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Where can one find an up to date copy of sections 212-215 of the Housing Act 2004?
| 3 |
https://law.stackexchange.com/questions/88135/where-can-one-find-an-up-to-date-copy-of-sections-212-215-of-the-housing-act-200
|
CC BY-SA 4.0
|
<p>Legislation.gov.uk has up to date copies of many laws as they are most recently amended, but not of the Housing Act 2004. Where can an up to date version of this law be found online or in person?</p>
| 88,135 |
[
{
"answer_id": 88138,
"body": "<p>I don't know where you looked, but the <a href=\"https://www.legislation.gov.uk/ukpga/2004/34/contents\" rel=\"nofollow noreferrer\">Housing Act 2004</a> on legislation.gov.uk is up to date according to its header:</p>\n<blockquote>\n<p>[the] Housing Act 2004 is up to date with all changes known to be in force on or before 12 January 2023. There are changes that may be brought into force at a future date.</p>\n</blockquote>\n<p>Sections 212 to 215 fall within <a href=\"https://www.legislation.gov.uk/ukpga/2004/34/part/6/chapter/4?timeline=false\" rel=\"nofollow noreferrer\">Part 6, Chapter 4</a> of the Act.</p>\n<p>With hindsight, you may be looking at an earlier version. So for awareness, if the entry's header is:</p>\n<ul>\n<li><p>green, then it is up to date. Any provisional amendments (i.e. yet to be enacted) there might be can be found using the "view outstanding changes" drop down option if there is one.</p>\n</li>\n<li><p>red, then there are changes yet to be made which can be found via the "view outstanding changes" drop down option.</p>\n</li>\n<li><p>blue, it's either the original version that has not had any amendments, or it's an earlier version that can be navigated to/from by selecting the the tick box "show timeline of changes" and the sliding calendar above the header.</p>\n</li>\n</ul>\n",
"score": 4
}
] |
[
"england-and-wales",
"legal-research",
"statutes"
] |
How is discrimination by an employer litigated in the United States?
| 2 |
https://law.stackexchange.com/questions/21983/how-is-discrimination-by-an-employer-litigated-in-the-united-states
|
CC BY-SA 4.0
|
<p>Assume that the complainant has sufficient proof of racial discrimination in their workplace, and wishes to have it investigated.</p>
<p>What is the regular course of action in such case in the United States?</p>
<p>From reading the <a href="http://www.nolo.com/legal-encyclopedia/content/civil-rights-act.html" rel="nofollow noreferrer">Civil Rights Act of 1964</a>, my understanding is that:</p>
<ol>
<li>The complainant writes a claim to the Commission on Equal Employment Opportunity (Title VII, Sec 706(a))</li>
<li>The commission mediates to resolve the matter informally, which may take up to 30 days (Titile VII, Sec 706(a)).</li>
</ol>
<p>Let's say that the mediation doesn't succeed to achieve voluntary compliance satisfactory to both sides. What happens next? Under Sec 706(e) it appears that the complainant has to litigate himself in a civil court, and potentially be exempt from any fees and have an appointed attorney.</p>
<p>How often does it actually happen? Is there any relevant case law?</p>
<p>How will the civil court try the case? Will the judge reference the Civil Rights Directly? What is a likely punishment?</p>
<p>Why is the process convoluted by adding an extra step in form of the commission?
Why isn't discrimination simply prosecuted by the state's attorney? After all racial discrimination very much fits the definition of a public wrong.</p>
<p>Is the enforcement any good?
</p>
| 21,983 |
[
{
"answer_id": 22158,
"body": "<blockquote>\n <p>Let's say that the mediation doesn't succeed to achieve voluntary\n compliance satisfactory to both sides. What happens next? Under Sec\n 706(e) it appears that the complainant has to litigate himself in a\n civil court, and potentially be exempt from any fees and have an\n appointed attorney.</p>\n</blockquote>\n\n<p>Not really. The EEOC at that point (within a certain time period) either decides to litigate the case itself, or if it chooses not to litigate itself, authorizes the employee to litigate the case at his or her own expense, and if the employee prevails, the remedy awarded by the Court includes what the court determines to be the employees reasonable attorneys' fees.</p>\n\n<p>The details of the process and the relevant deadlines are available <a href=\"https://www.eeoc.gov/employees/charge.cfm\" rel=\"noreferrer\">at the EEOC's website</a>. Basically, if the case isn't resolved in mediation, the employer makes a position statement, the employee responds, the EEOC investigates (using its subpoena power, if necessary) on average for ten months, and the EEOC either prosecutes the case itself, or it issues a \"Notice-Of-Right-To-Sue\" which allows the private employee to hire a lawyer and sue the employer.</p>\n\n<blockquote>\n <p>How often does it actually happen?</p>\n</blockquote>\n\n<p>The EEOC handles <a href=\"https://www.eeoc.gov/eeoc/newsroom/release/2-11-16.cfm\" rel=\"noreferrer\">about 90,000 charges per year</a> and wins about $525 million a year in judgments and settlement awards (parallel agencies at the state level handle additional cases in a similar manner). The vast majority of the cases are settled or result in a Notice of Right To Sue letter, with only 100 to 400 lawsuits per year actually filed by the agency resulting in $22 million to $168 million a year of awards in court cases. About <a href=\"http://www.uscourts.gov/sites/default/files/data_tables/fjcs_c4_0331.2016.pdf\" rel=\"noreferrer\">25% of these cases go to trial</a>. The rest settle before trial or are resolved in motion practice before trial (including default judgments, when the employer simply doesn't respond to the lawsuit). Once the EEOC brings a lawsuit, settlement is the most common resolution.</p>\n\n<p>So, there are a lot of cases, although there is only about one EEOC claim per 1,000 employees in the workforce subject to EEOC jurisdiction per year. Whether this is a lot of complaints or not many, is really a matter of opinion. Only about one in twenty-five people will ever file an EEOC claim in his or her entire life, although this will vary considerably based upon a person's race, national origin, religion and sex. A non-Hispanic white Christian male of European descent is much less likely to file an EEOC claim during his lifetime than someone who does not fit that description.</p>\n\n<p>Realistically, a majority of cases that aren't abandoned by the employee in the administrative process (which is a significant share of the total) or found to have no factual basis (a small but significant percentage) are settled for fairly modest dollar amounts (an average of about $10,000 to $20,000 per claim). </p>\n\n<p>The bigger dollar cases for a single employee usually end up being brought in a private lawsuit rather than by the EEOC itself.</p>\n\n<p>About <a href=\"http://www.uscourts.gov/sites/default/files/data_tables/fjcs_c2_0331.2016.pdf\" rel=\"noreferrer\">14,000 of those charges</a> each year result in a Notice of Right to Sue letter followed by a civil lawsuit filed by a lawyer for the employee. It isn't terribly easy to determine from official statistics what proportion of cases resulting in a Notice of Right to Sue letter rather than an EEOC lawsuit ultimately do not result in a lawsuit being filed by the employee. About <a href=\"http://www.uscourts.gov/sites/default/files/data_tables/fjcs_c4_0331.2016.pdf\" rel=\"noreferrer\">250 of these cases</a> (not quite 2%) go to trial each year. The rest settled or are resolved in motion practice before trial (including default judgments, when the employer simply doesn't respond to the lawsuit). Once an employee brings a lawsuit, settlement is the most common resolution. Folk wisdom in the employment litigation field is that the average settlement of a case of ordinary strength on the merits that is settled fairly early on in the process is about six months of wages.</p>\n\n<p>An estimate that the employees in private lawsuits secured more than $200 million a year in settlements and money judgments is probably a gross underestimate. It could easily be $500 million to $1 billion per year. But, there are no good statistics available since settlement amounts are overwhelmingly confidential.</p>\n\n<p>The EEOC sues on behalf of the employee in cases it chooses to litigate itself on a weekly basis, and likewise declines to prosecute and certifies the case to allow the individual to prosecute the case with a private attorney all the time. </p>\n\n<blockquote>\n <p>Is there any relevant case law?</p>\n</blockquote>\n\n<p>Yes.</p>\n\n<p>Pretty much every relevant detail of the process has been litigated in case law that has produced reported decisions because there have been many thousands of employment discrimination cases litigated under the Act. </p>\n\n<p>There are probably at least two dozen to four dozen new published appellate decisions in the federal circuit courts each year on these kinds of cases, if not more, and those decisions have come at a pretty steady rate for the past half century. There are hundreds of published decisions interpreting these statutes in almost every one of the federal circuits.</p>\n\n<p>On quite a few issues, there are splits of authority between different circuits regarding how to interpret the law that will ultimately be resolved by the U.S. Supreme Court, or by Congress, or that may remain unresolved forever.</p>\n\n<blockquote>\n <p>How will the civil court try the case? Will the judge reference the\n Civil Rights Directly?</p>\n</blockquote>\n\n<p>It is a little unclear what you are asking here, but I will do my best.</p>\n\n<p>Regardless of whether the EEOC or the individual employee brings the case, it is filed as a Complaint in federal court like any other federal lawsuit, litigated according to the Federal Rules of Civil Procedure, and resolved in the vast majority of cases either by a judge in a pre-trial motion, by a settlement between the parties, or by a jury trial presided over by a judge.</p>\n\n<p>In a jury trial, the judge tells the jury what the applicable law says and the jury decides if the employee has proved a case against the employer when applying that law after hearing the evidence presented at trial and then decides what damages award to make, on a very short jury verdict form.</p>\n\n<p>In a bench trial (i.e before a judge without a jury), the judge makes those determinations in a lengthy written ruling setting forth the factual and legal basis for the judge's determination on the merits.</p>\n\n<p>Jury trials are much more common than bench trials in these kinds of cases, partially because plaintiffs want juries to make a damages determination, and partially out of a perception (not entirely inaccurate) that judges tend to be pro-employer on average.</p>\n\n<blockquote>\n <p>What is a likely punishment?</p>\n</blockquote>\n\n<p>Punishment is mostly the wrong term. </p>\n\n<p>It is a lawsuit for money damages to compensate the employee for harm actually suffered. The jury (or the judge if the case can be decided before trial in a motion for summary judgment or if a jury trial has been waived) determines the amount of compensation, if any, which should be awarded for lost wages, non-economic compensatory damages, etc. and the judge then awards attorneys' fees and court costs based upon the submissions of the parties after the trial is over based upon a determination of what is allowed by law and what is reasonable.</p>\n\n<p>To some extent, an employer's obligation to pay attorneys' fees and costs acts as a proportionate punishment for not immediately settling a case where the employer is found to be in the wrong. To some extent, non-economic damages can constitute a punishment.</p>\n\n<p>But, when an employer is found to have discriminated intentionally, which is most of the time, <a href=\"http://corporate.findlaw.com/litigation-disputes/punitive-damages-in-civil-rights-actions.html\" rel=\"noreferrer\">punitive damages can also be awarded</a>, although they must be proportionate to the amount of actual compensatory damages awarded, typical one or two times the compensatory damage award unless that award is very small. Statutory liquidated damages are sometimes awarded in lieu of certain kinds of punitive and compensatory damages awards in age and sex discrimination cases under the Equal Pay Act. There are also <a href=\"https://www.eeoc.gov/employees/remedies.cfm\" rel=\"noreferrer\">dollar limits on awards</a> based upon the size of the employer.</p>\n\n<blockquote>\n <p>Why is the process convoluted by adding an extra step in form of the\n commission?</p>\n</blockquote>\n\n<p>Mediation is allowed as a compromise to encourage negotiated resolutions that avoid litigation costs before everyone has spent a lot of money on lawyers. In practice, a surprisingly large number of cases result in pre-trial mediation resolutions, often in cases where an outcome if the case had gone forward to a trial would have been uncertain.</p>\n\n<p>The involvement of the Commission is a compromise between having a system where all cases are prosecuted at state expenses and one in which all cases are brought privately with an opportunity to win attorneys' fees if one prevails. </p>\n\n<p>The EEOC has usually used its authority to bring cases that are clearly cases of improper employer conduct where due to the small dollar amounts involved or the number of employees affected, an individual lawsuit would not provide an adequate remedy since private lawsuits would not be brought otherwise. It is very hard for a private attorney to justify bringing an employment discrimination lawsuit over a case where the damages are likely to be in the $5,000 to $25,000 range because the employee doesn't make much money unless liability is 100% clear (e.g. there is an admission on videotape from the employer), despite the fact that a prevailing party can get non-economic damages, punitive damages, attorneys' fees and costs. So, it is particularly hard to bring employment discrimination cases on behalf of employees who don't earn much even when they aren't discriminated against. The availability of EEOC enforcement prevents employers of low wage workers and workers in temporary employment whose damages are small from ignoring the Civil Rights laws with impunity.</p>\n\n<p>A private lawyer does something on the order of $30,000 to $150,000 of billable work to bring an employment discrimination case involving a single employee-client to trial, and a lawyer defending such a case for an employer will typically incur more legal fees for their employer client than the employee's lawyers do, while the employer's lawyer defends the case all of the way through a trial, even before considering any amounts actually awarded to a prevailing employee in a case where the employee wins. Each side's legal fees, individually, will usually exceed the amount of compensatory and punitive damages awarded combined in a fairly small dollar case for an employee who wasn't paid very much, or at least didn't lose a huge amount of money economically due to illegal discrimination (for example, because the employee wasn't promoted while a less qualified candidate was promoted). This is an important reason why lots of cases settle and why the EEOC is necessary.</p>\n\n<p>The EEOC process also provides a means by which arbitration agreements with individual employees can be circumvented because the EEOC is not a party to those agreements and is not bound by them.</p>\n\n<blockquote>\n <p>Why isn't discrimination simply prosecuted by the state's attorney?\n After all racial discrimination very much fits the definition of a\n public wrong.</p>\n</blockquote>\n\n<p>Government agency resources aren't unlimited, so the government can't prosecute every credible complaint, so the EEOC has to pick and choose how to get the most bang for its available resources. In practice, the EEOC can only afford to pursue about one in ten of the employment discrimination cases subject to its jurisdiction that go to trial with its own lawyers. </p>\n\n<p>The cases it can't afford to bring, it delegates to the private sector rather than simply leaving those cases unprosecuted as would happen in the criminal justice system.</p>\n\n<p>This also provides a way for an employee who has a lazy or unenthusiastic government lawyer assigned to their case at the EEOC who doesn't take what the employee sees as a strong case seriously a way to get relief for employment discrimination despite the fact that the EEOC isn't willing to back them up. Private lawsuits are a check and balance against bad EEOC decisions about how strong cases are as well as a way for the EEOC to avoid financing the legal fees of people who can afford to sue on their own.</p>\n\n<blockquote>\n <p>Is the enforcement any good?</p>\n</blockquote>\n\n<p>Lots of employees over the years have gotten lots of money, although probably not 100% of the amount of the economic harm they suffered (and, of course, employee and employer attorneys have gotten paid a lot of money in the process as well, which is good if you are a lawyer, but is dead weight loss from an economist's point of view). But, more importantly, the behavior of employers has changed greatly as a result.</p>\n\n<p>In practice, most lawsuits, and almost all lawsuits not brought by the EEOC itself, involve either wrongful termination or failure to promote someone, rather than discriminatory hiring, since it is hard to show an individual right to be hired for which an individual is entitled to compensation.</p>\n\n<p>Even in EEOC cases, most are brought for discriminatory advertising or openly admitted discrimination in hiring, rather than covert discrimination by an employer in hiring on a non-permitted basis. </p>\n\n<p>The EEOC brings a handful of cases alleging covert discrimination in hiring against medium or large employers each year, in part, just to provide a credible threat to anyone considering doing so, often with a combination of tips from insiders (particularly those from hiring officials who are fired in retaliation for not following a discriminatory hiring policy) and with undercover \"test applicants\" who submit functionally identical resumes for the same job when many job openings are available. But, this is usually a tiny share of the total volume of employment litigation brought under the Civil Rights Acts.</p>\n\n<p>There is a certain irony in this, because employers who are willing to hire someone who belongs to a \"protected class\" in the first place, who hence, are probably not the most discriminatory employers in the market, are more exposed to a realistic risk of a discrimination lawsuit, than employers who refuse to hire anyone in a \"protected class\" in the first place, so long as the employer keeps its mouth shut about this practice and is willing to lie and come up with false pretexts for its actions. Dishonest gross racists and clear misogynists are under punished, while less culpable employers who are more honest but still a little bit discriminatory in the cases of a few well paid employees are over punished relative to more culpable employers.</p>\n\n<p>Also, employment discrimination laws provide the most monetary compensation to the most competent and well paid employees who probably have the greatest capacity to mitigate their damages by seeking other employment from less discriminatory employers, while providing the least compensation to the marginal employees for whom discrimination in employment most impacts their quality of life. Indeed, often the most marginal employees aren't even willing to risk filing a complaint with the EEOC for fear of being blacklisted in the future in a manner that is impossible to prove.</p>\n\n<p>Still, at a minimum, by making it illegal to publicly state a discriminatory reason or to state a discriminatory reason to someone who could testify against you in court, the laws in question have changed the internal normative standards that managers of medium and large sized business apply on a day to day business such that at least lip service and public commitment is given to the requirements of the civil rights laws. This change in corporate culture has probably had more of a real world effect than actual suits for damages have in regard to discrimination in hiring. The benefits of the voluntarily discontinuation of discrimination in employment as employers internalized the norms established by the civil rights laws for the most part has provided far more benefit to employees who were previously discriminated against than litigation and settlements resulting from the EEOC process.</p>\n\n<p>For example, when Sandra Day O'Connor (future Supreme Court justice) was a young lawyer, fewer than 5% of attorneys were women and she was often mistaken for a secretary or receptionist by clients. Now, about half of all young associate lawyers (even at very large firms who graduated from very prestigious law schools) are women. Almost all of this change was due to a change in professional norms that were a direct result of the Civil Rights Act of 1964 (women had legally been allowed to be lawyers since the 1920s almost everywhere and earlier in some places), rather than through case by case litigation. The Civil Right Act opened up a huge new lucrative profession to women and minorities, and the experience of the legal profession was the norm and not the exception. Before the act, women were pretty much limited to school teaching, being librarians, nursing, secretary work, food service, day care, piece work sewing and laundry work. After the Civil Rights Act, their employment opportunities dramatically increased. The Civil Rights Act of 1964 is likewise, more or less single handedly, responsible for today's black middle class which would have been an order of magnitude smaller otherwise.</p>\n\n<p>There are economic arguments that discrimination laws do or do not do much good, but those arguments rarely consider the fact that the law, when it was first enacted, dramatically changed corporate culture and the moral viewpoints and norms of the middle and upper middle class who act as employers making hiring decisions across the nation. Until the Civil Rights Act was enacted, tradition and prejudice kept a huge share of the population out of most of the marketplace in a manner completely contrary to what a naive Economics 101 analysis would predict.</p>\n",
"score": 8
}
] |
[
"united-states",
"employment",
"civil-law",
"discrimination"
] |
Can/shall I sue Domino's if I felt the manager was being racist?
| -9 |
https://law.stackexchange.com/questions/66686/can-shall-i-sue-dominos-if-i-felt-the-manager-was-being-racist
|
CC BY-SA 4.0
|
<p><strong>Edit:</strong>
Lol , looks like it's hitting right at the spot for the racist. Look at the down votes and comments. Go ahead , be the idiots you are.</p>
<p>Can I sue Domino's if the manager was being rude and also I feel he was doing that because he was racist?</p>
<p>When I called Domino's for an order that was delayed by 20 minutes, instead of apologizing he started saying "Don't be choppy!"</p>
<p>When I said can you process it faster now, he said: do you want it to be even later? (kind of threat.) Or do you want to come and pick it up by yourself?</p>
<p>I felt he started saying that because of my thick accent.</p>
<p>I feel he was rude instead of apologizing because of my race.</p>
<p><strong>Edit 1:</strong></p>
<p>After few down votes and thoughts , I think I was not being clear enough and need to clarify a bit more.</p>
<ol>
<li>I am not planning to sue Domino's because of the late delivery (for which I was frustated for sure).</li>
<li>I called them for the second time sitting in the car park and waiting for more than 20 mins.</li>
<li>As I was fruststed, my statements were "Are you going to deliver it , I don't have all day to wait around</li>
</ol>
<p>Now comes the part which seems unfair and racist to me and countless other minorities (South-east Asians) (yes, I know , because we share that feeling and disucuss, if you dont have any idea, pease sit back and realx and don't jump your gun)</p>
<p>Ok now back to sequence of events:</p>
<ol start="4">
<li><p>Dominos manager then responded (with a threatning/demeaning voice)
-- Do <strong>you</strong> want to be <strong>even late</strong>? !!
-- DO <strong>you</strong> want to come and <strong>pick</strong> it <strong>up</strong> <strong>yourself</strong>? (Again the tone was <strong>demeaning</strong>)</p>
</li>
<li><p>Should he have said , <strong>do you want</strong> it to be even late ? <strong>No</strong>.</p>
</li>
<li><p>Should he have said , Do <strong>you</strong> want to <strong>come and pickup</strong> now , I think he <strong>should have not</strong> .</p>
</li>
</ol>
<p>Now I know it's hard to prove and some one called me Karren empathising with the Manager , but give me a break, that's his job to attend the customers and you can't threaten customers for repurcussion , that's why there is consumer Law.</p>
<p>And I think he was able to threat/demean me, with the consquecnce of (me) not getting the service, because <strong>he think</strong>s <strong>certain race</strong> can be <strong>pushed</strong> around and <strong>that's racist</strong>.</p>
<p>I don't want million dollars as the out put of lawsuit (not sure if this is the right word), but some times Sociey does not auto-correct itself.</p>
<p>If I want to fix this legally (as I want), I think a lawsuit , a judgement and punitive action should be able to discourage such bahaviour.</p>
<p>And , to all our privileged posters, I hope you will keep your biased view off this post.</p>
| 66,686 |
[
{
"answer_id": 66688,
"body": "<p><strong>Can I sue?</strong> (Shall I sue? Is up to you)</p>\n<p><strong>Yes</strong>, anyone can sue anybody but that doesn't mean it will be successful.</p>\n<p>The likely candidate for making a claim seems to be under the tort of <em>Emotional Distress</em>, however, note that...</p>\n<blockquote>\n<p>Since the definition of offensive conduct is subjective by its very nature, the courts have set high standards to make out a claim for intentional infliction of emotional harm. To be successful, the plaintiff must show that the defendant intentionally or recklessly engaged in <strong>extreme and outrageous conduct which caused severe emotional distress to another person</strong>. <a href=\"https://lawshelf.com/shortvideoscontentview/emotional-distress-torts/\" rel=\"noreferrer\">Source</a></p>\n</blockquote>\n<p>...but according to the OP and comments, this criteria does not appear to be have been met.</p>\n",
"score": 7
},
{
"answer_id": 66687,
"body": "<p>Obligatory "Anyone can sue anyone for anything, the question is if they have any chance of success".</p>\n<p>In this case, almost certainly not for two reasons.</p>\n<p>First, there is no evidence for the claim. The fact that you are a minority and that you believe you were treated poorly does not mean it was racially motivated. Unless you could demonstrate a pattern of rudeness and poor service to ethnic minorities, this argument would not go anywhere.</p>\n<p>Second, the damages suffered amount to hurt feelings and a pizza (assuming you received neither it nor a refund). Suing someone isn't a case of "you did bad, give me a million dollars". The damages are based on how much you actually suffered.</p>\n<p>If you still feel the need to take out your frustration over a late delivery, there are more effective ways to do so. Leaving a bad review, voting with your wallet by buying from Pizza Hut, or contacting Dominos customer support until they give you some vouchers to go away would all be far easier and more effective.</p>\n",
"score": 2
}
] |
[
"civil-law",
"consumer-protection",
"australia"
] |
MIT license for software implementation of published algorithm with a patent in pending status
| 1 |
https://law.stackexchange.com/questions/88127/mit-license-for-software-implementation-of-published-algorithm-with-a-patent-in
|
CC BY-SA 4.0
|
<p>I am a researcher working at a public research institute. A research group from another country has published an algorithm in a peer-reviewed journal and provided a server implementation of it on their website (no public code). I have implemented the recipe of this algorithm as an open-source software tool, and I plan to release it for general academic usage and potentially <strong>commercial usage</strong>. I highlight commercial because a statement from the other research group at the end of their text establishes that the authors of the paper have filed a patent describing the design and composition of their software, due to commercial interests on their side (startup). Currently, that patent's status is pending, and it might be granted, or not.</p>
<p>I want to license my software with an MIT license (including commercial), yet currently, I do not fully understand the liability of my research institute or mine, in case the authors decide to claim a patent infringement. Am I or my research institution liable at this point, should opt for a non-commercial version of the MIT license (and which one), or does publishing the recipe of a method in a peer-reviewed allow reimplementing and licensing it with a commercial license by others, regardless of the commercial interests of the authors?</p>
| 88,127 |
[
{
"answer_id": 88130,
"body": "<p>If a patent is granted the patent owners have the right to use the courts to try to stop anyone in the country where it issued from making, selling, offering for sale,importing or using the patented device.</p>\n<p>In the case of a patent with claims to a process, the <em>using</em> would be they trigger. That is executing the process. There are also forms of indirect infringement where an organization provides a system, that when put in action by a customer, executes the process.</p>\n<p>There is no limitation that the using need be commercial. Your free version could hurt sales of a properly licensed version.</p>\n<p>What constitutes infringement? Read the claims of the granted patent. The claims in the original application and publication are likely to be somewhat different than in the final granted version. It is the claims that appear in the final granted patent that delineate the scope of what it takes to infringe. Anything that embodies all elements of any single claim would infringe.</p>\n<p>You can follow the progress of the patent application via public information at the patent office if the country it is filed in.</p>\n<p>Patents are territorial and only have effect in the location they are granted. You mention the paper was by researchers in another country. If they only file in one place you may be free to use, distribute etc. elsewhere.</p>\n<p>If an inventor publishes the details of their invention before filing, they will be unable to get a patent in most of the world since most countries require absolute novelty at the time of filing. The very notable exception is the US they has a sort-of one year grace period.</p>\n<p>The inventors have filed, presumably before publication.</p>\n",
"score": 1
}
] |
[
"licensing",
"patents",
"open-source-software"
] |
Computer Fraud and Abuse Act statute of limitations
| 1 |
https://law.stackexchange.com/questions/88126/computer-fraud-and-abuse-act-statute-of-limitations
|
CC BY-SA 4.0
|
<p>I was looking into the <strong>criminal law</strong> application of the <strong>Computer Fraud and Abuse Act</strong> in the United States of America.</p>
<p>Since, to the best of my knowledge, it is a Federal crime the statute of limitations is usually five years, however I know individual Acts can set their own time-bars.</p>
<p>Could somebody confirm what the <strong>statute of limitations</strong> is, and anything which would stop the clock from counting down?</p>
| 88,126 |
[
{
"answer_id": 88129,
"body": "<p>Unless stated otherwise in law, the Statute of Limitations for filing of criminal charges is 5 years from the date of the actions charged, although where specified in law, it can be extended for a predefined time based on the crime and the entity committing a crime. Major Fraud ($1,000,000+) will be extended to 7 years if committed by anyone who is not committing the crime at the behest of a Bank (if you are, this will be extended to 10 years) AND the victim of the fraud is the United States Government. Additionally, if charges are dismissed in court for reasons unrelated to the statute of limitations, the court may grant a sixth month extension from the date of the statute of limitations to refile charges, and may grant an extension at the court's discretion if evidence is in a foreign nation. All if the crime occurs over multiple dates, the date of the last action in the charge will be the start of the Statute of Limitations.</p>\n<p>The Federal Government has no statute of limitation for any crime if it is a Capital offense, a terrorist charge, or a sexual offense against a child.</p>\n<p>At a state level, this will depend on the states in question.</p>\n<p><a href=\"https://www.bayarea-attorney.com/federal-statue-of-limitations#:%7E:text=The%20statute%20of%20limitations%20is,limitations%20is%2018%20USC%203282.\" rel=\"nofollow noreferrer\">Source.</a></p>\n",
"score": 1
}
] |
[
"united-states",
"criminal-law",
"common-law",
"statute-of-limitations",
"computer"
] |
My crypto exchange closed my account for no reason, how can I defend myself against it?
| -3 |
https://law.stackexchange.com/questions/87674/my-crypto-exchange-closed-my-account-for-no-reason-how-can-i-defend-myself-agai
|
CC BY-SA 4.0
|
<p>A couple of years ago, I opened an account in <strong>Bitpanda</strong>, deeming it a serious and professional crypto exchange.</p>
<p>In the last year I haven't carried out any operations, a few days ago I decided to go back to do some trading.</p>
<p>I had to supplement my account with new personal info, selfies and photos of my passport.
All approved, so I moved to the platform, click on deposit, where I noticed that the maximum deposit I could make was 0 euros. Then I tried to make a withdrawal, but that too was disabled.</p>
<p>So I contacted the support and this is what they told me:</p>
<blockquote>
<p>After a further check by our security department, we have to
permanently close your account for security reasons. Also, it is not
possible to create a new account or reactivate an existing one.</p>
<p>Please note that we cannot provide any further information on this
decision and will not deal with any complaints about it.</p>
</blockquote>
<p>The bottom line is that they actually stole my money, for no reason, as I have never done any weird transactions.</p>
<p>Even if it's little money, it seems to me an injustice. <strong>Is there anything I can do about this action?</strong></p>
<p><strong>UPDATE 2 JAN 2023</strong></p>
<p>On December 29th, I opened a dispute and after 4 days with no response, I look at my ticket directly on the website, so what a surprise when I saw that my dispute was closed without any reason.</p>
| 87,674 |
[
{
"answer_id": 87676,
"body": "<ol>\n<li><strong>Think through what really happened.</strong><br />\nYou are using terms like fraud, while they <em>may</em> be thinking they're doing fraud protection, or otherwise following laws and regulations. You wrote that you didn't use it for a long time, could the credentials have been compromised?<br />\nIt sounds highly implausible that a platform would defraud a <em>single</em> user. Either there are many more people with similar stories, or your claim is a bit suspect.</li>\n<li><strong>Think about what your goal is.</strong><br />\nReactivating the account, or getting the balance back? Is the balance big enough to spend time and money?</li>\n<li><strong>Check with which legal entity you have a contract.</strong><br />\nAFAIK BitPanda is Austrian, so they cannot refuse a GDPR information request on what they have about <em>you</em> all that easily. Consider communication in writing, by registered mail.</li>\n</ol>\n",
"score": 4
},
{
"answer_id": 87680,
"body": "<blockquote>\n<p>My crypto exchange closed my account for no reason, how can I defend myself against such a fraud?</p>\n</blockquote>\n<p>Since you <a href=\"https://law.stackexchange.com/questions/87674/my-crypto-exchange-closed-my-account-for-no-reason-how-can-i-defend-myself-agai?noredirect=1#comment196668_87674\">cannot find the contract</a>, it is unclear how exactly to proceed (at least for someone not enough knowledgeable on the matter) or the <em>competent authority</em> in the jurisdiction (Member State) at issue. But article 5.3 of the <a href=\"https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32002L0065\" rel=\"nofollow noreferrer\">Directive 2002/65/EC</a> provides:</p>\n<blockquote>\n<p>At any time during the contractual relationship the consumer is\nentitled, at his request, to receive the contractual terms and\nconditions on paper.</p>\n</blockquote>\n<p>The exchange's response suggests that it terminated your contract despite your compliance with its requests for further information. That conduct appears to be elusive of its duty pursuant to art. 5.3 and other obligations.</p>\n<p>The European Securities and Markets Authority has a brief guideline on <a href=\"https://www.esma.europa.eu/investor-corner/file-complaint\" rel=\"nofollow noreferrer\">filing a complaint</a>. In case that the exchange qualifies(?) as "trade repository" <a href=\"https://www.esma.europa.eu/supervision/trade-repositories\" rel=\"nofollow noreferrer\">see this link</a>. That being said, on most issues the ESMA ultimately directs clients to the Member State's <em>competent authority</em>.</p>\n<p>Article 95 of the <a href=\"https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020PC0593\" rel=\"nofollow noreferrer\">MICA draft</a> alludes to the publication of decisions regarding complaints against financial entities. Although it is still a draft, this provision is no different from enactments on other topics (financial and otherwise). Some research on decisions from the applicable jurisdiction likely will give guidance on how to proceed, since [quasi-]judicial publications often provide some procedural background of the controversy being decided.</p>\n<p>Regardless of whether or not the matter presents all the elements of <em>fraud</em>, the scenario you describe sounds in --at least-- <em>breach of contract</em>.</p>\n",
"score": 2
}
] |
[
"cryptocurrency"
] |
What's counts as "taking active part in the hostilities" under the Geneva Convention?
| 10 |
https://law.stackexchange.com/questions/88096/whats-counts-as-taking-active-part-in-the-hostilities-under-the-geneva-conven
|
CC BY-SA 4.0
|
<p>The <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/geneva-convention-relative-protection-civilian-persons-time-war" rel="noreferrer">Geneva Convention relative to the Protection of Civilian Persons in Time of War</a> states that</p>
<blockquote>
<p>Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely ...</p>
</blockquote>
<p>In the comments to <a href="https://law.stackexchange.com/a/88048/7410">an answer to another question</a>, there were questions as to the definition there. When is a soldier taking "active part" in the hostilities?</p>
<p>Are they considered to take an active part when they are sleeping? Awake but eating dinner? Does it matter if they are armed at the time, or merely "in uniform"? Are there (other) times when a uniformed member of the military would not be considered "taking active part" in the hostilities? Or are they considered to be taking an active part simply by being a uniformed member of a belligerent party?</p>
| 88,096 |
[
{
"answer_id": 88111,
"body": "<h2>Members of the armed forces who are not <a href=\"https://en.wikipedia.org/wiki/Hors_de_combat\" rel=\"nofollow noreferrer\">hors de combat</a> are taking an “active part”</h2>\n<p>Hors de combat is not there for padding - its a defined term of the Convention:</p>\n<blockquote>\n<p>A person is hors de combat if:</p>\n<p>(a) he is in the power of an adverse Party;</p>\n<p>(b) he clearly expresses an intention to surrender; or</p>\n<p>(c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself;</p>\n<p>provided that in any of these cases he abstains from any hostile act and does not attempt to escape.</p>\n</blockquote>\n<p>A person is <em>not</em> hors de combat simply because they are:</p>\n<ul>\n<li>Sleeping</li>\n<li>Eating</li>\n<li>Unarmed</li>\n<li>Out of uniform</li>\n<li>Defecating</li>\n<li>Fornicating</li>\n<li>Drunk</li>\n</ul>\n",
"score": 10
}
] |
[
"laws-of-war",
"geneva-convention"
] |
Counter DMCA Google play
| -1 |
https://law.stackexchange.com/questions/79317/counter-dmca-google-play
|
CC BY-SA 4.0
|
<p>Suppose that a person received a DMCA takedown notice about a month ago and has filed a couple of counter notices, but and always gets an automated response saying "We are unable to take further action on your request because it does not provide all required information." No action has been taken on the counter notice. What information must be provided? What evidence?</p>
| 79,317 |
[
{
"answer_id": 79320,
"body": "<p>Given that filing a DMCA counter notice is essentially an invitation to a lawsuit, <em>consulting a licensed lawyer</em> in your jurisdiction before filing a counter notice is <em>highly</em> recommended.</p>\n<p>To understand what is happening, one must understand the relevant intent of the "safe-harbor" provisions of the DMCA (Digital Millenium Copyright Act). Essentially, there are/were two "complications" of standard copyright doctrine to the internet:</p>\n<ol>\n<li><p>The standard of Anonymity online, which makes filing a traditional lawsuit more difficult.</p>\n</li>\n<li><p>Because of the nature of the internet, a) few people host their own content, either using a hosting company directly (like most websites do), or post their content on someone else's website (like Youtube and StackExchange), which makes them distributors, traditionally liable for infringement, (and much nicer targets for litigation, because they have deep pockets). However, without the ability to post on someone else's website, the internet as we know it wouldn't exist (we'd basically blogs, and maybe email).</p>\n</li>\n</ol>\n<p>Both of these issues were "solved"/dealt with via the takedown notice/counter notice system. A displayer of other's content (e.g. Youtube or StackExchange, ISPs, etc.) has "safe harbor" protection from liability for hosting copyright infringing content, provided that they respond to a properly formatted takedown notice within the specified time frame.</p>\n<p>Someone one the other side of this, who believes that they do have the legal right to utilize such content, either due to owning it, licensing it, or fair use, can file a counter notice, and upon receipt of a <em>properly made</em> counter notice, must return the content in a specified time period 10-14 days.</p>\n<p>This "solves" both of the above issues: The intermediary service is no longer legally liable, instead acting as a message carrier, and if the person uploading the disputed material believes that the DMCA should not apply, they can reverse the takedown, by filing a counter notice that allows the original claim filer to file a standard lawsuit.</p>\n<p>Essentially, the hoster gets to say "I want no part of this, this is between you guys, I'm just a messenger".</p>\n<p>But what does a counter notice need to contain?</p>\n<p>17 U.S. Code § 512g(3) states that a counter notice must contain 4 things (legal code below, my comments are in italics):</p>\n<p>Contents of counter notification.—To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the following:</p>\n<p>(A)A physical or electronic signature of the subscriber. <em>This is a legal document, you must sign it, either physically or electronically.</em></p>\n<p>(B)Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled. <em>Clarification of what material is specifically being requested to be made accessible again; this information should also be in the original takedown notice</em></p>\n<p>(C)A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled. <em>This is essentially the bit that gives legal cover for the hoster to restore access to the disputed content, and places the liability on the counter notice filer's shoulders. Note that this is under the penalty of perjury, so jail time can concievably result if this is made falsely.</em></p>\n<p>(D)The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person. <em>Essentially stuff that makes it easy for the filer of the original takedown notice to sue you.</em></p>\n<p>Sources: <a href=\"https://www.law.cornell.edu/uscode/text/17/512\" rel=\"nofollow noreferrer\">https://www.law.cornell.edu/uscode/text/17/512</a></p>\n<p><a href=\"https://www.crucialp.com/resources/tutorials/web-hosting/how-to-file-dmca-counter-claim/\" rel=\"nofollow noreferrer\">https://www.crucialp.com/resources/tutorials/web-hosting/how-to-file-dmca-counter-claim/</a></p>\n",
"score": 4
},
{
"answer_id": 79366,
"body": "<p>A DMCA counter notice need contain, and should contain, only four things:</p>\n<p>A) A physical or electronic signature of the person sending the notice, who should normally be the person who posted the removed content (note that a notice from anyone else has no effect).</p>\n<p>B) Identification of the content removed, and the place where it used to be (often a URL). This must be enough to allow the provider to find exactly what is involved.</p>\n<p>C) "A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled." This may include a brief explanation of the reasons, but need not, and should not approach court evidence. The provider does not determine if the claim is valid or not.</p>\n<p>D) Contact info for the notice sender and agreement to accept service if a copyright infringement lawsuit is brought.</p>\n<p>Nothing more than that is legally required.</p>\n<p>But one must be well aware, <strong>nothing</strong> in 17 USC § 512(g) <strong>requires</strong> the provider to <strong>act</strong> on a counter notice in <strong>any way at all</strong>. The counter notice has only two effects:</p>\n<ol>\n<li>If a provider removes content in response to a takedown notice, the provider retains safe-harbor status. After a valid counter notice the provider <strong>may</strong> replace the content without losing safe-harbor status, but <strong>need not do so</strong>.</li>\n<li>If a provider has a contractual obligation to host the content at the direction of the user, § 512(g)(1) relieves the provider from such contractual liability when a provider removes the content in response to a takedown notice, but restores the contract when a counter notice is received, unless the complainant promptly files suit and notifies the provider.</li>\n</ol>\n<p>But when a provider does not have any obligation to host any particular content, when the provider has an enforceable TOS provision allowing it to remove any content at any time for any reason, with no liability to the user (as most social media sites do), then the provider may legally just ignore any and every counter-notice, if it so pleases. The provider <strong>may</strong> honor counter notices and retain safe harbor, but it <strong>need not</strong> honor them.</p>\n",
"score": 2
}
] |
[
"copyright",
"legal-terms",
"dmca",
"google"
] |
What consequence if an attorney loses critical evidence of their client?
| 5 |
https://law.stackexchange.com/questions/44613/what-consequence-if-an-attorney-loses-critical-evidence-of-their-client
|
CC BY-SA 4.0
|
<p>Client gives notice to attorney of potential issue. Later, some tangible item, such as a document, causes emotional distress / mental breakdown of the Client that escalates the issue to a potential tort.</p>
<p>Client retrieves the tangible item from tortfeasor, and immediately goes to attorney's office and delivers the item to the attorney as evidence.</p>
<p>Attorney agrees to secure / store evidence, and later files a lawsuit.</p>
<p>Later, Attorney claims Client did not deliver the tangible item that had caused their emotional distress. Assume there is other evidence to prove Client's case.</p>
<p>What is the consequence of the attorney losing the tangible item? Would this item be critical evidence since it was the cause of the Client's emotional distress / mental breakdown?</p>
| 44,613 |
[
{
"answer_id": 88110,
"body": "<p>There are several areas that this question leaves unclear. I will assume that "attorney" is the attorney hired by "client", not an opposing attorney, although the question does not clearly say that.</p>\n<p>Whether this "tangible item" is critical evidence in a torts case depends on the nature of the case, and probably on the factual details of the case.</p>\n<p>An attorney given a tangible item by his or her client, and accepting it and agreeing to "safeguard" it as relevant to a case on which the attorney is employed has a duty to in fact safeguard it. If the item is lost by or because of the attorney's negligence (or intentional action) that would itself work damage on the client. That might amount to malpractice, or breach of Contract on the part of the attorney.</p>\n<p>The question says that "<em>Later, attorney claims Client did not deliver the tangible item...</em>" Since the question states it as fact that the items was delivered and accepted, that would seem to be a lie, one which is to the disadvantage of the client. Knowingly making false statements to the disadvantage of a client is surely a violation of legal ethics, and possibly malpractice in itself.</p>\n<p>What effect the loss of this item would have on the lawsuit, and whether the loss by the attorney would be a valid excuse in the face of an order to produce the item is impossible top say on the information given ion the question.</p>\n",
"score": 1
}
] |
[
"evidence",
"tort",
"malpractice"
] |
Is there a way to avoid double-VAT when delivering from UK to Ireland?
| 3 |
https://law.stackexchange.com/questions/87986/is-there-a-way-to-avoid-double-vat-when-delivering-from-uk-to-ireland
|
CC BY-SA 4.0
|
<p>For non-business customers, I'm wondering there is a way to avoid being double-vatted on products purchased from the UK and imported from UK to Ireland?</p>
<p>An example would be if I ordered a €500 laptop from a UK business. This business adds 20% UK VAT, bringing the total to €600. I am now required to pay 23% Irish VAT upon delivery, bringing the total to €738. (These are just rough calculations and there may also be customs duties which I have not included).</p>
<p><a href="https://www.revenue.ie/en/customs/businesses/brexit/info-businesses/vat-gb-after-transition/reclaiming-vat-incurred-in-great-britain.aspx" rel="nofollow noreferrer">This is the only information page I could find on this topic</a>.</p>
<blockquote>
<p>The Electronic VAT Refund (EVR) System is no longer available to claim:</p>
<ul>
<li>VAT incurred in Great Britain (GB) by Irish traders</li>
</ul>
</blockquote>
<blockquote>
<p>If you have suffered VAT in GB you can request a refund of that VAT. This request must be made directly to Her Majesty's Revenue and Customs (HMRC)</p>
</blockquote>
<p>Does the quoted information mean it is possible to get a VAT refund, and if so, is it practical?</p>
| 87,986 |
[
{
"answer_id": 88117,
"body": "<p>From 1 January 2021, <a href=\"https://www.gov.uk/government/publications/accounting-for-vat-on-goods-moving-between-great-britain-and-northern-ireland-from-1-january-2021/goods-moved-between-great-britain-and-the-eu-from-1-january-2021#sending-goods-from-great-britain-to-the-eu\" rel=\"nofollow noreferrer\">goods sent from Great Britain to the EU are treated as exports</a>, which are <a href=\"https://www.gov.uk/guidance/vat-on-goods-exported-from-the-uk-notice-703#the-basics\" rel=\"nofollow noreferrer\">subject to 0% VAT</a>:</p>\n<blockquote>\n<p>VAT is a tax levied on goods and services consumed in the UK. When goods are exported they are ‘consumed’ outside the UK and to impose VAT on such goods would be contrary to the purpose of the tax. Therefore, the supply of exported goods is zero-rated provided the conditions in this notice are met.</p>\n</blockquote>\n<p>(Businesses in Northern Ireland remain <a href=\"https://www.gov.uk/guidance/vat-on-movements-of-goods-between-northern-ireland-and-the-eu#section2\" rel=\"nofollow noreferrer\">subject to the EU VAT rules</a> and their customers in Ireland can <a href=\"https://www.revenue.ie/en/customs/businesses/brexit/info-businesses/vat-gb-after-transition/reclaiming-vat-incurred-in-great-britain.aspx\" rel=\"nofollow noreferrer\">still use the EVR system</a>.)</p>\n<p>If a supplier in Great Britain incorrectly charges VAT on goods exported to Ireland, the supplier should refund the VAT to the customer, and claim its own refund from HMRC under the <a href=\"https://www.gov.uk/guidance/how-to-correct-vat-errors-and-make-adjustments-or-claims-vat-notice-70045#unjust-enrichment\" rel=\"nofollow noreferrer\">reimbursement scheme</a>.</p>\n",
"score": 2
}
] |
[
"united-kingdom",
"tax-law",
"ireland",
"customs-law",
"import"
] |
Can I resell my Amazon gift card?
| 6 |
https://law.stackexchange.com/questions/11968/can-i-resell-my-amazon-gift-card
|
CC BY-SA 3.0
|
<p>I bought an Amazon gift card, and I would like to sell it to my friend.
However <a href="https://www.amazon.com/gp/help/customer/display.html?nodeId=3122091" rel="nofollow">Amazon Gift Card Terms and Conditions</a> §2 states:</p>
<blockquote>
<p>Gift Cards cannot be reloaded, resold, transferred for value or
redeemed for cash, except to the extent required by law.</p>
</blockquote>
<p>Is there a a law that will allow me to resell my gift card? Or would I be violating the terms that I agreed to when I purchased it?</p>
| 11,968 |
[
{
"answer_id": 12020,
"body": "<p>At the federal level, <a href=\"http://www.ecfr.gov/cgi-bin/text-idx?rgn=div5;node=12%3A2.0.1.1.6#se12.2.205_120\" rel=\"noreferrer\">gift cards</a> seem to be treated as a special case of electronic fund transfer. <a href=\"https://www.law.cornell.edu/uscode/text/15/1693l%E2%80%931\" rel=\"noreferrer\">15 U.S. Code § 1693l–1</a> and the corresponding <a href=\"http://www.ecfr.gov/cgi-bin/text-idx?rgn=div5;node=12%3A2.0.1.1.6#se12.2.205_120\" rel=\"noreferrer\">regulations</a> presently regulate disclosure of fees and expiration, and do not directly say anything about sale of such a card. There might be relevant state laws, though Washington state laws mostly mirror the federal law (also allowing issuing a card with an expiration date if given for no value to a charitable organization). You can actually get your last $5 back in cash in Washington per <a href=\"http://app.leg.wa.gov/rcw/default.aspx?cite=19.240&full=true\" rel=\"noreferrer\">RCW 19.240.020</a>.</p>\n\n<p>A gift card / certificate isn't a \"thing\" in the way that an apple, hammer or table is, it's a contractual relationship. If you own a thing, you can freely re-sell it to whoever you want (assuming there isn't an express statutory prohibition against the sale of the thing). You cannot universally sell (assign) a contract right – there is a default preference that you should be able to, but Amazon has in this case said \"No, you can't\".</p>\n",
"score": 5
}
] |
[
"terms-of-service"
] |
What constitutes murder in war?
| 9 |
https://law.stackexchange.com/questions/88045/what-constitutes-murder-in-war
|
CC BY-SA 4.0
|
<p>So, there is a man, Gibril Massaquoi, on trial in Finland for things he allegedly did during the Liberian Civil War. Among the charges is murder.</p>
<p>Here's the thing: in war, it is generally to be hoped that everyone involved has premeditated ending the lives of their opposite number. This would make every soldier ever to serve in war a murderer according to civilian rules.</p>
<p>So, what is the cutoff for soldiers in an active war to commit murder?</p>
| 88,045 |
[
{
"answer_id": 88048,
"body": "<p>As with all international law, it depends on "who says so": I will draw on the <a href=\"https://www.ohchr.org/en/instruments-mechanisms/instruments/geneva-convention-relative-protection-civilian-persons-time-war\" rel=\"noreferrer\">Geneva Convention Relative to the Protection of Civilian Persons in Time of War</a> as most relevant. Article 3 distinguishes combatants from non-combatants, saying that</p>\n<blockquote>\n<p>Persons taking no active part in the hostilities, including members of\narmed forces who have laid down their arms and those placed hors de\ncombat by sickness, wounds, detention, or any other cause, shall in\nall circumstances be treated humanely, without any adverse distinction\nfounded on race, colour, religion or faith, sex, birth or wealth, or\nany other similar criteria.</p>\n</blockquote>\n<p>They then specifically prohibit murder:</p>\n<blockquote>\n<p>Violence to life and person, in particular murder of all kinds,\nmutilation, cruel treatment and torture</p>\n</blockquote>\n<p>but this only applies to non-combatants. There simply is no prohibition against killing combatants (unsurprisingly). Liberia acceded to that treaty, so for instance if one of their soldiers murdered a non-combatant, in principle they should try that soldier for the crime of murder under Liberian law. If some random dude (not a soldier) murders anybody in Liberia,\nin principle they should try him for the crime. Soldier may kill enemy soldier, even when the killed soldier is sleeping and poses no immediate threat to the soldier who kills him. That's the nature of war.</p>\n<p>In the case of Massaquoi, he might have been prosecuted by Sierra Leone, but negotiated immunity in Sierra Leone in exchange for information on his RUF colleagues. There was no such tribunal or arrangement w.r.t. his involvement in Liberia, and Finland opted to conduct an extraterritorial trial based on war crimes (not the killing of combatants). His acquittal was based on the lack of evidence that it was him that did the reported deeds (I don't know if there is a publicly available judgment, but it is 850 pages and in Finnish, so toivotan onnea projektille.</p>\n",
"score": 23
}
] |
[
"murder",
"laws-of-war"
] |
Practical implications of failing to follow GDPR for online businesses
| 0 |
https://law.stackexchange.com/questions/88112/practical-implications-of-failing-to-follow-gdpr-for-online-businesses
|
CC BY-SA 4.0
|
<p>Suppose a person based in UK has started a one-man business online, for example, a web blog where people can read articles and post comments. Now, the business owner is focused on testing out the business idea, and does not have money to hire a legal consultant just yet. So there are a few GDPR violations on the web blog that don't seem that obvious (or serious) to the naked eye, for example:</p>
<ul>
<li>Visitors are not asked to consent to using cookies</li>
<li>The blog uses a web analytics plugin, that sends customer's IP addresses and locations to a 3rd-party company outside of UK/EU, and the business owner does not sign any additional agreements with the 3rd party</li>
<li>The website has a very short and generic Terms of Service page that are just copied over from another similar website, and are not using contractual language</li>
<li>Visitors are allowed to upload images to the web server when they write comments, but are not asked/warned to avoid uploading any illegal/copyrighted content</li>
</ul>
<p>Now, the business owner has no malicious intent to steal people's data, etc, and there have been no security breaches where hackers could gain access to the data. And there are not many users of the web blog anyway (let's say ~500 people who registered their names and email addresses in the system).</p>
<p>However, it is clear that quite a few GDPR rules are violated here. Of course, in theory, the business owner could face lawsuits, but has this ever happened in practice for violations that are similar to the ones described above? How likely it is that if these violations are detected, the owned is just kindly asked to fix them before any fines/lawsuits follow? What aspects usually affect the likelihood of this?</p>
| 88,112 |
[
{
"answer_id": 88116,
"body": "<p>Such as violator could be subject to a fine, not just to a lawsuit. That is if action is taken by the national Data Protection Authority (DPA).</p>\n<p>My understanding is that DPAs mostly concentrate on large businesses and organizations. But it seems that there have been some actions involvign smaller offenders. The <a href=\"https://www.google.com/search?client=firefox-b-1-d&q=GDPR+enforcement+actions+small+buisness\" rel=\"nofollow noreferrer\">GDPR Enforcement Tracker</a> lists enforcement actions.</p>\n<p>Listed actions include:</p>\n<div class=\"s-table-container\">\n<table class=\"s-table\">\n<thead>\n<tr>\n<th>ID</th>\n<th>Date</th>\n<th>Type</th>\n<th>Fine Amt (Euros)</th>\n<th>Provision(s)</th>\n</tr>\n</thead>\n<tbody>\n<tr>\n<td>ETid-1550</td>\n<td>2022-12-28</td>\n<td>Private individual</td>\n<td>600</td>\n<td>Art Art. 5 (1) c); Art 13</td>\n</tr>\n<tr>\n<td>ETid-1545</td>\n<td>2023-01-03</td>\n<td>HOA</td>\n<td>500</td>\n<td>Art. 5 (1) e)</td>\n</tr>\n<tr>\n<td>ETid-1536</td>\n<td>2022-12-20</td>\n<td>Private individual</td>\n<td>3000</td>\n<td>Art. 6 (1)</td>\n</tr>\n<tr>\n<td>ETid-1534</td>\n<td>2022-12-20</td>\n<td>Private individual</td>\n<td>1000</td>\n<td>Art. 5 (1) c)</td>\n</tr>\n</tbody>\n</table>\n</div>\n<p>These are just a few recent instances in which individuals or small organizations are shown as having been fined. They show that such consequences do happen in at least some such cases.</p>\n",
"score": 1
}
] |
[
"united-kingdom",
"gdpr"
] |
In Indian law are courts required to give similar verdicts for similar cases?
| 3 |
https://law.stackexchange.com/questions/88081/in-indian-law-are-courts-required-to-give-similar-verdicts-for-similar-cases
|
CC BY-SA 4.0
|
<p>From what I understand this power is discretionary to courts other than supreme courts. But there isn't much material on it. Is there any grey area that I might be missing ? And are the decisions of supreme court binding on high courts of states ?</p>
| 88,081 |
[
{
"answer_id": 88115,
"body": "<p>The difficult part is deciding when two cases are similar.</p>\n<p>Precedents from higher courts govern what the law is in a case. But, a lot of what trial court judges do is to boil down a mountain of evidence to determine authoritatively what facts actually transpired before applying the law to those facts. This involves immense amounts of discretion and judgment.</p>\n<p>Also, while in some cases the law provides very clear guidance to a judge about what to do, in other cases, the law is vague enough that two different judges can reach two different verdicts, both of which are legally correct, on the same set of facts.</p>\n<p>For example, in a divorce case (involving made up facts and law to illustrate the idea), suppose that the two main assets of the family are a house and retirement account of equal value and that the facts as applied to the relevant law say that the value of the assets must be divided equally between the husband and wife. One judge could award the house to the husband and the retirement account to the wife, while another judge could award the retirement account to the husband and the house to the wife. But both judges would have complied perfectly with the law.</p>\n<p>Similarly, in a divorce there are a variety of different custody plans for children that could all conform to the law and different judges could choose different plans and each be correct.</p>\n<p>As another example, suppose that a bulldozer destroys a house and the person whose house is destroyed sues for money damages. The judge is presented with two different appraisals from equally qualified appraisers for the value of the house, both of whom superficially at least, are using proper appraisal methods. But one appraiser says the house was worth 1,000,000 and another says that the house was worth 1,500,000. Realistically, any verdict the judge renders between 1,000,000 and 1,500,000 could be upheld as legally correct.</p>\n<p>Because the process of turning evidence into legal verdicts involves so much discretion and so many judgment calls, and because it is rare that two cases are factually identical, the goal of giving similar verdicts for similar cases, is difficult to achieve and difficult even to evaluate in real life.</p>\n<p>It is almost certain that similar cases often result in dissimilar verdicts, and not infrequently the reasons for this (like using personal ideologies as opposed to what the law demands to resolve close cases) are not good ones. But deciding how common that is, or in what kinds of cases it is most troubling that this happens, is very hard to determine.</p>\n",
"score": 3
},
{
"answer_id": 88082,
"body": "<p>Most legal systems try to encourage different courts to give similar verdicts for similar cases.</p>\n<p>India has a unified common-law based system, so judgements of superior courts set binding precedents that are binding on all inferior courts. See <a href=\"https://uk.practicallaw.thomsonreuters.com/w-017-5278?transitionType=Default&contextData=(sc.Default)&firstPage=true#co_anchor_a813964\" rel=\"nofollow noreferrer\">this page</a> for reference. Thus judgements of the Supreme Court set binding precedents for all High Courts and all District Courts, and judgements of any High Court sets binding precedents for all District Courts. (This is in contrast to the US, for example, where a state appeal court judgement is only binding on courts <em>in the same state</em>, and a federal appeal court judgement is only binding on courts in the same federal district.)</p>\n<p>A judgement of a one court is not binding on another court at the same level (so two High Courts can produce different judgements, as can two district courts).</p>\n",
"score": 2
}
] |
[
"india",
"indian-constitutional-law"
] |
Why are condominium fixture improvements property of the Association?
| 3 |
https://law.stackexchange.com/questions/88090/why-are-condominium-fixture-improvements-property-of-the-association
|
CC BY-SA 4.0
|
<p>Let us assume a <strong>fixture</strong> improvement (wooden deck) has been constructed on a Florida condominium by an individual owner (not the Association) on the Association's common area.</p>
<p>However, assume for this example that the owner did have standing (permission and licensing) to build the improvement. DaleM indicated that the Association now owns said improvement. It is my understanding ownership comprises control and responsibility. As the owner, the Association:</p>
<ol>
<li>Can remove the items at will</li>
<li>Is responsible for maintenance of improvements</li>
<li>Is responsible for liability</li>
<li>Has authority to apply rules to control / limit use of the improvement (wooden deck).</li>
</ol>
<p>DaleM indicated:</p>
<blockquote>
<p>A deck is normally fixed to the land in some more or less permanent
fashion. That makes it a fixture, and fixtures, unlike chattels, have
no property independent of the land they are part of. The part of the
deck on the common property of the HOA belongs to the HOA.</p>
</blockquote>
<p>DaleM correctly surmises that the improvement is a fixture. IANAL, so I seek to understand: Because the fixture-improvement (wooden deck) is on the common property, the HOA owns it. <em>Any layman's explanation is appreciated.</em></p>
<p><strong>What precedent is there for DaleM's hypothesis / argument?</strong></p>
| 88,090 |
[
{
"answer_id": 88109,
"body": "<h2>A <a href=\"https://en.wikipedia.org/wiki/Fixture_(property_law)\" rel=\"nofollow noreferrer\">fixture</a> is a chattel that attached to real property with the intention that it be permanent</h2>\n<p>When land is transferred, the fixtures come with it, the chattels don’t. The ur-example of a fixture is a building.</p>\n<p>In determining the intent of the person who attached the object the court makes rebuttable assumptions. These were spelled out in <em>Australian Provincial Assurance Co Ltd v Coroneo</em>:</p>\n<blockquote>\n<p>A fixture is a thing once a chattel which has become in law land through having been fixed to land. The question whether a chattel has become a fixture depends upon whether it has been fixed to land, and if so for what purpose. If a chattel is actually fixed to land to any extent, by any means other than its own weight, then prima facie it is a fixture; and the burden of proof is upon anyone who asserts that it is not: if it is not otherwise fixed but is kept in position by its own weight, then prima facie it is not a fixture; and the burden of proof is on anyone who asserts that it is…”</p>\n</blockquote>\n<blockquote>\n<p>The test of whether a chattel which has been to some extent fixed to land is a fixture is whether it has been fixed with the intention that it shall remain in position permanently or for an indefinite or substantial period… or whether it has been fixed with the intent that it shall remain in position only for some temporary purpose…</p>\n</blockquote>\n<p>Article 9 of the Universal Commercial Code of the USA, fixtures are defined as “goods that have become so related to particular real property that an interest in them arises under real property law.” This <a href=\"https://www.worldwidelandtransfer.com/whats-the-difference-between-a-fixture-and-a-chattel/\" rel=\"nofollow noreferrer\">site</a> gives some precedents.</p>\n<p>The deck in the question is undoubtably a fixture. As such it is part of the land. Whoever owns the land owns the deck.</p>\n",
"score": 1
}
] |
[
"florida",
"condominium"
] |
Can a Party Introduce a New Contract as Evidence that Conflicts with Previous Submission?
| 1 |
https://law.stackexchange.com/questions/88060/can-a-party-introduce-a-new-contract-as-evidence-that-conflicts-with-previous-su
|
CC BY-SA 4.0
|
<p>Suppose Party A & Party B have a disagreement about the terms a contract and Party A presents a contract written in 2010 as evidence against the other party.</p>
<p>Party B presents a different contract written in 2013 which is worded slightly differently and supports his case.</p>
<p>Party A then finds a 3rd contract written in 2016 which matches the one written in 2010.</p>
<p>Is the new contract admissible as evidence court? Suppose the contracts were written over a period of 5-10 years so it is within reason the Party A may have legitimately forgot about the 3rd contract.</p>
<p>Would the court accept the 3rd contract from Party A as evidence? Or would it be rejected on the basis that it conflicts with the first contract presented to the court?</p>
<p>Would it matter whether Party A introduced the original contract during discovery or in court?</p>
| 88,060 |
[
{
"answer_id": 88061,
"body": "<p>Everything offered by a party comes into evidence if it is duly authenticated.</p>\n<p>A contract not disclosed prior to a pre-trial deadline for doing so, however, might be excluded from evidence for non-disclosure, unless it was offered for impeachment or rebuttal purposes.</p>\n",
"score": 2
},
{
"answer_id": 88108,
"body": "<blockquote>\n<p>Would the court accept the 3rd contract from Party A as evidence? Or would it be rejected on the basis that it conflicts with the first contract presented to the court?</p>\n</blockquote>\n<p><em>If</em> the contract from year 2016 is rejected as evidence, it would be for belatedness and/or other reasons rather than for not being the one initially filed in court.</p>\n<p>In a contract dispute, the most important issue is the timing of alleged breach. That information generally determines which of the contracts governed the parties' relation at that time.</p>\n<p>The years you mention suggest that the <em>statute of limitations</em> for breaches prior to year 2016 has expired, though. Generally speaking, the statute of limitations for contract claims is six years. See <a href=\"https://www.leagle.com/decision/innjco20221215338\" rel=\"nofollow noreferrer\"><em>Hagans v. Nickerson</em>, Superior Court of NJ (Oct. 2022)</a>, (citing NJSA A:14-1(a)).</p>\n<p>For claims arising in year 2016 or later, the contract from 2016 supersedes the [presumably replaced] one from 2013. This precludes the use of the contract from 2013 for deciding the matter at issue. But, as the other answer points out, the governing contract must be filed timely.</p>\n",
"score": 0
}
] |
[
"united-states",
"contract-law",
"civil-law",
"new-jersey"
] |
Terminology for ownership
| 0 |
https://law.stackexchange.com/questions/88046/terminology-for-ownership
|
CC BY-SA 4.0
|
<p>Let us assume an improvement (wooden deck) has been made on a Florida condominium by an individual owner (not the Association) <strong>on the common area</strong>. There is debate as to whether the owner actually had the proper approvals. The owner has sold the condo to a new owner.</p>
<p>My question is: what is the simple/effective terminology for the <strong>new</strong> owner that did not build the deck, so as to differentiate him from the owner-builder?</p>
| 88,046 |
[
{
"answer_id": 88055,
"body": "<p>Either "Owner" or "Association Member" would be the simplest and most effective terminology to describe a resident owner of one of the condominiums within your group.</p>\n<p>Whether or not the person who previously resided there made some improvement to a common area, (authorized or not) has no bearing or relevance on the legal status, or any name/title used to describe the current resident.</p>\n<p>If any legal action arises out of the situation the previous owner may be referred to as "the defendant"...</p>\n<p>Ownership of the common areas should be spelled out in your association agreements, what do they say?</p>\n",
"score": 2
}
] |
[
"legal-terms"
] |
Storing encrypted, copyrighted material on behalf of users
| 0 |
https://law.stackexchange.com/questions/88101/storing-encrypted-copyrighted-material-on-behalf-of-users
|
CC BY-SA 4.0
|
<p>Suppose a web service offers users to store their media data, some of which may be copyrighted. The service would keep metadata separate from the content itself, and that content would be transparently encrypted and decrypted on the user's device, with the keys never leaving that device. Thus, the web service has no way of making any sense of the user's files, but can use the metadata to allow sorting, organising and searching for content.<br />
Also, suppose the service might allow users to invite members of their immediate family (say, up to a maximum of five people). Those family members, in addition to the library owner, would be allowed to access the content.</p>
<p>Would that service be in violation of common copyright terms?<br />
I would argue that since a) web service cannot access the protected media itself and share it with others, and b) users essentially <a href="https://law.stackexchange.com/questions/28943/copyright-and-encrypted-backups">use the service for backups</a>, this should be fine; but I'm not sure how to approach this.</p>
<p><em>(I'm trying to gauge the viability of a side project)</em></p>
| 88,101 |
[
{
"answer_id": 88106,
"body": "<p>An encrypted copy of a derivative work is still a copy. A person is not entitled to make a copy of a work protected by copyright without permission simply because the copy is encrypted.</p>\n<p>However, making a copy purely for purposes of backup might be considered to be a fair use. If the person (or entity) storing the copy does not have access to the clear text, then the copy cannot serve as a substitute for the original, and it is hard to see how the market for the original is harmed. That tilts any analysis towards fair use, but that is not a full analysis, and one cannot say form sure how a court would rule on such a claim.</p>\n<p>That assume that the possessor of the copy came by it legitimately. If the copy was itself an infringement, making further copies is almost surely not a fair use.</p>\n<p>One should remember that the person who makes an encrypted copy can alweays distribute the encryption key at a later time. S/he may have no intention of doing so, and may even have promised not to do so. But s/he <strong>can</strong> always do so, and that possibility means that the encrypted copies might later be decrypted by some other party. But as long as they are not being decrypted and the other party does not (yet) have the ability to decrypt, they are no economic threat to the copyright owner.</p>\n<p>Thus one cannot say how a US court would rule on such activities, if the copyright owner brought suit for copyright infringement.</p>\n<p>If suit was brought in a non-US court, fair use would not apply. Other <em><strong>exceptions to copyright</strong></em> might apply, but which would depend on the jurisdiction involved.</p>\n",
"score": 2
}
] |
[
"copyright",
"software",
"encryption"
] |
Texas Business to Consumer auto renewal contracts
| -1 |
https://law.stackexchange.com/questions/88095/texas-business-to-consumer-auto-renewal-contracts
|
CC BY-SA 4.0
|
<p>I was tricked into signing an auto renewal contract for 2022 baseball select league. I told him I was only paying for the summer and fall season and he directed me to use option 1 as it was cheaper to pay for both seasons in full, which also has an auto renewal policy. I thought I was just signing a payment authorization form.</p>
<p>After looking through my email, I noticed I was never emailed the docusign contract and when I requested it while trying to understand why he was taking money out of my account he never responded. I then disputed the transaction with my credit card company and he sent them the contract that I had signed.</p>
<p>The contract states that I needed to send a cancellation notice on Sept 1 2022. He sent me an email on Oct 6 stating that he sent out communication to remind about the auto renewal that was going in affect Nov 1. I looked through my text messages and emails and did not see that Oct 6 communication.</p>
<p>The main question, does Texas law require the business of business to consumer contract, to provide the consumer notice before the auto renewal goes into affect?</p>
<p>Second, what are the laws regarding if the business fails to send an initial invoice/receipt and fails to send it upon request?</p>
<p>I appreciate any response!</p>
| 88,095 |
[
{
"answer_id": 88105,
"body": "<blockquote>\n<p>does Texas law require the business of business to consumer contract, to provide the consumer notice before the auto renewal goes into affect?</p>\n</blockquote>\n<p>If the contract has a clause regarding auto-renewal, the business is required to notify again about it only if the contract imposes on the business that obligation. I highly doubt that under Texas law this issue is any different.</p>\n<p><a href=\"https://statutes.capitol.texas.gov/Docs/BC/htm/BC.17.htm#17.46\" rel=\"nofollow noreferrer\">Section 17.46 of the Texas Business and Commerce Code</a> might be of interest to you. It outlaws conduct such as</p>\n<blockquote>\n<p>(11) making false or misleading statements of fact concerning the reasons for, existence of, or amount of price reductions;</p>\n</blockquote>\n<p>and</p>\n<blockquote>\n<p>(24) failing to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed;</p>\n</blockquote>\n<p>These two items would favor your position unless the terms & conditions were available to you when you followed the provider's suggestion that it would be "<em>cheaper to pay for both seasons in full</em>".</p>\n<p>Since the contract gives a deadline for cancellation notice, the question is whether you were reasonably expected to be aware of the auto-renewal policy at all. Your understanding that you were "<em>just signing a payment authorization form</em>" and were "<em>never emailed the docusign contract</em>" is inconclusive as to whether the T&C were somehow available to you and you simply failed to read them. If that is the case, it is unlikely for you to have a viable claim against the provider.</p>\n<blockquote>\n<p>what are the laws regarding if the business fails to send an initial invoice/receipt and fails to send it upon request?</p>\n</blockquote>\n<p>As you can see from section 17.46, statutory law hardly ever gets too detailed about conduct expected from the parties. You need to ponder the extent to which the aforementioned items apply to your matter.</p>\n<p>At first glance, disputing that the Oct 6 reminder was sent seems futile because it was past the cancellation deadline anyway. This issue would be relevant only if the T&C (1) did not specify the date when the renewal fee would take effect, or (2) require the provider to send the reminder.</p>\n",
"score": 1
}
] |
[
"contract-law",
"business",
"consumer-protection",
"texas"
] |
How was retroactive copyright extension ever approved of?
| 2 |
https://law.stackexchange.com/questions/88100/how-was-retroactive-copyright-extension-ever-approved-of
|
CC BY-SA 4.0
|
<p>In the US, copyright has been retroactively extended multiple times. <a href="https://en.wikipedia.org/wiki/Steamboat_Willie#Copyright_status" rel="nofollow noreferrer">Steamboat Willie for example has repeatedly been snatched away from the public domain in the last minute</a>.</p>
<p>It was first due to enter the public domain in 1955. Then in 1986. Then in 2003. Last extension (that I know of) was until 2023 which is the year I write this.</p>
<p>But at the same time, <a href="https://en.wikipedia.org/wiki/Ex_post_facto_law" rel="nofollow noreferrer">ex post facto laws are expressly forbidden by the United States Constitution</a>.</p>
<p>So how is it possible that ex post facto copyright extensions have been passed multiple times?</p>
<p>As I see it the victim here is the general public. Is it simply that they haven't sued for rights? Or did they?</p>
<p>If I sign a contract that I will hand over my poem to you in two weeks, can I just change my mind and say "no, now it's three months" whenever I feel like it? AFAICT that's exactly what's been happening here.</p>
| 88,100 |
[
{
"answer_id": 88102,
"body": "<p>See <em><a href=\"https://supreme.justia.com/cases/federal/us/565/302/\" rel=\"nofollow noreferrer\">Golan v. Holder</a></em> (2012). This related to an extension of copyright protection for works that had already fallen into the public domain.</p>\n<ul>\n<li>an extension of copyright is still a "limited time" allowed by the Constitution</li>\n<li>historical practice, including by the first congress, is evidence that giving copyright protection to previously unprotected works is okay</li>\n<li>there is a rational basis that such extensions promote the progress of science</li>\n<li>fair use continues to be available as a defence/exception</li>\n</ul>\n<p>Further, no one is liable for copies of works made while a work was in the public domain. This was not imposing retroactive, ex post facto punishment. But see Justice Stevens's dissent in <em><a href=\"https://supreme.justia.com/cases/federal/us/537/186/\" rel=\"nofollow noreferrer\">Eldred v. Ashcroft</a></em> (2002) for such an argument—not in the punishment sense, but analogizing to a taking (the majority held that the Sonny Bono Copyright Term Extension Act was constitutional).</p>\n",
"score": 3
}
] |
[
"united-states",
"copyright",
"ex-post-facto"
] |
What's the difference a petition, motion, suit & complaint?
| 2 |
https://law.stackexchange.com/questions/88078/whats-the-difference-a-petition-motion-suit-complaint
|
CC BY-SA 4.0
|
<p>I've seen all of these terms being thrown around to describe overlapping concepts.</p>
<p>I believe a suit asks the court for a monetary judgment whereas a "petition" just asks the court for an order for action. Is this correct?</p>
<p>What's the difference between the other ones?</p>
<p>Is there a specific type of form / process that needs to be used/followed to file each type of action in court?</p>
| 88,078 |
[
{
"answer_id": 88097,
"body": "<h2>In Civil Cases</h2>\n<h3>Petitions, Complaints, And Suits</h3>\n<p><strong>Suits</strong></p>\n<p>The term "suit" is uncommon and verges on colloquial. It is a shortened version of the term "lawsuit" a.k.a. civl action a.k.a. court case. The term "lawsuit" refers to the entire case that is initiated by a Petition or a Complaint, rather than just a single document. The term "lawsuit" excludes court cases that are criminal and brought in the name of "The People."</p>\n<p>When one "files a lawsuit" or "files suit" one initiates a court case by filing a Complaint or a Petition with a court.*</p>\n<ul>\n<li>In some circumstances, a lawsuit is commenced by delivering the Petition or Complaint and other documents to another party to the case first, an action called "service of process" and then filing it with the court, while in most cases, filing the Petition or Complaint with the court comes first and service of process comes second.</li>\n</ul>\n<p><strong>Petitions v. Complaints</strong></p>\n<p>A Petition and a Complaint are each documents used to initiate a civil action (sometimes called a lawsuit or a court case) seeking some kind of relief from a court. For all practical purposes, the differences between Complaints and Petitions is purely stylistic and a matter of custom and history.</p>\n<p>Normally there is a filing fee for filing a Petition or Complaint.</p>\n<p>When a court case is commenced with a Complaint, the document that someone who is sued must file is called an "Answer". When a court cases is commenced with a Petition, the document that someone who is a party to the case must file to dispute that the relief requested in the Petition be granted is called a "Response" or an "Objection".</p>\n<p><strong>When Is Complaint v. Petition Terminology Used</strong></p>\n<p>Roughly speaking, the initial document is almost always called (in U.S. practice at least) a "Complaint" in contexts where the primary relief sought would have been for causes of action brought in courts of law in the English common law system before the merger of law courts and equity courts a.k.a. courts of chancery. <em>See generally</em>, <a href=\"https://law.stackexchange.com/questions/85675/what-are-equity-and-equitable-remedies/85676#85676\">this Law.SE answer</a>.</p>\n<p>For example, the document initiating a lawsuit (a.k.a. civil action) for breach of contract, or for money damages in tort (e.g. a personal injury lawsuit), are almost always described as a "Complaint."</p>\n<p>The term "Petition" is most often used to describe an initial document seeking relief from a court in particular kinds of cases associated with historical equity relief and often don't seek money damages or don't have a clear winner or loser.</p>\n<p>Petitions are used, for example, to initiate a probate case, a guardianship or conservatorship case, a bankruptcy case, a divorce case, a request to change your name, or a case seeking to incorporate a municipality or special district.</p>\n<p>It is also customary to call an initial document seeking relief from a court a "Petition" when the relief sought is a "Writ". So, for example, one files a Petition for Writ of Certiorari, a Petition for a Writ of Habeas Corpus, and a Petition for a Writ of Mandamus.</p>\n<p>A "Writ" is a court order directed to someone who is not a party to a lawsuit directing that person (usually, but not always, a government official) to do something.</p>\n<p>Notwithstanding this general rule, however, in cases seeking money damages, possession of real estate (i.e. evictions), and possession of specific items of personal property (a.k.a. "replevin" actions or "claim and delivery" actions), cases are generally initiated with a document entitled a "Complaint" even though some of the post-judgment relief awarded will consist of writs (e.g. a writ of garnishment or a writ of execution in a case seeking a money judgment, a writ of restitution in a case seeking possession of real property, and writs of attachment and writs of assistance in cases seeking possession of personal property).</p>\n<p>In some kinds of cases, such as lawsuits to quiet title to real property, or lawsuits alleging breaches of fiduciary duty, the initiating document is sometimes called a "Complaint" and sometimes called a "Petition" in an inconsistent manner.</p>\n<p>The Federal Rules of Civil Procedure calls the document used to initiate a civil action a "Complaint" and many state rules of civil procedure follow the lead of the Federal Rules of Civil Procedure. In those jurisdictions, the term "Petition" is often used to refer to court cases that aren't governed by the ordinary rules of civil procedure. But this distinction isn't followed strictly. Some kinds of Petitions and Motions that initiate civil actions are still governed in whole or in part by the ordinary Rules of Civil Procedure.</p>\n<p><strong>Application v. Petition</strong></p>\n<p>Also, sometimes the word "Application" is used in lieu of the word "Petition", in part, because it is seen by reformers as a more "plain English" and less technical word than "Petition".</p>\n<p>The term "Application" rather than "Petition" is also sometimes used, in part, to avoid confusion with the more general non-legal sense of the word "Petition" to mean an request made outside the legal system to a public official or other individual requesting that they do something, or a document signed by numerous people seeking to allow a candidate to run for office or allowing a citizen's initiative to be placed on the ballot in an election, for example.</p>\n<h3>Motions</h3>\n<p><strong>The General Rule</strong></p>\n<p>A "Motion" predominantly refers to an oral request or written request made to a court requesting that the court do something during the course of a civil action a.k.a. lawsuit a.k.a. court case after the case was initiated with a Complaint or a Petition.</p>\n<p>Motions don't necessarily have to be filed by parties to the case, even though motions are usually filed by parties to cases.</p>\n<p>For example, a non-party to a case could file a "Motion to Intervene" to be made a party to the case, or could file a "Motion to Quash" or a "Motion for Protective Order" to seek to limited the scope of, or invalidate, a subpoena served upon a non-party.</p>\n<p>Motion are filed, for example, seeking to add a party, to dismiss a case, to amend a document previously filed in the case, for an extension of time to do something, to exclude evidence at an upcoming trial or hearing, to convert a case from a jury trial case to a non-jury trial case, to change a trial date, or any manner of other things that require court action.</p>\n<p>Requests for post-judgment relief in an existing case and post-judgment litigation of custody and child support matters in divorce cases are also called Motions.</p>\n<p>A court filing that doesn't ask a court to do something is often called a "notice" or "status report" or "return" (a "return" is a report to the court that something that should have happened in a court supervised process actually happened). Other terms are used as well.</p>\n<p>Normally, there is not a filing fee for filing a Motion in an existing case.</p>\n<p><strong>Motions That Start Court Cases</strong></p>\n<p>But because the law is not entirely consistent in its terminology, the term "Motion" is in rare instances used to refer to a document used instead to initiate a new court case concerning a very narrow special proceeding in a court. For example, in Colorado, where I practice, some of the court cases that are initiated by a Motion include:</p>\n<ul>\n<li><p>A Motion to Compel or Stay an Arbitration proceeding.</p>\n</li>\n<li><p>A Motion to Confirm, Vacate, or Modify an Arbitration Award.</p>\n</li>\n<li><p>A Motion to Compel a legal entity to turn over its records to one of its owners.</p>\n</li>\n<li><p>A Motion to authorize an otherwise public trustee foreclosure of deed of trust for real property to go forward.</p>\n</li>\n<li><p>A Motion to have a money judgment entered in another state recognized in the state where the Motion is filed.</p>\n</li>\n</ul>\n<p>The basic notion is that in the kind of court cases initiated by a Motion rather than a Petition or a Complaint, the intent is that the entire court case should involve a procedural process similar to the process of resolving a single isolated motion within a larger court case, as opposed to the full legal process involved in an entire court case initiated by a Complaint or a Petition.</p>\n<p>Another term used to initiate a court case, often a limited special proceeding without involving the procedural incidents of a full fledged civil lawsuit is an "application."</p>\n<p>Normally there is a filing fee for filing a Motion that initiates a new court case.</p>\n<h2>In Criminal Cases</h2>\n<p><strong>Criminal Cases Are Not Lawsuits</strong></p>\n<p>The term "suit" or "lawsuit" is normally reserved for civil cases and is not used to refer to criminal cases brought in the name of "The People". Often a criminal case brought in the name of "The People" is called a "Prosecution".</p>\n<p><strong>Motions</strong></p>\n<p>The term "Motion" is used the same way in criminal cases as it is in civil cases. As in civil cases, the term Motions is used for post-verdict fillings requesting relief from a court in existing criminal cases, such as a Motion to Seal a record in an existing criminal case, or a Motion to set aside a verdict after it is entered.</p>\n<p>Also, as in civil cases, there are some criminal cases that can be initiated via a "Motion" which are generally narrow special proceedings intended to be adjudicated with the procedural trappings of a motion filed in another case rather than the procedural trappings associated with a full fledged criminal case. Sometimes these filings to initiate new special proceedings in criminal cases are called "applications" rather than "motions".</p>\n<p>For example, a request to a court to issue a criminal search warrant would often be called a "Motion for Issuance Of A Search Warrant" or an "Application For A Search Warrant."</p>\n<p><strong>Petitions</strong></p>\n<p>In criminal practice, the term "Petition" is normally reserved for an application for a Writ, such as a Petition for a Writ of Certiorari, or a Petition for a Writ of Mandamus.</p>\n<p><strong>Complaints v. Indictments In Criminal Cases</strong></p>\n<p>Criminal law practice uses the term "Complaint" differently than in civil practice, however.</p>\n<p>In criminal law practice, the key distinction is between a "Complaint" which is a document commencing a criminal prosecution against a criminal defendant filed by a prosecutor (or where the law authorizes it, by a non-lawyer such as a police officer or crime victim), and an "Indictment" which is a document commencing a criminal prosecution against a criminal defendant issued by a <a href=\"https://en.wikipedia.org/wiki/Grand_juries_in_the_United_States\" rel=\"nofollow noreferrer\">grand jury</a>.</p>\n<p>A document initiating a criminal prosecution without using a grand jury is also sometimes called an "information" or a "complaint and information".</p>\n<p><a href=\"https://i.stack.imgur.com/6AqdV.png\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/6AqdV.png\" alt=\"enter image description here\" /></a></p>\n<p>(N.B. the State of Colorado is misclassified in the map above and does not exclusively use grand jury indictments to commence felony cases. It should be blue and not gray in the map above.)</p>\n<p>Serious crimes prosecuted in federal courts, and in some (mostly Eastern U.S.) states have to be commenced with an indictment rather than a complaint. In most states (mostly in the Western U.S.), however, a prosecutor can initiate almost any kind of criminal case with a Complaint, and criminal cases initiated by grand jury indictments are the rare exception reserved mostly for organized crime cases, cases involving politicians or with political implications, and cases against law enforcement officers.</p>\n<p>Generally speaking, in criminal cases commenced by an indictment, there is no right to a preliminary hearing to determine if the criminal charges are supported by probably cause before a judge, while there is generally a right to a preliminary hearing for that purpose before a judge in most serious criminal cases commenced with a criminal complaint.</p>\n",
"score": 3
},
{
"answer_id": 88092,
"body": "<blockquote>\n<p>What's the difference a petition, motion, suit & complaint?</p>\n</blockquote>\n<p>Suit and complaint are rather similar. The term <em>complaint</em> is more often used in litigation, although legislation also refers to "filing suit".</p>\n<p>In trial court, <em>petition</em> is a complaint for some types of issues. Arguably the most common use of that term is when asking the court to issue a Personal Protection Order, aka a Restraining Order. In the top court of a jurisdiction, the term almost always refers to an appeal. For instance, litigants whose intent is that the SCOTUS review their matter file a <em>petition for writ of certiorari</em>. <em>Petitions for writ of mandamus</em> are a bit more common --but still unusual-- among appellate courts for matters for which an appeal is not the proper remedy.</p>\n<p>Motions are requests which litigants submit to the court in the context of a specific lawsuit. These requests are ultimately geared toward addressing the central issues of the underlying complaint. Motions typically --but not necessarily-- are filed by the parties to a case. It is not uncommon for non-parties to file a motion. For instance, a non-party might oppose to discovery requests that a party made to them, or the nonparty might intend to file an <em>amicus brief</em> in the matter at issue.</p>\n",
"score": 1
}
] |
[
"united-states",
"legal-terms",
"court",
"definition",
"new-jersey"
] |
Replying to a Motion Objection
| 0 |
https://law.stackexchange.com/questions/88103/replying-to-a-motion-objection
|
CC BY-SA 4.0
|
<p>When Party P (Plaintiff) files a lawsuit against Party D (Defendant) and the Defendant submits a motion to dismiss case. Party P submits an Objection to the motion.</p>
<p>Party D wishes to counter the objection filed by Party P.</p>
<p>What document must Party D submit to counter the motion's objection? A reply brief? Or a letter/correspondence? Or just another Motion?</p>
| 88,103 |
[
{
"answer_id": 88104,
"body": "<blockquote>\n<p>When Party P (Plaintiff) files a lawsuit against Party D (Defendant)\nand the Defendant submits a motion to dismiss case. Party P submits an\nObjection to the motion.</p>\n<p>Party D wishes to counter the objection filed by Party P.</p>\n</blockquote>\n<p>Often the document filed opposing a motion is called a "Response" rather than an "Objection" although local practice varies.</p>\n<p>A document filed in court address points raised in a "Response" or "Objection" is usually called a "Reply".</p>\n<p>So, the person filing the Motion to Dismiss might entitled the document "Reply Regarding Motion to Dismiss" or "Reply to Response To Motion To Dismiss" or "Reply To Objection To Motion To Dismiss".</p>\n<p>A reply is usually supposed to be limited to points raised in the response or objection, often has a shorter filing deadline that the original response or objection, and often is subject to a shorter page or word limit in jurisdictions that have them.</p>\n",
"score": 2
}
] |
[
"united-states",
"civil-procedure",
"new-jersey"
] |
Do contracts require pages or clauses numbered?
| 2 |
https://law.stackexchange.com/questions/88098/do-contracts-require-pages-or-clauses-numbered
|
CC BY-SA 4.0
|
<p>A question asked by another member about missing pages in a lease brings to my mind the question of whether there is a legal requirement for contract pages to be numbered so that it is e.g. obvious when a plaintiff or defendant has simply omitted inconvenient pages ?</p>
<p>I generally see clauses being numbered, but I don't know if this is a requirement or not - I have no legal training myself.</p>
<p>I am particularly interested in my own country (Ireland) and the UK and EU but other jurisdictions are of naturally of interest.</p>
| 88,098 |
[
{
"answer_id": 88099,
"body": "<p>I do not believe that there is any requirement to number clauses, paragraphs, or pages, and I have certainly seen contracts where none of these are numbered. It is a common practice to number provisions in some way, in particular to make reference from one to another easier. But not all contracts include such internal references.</p>\n<p>Contracts presented in electronic form, such as on a web page, may not have any clear concept of separate pages, and so page numbers would be pointless on such contracts.</p>\n<p>Page numbers on contracts printed out are common, but I do not know of any legal requirement for such numbers.</p>\n<p>For contracts presented in electronic form, one can ensure against unauthorized modification by including a checksum or hash of the contract text. If a one-way hash function is used, it will be quite hard to produce a text with a different content but an identical hash value. This technique could also be used on printed contracts. However, I do not recall seeing this technique used in practice.</p>\n",
"score": 5
}
] |
[
"united-kingdom",
"contract-law",
"european-union",
"ireland"
] |
Is it legal to go take my license plates off a car I sold, without realizing I should keep my plates?
| 33 |
https://law.stackexchange.com/questions/61748/is-it-legal-to-go-take-my-license-plates-off-a-car-i-sold-without-realizing-i-s
|
CC BY-SA 4.0
|
<p>I sold a car a year ago in TX and didn't realize that I should take the plates off. The buyer has taken full advantage of this and is racking up lots of tolls in my name. Fortunately I'm able to get the tolls dismissed by showing the bill of sale and vehicle transfer form I filed, but they say they won't stop sending me bills until the guy registers the car in his name, so I have the repeated hassle of going to contest these bills.</p>
<p>It's annoying enough I'm tempted to try to find the car somewhere I believe he frequents and just take the plates. I don't know if that would be considered stealing, since I was supposed to remove them anyway, but something tells me this would be a bad idea. I've had all kinds of ideas, for instance, I found that I still have a non-sentry key, so I could theroetically remove the plates but hide them inside the vehicle, which couldn't possibly be considered stealing but would motivate him to register it.</p>
<p>The main thing I wonder is if he could sue me for some kind of monetary damages arising from missing something important because he sees that he suddenly has no plates and doesn't want to risk getting pulled over. Or gets pulled over on his way to something important, etc.</p>
| 61,748 |
[
{
"answer_id": 61757,
"body": "<p>License plates in Texas are governed by the Texas TRANSPORTATION CODE, TITLE 7. VEHICLES AND TRAFFIC, SUBTITLE A. CERTIFICATES OF TITLE AND REGISTRATION OF VEHICLES, <a href=\"https://statutes.capitol.texas.gov/Docs/TN/htm/TN.504.htm\" rel=\"nofollow noreferrer\">CHAPTER 504 LICENSE PLATES</a></p>\n<p>Texas code section 504.901. TRANSFER AND REMOVAL OF LICENSE PLATES (subsections (b) and (c)) provide that</p>\n<blockquote>\n<p>(b) On the sale or transfer of a motor vehicle to a person who does not hold a general distinguishing number issued under Chapter 503, [i.e. not a dealer] the seller may remove each license plate issued for the motor vehicle. The license plates may be transferred to another vehicle titled in the seller's name if the seller obtains:</p>\n<p>(1) the department's approval of an application to transfer the license plates; and</p>\n<p>(2) a new registration insignia for the motor vehicle.</p>\n<p>(c) A license plate removed from a motor vehicle that is not transferred to another motor vehicle must be disposed of in a manner specified by the department.</p>\n</blockquote>\n<p>It seems that the seller is not <strong>required</strong> to remove the plates when selling the vehicle</p>\n<p>Section 504.010 ISSUANCE AND PLACEMENT OF LICENSE PLATE. provides that:</p>\n<blockquote>\n<p>(a) On payment of the prescribed fee, an applicant for motor vehicle registration shall be issued a license plate or set of plates</p>\n</blockquote>\n<p>This seems to tie the plates to the registration, which means to the person registering them as well as to a particular vehicle.</p>\n<p>Section 504.943. OPERATION OF VEHICLE WITHOUT LICENSE PLATE provides that:</p>\n<blockquote>\n<p>(a) Except as provided by Subsection (b), a person commits an offense if the person operates on a public highway, during a registration period, a motor vehicle that does not display two license plates that:</p>\n<p>(1) have been assigned by the department for the period; and</p>\n<p>(2) comply with department rules regarding the placement of license plates.</p>\n</blockquote>\n<p>Section. 504.944. OPERATION OF VEHICLE WITH WRONG LICENSE PLATE.provides that:</p>\n<blockquote>\n<p>A person commits an offense if the person operates, or as the owner permits another to operate, on a public highway a motor vehicle that has attached to it a number plate or registration insignia issued for a different vehicle. An offense under this section is a misdemeanor punishable by a fine not to exceed $200.</p>\n</blockquote>\n<p>It would seem that under 504.943 or 504.944 (and the related 504.945) the person who bought is committing a misdemeanor every time that the person drives it on public roads or streets. The seller could inform the buyer of this and request the buyer to get new plates, or report the buyer to the police as having improper plates, which would allow them to stop the buyer for having improper plates. Use of certified mail would preserve a record of the notification of the buyer. Note that notification is in no way required before reporting to the police, but might induce the buyer to get new plates on his or her own.</p>\n<p>Secretly removing the buyer's license plate would probably not be theft, as it seems that the plates actually remain the property of the state, but would at the least involve trespass. It seems unwise at best.</p>\n",
"score": 44
},
{
"answer_id": 61767,
"body": "<p>Since this happened in Texas, we can refer to the <a href=\"https://www.txdmv.gov/motorists/buying-or-selling-a-vehicle\" rel=\"noreferrer\">Texas DMV</a>:</p>\n<blockquote>\n<p>Vehicles are required to be titled in the buyer's name within 30 days from the date of sale. Failing to properly transfer a vehicle into the buyer's name could result in the seller being held responsible for tickets, toll violations or even crimes committed with the vehicle. To ensure this doesn't happen to you, accompany the buyer to your county tax office to ensure a vehicle title application is filed.</p>\n</blockquote>\n<p>This is what has happened to you. Fortunately, Texas has a form for you to fill out to inform the state that you no longer own the vehicle:</p>\n<blockquote>\n<p>To protect yourself, file a Vehicle Transfer Notification. When a vehicle transfer notification is received, TxDMV updates the motor vehicle record to show the vehicle as sold. When you file the notification within 30 days from the date of sale, you cannot be held responsible for parking tickets and toll violations that have been committed by the person who purchased the vehicle.</p>\n</blockquote>\n<p>The TXDMV.GOV site has a link to the Vehicle Transfer Notification form and phone numbers and email addresses of the department that you can contact if you have questions.</p>\n<p>Even though more than 30 days have passed, you should still file the Vehicle Transfer Notification form to avoid future tolls and tickets.</p>\n<p>Since the above doesn't answer your question, I would add a short sentence to say <strong>No, do not take the license plates off of a car that you no longer own.</strong></p>\n",
"score": 35
},
{
"answer_id": 61797,
"body": "<blockquote>\n<p>I don't know if that would be considered stealing, since I was\nsupposed to remove them anyway, but something tells me this would be a\nbad idea.</p>\n</blockquote>\n<p>I can see why you would think that's logical, but yeah, listen to your gut. As the others said, it's a safety issue to do so. And it's still no longer your car, so really you shouldn't be messing with it, even if the plates aren't <em>technically</em> the vehicle owner's property. Plus, suppose someone sees you doing this and calls 911? Then you would be the one at the wrong end of the flashing lights and officers approaching <em>you</em> as a suspected criminal, and you'd have a fair bit of explaining to do, possibly from the back of a squad car and in a room at your local police station. You definitely don't want that.</p>\n<blockquote>\n<p>I've had all kinds of ideas, for instance, I found that I still have\na non-sentry key, so I could theoretically remove the plates but hide\nthem inside the vehicle, which couldn't possibly be considered\nstealing but would motivate him to register it.</p>\n</blockquote>\n<p>Again, you're still going into someone else's car. This is even worse than just taking the plates off. <em>Don't do it</em>.</p>\n<p>Since this person has been racking up tolls in your name, though, that sounds to me like <em>identity theft</em>. I'd <em>contact the police</em> right away about it. First gather any evidence you have access to, though, like invoices for the toll charges, the paperwork that shows you sold the vehicle before the toll charges were incurred, and if you have anything that proves you didn't have possession of the car, or that you were physically somewhere else, at some or all of those times. Plan to share with the police what evidence you have</p>\n",
"score": 4
},
{
"answer_id": 61838,
"body": "<p>Since the consensus here is not to take matters into your own hands, consider an alternative: Since the plates belong to the State of Texas, take documentary evidence that your plates are being used improperly to the Texas State Police, provide them a reasonable guess of a date, time and location where they may find the vehicle, and ask them to remove the plates from the vehicle. What happens afterwards depends on their protocols; perhaps they will return the plates to the DMV, or they may give them back to you if you have a use for them.</p>\n",
"score": 0
},
{
"answer_id": 61844,
"body": "<p>I believe you can just report the plates as stolen. You can ask the DMV if you can just report them as stolen without paying the $7 to get a new set. The person who is in possession of them is violating the law by not registering the vehicle, and the plates were supposed to be kept by you (edit: not legally required, but strongly advised).</p>\n<p>Regardless of whether Texas considers the vehicle to no longer be your property, the plates appear to still be yours. At this point you cannot say for sure what vehicle those plates are being used on. Your buyer could have even sold the vehicle again. From the DMV's perspective, you could have kept the plates and used them on one of your vehicles without completing the paperwork to do so legally. They don't know. That's why the plates need to be invalidated by the DMV, and I believe reporting them stolen is the way to do this. You can always say that you had a verbal agreement with the buyer to have the plates returned immediately to you or disposed of after driving it home, and since this was never done the plates are now thought to be stolen. The police don't like having stolen plates in use so they should be glad to work with you.</p>\n<p>Now to answer your question, you can say that you had a verbal agreement with the buyer to come take the plates back later on. The law will always side with you because they can't prove that this didn't happen, it is completely reasonable for you to do this, and what the buyer is doing is completely illegal <em>if</em> he was driving with them (technically someone else could have stolen the plates just after he drove it home)! So yes!</p>\n<p>Information from the <a href=\"https://www.txdmv.gov/motorists/buying-or-selling-a-vehicle\" rel=\"nofollow noreferrer\">Texas DMV</a></p>\n",
"score": 0
}
] |
[
"united-states",
"texas",
"license-plates",
"vehicle-registration"
] |
Refund on deposit day after signing order for
| 0 |
https://law.stackexchange.com/questions/78621/refund-on-deposit-day-after-signing-order-for
|
CC BY-SA 4.0
|
<p>I went to the Ideal Home show yesterday and found a “Natuzzi” sofa that we loved. We paid a deposit (£1700). On getting home from the show I did some searches for reviews and discovered that the brand has two divisions and the “editions” version has many bad reviews about longevity etc. unlike the “Italia” side.</p>
<p>This has made me very worried that we were “sold to” and have bought an inferior product.</p>
<p>We are renovating our forever home and I don’t want something that won’t last. The order form T&Cs say the deposit isn’t refundable. Can someone provide some advice please?</p>
| 78,621 |
[
{
"answer_id": 78649,
"body": "<p>A consumer may be entitled to a full or substantial refund of a large "non-refundable" deposit on a purchase of goods when the order is promptly canceled.</p>\n<h2>Consumer Rights Act 2015</h2>\n<p>Under the UK Consumer Rights Act 2015 (CRA), an unfair contract term is not binding on the consumer. <a href=\"https://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted\" rel=\"nofollow noreferrer\">Schedule 2</a> of the act lists as possibly unfair terms (among others):</p>\n<blockquote>\n<p>4 A term which has the object or effect of permitting the trader to retain sums paid by the consumer where the consumer decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the trader where the trader is the party cancelling the contract.</p>\n<p>5 A term which has the object or effect of requiring that, where the consumer decides not to conclude or perform the contract, the consumer must pay the trader a disproportionately high sum in compensation or for services which have not been supplied.</p>\n<p>6 A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.</p>\n</blockquote>\n<p>Any of items 4, 5, or 6 from schedule 2 might apply to a large non-refundable deposit on a purchase of goods when the order is promptly canceled.</p>\n<p>In <a href=\"https://www.legislation.gov.uk/ukpga/2015/15/section/62/enacted\" rel=\"nofollow noreferrer\">section 62 of the act</a></p>\n<p>Subsection (1) provides that:</p>\n<blockquote>\n<p>An unfair term of a consumer contract is not binding on the consumer.</p>\n</blockquote>\n<p>Subsection (4) provides that:</p>\n<blockquote>\n<p>A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.</p>\n</blockquote>\n<p>Under subsection 10 of <a href=\"https://www.legislation.gov.uk/ukpga/2015/15/section/20/enacted\" rel=\"nofollow noreferrer\">section 20 (right to reject)</a> of the act</p>\n<blockquote>\n<p>To the extent that the consumer paid money under the contract, the consumer is entitled to receive back the same amount of money.</p>\n</blockquote>\n<p>If the trader fails to provide a refund, the consumer may complain to the Competition and Markets Authority (CMA) which has powers to investigate and enforce the CRA.</p>\n<h2>Other Sources</h2>\n<p>The official page <a href=\"https://www.gov.uk/government/publications/cancelling-goods-or-services-guide-for-consumers/cancelling-goods-or-services\" rel=\"nofollow noreferrer\">"Cancelling goods or services"</a> from the CMA states:</p>\n<blockquote>\n<p>The business may be asking for more money than it is entitled to. Just because it’s in the contract doesn’t mean it’s always legally binding. Businesses cannot rely on unfair terms. Check your consumer rights.</p>\n<p>...</p>\n<p>If you cancel the contract, the business is generally only entitled to keep or receive an amount sufficient to cover their actual losses that directly result from your cancellation (eg costs already incurred or loss of profit).</p>\n<p>Businesses must take reasonable steps to reduce their losses (eg by re-selling the goods or services).</p>\n</blockquote>\n<blockquote>\n<p>Non-refundable deposits should only be a small percentage of the total price.</p>\n</blockquote>\n<blockquote>\n<p>Cancellation charges must be a genuine estimate of the business’ direct loss.</p>\n<p>If you have concerns, firstly ask the business to explain how they calculated the amount they are keeping or charging you for cancelling the contract.</p>\n</blockquote>\n<p>According to the page <a href=\"https://www.citizensinformation.ie/en/consumer/shopping/deposits.html#l6fa1c\" rel=\"nofollow noreferrer\">"Deposits"</a> from Citizens Information:</p>\n<blockquote>\n<p>If you pay a deposit but then change your mind about paying the balance, the trader may not have to refund it. However, the amount kept must be a genuine reflection of the trader’s actual losses that result directly from your cancellation and must not be excessive.</p>\n</blockquote>\n<p>According to the page <a href=\"https://www.which.co.uk/consumer-rights/advice/can-i-claim-back-a-non-refundable-deposit-aHwOj3S21AWP\" rel=\"nofollow noreferrer\">"Can I claim back a non-refundable deposit?"</a> from the publication known as <em>Which?</em></p>\n<blockquote>\n<p>Just because something is written in a contract, it doesn’t mean it is always legally binding, as businesses ordinarily cannot rely on unfair terms.</p>\n<p>Only in certain circumstances can businesses keep your deposit or advance payments, or ask you to pay a cancellation charge.</p>\n<p>If you cancel the contract, the business is generally only entitled to keep or receive an amount sufficient to cover their actual losses that directly result from your cancellation.</p>\n<p>This could include costs already incurred or loss of profit.</p>\n<p>Typically, the business has no entitlement to keep any amount that can be saved by finding another customer, or cancelling any other suppliers they’ve employed. That would likely constitute an unfair contract term under the Consumer Rights Act.</p>\n</blockquote>\n<p>The page <a href=\"https://www.which.co.uk/consumer-rights/advice/there-s-an-unfair-term-in-my-contract-how-can-i-complain-and-get-my-money-back-aeHsV7t85zl5\" rel=\"nofollow noreferrer\">"There's an unfair term in my contract, how can I complain and get my money back?"</a>, also from <em>Which?</em>, states:</p>\n<blockquote>\n<p>Excessive cancellation fees Terms that allow the trader to take too much of your money if you back out of a contract can be unfair. If you want to end a contract, a trader can claim for administration and marketing costs and for any work they had started and loss of profit but no more.</p>\n</blockquote>\n<p>This page also describes the complainant process.</p>\n<h2>Conclusion</h2>\n<p>A so-called "non-refundable deposit", in the circumstances described in the question, may not actually be fully non-refundable. It would be well to complain to the business asking how they calculated their actual costs for the cancelled sale.</p>\n<p>If a different product or version would be acceptable, the company may be willing to transfer the deposit to a purchase of that product.</p>\n<p>Failing that, a complaint to the CMA, or local consumer's rights organization may be useful.</p>\n<p>For comparison, in most US jurisdictions, the consumer would have the right to cancel any such transaction within 3 business days, and receive a full refund.</p>\n",
"score": 1
}
] |
[
"united-kingdom",
"consumer-protection",
"deposit"
] |
Signing a contract as an agent - should the agent sign his name or the principal's name?
| 0 |
https://law.stackexchange.com/questions/88062/signing-a-contract-as-an-agent-should-the-agent-sign-his-name-or-the-principal
|
CC BY-SA 4.0
|
<p>Suppose a husband authorizes his wife to act as an agent on his behalf to enter into a contract agreement with another party: Would she sign her own name on the contract or that of her husband's (the principal)? Or both? I've read this:</p>
<blockquote>
<p>The proper way to sign as an agent is to first sign the principal's full legal name, then write the word "by," and then sign your name</p>
</blockquote>
<p>It sounds like she needs to sign both her name and her husband's name.</p>
<p>Is this the only way?</p>
<p>If the contract contains the husband's name as the party entering into the legal agreement but the wife omitted her husband's name before her signature (she only signed her own name) is the contract still valid and binding?</p>
| 88,062 |
[
{
"answer_id": 88064,
"body": "<p>The quoted way is the proper way. The principal's name would often be printed, however, followed by "by" with the agent's name signed.</p>\n",
"score": 2
},
{
"answer_id": 88094,
"body": "<blockquote>\n<p>Is this the only way?</p>\n</blockquote>\n<p>No. This type of formalities can be dispensed with as long as the substance of the terms of the contract and the parties thereto is clear.</p>\n<blockquote>\n<p>If the contract contains the husband's name as the party entering into the legal agreement but the wife omitted her husband's name before her signature (she only signed her own name) is the contract still valid and binding?</p>\n</blockquote>\n<p>Generally speaking, yes. For the exception, see my <a href=\"https://law.stackexchange.com/questions/88058/is-a-residential-lease-signed-by-ones-spouse-valid/88059?noredirect=1#comment197835_88059\">reply to your comment</a>. It is valid and binding, more so under the circumstance you have mentioned elsewhere: that the husband concedes that his wife was authorized to enter the contract on his behalf.</p>\n",
"score": 0
}
] |
[
"united-states",
"civil-law",
"new-jersey"
] |
Is a school legally responsible for ensuring a child gets home after school?
| 3 |
https://law.stackexchange.com/questions/88039/is-a-school-legally-responsible-for-ensuring-a-child-gets-home-after-school
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CC BY-SA 4.0
|
<p>Let's say Bob is a child in school who usually rides the bus home to his parent's house after school. However, one day he doesn't get on the bus, instead walking to a friend's house, where he proceeds to do things his parents don't approve of. Let's say the parents complain to the school about letting their son regularly walk off to misbehave rather then ensuring he gets on the bus as they expect. What's the schools answer?</p>
<p>Is the school liable for the child not making it home? Are they responsible for making sure the child gets on the bus and arrives home, or has their own responsibility for the child ended the moment the bell rings for the last class? Could they be sued if Bob gets run over trying to go to his friends house one day after his parents had told the school Bob was suppose to be taking the bus home?</p>
<p>Does the age of the child matter? I could see the rule being different for a 19 year old compared to a kindergartener, but if so where is the line drawn on age vs school responsibility?</p>
| 88,039 |
[
{
"answer_id": 88044,
"body": "<p>In South Africa. the duty of care in regards to children and the schools they attend only begins when the child enters the classroom for the first time.</p>\n<p>All parents are advised that, in the case of primary school children, it is not sufficient to drop young kids of at school. Parents must take them to their specific classroom.</p>\n<p>The duty to care officially ends when the school day ends. For primary school children that is 13-15 and for highschool children that is 13-45.</p>\n<p>Teachers are expected to work until 16-00, but the legal obligation for children to attend school ends when the school day ends.</p>\n<p>A lot of schools don't transport children anymore and have blanket policies of parents being responsible to take children to any extra mural events outside the school.</p>\n<p>It has just become increasingly harder to ensure children's safety, and many schools are uncomfortable with the liability it creates.</p>\n<p>The duty of care can be extended to schools who have hostels. In this case, hostel parents take up the role of parents.</p>\n",
"score": 4
},
{
"answer_id": 88093,
"body": "<p>In California, the question is largely answered by <a href=\"https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=EDC&sectionNum=44808.\" rel=\"nofollow noreferrer\">EDC §44808</a>, which says that</p>\n<blockquote>\n<p>Notwithstanding any other provision of this code, no school district,\ncity or county board of education, county superintendent of schools,\nor any officer or employee of such district or board shall be\nresponsible or in any way liable for the conduct or safety of any\npupil of the public schools at any time when such pupil is not on\nschool property, unless such district, board, or person has undertaken\nto provide transportation for such pupil to and from the school\npremises, has undertaken a school-sponsored activity off the premises\nof such school, has otherwise specifically assumed such responsibility\nor liability or has failed to exercise reasonable care under the\ncircumstances.</p>\n<p>In the event of such a specific undertaking, the district, board, or\nperson shall be liable or responsible for the conduct or safety of any\npupil only while such pupil is or should be under the immediate and\ndirect supervision of an employee of such district or board.</p>\n</blockquote>\n<p>There is an exception created by the courts. In <a href=\"https://law.justia.com/cases/california/supreme-court/3d/22/508.html\" rel=\"nofollow noreferrer\">Hoyem v. Manhattan Beach City Sch. Dist.</a>, the court decided that when "school authorities' negligent supervision of students on school premises, a pupil leaves the school grounds during school hours and is subsequently injured by a motorist", the school is liable. The negligence arises from allowing the child to leave without permission. <a href=\"https://caselaw.findlaw.com/ca-court-of-appeal/1445768.html\" rel=\"nofollow noreferrer\">Guerrero v. South Bay Union School District</a> rebuffed a plaintiff attempt to assign liability when a child left <em>with</em> permission, and was injured. Plaintiff had argues that the school "failed to properly supervise the student in allowing him to leave", but California law does not allow schools to perpetually incarcerate students in order to avoid liability.</p>\n<p>That said, in your scenario, the district has undertaken to transport the student to some drop-off site. So the question then is what duty the school districts has assumed to the student. In my non-California district, they <em>may</em> shoulder the burden of transporting a student from school to a designated drop-off point, and in the case of pre-school and kindergarten students the child can only be released to a designated adult, or else with a designated older sibling. In such circumstances, a school district can be argued to have assumed a responsibility to transport the child from school to a drop-off point, and were negligent in allowing the child to wander free-range. That would be a fact-intensive inquiry, since making a bus available does not per se create a duty to force the child onto the bus.</p>\n",
"score": 3
},
{
"answer_id": 88053,
"body": "<h2>Possibly</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>It depends on the circumstances.</p>\n<p>A school's duty of care arises from common law and is non-delegable. The NSW Education Department's website discusses it <a href=\"https://education.nsw.gov.au/about-us/rights-and-accountability/legal-issues-bulletins/serious-incidents-staff-liability-and-rights\" rel=\"nofollow noreferrer\">here</a>.</p>\n<blockquote>\n<p>The department has a responsibility under common law to ensure that reasonable steps are taken to protect students from not insignificant risks that are reasonably foreseeable. This duty extends to taking reasonable care to prevent students from injuring themselves, injuring others or damaging property.</p>\n</blockquote>\n<p>Because the school is only required to take "reasonable steps" against "not insignificant risks that are reasonably foreseeable", circumstances will dictate if they have a duty of care, if the risk was insignificant or not, and if it was reasonably foreseeable.</p>\n<p>Factors such as what the school has been told by the parent, whether it is an infants, primary or high school, whether this is an isolated incident or a pattern of behaviour, and the age of the child will all be relevant.</p>\n",
"score": 0
}
] |
[
"united-states",
"minor",
"children",
"school"
] |
Do principles of common law apply everywhere?
| 0 |
https://law.stackexchange.com/questions/88079/do-principles-of-common-law-apply-everywhere
|
CC BY-SA 4.0
|
<p>For example presumed innocent until proven guilty is a principle of common law. Does it apply in every country which has common law?</p>
| 88,079 |
[
{
"answer_id": 88087,
"body": "<h2><a href=\"https://en.wikipedia.org/wiki/Presumption_of_innocence\" rel=\"nofollow noreferrer\">No, but...</a></h2>\n<p>Common law does not apply in countries that follow the legal school of <strong>Code Civil</strong>, aka <em><a href=\"https://en.wikipedia.org/wiki/Civil_law_(legal_system)\" rel=\"nofollow noreferrer\">civil law legal system</a></em>, such as Germany or France. Some basic principles are common between them and common law: While there's generally no right to a jury, the innocence part actually stems in both cases from <strong>ROMAN</strong> law: <em>in dubio pro reo</em> - in the case of doubt, (you have to decide) for the accused. The similar <em>Ei incumbit probatio qui dicit, non qui negat</em> - Proof lies on him who asserts, not on him who denies - is the source: It was butchered into "innocent until proven guilty", but the sentiment is the same.</p>\n<p>Other countries that have no relation to common law are based on <strong>Sharia</strong> and <strong>Fiqh</strong>. There is absolutely no relation to Roman law either. However, there is a presumption of innocence, or as one of the largest Scholars of Islamic law Caliph Ali ibn Abi Talib said in the mid-600s: "Avert the prescribed punishment by rejecting doubtful evidence." However, what is considered <em>doubtful</em> is quite different.</p>\n<p>On the other hand, <a href=\"https://en.wikipedia.org/wiki/Presumption_of_guilt\" rel=\"nofollow noreferrer\">presumption of guilt</a> was the foundational principle in other legal systems!</p>\n",
"score": 3
},
{
"answer_id": 88086,
"body": "<p>The principle of "presumed innocent until proven guilty" is a fundamental principle of common law and is widely recognized in countries that have a common law legal system, such as the United Kingdom, the United States, and Canada. However, the application and interpretation of this principle may vary between different jurisdictions. It is not universal across all countries that have common law, some may have variation or different legal system which result in different principle.</p>\n",
"score": 1
}
] |
[
"common-law"
] |
Diversity of Citizenship in Federal Court Jurisdiction?
| 1 |
https://law.stackexchange.com/questions/88077/diversity-of-citizenship-in-federal-court-jurisdiction
|
CC BY-SA 4.0
|
<p>According to <a href="https://law.stackexchange.com/q/87382/36096">this thread</a>, one of the three criteria in filing suit to compel arbitration in federal court is <strong>diversity of citizenship</strong>.</p>
<p>Suppose Party A enters into a business contract with Party B. Party B sells the business to Party C in such a way that Party C inherits any previous contractual agreements signed by Party B.</p>
<p>Party A and Party C now dispute the interpretation of the contract signed between Party A and Party B. Party A and Party C live in one state. Party B lives in another state.</p>
<p>While Party B is no longer directly liable for the contract, he is able to provide testimony (if subpoenaed) regarding the interpretation of the contract that would be helpful to Party A.</p>
<p>Does any of this constitute <strong>diversity of citizenship</strong> in regards to federal jurisdiction? Or once Party B sells the business the fact that he signed the agreement with Party A and/or can testify as to the intent of the lease is meaningless?</p>
| 88,077 |
[
{
"answer_id": 88085,
"body": "<p>Diversity of citizenship concerns parties to an action. In the given circumstances, Party B is a witness, not a party. That is, whether A sues C or vice versa, neither would name B as a defendant.</p>\n<p>The determination of diversity jurisdiction occurs in the initial stages of the suit. Because A and C are citizens of the same state, there is no diversity of citizenship. Similarly, if Bob and Alice sign a contract when they live in different states, but then one moves to the other's state, and then a controversy arises under the contract, there is no diversity of citizenship.</p>\n<p>For reference, <a href=\"https://www.law.cornell.edu/uscode/text/28/1332\" rel=\"nofollow noreferrer\">28 USC 1332(a)</a>:</p>\n<blockquote>\n<p>(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—</p>\n<p>(1) citizens of different States;</p>\n<p>(2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State;</p>\n<p>(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and</p>\n<p>(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.</p>\n</blockquote>\n",
"score": 3
}
] |
[
"united-states",
"contract-law",
"federal-courts",
"arbitration"
] |
International student - registering a marriage in the UK with a foreign citizen
| 1 |
https://law.stackexchange.com/questions/88070/international-student-registering-a-marriage-in-the-uk-with-a-foreign-citizen
|
CC BY-SA 4.0
|
<p>I am an international graduate student in the UK on a Tier 4 student visa. My partner is a German citizen and currently lives in Germany. We are planning to get married. Are we allowed to register our marriage in the UK and if yes how? Most guides assume that I am British or that my partner is British and are written accordingly but this is not the case.</p>
<p>Specifcally, according to <a href="https://www.gov.uk/marriages-civil-partnerships/give-notice" rel="nofollow noreferrer">this link</a>, we both to "give notice" of our marriage. Can my partner do this while visiting the UK as a tourist? Can I do this while on a student visa?</p>
| 88,070 |
[
{
"answer_id": 88083,
"body": "<p>To get married in the UK, since Brexit, all citizens that aren't living in the UK, except for settled EU and Irish citizens, must apply for a <a href=\"https://www.gov.uk/marriage-visa\" rel=\"nofollow noreferrer\">Marriage Visitor Visa</a>, even to give notice</p>\n<blockquote>\n<p><strong>Non-visa nationals who have not applied for a Marriage/Civil Partnership visit visa to come to the UK to marry or enter into a civil partnership</strong><br />\nSee: paragraph V 1.1(b) and V 1.3(a) of Appendix V: Visitor.</p>\n</blockquote>\n<blockquote>\n<p>Non-visa nationals who are seeking entry to visit the UK\nto marry or enter into a civil partnership, or to give notice of an\nintention to marry or form a civil partnership, who do not hold a\nMarriage/Civil Partnership visit visa must be refused entry.</p>\n</blockquote>\n<p><a href=\"https://www.gov.uk/government/publications/visit-guidance\" rel=\"nofollow noreferrer\">Page 62 of the case worker guidance for visit visa</a></p>\n<p>This only applies to your partner, and not to you, as you aren't the holder of a visitor visa, you don't need further special permission to marry on a Tier 4</p>\n",
"score": 2
},
{
"answer_id": 88084,
"body": "<p>If you get married outside the UK it is not possible to "register" that marriage in the UK: the facility simply does not exist.</p>\n<p><a href=\"https://www.wandsworth.gov.uk/registration-services/marriages-and-civil-partnerships/getting-married-abroad/#:%7E:text=A%20marriage%20abroad%20will%20be,the%20marriage%20in%20England%20afterwards.\" rel=\"nofollow noreferrer\">This page</a> from Wandsworth council says:</p>\n<blockquote>\n<p>A marriage abroad will be legally recognised in the UK providing it was contracted according to the law of the country in which it took place. There is no requirement, <strong>or facility</strong>, to register the marriage in England afterwards. We therefore suggest you consider obtaining extra marriage certificates, and translations if necessary, whilst abroad.</p>\n</blockquote>\n<p>(my emphasis)</p>\n",
"score": 1
}
] |
[
"united-kingdom",
"marriage",
"visa"
] |
Are police allowed to be ignorant of the law?
| 23 |
https://law.stackexchange.com/questions/87982/are-police-allowed-to-be-ignorant-of-the-law
|
CC BY-SA 4.0
|
<p>As I understand it, the limited liability that police enjoy requires that people bringing civil cases against police must prove that the police officer should have had a reasonable knowledge of the civil rights that they accuse him of breaking, for the civil case to be successful.</p>
<p>If we excuse the rhetorical gymnastics of not expecting law enforcement to be knowledgeable of the law, how does this excuse of ignorance fit into the adage that "ignorance of the law is no excuse for breaking it"?</p>
<p>If a police officer is allowed to be ignorant of laws in defense of a civil claim, how can it then be said that another law adage, "everyone is equal under the law," is true?</p>
| 87,982 |
[
{
"answer_id": 87994,
"body": "<blockquote>\n<p>As I understand, the limited liability that police enjoy, requires\nthat people bringing civil cases against police must prove that the\npolice person should have had a reasonable knowledge of the civil\nrights that you accuse him of breaking, for the civil case to be\nsuccessful.</p>\n</blockquote>\n<p>This isn't quite right.</p>\n<p>The test you are referencing is the one for qualified immunity from civil liability under 42 U.S.C. § 1983, which imposes liability on government officials only for violating a "well-established" constitutional right.</p>\n<p>A rule of law is "well-established" when there is controlling case law in that jurisdiction when a factually similar binding precedent exists in that jurisdiction to show that the alleged conduct is unconstitutional.</p>\n<p>This test is employing the legal fiction that police officers are familiar with all of the binding precedents in the jurisdiction regarding what constitutes a violation of a constitutional right, which is held against officers. Of course, in reality, almost no police officers have that exhaustive a level of understanding of the law.</p>\n<p>What the test does, however, is to prevent police officers from being held civilly liable for money damages when they take action which, in fact, violates a constitutional right, but which no case law in a factually similar case that was binding precedent established before the incident took place. Thus, police officers are relieved of liability for incidents that they would have to predict that a future court would find violated a constitutional right. This is sometimes phrased as being justified because a reasonable police officer could not have foreseen a new rule of constitutional law or a novel application of an existing rule of constitutional law to a new situation.</p>\n<p>One of the reasons that the qualified immunity rule is controversial, however, is that courts have the discretion to decide a case on qualified immunity grounds without determining if the underlying action indeed did violate a constitutional right, and this prevents constitutional law from evolving normally over time to applications in new factually novel situations.</p>\n<p>The key point, however, is that this requirement that a constitutional right be well-established to be enforceable in a civil action is an "objective" test in that it is decided without any reference to what the particular individual being sued actually knew about the law in the particular circumstances presented.</p>\n<p>A police officer who acts without actually knowing the law does so at his or her peril.</p>\n",
"score": 31
},
{
"answer_id": 87984,
"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>The adage "ignorance of the law is no excuse" is simply a reflection that the <em>mens rea</em> (mental element) of most crimes does not require you to know that what you are doing is a crime nor that you intend to be violating your jurisdiction's criminal code.</p>\n<p>For a crime based on intent, for example, it is enough that you intend to do the prohibited thing, or that you intend the prohibited effect.</p>\n<p>This is true no matter whether the person committing the crime is a police officer or not a police officer. In this sense, there is equality under the law.</p>\n<p>As for the discrepancy in degree of knowledge needed for crimes and the degree of established certainty for civil liability under a <a href=\"https://www.law.cornell.edu/uscode/text/42/1983\" rel=\"noreferrer\">section 1983</a> claim (or <a href=\"https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Agents\" rel=\"noreferrer\"><em>Bivens</em> claim</a>), the distinction is because these are <em>different</em> questions: one is about <em>mens rea</em>, one is about certainty of the law. A more apt comparison would be between the qualified immunity standard and the <a href=\"https://www.law.cornell.edu/wex/void_for_vagueness\" rel=\"noreferrer\"><em>void for vagueness</em></a> doctrine (whereby no one is punishable if the statute does not define with sufficient clarity what is prohibited).<sup>1</sup></p>\n<p>The doctrine of qualified immunity shields a state official from civil liability unless either:</p>\n<ol>\n<li>the constitutional right that was violated has been clearly established (<em>Pearson v. Callahan</em>, <a href=\"https://supreme.justia.com/cases/federal/us/555/223/\" rel=\"noreferrer\">555 U.S. 223</a> (2009)), or</li>\n<li>the violation is so clear that any officer should have known (see e.g. <em>Taylor v. Rojas</em>, <a href=\"https://www.supremecourt.gov/opinions/20pdf/19-1261_bq7c.pdf\" rel=\"noreferrer\">592 U.S. ___</a> (2020)).</li>\n</ol>\n<p>Qualified immunity does not result in courts saying that there was no constitutional violation (although they might not get to that question), nor does an individual officer's ignorance affect the analysis (as explained further in <a href=\"https://law.stackexchange.com/a/87994/46948\">ohwilleke's answer</a>).</p>\n<p>There are strong critiques of the doctrine of qualified immunity,<sup>2</sup> but the discrepancy with criminal <em>mens rea</em> is not one of them. These are just two wholly different questions.</p>\n<hr />\n<p><sup>1. This link is discussed by Donald L. Doernberg in "<a href=\"https://www.baylor.edu/law/review/doc.php/396694.pdf\" rel=\"noreferrer\">Betraying the Constitution</a>" (2022). See also <em>United States v. Lanier</em>, <a href=\"https://supreme.justia.com/cases/federal/us/520/259/\" rel=\"noreferrer\">520 U.S. 259</a> (1997): "<strong>the qualified immunity test is simply the adaptation of the fair warning standard to give officials (and, ultimately, governments) the same protection from civil liability and its consequences that individuals have traditionally possessed in the face of vague criminal statutes</strong>."</sup></p>\n<p><sup>2. See e.g. Justice Thomas's statement respecting the denial of a petition for writ of certiori in <em>Hoggard v. Rhodes</em>, <a href=\"https://www.supremecourt.gov/orders/courtorders/070221zor_4gc5.pdf#page=30\" rel=\"noreferrer\">594 U.S. ___</a> (2020): "As I have noted before, our qualified immunity jurisprudence stands on shaky ground. ... this test cannot be located in §1983’s text and may have little basis in history."</sup></p>\n",
"score": 19
},
{
"answer_id": 88000,
"body": "<blockquote>\n<p>As I understand, the limited liability that police enjoy, requires that people bringing civil cases against police must prove that the police person should have had a reasonable knowledge of the civil rights that you accuse him of breaking, for the civil case to be successful.</p>\n</blockquote>\n<p>Right, <strong>should</strong> have known.</p>\n<blockquote>\n<p>If we excuse the rhetorical gymnastics of not expecting law enforcement to be knowledgeable of the law. How does this excuse of ignorance feature into the adage of ignorance of the law is no excuse for breaking it?</p>\n</blockquote>\n<p>It's quite the opposite of what you say. The test is not whether they <em>did</em> know that what they were doing was against the law but whether they <em>should</em> have known that it was. This is the opposite of making ignorance an excuse because in effect, you are treated as if you did in fact know <em>everything</em> that you should have known.</p>\n<blockquote>\n<p>If a police person is allowed to be ignorant of laws in defense of a civil claim how can it then be said that another law adage, everyone is equal under the law, to be true?</p>\n</blockquote>\n<p>Because it is irrelevant whether they did or did not know the laws. All that matters is whether they <em>should have</em> or <em>could have</em> known. A version of this same rule applies in all criminal cases -- an available defense is to show that you could not have known that what you did was a crime.</p>\n<p>Again, the issue is not what you did or did not know. You cannot use as a defense that you did not know you were violating the law. Ignorance of the law is not an excuse. The defense here is that there is no way that you could have known that what you did was illegal, even if you knew every law and every court case.</p>\n",
"score": 9
}
] |
[
"united-states",
"police",
"qualified-immunity"
] |
Can a Tenant Dispute the Validitiy of a Lease Signed by the Landlord's Spouse?
| 1 |
https://law.stackexchange.com/questions/88076/can-a-tenant-dispute-the-validitiy-of-a-lease-signed-by-the-landlords-spouse
|
CC BY-SA 4.0
|
<p>Suppose Rachel & Jared ("Tenants") enter into a lease agreement with Robert and Robert's wife, Elizabeth, signs the lease:</p>
<blockquote>
<p>This lease is made on January 1, 2023 between Rachel & Jared Smith
("Tenants") and Robert Gates ("Landlord").</p>
</blockquote>
<p>Elizabeth Gates signs her own name on the lease. Nowhere does the lease state that she is acting as an agent for her husband. The lease also explicitly states that the lease is between said Tenants and Robert Gates.</p>
<p>Rachel & Jared dispute the validity of the contract because:</p>
<ol>
<li>the lease states that Robert is the landlord and it was signed by Elizabeth</li>
<li>Jared says he was not aware that Elizabeth signed the lease</li>
</ol>
<p>Robert claims he appointed Elizabeth to act as his agent. Can Rachel or Jared dispute that? Suppose both Rachel and Jared signed the lease but only Rachel was present when Elizabeth signed her name on the lease. Can Jared later argue that Elizabeth was not acting as an agent for Robert and that he never intended to enter into a lease agreement with Elizabeth (as her name was not on the lease when he signed it & only Rachel saw her signing it)?</p>
<p>Can Elizabeth or Roberts enforce this lease against the tenants?</p>
<ul>
<li><p>Would it matter if Elizabeth name is on the title of the house or not? If Elizabeth name is on the title she may be able to enter into a contract agreement in her own right without acting as an agent for her husband. On the other hand, the lease may still be void because it contains conflicting information regarding who is actually entering the agreement. Additionally. Jared may argue that he only intended to go into contract with Robert since he thought he was actually the owner.</p>
</li>
<li><p>Does the husband need to prove that he authorized her to act as an agent on his behalf?</p>
</li>
<li><p>Is it better if Elizabeth signed her own name or that of her husband's name?</p>
</li>
</ul>
<p>What relevant doctrine & case law can be applied to this case in NJ?</p>
| 88,076 |
[
{
"answer_id": 88080,
"body": "<h2>Not successfully</h2>\n<p>It is not required that a person knows they are dealing with an agent of the principal rather than the principal directly - an agent speaks with the principal’s voice.</p>\n<p>Robert has consented to allow Elizabeth to act as his agent. It actually doesn’t matter if he consented before she acted or afterwards, he has agreed to be bound by Elizabeth’s actions.</p>\n<p>Rachel & Jared have agreed to enter the lease and indicated as much by signing the document. It doesn’t matter who signed it for the landlord or even if it was signed - leases have to be in writing but there is no common law rule that they need to be signed.</p>\n",
"score": 3
}
] |
[
"united-states",
"contract-law",
"residential-lease",
"new-jersey"
] |
Surrogate Court Petition NY - What County
| 1 |
https://law.stackexchange.com/questions/64291/surrogate-court-petition-ny-what-county
|
CC BY-SA 4.0
|
<p>FOR NEW YORK STATE
If you need to submit a petition to the surrogate court for executor purposes, what County?
I was told the county that the person passed away in and issued the death certificate, is the county you submit papers to for the surrogate court?</p>
| 64,291 |
[
{
"answer_id": 64307,
"body": "<p>Usually, it is the county where the decedent was domiciled at death. Domicile is where someone resided with an intent to remain at the location indefinitely. For someone who just moved into a new house or apartment, a change in domicile could arise in as little as one day, there isn't a fixed number of days of residency requirement. It doesn't have a bureaucratic requirement of registration to vote or with the DMV or anything like that.</p>\n<p>A hospital or workplace isn't itself a domicile in most cases. A nursing home is only a domicile is the person who is staying there has no intent to return to another residence. Usually, if the person in a nursing home or their spouse owns a home or has a residential apartment lease, despite being in a nursing home, the home or apartment, rather than the nursing home, will be their domicile for surrogate's court venue purposes.</p>\n<p>There are exceptions in cases where the decedent owned property located in the state, such as real property titled in the name of the decedent which is not in joint tenancy, that has to be administered through the probate process, but was not domiciled in the state. Then, it is any county in which New York State property subject to the probate process in New York State is located.</p>\n<p>Generally speaking, the actual place of death (often a hospital or perhaps a place someone was traveling at the time of death) isn't relevant to Surrogate's Court venue. Place of death is generally a basis for venue only in the absence of any other known domicile of the decedent.</p>\n<p>The death certificate will often contain the county in which the death certificate informant stated that decedent was domiciled at death, but that determination while providing evidence sufficient to establish domicile, isn't binding on the Surrogate's Court if that venue is disputed with other evidence.</p>\n<p>Sometimes, it is also possible to waive objections to an allegedly improper venues, by express consent, or due to a procedural default, usually for the convenience of the lawyers involved. There is also a special 9-11 provision.</p>\n<p>The primary statute (which doesn't cover all of the exception cases and instead just states the general rule), is the <a href=\"https://codes.findlaw.com/ny/surrogates-court-procedure-act/scp-sect-205.html\" rel=\"nofollow noreferrer\">New York Surrogate's Court Procedure Act § 205. (Domiciliaries; jurisdiction and venue)</a>, which reads as follows:</p>\n<blockquote>\n<p>1. The surrogate's court of any county has jurisdiction over the estate of a decedent who was a domiciliary of the state at the time of\nhis death, disappearance or internment. The proper venue for\nproceedings relating to such estates is the county of the decedent's\ndomicile at the time of his death, disappearance or internment.</p>\n<p>2. A surrogate shall transfer any proceeding to the surrogate's court of the proper county either on his own motion or on the motion of any\nparty.</p>\n<p>3. Notwithstanding the foregoing provisions of this section, the surrogate's court of any county has jurisdiction over, and is a proper\nvenue for, the proceedings of any decedent who was a domiciliary of\nthe state at the time of his or her death and who died as a result of\nwounds or injury incurred as a result of the terrorist attacks on\nSeptember eleventh, two thousand one.</p>\n</blockquote>\n",
"score": 1
}
] |
[
"new-york-state",
"rules-of-court",
"court"
] |
How is Biden’s lawyers turning the documents over not a material breach of client-attorney confidentiality and a violation of the 5th, 6th Amendments?
| 0 |
https://law.stackexchange.com/questions/88063/how-is-biden-s-lawyers-turning-the-documents-over-not-a-material-breach-of-clien
|
CC BY-SA 4.0
|
<p>If a client confessed to plans, in-going activity or intent to commit a crime, an attorney may disengage.</p>
<p>I would argue imposing a duty on an attorney to disclose their reasons if it requires court approval would be a violation of prohibition against self-incrimination.</p>
<p>But I cannot wrap my head around how is Biden’s Attorney’s turning over the 10 classified documents to the DoJ not a violation of attorney-client confidentiality?</p>
<p>Maybe one can argue that the in-going off-site storage of them is an implied plan(?), but if an attorney doesn’t have a duty to give all doubt to their client to formulate all potentially effective defenses that the prosecution would have to overcome, then who does?</p>
<p>Following this logic, The attorneys should have simply presumed error. Which seems a reasonable presumption since the documents weren’t “found” missing out of their binders or folders like in Trumps case. They don’t seem to fit a consistent narrative of wrong doing since it includes both ally information (UK) and adversary stuff (Iran etc.).</p>
<p>And even if it did, why would he not return it or hand them over all together?</p>
<p>The attorneys (ridiculous to even have to discuss it in this angel) had no probable cause of wrong doing.</p>
<p>They should have simply returned it to those departments that were to keep them safe instead of effectively reporting their client.</p>
<p>Question:</p>
<p>Is there a case law exception carved out of the Fifth Amendment’s prohibition of self-incrimination for criminal conduct related to documents classified as confidential or affecting national security?</p>
<p>If so, how is political persecution can be safe guarded on false treason and similar charges? (You just need to have your own attorneys “turnover” some documents in your behalf, and no one’s ever going to believe you — not assuming that is the case here, rather that Biden recklessly handled those documents)</p>
<p>UPDATE: The initial reports were wrong. POTUS’ attorneys did NOT give the documents to the DoJ, but appropriately gave them to the National Archived; Biden made a statement to this effect which, unless in the hypothetical, made the question moot. The attorneys hence made no implied statement to implicate POTUS wrong doing by choosing to return the docs to DoJ as though a form of reporting crime, but returned the documents to the Archives implicating no wrong doing on their client’s part.</p>
<p><a href="https://twitter.com/ABCPolitics/status/1612957313882546177?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1612957313882546177%7Ctwgr%5Eed9a777d21a0ba68437b041d1c9cd33201072ceb%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.businessinsider.com%2Fbiden-surprised-by-discovery-of-classified-documents-in-old-office-2023-1" rel="nofollow noreferrer">Statement</a></p>
| 88,063 |
[
{
"answer_id": 88066,
"body": "<p>Documents are not protected under the 5th Amendment, so a person can be compelled to produce documents that may incriminate them. The person cannot be forced to testify against themselves, however – they can invoke their right to not testify against themselves. The <a href=\"https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information/\" rel=\"nofollow noreferrer\">attorney-client privilege</a> canon has some exceptions, for example</p>\n<p>(4) to secure legal advice about the lawyer's compliance with these Rules</p>\n<p>or</p>\n<blockquote>\n<p>(2) to prevent the client from committing a crime or fraud that is\nreasonably certain to result in substantial injury to the financial\ninterests or property of another and in furtherance of which the\nclient has used or is using the lawyer's services</p>\n</blockquote>\n<p>(bearing in mind that POTUS is required by law to turn all documents over to the national Archives, so turning the records over is "compliance with the law" and a think that an attorney would do for their client, though this event is quite belated).</p>\n<p>No subpoena was issued and no testimony was given, so the Fifth Amendment is irrelevant.</p>\n",
"score": 3
}
] |
[
"us-constitution",
"fifth-amendment",
"us-president",
"sixth-amendment"
] |
Is a residential lease signed by one's spouse valid?
| 1 |
https://law.stackexchange.com/questions/88058/is-a-residential-lease-signed-by-ones-spouse-valid
|
CC BY-SA 4.0
|
<p>Suppose a landlord and tenant enter into a lease agreement where the landlord is named in the lease agreement but the landlord's spouse signs the lease. Is such a lease enforceable in court?</p>
<p>For example, suppose the lease contains the following provision:</p>
<blockquote>
<p>This lease is made on January 1, 2023 between Rachel & Jared Smith
("Tenants") and Robert Gates ("Landlord").</p>
</blockquote>
<p>But instead of Robert Gate's signature appearing at the bottom of the lease, his wife's signature appears: Elizabeth Gates.</p>
<p>Is such a lease enforceable in NJ?</p>
<ul>
<li><p>Would it matter whether the landlord's spouse is on the title of the house or not? If the spouse is on the title she may be able to enter into a contract agreement in her own right. On the other hand, the lease may still be void because it contains conflicting information as regards to who is actually entering the agreement.</p>
</li>
<li><p>Would it matter if the husband/wife could prove that he authorized her to sign on his behalf? Would signing her own name instead of his name be problematic?</p>
</li>
<li><p>What if the other party does not dispute that she signed on her husband's behalf?</p>
</li>
</ul>
<p>What relevant doctrine & case law can be applied to analyze this case in NJ?</p>
| 88,058 |
[
{
"answer_id": 88071,
"body": "<h1>It could go either way</h1>\n<p>Let's dispose of the two trivial cases:</p>\n<ol>\n<li>if all parties agree there is a valid lease, then there is a valid lease;</li>\n<li>if all parties agree there is no valid lease, then there is no valid lease.</li>\n</ol>\n<p>Now we get into the weeds, and it all depends on the various parties' circumstances and positions. There are four people involved: two possible tenants, Rachel and Jared, and two possible landlords, Robert and Elizabeth, and each could be seeking to have the contract affirmed or set aside and mounting various arguments to that effect. To keep this from getting out of hand, I'll confine this answer to just the questions you asked - there is enough material in the scenario for a term paper on contract, property and agency law.</p>\n<blockquote>\n<p>Would it matter whether the landlord's spouse is on the title of the house or not? If the spouse is on the title she may be able to enter into a contract agreement in her own right. On the other hand, the lease may still be void because it contains conflicting information as regards to who is actually entering the agreement.</p>\n</blockquote>\n<p>Absolutely. It also matters if you mean on the title "as well" or on the title "instead" of Robert.</p>\n<p>If Elizabeth is the sole owner, she acts on her own behalf, and the lease is valid. The fact that it has Robert's name printed on it would probably be treated as an irrelevant clerical error.</p>\n<p>If Robert and Elizabeth are joint owners, then any contract must, of necessity, have both of them as one of the parties. Elizabeth can act on her own behalf, but she must be acting as an agent of Robert for the contract to be binding. Again, the fact that only one of them is named in the contract would probably be treated as an irrelevant clerical error.</p>\n<p>Similarly, if Robert is the sole owner of the property, then Elizabeth must be acting as his agent to enter the lease.</p>\n<blockquote>\n<p>Would it matter if the husband/wife could prove that he authorized her to sign on his behalf? Would signing her own name instead of his name be problematic?</p>\n</blockquote>\n<p>Whether Elizabeth is or is not Robert's agent is a matter of fact - she either is and the contract is binding, or she is not and the contract is void (q.v. apparent authority below) - see <a href=\"https://www.caselaw.nsw.gov.au/decision/18266c0ce811d0a299a6dcbb\" rel=\"nofollow noreferrer\">Jarjo v Patterson</a> [2022] NSWSC 1049. So, if Robert authorised Elizabeth then she is his agent and the contract is valid whether she signs it Elizabeth, Robert, or Micky Mouse.</p>\n<blockquote>\n<p>What if the other party does not dispute that she signed on her husband's behalf?</p>\n</blockquote>\n<p>It doesn't matter whether Rachel and Jared know the true situation or not with respect to the validity of the contract. If there is deceit or negligent misstatement by Elizabeth, this may give Rachel and Jared grounds to sue Elizabeth for damages caused by this, but the contract would still be void.</p>\n<p>However, if it was reasonable in the circumstances for Rachel and Jared to believe that Elizabeth was Robert's agent, then they might be able to claim that she was acting with <a href=\"https://en.wikipedia.org/wiki/Apparent_authority\" rel=\"nofollow noreferrer\">apparent authority</a> even in the absence of actual authority. From the question, we simply don't have enough information on the circumstances to decide if this argument has legs.</p>\n",
"score": 2
},
{
"answer_id": 88059,
"body": "<blockquote>\n<p>Is a residential lease signed by one's spouse valid?</p>\n</blockquote>\n<p>Yes, except maybe where it is proved (by the landlord) that the spouse was not authorized to enter that lease on behalf of the landlord.</p>\n<blockquote>\n<p>Would signing her own name instead of his name be problematic?</p>\n</blockquote>\n<p>No. As long as it evidences that parties entered a contract <em>willfully</em> and <em>knowingly</em>, it is irrelevant how they sign.</p>\n<blockquote>\n<p>What if the other party does not dispute that she signed on her husband's behalf?</p>\n</blockquote>\n<p>The only person who is allowed to bring up the discrepancy you mention is the party against whom judgment might be entered (in this case, the named landlord whose wife signed on his behalf). He would have to prove that he neither knew nor would be reasonably expected to know that his wife entered a contract on his behalf.</p>\n<p>By contrast, the tenant is precluded from bringing up this issue in court. That is because his conduct evidences that he opted to ignore a discrepancy of which he was --or should have been-- aware ever since he himself signed the lease.</p>\n",
"score": 0
}
] |
[
"united-states",
"contract-law",
"civil-law",
"residential-lease",
"new-jersey"
] |
Can a trademark be enforced if a different company was already using it?
| 0 |
https://law.stackexchange.com/questions/88065/can-a-trademark-be-enforced-if-a-different-company-was-already-using-it
|
CC BY-SA 4.0
|
<p>Lets say that I own "Iron Chimpanzee LLC" and have been selling furniture with it in Florida for years. I never got a trademark. One day, a guy in Alaska decides to open a new furniture store in Alaska with the same name, "Iron Chimpanzee LLC", and trademarks "Iron Chimpanzee" at the federal level.</p>
<p>Can he sue me the next day for infringing on his trademark?</p>
| 88,065 |
[
{
"answer_id": 88067,
"body": "<p>You would have priority in the market in which you developed the scope of your common law trademark, although the geographic and market scope would be hard to establish without registration and you would have to overcome a presumption in favor of the federal trademark holder in litigation.</p>\n",
"score": 1
}
] |
[
"united-states",
"trademark"
] |
Can a Lease with Missing Pages be used as Evidence in Court?
| 6 |
https://law.stackexchange.com/questions/88052/can-a-lease-with-missing-pages-be-used-as-evidence-in-court
|
CC BY-SA 4.0
|
<p>Suppose a 10 page lease agreement is signed by a landlord and tenant. After a number of years, some of the pages were misplaced but each of the parties signed the bottom of each of the 10 pages (not just the last page).</p>
<p>Can one party use the part of the lease that was not misplaced to hold the other party to the terms of the lease in court? This assumes that the parts of the lease that are relevant to the trial were not misplaced.</p>
| 88,052 |
[
{
"answer_id": 88056,
"body": "<blockquote>\n<p>Can a Lease with Missing Pages be used as Evidence in Court?</p>\n</blockquote>\n<p>Yes. Being <em>relevant</em> to the claim(s) and <em>signed</em> by the parties gives the filed pages evidentiary weight. If the filed evidence is disputed, its filing shifts to the adversary the burden of proving that the missing portions of the contract outweigh the materiality of that evidence or that the filed pages are unreliable (i.e., fake).</p>\n<p>Likewise, during discovery, the party who only preserved some of the pages could (1) request the adversary to provide a copy of the signed contract, and/or (2) submit a <em>request for admissions</em> in which the adversary is asked to admit or disprove terms of the lease that are at issue.</p>\n",
"score": 15
}
] |
[
"united-states",
"civil-law",
"evidence",
"residential-lease",
"new-jersey"
] |
SAR before claim: tactical and legal considerations
| 0 |
https://law.stackexchange.com/questions/88028/sar-before-claim-tactical-and-legal-considerations
|
CC BY-SA 4.0
|
<p>A claimant C intends to sue a business B, which is also a data controller. Independently of the prospect of any civil action, C is entitled to make a SAR (Subject Access Request) to B under the Data Protection Act 2018, and may be tempted to do so in order to have all available information at his disposal for maximum perspective and advantage in proceedings.</p>
<p>Is there any way in which a SAR to a data controller with whom one has had no dealings for some years could disadvantage C in subsequent proceedings? For example, could either B or a judge draw any inference from C’s decision to submit a SAR?</p>
| 88,028 |
[
{
"answer_id": 88040,
"body": "<p>I can't comment on tactical considerations, but legally there is nothing preventing submitting a Subject Access Request to support litigation.</p>\n<p>The case law has developed (and been somewhat inconsistent) over the years, culminating with the "no other purpose" rule being clarified by the Court of Appeal in <a href=\"http://www.bailii.org/ew/cases/EWCA/Civ/2017/74.html\" rel=\"nofollow noreferrer\">Dawson-Damer v. Taylor Wessing LLP, [2017] EWCA Civ 74</a> by saying that...</p>\n<blockquote>\n<p>...<strong>a SAR would not be invalid if it had been made with the collateral purpose of assisting with litigation.</strong> Delivering the leading judgment, Arden LJ noted (at paragraph 107) that the EC Data Protection Directive “makes it clear that the rights given by the Directive are to protect fundamental rights conferred by EU law. We have been shown nothing in the DPA or the Directive which limits the purpose for which a data subject may request his data, or provides data controllers with the option of not providing data based solely on the requester’s purpose”.</p>\n<p><a href=\"https://www.stewartslaw.com/news/litigators-guide-galaxy-subject-access-requests/\" rel=\"nofollow noreferrer\"><em>Source</em></a> <em>and further reading</em></p>\n</blockquote>\n",
"score": 4
}
] |
[
"gdpr",
"england-and-wales",
"civil-procedure",
"subject-access-request",
"pre-action-protocol"
] |
Does the concept of reasonable adjustment apply to other protected characteristics than disability status?
| 0 |
https://law.stackexchange.com/questions/88035/does-the-concept-of-reasonable-adjustment-apply-to-other-protected-characteristi
|
CC BY-SA 4.0
|
<p>In England businesses are required to make reasonable adjustments in the case of mental or physical disabilities so as to create an inclusive environment of equality. But are such adjustments required for other protected characteristics to make a place of work or business adequately inclusive like providing halal or vegan food for a single individual where there is otherwise no necessity or demand for it?</p>
| 88,035 |
[
{
"answer_id": 88038,
"body": "<h2>No.</h2>\n<p>See <a href=\"https://www.legislation.gov.uk/ukpga/2010/15/section/20?timeline=false\" rel=\"nofollow noreferrer\">section 20</a> Equality Act 2010 which imposes the duty to make adjustments only in relation to a person's disability:</p>\n<blockquote>\n<p>(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.</p>\n<p>(2)The duty comprises the following three requirements.</p>\n<p>(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts <strong>a disabled person</strong> at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.</p>\n<p>(4) The second requirement is a requirement, where a physical feature puts <strong>a disabled person</strong> at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.</p>\n<p>(5) The third requirement is a requirement, where <strong>a disabled person</strong> would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.</p>\n<p>...</p>\n</blockquote>\n<p>For completeness, <a href=\"https://www.legislation.gov.uk/ukpga/2010/15/section/6?timeline=false\" rel=\"nofollow noreferrer\">section 6</a> defines a disabled person for the purposes of the Act:</p>\n<blockquote>\n<p>(1) A person (P) has a disability if—</p>\n<ul>\n<li><p>(a) P has a physical or mental impairment, and</p>\n</li>\n<li><p>(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities</p>\n</li>\n</ul>\n<p>(2) A reference to a disabled person is a reference to a person who has a disability.</p>\n<p>...</p>\n</blockquote>\n",
"score": 4
}
] |
[
"england-and-wales",
"discrimination",
"disabilities",
"equality-act-2010"
] |
Can academic writings be a source of unwritten law?
| -1 |
https://law.stackexchange.com/questions/87981/can-academic-writings-be-a-source-of-unwritten-law
|
CC BY-SA 4.0
|
<p>This might be a weird question but can academic writings be a source of unwritten law like customary law ? And do things like customary law and something like this require a judiciary to interpret or deduce it ?</p>
| 87,981 |
[
{
"answer_id": 87991,
"body": "<p>In practice, common law courts turn to academic writing, either law review articles or legal treatises or the "Restatements of Law", on a regular, but infrequent basis. These sources are not binding sources of legal authority but can shed persuasive light on the logic behind a legal rule or the course of action that has been taken in previous similar cases.</p>\n<p>In civil law countries (i.e. those not descended from the legal system of England), there are far fewer circumstances in which court precedents are sources of law. Much of the gap in credible sources for how ambiguities in the statutory law should be interpreted in these countries comes from academic writing. In a typical civil law country, a leading law professor has more impact on how the law is interpreted than senior appellate court judges. Again, academic writings are not binding legal authority, but in the absence of alternative sources for material interpreting statutes, they are very persuasive.</p>\n",
"score": 4
},
{
"answer_id": 87993,
"body": "<p>In Shari`ah law, there are two authoritative sources of law, the Qur’an and the Ḥadith. However, sometimes things are not crystal clear, and there may be need to engage in legal reasoning beyond <em>taqlid</em> which is precedent based on “consensus” (<em>ijma`</em>). In that case, a legal scholar may be required to engage in <em>ijtihad</em>, i.e. legal reasoning. Such a writing cannot (by definition) be authoritative, but it can be persuasive, in that it might be relied on to resolve a case.</p>\n",
"score": 2
}
] |
[
"legal-concepts",
"judiciary"
] |
Is it indirect discrimination or otherwise unlawful to maintain a menu that does not include vegan options?
| 0 |
https://law.stackexchange.com/questions/88029/is-it-indirect-discrimination-or-otherwise-unlawful-to-maintain-a-menu-that-does
|
CC BY-SA 4.0
|
<p>A restaurant R has a menu of various things but does not include vegan options. As veganism is a protected philosophical belief under the Equality Act 2010 and the Grainger test, this omission affects vegans disproportionately.</p>
<p>If the restaurant was a steakhouse intended to cater specifically to meat enthusiasts or ideological carnivores, then I could imagine the non-accommodation as being a legitimate end to a proportionate aim, but otherwise, has a restaurant not committed unlawful discrimination against vegans?</p>
| 88,029 |
[
{
"answer_id": 88033,
"body": "<h2>Caveat about the "Grainger test" as applied to veganism</h2>\n<p><em><a href=\"https://en.wikipedia.org/wiki/Grainger_plc_v_Nicholson\" rel=\"nofollow noreferrer\">Grainger plc v Nicholson</a></em> is a 2010 employment discrimination case. It established a five-point test for whether a philosophical belief triggers the protection of the Equality Act 2010. <a href=\"http://www.bailii.org/uk/cases/UKEAT/2009/0219_09_0311.html\" rel=\"nofollow noreferrer\">See the judgment here, §24.</a></p>\n<p>A <a href=\"http://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKET/2020/3331129_2018.html&query=(Casamitjana)\" rel=\"nofollow noreferrer\">2020 preliminary hearing in <em>Casamitjana v The League Against Cruel Sports</em></a> found that the claimant (= plaintiff, for US readers) held a belief in ethical veganism that did meet the five-point test.</p>\n<p>I would note that Casamitjana’s beliefs are much stronger than "simple" veganism. The judgment at §17-§22 enumerates a list of Casamitjana’s behaviour, much of which goes well beyond what the average vegan undertakes, such as avoiding the use of bank notes (manufactured from animal products) or public transportation (buses kill insects).</p>\n<p>I would assume that "simple" vegan beliefs could still meet the "philosophical belief" test, but I can see obvious differences with the Casamitjana case and would not advise anyone to rely solely on it.</p>\n<h2>The restaurant case</h2>\n<p>I refer to <a href=\"https://law.stackexchange.com/a/87429/47680\">this excellent answer regarding a different hypothetical</a>. The key question is whether the restaurant’s choice of menu is <a href=\"https://www.legislation.gov.uk/ukpga/2010/15/section/19\" rel=\"nofollow noreferrer\">"a proportionate means of achieving a legitimate aim"</a>.</p>\n<p>In that case, the restaurant might argue that they chose what dishes to offer based on the cook’s ability, on a commercial strategy of selling only high-end dishes, or other similar considerations. (Note that I have not practiced law in E&W, and any real-world respondent would do well to consult a qualified sollicitor before relying on that argument.)</p>\n<p><em>As a non-legal answer, I would also argue that such an application of the Equality Act 2010 would be extremely burdening. For instance, ethical vegans could sue any restaurant offering any non-vegan options at all (regardless of whether there are vegan options on the menu, they would not want to patronize such a restaurant), or transportation company using leather seats in their vehicles; Orthodox Jews might sue any business open on Saturdays; and so on. However, I do not know how that objection could be worked into a legal argument.</em></p>\n",
"score": 4
},
{
"answer_id": 88034,
"body": "<p>Under the Equality Act 2010 in the UK, it is illegal to discriminate against someone because of their philosophical belief, including veganism, if that belief is considered a "protected characteristic." However, simply not offering vegan options on a menu would not necessarily be considered direct discrimination on the basis of philosophical belief.</p>\n<p>Indirect discrimination occurs when a provision, criterion, or practice (PCP) is applied equally to everyone but disproportionately affects a particular group of people. For example, if a restaurant only offered a limited selection of dishes, none of which were suitable for vegans, that could be considered indirect discrimination because it would disproportionately affect vegans.</p>\n<p>It would be important to prove that the restaurant does not cater for vegans on the menu, and that it put them at a substantial disadvantage, and that there are no legitimate reasons for the restaurant to not offering vegan options.</p>\n<p>It would be up to the courts to decide whether a lack of vegan options on a menu constitutes indirect discrimination on the basis of philosophical belief, but it's possible that this could be the case, especially if the restaurant could reasonably accommodate vegans by offering a sufficient selection of vegan options.</p>\n<p>However, If a restaurant, on the other hand, was catering for a diverse group and it is not commercially viable for them to cater for every dietary requirement, it would not be considered as indirect discrimination.</p>\n<p>It is worth noting that, Many independent and chain restaurants now offer vegan options to cater for a diverse group of customers and to address ethical concerns around animal welfare.</p>\n",
"score": 2
}
] |
[
"england-and-wales",
"discrimination",
"equality-act-2010"
] |
Married couple traveling abroad, what proof exists
| 4 |
https://law.stackexchange.com/questions/88027/married-couple-traveling-abroad-what-proof-exists
|
CC BY-SA 4.0
|
<p>When traveling abroad, how does a nation state know that a couple is married?</p>
<p>What laws are in place regarding hospitalization and next of kin?</p>
<p>What happens to a same-sex couple traveling to a nation that is not amicable to same-sex unions, say India?</p>
| 88,027 |
[
{
"answer_id": 88032,
"body": "<blockquote>\n<p>When traveling abroad, how does a nation state know that a couple is married?</p>\n</blockquote>\n<p>Usually by accepting the couple's verbal statement. Some countries include a remark in a married person's passport with the name of the person's spouse, which is obviously more likely to be accepted in case of doubt, but not all countries do this.</p>\n<p>The usual formal proof of a foreign marriage is a certified copy of the foreign marriage certificate with an <a href=\"https://en.wikipedia.org/wiki/Apostille_Convention\" rel=\"noreferrer\">apostille</a> or similar legalization whereby the foreign ministry of the country where the document was issued (or, in some federal contexts, of a constituent entity) attests to the legitimacy of the official who certified the copy and to the authenticity of the certification. This is a fairly burdensome process that is normally associated with proving family relationships in connection with establishing residence in a foreign country. Nobody is going to expect visitors to have such documents. For a casual or temporary purpose such as hospital visitation rights, the certified copy might be helpful even if it is not legalized.</p>\n<p>On the other hand, in a country where homosexuality is criminalized, the certificate could be used as evidence against the couple.</p>\n<blockquote>\n<p>What laws are in place regarding hospitalization and next of kin?</p>\n</blockquote>\n<p>This will be governed by national law. Human rights treaties probably have something to say about it, at least indirectly, but if your spouse is in the hospital that's not going to be of much use. Local law and the hospital's policy will control.</p>\n<blockquote>\n<p>What happens to a same-sex couple traveling to a nation that is not amicable to same-sex unions, say India?</p>\n</blockquote>\n<p>This is rather too broad, especially as it will depend on the sympathy of the people involved as well as on local law. The outcome could be anywhere from according full spousal visitation rights to the arrest of both spouses followed by conviction, imprisonment or possibly worse, deportation, and a ban on reentering the country.</p>\n",
"score": 5
}
] |
[
"international",
"treaty"
] |
What makes you the legal owner of a computer game (copy)?
| 3 |
https://law.stackexchange.com/questions/87941/what-makes-you-the-legal-owner-of-a-computer-game-copy
|
CC BY-SA 4.0
|
<p>I bought a lot of used old computer games to create a collection. Some games consist of:</p>
<ul>
<li>The physical game disc (CD or DVD)</li>
<li>(sometimes) a product key which is printed onto the manual or the disc case</li>
<li>The manual and the disc case</li>
</ul>
<p>And sometimes there is an account (for example Steam account) which registered the product key.</p>
<p>Sometimes some parts of those I mentioned are missing or the product key was already registered on Steam.
It leads to the question: Who is the legal owner of the game (copy) and allowed to play the game?</p>
<p>Here are some examples:</p>
<ol>
<li><p>I bought a game but the product key is missing. Who is the owner of the game (copy)? Me or the one who has the key? Am I allowed to use a key from the internet if I got the disc?</p>
</li>
<li><p>I have the product key but the disc is missing. Am I allowed to download the game .ISO file from the internet?</p>
</li>
<li><p>I bought the disc and the product key. But the key is already registered on Steam. Am I allowed to crack the game so I can play it?</p>
</li>
</ol>
<p>I am living in Germany but I am also interested about the laws in the US.</p>
| 87,941 |
[
{
"answer_id": 87944,
"body": "<p>Ownership is a fundamental concept in <a href=\"https://en.wikipedia.org/wiki/Property_law\" rel=\"nofollow noreferrer\">property law</a> which can be difficult to apply to software, such as computer games.</p>\n<p>A physical record of information, such as a game disc, a piece of paper with a product key on it, or a computer hard drive with software installed on it, is personal property (chattels). You own these things. However, <a href=\"https://en.wikipedia.org/wiki/Copyright_law\" rel=\"nofollow noreferrer\">copyright law</a> restricts what you can legally do with them.</p>\n<p>For example, the copyright holder generally has the exclusive right to make a copy of a program, which would generally include downloading (and saving) a game ISO. In recent decades, <a href=\"https://en.wikipedia.org/wiki/Anti-circumvention\" rel=\"nofollow noreferrer\">anti-circumvention</a> provisions have been added to national copyright laws. These generally make it illegal to use cracks and other techniques for circumventing DRM, even if you “own” a copy of the software.</p>\n<p>What is “owned” is the right to assert a claim in court (a chose in action), which is also a kind of property. Specifically, the right to use proprietary software, or software license, is generally understood as a bundle of contractual rights, often documented in an <a href=\"https://en.wikipedia.org/wiki/End-user_license_agreement\" rel=\"nofollow noreferrer\">end user license agreement</a>. (While these contractual rights are a kind of property that can be owned, “ownership” of software can also refer to the rights of the copyright holder, which the more limited rights of a licensee are derived from.)</p>\n<p>Actually determining the legal effect of a software license is complex. As it is intended to create contractual rights, the terms of the contract (license agreement) are important, but not determinative. <a href=\"https://en.wikipedia.org/wiki/Consumer_protection\" rel=\"nofollow noreferrer\">Consumer law</a> may impose standard “fair dealing” terms which could have complex effects on the rights associated with a digital product in a particular jurisdiction. Because of the low money value involved, these complex legal issues are rarely tested in court.</p>\n<p>The specific questions you pose all appear to breach copyright or anti-circumvention law. However, you may have acquired contractual rights, including implied rights associated with your purchase of chattels, or dealings with a platform operator like Steam, which limit the copyright holder’s ability to take action against you. You may also have the right to do things that fall within a <a href=\"https://en.wikipedia.org/wiki/Fair_use\" rel=\"nofollow noreferrer\">fair use</a> or <a href=\"https://en.wikipedia.org/wiki/Fair_dealing\" rel=\"nofollow noreferrer\">fair dealing</a> exception in your jurisdiction.</p>\n<p>Again, the law is often untested, especially outside of the United States, because it is rarely in the parties’ interest to litigate. However, the exceptions to anti-circumvention law are often different to, and less permissive than, the exceptions to copyright. To further research your questions in a particular jurisdiction, I would look for exceptions to copyright and anti-circumvention law which protect consumers’ rights, if any, to back up or resell copies of licensed software.</p>\n",
"score": 3
}
] |
[
"licensing",
"video-games"
] |
Exactly which individuals born in the United States are not subject to its jurisdiction?
| 7 |
https://law.stackexchange.com/questions/50954/exactly-which-individuals-born-in-the-united-states-are-not-subject-to-its-juris
|
CC BY-SA 4.0
|
<p>According to <a href="https://www.ecfr.gov/cgi-bin/text-idx?node=se8.1.101_13" rel="noreferrer">federal regulations</a>, individuals born to foreign diplomats who are on the Blue List are not subject to the jurisdiction of the United States and thus are not US citizens at birth.</p>
<p>But what would happen in the case of a child born in the US if</p>
<ol>
<li>One parent is a foreign diplomat, and the other is a US citizen?</li>
<li>One parent is a foreign diplomat, and the other is a lawful permanent resident?</li>
<li>One parent is a foreign diplomat, and the other has some non-diplomatic status such as F-1 student?</li>
</ol>
<p>(Aside: The Canadian Citizenship Act is much more explicit. A person born in Canada to a foreign diplomat parent will acquire Canadian citizenship at birth if the other parent is either a Canadian citizen or permanent resident [<a href="https://laws-lois.justice.gc.ca/eng/acts/C-29/page-1.html#s-3ss-(2)ID0EESA" rel="noreferrer">link</a>].)</p>
| 50,954 |
[
{
"answer_id": 50959,
"body": "<p>As long as they have diplomatic immunity, they don't have a residency status. If either parent didn't have diplomatic immunity, then the child is a subject to the jurisdiction and they become a citizen at birth.</p>\n\n<p>The short explanation with the reasoning can be found on the <a href=\"https://www.uscis.gov/policy-manual/volume-7-part-o-chapter-3\" rel=\"noreferrer\">uscis website</a>.</p>\n\n<p>Namely</p>\n\n<blockquote>\n <p>Children born in the United States to accredited foreign diplomatic officers do not acquire citizenship under the 14th Amendment since they are not “born . . . subject to the jurisdiction of the United States.” </p>\n</blockquote>\n\n<p>and</p>\n\n<blockquote>\n <p>If one parent was an accredited diplomat, but the other was a U.S. citizen or non-citizen U.S. national, then the child was “born . . . subject to the jurisdiction of the United States,” and is a citizen.</p>\n</blockquote>\n",
"score": 6
},
{
"answer_id": 51089,
"body": "<p>7 FAM 1100, archived <a href=\"https://web.archive.org/web/20090817055724/http://www.state.gov/documents/organization/86755.pdf\" rel=\"nofollow noreferrer\">here</a> from an old version of the Foreign Affairs Manual from 1995, goes into detail about issues regarding birthright citizenship for children of foreign diplomats. See 7 FAM 1116.2-(2,3,4), on pages 7-10 of the PDF. Unfortunately, later versions of the Foreign Affairs Manual no longer contain this information.</p>\n<p>The part that is relevant for your questions is in 7 FAM 1116.2-2(d)(4):</p>\n<blockquote>\n<p>d. As a rule, children born in the United States to the\nfollowing employees of foreign governments acquire U.S.\ncitizenship:</p>\n<p>[...]</p>\n<p>(4) Diplomatic agents who have the children in question with\nU.S. citizens capable of transmitting U.S. citizenship to\nchildren born abroad. Such children acquire citizenship under\npertinent law as if born abroad and would be subject to any\ncitizenship retention requirements in effect at the time of birth;</p>\n</blockquote>\n<p>This basically says that a child born in the US to one parent with full diplomatic immunity and one parent with US citizenship would basically be treated like a child born abroad, and would acquire US citizenship at birth if the US citizen parent meets the conditions for transmitting US citizenship to a child born abroad. So the answer to your question #1 is sometimes they have citizenship, and sometimes not. The answer to your questions #2 and #3 are implied to be no citizenship (since permanent residents and nonimmigrants cannot transmit US citizenship to a child born abroad).</p>\n<p>I am not sure what the legal basis for this rule is. Why would a child born to a parent who can transmit citizenship be subject to US jurisdiction, while a child born to a parent who can't transmit citizenship be not subject to US jurisdiction? Or perhaps they are both not subject to US jurisdiction, and the citizenship derives from the section of law on citizenship for children born abroad to US citizen? But that section specifies "a person born outside the geographical limits of the United States and its outlying possessions", so it doesn't seem to apply to children born in the US. Or perhaps they interpreted that Congress didn't intended for children born in the US to have any less preferential treatment for acquisition of citizenship than children born abroad in the same situation, so if a child born to a US citizen and foreign diplomat would acquire US citizenship when born abroad, the child should acquire US citizenship when born in the US too.</p>\n<p>In any case, this information is only from a manual (and an outdated version of the manual at that), not from a law or even a regulation, so it is not very authoritative.</p>\n<hr />\n<p>By the way, there is another even more outdated reference on this. In the <a href=\"https://web.archive.org/web/20120226191813/http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-45104.html\" rel=\"nofollow noreferrer\">old INS interpretations</a> on nationality law, <a href=\"https://web.archive.org/web/20120118060326/http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-45104/0-0-0-45113.html#0-0-0-23041\" rel=\"nofollow noreferrer\">Interpretation 301.1(b)</a>(2), regarding the law on citizenship for children born abroad prior to 1941, contains this interesting sentence:</p>\n<blockquote>\n<p>Under the above rules, a child acquired citizenship at birth in Puerto\nRico, 26/ Guam, American Samoa, Swain's Island, Philippine Islands,\n27/ Alaska (before March 30, 1867), Hawaii (before August 12, 1898),\nVirgin Islands (before February 25, 1927), the Canal zone (before\nAugust 4, 1937), in any foreign country, and even in the continental\nUnited States, 28/ provided, in this last instance, that the child had\nan alien parent who was a foreign diplomatic officer duly accredited\nto the United States.</p>\n</blockquote>\n<p>The last part seems to describe the same principle (albeit before 1941) that children born in the US to foreign diplomats with diplomatic immunity can acquire US citizenship through the rules for children born abroad, even though the law before 1941 (like the current law) does not explicitly provide for that. Footnote 28 says "Application of Baron , CO 341-P (1961)." I can't find information on this; perhaps someone else can.</p>\n",
"score": 4
},
{
"answer_id": 88025,
"body": "<p>There are some other groups. One is children of parents that are part of an invading force (I wonder when that happened for the last time, maybe Texas early 19th century?) In the UK NATO employees have a special status (not under immigration control) similar to embassy employees, someone might check if that is the same in the USA and if it extends to children.</p>\n",
"score": 0
}
] |
[
"united-states",
"citizenship",
"diplomatic-immunity"
] |
Can I become a US citizen if my mother is a US citizen?
| 3 |
https://law.stackexchange.com/questions/9411/can-i-become-a-us-citizen-if-my-mother-is-a-us-citizen
|
CC BY-SA 4.0
|
<p>I'm looking to get my US citizenship, and I am wondering if it is possible to obtain a U.S. citizenship because my mother is a citizen and was so when I was born. I am looking at <a href="https://www.uscis.gov/us-citizenship/citizenship-through-parents" rel="nofollow noreferrer" title="This Page">This Page</a> but I am confused about a couple of things.</p>
<p>I believe the following applies to me:</p>
<blockquote>
<p>In a general, a Child Born Outside the U.S. is a Citizen at Birth when
the Child’s Parents Are Married to each other at the Time of Birth</p>
<p><strong>IF...</strong></p>
<p>One parent is a U.S. citizen at the time of birth and the birthdate is
on or after November 14, 1986</p>
<p><strong>AND...</strong></p>
<p>The U.S. citizen parent had been physically present in the U.S. or its
territories for a period of at least five years at some time in his or
her life prior to the birth, of which at least two years were after
his or her 14th birthday.</p>
</blockquote>
<p>Does November 14, 1986 refer to the birthdate of the parent or the birthdate of child (me)?</p>
<p>Assuming this applies to me, does "citizen at birth" mean I am already technically a citizen, or would my parent's have had to fill out some paperwork when I was born? The Page also mentions the age of 18. If my parents didn't file the paperwork for me to become a citizen at birth or before 18, does that mean it's impossible for me to get a citizenship through this method since I am over 18?</p>
<p>I was born in Canada and have a Canadian citizenship. I'm not sure if that makes any difference.</p>
| 9,411 |
[
{
"answer_id": 9414,
"body": "<p>\"the birthdate is on or after November 14, 1986\" refers to your birthdate (the birthdate of the parent is irrelevant). \"Citizen at birth\" means that, if the conditions describe hold, the person has been a citizen ever since they were born, and there is no requirement for parents to register their citizen children as citizens. Mention of age 18 is relevant in case a person's parents are not married to each other at the time of birth. A person who is a citizen at birth does not (technically) have to apply for a <a href=\"http://www.uscis.gov/n-600\" rel=\"nofollow\">Certificate of Citizenship</a> but if you want to document your citizenship, you have to file that form (but <a href=\"https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartH-Chapter3.html#S-D\" rel=\"nofollow\">simply applying for a US Passport</a> is much simpler and more useful). Since you are at least 18, you can file it on your own, otherwise the U.S. citizen parent or legal guardian must submit the application (which is another way that 18 becomes relevant).</p>\n",
"score": 5
}
] |
[
"united-states",
"citizenship"
] |
Were people born in the Confederacy eligible to run for president?
| 25 |
https://law.stackexchange.com/questions/87932/were-people-born-in-the-confederacy-eligible-to-run-for-president
|
CC BY-SA 4.0
|
<p>Since the Confederacy existed for about four years, presumably some number of babies were born there during that time. Technically, those people were not born in the United States.</p>
<p>When those people reached the age of 35 (which would of course be after the war was over), were they eligible to run for president of the US?</p>
| 87,932 |
[
{
"answer_id": 87933,
"body": "<p>Technically, they were born in the United States, at least under US law, and the law of any existing nation. The United States never recognised the Confederacy, nor did any other country. There are occasional wingnut groups who declare themselves separate from the United States, but a simple declaration of secession does not create a country – you also have to win the war.</p>\n<p>The Supreme Court affirmed that the secessionist states were always an integral part of the Union in <a href=\"https://en.wikipedia.org/wiki/Texas_v._White\" rel=\"noreferrer\">Texas v. White</a>, 74 U.S. (7 Wall.) 700 (1869). Since they only had jurisdiction if Texas was a state at the relevant time (some time on or before January 15, 1865), by accepting the case, they implicitly affirmed that Texas was part of the Union. Further, in the judgement itself, they explicitly stated that the acts of secession of not just Texas, but every rebel state were “absolutely null”.</p>\n",
"score": 70
},
{
"answer_id": 87959,
"body": "<p>The requirement is actually not to be born in the US, but to be a natural born citizen. You can be born outside the US and still be a natural born citizen and thus eligible to be elected President. The relevant question is whether their parents (engaged in the secession) were still citizens of the United States and were thus able to pass on the citizenship to their children. I believe the answer from Dale M answers that question; no secession ever took place.</p>\n<p>They could in theory be blocked under the 14th amendment in case they have '...engaged in insurrection or rebellion against the same [the United States], or given aid or comfort to the enemies thereof.'Given the young age of anybody born during the war, I deem that to be unlikely. It would however apply to adults engaged in the secession activities.</p>\n",
"score": 12
}
] |
[
"united-states",
"legal-history",
"president"
] |
Where should a foreign interested party in a civil case seek a lawyer?
| 2 |
https://law.stackexchange.com/questions/88010/where-should-a-foreign-interested-party-in-a-civil-case-seek-a-lawyer
|
CC BY-SA 4.0
|
<p>A civil case is in progress in the UK. Someone involved in the case as an interested party wants to make a motion about it, but is a US citizen living in the US.</p>
<p>Should they get a lawyer at home in the US, or should they get one in the UK jurisdiction where the case is being handled?</p>
| 88,010 |
[
{
"answer_id": 88016,
"body": "<p>They should get a lawyer in the UK jurisdiction where the case is being handled. To file a motion in a case pending before a tribunal one needs to be admitted to the practice of law before that tribunal.</p>\n",
"score": 1
}
] |
[
"united-states",
"united-kingdom"
] |
Can you sue a state government administrative agency for breaking the law it's supposed to implement?
| 1 |
https://law.stackexchange.com/questions/88011/can-you-sue-a-state-government-administrative-agency-for-breaking-the-law-its-s
|
CC BY-SA 4.0
|
<p>The agency I'm interested in is the Virginia Employment Commission, and the law is the Virginia Unemployment Compensation Act, but the question is also more generic.</p>
<p>My understanding is that the state government generally can not be sued in state court, but what happens if they break the law? What recourse is available?</p>
<p>If the answer depends on the particular jurisdiction, then I'm most interested in the Commonwealth of Virginia (of course).</p>
<p>I've researched this a bit, and what I've found is that the Virginia Tort Claims Act allows the state government to be sued for negligent actions of its employees, but that law (VA Code § 8.01-195.3) specifically excludes "Any claim arising out of the institution or prosecution of any judicial or administrative proceeding", which I interpret as providing state administrative agencies pretty broad immunity, even if they violate the law they are supposed to implement.</p>
| 88,011 |
[
{
"answer_id": 88015,
"body": "<p>Realistically, there is no claim for money damages under state law.</p>\n<p>One could appeal the results of an individual administrative determination to the appropriate higher court.</p>\n<p>One could also sue for injunctive or declaratory relief to require the individuals administering the agency (ideally the lowest level official who has the authority to bring it into compliance) to act in accordance with the law.</p>\n<p>Unless a federal constitutional right is violated in a non-judicial fashion, there is no claim for money damages under 42 U.S.C. § 1983 either.</p>\n",
"score": 1
}
] |
[
"virginia",
"administrative-law",
"governmental-liability"
] |
Take part of a song slow it down a bit and put it on a loop
| 1 |
https://law.stackexchange.com/questions/88013/take-part-of-a-song-slow-it-down-a-bit-and-put-it-on-a-loop
|
CC BY-SA 4.0
|
<p>Lets say someone hypothetically took the beginning part of a song and slowed it down a bit and put it on a loop for 3 min..</p>
<p>In this scenario the original song was copyrighted.</p>
<p>Would this be copyright infringement if someone then put the new edited song in a game and used it there?</p>
| 88,013 |
[
{
"answer_id": 88014,
"body": "<blockquote>\n<p>Would this be copyright infringement if someone then put the new\nedited song in a game and used it there?</p>\n</blockquote>\n<p>It would almost certainly be infringing in this case. There is very little room for the fair use defense in the case of sound recordings.</p>\n",
"score": 1
}
] |
[
"copyright",
"fair-use",
"music"
] |
Processing screenshots of people's browser windows on a web server
| 3 |
https://law.stackexchange.com/questions/87962/processing-screenshots-of-peoples-browser-windows-on-a-web-server
|
CC BY-SA 4.0
|
<p>Suppose that a software developer (April) living in the UK,has created a simple browser plug-in that takes screenshots of a user's browser windows and allows the user to enhance and "prettify" these screenshots in various ways.</p>
<p>The "enhancing" part of the screenshot processing is done on April's server, which means that all screenshots are uploaded from people's computers to April's over the internet. April has no control over the data that people take screenshots of: it can be their personal email messages, or some copyrighted material, or even their nude pictures. And all this data ends up on the web server that April owns and contrtols.</p>
<p>Are there some specific kinds of data processing agreement or privacy policy that April needs to offer to users so that she doesn't end up in any kind of legal trouble (with GDPR or any other privacy laws)? Maybe a disclaimer saying something like "by installing this plug-in, you agree not to take screenshots of any illegal/copyrighted material"?</p>
| 87,962 |
[
{
"answer_id": 88007,
"body": "<p>Since the developer is also said to be running the website where screen shots to be edited are stored, and is resident in the UK, it would seem that the GDPR-UK applies. (The EU version may also apply when a user is in the EU.) This means that the Data Controller (DC) must have a lawful basis under <a href=\"https://gdpr-info.eu/art-6-gdpr/\" rel=\"nofollow noreferrer\">Article 6</a></p>\n<p>The most plausible basis would seem to be point (b) of article 6 paragraph 1. That reads:</p>\n<blockquote>\n<p>(b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;</p>\n</blockquote>\n<p>For this to apply, the DC would need to include in a ToS document or in some other relevant document that a user must accept, contractual language in which the Data Subject (DS) agrees to submit data for processing, and the DC agrees to recive, process, and return it. There would probably be other provisions as well. One of them might be that the content could not itself be unlawful, another that the DS has all needed rights to submit the content for creation of a modified version, yet another that the service could not be used for any unlawful purpose.</p>\n<p>However, other GDPR provisions would also apply. In particular, <a href=\"https://gdpr-info.eu/art-5-gdpr/\" rel=\"nofollow noreferrer\">Article 5</a>, paragraph 1 point (e) reads in relevant part</p>\n<blockquote>\n<p>[Personal data shall be] kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed ...</p>\n</blockquote>\n<p>this suggest that such screen shots should not be retained indefinitely, but rather deleted securely as soon as the modified versions have been transmuted to ther users who have requested them. While 5. (b) does permit retention for archiving purposes, it is better practice to retain no more thasn needed. Furthermore, if such information is to be retained as an archive, that should be disclosed to the user under <a href=\"https://gdpr-info.eu/art-13-gdpr/\" rel=\"nofollow noreferrer\">Article 13</a> specifically 13.1(c) and 13.2(a). Those require disclosing the purpose and lawful basis of procession, and the expected time of retention or the criteria used to determine the retention period.</p>\n<p>Othre disclosures liosted in article 13 would also apply.</p>\n<p>The idea of consent on the basis of "by using this app/site you consent to ..." is not valid consent under the GDPR. Specifically <a href=\"https://gdpr-info.eu/art-7-gdpr/\" rel=\"nofollow noreferrer\">Article 7</a> requires that consent can be withdrawn at any time, and be easy to withdraw. <a href=\"https://gdpr-info.eu/recitals/no-32/\" rel=\"nofollow noreferrer\">Recital 32</a> states:</p>\n<blockquote>\n<p>Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement to the processing of personal data relating to him or her, such as by a written statement, including by electronic means, or an oral statement. ... Silence, pre-ticked boxes or inactivity should not therefore constitute consent.</p>\n</blockquote>\n<p>Thus contractual language, explicitly agreed to by the DS, is a much better basis than such implied consent.</p>\n",
"score": 1
}
] |
[
"copyright",
"gdpr",
"privacy"
] |
When Is it OK to Break a No-Contact Order?
| 1 |
https://law.stackexchange.com/questions/54995/when-is-it-ok-to-break-a-no-contact-order
|
CC BY-SA 4.0
|
<p><strong>Location:</strong> Indiana, USA</p>
<p><strong>Background:</strong> A friend of mine has a temporary no-contact order placed against him for his girlfriend. His girlfriend didn't want the order, but the state placed the order anyway. She is still allowed to message him. Being a good egg, he didn't message her back and has followed the law waiting for his pre-trial agreement to run out and the order to lift.</p>
<p><strong>Concern:</strong> She sent him pictures - empty bottles of vodka and her bleeding wrists - and some messages something to the effect of <code>I hate my ****ing life. I just want to end it.</code> This is a pattern of hers that really messes with him (my friend) <strong>so he broke the order to console her, then she proceeded to tell other people (her friends and family) that he broke the order.</strong></p>
<p><strong>Question:</strong> Does the law or judge ever make exceptions for events such as this? A deliberate breaking of a court order, but with good intentions? Or would he be facing the same punishments if word makes it back around to the court?</p>
<p><strong>Edit</strong>: I understand <a href="https://en.wikipedia.org/wiki/Necessity_(criminal_law)" rel="nofollow noreferrer">Necessity in Criminal Law</a> may come into play here, but I'm unsure if this is a strong enough argument.</p>
| 54,995 |
[
{
"answer_id": 54997,
"body": "<blockquote>\n<p>Does the law or judge ever make exceptions for events such as this?</p>\n</blockquote>\n<p>From a legal standpoint, your friend is at high risk of being found in contempt and thus be sentenced to imprisonment. Your friend should have called 911 rather than violate the protection order under pretext of consoling her.</p>\n<p>Asking from the standpoint of whether judges <em>ever do this or that</em> is pointless. The answer would be "<em>yes, they make exceptions</em>" even in scenarios which are plain aberrant. However, a judge's departure of the law quite often is not a reliable standpoint for understanding the law, but the result of his/her ineptitude and unfitness for judicial office.</p>\n",
"score": 11
}
] |
[
"united-states",
"criminal-law",
"restraining-orders"
] |
Lock Repair Dispute - Interpretation of common areas in a lease
| 1 |
https://law.stackexchange.com/questions/87987/lock-repair-dispute-interpretation-of-common-areas-in-a-lease
|
CC BY-SA 4.0
|
<p>I have a dispute regarding the replacement of a lock on an external door in my leasehold property. (England, United Kingdom)</p>
<p>There are four flats in the converted period property, two maisonettes (having their own private entrances), and two flats which share an entrance which leads to a hallway and stairs to their respective flat entrances.</p>
<p>We each own a share of freehold and subsequently each have our own leases. My title plan does not include the afore mentioned shared door - I have my own entrance to my flat.</p>
<p>I have been requested to share the cost of a replacement lock for the shared door. I don't have a key, nor am I able to use the door.</p>
<p>The lease states:</p>
<blockquote>
<ol>
<li>Maintaining and keeping in good and substantial repair and condition:-</li>
</ol>
<p>...</p>
<p>iii. the common entrances passages landing and staircases of the Property</p>
</blockquote>
<p>My query is this.</p>
<p><strong>What constitutes the common parts of the property?</strong></p>
<p>Should these costs be shared amongst all owners, or only those who have access to it. Similarly, should the stairs need replacing in this area, is everyone again liable to share these costs or only those with access to them?</p>
| 87,987 |
[
{
"answer_id": 87998,
"body": "<h2>All common areas are common areas even if some people can’t access them</h2>\n<p>Typically. It is possible to create titles within titles that have different levels of common property, but this is usually only done for large developments - dozens to hundreds of dwellings incorporating more than one building. And not all of them use this route - the administrative overhead is often too great. For example, in a multi-building development where only some have elevators because these have relatively high maintenance costs, it might be worthwhile.</p>\n<p>The simplicity of having everyone pitch in in their prescribed proportions is considered better than the small inequities that this causes from time to time. It also stops the inevitable: “but I never use the garden/helipad/lift/foyer to those units.”</p>\n<p>You are liable for your proportion of the lock repair even though you never use it. Similarly, you would be liable for repairs to the foyer behind that door. This would have been one of the factors the surveyor considered in deciding the proportion of common area costs your flat would bear.</p>\n<p>If it helps, you can remember that while some common property is for the joint use of the residents, some, like your neighbour’s foyer, is for the use of the public - which includes you. When you visit them to complain about the price of the lock, you’ll be using that lock.</p>\n",
"score": 2
}
] |
[
"united-kingdom",
"property",
"residential-lease"
] |
It is illegal to name software releases after pop-culture things?
| 2 |
https://law.stackexchange.com/questions/87995/it-is-illegal-to-name-software-releases-after-pop-culture-things
|
CC BY-SA 4.0
|
<p>An example: version 2.0 of a software is named "Thresh", version 2.1 is named "Cassiopeia", and so on? (taking names from a single source)</p>
| 87,995 |
[
{
"answer_id": 87997,
"body": "<p>This is permitted so long as it doesn't violate a valid trademark or service mark (or a few equivalent rights in names that are comparable such as collective rights to market beef under the name "Waygu" only if it is produced in a certain area of Japan under Japanese law) that covers goods or services of the same type in the same economic market.</p>\n<p>A trademark arises either when a term acquires a "secondary meaning" associating its use in connection with a particular kind of good or services in a particular market with a particular provider of that good or that service, or by registration of the trademark or service mark.</p>\n<p>"Tresh" and "Cassiopeia" are not terms that inherently are related to software, so they are permissible to use as trademarks for software unless someone else already has established trademark protection for them.</p>\n",
"score": 4
}
] |
[
"intellectual-property"
] |
Are there any Limitations to how much and what can be amended or abolished in the UN charter and ICJ statute
| 1 |
https://law.stackexchange.com/questions/87970/are-there-any-limitations-to-how-much-and-what-can-be-amended-or-abolished-in-th
|
CC BY-SA 4.0
|
<p>It seems like there aren't rules for amendment for ICJ and UN charter beyond a procedure for how they are to be amended. Does the UN or ICJ have a basic structure doctorine or entrenched clause that details what can't be amended ?</p>
| 87,970 |
[
{
"answer_id": 87996,
"body": "<blockquote>\n<p>Does the UN or ICJ have a basic structure doctrine or entrenched\nclause that details what can't be amended?</p>\n</blockquote>\n<p>No.</p>\n<p>This is mostly because these bodies as such are mostly impotent and so there is not a strong incentive to litigate them or a strong need to amend them. Neither the UN charter or the ICJ have had provisions that have been heavily litigated.</p>\n<p>Countries are mostly at peace with the notion that the UN is mostly a talk shop and that the ICJ is mostly a forum in which issues are resolved by mutually consenting sovereign parties.</p>\n",
"score": 1
}
] |
[
"treaty"
] |
Did any ancient legal systems require covenants/oaths/contracts to be made in the morning?
| 1 |
https://law.stackexchange.com/questions/87973/did-any-ancient-legal-systems-require-covenants-oaths-contracts-to-be-made-in-th
|
CC BY-SA 4.0
|
<blockquote>
<p>“Then Abimelech went to him from Gerar, and Ahuzzath one of his friends, and Phichol the chief captain of his army. And Isaac said unto them, Wherefore come ye to me, seeing ye hate me, and have sent me away from you? And they said, We saw certainly that the Lord was with thee: and we said, Let there be now an oath betwixt us, even betwixt us and thee, and let us make a covenant with thee; That thou wilt do us no hurt, as we have not touched thee, and as we have done unto thee nothing but good, and have sent thee away in peace: thou art now the blessed of the Lord. And he made them a feast, and they did eat and drink. And they rose up betimes in the morning, and sware one to another: and Isaac sent them away, and they departed from him in peace.”</p>
</blockquote>
<p>(Genesis 26:26-31, KJV)</p>
<p>Did any ancient legal system place any significance on oaths or agreements being made in the morning? It appears that Isaac and Abimelech and his companions discussed the agreement in the evening but did not formalize it until the morning. Was this actually required for legal purposes in any ancient jurisdictions? (In this case, it was an agreement between a king and another person, so "laws" aren't really relevant, but I'm curious if this was standard practice.)</p>
<p>I don't want to debate the historicity of the Bible. I believe that this interaction truly did occur, but the question itself (did agreements have to be made in the morning?) is valid regardless of one's opinion on whether or not this really happened.</p>
<p>I tagged this as <a href="/questions/tagged/contract-law" class="post-tag" title="show questions tagged 'contract-law'" aria-label="show questions tagged 'contract-law'" rel="tag" aria-labelledby="contract-law-container">contract-law</a> because a contract seems to be the closest modern concept to the oath here.</p>
| 87,973 |
[
{
"answer_id": 87985,
"body": "<h2>If it means anything, it's probably about being sober rather than because of the time of day.</h2>\n<p>To the best of my knowledge, there is nothing in the Bible or halakha that says oaths must be made in a specific part of the day. What we do find, in common with other ancient cultures, is an expectation that oath-making involves an invocation of divine authority, as the deity is being asked to punish someone if they break their agreement. Consequently, oath-making is often accompanied by a sacrifice (c.f. 2 Chronicles 15, or the Iliad book 3 for a non-Hebrew example), which needs a certain amount of preparation - not only finding the animal, but also being in a state of ritual purity. The precise wording and intent of the oath are also important, since one does not want to be bound to the wrong thing.</p>\n<p>All of this adds up to <em>not</em> doing the ceremony after a big party with lots of drinking. In this passage, they wait until morning, not because the morning is special in itself, but because it's undesirable to undertake a solemn religious commitment while inebriated or just tired. It may be that the morning is a "good" time because it's convenient to carry out morning prayers and ablutions and then immediately go on to the oath-making, but that does not mean that ancient Hebrew religious practice required promises to be made in the morning.</p>\n<p>In law, we also have the idea of being potentially held to an undesired agreement, if it was concluded while drunk or otherwise impaired. Legal systems differ in how they resolve it. The Talmud includes, for example:</p>\n<blockquote>\n<p>With regard to one who is intoxicated, his acquisition is a binding acquisition; that is, he cannot retract the transaction when he is sober, and similarly, his sale is a binding sale. Moreover, if he committed a transgression for which he is liable to receive the death penalty, he is executed; and if the offense is punishable by lashes, he is flogged. The principle is that he is like a sober person in all matters, except that he is exempt from prayer. (<a href=\"https://www.sefaria.org/Eruvin.65a.2?ven=William_Davidson_Edition_-_English&lang=bi&with=all&lang2=en\" rel=\"noreferrer\">Eruvin 65a</a>, trans. William Davidson)</p>\n</blockquote>\n<p>The covenant here is not a commercial contract, but would probably have included an element of prayer and sacrifice (even if not mentioned explicitly in the passage), and that is the part which demands sobriety.</p>\n<p>Roman law also had rules about impairment by reason of insanity, which is a similar idea; a permanently insane person cannot make contracts (Ulpian in <em>Digest</em> 3.5.3) but in other circumstances a drunk person might be held to their agreement. Somewhat to the contrary, drinking some amount of wine might be part of the formal oath ceremony in some cultures. In ancient Greece, as in the <em>Iliad</em> example, libations were made to the gods (especially Zeus Horkios, "oath-keeper") and the wine would have been formally consumed. Herodotus also records (<em>Histories</em> 4.70) that the Scythian oath ceremony involved drinking a mixture of wine and blood. This does not mean that the participants were intoxicated - there was probably not much wine and it was probably not that strong - but I mention it for completeness.</p>\n<p>By the way, the part of the Talmud cited above also includes the statement from <a href=\"https://en.wikipedia.org/wiki/Rav_Nachman\" rel=\"noreferrer\">Rav Nachman</a> that "As long as I have not drunk a quarter-log of wine, my mind is not clear. It is only after drinking wine that I can issue appropriate rulings." Contemporary judges might or might not agree, but they'd be more circumspect in saying it.</p>\n",
"score": 5
},
{
"answer_id": 87992,
"body": "<p><strong>Modern Practice</strong></p>\n<p>In the modern age, the only legal act that has to be taken in the morning that comes to mind is a same day wire transfer of funds through a commercial bank. But, as a result, many large dollar business transactions have morning rather than afternoon or evening closings.</p>\n<p>There are many legal activities that predominantly take place in the morning, although nothing in the substantive law or court rules requires it.</p>\n<p>For example, the vast majority of courts commence business in the morning, so the lion's share of jury selections begin in the morning, because that task needs to be completed before any other part of a jury trial can begin. But, this is not a rule and juries sometimes are selected in the afternoons for short traffic or petty offense and misdemeanor trials that are expected to only take a few hours.</p>\n<p><strong>Ancient Practice</strong></p>\n<p>I agree with the answer from enen, however, that the instance of a morning conclusion of a treaty related by the Bible verse was either a pure coincidence or a product of the desire to have the parties sober when concluding it.</p>\n<p><a href=\"https://www.goodreads.com/quotes/416941-if-an-important-decision-is-to-be-made-they-the\" rel=\"nofollow noreferrer\">Herodotus asserts</a> that if the Persians decided something while drunk, they made a rule to reconsider it when sober:</p>\n<blockquote>\n<p>If an important decision is to be made, they [the Persians] discuss\nthe question when they are drunk, and the following day the master of\nthe house where the discussion was held submits their decision for\nreconsideration when they are sober. If they still approve it, it is\nadopted; if not, it is abandoned. Conversely, any decision they make\nwhen they are sober, is reconsidered afterwards when they are drunk.</p>\n</blockquote>\n<p>This is a policy summed up in the Latin phrase "<em>In vīnō vēritās, in aquā sānitās</em>", i.e., "In wine there is truth, in water there is good sense (or good health)." Similar phrases exist across cultures and languages. (<a href=\"https://en.wikipedia.org/wiki/In_vino_veritas\" rel=\"nofollow noreferrer\">Source</a>).</p>\n<p>This folk wisdom is quite ancient and is sometimes attributed to having a common source in the lore of the proto-Indo-Europeans, although the Biblical example given would be outside of that Indo-European tradition.</p>\n<p>This view of what was going on in that verse would be consistent with Biblical verses arguing that something a witness sees in the morning is unlikely to be false because people usually aren't drunk in the morning. <em>See</em> <a href=\"https://bible.usccb.org/bible/acts/2#:%7E:text=15These%20people%20are%20not,my%20spirit%20upon%20all%20flesh.\" rel=\"nofollow noreferrer\">Acts 2:15</a> ("These people are not drunk, as you suppose, for it is only nine o’clock in the morning.")</p>\n<p>There have also often been superstitious individuals who consult astrologers and shamans to determine auspicious times to carry out activities. I once had a client who consulted an astrologer every time in a case that we has an event that had to be scheduled. But, while that was a once in a career anomaly in the late 20th century United States, in many ancient cultures around the world, this kind of analysis was common place. Indeed, the Vatican created the position of chief astronomer in ancient times, primarily to determine the ritually correct date upon which to conduct Easter ceremonies in the church calendar.</p>\n<p>Astrological concerns aren't unique to the West. In ancient China, efforts to determine auspicious times for important activities were ubiquitous.</p>\n",
"score": 2
}
] |
[
"contract-law",
"legal-history",
"history",
"oath"
] |
A store security guard prevented me from entering a shop 30 min before the close, does he have the right to?
| 2 |
https://law.stackexchange.com/questions/87950/a-store-security-guard-prevented-me-from-entering-a-shop-30-min-before-the-close
|
CC BY-SA 4.0
|
<p>I tried to enter a shop that closes at 11 p.m. in France, at 10:30 p.m., and the store security guard prevented me from entering. Does he have the right to? If not, what could I do to go in? What do I risk if I force the passage?</p>
| 87,950 |
[
{
"answer_id": 87960,
"body": "<p>I do not know the particular legal environment in France, but in general the shop is private property and the owner decides who may enter and who may not. You have no right as such to enter somebody else's property against their will. Doing so would at least be classified as trespassing, possibly more serious considering you mention using force to enter the premise.</p>\n",
"score": 5
},
{
"answer_id": 87978,
"body": "<p>The store can set its "opening times" any way it likes.</p>\n<p>To avoid employees having to work too long, it is not uncommon that tills are closed at closing time, so you come too late, you can't buy the things you want. The till can also close before closing time if they believe they can handle the current customer before closing, but not the next one.</p>\n<p>And of course since it is pointless to have you filling your shopping trolley when you are too late to pay for the goods, they can keep you from entering the store significant time before closing.</p>\n<p>Forcing passage is a legal risk that I wouldn't take. If they are nice they throw you out. If they are not so nice they call the police. Now if you are a tourist and that happens to you (because residents know how it works), getting arrested in a foreign country is something that can really spoil your holiday.</p>\n",
"score": 4
},
{
"answer_id": 87990,
"body": "<blockquote>\n<p>Does he have the right to?</p>\n</blockquote>\n<p>Maybe, depending on the meaning of "right", and if he (or the store) can invoke a legitimate reason (or such a reason can be presumed from the circumstances).</p>\n<p>Without a legitimate reason, the store risks being in violation of the law against <a href=\"https://www.economie.gouv.fr/dgccrf/Publications/Vie-pratique/Fiches-pratiques/refus-de-vente\" rel=\"nofollow noreferrer\">refusal to sell</a> under consumer protection law.</p>\n<p>At the same time, a person entering a private property without specific title (when the invitation to enter, usually inherent to commercial stores and non-fenced properties, is denied or terminated) who refuses to leave may be removed forcefully by judicial police officers (but not by security agents) on the complaint of owners. Your consumer dispute with the store does not normally change this, absent previous judicial orders (e.g. if the court had ordered the shop to conduct business with you); although the removal may constitute the evidence of refusal to sell and may be an aggravating factor if it happens after a previous finding of refusal to sell. Under certain circumstances you may also demand civil damages before a court; but at the moment, the police officers usually defer to the owners in a shop (occupants in an apartment is different).</p>\n<p>To justify a refusal to sell, if the store had a sign explicitly saying "last entry at 22h30", this would almost definitely constitute a legitimate reason, within their freedom to set opening and working hours (subject to planning and labour law) and such display serves as a contractual base. Contractual bases are legitimate reasons if they are clearly displayed and not abusive.</p>\n<p>If not, the store may invoke a legitimate reason, or the judge can also assess the circumstances on their own initiative. For example, refusing entry to a big store at 22h55 is more easily justified. This will depend on other circumstances, for example, if a restaurant refuses service half an hour before the closing time, it is usually recognized as a legitimate reason. And if a shop will close earlier than announced due to e.g. employees will leave, this is also a legitimate reason (but doing so everyday may breach certain false advertisement laws if the advertisement of false hours create an anti-competitive advantage).</p>\n<blockquote>\n<p>If not, what could I do to go in?</p>\n</blockquote>\n<p>Even if you may have a legal right to be sold an advertised item, the proper avenue to exercise such right is through civil courts, the public prosecutor or the departmental competition and consumer agency (Direction départementale de la concurrence, de la consommation et de la répression des fraudes).</p>\n<blockquote>\n<p>What do I risk if I force the passage?</p>\n</blockquote>\n<p>While trespassing is not an offence in itself in France, trespassing using\nruses, threats or any physical means is an offence.</p>\n<p>Insults may give rise to a legitimate reason for refusal to sell, and severe insults may lead to prosecution and civil damages. The consequences become immediately <em>much</em> more serious if you declare physical threats or actually use physical means to try to enter, as these are more serious offences that can lead to prison sentences and a criminal record.</p>\n",
"score": 2
}
] |
[
"commerce",
"trespass",
"real-property"
] |
Is it correct to ban me from a concert without providing necessary proof that I was engaged in harmful or threatening behaviour?
| -5 |
https://law.stackexchange.com/questions/79607/is-it-correct-to-ban-me-from-a-concert-without-providing-necessary-proof-that-i
|
CC BY-SA 4.0
|
<p>I received following email by a venue in London:</p>
<p>"Hi there</p>
<p>We are getting in touch as we are afraid we have had to refund your ticket for the event tonight. One of the artists performing has brought to our attention behaviour online that has made them feel very uncomfortable, and for their wellbeing and safety we have agreed it is best for you to not attend.</p>
<p>Regards
..."</p>
<p>I responded with the request to provide necessary evidence to make such a serious allegation.
If they don’t provide any evidence, is there something I can do legally?
What time frame should I allow them to provide me with the evidence?
Calling someone a threat for someone else’s well-being and safety without proof and singling me out of attending a concert is falsity, no?
T&C and the fact they refunded me would not apply here in the first place, correct?</p>
| 79,607 |
[
{
"answer_id": 79611,
"body": "<p>A private venue normally has discretion over who may attend their premises, as long as it is not because of membership in a protected class under anti-discrimination law.</p>\n<p>Note that the communication, as quoted, did not say that the banned person was a threat, but only that one of the performers felt uncomfortable.</p>\n<p>I do not think that the banned person has any legal recourse, unless they can plausibly assert that this is a case of unlawful discrimination, which the question does not suggest.</p>\n",
"score": 8
},
{
"answer_id": 79622,
"body": "<p>As I’ve learned on this site, private businesses can exercise near total discretion in who they choose to serve and transact with, though with some exceptions.</p>\n<p>In this case, I think that because they had already taken your money and thus willingly entered into a contract with you, the question would be determined by the terms and conditions of the contract, within the bounds of statutorily valid/fair contract terms in the context of consumer rights law. I’m not terribly well versed in this body of law, but could well easily imagine that just as tenancies can contain break clauses exercisable by the tenant though not the landlord, there could well be consumer rights statutes which say that once a business has taken your money you may be entitled to arbitrarily back out of the contract and request a refund under certain conditions but the business cannot unilaterally cancel the contract.</p>\n<p>Further, I suspect that this could very likely implicate anti discrimination laws like the Equality Act 2010 on the basis that you are being discriminated against likely in retaliation for expressions of your political beliefs. While I’m on my way out the door currently, I’m heavily inclined to recall that that is a protected class under the equality act 2010 and they thus cannot refuse to serve you any more than they could hang a sign to say no tories (or communists) allowed.</p>\n",
"score": 1
}
] |
[
"england-and-wales",
"evidence",
"online",
"terrorism",
"biosafety"
] |
What can be considered a "reasonable excuse" when mistakenly breaching a court order?
| -1 |
https://law.stackexchange.com/questions/87983/what-can-be-considered-a-reasonable-excuse-when-mistakenly-breaching-a-court-o
|
CC BY-SA 4.0
|
<p>Is it too subjective to think the serious allegations made in the order had being taken out of any possible and plausible context, twisting it in such way so they could paint a really bad picture about the person the order was addressed to, triggering the person by what the order was accusing her/him of and thus making her/him overreact by breaching it mistakenly?</p>
<p>And how about a situation where the Respondent had being blackmailed and further being manipulated and taken advantage of by the Applicant shortly before the Respondent was served the order on that same day?</p>
<p>Can these examples be considered as a "reasonable excuse" maybe?</p>
<p>EDIT to the first paragraph:
The second paragraph relates to the first but I will try to explain it in such a way you might understand the background to my concern and question.</p>
<p>The person (Respondent) was served an order the same day the Applicant had tried to continue manipulating the Respondent by his genuine attempt to simply have a conversation. She further tried to blackmail him by saying “We can meet and talk about what have happened, but I have to focus on my business now and need some money as I am struggling financially.” I offered her to help her with some money but realised she was still playing a game with me, so I ignored it.</p>
<p>2 hours later the Respondent had been served the order at his workplace. He was emotionally so upset that he then breached the order because he felt that the points he was been prohibited from doing had no grounds. He admits that breaching the order was his mistake and instead he should have appealed the order or get legal assistance to give his own statement as he was not giving a real opportunity to explain his situation.</p>
| 87,983 |
[
{
"answer_id": 87988,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"canada-container\">canada</a></p>\n<p>In Canada, it is offence to breach "without lawful excuse" a condition imposed under a s. 810 peace bond.</p>\n<p>The burden is on the defendant to establish that they had a lawful excuse for the breach.</p>\n<p>Consider a condition that prohibits a person from being within 50m of a particular other person. Also imagine that they discover at a stop light that the other person is in the adjacent car. The fact that the light is red is a lawful excuse for not immediately removing oneself from the 50m zone. See e.g. <em>R. v. Lawrence</em>, <a href=\"https://canlii.ca/t/1nrvb\" rel=\"nofollow noreferrer\">1995 CanLII 6022</a> (Sask. Q.B.).</p>\n<p>In another case, the court held that the "<strong>desire to assert the invalidity of the recognizance</strong> did not afford... a lawful excuse for [going to the prohibited residence]" (<em>R. v. Kankis</em>, 2013 ONSC 471).</p>\n",
"score": 2
}
] |
[
"england-and-wales",
"defamation",
"compensation",
"blackmail",
"court-order"
] |
Can I provide plans for a patented product
| 2 |
https://law.stackexchange.com/questions/87979/can-i-provide-plans-for-a-patented-product
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CC BY-SA 4.0
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<p>This question is about a physical product, where a part of the functionality is patented. I would like to recreate that product for educational purposes. <strong>I won't sell it</strong>.</p>
<p>I guess I'm fine with "just recreating it for personal use". If I take this one step further and create plans or some tutorial material to recreate the patented functionality, can I get into trouble?</p>
<p>I have read this question, which is about recreating and doing tutorial videos about something that is copyrighted and/or trademarked: <a href="https://law.stackexchange.com/questions/42251/leagalities-of-recreating-a-website-design-but-not-using-publically">Leagalities of recreating a website design but not using publically</a></p>
<p><strong>Specific case:</strong>
Found a furniture design with a elaborate folding mechanism. This mechanism is patented. I would like to build my own furniture with that mechanism. It looks baffling at first, but I'm sure that everyone with a little technical background can figure out the function of the mechanism just by looking at photos and videos on the designers homepage.</p>
| 87,979 |
[
{
"answer_id": 87980,
"body": "<p>A patent grants the holder exclusive rights to make, use and sell the patented item. As such, you can look at the patented object, you can document it, you can study it, you can draw up plans for it. A patent cannot be granted unless the applicant discloses what exactly is being patented. So you can get all the details of a patent from the USPTO (US Patent and Trademark Office).</p>\n<p>You cannot, however, make one without infringement unless you have permission, usually a license, from the patent holder.</p>\n<p>Now I am not in any way recommending this but as a practical matter, if you, as an individual, were to make such a piece of furniture incorporating a patented feature for your use, how would they know? There are no "patent police" going from door-to-door looking for infringers.</p>\n<p>On the other hand if you were to begin selling copies of this piece at your small shop, that might come to the patent holder's attention and they might take action against you.</p>\n",
"score": 3
}
] |
[
"copyright",
"patents"
] |
What was the legal basis for farmer Eckardt Heukamp to be forced to sell his farm to RWE?
| 3 |
https://law.stackexchange.com/questions/87974/what-was-the-legal-basis-for-farmer-eckardt-heukamp-to-be-forced-to-sell-his-far
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CC BY-SA 4.0
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<p>In Germany there are currently between 200 and 2000 climate activists in the Lützerath hamlet fighting the forced sale of the hamlet to a mining company. They are primarily on/around the property of farmer Eckardt Heukamp who objected to selling his farm. Here is the <a href="https://en.wikipedia.org/wiki/L%C3%BCtzerath" rel="nofollow noreferrer">wikipedia article</a> and here is <a href="https://www.bbc.com/news/world-europe-64187212" rel="nofollow noreferrer">a BBC article</a>.</p>
<p>In general the forced sale of land is driven by the ideas of Eminent Domain, which is the forced sale of property <em>to the government for public use</em>. The justification for the existence of Eminent Domain laws always heavily relies on the use of the land to be for the public. This case however implies that a company (the farmer) is forced to sell its land to another private company (RWE), so that the latter company can profit off of the resources in the land owned by the farmer against the wishes of the farmer.</p>
<p>The only case I can think of where Eminent Domain is used somewhat commonly for sales to a private company is for the purchase of land for railways, but this is - as far as I am aware - justified by the positive externalities of train networks, so it's basically a form of 'subsidy'. Such a reasoning does not seem to apply to a mining company.</p>
<p>So my question is basically: What is the reasoning behind laws allowing entire villages to be sold to private mining companies? Does the state get some 'maximum energy prices' or something similar in return to justify this as a 'public use', or is there a completely different justification?</p>
<p>(Btw, I am not particularly interested in the specifics of German law, and more so in the general justifications for 'laws like this', so answers for different jurisdictions are welcome as well)</p>
| 87,974 |
[
{
"answer_id": 87976,
"body": "<p>Art 14 GG provides a right to personal property, but not without limitations. In particular, expropriation is allowed on the basis of a concrete law with fair compensation, when necessary for a public interest.</p>\n<p>In 2013, these disputes relating to the <em>Garzweiler</em> mine were decided by the German constitutional court. In decision <a href=\"https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2013/12/rs20131217_1bvr313908.html\" rel=\"nofollow noreferrer\">1 BvR 3139/08</a>, one such expropriation law was found constitutional. It gave public interests such as:</p>\n<ul>\n<li>supplying the economy with raw materials</li>\n<li>maintaining jobs in the mining industry</li>\n<li>maintaining and growing the economy</li>\n</ul>\n<p>More recently, the goal of fulfilling political energy strategies (e.g. energy independence) has become more prominent as well.</p>\n<p>Such public interests don't automatically override the right to property – all relevant rights and interests must be balanced. But in practice, the economic interests of a large corporation do seem to override individuals' right to their property, especially since they must be given fair compensation. Opposing <em>public</em> interests might weigh more strongly. It will be interesting to see how recent expropriation for the purpose of lignite mining will be viewed in retrospect, given that climate protection has also been found to be a constitutionally protected interest.</p>\n",
"score": 4
}
] |
[
"germany",
"eminent-domain"
] |
What does it mean for international law to be binding? What is the nature of obligation at international law?
| 2 |
https://law.stackexchange.com/questions/87967/what-does-it-mean-for-international-law-to-be-binding-what-is-the-nature-of-obl
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CC BY-SA 4.0
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<p>A common critique of international law is expressed in propositions like: "international law is just a gentlemen's agreement," or "no one can enforce international law."</p>
<p>What does it mean for international law to be binding? What is the nature of obligation at international law?</p>
| 87,967 |
[
{
"answer_id": 87968,
"body": "<h3>Austin's view: the command theory of law—rules of a superior sovereign backed by force</h3>\n<p>The idea that law exists only if the rules are those of a superior sovereign and backed by force is an outdated conception whose most prominant proponent was <a href=\"https://en.wikipedia.org/wiki/John_Austin_(legal_philosopher)\" rel=\"nofollow noreferrer\">John Austin</a>. This is known as the "command" theory of law. This clearly cannot explain obligation at international law. But nor can it explain many of the rules in domestic legal systems that we have no problem conceiving of as law (e.g. the law-making process itself, the system of adjudication, rules that confer power, etc.).</p>\n<h3>Modern views: internal sense of obligation</h3>\n<p>The command theory of law has largely been supplanted by other theories of obligation such as that of <a href=\"https://en.wikipedia.org/wiki/H._L._A._Hart\" rel=\"nofollow noreferrer\">H.L.A. Hart</a>. In this view, law does not require rules to be backed by threats of force, or to be imposed by a superior sovereign. Law can exist and sustain itself purely through a group's internal point of view: do the participants (states, in the case of international law) "<em>use</em> the rules as standards for the appraisal of their own and others' behaviour" and do they see them as imposing obligations?</p>\n<p>This focus on the internal viewpoint is actually part of the test for recognizing a norm as customary international law. For something to be customary international law, it must be accomanied by <em>opinio juris</em>. This is a "'psychological' element'" (John H. Currie, <em>Public International Law</em>, p. 195). States need to behave as if a rule has legal obligation. International judicial bodies will look to evidence about how states explain their motives, including how they explain deviations from the rule.</p>\n<p>H.L.A. Hart explicitly noted the common question, "How can international law be binding?" (<em>The Concept of Law</em>, "Chapter X: International Law"). His answer:</p>\n<blockquote>\n<p>there is something very confusing in this favourite form of question; and before we can deal with it we must face a prior question to which the answer is by no means clear. This prior question is: what is meant by saying of a whole system of law that it is 'binding'? The statement that a particular rule of a system is binding on a particular person is one familiar to lawyers and tolerably clear in meaning. We may paraphrase it by the assertion that the rule in question is a valid rule, and under it the person in question <em>has some obligation or duty</em>.</p>\n</blockquote>\n<p>He recognizes that "one source of doubt on this point is simply the absense from the system of centrally organized sanctions." But for all the reasons that this is not the criteria of what makes law law or creates the internal view of obligation, even in domestic systems, this fact does not undercut international law's status as law.</p>\n<p>He describes nation states' expressed attitude towards the rules of international law:</p>\n<blockquote>\n<p>Yet what these rules require is thought and spoken of as obligatory; there is general pressure for conformity to the rules; claims and admissions are based on them and their breach is held to justify not only insistent demands for compensation, but reprisals and counter-measures. When the rules are disregarded, <em>it is not on the footing that they are not binding; instead efforts are made to conceal the facts</em>.</p>\n</blockquote>\n<h3>In what sense is international law binding?</h3>\n<p>When one makes the assertion that a rule is <em>binding</em> at international law, they are simply describing or predicting that the participants view the rule as generating obligation and duty, likely due to the rule's basis in treaty or customary international law.</p>\n",
"score": 1
}
] |
[
"international",
"theory-of-law"
] |
In the U.S., what happens to intellectual property that has escheated to a state government?
| 15 |
https://law.stackexchange.com/questions/87961/in-the-u-s-what-happens-to-intellectual-property-that-has-escheated-to-a-state
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CC BY-SA 4.0
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<p>A <a href="https://law.stackexchange.com/a/87920/508">recent answer</a> to a question here about the legality of publishing a work for which the copyright owner cannot be found mentions</p>
<blockquote>
<p>If the owner has no legal heirs, in most jurisdictions the property escheats to the government (in the US to the state government).</p>
</blockquote>
<p>How do U.S. state governments normally deal with such intellectual property whose copyright has escheated to the state? Do they auction it off? Release it as public domain? Something else?</p>
<p>I know that U.S. federal government publications are <a href="https://en.wikipedia.org/wiki/Copyright_status_of_works_by_the_federal_government_of_the_United_States" rel="noreferrer">normally released into the public domain</a>, but I'm not sure if that applies to the state governments at all or if it would apply in the case of orphaned works that have escheated to the state.</p>
| 87,961 |
[
{
"answer_id": 87969,
"body": "<p>If the owner of the intellectual property leaves property subject to the jurisdiction of the state of Washington, and it is determined that the owner is dead and has no heirs, then per <a href=\"https://app.leg.wa.gov/RCW/default.aspx?cite=11.08&full=true#11.08.150\" rel=\"noreferrer\">RCW 11.08.140</a> it is designated escheat property. Then the following sections specify that title to the property vests in the state. The Department of Revenue has jurisdiction over that property, which has\nthe duty to protect and conserve the property for the benefit of the permanent common school fund. There is no general answer to the question of what would best benefit the school fund. Any form of giving it away would not benefit the school fund, at least if there was an viable option for sale / licensing. There are provisions that relate to the possibility that an heir is eventually uncovered, but I will assume that no heir ever appears.</p>\n<p>Ohio law is similar. The decendant's property escheats to the state in case there is no heir. Then under <a href=\"https://codes.ohio.gov/ohio-revised-code/section-2105.07\" rel=\"noreferrer\">ORC 2105.07</a>,</p>\n<blockquote>\n<p>the prosecuting attorney of the county in which letters of\nadministration are granted upon such estate shall collect and pay it\nover to the county treasurer. Such estate shall be applied exclusively\nto the support of the common schools of the county in which collected.</p>\n</blockquote>\n",
"score": 9
}
] |
[
"united-states",
"intellectual-property"
] |
What gives rise to binding obligations at international law?
| 3 |
https://law.stackexchange.com/questions/87955/what-gives-rise-to-binding-obligations-at-international-law
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CC BY-SA 4.0
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<p>There are many international agreements, declarations, and norms. Which of these give rise to obligations that are <a href="https://law.stackexchange.com/questions/87967/what-does-it-mean-for-international-law-to-be-binding-what-is-the-nature-of-obl/87968#87968">binding</a> on nation states at international law?</p>
| 87,955 |
[
{
"answer_id": 87956,
"body": "<h3>Generally: treaties, customary international law, and unilateral declarations can give rise to binding obligations</h3>\n<p>The most well-accepted sources of international law are summarized in Article 38(1) of the <a href=\"https://www.icj-cij.org/en/statute\" rel=\"noreferrer\"><em>Statute of the International Court of Justice</em></a>:</p>\n<blockquote>\n<p>a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;</p>\n<p>b. international custom, as evidence of a general practice accepted as law;</p>\n<p>c. the general principles of law recognized by civilized nations;</p>\n<p>d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.</p>\n</blockquote>\n<p>Sources of obligations are treaties (also called conventions or agreements) and customary international law (see generally, John H. Currie, <em>Public International Law</em>, p. 99-100). A third—unilateral declarations—has also been recognized, but it is less well developed as a source (see Currie at p. 111-117; <em>Nuclear Tests (Australia v. France)</em>, <a href=\"https://www.icj-cij.org/public/files/case-related/58/058-19741220-JUD-01-00-EN.pdf\" rel=\"noreferrer\">[1974] I.C.J. Rep. 253</a>, <a href=\"https://www.icj-cij.org/public/files/case-related/58/058-19741220-JUD-01-00-EN.pdf#page=18\" rel=\"noreferrer\">p. 266</a>):</p>\n<blockquote>\n<p>It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a <em>quid pro quo</em> nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made.</p>\n</blockquote>\n<h3>Treaties</h3>\n<p>Treaties (also sometimes called "conventions", "charters", "covenants", "protocols", "pacts", "acts", "statutes", or "agreements" (Currie, p. 125)) express the will of the parties to be bound by their terms. The law of treaties is itself largely governed by a treaty: the <a href=\"https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf\" rel=\"noreferrer\"><em>Vienna Convention on the Law of Treaties</em></a>. The <em>Vienna Convention</em> describes the ratification process and how treaties come into force. It specifies that treaties are binding upon the parties and that treaties must be performed in good faith.</p>\n<h3>Customary International Law</h3>\n<p>It is also widely recognized that there exists customary international law that creates or reflects binding obligations on states. For something to be customary international law, a rule must satisfy two elements (see Currie, p. 188):</p>\n<ol>\n<li>general and uniform state practice; and</li>\n<li><em>opinio juris</em> (the requirement that states believe that the rule is legally obligatory).</li>\n</ol>\n<p>See also <em>Nevsun Resources Ltd. v. Araya</em>, <a href=\"https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18169/index.do\" rel=\"noreferrer\">2020 SCC 5</a>:</p>\n<blockquote>\n<p>[77] There are two requirements for a norm of customary international law to be recognized as such: general but not necessarily universal practice, and opinio juris, namely the belief that such practice amounts to a legal obligation. [citations omitted]</p>\n<p>[78] To meet the first requirement, the practice must be sufficiently general, widespread, representative and consistent. To meet the second requirement, opinio juris, the practice “must be undertaken with a sense of legal right or obligation”, as “distinguished from mere usage or habit.” [citations omitted]</p>\n<p>[80] When an international practice develops from being intermittent and voluntary into being widely accepted and believed to be obligatory, it becomes a norm of customary international law.</p>\n<p>[82] Once a practice becomes a norm of customary international law, by its very nature it “must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favour.” [citations omitted]</p>\n</blockquote>\n<h3><em>Jus cogens</em></h3>\n<p>There are some elements of customary international law that are "non-derogable" (Currie, p. 206; <a href=\"https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf\" rel=\"noreferrer\"><em>Vienna Convention</em></a>, art. 53). These are called <em>jus cogens</em> or <em>peremptory norms</em>. These cannot be derogated from even by treaty. See <em>Nevsun Resources Ltd. v. Araya</em>, <a href=\"https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18169/index.do\" rel=\"noreferrer\">2020 SCC 5</a>:</p>\n<blockquote>\n<p>[83] Within customary international law, there is a subset of norms known as jus cogens, or peremptory norms, which have been “accepted and recognized by the international community of States as a whole . . . from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” This Court acknowledged that “a peremptory norm, or jus cogens norm is a fundamental tenet of international law that is non-derogable.” [citations omitted]</p>\n</blockquote>\n<h3>Relationship to domestic law</h3>\n<p>Treaties do not change domestic law. States must take actions in good faith towards implementing treaties in their domestic law. This is known as the <em>dualist</em> approach.</p>\n<p>However, even in countries that take a dualist approach to treaty implementation, the dominant approach to customary international law is that it is directly and automatically incorporated into domestic law (see <em>Nevsun</em>, paras. 86-89, in particular the empirical study of Professors Pierre-Hugues Verdier and Mila Versteeg cited at para. 88):</p>\n<blockquote>\n<p>[P]erhaps the most striking pattern that emerges from our data is that in virtually all states, CIL [Customary International Law] rules are in principle directly applicable without legislative implementation. . . . [M]ost countries that require treaty implementation do not apply the same rule to international custom, but rather apply it directly.</p>\n</blockquote>\n",
"score": 6
}
] |
[
"international",
"treaty"
] |
Evil mother filed missing person report after kicking out adult daughter. Any way to dismiss it?
| 5 |
https://law.stackexchange.com/questions/29773/evil-mother-filed-missing-person-report-after-kicking-out-adult-daughter-any-wa
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CC BY-SA 4.0
|
<p>Alright, so my girlfriend and I were planning to move in together sometime next month. We've been in a long distance relationship for over 2 years and have never met in person until now. She was in Oregon and me in California.</p>
<p>To make this easier for everyone, I kept advising her to tell her parents in advance so I can meet them beforehand. Unfortunately, they suddenly went berserk and decided to kick her out one random day at 3am after her mother failed to catfish me the night before. She was able to beg for extra time so they let her stay until evening that day. That day, her mother kept yelling and breaking her things (shattered phone as evidence) as well as spilling water on her boxes she had prepared to move out.</p>
<p>When she told me about this that morning, I immediately skipped work and went on a 17-ish hour long non-stop road trip to pick her up. She has just turned 18 last month and did not have a job so she would've probably ended up on the streets. She still had her laptop to talk to me so I was able to call her a taxi for a nearby Motel. With the money she had, she was only able to afford up to 2 nights there.</p>
<p>Anyway, I got there at 2am and we left to California the next morning. Now we're finding out that her mother tried messaging the phone she broke and accusing me of kidnapping her daughter. We know she's crazy so, for our safety, we refuse to disclose our location but she did take selfies, videos, and even called her over the phone to prove that she's fine. Even then, she filed a missing person report and we're being tracked down. They already found records of places we stayed and visited.</p>
<p>What can we do to dismiss such report? Does she just show up at a local police department telling them that she's fine and it was her own decision? </p>
<p>Her mother said the police also wanted to talk to me separately. I do not want to get involved in this at all. Can I reject it? Can we file chargers to her mother for being so abusive? Would I get in trouble for being in a relationship with her daughter since I was 20 and she was 16? We had never met in person until now, to avoid any trouble. She's short which makes her look a lot younger than she is. She did bring her Oregon driving permit and birth certificate as proof of her age. </p>
<p>Furthermore, I'm part of the DACA program so I fear this may put my work authorization at risk. I really love my fiancee and do not want to be separated from her...</p>
| 29,773 |
[
{
"answer_id": 29774,
"body": "<blockquote>\n <p>What can we do to dismiss such report? Does she just show up at a local police department telling them that she's fine and it was her own decision? </p>\n</blockquote>\n\n<p>In short, yes. She shows up at a local police station, tells her side of the story including the whole bit about things getting destroyed and her getting kicked out, cites the missing persons report, and make it clear that she's not missing but an independent adult who is free and making her own decisions. Since she's over 18, she can do that. (Bringing proof of age might be helpful.) The mystery of the missing person will be considered solved from the police side. She does not have to give a specific address where she's living, just convince the officer that she's OK and making an intentional decision to create distance between herself and her mother. </p>\n\n<p>She could also try calling (the same local station which is convenient to her current location) before showing up to see if that satisfies the officer, and only go in if needed. </p>\n\n<blockquote>\n <p>Would I get in trouble for being in a relationship with her daughter since I was 20 and she was 16? We had never met in person until now, to avoid any trouble. </p>\n</blockquote>\n\n<p>Shouldn't be a problem, as long as it's a mutually willing (non-coercive) relationship.</p>\n\n<blockquote>\n <p>Her mother said the police also wanted to talk to me separately. I do not want to get involved in this at all. Can I reject it?</p>\n</blockquote>\n\n<p>Yes, you can reject it. You do not have to answer ANY question a police officer asks; you have the right to remain silent and/or to say only \"I have the right to remain silent.\" To reduce the probability that they'll even ask questions, you might prefer not accompanying your girlfriend when she goes to clear the missing persons report, if she goes in-person. This adds more weight to her assertion that she's going there to clear it of her own free will, not because you're forcing her. </p>\n",
"score": 15
}
] |
[
"police",
"immigration"
] |
When does a "range extender" become a "hybrid"?
| 5 |
https://law.stackexchange.com/questions/87924/when-does-a-range-extender-become-a-hybrid
|
CC BY-SA 4.0
|
<p>Some companies sell their vehicles as "hybrid" vehicles, in that they take both an electric plug and fossil fuels to make them go. Some are referred to as "Self Charging Hybrids", as they do not have an external electrical connection to charge the battery.</p>
<p>Other companies sell their vehicles as "Electric Vehicles" with a "Diesel Range Extender". These take an external electrical connection to charge the battery, as well as diesel to fuel the range extender.</p>
<p>For example, when I was looking to purchase a fully electric vehicle recently, the salesperson for one manufacturer literally said to me, verbatim, that their vehicle "is not a hybrid, it's an EV with a range extender."</p>
<p>To the layperson, these could arguably seem like the same thing, as ultimately the "Diesel Range Extender" is, in reality, an Internal Combustion Engine.</p>
<p>Does the law constrain the way that auto manufacturers can characterize their vehicles and, if so, how?</p>
<hr />
<p>Specific company names excluded to mitigate the risk of slander.</p>
| 87,924 |
[
{
"answer_id": 87963,
"body": "<p><strong>California</strong> (technically states that follow California emissions)</p>\n<p>"Range Extended Battery Electric Vehicle" or "BEVx" means a vehicle powered predominantly by a zero emission energy storage device, able to drive the vehicle for more than 75 all-electric miles, and also equipped with a backup APU, which does not operate until the energy storage device is fully depleted, and meeting requirements in subdivision 1962.2(d)(5)(G).</p>\n<p><a href=\"https://casetext.com/regulation/california-code-of-regulations/title-13-motor-vehicles/division-3-air-resources-board/chapter-1-motor-vehicle-pollution-control-devices/article-2-approval-of-motor-vehicle-pollution-control-devices-new-vehicles/section-19622-zero-emission-vehicle-standards-for-2018-through-2025-model-year-passenger-cars-light-duty-trucks-and-medium-duty-vehicles#:%7E:text=Download-,Section%201962.2%20%2D%20Zero%2DEmission%20Vehicle%20Standards%20for%202018%20through%202025,(a)ZEV%20Emission%20Standard.\" rel=\"nofollow noreferrer\">Cal. Code Regs. tit. 13 § 1962.2</a></p>\n<p>1962.2(d)(5)(G) requires the vehicle meet TZEV smog-forming emissions standards, including a 15 year/150,000 mile emissions warranty, 10 year battery warranty, and strict evaporative emissions standards.</p>\n",
"score": 3
},
{
"answer_id": 87952,
"body": "<p>The distinction being made is between a "hybrid" in which an internal combustion engine can directly power the wheels in addition to electric motors sometimes powering the wheels directly, and a "range extender" in which an internal combustion engine is used to power a battery, but the electric motor is always the direct source of power for the wheels.</p>\n<p>So, for example, used in this sense a Toyota Prius is a hybrid, while a Chevy Volt is an EV with a range extender.</p>\n<p>The terminology is not uniform or consistent. The term "hybrid" has one sense that includes a "range extender" and another sense that does not.</p>\n",
"score": 1
}
] |
[
"definition",
"motor-vehicle",
"transportation",
"car"
] |
Must one give anything but name and DOB to police if they have been witnessed committing an offence by the cop?
| 1 |
https://law.stackexchange.com/questions/87942/must-one-give-anything-but-name-and-dob-to-police-if-they-have-been-witnessed-co
|
CC BY-SA 4.0
|
<p>My understanding is that if there is cause to believe you have committed an offence, however minor, you must provide your name and date of birth to police who require it. They often then ask your place of birth which will have been recorded if you’ve ever previously been arrested, or if indeed you have ever been arrested, to practically aid them in identifying your correct record on their database.</p>
<p>My understanding is that one would be within one’s rights to reply no comment to either or both of these two questions, but it may raise the suspicion or annoyance of the cop, creating difficulty for him or her to accurately identify you, in which case they may be slightly more likely to feel it necessary to take you in so as to accurately ascertain your identity as a practical matter.</p>
<p>Is this correct?</p>
| 87,942 |
[
{
"answer_id": 87958,
"body": "<h2>You don’t have to give your name or DOB unless and until the officer has described the offence they suspect you may have committed</h2>\n<p>However, once this has been done, you must provide your name, your DOB, your address, and what you are up to if asked. See this handy <a href=\"https://www.london.gov.uk/sites/default/files/know_your_rights_z-card.pdf\" rel=\"nofollow noreferrer\">summary</a> from the Mayor of London.</p>\n<p>If you are arrested, you will be advised that you do not have to talk to the police but that failure to do so will count against you in court.</p>\n",
"score": 4
}
] |
[
"england-and-wales",
"police",
"never-talk-to-police"
] |
International standards on prisoners' right to vote
| 7 |
https://law.stackexchange.com/questions/87911/international-standards-on-prisoners-right-to-vote
|
CC BY-SA 4.0
|
<p>Are there any international standards or declarations/conventions on prisoners' right to vote?</p>
| 87,911 |
[
{
"answer_id": 87913,
"body": "<p>The <a href=\"https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights\" rel=\"nofollow noreferrer\">International Convention on Civil and Political Rights</a> (ICCPR),<sup>1</sup> Article 25, says:</p>\n<blockquote>\n<p>Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and <strong>without unreasonable restrictions</strong>:</p>\n<p>(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;</p>\n<p>(b) To vote and to be elected at genuine periodic elections which shall be <strong>by universal and equal suffrage</strong> and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;</p>\n<p>(c) To have access, on general terms of equality, to public service in his country.</p>\n</blockquote>\n<p>The United Nations Human Rights Committee (the monitoring body for the ICCPR) <a href=\"https://www.ohchr.org/sites/default/files/Reporting-ICCPR-Training-Guide.pdf\" rel=\"nofollow noreferrer\">has said</a>:</p>\n<blockquote>\n<p>The right to vote and be elected at genuine periodic elections must be established by law and may be subject only to reasonable restrictions, such as setting a minimum age limit for the right to vote. States parties must take effective measures to ensure that all persons entitled to vote are able to exercise that right, including measures to overcome specific difficulties, such as illiteracy, disability, language barriers, poverty and impediments to freedom of movement. <strong>The Committee has taken the position that a blanket ban on prisoner voting is incompatible with article 25.</strong></p>\n</blockquote>\n<p>The Supreme Court of Canada has summarized (in a dissent in <em>Sauvé v. Canada</em>, <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2010/index.do\" rel=\"nofollow noreferrer\">2002 SCC 68</a>, but the summary is accurate):</p>\n<blockquote>\n<p>Article 25 of the International Covenant on Civil and Political Rights (“ICCPR”) states that every citizen shall have the “right and the opportunity” to vote “without unreasonable restrictions”: ICCPR, 999 U.N.T.S. 171, entered into force March 23, 1976. The United Nations Human Rights Committee, in a comment on Art. 25 of the ICCPR, stated that restrictions on the right to vote should be “objective and reasonable” and that “<strong>[i]f conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence</strong>”: “General Comment Adopted by the Human Rights Committee under Article 40, Paragraph 4 of the International Covenant on Civil and Political Rights”, General Comment No. 25 (57), Annex V, CCPR/C/21, Rev. 1, Add. 7, August 27, 1996.</p>\n</blockquote>\n<p>The UN Human Rights Committee, in its <a href=\"https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhsijKy20sgGcLSyqccX0g1nnMFNOUOQBx7X%2BI55yhIwlkDk6CF0OAdiqu2L8SNxDB4%2BVRPkf5gZFbTQO3y9dLrUeUaTbS0RrNO7VHzbyxGDJ%2F\" rel=\"nofollow noreferrer\">Observation Report on the United States in 2014</a>, reported that the United States was not meeting its obligations under this Article:</p>\n<blockquote>\n<p>...the Committee reiterates its concern about the persistence of state-level felon disenfranchisement laws...</p>\n<p><strong>The State party should ensure that all states reinstate voting rights to felons who have fully served their sentences ; provide inmates with information about their voting restoration options ; remove or streamline lengthy and cumbersome voting restoration procedures ; as well as review automatic denial of the vote to any imprisoned felon, regardless of the nature of the offence.</strong></p>\n</blockquote>\n<hr />\n<p><sup>1. 173 nations are parties to the ICCPR. It is a treaty and as such is binding upon the parties to it and must be performed by them in good\nfaith.</sup></p>\n",
"score": 10
},
{
"answer_id": 87953,
"body": "<blockquote>\n<p>Are there any international standards or declarations/conventions on\nprisoners' right to vote?</p>\n</blockquote>\n<p>None that are legally enforceable or binding.</p>\n",
"score": 0
}
] |
[
"international",
"human-rights",
"voting"
] |
Restricting processing of data provided to police
| -1 |
https://law.stackexchange.com/questions/87931/restricting-processing-of-data-provided-to-police
|
CC BY-SA 4.0
|
<p>Suppose that a person A would like to report a crime of which they’ve become a victim, to the police. For this purpose the police typically require the victim’s date of birth in order to create a crime report.</p>
<p>With one’s date of birth, police are also equipped to check one for wanted circulations and warrants. If they find one, then the individual would be subject to arrest.</p>
<p>On the one hand, in supplying one’s date of birth one benefits by enabling the police to create a crime report. On the other hand, by supplying one’s birthdate to police one also risks arrest by enabling them to search for relevant warrants and circulations.</p>
<p>Can A provide their date of birth to police on the basis that they are permitted to use this personal data for the purpose of recording and investigating their crime report, but not to use it to check for outstanding warrants to which A may be subject?</p>
<p>I expect that whatever the answer legally, in practice, such a stipulation would rouse more suspicion in a policeman than otherwise, and they would likely scoff in the reporting party’s face at the stipulation. And I expect that legally, they may even have a basis to do so under the GDPR/DPA2018. But if they didn’t, and they contravened the data subject’s usage permission by using the collected data for an unpermitted purpose, ie searching for warrants to which A is subject, then perhaps A would be due compensation for the data breach under the legislation.</p>
<p>What then is the legal standing?</p>
| 87,931 |
[
{
"answer_id": 87957,
"body": "<h2>UK police can use your personal data to, among other things, “bring offenders to justice”</h2>\n<p>You can read the Met’s Privacy Policy <a href=\"https://www.met.police.uk/hyg/fpnm/privacy/\" rel=\"nofollow noreferrer\">here</a>. Because their legal basis for processing data for that purpose is to fulfil their legal obligations, they don’t need your permission and can override your wishes on the matter.</p>\n",
"score": 1
}
] |
[
"united-kingdom",
"gdpr",
"england-and-wales",
"police",
"data-protection-act"
] |
Are there any limits on being "overly selective" during Jury Selection?
| 6 |
https://law.stackexchange.com/questions/87935/are-there-any-limits-on-being-overly-selective-during-jury-selection
|
CC BY-SA 4.0
|
<p>Say Andy the attorney is trying to defend Nathan the Nazi in a criminal court case. During Jury Selection, where potential jurors are vetted, what is stopping Andy from saying that every Nazi-hater is not suitable to be part of the jury? And what is stopping the prosection from saying that anyone who's a Nazi sympathizer is inadmissable?</p>
<p>In general terms, are there any limits on an attorney's power to disqualify potential jurors until they find just the right one who is pre-disposed to side with their client?</p>
| 87,935 |
[
{
"answer_id": 87945,
"body": "<p>One limit is that potential jurors cannot be excluded solely on the basis of their race. See <em>Batson v. Kentucky</em>, 476 U.S. 79 (1986); <em>Flowers v. Mississippi</em>, <a href=\"https://www.supremecourt.gov/opinions/18pdf/17-9572_k536.pdf\" rel=\"nofollow noreferrer\">588 U.S. ___</a> (2019).</p>\n<p>As summarized in <em><a href=\"https://www.supremecourt.gov/opinions/18pdf/17-9572_k536.pdf\" rel=\"nofollow noreferrer\">Flowers</a></em>:</p>\n<blockquote>\n<p>Equal justice under law requires a criminal trial free of racial discrimination in the jury selection process. Enforcing that constitutional principle, <em>Batson</em> ended the widespread practice in which prosecutors could (and often would) routinely strike all black prospective jurors in cases involving black defendants. By taking steps to eradicate racial discrimination from the jury selection process, <em>Batson</em> sought to protect the rights of defendants and jurors, and to enhance public confidence in the fairness of the criminal justice system. <em>Batson</em> immediately revolutionized the jury selection process that takes place every day in federal and state criminal courtrooms throughout the United States.</p>\n</blockquote>\n<p>The <em>Batson</em> restriction is not merely that one cannot explicitly announce race as the factor by which one is excluding a juror. This will most often not be the kind of evidence available and if that were the rule, the purpose of the rule would easily be defeated. What <em>Batson</em> prohibits is exclusion of a juror "on the basis of race" (whether or not a proxy was the proximate or purported means by which the prosecutor made the decision). See <a href=\"https://www.supremecourt.gov/opinions/18pdf/17-9572_k536.pdf\" rel=\"nofollow noreferrer\"><em>Flowers</em> at p. 18</a> of the slip opinion:</p>\n<blockquote>\n<p>The trial judge must determine whether the\nprosecutor’s proffered reasons are the actual reasons, or\nwhether the proffered reasons are pretextual and the\nprosecutor instead exercised peremptory strikes on the\nbasis of race. The ultimate inquiry is whether the State\nwas “motivated in substantial part by discriminatory\nintent.”</p>\n</blockquote>\n",
"score": 4
},
{
"answer_id": 87954,
"body": "<p>At least in US criminal court procedure, each side generally has a limited number of "peremptory challenges". These can be used to excuse (dismiss) potential jurors without specifying any reason, and it is very unusual for either side to specify the reason. Such challenges may not be used to exclude jurors solely on the basis of race, as <a href=\"https://law.stackexchange.com/a/87945/17500\">the answer by Jen</a> correctly explains in detail. It has been suggested that this limitation also be extended to other protected characteristics such as sex or ethnicity, but I am not aware of a case that has imposed such a restriction. Even the prohibition of racial exclusion can be hard to enforce, if the attorney, when questioned, asserts some other basis for a particular challenge.</p>\n<p>Aside from the limited number of peremptory challenges, either side may "challenge for cause". This means alleging some reason why a juror would not be qualified, or would not be properly impartial. A source of possible bias would be a classic reason for a challenge for cause. But all such challenges are reviewed by the trial judge (or judge supervising jury selection, in the unusual case where this is not the trial judge), and a juror is only excluded if the judge agrees that the challenge is valid. So an attorney can suggest that people who support, or strongly oppose, Nazi parties are biased, but the Judge may well not accept this and may choose to retain such jurors. It is a judgement call.</p>\n",
"score": 4
}
] |
[
"united-states",
"jury",
"trial",
"voir-dire"
] |
Does copyright no longer apply if one cannot find the owner?
| 12 |
https://law.stackexchange.com/questions/87919/does-copyright-no-longer-apply-if-one-cannot-find-the-owner
|
CC BY-SA 4.0
|
<p>Suppose a work was originally published in France (and in French) , in 1940. Suppose the author (Georges Macron) died in 1980. Suppose it was translated into English, and published in English in 1955. and the translator (Francis Farmer) died in 1995. Suppose the original French publisher went out of business in 1963, and there was no single successor company. Suppose the English-language publisher went out of business in 1975, and again there is no single successor company.</p>
<p>Suppose that John Reaper has written a new book in English. This new book reproduces many whole pages (say 70) of the 1955 translation, plus 15 full,-page illustration from that edition. John Reaper has approached the publishers of more recent editions of the translation (all of them from before 1990). John has approached the grand children of macron, and the heirs of Farmer (who had no children). He has looked through the records of the copyright offices in France, the UK, and the US, and has written to everyone named in those records as holding copyright in the book or its translation, or as being an agent of any such owner.</p>
<p>No one has admitted to holding the rights to the 1955 translation, or to knowing who does hold those rights.</p>
<p>Assume that the new book is an expansion and revision of the original book, not a commentary on or analysis of the original, and is not likely to qualify as a <em><strong>fair use</strong></em> of the original.</p>
<p>[Note that these details of publication dates and death dates are given to make it clear that the book is still under copyright in various countries, and to make it clear what sort of efforts John has gone to while trying tro secure permission.]</p>
<p><strong>Can John Reaper lawfully publish his new book</strong> with a note:</p>
<blockquote>
<p>Pages {numbers} are taken from the 1955 edition of {title} a translation of {french title} by Georges Macron. The holder of copyright in that work could not be found after diligent search. If anyone holds those rights or knows who does, please contact me at {address} and proper arrangements will be made.</p>
</blockquote>
<p>If John does this, can he be successfully sued for copyright infringement of the 1955 translation or of the 1940 original?</p>
<p>John wants to publish in the US, the UK, and France and other EU countries.</p>
<p>This is based on comments to <a href="https://law.stackexchange.com/questions/8608/can-i-print-scans-of-a-books-pages-in-my-book">Can I print scans of a book's pages in my book?</a> in this stack.</p>
| 87,919 |
[
{
"answer_id": 87920,
"body": "<h2>No, John may not lawfully publish such a book in such a way</h2>\n<p>What John wants to do is not lawful. It would infringe on the copyright on both the 1940 original, and on the 1955 translation. Both of those are still in copyright under the laws of France, the UK, and the US. Someone owns those copyrights: some person or business or other entity.</p>\n<p>If the owner has no legal heirs, in most jurisdictions the property <em><strong>escheats</strong></em> to the government (in the US to the state government). In the case of a company, its assets will be sold or handed over to some entity. But they will not become ownerless, any more than real estate will become ownerless when the owner dies or the owning company is dissolved.</p>\n<p>It is possible that the owner does not realize that s/he owns these rights. But if John publishes his book, then owner might then realize the rights that s/he holds. The owner could demand payment, or sue for damages. Under US law the damages could include any economic loss that the owner has incurred <strong>plus</strong> any profits that John or his publisher have made. John and his publisher would both be liable for these damages. As a result, no publisher is likely to be willing to publish John's book. If John self-publishers, he incurs the risk of such demands and suit.</p>\n<p>In some countries <a href=\"https://www.gov.uk/guidance/copyright-orphan-works\" rel=\"noreferrer\">(such as the UK)</a> there are legal procedures fore dealing with such "orphan works". In those countries one can register with a government agency, and obtain permission to use the work after a search has revealed no owner, paying a rate set by law. But there is no such provision in the US. There, John must either not publish, or gamble that no owner will appear and make demands he cannot afford to meet.</p>\n",
"score": 25
}
] |
[
"united-states",
"copyright",
"european-union",
"france"
] |
How to confirm if I can legally use a pedagogical mnemonic?
| 3 |
https://law.stackexchange.com/questions/87795/how-to-confirm-if-i-can-legally-use-a-pedagogical-mnemonic
|
CC BY-SA 4.0
|
<p>The field of education uses many mnemonics, such as CUPS, RACE, KWL, the CRAAP test, SQRRR, etc. Most of these were originally created by academics, and introduced in academic journals.</p>
<p>Many years ago I attended a college and my professor invented her own mnemonic, similar to those above, outlining the steps to teach a particular type of information. She never published this publicly and instead made this only available in a packet distributed to her students. Though I can't find my copy of this packet anymore, I don't recall any TM or Copyright, but instead a printed warning not to share the information.</p>
<p>Unlike the ubiquitous mnemonics which I mentioned above, her mnemonic appears in zero publications, and after 2010 or so, stopped even returning search results; only alumni of her classes heard of this term. I also can no longer find contact information for the professor (in her 80's by now). Addition, she invented many of the words falling within the mnemonics, so not only is the mnemonic very special, the words within are her own invention. Her words don't appear in a dictionary, and there are no synonyms for them in English.</p>
<p>I'd like to use her exact terminology in a textbook. How can I confirm that I can legally use this terminology? Do I need to search state databases for copyright? Trademark databases?</p>
| 87,795 |
[
{
"answer_id": 87951,
"body": "<p>A mnemonic like CRAAP is not protected by copyright. <a href=\"https://www.copyright.gov/help/faq/faq-protect.html\" rel=\"nofollow noreferrer\">The Copyright office says</a> "Copyright does not protect names, titles, slogans, or short phrases", so you do not run afoul of copyright law using that or any other abbreviation. There is a registry of copyright-registered works, maintained by the copyright office, where authors may register their works, but legal protection exists regardless of registering.</p>\n<p>Some abbreviations are protected under trademark law, which you can search <a href=\"https://tmsearch.uspto.gov/bin/showfield?f=toc&state=4801%3Apv576j.1.1&p_search=searchss&p_L=50&BackReference=&p_plural=yes&p_s_PARA1=&p_tagrepl%7E%3A=PARA1%24LD&expr=PARA1%20AND%20PARA2&p_s_PARA2=aaa&p_tagrepl%7E%3A=PARA2%24COMB&p_op_ALL=AND&a_default=search&a_search=Submit%20Query&a_search=Submit%20Query\" rel=\"nofollow noreferrer\">here</a>. There are 50 registrations that include "AAA" and three that are <em>just</em> "AAA", also you'll find WTF and LOL. Trademark protection doesn't forbid all uses of an registered abbreviation. It turns out that "CRAAP" is not a registered trademark, but it could be the registered trademark of a manufacturer of crab traps, so you would not likewise call your crab trap company CRAAP, but it would be okay for plumbing supplies (trademark is relative to business uses, which are described in the registration).</p>\n<p>The only other imaginable scenario that would impede your plan is a non-disclosure agreement. For that to be relevant, there would have to be a valid contract between you and the teacher which specifically prohibits disclosure of the acronyms. The chances that there is a contract between you and the teacher is so low that it is hardly worth considering, but let's explore that for a moment. A contract is an agreement between parties where each party promises to do something that they are not already obligated to do, in exchange for getting something that they do not already have a right to. You had a contract with the college, not with the teacher. The college clearly would not prohibit "using any information gained in the course of study here", and the courts would not enforce any such "don't use" wording in a contract as unconscionable (why <em>else</em> do you go to college?). Your contract with the college allows you to take classes and use the knowledge that you gain. The teacher's contract with the college requires her to teach some content, and probably allows her to set certain rules of class conduct. She might have been able to toss you out of class for disseminating her methods, but at this point she has no legal recourse. NDA enforcement is generally limited to protecting "trade secrets", which are defined in terms of information with independent economic value deriving from the fact that the information is non-obvious". Also, an NDA will have a time limit associated with it except in the case of highly-sensitive personal information (social security numbers), so the courts will not enforce language saying "you can <em>never</em> make use of this information, or these names".</p>\n",
"score": 3
}
] |
[
"united-states",
"copyright",
"trademark",
"language"
] |
motion practice and timeliness
| 0 |
https://law.stackexchange.com/questions/34147/motion-practice-and-timeliness
|
CC BY-SA 4.0
|
<p>If a defendant does not timely reply to a response, then a judge orders the defendant to file a reply within x amount of days; is that prejudicial to the responding party?</p>
<p>Prejudicial to plaintiff because:
The defendant lost the opportunity to file a reply by not filing a reply timely.
The defendant lost the opportunity to file a reply by not filing a good faith request for extension of time to file a reply showing good cause for not timely filing that reply.
Judge did not order defendant to show good cause for not timely filing a reply before ordering a reply be filed.
No good cause has been shown for why defendant did not make a timely reply prior to the issuing of an order for defendant to reply.
The defendant is being given x amount of more days to prepare a reply than the plaintiff is being offered to make a sur-reply.</p>
| 34,147 |
[
{
"answer_id": 34152,
"body": "<p>Most courts and tribunals have an overriding duty to serve the interests of justice. For example, <a href=\"https://www.legislation.nsw.gov.au/#/view/act/2005/28/part6/div1/sec58\" rel=\"nofollow noreferrer\">s58</a> of the <em>Civil Procedure Act (NSW) 2005</em> states: \"the court must seek to act in accordance with the dictates of justice\". Similarly, <a href=\"https://www.legislation.nsw.gov.au/#/view/act/2010/61/part5/sec18?autoquery=(Content%3D((%22commercial%20arbitration%20act%22)))%20AND%20((Type%3D%22act%22%20AND%20Repealed%3D%22N%22)%20OR%20(Type%3D%22subordleg%22%20AND%20Repealed%3D%22N%22))%20AND%20(%22Historical%20Document%22%3D%220%22)&dq=Document%20Types%3D%22%3Cspan%20class%3D%22dq%22%3EActs%3C%2Fspan%3E,%20%3Cspan%20class%3D%22dq%22%3ERegs%3C%2Fspan%3E%22,%20Exact%20Phrase%3D%22%3Cspan%20class%3D%22dq%22%3Ecommercial%20arbitration%20act%3C%2Fspan%3E%22,%20Search%20In%3D%22%3Cspan%20class%3D%22dq%22%3EText%3C%2Fspan%3E%22&fullquery=(((%22commercial%20arbitration%20act%22)))\" rel=\"nofollow noreferrer\">s18</a> of the <em>Commercial Arbitration Act (NSW) 2010</em> says \"each party must be given a reasonable opportunity of presenting the party’s case.\"</p>\n\n<p>While it may be frustrating if a party misses a deadline, that does not, of itself, cause injustice. Preventing a party from fully presenting their case because of a missed deadline does cause injustice.</p>\n\n<p>Ultimately, if there is a pattern of behaviour that suggests to the court or tribunal that missing deadlines is capricious, malicious or tactical, they may decide that the interests of justice lie elsewhere.</p>\n",
"score": 2
},
{
"answer_id": 87943,
"body": "<p>Chances are the judge did not want to delay the case further or felt it was more important to reach a conclusion to the case on the merits of the case itself rather than divert focus to addressing a failure to timely file as it would result in the same outcome as if the judge had not ordered the defendant to file a reply.</p>\n<p>By first ordering to show cause only to delay progression of the case in lieu of defendant submitting an explanation presenting good cause as part of determining whether or not it be excusable that defendant be given additional time to file a reply or otherwise impose sanctions against defendant, the judge may have considered that in the interest of an efficient and speedy process (or proper justice), an order to show cause would further delay the defendant in drafting a reply to the the response and move the case forward.</p>\n<p>It may not necessarily be prejudicial to the responding party (plaintiff) per se and may have just been the chosen path as being the lesser of two evils, assuming that if the motion is ultimately denied as a result of the response lacking a reply then one might argue it would seem prejudicial to the defendant who filed the motion and its dismissal would prevent the defendant from raising the motion again.</p>\n<blockquote>\n<p>what authority does a judge order a party to file a reply when that\nparty has obviously chosen to not file a reply?</p>\n</blockquote>\n<p><a href=\"https://crushendo.com/frcp-6/\" rel=\"nofollow noreferrer\">Federal Rules of Civil Procedure Rule 6(b)</a> - <strong>Computing and extending time</strong>, as well as the judge’s individual rules of practice.</p>\n<p>To say, "when that party has obviously chosen to not file a reply" is an assumption, and a judge must remain objective when making a decision that adversely affects either party.</p>\n",
"score": 1
},
{
"answer_id": 34177,
"body": "<p>Thank you for the response and I agree deadlines should be met and deadlines should rigidly rule the lawsuit.</p>\n\n<p>Federal rules of procedure requires a judge allow time for a party to make a response to a motion. Federal rules of procedure do not require a judge to allow a reply or sur-reply before making a ruling on the related motion.</p>\n\n<p>There are no rules that I am aware of which require a party to make a reply or sur-reply. So, if a party does not \"timely file a reply\" - meaning they do not file a reply as in no reply is filed: under what authority does a judge order a party to file a reply when that party has obviously chosen to not file a reply?</p>\n\n<p>If after months of not filing a reply a judge orders a party to file a reply does that prejudice the other party because it gives an unfair advantage of time to the party ordered to reply months after they had a response to study and long after the deadline?</p>\n",
"score": 0
}
] |
[
"united-states",
"federal-courts"
] |
Does how a court interpret a contract depend on whether it's a layman or expert who wrote the contract?
| 15 |
https://law.stackexchange.com/questions/87854/does-how-a-court-interpret-a-contract-depend-on-whether-its-a-layman-or-expert
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CC BY-SA 4.0
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<p>The title sort of says it all, I'm wondering if a contract would be read differently or more literally if written, or signed, by a trained lawyer then if it was done by layman.</p>
<p>So let's say that I sign a contract with someone that has an ambiguous statement in it, one where strict reading of the words as written would imply X, but from context, it seems likely that the statement was actually meant to imply Y instead. For now, let's say I am arguing I read the contract as meaning X when I signed it, and the writer of the contract is trying to argue they meant Y.</p>
<p>As I understand it whether the contract is read as meaning X or Y is enforceable is dependent on what is the most reasonable reading. If it takes an excessively literal reading to get X, and any sane person would infer Y then Y is what is enforceable. If a sane person would instead likely view X as being the intent, then X is what is enforceable even if Y was what the writer had intended.</p>
<p>But what if it's ambiguous which reading is most reasonable, would it matter rather the writer of the contract was a trained lawyer, or a layman like me? Could I argue that a the writer was a lawyer and should know how to write a contract and so they should have understood the literal interpretation of the clause was X and thus has no legal grounds for claiming they meant Y? If instead the writer was another layman, would they be more likely to be able to argue they meant the obvious interpretation Y and that literal reading X was just bad writing of someone who didn't know what they were doing?</p>
<p>The same argument could be made in reverse as well, if instead I wrote the contract and had meant literal interpretation X and the signer claims they thought the contract meant 'reasonable' interpretation Y, would the signer being or not being a lawyer affect rather I can claim they should reasonable have believed X was intended?</p>
| 87,854 |
[
{
"answer_id": 87855,
"body": "<p>It doesn't matter. When a contract is left ambiguous the interpretation that is used is the one that is the most favorable to the party that did not draft the contract, under the logic that if the party that did draft the contract chose all the wording and thus, they could have stated their interpretation in the contract just avoided this whole mess in the first place.</p>\n<p>A similar rule exists in criminal law, where if the law is ambiguous, the interpretation used is the one most favorable to the defendant, since the state could have drafted it in a way that made their interpretation clear.</p>\n",
"score": 19
},
{
"answer_id": 87860,
"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>Contractual interpretation is conducted in light of the surrounding circumstances. See <em>Sattva Capital Corp. v. Creston Moly Corp.</em>, 2014 SCC 33, para. 58 (citations omitted):</p>\n<blockquote>\n<p>The nature of the evidence that can be relied upon under the rubric of “surrounding circumstances” will necessarily vary from case to case. It does, however, have its limits. It should consist only of objective evidence of the background facts at the time of the execution of the contract, that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting. Subject to these requirements and the parol evidence rule discussed below, this includes, in the words of Lord Hoffmann, “absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable [person]”. Whether something was or reasonably ought to have been within the common knowledge of the parties at the time of execution of the contract is a question of fact.</p>\n</blockquote>\n<p>More sophisticated parties will be understood to have (or should have had) different things in mind than unsophisticated parties when negotiating and executing agreements. See e.g. <em>NOV Enerflow ULC (NOV Pressure Pumping ULC) v. Enerflow Industries Inc.</em>, 2020 ABQB 347:</p>\n<blockquote>\n<p>Based on the above analysis, I find the parties to the PSA had QMS in mind when they executed the agreement. <strong>Given the sophistication of the parties</strong>, I find they chose to limit the QMS reference to one provision. If the parties had intended to go further and agree to representations concerning the Enerflow QMS, they could have done so. They did not do so.</p>\n</blockquote>\n<p>See also <em>1548 Richmond Manor Inc. v. Fido Solutions Inc.</em>, 2019 ONSC 3833:</p>\n<blockquote>\n<p>The Lease does not give the Tenant a right to be consulted on any development plan, or create a corresponding duty to consult on the Landlord. <strong>As both are sophisticated commercial parties</strong>, if they intended to create such rights and duties, they would have been included in the Lease.</p>\n</blockquote>\n<p>Contrast this with <em>Khajavi v. Eghtesadi</em>, 2016 BCSC 1127, in which the judge was willing to understand an arguably ambiguous or uncertain contract as binding, in part because, "both parties are unsophisticated."</p>\n",
"score": 18
},
{
"answer_id": 87870,
"body": "<p><a href=\"/questions/tagged/australia\" class=\"post-tag\" title=\"show questions tagged 'australia'\" aria-label=\"show questions tagged 'australia'\" rel=\"tag\" aria-labelledby=\"australia-container\">australia</a></p>\n<h2>Contract <a href=\"https://www.corneyandlind.com.au/litigation/interpreting-contracts/\" rel=\"noreferrer\">interpretation</a> is about language and context and what they mean to a reasonable person</h2>\n<p>Who drafted the contract does not generally enter the analysis although <a href=\"https://www.law.cornell.edu/wex/contra_proferentem#:%7E:text=Contra%20proferentem%20is%20a%20rule,meaning%20%E2%80%9Cagainst%20the%20offeror.%E2%80%9D\" rel=\"noreferrer\">contra proferentem</a> is an available, if rarely used tiebreaker.</p>\n<blockquote>\n<p>The purpose of the interpretation of a contract is not to discover how parties understood the language of the text; the aim is to determine the meaning of the contract against its objective contextual scene.</p>\n</blockquote>\n<p>Recent jurisprudence from the High Court in <a href=\"http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2014/7.html\" rel=\"noreferrer\">Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7 (5 March 2014)</a> reaffirmed the High Court’s (and therefore all Australian court’s) approach.</p>\n<blockquote>\n<ol>\n<li><p>Focus on objective meaning;</p>\n</li>\n<li><p>Consider language, surrounding circumstances, commercial purpose or objects;</p>\n</li>\n<li><p>Purpose or objects are informed by genesis, background, context and market; and</p>\n</li>\n<li><p>Adopt a businesslike interpretation (a commercial result not commercial nonsense or inconvenience).</p>\n</li>\n</ol>\n<p>The decision in Verve v Woodside supports the idea that contract interpretation involves drawing conclusions based on the spirit of the text within what we know about the text. It is the drawing of conclusions respecting subjects that lie beyond the direct expression of the text from the elements known from and given in the text – conclusions which are in the spirit, though not within the letter of the text.</p>\n</blockquote>\n<p>For your example, if the plain meaning is X, and X is not absurd given the context, then it means X even if Y is more in line with the objectives of the contract. However, if if the words could support X <em>or</em> Y and Y is a better fit, then it means Y.</p>\n",
"score": 9
}
] |
[
"united-states",
"contract-law"
] |
What is the definition of "Race" used in ICERD?
| 1 |
https://law.stackexchange.com/questions/87934/what-is-the-definition-of-race-used-in-icerd
|
CC BY-SA 4.0
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<p>It seems like it's not defined in the convention (International Convention on the Elimination of all forms of Racial Discrimination). But does race only mean colour in the convention?</p>
| 87,934 |
[
{
"answer_id": 87937,
"body": "<p>Article 1 of <a href=\"https://www.ohchr.org/en/instruments-mechanisms/instruments/international-convention-elimination-all-forms-racial\" rel=\"nofollow noreferrer\">International Convention on the Elimination of All Forms of Racial Discrimination</a> (ICERD) defines "racial discrimination" to mean "any distinction, exclusion, restriction or preference <strong>based on race, colour, descent, or national or ethnic origin</strong> which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life."</p>\n<p>The <a href=\"https://www.ohchr.org/en/treaty-bodies/cerd\" rel=\"nofollow noreferrer\">Committee on the Elimination of Racial Discrimination</a> CERD is the observing body for the ICERD and has not seen it necessary to define "race" under this instrument. To the contrary, it has adopted General Recommendations that clarify that the protections apply to particular groups of people without stating which of the listed categories they are best captured by. See <a href=\"https://legal.un.org/avl/ha/cerd/cerd.html\" rel=\"nofollow noreferrer\">this Introductory Note</a>:</p>\n<blockquote>\n<p>CERD has adopted General Recommendations to clarify that the ICERD protections in article 1 include groups not explicitly named but who fall within the Convention’s broad criteria, such as women (G.R. 25), indigenous persons (G.R. 23), the Roma (G.R. 27), Dalits (G.R. 29), non-citizens including refugees (G.R. 30), African descendants, particularly those in the diaspora (G.R. 34), Muslims subjected to Islamophobia, and more generally persons whose religious identity has been “racialized,” that is used as a basis for discrimination (G.R. 32).</p>\n</blockquote>\n<p>In fact, the use of the term "race" was and is a contested aspect of the convention, as revealed through the <a href=\"https://en.wikipedia.org/wiki/Travaux_pr%C3%A9paratoires\" rel=\"nofollow noreferrer\"><em>travaux préparatoires</em></a> (Patrick Thornberry, <em>The International Convention on the Elimination of All Forms of Racial\nDiscrimination: A Commentary</em>, Oxford University Press, 2016). The UNESCO report, "<a href=\"https://unesdoc.unesco.org/ark:/48223/pf0000073351\" rel=\"nofollow noreferrer\">The Race Concept: Results of an Inquiry</a>," was available to the drafters of the ICERD and it asserted that "[t]here is no evidence for the existence of so-called 'pure' races." Some (e.g. Vieno Voitto Saario) were of the view that "race," "colour," and "ethnic origin" "all meant much the same thing." It continues to be argued that CERD should "repudiate the notion of race."</p>\n",
"score": 3
},
{
"answer_id": 87936,
"body": "<blockquote>\n<p>does race only mean colour in the convention ?</p>\n</blockquote>\n<p>Not exactly, because colour is listed on its own:</p>\n<blockquote>\n<p><strong>Article 1</strong></p>\n<ol>\n<li>In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin...</li>\n</ol>\n</blockquote>\n<p>A precise, explicitly defined meaning of "race" (as opposed to the ordinary meaning widely understood back in 1966 — even if fuzzy) <strong>lacks significance</strong> in the context of the convention because the term is used to refer to what <em>possibly</em> can be discriminated upon — and <em>any</em> such discrimination is condemned.</p>\n<p><em>If</em> the purpose of the convention was the opposite — to promote racial discrimination — then the precise meaning would need to be defined because otherwise it would be unclear when exactly to discriminate. But, thankfully, the convention says: don't. Whatever meaning of "race" you can think of — just <em>don't</em>.</p>\n",
"score": 1
}
] |
[
"international",
"human-rights",
"treaty"
] |
What options do I have for recovering unpaid utility bills from a roommate?
| 4 |
https://law.stackexchange.com/questions/13180/what-options-do-i-have-for-recovering-unpaid-utility-bills-from-a-roommate
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CC BY-SA 3.0
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<p>I rented out a room in my apartment to a roommate for four months. While rent was paid in full (as it was due at the beginning of the month) my former roommate owes their share of one month worth of bills and will likely end up owing two as it doesn't look like they intend to pay. I have not received the bills for July yet as there's a delay of a few weeks for one and a bit less than a month for the other.</p>
<p>I have a signed contract in which they agreed to pay, though it was not professionally drafted. I have received payments for two months of utilities in the past, one of which I have an electronic record of (though it was combined with their rent).</p>
<p>The problem (though it is strange to classify it as such) is that the debt owed is fairly small - a bit less than $100 currently. It will likely end up being a bit less than $200 if, as seems likely, both sets of bills are left unpaid. While not inconsequential, it's too small a sum to justify the expense and effort of hiring a lawyer and potentially even going to court.</p>
<p>What should I do in this situation?</p>
<p>I am prepared to accept a well reasoned answer for "nothing". It is still a relatively small loss to me in comparison to the gain of splitting the rent and a couple of the utility bills for those months.</p>
<p>Is it pragmatic for me to seek legal advice from a professional, despite the small debt? I don't want to waste anyone's time with a free consulation if I know that there's no realistic chance I will hire them and I don't want to hire someone for $100+ over such a small sum.</p>
<p>Is there some other way I can encourage my former roommate to pay without suing or harassing them?</p>
| 13,180 |
[
{
"answer_id": 13182,
"body": "<p><a href=\"http://www.attorneygeneral.jus.gov.on.ca/english/courts/scc/\">Small claims court</a> was created for such matters. There is the possibility of a fee waiver, and if you prevail, you could get some of your costs covered (though there are other hoops to jump through if you need enforcement). A formal letter (written by you) stating that you intend to seek a legal judgment against him/her in the amount owed might be sufficient motivation for the person to pay what is owed.</p>\n",
"score": 10
}
] |
[
"canada",
"rental-property",
"ontario"
] |
Suppose I pay by money order, not debit card. If the mechant scams me, will the Post Office refund me?
| 7 |
https://law.stackexchange.com/questions/87776/suppose-i-pay-by-money-order-not-debit-card-if-the-mechant-scams-me-will-the
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CC BY-SA 4.0
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<p>I've had some trouble with merchants sending wrong parts or even ignoring orders in the past. Obviously banks won't fight them tooth and nail for a refund.</p>
<p>But if I pay a little more for a money order, maybe the Post Office will take it more seriously.</p>
| 87,776 |
[
{
"answer_id": 87789,
"body": "<p>No, the only purpose of a money order is that it's effectively a form of guaranteed cash that only one person can access. There are no additional protections offered by it.</p>\n<p>However, given that you are amenable to paying a little extra to facilitate your payments, you may want to consider using a credit card in the future. Provided it's not an all the time thing, credit cards will withhold payments on your behalf if a vendor fails to fulfill their obligations. This means that you're not liable for the cost of the merchant sending you the wrong thing or ignoring your order requests.</p>\n<p>I've personally done this for several things:</p>\n<ul>\n<li>Hotel reservation that was borderline unsuitable for human habitation.</li>\n<li>When a vendor failed to send something I'd purchased.</li>\n</ul>\n<p>When proceeding with this, bear in mind that the credit card company will want you to make such a claim as soon as possible and to provide as much information as possible to support your claim. If you've e-mail chains, save them. If you've been communicating by phone, write down and provide a summary of your communications. If you have an issue, don't wait a month to raise the concern, do it within a week.</p>\n<p>Probably about once a year I need to do something like this. Generally what this does is it starts a dispute process whereby the credit company will contact the vendor to get their side of the story (usually they don't respond to them either). After 60 days, the charge is dropped from your bill and presumably the credit card company refuses to pay for the disputed item.</p>\n<p>Ultimately, this gets you the best possible result. You get your money back and you didn't have to go to court to do it.</p>\n",
"score": 32
},
{
"answer_id": 87780,
"body": "<blockquote>\n<p>Suppose I pay by money order, not debit card. If the mechant scams me,\nwill the Post Office refund me?</p>\n</blockquote>\n<p>No.</p>\n<p>The only difference between a money order and cash for all practical purposes is that a money order is only payable to a named payee, while cash can be used by anyone in possession of it.</p>\n",
"score": 19
},
{
"answer_id": 87799,
"body": "<blockquote>\n<p>I think what I'm asking is, would they be more willing to\nprosecute for fraud</p>\n</blockquote>\n<p>There are two categories of fraud: criminal fraud and civil fraud. Which category your situation falls into will depend on the details of your case.</p>\n<p>If this falls under criminal fraud, then you'll need to file a complaint with the relevant law enforcement agency. Prosecutors will ultimately decide whether to file charges or not. The value/impact of the fraud generally needs to be higher than the costs of pursuing the case, so your odds are best if the perpetrator has done this to many people or if it caused you to lose a sizeable amount of money. It's worth filing a complaint even if you don't think your claim is likely to be prosecuted on its own. Multiple people filing small complaints against the same entity can have the same weight as a single large one.</p>\n<p>If this falls under civil fraud, then you'll have to file a lawsuit against the perpetrator. It's completely under your control, so you can fight them as hard as you want to. Small claims court is a good way to quickly and cheaply resolve some cases like this where the dollar amount in question is low. If you're over the small claims threshold, you'll have to decide whether it's worth the expense and hassle of going to court.</p>\n<p>In either case, using a money order is not going to change the likelihood that the perpetrator gets taken to court for fraud. The Post Office is only involved as a middleman moving money from point A to point B. It's <em>you</em> that was defrauded, so you're still the one with the standing to make a complaint about it.</p>\n<p>Your best bet to avoid this in the future is probably to use a credit card. You have rights under the <a href=\"https://www.consumerfinance.gov/ask-cfpb/how-can-i-get-a-refund-on-a-product-or-service-i-purchased-with-my-credit-card-en-1969/\" rel=\"noreferrer\">Fair Credit Billing Act</a> that help resolve disputes related to purchases. When the seller doesn't follow through on their end of the deal, you don't pay anything and the seller doesn't get any money either. Credit card companies have <a href=\"https://blog.paycafe.com/2020/02/what-are-chargebacks-and-how-do-they-hurt-my-business/\" rel=\"noreferrer\">their own tools</a> for fighting these sorts of problems. A pattern of chargebacks can result in anything from fees to losing the ability to process card payments entirely (which can decimate a business).</p>\n",
"score": 5
},
{
"answer_id": 87830,
"body": "<p>Most payment means are just that: a way to give money to someone else, and the company/organization/network/system allowing it does not care why you make the payment (other than for Fincen-type reporting, maybe) nor whether you actually got in return what you expected (goods or service).</p>\n<p>That's the case with cash, checks, wire transfers, most debit cards, money orders, Western Union, etc.</p>\n<p>For those payment means, either there's no way to have the payment reversed at all, or it can only be reversed in case of unauthorised payment.</p>\n<p>With those payment means, if you don't get the service/goods you ordered, you'll have to take the issue to the merchant itself, and if you don't get satisfaction, to the courts (usually small claims court).</p>\n<p>So, no, <strong>a money order will not provide more protection than a debit card</strong> (I would actually say less). The Post Office will <strong>not</strong> refund you if there is any issue with the merchant.</p>\n<p>Some other payment means include additional protection, where if there is an issue with the purchase, you can file a dispute or chargeback, they will ask the merchant for some evidence (e.g. that the item has been shipped and delivered), and reverse the transaction if they can't provide the evidence.</p>\n<p>This is usually the case for <strong>credit</strong> cards (usually not debit cards), as well as some platforms such as Paypal.</p>\n<p>What cases are actually covered or not vary a lot. There may also be a lot of conditions attached (e.g. Paypal will cover you if you make a purchase, not if you send money directly). In many cases, if the merchant actually shipped something and they have proof of delivery, you won't be covered if what you received isn't what you ordered, or it's faulty, or whatever other issue. Services are quite difficult to get protection for.</p>\n<p>Nevertheless, even if you don't get a refund, the payment system provider will usually take a note of the issue, and if there are too many for a given merchant, stop working with the merchant, so they're usually quite attentive to that.</p>\n",
"score": 3
},
{
"answer_id": 87800,
"body": "<p>A money order costs 99 cents in the U.S. It does not prove payment, it proves that you bought a money order. Since the question is about a debit card maybe the better question is "Will my bank do a chargeback for a debit card payment?" My guess is "No."</p>\n",
"score": 1
},
{
"answer_id": 87938,
"body": "<p>For the protection you seek, you want <em>credit cards</em> such as Visa, Mastercard or American Express.</p>\n<p>Credit cards provide that protection (merchant disagreements or fraud) by default. That works because the credit card network has a contractual relationship with the merchant.</p>\n<p>Postal money orders provide no protection of that sort. The most you can hope for is if the money order <em>is stolen</em> and cashed by someone other than the intended recipient.</p>\n<p>If you don't have good credit or don't want to debt, then use a pre-paid credit card, where you have money on deposit and the "credit limit" equals your deposit.</p>\n",
"score": 1
}
] |
[
"us-federal-government",
"postal-service",
"cftc"
] |
Would it be legal for a business to provide only unisex multi person restrooms for use?
| 7 |
https://law.stackexchange.com/questions/87852/would-it-be-legal-for-a-business-to-provide-only-unisex-multi-person-restrooms-f
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CC BY-SA 4.0
|
<p>Let's say for some reason a business owner decided to make all their restrooms unisex. These are not single-person rooms, but larger restrooms with numerous toilets (and possible urinals).</p>
<p>Is there any reason this would not be allowed legally? I know there are requirements for restrooms, but I'm not aware of any requirement that explicitly states there must be separate accommodations for separate sexes. Can an owner provide only unisex multi-person restroom if they so chose?</p>
<p>Let's use my home state of Maryland where state law is relevant.</p>
| 87,852 |
[
{
"answer_id": 87886,
"body": "<p><a href=\"/questions/tagged/usa\" class=\"post-tag\" title=\"show questions tagged 'usa'\" aria-label=\"show questions tagged 'usa'\" rel=\"tag\" aria-labelledby=\"usa-container\">usa</a></p>\n<p><strong>No.</strong></p>\n<h1>U.S. Federal Regulations</h1>\n<p>An employer having only unisex, multi-person restrooms is a violation of OSHA regulations. Sex-specific restrooms are required, at least for the employees, unless the restrooms are only single-occupancy.</p>\n<p>While, as another answer mentions, California has a law authorizing cities in California to require restrooms to be gender-neutral, such laws would be unenforceable as preempted by federal law unless/until the OSHA regulation is changed.</p>\n<p>(For those not familiar with U.S. regulations, OSHA is the federal <a href=\"https://en.wikipedia.org/wiki/Occupational_Safety_and_Health_Administration\" rel=\"noreferrer\">Occupational Safety and Health Administration</a>, which regulates workplace safety. Its regulations apply to the entire United States.)</p>\n<p><a href=\"https://www.ecfr.gov/current/title-29/subtitle-B/chapter-XVII/part-1910/subpart-J#p-1910.141(c)\" rel=\"noreferrer\">29 CFR 1910.141(c)(1)(i)</a> is the relevant regulation here (emphasis mine):</p>\n<blockquote>\n<p>Except as otherwise indicated in this paragraph (c)(1)(i), <strong>toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment</strong> in accordance with table J-1 of this section. The number of facilities to be provided for each sex shall be based on the number of employees of that sex for whom the facilities are furnished. Where toilet rooms will be occupied by no more than one person at a time, can be locked from the inside, and contain at least one water closet, separate toilet rooms for each sex need not be provided. Where such single-occupancy rooms have more than one toilet facility, only one such facility in each toilet room shall be counted for the purpose of table J-1.</p>\n</blockquote>\n<p>There is an explicit exception to the requirement for the restrooms to be sex-specific for single-occupancy restrooms, but there is no exception for restrooms designed to be occupied by multiple people as you've described.</p>\n<p>This particular regulation applies only to restrooms that are available to employees (as opposed to those exclusively for use of patrons.) Requirements for those exclusively for use of patrons are set by state-level plumbing codes.</p>\n<p><a href=\"/questions/tagged/maryland\" class=\"post-tag\" title=\"show questions tagged 'maryland'\" aria-label=\"show questions tagged 'maryland'\" rel=\"tag\" aria-labelledby=\"maryland-container\">maryland</a></p>\n<h1>Maryland Plumbing Codes</h1>\n<p>While the OSHA regulation above does not apply to restrooms for use only by patrons, Maryland's plumbing codes require separate facilities for each sex for those, too, with a few exceptions.</p>\n<p><a href=\"https://up.codes/viewer/maryland/ipc-2018/chapter/4/fixtures-faucets-and-fixture-fittings#403\" rel=\"noreferrer\">Section 403.2 of Maryland's plumbing code</a> (emphasis mine):</p>\n<blockquote>\n<p>403.2 Separate Facilities</p>\n<p><strong>Where plumbing fixtures are required, separate facilities shall be provided for each sex.</strong></p>\n<p>Exceptions:</p>\n<ol>\n<li>Separate facilities shall not be required for dwelling units and sleeping units.</li>\n<li>Separate facilities shall not be required in structures or tenant spaces with a total occupant load, including both employees and customers, of 15 or fewer.</li>\n<li>Separate facilities shall not be required in mercantile occupancies in which the maximum occupant load is 100 or fewer.</li>\n<li>Separate facilities shall not be required in business occupancies in which the maximum occupant load is 25 or fewer.</li>\n</ol>\n<p>403.2.1 Family or Assisted-Use Toilet Facilities Serving as Separate Facilities</p>\n<p>Where a building or tenant space requires a separate toilet facility for each sex and each toilet facility is required to have only one water closet, two family or assisted-use toilet facilities shall be permitted to serve as the required separate facilities. Family or assisted-use toilet facilities shall not be required to be identified for exclusive use by either sex as required by Section 403.4.</p>\n</blockquote>\n",
"score": 14
},
{
"answer_id": 87853,
"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>Gender-inclusive multi-person restroom facilities are allowed universally in Canada. I cannot prove a negative (i.e. demonstrating that there does not exist any prohibition on this kind of facility), but I can point to examples that have faced no legal challenges.<sup>1</sup> See <a href=\"https://globalnews.ca/news/5388958/gender-neutral-bathrooms-canada/\" rel=\"nofollow noreferrer\">for example</a>, and <a href=\"https://www.cbc.ca/news/canada/toronto/canadian-malls-add-gender-neutral-bathrooms-to-promote-inclusivity-1.4941128\" rel=\"nofollow noreferrer\">another</a>.</p>\n<p>Most existing designs use stalls with closing doors, along with shared space for hand washing, etc. But some provide urinals. For example, the <a href=\"https://humanrights.ca/news/all-cmhr-washrooms-become-gender-inclusive\" rel=\"nofollow noreferrer\">Canadian Human Rights Museum simply notes on signage what amenities are present in each restroom facility and then people choose which room to use regardless of gender</a>:</p>\n<blockquote>\n<p>By the end of this week, all washrooms signage will be changed to include the specific amenities available in each space, including icons for toilets, urinals and adult or child change tables.</p>\n</blockquote>\n<hr />\n<p><sup>1. This of course leaves open the possibility that there exists a prohibition but that it not been used by anyone to challenge such restroom designs, for a variety of reasons: acceptability of the practice, lack of resources, etc.</sup></p>\n",
"score": 12
},
{
"answer_id": 87857,
"body": "<p>California passed a relevant law, <a href=\"https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB1194\" rel=\"noreferrer\">SB 1194</a></p>\n<blockquote>\n<p>Notwithstanding Chapter 4 (commencing with Section 401.0) of the\nCalifornia Plumbing Code (Part 5 of Title 24 of the California Code of\nRegulations), a city, county, or city and county may require new or\nrenovated public toilet facilities within its jurisdiction to be\ndesigned, constructed, and identified for use by all genders instead\nof the design standards for separate facilities for men and women\nfound in the applicable provisions in Chapter 4 of the California\nPlumbing Code</p>\n</blockquote>\n<p>This permits but does not require lower levels of government in the state to mandate "only unisex" bathrooms, when such bathrooms are newly constructed or renovated. So it is not just legal in California, it is required.</p>\n",
"score": 9
},
{
"answer_id": 87925,
"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 the workplace, the law allows a shared space for washing hands, but the toilets themselves must be in a room with a locking door (and separate handwashing facilities) if the adjoining space is shared.</p>\n<blockquote>\n<p><strong><a href=\"https://www.legislation.gov.uk/uksi/1992/3004/regulation/20/made\" rel=\"nofollow noreferrer\">The Workplace (Health, Safety and Welfare) Regulations 1992</a></strong></p>\n<p><strong>Sanitary conveniences</strong><br />\n20.—(1) Suitable and sufficient sanitary conveniences shall be provided at readily accessible places.</p>\n<p>(2) Without prejudice to the generality of paragraph (1), sanitary conveniences shall not be suitable unless—</p>\n<p>(a) the rooms containing them are adequately ventilated and lit;<br />\n(b) they and the rooms containing them are kept in a clean and orderly condition; and<br />\n(c) <strong>separate rooms containing conveniences are provided for men and women except where and so far as each convenience is in a separate room the door of which is capable of being secured from inside.</strong></p>\n</blockquote>\n<p>and</p>\n<blockquote>\n<p>Separate [Washing] facilities are provided for men and women, except where and\nso far as they are provided in a room the door of which is capable of\nbeing secured from inside and the facilities in each such room are\nintended to be used by only one person at a time.</p>\n</blockquote>\n<hr />\n<p>The government is intending to raise legislation to make unisex toilets cubicles illegal in <em>all</em> public buildings. This will include the public-facing parts of schools and hospitals.</p>\n<blockquote>\n<p><em>All new public buildings should have separate male and female toilets,\nthe Department for Levelling Up, Housing and Communities has announced\ntoday (4 July 2022).</em></p>\n<p><em>The approach will mean women, who may need to use facilities more\noften for example because of pregnancy and sanitary needs, have\nappropriate facilities.</em></p>\n<p><Sub><sup><a href=\"https://www.gov.uk/government/news/all-public-buildings-to-have-separate-male-and-female-toilets#:%7E:text=4%20July%202022-,All%20new%20public%20buildings%20should%20have%20separate%20male%20and%20female,sanitary%20needs%2C%20have%20appropriate%20facilities.\" rel=\"nofollow noreferrer\">Press release: All public buildings to have separate male and female toilets</a></Sub></sup></p>\n</blockquote>\n",
"score": 1
}
] |
[
"united-states",
"is-x-legal",
"maryland"
] |
Contradictory terms in a contract - which would prevail?
| 1 |
https://law.stackexchange.com/questions/87877/contradictory-terms-in-a-contract-which-would-prevail
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CC BY-SA 4.0
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<p>Suppose a lease agreement that was agreed and signed by both parties specifies the following:</p>
<blockquote>
<p>Rent: £1,560.00 per calendar month (annual rent equals to eighteen thousand seven hundred and twenty pounds).</p>
</blockquote>
<blockquote>
<p>Payable: The first payment of £9,360.00p (inclusive of 6 months rent in advance) will be due on or before the signing of this agreement.</p>
</blockquote>
<blockquote>
<p>Further payments of £1,668.33 on the 29th Day of each month commencing May 2019 will be payable to the Landlord.</p>
</blockquote>
<blockquote>
<p>The tenant will not be due to pay the last two months’ rent of the tenancy, that is; November 2019 and December 2019.</p>
</blockquote>
<p>One may note that 1668.33*4/6 is actually more than £2000 less in total than 1560 per month.</p>
<p>Which of these terms should prevail in interpreting this contract? And what would be the standing if seemingly neither of the parties noticed and rent simply got paid on a schedule of 9360+1560+1560+1560+1560+1560+1560? Would the tenant have overpaid by 2686.68 and be due a refund for this amount if such was pursued within the standard civil limitation period of 6 years? Why or why not?</p>
<p>I am tempted to recall that there is something within the unfair contract terms provisions which stipulates that in case of contradictory ambiguity, the conflict ought to be resolved in favour of the consumer when interpreting, and this conclusion would seem to be further supported by the fact that as one may expect, it was the landlord who had originally drafted/supplied the contract for both parties to sign.</p>
| 87,877 |
[
{
"answer_id": 87901,
"body": "<h2>Both</h2>\n<p>See <a href=\"https://law.stackexchange.com/questions/87854/does-how-a-court-interpret-a-contract-depend-on-whether-its-a-layman-or-expert\">Does how a court interpret a contract depend on whether it's a layman or expert who wrote the contract?</a></p>\n<p>Contracts are to be interpreted, among other things, in the light of normal industry practice. Normal practice is that annual rents are payable monthly in advance - this contract is explicitly overriding that which is fine. It is also normal industry practice to give new commercial tenants a “rent holiday” - this usually occurs at the beginning of the lease to assist the tenant with moving costs but here the rent is front loaded and the holiday occurs at the end.</p>\n<p>So, the month rent is £1,560. However, for the first year the tenant will pay £9,360 in advance and then, commencing on 29 May 2019, they will pay 4 monthly payments of £1,668.33. As you say, this is a saving of more than £2,000 on the first year’s rent. As previously mentioned, it is not uncommon for the tenant to be given a discount on the first year’s rent - this is that discount.</p>\n<p>If the tenancy continues, the rent will be due on the 29th and be £1,560 subject to any adjustment clause in the lease. If such clause exists, it and possibly other clauses can refer to the “monthly rent” without having to worry about the first year modifications.</p>\n",
"score": 2
},
{
"answer_id": 87881,
"body": "<p>I'm not hundred percent sure what the contract means - so if I'm correct, then this will be held against the person creating the contract.</p>\n<p>My interpretation is that you safe about £3,000 if you stay for 12 months, by not paying for the last two months. On the other hand, if you decided to leave after 10 months, you pay a little bit more than £1560 per month. That's a reasonable interpretation of unclear terms that you could insist on. On the other hand, it may be exactly the interpretation that was intended.</p>\n",
"score": 1
}
] |
[
"contract-law",
"england-and-wales",
"residential-lease",
"interpretation",
"unfair-terms"
] |
Can someone sign a legally binding contract without giving away their identity?
| 0 |
https://law.stackexchange.com/questions/87928/can-someone-sign-a-legally-binding-contract-without-giving-away-their-identity
|
CC BY-SA 4.0
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<p>I'm a known sperm donor, donating to women via Artificial insemination who want to have a child but want to know something about the donor or avoid the cost; I also advise many women I'm not donating for. Most women want to get a contract signed saying the donor will have no legal rights after birth. In the USA there is one state that respects these contracts a very small number that don't, and the vast majority have no clear precedence either way. I tell women they are generally better off having a contract just in case it may be respected and so they should probably get one even if it's actual enforceability is unknown; plus there are some indirect benefits of the contract even if it never is used in court.</p>
<p>Many potential donors won't sign such contracts, and for good reason. Given the contracts may not work the donors prefer to protect themselves from potential child support by hiding their identity behind untraceable contact information and making it so the recipient, or the government, can't find them to force child support. Thus they really don't want to sign their full legal name on any contract. I don't really like women using those sorts of donors because of risks that are associated with using a donor you can't properly screen, but plenty still do.</p>
<p>So the question is rather one can have their cake and eat it to. What's the best way to both ensure that a donor's full identity is not revealed and yet make as clear and explicit as possible that the donor agrees to the full contents of such a contract and want it enforced if someone ever comes hunting them down for paternity and manages to find them?</p>
<p>I know in theory just having an e-mail saying "I don't want parental rights" is effectively a contract, but something like that is even less likely to be enforced then a full contract in a state without existing precedent, and it's unlikely to ease the concerns of a recipient. What's the cleanest option to give as much confidence to both sides the contract is agreed to and enforceable even if a donor refuses to give away their full legal name?</p>
<p>For instance could the donor sign a contract using his 'donor name', whatever name he uses when advertising themselves as a potential known donor? with the idea being if you have already associated that name to him to show up for child support then you have proven that name is his and thus the signature is binding?</p>
<p>I'm not including a specific state since I advise women in states all over the USA.</p>
| 87,928 |
[
{
"answer_id": 87930,
"body": "<h2>There is no requirement to name the parties to a contract</h2>\n<p>I just bought a cup of coffee. I did not give my name to the other party to that contract and while I know the name of the shop, I do not actually know the legal entity I contracted with. Nevertheless, we have a binding contract and, for example, if that coffee gave me food poisoning, I would have legal recourse under that contract.</p>\n<p>Similarly, there is no difficulty signing a contract under a pseudonym - it still creates a legally binding relationship.</p>\n<h2>The practical difficulties</h2>\n<p>While there is no legal problem, there is an evidentiary one - if someone enters a contract and later disclaims doing so, how do you prove that they did? Or vice-versa, if someone alleges that it was you that entered the contract, how do you prove that you didn’t.</p>\n<p>What you need is some way of definitively but anonymously tying the person to the contract. I can think of lots - a fingerprint, DNA, public key cryptography, a trusted third-party intermediary to name just a few. This is essentially a technical problem rather than a legal one.</p>\n",
"score": 4
}
] |
[
"united-states",
"contract-law"
] |
Why is there no limitations period on indictable offences?
| 1 |
https://law.stackexchange.com/questions/87915/why-is-there-no-limitations-period-on-indictable-offences
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CC BY-SA 4.0
|
<p>In England, it seems one can be charged with an indictable or either-way offence 70 years after the fact.</p>
<p>Is it not so that in most places this is not the case?</p>
<p>And what are the stated justifications for having no limitations period for these offences?</p>
| 87,915 |
[
{
"answer_id": 87926,
"body": "<h2>You have your reasoning backwards</h2>\n<p>In most jurisdictions, most serious crimes are not subject to a <a href=\"https://en.wikipedia.org/wiki/Statute_of_limitations\" rel=\"nofollow noreferrer\">statute of limitations</a> or have periods so long that for all practical purposes they might as well be. However, less serious crimes usually do have limitation periods that are meaningful. Sometimes they are broken into two categories, as in the UK, sometimes several categories with different periods, as in Germany.</p>\n<p>See <a href=\"https://law.stackexchange.com/questions/49941/why-do-statutes-of-limitations-exist/49947#49947\">Why do statutes of limitations exist?</a> for reasons why limitations exist. I’m sure you can see why it might be appropriate to have different limits for crimes of different seriousness - littering is in a different category of heinous to murder.</p>\n",
"score": 2
}
] |
[
"criminal-law",
"england-and-wales",
"statute-of-limitations",
"prosecution"
] |
Is a non dwelling burglary under s91b theft act 1968 strict liability?
| 2 |
https://law.stackexchange.com/questions/87918/is-a-non-dwelling-burglary-under-s91b-theft-act-1968-strict-liability
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CC BY-SA 4.0
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<p>Section 9(1)(b) of the theft act 1968 specifies an offence of entering as a trespasser and then taking or damaging things from a building. Does conviction for this offence require a demonstration of <em>mens rea</em>? Or is it a strict liability thing, where the mere acts are themselves enough?</p>
| 87,918 |
[
{
"answer_id": 87927,
"body": "<h2>Mes rea is inherent in the <a href=\"https://www.legislation.gov.uk/ukpga/1968/60/section/1\" rel=\"nofollow noreferrer\">definition</a> of theft</h2>\n<blockquote>\n<p>A person is guilty of theft if he <strong>dishonestly</strong> appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.</p>\n</blockquote>\n<p>Dishonestly is a state of mind that the prosecution must prove.</p>\n",
"score": 1
}
] |
[
"criminal-law",
"england-and-wales",
"theft",
"burglary"
] |
Are color schemes copyrightable?
| 1 |
https://law.stackexchange.com/questions/87909/are-color-schemes-copyrightable
|
CC BY-SA 4.0
|
<p>For instance the video game World of Warcraft has a color scheme for classes (can be seen at: <a href="https://wowpedia.fandom.com/wiki/Class_colors" rel="nofollow noreferrer">https://wowpedia.fandom.com/wiki/Class_colors</a>) and item rarity (white, green, blue, purple and orange).</p>
<p>Does copyright apply in this case?</p>
| 87,909 |
[
{
"answer_id": 87916,
"body": "<p>A "scheme" is likely not protected by copyright. See generally <a href=\"https://law.stackexchange.com/q/87627/46948\">In the United States, what is the threshold for "originality" in order to have copyright protection?</a> and <a href=\"https://www.copyright.gov/title17/92chap1.html#102\" rel=\"nofollow noreferrer\">17 U.S.C. 102</a> (especially 102(b)).</p>\n<p>A "scheme" is not an "original work of authorship"; it's an idea or method of associating certain colors with certain meanings. The United States Copyright Office has said it "cannot register a claim to copyright in color in and of itself or a system for matching pairs and sets of colors" (U.S. Copyright Office, <a href=\"https://www.copyright.gov/comp3/docs/compendium.pdf#page=80\" rel=\"nofollow noreferrer\"><em>Copyright of U.S. Copyright Office Practices</em>, s. 313.4(K)</a>).</p>\n<p><sup>See also <a href=\"https://law.stackexchange.com/questions/6685/can-ups-really-trademark-the-color-brown\">this Q & A</a> about trademark in color.</sup></p>\n",
"score": 2
}
] |
[
"copyright"
] |
voiding contract for research paper publishing in a journal
| 3 |
https://law.stackexchange.com/questions/87921/voiding-contract-for-research-paper-publishing-in-a-journal
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CC BY-SA 4.0
|
<p>Hypothetical scenario: a person Adam wrote a research paper in chemistry. He submitted his paper to a less prestigous online journal that publishes articles and research papers on an online website, but does not print them on a piece of paper. A part of the submission process is a contract in which author of an article gives certain rights to the journal.</p>
<p>Say four years after the mentioned journal published Adam's research paper on the journal's website, Adam submited his research paper to a more prestigious journal.</p>
<p>question: Can Adam void the contract with the less prestigious journal and submit his research paper to the more prestigious journal for publishing there?</p>
| 87,921 |
[
{
"answer_id": 87922,
"body": "<p>Adam cannot simply void the contract because he has a chance to publish in a more prestigious journal. What he can do depends on the provisions of he contract to which Adam agreed.</p>\n<p>It is likely, but far from certain, that the agreement permits Adam to cancel it under specified circumstances. If it does, and <strong>if</strong> those circumstances now apply, Adam can cancel and then submit the paper to the other journal.</p>\n<p>It is possible that the contract gives he first journal (J1)_ exclusive rights only for a limited period of time. If this is so, and if that time has passed, then Adam may submit the paper to the other journal (J2) without violating the agreement.</p>\n<p>It is likely, but not certain, that the agreement has provisions permitting the paper to be republished in another journal. If it does, than Adam may republish by complying with those provisions. They will probably include a requirement that the J@ publication include a notice similar to this:</p>\n<blockquote>\n<p>This paper was originally published in J1 in the {date} issue.</p>\n</blockquote>\n<p>J2 would have to be willing to include such a notice.</p>\n<p>The agreement between Adam and J1 will specify some things that J1 must do, as well as things that Adam must do. If J1 has failed to carry out a significant part of its obligations, for example if it never published Adam's paper, Adam <strong>may</strong> be able to <strong>rescind</strong> the agreement for <em><strong>materiel breach</strong></em>. Exactly what failures on J1's part allow this varies by jurisdiction. Adam would be wise to consult a lawyer before taking this step.</p>\n<p>Adam may request permission from J1 if none of these situations applies, and J1 may give permission. It would probably insist on a notice like the one mentioned above. But J1 does not have to grant such permission.</p>\n<p>If none of the situations above apply, and Adam cannot get (or does not ask for) permission from J1, then submitting the paper to J2 would probably violate Adam's agreement with J1. J1 could sue Adam, and perhaps J2 also. If the people running J2 know of this situation, they may well refuse Adam's paper.</p>\n<p>Adam may be able to write a new paper, based on the same research as his original paper, perhaps with more recent research added. That would not be covered by Adam's agreement with J1, and he could submit that to J2.</p>\n",
"score": 5
},
{
"answer_id": 87923,
"body": "<p>Transfer of copyright is not part of the submission process, it follows from acceptance and is (or should be) a prerequisite for publication. Prior to the publication agreement, there is typically a somewhat vague commitment where the author "promises" that the article has not been published elsewhere and is not under consideration for publication elsewhere, but these rules are not as clearly expressed as being contractual in nature, and in the case of a skeezie journal a clueless author may not have been informed of this promise.</p>\n<p>It is relatively rare for a journal to accept and publish a paper without an actual license or transfer of copyright from the author. In lieu of an explicit agreement, the publisher can at least rely on an implicit license, that is, simple permission to publish. This is not an exclusive license or a transfer of copyright. If there is no explicit written agreement, the first publisher will not be able to sue anybody. If the second publisher likewise does not get a written agreement signed, that publisher also cannot sue anybody.</p>\n<p>If there is a written agreement (with the first publisher, you can extend this to the second publisher in obvious ways), it will most likely <em>but not necessarily</em> address certain copyright formalities: what the author gives (permission to publish, vs. complete transfer of copyright), and if the agreement is to publish, it should address the durability and exclusivity of the license. The agreement <em>should</em> also include a clause indemnifying the publisher, saying that "If we get sued because of your actions, you must...." (then some clause about the author having to take responsibility). There is, or should be, a clause that avows that the author has the right to make all of these promises.</p>\n<p>If the agreement with publisher 1 is an exclusive perpetual license, or one with a long period, the author will have breached the agreement in (somewhat) later submitting the paper to another journal, and the breach arises when the second journal also publishes the article. The second journal could then be sued for copyright infringement, and if their contract includes an indemnification clause and the relevant author's representation, the second journal can force the author to bear the legal burden. If the initial agreement was non-exclusive, then the agreement with publisher 1 has not been breached. But publisher 2 might have a direct case against the author, if the agreement with publisher 2 includes language that is incompatible with the publisher 1 agreement. So if publisher 2 wants complete transfer of copyright, they will have to work out an exception for prior versions in their agreement.</p>\n<p>Publisher 2 may not be willing to make such an exception. If not, and if the author does not make publisher 2 aware of the issue, then publisher 2 might sue the author for breaching the agreement. The author might also negotiate with publisher 1 to terminate the first agreement: however, even that might be insufficient w.r.t. breach of the agreement with publisher 2.</p>\n<p>So: if there is a written agreement, read the agreement carefully, and think about whether you are making a false statement, such as that you have the right to transfer copyright to the publisher. Your earlier agreement may have taken away that right.</p>\n",
"score": 0
}
] |
[
"contract-law",
"publishing"
] |
Is there any recourse if a defendant was found guilty due to an unknowingly false claim made by a juror during deliberations swaying jurors?
| 19 |
https://law.stackexchange.com/questions/87898/is-there-any-recourse-if-a-defendant-was-found-guilty-due-to-an-unknowingly-fals
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CC BY-SA 4.0
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<p>I know that often a potential juror who is a lawyer, or anyone with direct expertise relevant to a case, will be removed by one side or the other. However, this doesn't always happen, if for example all the peremptory challenges were used up on other more worrying individuals.</p>
<p>So let's say juror Bob is someone whose profession is directly related to a major topic in a trial. Both the defendant and the prosecutor had expert witnesses making opposite claims about the evidence, and both claims were complicated enough that the average juror is going to have difficulty judging which one is correct. Still, all the other evidence would seem to suggest the defendant was innocent and the jury seems ready to say that when in steps Bob. Bob declares the expert witness for the defendant was clearly wrong because of some reason X, and given that fact they should trust he prosecution's witness that the evidence was damning.</p>
<p>The jury figures Bob should qualify as an expert witness, one that's theoretically unbiased and safe to use as a tie breaker. Thus given Bob's insistence that the defendants argument was fallacious the others are convinced to find him guilty.</p>
<p>Only once Bob heads home he does some quick research and realizes he had misremembered subject X and his argument was therefor wrong. The defendant's expert witness's argument was sound and Bob now believes not only was he wrong but that the defendant was innocent; yet largely due to Bob the man was found guilty. Bob wants to make amends and contacts the lawyer for the defendant to explain what happened.</p>
<p>Does the defendant have any recourse in this case? Or did one person's bad memory doom an innocent man?</p>
| 87,898 |
[
{
"answer_id": 87899,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"canada-container\">canada</a></p>\n<h3>What should have happened</h3>\n<p>Jurors will be instructed along the following lines (<a href=\"https://www.nji-inm.ca/index.cfm/publications/model-jury-instructions/final-instructions/duties-of-jurors/outside-information/\" rel=\"noreferrer\">Model Jury Instructions, 8.4 - Outside Information</a>):</p>\n<blockquote>\n<p>The only information that you may consider is the evidence that has been put before you in the courtroom. You must disregard completely any information from radio, television, or newspaper accounts, Internet sources, Twitter, Facebook, or any other social media, that you have heard, seen or read about in respect of this case, or about any of the persons or places involved or mentioned in it. Any other information about the case from outside the courtroom, is not evidence.</p>\n</blockquote>\n<p>They will also be instructed <a href=\"https://www.nji-inm.ca/index.cfm/publications/model-jury-instructions/final-instructions/types-of-evidence/expert-opinion-evidence-conflict-in-opinions-of-experts-of-opposing-parties-in-relation-to-an-essential-element-that-the-crown-must-prove/\" rel=\"noreferrer\">about reasonable doubt in relation to expert evidence</a>:</p>\n<blockquote>\n<p>The issue on which these experts... differ is an essential element that the Crown must prove beyond a reasonable doubt. Before you accept the opinion of the Crown’s expert on this issue you must be satisfied beyond a reasonable doubt that s/he is correct. If you are not sure that s/he is correct, then the Crown has failed to prove beyond a reasonable doubt that essential element of the offence charged.</p>\n</blockquote>\n<p>Given that the jurors were waffling, they would have had reasonable doubt and should have acquitted.</p>\n<p>Regardless, once a jury verdict is rendered, it is not possible for the trial judge to alter the verdict except where the judge learns that the jury did not render the verdict it intended (<em>R. v. Burke</em>, <a href=\"https://www.canlii.org/en/ca/scc/doc/2002/2002scc55/2002scc55.html\" rel=\"noreferrer\">2002 SCC 55</a>). Even a judge learning of potential juror bias does not have the power to declare a mistrial after the verdict is rendered: <em>R. v. Halcrow</em>, <a href=\"https://canlii.ca/t/20tmr\" rel=\"noreferrer\">2008 ABCA 319</a>.</p>\n<h3>There are very narrow grounds to appeal a verdict based on a problem with what the jury did</h3>\n<p>There may be very limited opportunities on appeal:</p>\n<ul>\n<li>if one can show a reasonable apprehension of bias based on evidence <em>that does not include matters intrinsic to the jury room</em> (e.g. <em>R. v. Mehl</em>, <a href=\"https://canlii.ca/t/jgp73\" rel=\"noreferrer\">2021 BCCA 264</a>)</li>\n<li>if the verdict was unreasonable in the sense that it was a verdict that no jury, properly instructed and acting judicially, could reasonably return—this is the standard referred to in <a href=\"https://law.stackexchange.com/a/87906/46948\">ohwilleke's answer</a> (in the circumstances you've described, it seemed that there was evidence in the record that the jury could have been convinced by, so your scenario does not seem to meet this high standard for an unreasonable verdict)</li>\n</ul>\n<h3>Jury-secrecy rules prohibit matters internal to the jury from ever being introduced as evidence</h3>\n<p>Above all of this are the statutory and common-law jury secrecy rules. The rule in Canada is this (from <em>R. v. Pan; R. v. Sawyer</em>, <a href=\"https://canlii.ca/t/5203\" rel=\"noreferrer\">2001 SCC 42</a>):</p>\n<blockquote>\n<p><strong>statements made, opinions expressed, arguments advanced and votes cast by members of a jury in the course of their deliberations are inadmissible in any legal proceedings</strong>. In particular, jurors may not testify about the effect of anything on their or other jurors’ minds, emotions or ultimate decision. On the other hand, the common law rule does not render inadmissible evidence of facts, statements or events extrinsic to the deliberation process, whether originating from a juror or from a third party, that may have tainted the verdict.</p>\n</blockquote>\n<p>The dividing line between intrinsic matters protected by the jury secrecy rules and extrinsic matters that might be able to be revealed is not always clear, but the evidence you've described seems to be an intrinsic matter:</p>\n<blockquote>\n<p>[61] Jurors are expected to bring to their task their entire life’s experiences. It is on the basis of what they know about human behaviour, knowledge that they have obviously acquired outside the courtroom, that they are requested to assess credibility and to draw inferences from proven facts. Even though not the object of evidence tendered in the trial, an opinion, a piece of general information, or <strong>even some specialized knowledge that a juror may reveal in the course of the deliberations, is not an extrinsic matter</strong>. Typically, such information would not be the object of evidence tendered at trial. It would be viewed as either irrelevant, too remote, or as attempting to usurp the functions of the jury. On the other hand, if a juror, or a third party, conveys to the jury information that bears directly on the case at hand that was not admitted at trial, by reason of an oversight or a strategic decision by counsel or, worse yet, by operation of an exclusionary rule of admissibility, then it is truly a matter “extrinsic” to the deliberation process and the fact that it was introduced into that process may be revealed.</p>\n<p>[62] The line between matters of general knowledge and information that bears directly on the case may not always be evident. <strong>For example, if a juror shares with his fellow jurors his detailed familiarity with the location where the crime was alleged to have been committed, this may be viewed as an intrinsic matter protected by the secrecy rule.</strong> If the same juror, however, went on a visit to the site, took photographs and brought them back to the jury room to support his interpretation of the facts at issue, this may be extrinsic, outside information that falls outside the secrecy rule.</p>\n</blockquote>\n",
"score": 18
},
{
"answer_id": 87905,
"body": "<p>It is an almost-universal rule that a juror cannot testify to impeach a jury verdict. <a href=\"https://www.law.cornell.edu/rules/fre/rule_606\" rel=\"noreferrer\">FRE 606</a> says</p>\n<blockquote>\n<p>A juror may not testify as a witness before the other jurors at the\ntrial...</p>\n<p>During an inquiry into the validity of a verdict or indictment, a\njuror may not testify about any statement made or incident that\noccurred during the jury’s deliberations; the effect of anything on\nthat juror’s or another juror’s vote; or any juror’s mental processes\nconcerning the verdict or indictment. The court may not receive a\njuror’s affidavit or evidence of a juror’s statement on these matters.</p>\n</blockquote>\n<p>There are exceptions, however.</p>\n<blockquote>\n<p>A juror may testify about whether:</p>\n<p>(A) extraneous prejudicial information was improperly brought to the\njury’s attention;</p>\n<p>(B) an outside influence was improperly brought to bear on any juror;\nor</p>\n<p>(C) a mistake was made in entering the verdict on the verdict form.</p>\n</blockquote>\n<p>"Outside influence" refers to "things outside the jury room". In <a href=\"https://en.wikipedia.org/wiki/Tanner_v._United_States\" rel=\"noreferrer\">Tanner v. US</a>, the court interpreted the rule as saying that even if half the jurors were high during deliberation, jurors cannot testify about this to impeach the verdict (likewise held in <a href=\"https://supreme.justia.com/cases/federal/us/574/40/#tab-opinion-3214919\" rel=\"noreferrer\">Warger v. Shauers</a>). However, <a href=\"https://www.supremecourt.gov/opinions/16pdf/15-606_886b.pdf\" rel=\"noreferrer\">Peña-Rodrigues v. Colorado</a> admits another exception, that</p>\n<blockquote>\n<p>[w]here a juror makes a clear statement indicating that he or she\nrelied on racial stereotypes or animus to convict a criminal defend\nant, the Sixth Amendment requires that the no-impeachment rule give\nway in order to permit the trial court to consider the evidence of the\njuror’s statement and any resulting denial of the jury trial guarantee</p>\n</blockquote>\n<p>The situation that you describe is thus outside the exceptions to the no-impeachment rule.</p>\n<p>There <em>can</em> be a post-verdict escape, if the jurisdiction has a law like <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=10.61&full=true\" rel=\"noreferrer\">RCW 10.61.060</a>:</p>\n<blockquote>\n<p>When there is a verdict of conviction in which it appears to the court\nthat the jury have mistaken the law, the court may explain the reason\nfor that opinion, and direct the jury to reconsider the verdict; and\nif after such reconsideration they return the same verdict it must be\nentered, but it shall be good cause for new trial. When there is a\nverdict of acquittal the court cannot require the jury to reconsider\nit.</p>\n</blockquote>\n<p>But this only related to jury mistakes of law, not mistakes of fact. In the situation that you describe, Bib cannot erase his prior misconduct by doing something to nullify the jury's vote (under his influence).</p>\n",
"score": 17
},
{
"answer_id": 87908,
"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 verdict stands</h2>\n<p>An appeal may be made to overturn a conviction and declare a mistrial where there is evidence of juror misconduct. Where this emerges before the verdict, the juror may be discharged and, if the misconduct has contaminated the rest of the jury, a mistrial may be declared. In NSW juror misconduct is a crime but this is not the case in all Australian jurisdictions.</p>\n<p><strong>There is no juror misconduct here</strong></p>\n<p>Juror misconduct only involves considering or seeking information or material that has not been entered into evidence in the trial.</p>\n<p>Bob exercised his judgement, including his general skill and knowledge in the field, in deciding which expert evidence he preferred - this is not only permitted, it is required. He shared his reasoning with the rest of the jury - totally fine. They deferred to his judgement - also fine, juries decide how they will decide what they have to decide.</p>\n<p>At no point did Bob or any other jury member seek or rely on any information that was not in evidence while they were deliberating.</p>\n<p><strong>If Bob had done “some quick research” during the trial, that <em>would</em> be jury misconduct</strong></p>\n<p>Bob is just an ex-juror who now regrets the verdict they gave - the world is full of them.</p>\n",
"score": 11
},
{
"answer_id": 87906,
"body": "<p>Rather than inquiring into what the jury actually did (except in very narrow exceptions identified by user6725), courts in common law countries reviewing convictions on appeal review the evidence that was presented at trial.</p>\n<p>The appellate courts then uphold the jury verdict in every case in which a hypothetical reasonable jury could conclude that a conviction was appropriate based upon the evidence presented at trial, whether or not the jury's verdict was actually reached for the reason or not.</p>\n",
"score": 8
}
] |
[
"united-states",
"criminal-law",
"jury",
"appeal"
] |
Can I print scans of a book's pages in my book?
| 0 |
https://law.stackexchange.com/questions/8608/can-i-print-scans-of-a-books-pages-in-my-book
|
CC BY-SA 3.0
|
<p>I made a book which uses scanned pages of an existing novel. This book was a school project, an artists' book for a graphic design course. An opportunity has presented itself to publish my book, but I assume I don't immediately have the rights to do so due to the inclusion of the scanned pages of the novel.</p>
<p>I realize the course of action is to contact the publisher, but here arises my question. The book in question is <em>Mount Analogue: A Novel of Symbolically Authentic Non-Euclidean Adventures in Mountain Climbing</em> by René Daumal. There were many different versions and runs of this book, as seen <a href="https://www.worldcat.org/title/mount-analogue-a-novel-of-symbolically-authentic-non-euclidean-adventures-in-mountain-climbing/oclc/3269033/editions?start_edition=1&sd=asc&referer=di&se=yr&qt=sort_yr_asc&editionsView=true&fq=" rel="nofollow" title="here">here</a>.</p>
<p>The exact book which I've reproduced is </p>
<blockquote>
<p>COPYRIGHT BY LIBRAIRIE GALLIMARD 1952</p>
</blockquote>
<p>and</p>
<blockquote>
<p>FIRST PUBLISHED IN 1959
© VINCENT STUART PUBLISHERS LIMITED</p>
</blockquote>
<p>Vincent Stuart Publishers Limited no longer exists.</p>
<p>Does each occurrence of this book have its own copyright respective to the person who published/issued it, or does one entity own this copyright as of today? Is it possible that there is a particular book in that list that is no longer under copyright, i.e. due to time or the disappearance of the publisher?</p>
<p>I'm trying to find out which publisher/library/institution/entity to contact, or if there is a possibility that one of the books is no longer under copyright. Any help or advice is greatly appreciated.</p>
<p>Edit, 6 months later:</p>
<p>I've spent the last few months speaking to about 10 publishers, including everyone mentioned in print in the book in mention, everyone who they directed me to, the estate of the person who translated the book, the permissions company who manages that estate, and publishers who have reprinted the book since then (in different variations and with different translations), and no one seems to have the rights (or they point me to someone else who in turn doesn't). Is is possible no one has the rights to the literal pages I'm trying to gain permission to reproduce? Also, if I've made such an attempt and cannot find the rights-holder, can I reproduce them with a footnote stating such attempt?</p>
| 8,608 |
[
{
"answer_id": 8617,
"body": "<p>The <a href=\"https://en.m.wikipedia.org/wiki/Mount_Analogue\" rel=\"nofollow noreferrer\">book</a> is well known and was published posthumously in France. Under French law, copyright exists for the life of the author + 70 years; as René Daumal died in 1944, copyright ended in 2014.</p>\n<p>However, the English translation is its own derivative work and has a copyright duration under UK law of the life of the translator + 70 years; you need to find out who this person was and when they died. Alternatively, if the translator cannot be identified then copyright lasts for 70 years from creation - at the latest this was the year of publication, 1959 meaning copyright lasts until 2029 in the translation.</p>\n<p>The translator was <em>probably</em> an employee or agent of the publisher, Vincent Stuart Publishers Ltd (VSP) so they owned the copyright (a body corporate cannot be an author but it can own copyrights created by others due to contractural arrangements). You say VSP no longer exists, if that is so you need to find out who acquired the copyright when VSP was dissolved - were they taken over, merged, liquidated or something else? Whatever happened the copyright owner passed to someone else - that's who you need to find to ask permission.</p>\n<p>Alternatively, you could make your own translation of the original French text.</p>\n<p><strong>The UK has an <a href=\"https://www.gov.uk/guidance/copyright-orphan-works\" rel=\"nofollow noreferrer\">orphan copyright</a> system</strong></p>\n<p>You can apply to the UK government for permission to publish where the copyright owner cannot be found.</p>\n",
"score": 2
}
] |
[
"copyright"
] |
What is the origin of trials by jury?
| 4 |
https://law.stackexchange.com/questions/49404/what-is-the-origin-of-trials-by-jury
|
CC BY-SA 4.0
|
<p>What is the origin of trials by jury? Were juries used in Old Testament, Greek, Roman, or Inquisition trials?</p>
| 49,404 |
[
{
"answer_id": 49421,
"body": "<p>The modern jury trial in common law countries (i.e. those with legal systems based upon those of English law) derives from <a href=\"https://en.wikipedia.org/wiki/Juries_in_England_and_Wales\" rel=\"noreferrer\">12th century English practice</a> as it evolved over time in England, and is frozen in time to some extent in U.S. practice, by the nature of the jury trial as an institution at the time that it became a constitutional right in the United States in 1789. The English jury system emerged in the 12th century in the wake of the Norman conquest of 1066 CE, and codified Norman customary law, particularly among its soldiers in courts-martial and had some resemblance to modern courts-martial under the Uniform Code of Military Justice for the United States military such as the notion that you could be judge's only by your peers in rank or your superiors, although it subsequently evolved in English civil practice.</p>\n\n<p>(England also developed in parallel non-jury courts of equity as a division of the tax collection department in England, a set of courts that were merged with courts of law in most places in the U.S. in the 19th century, the remains a distinctive source of U.S. jurisprudence in matters which are decided solely by judges. This short summary also ignores features like the coroners' juries and grand juries of English derived practice.)</p>\n\n<p>The civil jury is now almost extinct in England itself, and in most common law countries other than the U.S., except for a handful of kinds of cases (e.g. defamation, civil fraud, false imprisonment, and eminent domain cases), and in serious criminal cases. Other cases in England are now handled in the first instance by a single judge at the trial court level in most cases. Outside the common law countries, first instance trials in serious cases are usually conducted by a panel of three or five judges, with a lead judge presiding over the conduct of the matter.</p>\n\n<p>Most jury-like systems outside of common law countries are limited to serious criminal matters, and often involve a hybrid of judges and specially selected citizens with exceptional (\"blue ribbon\") qualifications who deliberate together with the judges. These systems were mostly adopted after World War II in imitation of U.S. and English practice, but some as early as the 15th century in Europe.</p>\n\n<p>The Continental European practices described in an answer by @Geremia, and likewise Greek direct democracy based trial and Sumerian trials come from a tradition that was abandoned no later than the 18th and 19th centuries in Europe as civil codes on the model of the French and German civil codes were adopted, and often much earlier. These practices are not ancestral to the current practice of jury trials in modern legal systems.</p>\n\n<p>Juries were not described as a means of adjudication in the Bible. </p>\n\n<p>In the ancient democratic Greek city-states, some city-states had direct democracy of landed males citizens and those citizens met collectively in town meeting style to address both legislative and judicial matters. The governance practice of Caribbean pirates, or some isolated bands and tribes, of small early New England Puritan communities, and of small revolutionary military units, have some similarities to this kind of practice, all of which were small communities organized on a principle of direct democracy and which arose more or less independently of each other.</p>\n\n<p>Mostly, in the Roman Empire, judges or regulated private arbitrators resolved the matters that were vested in civil and criminal juries today in places that still have them. Some serious matters <a href=\"https://en.wikipedia.org/wiki/Jury_trial#Rome\" rel=\"noreferrer\">at times in Rome</a> were decided by quasi-juries in a Greek town meeting like format with hundreds of jurors in a stadium or amphitheater. But this was never a routine means by which justice was metted out.</p>\n\n<p>Inquisitorial trials were a subset of canon law, and canon law is generally carried out by deputized clergy, in a process that was more written than oral, and in that involved active investigation by the judges rather than passive consideration of adversary presented evidence (giving rise to the modern inquisitorial judicial systems common in Continental Europe, Latin America, and much of Asia (where Maoist or Islamic legal systems are not primarily influences).</p>\n\n<p>In Medieval Times, the predominant practice was for decisions to be made by the ranking local feudal lord, or his delegate, and the role of the delegate of a feudal lord is directly ancestral to that of the common law legal system's judges, which is one of the reasons that common law judges have powers such as contempt of court, and immunities from liability not available to judges elsewhere.</p>\n\n<p>Select institutions in the Holy Roman Empire and what is now Germany in the 15th to 19th centuries appear to have been devised in imitation of the English jury system.</p>\n",
"score": 5
},
{
"answer_id": 49406,
"body": "<h1>Old Testament</h1>\n<p><a href=\"https://drbo.org/cgi-bin/d?b=drl&bk=5&ch=17&l=6-#x\" rel=\"nofollow noreferrer\">Deut. 17:6</a>:</p>\n<blockquote>\n<p>By the mouth of two or three witnesses shall he die that is to be slain. Let no man be put to death, when only one beareth witness against him.</p>\n</blockquote>\n<p><a href=\"https://drbo.org/cgi-bin/d?b=drl&bk=5&ch=19&l=15-#x\" rel=\"nofollow noreferrer\">Deut. 19:15</a>:</p>\n<blockquote>\n<p>One witness shall not rise up against any man, whatsoever the sin or wickedness be: but in the mouth of two or three witnesses every word shall stand.</p>\n</blockquote>\n<h1>High Middle Ages</h1>\n<p>According to William Thomas Walsh in <a href=\"https://isidore.co/calibre/#panel=book_details&book_id=5967\" rel=\"nofollow noreferrer\"><em>Characters of the Inquisition</em></a> ch. 3, "the beginning of our modern jury system" began with inquisitorial trials, following the <a href=\"https://www.worldcat.org/oclc/989013970\" rel=\"nofollow noreferrer\"><em>Practica</em></a> of Bernard Gui, O.P.:</p>\n<blockquote>\n<p>Another important safeguard was the custom of submitting the evidence, when it was all assembled, to a very large jury, not chosen at random as our juries are, but picked from among the most respected and learned men in the community—<em>periti et boni viri</em> ["experts and good men"]. This was the practice from the time of Gregory IX on; we find Arnaud summoning a jury of good and expert men in Languedoc, at the very inception of the Holy Office. The number was decided by the Inquisitor, but seems never to have been less than twenty; in one jury at Pamiers, in 1329, there were thirty-five, of whom nine were lawyers; at another there were fifty-one, including twenty lawyers. These “experts” considered the evidence for several days, and then advised the Inquisitor what they thought the sentence should be. He was not bound to follow their recommendations, but in practice usually did so. The jury did not know the names of the accused. This probably led to some injustice, as Vacandard points out; on the other hand, it probably saved some unpopular prisoners from the effects of prejudice or personal animosity. At any rate, the consultation of good and expert men, with all its faults and merits, was the beginning of our modern jury system.</p>\n</blockquote>\n",
"score": 2
}
] |
[
"jury",
"legal-history"
] |
What does "domestic disregarded entity" mean?
| 1 |
https://law.stackexchange.com/questions/87897/what-does-domestic-disregarded-entity-mean
|
CC BY-SA 4.0
|
<p>I'm a person that lives outside of the US. I'm in the process of creating an LLC in New Mexico, which I will own 100%.</p>
<p>I have read in different sources that foreign-owned LLCs must file the 1120 form every year.</p>
<p>I was trying to find in the IRS the documents were that is stated.
In the instructions for the 1120, I found a paragraph that which I think applies to me (<a href="https://www.irs.gov/instructions/i1120#en_US_2021_publink11455td0e333" rel="nofollow noreferrer">in General Instructions / Who must File</a>):</p>
<blockquote>
<p>Foreign-owned domestic disregarded entities.</p>
<p>If a foreign person, including a foreign corporation, wholly owns a
domestic disregarded entity (DE), the domestic DE is treated as a
domestic corporation separate from its owner (the foreign corporation)
for the limited purposes of the requirements under section 6038A that
apply to 25% foreign-owned domestic corporations. While a DE is not
required to file a U.S. income tax return, a DE covered by these rules
is required to file a pro forma Form 1120 with Form 5472 attached by
the due date (including extensions) of the return. See the
Instructions for Form 5472 for additional information and coordination
with Form 5472 reporting by the domestic DE.</p>
</blockquote>
<p>I'm having trouble to understand the term "domestic". My guess is that a domestic LLC is just simply an LLC founded in some state of the US. But I'm not 100% sure.</p>
| 87,897 |
[
{
"answer_id": 87907,
"body": "<blockquote>\n<p>My guess is that a domestic LLC is just simply an LLC founded in some\nstate of the US.</p>\n</blockquote>\n<p>This is correct.</p>\n<p>Strictly speaking, it could also be formed under the laws of the District of Columbia, or a U.S. territory such as Puerto Rico or the U.S. Virgin Islands, as opposed to a U.S. state, as well.</p>\n<p>There are also entities that can be formed formed under federal law (e.g. national banks, Amtrak), but in almost all cases they have to be classified as corporations rather than partnerships for tax purposes anyway.</p>\n<p>The bottom line is that a New Mexico LLC owned 100% by a Mexican person is taxed as a C corporation for purposes of U.S. federal income tax law.</p>\n",
"score": 2
}
] |
[
"united-states",
"tax-law",
"definition"
] |
How do you get legal advice on a question from a lawyer?
| 0 |
https://law.stackexchange.com/questions/87895/how-do-you-get-legal-advice-on-a-question-from-a-lawyer
|
CC BY-SA 4.0
|
<p>It's common to respond to requests for specific legal advice on this site with something along the lines of "you need to hire a lawyer." I've said it myself. However, I'm not exactly sure what it involves. If I just want to know whether or not something is legal, or have some other question to ask a lawyer (not a case that will require continuing work; just a question), how exactly do I hire a lawyer? Do I do it in person at the lawyer's office? Do I call? Do I do something online? How much should I expect to pay?</p>
| 87,895 |
[
{
"answer_id": 87896,
"body": "<p>Normally, you call, briefly discuss what you want, and schedule a meeting for paid consultation. The charge for a one hour consultation would vary greatly but would typically be $100-$500. You may need to sign a fee agreement and provide a retainer for the fees to be paid in advance, but different lawyers have different policies.</p>\n",
"score": 6
},
{
"answer_id": 87904,
"body": "<h2>The same way you get medical advice from a doctor</h2>\n<p>You contact them, explain your issue, and arrange an appointment.</p>\n",
"score": 2
}
] |
[
"united-states",
"lawyer",
"advice"
] |
Does doing reaction/commenting video of other people videos cause copyright infringement? if so, who is the copy holder of the original video?
| 2 |
https://law.stackexchange.com/questions/87900/does-doing-reaction-commenting-video-of-other-people-videos-cause-copyright-infr
|
CC BY-SA 4.0
|
<ol>
<li><p>People do reaction video of other people videos, would that make a "huge" different if difference if the people do get permission from the original copyright holder?</p>
</li>
<li><p>Who become the copyright holder of the videos once people upload their online like Tiktok/Youtue/Facebook/Twitter?</p>
</li>
<li><p>What are some ways to obtain a copy right usage from the copyright holder?(when their copyright usage is not public available)</p>
</li>
</ol>
<p>Thank you.</p>
| 87,900 |
[
{
"answer_id": 87903,
"body": "<p>This varies significantly with the law of he country involved.</p>\n<p>In the US, creating a video which is composed largely of reactions to or comments on a previous video (the same is true of books or other kinds of works) is often an instance of <em><strong>fair use</strong></em>, and in such cases is not an infringement of copyright. However, if more of the original is included than is needed for the reactions and commentary to be understood, then it <strong>may</strong> be held not to be fair use, and constitute copyright infringement instead. That is a highly fact-dependent matter, which is decided case-by-case, if the copyright owner chooses to bring an infringement suit.</p>\n<p>If one gets permission to use a video as part of a reaction video, then it is surly not infringement provided that the terms of the permission, whatever they may be, are complied with.</p>\n<blockquote>\n<p>Who become the copyright holder of the videos once people upload their online like Tiktok/Youtue/Facebook/Twitter?</p>\n</blockquote>\n<p>Uploading a video does not change the copyright ownership of the video. The copyright still belongs to whoever it belonged to before the upload. Most often the person who created the video.</p>\n<p>It is possible for the agreement permitting upload to include a provision by which the copyright is transferred to the hosting service. But that is quite rare. In the US a copyright transfer requires a document written and signed by the copyright owner or the owner's authorized agent. What is much more common is an agreement by which certain rights in the video are licensed to the platform on which it is to be displayed. Such an agreement does not change the copyright ownership, but does grant rights, often significant right, to the platform.</p>\n<blockquote>\n<p>What are some ways to obtain a copy right usage from the copyright holder?(when their copyright usage is not public available)</p>\n</blockquote>\n<p>By a "copyright usage" I suspect the OP means the right to use the copyright, what is more normnally called a <em><strong>license</strong></em> or simply <strong>permission</strong>*.</p>\n<p>The two main ways to get a license are:</p>\n<ol>\n<li>to ask for it, and have thew owner (or owner's agent) agree, possibly after negotiation on terms and fees);</li>\n<li>For then owner to offer a license without being asked, possibly to anyone who will comply with the owner's terms, which may include a license fee.</li>\n</ol>\n<p>Legally, both of these methods will result in an agreement (usually a contract) that permits use of the work withing certain specified limits and in compliance with specified terms.</p>\n",
"score": 2
}
] |
[
"copyright",
"copyright-notice",
"copyright-transfer"
] |
Must conflicts between different terms of a contract be resolved in favour of a consumer?
| 1 |
https://law.stackexchange.com/questions/87879/must-conflicts-between-different-terms-of-a-contract-be-resolved-in-favour-of-a
|
CC BY-SA 4.0
|
<p>I’m inclined to recall that there was something or other in one of the statutory non exhaustive lists of example unfair contract terms that says this, but I can’t find the specific one that I’m thinking of at the moment.</p>
<p>Is this a correct application of the unfair contract terms laws?</p>
| 87,879 |
[
{
"answer_id": 87902,
"body": "<h2>No</h2>\n<p>The concept of an “unfair” contract or term does not exist at common law - you are free to enter, and be bound by, whatever contracts you like whether they are objectively fair or not.</p>\n<p>“Unfair” is therefore a creature of statute and what is “unfair” and what happens if it is are determined by statute.</p>\n<p>In England and Wales, there are 3 pieces of legislation that deal with <a href=\"https://en.wikipedia.org/wiki/Unfair_terms_in_English_contract_law\" rel=\"nofollow noreferrer\">unfair terms</a>:</p>\n<ul>\n<li><a href=\"https://en.wikipedia.org/wiki/Unfair_Contract_Terms_Act_1977\" rel=\"nofollow noreferrer\">The Unfair Contracts Terms Act 1977</a> primarily limits disclaimers of liability which renders excessive terms either unenforceable or subject to reasonableness limitations.</li>\n<li><a href=\"https://en.wikipedia.org/wiki/Unfair_Terms_in_Consumer_Contracts_Regulations_1999\" rel=\"nofollow noreferrer\">Unfair Terms in Consumer Contracts Regulations 1999</a> covers any unfair terms in a consumer contract that do not involve the "definition of the main subject matter of the contract", or terms which relate to "price or remuneration" of the thing sold. A term is unfair “ if it is not one that is individually negotiated, and if contrary to good faith it causes a significant imbalance in the rights and obligations of the parties.” An unfair term is not binding on the consumer.</li>\n<li><a href=\"https://en.wikipedia.org/wiki/Consumer_Protection_from_Unfair_Trading_Regulations_2008\" rel=\"nofollow noreferrer\">Consumer Protection from Unfair Trading Regulations 2008</a> covers B2C relationships in general and is not specifically about contract terms.</li>\n</ul>\n",
"score": 2
}
] |
[
"contract-law",
"england-and-wales",
"interpretation",
"unfair-terms"
] |
Does gdpr.eu violate GDPR compliancy?
| 9 |
https://law.stackexchange.com/questions/87887/does-gdpr-eu-violate-gdpr-compliancy
|
CC BY-SA 4.0
|
<p>As I understand it, the GDPR does not permit sending of personal information (which includes the IP address) without prior consent by the user. If that's true, it's basically impossible to fetch any external resources on a website without asking for consent first, so not even style sheets or JavaScript libraries from CDNs. Recently, a <a href="https://www.golem.de/news/landgericht-muenchen-einbindung-von-google-fonts-ist-rechtswidrig-2202-162826.html" rel="noreferrer">German court even fined a website owner for using Google webfonts (German source: golem.de)</a>. People at my workplace where advised to host Google fonts locally because of that decision.</p>
<p>That being said, while I was reading about this regulation on <a href="https://gdpr.eu/" rel="noreferrer">https://gdpr.eu/</a>, I noticed that the site itself uses Google webfonts without asking for user consent (see screenshot).</p>
<p><a href="https://i.stack.imgur.com/S5jbL.png" rel="noreferrer"><img src="https://i.stack.imgur.com/S5jbL.png" alt="Screenshot of a web page on gdpr.eu in the Firefox browser. The opened network analysis tab shows a GET request to fonts.googleapis.com" /></a></p>
<p>What I would like to know is basically:
could gdpr.eu be in violation of the GDPR? Or am I misunderstanding the regulation? I am honestly confused. The consent form on the site also implicitly assumes consent, which I thought <a href="https://law.stackexchange.com/questions/28959/required-data-entry-seemingly-against-gdpr">was also a violation</a>. I've read some questions about the GDPR on here and information from gdpr.eu and other websites, but it's still very unclear to me what is legal and what is not.</p>
<p>I know that a EU regulation can be implemented and interpreted differently from country to country, and that a single court ruling in Germany doesn't even mean that the national law was correctly applied. From what I've read, I get the impression that this particular ruling was not unlikely to be overturned by a higher instance, if it came down to it. So my question probably both pertains to German law specifically and the EU regulation itself.</p>
| 87,887 |
[
{
"answer_id": 87892,
"body": "<blockquote>\n<p>As I understand it, the GDPR does not permit sending of personal information (which includes the IP address) without prior consent by the user.</p>\n</blockquote>\n<p>That's not exactly true, consent is merely one of six possible legal basis for processing (article 6). For example, processing of personal data can also be lawful if it necessary to perform a contract, legally mandatory, or in the public interest.</p>\n<p>The court decision acknowledges that but rules out another basis in this case because it considers that it is possible to serve fonts without relying on a third-party (<em>[…] der Einsatz der Schriftarten auch möglich ist, ohne dass eine Verbindung von Besuchern zu externen Servern hergestellt werden muss</em>). Confusingly, it only refers to article 6(1)(f) when it seems to me that (b) would also be plausible but maybe this wasn't raised during the proceedings?</p>\n<p>If the data controller cannot invoke any other basis for the lawfulness of the processing then yes, the only thing left is asking for consent, i.e. invoking article 6(1)(a). But that doesn't mean that you should expect to be asked for consent each and every time your personal information is being used.</p>\n<blockquote>\n<p>The consent form on the site also implicitly assumes consent, which I thought was also a violation.</p>\n</blockquote>\n<p>Yes, implying consent doesn't really make sense under the GDPR definition (article 4, see also article 7):</p>\n<blockquote>\n<p>‘consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject's wishes by which he or she, by a statement or by a clear affirmative action</p>\n</blockquote>\n<p>European data protection authorities have <a href=\"https://edpb.europa.eu/sites/default/files/files/file1/edpb_guidelines_202005_consent_en.pdf\" rel=\"noreferrer\">issued guidelines</a> that detail what that means and clearly reject “bundling” different data processing. The regulation also makes it clear that data subjects should be able to withdraw consent at any time, which does not seem possible with the fonts on golem.de</p>\n<p>My reading of all this is that assuming consent because you are using a service (or even created an account or checked a box at some point) simply isn't valid consent. Either you don't need consent at all in the first place or what you need is freely given, specific consent and “implying” consent or bundling it with a registration process achieves exactly nothing. But this is still extremely common and it might take some time before enforcement and case law definitively settle this question.</p>\n<p>Smart data controllers trying to avoid collecting consent (like Meta) have abandoned any claim that signing up to the their services would constitute consent (because that's transparently not the case) and try to bypass the issue entirely using another basis like contractual necessity. This is also being litigated.</p>\n<blockquote>\n<p>I know that a EU regulation can be implemented and interpreted differently from country to country, and that a single court ruling in Germany doesn't even mean that the national law was correctly applied. From what I've read, I get the impression that this particular ruling was not unlikely to be overturned by a higher instance, if it came down to it. So my question probably both pertains to German law specifically and the EU regulation itself.</p>\n</blockquote>\n<p>That sounds more like the way EU directives work. Regulations are supposed to be immediately applicable (no implementation in national law necessary) with minimal differences between countries (except when they explicitely provide for that). Of course, enforcement would still mostly be in the hands of national court systems and (in Germany) provincial data protection authorities but there are mechanisms to ensure consistency (the European Data Protection Board, prejudicial questions to the CJEU, infringement proceedings from the European Commission…).</p>\n",
"score": 8
}
] |
[
"gdpr",
"privacy",
"data-protection",
"regulations",
"google"
] |
Tenants in Common with Rights of Survivorship
| 1 |
https://law.stackexchange.com/questions/87864/tenants-in-common-with-rights-of-survivorship
|
CC BY-SA 4.0
|
<p>Does anyone know if when you have a deed for "tenants in common with rights of survivorship" and a tenant sells their interest before someone has died? Does the buyer get to keep it, or would it be transferred to someone else?
We are aware that "tenants in common with rights of survivorship" does not technically exist in law.
My jurisdiction is Indiana.</p>
| 87,864 |
[
{
"answer_id": 87894,
"body": "<blockquote>\n<p>Does anyone know if when you have a deed for "tenants in common with\nrights of survivorship" and a tenant sells their interest before\nsomeone has died? Does the buyer get to keep it, or would it be\ntransferred to someone else? We are aware that "tenants in common with\nrights of survivorship" does not technically exist in law. My\njurisdiction is Indiana.</p>\n</blockquote>\n<p>The difficulty is that "tenants in common with rights of survivorship" is not a recognized interest in real property, so its meaning is unclear.</p>\n<p>Ordinarily, "joint tenants with rights of survivorship" is the form of ownership used to create a right of survivorship in co-owned property not owned by an entity. A joint tenancy can be severed is converted by operation of law to a tenancy in common without a right of survivorship by a transfer of one joint tenant's interest to a third-party.</p>\n<p>You could also imagine a situation where, for example, mother conveys real estate to her daughter, subject to a concurrent life estate for the mother that is reserved by her in the conveyance.</p>\n<p>In that case, if the mother conveyed her life estate interest to a third-party, the interest that the third-party would receive in the real property would be a "life estate <em>per autre vie</em>", which would have all of the rights of a life estate owner in the property but would terminate at the death of the mother.</p>\n<p>Another way to interpret the intent of the parties in a "tenants in common with right of survivorship" deed is to assume that it was attempting to create a "<a href=\"https://en.wikipedia.org/wiki/Fee_tail\" rel=\"nofollow noreferrer\">fee tail</a>":</p>\n<blockquote>\n<p>In English common law, fee tail or entail is a form of trust\nestablished by deed or settlement which restricts the sale or\ninheritance of an estate in real property and prevents the property\nfrom being sold, devised by will, or otherwise alienated by the\ntenant-in-possession, and instead causes it to pass automatically by\noperation of law to an heir determined by the settlement deed. The\nterm fee tail is from Medieval Latin feodum talliatum, which means\n"cut(-short) fee" and is in contrast to "fee simple" where no such\nrestriction exists and where the possessor has an absolute title\n(although subject to the allodial title of the monarch) in the\nproperty which he can bequeath or otherwise dispose of as he wishes.</p>\n</blockquote>\n<p>Most common law jurisdictions, including all but four U.S. states, have abolished or never had the "fee tail" form of ownership, either due to a statute or case law (sometimes case law interpreting the rule against perpetuities), at least outside of a true equitable interest under the terms of a trust with a trustee holding legal ownership of the property, or a will contract.</p>\n<p>For example, Fee tail as a legal estate in England (after being created by statute in 1285 CE) was abolished by the Law of Property Act 1925. It was abolished in Ireland in 2009. Scotland abolished the fee tail estate in the year 2000. Title registration requirements effectively abolished it in New Zealand and perhaps in Australia as well, although I don't have an exact timeline for that. Per the "fee tail" link above:</p>\n<blockquote>\n<p>The fee tail has been abolished in all but four states in the United\nStates: Massachusetts, Maine, Delaware and Rhode Island. However, in\nthe first three states, property can be sold or deeded as any other\nproperty would be, with the fee tail only applying in case of death\nwithout a will. In Rhode Island, a fee tail is treated as a life\nestate with remainder in the life tenant's children. New York\nabolished fee tail in 1782, while many other states within the U.S.\nnever recognized it at all. In most states in the United States, an\nattempt to create a fee tail results in a fee simple; even in those\nfour states that still allow fee tail, the estate holder may convert\nhis fee tail to a fee simple during his lifetime by executing a deed.</p>\n<p>In Louisiana, the common law concept of estates in land never existed.\nThe concept of forced heirship and the marital portion protects force\nheirs and surviving spouses from total divestment of value of the\nestate of the decedent, who has a duty to provide for their care.</p>\n<p>Fee tail-like restrictions still exist though contractual obligations.\nFor example, owners of inholdings inside public lands may be prevented\nfrom selling or giving their land to non-family members. In this case,\nthe restrictions result from an agreement between the government and\nthe land owner, and is not a part of a deed or settlement.</p>\n</blockquote>\n<p>In jurisdictions that have abolished non-equitable "fee tail" title to property, the survivorship elements of the fee tail deed are deemed to be void restraints on alienation as a matter of law because this violates public policy, and the deed purporting to create a "fee tail" instead creates tenant in common ownership shared by the present interest owners of the property under the fee tail.</p>\n<p>Because a "tenancy in common with right of survivorship" is not a well defined estate in real property the rights that a third-party transferee of a person who is a "tenancy in common with right of survivorship" is undefined, and there would probably have to be a quiet title lawsuit to determine what rights the transferee had in the property.</p>\n<p>There is very little case law on this point and testimony regarding the intent of the parties in titling the property in this manner would be relevant.</p>\n<p>Probably the mostly likely outcome in the absence of other evidence would be to reform the "tenancy in common with right of survivorship" deed into a "joint tenancy with right of survivorship" deed, and then to treat the joint tenancy as severed and the right of survivorship terminated if one of the co-owners of the property titled in "tenancy in common with right of survivorship" to a third-party transferee, leaving the other co-owners and the transferee as tenants in common without a right of survivorship.</p>\n",
"score": 1
}
] |
[
"property",
"indiana"
] |
ICCPR article 26 "birth or other status"
| 2 |
https://law.stackexchange.com/questions/87883/iccpr-article-26-birth-or-other-status
|
CC BY-SA 4.0
|
<p>What does birth or other status mean in <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights" rel="nofollow noreferrer">Article 26 of International Covenant on Civil and Political Rights</a>?</p>
<p>Does it have the same connotation as "political or other opinion" in that the terms birth and other status is to be read together?</p>
| 87,883 |
[
{
"answer_id": 87885,
"body": "<p>"Birth or other status" are just the final two entries in the list identifying who is protected under <a href=\"https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights\" rel=\"nofollow noreferrer\">Article 26</a> ICCPR:</p>\n<blockquote>\n<p>All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground <strong>such as</strong> race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.</p>\n</blockquote>\n<p>"<em>Such as</em>" indicates the list is not exhaustive, so "<em>other status</em>" could, for example, refer to marriage or civil partnership.</p>\n<p>And the lack of a comma in "<em>political or other opinion</em>" just groups those two together as related characteristics.</p>\n",
"score": 2
}
] |
[
"legal-terms",
"human-rights",
"definition"
] |
What triggers the need for a DBA exactly?
| 2 |
https://law.stackexchange.com/questions/87889/what-triggers-the-need-for-a-dba-exactly
|
CC BY-SA 4.0
|
<p>Lets say an LLC is named something generic like: "Iron Chimpanzee Company" and then the members decide to create three websites specifically for the sale of boats, steaks, and blind dates.</p>
<p>Can the company name the sites "Iron Chimpanzee Boats", "Iron Chimpanzee Steaks", and "Iron Chimpanzee Dates" without any DBAs?</p>
<p>How is this type of thing determined?</p>
| 87,889 |
[
{
"answer_id": 87891,
"body": "<p>The basic requirement is that any communication using the trade name be possible to trace back to the LLC using the trade name, either with a disclosure in the communication itself, or with a trade name (a.k.a. doing business as a.k.a. dba) registration that links the trade name to the entity in the public record.</p>\n<p>If this is not done, business conducted in the trade name may be treated as a sole proprietorship or general partnership of the people actually conducting the activity, rather than an activity of the limited liability company behind it, thus depriving those people of limited liability protection.</p>\n",
"score": 4
}
] |
[
"united-states",
"florida",
"limited-liability-company"
] |
Do US gag orders block seeking of legal counsel?
| 3 |
https://law.stackexchange.com/questions/87831/do-us-gag-orders-block-seeking-of-legal-counsel
|
CC BY-SA 4.0
|
<p>Do gag orders issued in the United States of America prevent you from seeking legal counsel and discussing the case?</p>
<p>I expect that anyone who has received a gag order may not understand the legalize of the order and what they can and cannot do. Naturally, I'd expect them to email some lawyers to ask for advice.</p>
<p>By definition, a gag order prevents you from speaking about it. But does that also apply to seeking legal counsel?</p>
<p>I'm sure there have been countless cases of gag orders in the U.S., but I also expect that we don't know about most instances due to, well, the gag order. Two exceptions come to mind:</p>
<ol>
<li><a href="https://en.wikipedia.org/wiki/American_Civil_Liberties_Union_v._Ashcroft" rel="nofollow noreferrer">Calyx Internet Access, 2004</a></li>
<li><a href="https://en.wikipedia.org/wiki/Lavabit#Suspension_and_gag_order" rel="nofollow noreferrer">Lavabit, 2013</a></li>
</ol>
<p>In the first case, Nicholas Merrill was represented by the ACLU. Was it a violation of the gag order for Merill to contact the ACLU?</p>
<p>In the US, does a gag order prevent you from emailing organizations with lawyers for the purpose of seeking legal advice?</p>
| 87,831 |
[
{
"answer_id": 87890,
"body": "<p>The issue raised by the post primarily comes up in the context of a "National Security Letter" which is a form of administrative subpoena which a recipient is not allowed to disclose having received in many cases.</p>\n<p>For example, the case of <em>ACLU v. Ashcroft</em>, linked in the question, and pertaining to Calyx Internet Access (2004), involved a National Security Letter. There was also a National Security Letter component to the Lavabit (2013) case cited in the question.</p>\n<p>But the National Security Letter statute itself (at least as presently amended) expressly allows conferral with counsel about it. The relevant statute is 18 U.S.C. § 2709(c)(2) which provides:</p>\n<blockquote>\n<p>(A) In general. — A wire or electronic communication service provider\nthat receives a request under subsection (b), or officer, employee, or\nagent thereof, may disclose information otherwise subject to any\napplicable nondisclosure requirement to —</p>\n<p>(i) <strong>those persons to whom disclosure is necessary in order to comply\nwith the request</strong>;</p>\n<p>(ii) <strong>an attorney in order to obtain legal advice or assistance\nregarding the request</strong>; or</p>\n<p>(iii) other persons as permitted by the Director of the Federal Bureau\nof Investigation or the designee of the Director.</p>\n</blockquote>\n<p>Even if this exception were not in the law, however, this exception would probably be implied in law, because the courts have held that National Security Letters and similar non-disclosure agreements must provide a timely opportunity for judicial review, which implicitly includes a right to counsel in the proceeding. <em>See <a href=\"https://ons/2017/07/17/16-16067.pdf\" rel=\"nofollow noreferrer\">Under Seal v. Sessions</a></em>, Slip Op. at 34-40 (9th Cir. 2017).</p>\n<p>Similarly, a Medicaid gag rule, that prohibited people from conferring with lawyers regarding legal options for circumventing means tests for the Medicare nursing home program, were held unconstitutional. <em>See, e.g., Zahner v. MacKereth</em>, Civil No. 11-306 Erie (W.D. Pa. Jan. 16, 2014, not overruled or negatively treated on appeal).</p>\n<p>There are a few tribunals, primarily the <a href=\"https://www.fisc.uscourts.gov/\" rel=\"nofollow noreferrer\">Foreign Intelligence Surveillance (FISA) Court</a> (that provides probable cause and legality review for national security inquires) and the <a href=\"https://en.wikipedia.org/wiki/Guantanamo_military_commission\" rel=\"nofollow noreferrer\">military commissions in Guantanamo Bay, Cuba</a>, in which a lawyer representing a party in those tribunals must have a security clearance. But, the requirement of a security clearance to represent someone in the tribunal would not apply to pre-litigation legal counsel to review and response to the National Security Letter.</p>\n",
"score": 3
}
] |
[
"united-states",
"national-security"
] |
Falsely accused of following someone in Germany
| -1 |
https://law.stackexchange.com/questions/87882/falsely-accused-of-following-someone-in-germany
|
CC BY-SA 4.0
|
<p>I am a foreigner living in Germany for some years. Unfortunately on one public holiday, I threw some bottles in nearby trash dedicated for glass where there were not many houses. I wore a latex gloves during this process so as to not dirty my hands. I came back to my car to leave to another place. After a while I noticed a car was following me. I stopped my car in a nearby parking space. A lady from the car that was following me asked me to go near her. Suddenly she started saying I was following her with gloves on my hand etc. She said she could call the police. I explained that it could be a misunderstanding. I do not even remember seeing her face. Funny part is probably I don't think I'll recognize her if I see her next time. It could be that I live near her and maybe I could walk into her again by chance. I have no idea what I can do to protect myself here from false accusations.</p>
| 87,882 |
[
{
"answer_id": 87884,
"body": "<p>She followed you, right? No, you can't protect from false accusations. But worst case, the police will ask you what happened, and you say what you know. Especially that you haven't followed her. And that on an earlier occasion, she followed you in her car and accused you. Don't apologise for anything because you haven't done anything wrong.</p>\n<p>Since this is in the worst case her word against yours, nothing will happen. And maybe you are not the only one she accuses.</p>\n",
"score": 2
},
{
"answer_id": 87888,
"body": "<blockquote>\n<p>Suddenly she started saying I was following her with gloves on my hand etc.<br />\nShe said she could call the police.</p>\n</blockquote>\n<p>Based on your account, this situation doesn't even begin - <strong>in any way, shape or form</strong> - to fulfill the main condition of <a href=\"https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p2263\" rel=\"nofollow noreferrer\">§238(1) Stalking (Nachstellung) StGB</a>.</p>\n<p>This is, supposedly, a <strong>one time event</strong>, but a main condition is that it must have been done <strong>repeatedly</strong>.</p>\n<p>Another main condition ('in a manner suited to not insignificantly restricting that person’s lifestyle') is also not apparent.</p>\n<p>Should this woman do this again (<strong>repeatedly</strong>), then the sub-conditions 1 and 4 (threatening the other person ... liberty) would then be fulfilled making charges <strong>against</strong> her a possible option on your part.</p>\n<hr />\n<blockquote>\n<p><a href=\"https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p2263\" rel=\"nofollow noreferrer\">§238 - Stalking (Nachstellung) - German Criminal Code (StGB)</a></p>\n<p>(1) Whoever, without being authorised to do so, stalks another person in a manner suited to not insignificantly restricting that person’s lifestyle <strong>by repeatedly</strong></p>\n<ol>\n<li>seeking the other person’s physical proximity,</li>\n<li>trying to establish contact with the other person by means of telecommunications or other means of communication or through third parties,</li>\n<li>improperly using the other person’s personal data for the purpose of<br />\na) ordering goods or services for that person or<br />\nb) inducing third parties to make contact with that person,</li>\n<li>threatening the other person, one of his or her relatives, or someone close to him or her with causing injury to life or physical integrity, health or liberty,</li>\n<li>committing an offence under section 202a, 202b or 202c to the detriment of that person, one of his or her relatives or another person close to him or her,</li>\n<li>disseminating or making available to the public a depiction of that person, one of his or her relatives or another person close to him or her,</li>\n<li>disseminating or making available to the public content (section 11 (3)) suited to disparaging or negatively affecting public opinion about that person by feigning that person’s authorship or</li>\n<li>committing an act comparable with nos. 1 to 7</li>\n</ol>\n<p>incurs a penalty of imprisonment for a term not exceeding three years or a fine.<br />\n(2) ...<br />\n(3) ...</p>\n</blockquote>\n<hr />\n<p><strong>Sources</strong>:</p>\n<ul>\n<li><a href=\"https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p2263\" rel=\"nofollow noreferrer\">§238 - Stalking (Nachstellung) - German Criminal Code (StGB)</a></li>\n</ul>\n",
"score": 2
}
] |
[
"criminal-law",
"privacy",
"germany"
] |
Can OpenAI enforce their T&Cs requiring attribution for ChatGPT generated content?
| 2 |
https://law.stackexchange.com/questions/87873/can-openai-enforce-their-tcs-requiring-attribution-for-chatgpt-generated-conten
|
CC BY-SA 4.0
|
<p>OpenAI has the following clause in <a href="https://openai.com/api/policies/sharing-publication/" rel="nofollow noreferrer">their T&Cs</a>:</p>
<blockquote>
<p>Creators who wish to publish their first-party written content (e.g.,
a book, compendium of short stories) created in part with the OpenAI
API are permitted to do so under the following conditions:</p>
<ul>
<li>The published content is attributed to your name or company.</li>
<li>The role of AI in formulating the content is clearly disclosed in a way that no reader could possibly miss, and that a typical reader
would find sufficiently easy to understand.</li>
<li>Topics of the content do not violate OpenAI’s Content Policy or Terms of Use, e.g., are not related to political campaigns, adult
content, spam, hateful content, content that incites violence, or
other uses that may cause social harm.</li>
<li>We kindly ask that you refrain from sharing outputs that may offend others.</li>
</ul>
</blockquote>
<p>Would OpenAI have any legal recourse against someone who violates these T&Cs? As per my understanding, machine-generated texts <a href="https://www.smithsonianmag.com/smart-news/us-copyright-office-rules-ai-art-cant-be-copyrighted-180979808/" rel="nofollow noreferrer">are not copyrightable</a>, so OpenAI won't be able to sue you for a copyright violation. They obviously could shutdown your account but would they have any means to enforce their attribution rules via the legal system?</p>
| 87,873 |
[
{
"answer_id": 87876,
"body": "<h2>Yes</h2>\n<p>The terms of service are a contract. The primary remedy for a breach of contract are a suit for damages. If your breach damages OpenAI in a quantifiable way (including reputational damage), you can be sued.</p>\n",
"score": 2
}
] |
[
"united-states"
] |
What is the status of Meta's fine for breaking the EU privacy laws during the appeal?
| 3 |
https://law.stackexchange.com/questions/87839/what-is-the-status-of-metas-fine-for-breaking-the-eu-privacy-laws-during-the-ap
|
CC BY-SA 4.0
|
<p>Today it was in the <a href="https://www.independent.ie/business/technology/meta-fined-390m-in-ireland-privacy-bill-now-stands-at-13bn-42262178.html" rel="nofollow noreferrer">news</a> that Meta (owner of facebook) was fined 390 million Euros for GDPR violation by the Irish data protection officer. They were also told they have 3 months to change their user interaction so that it will satisfy the GDPR. Meta said they will appeal the decision.</p>
<p>What is the status of the fine during the appeal process? Does Meta need to put € 390m into some kind of escrow account now? Do they need to change their user interaction now? Or do they count as innocent for now and can continue as before until the appellate court comes to a decision one way or another (presumably this will take a few years)?</p>
| 87,839 |
[
{
"answer_id": 87867,
"body": "<h2>The court has discretion to stay the punishment pending an appeal - but it rarely happens</h2>\n<p>As of now, Meta is guilty and must serve its punishment. That is, it must pay the fine to the Irish government by the time required. They can, like everyone else, ask the court to agree a payment plan - if they can demonstrate that the do not have enough liquidity to pay the fine and keep operating it will usually be granted.</p>\n<p>The appeals court can, but rarely does, stay the judgement pending the appeal. This only happens where it is plain on the face of the record that something clearly went wrong with the trial - we’re talking severe and obvious judicial misconduct here.</p>\n<p>If they succeed in overturning the conviction or having the fine reduced, any overpayment will be refunded with interest. There is no need for escrow because the Irish government is not an insolvency risk.</p>\n",
"score": 1
}
] |
[
"european-union",
"data-protection",
"appeal"
] |
Do online business LLCs have to foreign file in the state that the members live in?
| 1 |
https://law.stackexchange.com/questions/87872/do-online-business-llcs-have-to-foreign-file-in-the-state-that-the-members-live
|
CC BY-SA 4.0
|
<p>If I live in Florida and want to form my LLC in Wyoming for the better protections, will Florida still make me foreign file?</p>
<p>The business is entirely online and I will be renting a cheap, physical address in Wyoming from Northwest to receive all of my mail and act as the primary address.</p>
| 87,872 |
[
{
"answer_id": 87874,
"body": "<p>The place where the members of an LLC (i.e. its owners) live is irrelevant. Foreign filing is required in states where the company does business.</p>\n<p>Also, the mere fact that a company receives mail at an address does not itself establish that this is where the company is doing business.</p>\n<p>If the person or people who carry out the work of an LLC organized in Wyoming actually do the work in Florida, it should foreign file in Florida. It may also want to foreign file in places where it sells its online products to customers, especially if it is foreseeable that it might need to sue (e.g. for nonpayment) someone in a state where customers are located.</p>\n",
"score": 1
}
] |
[
"florida",
"limited-liability-company"
] |
Why is a cover song not fair use? (But parody songs are?)
| 2 |
https://law.stackexchange.com/questions/87865/why-is-a-cover-song-not-fair-use-but-parody-songs-are
|
CC BY-SA 4.0
|
<p>Considering fair use law, parody, transformative works: Weird Al always asks for permission for his parodies but many law professionals have stated he would not have to.
Considering all this, why does a musician need to license the original piece of music when doing a cover, especially when the cover is really different and transformative? How is it not fair use?</p>
<p>It feels like an RIAA lobbying loophole to circumvent fair use.</p>
<p>Some cover songs are radically different from the original. Weird Als song are quote similar in tone and melody compared to some non parody cover songs out there.</p>
<p>Legally, where does a a song inspired be another song start and end and a cover song start and end? Where is the line?
And what legal quality differentiates a parody song from a cover?</p>
<p>Exhibit as an example, where the cover is so different, you wouldn't even know it's a cover:
Some Velvet Morning - Nancy Sinatra, Lee Hazlewood (<a href="https://www.youtube.com/watch?v=Ws_h7et5KbQ" rel="nofollow noreferrer">https://www.youtube.com/watch?v=Ws_h7et5KbQ</a>)
vs
Some Velvet Morning - Primal Scream, Kate Moss (<a href="https://www.youtube.com/watch?v=iR7l__Florc" rel="nofollow noreferrer">https://www.youtube.com/watch?v=iR7l__Florc</a>)</p>
| 87,865 |
[
{
"answer_id": 87866,
"body": "<p>A "cover" <em>does</em> require a license, but it a special license – a compulsory license, sometimes called a "mechanical license". Under <a href=\"https://www.law.cornell.edu/uscode/text/17/115\" rel=\"nofollow noreferrer\">17 USC 115</a>, upon payment of a fixed license fee, you can obtain a compulsory license (meaning that the author cannot withhold permission) as long as you don't create what would be a derivative work for music, that is you adhere to this restriction:</p>\n<blockquote>\n<p>A compulsory license includes the privilege of making a musical\narrangement of the work to the extent necessary to conform it to the\nstyle or manner of interpretation of the performance involved, but the\narrangement shall not change the basic melody or fundamental character\nof the work, and shall not be subject to protection as a derivative\nwork under this title, except with the express consent of the\ncopyright owner.</p>\n</blockquote>\n<p>This essentially defines the limit that you seek. Wierd Al compositions are <em>so-o-o</em> over the limits set for a compulsory license, but arguably (according to some), he might be able to avail himself of a fair use defense, because parody and commentary are the primary reasons for the fair use exception in the US.</p>\n<p>A "cover" is typically <em>not</em> fair use, in that it has a palpable effect on market and it is not "transformative.</p>\n",
"score": 3
},
{
"answer_id": 87871,
"body": "<h3>The Justification For Fair Use Treatment Of Parodies</h3>\n<p>Parodies are fair use because copyright owners would almost never permit them otherwise, and as a matter of public policy, judges long ago decided that the value of parody and satire as a genre, particularly given its potential political aspects, was more important than the economic rights of the owners of copyrights of parodied works. Judges recognized that otherwise copyright could be used as a tool of systemic censorship of controversial ideas. This public policy concern overrides the general logic of copyright law that would otherwise treat parodies as derivative works.</p>\n<p>These public policy concerns are deep and old and trace back to English copyright law even before the United States existed.</p>\n<h3>The History And Justification For Special Treatment For Covers</h3>\n<p>As noted by user6726, covers are also singled out for special treatment. This legislative fix, since it wasn't imposed by judges, was not required to take an all or nothing approach as judges in the parody context did. These too would be derivative works if the statute didn't single them out for special treatment.</p>\n<p>The motive for the special treatment is similar to that for the special treatment of parody, which is the concern that owners of copyrights would refuse to authorize covers even when it would be in the transaction level economic interests to do so. But, the right to a compulsory license to make a cover also flows from historical precedents of musicians covering other musician's works as an important genre of music with a long tradition that the copyright laws would have exterminated if an exception from the derivative works right was not made for it.</p>\n<p>However, since, unlike parody, making a cover is usually just a part of the ordinary music business for professional musicians rather than usually being an act with strong political or social messages to convey, exempting covers from the obligation to compensate the original creator of the work was not viewed as necessary.</p>\n<p>The speculation that special treatment of covers was due to Recording Industry Association of America lobbying, while not entirely wrong, mostly gets the order of cause and effect backwards.</p>\n<p>Prior to the unification of copyright law for almost all kinds of works (except design patents and a couple of other isolated areas) in 1972, a separate body of law from the main historical antecedent to modern copyright law governed musical performances and recordings. So, there was an open question at that point about precisely how sound recording and musical performance intellectual property protections should be integrated into the copyright doctrines that had applied, for example, to literary works, for almost two hundred years in the United States and longer in common law countries.</p>\n<p>Because legal doctrines for the protection of intellectual property in sound recordings and performances had developed outside the historical scope of copyright law, lawmakers had to balance a desire for uniformity and simplicity in copyright law, with a desire for continuity with existing expectations related to sound recordings and performances under pre-1972 non-copyright laws.</p>\n<p>Also, most of the non-copyright protections for musical recordings (which was something that didn't exist in a commercially viable manner until <a href=\"https://en.wikipedia.org/wiki/History_of_sound_recording\" rel=\"nofollow noreferrer\">Edison invented the phonograph in 1877</a>) and musical performances, was itself much more recent than the rest of copyright law. Essentially all of the great classical music composers operated in an environment in which there were no such intellectual property protections for music and in which the only way to mass produce music was to sell sheet music from which someone could cover the composer's work. Since music couldn't be mass produced and commodified prior to the invention of sound recordings and radio, prior to that, the music industry was financed through admissions charges to live performances and patronage commissioners from wealthy individuals and institutions to composers. Sales of mass produced sheet music, which became viable when the printing press was invented in 1436, then and now, was only a minor part of the overall revenue stream for composers in the music industry.</p>\n<p>Pre-1972 non-copyright laws for music recordings <a href=\"https://www.loc.gov/static/programs/national-recording-preservation-plan/publications-and-reports/documents/pub146.pdf\" rel=\"nofollow noreferrer\">arose under diverse state laws in the United States</a>:</p>\n<blockquote>\n<p>Although the first federal copyright statute was passed in 1790, music\nwas not accorded any federal protection until 1831. However, this\nprotection was limited to music composition, or the actual notation\nwritten on the page. Initial arguments calling for protection against\nthe unauthorized duplication of sound recordings failed. In the case\nof <em>White-Smith Music Publishing Co. v. Apollo Co.</em>, the court held\nthat piano rolls were not copies of a music composition for the\npurposes of infringement. . . .</p>\n<p>Although Congress subjected federal copyright protection to an\noverhaul by enacting the 1909 Copyright Act, it still failed to grant\nstatutory copyright protection to sound recordings. Despite efforts by\nsome members of Congress to raise the issue of sound recordings, the\nfinal bill declined to extend protection.</p>\n<p>Indeed, the report released with the Copyright Act expressly stated\nthat Congress did not intend to protect sound recordings: “It is not\nthe intention of the committee to extend the right of copyright to the\nmechanical reproductions themselves, but only to give the composer or\ncopyright proprietor the control, in accordance with the provisions of\nthe bill, of the manufacture and use of such devices.”</p>\n<p>According to one commentator, Congress had two principal concerns\nabout sound recordings, leading it to decline to protect them. First,\nCongress wondered about the constitutional validity of such\nprotection. The Constitution allows Congress to protect “writings,”\nand Congress was uncertain as to whether a sound recording could\nconstitute a writing. Second, Congress worried that allowing producers\nto exclusively control both the musical notation and the sound\nrecording could lead to the creation of a music monopoly.</p>\n<p>Instead of directly protecting sound recordings, Congress opted to\ncreate a compulsory licensing provision that would allow the copyright\nholder of the composition to control who would be the first person or\ngroup to fix the work in a tangible medium. However, this attempted\nsolution left open the question of whether someone could just pay the\nlicensing fee for the composition and then simply duplicate the\nrecorded version of it. It also left unsatisfied the desire of the\nrecording industry for greater federal law protection. . . .</p>\n<p>Because Congress failed to extend protection to sound recordings until\n1971 (effective 1972), parties concerned about the unauthorized\nduplication of sound recordings turned to the states. Although states\nultimately began to pass statutes criminalizing unauthorized\nmanufacture and distribution of recordings, this did not occur until\nthe late 1960s and early 1970s. Instead, state courts drew upon a\nnumber of common law theories to protect sound recordings. Common law\ncopyright and the doctrine of unfair competition, however, constituted\nthe two most prevalent and most important theories. Indeed, these\ntheories ultimately paved the way for the states to enact\nunauthorized-distribution laws.</p>\n</blockquote>\n<p>In the case of covers, the new unified law departed from a simple and uniform treatment to reflect historical norms in this field in as fair a manner as possible in the eyes of legislators.</p>\n<p>Certainly, the recording industry was at the table along with everyone else interested in intellectual property law at the time of this dramatic overhaul of copyright law in a manner that was generally more protective of copyright and intellectual property owners than prior law.</p>\n<p>But, the near monopolistic dominance of the RIAA in the music recording intellectual property protection world was more of a natural result of the new scheme of intellectual property protections that arose from the copyright law overhaul that took effect in 1972 and the economics and organization of the recording and radio industries, than it was from any previous dominant position of the industry association.</p>\n<p>The recording industry would have preferred not to have mandatory licensing of covers, but had to concede that point in exchange for much stronger intellectual property protection for music recordings under the new law overall.</p>\n",
"score": 0
},
{
"answer_id": 87875,
"body": "<p>"Fair use" is determined using the following four factor test:</p>\n<ol>\n<li>The purpose and character of use for the derivative work</li>\n<li>The nature of the copyrighted work</li>\n<li>The amount and substantiality of the portion taken, and</li>\n<li>The effect of the use upon the potential market.</li>\n</ol>\n<p>With regards to a cover vs a parody:</p>\n<ol>\n<li>The purpose of a cover is usually not very transformative, whereas a parody, by definition must be transformative in order to "poke fun".</li>\n<li>Not relevant to this discussion, as it is the same for both.</li>\n<li>The amount taken in a cover is usually substantial, to being the majority of the creative work in most cases, while a parody often significantly changes various portions of the work extensively (especially the lyrics).</li>\n<li>The effect of a cover is potentially devastating to the potential market, noting that what is being analyzed is less the actual market effect and more of the "replacement/displacement" of market interest, that the derivative work <em>replaces</em> demand for the original (or derivatives thereof). For example, no one would say that Weird Al's "Eat It" replaces Michael Jackson's "Beat It"; however, the John Cash version of "Hurt" has largely replaced the original version in popular culture (see, for example the relative "In popular culture sections of the song's Wikipedia page).</li>\n</ol>\n<p>While the four elements are all to be examined, their weighting is done on a case-by-case basis. However, in the case of a "commercial" song, the third and fourth factor seems to be particularly heavily weighed.</p>\n",
"score": 0
}
] |
[
"copyright",
"intellectual-property",
"fair-use",
"music",
"derivative-work"
] |
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