</p>\n<p>In any case the part of the license which reads:</p>\n<blockquote>\n<p>[This license] allows the licensed fonts to be used, studied, modified and redistributed freely as long as they are not sold by themselves. It specifically permits such <strong>use</strong> of the fonts.</p>\n</blockquote>\n<p>By "derivatives" the license seems to mean modified versions of the fonts, which it permits the licensee to create and use subject to certain restrictions. This seems to be confirmed by the license text which says:</p>\n<blockquote>\n<p>The requirement for fonts to remain under this license does not apply to any document created using the fonts or their derivatives.</p>\n</blockquote>\n<p>The plain meaning of this is that derivatives of the fonts are used to create documents, not that they are documents themselves, and that in any case "any document created using the fonts" is not subject to the license restriction.</p>\n",
"score": 5
}
] |
[
"copyright",
"open-source-software"
] |
APA vs. tort comparison
| 0 |
https://law.stackexchange.com/questions/88584/apa-vs-tort-comparison
|
CC BY-SA 4.0
|
<p>Any suggestions on where to find a detailed side-by-side comparison of the Administrative Procedures Act use versus the use of tort law for federal agency cases? Thanks for suggestions.
Searching on Scholar and other free law search engines. Expecting to, but not finding any review specific to my request.</p>
| 88,584 |
[
{
"answer_id": 88586,
"body": "<p>There isn't much to compare.</p>\n<p>The Administrative Procedures Act creates a variety of statutory rights and remedies, primarily in connection with the issuance of regulations and to a lesser extent with the quasi-judicial adjudication of disputes with a governmental agency arising from agency action or a request for agency action.</p>\n<p>Federal government agencies, except in a narrow class of lawsuits for money damages cases adjudicated by the U.S. Court of Claims (e.g. for automobile accidents involving a federal government agency employee) where sovereign immunity is expressly waived, reverse condemnation actions under the 5th Amendment to the U.S. Constitution, and select constitutional violations in <em>Bivens</em> actions (mostly against federal law enforcement officers), are immune from lawsuits arising on tort theories under the doctrine of sovereign immunity. Only one of these remedies - a reverse condemnation action - is allowed as a remedy for agency action also governed by the Administrative Procedures Act, and both are present only in very rare cases where a new regulation or agency action deprives someone of all economic use of their property without just compensation.</p>\n<p>I suspect that what you are really looking for a different comparison about which there is a moderate sized academic literature that is discussed by economists and in legal theory (especially by tort law scholars).</p>\n<p>This is the literature comparing two different ways other than criminal law for the government to regulate unlawful conduct by private actors.</p>\n<p>One way to do that is with "private law" by authorizing someone who is harmed by the unlawful conduct of a private actor to sue the person who engaged in the unlawful conduct in a private tort law lawsuit (a tort is a "civil wrong" that may be remedied in a private lawsuit for money damages).</p>\n<p>Another way to do that is to create a government agency that has the authority to have a government official enforce statutes or regulations enforcing or implementing statutes by bringing civil lawsuits, either in an administrative tribunal (like the National Labor Relations Board, or the Securities and Exchange Commission or the hybrid case of Equal Employment Opportunity Commission proceedings) subject to eventual Article III federal court review at least on appeal, or in a court. In these enforcement actions, remedies including fines, restitution to victims of the unlawful conduct, and/or injunctive relief.</p>\n<p>There are many academic discussions comparing the features of these two ways to address wrongful, harmful conduct in violation of the law outside the criminal justice system.</p>\n<p>But, generally speaking, an administrative agency enforcement mechanism arises from substantive federal regulatory statutes and not from the Administrative Procedures Act which governs primarily the process by which administrative agencies adopt regulations and to a much lesser extent to how administrative tribunals are constituted.</p>\n",
"score": 2
}
] |
[
"us-federal-government",
"tort",
"administrative-law"
] |
Can an EU company set the salary of their employees based on the employees' needs?
| 1 |
https://law.stackexchange.com/questions/80136/can-an-eu-company-set-the-salary-of-their-employees-based-on-the-employees-need
|
CC BY-SA 4.0
|
<p>Is it legally permissible, according to GDPR and Norwegian/European law, for an employer to ask their employees to:</p>
<ol>
<li>List their yearly monetary needs</li>
<li>Present them to management for approval</li>
<li>Set their salary based on that?</li>
</ol>
<p>What steps would need to be taken to ensure that this process is compliant with the law?</p>
| 80,136 |
[
{
"answer_id": 88603,
"body": "<blockquote>\n<p>List their yearly monetary needs / Present them to management for approval\n/ Set their salary based on that?</p>\n</blockquote>\n<p>The practice itself, to have different salaries based on circumstances that have little to do with the company or the productivity is very common. As an easy example, I'm sure costs for rent and food differ in Norway from region to region just as in any other country. In my country, for a good salary in a northern town, you would not find a bridge to sleep under in the most epxensive southern town. A salary in the southern town tends to be at least twice as much as in the north just to keep their employees. But what the employees actually have in their pockets after all neccessary expenses like rent, food and utility is very similar between the regions.</p>\n<p>There are also instances of companies paying for public transport tickets for example. Which if you use public transport is a lot of money over the year, if you go by car or even bike, it's worth nothing. Or maybe they offer a company car. That is nice if you need a car. If your family already has two in the garage, it's kinda "meh".</p>\n<p>So yes, different payment based on variables that are not productivity of the employee are legal and widespread.</p>\n<p>It does become a problem at the "approval" step though. For example which region you live in is not exactly covered under the GDPR and is information that is already available to your employer in way more detail anyway (I assume they have your full address). More personal information is not available to your employer and for good reasons. Even just <em>having</em> such information runs against anti-discrimination laws.</p>\n<p>It is also not only legal, but <em>legally required</em> in some EU countries to take those things (age, dependents) into account when laying off people. So there can be legal discrimination to protect those most vulnerable. So maybe it's better to create that sounds like a protection for vulnerable groups than a payment scheme. Something like extra days off for specific needs. Like say you not only allow the legally required maternatiy leave, but give 4 weeks on your own paid leave on top. Or give a day off not only for bereavement leave of first degree family members, but also second degree. Or maybe you grant a paid day off for a persons kids first day in school. Although this does need prove of some kind, I'm pretty sure if properly worded that would not be a legal problem.</p>\n<p>It would also been seen as more fair by other employees. Giving out lump sums of money for reasons unrelated to the job seems unfair, while giving out benefits directly related to the <em>specific</em> needs of employees seems very friendly and helpful.</p>\n<blockquote>\n<p>What steps would need to be taken to ensure that this process is compliant with the law?</p>\n</blockquote>\n<p>You need to get a lawyer (and maybe a union representative if your industry is heavily unionized) and go through your plan item by item and check whether your company is allowed to have and process this information. And if your company is allowed to discriminate based on this information, even if they have it legally.</p>\n<p>And in the end, when you have your watertight legal plan, you have to ask yourself how you will attract talent, when you pay based on their needs. Why would a young, single, very educated person do overtime for you, when an undereducated, lazy slacker next desk earns double what they do. Not because they do a better job, but because they have a wife and three kids and have a mortgage on their house.</p>\n<p>So it's legally a very costly endeavour. And it forms your company not as a company of talented hard workers, but of people who have the most liabilities. Because that is what you would be paying for.</p>\n",
"score": 2
},
{
"answer_id": 88602,
"body": "<p>Short answer: That would never be compliant with the law as the law is now.</p>\n<p>For this to be legal, the laws and political norms in Norway (and Europe) would have to change radically.</p>\n<p>Long answer:\nIt would violate numerous articles in the GDPR, and also in Norwegian work-laws (arbeidsmiljøloven) and possibly other special laws.</p>\n<p>In regards to GDPR (implemented in Norwegian law through Personopplysningsloven) it would violate the workers right to privacy for different kinds of information. One of the biggest hindrances would be the right to privacy about “sensitive data” like for example one’s sexual orientation, medical information and political and religious beliefs.</p>\n<p>I would imagine that mapping a persons every monetary need would involve a lot of sensitive information.</p>\n<p>The employer would also need a valid reason for collecting and using the “non-sensitive” personal data, not to mention the “sensitive data”. They would also have to securely handle and store a massive amount of personal data, all according to the rigid laws for this in GDPR.</p>\n<p>Furthermore, the personal data would in many cases involve the personal data of others, e.g. spouse, children, parents etc. whos data would be subjected to all the same strict rules as the employees.</p>\n<p>This data would all be the basis for the salary, so that brings on another requirements for the employer: all the data must regularly confirmed and kept updated.</p>\n<p>An employer would most likely not be able to handle that much work (except for a very small number of employees) and it’s even less likely that the employer would be able to prove the need to collect the data in the first place.</p>\n<p>That was just the GDPR, and I won’t go into the hurdles in Norwegian law, other than support the mention of discrimination laws in the comments, and that the Norwegian work environment law is pretty strict.</p>\n<p>Lastly, this would be a legal nightmare for all parties. How do you prove ‘needs’? How do you document the cost of everything? How do you account for unforeseen events? Etc etc etc.</p>\n<p>Note that this is just the problems I can list right off the top of my head, there are likely many other problems too!</p>\n",
"score": 0
},
{
"answer_id": 88606,
"body": "<p>This can most likely be done in a way that is legal. Or illegal if the company is careless. Reducing your salary because of such a check is most likely not legal. Like you get married to a very wealthy person, and your company wants to reduce your salary.</p>\n<p>But this is not really a question for law.stackexchange. You don't really care if it is legal or not, you care about how much money you get paid. Go to workplace.stackexchange, and you will be told that you don't have to accept what they offer but find a different place that pays you more. And nobody can force you to reveal information you don't want to reveal. You tell them how much payment you want, and they accept it or they don't.</p>\n<p>Now if they volunteer to increase your salary because your child has an expensive illness... Again, you don't care if that is legal or illegal, but you take the money.</p>\n",
"score": 0
},
{
"answer_id": 88607,
"body": "<p>Within certain limits.</p>\n<p>A company could set a base salary, within the legally established limits, and improve it as it sees fit. And if the reason of the improvement were some expenses, it would be legal to ask the employee to justify these expenses.</p>\n<p>To put an actual example, I got my salary. But if I have some medical expenses (for example buying some glasses) I can ask my current company for some compensation (that only covers a part of the cost, but nothing would prevent them from paying all of it). And I must submit the bill for the glasses, and it would not be too far fetched for my company to require some kind of document explaining that the glasses are used for medical reasons.</p>\n<p>What cannot be done:</p>\n<ul>\n<li><p>Force the employees to provide that information, if they do not want to. If I do not want the company to know that I had to buy glasses, I am not required to do. I will not get any compensation for buying the glasses, of course, but that is my decision.</p>\n</li>\n<li><p>Pay me less than there is in my contract, or contract me for less than the legal minimum. Even if I do not justify any expense, I am entitled to my pay. And that pay must at the very least be the legal minimum. Of for example, if I had a children and he died, the company could not cut my pay because now I have less expenses.</p>\n</li>\n</ul>\n",
"score": 0
}
] |
[
"gdpr",
"european-union",
"salary",
"norway"
] |
What is the U.K. GDPR?
| 4 |
https://law.stackexchange.com/questions/88599/what-is-the-u-k-gdpr
|
CC BY-SA 4.0
|
<p>I understand that the DPA implemented the GDPR in British law as an act of Parliament. Then there was Brexit, and the U.K. GDPR was introduced to stand in for the no longer binding EU GDPR, with only very few minor differences. Why was the U.K. GDPR even necessary as a replacement for the eu GDPR? Why isn’t simply having an active statute (ie DPA 2018) remain on the books enough?</p>
| 88,599 |
[
{
"answer_id": 88604,
"body": "<p>The 2018 Data Protection Act specifically implemented the GDPR EU Regulation in the UK - while the regulation itself was directly binding it required member states to create their own legislation for implementing the details - setting up the required supervisory and accreditation bodies etc. The various 'opening clauses' in the regulation also provided the means for the members states to implement specifics in local legislation (so long as that legislation <em>exceeded</em> the minimums set out in GDPR).</p>\n<p>At the end of the Brexit transition period the UK was no longer a member state (and it's citizens were no longer EU citizens), keeping the DPA 2018 as was would have actually meant that UK citizens weren't eligible for the very protections it was intended to provide them!</p>\n<p>Therefore the basis of the law needed updating (as well as certain minor provisions that no longer made sense) hence the "UK GDPR" provided a substitute. The fundamentals are the same and crucially it also codified the necessary basis for the UK's data protection laws to have what is referred to as "adequacy" - which means that the EU considers the UK GDPR/DPA to provide "essentially equivalent" levels of protection and therefore data is allowed to continue to flow between the UK and the EU.</p>\n",
"score": 6
},
{
"answer_id": 88605,
"body": "<p>The Data Protection Act 2018 does <strong>not</strong> implement the GDPR in British law, because it doesn't need to. EU regulations automatically become law in EU member states (which the UK was at the time) without any further action.</p>\n<p>What the Act actually does is summarised in section 1:</p>\n<blockquote>\n<p>(1) This Act makes provision about the processing of personal data.</p>\n<p>(2) Most processing of personal data is subject to the GDPR.</p>\n<p>(3) Part 2 supplements the GDPR (see Chapter 2) and applies a broadly equivalent regime to certain types of processing to which the GDPR does not apply (see Chapter 3).</p>\n<p>(4) Part 3 makes provision about the processing of personal data by competent authorities for law enforcement purposes and implements the Law Enforcement Directive.</p>\n</blockquote>\n<p>...plus additional provisions relating to intelligence services, the Information Commissioner, and the enforcement of the data protection legislation, which are not covered by the GDPR.</p>\n<p>All EU regulations remained a part of UK law after Brexit by virtue of the <a href=\"https://www.legislation.gov.uk/ukpga/2018/16/contents\" rel=\"noreferrer\">European Union (Withdrawal) Act 2018</a>, but this Act also gave Parliament the ability to amend or repeal these regulations, which it couldn't do before.</p>\n<p>In the case of the GDPR, amendments - including renaming it to UK GDPR - were made by the <a href=\"https://www.legislation.gov.uk/uksi/2019/419/contents\" rel=\"noreferrer\">Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019</a>.</p>\n",
"score": 5
}
] |
[
"united-kingdom",
"gdpr",
"european-union",
"data-protection-act"
] |
Resellers of Windows OEM licenses
| 1 |
https://law.stackexchange.com/questions/88592/resellers-of-windows-oem-licenses
|
CC BY-SA 4.0
|
<p>I've been comparing prices on Windows 11 Pro licenses from third-party OEM license resellers.</p>
<p><a href="https://www.microsoft.com/en-us/d/windows-11-pro/dg7gmgf0d8h4" rel="nofollow noreferrer">Microsoft</a> sells it for $199.99.</p>
<p><a href="https://www.kinguin.net/category/110936/windows-11-professional-oem-key" rel="nofollow noreferrer">Kinguin</a> sells it for $32.62 (at the time of posting). I'm just using them as an example. There are other such sites.</p>
<p><a href="https://www.tomshardware.com/reviews/get-windows-10-free-or-cheap,5717.html#:%7E:text=Now%2C%20let%27s%20address,just%20another%20marketplace.%22:%7E:text=Now%2C%20let%27s%20address,just%20another%20marketplace.%22" rel="nofollow noreferrer">Tom’s Hardware</a> seems to be comfortable with Kinguin:</p>
<blockquote>
<p>Now, let's address the elephant in the room. While we can't vouch for
all of them, websites selling cheap Windows 10 or 11 keys are likely
offering legitimate codes. Kinguin has more than three dozen merchants
worldwide selling Windows keys. Mark Jordan, Kinguin’s VP of
communications, told Tom's Hardware in 2019 that Kinguin's merchants
acquire the codes from wholesalers who have surplus copies of Windows
they don't need.</p>
<p>"It's not a gray market. It would be like buying Adidas or Puma or
Nike from a discounter, from TJ Maxx," Jordan said. "There are no
legal issues with buying it from us. It's just another marketplace."</p>
</blockquote>
<p>I asked an IT consultant who I'd describe as "scrupulously honest" about the legitimacy of such resellers. He wrote:</p>
<blockquote>
<p>Yes, the source is completely on the up and up to the best of my
ability to discern. I have no desire to be sued or jailed for software
piracy. I was referred to this particular source by another IT
consultant who has no desire to jeopardize his business by dealing
with shady sources.</p>
</blockquote>
<p>Is purchasing from such resellers legitimate? How about for business use?</p>
| 88,592 |
[
{
"answer_id": 88598,
"body": "<p>In a <a href=\"https://law.stackexchange.com/questions/50462/is-resale-of-windows-10-keys-legal\">related post</a>, <a href=\"https://law.stackexchange.com/a/50474/48764\">there was an answer that referenced</a> a 2018 Geekwire article <a href=\"https://www.geekwire.com/2018/microsoft-sues-prolific-distributor-pirated-office-windows-software/\" rel=\"nofollow noreferrer\">Microsoft sues 'prolific distributor' of pirated Office and Windows software</a>. Therein, Geekwire shared the civil case of Microsoft v. Gamble. Although I am not yet a lawyer, I found these two excerpts from Microsoft's complaint pertinent:</p>\n<blockquote>\n<ol start=\"20\">\n<li><p>Product activation keys are not a software license, nor do they constitute authorization from Microsoft to access or use software\nwithout the appropriate license. Product activation is merely\ntechnology used by Microsoft to protect its intellectual property from\nunauthorized use, counterfeiting, and other forms of abuse. Microsoft\ndoes not sell or otherwise provide product activation keys separately\nfrom licensed software, nor does it authorize others to do so.</p>\n</li>\n<li><p>One prevalent facilitator of unauthorized software use is the unlawful distribution of Microsoft product activation keys that have\nbeen decoupled from the software they were authorized to activate.\nDistributors of these keys commonly instruct their customers, as in\nthis case, to download the software from Microsoft and then use the\ndecoupled keys to activate the software. In these instances, the\ncustomers downloading the software from Microsoft do not purchase the\nrequired software license, and Microsoft is not paid for the software\nbeing used. The global black market for decoupled product activation\nkeys generates millions of dollars of illicit revenues for\ndistributors.</p>\n</li>\n</ol>\n</blockquote>\n<p>I may certainly be jumping, but I think the most logical conclusion would be that is what's going on with these discounted licenses: they're illegally selling <em>"product activation keys that have been decoupled from the software they were authorized to activate"</em>.</p>\n<p>Just to confuse matters, however, my "scrupulously honest" IT consultant who I quoted in my original post, just wrote me:</p>\n<blockquote>\n<p><em>[my source, another IT consultant and MSP]</em> is better connected with vendors than I am. He says he\nspoke to a number of contacts at Microsoft, and their consensus was\nthat if Microsoft's activation server permits the product to activate,\nthen the software and the product key are legitimate.</p>\n</blockquote>\n",
"score": 1
},
{
"answer_id": 88596,
"body": "<p>It's not possible to determine in a specific case whether a particular vendor is operating legally, but it is in principle possible. <a href=\"https://devicepartner.microsoft.com/en-US/connect/distributor\" rel=\"nofollow noreferrer\">MS itself</a> sort of directs you to possible resellers. The pertinent question is whether the vendor does indeed have permission (arising from a contract with MS) to sell some form of license, however, pursuant to <a href=\"https://learn.microsoft.com/en-us/troubleshoot/windows-client/deployment/validate-oem-activation-key\" rel=\"nofollow noreferrer\">this description</a> for Windows 10, it might require purchasing a copy then validating the key. An alternative would be to read the contract between the vendor and MS, and hire an attorney to evaluate the legality of what they are offering, but that isn't publicly-available information and it is kind of overkill. Indeed, there may be no contract between the vendor and MS, if the vendor bought up extra copies from someone else (the question does arise whether the license is transferable, which we can't answer without seeing the contract with MS).</p>\n",
"score": 0
}
] |
[
"licensing",
"computer"
] |
How do I find out if a company I want to claim against has a UK address
| 2 |
https://law.stackexchange.com/questions/47399/how-do-i-find-out-if-a-company-i-want-to-claim-against-has-a-uk-address
|
CC BY-SA 4.0
|
<p>I intend to take Norwegian airlines to court to claim for unpaid compensation. This is NOT a question about whether I am entitled or not, I need to know to whom I should address the small claim. The airline I bought tickets from and therefore was responsible for carrying me was Norwegian. The airline I claimed compensation from was Norwegian and the airline that declined my compensation claim was Norwegian. The case has since been arbitrated upon and I am still not satisfied with the result. Now I intend to continue to a small claims court.</p>
<p>I have asked Norwegian and the CAA for the address, and neither have helped me.</p>
<p>To make the claim the person I'm claiming from needs to have an address in the UK - I have found this <a href="https://beta.companieshouse.gov.uk/company/09360346" rel="nofollow noreferrer">https://beta.companieshouse.gov.uk/company/09360346</a> but unsure if this is the actual person I'm making the claim against?</p>
<p>Thanks!</p>
| 47,399 |
[
{
"answer_id": 79785,
"body": "<p>You have various ways to find out this information. The fact that <em>a company exists</em> on the Companies House Register does not establish whether that is the <em>same company</em> with whom you have a contract. Companies often have multiple subsidiaries, siblings, parents, agents, and/or affiliates, and in most cases you have no right to sue any of those entities other than the one with whom you have the contract.</p>\n<p>What you <em>can</em> do is the following:</p>\n<ul>\n<li>Check the terms and conditions that you agreed to at the time you made the booking. This will usually contain the company's information and should be your first port of call. If you find the information here, you don't need to do anything else.</li>\n<li>If it does not, and you agreed to those terms via a website, check the website itself for any information. If the company is in E&W then <a href=\"https://www.legislation.gov.uk/uksi/2015/17/regulation/25\" rel=\"nofollow noreferrer\">Regulation 25</a> of the The Company, Limited Liability Partnership and Business (Names and Trading Disclosures) Regulations 2015 (the "<strong>Disclosure Regs</strong>") requires them to state their registered number and registered office address on their website.</li>\n<li>You can also check any emails which the company sent you when you made the booking. <a href=\"https://www.legislation.gov.uk/uksi/2015/17/regulation/24\" rel=\"nofollow noreferrer\">Regulation 24</a> of the Disclosure Regs requires the company to disclose its registered name (from which you can compare against the Companies House Register) on "all other forms of its business correspondence". Regulation 25 (see above) also applies to "business letters".</li>\n<li>If you still cannot find the information, you can make a request for disclosure under <a href=\"https://www.legislation.gov.uk/uksi/2015/17/regulation/27\" rel=\"nofollow noreferrer\">Regulation 27</a> for the registered office address. As they will have to respond by way of correspondence and/or letter, it is implied that the response will also need to contain their name and registered number (see Regs 24 and 25 above). They must reply within 5 working days.</li>\n<li>A breach of any of the above requirements is a criminal offence for the company and its directors per <a href=\"https://www.legislation.gov.uk/uksi/2015/17/regulation/28\" rel=\"nofollow noreferrer\">Regulation 28</a>.</li>\n<li>Be aware that the above rules assume that the company is in fact an E&W entity.</li>\n<li>You can also make a subject access request to the company you have found on Companies House, under <a href=\"https://uk-gdpr.org/chapter-3-article-15/\" rel=\"nofollow noreferrer\">Articles 15(1) and 15(3)</a> of the UK GDPR (as defined in sections 3(10) and 205(4) of the Data Protection Act 2018). Make sure to explicitly ask for (1) confirmation as to whether or not you entered into a contract with that company, and (2) a copy of such contract. If they respond then the answer will reveal whether you have identified the correct company.</li>\n<li>You can also make a request under <a href=\"https://uk-gdpr.org/chapter-3-article-13/\" rel=\"nofollow noreferrer\">Article 13(1)</a> which provides that "<em>where personal data relating to a data subject are collected from the data subject, the controller shall, at the time when personal data are obtained, provide the data subject with all of the following information: (a) the identity and the contact details of the controller [...]</em>" but do note that they will have already satisfied this requirement if they already gave you the information in the contract or elsewhere.</li>\n</ul>\n<p>Of course there is always the possibility they will fail to respond to comply with all of the above. In that case, your recourse can include the following:</p>\n<ul>\n<li>A complaint to Companies House for the company law breaches.</li>\n<li>A complaint to the <a href=\"https://ico.org.uk/make-a-complaint/\" rel=\"nofollow noreferrer\">Information Commissioner's Office</a> for the GDPR breaches.</li>\n<li>An application to the court for a compliance order under <a href=\"https://www.legislation.gov.uk/ukpga/2018/12/section/167\" rel=\"nofollow noreferrer\">Section 167</a> of the Data Protection Act 2018.</li>\n</ul>\n<p>Note also that the Civil Procedure Rules do permit service on addresses out of the jurisdiction in some circumstances. See <a href=\"https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06#6.6\" rel=\"nofollow noreferrer\">Rule 6.6</a>, <a href=\"https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06#6.11\" rel=\"nofollow noreferrer\">6.11</a>, <a href=\"https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06#IV\" rel=\"nofollow noreferrer\">Section IV of Part 6</a>, and <a href=\"https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06/pd_part06b\" rel=\"nofollow noreferrer\">Practice Direction 6B</a>. You should read all of that to see if any of it applies to your situation.</p>\n<p>If you do have a copy of the contract, you should also check for the jurisdiction and governing law clauses (if any). These set out respectively, which country's courts handle any dispute, and which country's laws apply. They may expressly permit you to issue the claim in E&W (in which case see whether or not CPR Rule 6.11 above applies). For example, I recently had to issue a claim against Ryanair for non-payment of a refund for a cancelled flight. Their <a href=\"https://www.ryanair.com/gb/en/useful-info/help-centre/terms-and-conditions/termsandconditionsar_848058169\" rel=\"nofollow noreferrer\">contract</a> specifies:</p>\n<blockquote>\n<p>You are entitled to bring a claim against us in your local court,\nexcept that Irish courts shall have exclusive jurisdiction in relation\nto claims under EU Regulation 261/2004 where you have not complied\nwith clauses 15.2.1 to 15.2.8 of these Terms and in relation to\nnon-consumer (i.e., business to business) claims.</p>\n</blockquote>\n",
"score": 2
},
{
"answer_id": 47408,
"body": "<p>The company you found is Norwegian Air UK Limited. Some of its officers have names that look as if they could be Norwegian. It could be a completely unrelated company, but that is not very likely. It is most likely a subsidiary of the Norwegian company you are after. </p>\n\n<p>It is very likely that you have no contract with the UK subsidiary of a Norwegian company, and therefore no way to take them to court.</p>\n",
"score": 0
}
] |
[
"england-and-wales",
"small-claims-court",
"air-travel"
] |
The difference between the first available exit and any other exit
| 1 |
https://law.stackexchange.com/questions/88216/the-difference-between-the-first-available-exit-and-any-other-exit
|
CC BY-SA 4.0
|
<p>Alberta's driver's <a href="https://www.alberta.ca/traffic-circles-and-roundabouts.aspx" rel="nofollow noreferrer">guide</a> says "when you intend to use the first available exit, approach the circle (even though you are already in the circle, intending to exit ...) using the right lane. It also says "when you intend to leave at any other exit, approach the circle (you are already in the circle, but the guide tells you to approach it again ... confusing) using the left lane. My question is: What's the difference between the first available exit and any other exit? I thought if you are in the right lane, you have to stay in that lane when exiting. And if you are in the left lane, you have to stay in that lane when exiting. This is all very confusing to me. Please help and thank you!</p>
<p>"Exiting circular intersections</p>
<p>Always wait to activate your right turn signal after passing the exit that is before your intended exit. This tells other drivers that you intend to leave the circle at the next exit.</p>
<p>When you intend to use the first available exit:</p>
<p>• Approach the circle using the right lane.
• Use your right signal as you approach. Leave it on until you have exited the circle.
• As you approach, scan for pedestrians and cyclists at the crosswalks at the entrance and exits of the circle.
• Yield to traffic in the circle.
• Exit the circle using the right lane.</p>
<p>When you intend to leave at any other exit:</p>
<p>• Approach the circle using the left lane.
• Activate your left signal to communicate that you do not plan to use the first exit.
• As you approach, scan for pedestrians and cyclists at the crosswalks at the entrance and exits of the circle.
• Yield to traffic in the circle.
• Exit the circle using the left lane."</p>
| 88,216 |
[
{
"answer_id": 88221,
"body": "<p>I think you have understood it correctly. And the diagrams make things clearer as to why, when you are <em>intending</em> to use an exit other than the first exit, it is better to enter the two-lane roundabout via the left lane. The reason is because if you are in the right lane and do not exit, you must be alert to the need to yield to left-lane traffic that might be exiting.</p>\n<p>Using the left lane when you have planned ahead-of-time that you will not be using the first exit helps avoid a potential yield situation.</p>\n<p>The guide seems to emphasize that the lane you enter is the lane you should stay in throughout and is the lane you should end up exiting from. This is clear from the diagrams showing that you can exit directly from the left lane (by crossing through the right lane on the way out); it's captioned "<em>Vehicle H must yield to vehicle G</em>."</p>\n<p>As far as I can tell, none of that is prescribed by regulation other than <a href=\"https://canlii.ca/t/82sn#sec40\" rel=\"nofollow noreferrer\">the requirement to yield</a> to left-lane traffic. But the material in the guide <a href=\"https://canlii.ca/t/jq1kw#par53\" rel=\"nofollow noreferrer\">might inform the standard of care</a> (see also <a href=\"https://canlii.ca/t/1qww2#par7\" rel=\"nofollow noreferrer\">an Alberta example</a>), and following the guide might be expected as part of a driving test.</p>\n",
"score": 5
}
] |
[
"canada",
"traffic",
"driving"
] |
Under what law could Peter Doig have been liable for saying he did not paint a painting?
| 1 |
https://law.stackexchange.com/questions/88587/under-what-law-could-peter-doig-have-been-liable-for-saying-he-did-not-paint-a-p
|
CC BY-SA 4.0
|
<p><a href="https://news.artnet.com/art-world/painter-peter-doig-wins-2-5-million-in-sanctions-against-a-gallery-that-tried-to-force-him-to-take-credit-for-another-artists-work-2243646" rel="nofollow noreferrer">It is in the news</a> that Peter Doig has won a case, including being granted $2.5 million in fees, after he said he did not paint a picture.</p>
<p><a href="http://www.nytimes.com/2016/07/10/arts/design/peter-doig-painting-lawsuit.html" rel="nofollow noreferrer">From the NYT</a> at the time the case was submitted, the claimant says "His suit contends that Mr. Doig is either confused or lying and that his denials blew up a plan to sell the work for millions of dollars." After seeing the facts of the case, it seems obvious that Mr. Doig was neither confused or lying, but what if he was?</p>
<p>None of the articles state exactly what law may have been broken here. Under what circumstances could someone sue another for either being confused or lying about the fact of if an item was created by them?</p>
| 88,587 |
[
{
"answer_id": 88590,
"body": "<p><a href=\"https://casetext.com/case/robert-fletcher-bartlow-gallery-ltd-v-peter-doig-gordon-veneklasen-matthew-s-dontzin-the-dontzin-law-firm-llp\" rel=\"nofollow noreferrer\">The original lawsuit</a> was filed "seeking damages for their alleged tortious interference with Plaintiffs' prospective economic advantage by taking action that scuttled the auction of a painting owned by Fletcher, and also seeking a declaration that Doig painted the painting", insofar as Doig denied being the painter of the work. To simplify matters, Fletcher came to possess a painting, (purportedly) believed that it was painted by Doig, and sought to sell it for a large amount of money. Doig stated that he did not paint the work. Doig acted to prevent the sale of the painting – that is against the law. Plaintiffs sought declaratory judgement, that the painting <em>was</em> made by Doig.</p>\n<p>In a trial subsequent to the above ruling, the court actually declared that the painting was <em>not</em> done by Doig, and Doig sued for "<a href=\"https://www.law.cornell.edu/uscode/text/28/1927\" rel=\"nofollow noreferrer\">vexatious litigation</a>", being awarded a sanction of $2,525,958.35.</p>\n",
"score": 4
}
] |
[
"is-x-legal"
] |
Peanut butter - may contain peanuts
| 25 |
https://law.stackexchange.com/questions/88448/peanut-butter-may-contain-peanuts
|
CC BY-SA 4.0
|
<p>Some products have disclaimers that serve no apparent purpose or which are obviously redundant. For example, a peanut butter jar that lists the ingredients as <em>peanuts</em>, and then provides a warning right under it which says <em>may contain peanuts</em>.<sup>*</sup></p>
<p>If a company sells a product without such a warning, what arguments could be used in court against them by a person who claimed that they read the ingredients, understood that it listed <em>peanuts</em>, but consumed it anyway because they weren't warned that it <em>may contain peanuts</em> and was injured?</p>
<p><sub>* I'm aware that it usually says <em>may contain nuts</em> because peanuts are technically legumes, but this is just an example.</sub></p>
| 88,448 |
[
{
"answer_id": 88450,
"body": "<p>When the dangerous nature of a product is or should be known to a manufacturer and the product is being used in the usual and expected manner, the manufacturer has a duty to warn of the danger. Breach of that duty can lead to liability. The case <a href=\"https://casetext.com/case/billiar-v-minnesota-mining-and-mfg-co\" rel=\"noreferrer\">Billiar v. Minnesota Mining and Mfg</a> contains some useful precedent for understanding the issue.</p>\n<blockquote>\n<p>It is well settled that New York law holds the supplier of a product\nwhich it knows or should know is dangerous if used in the usual and\nexpected manner to a duty adequately to warn users of the product of\nthe danger unless the danger is obvious or well known.</p>\n</blockquote>\n<p>...</p>\n<blockquote>\n<p>When the user is fully aware of the nature of the product and its\ndangers, however, the supplier cannot be held liable for failure to\nwarn him....\nThe rationale for this "knowledgeable user" exception is that\nknowledge of the danger is equivalent to prior notice; no one needs\nnotice of that which he already knows.</p>\n</blockquote>\n<p>In this particular case, plaintiff was injured mixing an electrical resin at work, but was (deemed to be) an unskilled worker. The court recites various cases where individuals with <em>some</em> relevant knowledge were nevertheless harmed (and won their cases), because the warnings were insufficient.</p>\n<p>Food allergies have a special treatment, thanks to the <a href=\"https://www.law.cornell.edu/uscode/text/21/343\" rel=\"noreferrer\">Food Allergen Labeling and Consumer Protection Act of 2004</a>. Peanuts (and other things) are "mandatory warning" substances, where the label must say "Contains peanuts". Omitting the warning makes the food misbranded. Also note that warnings carry a "prominence" requirement, which does not exist for ordinary ingredients which are typically in illegible microprint. Paragraph (w) spells out the labeling requirement, which is well worth reading for its complexity. The law does include the escape clause that if the name of the product contains the name of the allergen, you have been warned.</p>\n<p>If plaintiff is suing the manufacturer pro se and stipulates, in lieu of competent legal advice, that they knew that peanut butter contained peanuts and that they were allergic to peanuts, but they ate it anyhow, the manufacturer will not be liable.</p>\n",
"score": 23
},
{
"answer_id": 88458,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"canada-container\">canada</a></p>\n<p>I think you misunderstand the liability that the manufacturers are seeking to avoid by providing these specific labels when they appear clearly redundant: the liability would likely come from regulatory enforcement or prosecution, not a private cause of action.</p>\n<h3>Private cause of action</h3>\n<p>Maybe it is obvious, but in the case where a plaintiff brings an action in negligence, product liability, or failure to warn, the plaintiff would have to make out the elements of the specific cause of action they are alleging. I think you are correct that it would be quite a hurdle for a plaintiff to show that they were not informed that peanut butter contained peanuts.</p>\n<h3>Regulatory requirement</h3>\n<p><em>But a standalone allergen notice is required by regulation. Failure to provide the notice is an offence.</em> This explains the presence of a label, even in the case of clear redundancy.</p>\n<p>The <a href=\"https://laws-lois.justice.gc.ca/eng/regulations/c.r.c.,_c._870/FullText.html\" rel=\"noreferrer\"><em>Food and Drug Regulations</em></a> say:</p>\n<blockquote>\n<p>A food allergen source, gluten source and added sulphites statement on the label of a prepackaged product shall ... be introduced by a title that shall (i) consist of the term ... "Contains" or "Contains:"; (ii) be shown in bold type; and (iii) be shown without any intervening printed, written or graphic material appearing between the title and the rest of the statement.</p>\n</blockquote>\n<p>The understanding of the consumer is irrelevant to the labelling requirement. Failure to provide the label is the violation. This avoids any uncertainty about what a manufacturer's obligation is. It does not matter that the presence of an allergen might already be clear from the nature of the product or other features of the labelling; the prescribed allergen label is always required.</p>\n<p>A person or organization who contravenes the <em>Food and Drug Regulations</em> is guilty of an offence (see <em>Food and Drugs Act</em>: <a href=\"https://laws-lois.justice.gc.ca/eng/acts/f-27/page-5.html#h-234638\" rel=\"noreferrer\">ss. 31, 31.1</a>). These offences would be enforced by the state; they do not create a private cause of action.</p>\n",
"score": 15
},
{
"answer_id": 88475,
"body": "<p>I happen to agree that this is a bit strange, and I think it is basically "government says do it, so you do it even if it doesn't make a whole lot of sense." But here are some additional examples that may shed some light on things:</p>\n<ul>\n<li>Kosher certification - <a href=\"https://oukosher.org/blog/industrial-kosher/all-ou-symbols-explained/\" rel=\"nofollow noreferrer\">Union of Orthodox Jewish Congregations of America - OU - Symbols explained</a></li>\n</ul>\n<p>On the one hand, Oreo cookies are commonly listed with an OU-D certification. This normally indicates "contains dairy". But the OU has publicly stated that, at least for the time being, as long as there is no "May contain milk" or "Contains milk" or any milk-based ingredients listed, these can be considered dairy-free <em>from a Kosher perspective</em> such that they can be eaten following a meat meal. Trust me, for Orthodox Oreo-loving Jews this was big news when it came out several years ago. As I understand it, the OU asked the manufacturer to put an OU-D on the package instead of OU (indicating no dairy or meat by default) or OU Pareve (clearly stating no meat or dairy) because this allows the manufacturer to change the ingredients (as long as they are Kosher) and manufacturing processes (e.g., baking in the same equipment used for products containing dairy) by changing the labels as required by government regulations (e.g., adding "Contains milk" or "May contains milk" as appropriate) without requiring a recertification by the OU to determine the labeling. In other words, OU-D covers all the likely scenarios from a Kosher perspective.</p>\n<p>And on the other hand, several years ago I saw a Passover product which stated "May contain wheat, milk and nuts" and next to it a line "This has no Kosher concern." (or similar, I can't remember the exact phrase). That was important because the item was certified as Pareve (so no milk) and Kosher for Passover (so no wheat, or rather any wheat had to be special for Passover which gets to be a very big deal, and in this case no wheat <em>intentionally</em> included).</p>\n<p>So there is one situation where the allergen statement is used to clarify the Kosher statement (is it <em>really</em> dairy or not) and in the other the allergen statement is essentially minimized (because Kosher rules are rather strict, especially for Passover) but the manufacturer felt the need to still include it based on their understanding of FDA regulations.</p>\n<ul>\n<li>Margarine</li>\n</ul>\n<p>Margarine is basically vegetable oil, flavoring, coloring and other chemicals made as a butter substitute. People who keep Kosher look for margarine that is 100% dairy-free. Many margarines (and similar products) contain dairy. Many do not. It may not be obvious from the ingredients. While Kosher symbols work for those who keep Kosher, the allergen statement <em>or lack thereof</em> can be vital for those who don't keep Kosher (or on a product that is not Kosher certified). As an example, <a href=\"https://www.icantbelieveitsnotbutter.com/en/products/original\" rel=\"nofollow noreferrer\">I can't believe it's not Butter</a> may not have butter but it does have milk ingredients based on the allergen statement (and the OU-D) even though there is nothing obviously dairy in the ingredients.</p>\n<ul>\n<li>Non-Dairy Creamer</li>\n</ul>\n<p>This is the exact reverse of the peanut butter question. Many "non-dairy" creamers are actually made partly from dairy products! Really. Blindly following the name would be a problem for someone with a serious allergy problem. Looking at <a href=\"https://www.goodnes.com/coffeemate/products/fat-free-the-original-powder-coffee-creamer-16-oz-canister/\" rel=\"nofollow noreferrer\">Coffee-Mate</a> the label says: <em>non-dairy</em> but the ingredients include <em>SODIUM CASEINATE (A MILK DERIVATIVE)</em> and the allergen statement says <em>CONTAINS: A MILK DERIVATIVE.</em></p>\n<p>So what is in a name? If non-dairy creamer can include dairy, and "it's not butter" include dairy, who is to say that peanut butter must have peanuts?</p>\n<hr />\n<p>Some comments on the original question got me hunting on the internet for what each manufacturer says as far as allergens. All are from manufacturer web pages. Except as noted, all are Creamy, the only type of peanut butter that matters.</p>\n<ul>\n<li>Jif "Contains peanuts"</li>\n<li>Peter Pan: "Contains: Peanuts"</li>\n<li>Smuckers: "Contains peanuts"</li>\n<li>Trader Joe's: "CONTAINS PEANUT"</li>\n<li>Smart Balance (not sure if this one counts, it is Chunky not Creamy): "This product contains peanuts."</li>\n<li>Skippy seems to be the lone holdout - it has "Ingredients & Allergens" which just lists the ingredients, the first one being Roasted Peanuts.</li>\n</ul>\n<p><strong>However</strong>, I just checked some of my actual real Jif Creamy Peanut Butter - and I can't find the allergen list anywhere! But the ingredients have <strong>PEANUTS</strong> in bold - I don't know if that is for emphasis or if it somehow satisfies an FDA requirement.</p>\n<p>And just for fun, I pulled out a container of Lactaid Milk and sure enough, after the ingredients is <strong>CONTAINS MILK</strong>.</p>\n",
"score": 11
},
{
"answer_id": 88457,
"body": "<blockquote>\n<p>A peanut butter jar that lists the ingredients as peanuts, and then provides a warning right under it which says may contain peanuts.</p>\n</blockquote>\n<p>They don't, unless the manufacturer messed up. The allergy warning typically says something like <strong>Contains peanuts. May contain nuts.</strong> The two allergies are separate conditions and are thus marked separately.</p>\n<blockquote>\n<p>What arguments could be used in court against them by a person who claimed that they read the ingredients, understood that it listed peanuts, but consumed it anyway because they weren't warned that it may contain peanuts and was injured?</p>\n</blockquote>\n<p>None, if they readily admit they knew it contains peanuts. But why would they intentionally undermine their own case? It is as if you admit you saw a drunk driver wasn't going to stop at crosswalk and intentionally walked in front of their car.</p>\n<p>Instead the person would claim the label was not clear enough and they thought it didn't contain peanuts. For example, consider that the allergy warning said merely:</p>\n<p><strong>Allergy warning: May contain milk and shellfish.</strong></p>\n<p>Then the person could argue they read the allergy warning and it said nothing about peanuts.</p>\n<p>If the manufacturer has a need to add an allergy warning (for the "may contain" ingredients), it makes sense to list all allergens there, even if some should be obvious. As user6726 says, it can be sufficient for the product name to include the allergen, but that depends on local laws.</p>\n",
"score": 8
},
{
"answer_id": 88536,
"body": "<p>Writing "may contain peanuts" on a jar of peanut butter appears to be an error and a violation of FDA rules. According to the <a href=\"https://%20https://www.fda.gov/food/food-labeling-nutrition/food-allergies\" rel=\"nofollow noreferrer\">FDA's Food Allergies</a> information sheet:</p>\n<blockquote>\n<p>Consumers may also see advisory statements such as “may contain [allergen] or “produced in a facility that also uses [allergen].” Such statements are not required by law and can be used to address unavoidable “cross-contact,” only if manufacturers have incorporated good manufacturing processes in their facility and have taken every precaution to avoid cross-contact that can occur when multiple foods with different allergen profiles are produced in the same facility using shared equipment or on the same production line, as the result of ineffective cleaning, or from the generation of dust or aerosols containing an allergen.</p>\n</blockquote>\n<p>So according to the FDA the phrase "may contain peanuts" is appropriate only if the manufacturer has "taken every precaution" to exclude peanuts from the product. It is a warning that they may still be present <em>as a contaminant</em>.</p>\n<p>The allergy warning should read "Contains: Peanuts". These warnings appeared on food packaging in the USA after the passage of the <a href=\"https://www.fda.gov/food/food-allergensgluten-free-guidance-documents-regulatory-information/food-allergen-labeling-and-consumer-protection-act-2004-falcpa\" rel=\"nofollow noreferrer\">Food Allergen Labeling and Consumer Protection Act of 2004 (FALCPA)</a>. This law defines the format of the notice. This law specifies which allergens have to be called out, standardizes their names, and requires the word "Contains" at the start of the list.</p>\n<p>The situation would be less confusing if the list were preceded by the world "Allergens". I suspect food manufacturers objected and the confusing heading "Contains" was chosen as a compromise.</p>\n<p>This odd choice has two unfortunate consequences. One, product labels seem to have two lists of ingredients. And second, the required notice sometimes is perceived as an inane statement of the obvious.</p>\n<p>The framers of the law could have made an exception for cases where the presence of an ingredient should be obvious. But that would have complicated the law. As other have pointed out, what is obvious to one person may not be obvious to another. Drawing up a list of exceptions would have required considerable research into public understanding of the nature of food items, followed by public comments and other lengthy and expensive bureaucratic procedures to arrive at the final list. The savings would have been only in ink.</p>\n",
"score": 4
},
{
"answer_id": 88452,
"body": "<p><a href=\"/questions/tagged/south-africa\" class=\"post-tag\" title=\"show questions tagged 'south-africa'\" aria-label=\"show questions tagged 'south-africa'\" rel=\"tag\" aria-labelledby=\"south-africa-container\">south-africa</a></p>\n<p>Allergy warnings are mandated by government on all mass produced foodstuffs. It is mandatory regardless of how redundant such warnings may be.</p>\n<p>It is also generally useful. I'm lactose intolerant and have to read labels attentively. You would be surprised how sneaky some allergens could be in things you would not expect.</p>\n<p>If they did not have labels then that could lead to litigation on a scale I could probably not comprehend. Not just civil case but government knocking on your door as well.</p>\n",
"score": 3
},
{
"answer_id": 88449,
"body": "<blockquote>\n<p>what arguments could be used in court against them by a person who claimed that they read the ingredients</p>\n</blockquote>\n<p>None that would be seen meritorious by the court.</p>\n<p>Product manufacturers simply prefer to comply with any applicable legal requirements for labelling and, in any event, err on the side of caution. Sometimes it turns out to be looking bizarre, but so long as it doesn't negatively affect sales there's nothing for the manufacturer to worry about.</p>\n",
"score": 0
}
] |
[
"united-states",
"civil-law",
"disclaimers",
"product-liability"
] |
Is citing research publications in a blog post enough, or are there additional rights one must obtain?
| 4 |
https://law.stackexchange.com/questions/88550/is-citing-research-publications-in-a-blog-post-enough-or-are-there-additional-r
|
CC BY-SA 4.0
|
<p>Say someone is writing a blog post on some science topic, and wants to show some mathematical expressions in the piece. What are the <em>rights</em> one has in showing equations that appear in published articles?</p>
<p>I imagine if the equation is a well-established, oft-used equation that nobody owns the expression/content (e.g. the equation for entropy or mutual information).</p>
<p>But if the equation is the creation of the author of some publication, as in the author is expressing some unique mathematical expression, obviously the publication should be referenced. But is referencing enough? Are there additional <em>rights</em> one must obtain from the publication and/or author in order to show this content?</p>
<p>For example, in theses one must obtain the rights to reference articles <em>in addition to</em> providing the citations.</p>
<p>One can imagine how arduous this would be (obtaining rights) for frequently published blog posts.</p>
<p>And how would this differ between say ArXiv which is open access, and a publication that is pay-only, like Elsevier or Nature?</p>
| 88,550 |
[
{
"answer_id": 88551,
"body": "<blockquote>\n<p>how would this differ between say ArXiv which is open access, and a\npublication that is pay-only, like Elsevier or Nature?</p>\n</blockquote>\n<p>It wouldn't.</p>\n<blockquote>\n<p>But if the equation is the creation of the author of some publication,\nas in the author is expressing some unique mathematical expression,\nobviously the publication should be referenced. But is referencing\nenough? Are there additional rights one must obtain from the\npublication and/or author in order to show this content?</p>\n</blockquote>\n<p>Laws of nature, including purported laws of nature, are not protected by copyright. So, usually, key equations in an academic paper aren't protected by copyright law.</p>\n<p>Referencing the work is important as a matter of academic ethics, but is legally irrelevant.</p>\n<p>Copying of exposition by the author beyond laws of nature is permitted as fair use if it is limited to quotations necessary for academic discussion and criticism, but copying of an entire work would not be permissible fair use in most cases and would constitute copyright infringement. Of course, there is a large gray area between those extremes.</p>\n",
"score": 6
},
{
"answer_id": 88569,
"body": "<p>After researching, and talking to publishers, this seems like the most appropriate approach:</p>\n<p>While nobody can own math, or the underlying physical/informational principles, the <strong>exact expression</strong> and <strong>flow of arguments</strong> is considered "content" that requires special copyright permission to be obtained for use.</p>\n<p>For example, <strong>Elsevier</strong> requires one to obtain permission for using content via <a href=\"http://www.Copyright.com\" rel=\"nofollow noreferrer\">www.Copyright.com</a>. This includes using a mathematical expression from one of their papers.</p>\n<p><strong>arXiv</strong> does not force authors to transfer any copyright to them. Instead, only an irrevocable right to redistribute the content is obtained. <em>However</em>, depending on the specific article, there may have been subsequent <strong>copyright transfer</strong>, in the case of published articles, or the article may assert a license that is incompatible with commercial publication.</p>\n<p>So even for arXiv, they request that one contacts the copyright holder (author/publisher) for additional information, and specifics related to the work.</p>\n<p>So, I believe the <strong>most prudent approach</strong> when doing your own technical writing (e.g. blogpost, textbook, etc.) is <strong>don't copy <em>anything</em> verbatim</strong>, including mathematical equations/formulae. Since there is no exact replication of content this would not constitute any kind of plagiarism or copyright violation. Again, nobody can own math or physical principles in general.</p>\n<p>If your writing is inspired by a given paper, obviously cite the work. But recast the mathematics in your own fashion (your own specific arrangement of symbols). Obviously the use and structure of the math you present in your writing should differ in argument/flow than where the inspired math came from.</p>\n<p>If you must reuse the actual content (exactly same equation and/or flow of arguments) then both cite the original work <em>and</em> obtain the additional permissions from the publisher or author.</p>\n<p>I am not a lawyer, so I would be happy to hear the opinions of those more knowledgable in this area.</p>\n",
"score": 0
}
] |
[
"copyright",
"publishing"
] |
Can someone's legal name be all lowercase?
| 35 |
https://law.stackexchange.com/questions/88477/can-someones-legal-name-be-all-lowercase
|
CC BY-SA 4.0
|
<p>Can a person's legal name be all lowercase or all capital letters or some strange mix, or are there restrictions about it? Or maybe capitalization is not even part of the name, it is just a part of grammar for proper nouns, with traditional/linguistic exceptions for names like "McDonald" or "von Neumann"?</p>
<p>(This is just a curiosity question so it doesn't matter to me which countries/states the answers are based on.)</p>
| 88,477 |
[
{
"answer_id": 88486,
"body": "<blockquote>\n<p>Or maybe capitalization is not even part of the name</p>\n</blockquote>\n<p>That's pretty much it. No court would fail to recognize the name "John Doe" in the string "JOHN DOE"; similarly, if someone established or claimed to establish their legal name as "john doe" then the only violations committed by someone writing it as "John Doe" or "JOHN DOE" would be violations of style, perhaps, or of etiquette.</p>\n<p>Now, just in case this is related to the crackpot conspiracy theorists from the "sovereign citizen" or "freeman on the land" movements, a few words are in order. If you don't already know about this, you might find it interesting. In general, this is a school of thought that attempts to establish the illegitimacy of government authority by employing a number of illogical and willful misinterpretations of (often obsolete, foreign, or otherwise irrelevant) legal texts. Among these is the idea that the capitalization of a name is significant.</p>\n<p>From Wikipedia's <a href=\"https://en.wikipedia.org/wiki/Sovereign_citizen_movement\" rel=\"noreferrer\">article on the sovereign citizen movement</a>:</p>\n<blockquote>\n<p>In a criminal case in 2013, the United States District Court for the Western District of Washington noted:</p>\n<blockquote>\n<p>Defendant [Kenneth Wayne Leaming] is apparently a member of a group loosely styled "sovereign citizens". The Court has deduced this from a number of Defendant's peculiar habits.</p>\n<p>First, like Mr. Leaming, sovereign citizens are fascinated by capitalization. They appear to believe that capitalizing names have some sort of legal effect. For example, Defendant writes that "the REGISTERED FACTS appearing in the above Paragraph evidence the uncontroverted and uncontrovertible FACTS that the SLAVERY SYSTEMS operated in the names UNITED STATES, United States, UNITED STATES OF AMERICA, and United States of America ... are terminated nunc pro tunc by public policy, U.C.C. 1-103 ..." (Def.'s Mandatory Jud. Not. at 2.) He appears to believe that by capitalizing "United States", he is referring to a different entity than the federal government. For better or for worse, it's the same country.</p>\n</blockquote>\n</blockquote>\n<p>From its <a href=\"https://en.wikipedia.org/wiki/Strawman_theory\" rel=\"noreferrer\">article on strawman theory</a>:</p>\n<blockquote>\n<p>One argument used by proponents of the strawman theory is based on a misinterpretation of the term capitis deminutio, used in ancient Roman law for the extinguishment of a person's former legal capacity. Adherents to the theory spell the term "Capitis Diminutio", and claim that capitis diminutio maxima (meaning, in Roman law, the loss of liberty, citizenship, and family) was represented by an individual's name being written in capital letters, hence the idea of individuals having a separate legal personality.</p>\n<p>Proponents of the theory believe the evidence is found on the birth certificate itself. Because many certificates show all capitals to spell out a baby's name, JOHN DOE (under the Strawman theory) is the name of the "straw man", and John Doe is the baby's "real" name. As the child grows, most legal documents will contain capital letters, which means that his state-issued driver's license, his marriage license, his car registration, his criminal court records, his cable TV bill, correspondence from the IRS, etc., pertain to his strawman and not his sovereign identity.</p>\n</blockquote>\n<p>(Note that there was no distinction between majuscule and minuscule letters in the Latin alphabet in ancient Roman times; this distinction <a href=\"https://latin.stackexchange.com/q/332/6736\">arose in the 8th century</a>, a few hundred years after the fall of the western empire.)</p>\n<p>And finally, from <a href=\"https://www.canlii.org/en/ab/abqb/doc/2012/2012abqb571/2012abqb571.html\" rel=\"noreferrer\"> Meads v. Meads, 2012 ABQB 571 (CanLII)</a>:</p>\n<blockquote>\n<p>[323] Given the obsessive focus of the OPCA movement for documentary and procedural formalities (real or imagined), it is unsurprising that they have developed a wealth of arbitrary name-related rules. For example, Canadian courts have evaluated and rejected the following nomenclature-related schemes:</p>\n<ul>\n<li><p>a person is not immune from court action if that person identifies himself by an entirely different name, for example, “Mythlim‑Axkw” instead of “Kazimierz Chester Crischuk”: R. v. Crischuk, 2010 BCSC 716 at paras. 31-32, affirmed 2010 BCCA 391, 2010 D.T.C. 5141; Shakes v. Canada (Public Safety and Emergency Preparedness), 2011 CanLII 60494 at para. 11 (I.R.B.); Services de financement TD inc. c. Michaud, 2011 QCCQ 14868 at para. 6;</p>\n</li>\n<li><p>structuring a name in the format of [Firstname]-[Middlename]: [Lastname], i.e. “David-Kevin: Lindsay”, does not mean one is a separate person from “David Kevin Lindsay”: R. v. Lindsay, 2006 BCCA 150 at para. 3, 265 D.L.R. (4th) 193; R. v. Lindsay, 2008 BCPC 203 at para. 7, [2009] 1 C.T.C 86, affirmed 2010 BCSC 831, [2010] 5 C.T.C. 174, affirmed 2011 BCCA 99, 302 B.C.A.C. 76, leave refused [2011] S.C.C.A. No. 265;</p>\n</li>\n<li><p>structuring a name in the format [Firstname] of the [family] of [Lastname], i.e. “John Donald of the family Sargent”, does not mean one is a separate person from “John Donald Sargent”: R. v. Sargent, 2004 ONCJ 356 at para. 29, [2005] 1 C.T.C. 448;</p>\n</li>\n<li><p>there is no legal distinction between a name in upper case and lower case letters, and a name all in capital letters: R. v. Linehan, 2000 ABQB 815 at para. 13, 276 A.R. 383; R. v. Loosdrecht, 2008 BCPC 400 at para. 36, [2009] 4 C.T.C. 49; R. v. Lemieux, 2007 SKPC 135 at paras. 45-46, [2008] 2 C.T.C. 291;</p>\n</li>\n<li><p>a claim that the person named in litigation is incorrectly identified by a “war name” or “nom de guerre” is irrelevant: Canada v. Galbraith, 2001 BCSC 675 at paras. 25-29, 54 W.C.B. (2d) 504; and</p>\n</li>\n<li><p>a name all in capitals is not a “legal fiction” and not different from “a flesh, blood and bone man”: Ontario (Director, Family Responsibility Office) v. Boyle, [2006] O.J. No. 2181 (QL) at paras. 3-5, 149 A.C.W.S. (3d) 127 (Ont. Sup. Ct. J.).</p>\n</li>\n</ul>\n</blockquote>\n",
"score": 70
},
{
"answer_id": 88482,
"body": "<p>This depends on jurisdiction and the general answer is yes/no/both/either/it depends.</p>\n<p>See this well-known essay about what is or isn't true about names in general: <a href=\"https://www.kalzumeus.com/2010/06/17/falsehoods-programmers-believe-about-names/\" rel=\"nofollow noreferrer\"><em>Falsehoods Programmers Believe about Names</em></a> by Patrick McKenzie (and a number of other renditions of the same name...)</p>\n<p>In <em>very</em> brief, it is not universally true that all persons have a name, or a single name, or a single canonical name, or a small set of canonical names (let alone unique, or adhering to any particular orthographic convention, or fixed over time).</p>\n",
"score": 20
},
{
"answer_id": 88505,
"body": "<h2>Lowercase names are impossible in <a href=\"/questions/tagged/japan\" class=\"post-tag\" title=\"show questions tagged 'japan'\" aria-label=\"show questions tagged 'japan'\" rel=\"tag\" aria-labelledby=\"japan-container\">japan</a>, <a href=\"/questions/tagged/prc\" class=\"post-tag\" title=\"show questions tagged 'prc'\" aria-label=\"show questions tagged 'prc'\" rel=\"tag\" aria-labelledby=\"prc-container\">prc</a>, <a href=\"/questions/tagged/rc\" class=\"post-tag\" title=\"show questions tagged 'rc'\" aria-label=\"show questions tagged 'rc'\" rel=\"tag\" aria-labelledby=\"rc-container\">rc</a>, <a href=\"/questions/tagged/rok\" class=\"post-tag\" title=\"show questions tagged 'rok'\" aria-label=\"show questions tagged 'rok'\" rel=\"tag\" aria-labelledby=\"rok-container\">rok</a>, <a href=\"/questions/tagged/dprk\" class=\"post-tag\" title=\"show questions tagged 'dprk'\" aria-label=\"show questions tagged 'dprk'\" rel=\"tag\" aria-labelledby=\"dprk-container\">dprk</a></h2>\n<p>Any name that is on a Japanese identity document (the "my Number" card/ID card) or in the official citizen register is written in Hiragana, Katakana or Kanji. None of these scripts support capitalization. Latin letters ("Romanji") do not appear on documents that are not international passports - where they only appear as a transliteration of the Japanese document entry. An exception to the no latin characters on internal documents are <em>Residency cards</em> for foreigners that do not have Japanese Citizenship, their cards contain the subject name, all in monospace capital letters. However, naturalization requires choosing a name that is written in Hiragana, Katakana, or Kanji (there's a list which are allowable).</p>\n<p>Similarly, the Chinese script does not support capitalization either, nor does Hangul. In both Chinas and Koreas, you need the name to be in the respective script as a citizen.</p>\n<p>As a result, Japan, the People's Republic of China, the Republic of China, The Republic of Korea, and the Democratic People's Republic of Korea all don't support a name in lowercase. Or uppercase for the matter, because all the letters are same sized.</p>\n<h2>You have misconceptions about names? Here are some more that don't work on Asian Passports!</h2>\n<p>Oh, and for the matter: the 5 are just the tip of the iceberg, and don't conform to the following <a href=\"https://www.kalzumeus.com/2010/06/17/falsehoods-programmers-believe-about-names/\" rel=\"nofollow noreferrer\"><em>programmer misconceptions</em></a> on names...</p>\n<blockquote>\n<ol start=\"9\">\n<li>People’s names are written in ASCII. [ASCII is only Latin letters]</li>\n<li>People’s names are written in any single character set. [Japanese names can legally use all three!]</li>\n</ol>\n</blockquote>\n<blockquote>\n<ol start=\"12\">\n<li>People’s names are case sensitive.</li>\n<li>People’s names are case insensitive. [There is no case in those languages]</li>\n</ol>\n</blockquote>\n<blockquote>\n<ol start=\"16\">\n<li>People’s names are not written in ALL CAPS.</li>\n<li>People’s names are not written in all lower case letters. [Uh, there's no case?]</li>\n<li>People’s names have an order to them. Picking any ordering scheme will automatically result in consistent ordering among all systems, as long as both use the same ordering scheme for the same name. [So not true! If you transliterate to Latin characters, you also swap family names and given names around or not, depending on who is the recipient!]</li>\n</ol>\n</blockquote>\n<blockquote>\n<ol start=\"30\">\n<li>There exists an algorithm which transforms names and can be reversed losslessly. (Yes, yes, you can do it if your algorithm returns the input. You get a gold star.) [Try that with the <a href=\"https://jisho.org/search/riku%20%23names\" rel=\"nofollow noreferrer\">almost 400 different names that contain Riku</a> in Japanese, of which only few are duplicative, and all have different connotations and meanings]</li>\n</ol>\n</blockquote>\n",
"score": 13
},
{
"answer_id": 88495,
"body": "<p>In the U.S., names are generally left to the choice of parents and the person who bears the name, though as a convention of common languages spoken in the U.S., the name is likely to be given capital letters where appropriate. On some standardized forms, (I believe the SATs did this) names would be filled out in a field that was two rows with each column for one letter. The first row would have all the capital letters while the second row would use all lowercase letters. Leaving a column blank would indicate a space. So someone named McDonald would have the M and first instance of D in the upper column and all other letters in the lower column.</p>\n<p>Other nations that are more controlling on legitimate names (not uncommon in nations with nearly homogenous ethnicities like Sweden) it's likely that the name will be properly capitalized in its acceptable spelling variants.</p>\n<p>Usually, the signature is not about identity but acknowledging the document was accepted by leaving a unique mark on the document. Forgery detection relies on consistent characteristics of the signature (like how Walt Disney used the tail of the "y" in his name to underline the full signature) to determine authenticity. Someone who would always sign with all lower case letters is still valid because it creates a unique identity to the signature that a forger might not know (and it is impossible to make the same signature twice, so if the signer was not known to use an autopen, the signature may look too similar to be real.).</p>\n",
"score": 7
}
] |
[
"name",
"birth-certificate",
"frivolous-arguments",
"opca"
] |
Do I have the right to protect my personal property ?
| -2 |
https://law.stackexchange.com/questions/22837/do-i-have-the-right-to-protect-my-personal-property
|
CC BY-SA 4.0
|
<p>In most part of US, people have the right to protect their own personal property with an appropriate amount of force.With this concept of personal property and a persons right to protect as background, the scenario is:-</p>
<p>An intruder enters your home using the internet, then intrudes into your personal computer which is inside the home,steals data and decamps. </p>
<p>Can the property owner use any form of force to protect their property using violence ? Would such an attack be considered lawful ? ( You called 911 and the dispatcher thought that the call deserved a 51-50 psychiatric hold, while the intruder stole documents from your laptop and installed a ransomware)</p>
<p>How would you "defend" your property in this situation ? If you "attacked" the intruder, would it be deemed unlawful ? </p>
| 22,837 |
[
{
"answer_id": 22843,
"body": "<p>I interpret the sentence "intruder enters your home using the internet" in the question as not as <em>physically</em> entering the home but as <em>virtually</em> entering the home, in other words hacking into the victim's home network remotely. When that interpretation is incorrect, please comment.</p>\n<hr />\n<p>Note that an action can only be considered <a href=\"http://legal-dictionary.thefreedictionary.com/self+defense\" rel=\"nofollow noreferrer\">self-defense</a> when the self-defense prevents a crime currently in progress from being completed. When A hacked into B's computer and then B punches A in the face later, that's not self-defense, that's illegal <a href=\"http://legal-dictionary.thefreedictionary.com/Vigilante+justice\" rel=\"nofollow noreferrer\">vigilante justice</a>.</p>\n<p>The self-defense argument would only work if it actually prevents the completion of the crime. For example, if A and B were in the same room, A sees B hacking into A's computer <em>right now</em> and uses physical force to prevent B from completing the hack (like yanking the keyboard out of B's hands).</p>\n<p>Also keep in mind that the intensity of self-defense must be appropriate for the severity of the crime. What is and is not appropriate is for a court to decide in each individual case, and the guidelines that are to be applied vary from jurisdiction to jurisdiction. But causing bodily harm to people when the crime they are committing does not cause bodily harm is often <strong>not</strong> considered within the limits of self-defense.</p>\n<p>For further information about what is and is not allowed in self-defense, I recommend the <a href=\"http://lawcomic.net/guide/?p=864\" rel=\"nofollow noreferrer\">series about self-defense by Law Comic</a>.</p>\n",
"score": 6
}
] |
[
"international",
"self-defense",
"data-protection",
"laws-of-war"
] |
What can someone do when scammed in the crypto world? How to report the scam and recover your crypto?
| 2 |
https://law.stackexchange.com/questions/79627/what-can-someone-do-when-scammed-in-the-crypto-world-how-to-report-the-scam-and
|
CC BY-SA 4.0
|
<p>Do the police work against scammers and fraudster in the crypto world?</p>
<p>How can someone report to law enforcement a fraud in crypto space?</p>
| 79,627 |
[
{
"answer_id": 79628,
"body": "<p><strong>How can someone report to law enforcement a fraud in crypto space?</strong></p>\n<p><a href=\"/questions/tagged/united-kingdom\" class=\"post-tag\" title=\"show questions tagged 'united-kingdom'\" rel=\"tag\">united-kingdom</a></p>\n<p>The City of London Police have the national lead for fraud and, via <a href=\"https://www.actionfraud.police.uk/reporting-fraud-and-cyber-crime\" rel=\"noreferrer\">Action Fraud</a>, they adminster the online <a href=\"https://reporting.actionfraud.police.uk/login\" rel=\"noreferrer\">reporting tool</a> or one can make a report by...</p>\n<blockquote>\n<p>... calling 0300 123 2040 Monday to Friday 8am - 8pm. If you are calling from abroad please call +44 300 123 2040.</p>\n</blockquote>\n",
"score": 5
},
{
"answer_id": 88583,
"body": "<p>Legally speaking, there is no such thing as "crypto space". Everyone operates within their local legal system. <a href=\"https://en.wikipedia.org/wiki/Bankruptcy_of_FTX\" rel=\"nofollow noreferrer\">The recent scandal around FTX/Alameda</a> is a good example that shows that the "crypto world" can't just ignore the laws of the "real world"</p>\n<p>Even though most legal systems do not recognize cryptocurrency as legal tender, cryptographic tokens (fungible or not) can still be considered a property asset with a non-negligible monetary value. So when someone causes another person to lose a crypto-asset, then they can potentially be held liable for damages in a civil lawsuit.</p>\n<p>And there is usually criminal liability, too. Using fraudulent methods to cheat someone out of their property is usually just as illegal as cheating someone out of legal tender. Further, if scammers use hacking to accomplish their goal, there are certain "anti-hacking laws" that criminalize unauthorized access and manipulation of computer systems. Those can also be employed against crypto scammers.</p>\n<p>But one problem with crypto technology is that they are often designed in a way that attempts to anonymize participants. You can't take legal actions when you don't know against whom. However, crypto is often not as anonymous as people think it is. At some point a scammer will have to convert cryptocurrency into legal tender. At that moment they have to interact with the banking system, which links their identity on the distributed ledger to their real identity. And the public distributed ledger can serve as very strong evidence in court that certain transactions did indeed happen.</p>\n<p>And then there is the problem that law enforcement organizations around the world tend to be a bit behind the time and in many cases lack the know-how and resources to properly deal with cryptocurrency-related crime. So it is very well possible that when you report a cryptocurrency-related crime against you, that police and prosecutors don't really understand what you are trying to tell them or how to investigate the matter. So when it's not about too much money, they might drop the case because the effort to investigate is too high compared to the severity of the crime.</p>\n",
"score": 3
}
] |
[
"criminal-law",
"fraud",
"cryptography",
"law-enforcement"
] |
How can an agent represent more than one principal without receiving secret commissions?
| 1 |
https://law.stackexchange.com/questions/88576/how-can-an-agent-represent-more-than-one-principal-without-receiving-secret-comm
|
CC BY-SA 4.0
|
<p>Let's suppose an agent wishes to sell products on behalf of an indefinite number of principals and the principals are all direct competitors manufacturing the same kind of widgets.</p>
<p>How might the agent provide sufficient disclosure to receive informed consent from each principal to avoid the legal issue of secret commissions? Would it be sufficient to include some type of consent clause upfront in the agency agreement?</p>
| 88,576 |
[
{
"answer_id": 88582,
"body": "<p>An agent can't represent multiple direct competitors selling identical goods, without breaching the agent's fiduciary duty of loyalty to the principals involved. The conflict is so severe that it can't be waived.</p>\n<p>Someone might be what is called in my part of the world a "transaction broker", a "broker", a "wholesaler", or a "consignment seller", who is not an agent for any party, and is instead an independent firm that purchases good from various manufacturers and resells those goods to third parties for this firm's own benefit, or who facilitates sales between two other parties for this firm's own benefit (rather than as an agent for either party to the sale). In financial markets, individuals known as "market makers" also act in something approximating this role.</p>\n<p>But, the term "agency" inherently denotes a fiduciary relationship that puts the principal first, allows the agent to act on behalf of the principal, has knowledge received by the agent attributed to the principal, etc. This just can't be done. The role described in the question is not the role of an agent.</p>\n",
"score": 1
}
] |
[
"england-and-wales",
"agency"
] |
Is there a hidden meaning in this EU regulation?
| 4 |
https://law.stackexchange.com/questions/88559/is-there-a-hidden-meaning-in-this-eu-regulation
|
CC BY-SA 4.0
|
<p>In <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02014R0540-20190527&from=EN" rel="nofollow noreferrer">Regulation (EU) No 540/2014</a> Annex VIII Section IV is stated, that:</p>
<blockquote>
<p>"Switch</p>
<p>Any mechanism to enable the driver to halt the operation of an AVAS (‘pause function’) shall comply with the requirements of paragraph 6.2.6 of UNECE Regulation No 138, Supplement 1 to the original version of the Regulation, 01 series of amendments (OJ L 204, 5.8.2017, p.112)."</p>
</blockquote>
<p>The <a href="https://unece.org/fileadmin/DAM/trans/main/wp29/wp29regs/2017/R138r1e.pdf" rel="nofollow noreferrer">UNECE Regulation No 138</a> paragraph 6.2.6 -</p>
<blockquote>
<p>"Pause function</p>
<p>Any pause function as defined in paragraph 2.7. shall be prohibited"</p>
</blockquote>
<p>2.7 says -</p>
<blockquote>
<p>"Pause function means a mechanism to enable the driver to halt the operation of an AVAS."</p>
</blockquote>
<p>What is purpose then to link to different document, instead of just saying in 540/2014, that Switch for AVAS is prohibited?</p>
<p>The <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:42017X0071(01)&qid=1674633475502&from=EN" rel="nofollow noreferrer">mentioned supplement 1</a> also says</p>
<blockquote>
<p>"Paragraph 6.2.6, amend to read:
‘6.2.6. Pause function
Any pause function as defined in paragraph 2.7 shall be prohibited.’"</p>
</blockquote>
| 88,559 |
[
{
"answer_id": 88573,
"body": "<h2>If you say something twice, eventually they’ll be in conflict</h2>\n<p>Law codes are <em>vast</em>. They deal with many things and sometimes, as here, they deal with the same thing twice. If they duplicated themselves, rather than cross-referencing, every time the law was changed, every single instance would have to be tracked down and changed. Admittedly, that is not as big a problem with digital codes (but still not infallible and definitely time-consuming) but when these would have to be found by hand, it was damn near impossible. Written this way, change it once and it’s changed everywhere.</p>\n<p>My first boss taught me that. The fired was engineering rather than law but the principle is the same.</p>\n",
"score": 6
},
{
"answer_id": 88579,
"body": "<h2>Note the jurisdictions at play.</h2>\n<p>These are different bodies. The EU regulatory agency is aiming to be conformant with the UN regulatory agency. They are saying "whatever policy the UN comes up with, we're going with that".</p>\n<p>This is done because harmonization is good for business. What's bad for business is every State having a different standard that every company in those markets must learn and certify to. If you're trying to sell an EU vehicle in Ukraine or Brazil, and Brazil and Ukraine reference the same UN rules, you're all set.</p>\n<h2>This allows them to keep up with rapidly evolving technical fields.</h2>\n<p>It's like a "symlink", or in legal terms it's called <strong>Incorporating By Reference</strong>. For instance most US states and central American countries have adopted as their electrical code the NFPA's NEC.... rather than write their own from scratch like Canada did. Each State has a tiny list of amendments, but generally products can be built to a national market.</p>\n<p>By contrast, the alternative is a "copy-paste" - for instance the nonprofit endowment law UPMIFA was developed by a nonprofit then copied, with occasional modifications, into 49 state laws.</p>\n<p>EVs are a rapidly moving field. Technical innovations are flying fast, and responsible central bodies need to make good decisions. Things are ugly if they don't. For instance UL and CSA, who hand in hand write US and Canada rules, decided sufficient safeguards were in place on a special electrician's WiFi login for initial setup of EV wall charge units. Ontario regulators heard "WiFi setup from a phone", panicked, and banned it, making the whole Ontario market more hostile to EVs since most wall units use that feature.</p>\n<h2>Also, harmonization is good for trade.</h2>\n<p>When you <em>copy</em> rules, you incur a <em>technical debt</em> where your regulators must constantly check to keep your rules in sync. <em>And this also increases the task load for any company trying to sell into your markets, which deters competition in and out - protects your markets but cages your manufacturers</em>.</p>\n<p>Such protectionism tends to be discussed harshly at trade conferences such as G20 or GATT. "We literally incorporate UN rules" (why don't you) is an excellent rebuke.</p>\n",
"score": 2
},
{
"answer_id": 88577,
"body": "<p>Just complementing DaleM's answer, the principle is called <a href=\"https://en.m.wikipedia.org/wiki/Don%27t_repeat_yourself\" rel=\"nofollow noreferrer\">DRY (Don't Repeat Yourself)</a>. Although this formulation primarily belongs to the domain of software engineering, it perfectly fits law as well.</p>\n",
"score": 0
}
] |
[
"european-union",
"regulations"
] |
Is it illegal to temporarily park in front of my garage to wash my car if the townhouse association allows it and there are no posted signs?
| 2 |
https://law.stackexchange.com/questions/88554/is-it-illegal-to-temporarily-park-in-front-of-my-garage-to-wash-my-car-if-the-to
|
CC BY-SA 4.0
|
<p>I live in a townhouse community and received a packet with the association rules when I moved here. It states that you may temporarily park in front of your garage for purposes such as loading, unloading, or washing cars. The streets are wide enough for a large vehicles to easily pass 2 large parked vehicles as there are only garage doors on either side and no driveways or sidewalks. All sidewalks are along the front of the townhomes while garages are at the rear. There are no signs posted anywhere prohibiting parking yet the police regularly ticket residents. Is this legal?</p>
| 88,554 |
[
{
"answer_id": 88574,
"body": "<p>It is impossible from your description to tell where the roads and driveways are. <a href=\"https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=VEH&division=11.&title=&part=&chapter=9.&article=\" rel=\"nofollow noreferrer\">CVC 22500 ff</a> gives some general rules that apply across the state, regarding parking. It <em>is</em> illegal to park in front of a driveway, and one typically enters a garage via a driveway, so parking in front of a garage is illegal. If the HOA says it is legal, they may be over-stepping their authority. Also, your municipality is allowed to impose parking restrictions. It is reasonably likely that these tickets are being given legally, though if you feel that the police are making a legal error, you could pursue the matter in court – perhaps they have misinterpreted the law or are not in possession of all of the facts.</p>\n",
"score": 2
},
{
"answer_id": 88572,
"body": "<p>Washing your car on the street is <a href=\"https://codelibrary.amlegal.com/codes/los_angeles/latest/lamc/0-0-0-166764\" rel=\"nofollow noreferrer\">prohibited</a> in Los Angeles, probably other California counties or cities, too.</p>\n<p>In addition, it's discouraged by water utilities because the dirty water goes down storm drains (plus, of course, the issue of the recent drought).</p>\n",
"score": 0
}
] |
[
"california",
"is-x-legal"
] |
How often do people who make complaints that lead to acquittals face repercussions for making false complaints?
| 18 |
https://law.stackexchange.com/questions/88483/how-often-do-people-who-make-complaints-that-lead-to-acquittals-face-repercussio
|
CC BY-SA 4.0
|
<p>In response to a recent question and others related to it, it appears that defendants who are found guilty, despite lying, are rarely punished further apart from the conviction.</p>
<p>However, what happens if the allegations are found to be patently fabricated? The most controversial case of this would be in accusations of sexual assault. In this case, the defendant is acquitted, but how often does the complainant, whose complaints are found to have been concocted for vindictive purposes, face consequences for making the false complaint?</p>
| 88,483 |
[
{
"answer_id": 88489,
"body": "<p>Prosecutions for falsely reporting rape are <a href=\"https://law.stackexchange.com/questions/88440/how-common-actually-are-perjury-proceedings/88471#88471\">at least as common as perjury convictions</a> (and usually don't count as perjury since the initial report is rarely made under oath), and even when charges are brought by prosecutors involving false statements made under oath, prosecutors tend to favor lesser misdemeanor false reporting charges over perjury charges. <em>See, e.g.</em>, cases with news reports of such cases in Colorado and Wyoming on <a href=\"https://www.justice.gov/usao-wy/pr/lander-woman-sentenced-making-false-accusations-sexual-assault\" rel=\"noreferrer\">May 24, 2021</a>, <a href=\"https://www.denverpost.com/2015/09/11/denver-woman-arrested-for-making-false-rape-accusation/\" rel=\"noreferrer\">September 11, 2015</a>, <a href=\"https://www.9news.com/article/news/crime/woman-convicted-for-false-rape-report/73-249847150\" rel=\"noreferrer\">August 29, 2014</a>, and <a href=\"https://www.denverpost.com/2008/03/18/woman-accused-of-false-rape-report/\" rel=\"noreferrer\">March 18, 2008</a>.</p>\n<p>This isn't to say that these cases are terribly common although they tend to generate headlines when they are brought. The State of Colorado commenced <a href=\"https://www.courts.state.co.us/userfiles/file/Administration/Planning_and_Analysis/Annual_Statistical_Reports/2021/FY2021%20Annual%20Statistical%20Report.pdf\" rel=\"noreferrer\">1,801 felony sex offense cases in the 2021 fiscal year</a>, for example, which was not atypical, and false reporting of sex offense cases are brought in Colorado maybe once every year or two.</p>\n<p>The conviction rate in sex offense cases that are prosecuted isn't 100%, but something on the order of 90%-95% of sex offense cases result in a guilty plea, and well over half of the remaining cases result in convictions at trial. As an order of magnitude estimate, perhaps one in fifty to one in two hundred cases where sex offense charges are pursued, but there is not a conviction, gives rise to false reporting charges against the alleged victim.</p>\n<p>Many acquittals and dismissals of charges that do occur are best characterized as cases where there is a reasonable doubt because jurors believe that it is reasonably possible that there may have been a good faith witness misidentification, or because charges were dismissed because a confession or evidence obtained in a search was unlawfully obtained and had to be suppressed. It would be very rare for a defendant to be acquitted (after a judge in a preliminary hearing found that probable cause was present) because the jury believed that the testimony of a victim was believed to be intentionally false, and there is no way to tell from the verdict itself that the jury reached this conclusion.</p>\n<p>The problematic aspect of charges of false reporting of sex offenses is the there have been <a href=\"https://en.wikipedia.org/wiki/An_Unbelievable_Story_of_Rape\" rel=\"noreferrer\">famous instances of women being convicted for falsely reporting rape</a> (see also <a href=\"https://isthmus.com/news/news/national-rape-story-has-madison-parallels/\" rel=\"noreferrer\">here</a> focusing on a different case), only to subsequently have the allegations for which the victims were punished confirmed to be true with DNA and other evidence.</p>\n<p>The number of cases where true allegations of sex offenses are made but not pursued because law enforcement finds the allegations to not be credible, almost surely greatly exceeds the number of cases where false reports of sex offenses are made to police, although this ratio varies greatly from one police department to another based upon the institutional culture of the police department in question.</p>\n",
"score": 22
},
{
"answer_id": 88485,
"body": "<p><sup>This (like most of the other answers) is answer to an <a href=\"https://law.stackexchange.com/revisions/88483/2\">earlier version</a> of the question.</sup></p>\n<p>I note you are asking about complaints <em>that lead to acquittals</em>. This requires the prosecution to bring a charge and to proceed to trial and to a verdict. The denominator in any analysis is thus restricted to the number of trials that arrived at a <em>verdict</em> that was an acquittal.</p>\n<p>In sexual assault cases that result in an acquittal, it generally isn't the case that the acquittal is because the complainant's evidence is discovered to be false, let alone a lie or perjury.</p>\n<p>In a sexual assault prosecution, acquittal will result simply from the Crown failing to prove its case beyond a reasonable doubt. Failure to prove guilt beyond a reasonable doubt does not equate with the complainant's evidence being found false. <strong>And even if it somehow were found that the complainant's evidence were not true, that could be for many reasons short of perjury.</strong></p>\n<p>Given this understanding, in the circumstances where a complainant has been found to have knowingly provided false testimony, the answer will simply be a subset of the answer here: <a href=\"https://law.stackexchange.com/q/88440/46948\">How common actually are perjury proceedings?</a>. <a href=\"https://law.stackexchange.com/a/88471/46948\">ohwilleke's answer</a> concludes, "perjury prosecutions are almost never brought."</p>\n",
"score": 11
},
{
"answer_id": 88493,
"body": "<p>Within the US, criminal trials generally end in one of two ways - "Guilty" or "Not [Proven] Guilty". There is no "innocent" finding. As a result, many defendants are believed to be guilty regardless of the verdict. For some crimes, such as sexual offenses, or for some professions, the accusation alone may be enough to ruin a career or life. For example, <a href=\"https://work.chron.com/apply-teachers-certification-dismissed-charges-28266.html\" rel=\"noreferrer\">even dismissed charges can prevent a teacher from being allowed to have a teaching certificate.</a> Servicemembers and police accused of domestic violence are often <a href=\"https://en.wikipedia.org/wiki/Brady_Handgun_Violence_Prevention_Act#Provisions\" rel=\"noreferrer\">unable to carry a weapon</a> and may <a href=\"https://www.police1.com/ethics/articles/charges-dropped-against-former-wash-cop-falsely-accused-of-assault-PajRCemHY0V2uTbt/\" rel=\"noreferrer\">face repercussions even if acquitted</a>.</p>\n<p>Correcting the damage done to the reputation of such an individual, particularly those which carry a lasting stigma, is a job most often performed by the civil courts. There, the former defendant can sue their accuser, seeking redress for the accusations. Prosecuting the accuser for perjury/false statement/false report would, in many cases, be superfluous since the civil court has a lower standard of proof and is ideally better able to "balance the scales" - taking money from the guilty party and giving it to the harmed party, rather than putting the guilty party in jail and/or making them pay a fine to the state.</p>\n<p>Of course, a fair number of accused, having spent months to years going through the justice system, just want to "put it all behind them" - or are actually guilty and don't want to risk the further shame of being publicly proven to have, say, <a href=\"https://en.wikipedia.org/wiki/Murder_trial_of_O._J._Simpson#Civil_trial\" rel=\"noreferrer\">gotten away with murder</a> by attacking their accuser.</p>\n<p>Statistics here seem to be hard to come by for a layperson, though it seems that there is a paywalled 1980 study in the American Law Journal which looked at 534 defamation cases between 1976 and 1979. There is <a href=\"https://www.osce.org/files/f/documents/1/0/41958.pdf\" rel=\"noreferrer\">another report</a> (cited by Wikipedia) which identifies that there were 16 criminal defamation cases from 1965-2014 with a final conviction, but no numbers for civil defamation cases due to those statistics not being gathered and published by the American court system.</p>\n",
"score": 8
},
{
"answer_id": 88490,
"body": "<blockquote>\n<p>what happens if the allegations are found to be false?</p>\n<p>what happens if the allegations are found to be patently fabricated?</p>\n<p>how often does the complainant ... face consequences for making the false complaint?</p>\n</blockquote>\n<p>In the course of the prosecution of the accused — <strong>never</strong>.</p>\n<p>That is because when someone is accused of a criminal offence, the allegations are <em>never</em> found to be false or "patently fabricated". Instead, they are found to be either:</p>\n<ul>\n<li>True beyond reasonable doubt ("guilty" verdict); or</li>\n<li><em>Not</em> true beyond reasonable doubt ("not guilty" verdict)</li>\n</ul>\n<p>The latter is not the same as "false" — pretty much as "not guilty" is not the same as "innocent". It just means that there isn't enough certainty in the allegations to convict the defendant.</p>\n<p>Acquittals may also happen <em>before</em> the case progresses to trial — if the charges get dismissed for outright insufficiency of the evidence for a possible conviction. Again, this doesn't mean that the allegations are false — only that they won't <em>possibly</em> prove to be true beyond reasonable doubt.</p>\n<p>The only typical recourse for the acquitted is to initiate a civil proceeding against the complainant. Then they might be able to prove on the balance of probabilities (preponderance of the evidence in the US) that the accusations were false / patently fabricated / concocted for vindictive purposes and fetch some compensation.</p>\n<p>Another one might be to initiate a private prosecution for perjury (in the UK, Canada, New Zealand). But this time the assertion that the accusations were false (while claimed to be true from the witness stand) needs to be proved beyond reasonable doubt.</p>\n",
"score": 4
},
{
"answer_id": 88546,
"body": "<blockquote>\n<p>However, what happens if the allegations are found to be patently fabricated? The most controversial case of this would be in accusations of sexual assault. In this case, the defendant is acquitted, but how often does the complainant, whose complaints are found to have been concocted for vindictive purposes, face consequences for making the false complaint?</p>\n</blockquote>\n<p>What you are suggesting would be a horrific injustice.</p>\n<p>The government decides to bring a criminal prosecution, not the complainant or the alleged victim.</p>\n<p>The government decides the strategy of the criminal trial. The government decides what charges to file. The government decides what theory of the crime to argue to the jury. The government decides what evidence to present. The government makes the closing argument. The government cross examines the defendant if they testify.</p>\n<p>Your suggestion to punish the complainant if the government fails makes absolutely no sense at all and is completely inconsistent with any sane concept of justice.</p>\n<p>For your suggestion to make any sense, those making accusations against the defendant would have to have a much different role in the trial. That would take away from the purpose of the trial -- to establish whether or not the prosecution can prove every element of the offense beyond a reasonable doubt.</p>\n<p>For the prosecution to bring the charges in the first place, they'd have to be convinced that they could prove that the accusation was true beyond any reasonable doubt. It's hard to imagine how they could then think they could prove that the accusation was false beyond any reasonable doubt just because they lost their case. That would have to be some truly unusual, and therefore very rare, circumstances. We should expect this to almost never happen.</p>\n",
"score": 0
}
] |
[
"criminal-law",
"sexual-assault",
"perjury",
"sexual-offences",
"any-jurisdiction"
] |
Is my title part of my legal name or does it hold any legal meaning?
| 8 |
https://law.stackexchange.com/questions/373/is-my-title-part-of-my-legal-name-or-does-it-hold-any-legal-meaning
|
CC BY-SA 3.0
|
<p>When filling out a form there is often a field for entering a title (such as Mr, Mrs, etc.). Am I free to put whatever I want in this field or do titles have a legal meaning?</p>
| 373 |
[
{
"answer_id": 376,
"body": "<p>Although your \"title\" may not of itself have legal force, that doesn't necessarily mean you can do as you please in every situation without fear of liability. For example, if you falsely claim to be a medical doctor or lawyer, you could find yourself liable for civil damages to defrauded clients; you may also violate criminal laws.</p>\n\n<p>(An anonymous bureaucratic form probably won't create that problem, because as another answerer pointed out nobody really cares or pays attention to titles most of the time. But stranger things have happened; and by \"form\" you could mean \"tax form\" or some declaration made under penalty of perjury. Lawyers generally avoid blanket \"that's fine\" answers, because there are almost always many ways that it might <em>not</em> be fine.)</p>\n",
"score": 10
},
{
"answer_id": 380,
"body": "<p>Unsurprisingly, it depends on the country, the title and the form, amongst other things. A similar question focusing on a specific title got <a href=\"https://academia.meta.stackexchange.com/questions/1771/slow-down-too-broad-and-unclear-closing?cb=1\">closed</a> on Academia SE: <a href=\"https://academia.stackexchange.com/q/46501/452\">Is the title Ph.D. or Dr. meaningless in the sense that anyone can use it?</a> but might contain some interesting pointers.</p>\n\n<p><a href=\"http://www.collegept.org/Assets/registrants%27guideenglish/standards_framework/standards_practice_guides/StandardUseRestrictedTitlesCredentialsSpecialtyDesignations.pdf\" rel=\"nofollow noreferrer\">E.g.</a>:</p>\n\n<blockquote>\n <p>The Regulated Professions Act restricts the use of title “doctor”, in the context of providing or offering to provide health care\n to individuals in Ontario, to only those people who are registered with the College of Physicians and Surgeons, Optometrists,\n Chiropractors, Psychologists and Dentists.</p>\n</blockquote>\n",
"score": 4
},
{
"answer_id": 374,
"body": "<p>Titles like these have no legal meaning whatsoever - they are only a way of passing on respect to people by knowing their formal title and using it in the future. I am not aware of any government organization that includes your title as part of your legal name.</p>\n\n<p>Having worked in a government organization myself, no verification goes into checking these titles whatsoever. We really couldn't care less - in a huge majority of cases, you're the only one that's ever going to see it anyways so... whatever. We crossed out and ignored a vast majority of them, especially any time someone used Mr, Ms, or Mrs. Most organizations that do record them likely just record them because there's a space for it and you filled it out, then probably never pay attention to it again.</p>\n",
"score": 2
},
{
"answer_id": 88571,
"body": "<p>The use of <code>Dr.</code> is regulated in Germany, as you can see from <a href=\"https://htor.inf.ethz.ch/blog/index.php/2008/11/06/you-can-also-call-me-dr-in-germany/\" rel=\"nofollow noreferrer\">this article</a> on liberalization to allow American Ph.D.s to use it.</p>\n<p>I believe the article is not quite correct: Germany maintains a <a href=\"https://hallogermany.com/blog/anabin-guide-academic-degrees\" rel=\"nofollow noreferrer\">database</a> of foreign institutions whose doctorates are considered acceptable (to avoid diploma mills?). Not all USA institutions are on it, but all with any significant reputation are.</p>\n<p>As you can see from the article, criminal and civil prosecution were considered against highly-qualified American academics, leading to change in the law. I doubt similar lenience would be shown to someone who claimed a spurious degree as a joke.</p>\n",
"score": 1
}
] |
[
"name"
] |
Why was nine-pin bowling illegal in most states, unlike ten-pin bowling?
| 22 |
https://law.stackexchange.com/questions/88364/why-was-nine-pin-bowling-illegal-in-most-states-unlike-ten-pin-bowling
|
CC BY-SA 4.0
|
<p>In the 1800s, ten-pin bowling was invented as a way to circumvent the ban on nine-pin bowling that was placed by all states except Texas. However, ten-pin bowling was not banned by any state. I don't see any difference in the two sports other than the number of pins and a few minor differences in the rules and equipment, so I think any reason applicable to one should be applicable. Why wasn't ten-pin bowling banned, for the same reasons as nine-pin bowling? If the reasons were no longer applicable after ten-pin bowling was invented, why didn't most states re-allow nine-pin bowling?</p>
<p>My reference is <a href="https://www.youtube.com/watch?v=aFPJf-wKTd0" rel="nofollow noreferrer">this video</a>, and the part of it that applies to this question starts at 4:39 and ends at 4:59:</p>
<blockquote>
<p>When the game made its way over to America, nine-pin bowling was banned because it promoted gambling. The legend goes that people cleverly came up with ten-pin bowling to get around the law. Whoa, totally different game. Today in the US, nine-pin bowling is only played in Texas because it was the one state that didn't ban it, instead charging it tax.</p>
</blockquote>
| 88,364 |
[
{
"answer_id": 88367,
"body": "<h2>Moral panic</h2>\n<p><a href=\"https://www.bowlingoverhaul.com/9-pin-bowling-the-game-once-considered-illegal/\" rel=\"noreferrer\">Nine-pin bowling</a> was the <a href=\"https://en.wikipedia.org/wiki/Violence_and_video_games\" rel=\"noreferrer\">violent video game</a> of its age - the people who were in power didn’t like it, didn’t like the type of people who played it, linked it with vice - like gambling and laziness - and, therefore, banned it.</p>\n<p>It’s a perennial that older people, who tend to be the ones in power, despair over the dissipation of youth and the disintegration of society that will inevitably result. Or rich people, who also are the ones in power, despairing over the recreational activities of working-class people.</p>\n<p>It’s probable that there was gambling involved - people will bet on anything, and this was a game of skill and chance, a perfect vehicle for gambling. The games and gambling would not have been regulated, so there would almost surely be some criminals who got involved. However, the biggest driver was taking this grain of truth and then blowing it out of all proportion.</p>\n<p>As other answers have pointed out, the laws usually did not specify the number of pins. Eventually, the moral panic declined, and the laws were repealed. However, times had changed, and the 10-pin form of the game is what came back backed by larger commercial interests rather than the artisan style of 9-pins. 10-pin bowling uses much bigger alleys with gutters and is suitable for mechanisation. a 9-pin alley can fit in a relatively small room, and standing the pins back up again is not much more demanding than pulling pool balls out of pockets.</p>\n<p>It's not unusual that after government suppression is lifted, things come back different to the way they were before the suppression started. For example, <a href=\"https://theconversation.com/how-prohibition-changed-the-way-americans-drink-100-years-ago-129854\" rel=\"noreferrer\">prohibition</a> fundamentally changed how Americans drank - before, men in saloons drank; after, it was an activity of all genders at home and in bars and restaurants. There was also proportionally more wine and spirits drunk compared to beer because these drinks are more alcohol-dense, so bootleggers got more alcohol per gallon smuggled, so they became relatively cheaper.</p>\n",
"score": 35
},
{
"answer_id": 88365,
"body": "<p><a href=\"/questions/tagged/connecticut\" class=\"post-tag\" title=\"show questions tagged 'connecticut'\" aria-label=\"show questions tagged 'connecticut'\" rel=\"tag\" aria-labelledby=\"connecticut-container\">connecticut</a></p>\n<p>There was a <a href=\"https://www.google.com/books/edition/The_Charter_and_Revised_Ordinances_of_th/AOJHAQAAMAAJ?hl=en&gbpv=1&dq=%22Every%20person%20who%20shall%20keep%20in%20his%20custody%20or%20possession,%20or%20in%20any%20house,%20or%20building,%20or%20its%20appurtenances,%20or%20in%20any%20place%20in%20his%20occupation,%20any%20ninepin%20alley,%20so%20called,%20or%20a%20place%20for%20playing%20bowls,%20skittles,%20or%20ninepins%22&pg=PA38&printsec=frontcover\" rel=\"noreferrer\">law in Hartford CT</a> which says</p>\n<blockquote>\n<p>Every person who shall keep in his custody or possession, or in any\nhouse, or building, or its appurtenances, or in any place in his\noccupation, any ninepin alley, so called, or a place for playing\nbowls, skittles, or ninepins, whether more or less than ninepins were\nused in such play, shall be punished by fine, not exceeding $50, nor\nless than $7; provided that the selectmen, or a major part of the\nselectmen, of any town, may, by instrument in writing under their\nhands, authorize such an alley to be kept at any place in their\nrespective towns</p>\n</blockquote>\n<p><a href=\"https://www.ctinsider.com/news/article/How-a-Connecticut-law-could-have-started-10-pin-16374081.php\" rel=\"noreferrer\">The premise</a> was that gambling and crime could be curbed by this law. The ordinance actually outlaws bowling with any number of pins. There is no evidence that the number of pins was dispositive (e.g. a clause saying "fewer than 10 pins is prohibited"), and the disappearance of 9-pin bowling in the US is cultural rather than legal.</p>\n",
"score": 20
}
] |
[
"united-states",
"sport"
] |
Copyright contract vs license?
| 1 |
https://law.stackexchange.com/questions/43137/copyright-contract-vs-license
|
CC BY-SA 4.0
|
<p>What is a difference between a license and a copyright contract? It seems that they achieve the same thing. So what are the use cases for both?</p>
| 43,137 |
[
{
"answer_id": 43171,
"body": "<p>This answer is limited to United States law. The situation in other countries is definitely different.</p>\n\n<p>Under United States law, the owner of a lawfully made copy of a copyrighted work has, as a right of the physical possession of that work, the right to the work's ordinary use. Licenses grant you additional rights such as the right to make derivative works, the right to make copies beyond what's needed for ordinary use, and so on.</p>\n\n<p>A pure license doesn't ask for anything in return, it just gives you new rights. Those rights may be conditional, but the conditions are just things you have to do to get new rights. They're not conditions imposed on any existing rights you had.</p>\n\n<p>A contract is an agreement between two parties. Both parties must agree to a contract for the contract to be enforceable. Contracts can take away rights you otherwise have.</p>\n\n<p>You don't need a license or contract to use a copyrighted work if you lawfully possess a copy of that work. Say you download a copy of a work covered by the GPL. You can refuse to accept the GPL license and you can still use that work. Why? Because no law prohibits you from doing so and there is no civil cause of action for using a lawful copy of a work under US law.</p>\n\n<p>But now say you want to give a copy of that work to your friend. This is illegal under US law because 17 USC 106 restrict that right to the copyright holder and there's no applicable exception since that's not part of the ordinary use. For a work covered by the GPL, the license offers to give you that right, a right you wouldn't otherwise have. It imposes conditions on you that are specifically in exchange for the grant of the new right.</p>\n\n<p>If you do accept the GPL, it functions as a contract. You got in exchange a right you didn't have before and if you don't comply with the GPL's terms, you don't have the copyright holder's permission to exercise those rights which is required under the law.</p>\n\n<p>By contrast, a click-through or EULA takes effect when you agree to it and such agreement is a condition for using the software. That's a pure contract and usually doesn't give you any rights you wouldn't have in the absence of such an agreement other than the use of the software.</p>\n",
"score": 3
},
{
"answer_id": 43140,
"body": "<p>Many copyright licenses are also contracts. Most copyright contracts will be, or will include, licenses. Free or permissive licenses, such as the CC-BY license, might not be considered contracts though lack of consideration, although in the case of the CC-BY license, the promise to provide attribution might be sufficient consideration. Something like the CC-Zero license, where the copyright holder basically says \"anyone may use this with no conditions\" would probably not be a contract in any jurisdiction that requires consideration for a valid contract.</p>\n\n<p>The use case is that when the copyright holder wants something back from a license, such as a fee or attribution, the holder should use a license that is also a contract. When the holder is not granting any use rights to the copyrighted work, a contract will not include a license, which is precisely a grant of such rights. </p>\n",
"score": 2
}
] |
[
"copyright",
"licensing"
] |
What happens if a prosecutor refuses to file charges?
| 21 |
https://law.stackexchange.com/questions/60848/what-happens-if-a-prosecutor-refuses-to-file-charges
|
CC BY-SA 4.0
|
<p><a href="https://law.stackexchange.com/questions/60482/are-courts-obliged-to-act-if-theyre-aware-of-a-violation-even-if-the-parties-a">Inspired by the answer to a previous question I asked</a>.</p>
<p>Let's say Alice assaults Bob, and Bob goes to the police. I gather from the answer to the linked question that what happens in principle is that the police would investigate, and the local prosecutor would file charges against Alice.</p>
<p>But suppose Alice is a billionaire and she bribes the local prosecutor to not prosecute. What happens next? Presumably, if Bob can show the prosecutor was bribed he can make a new accusation against the prosecutor, but what if the bribe was clandestine? Presumably the prosecutor would just fend off Bob saying something about limited resources, lack of evidence (even when the evidence is clear), etc.</p>
<p><a href="https://www.criminaldefenselawyer.com/resources/im-victim-a-crime-can-i-force-prosecutor-bring-charge" rel="noreferrer">This</a> seems to say that Bob has no real recourse unless public pressure changes the prosecutor's mind (!?). Is that really the case? If so, it seems quite incredible—criminal accusations are for serious crimes, and it's surprising that the decision whether or not to press charges can rest on one, possibly biased, potentially influenced person.</p>
<p>If the country matters, assume the USA.</p>
| 60,848 |
[
{
"answer_id": 60849,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" rel=\"tag\">united-states</a></p>\n<p>Bob could do any number of things to try to convince someone to prosecute Alice: call the prosecutor's boss, or the district attorney (or their equivalents in DOJ if it's a federal crime), or his elected representatives; he could also go to the media, or post on social networks...</p>\n<p>But if none of that works, the article is right:</p>\n<h3>Prosecutors can't be legally compelled to prosecute someone</h3>\n<p>Crime victims don't have any rights to control whether a prosecution happens—the government is the plaintiff. A prosecutor can even file charges over a victim's objections. Federal law and some states have <a href=\"https://www.justice.gov/usao/resources/crime-victims-rights-ombudsman/victims-rights-act\" rel=\"noreferrer\">Crime Victims' Rights Acts</a>, which do grant some rights. But note the particularly relevant exception in that law:</p>\n<blockquote>\n<p>Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction.</p>\n</blockquote>\n<p>This is also a separation of powers issue: the executive branch has the exclusive right to determine how the laws are executed. Neither the legislature nor the judicial branches can compel the executive to prosecute someone.</p>\n<p>Note that none of this affects Bob's <em>civil</em> remedies: he can still sue Alice for damages. But that won't result in her ending up in prison.</p>\n",
"score": 23
},
{
"answer_id": 60880,
"body": "<p>The other answers are all generally correct. I'll add just a few additional points.</p>\n<blockquote>\n<p>But suppose Alice is a billionaire and she bribes the local prosecutor\nto not prosecute. What happens next? Presumably, if Bob can show the\nprosecutor was bribed he can make a new accusation against the\nprosecutor, but what if the bribe was clandestine? Presumably the\nprosecutor would just fend off Bob saying something about limited\nresources, lack of evidence (even when the evidence is clear), etc.</p>\n<p>This seems to say that Bob has no real recourse unless public pressure\nchanges the prosecutor's mind (!?). Is that really the case? If so, it\nseems quite incredible—criminal accusations are for serious crimes,\nand it's surprising that the decision whether or not to press charges\ncan rest on one, possibly biased, potentially influenced person.</p>\n</blockquote>\n<p>There is an implication here that prosecutors will only decline to prosecute for improper purposes such as bribery. This is a misperception.</p>\n<p>U.S. prosecutors routinely decline to prosecute cases presented to them when there is probable cause that a crime was committed and there is a reasonable chance that a conviction could be obtained beyond a reasonable doubt for reasons that are not improper. Some of the common circumstances include the following:</p>\n<ul>\n<li><p>Prosecutors routinely decline to prosecute white collar crime cases when the victims have the ability to seek redress in a civil lawsuit instead. Usually, these cases are prosecuted criminally when the victims are especially vulnerable and couldn't obtain an attorney themselves, when the harm would be uneconomical to pursue in civil lawsuits since each loss is modest, when the number of victims are numerous, or when the crime has such notoriety that letting it be handled in a civil lawsuits would set a bad example.</p>\n</li>\n<li><p>Prosecutors rarely prosecute statutory rape cases unless the alleged victim feels aggrieved, even if a third-party complains and the evidence of the crime is overwhelming.</p>\n</li>\n<li><p>Prosecutors often decline to prosecute when the offender apologies and pro-actively seeks to compensate the victim for the harm done.</p>\n</li>\n<li><p>Prosecutors often decline to prosecute out of the belief that a key witness or evidence may be difficult to obtain or present, for example, when a 4th Amendment improper seizure of evidence issue is a close one, but if the evidence comes in, the case will be open and shut.</p>\n</li>\n<li><p>Prosecutors often decline to prosecute because a larger grand strategy is in place to deal with a pattern of criminal conduct (e.g. trying to shut down an illegal chop shop, or trying to shut down a gang or drug dealing operation) when doing so based upon a citizen complaint would interrupt the larger strategy.</p>\n</li>\n<li><p>Prosecutors often decline to prosecute when the primary harm caused by the crime (often public order offenses) is resolved by an arrest and removing the defendant from the situation to defuse it, and the prosecutor determines that no further public benefit would be provided by utilizing the court process to prosecute the crime that formed a valid basis for an arrest.</p>\n</li>\n<li><p>Prosecutors often decline to prosecute on charges that are technically available but would result in an unduly harsh punishment (e.g. declining to prosecute high school students sexting each other for child pornography offenses).</p>\n</li>\n<li><p>Prosecutors often decline to prosecute if the crime victim was a victim of a crime while "up to no good" or where the circumstances of the crime caused the perpetrator to be punished in some other fashion (e.g. a burglary suspect who was shot and seriously injured when a homeowner fired upon him in self-defense).</p>\n</li>\n<li><p>Prosecutors often decline to prosecute law enforcement or public safety officials who were either acting in good faith or for understandable reasons, who do not have a history of being "bad actors" (and sometimes even if they do, in order to maintain support from people who are usually co-workers upon whom their office relies).</p>\n</li>\n<li><p>Historically, prosecutors have declined to prosecute many acts which clearly legally constituted sex offenses for a variety of reasons, except in cases of the violent use of force on the victim by strangers in situations where no sexual activity of a consensual basis by the victims would have been foreseeable. This practice is gradually changing, but does not reflect bribery or other undue influence or conflict of interest.</p>\n</li>\n<li><p>Prosecutors often decline to prosecute certain crimes, such as adultery and certain kinds of criminal defamation, even when they are on the books and have not been declared unconstitutional.</p>\n</li>\n<li><p>Prosecutors routinely decline to prosecute property crimes (such as theft, vandalism and fraud) involving related parties, calling these disputes "civil matters".</p>\n</li>\n<li><p>Prosecutors often decline to prosecute when the crime, while not legally justifiable was motivated by an understandable good faith reason (e.g. the brother of a rape victim beats up his sister's alleged rapist after ambushing him in a dark alley).</p>\n</li>\n<li><p>Prosecutors often decline to prosecute stale offenses even when the statute of limitations has not run and there is enough evidence to convict (e.g. two year old drug possession charge documents with video and a carefully preserved and lab tested sample of the substance).</p>\n</li>\n<li><p>Prosecutors often decline to prosecute minor crimes on the grounds that they are not a high priority and their office has limited resources (e.g. minor vandalism or trespassing cases, even if well-documented).</p>\n</li>\n</ul>\n<p>There are also a couple of exceptions to the general rule of absolute prosecutorial discretion:</p>\n<ul>\n<li><p>A handful of jurisdictions, mostly in the eastern U.S., allow citizens to criminally prosecute minor crimes committed against them themselves without a prosecutor's involvement, if the prosecutor chooses not to intervene and take over the case. Massachusetts, for example, allows this for some crimes as do a number of Southern states. This is generally rarely used, but it exists in some places.</p>\n</li>\n<li><p>Many states allow a crime victim to petition a court to have a special prosecutor appointed in lieu of the prosecutor's office that would usually have jurisdiction over the crimes alleged. Usually this requires a showing that (1) there is probable cause to believe a crime was committed in the jurisdiction in question, and (2) there is some reason that the prosecutor's judgment is likely to be impaired. For example, a special prosecutor might be appointed by a judge when the case involved a prosecutor or member of the family of someone who works in the prosecutor's office, someone in the prosecutor's office represented the defendant as a client before working at the office, the defendant is a law enforcement officer or court official with whom the prosecutor's office needs to work, there are allegations of impropriety of some other kind shown in connection with the case. This happens very rarely, with the most typical cases being drunk driving and domestic violence cases against prosecutor's office lawyers.</p>\n</li>\n</ul>\n<p>This is rarely a mechanism for dealing with allegations of the local government level corruption. Instead, in those cases, one typically complains to state or federal officials and seeks to have those agencies investigate the corrupt agency or official criminally. Special prosecutors are sometimes appointed to investigate corruption at the state or federal level, however.</p>\n<p>As <a href=\"https://www.ca5.uscourts.gov/opinions/pub/19/19-30989-CV0.pdf\" rel=\"nofollow noreferrer\">recent opinion of the 5th Circuit Court Of Appeals</a> recognizes the unfairness of this rule to the crime victim, while at the same time upholding the legal rule of prosecutorial discretion:</p>\n<blockquote>\n<p>The allegations in this case are sickening. Priscilla Lefebure alleges\nthat Barrett Boeker, her cousin’s husband, raped and sexually\nassaulted her on multiple occasions at his home on the grounds of the\nLouisiana state prison where he serves as an assistant warden.\nLefebure further alleges that Samuel D’Aquilla, the district attorney,\nconspired with Boeker and others— including Boeker’s counsel, a\nrelative of D’Aquilla’s—to prevent her from seeking justice for these\ncrimes. It is undisputed that D’Aquilla declined to prosecute Boeker.\nAnd according to Lefebure, he did not even bother to seriously\ninvestigate him. In response, she filed this suit against D’Aquilla,\nas well as Boeker and others, on a variety of constitutional and\nstatutory claims.</p>\n<p>Under established precedent, however, we have no jurisdiction to reach\nher claims against D’Aquilla, because she has no standing under\nArticle III of the Constitution to bring them. As the Supreme Court\nhas instructed, “a private citizen lacks a judicially cognizable\ninterest in the prosecution or nonprosecution of another.” <em>Linda R.S.\nv. Richard D</em>., 410 U.S. 614, 619 (1973). The district court theorized\nthat <em>Linda R.S.</em> does not apply here, because Lefebure complains not\nabout the lack of prosecution, but about the lack of investigation.\nBut we do not read Linda R.S. the same way. To the contrary, Linda\nR.S. makes clear that “a citizen lacks standing to contest the\npolicies of the prosecuting authority when he himself is neither\nprosecuted <em>nor threatened with prosecution</em>.” <em>Id</em>. (emphasis added).\n. . .</p>\n<p>Lefebure’s story is one that is shared by too many survivors who have\nbeen doubly victimized by the horrifying crime of sexual assault—first\nby their assailants, and then again by a criminal justice system that\nfails to enforce the laws on the books. <em>See, e.g., Pierre v. Vannoy</em>,\n891 F.3d 224, 229 (5th Cir. 2018) (reversing district court for its\n“troubling” decision to release convicted child rapist without\nmentioning, let alone distinguishing, governing circuit precedent\nforeclosing release).</p>\n<p>Moreover, Lefebure’s story is particularly appalling because her\nalleged perpetrator holds a position of significance in our criminal\njustice system as an assistant prison warden. We expect law\nenforcement officials to uphold the law, not to violate it—to protect\nthe innocent, not to victimize them. “Nothing is more corrosive to\npublic confidence in our criminal justice system than the perception\nthat there are two different legal standards—one for the powerful, the\npopular, and the well-connected, and another for everyone else.”\n<em>United States v. Taffaro</em>, 919 F.3d 947, 949 (5th Cir. 2019) (Ho, J.,\nconcurring)(discussing lack of prison time for chief deputy sheriff in\nJefferson Parish despite multiple criminal convictions).</p>\n<p>It is no doubt cold comfort to Lefebure, then, that the legal\nprinciples we are forced to apply today present no barrier to bringing\nher own suit against her assailant—which she reportedly has already\ndone. For surely she expected to have the support of her state’s\nelected and appointed prosecutors, investigators, and other officials\nin her pursuit of justice. If her account is correct, then the system\nfailed her—badly.</p>\n<p>But none of this changes the fact that our court has no jurisdiction\nto reach her claims against the district attorney, who for whatever\nreason declined to help her. We have no choice but to reverse and\nremand with instructions to dismiss the complaint for lack of subject\nmatter jurisdiction as to D’Aquilla.</p>\n</blockquote>\n",
"score": 12
},
{
"answer_id": 60857,
"body": "<p>Prosecutorial discretion is a thing, however, Bob still has some recourses. In the U.S. the Prosectors are typically elected at the state and local level, and where they are not, they are appointed by elected officials. So if Bob is civic minded, he might spend some time campaigning for political rivals (either primary challengers OR general election challengers) and try and get some focus on the fact that cases are being dropped. Bob should also do something akin to opposition research to see if Alice and the Prosecution have any close ties or associations that would bias the Prosection.</p>\n<p>Where corruption is suspected, Prosecutors may be subject to a special prosecutor/investigator's own scrutiny. These people are brought in as neutral parties to investigate the people who may have political ties that may be seen as bias favoring the prosecutor that make a regular investigation difficult. Additionally, while the prosector's office is part of the responsive government's executive branch, that doesn't mean their budget is controlled by the executive. Rather the power of the purse in the U.S. typically lies with the legislature and the lower house at that (Except in Nebraska and most county level governments or lower, which tend to have only one "house" but even then, it does have Power of the Purse). As such, all executive agencies will be brought before appropriate comittees to address concerns (as well as legislature members to make fiery speeches about the way a department is being run) with the ultimate threat of withholding budgets from executive departments acting in bad faith.</p>\n<p>Furthermore, Bob may not be able to criminally testify against Alice, but he can file Civil Charges for damages occured in the assault, or seek injunctive relief against Alice (aka a restraining order) compelling Alice to not approach a certain distance to Bob by court order. Breaking this court order can net Alice a "Contempt of Court Charge" which is a criminal charge and a special one at that. Contempt of Courts are crimes where the judge who finds contempt is both the Judge, the Prosector, the defendant, and the Jury all in one go... essentially, when the Judge holds a person in contempt, they are automatically saying "You're Guilty" and while Alice can appeal, it still has to go through the process of that nightmare. Essentially, Alice has to bribe more than the prosecutor to make the determined Bob go away.</p>\n",
"score": 7
},
{
"answer_id": 60877,
"body": "<p>In many countries, an individual has the right to raise a <a href=\"https://en.wikipedia.org/wiki/Private_prosecution\" rel=\"noreferrer\">private prosecution</a> if the public prosecutor decides not to pursue a case.</p>\n<p>This is generally expensive, as with all things legal. The reason for public prosecutors after all is to prevent justice being limited to the rich and denied to the poor. So there's a pretty high barrier to this - and since the usual reason for the public prosecutor to refuse to prosecute is because they don't believe the case is reasonably winnable, they rarely succeed.</p>\n<p>Still, it does happen. In 1995 in the UK, two women <a href=\"https://www.independent.co.uk/news/rapist-jailed-after-prostitutes-bring-private-prosecution-1601977.html\" rel=\"noreferrer\">successfully won a private rape prosecution</a> after the CPS refused to go ahead.</p>\n",
"score": 6
},
{
"answer_id": 60879,
"body": "<p>The question reads:</p>\n<blockquote>\n<p>I gather from the answer to the linked question that what happens in principle is that the police would investigate, and the local prosecutor would file charges against Alice.</p>\n</blockquote>\n<p>This is not correct even in principle. At least in the <a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" rel=\"tag\">united-states</a>, the local prosecutor <strong>might or might not</strong> file charges.</p>\n<h2>Reasons why a case might not be prosecuted</h2>\n<p>There are many reasons why a prosecutor might not file charges, even is s/he believed that the accused did the crime, quite aside from any outright bribery.</p>\n<p>Perhaps the most important and most common is that the prosecutor thinks that a trial will not result in a conviction. No prosecutor wants to spend time, effort, and resources only to have a jury acquit. Also, win percentages are an important way that prosecutors are evaluated, either by their bosses (for assistants) or the voters.</p>\n<p>Similarly, if the crime is fairly minor, the prosecutor may be unwilling to spend limited resources on the case, especial;y if a jury trial seems likely.</p>\n<p>If the prosecutor feels that a conviction would work an injustice, s/he may choose not to proceed.</p>\n<p>If a prosecutor thinks that pursuing the case will be politically unpopular, s/he may well choose not to proceed. Local DAs at the state level are elected officials in most states, and while Federal prosecutors (US Attorneys and their assistants) are appointed, they are often very alive to political forces -- the post of US Attorney is often a stepping stone to elected office. (For example former NJ Governor Christie was a US Attorney before being elected Governor.)</p>\n<h2>Options for a victim or interested party</h2>\n<p>One can, of course, request the local prosecutor to proceed with a case. This can be backed with a campaign to draw public attention, and hence political influence, to the case. The prosecutor can always decided to proceed with a case (unless a statute of limitations has expired).</p>\n<p>In many US states (for example MA) the state Attorney General has the option to take over any particular case from the local DA, and have his or her office handle it instead. One could ask the AG to exercise this power.</p>\n<p>In a Federal case, the US Attorney General could direct a US Attorney's office to proceed with a case, although that is quite unusual. Again public/political pressure mi8tght well matter.</p>\n<p>If the prosecutor had actually accepted a bribe, that would be a crime. If this could be proved, the prosecutor should be removed from office and quite probably convicted. In such a case the new prosecutor would be very likely to review the case with a very different eye.</p>\n<p>As other answers have discussed, Bob might be able to file a civil suit.</p>\n<p>If the actions Alice is accused of constitute both a state and a federal crime, Bob could ask the other jurisdiction to take the case.</p>\n<h2>History</h2>\n<p>When jury trials were first introduced in England, prosecutions were normally started by a private person, through an action known as <em>Appeal</em> (This is different than the modern use of "appeal" to mean bringing a case to a higher court.) But the King and the central authorities under the king found that often crimes were not prosecuted which they wanted addressed, particularly when the accused was a wealthy or powerful person, or the potential accuser was weak or poor.</p>\n<p>So the <em>Grand jury</em> was created. This was originally not a protection against the state, but an instrument of the state (the crown) to help determine who committed crimes and to get prosecution started against them, even when no one would file an Appeal.</p>\n<p>Public prosecution and private prosecution by Appeal coexisted in England until 1819 when the Appeal of Murder etc Act, 1819 was passed, which eliminated private appeal of crime. This was a direct result of the case of <a href=\"https://en.wikipedia.org/wiki/Ashford_v_Thornton\" rel=\"noreferrer\"><em>Ashford v Thornton</em></a>, the previous year. In that case the accused, Thornton (who had previously been acquitted on a public prosecution) elected to defend himself by "wager of battle" -- that is a trial by combat -- and was held to be entitled to do so.</p>\n<p>See <em>The Law of the Land</em> by <a href=\"https://en.wikipedia.org/wiki/Charles_Rembar\" rel=\"noreferrer\">Charles Rembar</a> for coverage of the above history, written for the non-lawyer.</p>\n<p>David Friedman, in chapter fifteen of <em>Legal Systems Very Different From Ours</em> discusses in detail 18th Century England's then-current system of private prosecution, largely from an economic point of view, pointing out its advantages and disadvantages, and some of the side effects.</p>\n<p>In thew US, private prosecution has never been much favored, and even where it is legally possible, it has remained rare.\n.</p>\n",
"score": 5
},
{
"answer_id": 60908,
"body": "<p>In <a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" rel=\"tag\">united-states</a> this varies significantly by state, but I am at least familiar with provisions in <a href=\"/questions/tagged/pennsylvania\" class=\"post-tag\" title=\"show questions tagged 'pennsylvania'\" rel=\"tag\">pennsylvania</a> law for judicial review of refusals to file criminal charges.</p>\n<p>Pennsylvania <a href=\"https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/234/chapter5/s506.html&d=reduce\" rel=\"noreferrer\">Rule 506</a> allows anyone to file a <a href=\"https://www.montcopa.org/DocumentCenter/View/3417/Private_Complaint_Process_Final_Version_11_5_12?bidId=\" rel=\"noreferrer\">private criminal complaint</a>, and requires a state attorney to timely either approve it for prosecution or to explain the reason for not approving it. If it is not approved Rule 506(B) allows the complainant to request judicial review of the disapproval.</p>\n<p><strong>The standard for review of a prosecutor's refusal to approve criminal charges is <em>abuse of discretion</em>.</strong> There's a good amount of case law regarding what constitutes "abuse of discretion" by a prosecutor in declining to prosecute a criminal complaint. From <a href=\"https://www.courtlistener.com/opinion/2403806/in-re-wilson/\" rel=\"noreferrer\"><em>In re Wilson</em>, 879 A.2d 199 (Pa. Super.\n2005)</a>:</p>\n<blockquote>\n<p>¶31 ... The private criminal complainant has the burden to\nprove the district attorney abused his discretion, and\nthat burden is a heavy one. In the Rule 506 petition\nfor review, the private criminal complainant must\ndemonstrate the district attorney’s decision\namounted to bad faith, <strong>fraud</strong> or unconstitutionality.\nThe complainant must do more than merely assert the\ndistrict attorney’s decision is flawed in these regards.\nThe complainant must show the facts of the case lead\nonly to the conclusion that the district attorney’s\ndecision was patently discriminatory, arbitrary or\npretextual, and therefore, not in the public interest.</p>\n</blockquote>\n<blockquote>\n<p>¶18 [T]here is no simple formula for the trial court to determine what constitutes an abuse of prosecutorial discretion. ... Everything will depend on the particular facts of the case and the district attorney's articulated reasons for acting, or failing to act, in the particular circumstances. For example, a court might find an abuse of discretion in a district attorney's pattern of discriminatory prosecution, or in retaliatory prosecutions based on personal or other impermissible motives. Similarly, a district attorney might be found to have abused his discretion for his blanket refusal to prosecute for violations of a particular statute or for refusing to prosecute solely because the accused is a public official.</p>\n</blockquote>\n<blockquote>\n<p>[8] Other examples of an abuse of discretion in these kinds of cases include circumstances involving the deliberate use of race, religion, gender, or other suspect classifications, or biased generalized personal beliefs, such as a belief that a man could never be the victim of domestic violence. Additionally, an abuse of discretion might be found where the complainant can demonstrate a district attorney's pattern or practice of refusing to prosecute certain individuals or groups because of favoritism or cronyism. This list is not meant to be exhaustive, but only to give some indication of what might constitute an abuse of discretion in policy-declination cases</p>\n</blockquote>\n",
"score": 5
},
{
"answer_id": 60872,
"body": "<h2>The law gives limited power for <em>private action</em></h2>\n<p>That is to say, Bob can make himself his own Attorney General, however, the force of Bob's swing is limited.</p>\n<p>This is called a <strong>civil action</strong> aka a <strong>lawsuit</strong>.</p>\n<p>The classic example is OJ Simpson. Murder charges were filed, but prosecution was unable to prove their case beyond a reasonable doubt. However, the families of OJ's victims pressed a <strong>civil case for wrongful death</strong> (a civil cause-for-action, not the same as murder), <a href=\"https://www.nytimes.com/1997/02/11/us/jury-decides-simpson-must-pay-25-million-in-punitive-award.html\" rel=\"nofollow noreferrer\">and collected a large money judgment</a>, because they showed that OJ Simpson was more than 51% likely to be the cause of their anguish.</p>\n<p>Civil juries tend to award compensation vaguely in proportion to the loser's means, and did so with a vengeance in OJ's case, <a href=\"https://www.nytimes.com/1997/02/11/us/jury-decides-simpson-must-pay-25-million-in-punitive-award.html\" rel=\"nofollow noreferrer\">bankrupting OJ</a>.</p>\n<p>Bankruptcy allows clearing of many debts, but depending on jurisdiction, debts for deliberate and otherwise criminal acts aren't one of them. In fact, OJ did a long prison stint for something completely different, and emerged still deep in debt to the families.</p>\n<h2>Civil court has a lower standard of proof</h2>\n<p>In civil court, the standard of evidence is "51% more likely than not". This makes it a great deal easier to get an accusation across the finish line. In cases thin on hard evidence, it bottom-lines to who the jury believes.</p>\n<h2>No jail... but, no <em>jeopardy</em>. Unless...</h2>\n<p>A civil action can <em>compel</em> action (pay money; return possessions; vacate apartment) or <em>restrain</em> action (stop making false claims; stop holding parties past 10pm).</p>\n<p>Because the defendant is not <em>in jeopardy</em> for life and limb, <strong>the rules on double jeopardy do not apply</strong>. A civil suit does not prevent a criminal action, nor vice versa.</p>\n<p>(<a href=\"https://en.wikipedia.org/wiki/Res_judicata\" rel=\"nofollow noreferrer\">a different rule</a> prevents you from filing multiple lawsuits on the same matter).</p>\n<p>However, there are crossover effects. Things entered into evidence at a <em>criminal</em> trial are generally public unless sealed, and can easily be placed into evidence at the civil trial. This is in fact more useful than new evidence, since that was was already examined and cross-examined at that other trial. Not least because the criminal prosecutors have better fact-finding resources at their disposal than civil plaintiffs do. The OJ criminal prosectors were well aware that even if they lost, the evidence they collected would be a <em>treasure trove</em> for the civil suit.</p>\n<p>Also, evidence gathered in a <em>civil</em> suit can be used to build a <em>criminal</em> case. Civil judges who see evidence of a crime have been known to "refer the case" to a district attorney for criminal prosecution. D.A.'s generally take such referrals very seriously. In theory they could decline, but it would create an awkward situation for the D.A., both in the eyes of the media and the opinion of the judges they'll need to work alongside through their career.</p>\n",
"score": 3
},
{
"answer_id": 60878,
"body": "<p>Although you tagged the question with "united states", from the way you formulated it you seem interested in other jurisdictions as well.</p>\n<p>I am not a lawyer but I know that in the Netherlands the victim or anyone with an interest in the case can start a so-called <a href=\"https://nl.wikipedia.org/wiki/Artikel_12_Sv-procedure\" rel=\"nofollow noreferrer\">article 12 procedure</a> where a judge will decide whether or not the prosecutor is obligated to start a case against a defendant.</p>\n",
"score": 3
},
{
"answer_id": 60955,
"body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" rel=\"tag\">england-and-wales</a></p>\n<p>Bob can request a review of the decision by the Crown Prosecution Service <a href=\"https://www.cps.gov.uk/about-cps\" rel=\"nofollow noreferrer\">(CPS)</a> not to <em>bring proceedings</em> (ie lay charges) against Alice under the <a href=\"https://www.cps.gov.uk/legal-guidance/victims-right-review-scheme\" rel=\"nofollow noreferrer\">Victims Right to Review scheme</a> introduced following the Court of Appeal case <a href=\"https://www.bailii.org/ew/cases/EWCA/Crim/2011/1608.html\" rel=\"nofollow noreferrer\">R v Killick</a>.</p>\n<p>The Review can be done at two levels:</p>\n<blockquote>\n<p>firstly, a local resolution stage where reviews are conducted by a\n<strong>new prosecutor</strong> at the appropriate local CPS office ... where the original decision was made;</p>\n<p>secondly, (if the original decision not to prosecute is upheld), if\neligible, a review <strong>independent from the local CPS office</strong> where the\noriginal decision was made, conducted by the ARU [<em>Appeals and Review\nUnit</em>].</p>\n</blockquote>\n<p>There is no guarantee that the original decision will be overturned but either one of these independent reviewers could do so if they are satisfied that there is enough evidence against Alice to provide a "<em>realistic prospect of conviction</em>" (unless her corrupting influence has penetrated to the extent favoured by Hollywood and/or conspiracy theorists).</p>\n",
"score": 1
}
] |
[
"united-states",
"criminal-law",
"criminal-procedure",
"prosecutorial-discretion",
"prosecution"
] |
court appearance when stay order from higher court
| 1 |
https://law.stackexchange.com/questions/83380/court-appearance-when-stay-order-from-higher-court
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CC BY-SA 4.0
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<p>In India for a relative's divorce case, a petition is filed in high court against a case in lower court. The higher court has issued a <a href="https://en.wikipedia.org/wiki/Stay_of_proceedings" rel="nofollow noreferrer">stay</a> order.</p>
<p>But my relative's lawyer in lower court says he still needs to appear in lower court on court date. I feel that the lawyer is just trying to get a fee.</p>
<p>Any one with this information?</p>
| 83,380 |
[
{
"answer_id": 83385,
"body": "<p>It's basically a question about the rules of court.</p>\n<p>While I can't say for sure about this case, a scheduled court date that isn't canceled, even in a stayed proceeding, is to be held. Non-appearance of a party or their representing lawyer is a bad idea as it might incur contempt of court.</p>\n<p>Such a court date can be used to (once more) inform the court and other parties of the stay. Paperwork that might have been delayed in postal service is then given over under the eyes of the judge, pretty much ensuring that the other parties did get them and nobody may cry foul play. Possibly the meeting can be used by the attorney to reschedule other court dates or depositions if the stay has a specific time length.</p>\n<p>Also note, that not all stays are for the whole case but might only rule to stay parts of it: a divorce case that includes a case for visitation of a child might stay the visitation part till a related case about where the child will live in the future is solved, but continue on the parts that try to sort out the divorce itself. Such non-stayed proceedings do proceed even under the stay of some others.</p>\n",
"score": 3
}
] |
[
"civil-law",
"india",
"family-law",
"divorce",
"stay-order"
] |
Is it a crime to engage in sexual talk with a stranger that pretends to be a little girl but actually isn't?
| 1 |
https://law.stackexchange.com/questions/88514/is-it-a-crime-to-engage-in-sexual-talk-with-a-stranger-that-pretends-to-be-a-lit
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CC BY-SA 4.0
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<p>I was watching the <a href="https://www.youtube.com/watch?v=KXfibK8tCtk&list=PLqOooBy2Rmn8ZH9jR90oGHU-EuI7iA121" rel="nofollow noreferrer">Hansen vs predator</a> series.</p>
<p>In there a random guy called Chris Hansen goes online and pretends to be a 13 years old girl.</p>
<p>When people chat with him, he tries to steer the discussion on a sexual level ("I'm just coming out of the shower", etc.).</p>
<p>Then he lures them into his house, where there is a real life decoy (a 19 years old girl).</p>
<p>After some talking, the decoy goes away and Chris Hansen appears.</p>
<p>He then starts to question them, and he "let them go" out of the garage where the police arrests them.</p>
<p>They are charged with "criminal attempt to commit risk of injury to a minor".</p>
<p>My understanding is that Chris Hansen is a total random guy who does not work for the government. That is, he is not an undercover police agent.</p>
<p>Question: Is it a crime if I engage in sexual discourse with a random stranger that pretends to be a little girl, but he isn't?</p>
<p>I mean, he is not an undercover agent but a random guy who appears to do this for money/views or whatever.</p>
| 88,514 |
[
{
"answer_id": 88521,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"canada-container\">canada</a></p>\n<blockquote>\n<p>Is it a crime [to] engage in sexual discourse with a random stranger [who] pretends to be a little girl [but isn't]?</p>\n</blockquote>\n<p>This could be the offence of <em>child luring</em> (<em>Criminal Code</em>, s. 172.1; and <em>R. v. Morrison</em>, <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17618/index.do\" rel=\"nofollow noreferrer\">2019 SCC 15</a>).</p>\n<p>Section 172.1 makes it an offence to communicate using telecommunication with a person "who is, <strong>or who the accused believes is, under the age of 18</strong>", for the purpose of facilitating one of several listed sexual offences.</p>\n<p>While some child luring would rise to the level of an actual <em>attempt</em> to commit the underlying offence, s. 172.1 captures even earlier activity (<em>R. v. Legare</em>, 2009 SCC 56, para. 25):</p>\n<blockquote>\n<p>[s. 172.1] criminalizes conduct that <em>precedes</em> the commission of the sexual offences to which it refers, and even an attempt to commit them</p>\n</blockquote>\n",
"score": 3
},
{
"answer_id": 88555,
"body": "<h2>Yes</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>In fact, Australian police (state and federal) do it routinely when penetrating peadophile rings. Unlike the USA, there are no prohibitions on entrapment in Australia. Here’s an <a href=\"https://www.theguardian.com/society/2017/oct/07/australian-police-sting-brings-down-paedophile-forum-on-dark-web\" rel=\"nofollow noreferrer\">example</a> from <a href=\"/questions/tagged/queensland\" class=\"post-tag\" title=\"show questions tagged 'queensland'\" aria-label=\"show questions tagged 'queensland'\" rel=\"tag\" aria-labelledby=\"queensland-container\">queensland</a>.</p>\n<p>Section <a href=\"https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040#sec.66EB\" rel=\"nofollow noreferrer\">66EB</a> of the Crimes Act 1900 details the crime of Procuring or grooming child under 16 for unlawful sexual activity and explicitly provides that it’s still a crime even if the child is fictitious.</p>\n",
"score": 0
}
] |
[
"united-states",
"criminal-law",
"minor"
] |
What is meant by the term "Foreign sovereign"?
| 0 |
https://law.stackexchange.com/questions/66753/what-is-meant-by-the-term-foreign-sovereign
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CC BY-SA 4.0
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<p>What is meant by the term "Foreign sovereign"?</p>
<p>It relates to the contract act.</p>
| 66,753 |
[
{
"answer_id": 66756,
"body": "<p><strong>What is meant by the term "Foreign sovereign"?</strong></p>\n<p>The definition of <a href=\"https://www.lexico.com/definition/foreign\" rel=\"nofollow noreferrer\">foreign</a> includes:</p>\n<blockquote>\n<ul>\n<li>Of [or] from ... of a country ... other than one's own.</li>\n</ul>\n</blockquote>\n<p>And one definition of <a href=\"https://www.lexico.com/definition/sovereign\" rel=\"nofollow noreferrer\">sovereign</a> is:</p>\n<blockquote>\n<ul>\n<li>A supreme ruler, especially a monarch.</li>\n</ul>\n</blockquote>\n<p>Based on the OP's profile picture, I assume that this question relates\nto the <a href=\"https://indiankanoon.org/doc/171398/\" rel=\"nofollow noreferrer\">Indian Contract Act 1872</a> which, at s.11, states:</p>\n<blockquote>\n<p>Who are competent to contract.—Every person is competent to contract who is of the age of majority according to the law to which he is subject,1 and who is of sound mind and is not disqualified from contracting by any law to which he is subject. —Every person is competent to contract who is of the age of majority according to the law to which he is subject,1 and who is of sound mind and is not disqualified from contracting by any law to which he is subject."</p>\n</blockquote>\n<p>There is, as far as I can see, no mention of a "Foreign Sovereign" within the Act, but this <a href=\"https://www.intolegalworld.com/article?title=capacity-to-contract\" rel=\"nofollow noreferrer\">commentary</a> on the capacity to contract says:</p>\n<blockquote>\n<p>According to the contract act, the following are said to disqualify from entering into any contract:-</p>\n<p>...</p>\n<p>(b) Foreign Sovereign\n...</p>\n</blockquote>\n<p>This commentary is corroborated by <a href=\"https://en.m.wikipedia.org/wiki/Indian_Contract_Act,_1872\" rel=\"nofollow noreferrer\">Wikipedia</a>:</p>\n<blockquote>\n<p>There are other laws of the land that disqualify certain persons from contracting. They are:-</p>\n<p>...</p>\n<ul>\n<li>Foreign sovereigns, diplomatic staff etc.\n...</li>\n</ul>\n</blockquote>\n<p>However, I am unable to locate these "<em>other laws</em>", but taking into account the age of the Act, and the status of India at the time it was written, it is possible that Foreign Sovereign could be interpreted by the relevant court to include a <a href=\"https://en.m.wikipedia.org/wiki/Head_of_state\" rel=\"nofollow noreferrer\"><strong>Head of State</strong></a></p>\n",
"score": 1
}
] |
[
"contract-law",
"legal-terms"
] |
Is intent required to bring a criminal case for retaining classified documents?
| 4 |
https://law.stackexchange.com/questions/88539/is-intent-required-to-bring-a-criminal-case-for-retaining-classified-documents
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CC BY-SA 4.0
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<p>If a president, vice-president, or congress person retains classified documents past their term does the government have to show intent for it to be criminal?</p>
| 88,539 |
[
{
"answer_id": 88541,
"body": "<p>It is not a crime for a president or a vice-president to retain documents (any) past their term in office. It <em>is</em> required under <a href=\"https://www.law.cornell.edu/uscode/text/44/chapter-22\" rel=\"nofollow noreferrer\">44 USC Ch. 22</a> that a president or vice-president turn over records to the archivist, and if an ex-president refuses, a lawsuit could result whereby he is ordered to turn the records over. Intent or knowledge are therefore irrelevant since non-compliance is corrected but not punished.</p>\n",
"score": 2
}
] |
[
"united-states"
] |
What authority grants the US to extradite and Charge Non US citizens for violating US sanctions?
| 3 |
https://law.stackexchange.com/questions/88523/what-authority-grants-the-us-to-extradite-and-charge-non-us-citizens-for-violati
|
CC BY-SA 4.0
|
<p>Context: <a href="https://www.bbc.com/news/world-us-canada-54270739" rel="nofollow noreferrer">https://www.bbc.com/news/world-us-canada-54270739</a></p>
<p>What dominion does the United States have regarding the enforcement of sanctions? Can the US impose extradition of foreign nationals like Ms. Meng for a foreign company's sale of goods (especially non-weapons) to US-sanctioned countries (Iran)?</p>
<p>Where, if any are the bright lines? Narco-trafficing seems to be "fair-game", however, telecommunications is not the same class.</p>
| 88,523 |
[
{
"answer_id": 88524,
"body": "<p>This issue was addressed in <em>United States v. Meng</em>, <a href=\"https://canlii.ca/t/j7x3n\" rel=\"nofollow noreferrer\">2020 BCSC 785</a>.</p>\n<p>The authority to extradite is via the extraditing state's treaty with the U.S. and its domestic implementing legislation. In Canada, this is the <em>Extradition Act</em>. Extradition requires consent of the extraditing state and for the requesting state to follow the extraditing state's domestic procedure.</p>\n<p>The question you raise is how sanctions of requesting state affect the interpretation of the domestic offence for the purpose of establishing the <em>double criminality</em> requirement.</p>\n<p>Critical in this case was that the charged offence was fraud against HSBC (albeit based on alleged concealment of sanctions violations).</p>\n<p>See para. 23:</p>\n<blockquote>\n<p>The double criminality question in the committal hearing is therefore whether Ms. Meng’s alleged conduct, had it occurred in Canada, would have amounted to fraud contrary to s. 380(1)(a) of the Criminal Code.</p>\n</blockquote>\n<p>Ms. Meng argued:</p>\n<blockquote>\n<p>that the conduct cannot amount to fraud because in essence the proposed prosecution is to enforce US sanctions laws against Iran, measures that are not part of Canadian law and which, indeed, Canada has expressly rejected.</p>\n</blockquote>\n<p>The Attorney General argued:</p>\n<blockquote>\n<p>that the double criminality analysis may properly take the US sanctions into account as part of the foreign legal backdrop against which the essential conduct is to be understood.</p>\n</blockquote>\n<p>The court agreed with the Attorney General:</p>\n<blockquote>\n<p>The effects of the US sanctions may properly play a role in the double criminality analysis as part of the background or context against which the alleged conduct is examined.</p>\n</blockquote>\n",
"score": 4
}
] |
[
"jurisdiction"
] |
Police believe unreported rape left evidence
| 6 |
https://law.stackexchange.com/questions/86022/police-believe-unreported-rape-left-evidence
|
CC BY-SA 4.0
|
<p>Police know there's a serial rapist in a particular area. He's left no DNA and victims never saw his face. Police learn that a unknown female victim from that area was examined by a sexual assault forensic examiner and a rape kit was secured. However the victim chose the option of not immediately reporting the rape so the kit is held until the victim signs the release (if she does) what can police do to find the victim considering HIPAA and state laws protecting her identity?</p>
| 86,022 |
[
{
"answer_id": 87582,
"body": "<p>It is important to note that the Health Insurance Portability and Accountability Act (HIPAA) is a federal law that protects the privacy of an individual's medical information. It does not prevent the police from obtaining evidence in a criminal investigation, but it does place certain restrictions on how that information can be used and disclosed.</p>\n<p>In the scenario you have described, it is possible that the police could request a court order or subpoena to obtain the rape kit and any other relevant medical information related to the victim's examination. This would typically require the police to show that they have probable cause to believe that the evidence is relevant to the investigation and that they have exhausted all other reasonable means of obtaining it.</p>\n<p>It is also possible that state laws or local policies may place additional restrictions on the police's ability to obtain this information.</p>\n",
"score": 1
}
] |
[
"united-states",
"police",
"evidence",
"sexual-offences"
] |
Noise complaint to neighbouring shop
| 3 |
https://law.stackexchange.com/questions/71239/noise-complaint-to-neighbouring-shop
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CC BY-SA 4.0
|
<p>How do I approach to neighboring shop which does carpentry work throughout the day? The local area is in Gujarat and it's not a housing society. It's a kinda lane where many of the local shops are there. Though every shop is either grocery or selling something. None of them are making noise using any machinery tools.</p>
<p>Lots of noise hinders, many of the basic activities like children's education & my office work. None of the neighbors are complaining as they might fear that it will be against their reputation.</p>
<p>I have told the owner many times in the past. Though it seems he does not care. I am thinking to make it more legal.</p>
<blockquote>
<p>Initially, it was just an ordinary grocery shop but now he does this carpentry as a freelance in that same shop.</p>
</blockquote>
<p>Hoping someone to please guide me on this issue.</p>
| 71,239 |
[
{
"answer_id": 71333,
"body": "<p><strong>Noise complaint to neighbouring shop: I am thinking to make it more legal.</strong></p>\n<p><strong>Short Answer</strong>: dial 100 and make a complaint to the police.</p>\n<p><strong>Long Answer</strong>: <em>Public nuisance</em> of this sort can be both a tort and a criminal offence, each with their own legal remedies:</p>\n<ul>\n<li><a href=\"https://en.m.wikipedia.org/wiki/Tort\" rel=\"nofollow noreferrer\"><strong>Tort</strong></a></li>\n</ul>\n<p><a href=\"https://lawrato.com/indian-kanoon/cpc/section-91\" rel=\"nofollow noreferrer\">Section 91 of the Code of Civil Procedure</a> allows for a suit to be brought for an injuction or any other suitable remedy but it does come with some caveats:</p>\n<blockquote>\n<p>(1) in the case of a public nuisance or other wrongful act affecting,\nor likely to affect, the public, a suit for a declaration and\ninjunction or for such other relief as may be appropriate in the\ncircumstances of the case, may be instituted,-</p>\n<ul>\n<li><p>(a) by the Advocate General, or</p>\n</li>\n<li><p>(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such\npublic nuisance or other wrongful act.</p>\n</li>\n</ul>\n<p>(2) Nothing in this section shall be deemed to limit or otherwise\naffect any right of suit which may exist independently of its\nprovisions.</p>\n</blockquote>\n<p>Subsection (2) does not prevent the complainant from seeking remedy under criminal law as well as damages under tort law.</p>\n<ul>\n<li><strong>Criminal Offence</strong></li>\n</ul>\n<p>Making a complaint to the police is potentially an easier route for remedy in the given circumstances.</p>\n<p><a href=\"https://indiankanoon.org/doc/209076/\" rel=\"nofollow noreferrer\">Section 268 of the India Penal Code</a> creates the offence of Public Nuisance:</p>\n<blockquote>\n<p>A person is guilty of a public nuisance who does any act [...] which causes [...] annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause [...] annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage.</p>\n</blockquote>\n<p>The Magistrate, on receiving a police report may make an order under <a href=\"https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&sectionId=22522&sectionno=133&orderno=155\" rel=\"nofollow noreferrer\">section 133 of the Criminal Procedure Code</a> to stop, limit or regulate the nuisance. If the defendant objects, he may appear before the Magistrate to plead his case before final judgment is made:</p>\n<blockquote>\n<p>(1) Whenever a District Magistrate [...], on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers--</p>\n<p>[...]</p>\n<ul>\n<li>(b) that the conduct of any trade or occupation, [...] is injurious to the [...] physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated;</li>\n</ul>\n<p>[...]</p>\n<p>such Magistrate may make a conditional order requiring the person [...] carrying on such trade or occupation, or keeping any such goods or merchandise, [...] within a time to be fixed in the order--</p>\n<p>[...]</p>\n<ul>\n<li>(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed;</li>\n</ul>\n<p>[...]</p>\n<p>or, if he (<em>i.e. the person making the nuisance</em>) objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.</p>\n</blockquote>\n<sub>\n(I've indicated with [...] where I have removed unnecessary words to make it relevant to the question and for ease of reading)</sub>\n",
"score": 1
}
] |
[
"india",
"indian-penal-code",
"noise"
] |
Can the goverment force me to decrypt a hard-drive in Norway?
| 9 |
https://law.stackexchange.com/questions/2073/can-the-goverment-force-me-to-decrypt-a-hard-drive-in-norway
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CC BY-SA 3.0
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<p>I have very little knowledge about the Norwegian laws and the cryptography parts of it.</p>
<p>Suppose the police seize my computer and all my hard-drives on suspicion that I have pirated software. All of my drives are encrypted with BitLocker. Can they force me to provide a decryption key? What would consequences be of refusing to provide it?</p>
| 2,073 |
[
{
"answer_id": 87581,
"body": "<p>In Norway, the government may be able to force one to decrypt a hard drive as part of a criminal investigation. The Norwegian Criminal Procedure Act allows the police to require individuals to provide assistance in the investigation, including the decryption of encrypted devices.</p>\n<p>Refusing to provide a decryption key may result in consequences such as being held in contempt of court or being charged with obstruction of justice. It is important to seek legal counsel if one is facing such situation in Norway to fully understand one's rights and options.</p>\n",
"score": 1
}
] |
[
"search-and-seizure",
"norway"
] |
Why rush to class action lawsuits against acetaminophen when the case looks difficult to win?
| 2 |
https://law.stackexchange.com/questions/88498/why-rush-to-class-action-lawsuits-against-acetaminophen-when-the-case-looks-diff
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CC BY-SA 4.0
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<p>There are currently a number of places recruiting for a class action lawsuit against Tylenol, and other medicines that use acetaminophen, due to the supposed risk of mother's use of it during pregnancy having children being born with autism. These law firms apparently expect some real profit from this since they're willing to pay for advertisement on social media just to recruit more people for their lawsuit.</p>
<p>From what I can tell this is all based off of a Consensus statement that basically says "we don't know for sure the potential side effects, we should be cautious with its use just to be safe". It's not proving a casual link to anything, much less autism. It's pretty much just restating what most physicians have already considered wise advice, you're taking a drug we don't fully know how it works and which can be OD on so be careful. Even if there was a casual risk, I doubt we have proof that the manufacturers of the medications knew about such a, still unproven, link or were negligent in their actions. Ie from my, admittedly limited outsider view, it seems there is very little basis for expecting to win a lawsuit against these manufactures.</p>
<p>So I'm wondering why these law firms are all so gung-ho to pursue legal action that would be, at best, a very difficult case to win? Are they simply hoping for a settlement to shut them up without having to take the case to court? What is the motivation here?</p>
| 88,498 |
[
{
"answer_id": 88501,
"body": "<p>Class action suits can be very costly for defendants, particularly pharmaceutical companies. Therefore, some such companies have been willing to make significant settlements, even when proof of damage and liability were far from clear. Such settlements can result in significant income for the law firms involved.</p>\n<p>Thus, some firms are willing to spend significant money to find and sign up potential plaintiffs, either in hope of a settlement, or in hope of an eventual winning case. Either is a gamble, but the potential payoff is large, so such firms (so-called "Mass Tort" firms) may find it worth putting up the money to seek potential plaintiffs. There is no rule requiring any degree of proof or assurance to run such a campaign. If only 1 in 20 such campaigns results in a good settlement, the sponsoring firm may do quite well.</p>\n",
"score": 6
}
] |
[
"united-states",
"class-action"
] |
Minimum sentence for Mutual Legal Assistance Treaty (MLAT) request
| 2 |
https://law.stackexchange.com/questions/88411/minimum-sentence-for-mutual-legal-assistance-treaty-mlat-request
|
CC BY-SA 4.0
|
<p>I was told by a friend studying Law, that for a country to submit a Mutual Legal Assistance Treaty (MLAT) request there would be certain criteria that must first be met. If they are not met, the MLAT would not be accepted.</p>
<p>Firstly, the crime has to be considered a crime in both jurisdictions.</p>
<p>Secondly, the minimum sentence for the crime would have to be at least two years imprisonment.</p>
<p>I wanted to check if this was true, and any other high level points that would be considered. In particular, I find the second point a bit strange, surely they mean the maximum (not minimum) sentence would have to be over two years?</p>
<p>This is not for scholar purposes, but just to gain a personal overview of how the legal system works cross jurisdiction.</p>
| 88,411 |
[
{
"answer_id": 88422,
"body": "<p>The second criterion is about the seriousness of offences and depends on the specific treaty. This is reflected in Canada's implementing legislation, the <a href=\"https://laws-lois.justice.gc.ca/eng/acts/M-13.6/FullText.html\" rel=\"nofollow noreferrer\"><em>Mutual Legal Assistance in Criminal Matters Act</em></a>. It defines "offence" to mean "an offence within the meaning of the relevant agreement."</p>\n<p>For <a href=\"https://www.treaty-accord.gc.ca/text-texte.aspx?id=101638\" rel=\"nofollow noreferrer\">the treaty between Canada and the United States</a>, there is no minimum sentence on Canada's side; it just needs to be an offence that can be prosecuted by indictment or one specifically listed in an annex to the treaty. On the United States side, it needs to be an offence for which the statutory penality is a term of imprisonment of one year or more, or an offence specified in the annex to the treaty.</p>\n",
"score": 1
}
] |
[
"united-kingdom",
"criminal-law",
"common-law",
"jurisdiction",
"treaty"
] |
How would I get rid of a lawsuit that incorrectly names me as the defendant?
| 2 |
https://law.stackexchange.com/questions/88509/how-would-i-get-rid-of-a-lawsuit-that-incorrectly-names-me-as-the-defendant
|
CC BY-SA 4.0
|
<p>Somewhere on the Internet, there's an obscure business directory that has me incorrectly listed as the local Little League sports program. For the purposes of this question, assume the entry reads as follows:</p>
<pre><code>Mark Doe
Anytown Little League
[my home address]
[my home phone number]
</code></pre>
<p>ie. my name, phone number, and address juxtaposed with a company that I have no connection to.</p>
<p>Once every year or two, I need to deal with a wrong phone number or a piece of mis-directed mail. Now, suppose someone decides to sue the program and gets the contact information off this directory. I'd have in my hands a summons and complaint that describe me as being the defendant in the lawsuit.</p>
<p>But I'm not the local Little League sports program, something even a perfunctory Google search would reveal. What procedure would I use to get rid of the lawsuit, and can I get the plaintiff to pay me to cover the costs of their screw-up?</p>
<p>(Not a duplicate of <a href="https://law.stackexchange.com/questions/47051/what-are-ones-options-if-he-is-incorrectly-listed-as-defendant-in-civil-lawsui">this question</a>: in my hypothetical scenario, I've got no link whatsoever to either the plaintiff or the intended defendant.)</p>
| 88,509 |
[
{
"answer_id": 88530,
"body": "<p>The plaintiff probably has a lawyer, and the lawyer is virtually guaranteed to not offer to pay you anything. You might be able to persuade them that they stand no realistic chance of winning the case, by proving that the alleged wrong was committed by a person acting on behalf of the program, and that you have absolutely no real connection to said program, other than being listed erroneously in a business directory. In the complaint that they file with the court, you can see what reasons they present for naming you as a defendant. They may just say that you are the president of the club. That would be something that they have to prove in court.</p>\n<p>Your denial of any connection to the club would not be sufficient, in the face of their concrete evidence that you <em>are</em> the president, so you would need to muster more-powerful evidence to refute their claim. The obvious best way to do that is to provide more persuasive evidence that Bill Jones is the president, and has been for 5 years.</p>\n<p>The procedure, if you are sued or have good reason to think that you are about to be sued, is that you hire an attorney who will attempt to persuade the attorney that they made a mistake in naming you as defendant, that you have no connection at all to the club; and if they cannot persuade them to amend the complain, he will defend you (filing an appropriate motion).</p>\n<p>In the realm of preemptive actions, you could also contact the directory and get them to voluntarily change the entry. Or you could contact an attorney about getting the directory to involuntarily delist you.</p>\n",
"score": 1
}
] |
[
"civil-procedure",
"washington"
] |
Is it legal to resell products purchased from distributors?
| 2 |
https://law.stackexchange.com/questions/88538/is-it-legal-to-resell-products-purchased-from-distributors
|
CC BY-SA 4.0
|
<p>I was trying to contact the manufacturer of a building product. He told me he wouldn't sell it to me and that I needed to go through their licensed distributor. I called the distributor and he agreed to get me the product.</p>
<p>Now, I noticed that the distributor typically works on a contractor basis. This means that he doesn't sell directly to the customer, but acts as an installer. His clients typically order the service to install the product. However, he was fine with me buying the material and installing it myself.</p>
<p>I was wondering if I could have an e-commerce website where I would sell the product directly to the end customers. I would still fulfill the purchase by buying from the distributor, although they would ship to the end user.</p>
<p>This way, DIYers could purchase it directly without the need to talk to the distributor. I do realize I would need to handle the returns, but my question is: is it legal without consulting it with the distributor?</p>
| 88,538 |
[
{
"answer_id": 88542,
"body": "<p>There is nothing illegal with doing this (absent specific contractual terms or industry regulations to the contrary in particular cases, e.g. in the case of export controlled high technology products).</p>\n<p>This is called operating a wholesale business or operating as a broker. Lots of legitimate legal businesses have this business model.</p>\n",
"score": 3
}
] |
[
"united-states",
"distribution-terms"
] |
What year did Spain outlaw computer virus spreading?
| 2 |
https://law.stackexchange.com/questions/88500/what-year-did-spain-outlaw-computer-virus-spreading
|
CC BY-SA 4.0
|
<p>What year did Spain outlaw malware (computer virus), in the public side of their Civil Legal System? I am also interested in what the penalty would be, as having read through their criminal Articles it appears to only cover hacking.</p>
<p>I found a non-academic webpage <a href="https://www.lenguajejuridico.com/diccionario-juridico/derecho-penal/ciberdelincuencia/hacking/" rel="nofollow noreferrer">here</a>, but I believe it is discussing hacking tools, as opposed to malware. It does not have when the law was applicable from, and appears to only state the sentence for hacking.</p>
| 88,500 |
[
{
"answer_id": 88545,
"body": "<blockquote>\n<p>What year did Spain outlaw computer virus spreading?</p>\n</blockquote>\n<p>Articles 197 bis and 197 ter of the <a href=\"https://www.boe.es/buscar/act.php?id=BOE-A-1995-25444\" rel=\"nofollow noreferrer\">Penal Code</a> of Spain were enacted in 2015. See footnote in both articles. But these statutes outlaws only the <em>unauthorized</em> "virus spreading".</p>\n<blockquote>\n<p>I am also interested in what the penalty would be</p>\n</blockquote>\n<p>Imprisonment (between six months and two years). In the case of art. 197 ter, an alternative penalty is a fine of three to eighteen months (I believe in Spain fines are based on what is known as "Minimum Interprofessional Salary").</p>\n<blockquote>\n<p>having read through their criminal Articles it appears to only cover hacking.</p>\n</blockquote>\n<p>If/when "virus spreading" involves unauthorized access to a system, the matter falls within scope of art. 197 bis. As enacted, the difference between <em>hacking tools</em> and <em>malware</em> is inconsequential: Either program is lawful as long as the element of <em>authorized access</em> is met and the program is not "<em>conceived or adapted primarily for committing said crimes</em>". See item a) of art. 197 ter.</p>\n",
"score": 1
}
] |
[
"criminal-law",
"hacking",
"civil-legal-system",
"spain",
"public-law"
] |
Location of legal entity and location of employment
| 0 |
https://law.stackexchange.com/questions/88511/location-of-legal-entity-and-location-of-employment
|
CC BY-SA 4.0
|
<p><strong>Context:</strong>
A company BE-Best has its headquarter in US, and legal entities in EU countries A, B and C.
An employee living in country A got job at BE-Best and contract in the county A. After some time the employee moved to the country B from private reason only.</p>
<p><strong>Question 1:</strong>
Does the employee has to relocate to the legal entity of his employer in the country B?</p>
<p><strong>Question 2:</strong>
Is there any law that force to relocate the employee from one legal entity to the other because of his place of living (a permanent establishment)?</p>
<p><strong>Question 3:</strong>
The employer has legal entities in EU countries A,B and C and open position in the country B. The employee lives in the country A. Does this fact determines that the employment has to be done in the county B (here is the open position) or in country A (because of employee place of living) or in this case employee has free of choice and can decide in which country to sign the contract?</p>
| 88,511 |
[
{
"answer_id": 88527,
"body": "<blockquote>\n<p>Does the employee has to relocate to the legal entity of his employer in the country B?</p>\n</blockquote>\n<p>This question is rather unclear since the employee moved to country B already. Regardless, issues such as place of work and relocation policies depend on the terms of the employment contract (as agreed by the parties).</p>\n<blockquote>\n<p>Is there any law that force to relocate the employee from one legal entity to the other because of his place of living (a permanent establishment)?</p>\n</blockquote>\n<p>No. A statute to that effect would severely infringe parties' <a href=\"https://en.wikipedia.org/wiki/Freedom_of_contract\" rel=\"nofollow noreferrer\">freedom of contract</a>.</p>\n<blockquote>\n<p>Does this fact determines that the employment has to be done in the county B</p>\n</blockquote>\n<p>The fact that the open position is in country B suggests that place of work most likely will be country B.</p>\n<p>The parties can sign the contract anywhere, but that is unrelated to whether the contract has any provisions regarding permissible place(s) of work.</p>\n",
"score": 1
},
{
"answer_id": 88544,
"body": "<blockquote>\n<p>Question 1: Does the employee has to relocate to the legal entity of\nhis employer in the country B?</p>\n</blockquote>\n<p>No. But the employer might require the employee to do so.</p>\n<blockquote>\n<p>Question 2: Is there any law that force to relocate the employee from\none legal entity to the other because of his place of living (a\npermanent establishment)?</p>\n</blockquote>\n<p>No. But the employer might require the employee to do so because the legal entities in other countries have different compliance obligations based upon the country in question and if the employee isn't shifted to a new country the main U.S. branch would have to have a special set of compliance obligations for that one employee which would be inefficient.</p>\n<blockquote>\n<p>Question 3: The employer has legal entities in EU countries A,B and C\nand open position in the country B. The employee lives in the country\nA. Does this fact determines that the employment has to be done in the\ncounty B (here is the open position) or in country A (because of\nemployee place of living) or in this case employee has free of choice\nand can decide in which country to sign the contract?</p>\n</blockquote>\n<p>The law doesn't require that an employee live in the country where his or her job is located. But that doesn't mean that the employee has freedom of choice. The employer has to agree and does not have to allow an employee who lives in one country to take a job in another country. Often, an employer would not allow an employee to do that.</p>\n<p>The country in which the contract is signed is irrelevant. It can be signed while on vacation in China, even if China has nothing to do with anything.</p>\n<p><strong>Additional Discussion</strong></p>\n<p>The question seems to be based upon the premise, or to be asking, if there is a right to work remotely. There isn't one. Remote work is allowed only on the terms and conditions that are acceptable to the employer.</p>\n<p>What taxes and laws apply to remote works in an evolving question that doesn't have uniform answers and often varies from one kind of law to another. Workplace safety regulations are almost always applicable based upon the laws of the place where the work is actually done. Which government's taxes apply when a worker works remotely in a different country is a morass and very much a work in progress.</p>\n",
"score": 1
}
] |
[
"employment"
] |
How consumers taxed with a cryptocurrency prepaid card?
| 2 |
https://law.stackexchange.com/questions/88525/how-consumers-taxed-with-a-cryptocurrency-prepaid-card
|
CC BY-SA 4.0
|
<p>A store decided to issue a prepaid card that can be loaded with cryptocurrency and used only in that store.</p>
<p>Will the customers pay tax when they load the card, use it, or both?</p>
<p>I am interested in US law.</p>
| 88,525 |
[
{
"answer_id": 88543,
"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>Acquiring cryptocurrency in any form, including on a prepaid card, is not a taxable event.</p>\n<p>Whether income taxes are due when it is used depends upon the value of the cryptocurrency in question when the card is used. Of course, sales taxes would also often be due at some fixed percentage of the purchase price when using the card.</p>\n<p>If the cryptocurrency goes up in value between acquiring it and using it, that is a capital gain. If it goes down in value between acquiring it and using it, that is a capital loss.</p>\n",
"score": 2
}
] |
[
"united-states",
"tax-law",
"cryptocurrency",
"credit-card"
] |
What if a US citizen kills a foreign citizen?
| -1 |
https://law.stackexchange.com/questions/88531/what-if-a-us-citizen-kills-a-foreign-citizen
|
CC BY-SA 4.0
|
<p>What if a US citizen kills a foreign citizen in another country and in the US?</p>
| 88,531 |
[
{
"answer_id": 88532,
"body": "<p>If any person (citizen or otherwise) kills any person (citizen or otherwise) in the US, they are subject to the laws of that state, or possibly the federal murder statute depending on the specific circumstances (like, "was the victim the president of the US"). The same goes for a murder outside the US – it depends on where the act took place.</p>\n<p>There may be special cases where a country claims extraterritorial jurisdiction. For example, the US can prosecute a person for a murder that took place outside the US, if the victim is an <a href=\"https://www.justice.gov/archives/jm/criminal-resource-manual-1617-extraterritorial-criminal-jurisdiction-18-usc-112-878-970-1116\" rel=\"nofollow noreferrer\">Internationally Protected Person</a>. An example is "Head of State", if the perpetrator is a US national, or is apprehended in the US. Extraterritorial prosecution exists if and only if a jurisdiction has a law allowing it, so you'd have to fill in the details. If I kill a bus driver in France, the US cannot prosecute me, but France can.</p>\n",
"score": 2
}
] |
[
"international",
"murder"
] |
Is it ok to use a Pokémon name in my screen name? (stack, yt, github, etc.)
| 2 |
https://law.stackexchange.com/questions/88529/is-it-ok-to-use-a-pok%c3%a9mon-name-in-my-screen-name-stack-yt-github-etc
|
CC BY-SA 4.0
|
<p>I use the screen name "AdamRaichu" on several platforms, including Stack Exchange, YouTube, GitHub, and others. I have been creating content on GitHub and using the name AdamRaichu in my licenses. Should I change my screen name to something that doesn't contain Raichu, or is it ok because I'm not doing creating content related to Pokémon or claiming to be sponsored by Nintendo?</p>
| 88,529 |
[
{
"answer_id": 88533,
"body": "<p>Yes. Names in and of themselves are not subject to copyright.</p>\n",
"score": 2
}
] |
[
"copyright"
] |
Is lying at all in a testimony considered perjury?
| 19 |
https://law.stackexchange.com/questions/88451/is-lying-at-all-in-a-testimony-considered-perjury
|
CC BY-SA 4.0
|
<p>Say Bob was murdered at a coffee shop, and Jerry was a witness at the scene. At the trial, he is under oath, and gives his testimony. In his testimony, he explicitly claims that he was watching America's Funniest Home Videos up to the point when the murderer entered the shop.</p>
<p>Later in the trial, video evidence, while first and foremost showing that the defendant did indeed murder Bob, also showed that Jerry was watching something that wasn't America's Funniest Home Videos at the point when the murderer entered the shop. For the purpose of simplicity, let's assume that what he was watching is perfectly fine legally speaking. Let's also assume that he knowingly lied about what he was watching, and didn't make a simple mistake. Even though this detail was virtually irrelevant to his testimony, he still technically lied under oath, which is the definition of perjury.</p>
<p>Could this result in Jerry being criminally prosecuted and/or his entire testimony becoming invalid?</p>
| 88,451 |
[
{
"answer_id": 88453,
"body": "<p>Take the <a href=\"https://www.law.cornell.edu/uscode/text/18/1621\" rel=\"noreferrer\">US federal perjury statute</a> as an example:</p>\n<blockquote>\n<p>Whoever having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any <strong>material</strong> matter which he does not believe to be true ...</p>\n</blockquote>\n<p>The key word is <em>material</em>, meaning <em>relevant</em>, <em>important</em>, <em>essential</em>. From your description, the specific show that Jerry was watching is not material to the proceeding in which the testimony was given, so Jerry has not perjured himself.</p>\n<p>Other common law jurisdictions will likewise have materiality as an element of perjury.</p>\n",
"score": 27
},
{
"answer_id": 88455,
"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><a href=\"https://www.legislation.gov.uk/ukpga/Geo5/1-2/6/section/1?timeline=false\" rel=\"noreferrer\">Section 1</a>\nPerjury Act 1911 says that:</p>\n<blockquote>\n<p>(1) If any person lawfully sworn as a witness or as an interpreter in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury,</p>\n</blockquote>\n<p>Therefore, just lying under oath is not enough to be guilty of perjury. The untruth must be shown to be "material" (which has the same meaning given in <a href=\"https://law.stackexchange.com/q/88451/35069\">Nate's answer</a>, i.e. <em>relevant, important, essential</em>).</p>\n<p>That said, although Jerry does not appear to have committed perjury, the defence may consider using his untruths as a tactic to confuse or persuade the jury by questioning him under cross-examination as to why he lied in an attempt to discredit his testimony and allege he is not a witness of truth - and possibly also allege the police officer who took his initial statement was incompetent (or maybe corrupt) for not checking the facts. The defence argument could, with a bit of polish and refinement, go something like "the witness lied and the police are incompetent, so how can you trust the video evidence." Everyone likes a conspiracy theory!</p>\n",
"score": 16
},
{
"answer_id": 88462,
"body": "<p>As discussed in <a href=\"https://www.pennstatelawreview.org/116/2/116%20Penn%20St.%20L.%20Rev.%20331.pdf\" rel=\"nofollow noreferrer\">this article</a>, it is well established that a conviction can be nullified if the testimony that it is based on is known by the prosecution to be false. The requirements imposed w.r.t. prosecution knowledge are not easy to satisfy. There is no evidence that the prosecution knew that the testimony was in part false, nor that it was material. Materiality is relevant, see <a href=\"https://supreme.justia.com/cases/federal/us/473/667/\" rel=\"nofollow noreferrer\">US v. Bagley</a>, which holds that</p>\n<blockquote>\n<p>the prosecutor's failure to disclose evidence that could have been\nused effectively to impeach important Government witnesses requires\nautomatic reversal. Such nondisclosure constitutes constitutional\nerror and requires reversal of the conviction only if the evidence is\nmaterial in the sense that its suppression might have affected the\noutcome of the trial.</p>\n</blockquote>\n<p>As for prosecution for perjury, he can maybe be prosecuted for perjury, though given the facts in evidence he will not be convicted (so the answer about prosecution depends on how the gaps are filled in). Perjury statutes have three essential elements. First, the statement must be false – that much could be true, depending on what he said. If he said "I was watching America's Funniest Cat Videos at the time when Smith entered", and the other video showed that he was watching WTF Smackdown, the testimony would be false. If he said "I had been watching America's Funniest Cat Videos at the time when Smith entered", then the statement is false if he had not been watching Cat Vid at all prior to Smith's entry. See <a href=\"https://supreme.justia.com/cases/federal/us/409/352/\" rel=\"nofollow noreferrer\">Bronston v. US</a> for the "literal truth" requirement.</p>\n<p>Second, the statement has to be material, not just false. We've covered this – there is nothing in evidence indicating that the statement is material. Third, the prosecution must prove that defendant knew that the statement is false. Although you stipulate a material fact, this is not possible in the real world – the prosecution cannot stipulate that the defense knows that the statement is false. They must introduce evidence proving that he knew that the statement is literally false. It's not possible to subpoena the contents of a person's mind, and without any evidence regarding knowledge, there can be no conviction. So, knowing all of this, the prosecution cannot prosecute him for perjury, until you change the scenario.</p>\n",
"score": 4
}
] |
[
"perjury"
] |
Would it be legal to have an infinitely long middle name?
| -1 |
https://law.stackexchange.com/questions/36454/would-it-be-legal-to-have-an-infinitely-long-middle-name
|
CC BY-SA 4.0
|
<p>In the United States, would it be legal to have an infinitely long middle name?</p>
<p>It appears that it would not be a problem, since most of the time people only use the first letter of the middle name. When a middle name is asked for, it is usually permissible to truncate it if it does not fit in the field provided. Some notes:</p>
<ul>
<li>We will assume that the name in question is computable. That is, there is an algorithm that given a natural number n outputs the nth character of the name.</li>
<li>All the characters in the name are standard characters of the English alphabet.</li>
</ul>
| 36,454 |
[
{
"answer_id": 36459,
"body": "<p>You cannot have an infinitely long name because a name has to be something that can be written down or spoken to be used. An infinitely long name can't be written down or spoken.</p>\n",
"score": 7
},
{
"answer_id": 36456,
"body": "<p>Laws about names vary from state to state. One of the more common ways to give a person a name is to report a birth to the state in obedience to the laws requiring that births be reported; the state, if satisfied as to the accuracy of the report, issues a birth certificate. The name appearing on the birth certificate is often regarded as the person's full name, until some event causes the name to change.</p>\n\n<p>As an example, <a href=\"https://legislature.vermont.gov/statutes/section/18/103/05071\" rel=\"nofollow noreferrer\">Vermont law, beginning July 2019, requires</a> the report be made on a form approved by the Department of Health. The <a href=\"http://www.healthvermont.gov/sites/default/files/documents/pdf/Reg_Vital_Records.pdf\" rel=\"nofollow noreferrer\">rules</a> adopted by the Department of Health require</p>\n\n<blockquote>\n <p>Not exceed a total of 50 characters in length for each of First, Middle, and Last Name. The count of maximum allowable characters shall include hyphens, apostrophes, and periods when used as part of the name.</p>\n</blockquote>\n",
"score": 4
},
{
"answer_id": 36458,
"body": "<p>In order to change your name, you must file a petition for a change – <a href=\"https://www.kingcounty.gov/~/media/courts/DistrictCourt/pdfs/petnc.ashx?la=en\" rel=\"nofollow noreferrer\">here</a> is the form used by King County (WA) courts. This requires you to write in the full new name on a line that has a finite length. The court has the discretion to reject such a petition, though not capriciously. By definition, you cannot actually write the name in the space. You could perhaps fit in a finite algorithm describing the name, but your new name (if granted) would be the text algorithm, not the string that the algorithm computes. No state allows you to forgo the step of actually filling in the requested new name.</p>\n",
"score": 1
},
{
"answer_id": 88512,
"body": "<h2>It would be illegal 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></h2>\n<p>Your name has to be on a registry. The Registry is guarded by people in the registrar's office. They are allowed to reject names. An Infinitely long "middle name" or just a string of nonsense can be rejected as damaging to the child. The highest court in Germany also said: you can have at most 5 names, of which at most pairs can be hyphenated together.</p>\n",
"score": 1
}
] |
[
"united-states",
"name"
] |
Do milk crates have registered owners?
| 7 |
https://law.stackexchange.com/questions/5926/do-milk-crates-have-registered-owners
|
CC BY-SA 3.0
|
<p>Is there an actual milk crate registration system? What is the law by which use by other than the registered owner is punishable? </p>
<p>Is there an index I can use to see who these milk crates are registered to?</p>
<p>Where can I register my milk crates to reserve my rights?</p>
<p><a href="https://i.stack.imgur.com/01Cug.jpg" rel="noreferrer"><img src="https://i.stack.imgur.com/01Cug.jpg" alt="enter image description here"></a> </p>
<p><a href="https://i.stack.imgur.com/4jdzw.jpg" rel="noreferrer"><img src="https://i.stack.imgur.com/4jdzw.jpg" alt="enter image description here"></a></p>
| 5,926 |
[
{
"answer_id": 6062,
"body": "<p>Here is the state of California code regarding the question. I am sure a state by state inquiry could reveal other statutes.</p>\n\n<p><a href=\"http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=565-566\" rel=\"nofollow\">http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=565-566</a></p>\n\n<p>In California there is no specific registry but registration is performed by marking the container with a registered brand.</p>\n",
"score": 4
}
] |
[
"criminal-law",
"property",
"trespass",
"conversion",
"fda"
] |
How is Christmas' status as a federal holiday legal?
| 10 |
https://law.stackexchange.com/questions/6045/how-is-christmas-status-as-a-federal-holiday-legal
|
CC BY-SA 3.0
|
<p>It seems the United States federal government's establishment of Christmas, a religious holiday, as a federal holiday would be illegal under the establishment clause of the First Amendment.</p>
<p>How is it legal? Or is it case of no one has bothered to change it yet?</p>
| 6,045 |
[
{
"answer_id": 6055,
"body": "<p>It is perfectly legal and, many would argue, reasonable to have secular reasons to do something that happen to align with religious reasons. In other words, just because there's a religious reason to do something doesn't invalidate secular reasons to do the same thing.</p>\n\n<p><a href=\"http://www.nytimes.com/roomfordebate/2013/02/17/which-holidays-should-government-recognize/secular-reasons-to-mark-religious-days\">The New York Times</a> had an article in 2013 that explained the origin of the federal holidays in 1870:</p>\n\n<blockquote>\n <p>Congress acknowledged that Jan. 1 is \"commonly called New Year's Day\" and Dec. 25 is \"commonly called Christmas Day.\"</p>\n</blockquote>\n\n<p>and further on in the article:</p>\n\n<blockquote>\n <p>If you read the language of the [1870] bill, it's clear that Congress chose dates commonly celebrated as holidays by the American people, not for religious reasons but because of a history of recognition and celebration on those dates.</p>\n</blockquote>\n\n<p>The federal holidays make sense from an efficiency perspective. If a significant number of federal employees will be taking those days off for celebratory purposes then it doesn't make sense to open federal offices if there's not enough staff.</p>\n\n<p>Federal holidays only apply to federal employees and the District of Columbia. There's no requirement that your private employer, state employer or you recognize those holidays.</p>\n",
"score": 15
},
{
"answer_id": 6059,
"body": "<p>The answer is that it is not in fact a religious holiday. At least, as far as the government is concerned. The government doesnt presume or direct the manner in which you will spend the day...you can choose to worship the baby jesus or you can go bowling, or head out to the gun range to enjoy your precous second amendment rights...the govt cares not.</p>\n",
"score": 2
},
{
"answer_id": 6060,
"body": "<p>It is one of many examples of violation of the Constitution that is tolerated by the court for practical reasons.</p>\n\n<p>According to the <a href=\"https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution\" rel=\"nofollow\">First Amendment</a> \"Congress shall make no law respecting an establishment of religion...\" and Thomas Jefferson explicitly said that this means no law can prefer one religion to another, yet of course, this is exactly what making December 25th a national holiday does, because that day is sacred to Christianity.</p>\n\n<p>Of course, by the same logic you could also condemn <a href=\"https://en.wikipedia.org/wiki/Blue_law\" rel=\"nofollow\">Blue Laws</a> and all the various Federal laws that mandate Sunday and Saturday as holidays or having special significance.</p>\n",
"score": 1
},
{
"answer_id": 88504,
"body": "<p>This specific matter, and others related to it, have been challenged in the courts several times. I would direct those interested in this topic to the Supreme Court's <a href=\"https://s3.amazonaws.com/becketpdf/GanulinSCbrief.pdf\" rel=\"nofollow noreferrer\">Brief in Opposition of Respondents Jeffrey Niemer, Patty Hemsath, and Anne Dolan</a></p>\n<p>The summary finding is:</p>\n<blockquote>\n<p>The federal statute at issue in this case—which declares legal\nholidays on various days, including Christmas, and gives all federal\nemployees the day off on those days—is unmistakably constitutional.\nGovernments, always and everywhere, have marked in law culturally\nsignificant days and accommodated their voluntary celebration;\nculturally significant days, always and everywhere, include religious\nand nonreligious celebrations alike.</p>\n</blockquote>\n",
"score": 0
}
] |
[
"united-states",
"religion"
] |
Would this be a correct use of the WhatsApp trademark?
| 1 |
https://law.stackexchange.com/questions/78168/would-this-be-a-correct-use-of-the-whatsapp-trademark
|
CC BY-SA 4.0
|
<p>I am the developer of a mobile application that scans barcodes and QR codes. In addition to scanning codes, I also allow my users to create their own codes.</p>
<p>Recently I am considering adding more types of codes to generate, among which is the WhatsApp QR. This QR allows you to automatically open a conversation with a WhatsApp user by scanning the code.</p>
<p>In order to offer this functionality, I would need to use the "WhatsApp" trademark in addition to their logo. Meta has <a href="https://www.facebook.com/brand/resources/whatsapp/whatsapp-brand/" rel="nofollow noreferrer">this</a> page where it explains how their trademark can be used. After reading it I get the feeling that the type of use I want to give it would fall within the permitted use, but I'm not 100% convinced.</p>
<p>On the one hand, I would be using its commercial name and logo not as the main claim of my application, but as a definition of one of the many features of the app.</p>
<p>I have been analyzing other applications of the competition and I see that they do exercise this type of use. In addition, they also offer this feature with other brands such as Twitter or Facebook.</p>
<p>My question is if according to your opinion, you think that the type of use that I want to give to their name and logo would be within their third-party use policy.</p>
| 78,168 |
[
{
"answer_id": 78177,
"body": "<p>Ideally, you would say something like "Compatible with WhatsApp. Not endorsed or affiliated with WhatsApp."</p>\n<p>If you do that, it would be a valid nominative use of the other company's trademark and would face a very low risk of an infringement action.</p>\n",
"score": 3
},
{
"answer_id": 82624,
"body": "<h2>Nominative Use and Owner's Rights</h2>\n<p>The <a href=\"https://www.facebook.com/brand/resources/whatsapp/whatsapp-brand/\" rel=\"nofollow noreferrer\">WhatsApp brand guidelines page</a> seems to claim rights and impose restrictions not authorized by US trademark law, or the law of any country of which I am aware.</p>\n<p>Specifically:</p>\n<ul>\n<li>\n<blockquote>\n<p>Use the WhatsApp name and logos found on our WhatsApp Brand Guidelines website only, and not those found anywhere else.</p>\n</blockquote>\n<p>If a person is using one of the whatsapp marks to refer to that company or its programs or services in a critical comment, that is valid <em><strong>nominative use</strong></em> and the company may not control what form of the mark is used, provided that no false impression of approval or sponsorship is given.</p>\n</li>\n<li>\n<blockquote>\n<p>Do not use other trademarks, names, domain names, logos, or other content that could be confused with WhatsApp.</p>\n</blockquote>\n</li>\n</ul>\n<p>The company has no right to prohibit such use when a person us making proper nominative use of a mark.</p>\n<ul>\n<li>\n<blockquote>\n<p>When you're talking about WhatsApp, always capitalize the letters "W" and "A," and never modify or abbreviate the word "WhatsApp."</p>\n</blockquote>\n<p>Again, If this is proper nominative use, the company has no right to control the Form of the use, as long as no false impression of sponsorship or approval is given;</p>\n</li>\n</ul>\n<p>Wikipedia for example, <a href=\"https://en.wikipedia.org/wiki/Wikipedia:Manual_of_Style/Trademarks\" rel=\"nofollow noreferrer\">forbids</a> its editors to comply with such stylistic requirements, stating:</p>\n<blockquote>\n<p>From among those, choose the style that most closely resembles standard English – regardless of the preference of the trademark owner.</p>\n</blockquote>\n<ul>\n<li>\n<blockquote>\n<p>WhatsApp doesn't permit or license its trademarks, logos or other intellectual property for use on merchandise like toys, apparel, accessories or packaging without explicit prior written approval.</p>\n</blockquote>\n<p>Since the marks are not registered for or used on such goods they probably get little or no protection in such a case, unless they are classified as "famous" marks.</p>\n</li>\n<li>\n<blockquote>\n<p>Avoid using the WhatsApp name or logos, or a combination of these, as a verb.</p>\n</blockquote>\n<p>As long as this is not part of an attempt to improperly use their marks to create confusion, trade on their goodwill, or otherwise falsely imply approval or sponsorship, the company has no right to control the grammar of comments about it products.</p>\n</li>\n</ul>\n<p>Other restrictions on that page might not stand up to legal challenge either. However, such a challenge might be costly, even if successful.</p>\n<h3>Use of Abbreviation</h3>\n<p>A comment by <a href=\"https://law.stackexchange.com/users/48697/caucukien\">user CauCuKien</a> asks:</p>\n<blockquote>\n<p>Can I use WA instead "WhatsApp" on my app title like "Auto Reply for WA"?</p>\n</blockquote>\n<p>Since in such a case "WA" would be intended to be understood as meaning "WhatsApp", the rules would be much the same as if the app caption were to be "<em>Auto Reply for WhatsApp</em>". That is, one may, in general, use a trademark, or an abbreviation of that mark to indicate that a product is compatible with another product, or is intended to be used with that other product.. A product might, for example, be called "RedyReply for Windows" to indicate that it is designed to be used on the Windows OS, without obtaining permission from Microsoft. But the maker must be careful not to say, imply, or give the impression that the product is endorsed, approved, or sponsored by the owner of the trademark, or is made by the same person or people or firm who made the trademarked product.</p>\n<p>It is good practice to include a disclaimer, making this clear. Something like:</p>\n<blockquote>\n<p>RedyReply is designed for use on Windows versions 9, 10, and 11. It has been tested and works well on those systems, but it is not officially approved or sponsored by Microsoft, the owner of the trademark on "Windows".</p>\n</blockquote>\n<p>By including such a disclaimer, the maker of the (fictional) "RedyReply" does not pretend to a relationship with Microsoft that does not exist. Similarly, an app with a display title "<em>Auto Reply for WhatsApp</em>" would be wise to include a disclaimer or statement making it clear who owns the mark "WhatsApp" and that the app is not officially recognized, approved, or sponsored by the mark owner. The same would be true if the display used "WA" rather than "WhatsApp". Using the abbreviation does not make that much difference.</p>\n<p>Such use of a mark, or its abbreviated form, is <em><strong>nominative use</strong></em> and is specifically allowed by US trademark law, and is permitted under the trademark law of all other countries that I know of, although I have not checked the law of all the many countries in the world. But it is no longer nominative use if a reasonable person would be led to believe that the product is sponsored, endorsed, or approved by the owner of the mark, or comes from the same source.</p>\n",
"score": 2
}
] |
[
"trademark"
] |
Can a student ask other students about their grades and then publish an average under FERPA?
| 1 |
https://law.stackexchange.com/questions/88496/can-a-student-ask-other-students-about-their-grades-and-then-publish-an-average
|
CC BY-SA 4.0
|
<p>Can a student ask other students (>14) to fill out an online form disclosing their grade on an assignment and then publish an average of the grades?</p>
<p>Or is the implicit permission given by filling out a survey insufficient?</p>
<p>More context from <a href="https://studentprivacy.ed.gov/frequently-asked-questions" rel="nofollow noreferrer">studentprivacy.ed.gov</a>:</p>
<blockquote>
<p>Schools may use their judgment in determining whether an unaccompanied minor is responsible enough to exercise certain privileges, such as inspecting and reviewing education records and providing consent for disclosure. 34 CFR § 99.5(b)</p>
</blockquote>
| 88,496 |
[
{
"answer_id": 88497,
"body": "<p>FERPA merely binds education institutions that receive federal funding to adopt policies against improper disclosure of student information. It does not affect all disclosure of that information itself. In particular, FERPA would not prevent students or their parents from disclosing their own records or grades.</p>\n",
"score": 5
}
] |
[
"united-states",
"data-protection",
"minor",
"education",
"ferpa"
] |
Protection from litigation on work done for a friend
| 1 |
https://law.stackexchange.com/questions/88459/protection-from-litigation-on-work-done-for-a-friend
|
CC BY-SA 4.0
|
<p>I am a resident of the state of Pennsylvania in the United States, and I occasionally do website design and hosting support for small businesses in my area. I generally don't do this for money, it is more because I enjoy doing it and helping out friends and acquaintances I know through local small business organizations and meetups, and I hate to see these scammy SEO optimization companies charging what I feel are exorbitant fees so I have offered to help a number of small businesses with their website and email hosting for what I feel is fair and not exploitative. Generally I prefer barter-in-kind for my services (Eg. Free or discounted remodeling, lawn service, tax services, etc...) and my accountant makes sure I am square with the IRS.</p>
<p>I am working on a website for a customer that has a number of products that he wishes to sell on his website, and as I usually do websites through customized Wordpress templates, I have the option to install a commerce plugin that will handle the payment processing side of things. I am fully qualified and comfortable to do this work, however I have only historically ever done integration with payment processors in the role of an employee for another organization, and as such I never had to worry much about the potential damage from cyber crime.</p>
<p>My concern is that if I set this up for this client, and (knock on wood) the client or his customers became negatively impacted by a security exploit in the plugin or payment processor, then I would be potentially drawn into litigation.</p>
<p>As I do not have an LLC and this is more of a hobby job for me, I could stand to fall into personal bankruptcy in the worst case scenario no? Further I looked into cyber crime insurance a few years back for an unrelated matter and the quote I had seen given to a different client was far beyond the realm of affordability for either myself or my clients.</p>
<p>What steps short of establishing an LLC can I take to protect myself here? Is there any kind of legal document or agreement that I could sign with my client that would absolve me of any legal responsibility for the use of the websites online store such that I am at least somewhat protected?</p>
<p>If not then I am thinking I will not be comfortable doing an online store for this client.</p>
| 88,459 |
[
{
"answer_id": 88461,
"body": "<p>First of all, the use of an LLC to do such work would not protect you from liability for negligence or intentional misconduct.</p>\n<p>To do such work in reasonable security, you would need to inform your employer, in writing, making it plain that for the security of the e-commerce transactions, you would be depending on the security of the third-party tech. You would also make the extent of your experience in using such technology clear. Sources on the security of the plugin could also be referenced.</p>\n<p>It might well be wise to have an actual written contract, that spells out what you would, and would not, be responsible;e for, in dong this website. In particular such a contract could make it clear that you will be relying on third-party software (which would be named) for the security of the "store" part of the site, and that you could not be responsible for the security of that plugin.</p>\n<p>There are various reliable published and online sources for drafts for website development contracts. There should be no need to create one from scratch. Indeed it is better not to try to write such an agreement from nothing. But you could (and might be wise to) have a lawyer review the final draft of any such agreement. That should not be overly expensive.</p>\n<p>Such a contract woulds offer much better protection than the use of an LLC. If you have an LLC it could be used as well, but the protection that gives is from debt liability, not from liability for professional negligence. It also helps one document business income and expanses if used consistantly, and can be helpful for tax purposes.</p>\n",
"score": 2
}
] |
[
"united-states",
"business"
] |
Does two-year home residency apply to postdoctoral fellowships of national science foundations?
| 1 |
https://law.stackexchange.com/questions/88491/does-two-year-home-residency-apply-to-postdoctoral-fellowships-of-national-scien
|
CC BY-SA 4.0
|
<p>In the U.S., J-1 visa can be subject to a two-year home residency requirement (212e) if sponsored by a US or foreign government agency.</p>
<p>Does this apply to postdoctoral researchers employed at a US university if they are funded by a fellowship of the National Science Foundation (NSF) or a similar <em>foreign</em> national science foundation? Or does this only apply to bilateral government-funded exchange programs?</p>
| 88,491 |
[
{
"answer_id": 88494,
"body": "<p>The requirement is specified here (<a href=\"https://www.law.cornell.edu/uscode/text/8/1182#e\" rel=\"nofollow noreferrer\">8 USC 1182(e)</a>). The first condition leading to mandatory return is</p>\n<blockquote>\n<p>(i) whose participation in the program for which he came to the United\nStates was financed in whole or in part, directly or indirectly, by an\nagency of the Government of the United States or by the government of\nthe country of his nationality or his last residence,</p>\n</blockquote>\n<p>thus a person sponsored by the Norwegian Research Council would also have to return, irrespective of any cooperation. But a person sponsored by Chase Bank (in the US) or Sparebank (in Norway) would not be subject to thatrequirement. NFR and NSF are at least indirectly financed in part by agencies of their respective national governments, and it is not limited to e.g. Fulbright exchange. The requirement also holds irrespective of funding, in the case of admission to pursue medicine, or if the director of USIA had designated as clearly requiring the services of persons in the person's field of specialized knowledge.</p>\n",
"score": 0
}
] |
[
"united-states",
"immigration"
] |
Does a tenured professor whose salary was set to 0 have a case for constructive dismissal?
| 13 |
https://law.stackexchange.com/questions/88465/does-a-tenured-professor-whose-salary-was-set-to-0-have-a-case-for-constructive
|
CC BY-SA 4.0
|
<p>See <a href="https://www.ams.org/journals/notices/202302/rnoti-p196.pdf?adat=February%202023" rel="noreferrer">https://www.ams.org/journals/notices/202302/rnoti-p196.pdf?adat=February%202023</a></p>
<p>The head of the Purdue math department set a tenured professor’s salary to 0. This seems very strange to me and I have two questions.</p>
<p>First, does this violate minimum wage laws?</p>
<p>Second, is this constructive dismissal?</p>
| 88,465 |
[
{
"answer_id": 88468,
"body": "<p>Without commenting on the relatively strange situation itself, it is still useful to actually read what was actually said than what was described in a letter from a third person, even if the relayed information is technically true.</p>\n<p>The supposed basis for the claim of a zero salary is from an email allegedly sent by the department head (<a href=\"https://web.math.princeton.edu/%7Ecf/DonnellyAppendices.pdf\" rel=\"noreferrer\">appendix 15</a>):</p>\n<blockquote>\n<p>In short, you are not teaching in 2022/2023 and you have not submitted the required outline of\nyour research or other engagement. I am very sorry that we cannot establish that you will be\ndoing any work expected of a faculty member. Thus we cannot pay you. Starting with the Fall\nsemester, your pay will be reduced to zero and you will be placed on unpaid personal leave.</p>\n</blockquote>\n<p>Essentially, the professor is being put on an unpaid leave because allegedly he is not doing any work. Consequently, minimum wage laws are not engaged even if the professor is not exempt as teachers since he is not being required to do any work.</p>\n<p>In the U.S., employers generally can do this (unless a work contract provides otherwise); in many circumstances, it is called being laid off (though the term has attracted a permanent connotation in parts of North America) or being suspended.</p>\n<p>An indefinite unpaid leave can be considered constructive dismissal if the employer does not reasonably allow the employee to return to work. It may not be constructive dismissal if the unpaid leave is prescribed by binding employer policies or because the employee refuses to work (and the employer allows the employment relationship to continue). Even if it is constructive dismissal, it is not automatically wrongful.</p>\n",
"score": 23
},
{
"answer_id": 88467,
"body": "<p>This does indeed look like a constructive dismissal. Whether his offenses are serious enough to dismiss a tenured professor for cause is unclear.</p>\n<p>If they have banned him from teaching any courses, however, as it appears that they have, I'm not sure if it would violate minimum wage laws as there are no hours in which he is required to work.</p>\n",
"score": 5
},
{
"answer_id": 88470,
"body": "<p>The university has an official policy regarding <a href=\"https://www.purdue.edu/policies/human-resources/b-48.html\" rel=\"nofollow noreferrer\">termination of faculty</a>. Though he is listed as a Profesor (not Assistant Professor), that only <em>probably</em> implies tenure – I will assume that he has tenure. The employment contract (which may and often is only implicit) will point to a vague assignment of duties that follow having the appointment. A person appointed to a faculty position receives a salary for the duration of the appointment – it is not an hourly job. Therefore, the university has a legal obligation to pay the faculty person for the duration of the appointment.</p>\n<p>A tenured professor's appointment is "for life", or until terminated either by the employee, or according to the above rules, is terminated by the university. There is a formal procedure that must be followed, and failure to follow the procedure is pretty much the only way that a de-tenuring and firing decision will be overturned by the courts (violation of discrimination law is the other main way). The procedure does not allow the department chair to fire a faculty member. There is no indication that the required termination hearing was held.</p>\n<p>It would be constructive dismissal to reduce an employee's salary to zero; dismissal without following university policies and procedures would be wrongful.</p>\n",
"score": 4
}
] |
[
"united-states",
"employment"
] |
Copyright, Binary Code, and Share-Alike Clauses?
| 1 |
https://law.stackexchange.com/questions/88479/copyright-binary-code-and-share-alike-clauses
|
CC BY-SA 4.0
|
<p>I do extensive personal work in the modding/romhacking space of games. This space is about taking existing commercial games and adding custom content or features to them, generally through unofficial means. These changes are then released as patches, so as not to violate the copyright or DRM of the original game. I write specs based on my research, utilities, and some hacks myself. The last couple of years, when I release utilities (which these days I write in Python - a non-compiled language) or specs I use the <a href="https://creativecommons.org/licenses/by-sa/4.0/" rel="nofollow noreferrer">Creative Commons Attribution-ShareAlike 4.0 International</a> license, as attribution and share-alike are my two copyright concerns.</p>
<p>However, I'm now looking to publish some closed-source hacks as patches. They are utility hacks that are useful to other hackers making their hacks, e.g. one of mine optimizes one part of the game's code, increasing performance and reducing slowdown by several percent. I'm wondering how copyright even works in this case. As intended, the license allows them to creative derivative hacks, so I could certainly see attribution being a reasonable and enforceable requirement. But does the concept of share-alike even apply in a context where I'm releasing binary code and anyone who derived from my hack would necessarily have to release their binary code as well, as there's no point in making a hack you never publish? If not then I guess the question is moot and I should just drop the share-alike clause entirely. But if it does apply, how does it apply to this circumstance?</p>
<p>I do like the idea of requiring improvements to my code (e.g. Person X makes Improved Improved Performance Hack that adds further optimizations on top of mine) to be made available as well, but I am not aware of any way in which the law differentiates between utility hacks like that and complete hacks, e.g. where my optimizations are used in a much bigger hack that has custom levels, etc. In such a case I certainly don't want to force limitations on their entire hack by forcing a specific license just because they incorporate my improvements.</p>
| 88,479 |
[
{
"answer_id": 88492,
"body": "<p>First of all, when you say</p>\n<blockquote>\n<p>These changes are then released as patches, so as not to violate the copyright or DRM of the original game.</p>\n</blockquote>\n<p>... I assume you have consulted an attorney with expertise in the relevant topic and jurisdiction, because otherwise, you might be in for a bad surprise.</p>\n<p>For the sake of the argument, let’s assume that you indeed are free to distribute your work under whatever license you desire. I suspect your surprise comes from not understanding what "sharealike" means in the CC-BY-SA license (<a href=\"https://creativecommons.org/licenses/by-sa/4.0/legalcode\" rel=\"nofollow noreferrer\">full text here</a>).</p>\n<h2>"Sharealike" is purely about the license, not the format</h2>\n<p>The format of your work is irrelevant (Python code, binary executables, images, sounds, whatever as long as it can be copyrighted). The CC license cover it all the same.</p>\n<p>The share-alike clause only imposes that someone who uses your work to produce something else and distribute it must license that something else under a compatible license. It does not impose that it should be the same or similar format. In fact, it says in section 2(a)4:</p>\n<blockquote>\n<p>Media and formats; technical modifications allowed. The Licensor authorizes You to exercise the Licensed Rights in all media and formats whether now known or hereafter created, and to make technical modifications necessary to do so. (...)</p>\n</blockquote>\n<p>In particular, if you publish source code, someone else can come around and produce a binary patch based on that, without publishing the associated code, and they’re in the clear as long as they respect the license clauses. Alternatively, if you publish a binary executable, they can try and decompile it and publish source code under the same conditions.</p>\n<p>If you want to prevent that kind of use, you need a different license. Typically, the need to provide source code alongside binaries is contained in so-called "copyleft" clauses, such as the one included in the <a href=\"https://en.wikipedia.org/wiki/GNU_General_Public_License\" rel=\"nofollow noreferrer\">GNU GPL</a> (but also other licenses).</p>\n<h2>Wait, I read something about "effective technological measures"</h2>\n<p>The CC-SA license says at section 3(b)3:</p>\n<blockquote>\n<p>You may not offer or impose any additional or different terms or conditions on, or apply any Effective Technological Measures to, Adapted Material that restrict exercise of the rights granted under the Adapter's License You apply.</p>\n</blockquote>\n<p>One might superficially imagine that publishing a closed patch is such an "effective technological measure". However, if you scroll up, such measures are</p>\n<blockquote>\n<p>those measures that, in the absence of proper authority, may not be circumvented under laws fulfilling obligations under Article 11 of the WIPO Copyright Treaty adopted on December 20, 1996, and/or similar international agreements.</p>\n</blockquote>\n<p>Roughly speaking, that means DRMs. Not purely technical barriers such as a difficulty to convert from one format to another.</p>\n",
"score": 2
}
] |
[
"copyright",
"software",
"creative-commons",
"copyright-notice",
"share-alike"
] |
How common actually are perjury proceedings?
| 5 |
https://law.stackexchange.com/questions/88440/how-common-actually-are-perjury-proceedings
|
CC BY-SA 4.0
|
<p>I’ve read a number of tenant advice materials that caution that landlords frequently lie at court and so one really has to be prepared for this to potentially happen.</p>
<p>Meanwhile, I have read a number of civil court decisions where judges quite convincingly articulated their suspicions of a party to the case having been dishonest about the facts, and laid out their reasons for being suspicious of the party’s honesty and credibility. Yet, the only consequence of this had appeared to be that the party was disbelieved on that point of fact which was in dispute and consequently (in these cases) lost the case(s). At no point were the disbelieved parties warned that they may face other consequences for the fact that they were found to have lied to and misled the court, much less proceeded against for having apparently done so.</p>
<p>Likewise, in a criminal context, it seems fairly often that a defendant would testify insistently and adamantly to a false narrative of their innocence perhaps on the basis of a concocted false alibi, but is nonetheless found guilty. In these cases it seems that the consequence is basically that they are convicted, with perhaps less sympathy or concession than they may otherwise have gotten for pleading guilty honestly at sentencing, but there is no further separate proceedings for lying in open court.</p>
<p>How often does it actually happen that a party is actually proceeded against for perjury / misleading a judicial body / contempt of court, or faces any other consequences for doing so other than losing their dispute/point/case? And whatever the answer, why is this?</p>
<p>Is there any precise statistical data available as to the frequency of such occurrences? Honestly it seems like courts would hardly have the manpower and resources to proactively take it upon themselves to go after and proceed against everyone who has ever made a dubious statement to them. Are there any notable cases that come to mind which one may consider for a better understanding of the issue?</p>
<p>England and Wales requested, all jurisdictions welcome.</p>
| 88,440 |
[
{
"answer_id": 88446,
"body": "<h2>Statistics</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.abs.gov.au/statistics/people/crime-and-justice/criminal-courts-australia/2020-21#data-downloads\" rel=\"nofollow noreferrer\">Data</a> is not kept at the level of <a href=\"https://www.abs.gov.au/methodologies/criminal-courts-australia-methodology/2020-21#australian-and-new-zealand-standard-offence-classification\" rel=\"nofollow noreferrer\">granularity</a> to single out perjury. Instead, it is captured within the category "156 Offences Against Justice Proceedings", which also includes things like Hindering Investigations, False Accusations, Concealing Offences or Evidence, Perverting the Course of Justice, and Corruption of, Threats to, and Influencing of witnesses, jurors, and judges.</p>\n<p>Over the last ten years, they have averaged 16,334 clearances a year, with a high of 19,775 and a low of 11,752. It must be noted that the two lowest figures were from 2019-20 and 2020-21 when the courts were impacted by the pandemic, and overall clearances were down by about 100,000 and 50,000, respectively. They represent slightly less than 3% of all criminal clearances. This can be compared with 37% for traffic offences, 11% for assault, 1% for sexual assault, 8% for theft, 9% for illicit drugs, and 0% for homicide - all rounded to the nearest per cent.</p>\n<h2>The crime of perjury</h2>\n<p><a href=\"/questions/tagged/new-south-wales\" class=\"post-tag\" title=\"show questions tagged 'new-south-wales'\" aria-label=\"show questions tagged 'new-south-wales'\" rel=\"tag\" aria-labelledby=\"new-south-wales-container\">new-south-wales</a></p>\n<p>Perjury and False Statements are dealt with in <a href=\"https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040#pt.7-div.4\" rel=\"nofollow noreferrer\">Division 4</a> of the <em>Crimes Act</em> 1900. Perjury requires a "person who in or in connection with any judicial proceeding makes any false statement on oath concerning any matter which is material to the proceeding, knowing the statement to be false or not believing it to be true, is guilty of perjury". There is the lesser offence of False Statement on Oath not amounting to Perjury which only requires a "person who makes on oath any false statement knowing the statement to be false or not believing it to be true."</p>\n<p>Further, <a href=\"https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040#sec.338\" rel=\"nofollow noreferrer\">s338</a> provides that prosecutions for perjury can only be initiated by the Director of Public Prosecutions (DPP), the Attorney General, or the judicial officer before whom the perjury was allegedly committed. And in the latter case, the DPP must be informed. This deliberately restricts prosecution for perjury to the highest levels in the administrative government and the particular court where the offence occurred. This appears to be a deliberate decision to restrict such prosecutions to only those with the greatest public interest.</p>\n<h2>There’s a huge difference between not believing someone and proving beyond reasonable doubt that they committed perjury</h2>\n<p>Looking at the elements of the crime:</p>\n<ul>\n<li>"in or in connection with any judicial proceeding" is quite broad; it refers to the investigation stage, not just the actual hearing.</li>\n<li>"false statement" excludes any statements that are factually correct even if they might be misleading or deceptive.</li>\n<li>"on oath" requires the speaker to be sworn or affirmed. It includes written oaths like statutory declarations and affidavits but does not include unsworn statements like statements to police or other investigators.</li>\n<li>"matter which is material" requires the false statement to be influential in the outcome of the case.</li>\n<li>"knowing the statement to be false or not believing it to be true" is the real hurdle. You have to produce evidence of the perjurer's state of mind at the time that they made the statement. It is not enough that the statement is untrue or contradicts a previous statement of the alleged perjured - they have to have known they were lying. If they merely remembered incorrectly, were confused, or had a false memory, that isn't perjury.</li>\n</ul>\n<p>Courts and tribunals are well aware of the fallibility and mutability of human <a href=\"https://en.wikipedia.org/wiki/Eyewitness_memory\" rel=\"nofollow noreferrer\">memory</a>, and accord witness testimony is accorded a much lower weight than physical, documentary, or circumstantial evidence.</p>\n<p>People remember things that didn't happen: testifying what you remember is neither "knowing the statement to be false or not believing it to be true". It is possible and relatively easy to change someone's memory of an event (intentionally or accidentally), at least in small but significant details like who else was there or what somebody was wearing. It's even easier to change your own memories unknowingly, especially if you have an incentive for remembering events slightly differently - like not going to jail. Rules of evidence provide strict limits on what evidence is admissible specifically to guard against this, but things always get through.</p>\n<p><strong>Except in the most egregious cases, tribunals assume that the witness believes what they are saying even if the tribunal doesn't.</strong></p>\n",
"score": 2
},
{
"answer_id": 88471,
"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>In England and Wales, in the years from 2004 to 2008 there were between 83 and 155 prosecutions for perjury each year (about 2-3 per million people), with a high (but not 100%) conviction rate.</p>\n<p><a href=\"https://i.stack.imgur.com/Sg4R6.png\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/Sg4R6.png\" alt=\"enter image description here\" /></a></p>\n<p>(<a href=\"https://www.whatdotheyknow.com/request/statistics_for_perjury_in_all_uk?unfold=1\" rel=\"nofollow noreferrer\">Freedom of Information Request Source</a>)</p>\n<p>Note, however, that not all (or even most) prosecutions for perjury involve in court testimony. Out of court statements made under penalty of perjury or under oath (such as in affidavits) can also be a basis of a perjury prosecution.</p>\n<p><a href=\"https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/populationestimates/bulletins/populationandhouseholdestimatesenglandandwales/census2021unroundeddata\" rel=\"nofollow noreferrer\">For comparison's sake</a> with the information on Colorado below: "On Census Day, 21 March 2021, the size of the usual resident population in England and Wales was 59,597,542 (56,490,048 in England and 3,107,494 in Wales)" which is about 12 times the population of Colorado, which has roughly the same per capita rate of perjury prosecutions.</p>\n<p><a href=\"/questions/tagged/colorado\" class=\"post-tag\" title=\"show questions tagged 'colorado'\" aria-label=\"show questions tagged 'colorado'\" rel=\"tag\" aria-labelledby=\"colorado-container\">colorado</a></p>\n<blockquote>\n<p>How often does it actually happen that a party is actually proceeded\nagainst for perjury / misleading a judicial body / contempt of court,\nor faces any other consequences for doing so other than losing their\ndispute/point/case? And whatever the answer, why is this?</p>\n</blockquote>\n<p>Perjury prosecutions based upon court testimony <a href=\"https://www.dailykos.com/stories/2007/3/6/308760/-\" rel=\"nofollow noreferrer\">do occur and result in convictions</a>, but they are very rare.</p>\n<p>Colorado is a state with a population of roughly five million people. There are many hundreds of thousands of court cases in the state each year in which often multiple affidavits or declarations are filed and depositions are taken under oath, there are thousands of evidentiary hearings in the state courts of the state each year, and there are myriad documents executed by its citizens under oath or under penalty of perjury outside a court setting (e.g. in government paperwork).</p>\n<p>An intentional false statement of material fact (i.e. a lie) made in testimony made under oath in a hearing, trial or deposition, or in an affidavit or a declaration or other document signed under penalty of perjury, can be prosecuted criminally in a perjury case under state law.</p>\n<p>Most of the statements made under oath do not contain perjury, but a significant minority percentage of such statements do. Even if perjury were committed just 1% of the time (which is probably low), there would be thousands of instances of perjury committed each year in the State of Colorado.</p>\n<p>How many perjury prosecutions were commenced in the entire state of Colorado in all of its state courts (except Denver county court which is statistically separate) in the 2019 fiscal year (ending June 30, 2019)?</p>\n<p><strong>13.</strong></p>\n<p>There were 5 filed in District Court, which were probably felonies, not all of which would have involved in court testimony.</p>\n<p>There were 2 filed in juvenile delinquency actions (and most likely did not involve in court testimony).</p>\n<p>There were 6 filed in County Court, which were either misdemeanors or were criminal complaints that would later have been transferred to District Court and would be in that case duplicative. These cases are also unlikely to have involved in court testimony.</p>\n<p>A significant share of those prosecutions, moreover, would be for instances of perjury not involving testimony in court. Probably only 1-4 cases in Colorado involving court testimony under oath are prosecuted in a given year out of thousands of cases each year where perjury actually happens. It would be rare for more than one to go to trial each year and in many years, no cases of this kind would go to trial.</p>\n<p>For example, some of those prosecutions would involve a false statement made under penalty of perjury in an application or report to an administrative agency.</p>\n<p>There is no reason to think that plea bargaining rates are significantly different in perjury cases relative to other kinds of criminal cases, so there are probably no more than one or two perjury trials in the entire state of Colorado in a typical year.</p>\n<p>Despite the fact that the threat of a criminal prosecution for perjury is a backbone of our court system and many of our administrative and civil legal processes outside of court, perjury prosecutions are almost never brought.</p>\n<p>Prosecution practices may differ from state to state, but Colorado is almost always statistically typical of the U.S. on almost every state by state statistic (except obesity, Colorado is the thinnest state). Colorado's pattern of perjury prosecutions is the norm. The threat of criminal prosecution for lying under oath is ever present, but the reality of such a criminal prosecution is almost non-existent.</p>\n<p>Contempt of court proceedings brought in the same criminal case or civil case in which the perjury took place are possible and probably more common than perjury prosecutions (and have basically a misdemeanor offense punishment in this context) but are still very rare.</p>\n<p>One of the reasons that this is rare is epistemological.</p>\n<p>Proving that someone made a false statement of a material fact is relatively easy and is sufficient to get a correct result in the matter being decided by the court. But proving that someone made a false statement intentionally, rather than due to a mistake of memory or perception is much more difficult to establish beyond a reasonable doubt. Even in cases where a judge makes a finding of fact that a particular statement upon which a witness testified is not credible, judges typically go to great pains to refrain from accusing the witness of actually lying unless no other explanation is possible.</p>\n<p>Another factor is that when a party to a case lies under oath and the judge or jury doesn't believe that party's testimony, the negative result in the lawsuit or criminal case that results from that determination is often considered a sufficient punishment so the extra burden of a collateral perjury prosecution is not justified.</p>\n",
"score": 1
}
] |
[
"evidence",
"civil-procedure",
"perjury",
"any-jurisdiction",
"contempt-of-court"
] |
Can an easement be removed if it's not necessary?
| 2 |
https://law.stackexchange.com/questions/88478/can-an-easement-be-removed-if-its-not-necessary
|
CC BY-SA 4.0
|
<p>There are two easements across two parcels of my property. Both are 50-foot wide, adjacent, appurtenant, easements that are used by the individual who originally sold our property to the people we purchased it from. He uses the easements to have someone else mow the undeveloped parcel north of us. That parcel is adjacent to, and accessible from, the highway that borders it. He does not need the easements to access it.</p>
<p>Would it be possible to have the easements removed without his consent?</p>
<p>Some extra details I thought might be helpful are below.</p>
<p>Both easements are in a revocable living trust.</p>
<p>The description of the easements, found in the corrective trustees deed, is extremely vague as far as what it's purpose is. Other than describing where the easements are, the document just says, "And reserving for the party of the first part, an easement for ingress and egress access and utilities over and across said parcel 2 to benefit the real estate owned by the party of the first part immediately to the north of parcel 1." The first easement mentioned is only described in terms of its location.</p>
<p>There are no visible utility lines on the easements. I assume there may be underground utilities, but the language, "over and across", seems like it may not include that.</p>
| 88,478 |
[
{
"answer_id": 88484,
"body": "<h2>An easement cannot be extinguished unilaterally</h2>\n<p>Even if it is no longer used.</p>\n<p>If you can get the agreement of the other party, then, yes, it can be extinguished. However, you have to remember that what your neighbour has is a <em>property interest</em>: people don’t just give away property - you’ll probably have to buy it.</p>\n",
"score": 2
}
] |
[
"united-states",
"real-estate",
"trusts-and-estates",
"illinois",
"easement"
] |
Is it a breach of GDPR and DPA to say a colleague is sick and off work?
| 5 |
https://law.stackexchange.com/questions/88480/is-it-a-breach-of-gdpr-and-dpa-to-say-a-colleague-is-sick-and-off-work
|
CC BY-SA 4.0
|
<p>This is a hypothetical question. Suppose a customer calls asking for a colleague, call her Alice, and Bob answers the phone and tells the customer that Alice is off sick with the flu. The customer then says he will call back next week when she's better.</p>
<p>Suppose Bob's boss heard this and said that Bob had breached GDPR and DPA by telling the customer about Alice being off sick. Is the boss right and what punishment does Bob face if he is?</p>
| 88,480 |
[
{
"answer_id": 88481,
"body": "<p>Possibly, but probably not.</p>\n<p>Personal data is any information relating to an identifiable person. The statement “Alice is sick” is information, and relates to Alice who is identifiable. Processing personal data is not inherently illegal, but does require a legal basis per Art 6 GDPR, such as a legitimate interest. Here, the information is data concerning health, processing of which is prohibited unless one of the explicit exceptions applies (such as explicit consent, or legal obligations). So it is legitimate to have concerns on whether disclosure of this information would be legal.</p>\n<p>If these rules were breached, that would be on the data controller. Here, the company would be the data controller, not Bob (unless Bob acted against training and instructions and processed the personal data for his own purposes).</p>\n<p>However, GDPR probably doesn't apply to this specific interaction. In Art 2(1), the GDPR says that</p>\n<blockquote>\n<p>This Regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system.</p>\n</blockquote>\n<p>A conversation itself would not be subject to GDPR rules – there is no filing system or similar structured data involved. What GDPR would prevent is to keep records on Alice's health status, but doesn't necessarily prevent talking about it informally. For example, the <a href=\"https://datenschutz-hamburg.de/pressemitteilungen/2020/10/2020-10-01-h-m-verfahren\" rel=\"noreferrer\">EUR 35.3M fine against H&M in Germany</a> was imposed not because managers talked with employees about personal matters, but because they then maintained detailed files about those personal matters.</p>\n<p>Data controllers are responsible though for ensuring security and compliance through appropriate technical and organizational measures (TOMs). TOMs can include things such as non-disclosure agreements and training for staff. If Bob acts against such training, there could be repercussions along the Bob–Company employment relationship. But that would mostly be an employment law thing, not so much a GDPR thing.</p>\n",
"score": 6
}
] |
[
"united-kingdom",
"gdpr",
"privacy",
"england-and-wales",
"data-protection-act"
] |
Was the Haitorei ever repealed?
| 4 |
https://law.stackexchange.com/questions/79053/was-the-haitorei-ever-repealed
|
CC BY-SA 4.0
|
<p>In 1870, the first <a href="https://en.wikipedia.org/wiki/Hait%C5%8D_Edict" rel="nofollow noreferrer">Sword Abolishment Edict</a> (廃刀令, Haitōrei) banned farmers and merchants from impersonating samurai and wearing swords in public. In 1876, the second Sword Abolishment Edict followed, banning even former samurai from wearing swords in public. As a result, carrying swords in public became reserved for either current military or police personnel or a small select group of people that retained samurai status (mostly ex-daimyo).</p>
<p>Nowadays, carrying swords in public is regulated by the <a href="https://en.wikipedia.org/wiki/Firearm_and_Sword_Possession_Control_Law" rel="nofollow noreferrer">Japanese Firearm and Sword Possession Control Law</a> (銃刀法剣類所持等取締法). Regulated here means forbidden, as any blade longer than a specified length (15 cm for single-edged, and 5.5 cm for double-edged) is prohibited from being possessed or carried in geneeral. As far as I understand the main parts, nowadays you can only obtain a license to possess a blade longer than 15 cm, but not one to carry a sword (or firearm) in public. You can also transport your sword to perform the reason you have obtained the license for, e.g. to training, or for other <em>justifiable reasons</em>, e.g. to maintenance, but you can not carry it (openly) in public.</p>
<p>However, that modern law was first enacted in 1958, and while it is a spiritual successor of the Haitōrei and even earlier Sword-hunts and gun control legislation, I fail to find a note of repeal <a href="https://digitalcommons.law.uw.edu/wilj/vol9/iss1/7/" rel="nofollow noreferrer">at the start of the modern text</a>, which would note that the Sword Abolishment Edict would be replaced by the modern law. Am I missing a law in the legislation line, or is the Haitō edict still <em>good law</em> and valid?</p>
| 79,053 |
[
{
"answer_id": 79058,
"body": "<p>Japanese Wikipedia and Google Translate pointed me to the "<strong>Act on the Arrangement of Laws Related to the Cabinet and the Prime Minister's Office (Act No. 203 of 1954) No. 4.</strong>" A Japanese government website and Google Translate seemed to confirm that Act No. 203 of 1954 (Showa 29) explicitly abolished a law/regulation entitled "Prohibition of outer band swords wearing uniforms such as military uniforms, police officers, etc.", which seems to be the Haitorei (the same name also shows up on the Japanese Wikipedia page about the Haitorei). This law took effect on July 1, 1954. At the time of its enactment, civilian ownership of weapons was controlled by the <em>Ordinance Concerning Firearms and Swords</em> (Ordinance No. 334, 1950), which was issued at the direction of Allied occupation authorities (<a href=\"https://jahis.law.nagoya-u.ac.jp/scapindb/docs/scapin-2099\" rel=\"nofollow noreferrer\">SCAPIN 2099</a>).</p>\n",
"score": 4
}
] |
[
"legal-history",
"weapons",
"japan"
] |
Carrying pepper spray while hiking illegal in Japan?
| 5 |
https://law.stackexchange.com/questions/74145/carrying-pepper-spray-while-hiking-illegal-in-japan
|
CC BY-SA 4.0
|
<p>I'm hiking a lot in Japan. Japan has, next to other animals, lots of black (everywhere) and brown bears (in the north).
Needless to say, I'd like to protect myself. Pepper sprays have been proven to be very effective.
Thus I always carry a big spray when hiking.
On my hiking backpack I carry it outside in a side pocket which is kind of a net, so see thorough (partly).
So you <strong>might</strong> be able to see it.
Well I doubt that bears will go and sue me <strong>but</strong>:
afaik Japan has a concealed carry law that applies to pepper spray as well.
This article backs me on this, I think:
<a href="https://izumi-keiji.jp/column/houritsu-gimon/goshin-spray" rel="nofollow noreferrer">https://izumi-keiji.jp/column/houritsu-gimon/goshin-spray</a></p>
<p>So I wonder:</p>
<ul>
<li>What exactly is concealed in this case?</li>
<li>Do I violate the law when carrying while hiking?</li>
</ul>
<p>And more broadly not totally related to the question:</p>
<ul>
<li>What if I take a train from/to the mountain? do I have to display the can at all times? Am I even allowed to carry it at all?</li>
<li>what if I spray someone, <a href="https://www.bbc.co.uk/news/world-asia-59103664" rel="nofollow noreferrer">like that Joker guy recently</a>, for self defense while on the way from/to the mountain?</li>
<li>what if I carry the can to a friend to lend it?</li>
</ul>
<p>Disclaimer: my Japanese is very bad and I have no legal background</p>
| 74,145 |
[
{
"answer_id": 88420,
"body": "<h2>It's against the Minor Offense Act to carry pepper spray if you don't have a good reason.</h2>\n<p>A <a href=\"https://www.tokyoweekender.com/2009/08/in-the-right/\" rel=\"nofollow noreferrer\">2009 issue of Tokyoweekender offers this column:</a></p>\n<blockquote>\n<p>Are there any substances that are legal to carry in the West (e.g. Mace or pepper spray), but are illegal to carry in Japan, even if you can buy them here?</p>\n</blockquote>\n<p>And the answer is...</p>\n<blockquote>\n<p><strong>Article 1-2 of the Minor Offense Act</strong> states that “a person who secretly carries around, without justifiable reason, knives, iron rods, or items that are used to harm another person’s life or body” shall be fined or punished by temporary imprisonment. If a woman carries pepper spray with a rational purpose such as to defend herself, such act shall be justified. However, it still may be punishable under the Minor Offense Act if she carries it without any necessity.</p>\n</blockquote>\n<p>So, what is this Minor Offense Act? Luckily there is <a href=\"https://www.jluggage.com/blog/law/japans-minor-offenses-act-english-translation/\" rel=\"nofollow noreferrer\">an English tranlation</a>. So Article 1, paragraph 2...</p>\n<blockquote>\n<p>軽犯罪法1条柱書</p>\n<p>「左の各号の一に該当する者は、これを拘留又は科料に処する。」\n2号「正当な理由がなくて刃物、鉄棒その他人の生命を害し、又は人の身体に重大な害を加えるのに使用されるような器具を隠して携帯していた者」</p>\n<p>Article 1.</p>\n<p>Any person who falls under any of the following items shall be punished by detention or fine.</p>\n<p>(2) A person who carries a knife, iron bar, <strong>or any other instrument</strong> that can be used to injure another person’s life or cause serious bodily harm without a justifiable reason</p>\n</blockquote>\n<p>Pepper spray can cause temporary to permanent blindness, cause pulmonary problems, and in general, is an awful substance to even inhale if not getting it into the face directly. So... <strong>The default is, that carrying pepper spray is illegal</strong> if your carrying <strong>doesn't</strong> qualify for a <em>justifiable reason</em>. It is up to you to prove that your reason to carry it is justified. However, what is a justifiable reason?</p>\n<p>Well, as Tokyoweekender said: if you are not able to defend yourself and you are in a bad area, or if you are stalked, or if you go into the mountains where there truly are wild animals, you <em>might</em> be understood justified. However, you gamble there: you'd need to convince the police that you have justification, and the Japanese police does not like people carrying any such items at all. It's not upon the Japanese police to prove you didn't have a reason, it's on you to prove you have justification for the exception!</p>\n<p>In the case that was discussed <a href=\"https://izumi-keiji.jp/column/houritsu-gimon/goshin-spray\" rel=\"nofollow noreferrer\">in OP's link,</a> someone that was regularly transporting large amounts of money was under suit for carrying the pepper spray hidden on them. One of the main factors in the assessment was the fact that the accountant was transporting large amounts of cash money, which made it socially acceptable that he might need to protect himself (and the money) with the spray. The accountant then accidentally put the spray in his pocket when cycling and was met by police, resulting in the suit. The judge ruled, as far as I understand it, that on the job with money the spray was ok. However, the judge in the very case also noted that self-defense isn't a justification in itself, and that in large crowds there couldn't be a justification.</p>\n<blockquote>\n<p>およそ護身用であれば、催涙スプレーの携帯が一般的に「正当な理由」を充たすと判断するものではない</p>\n<p>If it is for self-defense, we [the court] do not judge that carrying pepper spray generally satisfies "just cause".</p>\n</blockquote>\n<blockquote>\n<p>また、これといった必要性もないのに、人の多数集まる場所などで催涙スプレーを隠匿携帯する行為は、一般的には「正当な理由」がないと判断されることが多いと考える</p>\n<p>In addition, I [the judge] think that it is often judged that there is no "justifiable reason" for the act of concealing and carrying pepper spray in a place where many people gather, even though there is no particular need to do so.</p>\n</blockquote>\n<p>Akin to the laws regulating swords - where you need to prove you want to collect swords before buying them - you'd best inquire with the police <em>before</em> and ask for a certification that you require it for a specific reason - such as to defend against bears on a hiking trail or to protect the valuable goods you transport for work.</p>\n",
"score": 2
},
{
"answer_id": 88417,
"body": "<p>They indeed sell it in lots of places around Japan, online and outdoor stores, so it is not illegal to purchase.</p>\n<p>The vast amount of information I’ve seen points to you needing to have a valid use. E.G. carrying in the countryside vs in Shinjuku at 2am.</p>\n<p>I have been looking in to getting some since I had a bear encounter recently while hiking in Japan. It was totally fine, we just saw two bears about 10-15 meters away down a ravine - we backed away slowly and nothing happened. But it made me more aware of the possibility of coming face to face with one and it’s always good to be prepared!</p>\n<p>I would personally only carry deep in my bag on the way to the trail, then outer pocket when I reach the trail.</p>\n<p>This is a good article on it, less so law focused but still worth a read.</p>\n<p><a href=\"https://www.hikemasterjapan.com/bears-in-japan\" rel=\"nofollow noreferrer\">https://www.hikemasterjapan.com/bears-in-japan</a></p>\n",
"score": 1
}
] |
[
"self-defense",
"weapons",
"animals",
"japan"
] |
Can a county without an HOA or Covenants stop people from storing campers or building sheds?
| 8 |
https://law.stackexchange.com/questions/88313/can-a-county-without-an-hoa-or-covenants-stop-people-from-storing-campers-or-bui
|
CC BY-SA 4.0
|
<p>I am planning to buy land in Costilla County, Colorado. The land does not have a Homeowners Association or any covenants for the area, which is quite rural. It is zoned for residential use, but they say that no campers or sheds can be stored on the property, except for a 14-day camping period once every 3 months or with a building permit.</p>
<p>I am not planning to move there, but I wanted to store a camper there for when I do visit. They say that this is not allowed because there is no residence currently there. I have never heard of this before, as in most places I have lived, storage of campers is allowed, even if living in a camper is not. The wording is different. Is it legal for the county to enforce this? Can I sue them if they try to enforce it?</p>
| 88,313 |
[
{
"answer_id": 88314,
"body": "<blockquote>\n<p>Is this legal for the county to enforce?</p>\n</blockquote>\n<p>Yes.</p>\n<blockquote>\n<p>And can I sue if they try to enforce it?</p>\n</blockquote>\n<p>You could, but you would very likely lose your lawsuit. A more fruitful approach would be to go to the county planning board and seek a variance to permit you to do what you want to do.</p>\n",
"score": 26
},
{
"answer_id": 88320,
"body": "<blockquote>\n<p>The land has no HOA and no covenants</p>\n</blockquote>\n<p>I get the impression you've been spending too much time around HOAs, or at least around Reddit lol. Get out. Never go back. <strong>But that does not mean freedom.</strong></p>\n<p>Feds have laws. States have laws. Counties and cities have ordinances. They're laws - they apply to <em>all activity</em> in their jurisdiction. There is no way to "not sign" except "don't buy land in their jurisdiction".</p>\n<blockquote>\n<p>Keep in mind Im not moving there but I was gonna store a camper there for when I did.</p>\n</blockquote>\n<p>The problem there being, <strong>you don't vote</strong>.</p>\n<p>You're not the only one doing what you're doing. It has an effect on the community, and the locals notice, and vote. So they can - and do - write laws to make your life difficult. This is common in vacation areas and places land is dirt cheap.</p>\n<p>But it's also common in San Francisco, where apocryphally "half" (so they say) the usable housing is owned by rich foreigners as investments, kept vacant (or as rarely-visited vacation homes). It's messing up the housing market, and the people <em>who do vote</em> are doing stuff about it.</p>\n<blockquote>\n<p>storage of campers</p>\n</blockquote>\n<p>Most municipalities do not allow unregistered vehicles on private property within sight of a road. That's almost everywhere.</p>\n<p>They also don't like out-of-state tags on vehicles which actually do reside in the state. (and they don't like registering a car to a PO box, it needs to be a deliverable street address, and the USPS won't deliver to empty land. So they really gotcha.)</p>\n<blockquote>\n<p>sheds</p>\n</blockquote>\n<p>It's extremely common, almost universal, that to build a structure on land, you must get a permit from the government. That has nothing to do with HOAs.</p>\n<p>And, the local government probably has public policy agendas they are trying to fulfill. Like maintaining an aesthetic, deterring crime, or preventing certain special problems an area might have. Such as the being a popular vacation spot, a place with a bohemian culture, or a place land is dirt cheap and prone to off-grid dreamers/tiny house/Vanlife homesteaders trying to live out there.</p>\n<p>Any pattern that gets to be a problem, they'll make laws.</p>\n<p>Again - who votes?</p>\n<blockquote>\n<p>anywhere Ive lived storage of campers is allowed, but a lot of places living in a camper is not.</p>\n</blockquote>\n<p>The places that don't allow living in a camper are concerned with <em>squalor</em>. They don't want inhumane living conditions from trying to live on a mountain with no money - namely lack of sewer/septic, lack of potable water to maintain hygiene, etc. So, <a href=\"https://www.boondockersbible.com/knowledgebase/can-you-legally-live-in-an-rv-on-your-own-land/\" rel=\"nofollow noreferrer\">they're going to have rules</a>. This will be <em>any town</em> - HOAs don't even enter into it.</p>\n",
"score": 25
}
] |
[
"united-states",
"colorado",
"zoning"
] |
What would the punishment be for an accidental killing, provoked by threats of sharing a video of the attacker naked?
| 3 |
https://law.stackexchange.com/questions/88442/what-would-the-punishment-be-for-an-accidental-killing-provoked-by-threats-of-s
|
CC BY-SA 4.0
|
<p>This is based on the Drishyam Bollywood movie</p>
<hr />
<p>Suppose a boy made an MMS video of a girl taking a bath, and then asked of her sexual favours, with a threat to circulate the video otherwise. Next, the girl didn't budge so he called her mother in front of her, threatening with all above.</p>
<p>Suppose the girl, in a fit of rage, hit that boy, not with the intention of murder, and the boy died.</p>
<hr />
<p>Given proof of the above, including the intentions of the participants, <strong>what punishment should be given to the girl</strong> as per the natural law, if she is pronounced guilty?</p>
| 88,442 |
[
{
"answer_id": 88443,
"body": "<p>Natural law does not prescribe particular punishments, that only comes from statutory law. Under <a href=\"https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=341\" rel=\"noreferrer\">Indian law</a>, this would seem to be a violation of IPC 304a, "causing death by negligence". There is no intent to cause great injury, indeed it is a complete mystery why the boy died. The penalty is up to two years imprisonment and a fine. There are more details in <a href=\"https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=336\" rel=\"noreferrer\">IPC 300</a>, focusing on intent to kill under extreme provocation, but the required intent is lacking here.\nThe courts may be lenient, having considered surrounding circumstances, and sentence her to less than the maximum punishment.</p>\n",
"score": 9
},
{
"answer_id": 88445,
"body": "<blockquote>\n<p>Suppose a boy made an MMS video of a girl taking bath and then asked her of sexual favours with a threat to circulate the video otherwise</p>\n</blockquote>\n<p>This is <a href=\"https://devgan.in/ipc/chapter_16.php#s354C\" rel=\"nofollow noreferrer\">Voyeruism IPC 254c</a>, and <a href=\"https://devgan.in/ipc/chapter_16.php#s354A\" rel=\"nofollow noreferrer\">Sexual Harrasment IPC 354A</a>.</p>\n<blockquote>\n<p>Next the girl didn't budge so he called her mother in front of her threatening with all the above.</p>\n</blockquote>\n<p>This is <strong>also</strong> sexual harassment.</p>\n<blockquote>\n<p>Suppose the girl, in a fit of rage hit that boy, not with the intention of murder, and the boy died.</p>\n</blockquote>\n<p>No guilt here, if the fit of rage happened while he was threatening - that's self-defense and without punishment. In fact, you can't even charge assault, because Assault under <a href=\"https://devgan.in/ipc/chapter_16.php#s352\" rel=\"nofollow noreferrer\">IPC 352</a> explicitly says it does not apply to grave provocation. So the more specialized <a href=\"https://devgan.in/ipc/chapter_16.php#s358\" rel=\"nofollow noreferrer\">IPC 358</a> applies:</p>\n<blockquote>\n<p>Whoever assaults or uses criminal force to any person on grave and sudden provocation given by that person, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both.ExplanationsThe last section is subject to the same explanation as section 352.</p>\n</blockquote>\n<p>I don't see that <a href=\"https://devgan.in/ipc/chapter_16.php#s304a\" rel=\"nofollow noreferrer\">IPC 304a</a> could apply in its negligent part, as no duty of care exists. I don't <em>quite</em> see how a <em>provoked act</em> might qualify as a rash act, but it might. It's clearly not murder under <a href=\"https://devgan.in/ipc/chapter_16.php#s300\" rel=\"nofollow noreferrer\">IPC 300</a>, as there's no intent. Also, <a href=\"https://devgan.in/ipc/chapter_16.php#s299\" rel=\"nofollow noreferrer\">IPC 299</a> does not apply either: that too requires Intent.</p>\n<p>So the worst available is at maximum 2 years + Fine, but it's much more likely that we are dealing with assault after grave and sudden provocation, so about one month or 200 rupees.</p>\n<p>Oh, and now comes the kicker: You said girl. That implies below 18. As a result, the <a href=\"https://cara.nic.in/PDF/JJ%20act%202015.pdf\" rel=\"nofollow noreferrer\">Indian Juvenile Justice Act 2015</a> applies. So the two possible sentences... Both are classed as:</p>\n<blockquote>\n<p>Chapter 1, 2. (45) “petty offences” includes the offences for which the maximum punishment\nunder the Indian Penal Code or any other law for the time being in force is imprisonment\nup to three years;</p>\n</blockquote>\n<p>As a result, the trial will be in front of a Board described in section 14 and has to be done as a speedy summary proceeding.</p>\n",
"score": 3
},
{
"answer_id": 88472,
"body": "<p>It pivots on the question: "Was the hitting a crime?"</p>\n<p>Generally, a death that happens from the commission of a crime is itself a crime - manslaughter or murder.</p>\n<p>That is an inherent risk to doing criminal things.</p>\n<p>See also the <a href=\"https://en.wikipedia.org/wiki/Eggshell_skull\" rel=\"nofollow noreferrer\">Eggshell Skull rule</a>, in which your mis-deed has greater consequences than any reasonable person would have expected, <em>but you're still responsible for the results</em>.</p>\n",
"score": 2
}
] |
[
"criminal-law",
"india",
"law-in-fiction"
] |
Can parties agree on arbitrary jurisdiction for a contract?
| 4 |
https://law.stackexchange.com/questions/88447/can-parties-agree-on-arbitrary-jurisdiction-for-a-contract
|
CC BY-SA 4.0
|
<p>I am not a lawyer, but I'm intrigued by how, in international contracts, parties can agree to the jurisdiction under which the contract falls. My question is rather simple: can two parties agree to contract under an arbitrary jurisdiction? Even if neither parties have any link to those? For example, if a UK company gets into a contract with an Irish company, could they agree that disputes have to be resolved by a Dutch court?</p>
| 88,447 |
[
{
"answer_id": 88469,
"body": "<p>The forum state's courts would have to decide if it would honor the choice of forum agreement. So would the courts of any jurisdiction in which there was an effort to enforce a judgment of the forum state.</p>\n<p>So, in this case, the decision regarding whether to honor the forum selection clause would be made first by a Dutch court applying Dutch law on the subject.</p>\n<p>Then, if it honored the forum selection agreement, a determination would also have to be made under the law of the country in which the winner of the lawsuit sought to enforce it against the loser of the lawsuit. Where the winner sought to enforce the judgment of a Dutch court would depend to a great extent upon where the judgment debtor had assets from which collection could be had, which wouldn't necessarily be the country where the judgment debtor was organized.</p>\n<p>Since many developed countries have treaties requiring that money judgments in contract cases from one treaty signatory be honored by other treaty signatories, the decision of the Dutch court would probably be controlling.</p>\n<p>I don't know what Dutch law says on this question.</p>\n<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"united-states-container\">united-states</a></p>\n<p>In the United States, the majority common law rule is that a forum for dispute resolution in the courts (as opposed to arbitration) must have some connection to the parties or the transaction. But it need not be the forum that would have been selected by the courts in the absence of a forum selection clause.</p>\n<p>In a parallel U.S. example:</p>\n<blockquote>\n<p>if a UK company gets into a contract with an Irish company, could they\nagree that disputes have to be resolved by a [U.S.] court?</p>\n</blockquote>\n<p>For the results to be resolved by the U.S. court that follow the majority common law rule, the contract would have to have some connection to the U.S. jurisdiction named. But, it could be, for example, that the contract was negotiated or executed in that jurisdiction, or that the contract was to be performed (in part) there, or that, for example, a bonding company securing performance of the contract was located there.</p>\n<p>If the agreement were to arbitration in the U.S. rather than a court resolution in the U.S., the <a href=\"https://www.newyorkconvention.org/\" rel=\"nofollow noreferrer\">New York Arbitration Convention</a> would govern the question of whether it was a valid forum. <a href=\"https://www.newyorkconvention.org/11165/web/files/original/1/5/15432.pdf\" rel=\"nofollow noreferrer\">This convention</a> does not obviously contain an exception for an arbitrarily chosen forum, although I have not reviewed the relevant case law.</p>\n",
"score": 0
}
] |
[
"contract-law",
"international",
"choice-of-law"
] |
Freedom of the press regarding secret government information?
| 8 |
https://law.stackexchange.com/questions/88454/freedom-of-the-press-regarding-secret-government-information
|
CC BY-SA 4.0
|
<p>There's quite a scandal going on in Switzerland about secret government information that was leaked to the press during the pandemic. Some government employees apparently have mailed information about internal documents to a certain newspaper.</p>
<p>Freedom of the press is a high-ranked value in a democracy, but can the newspaper publish information it knows is a government secret? Could they be accused for it?</p>
<p>The reports about the scandal currently focus on who's responsible for the leak in the government and whether the health minister has to step down, but nothing about the responsibility of the press.</p>
| 88,454 |
[
{
"answer_id": 88463,
"body": "<p>Under <a href=\"https://www.droit-bilingue.ch/rs/lex/1937/00/19370083-a293-en-fr.html\" rel=\"nofollow noreferrer\">article 293 of the Penal Code</a>, publication of acts or proceedings designated as government secret by law or by a lawful executive decision is punishable with a fine (10,000 CHF maximum), unless there is an overriding private or public interest.</p>\n<p>The article was controversial for several decades and various reforms and repeal proposals were debated. Before 2007, the law also allowed a short detention (up to three months) as punishment. This was not a specific amendment to the article; short detentions (which were anyway not used much by then) were abolished for all crimes and replaced generally by a fine or a day-fine (fine technically convertible to specific number of days in imprisonment). The law was finally reformed in 2018, adding the exception of public or private interest, under pressure from the developing jurisprudence in the Federal Court and European Court of Human Rights.</p>\n<p>Under the provision before 2018, a formal secrecy classification suffices for a conviction, though the judge may waive any penalty if the classified material is of minor importance. Under the current provision, the court must balance between the government interest and the public interest represented by the journalist, and substantive aspects of the document will be considered to a greater extent.</p>\n<p>In any case, journalists are nonetheless protected from being forced to reveal their sources, unless it is <em>necessary</em> to avoid an immediate danger or prosecute an important offence (homicide, sexual abuse of children, other offences with a minimum imprisonment of three years or more; publishing government secret is not one of the exceptional offences); see <a href=\"https://www.fedlex.admin.ch/eli/cc/54/757_781_799/en#art_28_a\" rel=\"nofollow noreferrer\">article 28a</a>.</p>\n<hr />\n<h2>Example</h2>\n<p>Martin Stoll was a journalist writing for Sonntags-Zeitung and published an article on a secret diplomatic document from the Swiss ambassador to the U.S. regarding the negotiations between Swiss banks and Holocaust survivors in 1997.</p>\n<p>He was charged under article 293 and was convicted and fined 4,000 CHF (reduced to 800 CHF on appeal). The Federal Supreme Court affirmed the conviction.</p>\n<p>Stoll filed <a href=\"https://globalfreedomofexpression.columbia.edu/cases/stoll-v-switzerland/\" rel=\"nofollow noreferrer\">a case against Switzerland</a> in ECHR, who in 2007 affirmed the lawfulness of the provision, but indicated a balance of interests will always be necessary for any punishment.</p>\n<p>The decision pushed the Swiss government to reform the provision, with the Federal Council affirming its willingness in 2008 and the adoption into law by Parliament in 2016.</p>\n<hr />\n<h2>Other provisions limiting freedom of press in Switzerland</h2>\n<p>Though generally respectful of human rights and having no journalist-specific legal regulations, Switzerland still has laws that may interfere with the freedom of press, sometimes to an extent that many may find uncomfortable with.</p>\n<p>Like many European countries, Swiss law protects the privacy of certain information related to children, persons accused of crimes, victims of crimes and witnesses in legal proceedings; though not all protections are by way of criminal law, a civil action of defamation (or similar claims arising from personality rights) is of concern most of the time for journalists.</p>\n<p>One controversial criminal provision (<a href=\"https://www.fedlex.admin.ch/eli/cc/51/117_121_129/fr#art_47\" rel=\"nofollow noreferrer\">art. 47 al. 1 let. c of the Bank Act</a>) was adopted in 2015 in relation to banking secrecy, as Switzerland is famous for. It is an offence to divulge any information obtained in violation of banking secrecy, even for journalists, with a penalty up to three years (or five years if the information is used for profit). No specific public interest exception is provided. Only overriding public interest may be a defence of necessity under general criminal law.</p>\n<p>For this reason, Swiss media was <a href=\"https://www.swissinfo.ch/eng/business/swiss-banking-secrecy-law-clashes-with-freedom-of-speech-/47365724\" rel=\"nofollow noreferrer\">forced to refrain from investigating</a> the <a href=\"https://www.theguardian.com/news/2022/feb/20/credit-suisse-secrets-leak-unmasks-criminals-fraudsters-corrupt-politicians\" rel=\"nofollow noreferrer\">Credit Suisse leak</a> in cooperation with their usual international partners in 2022.</p>\n",
"score": 3
}
] |
[
"switzerland",
"government",
"freedom-of-press"
] |
Do not pass or assist another vehicle to pass you by using this lane
| 7 |
https://law.stackexchange.com/questions/88381/do-not-pass-or-assist-another-vehicle-to-pass-you-by-using-this-lane
|
CC BY-SA 4.0
|
<p>Could someone confirm if "<a href="https://www.alberta.ca/emergency-stopping-lane.aspx" rel="noreferrer">do not pass or assist another vehicle to pass you by using this lane</a>" means:</p>
<ol>
<li>Do not pass another vehicle by using this lane, and</li>
<li>Do not assist another vehicle to pass you by using this lane</li>
</ol>
| 88,381 |
[
{
"answer_id": 88383,
"body": "<p>Yes, that's exactly what it means.</p>\n<p>Using it to pass means passing on the right at high speed in a narrow lane full of <a href=\"https://www.fodcontrol.com/what-is-fod/\" rel=\"nofollow noreferrer\">debris</a>, which is crazy.</p>\n<p>But they're <em>also</em> saying don't use any arbitrary point on the emergency lane as a <strong>turnout</strong>. A turnout is a designated "wide spot" made to allow a slower vehicle to be polite and exit the roadway for a moment to allow stacked up traffic behind them to pass.</p>\n<p>If you want to help people pass, watch for reasonable opportunities to do so, and slow down a bit to help them position for the pass. Then once they commit, slow down more to help them get back in.</p>\n",
"score": 9
},
{
"answer_id": 88382,
"body": "<p>Yes.</p>\n<ol>\n<li><p>Stay off the shoulder unless there's an urgent situation or because of vehicle problems.</p>\n</li>\n<li><p>Don't move on to the shoulder to let someone pass. They should wait their turn or overtake when it's proper and safe to do so.</p>\n</li>\n</ol>\n",
"score": 5
}
] |
[
"canada",
"traffic",
"driving",
"definition",
"interpretation"
] |
May I curse or belittle an officer with no repercussions?
| 1 |
https://law.stackexchange.com/questions/3435/may-i-curse-or-belittle-an-officer-with-no-repercussions
|
CC BY-SA 3.0
|
<p>Sometimes I belittle police officers and make them really think about what they're doing.</p>
<p>I wonder sometimes: what if I really embarrass an officer with something I say, maybe in front of their friends, and they sue me for slander, or, as was mentioned by an answerer below, obstruction. Is that possible? How far can I safely go? That is to say, what are my legal boundaries vis-a-vis avoiding defamatory/obstructive litigation from an officer?</p>
| 3,435 |
[
{
"answer_id": 3444,
"body": "<h1>Short Answer</h1>\n<blockquote>\n<p><em><strong>"An obstruction conviction cannot stand when it\nis based on speech protected by an individual’s\nfirst amendment right to criticize on-duty police officers"</strong></em></p>\n</blockquote>\n<p>Source: <a href=\"https://aclu-wa.org/sites/default/files/attachments/2014-01-27--ACLU%20Amicus%20Brief.pdf\" rel=\"nofollow noreferrer\">Amicus Brief to Supreme Court of the State of Washington</a> in <a href=\"http://www.courts.wa.gov/opinions/pdf/886946.pdf\" rel=\"nofollow noreferrer\">State of Washington v. E.J.J.</a></p>\n<hr>\nI agree with @DaleM's answer. And I want to add to it by picking up on a nuance of the question I don't think DaleM's answer addresses specifically.\n<hr>\n<h2>This question might be about obstruction, not slander.</h2>\n<p>Although the OP specifically mentions <em><strong>slander</strong></em> in their question, I think the context suggests the question actually concerns something different. Like perhaps, <em><strong>obstruction</strong></em>.</p>\n<p>For example,</p>\n<ul>\n<li>The question title specifically says, "<strong>curse</strong> [at]... an officer..."</li>\n</ul>\n<p>and the OP characterizes their behavior as follows:</p>\n<ul>\n<li><em>"I belittle them..."</em></li>\n<li><em>"...and make them really think about what they're doing"</em></li>\n<li><em>"...what if I really embarrass an officer with something I say..."</em></li>\n</ul>\n<p>My read of the question suggests (to me) the OP is describing "name-calling" or "insulting" the police by saying things like:</p>\n<blockquote>\n<p><em><strong>"You're an X."</strong></em> (where X is an insulting term or label)</p>\n</blockquote>\n<p>A case involving facts similar to what the OP describes has recently been tried, appealed and resolved by a state supreme court.</p>\n<hr>\n<h2>State supreme court ruled in favor of First Amendment protection.</h2>\nThe Washington state supreme court ruled as recently as June 25, 2015 on a case that dealt with this issue. [The Seattle Times reports here][3] that the [Washington State Supreme Court has ruled in the case of State of Washington v. E.J.J.][2]:\n<blockquote>\n<p>"<em>First Amendment protects profanity against police</em>"</p>\n</blockquote>\n<blockquote>\n<p>A teenage boy convicted of obstruction after yelling and cursing at three Seattle police officers while they were investigating a disturbance at his house had a First Amendment right to behave the way he did, the Washington Supreme Court said in an opinion Thursday.</p>\n</blockquote>\n<blockquote>\n<p>Citizens who curse at police and call them abusive names while they’re investigating a crime are protected from arrest by the First Amendment’s guarantee of free speech, the state Supreme Court ruled Thursday in a case out of Seattle.</p>\n</blockquote>\n<hr>\n",
"score": 6
},
{
"answer_id": 3439,
"body": "<p>You say \"morally in the wrong\" as if there was only one moral code on Earth and this is simply not true. For example, there are moral codes where eating pork is wrong and others where it is not. This site concerns itself with whether a person is <em>legally</em> in the wrong - there are other Stack Exchange sites that concern themselves with moral questions.</p>\n\n<p>Notwithstanding ...</p>\n\n<p>The elements of a defamation suit; whether slander or libel, are:</p>\n\n<ol>\n<li><p>A defamatory statement;</p></li>\n<li><p>Published to a third party;</p></li>\n<li><p>Which the speaker knew or should have known was false;</p></li>\n<li><p>That causes injury to the subject of the communication.</p></li>\n</ol>\n\n<p>If you confine your statements so that they:</p>\n\n<ol>\n<li><p>Do not damage the officer's good reputation; or</p></li>\n<li><p>Are not made to a third party; or</p></li>\n<li><p>Are factual.</p></li>\n</ol>\n\n<p>then you cannot be (successfully) sued.</p>\n",
"score": 3
}
] |
[
"united-states",
"police",
"freedom-of-speech",
"slander"
] |
Is there a government department in the Netherlands regulating sex work?
| 4 |
https://law.stackexchange.com/questions/88352/is-there-a-government-department-in-the-netherlands-regulating-sex-work
|
CC BY-SA 4.0
|
<p>Do the Netherlands have a government department that specializes in understanding and analyzing sex work, and is tasked with maximizing the legal rights, ethical conditions, and positive outcomes for all parties involved, similar to the departments of education, energy, food, and drugs?</p>
| 88,352 |
[
{
"answer_id": 88354,
"body": "<p>The Netherlands has a more pragmatic approach towards sex work, in which the government tries to balance the protection of the rights of sex workers with the need to prevent exploitation and abuse.</p>\n<p>The Dutch government has implemented a number of policies and regulations to ensure the safety and rights of sex workers, but does not have a specific department responsible for the regulation of sex work. Instead, various government agencies and organizations, such as the police, public health agencies, and local municipalities, are involved in the regulation and oversight of the sex industry. These organizations work together to ensure that sex workers have access to health services, and that they are protected from exploitation and abuse.</p>\n<p>The central government of the Netherlands has a policy of toleration and regulation of prostitution, meaning that they allow it to take place but they regulate it, this has been seen as a way to reduce the harm associated with sex work, such as exploitation and trafficking. It has a number of organizations that specialize in the understanding and analysis of sex work, such as the <a href=\"https://pic-amsterdam.com/\" rel=\"nofollow noreferrer\">Prostitution Information Center</a>, which provides information and support to sex workers and the general public, and the Dutch Union of Sex Workers, which represents the interests of sex workers.</p>\n",
"score": 4
},
{
"answer_id": 88366,
"body": "<p><a href=\"/questions/tagged/new-south-wales\" class=\"post-tag\" title=\"show questions tagged 'new-south-wales'\" aria-label=\"show questions tagged 'new-south-wales'\" rel=\"tag\" aria-labelledby=\"new-south-wales-container\">new-south-wales</a></p>\n<h2>The <a href=\"http://www.lawfoundation.net.au/ljf/site/templates/grants/$file/legalFactsEnglish.pdf\" rel=\"nofollow noreferrer\">sex industry</a> is just another industrial sector</h2>\n<p>It is regulated just like any other business and it also has specific regulation - just like construction, mining, health, logistics etc - covering its peculiarities.</p>\n<p>There is no specific government department , instead, regulation is split across the three tiers of government and usually different parts of each tier. None of these deals exclusively with the sex industry.</p>\n<p><strong>Commonwealth</strong></p>\n<ul>\n<li>The Australian Tax Office deals with tax compliance</li>\n<li>The Australian Competition and Consumer Commission deals with consumer protection and monopolistic behaviour (the latter is not much of a problem in the sex industry)</li>\n<li>The Australian Federal Police deal with cross-border criminality like human trafficking</li>\n<li>The Australian Securities and Investments Commission deals with company regulation</li>\n</ul>\n<p><strong>State</strong></p>\n<ul>\n<li>NSW Fair Trading deals with general business regulation</li>\n<li>Safe Work NSW deals with work health and safety. They have specific <a href=\"https://www.safework.nsw.gov.au/resource-library/other-services/health-and-safety-guidelines-for-sex-services-premises-in-nsw\" rel=\"nofollow noreferrer\">guidelines</a> for sex work addressing the particular risks; just like they do for <a href=\"https://www.safework.nsw.gov.au/your-industry\" rel=\"nofollow noreferrer\">most industries</a></li>\n<li>NSW Police deal with criminality such as sexual servitude</li>\n<li>Revenue NSW deals with state taxes like land and payroll tax</li>\n<li>Planning NSW sets statewide guidelines on development including which zoning areas are suitable for brothels and which aren’t</li>\n</ul>\n<p><strong>Local</strong></p>\n<ul>\n<li>Local government determines which zones (established by Planning NSW) go where in their area and dealing with development applications</li>\n</ul>\n<p>These lists are not exhaustive.</p>\n",
"score": 1
}
] |
[
"netherlands",
"government",
"prostitution"
] |
The legal liability of providing something free vs paid
| 1 |
https://law.stackexchange.com/questions/87494/the-legal-liability-of-providing-something-free-vs-paid
|
CC BY-SA 4.0
|
<p>Bob feels charitable on one fine Sunday morning. He made 50 burgers and wanted to give them free.</p>
<p>A few independent examples:</p>
<ol>
<li>Bob distributes the burgers on the street to strangers</li>
<li>Bob places the burgers on a public bench and left a sign "FREE" next to the burgers. Bob then left and carry on his day.</li>
<li>Bob is a chef and runs a restaurant. He places the burgers(not on the menu)outside the restaurant and placed a sign "FREE".</li>
<li>Bob delivers the burgers to a charity organisation and left it at the door. He left a note "FREE".</li>
</ol>
<p>Alice ate the burger and had a running stomach(though is fictitious, we don't make Alice feel too bad).</p>
<p>If somebody ate the burger and got food poisoning, what would Bob's legal liabilities be? Do the legal responsibilities differ if it was free or paid?</p>
<p>Does it matter if he distributes the free items actively or not? Does it matter who and where he gave the food? Do the profession and location make a difference?</p>
| 87,494 |
[
{
"answer_id": 87497,
"body": "<p><a href=\"https://www.law.cornell.edu/uscode/text/42/1791\" rel=\"nofollow noreferrer\">42 USC 1791</a>, and analogous state laws, may protect Bob from liability. The burgers are probably "apparently wholesome food", if they "meet all quality and labeling standards imposed by Federal, State, and local laws and regulations". The limit on Bob's liability is that</p>\n<blockquote>\n<p>A person or gleaner shall not be subject to civil or criminal\nliability arising from the nature, age, packaging, or condition of\napparently wholesome food or an apparently fit grocery product that\nthe person or gleaner donates in good faith to a nonprofit\norganization for ultimate distribution to needy individuals.</p>\n</blockquote>\n<p>Scenario 4 is the safe harbor for Bob (assuming that the charity "does not provide net earnings to, or operate in any other manner that inures to the benefit of, any officer, employee, or shareholder of the entity"). Discussion of the "needy individual" clause is suspended for a moment. Bob himself is not a qualified non-profit organization. We must also assume that the resulting harm was not an injury or death caused by an act or omission constituting gross negligence or intentional misconduct.</p>\n<p>The term "needy person" is not defined, so the question arises whether Alice is rich or needy, and what difference it makes. From Bob's perspective, the question is whether he has a good faith belief that the organization will distribute the donations to needy individual, so Bob does not become liable if the organization surreptitiously gives a burger to a non-needy person.</p>\n<p>There is the potential of liability from negligence, in case Bob decides to distribute free food to people on the street. The scenario does not explain what act or omission of Bill's caused this "running stomach" – for example if Alice has an allergy to hamburger buns and knowingly eats the bun, Bob is not liable (he has not exhibited a lack of ordinary care for Alice). It is possible that Bob was negligent in his charitable act, but there isn't enough details on the cause of the illness to be more specific.</p>\n",
"score": 1
},
{
"answer_id": 87505,
"body": "<h2>You are not liable under contract but you may be liable under tort or statute</h2>\n<p>You aren’t liable under contract because you don’t have a contract. However, neither do you have any limitation on liability a contract might provide.</p>\n<h2>Negligence</h2>\n<p>The most likely and common-law universal avenue for liability is the tort of negligence.</p>\n<p>Negligence requires <a href=\"https://www.gotocourt.com.au/personal-injury/nsw/negligence/\" rel=\"nofollow noreferrer\">three things</a>:</p>\n<ol>\n<li>A duty owed by the defendant to plaintiff</li>\n<li>Failure to take reasonable care in discharging that duty</li>\n<li>Harm caused by that failure</li>\n</ol>\n<p>The Scottish case of Donoghue v Stevenson (not English as it mistakenly says in the link), established that we each owe our duty to our “neighbours”. A neighbour is someone who should reasonably in our contemplation when we do the ting we do. These do not have to be specific people, they can be a class of unknown but foreseeable people. So, for all your examples, the person who eats the burger should be in the mind of the person who makes the burger, so a duty of care is owed.</p>\n<p>Breaching the duty means failing to take reasonable precautions to prevent harm to the neighbour. What that means depends on the specifics of the case. For your examples, a professional chef is held to a higher standard in food hygiene that an amateur.</p>\n<p>The duty doesn’t extend to eliminating all risk of harm but it does require that reasonable precautions are taken. Some of your examples seem to take no precautions regarding the time or the risk of contamination between the production and consumption of the burgers - this might be considered unreasonable.</p>\n<p>The harm arising must be a consequence of the tortfeasors act or omission and must be reasonably foreseeable. Food poising is caused by contaminated food and is a reasonably foreseeable consequence of poor food management which some of your scenarios clearly are.</p>\n<h2>Statutory Liability</h2>\n<p>In some jurisdictions, there may be statute law that makes the supplier liable.</p>\n<p>For example, in <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>, the Australian Consumer Law imposes statutory guarantees on the supply of goods or services by a business even if they are gifts.</p>\n<p>The most relevant being that goods must be of merchantable quality and fit for purpose. A hamburger that causes food poisoning is neither.</p>\n",
"score": 1
}
] |
[
"liability"
] |
Can Wizards of the Coast Deauthorize OGL 1.0a?
| 3 |
https://law.stackexchange.com/questions/88424/can-wizards-of-the-coast-deauthorize-ogl-1-0a
|
CC BY-SA 4.0
|
<p>Wizards of the Coast, in their <a href="https://www.dndbeyond.com/attachments/39j2li89/OGL1.2_DraftForDiscussionPurpose.pdf" rel="nofollow noreferrer">draft Open Gaming License 1.2</a> include the following notice:</p>
<blockquote>
<p>NOTICE OF DEAUTHORIZATION OF OGL 1.0a. The Open Game License 1.0a is no longer an authorized license. This means that you may not use that version of the OGL, or any prior version, to publish SRD content after (effective date). It does not mean that any content previously published under that version needs to update to this license. Any previously published content remains licensed under whichever version of the OGL was in effect when you published that content.</p>
</blockquote>
<p>This is related to OGL 1.0a section 9 (<a href="https://www.d20srd.org/ogl.htm" rel="nofollow noreferrer">found here, for instance</a>):</p>
<blockquote>
<p>Updating the License: Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License.</p>
</blockquote>
<p>Is Wizards able to do this? I mean, obviously they can say that they deauthorize it, but does that have any legal weight? Supposing that they publish this notice as is, must all derivative works of say, D&D 3.5, be published under OGL 1.2?</p>
| 88,424 |
[
{
"answer_id": 88436,
"body": "<h2>Yes, they can</h2>\n<p>The 1.0a licence is a contract that was offered for acceptance to the public. Anyone who has accepted that offer for a particular product has entered a binding contract with WotC. However, WotC is under no obligation to continue making that offer and they have explicitly revoked it - no one can accept it from the time the offer was revoked. This is contract law 101.</p>\n<h2>Must all derivative works use OGL 1.2?</h2>\n<p><strong>No</strong></p>\n<p>Only those derivatives of <em>copyrighted</em> works that are not fair use/dealing must use the licence. Game rules are not subject to copyright, however, game “lore” and trademark is. There is no bright line separating one from the other. If you want to be safe, use the licence. If you want to live on the edge, hire an IP lawyer.</p>\n",
"score": 1
}
] |
[
"licensing"
] |
Someone gave me an elephant. Isn’t this illegal?
| 13 |
https://law.stackexchange.com/questions/88393/someone-gave-me-an-elephant-isn-t-this-illegal
|
CC BY-SA 4.0
|
<p>Hypothetical:</p>
<p>Someone gave me an elephant and told me not to give it away or sell it.</p>
<p>I don’t have the capability to take care of this thing. Heck, I don’t have any license or permit for elephants. I’m not a zookeeper or anything.</p>
<p>Isn’t it illegal to give this elephant to me?</p>
| 88,393 |
[
{
"answer_id": 88428,
"body": "<p>No one can give you an elephant without your consent.</p>\n<p>If you don't consent, then it doesn't matter what provisos they spoke to you. <strong>They didn't give you an elephant at all. They abandoned an elephant on your property</strong>. You owe them no consideration. Call animal control and they make it "go away" (read: probably to a welcoming zoo).</p>\n<p>If you did consent, <em>now</em> the question arises of whether it is legal. And that works out exactly the same as if you'd purchased the elephant yourself.</p>\n",
"score": 32
},
{
"answer_id": 88394,
"body": "<p>Under <a href=\"https://www.law.cornell.edu/uscode/text/16/1538\" rel=\"noreferrer\">16 USC 1638(a)(1)</a> and given that all species of elephant are on the endangered species list, it is prohibited to</p>\n<blockquote>\n<p>(D) possess, sell, deliver, carry, transport, or ship, by any means\nwhatsoever, any such species...</p>\n<p>(E) deliver, receive, carry, transport, or ship</p>\n</blockquote>\n<p>You cannot receive and they cannot give. Any contract pertaining to the disposition of an elephant is unenforceable.</p>\n<p>Perhaps you mis-spoke in the question, it's not that they "gave you an elephant", rather they delivered the elephant to your property and transmitted instructions, without your consent. You are not criminally or civilly liable for the act of another person which you do not know about and cannot prevent.</p>\n",
"score": 16
},
{
"answer_id": 88412,
"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>It's not illegal in England to own or sell an elephant but you'll need to apply for a <a href=\"https://www.gov.uk/licence-wild-animal\" rel=\"noreferrer\">licence</a> from your local council to keep it, as elephants are listed on the <a href=\"https://The%20Dangerous%20Wild%20Animals%20Act%201976%20(Modification)%20(No.2)%20Order%202007\" rel=\"noreferrer\">schedule of wild animals</a>.</p>\n<blockquote>\n<p><strong>Elephants</strong><br />\nFamily Elephantidae<br />\nAll species.</p>\n</blockquote>\n<p>On the face of it, you'd (currently) be refused the licence on <a href=\"https://www.doncaster.gov.uk/services/business-investment/exotic-dangerous-or-wild-animals-licence#:%7E:text=Any%20person%20aggrieved%20by%20a,conditions%20as%20it%20thinks%20proper.\" rel=\"noreferrer\">every single ground</a></p>\n<blockquote>\n<ul>\n<li>...it is not contrary to the public interest to do so on the grounds of safety, nuisance or other grounds</li>\n<li>the applicant is a suitable person to hold a licence to keep the animals listed on the application</li>\n<li>the animal(s) will be kept in accommodation that prevents its escape and is suitable in respect of construction, size, temperature, drainage and cleanliness</li>\n<li>that the animal(s) will be supplied with adequate and suitable food drink and bedding material and be visited at suitable intervals</li>\n<li>appropriate steps will be taken to ensure the protection of the animal(s) in case of fire or other emergency</li>\n<li>all reasonable precautions are taken to prevent the spread of infectious diseases<br />\nthe animal(s) accommodation is such that it can take adequate exercise</li>\n</ul>\n</blockquote>\n<p>But if you had a big garden with a <strong>very</strong> sturdy fence and were willing to eat the medical costs (and spend a few hours reading '<em>Elephant-keeping for Dummies</em>') you'd be able to argue that you were a fit and proper person.</p>\n",
"score": 10
},
{
"answer_id": 88435,
"body": "<h2>A gift with conditions subsequent is not a gift</h2>\n<blockquote>\n<p>Someone gave me an elephant and told me not to give it away or sell it.</p>\n</blockquote>\n<p>What we have here is not a gift - a gift is unconditional. A gift requires three things: intent of the gifted, transfer of the property, and acceptance by the gifted. It also can’t come with “strings attached” - or conditions that apply <em>after</em> the gift is given. Conditions that apply <em>before</em> the gift (get good grades and I’ll give you an elephant) are fine, but once given it’s your elephant to do with what you will.</p>\n<p>So a) you can refuse the gift, and b) if you accept, you can ignore any supposed conditions that come with it.</p>\n<h2>It’s also not a contract</h2>\n<p>A contract requires consideration on both sides - a quid pro quo. You got an elephant from them , what did you give or promise in return? If nothing, then there is no contract.</p>\n<p>Now if you promised to care for the elephant and not sell it or give it away <em>then</em> we have a contract and you must keep your promises.</p>\n<h2>… unless it’s illegal</h2>\n<p>Private arrangements, whether gift or contract, do not allow you to break the law. If it’s illegal for you to have an elephant, then it’s illegal for you to have an elephant.</p>\n<p>If it’s too expensive for you to keep an elephant in accordance with the law but you nevertheless contracted to do so, then you must break your contract and possibly be sued for doing so.</p>\n",
"score": 4
}
] |
[
"united-states",
"colorado",
"animals"
] |
Business who asks customers to pay from credit
| 1 |
https://law.stackexchange.com/questions/88392/business-who-asks-customers-to-pay-from-credit
|
CC BY-SA 4.0
|
<p>What laws apply to having credit for customers?</p>
<p>A business asks customers to put in money to get credit, and then customers use this credit to buy from the company. The credit can remain indefinitely in the business, and customers can withdraw it at any time.</p>
<p>There is probably better terminology to describe this case. Please tell me what laws apply to this business in the US</p>
| 88,392 |
[
{
"answer_id": 88404,
"body": "<blockquote>\n<p>Customers can withdraw it at any time.</p>\n</blockquote>\n<p>This is present interest enough (Crummey doctrine). The merchant account transfer is subject to neither the income nor gift tax until the grantor and testator spends it toward any beneficiary's present interest and material purpose.</p>\n<p>Otherwise, there should be a 5 year minimum to gift cards.</p>\n<blockquote>\n<p>Expiration dates for funds underlying gift cards must be at least five years after the date of issuance, or five years after the date when funds were last loaded. (Board of Governors of the Federal Reserve System Press Release, <em>Federal Reserve announces final rules to restrict fees and expiration dates on gift cards</em>, March 23, 2010)</p>\n</blockquote>\n",
"score": 2
}
] |
[
"united-states",
"contract-law"
] |
Is resale of Windows 10 keys legal?
| 4 |
https://law.stackexchange.com/questions/50462/is-resale-of-windows-10-keys-legal
|
CC BY-SA 4.0
|
<p>Windows 10 (pro, enterprise, any) that supposedly have never been activated so far are (re) sold online for 5$-20$. I assume that those are key that have initially been given out by microsoft in volumes or in countries with lower pricing (as the price is around 200$ when bought directly from microsoft).</p>
<p>Is it legal to resell Windows license keys? Are there any kinds of Windows 10 pro/enterprise keys for which it is forbidden to resell them?</p>
| 50,462 |
[
{
"answer_id": 87543,
"body": "<p>In the EU, software license resale is legal, even if explicitly forbidden by terms of any EULA or other contract imposed upon the parties. To quote the European Court of Justice's <a href=\"https://curia.europa.eu/jcms/upload/docs/application/pdf/2012-07/cp120094en.pdf\" rel=\"nofollow noreferrer\">press release on its ruling</a> in a case in Germany between Oracle and a German reseller,</p>\n<blockquote>\n<p>An author of software cannot oppose the resale of his `used' licences allowing the use of his programs downloaded from the internet. [...] The principle of exhaustion of the distribution right applies not only where the copyright holder markets copies of his software on a material medium (CD-ROM or DVD) but also where he distributes them by means of downloads from his website.</p>\n<p>Where the copyright holder makes available to his customer a copy – tangible or intangible – and at the same time concludes, in return form payment of a fee, a licence agreement granting the customer the right to use that copy for an unlimited period, that rightholder sells the copy to the customer and thus exhausts his exclusive distribution right. Such a transaction involves a transfer of the right of ownership of the copy. Therefore, even if the license agreement prohibits a further transfer, the rightholder can no longer oppose the resale of\nthat copy.</p>\n</blockquote>\n<p>There are many such companies in the EU who resell software legally, including used OEM Windows licenses that are far cheaper than retail copies. This is, in my opinion, a fantastic thing -- but undoubtedly has been behind the trend towards time-limited licenses rather than perpetual ones, which we all arguably suffer from today.</p>\n",
"score": 5
},
{
"answer_id": 87562,
"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>Under <a href=\"https://www.oyez.org/cases/2012/11-697\" rel=\"nofollow noreferrer\"><em>Kirtsaeng v. John Wiley & Sons</em></a>, a copyrighted work, sold with permission from the rightsholder, may be resold in the United States regardless of where the copy was originally sold, without the consent of the rightsholder. This means that authorized copies of Windows, originally sold outside the United States, may be resold in the US by anyone in lawful possession of them. This assumes, however, that:</p>\n<ul>\n<li>The entire boxed copy is sold as a physical unit. While I tend to expect that reselling a key is likely to be lawful as well, I'm not aware of any case law specifically covering this scenario, and we've seen <a href=\"https://www.law.cornell.edu/uscode/text/17/1201\" rel=\"nofollow noreferrer\">17 USC 1201</a> used and abused to achieve a variety of strange results in the past. It is much harder to argue that selling an entire box could violate that law.</li>\n<li>The installation media was lawfully obtained. If someone purports to resell one of Microsoft's volume-license keys, that is probably a violation of their agreement with Microsoft (volume-license keys are not normally sold to consumers), and it is likely to infringe copyright in some way as well (volume-license keys can be used to activate more than one copy of Windows, and are normally used by large organizations to simplify IT operations - since the same key can authorize multiple activations, it might violate the exclusive right of reproduction).</li>\n<li>No further copies have been made, and in particular, the installation media has not been used to install Windows on any computer (even without activation). The resale might still be legal if the seller deletes all copies of Windows prior to selling the installation media, and/or sells the copies with the original pursuant to <a href=\"https://www.law.cornell.edu/uscode/text/17/117\" rel=\"nofollow noreferrer\">17 USC 117</a> (such copies may not be sold separately), but I'm not aware of a lot of case law on that, and the EULA might affect the seller's obligations here.\n<ul>\n<li>OEM keys are a bit of a gray area here. By the time the consumer obtains the key, Windows has already been activated for that device. Trying to separate Windows from the device might be a §1201 violation (see link above). See <em><a href=\"https://fairuse.stanford.edu/case/apple-inc-v-psystar-corp/\" rel=\"nofollow noreferrer\">Apple v. Psystar</a></em>.</li>\n</ul>\n</li>\n<li>Any relevant customs duties are paid, if applicable, and the transaction does not otherwise violate US embargos or trade policy.</li>\n</ul>\n",
"score": 1
},
{
"answer_id": 50474,
"body": "<p>If someone offers to sell you a designer handbag for $25 you can pretty much bet that you are dealing with the gray market or the black market. Same for bargain software keys. Computer manufacturers make deals with Microsoft allowing them to distribute copies of Microsoft software as a bundle with the computers they sell. They aren't allowed to resell the software without the computer. Sometimes employees or outsiders get access to the activation keys allocated to the company, and then re-sell them on warez sites. Microsoft also makes licenses available to vendors at cheaper rates in some countries, but the contract with Microsoft will forbid the resale in countries not covered by the agreement.</p>\n\n<p>Laws for software licensing, copyright, and intellectual property differ widely from country to country. In the US this would almost certainly be a violation of the <a href=\"https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act\" rel=\"nofollow noreferrer\">Digital Millennium Copyright Act</a> and subject to criminal prosecution.</p>\n\n<p>In most countries it would at least be a violation of the licensing terms and addressable by a <a href=\"https://www.geekwire.com/2018/microsoft-sues-prolific-distributor-pirated-office-windows-software/\" rel=\"nofollow noreferrer\">civil suit by Microsoft</a>. </p>\n",
"score": 0
}
] |
[
"licensing"
] |
If I am out of the country for a long time, am I liable for missed Jury Duty?
| 6 |
https://law.stackexchange.com/questions/88400/if-i-am-out-of-the-country-for-a-long-time-am-i-liable-for-missed-jury-duty
|
CC BY-SA 4.0
|
<p>Say that I spend a few years traveling the world, visiting Europe, Asia, Africa, etc.. Then I come back to my home in the California to find missed several Jury Duty summons in the mail.</p>
<p>Am I liable for missing all that Jury Duty and not responding to any of it? What is one supposed to do if they want to take an extended trip somewhere? Or is one basically not allowed to take such trips if they are a US citizen eligible for Jury Duty?</p>
| 88,400 |
[
{
"answer_id": 88409,
"body": "<blockquote>\n<p>What is one supposed to do if they want to take an extended trip somewhere? Or is one basically not allowed to take such trips if they are a US citizen eligible for Jury Duty?</p>\n</blockquote>\n<p>In the US you are not required to seek permission to travel, or prove your past whereabouts to the government if you happen to miss some civic duty. They generally call up way more people than they need for this sort of reason.</p>\n<p>The length of time you are gone or where you choose to travel is irrelevant. In my experience you are given about a month heads up. If you didn't receive the notice until you returned from out of town, and they send a follow up, simply inform them of the fact that you were gone and didn't receive the notice until you returned.</p>\n<p>Jury duty is an obligation to some extent, but it is also a right and a privilege. It isn't a criminal offence you are liable for if you didn't get the notice. If it were that important to verify your availability ahead of time the notification would be sent registered mail with a signature required.</p>\n",
"score": 3
},
{
"answer_id": 88416,
"body": "<p>Under <a href=\"https://www.law.cornell.edu/uscode/text/28/1866\" rel=\"nofollow noreferrer\">28 USC 1866</a></p>\n<blockquote>\n<p>(g) Any person summoned for jury service who fails to appear as\ndirected may be ordered by the district court to appear forthwith and\nshow cause for failure to comply with the summons. Any person who\nfails to show good cause for noncompliance with a summons may be fined\nnot more than $1,000, imprisoned not more than three days, ordered to\nperform community service, or any combination thereof.</p>\n</blockquote>\n<p>There are certain <a href=\"https://www.law.cornell.edu/uscode/text/28/1865\" rel=\"nofollow noreferrer\">statutory requirements</a> disqualifying a prospective juror, such as being unable to speak English, not being a citizen, of having a conviction or pending felony charge, otherwise you are at the mercy of the court, and may vary from federal court district to district. Typically, however, you just need to explain the hardship that jury duty would pose.</p>\n<p>In California, failure to appear for a state jury summons is treated as <a href=\"https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=166.&lawCode=PEN\" rel=\"nofollow noreferrer\">contempt of court</a>, for which you can also be punished. However, disobedience would have to be willful, not just negligent. California follows a "two strikes" policy, meaning that after you miss the first obligation, they send a more strongly worded second notice.</p>\n<p>There is no real likelihood that you will be prosecuted if you don't receive and respond to the jury summons, as long as you were not willfully ignoring the summons. When people leave the country for a long period, they typically leave someone "in charge" to take care of details (property taxes etc.). If you failed to give your assistant an instruction regarding jury summonses, or if <em>they</em> willfully tossed the notice, <em>you</em> would not be held criminally or civilly liable.</p>\n",
"score": 1
}
] |
[
"united-states",
"california",
"jury",
"travel",
"fines"
] |
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