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Can one take BSD licensed code and distribute it under GPL?
| 18 |
https://law.stackexchange.com/questions/4149/can-one-take-bsd-licensed-code-and-distribute-it-under-gpl
|
CC BY-SA 3.0
|
<p>Prompted by <a href="https://opensource.stackexchange.com/questions/304/can-i-take-bsd-licensed-code-and-distribute-it-under-gpl">https://opensource.stackexchange.com/questions/304/can-i-take-bsd-licensed-code-and-distribute-it-under-gpl</a>.</p>
<p>The OP asks:</p>
<blockquote>
<p><strong>Can I take code which is licensed under a permissive open source license (like the BSD license) and distribute it under a copyleft free software license (like the GPL)?</strong></p>
</blockquote>
<p>Specifically, quoting the following from <a href="http://en.wikipedia.org/w/index.php?title=Berkeley_Software_Distribution&oldid=664036786" rel="noreferrer">Wikipedia</a>:</p>
<blockquote>
<p>In addition, the permissive nature of the BSD license has allowed many other operating systems, both free and proprietary, to incorporate BSD code. For example, Microsoft Windows has used BSD-derived code in its implementation of TCP/IP and bundles recompiled versions of BSD's command-line networking tools since Windows 2000. Also Darwin, the system on which Apple's Mac OS X is built, is a derivative of 4.4BSD-Lite2 and FreeBSD. Various commercial Unix operating systems, such as Solaris, also contain varying amounts of BSD code.</p>
</blockquote>
<p>And <a href="http://undeadly.org/cgi?action=article&sid=20070913014315" rel="noreferrer">OpenBSD Journal</a>:</p>
<blockquote>
<p>KernelTrap has an interesting article in which Theo de Raadt discusses the legal implications of the recent relicensing of OpenBSD's BSD licensed Atheros driver under the GPL. De Raadt says, "it has been like pulling teeth since (most) Linux wireless guys and the SFLC do not wish to admit fault. I think that the Linux wireless guys should really think hard about this problem, how they look, and the legal risks they place upon the future of their source code bodies." He stressed that the theory that BSD code can simply be relicensed to the GPL without making significant changes to the code is false, adding, "'in their zeal to get the code under their own license, some of these Linux wireless developers have broken copyright law repeatedly. But to even get to the point where they broke copyright law, they had to bypass a whole series of ethical considerations too."</p>
</blockquote>
<p>Specifically at stake is the question of whether or not is it legal to take a file or files licensed under a BSD licence, affix a GPL header at the top of such files without making any other changes to the content, place the GPL licence in the root and mention it in README, and distribute the results.</p>
<p>If such licence amendment to include GPL (in addition to the BSD licence) is not legal, then why Microsoft's and Apple's practice is.</p>
| 4,149 |
[
{
"answer_id": 4194,
"body": "<h1>Yes, you can.</h1>\n\n<p>To be precise, I claim that one can take BSD-licensed code and distribute it under the combined terms of <em>both</em> the BSD <em>and</em> the GPL licences.</p>\n\n<p>We know that, if I receive someone else's code under a BSD licence, I may redistribute it to you under those same terms. This is common practice, and not (I hope) in any way contentious.</p>\n\n<p>We also know that I may not redistribute it to you without the conditions that the BSD licence imposes; that is, I may not place <em>less</em> onerous conditions on you than BSD requires (that is, requiring the inclusion of the original copyright notice, the disclaimer, this list of conditions, and a prohibition on claiming the original author's endorsement on any modified version).</p>\n\n<p>So the question becomes whether I can distribute that code <strong>whilst adding more onerous terms than the BSD licence itself imposes</strong>.</p>\n\n<p>It is clear that I can. As the question notes, Microsoft is known to have taken code which it received under a BSD licence and used it in proprietary products. These come with very onerous conditions on the the use, modification, and redistribution of the derived code (usually, they permit one instance of it to be run, and no modifications nor redistributions of any kind).</p>\n\n<p>For clarity: if I were to seek from Microsoft permission to modify and/or redistribute the derived code, and they were to grant it, they would not be able to free me from the BSD requirements as they applied to the derived code; I would still need to comply with those. But they are perfectly capable of applying new, onerous requirements of their own.</p>\n\n<p>The GPL imposes conditions on redistribution that are more onerous than BSD's, but less onerous than those of most proprietary licences.</p>\n\n<p>I am therefore perfectly entitled to receive code under a BSD licence, and - with or without making modifications of my own - redistribute it, adding in the GPL's requirements, if I choose to.</p>\n\n<p>If I haven't modified the code, those added requirements are probably pointless; if you don't wish to be bound by them, you will go and get the code from the original author, who presumably will happily distribute it to you under the BSD licence.</p>\n\n<p>But if I <em>have</em> modified the code, and you wish to use those modifications, then you <strong>will</strong> need to abide by the requirements of <strong>both</strong> the BSD <strong>and</strong> the GPL licences, since <em>both</em> will apply to this new, combined work (the original code + my changes).</p>\n",
"score": 16
},
{
"answer_id": 4150,
"body": "<h2><strong>No, you cannot.</strong></h2>\n\n<p>A licence is a way for a copyright holder to grant certain rights to others that are otherwise reserved. You don't own any copyrights to any stuff you just download from the internet, unless someone specifically transfers their copyright to you (e.g., what IEEE requires for scientific papers in order to publish them -- the authors must assign their copyright to IEEE).</p>\n\n<p>If you make sufficient changes to the code, then you <em>might</em> be able to choose a different licence for your changes. But should you? The issue with the BSD/Linux controversy in regards to Atheros comes down to the ethical considerations -- the GPL advocates claim that BSD licence allows companies to not release the source code (even though a lot of companies do, since it's cheaper that way, and a lot of diffs get incorporated into all BSDs that originate from these companies like Netflix, Apple and even Oracle), yet instead of playing nice with the BSD guys themselves, Linux guys do the exact opposite than what all of those commercial companies are actually doing -- they (re)licence their changes to GPL, making sure that all such changes are forever barred from going back to the BSD projects. (Specifically, the conflict was fuelled by the fact that such re-licensing has occurred when only trivial and non-copyrightable changes have been performed on the existing code, yet copyright claims were nonetheless made and asserted under the GPL.)</p>\n",
"score": 5
},
{
"answer_id": 19167,
"body": "<p>Yes you can.</p>\n<p>The Free Software Foundation website lists licenses that are compatible with their GPL 3.0 license. Included in the compatible licenses are the 3-Clause BSD (but not the original BSD), as well as Apache 2.0, Artistic License 2.0, and Creative Commons Zero (CC0).</p>\n<p>Linkage: <a href=\"https://www.gnu.org/licenses/license-list.en.html\" rel=\"nofollow noreferrer\">https://www.gnu.org/licenses/license-list.en.html</a></p>\n<p>Their License FAQ defines what they mean by "compatible:"</p>\n<p><a href=\"https://www.gnu.org/licenses/gpl-faq.html#WhatDoesCompatMean\" rel=\"nofollow noreferrer\">https://www.gnu.org/licenses/gpl-faq.html#WhatDoesCompatMean</a></p>\n<blockquote>\n<p><strong>What does it mean to say a license is “compatible with the GPL?” (#WhatDoesCompatMean)</strong></p>\n<p>It means that the other license and the GNU GPL are compatible; you can combine code released under the other license with code released under the GNU GPL in one larger program.</p>\n<p>All GNU GPL versions permit such combinations privately; they also permit distribution of such combinations provided the combination is released under the same GNU GPL version. The other license is compatible with the GPL if it permits this too.</p>\n<p>GPLv3 is compatible with more licenses than GPLv2: it allows you to make combinations with code that has specific kinds of additional requirements that are not in GPLv3 itself. Section 7 has more information about this, including the list of additional requirements that are permitted.</p>\n</blockquote>\n<p>The FSF further <a href=\"https://www.gnu.org/licenses/old-licenses/gpl-2.0-faq.en.html#WhatDoesCompatMean\" rel=\"nofollow noreferrer\">defines "compatible" later in this part of their FAQ.</a></p>\n<blockquote>\n<p><strong>What does it mean to say a license is “compatible with the GPL”.</strong>\nIt means that the other license and the GNU GPL are compatible; you can combine code released under the other license with code released under the GNU GPL in one larger program.</p>\n<p>The GPL permits such a combination provided it is released under the GNU GPL. The other license is compatible with the GPL if it permits this too.</p>\n</blockquote>\n<p>So mixing code with different licenses is permitted if the licenses are "compatible", and release under GPL is required for code which contains GPL code. I think that covers the case where you want to include BDS/public domain code in a GPL work.</p>\n<p>There's some other stuff in that FAQ related to public domain. For example they claim all code written by the government employees is public domain, which is compatible with the GPL, so government employees can release their work under GPL too (they claim).</p>\n<p>Interestingly, a related question is also answered in their FAQ:</p>\n<p><a href=\"https://www.gnu.org/licenses/old-licenses/gpl-2.0-faq.en.html#TOCCombinePublicDomainWithGPL\" rel=\"nofollow noreferrer\">If a program combines public-domain code with GPL-covered code, can I take the public-domain part and use it as public domain code?</a></p>\n<blockquote>\n<p>You can do that, if you can figure out which part is the public domain part and separate it from the rest. If code was put in the public domain by its developer, it is in the public domain no matter where it has been</p>\n</blockquote>\n<p>Again this supports the idea that mixing GPL code and public domain code is allowed.</p>\n",
"score": 4
},
{
"answer_id": 4394,
"body": "<p><strong>Sort of</strong></p>\n\n<p>The common way to mark a file as covered by GPL is to add text like this (from <a href=\"https://www.gnu.org/licenses/gpl.html\" rel=\"nofollow\">https://www.gnu.org/licenses/gpl.html</a>):</p>\n\n<pre><code><one line to give the program's name and a brief idea of what it does.>\nCopyright (C) <year> <name of author>\n</code></pre>\n\n<p>You cannot lawfully make a false claim of copyright on a work that you haven't authored/modified. So exclude that and continue with,</p>\n\n<pre><code>This program is free software: you can redistribute it and/or modify\nit under the terms of the GNU General Public License as published by\nthe Free Software Foundation, either version 3 of the License, or\n(at your option) any later version.\n</code></pre>\n\n<p>This is a true statement, if something is BSD-licensed then you <em>can</em> redistribute and/or modify it under the terms of the GPL. That fact is what makes the BSD license compatible with the GPL.</p>\n\n<p>So you can say this, but in doing so you very much haven't said that the recipient <em>can't</em> redistribute and/or modify it under the terms of the BSD license. Which (under the BSD terms) must also remain attached to the source which (under the GPL terms) distributors must make available. So you're unlikely to give anyone who looks closely, the impression that they cannot distribute it under the BSD terms unless you do something dishonest (such as making it unclear what parts of the file the BSD terms relate to, when in the original it was clear). And if they choose to distribute it under the BSD terms then they can of course first remove your added GPL rubric since the BSD license doesn't mention that GPL rubric or require it to be retained.</p>\n\n<p>It might not be completely clear to them that they can do all this, unless they have separately obtained a copy of the original BSD-licensed code to check that they really aren't including any changes made by you (which in fact they aren't, since you didn't make any). Again, if you've made it clear what the extent is of the BSD license then they will know this, and if you haven't then they might not.</p>\n\n<p>I don't know how difficult you can make it to figure out what the BSD license applies to, before you're at risk of being held in breach of the BSD license. Confusion as to the scope of a license can happen by accident, but it's between you, your lawyer, and the court, what happens if you do it on purpose in order to \"trick\" people into thinking they have to abide by GPL when they don't.</p>\n\n<p>What de Raadt is objecting to is what he refers to as \"relicensing\". The point of legal contention (I think) is whether recipients of BSD code can make trivial changes, claim copyright on the result, and then forbid the trivially-changed version from being distributed under the BSD license. Fortunately that's not the question you asked, because I don't know the answer to it ;-) I think de Raadt also objects ethically to any misdirection as to the applicability of the BSD license, and I can't tell whether he objects legally to misdirection.</p>\n",
"score": 3
},
{
"answer_id": 4151,
"body": "<p>You cannot, because every kind of use is prohibited by Copyright law unless there is an explicit permission for the specific use case.</p>\n\n<p>The BSD license permits to re-publish source and binary versions of the code and permits changes. This makes it very universally usable.</p>\n\n<p>The BSD license however does not give permission to re-license or sub-license, so the final user always gets his permissions directly from the original author that did not give a written permission for such a change.</p>\n\n<p>As there is neither a permission to change license nor a permission to re-license/sub-license, there is even no implicit permission for changing the license.</p>\n\n<p>The BSD license would allow you to add code and do this under a different license. You however need to clearly mark such additions in a way that allows to identify the code under a different license.</p>\n\n<p>Given that the GPL only permits to put a whole <code>work</code> under GPL, it is the GPL that disallows even marked pieces of code to appear in a BSD licensed work.</p>\n",
"score": 2
},
{
"answer_id": 87606,
"body": "<p>The phrase "take BSD-license code and distribute it under GPL" is ambiguous. If one interprets it as "swapping the license from BSD to GPL with your name attached as its licenser, even if no code has been changed", it makes little sense, and it's likely invalid.</p>\n<p>However, according to the legal experts at Software Freedom Law Center: If one makes a copyrightable change to the original software, or if one incorporates 2-clause or 3-clause BSD-licensed code (4-clause is GPL-incompatible due to the "advertising clause") into another copyrightable software - then yes. In these cases, the end result can be redistributed under GPL as a whole.</p>\n<p>But it's worth noting that it's a result caused by the additional changes under GPL, and it's not a property of the original code under BSD. The copyright status of the end result would be a combination of "unmodified parts are still licensed under BSD by its original authors, and the modified parts are licensed under GPL by the new authors."</p>\n<p>Since this is the opinion held by Eben Moglen and Mishi Choudhary, I'd consider it highly trustworthy (Eben Moglen was the lawyer-in-chief at FSF).</p>\n<p>In the article <a href=\"https://softwarefreedom.org/resources/2007/gpl-non-gpl-collaboration.html\" rel=\"nofollow noreferrer\">Maintaining Permissive-Licensed Files in a GPL-Licensed Project: Guidelines for Developers</a>, Software Freedom Law Center also gives explicit instructions for redistributing BSD-licensed code under GPL.</p>\n<h2>Including unmodified permissive-licensed files</h2>\n<p>First, SFLC states that, if the original work is not modified, its rights are reserved solely to its original copyright holders, and the original BSD-license must be preserved and followed exactly.</p>\n<blockquote>\n<p>The simplest case of notice preservation is unmodified incorporation of a permissive-licensed file from an external project into a GPL’d project without making changes to the code in the file itself. Here the developer should simply leave the file with all notices intact. If the external project uses the single COPYRIGHT file method, the developer should copy the names of all the copyright holders from that file and place them, along with any copyright, permission, and warranty disclaimer notices required by the permissive license, at the top of the incorporated source file. This may require the developer to list a large number of copyright holders, but it is always best to err on the side of inclusion of each person who might have a copyright claim.</p>\n<p>The top of the incorpoated file should look something like this:</p>\n<pre><code>/* Copyright (c) YEARS_LIST, Permissive Project Contributor1 \n** Copyright (c) YEARS_LIST, Permissive Project Contributor2 \n** ... \n** \n** Permission to use, copy, modify, and/or distribute this software for \n** any purpose with or without fee is hereby granted, provided that the \n** above copyright notice and this permission notice appear in all copies. \n** \n** THE SOFTWARE IS PROVIDED "AS IS" AND THE AUTHOR DISCLAIMS ALL \n** WARRANTIES WITH REGARD TO THIS SOFTWARE INCLUDING ALL IMPLIED \n** WARRANTIES OF MERCHANTABILITY AND FITNESS. IN NO EVENT SHALL THE AUTHOR \n** BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES \n** OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, \n** WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, \n** ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THIS \n** SOFTWARE. \n*/\n</code></pre>\n</blockquote>\n<h2>Adding GPL’d modifications to permissive-licensed files</h2>\n<p>If copyrightable modifications have been made to the original BSD-licensed code, these modifications can be licensed under GPL. In this sense, end result would be covered by GPL as a whole.</p>\n<p>But the BSD-license in the unmodified part of the code is still under its original license, thus the original license must still be preserved and followed exactly. The modified end result under GPL is a superset of the original in the sense of both its code and its license.</p>\n<blockquote>\n<p>A more complicated case occurs when a developer makes copyrightable\nchanges to a permissive-licensed file that the developer is\nincorporating into a GPL’d program. Developers in this situation\ntypically apply the GPL to their modifications. (However, it is\npossible for the developer instead to contribute new code under\npermissive terms, such as the permissive license that governs the\nunmodified file. We discuss that case in § 2.3.)</p>\n<p>Even though the permissive license of the external project grants\nlegal permission to incorporate code from that project into a GPL’d\nproject, the developer of the GPL’d project must nonetheless comply\nwith the notice preservation requirement in the permissive license. In\na project that uses the file-by-file method, a developer who makes\ncopyrightable modifications to a permissive-licensed file should place\na new copyright notice and permission notice above the existing one\nand should make clear that the developer has modified the file. The\ntop of the file will then appear as follows:</p>\n<pre><code>/* \n * Copyright (c) 2007 GPL Project Developer Who Made Changes \n * \n * This file is free software: you may copy, redistribute and/or modify it \n * under the terms of the GNU General Public License as published by the \n * Free Software Foundation, either version 2 of the License, or (at your \n * option) any later version. \n * \n * This file is distributed in the hope that it will be useful, but \n * WITHOUT ANY WARRANTY; without even the implied warranty of \n * MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU \n * General Public License for more details. \n * \n * You should have received a copy of the GNU General Public License \n * along with this program. If not, see . \n * \n * This file incorporates work covered by the following copyright and \n * permission notice: \n * \n * Copyright (c) YEARS_LIST, Permissive Contributor1 \n * Copyright (c) YEARS_LIST, Permissive Contributor2 \n * \n * Permission to use, copy, modify, and/or distribute this software \n * for any purpose with or without fee is hereby granted, provided \n * that the above copyright notice and this permission notice appear \n * in all copies. \n * \n * THE SOFTWARE IS PROVIDED "AS IS" AND THE AUTHOR DISCLAIMS ALL \n * WARRANTIES WITH REGARD TO THIS SOFTWARE INCLUDING ALL IMPLIED \n * WARRANTIES OF MERCHANTABILITY AND FITNESS. IN NO EVENT SHALL THE \n * AUTHOR BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, OR \n * CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS \n * OF USE, DATA OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, \n * NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN \n * CONNECTION WITH THE USE OR PERFORMANCE OF THIS SOFTWARE. \n */\n</code></pre>\n<p>It is very important that the developer preserve the entire copyright\nnotice, permission notice, and warranty disclaimer as they appeared in\nthe original code, as required by the permissive license. We sometimes\nsee GPL notices mixed in with permissive license notices—a confusing\npractice that obscures both the provenance of the code and the precise\npermissions that were granted by the various copyright holders listed\nin the notices.</p>\n</blockquote>\n",
"score": 1
}
] |
[
"copyright",
"licensing",
"software"
] |
Why is place of birth shown on European driving licences?
| 18 |
https://law.stackexchange.com/questions/87569/why-is-place-of-birth-shown-on-european-driving-licences
|
CC BY-SA 4.0
|
<p><a href="https://en.wikipedia.org/wiki/European_driving_licence" rel="noreferrer">Driving licences</a> issued by the <a href="https://en.wikipedia.org/wiki/European_Economic_Area" rel="noreferrer">EEA-countries</a> display the <a href="https://en.wikipedia.org/wiki/European_driving_licence#Standard_data_field_labelling" rel="noreferrer">place of birth</a> of the license holder. Why is this information so important that it needs to be on the driving license?</p>
<p>I've tried to research this topic but all answers boil down to the fact that the directive (<a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0126" rel="noreferrer">Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences</a>) requires it. No answers are given to <em>why</em> the directive requires place of birth to be displayed on the license.</p>
| 87,569 |
[
{
"answer_id": 87573,
"body": "<p>Name and date of birth are not sufficiently unique to identify a person. While name, date of birth, and place of birth do not have to be unique, either, it reduces the number of false positives. Also, date of birth is somewhat better known than place of birth for most people.</p>\n<p><em>Motorist: "Sorry, officer, I seem to have lost my wallet. Everything was in there, ID, license, ..."<br />\nCop: "Tell me your name, date and place of birth, and I'll run a query if you</em> do <em>have a license."</em></p>\n",
"score": 32
},
{
"answer_id": 87576,
"body": "<p>The document <a href=\"https://www.europarl.europa.eu/RegData/docs_autres_institutions/commission_europeenne/com/2003/0621/COM_COM(2003)0621_EN.pdf\" rel=\"noreferrer\">2003/0252 (COD)</a> provides background discussion of rationale for an earlier version of the regulation. Two important considerations regarding the EU licensing scheme are underscored: the desideratum of unique identification, and fraud prevention. The rationale relates to safety – they want to know whether a specific person has been banned from driving for safety reasons, and they are aware that people can make fraudulent claims ("That's not me, that's someone else"). Remember that the right to drive is not absolute, it can be revoked.</p>\n<p>An earlier (earliest?) form of the proposal is <a href=\"https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:51988PC0705&from=EN\" rel=\"noreferrer\">Document 51988PC0705</a>, submitted 9 Dec. 1988. where the Council of European Communities which contains the skeleton of the present law. Annex 1 gives the earlier required information. The required information is more minimalist, including Surname, other names, place and date of birth, permanent place of residence, and other information on the issuance of the license (where, when valid, who issued). Given this sparse required information, name, place and date of birth will generally uniquely identify the license holder.</p>\n<p>It is true that unique identification can be accomplished in various ways, but the reason why the current rule is what it is is because nobody has persuasively argued for an alternative rule that does not include date and place of birth, and date of birth would be independently necessary w.r.t. rules governing minimum age of drivers. Since the requirement was present in 1988, it was just copied from version to version over the decades.</p>\n",
"score": 14
}
] |
[
"european-union",
"driving",
"legislative-intent"
] |
How to not infringe copyrights from Nintendo?
| 0 |
https://law.stackexchange.com/questions/87602/how-to-not-infringe-copyrights-from-nintendo
|
CC BY-SA 4.0
|
<p>I am thinking about developing a free Pokedex App with pokémon information (pokémon data and images) for Android, but I do not want to infringe any copyright or use trademarks because I want no trouble.</p>
<p>Using pokémon sprites and data from a free wiki, for example <a href="https://bulbapedia.bulbagarden.net/wiki/List_of_Pok%C3%A9mon_by_National_Pok%C3%A9dex_number" rel="nofollow noreferrer">bulbapedia</a> would be OK? If not, what advices could you guys give for me to avoid infringing any copyright or trademarks from Nintendo?</p>
| 87,602 |
[
{
"answer_id": 87604,
"body": "<h2>You can’t use pictures</h2>\n<p>You can’t use any of <a href=\"https://www.pokemon.com/us/pokedex\" rel=\"nofollow noreferrer\">these</a>, nor can you make your own art that is derived from these. That’s copyright infringement and there is no fair use defence because you are specifically trying to do something Nintendo already does.</p>\n<p>You can reproduce that stats of the Pokémon because stats are facts (even if they are facts about fictional things) and facts are not protected by copyright.</p>\n",
"score": 3
}
] |
[
"copyright",
"trademark"
] |
Are Windows activation tools illegal?
| 9 |
https://law.stackexchange.com/questions/87534/are-windows-activation-tools-illegal
|
CC BY-SA 4.0
|
<p>There are several of such tools that activate Windows without buying a license. Such tools works by emulating a KMS (key management service) server that is used to activate Windows in enterprise envroinments. Are these tools illegal?</p>
| 87,534 |
[
{
"answer_id": 87535,
"body": "<p>If the tool circumvents Windows' copy protection (which is a computer question, not a legal one, but I cannot imagine a circumstance in which this isn't access-circumvention), then it is a violation of <a href=\"https://www.law.cornell.edu/uscode/text/17/1201\" rel=\"noreferrer\">17 USC 1201</a>, which forbids "circumvent[ing] a technological measure that effectively controls access to a work protected under this title". It is both illegal to use, and to "manufacture, import, offer to the public, provide, or otherwise traffic" in such a program.</p>\n",
"score": 22
},
{
"answer_id": 87541,
"body": "<p><a href=\"/questions/tagged/united-kingdom\" class=\"post-tag\" title=\"show questions tagged 'united-kingdom'\" aria-label=\"show questions tagged 'united-kingdom'\" rel=\"tag\" aria-labelledby=\"united-kingdom-container\">united-kingdom</a></p>\n<p>The Computer Misuse Act 1990 prohibits this:</p>\n<blockquote>\n<p><strong>1 Unauthorised access to computer material.</strong></p>\n<p>(1) A person is guilty of an offence if—<br />\n(a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer, or to enable any such access to be secured;<br />\n(b) the access he intends to secure, or to enable to be secured, is unauthorised; and<br />\n(c) he knows at the time when he causes the computer to perform the function that that is the case.</p>\n</blockquote>\n<p>Section 3A of the Act, which was introduced in 2006, makes it an offence to make, adapt, supply or offer to supply any article intending it to be used, or believing it will be used, to commit, or to assist in the commission of, an offence under section 1.</p>\n<p>Section 4 provides that there has only to be "one significant link" with a UK jurisdiction for the offences to be committed. So it may be that the person is in the UK but the program or the supplied article is not; or the person is outside the UK but the offence happens in the UK.</p>\n",
"score": 4
}
] |
[
"copyright",
"licensing"
] |
Is it possible to claw back assets multiple steps removed from a bankruptcy?
| 1 |
https://law.stackexchange.com/questions/87568/is-it-possible-to-claw-back-assets-multiple-steps-removed-from-a-bankruptcy
|
CC BY-SA 4.0
|
<p>It has been in the news recently that Alex Jones has resorted to the tried and true strategy of having someone else hold his assets while he goes bankrupt. The problem with this strategy is that lawmakers and courts are aware of it, and there is a process called "clawing back" that is used to reclaim such property.</p>
<p>I'm wondering: what happens if that other person also hands the assets to someone else? How many additional hurdles does each iteration present?</p>
| 87,568 |
[
{
"answer_id": 87597,
"body": "<p>A bankruptcy trustee may invoke state fraudulent transfer statutes to achieve this result, which are a distinct and independent basis from the bankruptcy code provisions who only apply to direct transferees (but can impose liability upon a direct transferee even if the direct transferee is no longer in possession of the asset).</p>\n",
"score": 2
}
] |
[
"united-states",
"bankruptcy"
] |
What is the standard of proof for violations of the amateur radio regulations?
| 9 |
https://law.stackexchange.com/questions/87592/what-is-the-standard-of-proof-for-violations-of-the-amateur-radio-regulations
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CC BY-SA 4.0
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<p>What is the standard of proof for violations of 47 CFR 97, the amateur (ham) radio regulations? Is it preponderance of the evidence or beyond reasonable doubt?</p>
| 87,592 |
[
{
"answer_id": 87593,
"body": "<p>The <a href=\"https://www.fcc.gov/sites/default/files/public_enforcement_overview.pdf\" rel=\"noreferrer\">FCC addresses</a> this.</p>\n<blockquote>\n<p>As a general matter, the standard of proof is the “preponderance of\nthe evidence” standard. See, e.g., Application of Ameritech Michigan\nPursuant to Section 271 of the Communications Act of 1934, as amended,\nto provide In-Region InterLATA Services in Michigan, Memorandum\nOpinion and Order, 12 FCC Rcd 20543, 20568-69, paras. 45-46, n.87\n(1997); Bender v. Clark, 744 F.2d 1424, 1429 (10th Cir. 1984) (“The\ntraditional standard required in a civil or administrative proceeding\nis proof by a preponderance of the evidence [and t]he traditional\npreponderance standard must be applied unless the type of case and the\nsanctions or hardship imposed require a higher standard.”)</p>\n</blockquote>\n<p>Reasonable doubt is the standard for criminal prosecutions, which are not included in 47 CFR Part 97.</p>\n",
"score": 11
}
] |
[
"united-states",
"burden-of-proof",
"communications-law",
"amateur-radio"
] |
How to count study-years toward Polish law for Permanent Residency
| 2 |
https://law.stackexchange.com/questions/58094/how-to-count-study-years-toward-polish-law-for-permanent-residency
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CC BY-SA 4.0
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<p>I studied in Poland for 4 years. How many years count according to:</p>
<blockquote>
<p>Art. 212.1. Do 5-letniego okresu pobytu na terytorium Rzeczypospolitej Polskiej, o którym mowa w art. 211 ust. 1, zalicza się:
3)połowę okresu pobytu na terytorium Rzeczypospolitej Polskiej – w przypadku cudzoziemca przebywającego na terytorium Rzeczypospolitej Polskiej:
a) na podstawie wizy wydanej w celu, o którym mowa w art. 60 ust. 1 pkt 9 lub 10, lub b) na podstawie zezwolenia, o którym mowa w art. 144 lub art. 187 pkt 1 lit. b</p>
<blockquote>
<p>Article 212.1. The 5-year period of stay in the territory of the Republic of Poland, referred to in Article 211 section 1, includes: 3) half of the period of stay in the territory of the Republic of Poland - in the case of a foreigner staying on the territory of the Republic of Poland: a) on the basis of a visa issued for the purpose for which referred to in Article 60 (1) point 9 or 10, or b) on the basis of a permit referred to in Article 144 or Article 187 point 1 (b)</p>
</blockquote>
</blockquote>
<p><strong>AND</strong></p>
<blockquote>
<p>Art. 212.2. Do 5-letniego okresu pobytu na terytorium Rzeczypospolitej Polskiej, o którym mowa w art. 211 ust. 1, nie zalicza się pobytu cudzoziemca:
3) w okresie jego nauki na terytorium Rzeczypospolitej Polskiej;</p>
<blockquote>
<p>Article 212.2. Up to the 5-year period of stay in the territory of the Republic of Poland, referred to in Article 211, paragraph 1, the stay of a foreigner shall not be included: 3) during the period of his / her education in the territory of the Republic of Poland;</p>
</blockquote>
</blockquote>
<p><a href="http://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20130001650/U/D20131650Lj.pdf" rel="nofollow noreferrer">http://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20130001650/U/D20131650Lj.pdf</a></p>
| 58,094 |
[
{
"answer_id": 70295,
"body": "<p>You count study period as 50%, so 2 years.</p>\n<blockquote>\n<p>"połowę okresu pobytu na terytorium Rzeczypospolitej Polskiej – w przypadku cudzoziemca przebywającego na terytorium Rzeczypospolitej Polskiej: a) na podstawie wizy wydanej w celu, o którym mowa w art. 60 ust. 1 pkt 9"</p>\n</blockquote>\n<p>This article is what you should use:</p>\n<blockquote>\n<p>Art. 60 ust. 1 pkt 9</p>\n<blockquote>\n<p>odbycia studiów pierwszego stopnia, studiów drugiego stopnia lub jednolitych\nstudiów magisterskich albo kształcenia się w szkole doktorskiej</p>\n</blockquote>\n</blockquote>\n<p>It means Higher Education - Tertiary Education.</p>\n<blockquote>\n<p>Art. 212.2.</p>\n<blockquote>\n<p>Do 5-letniego okresu pobytu na terytorium Rzeczypospolitej Polskiej, o którym mowa w art. 211 ust. 1, nie zalicza się pobytu cudzoziemca: 3) w okresie jego nauki na terytorium Rzeczypospolitej Polskiej;</p>\n</blockquote>\n</blockquote>\n<p>It means Primary / Secondary Education.</p>\n",
"score": 1
}
] |
[
"immigration",
"residency",
"poland"
] |
In the U.K., is rescission due to mere misrepresentation an entitlement? Or is it a discretionary equitable remedy?
| 0 |
https://law.stackexchange.com/questions/87577/in-the-u-k-is-rescission-due-to-mere-misrepresentation-an-entitlement-or-is-i
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CC BY-SA 4.0
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<p>If a party to a contract has made a misrepresentation (including by omission), but not fraudulent misrepresentation, is this sufficient to <em>entitle</em> the innocent party to rescind the contract? Is it entirely within the innocent party's power to void the contract by their own election, as a <em>common law right</em>.</p>
<p>Or, is rescission as a remedy for non-fraudulent misrepresentation always a <em>discretionary, equitable remedy</em>, requiring a court order?</p>
<p>(For a bit of background about why the distinction between a common law entitlement and an equitable remedy matters, see <a href="https://law.stackexchange.com/questions/85675/what-are-equity-and-equitable-remedies"><em>What are equity and equitable remedies</em></a>, especially the section on "Where this distinction can matter." I also note that in <em><a href="https://global.oup.com/academic/product/the-law-of-rescission-9780199665051?cc=us&lang=en&" rel="nofollow noreferrer">The Law of Rescission</a></em>, the authors argue that the balance of authorities is that the innocent party only has the power at common law to rescind by election where the contract was procured by fraud.)</p>
| 87,577 |
[
{
"answer_id": 87591,
"body": "<h3>Common law rescission and equitable rescission are distinct</h3>\n<p>Rescission is available at common law and may require no court order to have effect. "To the extent that right to rescind is a form of 'self-help'... no court order may be required, as where a claimant rescinds a contract of sale at common law then recaptures the transferred asset" (Elise Bant, "Reconsidering the Role of Election in Rescission", <em>Oxford Journal of Legal Studies</em>, Vol. 32, No. 3 (2012), n. 1).</p>\n<p>"Rescission involves the exercise of the right to terminate, either at law or in equity" (Sarah Worthington, "The Proprietary Consequences of Rescission", <em>Restitution Law Review</em>, Vol. 10 (2002), p. 29).</p>\n<h3>Rescission at common law is not available for mere non-fraudulent misrepresentation</h3>\n<p>This "right to rescind a transaction arises at common law <em>in cases of fraud... and duress</em>" (Bant, pp. 469-70; Worthington, p. 30). "Rescission in equity is more widely available" including for innocent misrepresentation (Worthington, p. 31).</p>\n<h3>The role of "election" is incoherent, but the dominant academic view is that election is what gives effect to rescission at common law, while a discretionary judgment of the court is what gives effect to rescission in equity</h3>\n<p>As for the distinction between this right and the equitable remedy of rescission, the authors of <em><a href=\"https://global.oup.com/academic/product/the-law-of-rescission-9780199665051?cc=us&lang=en&\" rel=\"nofollow noreferrer\">The Law of Rescission</a></em> (Dominic O'Sullivan, Steven Elliott, and Rafal Zakrzewski) have characterized the jurisprudence as "impossibly incoherent" (as cited in Bant, pp. 479).</p>\n<p>Bant describes three points on the spectrum as to the effect of election and the role of the court in making rescission effective (Bant, pp. 478-79)</p>\n<ol>\n<li>The first view is that election "is always required for rescission, whether common law or equitable." Under this view, even rescission in equity is based on an act of the claimant, in which equitable title to anything to be restituted vests in the claimant as soon as they make their election.</li>\n<li>The second view places equitable rescission (but not common law rescission) wholly in an act of the court.</li>\n<li>The third "most extreme version" is that any kind of rescission (common law or equitable) is simply a "right to supplicate the court for relief." Under this view, "election has no independent proprietary effect."</li>\n</ol>\n<p>Bant and the authors of <em>The Law of Rescission</em> are of the view that the second option is correct:</p>\n<blockquote>\n<p>equitable rescission (<em>except, perhaps, in the case of fraud, where equity acts in aid of the claimant's common law rights</em>) is always an act of the court.</p>\n</blockquote>\n<p>This view is well described by Worthington at p. 30-31.</p>\n<p>Again, <strong>rescission at common law</strong> is available under very restricted circumstances. The flaw in contract formation must be fraudulent misreprsentation or duress. The subject matter that would be restored must be <em>legal</em> property (not equitable interests). And strict, actual unwinding must actually be possible (<em>restitutio in integrum</em>). "<strong>If all these conditions can be met, then rescission operates by the act of the party entitled to rescind; the intervention of the court is not necessary</strong>" (Worthington at p. 30, citing to <em>Car & Universal Finance Company Ltd. v. Caldwell</em>, [1963] QB 525). This immediately revests legal title to transferred assets in the claimant, allowing re-caption (which would otherwise have been conversion), voluntary re-delivery, or a claim in court to vindicate the legal right to the assets. See also <em>Abram Steamship Co. Ltd. v. Westville Shipping Co. Ltd.</em> [1923] A.C. 773, discussed in Janet O'Sullivan, "Rescission as a self-help remedy: a critical analysis", <em>Cambridge Law Journal</em>, Vol. 59, No. 3, p. 521. The court needed to decide whether one party's election "itself effected rescission" or whether this did not happen until judgment was entered. Lord Atkinson described the effect of common-law rescission:</p>\n<blockquote>\n<p>if the other party to the contract questions the right of the first to rescind, thus obliging the latter to bring an action at law to enforce the rights he has secured for himself by election, and the latter gets a verdict, <em>it is an entire mistake to suppose that it is this verdict which by itself terminates the contract and restores the antecedent status</em>. The verdict itself is merely the judicial determination of the fact that <em>the expression by the plaintiff</em> of his election to rescind was justified, <em>was effective and put an end to the contract</em>.</p>\n</blockquote>\n<p>"<strong>Rescission in equity is more widely available</strong>", including for innocent misrepresentation. There is no need at equity for the interest to be a legal interest (it can be an equitable interest), and there is no need for full unwinding to be possible. As an equitable remedy, rescission in this scenario is discretionary, and the remedy can "be moulded in accordance with the exigencies of the particular case" (<em>Spence v. Crawford</em>, [1939] 3 Ch. D. 271).</p>\n",
"score": 2
},
{
"answer_id": 87579,
"body": "<h2>Recision is an equitable remedy</h2>\n<p>It is one of many remedies a plaintiff might choose for misrepresentation and is subject to the following:</p>\n<ul>\n<li>restitution must be possible and equitable.</li>\n<li>the plaintiff must have "clean hands".</li>\n<li>the plaintiff must not have affirmed the contract after becoming aware of the misrepresentation, for example, by continuing to receive the benefits of the contract.</li>\n<li>third-party rights would be unaffected.</li>\n<li>an executed contract cannot be rescinded - probably. This precedent has been criticised but, AFAIK, not overturned except by legislation in some jurisdictions.</li>\n<li>lapse of time: laches applies as this is an equitable remedy.</li>\n</ul>\n<p>Note that this remedy is available when the misrepresentation has become a term of the contract and is "actionable", not where it has caused the contract to be entered into by mistake: that makes the contract void and can be disaffirmed.</p>\n<p>For completeness, misrepresentation can lead to any of the following:</p>\n<ol>\n<li>It becomes a term of the contract: the innocent party may sue for damages <em>or</em> rescind for actionable misrepresentation but not both.</li>\n<li>If it led to the contract being entered into by mistake, the contract may be void for mistake and can be disaffirmed.</li>\n<li>It may become a collateral contract.</li>\n<li>It may be an "actionable" misrepresentation, allowing recession. An actionable misrepresentation must be a) false, b) of fact, not opinion, c) addressed to the person misled, d) intended to induce the plaintiff to enter the contract and must have been material in them doing so.</li>\n<li>An innocent misrepresentation may give rise to a claim in the tort of negligence.</li>\n<li>An deliberate misrepresentation may give rise to a claim in the tort of deceit.</li>\n<li>Some jurisdictions provide statutory remedies.</li>\n</ol>\n",
"score": 0
}
] |
[
"united-kingdom",
"contract-law",
"england-and-wales",
"equity"
] |
What are "equity" and "equitable remedies"?
| 8 |
https://law.stackexchange.com/questions/85675/what-are-equity-and-equitable-remedies
|
CC BY-SA 4.0
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<p>What is equity and/or an equitable remedy? How does it relate to the common law?</p>
| 85,675 |
[
{
"answer_id": 85676,
"body": "<p>In legal systems descending from English law, the term <em>equity</em> refers to an aspect of those legal systems that has origins distinct from positive law and the traditional common-law writs. Equity traces its origin to the Court of Chancery. Much of what follows can be found in <a href=\"https://www.worldcat.org/en/title/1144804852\" rel=\"nofollow noreferrer\"><em>Snell's Equity</em></a>. Equitable remedies (equitable relief) are those remedies available through rules and principles of equity, today applied by courts of unified jurisdiction.</p>\n<h2>Some distinctions</h2>\n<p><em>Equity</em> as part of law: equity is certainly part of law in the sense that it is part of the legal system, applied by courts, and can result in equitable remedies. "Equity in this sense has been a feature of many legal systems from ancient times" (<em>Snell's Equity</em>, §1-002).</p>\n<p><em>Equity</em> versus <em>law</em>: equity is distinct from "law" (or common law) in the sense that equitable remedies are meant to <em>supplement</em> "legal rights."</p>\n<blockquote>\n<p>The common law and equity operated in their own areas of specialisation. Even in cases where common law and equitable rules touched on the same subject matter, the rationale of equitable intervention was not to conflict with the common law. The Chancellor's jurisdiction over the parties was in personam and enforceable by specific remedies, unlike those of the common law which were generally for the orders for the payment of money. (<em>Snell's Equity</em>, §1-012).</p>\n</blockquote>\n<p><em>Legal</em> and <em>equitable</em> remedies: "The division between legal and equitable remedies is an accident of history which cannot be explained in any other terms. No defining characteristic sets the remedies developed in Chancery, as a class, apart from the remedies developed by the common law courts." (<em>Snell's Equity</em>, § 14-001)</p>\n<h2>History and the present</h2>\n<p>A well-accepted unifying feature of "equity" and "equitable remedies" is their origin in the Court of Chancery of specialist equitable jurisdiction (<em>Snell's Equity</em>, §1-003). Even though today, this distinction in jurisdiction has been abolished by the Judicature Acts of 1873 and 1875, equity still means that body of law with its origins in Chancery. While equitable rules and principles have certainly continued to evolve, they all trace their pedigree to the jurisdiction of the Court of Chancery (<em>Snell's Equity</em>, § 1-004).</p>\n<p>Equitable doctrines have retained their distinctiveness as "secondary" to legal rights. They impose an overlay: that "primary legal rights should be exercised consistenly with good conscience" (<em>Snell's Equity</em>, § 1-033).</p>\n<p>This view from <em>Canson Enterprises Ltd. v. Boughton & Co.</em>, <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/816/index.do\" rel=\"nofollow noreferrer\">[1991] 3 SCR 534</a> highlights the messiness and debate about the confluence and remaining distinctiveness of equity and law:</p>\n<blockquote>\n<p>I am aware that reservations have been expressed in some quarters about this fusion or, perhaps more accurately, mingling of law and equity... But no case was brought to our attention where it has led to confusion, and there are many cases, some of which I have discussed, where it has made possible a just and reasonable result. It simply provides a general, but flexible, approach that allows for direct application of the experience and best features of both law and equity, whether the mode of redress (the cause of action or remedy) originates in one system or the other. There might be room for concern if one were indiscriminately attempting to meld the whole of the two systems. Equitable concepts like trusts, equitable estates and consequent equitable remedies must continue to exist apart, if not in isolation, from common law rules. But when one moves to fiduciary relationships and the law regarding misstatements, we have a situation where now the courts of common law, now the courts of equity moved forward to provide remedies where a person failed to meet the trust or confidence reposed in that person. There was throughout considerable overlap. In time the common law outstripped equity and the remedy of compensation became somewhat atrophied. Under these circumstances, why should it not borrow from the experience of the common law? Whether the courts refine the equitable tools such as the remedy of compensation, or follow the common law on its own terms, seems not particularly important where the same policy objective is sought.</p>\n</blockquote>\n<h2>Equity prevails</h2>\n<p>Even though equity has developed as supplemental and secondary to the common law, "in a conflict between the two, equity would prevail" (<em>Snell's Equity</em>, §1-010). For example, where a contract would be enforceable by its terms at common law, an equitable remedy developed called <em>recission</em> that allows for the "extinction of a contract and the resotration of the parties to their original positions" (<em>Snell's Equity</em>, § 15-001).</p>\n<p>This has been codified in some jurisdictions. See British Columbia's <a href=\"https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96253_01#section44\" rel=\"nofollow noreferrer\"><em>Law and Equity Act</em>, s. 44</a>:</p>\n<blockquote>\n<p><strong>If rules of equity and law conflict, equity prevails</strong></p>\n<p><strong>44</strong> Generally in all matters not particularly mentioned in this Act in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity prevail.</p>\n</blockquote>\n<h2>Where this distinction can matter</h2>\n<p>This distinction can still matter. As just one example: "Different rules of following and tracing have evolved at common law and in equity" (<em>Snell's Equity</em>, § 30-052). See <em>Citadel General Assurance Co. v. Lloyds Bank Canada</em>, [1997] 3 SCR 805 at para. 58:</p>\n<blockquote>\n<p>In my view, a distinction should be made between the imposition of liability in “knowing receipt” cases and the availability of tracing orders at common law and in equity. <strong>Liability at common law is strict</strong>, flowing from the fact of receipt. Liability in “knowing receipt” cases is not strict; it depends not only on the fact of enrichment (i.e. receipt of trust property) but also on the unjust nature of that enrichment (i.e. the stranger’s knowledge of the breach of trust). <strong>A tracing order at common law, unlike a restitutionary remedy</strong>, is only available in respect of funds which have not lost their identity by becoming part of a mixed fund. Further, the imposition of liability as a constructive trustee is wider than a tracing order in equity. The former is not limited to the defence of purchaser without notice and “does not depend upon the recipient still having the property or its traceable proceeds”; see In re Montagu’s Settlement Trusts, supra, at p. 276.</p>\n</blockquote>\n<p>If a remedy is understood to be a legal right, then the innocent/wronged party is owed that right once the wrong is recognized by a court. However, if the remedy is understood to be equitable, no one ever has a claim as of right to the remedy, and it will always be subject to the discretion of the court to grant the remedy even if accepting the wrong underlying the claim.</p>\n<h2>Some equitable remedies</h2>\n<p><a href=\"https://en.wikipedia.org/wiki/Equitable_remedy\" rel=\"nofollow noreferrer\">Wikipedia gives one list of equitable relief</a> consistent with much of what is in <em>Snell's Equity</em>. Here I'll only list some of those that you'll most likely recognize:</p>\n<ul>\n<li>injunctions (<em>Snell's Equity</em>, § 18)</li>\n<li>specific performance (<em>Snell's Equity</em>, § 17)</li>\n<li>rescission (<em>Snell's Equity</em>, § 15)</li>\n<li>rectification (<em>Snell's Equity</em>, § 16)</li>\n<li>tracing (<em>Snell's Equity</em>, § 30-051)</li>\n<li>equitable estoppel (as a family of related doctrines), as distinct from common law estoppel (<em>Snell's Equity</em>, § 12)</li>\n</ul>\n<h2>Maxims of equity</h2>\n<p><a href=\"https://en.wikipedia.org/wiki/Maxims_of_equity\" rel=\"nofollow noreferrer\">Wikipedia also lists various maxims of equity</a> also consistent with much of what is in <em>Snell's Equity</em>, § 5). I'll only highlight a few that are still widely relevant and known:</p>\n<ul>\n<li>"He who comes into equity must come with clean hands"</li>\n<li>"Equity aids the vigilant and not the idolent" (the principle behind <a href=\"https://en.wikipedia.org/wiki/Laches_(equity)\" rel=\"nofollow noreferrer\">laches</a>)</li>\n<li>"Equity looks on as done that which ought to be done" (the principle behind equitable assignment)</li>\n</ul>\n",
"score": 9
},
{
"answer_id": 85678,
"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>@Jen does a good job of recapping the historical antecedents of equity and some of its most notable features. I'll add a few general observations and some additional observations particular to the United States experience.</p>\n<h3>General Observations</h3>\n<p>Like the common law, equity jurisprudence arose largely through case law rather than through detailed statutory guidance, unlike the legal tradition of civil law countries. Civil law countries include the legal systems of most of continental Europe and most of Latin America, Quebec, Japan and South Korea, to name a few.</p>\n<p>In cases at law, if a claim is established in a lawsuit, the award of damages is generally non-discretionary for the judge or jury hearing the case.</p>\n<p>In cases at law where the main remedy is a money judgment, enforcement of that judgment through judgment liens on real property, writs of execution directed at personal property, and writs of garnishment directed at private rights of a judgment debtor in the control of a third-party, are the norm.</p>\n<p>The right of people to sue the government for money damages on claims arising in law has historically been tightly regulated and limited.</p>\n<p>In claims arising in equity, even if one establishes the elements of a claim for relief to a judge, that is not generally the end of the story. The judge usually has wide discretion over precisely which remedy to provide in a case arising in equity and over whether to impose it in a case that nominally seems to quality for a grant of relief. The judge's call on these issues can only be reviewed for an abuse of discretion.</p>\n<p>Equity claims rely much more heavily on the power of the court to hold parties in contempt of court (and hence subject to incarceration and/or fines) for failure to obey court orders.</p>\n<p>The right to people to obtain equitable remedies such as injunctive relief against the government has historically been much broader and less restricted than their ability to obtain money damage awards from the government.</p>\n<h3>Jury Trial Rights</h3>\n<p>In the United States, the constitutional right to a jury trial in federal court hinges upon whether the claim for relief is one that would have been asserted in the courts of law in 1791, when the 7th Amendment to the United States Constitution was adopted, or in the courts of equity. If the claim is an equitable one, there is no right to a jury trial. In the case of newly created claims the question is whether the newly created claim (usually statutory) is closer to a claim for money damages under common law, or a claim arising in equity in 1791.</p>\n<p>Many states also make this distinction even though the 7th Amendment right to a civil jury trial does not apply to U.S. states and is not even a state constitutional right in some states.</p>\n<p>Some common claims in which there is no right to a jury trial include: foreclosures, divorces, probate matters other than will contests, disputes within partnerships, disputes within corporations and similar entities, claims seeking any of the equitable remedies identified by @Jen other than claims to obtain physical possession of property, partitions of real property, quiet title actions, mechanic's lien enforcement, matters related to trusts, constructive trust claims, fraudulent transfer claims, child custody, and adoption.</p>\n<p>In contrast, claims for breach of contract, and claims for money damages in tort will generally give rise to a right to trial by jury.</p>\n<h3>Equitable Defenses</h3>\n<p>There is a split of authority between U.S. states over whether equitable defenses like laches and unclean hands apply only to claims arising in equity, or can also be used to defeat claims arising in law. The majority rule is that equitable defenses are available only to equitable claims. But, some states, such as Colorado as recently clarified in <em><a href=\"https://law.justia.com/cases/colorado/supreme-court/2014/12sc198.html\" rel=\"noreferrer\">Hickenson v. Vessels</a></em> (Colo. 2014), allow equitable defenses to legal claims.</p>\n<h3>Incomplete Mergers Of Law And Equity</h3>\n<p>Most U.S. courts (including the Article III federal courts in the U.S.) have fully merged courts of law and courts of equity administratively, but the merger is not entirely complete in some U.S. states.</p>\n<p>The state of Delaware and Wyoming, for example, have Courts of Chancery that specialize mostly in cases that were historically in Chancery Court jurisdiction (especially cases involving the internal affairs of business entities) although the division is not absolute since other courts in these jurisdictions can also apply equitable principles and since the modern courts of chancery don't have jurisdiction over cases exactly identical to the historical English Court of Chancery.</p>\n<p>Other states have specialized courts that have jurisdiction over cases that were historically mostly the province of equity courts, like the Surrogate's Courts in New York State which have jurisdiction over many equitable matters involving trusts and decedent's estates.</p>\n<p>Many courts of limited jurisdiction in the United States lack subject-matter jurisdiction to grant equitable remedies such as injunctions and specific performance, and many U.S. courts of limited jurisdiction also lack jurisdiction to rule in cases where title to real property is at issue, even if they have jurisdiction over evictions.</p>\n<h3>Historically Non-Common Law Jurisdictions In The United States</h3>\n<p>The State of Louisiana and the Commonwealth of Puerto Rico did not have common law legal systems when they joined the United States, and the civil law systems of the French and Spanish respectively that were used in these jurisdictions never had a law-equity distinction in the first place.</p>\n<p>Much of the Southwest United States was part of the Republic of Mexico before it became part of the United States, and civil law concepts, particular in the areas of marital property rights and rights in real property carried over somewhat into modern law in these places (despite these states largely adopting most other common law legal concepts). Again, these concepts arose in a legal system than did not the law-equity distinction so the way that concepts like law and equity are applied to these concepts is haphazard.</p>\n",
"score": 6
}
] |
[
"legal-terms",
"common-law",
"legal-history",
"equity",
"equitable-relief"
] |
May the State Department make a redetermination under 8 USC § 1182(a)(2)(G)?
| 1 |
https://law.stackexchange.com/questions/87544/may-the-state-department-make-a-redetermination-under-8-usc-1182a2g
|
CC BY-SA 4.0
|
<p>Once the State Department makes a determination that a person is an "alien who, while serving as a foreign government official, was responsible for or directly carried out, at any time, particularly severe violations of religious freedom, as defined in section 6402 of title 22," the person becomes inadmissible to the United States (8 USC § 1182(a)(2)(G)).</p>
<p>(This is subject to exceptions while such person might happen to benefit from a diplomatic visa; I also understand there is also a path for the Secretary of Homeland Security to issue a waiver.)</p>
<p>My question is: separate from the exceptions just listed, <strong>may the State Department make a redetermination under 8 USC § 1182(a)(2)(G)</strong>, or is the State Department forever bound to the conclusion of its initial determination of inadmissibility? If a redetermination is possible, are there procedural prerequisites? (E.g. must there be an application? Must there be fresh evidence?)</p>
| 87,544 |
[
{
"answer_id": 87583,
"body": "<p>8 U.S. Code § 1182(a)(2)(G) states: "An alien who, while serving as a foreign government official, was responsible for or directly carried out, at any time, particularly severe violations of religious freedom, as defined in section 6402 of title 22" is inadmissible to the United States.</p>\n<p>Regarding the question of whether the State Department may make a redetermination under 8 U.S. Code § 1182(a)(2)(G), there does not appear to be any binding precedent directly on point. However, it is generally accepted that administrative agencies have the authority to reconsider and modify their decisions, as long as they follow the appropriate procedures for doing so. In the context of the State Department, this may involve allowing the individual to submit a request for reconsideration, providing an opportunity for a hearing, and considering any new evidence that may be relevant to the determination. It is important to note that the State Department's authority to make redeterminations may be limited by other provisions of law, such as the Administrative Procedure Act, which sets forth certain requirements for agency rulemaking and decision-making.</p>\n<p>The doctrine of <em>stare decisis</em>, or the doctrine of precedent, generally applies to judicial decisions, rather than administrative decisions. Administrative agencies have the authority to interpret and apply the laws and regulations that they are responsible for enforcing, but their decisions are typically not considered binding precedent in the same way that judicial decisions are. This is because administrative decisions are typically not subject to the same level of review and oversight as judicial decisions, and are not necessarily based on the same principles of law. However, administrative decisions can still be persuasive and may be considered as persuasive authority in certain situations.</p>\n",
"score": 1
}
] |
[
"united-states",
"immigration",
"visa",
"administrative-law"
] |
What is the duty of a medical office to properly bill one's insurance? (USA)
| 7 |
https://law.stackexchange.com/questions/87554/what-is-the-duty-of-a-medical-office-to-properly-bill-ones-insurance-usa
|
CC BY-SA 4.0
|
<p>In the US, it is typical for patients to sign contracts with a medical office assigning whatever benefits are applicable from their health insurance to the doctor's office and leaving the patient financially responsible for what is left unpaid.</p>
<p>Is there a minimum standard for doctor's offices to actually complete the insurance process before passing on the rest of the bill, and if so, what kind of remedy is available if they don't?</p>
<p>Example: A doctor's office sends to the insurance company details of a procedure to be paid, but left off one fact that the insurance company needed to complete the claim. The insurance company informs the doctor's office that in order to finish the claim, they have to complete the missing bit of paperwork. Instead of doing so, the doctor's office leaves benefits the client is entitled to unclaimed and proceeds to bill the patient for the unpaid amount.</p>
<p>Is this a valid bill under that standard kind of contract? Is there some kind of minimum due diligence required on the doctor's part, and if so, is there some area of tort law that is available for redress?</p>
| 87,554 |
[
{
"answer_id": 87555,
"body": "<p>To my knowledge there is no actual law requiring a provider to file anything on your behalf. Most do it as a courtesy but if you read the terms of service that you almost certainly agreed to, it will say that YOU are the responsible party.</p>\n<p>If the insurance company doesn't pay, even if the provider doesn't submit a claim, the responsibility is still yours. There is nothing stopping you from filing your own claim using whatever forms or procedures that they have established.</p>\n<p>I'll also note that many provider networks have rules that providers must adhere to in order to remain in that network. Some may include language about timely filing of claims but that is in no way universal.</p>\n<p>These days many providers have taken to billing the patient the full amount immediately and then will issue a refund to you if/when the insurance pays.</p>\n",
"score": 12
},
{
"answer_id": 87556,
"body": "<p>In terms of your contract with the doctor, there is probably no contractual obligation for the doctor to submit anything to the insurance company. You can read your contract (if you ask for it, though the written contract is usually fairly minimal, and don't generally constitute a full-blown contract (<a href=\"https://www.uclahealth.org/sites/default/files/documents/Patient-Financial-Responsibility.pdf\" rel=\"nofollow noreferrer\">example</a>). The statement that "Some insurance companies will allow us ... some insurance companies will not allow this" brings in the other party to the process – the insurance company. Some doctors have a particular kind of contract with the specific insurance company, and some do not. So an interesting question is, what does Aetna contractually require of its in-network providers? If the doctor has no relation at all to the insurance company and submits claims as a convenience for their patient, then it's strictly a business consideration how far they are willing to go to save the patient money. But the doctor may have a contractual obligation with the insurer to put in a little extra effort, for the privilege of being an in-network provider. Ultimately, the doctor can simply refuse to deal with insurance companies. There is also Medicare: <a href=\"https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/ProviderServices/Your-Billing-Responsibilities\" rel=\"nofollow noreferrer\">this</a> might start you on the path to seeing what obligations the doctor has to patients, as a "Part B" provider.</p>\n",
"score": 4
},
{
"answer_id": 87578,
"body": "<h2>This is the difference with 'in-network’</h2>\n<p>An 'in-network’ doctor has signed contracts with the insurance network - so they agree not only to bill on behalf of the client, but also settle for insurance pricing. Which is often dramatically lower than retail pricing for the same service. They do this in exchange for the great number of patient referrals they will get, being part of the network.</p>\n<p>An out-of-network doctor has no such contractual agreement, is not obliged to bill your insurance (but probably will make some effort out of an interest to actually get paid), and does not need to accept the insurance contracted rate, and can bill you as they see fit.</p>\n<p>Some insurers (particularly ACA/Obamacare backed state-actor insurers) prohibit their members from paying doctors privately and seeking reimbursement. Partly, they don't want to deal with the paperwork and fraud risks, and partly, these programs are intended for people who don't have the means to private-pay for medical care.</p>\n",
"score": 3
}
] |
[
"united-states",
"medical",
"florida",
"tort",
"billing"
] |
After employing the services of an 'architect' then later finding they are not a registered architect, can the contract be cancelled? (UK)
| 0 |
https://law.stackexchange.com/questions/87545/after-employing-the-services-of-an-architect-then-later-finding-they-are-not-a
|
CC BY-SA 4.0
|
<p>Alice hires Bob to do architectural work and refers to him as an architect once verbally and once in writing. Bob does not correct her.</p>
<p>Bob never actually calls himself an architect nor advertises himself as one but does use phrases such as "here is a quote for the architectural work". On the quote Bob writes his name but there is no job title or letters after his name.</p>
<p>Alice then discovers Bob is not a registered architect. Can Alice rescind the contract, or is she obligated to pay him?</p>
| 87,545 |
[
{
"answer_id": 87546,
"body": "<blockquote>\n<p>Employed services of 'architect' but found the person is not an architect, can I cancel contract? (UK)</p>\n</blockquote>\n<p>Yes, you are entitled to rescind the contract.</p>\n<p>In terms of the <a href=\"http://www.oneclubofjusticides.com/p/restatement-second-contracts.html\" rel=\"nofollow noreferrer\">Restatement (Second) of Contracts</a> at §153 (US law), your <em>basic assumption</em> was the <em>belief</em> that that person is an architect. That belief is "<em>not accord with the facts</em>", <em>Id</em> at §151, his silence and inducement in that respect are tantamount to misrepresentation, and at no point did you purport to disregard the possible or actual inaccuracy of that belief, <em>Id</em> at §154. Therefore, the contract is <em>voidable</em> by you.</p>\n<p>Also under UK law "<em>[t]he normal remedy for misrepresentation is rescission [...] Rescission is prima facie available if "practical justice" can be done</em>". See <a href=\"https://www.casemine.com/judgement/uk/5a8ff70360d03e7f57ea5b86\" rel=\"nofollow noreferrer\">Salt v Stratstone Specialist LTD [2015], pars. 24, 30</a>.</p>\n<p>He not only knowingly failed to make the pertinent disclaimer or clarification despite your multiple references to him as "architect", but his written --and thus readily provable-- statement "<em>Thank you for inviting me to quote for the architectural work</em>" evidences his willful reinforcement of your belief that he was an architect. That is because an architect is presumed to be the right individual for devising a quote for architectural work.</p>\n<p>This person's statement and the circumstances you describe fall within scope of the <a href=\"https://www.legislation.gov.uk/ukpga/2015/15/section/50\" rel=\"nofollow noreferrer\">Consumer Rights Act 2015, s.50</a>(1) (not that subsection (2) is equivalent to the <em>Restatement</em> at §154 and therefore inapplicable to these circumstances). His inability to satisfy your implied requirement that the job be performed by an architect, coupled with other significant flaws you identified, indicates that he cannot comply with the terms of the contract. Accordingly, the situation warrants rescission.</p>\n",
"score": 2
}
] |
[
"united-kingdom",
"contract-law",
"employment",
"england-and-wales"
] |
Can a company director simply appoint another company director?
| 1 |
https://law.stackexchange.com/questions/44306/can-a-company-director-simply-appoint-another-company-director
|
CC BY-SA 4.0
|
<p>I found the following article in my company constitution:</p>
<blockquote>
<p>The directors of the company may appoint a person as a director of the
company. The company must confirm such an appointment by resolution
passed at a general meeting within 2 months after the appointment is
made. If the company does not confirm the appointment, the person
ceases to be a director of the company upon the expiration of 2 months
after the appointment was made.</p>
</blockquote>
<p>Does this mean any director can appoint another director and that director can serve for 2 months without approval?</p>
<p>Won't this provide avenue for a board coup? Meaning a director can simply elect directors to support him and make changes to the company constitution.</p>
| 44,306 |
[
{
"answer_id": 44309,
"body": "<p>What you quoted does not say \"<strong>a</strong>\" director can appoint a director. It says \"<strong>the directors</strong>\", plural, can appoint a director. I assume that would be by a vote. Elsewhere in the document it might or might not be made clear if this requires only a majority and/or if this is only in cases to fill a vacancy.</p>\n",
"score": 5
},
{
"answer_id": 87575,
"body": "<p>Appointment of directors is by the board. A board meeting needs quorum, and this will not ever be one person.</p>\n<p>So no, one director cannot appoint other directors.</p>\n",
"score": 0
}
] |
[
"corporate-law"
] |
Conflict of interest when removing a director
| 3 |
https://law.stackexchange.com/questions/7038/conflict-of-interest-when-removing-a-director
|
CC BY-SA 3.0
|
<p>I work for a UK limited company with two shareholders, and two directors. I am one of the directors and the majority shareholder (over %50 of total shares). The company's articles of association are the Model Articles from Companies House.</p>
<p>If I want to remove the other shareholder as director for poor performance, is it sufficient for me to call a general meeting with 28 days advance notice, and pass an ordinary resolution with my majority shares? Would the Companies Act 2006 allow such an action, especially in regards to conflict of interest law?</p>
| 7,038 |
[
{
"answer_id": 7046,
"body": "<p>You have a fiduciary duty as a director to act in the best interests of the company. Not your interests, not his interests, not the shareholders' interests (individually or as a group); the company's interests.</p>\n\n<p>You must also separate the other guy's performance as an employee from his performance as a director. If he is not performing as an employee then the correct course of action is to sack him as an employee, not as a director; and vice-versa. If he turns up to the board meetings and considers the information he is given as a director then he is not \"performing poorly\" in that role.</p>\n\n<p>However, provided you follow the law and your company's constitution I have no doubt this would be legal. You need to consult a lawyer before you do anything - it can't be the company's lawyer because he <em>does</em> have a conflict of interest.</p>\n\n<p>Notwithstanding its legality, it's a stupid idea. It doesn't fix the fundamental problem: you are in business with someone you don't want to be in business with. You need to find a way to not be in business with him and to start that process by ticking him off is a bad move.</p>\n\n<p>You need to reach agreement on how to end your relationship: just shoving him out while he is still a shareholder will have him looking for the first opportunity to sue you and the company the instant it underperforms.</p>\n",
"score": 3
}
] |
[
"corporate-law",
"england-and-wales",
"shareholders"
] |
Extreme case of double jeopardy
| 0 |
https://law.stackexchange.com/questions/87558/extreme-case-of-double-jeopardy
|
CC BY-SA 4.0
|
<p>I have a very unique and interesting theoretical debate I’m trying to find the answer to. Suppose that I am accused and found guilty of murder of a person (ex. Bob). I serve my time for the murder and am released from imprisonment. Suddenly, Bob is found alive (therefore I didn’t murder him). At this point, I’ve done my sentencing for the murder of Bob and he’s still alive. Since this has happened, am I able to “murder” Bob and not be charged with his murder (since I have already done a sentencing for his murder)? Or would I still be charged with his murder since it’s a different criminal instance?</p>
| 87,558 |
[
{
"answer_id": 87560,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"canada-container\">canada</a></p>\n<blockquote>\n<p>Or would I still be charged with his murder since it’s a different criminal instance?</p>\n</blockquote>\n<p>Yes, this is the correct intuition. Different instance/wrong; different basis for the charge; not precluded by double-jeopardy.</p>\n<p>In Canada, the term of art is <em>autrefois convict</em>. Section 609 of the <em>Criminal Code</em> lays out the standard for what it means for the count to be the same:</p>\n<blockquote>\n<p>the matter on which the accused was given in charge on the former trial is the same in whole or in part as that on which it is proposed to give him in charge</p>\n</blockquote>\n<p>The later charge for murdering Bob would be a wholly different circumstance or "wrong" or "delict" than the first conviction was based on. The later charge would not be precluded.</p>\n",
"score": 5
},
{
"answer_id": 87566,
"body": "<h2>Facts</h2>\n<ul>\n<li>You were convicted for the death of Bob that happened on YYYY-MM-DD</li>\n<li>Your sentence is not for life or a death sentence</li>\n<li>You are released from prison and have <em>served your time</em></li>\n<li>You meet Bob and stab him to death on ZZZZ-MM-DD</li>\n</ul>\n<h2>Double jeopardy?</h2>\n<p>After your new arrest your lawyer attempts double jeopardy, pointing to the prior conviction and release. The Police laugh, the state attorney laughs and then threatens the lawyer with referencing them to the bar, because the argument is more than frivolous: You are not for arrest for the murder of Bob on YYYY-MM-DD but for the one on ZZZZ-MM-DD! You will face trial for this <strong>separate instance</strong> of murder.</p>\n<p>This is not the <a href=\"https://law.stackexchange.com/a/55501/10334\">1999 film Double Jeopardy</a>, which is founded on the same misconception!</p>\n<h2>The trial</h2>\n<p>The state will only have to prove that you killed Bob in year ZZZZ, and may use your wrongful conviction in year YYYY as evidence for a motive. The jury will be instructed that the time served between YYYY and ZZZZ is to be disregarded. The state can show beyond a reasonable doubt that Bob is dead this time and you serve for life this time.</p>\n",
"score": 5
}
] |
[
"double-jeopardy"
] |
Is a contract valid if one of the party doesn't even read it?
| 3 |
https://law.stackexchange.com/questions/31833/is-a-contract-valid-if-one-of-the-party-doesnt-even-read-it
|
CC BY-SA 4.0
|
<p>You might think someone must be stupid to sign a contract without even reading it. Yet I see it happen all the time, when contracts are just too long and there's no time to read stuff you <em>suppose</em> you already know. Typical examples are contracts you "accept" online, like TOS's and privacy policies. Nobody reads that. And the funny thing is that the other party usually knows you haven't read it. Websites know that nobody reads their huge TOS's or privacy policies, and it has also been demonstrated (researches, polls, articles). And the salesman telling you "just sign here, it's the usual stuff", they know you haven't read it because they saw you sign it without reading it.</p>
<p>In the case of online contracts, you don't even have a copy of them, so the other party could change the terms and you wouldn't even have a way to know it. Stackexchange could tell me that I agreed to post at least a question per month, or my profile would be deleted. Well, did I agree to that? Maybe, who knows, I don't know what was really written in the TOS when I clicked, and now they might have changed the terms and there could be no trace of the old contract. </p>
<p>So are these contracts valid? What makes a contract valid and binding?</p>
<p>If jurisdiction is important, I'm interested in the EU and the US.</p>
| 31,833 |
[
{
"answer_id": 31843,
"body": "<blockquote>\n <p>Typical examples are contracts you \"accept\" online, like TOS's and privacy policies. Nobody reads that... Websites know that nobody reads their huge TOS's or privacy policies, and it has also been demonstrated (researches, polls, articles)...</p>\n</blockquote>\n\n<p>To target this specific portion of your question, this was addressed in Zappos.com Inc., Customer Data Security Breach Litigation (MDL No. 2357), U.S. District Court, District of Nevada. Consumers won a small victory.</p>\n\n<p>From <a href=\"https://topclassactions.com/lawsuit-settlements/lawsuit-news/2633-zapposcom-loses-arbitration-bid-in-data-breach-class-action-lawsuit/\" rel=\"noreferrer\">Zappos.com Loses Arbitration Bid in Data Breach Class Action Lawsuit</a>:</p>\n\n<blockquote>\n <p>The main problem, according to the court, is that the arbitration\n clause is buried as a “snippet” in a 4-page Terms of Use contract,\n which can only be found by clicking on an obscure link on the site.</p>\n \n <p>“We cannot conclude that Plaintiffs ever viewed, let alone manifested\n assent to, the Terms of Use. The Terms of Use is inconspicuous, buried\n in the middle to bottom of every Zappos.com webpage among many other\n links, and the website never directs a user to the Terms of Use. No\n reasonable user would have reason to click on the Terms of Use, even\n those users who have alleged that they clicked and relied on\n statements found in adjacent links, such as the site’s ‘Privacy\n Policy,’” the court said.</p>\n \n <p>Later, the court blasts Zappos for trying to bind users into\n arbitration simply because they browse the site. According to the\n court:</p>\n \n <p>“The arbitration provision found in the Zappos.com Terms of Use\n purportedly binds all users of the website by virtue of their\n browsing. However, the advent of the Internet has not changed the\n basic requirements of a contract, and there is no agreement where\n there is no acceptance, no meeting of the minds, and no manifestation\n of assent. A party cannot assent to terms of which it has no knowledge\n or constructive notice, and a highly inconspicuous hyperlink buried\n among a sea of links does not provide such notice. Because Plaintiffs\n did not assent to the terms, no contract exists, and they cannot be\n compelled to arbitrate.”</p>\n</blockquote>\n\n<p>So it seems the court recognizes there is no meeting of the minds in some instances.</p>\n",
"score": 9
},
{
"answer_id": 31834,
"body": "<p>This applies to contract law in US and many (if not all) of EU jurisdictions.</p>\n\n<blockquote>\n <p>Is a contract valid if one of the party doesn't even read it?</p>\n</blockquote>\n\n<p>Yes. A meeting of the minds is <em>presumed</em> as long as the contract has been signed.</p>\n\n<p>The party's deliberate choice not to read the clauses does not release him or her from the obligations acquired at the moment the contract was willfully signed. Although <em>contract law</em> typically refers to entering a contract <em>knowingly</em>, a more correct phrasing would be that the party <em>knew or should have known</em> the clauses when deciding to enter the contract.</p>\n\n<blockquote>\n <p>In the case of online contracts, you don't even have a copy of them,\n so the other party could change the terms and you wouldn't even have a\n way to know it.</p>\n</blockquote>\n\n<p>Technically one can \"always\" (?) save a copy of the online contract (by clicking on \"<em>Save As ...</em>\", printing the document, taking a screenshot, etc.). It is just doubtful that people take that precaution, as it seems unprecedented or very unusual for the draftsman to alter the contract <em>retroactively</em> and/or without proper (and timely) notice to the other party.</p>\n\n<p>Assuming that no one else saved a copy of the contract, the situation you outline would require some sort of forensic analysis to ascertain whether the contract was improperly altered. That analysis might be complemented by scrutinizing the parties' conduct and the timing of the events at issue.</p>\n",
"score": 5
},
{
"answer_id": 87561,
"body": "<p>I note that all the particular contracts you cite are contract of adhesion. That is, the balance of power between you and the company is so great that you have no power to negotiate.</p>\n<p>Usually such contracts are valid and binding. There is, however, an exception, not if you do not read them, but if a clause is <em>unconscionable</em>. That is, the clause is so unfair as to shocking to the conscience.</p>\n",
"score": 2
}
] |
[
"united-states",
"contract-law",
"european-union",
"signature",
"digital-contract"
] |
Legal advantages of making a nonprofit into a church?
| 0 |
https://law.stackexchange.com/questions/87550/legal-advantages-of-making-a-nonprofit-into-a-church
|
CC BY-SA 4.0
|
<p>Do churches in the US have any special legal protections beyond that which a 501(c)(3) would have? Religious organizations tend to have some immunities in the US, so I'm wondering what, if anything, carries. Tax stuff, maybe? I think there's a ?myth? about that states that searching a church is illegal?</p>
| 87,550 |
[
{
"answer_id": 87552,
"body": "<p>The US does give deference to organizations that claim to be "religious", for example the <a href=\"https://www.congress.gov/bill/103rd-congress/house-bill/1308\" rel=\"nofollow noreferrer\">Religious Freedom Restoration Act</a>, which "Prohibits any agency, department, or official of the United States or any State (the government) from substantially burdening a person's exercise of religion even if the burden results from a rule of general applicability, except that the government may burden a person's exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." Or the <a href=\"https://en.wikipedia.org/wiki/Burwell_v._Hobby_Lobby_Stores,_Inc.\" rel=\"nofollow noreferrer\">Burwell v Hobby Lobby</a> case based on that law "allowing privately held for-profit corporations to be exempt from a regulation its owners religiously object to, if there is a less restrictive means of furthering the law's interest", or Scientology being allowed to <a href=\"https://scientologymoneyproject.com/2018/08/19/104721-per-year-if-sea-org-members-were-paid-according-to-minimum-wage-requirements-in-los-angeles/\" rel=\"nofollow noreferrer\">not follow minimum wage</a>, or how Title VII of the Civil Rights Act states "<a href=\"https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964\" rel=\"nofollow noreferrer\">This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation</a>".</p>\n<p>The greater the nexus between the conduct and the religious nature of the organization, the more deference is given. For instance, roles classified as "ministry", such as a priest, will be given more leeway than a more secular role such as a construction worker who happens to be building a church. BTW, as far 501(c)(3) is concerned, there is deference in that classification, as religious organizations do not have the same burden of establishing charitable purpose that secular organizations do.</p>\n<p>Also, having your nonprofit be a church would mean that <a href=\"https://highlander.fandom.com/wiki/Immortal\" rel=\"nofollow noreferrer\">Immortals</a> wouldn't be able to fight on the grounds.</p>\n",
"score": 3
},
{
"answer_id": 87551,
"body": "<p>There is no legal advantage to being a church in terms of searches and seizures, though there may be extra-legal preferential policies by law enforcement agencies, as discussed <a href=\"https://www.churchlawcenter.com/church-law/churches-as-sanctuaries/\" rel=\"nofollow noreferrer\">here</a>. There does exist what is known as the <a href=\"https://en.wikipedia.org/wiki/Ministerial_exception\" rel=\"nofollow noreferrer\">"ministerial exception"</a> which provides an exception to anti-discrimination laws in the hiring of ministers (a Catholic church can require ministers that it hires to be Catholic priests, and they also cannot be forced to hire women priests). This also applies to applies to the wage-and-hour requirements of the Fair Labor Standards Act, and has been applied to the ADA. There is some uncertainty as to who is a "minister". The underlying principle is that the government can forbid various actions, but may have to allow those actions in the event that the prohibition runs afoul of the Free Exercise clause (requiring all religions to hire female priests restricts the exercise of certain religions, just as the <a href=\"https://en.wikipedia.org/wiki/Church_of_the_Lukumi_Babalu_Aye_v._City_of_Hialeah\" rel=\"nofollow noreferrer\">prohibition of animal sacrifice</a> restricts certain religions).</p>\n",
"score": 2
}
] |
[
"united-states",
"religion",
"non-profit"
] |
For bankruptcy, are your finances taken into account at the time of filing, or at the time of the 341 meeting several months later?
| 1 |
https://law.stackexchange.com/questions/56663/for-bankruptcy-are-your-finances-taken-into-account-at-the-time-of-filing-or-a
|
CC BY-SA 4.0
|
<p>Pretty much just the title. Just wondering if finances taken into account are at the time of filing or at the time of the <a href="https://www.law.cornell.edu/uscode/text/11/341" rel="nofollow noreferrer">341 creditors meeting?</a></p>
<p>Asking as a matter of law - what does the law say?</p>
| 56,663 |
[
{
"answer_id": 56875,
"body": "<p>At the time of filing it is typical to file a long form with information about the state of your finances. Weeks or months later at the time of meetings or hearings, it is plausible that someone might ask for updated information, but I think that is unusual. Generally if you have a negative change in finances it might be worthwhile to file an update, and if there is a positive change in finances it might be worthwhile to delay it until the plan is finalized, or at the very least avoid making that information known more than necessary. For example, no tweeting about your big inheritance, and no flashy purchases from your lottery win.</p>\n",
"score": 1
}
] |
[
"united-states",
"bankruptcy"
] |
Shared Parenting - How intoxicated does a parent have to be to deny visitation?
| 7 |
https://law.stackexchange.com/questions/22667/shared-parenting-how-intoxicated-does-a-parent-have-to-be-to-deny-visitation
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CC BY-SA 3.0
|
<p>I'm posting as a guest for anonymity. </p>
<p>My ex-wife and I have a shared parenting plan (50/50 time) of our 3 year old son. We live in the US (the state of Ohio) and have been divorced (technically a dissolution) for around 2 years. As our child is not yet school age we opted to put off assigning a "custodial parent" (which, I know, is rapidly approaching). </p>
<p>Since before we were divorced I have suspected my ex has a drinking problem but perhaps naively (or more likely for lack of visibility) I had thought she compartmentalized her drinking to her off-parenting time. Recently, however, there was an event that gave me great cause for concern and I want to be sure I understand the law so as not to mistep. </p>
<p>Last weekend, I was asked to watch my son for a few hours on a day that was scheduled hers (he had been cooped up in the house sick and was apparently driving her nuts). I took him out to run errands with me for a few hours but when it came time to drop him back off I received an alarming text message. </p>
<p>Essentially, she let me know that she had been drinking so it wasn't a good idea for her to meet us at the playground where we were going to be, so instead could I drop him off directly at her house? Obviously concerned, I asked her how much she had drank, to please stop and indicated I could keep him for an additional couple of hours while she took efforts to sober up. She was (understandably?) outraged, claimed to have drank only 3 beers and demanded I drop him off immediately. I held my ground and (after a lot of arguing) we eventually rescheduled the drop-off time to later in the day. </p>
<p>One of the things she let slip (verbally) while we were arguing was that she apparently regularly drinks while she has him but never drives "even after one beer" and "never gets drunk" when he is around. </p>
<p>Since this episode, I have been reading up on denied visitation and the contempt charges that can spur from that and so I want to be very careful in how I act. At the end of the day I want to protect my son but I'm also scared that I could jeopardize my ability to gain primary or full custody of him. I understand I need to document everything I see to begin building a case (which I have started) but I also want to be sure that if I have to involve the police that I do so in a way that doesn't harm my case.</p>
<p>My Questions:</p>
<ul>
<li>Is there a legal standard as to how sober a care-giver must be to safely watch a child (or in other words) how drunk does my ex have to be for me to deny a drop-off? Is it entirely based upon outward signs or blood-alcohol level?</li>
<li>Am I correct in assuming that in order to protect myself from being accused of denying visitation, that (in the future) I need to involve the police if I suspect her of being intoxicated? </li>
<li>If I involve the police, do I need to be sure that she is extremely intoxicated in order to avoid a "false alarm"? (Obviously this scares me as I'd prefer she didn't drink at all)</li>
<li>What options do I have, if any, if she drinks around him in her own home? Is she within her legal right as long as she doesn't get in a car, doesn't pass out or does something blatantly abusive?</li>
</ul>
| 22,667 |
[
{
"answer_id": 23851,
"body": "<p>In 50/50 custody you have the right to stand your ground to ensure the safety and well being of your children. You do not need to involve police unless it is an emergency. "911 Operator, what is the emergency". Only call them when you feel your children are in grave danger. For example, you know for sure that the other parent is drunk and driving, or the other parent is drunk and on the ground unable to move and the child is in danger, etc.</p>\n<p>If you involve the police over your partner excessive drinking than, and they find that she was not excessively drinking, you will face false accusation charges and her lawyer will try to make you look like the bad guy trying to take away her children.</p>\n<p><strong>how drunk does my ex have to be for me to deny a drop-off? Is it entirely based upon outward signs or blood-alcohol level?</strong></p>\n<p><em>You should not search for drugs or alcohol, or administer tests, as to avoid the accusation of an illegal search.</em></p>\n<p>You can, however, based on your judgment of common sense assess the situation and see how drunk (s)he is and make your decision based on that circumstances. Make a 1-page log to document the date, time, situation description (3-5 sentences of what you see and why you make that decision.) It would be wise to have a witness around, so write down the person name as well for reference, (NOT MANY PEOPLE LIKE TO BE WITNESSES, But you can write down the people names that you know were around that incident.) Don't tell your partner that you are making the log. Suprise them in the court when you have a full page of incidents due to drinking.</p>\n<p><strong>Am I correct in assuming that in order to protect myself from being accused of denying visitation, that (in the future) I need to involve the police if I suspect her of being intoxicated?</strong></p>\n<p>*Always protect yourself! Be Your Own Advocate. * Don't involve the police unless its am emergency, read the first comment above.</p>\n<p><strong>If I involve the police, do I need to be sure that she is extremely intoxicated in order to avoid a "false alarm"? (Obviously, this scares me as I'd prefer she didn't drink at all)</strong></p>\n<p>This drinking incident is alarming itself. However, you should consult with your family law attorney. I would say that document five issues if it exceeds 5 in one month than filing a motion with the court to adjust the drinking problem, and that you request the child to be with you 60/40 custody. You must be able to demonstrate that you have the time, commitment and resources to take over the 60/40 custody.</p>\n<p><strong>What options do I have, if any, if she drinks around him in her own home? Is she within her legal right as long as she doesn't get in a car, doesn't pass out or does something blatantly abusive?</strong></p>\n<p><em>File a motion to adjust the custody, speak with your family law attorney.</em></p>\n",
"score": 5
}
] |
[
"united-states",
"divorce",
"children",
"ohio"
] |
In Washington: Is it legal to sell alcohol to someone without an ID who looks 90 years old, after asking to see their ID?
| 5 |
https://law.stackexchange.com/questions/24729/in-washington-is-it-legal-to-sell-alcohol-to-someone-without-an-id-who-looks-90
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CC BY-SA 3.0
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<p>At the store I used to work at, if you ask for ID, the customer NEEDS to provide it. They could have grey hair, a cane, and even be verified as 21+ by someone else, and it still wouldn't matter. We were told that this was Washington State law. I've had this happen before and when the customer doesn't believe me, I call my manager and they repeat that it is the law. Recently someone said that isn't true, and in researching it, I haven't been able to confirm either way. </p>
<p>I've seen things about an ID not being necessary, but it doesn't specifically mention anything about if they had been asked for their ID already.</p>
<p>SO: Once you have asked for ID, is it necessary to see the ID before selling Alcohol, even if the person looks old enough?</p>
<p>Edit: I feel that maybe I was a bit confusing in this question. I am specifically interested in exactly where the line between policy and law is. I understand why the laws are in place, I don't understand what the minimum requirement is, and what is just trying to cover the bases just in case.</p>
| 24,729 |
[
{
"answer_id": 24733,
"body": "<p>It is illegal to sell alcohol to a minor in Washington (<a href=\"http://apps.leg.wa.gov/rcw/default.aspx?cite=66.44.270\" rel=\"noreferrer\">RCW 66.44.270</a>). The seller can get into various kinds of trouble, including losing their license, under <a href=\"http://apps.leg.wa.gov/WAC/default.aspx?cite=314-11\" rel=\"noreferrer\">liquor board regulations</a>. However, as long as the establishment follows the rules for <a href=\"http://apps.leg.wa.gov/WAC/default.aspx?cite=314-11-025\" rel=\"noreferrer\">acceptable ID</a>, they <a href=\"http://app.leg.wa.gov/RCW/default.aspx?cite=66.20.210\" rel=\"noreferrer\">escape liability</a> if in fact they sell alcohol to a minor: the license holder is <a href=\"http://app.leg.wa.gov/RCW/default.aspx?cite=66.20.170\" rel=\"noreferrer\">legally allowed</a> to accept an identification of the specific type. That is the sense in which this is required by law: the customer must have actually presented the identification, in order for the establishment to escape liability (<a href=\"http://app.leg.wa.gov/RCW/default.aspx?cite=66.20.210\" rel=\"noreferrer\">RCW 66.20.210</a>). Looking old enough is not the issue. It is legal to sell alcohol to a person who is over 21, and the law does not <em>require</em> presentation of identification as a condition for a sale. However, under <a href=\"http://apps.leg.wa.gov/rcw/default.aspx?cite=66.20.180\" rel=\"noreferrer\">RCW 66.20.180</a> a person is require to produce ID \"upon request of any <em>licensee</em>, peace officer, or enforcement officer of the board\". The legal risk attached to sales in an age-marginal situation is very high, and actual presentation of ID is required to escape liability by the establishment, so in that sense, it is \"required by law\".</p>\n\n<p>All requests to produce ID for liquor sales (at least in Washington, and leaving out deliveries which are governed by other laws) are driven by company policy. Typical policies are quite rational, being designed to protect the company's interest in not getting into a heap of trouble for an under-age sale. There is no law saying when you must ask, or when you are protected if you don't ask. Usually, store policy is to use \"common sense\" so that 90 year olds are not required to produce ID (they may be asked, jokingly).</p>\n\n<p>Non-compliance with RCW 66.20.180 carries no legal penalty, that is, there is nothing in the statute that says \"if the customer doesn't...\". The most obvious would be that the seller would refuse to sell, which the seller can arbitrarily do anyhow. There is no statutory penalty imposed on a licensee if they request ID of a person over 21 and the person fails / refuses to produce the ID. Obviously, the licensee cannot be punished if a customer fails to provide ID (and leaves), especially if they lost it. But the law \"requires\" them to provide an ID, with ne except \"unless you leave / put the bottle back\". Somewhat less obviously, if the legislature wants to, it can enact a provision that once a licensee requests ID, they are forbidden to sell alcohol to that customer until ID is provided. But there currently is no such law.</p>\n\n<p>\"The law\" also included regulations, such as <a href=\"http://apps.leg.wa.gov/wac/default.aspx?cite=314-17-105\" rel=\"noreferrer\">WAC 314-17-105</a>. This regulation is a chart, and the relevant entry is</p>\n\n<blockquote>\n <p>PERMIT: Failure to produce permit or identification upon request. See\n RCW 66.20.310 and 66.20.180.</p>\n</blockquote>\n\n<p>for which the 1st offense consequence is \"5-day permit suspension OR $100 monetary option\". This is a problematic regulation (potential lawsuit fodder), since it can be interpreted in a number of ways. The question is, of whom is the permit or identification predicated? Only the licensee has a permit, but customers and employees can both have identification. If we interpret this regulation as meaning \"Failure by licensee or customer\", then we arrive at the absurd conclusion that if a customer fails to produce ID on request, the establishment is fined. It is important to note that this regulation is under a chapter about server training, thus the regulation can only reasonably be interpreted as being about licensee providing identification. </p>\n",
"score": 10
},
{
"answer_id": 24751,
"body": "<p>I have been looking through the Washington Liquor Control Board website for more information. On the <a href=\"https://lcb.wa.gov/mastrvp/rvp-faq\" rel=\"nofollow noreferrer\">FAQ page</a>, there is this quote:</p>\n<blockquote>\n<p><strong>Does State law require ID checking when selling alcohol or tobacco?</strong></p>\n<p>No. ID checking is not required by state liquor laws but a valid card of identification must be presented by the holder <strong>if requested by any licensee or employee, peace officer, or enforcement officer of the board.</strong> RCW 66.20.180</p>\n</blockquote>\n<p>(emphasis mine) This answers the main issue I was wondering about. You are not necessarily required to ask for ID when someone wants to buy alcohol (although, as other answers have pointed out, it is a really really good idea to do so), but <strong>if you ask for ID, then the person MUST present it</strong>. There is still the issue of asking someone for their ID, then looking up and seeing a 90 year old. My manager has OK'd me to sell alcohol in that case before, and (as far as I can tell) that violates no law, because it is the licensee who has allowed them to purchase the alcohol.</p>\n<p><a href=\"http://apps.leg.wa.gov/rcw/default.aspx?cite=66.20.180\" rel=\"nofollow noreferrer\">Link to actual law</a></p>\n",
"score": 2
},
{
"answer_id": 24730,
"body": "<p>Generally speaking a store has the legal right to refuse service to anyone.</p>\n\n<p>So if you request identity and a person refuses to show it to you, you are allowed to refuse to sell alcohol to them.</p>\n\n<p>For your jurisdiction, I'm guessing it's just illegal to sell alcohol to minors, not that anyone who has their identity requested must show it.</p>\n\n<p>So to clarify: the risk falls on the shopowner. He may choose not to ask for ID, but if the person is a minor, he will get in trouble. </p>\n",
"score": 1
}
] |
[
"alcohol",
"washington"
] |
Interpretation of a clause which contradicts the purpose of an agreement
| 0 |
https://law.stackexchange.com/questions/57767/interpretation-of-a-clause-which-contradicts-the-purpose-of-an-agreement
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CC BY-SA 4.0
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<p>I have recently been asked to sign an NDA, which appears to be pretty standard, save for 1 clause which jumps out at me and leaves me scratching my head.</p>
<p>The NDA starts off naming the parties thus:</p>
<blockquote>
<p>CompanyWhoProvidedNDA Ltd ("The Company")</p>
<p>Recipients Name ("Recipient")</p>
</blockquote>
<p>The recipient has had no prior relationship with CompanyWhoProvidedNDA</p>
<p>Partway through the first section titled "Definitions and Interpretations" it says</p>
<p>1,5 "Any reference to the company, or <strong>the Recipient shall be deemed to be a reference to the Company.</strong>". The recipient may also include their respective agents, employees and contractors, and any reference to "party" shall mean such persons or any other person or entity as necessary to give full effect to the intended meaning of the Agreement." (Bolding mine)</p>
<p>Am I correct in my belief that this clause weakens the enforceability of NDA against the recipient because it redefines the Recipient as the as The Company.</p>
<p>Further, is it reasonable to believe that notwithstanding this statement, were a court to get involved questions of confidentiality the court would likely ignore this statement as it contradicts the meaning and purpose of the agreement?</p>
| 57,767 |
[
{
"answer_id": 57768,
"body": "<p>One cannot (i.e., does not) contract with oneself. The language in bold is meaningless in that it --evidently by mistake-- merges counterparties into the one that is labeled "<em>Company</em>".</p>\n<p>Equivalently, the language at issue is inconsequential to the extent the NDA altogether outlines rights and duties for [counter-]parties whose set of interests oppose each other.</p>\n<p>You might want to notify the company about this issue and have it clarify if need be, but otherwise the substance of the NDA is not weakened at all by the apparent mistake in clause 1.5.</p>\n",
"score": 1
}
] |
[
"contract-law",
"interpretation"
] |
Arming yacht/pleasure craft at sea
| 5 |
https://law.stackexchange.com/questions/87536/arming-yacht-pleasure-craft-at-sea
|
CC BY-SA 4.0
|
<p>Is it legal, applicable to arm yachts, recreational vessels. For defense against piracy, thieves, terrorism.
<a href="https://i.stack.imgur.com/Skawf.jpg" rel="noreferrer"><img src="https://i.stack.imgur.com/Skawf.jpg" alt="enter image description here" /></a></p>
| 87,536 |
[
{
"answer_id": 87539,
"body": "<h2>Gun control laws</h2>\n<p>The moment you enter the 12 nautical miles zone of a country, you need to abide by its weapon laws. Most functioning large-caliber and fully-automatic weapons are not allowed in civilian hands globally. The moment the ship leaves the 12 nautical miles zone, the country law of its flag applies, so unless you happen to start in the US with a duly registered curio/relic deck gun with proper stamps... you'll have a hard time being allowed to have the thing on board in the first place, and entering any other country's water is pretty much violating their gun control laws and gun import laws.</p>\n<h2>Ship hulls don't support them.</h2>\n<p>That deck gun there is a type of <a href=\"https://en.wikipedia.org/wiki/Bofors_40_mm_L/60_gun\" rel=\"noreferrer\">Bofors 40mm L/60 twin mounting - 40x311mmR</a>. That means, its installation weighs upwards of half a ton, as that's the smallest carriage setup according to Wikipedia. <a href=\"http://www.navweaps.com/Weapons/WNUS_4cm-56_mk12.php\" rel=\"noreferrer\">Navweapons</a> helpfully provides gun weights of roundabout half a ton per gun. That puts the minimum weight at about that of a <a href=\"https://en.wikipedia.org/wiki/7.5_cm_Pak_40\" rel=\"noreferrer\">PAK 40</a>, but as Navweapons tells us, a US Mark 1 Twin clocks in at 4.4 to 5.8 tons including guns. All on the one mounting spot.</p>\n<p>With the bulk they are, no fiberglass ship hull could support that much load on the gun's small footprint. It needs a steel-hulled superyacht to even bear the deck load of such an installation. If your ship is the size of a coastguard or navy vessel, it probably <em>is</em> such a ship redesigned, a commercial fishing boat (similar specs), a cargo vessel, a large cruise vessel, or built to your specifications from the ground up.</p>\n",
"score": 8
}
] |
[
"law-of-the-sea",
"defense"
] |
Not smart enough for jury duty
| 3 |
https://law.stackexchange.com/questions/87516/not-smart-enough-for-jury-duty
|
CC BY-SA 4.0
|
<p>Someone I know is not mentally handicapped but has hard time understanding things and often needs to have private tutoring to grasp a concept. This person is potentially being selected for jury duty. He's terrified he'll have no idea what he is doing or what is happening. I suspect if he is selected someone will have to guide him how to vote or he'll freeze up.</p>
<p>He used to have <a href="https://www.nhs.uk/mental-health/conditions/selective-mutism/" rel="nofollow noreferrer">selective mutism</a> which might have been officially diagnosed as a child, but I am not sure. Without getting an official diagnosis for a mental disorder, does he have any options to get out of jury duty?</p>
| 87,516 |
[
{
"answer_id": 87518,
"body": "<h2>It Depends on the state and court</h2>\n<p>How much mental capacity is required depends on the jurisdiction. In every state, there's a law that describes who has to serve jury duty, and who is exempt, and if a style of dress is prescribed. In the following, I will grab a couple of random states to illustrate, using <a href=\"https://www.juryduty101.com/\" rel=\"nofollow noreferrer\">https://www.juryduty101.com/</a> as the main source, because they give a good overview for all 50 states but are not fully reliable for all details. Look up your proper state statute using the reference links from the site.</p>\n<p>Do <em>also</em> note that courthouses might have additional requirements that might be higher or more specific, especially in the dress code (some might require to wear face masks, others don't) or current health status (like testing negative for COVID). It's required to read the call for jury duty for those. As a random example: the <a href=\"https://www.nyed.uscourts.gov/court-info/faq/jury?page=1\" rel=\"nofollow noreferrer\">Eastern District of New York</a> tells its expectations (almost mimicked by most other courts):</p>\n<blockquote>\n<p>Proper court attire is mandatory. <strong>No jeans, shorts, tank tops, sweats or other very casual attire is permitted.</strong> Dress "business casual" or "business" for your appearance.</p>\n</blockquote>\n<hr />\n<p>In <a href=\"/questions/tagged/connecticut\" class=\"post-tag\" title=\"show questions tagged 'connecticut'\" aria-label=\"show questions tagged 'connecticut'\" rel=\"tag\" aria-labelledby=\"connecticut-container\">connecticut</a>, there's a rather simple list of who's exempt from <a href=\"https://www.juryduty101.com/states/connecticut/jury-duty-excuses\" rel=\"nofollow noreferrer\">Jury Duty</a> in the first place. The page is listing, among others, disability as an excuse from Jury Duty, and you need to <a href=\"https://www.juryduty101.com/states/connecticut#qualifications\" rel=\"nofollow noreferrer\">qualify</a> in the first place. The Qualifications demanded from a juror, among others, are this:</p>\n<blockquote>\n<ul>\n<li>have the ability to read, speak, and understand English</li>\n<li>be of sound mind to the capability of "rendering satisfactory juror service, <strong>being able to perform a sedentary job requiring close attention for three consecutive business days for six hours per day</strong>, with short breaks in the morning and afternoon sessions."</li>\n</ul>\n</blockquote>\n<p>The bolded portion is why people with ADHD might get an excuse in Connecticut, while the <em>sound of mind</em> part allows someone with a mental disability to claim disqualification.</p>\n<p>In <a href=\"/questions/tagged/arkansas\" class=\"post-tag\" title=\"show questions tagged 'arkansas'\" aria-label=\"show questions tagged 'arkansas'\" rel=\"tag\" aria-labelledby=\"arkansas-container\">arkansas</a>, the <a href=\"https://www.juryduty101.com/states/arkansas\" rel=\"nofollow noreferrer\">qualifications</a> demand the prospective juror to <em>consider themselves of sound mind and good moral character</em> - which appears as a self-estimation. The actual legislation for disqualification for <em>sound mind and good moral</em> can be found <a href=\"https://law.justia.com/codes/arkansas/2010/title-16/subtitle-3/chapter-31/16-31-102/\" rel=\"nofollow noreferrer\">here</a>, and doesn't make it a self-estimation but makes it appear a thing of fact, without elaborating how that is determined.</p>\n<p><a href=\"/questions/tagged/missouri\" class=\"post-tag\" title=\"show questions tagged 'missouri'\" aria-label=\"show questions tagged 'missouri'\" rel=\"tag\" aria-labelledby=\"missouri-container\">missouri</a>, boldly <a href=\"https://www.juryduty101.com/states/missouri\" rel=\"nofollow noreferrer\">demands</a> a juror <em>must not be mentally or physically ill or infirmed.</em> or... actually that is too broad of a characterization, as it omits some crucial words:</p>\n<blockquote>\n<p><a href=\"https://law.justia.com/codes/missouri/2011/titlexxxiv/chapter494/section494425/\" rel=\"nofollow noreferrer\">MO Rev Stat § 494.425</a> Persons ineligible for jury service.</p>\n<p>494.425. The following persons shall be disqualified from serving as a petit or grand juror: [...]</p>\n<p>(8) Any person who, <strong>in the judgment of the court</strong>, is incapable of performing the duties of a juror because of mental or physical illness or infirmity. The juror or the juror's personal representative, may provide the court with documentation from a physician licensed to practice medicine verifying that a mental or physical condition renders the person unfit for jury service for a period of up to twenty-four months.</p>\n</blockquote>\n",
"score": 9
},
{
"answer_id": 87537,
"body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"england-and-wales-container\">england-and-wales</a></p>\n<p>A juror can be disqualified from (or excused) jury service if they lack mental capacity under the Mental Capacity Act (2005).</p>\n<blockquote>\n<p><strong>SCHEDULE 1 - Persons Disqualified for Jury Service;</strong></p>\n<p>Persons subject to Mental Health Act 1983 or Mental Capacity Act 2005<br />\n(or)<br />\n<strong>A person who lacks capacity, within the meaning of the Mental Capacity Act 2005, to serve as a juror</strong></p>\n<p><sub><Sup><a href=\"https://www.legislation.gov.uk/ukpga/1974/23/section/1\" rel=\"nofollow noreferrer\">Juries Act (1974)</a></sub></Sup></p>\n</blockquote>\n<p>In this instance, there's a simple test provided in the <a href=\"https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/921428/Mental-capacity-act-code-of-practice.pdf\" rel=\"nofollow noreferrer\">Mental Capacity Act - Code of Practice</a> for the assessment of capacity;</p>\n<blockquote>\n<p>Does the person have an impairment of the mind or brain, or is there\nsome sort of disturbance affecting the way their mind or brain works?\n(It doesn’t matter whether the impairment or disturbance is temporary\nor permanent.)</p>\n<p>If so, does that impairment or disturbance mean that the person is\nunable to make the decision in question at the time it needs to be\nmade?</p>\n</blockquote>\n<p>Your friend should <a href=\"https://www.gov.uk/jury-service/respond-to-the-summons\" rel=\"nofollow noreferrer\">respond to the jury summons</a> with an outline of why they don't feel capable of performing jury duty <strong>based on the two criteria above</strong>, information about anyone that assisted them in writing their response, the fears that they have previously expressed (e.g. that he is "<em>terrified he'll have no idea what he is doing or what is happening</em>") as well as the anxiety that is being caused by their selection and any adverse health consequences arising.</p>\n<p>It's likely that the Jury Central Summoning Bureau will simply reply to say that this person is excused.</p>\n",
"score": 2
}
] |
[
"united-states",
"jury"
] |
Paying debts in cash in a petty way
| 2 |
https://law.stackexchange.com/questions/38831/paying-debts-in-cash-in-a-petty-way
|
CC BY-SA 4.0
|
<p>I owe a £5,000 debt and I wished to make payment in the pettiest but legal way possible.</p>
<p>I would like to pay entirely in cash, I'm aware there is a previous case history in doing such a thing and I am aware there are <a href="https://www.royalmint.com/help/trm-faqs/legal-tender-amounts/" rel="nofollow noreferrer">rules regulating how many coins to value are legal tender</a>.</p>
<p>I have prepared sorted piles of coins based on my basic understanding of what is legal tender:</p>
<ul>
<li>20 * 1p = 20p</li>
<li>10 * 2p = 20p</li>
<li>92 * 5p = £4.60</li>
<li>50 * 10p = £5</li>
<li>50 * 20p = £10</li>
<li>20 * 50p = £10</li>
<li>4970 * £1 = £4970</li>
</ul>
<p>I believe at this point this would be an acceptable form of payment.</p>
<p>I mix all these coins into one massive sack. </p>
<p>I then fill the sack with an assortment of confetti.</p>
<p>Just as I prepare to take the sack to make payment, my child who I have been teaching the value of money tips in a till full of fake coins. I don't have time so I delivery the sack as payment as is.</p>
<p>Have I paid in a way in which the creditor cannot refuse payment?
At what point are they justified in their refusal?
Am I responsible for the sorting of coins?
Am I liable for the cost of time involved in sorting?</p>
<p>Although I am looking for an answer in a British context I'm happy to hear how this may differ in other countries.</p>
<p>Clarification: This question is entirely hypothetical. </p>
| 38,831 |
[
{
"answer_id": 82567,
"body": "<p>In English law, "legal tender" is effective in only one situation: the defence of "tender before claim".</p>\n<p>In practice, in order to maintain such a defence, you must pay the money into court with a copy of the claim form and defence. See <a href=\"https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part37#IDAALICC\" rel=\"nofollow noreferrer\">CPR37.2</a> and <a href=\"https://www.legislation.gov.uk/uksi/2011/1734/article/6/made\" rel=\"nofollow noreferrer\">section 6 of the Courts Funds Rules 2011</a>.</p>\n<p>Unfortunately for you, the Court Funds Office <a href=\"https://www.gov.uk/pay-court-funds-office\" rel=\"nofollow noreferrer\">expects to be paid by cheque</a>, though the rules say that ordinarily a cheque or banker's draft is acceptable. See <a href=\"https://www.legislation.gov.uk/uksi/2011/1734/article/7/made\" rel=\"nofollow noreferrer\">section 7</a> of the court funds rules. To pay in cash, you the Accountant General would have to direct otherwise.</p>\n<p>There might be some exceptionally unlikely situation in which a court might accept a very awkward set of coins, but so unlikely is it as to be discounted.</p>\n<p>The upshot of all this is that, although in theory one can offer to pay in legal tender as a defence to a claim in debt, in practice the rules for legal tender are irrelevant - the rules of the Court Funds Office are what prevail.</p>\n",
"score": 2
},
{
"answer_id": 87540,
"body": "<h2>Your payment can be refused in <a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"germany-container\">germany</a></h2>\n<p>Nobody is obligated to take more than 50 coins in legal tender under MünzG §3, as I already elaborated <a href=\"https://law.stackexchange.com/a/82598/10334\">here</a>. The only custom that gets social pressure to accept such a payment is bridal shoes, which customarily are to be paid in small change as that is considered to bring good luck. Otherwise, nothing <em>forces</em> them to accept a pile of loose change.</p>\n<p>Only the Bundesbank is required to accept any amount of coins, for the purpose to change them for others or bills of higher denomination.</p>\n<h2>Your split is not legal in <a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"england-and-wales-container\">england-and-wales</a></h2>\n<p>Your payment is to be £5000. <a href=\"https://www.royalmint.com/help/trm-faqs/legal-tender-amounts/\" rel=\"nofollow noreferrer\">That is more than £10.</a> As such, any denomination smaller than £1 is not legal tender for that transaction. You have to pay with 5000 £1 coins to be on the legal side and have the most coins possible.</p>\n<h2>Padding the bags... in general</h2>\n<p>Adding confetti to "pad the bags" might be seen as an attempt to cover up missing coins. The presence of fake coins definitely crosses the bridge to fraud - the mere giving them away knowing they are fake is fraud.</p>\n",
"score": 2
}
] |
[
"legal-tender"
] |
Will Narendra Modi, the prime minister of India, be back on a US visa blacklist once he retires?
| 6 |
https://law.stackexchange.com/questions/87512/will-narendra-modi-the-prime-minister-of-india-be-back-on-a-us-visa-blacklist
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CC BY-SA 4.0
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<p>India's sitting prime minister Narendra Modi was USA's visa ban list for several years for inciting a pogrom in Gujarat in 2002, where around 900 Muslims were murdered. He was removed from the list once he became the PM.</p>
<p>What does the US law say about him when he retires? Will he be a natural candidate for a ban again?</p>
| 87,512 |
[
{
"answer_id": 87522,
"body": "<p>Modi was found inadmissible under <a href=\"https://www.law.cornell.edu/uscode/text/8/1182#a_2_G\" rel=\"nofollow noreferrer\">8 USC 1182(a)(2)(G)</a>:</p>\n<blockquote>\n<p>(G) <strong>Foreign government officials who have committed particularly severe violations of religious freedom</strong></p>\n<p>Any alien who, while serving as a foreign government official, was responsible for or directly carried out, at any time, particularly severe violations of religious freedom, as defined in section 6402 of title 22, is inadmissible.</p>\n</blockquote>\n<p>There may be some discretion in determining whether an individual participated in violations of religious freedom, but once that determination has been made, there is no discretion: the person is inadmissible. There is a provision for this inadmissibility to be waived by the Secretary of Homeland Security, but without such a waiver, the Department of State cannot issue a visa.</p>\n<blockquote>\n<p>He was removed from the list once he became the PM.</p>\n</blockquote>\n<p>This isn't precisely true. What happened, rather, is that because he became India's head of government, he became eligible to enter the US with an A-1 visa as a foreign head of government (and only with an A-1 visa, regardless of the purpose of his visit). Under <a href=\"https://www.law.cornell.edu/uscode/text/8/1102\" rel=\"nofollow noreferrer\">8 USC 1102</a> the aforementioned ground of inadmissibility does not apply to diplomatic visa classes:</p>\n<blockquote>\n<p>Except as otherwise provided in this chapter, for so long as they continue in the nonimmigrant classes enumerated in this section, the provisions of this chapter relating to ineligibility to receive visas and the removal of aliens shall not be construed to apply to nonimmigrants—</p>\n<p>(1) within the class described in paragraph (15)(A)(i) of section 1101(a) of this title, except those provisions relating to reasonable requirements of passports and visas as a means of identification and documentation necessary to establish their qualifications under such paragraph (15)(A)(i), and, under such rules and regulations as the President may deem to be necessary, the provisions of subparagraphs (A) through (C) of section 1182(a)(3) of this title;</p>\n</blockquote>\n<p>Modi was ineligible to visit the US as a "visitor for business or pleasure" before he became prime minister, and he still is, and he will continue to be after he ceases to be prime minister. However, while he is prime minister he is eligible to visit the US as an official representative of the Indian government.</p>\n<p>In this circumstance, the State Department can prevent him from traveling to the US by declaring him <em>persona non grata,</em> for which no justification is needed. This is a purely political decision that does not need to be linked to any statutory provision nor to any particular behavior or other set of facts.</p>\n<blockquote>\n<p>What does the US law say about him when he retires? Will he be a natural candidate for a ban again?</p>\n</blockquote>\n<p>No, he won't be a candidate for a ban. His existing inadmissibility will automatically resume its effect of preventing him from traveling to the US.</p>\n",
"score": 5
}
] |
[
"united-states"
] |
Can a person be "cleared" of a conviction for something that is no longer a crime?
| 2 |
https://law.stackexchange.com/questions/55813/can-a-person-be-cleared-of-a-conviction-for-something-that-is-no-longer-a-crim
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CC BY-SA 4.0
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<p>There may be numerous instances of this sort, but I will ask my question based on the instance with which I am most familiar.</p>
<p>Ten years ago, Defendant was arrested and convicted for possession of a small amount of marijuana.</p>
<p>Recently marijuana use was legalized in the defendant's state. If s/he were to use the same amount of marijuana today, it would not be illegal.</p>
<p>Can the prior conviction/criminal record be reversed, expunged, or at least suppressed in at least some states of the United States because it is no longer a
crime? If so, what is the mechanism?</p>
| 55,813 |
[
{
"answer_id": 55814,
"body": "<p>This is <a href=\"http://lawfilesext.leg.wa.gov/biennium/2019-20/Pdf/Bills/Session%20Laws/Senate/5605.SL.pdf?q=20200829183524\" rel=\"nofollow noreferrer\">SB 5605 in Washington</a>, effective July 28, 2019, which allows a person to vacate a misdemeanor conviction for marijuana possession. The process allows a person to withdraw a guilty plea, or has the court vacate a conviction after a not guilty plea, and then the court dismisses the charges. That doesn't create a right for compensation for then penalty imposed, but it does remove any legal disabilities arising from the conviction. It depends on whether that state has such a law: such laws exist in a number of states, and apparently in California it does not even require application.</p>\n",
"score": 3
},
{
"answer_id": 55827,
"body": "<p>Say you have a law change which states that something which was a crime up to Aug 30th 2020 is not a crime from Sep 1st 2020 onward. And a person has been convicted of the crime and served their sentence, or has been convicted of the crime and is serving their sentence, or is in court accused of the crime, or has committed the crime on Aug 30th or before.</p>\n<p>It depends on other laws how this situation should be treated. If we are lucky, a country has a general law that states unambiguously how each of these cases should be treated, independent on which of its many criminal laws have changed. (Most countries have a general law for the other direction, that something that was legal now becomes legal - you cannot be convicted for something that was legal when you did it).</p>\n<p>You may also be lucky and the law change is combined with laws how old cases should be handled. For example the law could say "X is legal from Sep 1st onwards. No prosecution shall be started from Sep 1st onward for doing X before or from this date. Ongoing prosecution shall continue and convictions shall be upheld. " Or the law might be more generous.</p>\n<p>If we are unlucky there is nothing in the law books of some country to handle this. A police officer may decide on their own that they have more important things to do than investigate things that wouldn't be crimes if done today. A prosecutor may decide on his own that prosecuting something that would be legal today is not in the public interest. Different police officers or prosecutors may see things differently.</p>\n",
"score": 1
},
{
"answer_id": 87526,
"body": "<h2>No</h2>\n<p>The mere fact of legalizing something does not make it retroactively legal. Anyone who committed it while it was still a crime is still guilty, having broken the law, and if they were convicted, they still have a criminal record.</p>\n<p>It is true that police and prosecutors will seldom avidly purse criminals whose actions are no longer illegal, but that's dependent on their choice. It is also true that often amnesty is extended toward the criminals, with mass pardons removing penalties and criminal records, but that also has to be a positive and separate choice.</p>\n",
"score": 0
}
] |
[
"united-states",
"criminal-record",
"expungement"
] |
Can a person with pending asylum work for foreign (outside of US) company?
| 3 |
https://law.stackexchange.com/questions/87507/can-a-person-with-pending-asylum-work-for-foreign-outside-of-us-company
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CC BY-SA 4.0
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<p>Person who is applying for an asylum is not able to work in the US without an Employment Authorization Document (EAD). That person can apply for EAD 150 days after applying for asylum, and it will be granted after 30 days (total of 180 days) unless the EAD clock is paused for some reason.</p>
<p>But everyone who is in pending asylum somehow needs to take care of their expenses. If a person has pending asylum but no EAD document, can they get a job outside of the US (meaning work remotely for a foreign company)? In that case, what kinds of forms need to be filled out and taxes paid in order not to break the law while waiting for EAD?</p>
| 87,507 |
[
{
"answer_id": 87520,
"body": "<h2>They need a <a href=\"https://www.passright.com/remote-work-in-the-u-s-for-a-foreign-employer/\" rel=\"nofollow noreferrer\">work permit</a></h2>\n<p>To work in the US, you must be a citizen, hold a Green Card or hold a valid work permit. It doesn’t matter where your employer is located. Or your clients if self-employed.</p>\n<p>For asylum seekers and refugees:</p>\n<blockquote>\n<p>You can apply for an EAD to work when your request is approved (final or conditional), or if 150 days have passed and your case has not been decided, then you can also ask for permission to work.</p>\n</blockquote>\n<p>How they support themselves during that period is their problem. They can rely on their own resources, the support of family and friends, or contact charitable organisations.</p>\n",
"score": 1
},
{
"answer_id": 87519,
"body": "<p>Although there is some debate, the general opinion is that one needs to be authorized to work in the US in order to perform work while in the US, even if for a foreign company. (See <a href=\"https://expatriates.stackexchange.com/questions/61/are-h4-visa-holders-allowed-to-do-remote-intellectual-work\">this</a> and other linked questions.) If they work before being granted employment authorization, it will be considered "unauthorized employment" for immigration purposes.</p>\n<p>Unauthorized employment does not directly affect their eligibility for asylum; nor does it affect their eligibility for Adjustment of Status to get a green card based on asylum (though it needs to be disclosed on the application). However, unauthorized employment does remove the protection against accrual of unlawful presence during a bona fide asylum claim. See USCIS Adjudicator's Field Manual chapter 40.9.2(b)(2)(B) (on page 80-82 of <a href=\"https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm40-external.pdf\" rel=\"nofollow noreferrer\">this PDF</a>) as well as <a href=\"https://fam.state.gov/FAM/09FAM/09FAM030211.html#M302_11_3_B_3\" rel=\"nofollow noreferrer\">9 FAM 302.11-3(B)(3)</a>. So they would accrue unlawful presence during the period their asylum was pending if they didn't have a valid I-94. Unlawful presence does not in itself prevent getting asylum or Adjustment of Status to get a green card through asylum, but if they need to leave the US before getting a green card, more than 180 days of unlawful presence will trigger an unlawful presence ban, which will need to be waived when applying for a green card later.</p>\n<p>Taxes are a separate issue. Resident aliens for US tax purposes are subject to US tax on their worldwide income. Nonresident aliens for US tax purposes are generally subject to US tax only on their US-sourced income. If they are staying in the US for most of the year, they would pass the Substantial Presence Test and thus be resident aliens, and be subject to US tax on their worldwide income. Even if they don't pass the Substantial Presence Test (which is unlikely except in the year of arrival) and are nonresident aliens, income from work performed while they are in the US is US-sourced income, and subject to US tax. This is true no matter if they are staying in the US legally or illegally, and no matter if they are authorized to work in the US or not.</p>\n<p>How their tax is paid depends on whether they are classified as an employee or an independent contractor. This classification depends on the facts of the employer's control over the employee's work, and is not up to the employee or employer to choose. If the person is an employee, the employer must withhold US (federal and state) income tax and FICA and other payroll taxes (including the employee half of Social Security tax, Medicare tax, and any state payroll taxes). The employer would also have to pay half of the Social Security tax, Medicare tax, and perhaps some state payroll taxes. If the employee is an independent contractor, the employee would calculate the income tax and Self-Employment Tax (consisting of both the employee and employer halves of the Social Security tax and Medicare tax) on their tax return. They would need to make quarterly estimated tax payments as they go to avoid underpayment penalties.</p>\n",
"score": 0
}
] |
[
"immigration",
"labor-law",
"illegal-immigration",
"work-permit"
] |
Why do statutes of limitations exist?
| 35 |
https://law.stackexchange.com/questions/49941/why-do-statutes-of-limitations-exist
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CC BY-SA 4.0
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<p>I don't understand: why artificially create a set of deadlines before which one crime or another can be brought to the conviction stage? Why not be able to investigate and prosecute for an indefinite period of time after a crime has been committed? Why encourage criminals to just sit out?</p>
| 49,941 |
[
{
"answer_id": 49947,
"body": "<h2>Statutes of limitations go back a <em>long</em> way</h2>\n\n<p>The law code of ancient Athens had a five year limitation period except for murder and constitutional crimes. According to Demosthenes, these restrictions were introduced to control <a href=\"https://en.wikipedia.org/wiki/Sycophant\" rel=\"noreferrer\">sycophants</a> (people who made their living as professional litigators) from bringing unjustified lawsuits in the hope of a lucky verdict.</p>\n\n<p>As then, <a href=\"https://en.wikipedia.org/wiki/Statute_of_limitations#cite_note-7\" rel=\"noreferrer\">Statutes of Limitations</a> exist to protect defendants who are, remember, <a href=\"https://en.wikipedia.org/wiki/Presumption_of_innocence\" rel=\"noreferrer\">presumed innocent</a>. The principles on which this protection is based are that:</p>\n\n<ul>\n<li>a plaintiff or prosecutor with a valid case should pursue it with diligence,</li>\n<li>the older the claim or allegation, the more likely evidence is to be unreliable or lost,</li>\n<li>litigation or prosecution of a long-past wrong may result in more cruelty than justice.</li>\n</ul>\n\n<p>Obviously, this is all a matter of degree and different causes of action have different limitation periods.</p>\n\n<p>Most civil causes of action have a limitation period of a few months to a few years which runs from when the plaintiff should have become aware (or from when they attain their majority if they were a child) that they suffered damage. The logic here is that people doing their normal day-to-day activities should not live in perpetual fear that someone from the distant past is going to come out of the woodwork to sue them over an incident they can't remember happened if indeed it did happen. Notable exceptions include claims for damage for child abuse which have a much longer limitation period if they have one at all.</p>\n\n<p>Minor criminal offences usually have a very short limitation period partly as a spur to efficiency by those required to prosecute them and partly because the punishments are small and courts have better things to do with their time then try and sort out the probity of 15-year-old evidence for a speeding offence.</p>\n\n<p>Serious crimes like, murder and sexual assault typically have no statutory limit or they have a limit that can be set aside on application to the court.</p>\n\n<p>For example, in New South Wales the default limitation for <a href=\"https://www.legislation.nsw.gov.au/#/view/act/1969/31\" rel=\"noreferrer\">civil</a> matters is 6 years, however, it is only 1 year for defamation but 12 years if the action is founded on a deed (among other exceptions). For <a href=\"https://www.sydneycriminallawyers.com.au/blog/is-there-a-statute-of-limitations-for-minor-offences-in-nsw/\" rel=\"noreferrer\">criminal</a> matters, summary offences (magistrate's court jurisdiction and maximum 2 years imprisonment) must be must generally be brought within six-months, however, there is no limit on serious indictable offences.</p>\n",
"score": 49
},
{
"answer_id": 49954,
"body": "<p>For example, I might have a perfect alibi that proves I did not commit some specific crime. If twenty years from now I’m accused of this crime, I would have completely forgotten about the alibi, the witnesses seeing me in a different place would have forgotten, and only in the rarest situations would they remember the date. </p>\n\n<p>So having a fair trial would be very difficult, since I cannot defend myself after that long a time. If I actually committed <em>some</em> crime around that time, but not the one I’m accused of, I might not even remember for sure whether I committed the crime or not. </p>\n",
"score": 24
},
{
"answer_id": 50017,
"body": "<p><em>Slightly going offside here</em></p>\n\n<p>Other answers mention the need/usefulness of statutes of limitation presenting cases of being accused <a href=\"https://law.stackexchange.com/a/49954/257\">twenty</a> or <a href=\"https://law.stackexchange.com/a/49983/257\">25 years later</a></p>\n\n<p>However, I should note that you don't need going back that far to show how it can be a problem. Just imagine that a police office knocks your door right now and hands you a citation because you got identified as the author of a robbery that happened two months ago in a nearby city.</p>\n\n<p>You probably would be sure not to have performed that, but you would likely struggle to prove that. If you are lucky, it would have been at a time where you were working at your office or the gym, and not only would you know that at that time you would have been there, but there would also be records -and hopefuly footage- showing you there, as well as coworkers able to testify that (or, more likely, that they don't remember you <em>not</em> being there).</p>\n\n<p>Otherwise, you would be having a hard time. Maybe you stayed at home? Could you get a witness that you didn't leave it? Even for other people that live there with you, perhaps you did unattended a short trip to the supermarket in which you would have had time to do the robbery? Or maybe you went to a shop, or just walking, where a security camera would identify you not being away. However, could you remember the path you followed and thus the recordings that need to be verified?</p>\n\n<p>And that's just in a couple of months. Obviously if you knew in advance you would need it, you would remember every step, actually, you would have made sure to have an alibi. But if this day was no special for you, you had no reason to remember its details. A real <a href=\"https://en.wikipedia.org/wiki/Probatio_diabolica\" rel=\"noreferrer\">probatio diabolica</a>.</p>\n\n<p>It is obvious why the burden of the proof must lie on the accusation. And even if finally everything resolves happily, a misguiding identification could result in a long and slow process to get out of.</p>\n\n<p>Obviously, the longer a lawsuit can be filed against you, the longer you would have to preserve any relevant evidence if you are serious.</p>\n\n<p>For instance, until <a href=\"https://www.fdic.gov/consumers/assistance/protection/check21.html\" rel=\"noreferrer\">Check 21</a> was passed in 2004, US banks needed storing the received physical checks many years, as there could be a claim about them. About 70 <strong>billion</strong> cheques were written annually in the US by 2001, according to Wikipedia citation of <em>The Future of Money</em>. You can imagine the giant warehouses they needed just to store used checks. All those requirements mean costs, and thus money. If there is a statue of limitations on a claim for a forged check, the bank would only have needed to store checks for that amount of time (nowadays, they store it electronically, but although a big improvement, still amounts to enormous disk space space requisites).</p>\n",
"score": 5
},
{
"answer_id": 49983,
"body": "<p>Let's say that at the age of 21, you go and do something stupid, but aren't charged with anything. 25 years later, you run for President. Do you think a prosecutor should be able to haul you in for that decades-old crime?</p>\n\n<p>If it was, say, a murder, then the answer is yes. But what if it were more like a drug crime that they can only prove because you give some excuse about not inhaling at a press conference?</p>\n\n<blockquote>\n <p>why artificially create a set of deadlines before which one crime or another can be brought to the conviction stage?</p>\n</blockquote>\n\n<p>It doesn't have to be brought all the way to the conviction stage in that time frame. It only has to be charged. It's not a violation of the statute of limitations if the trial happens to go past the limit.</p>\n\n<blockquote>\n <p>Why encourage criminals to just sit out?</p>\n</blockquote>\n\n<p>I'm not quite sure what you mean by that. But if an alleged criminal goes into hiding or leaves the jurisdiction, the statute of limitations generally \"tolls\" until they stop hiding or come back.</p>\n",
"score": 4
},
{
"answer_id": 50016,
"body": "<p>In the United States in particular, the sixth amendment guarantees an accused criminal the right to a \"speedy and public trial\". A statute of limitations is a way of defining what \"speedy\" means in a certain context.</p>\n\n<p>A big reason this exists is to protect the defendant against a number of abuses such as:</p>\n\n<ul>\n<li>Arresting a suspect, detaining them in jail until their trial, and postponing the trial indefinitely. This effectively denies them of their right to a trial, plus it enables the state to give an effective life sentence for petty (or imagined) offenses. This practice was one of the complaints that the American colonists had about the English justice system at the time.</li>\n<li>After a crime is committed, the state gathers a large amount of evidence but waits many years to charge the suspect. Since the state already has their evidence, they can wait to arrest the suspect until the suspect's witnesses have died, memories have faded, or it becomes otherwise impossible for the suspect to defend himself. This denies the suspect the ability to make a reasonable defense, <em>heavily</em> tips the scales in favor of the state, and increases the likelihood of a wrongful conviction.</li>\n<li>Causing undue harm to an innocent person. Charging someone with a serious offense causes their social standing, personal relationships, and professional life to suffer. A speedy trial means they can quickly clear their name. If trials could be postponed indefinitely, a falsely-accused person could end up losing their business and friends and ruining their life before they were ever able to defend themselves. It's bad enough when this happens accidentally, but it can also be used as a weapon against political enemies.</li>\n</ul>\n\n<p>Statues of limitations don't just benefit the accused, they also have benefits for society in general and for the state:</p>\n\n<ul>\n<li>A criminal is likely to commit another crime so long as they are still free. Arresting and trying them quickly means you are protecting society against further offenses. Giving prosecutors a deadline is a good way to ensure that they are aggressively pursuing offenders.</li>\n<li>The state has to provide for the accused while they are in custody. A long-delayed trial can mean the suspect is held in custody for an extended period of time, which can get expensive for the state.</li>\n<li>Long delays before trials make it more likely that courts end up with an enormous backlog of cases that they can't reasonably work through.</li>\n</ul>\n\n<p>There's a good explanation (with sources) of the historical background of the \"speedy trial\" clause on <a href=\"https://constitution.congress.gov/browse/essay/amdt6_2_1_1/\" rel=\"nofollow noreferrer\">congress.gov</a>. Non-US jurisdictions may not have a \"speedy trial\" clause, but the overall motivations for statutes of limitations still hold.</p>\n",
"score": 2
}
] |
[
"statute-of-limitations"
] |
Are customer dissatisfaction and loss of trust enough reasons to terminate a relationship without obligations?
| 0 |
https://law.stackexchange.com/questions/87501/are-customer-dissatisfaction-and-loss-of-trust-enough-reasons-to-terminate-a-rel
|
CC BY-SA 4.0
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<p>A Buyer signed an instalment agreement. The Seller prematurely terminated the agreement due to their own negligence.</p>
<p>The Seller offered the Buyer another instalment agreement however, the terms are different from the initial agreement. The new agreement has stricter conditions and the Buyer felt taken advantage of.</p>
<p>The Buyer is very dissatisfied with the Seller. Based on the Buyer's past dealings with the Seller, the Buyer does not trust the Seller is capable of handling this new arrangement. Buyer foresees it would cause more problems in the future. The Buyer rejected the new agreement.</p>
<p>The Seller finally decided to abide by the initial terms but was unable to reinstate the auto deductions scheme. The Buyer doesn’t want to give in and the Seller insists the auto deductions cannot be reinstated.</p>
<p>In this scenario, does the Buyer have the right to not resume the relationship and not be liable for the balanced payment or at least not immediately?</p>
| 87,501 |
[
{
"answer_id": 87515,
"body": "<blockquote>\n<p>does the Buyer have the right to not resume the relationship and not be liable for the balanced payment or at least not immediately?</p>\n</blockquote>\n<p>There are a few gaps and inconsistencies in your description, which appears to relate to the <a href=\"https://law.stackexchange.com/q/87326/46948\">linked post</a> in regard to the purchased item (the pay-as-you-go service mentioned there is a separate contract that will be ignored here). Subject to missing details, (1) the buyer is not entitled to unilaterally terminate the [purchase] contract, and (2) the seller cannot force the buyer to make a lump-sum payment of a balance the they agreed would be paid in installments.</p>\n<p>The statements that "<em>[s]eller prematurely terminated the agreement</em>" and thereafter "<em>decided to abide by the initial terms</em>" suggest that actually the agreement had not been terminated. The seller merely desisted from amending or replacing the original agreement. The seller might be --or might have been-- in breach of contract at some point, but that is different from terminating that agreement.</p>\n<p>Nor does a party's breach necessarily entitle the counterparty to terminate that agreement. Generally speaking, that entitlement would have to be provided in the agreement. In some situations, a contract is voidable by a party. See <a href=\"http://www.oneclubofjusticides.com/p/restatement-second-contracts.html\" rel=\"nofollow noreferrer\">Restatement (Second) of Contracts</a> at §153. However, the scenario you and the other OP describe would not warrant that remedy.</p>\n<p>The seller's alleged inability to reinstate its automated deductions does not release him from his duty to perform the deductions as scheduled in the agreement. Even if the seller's [questionable] allegation is truthful, nothing appears to prevent him from processing the deductions manually.</p>\n<p>It is possible that manual processing of deductions translates to additional costs to the seller. To reduce those costs, the seller could devise lawful (i.e., not coercive, not misleading, etc.) incentives that would persuade the buyer to agree to a different arrangement. The buyer cannot be expected to waive a contractual right merely because the seller is adamant about the aforementioned inability.</p>\n<p>The tables could turn if the customer terminates the relationship in a way that amounts to breach of contract. Based on the details provided so far, it is in the buyer's best interest to stick to the terms of the agreement unless [maybe] the seller comes up with a satisfactory proposal.</p>\n",
"score": 2
}
] |
[
"contract-law",
"liability",
"breach-of-contract"
] |
What is the definition of a habitable home environment in the care and support eligibility criteria regulations 2015?
| 0 |
https://law.stackexchange.com/questions/87517/what-is-the-definition-of-a-habitable-home-environment-in-the-care-and-support-e
|
CC BY-SA 4.0
|
<p>Article 2 paragraph 2(f) of the Care and Support (Eligibility Criteria) Regulations 2015 specifies the outcome of maintaining a habitable home environment. What is the definition of ‘habitable’?</p>
| 87,517 |
[
{
"answer_id": 87521,
"body": "<h2>There is plenty of <a href=\"https://anthonygold.co.uk/latest/blog/how-bad-do-conditions-have-to-be-to-make-a-property-unfit-for-human-habitation/\" rel=\"nofollow noreferrer\">case law</a></h2>\n<blockquote>\n<p>Rendlesham Estates plc and others v Barr Ltd – [2015] 1 WLR 3663 summerised the recent caselaw on fitness for habitation and concluded that:</p>\n<p>The specific facts in each case should be considered.\nThe property should be considered as a whole rather than defect by defect. So many more minor defects may have a cumulative effect.</p>\n<p>For a dwelling to be fit for habitation … it must …</p>\n<p>(a) be capable of occupation for a reasonable time without risk to the health or safety of the occupants: where a dwelling is or is part of a newly constructed building, what is a reasonable time will be a question of fact…; and</p>\n<p>(b) be capable of occupation for a reasonable time without undue inconvenience or discomfort to the occupants.</p>\n<p>The issues in this case causing properties to be unfit for habitation included damp, condensation mould, leaks and “a lift that …. broke down with monotonous regularity”.</p>\n</blockquote>\n",
"score": 0
}
] |
[
"united-kingdom",
"england-and-wales",
"definition"
] |
How to answer this California bar-exam question?
| -2 |
https://law.stackexchange.com/questions/87463/how-to-answer-this-california-bar-exam-question
|
CC BY-SA 4.0
|
<h2>The July 2022 Bar Exam of California includes the following as <em>the fact pattern</em> of Question 1</h2>
<blockquote>
<p>"Bath Stuff (Bath), a retailer located in Betaville, sent Neat Scents (Scents), an importer located in Sunville, a signed offer to purchase 1,000 individually wrapped candles at a price of $10,000, free on board (“FOB”) Betaville. Scents promptly sent Bath a signed acknowledgment accepting the offer, which also included the following language: “Some shipping boxes have external water damage. Contents of shipping boxes guaranteed to have no damage.” Bath did not respond to the acknowledgment. No other express warranties or disclaimers were stated in the offer or acknowledgment.</p>
<p>Scents timely shipped the order to Bath’s warehouse using TruckCo, a third-party common carrier, at a freight cost of $400. One-quarter of the shipping boxes showed signs of water damage. Each shipping box contained candles that were individually wrapped for retail sale. All candles and individual wrapping were undamaged. When the shipment arrived, Bath’s employees noticed the water damage on some shipping boxes. They immediately rejected the shipment without opening any boxes, promptly notified Scents of the rejection, and refused to pay any amount.</p>
<p>Scents paid TruckCo $500 to ship the candles back to Sunville and notified Bath that Scents intended to resell the candles. Scents promptly solicited bids from all of its customers and received the best offer, which it accepted, from Redemption Candles (Redemption) of $9,000, FOB Sunville.</p>
<p>Bath promptly entered into a valid written contract with Hot Candles (Hot), an importer in Hatville, to purchase 1,000 replacement candles for $12,000, FOB Hatville. TruckCo was engaged to transport the candles from Hatville to Betaville. In transit, TruckCo’s truck was struck by lightning in a storm and all of the candles melted. TruckCo’s shipping contract disavows liability from acts of God, including lightning. Bath refused to pay for the candles and Hot refused to send replacement candles.</p>
<p>Bath sued Scents for breach of contract and Scents countersued Bath. Bath sued Hot for breach of contract and Hot countersued Bath."</p>
</blockquote>
<h2>Questions</h2>
<p>As summarized by the title question, it has <strong>two main questions divided each into two sub-questions</strong> as follows:</p>
<blockquote>
<ol>
<li><p>Did Bath and Scents have a binding contract and, if so, did either party breach the contract? If there was a breach of contract, what damages are likely to be recovered, if any? Discuss.</p>
</li>
<li><p>Has Bath or Hot breached their contract? If so, what damages are likely to be recovered, if any? Discuss.</p>
</li>
</ol>
</blockquote>
<hr />
<p><strong>Official Instructions</strong></p>
<sup>
<blockquote>
<p>[The] question is designed to be answered in one (1) hour.</p>
<p>Your answer should demonstrate your ability to analyze the facts in the question, to tell the difference between material facts and immaterial facts, and to discern the points of law and fact upon which the situation turns. Your answer should show that you know and understand the pertinent principles and theories of law, their qualifications and limitations, and their relationships to each other.</p>
<p>Your answer should evidence your ability to apply the law to the given facts and to reason in a logical manner from the premises you adopt to a sound conclusion. Do not merely show that you remember legal principles. Instead, try to demonstrate your proficiency in using and applying them to the facts.</p>
<p>If your answer contains only a statement of your conclusions, you will receive little or no credit. State fully the reasons that support your conclusions, and discuss all points thoroughly.
Your answer should be complete, but you should not volunteer information or discuss legal doctrines that are not pertinent to the resolution of the issues raised by the call of the question.
Unless a question expressly asks you to use California law, you should answer according to legal theories and principles of general application. </sup></p>
</blockquote>
<p><strong>See further:</strong>
<a href="https://www.calbar.ca.gov/Portals/0/documents/admissions/Examinations/July2022CBX_Questions.pdf" rel="nofollow noreferrer">July 2022 Exam Sheets</a></p>
| 87,463 |
[
{
"answer_id": 87471,
"body": "<p>In a Bar exam hypothetical you are expected to discuss the merits of each party's cases. There are potentially many breaches here, you need to discuss them all.</p>\n",
"score": 5
},
{
"answer_id": 87478,
"body": "<blockquote>\n<p>What breach of contract, if any, is in this bar-exam hypothetical?</p>\n</blockquote>\n<p>At the outset, there is a minor --yet distracting-- flaw in the hypothetical scenario. It takes some time to discern where the disclaimer about water damage was included: The syntax suggests that the disclaimer was made in the offer (because "<em>which also included the following language</em>" immediately follows "<em>the offer,</em>"), but semantically it can be only in the seller's acknowledgment (only the seller was in a position to know beforehand that some shipping boxes have extern water damage).</p>\n<blockquote>\n<p>Did Bath and Scents have a binding contract and, if so, did either party breach the contract? If there was a breach of contract, what damages are likely to be recovered, if any?</p>\n</blockquote>\n<p>Bath and Scents rescinded their contract. Rescission preempts any claim of breach of contract, since rescission means that the parties are --for the most part-- restored to their prior position as if no contract had been entered.</p>\n<p>Enforceability of the contract is not precluded by Bath's lack of response to Scent's acknowledgment. That is because Scent's disclaimer did not amount to a counteroffer. Regardless of the external water damage in the shipping boxes, Scent provided exactly what Bath requested: 1,000 individually wrapped candles that were in good condition (i.e., undamaged).</p>\n<p>Were it not for rescission, only Scent would have a viable claim of breach of contract. Scent being the [only] party that performed the contract, it was entitled to payment from Bath. Bath's assessment of solely the shipping boxes does not entitle it to void the contract.</p>\n<p>Scent's disclaimer also reinforces his position as to the implied covenant of good faith and fair dealing. The disclaimer was intended to assure Bath about satisfactory delivery and not to be misled (i.e., falsely alarmed) by non-existent damage.</p>\n<blockquote>\n<p>Has Bath or Hot breached their contract? If so, what damages are likely to be recovered, if any?</p>\n</blockquote>\n<p>Bath is in breach of contract.</p>\n<p>Hot performed the contract by dispatching the candles. The clause about "FOB Hatville" transferred to Bath the risk of any losses that might occur transportation. The losses actually occurred during transportation. Hot is entitled to recover from Bath the $12,000, the amount the parties agreed upon.</p>\n<p>Note: The FOB clauses instantiate what the <a href=\"http://www.oneclubofjusticides.com/p/restatement-second-contracts.html\" rel=\"nofollow noreferrer\">Restatement (Second) of Contracts</a> at § 154 calls [a party's] <em>bearing the risk of mistake</em>.</p>\n",
"score": 1
}
] |
[
"united-states",
"contract-law",
"california",
"breach-of-contract",
"bar-admission"
] |
What happens if a Canadian is convicted (misdemeanour)in Europe? Is the Canadian government notified?
| 5 |
https://law.stackexchange.com/questions/87503/what-happens-if-a-canadian-is-convicted-misdemeanourin-europe-is-the-canadian
|
CC BY-SA 4.0
|
<p>A Canadian person is convicted of a misdemeanour while in Germany. The person gets a criminal record in Germany. Will the information about the conviction be sent to Canada? Will it appear in the Canadian database?</p>
| 87,503 |
[
{
"answer_id": 87514,
"body": "<p>There is no systemic process by which convictions of crime in Germany (at all, let alone for misdemeanors) are reported to authorities in Canada.</p>\n<p>This said, a Canadian charged with a crime in Germany has a right to consular assistance (i.e. to call upon the Canadian embassy for help). And, if the Canadian actually does obtain assistance from the Canadian government in defense of criminal charges and is convicted anyway, obviously, a Canadian government official will know about it.</p>\n<p>I don't know if Canadian diplomats who provide consular assistance who learn of criminal convictions of Canadians abroad report those convictions to criminal record database record keepers in Canada, although I suspect that they do not.</p>\n",
"score": 4
}
] |
[
"criminal-law",
"canada",
"germany",
"criminal-record"
] |
Are lawyers allowed to keep charging money after termination?
| 1 |
https://law.stackexchange.com/questions/23871/are-lawyers-allowed-to-keep-charging-money-after-termination
|
CC BY-SA 4.0
|
<p>I was wondering if attorneys are allowed to keep charging money even after termination. The situation is this: a lawyer has been terminated. A new lawyer has been retained and he/she has filed notice of appearance and whatever. If before the previous lawyer shows the client a detailed bill of the charges per hour/min, and charges the client, will they be allowed to continue adding to the charges every though a new lawyer has been retained? The extra charges would be under correspondences where the client may continue to communicate with the lawyer to demand said detailed bill.</p>
<p>My apologies if anything doesn't really make sense. Please advise, thanks in advance.</p>
| 23,871 |
[
{
"answer_id": 23966,
"body": "<p>Yes.</p>\n\n<p>Usually a lawyer can charge until a court formally withdraws him from representing you in a case for representation in that case (even if a new lawyer has entered an appearance and you have fired him).</p>\n\n<p>A terminated lawyer, even after withdrawal, can also charge you for legal fees incurred to collect the lawyer's bill from you if the fee agreement allows him to do so.</p>\n\n<p>Many lawyers don't charge their clients for billing matters, but the law allows lawyers to charge clients for billing matters if their fee agreement says that they can.</p>\n\n<p>The post-termination charges you describe in the question sound like costs of collection of the bill, so they are legal if they are authorized by the fee agreement.</p>\n",
"score": 6
}
] |
[
"united-states",
"federal-courts",
"legal-fees",
"attorney-fees"
] |
Third party defendant in civil case in Florida
| 2 |
https://law.stackexchange.com/questions/87509/third-party-defendant-in-civil-case-in-florida
|
CC BY-SA 4.0
|
<p>I am watching a civil case for a friend and was looking at the online docket. My friend is a third party defendant in counterclaim (was not part of the original lawsuit list of parties). Seems like the plaintiff in the original claim has filed for a motion for dismissal of the counterclaim. My question is if the motion is granted, will my friend not be part of the case again like before? Or will he still be party to the case? Hope this makes sense. I'm just interested in knowing what this means. Thanks!</p>
| 87,509 |
[
{
"answer_id": 87510,
"body": "<blockquote>\n<p>if the motion is granted, will my friend not be part of the case again like before? Or will he still be party to the case?</p>\n</blockquote>\n<p>It depends on the scope and details of the court ruling and of the motion to dismiss. If the plaintiff limited his arguments to issues that pertain only to him, the ruling might dismiss only him and allow the counterclaim to proceed as to other counter-defendants.</p>\n<p><a href=\"https://www.leagle.com/decision/infdco20221208602\" rel=\"nofollow noreferrer\"><em>Nickens v. Mercer County Correctional Center</em> (US Dist. Court, NJ, Dec. 2022)</a> is a recent example where court ruled to dismiss only one defendant. Other defendants were granted summary judgment only on some of the claims. For purposes of your question, being summary judgment versus dismissal makes no difference.</p>\n",
"score": 2
}
] |
[
"florida",
"civil"
] |
Did the judge try to order me to pierce the corporate veil?
| 5 |
https://law.stackexchange.com/questions/26717/did-the-judge-try-to-order-me-to-pierce-the-corporate-veil
|
CC BY-SA 3.0
|
<p>In a legal proceeding a couple of months ago, I was unfortunately at the disadvantage of not being represented by my attorney. (There is a reason which is unrelated to this question.)</p>
<p>I'm not a lawyer; I have no idea how things are supposed to proceed in court. I'm also a CEO of a startup which was pre-revenue and at the time of this event, had not yet closed our current round. As is the way of startups, our owners' draw was less than $500 a month for both myself and my co-founder for the entire preceding year; neither of us had been paid in a very long time.</p>
<p>I am not the only managing member of our company, and while technically I could access any aspect of the company I demand, our CFO has authority over all of our financial concerns and my co-founder, our COO, manages our day-to-day operations. Of the money in the business bank account, every last dime came from accredited angel investors on convertible promissory notes (preferred - all the investors have repayment preference.) At the time of this event, our company was still formed as an LLC.</p>
<p>My question is this: the judge asserted that simply because technically I have access to do so, I could be expected to clean out the business bank account to address whatever individual, personal matters were at hand. </p>
<ul>
<li>Surely I can't be ordered to steal from our investors? Cleaning out the business bank account would be embezzling or fraud or both? </li>
<li>Is there a remedy for a judge who "orders" you to break the law? (Not
asking if the order would be tossed out - asking if any kind of
rebuke exists)</li>
</ul>
<blockquote>
<p>Noteworthy: Since no circumstances exist under which I will be compelled to rip off my investors, I simply proposed a settlement that leveraged an inheritance, hence this question is not an issue of my personal circumstances; I'm just curious.</p>
</blockquote>
| 26,717 |
[
{
"answer_id": 26735,
"body": "<p>Judges often issue orders and warrants that require people or entities to transfer property from one party to another. For example, a search warrant allows law enforcement to seize personal property. A garnishment requires an employer to transfer a worker's wages to someone else. A judgment can affirm that property was stolen and thereby invalidate what was previously good title to the property.</p>\n\n<p>Like any judicial order, such judgments can be found to be invalid and/or illegal. But unless and until they are modified, a judicial order is presumed to be lawful. In fact, it has the force of law. (It is not inaccurate to say a judgment <em>is</em> \"law.\")</p>\n\n<p>There are a few remedies for unfair, improper, or illegal judgments. The most common include:</p>\n\n<ol>\n<li><p>Motions for reconsideration. If a court makes a mistake of fact or law, this is the most expedient way to bring that to its attention and ask for an appropriate modification to the judgment.</p></li>\n<li><p>Appeals. Any party adversely affected by a judgment can usually find grounds to appeal it to a higher court.</p></li>\n</ol>\n\n<hr>\n\n<p>Of course, things can get messy for affected parties in scenarios like you describe. If a court <em>orders</em> you to transfer money from one person to another, then you cannot be found guilty of a <em>crime</em> for complying with the letter of that order. But depending on the broader circumstances you could later be found personally liable to the proper owners of the money. E.g., they might assert any number of legal claims that result in a court granting another judgment against you for restitution to them.</p>\n",
"score": 4
},
{
"answer_id": 87506,
"body": "<p>UK, but I suspect USA would be not much different:</p>\n<p>I own a limited corporation. The corporation has a bank account. Since the sole shareholder, the company director, and me personally are the same person, I personally am technically capable of taking any amount out of that account. The money in the account is both money set aside to pay future tax bills (and I have to pay them legally, just not right now), and profit made by the company.</p>\n<p>Legally, I personally cannot take any money out. The company director (me) can decide to pay the company's employee (me) a salary on which I have to pay income tax. The company director (me) can decide to pay dividends to the shareholders (me) on which I would have to pay dividend tax. Legally the company is not allowed to pay so much in dividends that it can't meet its obligations, so I cannot legally decide to pay the money set aside for the taxman as a dividend.</p>\n<p>Now lets say you personally have nothing, and the company has a bank account filled with money. The court could require that you somehow legally access that money. For example by selling your share of the company, or by trying to convince the company directors to pay a dividend. The court cannot force the company to hand over money. And personally taking money out of the company account would be theft. What the court could do is order the company to make all dividend payments to the court, and not you, or send your income to the court, not you. But that doesn't change how much the company has to pay.</p>\n<p>Now if the company account is filled with money from investors, and nothing else, then the company cannot legally pay you a dividend because they wouldn't be able to repay their investors.</p>\n<p>And if a court orders you to access the company's money, obviously the company can object to that. Especially if it isn't your money.</p>\n",
"score": 0
}
] |
[
"business",
"corporate-law",
"texas",
"family-law",
"probate"
] |
Is doing business where you live all it takes to pierce the corporate veil?
| 1 |
https://law.stackexchange.com/questions/30579/is-doing-business-where-you-live-all-it-takes-to-pierce-the-corporate-veil
|
CC BY-SA 4.0
|
<p>If an LLC operates from someone's home, I read (can't find source at the moment) that they want a place in their home where they exclusively work on the business (like a home office) to keep business and their personal lives separate.</p>
<p>If they don't do this and do business work from the kitchen, say, they are at risk of piercing the corporate veil.</p>
<p>Is this really all it takes to pierce the corporate veil? Assuming that all the other corporate formalities are in place, can I safely work from the living room, for example?</p>
<p>On a related note, if I get sued, will I have to prove that the place where I work is separate from where I hang out?</p>
| 30,579 |
[
{
"answer_id": 30582,
"body": "<p>The corporate veil cannot be pierced simply because you work from home, so long as you do not co-mingle entity and personal assets and expenses.</p>\n",
"score": 2
},
{
"answer_id": 30581,
"body": "<p>It would help to know what jurisdiction you're in, but I don't know of any jurisdiction in America where this would be sufficient to pierce the veil. You'd need to have quite a bit more than a home office to justify that kind of action -- commingling of personal and business funds, personal use of business assets, etc.</p>\n",
"score": 1
},
{
"answer_id": 87504,
"body": "<p>Assume that I let some limited liability corporation, not related to me, not owned by me, use my home (for some payment probably). This doesn't give any third party access to me home, except for example if police had a search warrant against the company that allows them to enter their business premises, that would likely allow them to enter my home and search whatever was used for the business. But they can't touch my property.</p>\n<p>In case of bankruptcy, debtors may have rights to things owned by the company. That doesn't give them rights to my property (if I rented to a third party LLC). The only problem is that it might not be clear what is my property, and what is property of the LLC. You'd have to convince a court that something belongs to the LLC in order to be able to get it if the LLC owes you money.</p>\n<p>"Piercing the corporate veil" means that the protections a LLC gives its owners are gone. They are not. It just means I put myself at risk that personal property of mine is <em>claimed</em> to be owned by the company.</p>\n",
"score": 0
}
] |
[
"united-states",
"business",
"corporate-law"
] |
Is it legal to use somebody elses login to trade a brokage account?
| 0 |
https://law.stackexchange.com/questions/87492/is-it-legal-to-use-somebody-elses-login-to-trade-a-brokage-account
|
CC BY-SA 4.0
|
<p>Person A establish a brokerage account with an online brokerage XYZ. He then gives person B authority to trade the account. The XYZ brokerage account gives person A and person B to different user names. Each user name access the account. Person B then uses person's A account to trade the account.</p>
<p>Did person B break the law? I was told by a broker that he did. It seems to me he did not.</p>
| 87,492 |
[
{
"answer_id": 87500,
"body": "<p>The usual provisos about jurisdictional differences may apply, and the last sentence of the first paragraph currently uses "account" to relate to two different things - I'll assume that sentence means "Person B then uses person A's <em>user information</em> to trade the account".</p>\n<p>It's clear that XYZ expected the two users of the account to use different user identifications - they issued two. An accusation of misrepresentation is most likely to come from the brokerage firm, though it could also come from an internal or external auditor or from A if A assumed that B knew that they were expected to use their own user identification.</p>\n<p>There may be mitigation - if A said to B "Here's authority to use the account : these are my login details", and/or if XYZ did not effectively communicate the separate user details to B, a Reasonable Person could conclude that B had not knowingly misrepresented themselves as A.</p>\n<p>As the question stands it looks like an accusation of misrepresentation against B would be both possible and reasonable.</p>\n",
"score": 1
}
] |
[
"securities"
] |
Copyright rules are restricted
| -4 |
https://law.stackexchange.com/questions/87496/copyright-rules-are-restricted
|
CC BY-SA 4.0
|
<p>Are Copyright rules enforced by the authorities currently only to written documents? Are there any regulations on "mind reading" and producing documents elsewhere? How correctly and usefully are the source and publishing office are connected and handled. Do the rules have country-wise variations?</p>
| 87,496 |
[
{
"answer_id": 87498,
"body": "<h3>Are Copyright rules enforced by the authorities currently only to written documents?</h3>\n<p>Copyright is not restricted to written documents. It applies to many kinds of works. In Canada, for example, this includes "literary, dramatic, musical and artistic work" and these include "paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works."</p>\n<p>The scope varies from country to country, but for those parties to the Berne Convention, they will cover at least the following:</p>\n<blockquote>\n<p>“literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.</p>\n</blockquote>\n<p>But copyright does not apply to things that are not yet works. It does not protect ideas. It only protects particular expressions of ideas. So to the extent that a concept is only in someone's mind, it does not yet have copyright protection.</p>\n<h3>Are there any regulations on "mind reading" and producing documents elsewhere?</h3>\n<p>Copyright gives to the copyright holder an exclusive right to copy. Unauthorized copying of someone else's copyrighted work is infringement. Copying requires access to the source material, whether direct or indirect.</p>\n<p>If a person A has perceived a work, and person B gets information about that work from person A in order to reproduce the work, the eventual reproduction would still be a potential infringement. This is true no matter <em>how</em> person B gets that information from person A.</p>\n",
"score": 2
}
] |
[
"copyright",
"intellectual-property",
"us-supreme-court"
] |
Can I claim copyright if my code is used in a game without full payment?
| 1 |
https://law.stackexchange.com/questions/87303/can-i-claim-copyright-if-my-code-is-used-in-a-game-without-full-payment
|
CC BY-SA 4.0
|
<p>I wrote a game's code for this guy, he has paid half of the agreed amount when the code was delivered, but when the game was published, and I asked for the rest of my payment, he denied and blocked me.<br />
The agreement was verbal (discord chat), and I've kept a record of the whole conversation in its original format and a recorded video.<br />
The publisher of the game ignored my take-down request sent through email, so did itch.io, didn't reply at all. subscribestar has answered and seemed very understanding, but my code is still up on their platform and haven't been taken down yet.</p>
<p>Do I have any legal recourse here?</p>
| 87,303 |
[
{
"answer_id": 87304,
"body": "<p>Yes, you do. But you should not base your claim primarily on copyright, but just on the license contract you agreed to. It's typically much easier to prove that a party did not fulfill its part of a sales contract (here: Pay the agreed amount) than to prove violation of a copyright you own.</p>\n<p>Also, you then only need to sue one guy, and not care about every platform your game might be hosted on. This is particularly difficult here, since they have not done anything wrong. It's not their fault that the publisher didn't properly pay the programmer. They (very likely) got their copy of the game legally.</p>\n<p>For details, you should consult a lawyer. We can't give you detailed legal advice.</p>\n",
"score": 3
},
{
"answer_id": 87342,
"body": "<h2>Is the agreement in a fixed medium?</h2>\n<blockquote>\n<p>The agreement was verbal (discord chat)</p>\n</blockquote>\n<p>Well that's complicated.</p>\n<p>The <em>legal</em> distinction we are interested in is "is it expressed in a transient medium such as in-person speech or live dance, or is <strong>recorded, in a fixed medium</strong> which which can be recalled in reliably reproducible form by technology which is not going to misinterpret or mis-recall it."</p>\n<p>As a companion to that, many governments have laws about converting "transient" to "fixed medium" (i.e. recording something) with the knowledge of all being recorded. They call it "eavesdropping" and they consider it a privacy violation. Courts don't want to waste docket time dealing with the ugliness and unfair play of getting a party to swear to their recollection of a conversation... only to spring the recording on them later to discredit their testimony.</p>\n<p>However, <strong>in a number of venues (generally: public space), there is no expectation of privacy</strong>. So the nature of the Discord chat, and whether you are in a 1-party state (which permits 1 party consent to recording), will decide whether a recording would be usable. A private 1-on-1 effectively "phone call" on the platform, versus an open chatroom where anyone could hop on.</p>\n<h2>If there is no fixed agreement, <em>that's no accident</em></h2>\n<p>Legally experienced people <em>actively avoid</em> that "fixed medium" for fear of the thing being used later in litigation. Take this (then, more easily eavesdropped) cell phone conversation from <em>Margin Call</em> the movie <a href=\"https://www.netflix.com/watch/70167125?trackId=255824129&tctx=0%2C0%2CNAPA%40%40%7C0007c7b9-dc44-4d7c-b0c1-a7c4f12a315b-304291729_titles%2F1%2F%2Fmargin%20call%2F0%2F0%2CNAPA%40%40%7C0007c7b9-dc44-4d7c-b0c1-a7c4f12a315b-304291729_titles%2F1%2F%2Fmargin%20call%2F0%2F0%2Cunknown%2C%2C0007c7b9-dc44-4d7c-b0c1-a7c4f12a315b-304291729%7C1%2CtitlesResults%2C\" rel=\"nofollow noreferrer\">at 24:09</a>:</p>\n<p>Boss: "It's 11:00 at night!!"<br />\nTeam lead: "Sorry I wouldn't have called. You need to get back here and see this."<br />\nBoss: (dismissively) "Email it to me!"<br />\nTeam lead: "<strong>I don't think...that would be a good idea</strong>."<br />\n<em>realization dawns</em><br />\nBoss: "I'll be Right There."</p>\n<p>Anyway, that is what it looks like when someone skillfully avoids placing things in a fixed medium.</p>\n<p>Freelancers get taken advantage of <em>all the time</em> this way. Some people who hire freelancers are really good at manipulating you into accepting work without a contract, and arranging payment so they can cheat you.</p>\n<h2>Your recording places you in an awkward situation if you are in an all-party state</h2>\n<p>If your local government (or to be more precise, the court you sue in) requires consent of all parties to recordings, <em>your recording may not be admissable</em> and might be an offense of its own.</p>\n<p>As such I'm not surprised that the marketplaces where you connected with that person won't touch your evidence with a 10-foot pole.</p>\n<h2>At the end of the day, this is a <em>billing</em> problem</h2>\n<p>As to your root question, can you deprive the owner of copy rights for not paying you? No. This work was plainly a <em>work for hire</em> and so the copy rights rest with the person who hired you.</p>\n<p>This is simply a billing and collections problem.</p>\n<p>Your only hope is convince the court to transfer to you the intellectual property <strong>in lieu of payment</strong>. However, that's not going to happen in the original lawsuit. The original suit will resolve for cash value of you getting paid what you owe + possibly court costs. Then, it goes into the collections phase of proceedings.</p>\n<p>I mean you can <strong>always ask</strong> for anything, even a stay on their selling the product until you are paid, but they would just turn around and claim they need the revenue to pay you, and a court will be persuaded by that.</p>\n<p>If they have an active revenue stream on the product, and it's through a third party like Steam or Apple Store, you would have an easier time getting a "Till Tap" on that revenue stream - intercepting the payment before it even reaches them.</p>\n<p>Probably your only option to get the IP back would be to get a court judgment, then do a laborious effort at collections under court supervision, then go back to the court and say "We want to start taking their physical assets to satisfy the judgment" and name the digital prodcut (the WHOLE product) as an asset to take. Now when they say "we need it to make the money to pay you", you say "REALLY? Exactly how much have you made in the 18 months we've been trying to collect?" And the court would be quite interested in that answer.</p>\n",
"score": 1
}
] |
[
"copyright",
"copyright-notice"
] |
What are one's options, if he is incorrectly listed as defendant in civil lawsuit?
| 1 |
https://law.stackexchange.com/questions/47051/what-are-ones-options-if-he-is-incorrectly-listed-as-defendant-in-civil-lawsui
|
CC BY-SA 4.0
|
<p>A little background:</p>
<p>Two employees working for a competing beauty salon left it and came to us to rent out two stations. Since day one we have had landlord-tenant and not employer-employee relationship with those two persons, because:</p>
<ol>
<li>every month they pay us fixed station rent,</li>
<li>they get to keep 100% of their profits,</li>
<li>we also have a clause in rental contract that explains that we get to keep our already existing customers and walk-in customers, unless customers are explicitly looking for them.</li>
</ol>
<p>Few days ago we got a notice from court that this competing beauty salon is suing us along with those two former employees alleging that we have stolen their "trade secrets", which in this case is customer contact list. Obviously, the plaintiff is not aware of the fact that we are their landlord and not employer. They are suing all 3 of us for monetary damage due to lost profits.</p>
<p>Also, to my surprise the competing beauty salon is represented by a legit lawyer registered at <a href="http://www.calbar.ca.gov/" rel="nofollow noreferrer">http://www.calbar.ca.gov/</a></p>
<p><strong>To make it clear, I am not asking for legal advice. I am currently inquiring if our business insurance would cover legal defense and, most likely, will end up seeking professional legal defense. However, in the mean time I have 2 generic questions about court process in California to understand the process better:</strong></p>
<ol>
<li>If someone is incorrectly listed as defendant, then what is the correct way to remove his name from lawsuit? Should one ask plaintiff to voluntarily remove him as defendant? Or is it safer for defendant to file something like "motion to dismiss"?</li>
<li>If plaintiff's lawyer has not done due diligence and is misrepresenting relationship between listed defendants, then would that qualify as frivolous lawsuit? Would this lawyer risk sanctions imposed on him by State Bar of California? Would the plaintiff have to cover legal defense expenses for the defendant that was incorrectly listed?</li>
</ol>
| 47,051 |
[
{
"answer_id": 47053,
"body": "<p>The only way in which you could be "incorrectly listed as a defendant" is if somehow your name was typed in as a party (there would be a glaring gap, that no paragraph of the complaint says anything about you as a defendant). Assuming the situation is nothing so bizarre as a typo, you <em>are</em> a defendant. Whether or not you are liable in this case is a matter of fact and law, and the plaintiff's attorney has probably done due diligence in suing everybody imaginable.</p>\n<p>Perhaps the plaintiff lied to his attorney about material facts (read the complaint); or perhaps there is a credible legal theory under which you would be liable (read the complaint). Your attorney will take care of your problems, to the best of his ability. He may be able to persuade the plaintiff's attorney that they stand no realistic hope of winning and some chance of getting smacked for pointlessly involving you. If the plaintiff's attorney isn't persuaded by the argument, your attorney could submit the legal arguments as a motion to dismiss. If the judge is not persuaded (at this stage), you (your attorney) will have to counter the arguments presented at trial.</p>\n",
"score": 7
},
{
"answer_id": 47054,
"body": "<h2>Raise a defence</h2>\n\n<p>You are being sued - it's unlikely this will go away just because you ask the plaintiff nicely.</p>\n\n<p>The papers you were served with will tell you when and how to raise a defense. With or without insurance, you probably need a lawyer to help you.</p>\n\n<p>It's quite likely that if you raise the defense that you have not stolen their secrets because you are not employing their ex-employees they will still require you to prove that in court. </p>\n\n<p>Notwithstanding, if I were in their shoes I would amend my statement of claim to also sue for your tort of <a href=\"https://www.shouselaw.com/personal-injury/inducing-breach\" rel=\"nofollow noreferrer\">inducing breach of contract</a>. If you facilitated your tenants in breaching their contract with their ex-employer (stealing trade secrets would breach their employment contract) then you can be held liable.</p>\n\n<p>There is virtually no chance that this is an abuse of process by their lawyer even if you are completely innocent. It looks like you have a case to answer and that's grounds enough for starting a lawsuit.</p>\n",
"score": 3
},
{
"answer_id": 87493,
"body": "<blockquote>\n<p>If someone is incorrectly listed as defendant, then what is the\ncorrect way to remove his name from lawsuit? Should one ask plaintiff\nto voluntarily remove him as defendant? Or is it safer for defendant\nto file something like "motion to dismiss"?</p>\n</blockquote>\n<p>It never hurts to ask to be removed as a defendant.</p>\n<p>But what you are describing is not being incorrectly listed as a defendant. Being incorrectly listed as a defendant is when they meant to sue 48 years old Jesus Garcia born in Atlanta and instead end up delivering lawsuit papers naming Jesus Garcia as a defendant to 19 year old Jesus Garcia born in San Diego who has nothing to do whatsoever with the events described in the complaint.</p>\n<p>You would lose a motion to dismiss, which assumes that everything stated in the complaint is true.</p>\n<p>You are describing someone who has a defense to a claim on the basis that not all of the material facts alleged are true. This is the case in every contested lawsuit.</p>\n<blockquote>\n<p>If plaintiff's lawyer has not done due diligence and is\nmisrepresenting relationship between listed defendants, then would\nthat qualify as frivolous lawsuit? Would this lawyer risk sanctions\nimposed on him by State Bar of California? Would the plaintiff have to\ncover legal defense expenses for the defendant that was incorrectly\nlisted?</p>\n</blockquote>\n<p>There is such a thing as a groundless lawsuit, but you are not describing one.</p>\n<p>A lawyer who files a lawsuit in which not every fact alleged turns out to be true hasn't filed a frivolous lawsuit, isn't acting unethically, and isn't a circumstance in which the plaintiff is likely to have to cover your legal expenses.</p>\n<p>There is an allegation that you have an economic relationship with other people that you do. Status as a landlord v. an employer is partially a matter of opinion and characterization rather than being purely a factual matter.</p>\n<p>Your sense that you are misnamed as a defendant or that the plaintiff or their lawyer's have done something seriously wrong is deeply misguided.</p>\n<p>If I were a judge hearing this kind of indignation I'd be tempted to giggle and try to hold myself back from doing so.</p>\n",
"score": 1
}
] |
[
"california",
"business",
"court"
] |
How are payouts determined in civil suits?
| 0 |
https://law.stackexchange.com/questions/87490/how-are-payouts-determined-in-civil-suits
|
CC BY-SA 4.0
|
<p>This is a United States question.</p>
<p>Let's say that an airbag manufacturer makes deadly airbags (Takata) because of gross incompetence, and someone gets killed because of them. Who's entitled to financial compensation in this case? Children? Parents? Grandparents? SO's? Friends? And how exactly is the payout for each person determined? I imagine that it's extremely difficult to put a value on the love between people that was cut short.</p>
| 87,490 |
[
{
"answer_id": 87491,
"body": "<blockquote>\n<p>Who's entitled to financial compensation in this case? Children?\nParents? Grandparents? SO's? Friends?</p>\n</blockquote>\n<p>Usually, state law in the state where the person who died was domiciled at death specifies who may file a wrongful death lawsuit (and usually it is not the most obvious answer, the probate estate of the deceased person).</p>\n<p>The Colorado Statue, which is typical, is found at Colorado Revised Statutes, § <a href=\"https://law.justia.com/codes/colorado/2016/title-13/damages-and-limitations-on-actions/article-21/part-2/section-13-21-201\" rel=\"nofollow noreferrer\">13-21-201</a> et seq.</p>\n<p>The person or persons entitled to sue for wrongful death are usually basically "next of kin" but the details of how this is defined and operationalized varies moderately from state to state.</p>\n<blockquote>\n<p>And how exactly is the payout for each person determined?</p>\n</blockquote>\n<p>The total dollar amount is usually determined by a jury based upon evidence provided at trial although there is no fixed formula. The jury simply assigns a value that it believes is fair.</p>\n<p>If more than one person is allowed to sue for wrongful death, the state wrongful death statute clarifies how the wrongful death settlement is divided among those people.</p>\n",
"score": 5
}
] |
[
"united-states",
"business",
"death",
"compensation"
] |
Criminal statute of limitations in Nigeria
| 0 |
https://law.stackexchange.com/questions/87441/criminal-statute-of-limitations-in-nigeria
|
CC BY-SA 4.0
|
<p>What is the statute of limitations for criminal offences in Nigeria?</p>
<p>I have searched online, but all I found was that the offence of rape will no longer be statute barred, and various time limits for Civil cases which is off topic.</p>
| 87,441 |
[
{
"answer_id": 87489,
"body": "<p>There isn't a single number. Instead, you have to look at the offense in the laws of the area in question such as <a href=\"http://www.placng.org/lawsofnigeria/laws/C38.pdf\" rel=\"nofollow noreferrer\">the Criminal Code</a> (2004 version), and see if there is any limit. For instance §43 states that</p>\n<blockquote>\n<p>A person cannot be tried for treason, or for any of the felonies\ndefined in the three last preceding sections, unless the prosecution\nis commenced within two years after the offence is committed</p>\n</blockquote>\n<p>referring to treason-related offenses; per §52, sedition type offenses have a 6 month statute of limitations, §58 same for unlawful drilling (training in military conduct, not drilling holes). Defilement of girls under 13 (§218) is subject to a two month limitation, and publication of obscene material (§233D) is limited at 2 years. There is no limit for the offense of importing forbidden publications or defaming a state authority</p>\n<p>It should also be noted that there is a distinction between the Nigerian Criminal Code and the Nigerian Penal Code, which apply respected to the south and the north and are at present Ch. 77 of Laws of the Federation of Nigeria 1990 and Ch. 89 of the Laws of Northern Nigeria 1963. I cannot establish that there exists a single official online statement of the Nigerian Criminal Code or the Nigerian Penal Code.</p>\n",
"score": 1
}
] |
[
"criminal-law",
"statute-of-limitations",
"nigeria"
] |
Can one enforce a patent while it is only "pending approval"?
| 6 |
https://law.stackexchange.com/questions/87472/can-one-enforce-a-patent-while-it-is-only-pending-approval
|
CC BY-SA 4.0
|
<p>When does a patent begin taking effect, exactly?</p>
<p>And if it takes effect BEFORE being officially approved (which seems strange to me), can the patent's author enforce the patent (for example, through demands to cease or negotiate, and filing of complaints with a professional body like the ACM) without communicating the content of the patent? This would seem to open the door to all kind of abuses.</p>
| 87,472 |
[
{
"answer_id": 87483,
"body": "<p>Patents become enforceable when granted, not before.</p>\n<p>However there is something called provisional rights (absolutely nothing to do with provisional applications). In the US, under <a href=\"https://www.uspto.gov/web/offices/pac/mpep/mpep-9015-appx-l.html#d0e303482\" rel=\"noreferrer\">35 USC 154(d)</a>, if a claim in a published application is “substantially identical” to a claim that eventually issues, a patent owner can get damages of at least a reasonable royalty on units produced between the publication and notice and the issue date. Enforcement on this must await the granting of the patent.</p>\n<p>The infringer must have actual notice of the published application. It is rarely invoked see <a href=\"https://www.kramerlevin.com/images/content/4/3/v2/43719/preserving-provisional-rights-pre-issuance-patent-damages.pdf\" rel=\"noreferrer\">this article</a>.</p>\n",
"score": 19
},
{
"answer_id": 87474,
"body": "<p>An accusation against you to ACM should have details stating what you are accused of. If not, then ACM should reject the accusations. If yes, ACM should tell you what you are accused of. If someone accuses you of something that they know you haven't done (like being in violation of a patent that doesn't exist), that might be libel, and you'd need a lawyer.</p>\n<p>If I <em>had</em> a patent application and it was still pending, I believe it is legally fine for you to violate the patent <em>now</em>, but it would be risky, because once the patent is accepted, you would be in trouble. Now I might <em>believe</em> that violating the patent is illegal while it is still pending, and I might accuse you of doing something that I reasonably believe is illegal, and then making the accusation would be wrong but legal. If I haven't even applied for the patent, that's different.</p>\n<p>Now if I accuse you legally, and then refuse to provide any evidence, that doesn't make the accusation illegal, but it makes it very weak. For example ACM should reject such an accusation, even if it was true (because they cannot know whether it is true or not). If you sued me for libel, and I still refused to show the evidence, the judge would be allowed to conclude that the evidence doesn't exist and judge against me in the libel case.</p>\n<p>PS. The question you see is only vaguely related to the one I replied to.</p>\n",
"score": 3
}
] |
[
"patents"
] |
What is the legal status of New Zealand's tobacco legislation vis-a-vis the Human Rights Act of 1993?
| 2 |
https://law.stackexchange.com/questions/87443/what-is-the-legal-status-of-new-zealands-tobacco-legislation-vis-a-vis-the-huma
|
CC BY-SA 4.0
|
<p>The government of New Zealand recently passed a law aimed at eliminating tobacco usage. Rather than prohibiting the purchase of tobacco products altogether, <a href="https://www.washingtonpost.com/world/2022/12/14/new-zealand-tobacco-cigarettes-ban/" rel="nofollow noreferrer">the law instead prohibits their purchase by anyone born after 2008</a> and would require stores to refuse to sell tobacco products to such people.</p>
<p>To my understanding, the <a href="https://legislation.govt.nz/act/public/1993/0082/latest/DLM304475.html?search=ts_act%40bill%40regulation%40deemedreg_Human%20Rights%20Act%201993_resel_25_a&p=1%2F" rel="nofollow noreferrer">Human Rights Act of 1993 prohibits discrimination based on age unless the person discriminated against is under 16.</a> The New Zealand supreme court apparently <a href="https://www.nytimes.com/2022/12/02/world/australia/new-zealand-and-australia-ponder-a-lower-voting-age.html" rel="nofollow noreferrer">recently ruled</a> that things such as a voting age of 18 violate these rules. Currently, anyone born after 2008 is under 16, but the law will presumably apply equally in, say, 2025.</p>
<p>Does the new tobacco legislation run afoul of the Human Rights Act? Or does it avoid any issues or create an exception?</p>
| 87,443 |
[
{
"answer_id": 87459,
"body": "<h2>It’s probably fine</h2>\n<p>I refer you to para 41 of the judgement:</p>\n<blockquote>\n<p>For ease of reference we note that s 5 provides that the protected rights and freedoms “may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.</p>\n</blockquote>\n<p>Restrictions on eligibility to vote are hard to justify in a free and democratic society. Tobacco use is not so central.</p>\n<p>Were the issue to come to trial the government could argue:</p>\n<ul>\n<li>it has the power to prescribe substances that are injurious and addictive, which it undoubtably does.</li>\n<li>There are many people born after 2008 who are addicted and cutting off their access would create great personal hardship for them.</li>\n<li>Furthermore, the ongoing demand would create incentive for criminal activity in smuggling illegal tobacco.</li>\n<li>Everyone born in or after 2008 is not addicted to tobacco so banning it would not cause hardship</li>\n<li>Similarly, the waning demand from older people could be met legally reducing the scope for organised crime.</li>\n</ul>\n<p>In brief, the ban is probably “demonstrably justified”.</p>\n",
"score": 1
}
] |
[
"discrimination",
"human-rights",
"new-zealand",
"drugs",
"age"
] |
If a party does not fulfil an obligation of a clause, and the other party ignores the failure for a long time, is the clause still legally valid?
| 3 |
https://law.stackexchange.com/questions/86445/if-a-party-does-not-fulfil-an-obligation-of-a-clause-and-the-other-party-ignore
|
CC BY-SA 4.0
|
<p>Say there's a clause (art. 14) that creates an obligation for party A, from which an obligation for party B follows. Say it looks like this:</p>
<blockquote>
<p>art.14. Every year, no later than six months after the end of that
calendar year, Party A will provide Party B with a section-by-section
overview of the costs for service A.</p>
</blockquote>
<blockquote>
<p>art.15. What appears from the
overview, taking into account advance payments made by Party B to
Party A, whether Party A has been paid in advance too little by Party
B or Party B paid in advance too much to Party A, must be paid or
repaid within one month after the overview has been provided to Party
B.</p>
</blockquote>
<p>These articles happen to be in a <code>General terms and conditions</code> document that is part of the contract, through an article in the contract that says that the general terms and conditions are part of the contract.</p>
<p>Party B happens to have been negligent and considered the advance payments as flat rate for the service. This understanding came to Party B partly because, according to Party B, that is how the agreement was presented by Party A, contrary to the letter of the agreement. This understanding comes also partly from previous clients of Party A, who also considered the fixed monthly payments as flat rates that do not need settlement. These clients used the service for years, stopped using it, and never received an overview for settlement according to art.14.</p>
<p>For more than 5 years, party A ignores their obligation regarding art.14. and never mentions it. Party B does not try to enforce art.14, because, in their mind, such an article was never part of the agreement.</p>
<p>In the second half of the 6th year, Party A tries to enforce art.14, by providing an overview for settlements over the previous 2 years going backwards from the moment of submitting the overview.</p>
<p>Considering that:</p>
<ol>
<li>Party A demonstrated a history of not fulfilling their obligations according to art. 14 in relation with Party B, but also in relation with other Parties with whom it had similar agreements.</li>
<li>Party A never mentioned article 14 from the general terms and conditions at signing.</li>
<li>Party B never objected to Party A not fulfilling their obligations.</li>
</ol>
<p>I would argue that there was an implied in fact agreement that the advance payments are fixed flat rates for service A, because both parties met in mind and abided by this agreement through their actions, i.e. Party A never submitted an overview, and Party B always paid the advance payments in time.</p>
<p>This implied in fact agreement of parties goes in conflict with art.14. Provided that the implied in fact agreement stands legal scrutiny, and considering that meeting of minds must have happened after the signing of the written agreement, the implied in fact agreement is newer, thus supersedes art.14 of the written agreement.</p>
<p>For what is worth, the situation stems from a rental agreement in the Netherlands, so EU/Dutch law applies to the original case. Nevertheless for the purpose of this question, I am interested in what principles of law apply, especially from civil law, but I am also curious of an interpretation according to common law.</p>
<p>I am not a legal expert, but I am familiar with some principles of laws. The above is a working example, but my general question is whether a clause in a written contract is valid and enforceable, if all parties took regular actions contrary to the clause for a very long time without any dispute. An analogy to the above situation would be a written agreement of parties that monthly, 10$ would be exchanged for a selfie, for a period of 20 years. Then 19 years pass and nobody ever sent a selfie, or 10$ in exchange, or took any action with respect to that agreement, but one party starts sending selfies (many years later) and asks for their rightful 10$. In my mind, that's just crazy, but then again, I'm not a lawyer. What do the experts think?</p>
| 86,445 |
[
{
"answer_id": 86451,
"body": "<h2>Party A has breached the contract</h2>\n<p>Party A had an obligation that it did not fulfil, providing the section-by-section overview of the costs.</p>\n<p>To the extent that Party B suffered damage from each breach, for example, because Party A owes a refund, Party B can recover that plus interest subject to any statute of limitations on actions for contract breach. To the extent that Party A suffered damage, tough - they don’t get to benefit from their own breach.</p>\n<p>Party A might wish to argue that Party B has <a href=\"https://sklawyers.com.au/dictionary/waiver/\" rel=\"nofollow noreferrer\">waived</a> their right to adjust the payment but this would be difficult to prove. It doesn’t appear that there is an explicit waiver but neither is their an implied waiver: Party A would need to show that Party B was aware of and condoned the breach in some way.</p>\n<p>You are right that a contract can be altered after it is entered into and that such a change can be implicit rather than explicit. But that would require showing some action rather than inaction by the parties to effect a different arrangement. In practice, where one party affirms the written contract, without clear and compelling evidence that the contract has subsequently been changed, the written contract will prevail.</p>\n<p>For an example, Yale University periodically collects the interest due on a perpetual <a href=\"https://news.yale.edu/2015/09/22/living-artifact-dutch-golden-age-yale-s-367-year-old-water-bond-still-pays-interest\" rel=\"nofollow noreferrer\">bond</a> originally issued by the Dutch water board Lekdijk Bovendams on 15 May 1624. Originally issued with a principal of "1000 silver Carolus gulders of 20 Stuivers a piece", as of 2004 the yearly interest payment to the bondholder is set at €11.35 (15€ as of 2018 = 16$). According to its original terms, the bond would pay 5% interest in perpetuity, although the interest rate was reduced to 3.5% and then 2.5% during the 18th century. Providing it is physically presented to the successors of the board (the Dutch Water Authority) interest must be paid even if it has been many decades since the last payment. Of course, practically, crossing the Atlantic to collect 15€ every year is not commercially viable so they do it every decade or so when someone from Yale is going there anyway and then, only for the historical value. So long as the Netherlands continues to exist as a legal entity, this obligation will continue.</p>\n",
"score": 3
},
{
"answer_id": 86449,
"body": "<blockquote>\n<p>If a party does not fulfil an obligation of a clause, and the other party ignores the failure for a long time, is the clause still legally valid?</p>\n</blockquote>\n<p>Yes, the clause remains valid. But only breaches where the <a href=\"https://dutch-law.com/limitation-of-actions.html\" rel=\"nofollow noreferrer\">statute of limitations</a> has not expired are actionable.</p>\n<p>A party's waiver of his entitlement pursuant to specific breaches of contract --or a pattern of breaches-- does not eliminate the explicit clause on which that entitlement is premised. There is a difference between (1) the intended elimination of a clause, and (2) a party's waiver of an explicit right that is intended to subsist.</p>\n<p>Some explicit contracts establish that any amendments have to be in writing and signed by the parties, or otherwise memorialized. However, that type of clauses is largely redundant because the aforementioned difference is cognizable also in contracts that have no such clause. The clause is also pointless insofar as the parties are entitled to systematically waive their rights anyway (i.e., by never enforcing them).</p>\n<p>In the scenario you describe, party A's waiver --whether apparent or official-- of art. 14 with respect to any similar contracts elsewhere is irrelevant to its explicit contract with party B. The written contract supersedes common practice. See <a href=\"http://www.oneclubofjusticides.com/p/restatement-second-contracts.html\" rel=\"nofollow noreferrer\">Restatement (Second) of Contracts</a> at §203(b) ("<em>express terms are given greater weight than course of performance</em>").</p>\n<p>Nor does party A need to remind party B about art. 14 when signing. Party B knows or is expected to know and understand the contents of the contract it signs. Since art. 14 is in the General Terms and Conditions, the "<em>article in the contract that says that the general terms and conditions are part of the contract</em>" further weakens party B's allegation that party A did not mention art. 14.</p>\n<p>Party B's silence regarding party A's non-compliance with art. 14 helps toward lawful avoidance of art. 14 on those specific instances of non-compliance, but that does not alter the general validity of that provision.</p>\n<p>That being said, party A's actionability on art. 14 is limited to overviews that comply with the timing provided in that article: no later than six months after the end of the calendar year. Thus, party A's failure to provide an overview during the first semester of a calendar year forfeits enforcement of art. 15 in regard only to that specific year.</p>\n<p>Without knowing more about the contract at issue, it is reasonable to presume that art. 14 refers to costs pursuant to only the previous year. Costs that should have been billed in prior years are not to be included in the overview. Otherwise, art. 14 would be meaningless because all party A would have to do on belated costs is wait till new year. That would contravene an important principle formulated in <em>Restatement (Second) of Contracts</em> at §203(a): "<em>[A]n interpretation which gives a[n] [...] effective meaning to all the terms is preferred to an interpretation which leaves a part [...] of no effect</em>".</p>\n<p>These principles apply to Dutch contract law as well as in common law jurisdictions. Dutch contract law has what is known as the <a href=\"https://dutch-law.com/interpretation-contract-dutch-law.html\" rel=\"nofollow noreferrer\">Haviltex rule</a> for superseding the literal wording of a contract. However, the scenario you describe gives no room for interpreting that art. 14 has been stricken from the contract. Party A simply did not enforce his right for a number of years.</p>\n",
"score": 2
}
] |
[
"contract-law",
"european-union",
"netherlands"
] |
On the Taxability\Nontaxability of Website Donations in the United States
| 8 |
https://law.stackexchange.com/questions/87457/on-the-taxability-nontaxability-of-website-donations-in-the-united-states
|
CC BY-SA 4.0
|
<p>Say a person (U. S. resident) has a personal website (which has a Donate button) in which everything on that site is freely accessible whether or not a donation is made. Are the monetary donations collected by the recipient subject to federal taxation according to IRS law? I have looked into this question in the past but did not find an explicit answer.</p>
<p>Also, if there is a clear answer, do states with personal income taxes do the same regarding website donations?</p>
| 87,457 |
[
{
"answer_id": 87461,
"body": "<blockquote>\n<p>Are the monetary donations collected by the recipient subject to\nfederal taxation according to IRS law?</p>\n</blockquote>\n<p><strong>Yes.</strong></p>\n<p>Usually, money received from an activity from third-parties with no personal relationship to you (assuming that "you" are not a tax exempt organization), are taxable income under <a href=\"https://www.law.cornell.edu/uscode/text/26/61\" rel=\"nofollow noreferrer\">Section 61</a> of the Internal Revenue Code as interpreted by case law, as a form of "compensation for services", under I.R.C. § 61(a)(1), or as "gross income derived from business", under I.R.C. § 61(a)(2) (exactly which prong of I.R.C. § 61(a) it comes under isn't legally relevant for tax purposes in this situation).</p>\n<p>This is also informed by <a href=\"https://www.law.cornell.edu/uscode/text/26/83\" rel=\"nofollow noreferrer\">I.R.C. § 83(a)</a> (which is a general rule even though the balance of the Code section applies mostly to equity compensation in entities), which states in the pertinent parts (material in brackets inserted for clarity):</p>\n<blockquote>\n<p>If, in connection with the performance of services, property is\ntransferred to any person other than the person for whom such services\nare performed, the excess of the fair market value of such property .\n. . over the amount (if any) paid for such property [by the person who\nreceives the property], shall be included in the gross income of the\nperson who performed such services[.]</p>\n</blockquote>\n<p>But, gifts are expressly excluded from income under <a href=\"https://www.law.cornell.edu/uscode/text/26/102\" rel=\"nofollow noreferrer\">Section 102</a> of the Internal Revenue Code as interpreted by case law.</p>\n<p>One point which the case law makes clear, however, is that an obligation to pay doesn't need to be a legally binding obligation to make a payment something that counts as income rather than a gift. The tax law instead looks at the substance of the interaction and the reality of how decent, well mannered people would act under circumstances in which they receive an uncompensated benefit.</p>\n<p>Ultimately, whether are voluntary payment made through a private individual or business's website is taxable income or is not taxable because it is a gift is a case by case determination to be made in light of all of the relevant facts.</p>\n<p>For example, if your mother donates $7,500 to your website on your birthday, even though all of your other "donations" are from third-parties whom you have never met in person in amounts from $5 to $100 and you have provided all of those other third-parties with some kind of service or benefit through your website (e.g. they were allowed to read free webcomics or listen to music you wrote and recorded without charge over the website), the donation from your mother probably counts as a gift, even though the other donations probably count as income taxable income.</p>\n<p>But, in the absence for any reason for the donation other than gratitude for the performance of the services provided by the website, or for the conduct of the business that the website belongs to, the donation will generally be treated as income under Sections 61 and 83, rather than as a gift under Section 102.</p>\n<p>The notion of a gift is normally limited by case law and suggestive related section of the Internal Revenue Code that illustrate its intended meaning in the case of gift loans and bargain sales made for donative purposes, to circumstances in which the person making the gift has received nothing in return for it. A donation to a website usually wouldn't meet this test to show a transfer's character as a gift.</p>\n<p>The most familiar example, upon which there is a great deal of case law and authoritative guidance, is that tips paid to restaurant and hospitality industry workers are income rather than gifts, and are subject not only to income taxation but also to FICA payroll taxation. These tipping situations are closely analogous to voluntary payments made through a website.</p>\n<p>There are a great many tax regulations, court cases interpreting tax law, and authoritative guidances from the IRS (such a revenue rulings) that address the basic concepts that I've set forth above. And, the income tax law authorities are further informed by the statutes and case law governing gift taxation, which is, as intended, interpreted to define a gift in a matter that dovetails more or less perfectly with the definition of a gift for purposes of Internal Revenue Code Section 102.</p>\n<p>As the IRS <a href=\"https://www.irs.gov/businesses/small-businesses-self-employed/gift-tax\" rel=\"nofollow noreferrer\">explains at its website</a> discussing the gift tax for which the concept of a gift is defined consistently with the income tax concept of a gift:</p>\n<blockquote>\n<p>The gift tax is a tax on the transfer of property by one individual to\nanother while receiving nothing, or less than full value, in return.\nThe tax applies whether or not the donor intends the transfer to be a\ngift.</p>\n<p>The gift tax applies to the transfer by gift of any type of property.\nYou make a gift if you give property (including money), or the use of\nor income from property, without expecting to receive something of at\nleast equal value in return. If you sell something at less than its\nfull value or if you make an interest-free or reduced-interest loan,\nyou may be making a gift.</p>\n</blockquote>\n<p>Donations which are not income are gifts and there is a tax on gifts given (paid by the donor rather than the person receiving the gift). But, there is a $15,000 per donor per donee exception per year from gift taxation for gifts under the Internal Revenue Code, in addition to more than $12 million per lifetime per person exemption from gift and estate taxation for gifts in excess of this $15,000 amount (called the annual exclusion) and inheritances left at death. So, usually, if a transfer is treated as a gift rather than as income, no tax will be due.</p>\n<p>But this part of this answer's short summary of the law is the top level conceptual framework for all of those other subordinate tax law authorities.</p>\n<p>Also, this income is also subject to self-employment taxation, which is imposed in lieu of FICA on income which is not a wage, salary or employment-related tip. Often self-employment taxes are due on self-employment income even when no federal income tax is owed upon it.</p>\n<blockquote>\n<p>if there is a clear answer, do states with personal income taxes do\nthe same regarding website donations?</p>\n</blockquote>\n<p>Most states and localities with a personal income tax start from the federal definition of income and modify that definition in ways that the taxing jurisdiction deems fit either to make sense (limiting the tax to income related to the state, for example, at least for non-residents), or to fit local policy preferences (e.g. exempting from income taxation, capital gains made in an investment in the state favored by state lawmakers).</p>\n<p>Almost no states or localities have chosen to deviate from the federal definition of income for income tax purposes with respect to donations made to websites that are not non-profit entities.</p>\n",
"score": 6
},
{
"answer_id": 87460,
"body": "<p>Your PayPal button may say the word donation, but if the PayPal account is in your name it is nothing else but income. If you declare it and pay the correct taxes you should be fine. If you decide to not pay the taxman what he is due, you may get away with it, until you stop getting away with it. Not a place I would want to be personally.</p>\n<p>If there are just two government institutions you don't BS in the US it is the tax collectors and family court.</p>\n<p>If you do the paperwork and operate a sole proprietorship then you could claim expenses and all the related perks, but this form of business ownership has no separate corporate identity. Which basically means you and the business are one legal entity. If the business gets sued you get sued.</p>\n<p>The business profit is your profit and you pay the tax.</p>\n<p>If the PayPal account is for a registered non-profit then the donate button is an actual donation as defined in tax law.</p>\n<p>Non-profits are not taxed on there profits because by the very definition of there incorporation documents they don't make any profit. This type of legal entity operates under a surplus or a deficit.</p>\n<p>People who run nonprofits as a business play a dangerous game.</p>\n<p>If your donate button pays money into a for profit business account then there will be applicable gift tax.</p>\n",
"score": 2
},
{
"answer_id": 87462,
"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>If the website is a business, yes. If it’s a hobby, no</h2>\n<p>The difference is spelled out <a href=\"https://business.gov.au/planning/new-businesses/difference-between-a-business-and-a-hobby\" rel=\"nofollow noreferrer\">here</a>. A hobby is a business if it has the <a href=\"https://www.ato.gov.au/Business/Starting-your-own-business/Are-you-in-business-/\" rel=\"nofollow noreferrer\">characteristics of a business</a>:</p>\n<blockquote>\n<p>Generally, a business involves a set of continuous and repeated activities you do for the purpose of making a profit. Profit can be in money, but it can also be made through other means, like being paid with good or services (such as a barter deal).</p>\n</blockquote>\n<p>Income on hobbies is not assessable but neither are the expenses in pursuing it deductible.</p>\n",
"score": 0
}
] |
[
"united-states",
"internet",
"irs"
] |
Should I copyright my original code before registering the current version?
| 0 |
https://law.stackexchange.com/questions/22453/should-i-copyright-my-original-code-before-registering-the-current-version
|
CC BY-SA 3.0
|
<p>I have a question regarding best practices when it comes to code copyright.</p>
<p>The company I'm working for would like to register their code in the US Copyright Office. However, they first published their website a year ago and this is a more recent version of the code.</p>
<p>I've done research but I can't find a lot about what the best practices are - is it better to copyright only the more recent version of the software? Or to create a separate claim for the first published version, and file another one for this recent one?</p>
<p>I understand that you don't have to register your code with the US Copyright Office for it to be copyrighted, but this is something that the company would like to do.</p>
<p>Any help is appreciated</p>
<p>Thank you</p>
| 22,453 |
[
{
"answer_id": 22455,
"body": "<p>Copyright is automatic: when you write something original, it is thereby copyrighted. Thus there is no act of \"copyrighting\". The only important act is <em>registering</em>. All versions of a work are covered by copyright protection. When you revise a work, the existing copyright still exists, and you have created a derivative work. </p>\n\n<p>If copyright is held by a known person, the expiration date is author's death + 70 years. In a work made for hire (the company owns the copyright), it is the earlier of is 95 years from first publication or the shorter of 120 years from creation. A revision does not generally affect the duration of copyright: however, if a joint work is created, the copyright on the underlying work expires relative to the death of the original author and the copyright on later parts created by a second (added) author is relative to the second author's death. So if A writes ch. 1-4 of a book, then adds ch. 5-8 subsequently with a new co-author B, duration of copyright for ch. 5-8 is determined relative to the death of B. None of that matters for a company web page.</p>\n",
"score": 4
},
{
"answer_id": 87484,
"body": "<p>You would have to look at cost vs. effect. Your GreatSoftware version 1.7.13 is likely 99% or more identical to version 1.7.12, so if I copy one, I copy 99% of the other. It won't make much difference in a judgment, but registering a copyright costs money.</p>\n",
"score": 0
},
{
"answer_id": 87485,
"body": "<p>As the <a href=\"https://law.stackexchange.com/a/22455/17500\">answer</a> by user6726 says, copyright is automatic when an original work is "fixed in a tangible form (such as a computer file). This is now true in all countries that adhere to the <a href=\"https://en.wikipedia.org/wiki/Berne_Convention\" rel=\"nofollow noreferrer\">Berne Copyright Convention</a>, or the WTO's <a href=\"https://en.wikipedia.org/wiki/TRIPS_Agreement\" rel=\"nofollow noreferrer\">TRIPS Agreement</a>. That included all but a very few countries in the world.</p>\n<p>Under US law, the copyright must be registered before one can start a suit for copyright infringement. Statutory damages are not available under US law unless the work is registered <strong>before</strong> the infringement occurs, or else within three months of the publication of the work.</p>\n<p>If an earlier version of a work is registered, a later version will usually be a derivative work of the earlier version, and so the registration of the earlier version will suffice if the later version is infringed. However, a defendant could argue that the later version is not a derivative work, and so the earlier registration is not valid for the later version.</p>\n<p>The greatest possible protection is obtained by registering each separate version as a separate work, But there is a fee for each registration, and there is time and effort expended in preparing the registration submission, and in tracking the registrations of each version. How much money, time and effort to expend on registrations of different versions is a business decision, not a legal issue. Some holders will register every version, some only those versions where significant changes are introduced, and some only one early version.</p>\n<p>A new version will not extend the duration of copyright on an earlier version.</p>\n",
"score": 0
}
] |
[
"copyright",
"software",
"licensing"
] |
Is one free from legal responsibility if the intellectual property has passed the plagiarism check software?
| 10 |
https://law.stackexchange.com/questions/87396/is-one-free-from-legal-responsibility-if-the-intellectual-property-has-passed-th
|
CC BY-SA 4.0
|
<p>A few examples:</p>
<ol>
<li><p>Bob wrote a blog post and uses a plagiarism checker. The checker didn’t find any plagiarism. Does that protect Bob from copyright infringement claims?</p>
</li>
<li><p>Bob uses AI to generate a blog post and passed the plagiarism checker. The AI company that provides the software has marketed to provide plagiarism free copies. Does that protect Bob from copyright infringement claims?</p>
</li>
<li><p>Bob wants to register a trademark and uses the trademark search tool. The search tool didn't find any similar trademarks. Does that protect Bob from trademark infringement claims?</p>
</li>
</ol>
| 87,396 |
[
{
"answer_id": 87397,
"body": "<p>None of the methods suggested protect Bob from a copyright or trademark infringement claim.</p>\n<p>These methods may protect Bob from a claim that Bob is an intentional infringing party, as opposed to being an "innocent infringer". But, an innocent infringer is not immune to liability for copyright and trademark infringement.</p>\n<p>Instead, an innocent infringer is simply subject to less potent penalties and remedies than an intentional infringer of the copyright or trademark owner's rights.</p>\n<p>Also, innocent infringer status ceases when Bob receives a cease and desist letter if Bob continues the infringing conduct.</p>\n<p>This said, in the first case, if Bob independently writes the blog post without copying anyone else's work, Bob has not infringed any copyright. This is true even if someone else had already written exactly the same thing.</p>\n<p>Copyright infringement, unlike patent infringement and trademark infringement, requires that the infringing work actually be derived from the work claimed to be infringed and independent invention of a work is a full defense to copyright infringement.</p>\n",
"score": 47
}
] |
[
"copyright",
"intellectual-property",
"software"
] |
Tax year for spending when bank transfer begins and ends in separate years
| 2 |
https://law.stackexchange.com/questions/87477/tax-year-for-spending-when-bank-transfer-begins-and-ends-in-separate-years
|
CC BY-SA 4.0
|
<p>As a business expense, Alice initiates a bank transfer to a company on 30 Dec 2022 and the money reaches the company some business days later, in 2023. For U.S. tax purposes - assuming Alice files using the cash basis - can Alice claim the deduction on her 2022 tax return?</p>
| 87,477 |
[
{
"answer_id": 87479,
"body": "<p>Since Alice uses "CASH ACCOUNTING" expenses are accounted for when they are paid by her, not when someone else receives it. So in your hypothetical, when she initiated the transfer would be the date that the payment is considered to be made.</p>\n<p>On the other hand, "ACCRUAL ACCOUNTING" means that Alice would account for the expense when it was made. Generally this would be earlier than the CASH date.</p>\n<p>But either way, she would account for it in 2022 based on what you said above.</p>\n",
"score": 5
}
] |
[
"united-states",
"tax-law",
"income-tax"
] |
Where is the line between civil and criminal breach of copyright?
| 4 |
https://law.stackexchange.com/questions/87442/where-is-the-line-between-civil-and-criminal-breach-of-copyright
|
CC BY-SA 4.0
|
<p>My understanding is that acts can be a breach of copyright and can result in being held liable in civil courts (a civil wrong?) without being criminal and result in being found guilty in criminal court (a crime?).</p>
<p><a href="https://www.bbc.co.uk/news/technology-64003237" rel="nofollow noreferrer">The BBC is reporting</a> that the Intellectual Property Office (IPO) said on Tuesday that sharing passwords for online streaming services such as Netflix broke copyright law, and the IPO told the BBC it was both a criminal and civil matter.</p>
<p>What features of an act would be considered in determining if an act was criminal, as opposed to being purely a civil matter?</p>
| 87,442 |
[
{
"answer_id": 87456,
"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>\nIn US copyright law, criminal copyright infringement is defined by <a href=\"https://www.copyright.gov/title17/92chap5.html#506\" rel=\"nofollow noreferrer\">17 USC 506(1)</a>, which reads:</p>\n<blockquote>\n<ol>\n<li>In general.—Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed—</li>\n</ol>\n<p>(A) for purposes of commercial advantage or private financial gain;</p>\n<p>(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or</p>\n<p>(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.</p>\n</blockquote>\n<p>Note that there is a financial floor in subsection (B), that the infringing copies must have a retail value of $1,000 or more.</p>\n<p>However, my understanding is that, as a matter of policy and not law, the US Department of Justice (DoJ) only brings charges of criminal copyright infringement where the infringement is both extensive and lasting, in effect there the accused has made infringement a business.</p>\n<p>I am fairly sure that password sharing itself would not be copyright infringement under US law, but might well be a violation of the Computer Fraud and Abuse Act (CFAA). But using a shared password to access protected content without authorization might be infringement, if a copy of the content is made. Sharing a password knowing that it will be so used is probably a violation of the anti-circumvention provisions of the DMCA, which has been incorporated into Title 17, the US copyright law. But that normally leads to civil liability.</p>\n",
"score": 5
},
{
"answer_id": 87450,
"body": "<p>The criminal offence of copyright infringement is defined in <a href=\"https://www.legislation.gov.uk/ukpga/1988/48/section/107\" rel=\"nofollow noreferrer\">section 107</a> of the <em>Copyright, Designs and Patents Act 1988</em>. Subsection (1) confirms that the offence is primarily addressed at infringement for profit.</p>\n<blockquote>\n<p>A person commits an offence who, without the licence of the copyright owner—</p>\n<p>(a) makes for sale or hire, or</p>\n<p>(b) imports into the United Kingdom otherwise than for his private and domestic use, or</p>\n<p>(c) possesses in the course of a business with a view to committing any act infringing the copyright, or</p>\n<p>(d) in the course of a business —</p>\n<p>(i) sells or lets for hire, or</p>\n<p>(ii) offers or exposes for sale or hire, or</p>\n<p>(iii) exhibits in public, or</p>\n<p>(iv) distributes, or</p>\n<p>(e) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,</p>\n<p>an article which is, and which he knows or has reason to believe is, an infringing copy of a copyright work.</p>\n</blockquote>\n<p>According to the linked article, the IPO said "There are a range of provisions in criminal and civil law which may be applicable in the case of password sharing where the intent is to allow a user to access copyright-protected works without payment." This statement followed the removal of the (apparently embarrassing) guidance on password sharing from the IPO website.</p>\n<p>The statement is probably best understood as an attempt to save face by focusing on the broad <em>potential</em> scope of the law. It is technically correct that the criminal offence "may be applicable" to password sharing, for example when it forms part of a business that profits from the knowing infringement of copyright. But the typical password sharer is unlikely to be committing a criminal offence, and even less likely to be charged with it.</p>\n",
"score": 4
}
] |
[
"copyright",
"united-kingdom",
"criminal-law",
"civil-law"
] |
Are US employees able to work remotely while abroad?
| 1 |
https://law.stackexchange.com/questions/87446/are-us-employees-able-to-work-remotely-while-abroad
|
CC BY-SA 4.0
|
<p>There has been an increase in employees working remotely while abroad, especially during/after COVID. <a href="https://www.businessinsider.com/meet-remote-workers-secretly-working-abroad-without-boss-knowing-2022-10" rel="nofollow noreferrer">Sometimes without telling their bosses</a>. Is it legal for US employees to work (for a US company) remotely in another country for an extend period (a year or longer)? (Assume that the host country doesn't have any special laws that forbid foreigners from working remotely.)</p>
| 87,446 |
[
{
"answer_id": 87468,
"body": "<p>I've done it, I know a number of people who have done it. There's no general rule regarding employer-employee relations – if you have to physically clock in, then basically no, if you don't do job you can get fired and the employer might require you to be physically present in a certain location. Whether or not it is legal to "work" in another country depends on the laws of that country, but there is no recurring law to the effect that you cannot "do work" while in a foreign country without a work permit or the like. There <em>is</em> a general rule that you have to be permitted to reside in a country, if you intend to reside in a country, so a US citizen cannot generally pick an arbitrary country and decide that they want to live there for a couple of years, without asking permission from the host government.</p>\n<p>There can be a complex relationship between the premise for getting a long-term visa to reside for a year in another country, and the rationale for that stay, for example a student coming to the US for the purpose of study cannot decide that instead they want to work as a car salesman. A scam whereby you claim to be a student in some local college when in fact you are working remotely for a call center would run afoul of immigration laws as well. The main consideration is whether you are present in the country under one pretense but in fact are doing something very different, which may then be illegal, but that depends on the country-particular laws.</p>\n<p>Since you are not employed in that country, you (probably) are not subject to taxation of your regular income (i.e. if I go to Norway for a year and receive my US salary, I will not have to also pay Norwegian income tax on the US salary).</p>\n",
"score": 1
},
{
"answer_id": 87470,
"body": "<p>A generic answer will be impossible. Some of the possible pitfalls:</p>\n<ul>\n<li>Bring your own device or company-owned hardware?<br />\nThe company might have something to say about taking their hardware abroad.</li>\n<li>What software is used? Crypto for VPN?<br />\nThe US has regulations on the export of certain software, which could become an issue if you take the devices into certain countries.</li>\n<li>What data is used from abroad?<br />\nThere may be compliance requirements to safeguard data, which might be broken by working from abroad.</li>\n</ul>\n",
"score": 0
}
] |
[
"united-states",
"employment",
"tax-law",
"extraterritorial-jurisdiction"
] |
Copyright regulations and piping
| -5 |
https://law.stackexchange.com/questions/87432/copyright-regulations-and-piping
|
CC BY-SA 4.0
|
<p>As I understand, the copyright regulations help non-proliferation of duplication and repetition but nothing to do with profiteering. But can they do justice about "piping" at speeds beyond average human capabilities?</p>
<p>"Piping" is just transferring input field entries at a mobile touch screen or terminal to unknown terminals or devices, through unknown browser or device, in the normal internet context.</p>
<p>If the 'fair use' involves unfair third party financial transactions, does the copyright holder has any legal right to claim a share of the profit?</p>
<p>My concern is about deliberate human interference while creation of a material in the present electronic storage, publication and distribution media.</p>
<p>I hope my question is clear.</p>
| 87,432 |
[
{
"answer_id": 87436,
"body": "<p>If copyrighted material is copied without a license, that's copyright infringement (with some exceptions for fair use in the USA). Whether anyone reads the copied material is irrelevant. You can be sued for it.</p>\n<p>Back in the day there were people making illegal copies of video games that fell into the category "hunters and gatherers". They never played any of these games, their entertainment was finding the games and making copies. Some had hundreds of games, never paid for any, never played any, just stored away. That was copyright infringement.</p>\n",
"score": 1
}
] |
[
"copyright"
] |
Have all U.S. wars since world war 2 been unconstitutional?
| -2 |
https://law.stackexchange.com/questions/87423/have-all-u-s-wars-since-world-war-2-been-unconstitutional
|
CC BY-SA 4.0
|
<p><a href="https://www.senate.gov/about/powers-procedures/declarations-of-war.htm" rel="nofollow noreferrer">According to the website of the U.S. senate:</a></p>
<blockquote>
<p>The Constitution grants Congress the sole power to declare war. Congress has declared war on 11 occasions, including its first declaration of war with Great Britain in 1812. Congress approved its last formal declaration of war during World War II. Since that time it has agreed to resolutions authorizing the use of military force and continues to shape U.S. military policy through appropriations and oversight.</p>
</blockquote>
<p>However, Article I, Section 8, Clause 11 of the U.S. Constitution remains unchanged. Since congress has not officially held a vote for declaring war - have they essentially been intentionally ignoring the constitution for the last 60 or so years? I thought the purpose of the constitution was to bind the government in its powers?</p>
<p>The Korean War, the Vietnam War, Operation Desert Storm, the Afghanistan War of 2001 and the Iraq War - none of them were initiated with an official vote by congress.</p>
| 87,423 |
[
{
"answer_id": 87426,
"body": "<blockquote>\n<p>The Korean War, the Vietnam War, Operation Desert Storm, the Afghanistan War of 2001 and the Iraq War - none of them were initiated with an official vote by congress.</p>\n</blockquote>\n<p>This is inaccurate.</p>\n<p>President Truman did break from precedent when he initiated a "police action" (read: not a war) on the Korean peninsula in mid-1950, and perhaps took advantage of an impending July recess when that "police action" started to look more and more like a "war". There were however <a href=\"https://www.lawfareblog.com/korea-war-powers-precedent\" rel=\"nofollow noreferrer\">plenty of votes</a> that Congress held during the remainder of the year that supported the actions that President Truman was taking. There were quite a few people serving in congress that raised a fuss about it at the time, but ultimately went along and funded the operations.</p>\n<p>Congress passed <a href=\"https://www.congress.gov/88/statute/STATUTE-78/STATUTE-78-Pg384.pdf\" rel=\"nofollow noreferrer\">H.J. RES 1145</a>, dated August 7th, 1964 after a US ship was attacked in international waters (the Gulf of Tonkin, which is why this legislation is more informally known as the "Gulf of Tonkin resolution"). This gave President Johnson authority to increase U.S. involvement in Vietnam. After awhile, Congress decided to retake some control back from President Nixon when they passed the <a href=\"https://www.gpo.gov/fdsys/pkg/STATUTE-87/pdf/STATUTE-87-Pg555.pdf\" rel=\"nofollow noreferrer\">"War Powers Resolution"</a> in 1973. From their point of view this gave the Commander-in-Chief the power to protect American interests while at the same time limiting the scope of any action possible by placing a time limit on what the President can do unilaterally. A President can commit forces if they feel it necessary, but must notify Congress within 48 hours of doing so and only allows action to proceed for a total maximum of 90 days. After that, for any military involvement by the United States to continue, Congress must authorize it.</p>\n<p>Because of that legislation, Congress now passes what people call "AUMFs" (<strong>a</strong>uthorization for the <strong>u</strong>se of <strong>m</strong>ilitary <strong>f</strong>orce). Desert Storm was authorized by <a href=\"https://www.govinfo.gov/content/pkg/STATUTE-105/pdf/STATUTE-105-Pg3.pdf\" rel=\"nofollow noreferrer\">a bill</a> titled "Joint Resolution to authorize the use of United States Armed Forces pursuant to United Nations Security Council Resolution 678". Military operations in Afghanistan were also approved in a similar way with <a href=\"https://www.congress.gov/107/plaws/publ40/PLAW-107publ40.pdf\" rel=\"nofollow noreferrer\">a bill</a> titled "Joint Resolution to authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States" which was signed into law by President Bush on September 18th, 2001 (one week after 9/11).</p>\n<p>All of this is to say that Congress has, in effect, ceded some of the power granted to them under the Constitution to the Office of the President, but not without reason. The ultimate answer to your title question, however, is that we have absolutely no idea. The only people with standing that can challenge in a court of law any given action would be Congress itself, and it has never chosen to do so. And, really, why would it when it can just pass legislation targeting anything the President does that they don't at least tacitly agree to? That way they can get what they want without having to worry how a squeamish Supreme Court may rule. It doesn't help matters that pretty much every single President since Nixon has in some form argued that the War Powers Act itself is unconstitutional. Additionally, there's not a single member of any branch of the Armed Forces which would listen to orders given to them by any member of Congress which contradict orders given to them by the President because doing so is likely to land them in jail. What we've more or less settled in to is that yes, Congress controls the <em>power</em> of "war making" by controlling the funding of the operations themselves, and the President can fulfill their obligation to protect and defend the United States and it's interests regardless of whether Congress is currently back home kissing babies at the moment.</p>\n<hr />\n<p>Below is a non-exhaustive list of pre-World War II military actions that the US participated in or against foreign territories without a formal declaration of war:</p>\n<ul>\n<li><a href=\"https://en.wikipedia.org/wiki/American_Indian_Wars\" rel=\"nofollow noreferrer\">"The Indian Wars"</a><sup>*</sup></li>\n<li><a href=\"https://en.wikipedia.org/wiki/First_Barbary_War\" rel=\"nofollow noreferrer\">First Barbary War (1801-1805)</a></li>\n<li><a href=\"https://en.wikipedia.org/wiki/Philippine%E2%80%93American_War\" rel=\"nofollow noreferrer\">Philippine–American War (1899-1902)</a></li>\n<li><a href=\"https://en.wikipedia.org/wiki/Pancho_Villa_Expedition\" rel=\"nofollow noreferrer\">Pancho Villa Expedition (1916)</a></li>\n</ul>\n<p><sup>*- The Indian Wars is actually a 300+ year long intermittent conflict between European Settlers (after awhile referred to as "Americans") and different groups of Native Americans who had lived on the continent for thousands of years. This one bullet point could easily be deconstructed into dozens of individual conflicts.</sup></p>\n",
"score": 8
}
] |
[
"united-states",
"constitutional-law"
] |
Can UPS really trademark the color brown?
| 45 |
https://law.stackexchange.com/questions/6685/can-ups-really-trademark-the-color-brown
|
CC BY-SA 3.0
|
<p>So, today as I received an email from UPS, I read the disclaimer at the end and it said:</p>
<blockquote>
<p>© 2016 United Parcel Service of America, Inc. UPS, the UPS brandmark, and the color brown are trademarks of United Parcel Service of America, Inc. All rights reserved.</p>
</blockquote>
<p>What exactly does it mean that the "<em>color brown</em>" is a trademark of someone? Does it refer specifically to the brown in the logo's arrangement? And if so, anyone that uses that same color is subject to trademark infringement?</p>
| 6,685 |
[
{
"answer_id": 6687,
"body": "<p>Inks for reproduction can be mixed to create very custom colors. It is entirely possible to trademark a special \"recipe\" of ink which results in the same color each time. </p>\n\n<p>So yes. In terms of branding -- colors, or specific color combinations, can be trademarked.</p>\n\n<p>Don't confuse \"trademark\" with \"ownership\" or \"copyright\". Trademark merely means in <strong>that particular industry</strong> the company has staked a claim on a specific color or color combination. Trademarks are more about preventing brand <em>confusion</em> within the <em>same</em> industry. You're free to use the same colors in a completely separate industry and even in some cases in a completely separate manner within the same industry. </p>\n\n<p><a href=\"http://freakonomics.com/2011/08/12/can-you-trademark-a-color/\">Freakonomics</a> has an article about trademarking colors. It mostly alludes to fashion, but it's still a valid article.</p>\n\n<p>If you want to delve more into branding and color, <a href=\"https://www.colormatters.com/color-and-marketing/color-branding-legal-rights\">Color Matters</a> has some additional information.</p>\n",
"score": 48
},
{
"answer_id": 6695,
"body": "<p>The other answers have somewhat implicitly already answered this particular question, but I wanted to point out an important detail.</p>\n\n<blockquote>\n <p><strong>anyone</strong> that uses that same color is subject to trademark infringement?</p>\n</blockquote>\n\n<p>No. Trademarks are <em>only</em> registered for a particular industry. For UPS, that would be logistics, parcel delivery, transportation, and some related ones. Also, trademarks are for, well, trade.</p>\n\n<p>So, practically speaking, you only infringe when you are a competitor. (That's not quite true, but somewhat close.)</p>\n\n<p>You can see for yourself, what <em>exactly</em> the claims of the trademarks are. The <a href=\"http://uspto.gov/\">USPTO</a> has a registry of all trademarks, the interesting ones are serial numbers 75039323, 75065911, and 76408109.</p>\n",
"score": 15
},
{
"answer_id": 6689,
"body": "<h2>Lack of confusion</h2>\n\n<p>The point of trademarks is to prevent customers confusing companies, and prevent companies from misleading (intentionally or not) customers that they are some other company (e.g. better known, better reputation, with more advertising) or related to them.</p>\n\n<p>UPS trademarks essentially mean that if you are in their industry, then using similar branding is prohibited. Trademarking a particular color means that they consider using that or similar color a significant part of that branding - if you run a company doing package deliveries and have either similar logos, similar name, similar color scheme, etc, then UPS may sue you on trademark grounds, and the registered trademark on the color will mean that saying \"oh, we don't think that using this color in this industry is associated with UPS\" is not valid.</p>\n",
"score": 9
},
{
"answer_id": 6686,
"body": "<p>Yes but it is that specific shade and only in the logistics industry.</p>\n\n<p>Cadbury have trade marked purple.</p>\n",
"score": 7
},
{
"answer_id": 87466,
"body": "<p>I don't think UPS is making any extraordinary claim, because they are stating this in the context of <strong>trademarks</strong>.</p>\n<p>They are putting people on notice that they are guarding their signature brown color <em>in the context in which they have a right</em>, which is where that might lead to confusion with UPS's services - shipping boxes, delivery vans, private mailbox stores, etc. And they have some real exposure here.</p>\n<p>First are the signature UPS vans, which also have signature fiberglass nose trim. They replace them by the thousands and sell the used ones. They are painted white before sale, but that is a cost they could escape if they could enforce their claim in the color. Also, the paint is very cheap, and the next owner will want to repaint them properly - brown might be a tempting choice.</p>\n<p>Aside from selling to desperate (Amazon contractors who need trucks Right Now and can't wait in line for new ones) or small-fry (two guys and a truck) type delivery services, former UPS vans are wildly popular for those building a Tiny House onboard, aka #VanLife. This is increasingly popular due to pressures in the housing market - a Google employee even famously did it. However, people with houses do not like it. UPS does not want people looking askance at brown vans in their community, so they do not want to be associated with #VanLife.</p>\n<p>Another area of vulnerability is that <em>The UPS Store</em> is franchised. Family-owned franchise operators are made restless by decisions made by UPS Corporate - ask any of them how they feel about Amazon returns "business". As such you have defections, and UPS wants to deter this by forcing "apostates" to spend money updating signs, trim and furniture to not be brown.</p>\n<p>They could make all these claims without the disclaimer you note, but the disclaimer makes it easier to convince a jury that the actor reasonably should have known they were infringing.</p>\n",
"score": 0
}
] |
[
"united-states",
"intellectual-property",
"trademark"
] |
What makes something qualify as indirect unlawful discrimination versus simply being lawful practice?
| 1 |
https://law.stackexchange.com/questions/87330/what-makes-something-qualify-as-indirect-unlawful-discrimination-versus-simply-b
|
CC BY-SA 4.0
|
<p>Imagine that Nike makes a particular model/style of trainer, for example, called the Nike Jordan 4128s, which come in a men's and women's version respectively. They both normally retail for £200, but a shop, either Nike itself or a secondary retailer, decide to run a promotion on the women's version, so that they sell it, temporarily, for £150. No customer is prohibited from buying either version based on their sex or gender, but needless to say this price regime will disproportionately affect male purchasers from the business over female ones.</p>
<p>Is this unlawfully discriminatory on the basis of customers' sex?</p>
<p>Of course the thinking here is that it may be indirect discrimination, but what could cause it to qualify or not qualify as indirect discrimination even though it is presumably not done for misandrous motivations?</p>
<p>Possible starting points for research that survey the case law fleshing out this concept of legitimate aims, and the “costs plus” principle:</p>
<ul>
<li><a href="https://www.stammeringlaw.org.uk/disability-equality-law/discrimination/discrimination-arising-from-disability/justification/#cost" rel="nofollow noreferrer">https://www.stammeringlaw.org.uk/disability-equality-law/discrimination/discrimination-arising-from-disability/justification/#cost</a></li>
<li><a href="https://www.michelmores.com/news-views/news/age-discrimination-and-proportionate-means-achieving-legitimate-aim" rel="nofollow noreferrer">https://www.michelmores.com/news-views/news/age-discrimination-and-proportionate-means-achieving-legitimate-aim</a></li>
</ul>
| 87,330 |
[
{
"answer_id": 87429,
"body": "<p><a href=\"https://www.legislation.gov.uk/ukpga/2010/15/part/3\" rel=\"nofollow noreferrer\">Part 3 of the Equality Act</a> is the Part that applies to the provision of services to the public, which includes "the provision of goods." This Part prohibits service providers from discriminating as to the terms on which a provider provides the goods to the customer.</p>\n<p>Indirect discrimination is defined at <a href=\"https://www.legislation.gov.uk/ukpga/2010/15/section/19\" rel=\"nofollow noreferrer\">Section 19 of the Equality Act 2010</a>. It establishes that indirect discrimination is a form of discrimination:</p>\n<blockquote>\n<p><strong>19 Indirect Discrimination</strong></p>\n<p>(1) A person (A) discriminates against another (B) if A applies to B a\nprovision, criterion or practice which is discriminatory in relation\nto a relevant protected characteristic of B's.</p>\n<p>(2) For the purposes of subsection (1), a provision, criterion or\npractice is discriminatory in relation to a relevant protected\ncharacteristic of B's if—</p>\n<ul>\n<li><p>(a) A applies, or would apply, it to persons with whom B does not share the characteristic,</p>\n</li>\n<li><p>(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,</p>\n</li>\n<li><p>(c) it puts, or would put, B at that disadvantage, and</p>\n</li>\n<li><p>(d) A cannot show it to be a proportionate means of achieving a legitimate aim.</p>\n</li>\n</ul>\n<p>(3) The relevant protected characteristics are—</p>\n<ul>\n<li><p>age;</p>\n</li>\n<li><p>disability;</p>\n</li>\n<li><p>gender reassignment;</p>\n</li>\n<li><p>marriage and civil partnership;</p>\n</li>\n<li><p>race;</p>\n</li>\n<li><p>religion or belief;</p>\n</li>\n<li><p>sex;</p>\n</li>\n<li><p>sexual orientation.</p>\n</li>\n</ul>\n</blockquote>\n<p>In characterizing the "practice" that is being applied, the Court of Appeal has said this word is not a term of art and is not to be construed narrowly or in a limited way (see <em>Ishola v Transport for London</em>, <a href=\"https://www.bailii.org/ew/cases/EWCA/Civ/2020/112.html\" rel=\"nofollow noreferrer\">[2020] EWCA Civ 112</a>). A fair way to characterize the "practice" being applied in this circumstance is that the store is "selling Nike Jordan 4128s (women's) at £150 and Nike Jordan 4128s (men's) at £200." (If instead the "pratice" were characterized more narrowly—selling Nike Jordan 4128s (women's) at £150—then the analysis would not even get past 19(2)(b). Likewise, if the "practice" were characterized more broadly—selling both the women's and men's versions at a discount from time to time, not necessarily at the same time—then the analysis will also have difficulty getting past 19(2)(b).)</p>\n<p>The question is whether the application of this practice indirectly discriminates against "male purchasers."</p>\n<h3>19(2)(a): does the Nike store apply this practice to male and non-male purchasers?</h3>\n<p>Yes. (This is why we're in an indirect discrimination analysis rather than direct discrimination.)</p>\n<h3>19(2)(b): does this practice put male purchasers at a disadvantage?</h3>\n<p>Depending on evidence showing that male purchasers are more likely to want to purchase the Nike Jordan 4128s (men's), then yes. (I could also see a tribunal cutting the analysis off at this stage, depending on how much weight they place on choice. I know that <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/18510/index.do\" rel=\"nofollow noreferrer\">Canada avoids inquiring into the "source" of the disadvantage or blaming it on an individual's choice</a>, but I have no idea what the approach in the U.K. is to this aspect.)</p>\n<h3>19(2)(c): would this practice put a particular male claimant at that disadvantage?</h3>\n<p>Depending on evidence showing that the particular claimant wants to purchase the Nike Jordan 4128s (men's), then yes.</p>\n<h3>19(2)(d): is it the case that the Nike store cannot show the practice to be a proportionate means of achieving a legitimate aim?</h3>\n<p>My prediction is that the store would be able to justify the practice as a proportionate means of achieving a legitimate aim.</p>\n<p>One example of a legitimate aim: a charging policy at swimming pools that disproportionately affected "disabled swimmers" was found to be a proportionate means of achieving a legitimate aim, being part of "an overall financial structure which covers the provision of a wide range of public services" (<a href=\"https://www.bailii.org/ew/cases/EWHC/Admin/2022/1588.html\" rel=\"nofollow noreferrer\">https://www.bailii.org/ew/cases/EWHC/Admin/2022/1588.html</a>)</p>\n<p>Other <a href=\"https://www.citizensadvice.org.uk/law-and-courts/discrimination/check-what-type-of-discrimination-youve-experienced/justifying-discrimination/\" rel=\"nofollow noreferrer\">examples of legitimate aims</a>: "running an efficient service," "requirements of a business," "desire to make a profit." However,</p>\n<blockquote>\n<p>Economic reasons alone are not enough to justify discrimination. Someone can’t justify discrimination by saying it’s cheaper to discriminate. But costs can be taken into account as part of the justification if the person can show there are other good enough reasons for the treatment.</p>\n</blockquote>\n<p>So, depending on the business rationale, and the proportionality of the discount compared to the business need (e.g. cost of holding extra stock, risk of failing to sell stock as a new model comes in, etc.), the price differential could be a proportionate means of achieving a legitimate aim. This will depend on the evidence. I predict most stores would be able to justify a modest and occasional price differential, even in the case that the production costs of each shoe are identical.</p>\n<h3>Summary</h3>\n<p>I see four ways through this analysis, each leading to the conclusion that this would not be indirect discrimination:</p>\n<ul>\n<li>a narrow characterization of the "practice" as simply selling the women's version at £150 (probably too narrow of a view)</li>\n<li>a broad characterization of the "practice" as selling all versions at a discount from time to time, albeit not necessarily at the exact same time</li>\n<li>a view that any disadvantage experienced by men is due to their choice not the price discrepancy (dubious)</li>\n<li>the price discrepancy is a proportionate means to achieve a legitimate aim (admittedly, a thin analysis requiring more research)</li>\n</ul>\n",
"score": 5
},
{
"answer_id": 87422,
"body": "<p>It certainly can be lawful. You, by all means, are allowed to buy either pair, the female or male one. If there is a rationale why they differ in prices (higher production, storage or shipping costs because of heavier, bulkier and more material-needing, pricier manufacture products) in reasonable proportion with the difference (not like male cost to sell £37, female £33, msrp £200, and msrp £100 respectively) would likely fail this test before a half decent tribunal. But if its an outgoing model, they try to swipe the stock, then clearly, the rationale is not related to sex or gender hence such discrimination could not reasonably be argued under any legal theory.</p>\n<p>So, it would likely be generally lawful, and unlawful in the exception. Predominantly, businesses are in business to make business, and not to make political statements (unless that affects their business) otherwise they would go out of business. And this is a good general starting point to determine who has the onus.</p>\n<p>To put a situation like this to a test, maybe garment is a better example where confection of substantially identical quality and substantially similar volume is used with other factors (production complexity, cost etc.) are similar, i.e. premium underwear and the prices between male and female counterparts are apart on multiple scales.</p>\n<p>There, the decision to part prices based on gender, may flow more naturally from something inherent to the sex and gender of the two groups, but — then again — there may be substantially greater competitive pressure on some top brands of women’s lingerie then among male underwear brands which is a legitimate reason to lower their profit margin in the female lingerie and not the male counterparts to stay alive and turn a reasonable profit. But in that case, the price difference flows from market dynamics, and merely indirectly and not proximately or any fashion recognizable under the law as imposing liability for reasons of sexual discrimination.</p>\n<p>On another note, while it’s completely possible that a misogynist (and perhaps also not completely impossible that a misandrist) or a group of them runs a shoe company for both sex to exert their sexist agenda, but this seems like a means that would both hurt them more, would probably not be recognized by the alluded target group as the expression of this group hate, but it is rather implausible and facially asinine. (You could lose or waste your money in more efficient ways to expose yourself to lawsuits that are easily understood as sexist declarations, no need to do it covertly hidden in price differences and relative profit margins) Anyone trying to sue on this basis would have an uphill battle to have a case that even reaches discovery to see any pattern to establish a believable motive of sexual discrimination.</p>\n<p><strong>UPDATE (interim):</strong></p>\n<p>Although secondary legislative material, but <a href=\"https://www.citizensadvice.org.uk/law-and-courts/discrimination/check-what-type-of-discrimination-youve-experienced/indirect-discrimination/\" rel=\"nofollow noreferrer\">Citizens’ Advice</a> requires, among others, that “the person [or entity] applying [a] policy, practice or rule [of indirect discrimination not be able to] show <strong>there’s a good enough reason for it”, and thereby engaging in discrimination of a protected group.</strong></p>\n<p>It’s questionable that discrimination exists at all where any sex is permitted to buy the male and female shoes, but if there was, there are plenty of “good enough reason” merely flowing from market dynamics substantiating “good enough reason” for, for the sake of the argument, “discrimination”.</p>\n",
"score": 2
}
] |
[
"united-kingdom",
"england-and-wales",
"discrimination",
"sex-discrimination"
] |
Is it legal for a private citizen to barter in international waters?
| 8 |
https://law.stackexchange.com/questions/87449/is-it-legal-for-a-private-citizen-to-barter-in-international-waters
|
CC BY-SA 4.0
|
<p>I first want to say that I know very little about international trading rules and regulations. I am curious to know if it is legal for a private citizen from one nation to barter for things with another private citizen from another nation in international waters.</p>
<p>Say for example that there is a man from America who makes high-quality, handmade fishing rods, and there is a man from Portugal who makes high-quality, handmade life jackets. Say that each one is very impressed with the other man's product and they both want to acquire a lot of each other's product, yet they both don't want to take the time to package up their products and pay for them to be shipped overseas.</p>
<p>They both happen to own a large boat, so they decide to meet each other at a spot way out in the middle of the Atlantic Ocean, at which they exchange their products with no money exchanged, and they then return to their nations.</p>
<p>Is it legal for a private citizen to barter in international waters?</p>
| 87,449 |
[
{
"answer_id": 87455,
"body": "<h1>Short Answer</h1>\n<p>Barring facts discussed below which aren't assumed to be present in the question, a barter of goods in international waters between people from different countries is legal.</p>\n<p>But, lurking in this question appears to be one or more misperceptions about the legal consequences of this transaction. The question seems to assume that there are tax or other legal benefits to conducting the transaction in this way that usually aren't present.</p>\n<p>There are basically no differences in the legality of a barter v. a cash sale for any purposes.</p>\n<p>Conducting the deal in international waters could have tax consequences, but the fact that the deal is conducted in international waters only sometimes results in tax reductions. This is not a major tax loophole.</p>\n<p>Conducting the deal in international waters could have an impact on which regulatory laws apply to the deal, but rarely prevent the deal from being subject to any country's regulatory laws.</p>\n<p>This is all subject to the caveat at the bottom of this answer. The caveat explains that there are indeed lots of major legal loopholes in international commerce. But private barters of goods in international waters rarely benefit from any of these major legal loopholes.</p>\n<h1>Long Answer</h1>\n<h3>Barter v. Cash Transactions Very Rarely Matter</h3>\n<p><strong>For Tax Purposes</strong></p>\n<p>A barter transaction is not tax free. In U.S. tax law, for example, a barter transaction is treated as though the goods that you part with were sold by you for cash at fair market value, with the cash then used to purchase the goods received.</p>\n<p>In general, there is no tax benefit achieved from bartering under U.S. income tax laws and there is a duty to report significant barter transactions (i.e. those in which the things parted with in any one year with the same person have a fair market value of $600 or more per year) on a Form 1099.</p>\n<p>U.S. federal income tax law has some narrow exceptions excluding certain barters from income taxation. The most common of these, however, is limited to barters of investment real estate located in the United States. Other exceptions apply mostly to basically fungible financial assets (like barters of economically identical shares of stock in the same company, or of economically equivalent life insurance policies).</p>\n<p>The fact that the transaction is a barter rather than two reciprocal cash sales is irrelevant for all tax purposes in most countries. This isn't only relevant for income tax purposes. If a transaction would otherwise be subject to sales taxes or to a value added tax, the fact that it is structured as a barter transaction only rarely provides any sales tax or VAT benefit.</p>\n<p>Bartering may increase the tax compliance costs involved, however, and undermines the certainty of the legal tax treatment of the deal, because usually, if there is a barter transaction, there will also have to be a professional third-party appraisal done to determine the fair market value of the goods bartered for tax purposes that will be subject to litigation with tax authorities.</p>\n<p><strong>For Customs Duties And Import Regulations</strong></p>\n<p>Similarly, a barter transaction does not change the treatment of the transaction for purposes of customs duties or for purposes of import regulations.</p>\n<p>Some customs duties are imposed "in kind" based upon the volume or weight or number of items subject to the duty (e.g. per liter of alcohol imported). But other customs duties are imposed based upon the dollar value of the goods imported posing the same practical difficulties of having to appraise the value of the goods exchanged to determine the proper customs duty. This could lead to major delays in importing the goods because often the valuation dispute would have to be resolved before the goods would be allowed to clear customs.</p>\n<p>Also, many non-customs duties regulations of imports require someone bringing goods into a country (even if they are citizen of that country) to document the source of those goods. In ability to do so due to a lack of documentation in a barter transaction conducted in international waters could also make it difficult to get the goods to clear customs.</p>\n<p>In cases where goods are brought in without formally passing through a customs station, for example, if an American docks his ship directly at his residence on a coast rather than at a port, the goods could be seized, either in national waters once they are entered by the Coast Guard after an intent not to declare the goods becomes evident, or from the place in the country where the goods are unloaded, and held in some sort of storage until the customs process is completed and the good clear customs.</p>\n<p>In the U.S., if the good has reached American soil, Immigration and Customs Enforcement (ICE) agents from the U.S. Department of Homeland Security would seize the goods.</p>\n<p>If the goods were still on a boat, the U.S. Coast Guard would be responsible for handling it. Historically, the U.S. Coast Guard was formed as an enforcement agency for customs duties and import regulations at a time when almost all international trade with the U.S. was conducted by sea and customs duties were the primary source of federal tax revenues.</p>\n<p><strong>For Regulatory Purposes</strong></p>\n<p>A transaction which is illegal if conducted for cash is also illegal if conducted by barter, and a transaction which is legal if conducted for cash is also legal if conducted by barter. It also doesn't change whose law and which legal forums govern legal disputes between the parties.</p>\n<p><strong>Currency Regulations</strong></p>\n<p>A tiny number of countries, possibly including Venezuela which has had such regulations at some points in the history of that country, but may or may not now, and Russia (in response to international sanctions related to the Ukraine War) impose some restrictions on the use of domestic and/or foreign currency in international commercial transactions.</p>\n<p>A barter would get around the currency restrictions in those countries (although not necessarily other regulations of those countries on foreign trade).</p>\n<p>But none of the other countries expressly mentioned in the question or in this answer impose limitations on the use of any kind of currency in international commercial transactions.</p>\n<h3>Legality</h3>\n<p>To the extent that no illegal technology transfers or international trade sanctions are violated, it is legal to conduct this barter or sale, although it has legal consequences even if it is legal.</p>\n<p>But, an American or an American firm or anyone else who purchased technology transfer restricted goods from a seller in the U.S. can't go into international waters to trade barred microchips to China in exchange for shipping containers full of fast fashion, because this would violate U.S. technology export laws.</p>\n<p>Similarly, one can't trade American beef for Russian oil, because this would violate laws that the U.S. has imposed as a diplomatic sanction against Russia.</p>\n<p>One of the most circumstances where this is most likely to come up is in a transaction between someone from Cuba and someone from the U.S. due to U.S. embargoes of trade with Cuba. I don't know the specifics of that law well enough to know whether or not, or under what circumstances, the contemplated transaction would be legal. But I strongly suspect that selling Cuban sourced goods directly to an American would violate U.S. sanctions laws against Cuba.</p>\n<h3>Income Taxation</h3>\n<p><strong>U.S. Federal Income Taxation</strong></p>\n<p>The fact that the transaction takes place in international waters is irrelevant for the income taxation of U.S. citizens and U.S. residents who are taxed on their worldwide income.</p>\n<p>U.S. income taxes generally don't apply to people who are neither citizens nor residents of the U.S. who engage in commerce or earn income outside the U.S.</p>\n<p><strong>For Other Income Taxes</strong></p>\n<p>While doing the transaction in international waters doesn't change the federal income tax treatment of the transaction for a U.S. citizen or U.S. resident, it could impact which U.S. state, if any, is entitled to impose its income tax on the sale and could impact whether the sale is subject to national income taxes in some countries.</p>\n<p>Normally, sale income tax is due on income earned in a state and income earned by people who reside in the state which is not earned in another U.S. state, although the details are tricky and are not always 100% consistent between U.S. states and localities that impose income taxes.</p>\n<h3>Sale Taxes, Use Taxes And VAT In International Waters Transactions</h3>\n<p><strong>For U.S. Style Sales And Use Taxes</strong></p>\n<p>In the U.S., state and local sales taxes are usually imposed only upon retail sales of goods to final customer that take place in the state or locality in question. Wholesale purchases of goods (i.e. purchases of goods for resale to third-party customers) are sales tax free in most U.S. states, as are purchases of goods by non-profit entities and governments.</p>\n<p>So, a sale in international waters avoids A sale in international waters also probably avoids all state and local sales taxes in the U.S. on the goods.</p>\n<p>But, most U.S. state and local sales taxes are backstopped by what is called a "use tax" on retail purchasers who are not non-profit entities or governments, who buy something in a place other than the place where they live and then bring that thing home to their residence in which there is a sales and use tax.</p>\n<p>So, for example, suppose that you buy office supplies (not for resale) for your accounting firm someplace in Alaska where you take delivery of the goods that doesn't have a sale tax, and bring it back to your office in Denver where there is an 8% sales and use tax, to use in your business. Neither you nor the seller in Alaska owe any sales tax in Alaska or Colorado, but your accounting firm owes an 8% use tax on the good you brought back from Alaska to use in Denver, Colorado which is imposed on you but not on the Alaskan seller.</p>\n<p>Use taxes are typically not really rigorously enforced, but are imposed when government sales and use tax collection agencies become aware of systemic and economically significant failures to pay a use tax obligation.</p>\n<p><strong>For VAT</strong></p>\n<p>No U.S. jurisdiction has a true value added tax (VAT) but most countries in the world do have a VAT.</p>\n<p>A Value-Added Tax (VAT) is a consumption tax assessed on the value added in each production stage of a good or service. Every business along the value chain receives a tax credit for the VAT already paid. The end consumer does not, making it a tax on final consumption.</p>\n<p>No VAT would typically be paid on a purchase of goods in international waters. But if the goods purchased in international waters are purchased for resale, the seller would not receive any credit for VAT paid on the inventory purchased, so effectively this increases the VAT that the reseller of the goods purchased in international waters will bear when the goods are sold.</p>\n<p>This benefits the seller of the goods in international waters, except that the price in international waters would usually be discounted in order to shift the incidence of the higher VAT that the buyer will eventually pay economically back to the seller.</p>\n<p>Not paying a VAT does benefit a final retail consumer purchaser of the goods purchased in international waters, however, unless there is a customs duty owed on the goods when they are brought back into the country. Often, however, countries with a VAT impose a customs duty on imported goods not imported for resale equal to the VAT that would have been imposed if the goods had been sold in the country into which they are imported.</p>\n<p>The inconvenience of going to international waters to buy things and the possibility of a customs duty on good returned to the retail buyer's domicile, however, makes this loophole a modest one.</p>\n<h3>Customs Duties And Regulations</h3>\n<p>Whether or not you pass through a regularly staffed port of entry in an airport or seaport, you usually have a legal duty to declare and pay any applicable customs duties on anything brought into the country, even if you are a citizen of that country.</p>\n<p>In the U.S., the law states that items not declared are subject to civil forfeiture, although there is case law under the excessive fines clause of the U.S. constitution that provides that civil forfeiture can sometimes amount to an unconstitutionally severe fine for a mere technical non-reporting violation.</p>\n<p>Often customs duties are paid by someone who buys something abroad and then imports it, either in a more than ordinary middle class personal consumption amount, or for resale.</p>\n<p>The only benefit from a customs perspective to conducting the deal in international waters (which has nothing to do with it being a barter v. a transaction for credit or cash) is most easily illustrated with an example.</p>\n<p>Suppose you are a U.S. person who lives in Maine. You go into international waters and buy $100,000 of escargot from a French snail products company and conclude the purchase at sea in international waters. You then deliver the escargot from your ship in international waters to your customer in Mexico.</p>\n<p>Even though you are U.S. person, since the goods never entered the U.S., the goods are not subject to U.S. customs duties or regulations, only to Mexican customs duties and regulations.</p>\n<p>So, for example, if the U.S. had a 10% customs duty on imported escargot, and banned escargot from France due to public health concerns, but Mexico only had a 5% customs duty on imported escargot and did not ban imports of it from France, it would be desirable to take delivery of the escargot in international waters or in France, and to ship them from international waters or France directly to Mexico rather than taking delivery of the goods in Maine and then shipping them to Mexico from there. You couldn't legally take delivery of French escargot in Maine at all, and if you too delivery instead of Belgian escargot which was not embargoed for public health reasons, you'd still pay a 10% U.S. customs duty in addition to the 5% Mexican customs duty.</p>\n<p>To avoid the inconvenience of having to actually do a business sale of commercial quantities of goods at sea, or the need to ship directly, there are a handful of ports under the laws of many countries in which goods placed in specially regulated warehouses are treated as not yet having entered the country for customs duty and inspection purposes until the goods are removed from the warehouse and brought into the country. So, in those places, sometimes called duty free zones or "free ports" one can avoid customs duties and inspections in the country where the port and warehouse where delivery of goods is taken when the goods are still in transit to a final destination outside the country where the port is located.</p>\n<p>Countries allow this because these duty free zones still allow the country to make money from income taxes on the people involved in the operation of the warehouse and ports in the duty free zone, and to make sales tax income from sailors and/or airline crew who enter the country after their work for the day is done, even though the country doesn't get the customs duties. If the customs duties and inspections had been required, the country wouldn't have gotten any income from this commerce at all because the deal would have been done in international waters or with a direct shipment or via a different third-party intermediary country.</p>\n<h3>Choice of Law And Transactional Law Issues</h3>\n<p>The common belief that no country has international jurisdiction over the kind of private exchange you present is not true.</p>\n<p>At a minimum the country or countries under whose flag the party's ships are flying would have jurisdiction.</p>\n<p>All countries have jurisdiction for some purposes (e.g. piracy and war crimes), sometimes under international treaties (there are a series of "law of the sea" treaties, for example, and there are also treaties that govern interactions between people affiliated with signatory nations like the Convention on the International Sale of Goods), and sometimes under what amounts to international common law.</p>\n<p>These legal rights can often be enforced in the domestic courts of a country where the person who violated those laws is domiciled or organized (under a legal theory of personal jurisdiction known as "general jurisdiction"), or where the person who violated those laws owns property (under a legal theory of personal jurisdiction is called "quasi-in rem" jurisdiction).</p>\n<p>Some countries have extraterritorial jurisdiction over their citizens and/or residents for some purposes, and over people who harm their citizens (for other purposes), which they enforce in their own courts. For example, the U.S. government claims and acts upon its claim of authority in its own courts over acts of terrorism committed against U.S. persons outside the U.S.</p>\n<p>When you do a business deal in international waters, a choice of law issue arises if there is a dispute in the transaction giving rise to a possible lawsuit.</p>\n<p>Continuing the example above, suppose that you agreed to buy 1000 kg of large escargot which was worth $100 a kilogram and the seller misled you and only gave you small escargot which is worth only $50 a kilogram.</p>\n<p>Whose law and whose courts govern this dispute?</p>\n<p>If the buyer and seller are from different countries, the Convention on the International Sale of Goods (CISG) provides the substantive law if both buyer and seller are citizens of signatory countries, and the buyer would probably have to sue the seller in the courts of the seller's country.</p>\n<p>Portugal, France, Canada, the United States, and Mexico are all <a href=\"https://iicl.law.pace.edu/cisg/page/cisg-table-contracting-states\" rel=\"noreferrer\">parties to the CISG</a>, as are many other countries. The signatories are a minority of countries in the world, but account for most of the world's international trade.</p>\n<p>It is also possible, for example, if the CISG did not apply because the seller was from a country that wasn't a signatory, that the law of the country under which the ship involved was flying under the flag of applied. So, if the deal took place in international waters on a Panamanian ship, the laws of Panama would apply.</p>\n<p>As a result, in practice, it doesn't matter that much if the CISG applies or not, because most countries which are not signatories have domestic laws governing the sale of goods which are substantially similar to the CISG in most respects.</p>\n<h1>Caveat</h1>\n<p>For the sake of clarity, it is important to note that there can indeed be major tax loopholes involved in legal international commerce, and there can also be significant regulatory law consequences that arise from legal international commerce that can benefit some of the parties to that international commerce.</p>\n<p>But, those loopholes can only rarely be benefitted from with a transaction structured as a barter of goods conducted in international waters between private persons.</p>\n<p>Many of the tax and regulatory benefits associated with international trade arise from conducting actual economic production activity, like manufacturing, in a country with low taxes on that activity and in a country with weak regulation of that activity. But these benefits aren't so much a legal loophole to close, so much as they are the product of a substantive policy decision made collectively by the laws of countries all over the world over which countries should have tax and legal jurisdiction over which kinds of activities.</p>\n<p>Most of the other tax benefits associated with international trade arise from manipulation of intangible financial assets and liabilities between countries to take advantages of loopholes in the tax laws for these types of intangible asset transactions. Usually, these loopholes in the treatment of intangible assets were not contemplated when the tax legislation containing these loopholes was drafted.</p>\n<p>Sometimes these loopholes persist because legislative authorities are not aware of the loopholes or don't understand what is happening.</p>\n<p>Sometimes legislative authorities lack the time and expertise to figure out a good solution to the problem that doesn't create a greater problem in some other part of the tax law.</p>\n<p>Sometimes the loopholes persist once the loopholes are discovered because they are deliberately ignored as a legislative boon to a special interests because this boon is not very visible or salient to most members of the general voting public.</p>\n<p>I saw all three of these reasons play out first hand when I was working as an aide in Congress for a House Ways and Means Committee member for a while in the early 1990s.</p>\n",
"score": 37
}
] |
[
"united-states",
"international",
"barter"
] |
What is a loding?
| -2 |
https://law.stackexchange.com/questions/87453/what-is-a-loding
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CC BY-SA 4.0
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<p><a href="https://en.m.wikipedia.org/wiki/Street_v_Mountford" rel="nofollow noreferrer">Wikipedia</a> quotes Street v Mountford as follows:</p>
<blockquote>
<p>‘the landlord is there for the purpose of being able, as landlords commonly do in the case of lodings, to have his own servants to look after the house and the</p>
</blockquote>
<p>What are lodings? Is it simply a typo for lodgings? If so, then what is the source of this mistake and how far back can it be traced? Did some official source publish the judgment with this error?</p>
| 87,453 |
[
{
"answer_id": 87454,
"body": "<p>A copy of the source material is hosted by the British and Irish Legal Information Institute: <em>Street v Mountford</em>, <a href=\"https://www.bailii.org/uk/cases/UKHL/1985/4.html\" rel=\"noreferrer\">[1985] UKHL 4</a>.</p>\n<p>I quote the portion showing that the spelling used in the source is "lodgings":</p>\n<blockquote>\n<p>... as landlords commonly do in the case of lodgings ...</p>\n</blockquote>\n",
"score": 5
}
] |
[
"united-kingdom",
"legal-terms"
] |
Does Elon Musk have any grounds for legal action against people who track his plane?
| 40 |
https://law.stackexchange.com/questions/87343/does-elon-musk-have-any-grounds-for-legal-action-against-people-who-track-his-pl
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CC BY-SA 4.0
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<p>Most airplanes, including Elon Musk's private jet, are required by law to broadcast their location throughout a flight in a well-documented, unencrypted digital format called ADS-B. This system is a critical part of aviation safety infrastructure. Several services, such as FlightAware, FlightRadar24, and ADS-B Exchange, collect this information with ground-based radio receivers and publish it on the Internet. FlightAware and FlightRadar24 will hide aircraft on request from the owner, but ADS-B Exchange does not, and provides unfiltered data.</p>
<p>Elon Musk has threatened to take legal action against people who share tracking data from his jet online, referring to it as "doxxing" and claiming it's a threat to his safety. He also bans Twitter users who post any plane-tracking information.</p>
<p>I don't see how he could have any claim for legal action against people who track his jet. As I have mentioned, ADS-B data is by no means private. When you are on an airplane, there is no reasonable expectation of privacy for your location. Collecting public information about a controversial public figure seems like a very clear case for First Amendment protection. This wouldn't affect his ability to ban Twitter users; he can (within reason) ban anyone for anything on Twitter because he owns it. (It's quite odd that he claims to be a free-speech absolutist but censors the reposting of public information, but that's beside the point.) It would, however, seem to preclude any involvement of the government.</p>
<p>What possible <em>legal</em> action could Elon Musk take against people who post ADS-B data from his private jet?</p>
| 87,343 |
[
{
"answer_id": 87344,
"body": "<p>Specifically, the threatened action is about stalking and implicit threats to his family. I'm not suggesting that there is a lot of merit to the claim, but that is how he is presenting the argument. The question would be where there is an intentional, repeated following of a person for the purpose of harassing the person with express or implied threats of violence or death. The jury would have to decide whether the implicit threat is credible (somebody plans to blow him or his family out of the sky), a decision would probably turn on the number of death threats he receives.</p>\n",
"score": 22
},
{
"answer_id": 87347,
"body": "<p>To expand on @user6726's answer, and get into the legal specificities, since the only duty not to do this, really, arises generally out of those predominantly criminal statutes, a "legal action" would resort to a tort action which is "in essence is the breach of a nonconsensual duty owed another. Violation of a statutory duty to another may therefore be a tort and violation of a statute embodying a public policy is generally actionable even though no specific civil remedy is provided in the statute itself. Any injured member of the public for whose benefit the statute was enacted may bring the action. (See <em>Hudson v. Craft</em>,33 Cal.2d 654, 660 [ 204 P.2d 1, 7 A.L.R.2d 696]; <em>Biakanja v. Irving</em>,49 Cal.2d 647, 651 [ 320 P.2d 16, 65 A.L.R.2d 1358]; <em>Wetherton v. Growers Farm Labor Assn.</em>,275 Cal.App.2d 168, 174 [ 79 Cal.Rptr. 543]; <em>McIvor v. Mercer-Fraser Co.</em>,76 Cal.App.2d 247, 253-254 [ 172 P.2d 758].) (<em>Laczko v. Jules Meyers, Inc.</em> (1969) 276 Cal.App.2d 293, 295)</p>\n<p>Although these formulations are from California, these basic principles arising out of common law should not substantially differ, say, in Texas where the man resides right now, but surely, some of his flights for Tesla must include California rather frequently any ways.</p>\n<p>Additionally, the points @user6726 makes about the frequency, quality, seriousness etc. of any explicit or the mere implied threat is factored in for example in the case of a cause of action for negligent or intentional infliction of emotional distress where "[w]hen there is a breach of duty, "a person who is in the path of negligent conduct and <strong>reasonably fears for his or her own safety may recover for resulting emotional distress."</strong> In re Air Crash Disaster Near Cerritos, Cal., 973 F.2d 1490, 1493 (9th Cir. 1992). ” [Citation.] (discussing hypothetical pedestrian narrowly avoiding speeding car and <strong>indicating that threat of injury is the relevant issue</strong>); [Citation.] (quoting Potter hypothetical and holding <strong>plaintiff was not precluded from relief simply because car did not actually hit her</strong>) (<em>Taylor v. Honeywell Int'l, Inc.</em> (9th Cir. 2015) 599 F. App'x 664, 3)</p>\n<p>Analogously, even if he could not show any evidence of threats in innuendo or such made overtly, it is possible that establishing that in his position any reasonable person would fear for their lives, he could be treated as one who was not threatened, but "almost got hit by the threat" given his personal circumstance which inflicted such emotional distress that merits action.</p>\n<p>Now, whether or not a criminal violation could be established that is different question, for e.g., whether or not, for purposes of the tort action, him being plaintiff would be required to prove his case merely by the preponderance of the evidence, or the same threshold would be required as if the civil defendant would be under criminal prosecution which could be a question of its own here.</p>\n<p>Although true that his flight information is public, it can reasonably be argued that a certain level of expertise knowledge is required for a layman to be able to use the raw, publicly available information to make a threat on his life which would certainly help filter out some wackos even if equally certainly could not prevent any more sophisticated or orginazied attempts on his life.</p>\n<p>To decide which one is of greater concern would definitely be a question to be decided by the trier of fact.</p>\n",
"score": 15
},
{
"answer_id": 87363,
"body": "<p>Just as a clarification to your first sentence, ADSB is only required in certain airspaces and elevations. It is entirely possible and legal to fly private planes from coast to coast without ADSB, without a transponder, or even without a radio to communicate with. So it is quite possible to fly anonymously in the USA.</p>\n<p>With that being said, jets are typically flying at altitudes and to airports that require ADSB.</p>\n<p><a href=\"https://www.aopa.org/go-fly/aircraft-and-ownership/ads-b/where-is-ads-b-out-required\" rel=\"noreferrer\">https://www.aopa.org/go-fly/aircraft-and-ownership/ads-b/where-is-ads-b-out-required</a></p>\n<p>I think the crux of the argument is how specific does a location have to be to be legally threatening? What is specific enough to be useful for a stalker?</p>\n<ul>\n<li>California state? not specific</li>\n<li>LA area? Still not specific</li>\n<li>LAX airport? Not that specific considering it's a massive complex with thousands of people and cars.</li>\n<li>Signature FBO at LAX airport? This is a specific building</li>\n</ul>\n",
"score": 11
},
{
"answer_id": 87448,
"body": "<h2>Having the information can't be illegal</h2>\n<p>Elon Musk has a legal obligation to have his plane equipped with a transponder that publicly transmits its ADS-B data and transmits his flight plan under FAA regulations.</p>\n<p>The flight plan has to enter public records and have to be made accessible. FAA chose to make flight tracking instantly accessible if you know the flight number on the <a href=\"https://nasstatus.faa.gov/\" rel=\"nofollow noreferrer\">NASS</a>. There's a list of air vehicles that are not published, like military aircraft under the <a href=\"https://nbaa.org/aircraft-operations/security/privacy/limiting-aircraft-data-displayed-ladd/\" rel=\"nofollow noreferrer\">FAA LADD</a>, but those can get accessed by a FOIA request.</p>\n<p>Otherwise, it's actually rather easy to just... read the airwaves for the ADS-B transponder, look for a specific airplane number (which is public information!), and then read that out. There's no law against that.</p>\n<h2>Using the information <em>could</em> be illegal.</h2>\n<p>However, using the information in some ways could be illegal. For example, using it to try to shoot the plane down would certainly be terrorism. Using it to try and follow them in an intrusive manner could constitute stalking.</p>\n<p>However, using the information to tell "Someone took a flight from Here to There which is ecologically non-viable" is more commentary and critique, and most certainly not defamation.</p>\n",
"score": 4
},
{
"answer_id": 87447,
"body": "<p>user6726 made some good points about stalking and intent and that the fact that only publicly-available data was used is probably no defense.</p>\n<p>Specifically, there is precedent for using publicly available data in unlawful ways.</p>\n<p>For example, <a href=\"https://law.lis.virginia.gov/vacode/title9.1/chapter9/section9.1-918/\" rel=\"nofollow noreferrer\">Code of Virginia § 9.1-918</a> prohibits certain use of public information on the state sex offender registry:</p>\n<blockquote>\n<p>§ 9.1-918. Misuse of registry or supplement information; penalty.</p>\n<p>Use of registry information or information from the Supplement to the Registry established pursuant to § 9.1-923 for purposes not authorized by this chapter is prohibited, the unlawful use of the information contained in or derived from the Registry or Supplement for purposes of intimidating or harassing another is prohibited, and a willful violation of this chapter is a Class 1 misdemeanor. For purposes of this section, absent other aggravating circumstances, the mere republication or reasonable distribution of material contained on or derived from the publicly available Internet offender database shall not be deemed intimidation or harassment.</p>\n</blockquote>\n<p>So, just downloading or sharing the listing of the convicted sex offender across the street is not inherently a violation, but can become a violation if your sharing is done with intent to harass or intimidate. For example, holding a local community meeting in which you share the public profile of a neighbor who just got out of prison for child rape is probably acceptable, while printing their profile out on posterboard and picketing their home is probably not.</p>\n",
"score": 3
}
] |
[
"united-states",
"privacy",
"freedom-of-speech",
"first-amendment",
"air-travel"
] |
can government (US/UK) simply declare agreements to pay in crypto null&void?
| 1 |
https://law.stackexchange.com/questions/87444/can-government-us-uk-simply-declare-agreements-to-pay-in-crypto-nullvoid
|
CC BY-SA 4.0
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<p>I have no expertise in this, but as a layman I've been thinking about the ways in which governments can destroy the value of cryptocurrencies if they really want to do so.</p>
<p>In China, all cryptocurrency transactions are considered illegal. India has flirted with the idea of a ban, though it isn't clear whether the Indian government go ahead with such a ban.</p>
<p>If in the US/UK there were a political consensus to discourage the use of cryptocurrencies, what could the government do? Short of having a full ban (which wouldn't be popular), could they for instance make a new law saying that all agreements in which A agrees to pay B in cryptocurrencies are no longer legally binding?</p>
| 87,444 |
[
{
"answer_id": 87445,
"body": "<h2>in general: yes</h2>\n<p>The government of a country is free to ban anything the constitution of its own country does not prevent it from banning. No constitution anywhere decrees that you have a right to cryptocurrency. So any government could declare it valueless and ban its trade and possession in its country.</p>\n<h2><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></h2>\n<p>While the constitution of the US bans it to prevent banning <em>all</em> arms (2nd amendment) or enacting censorship (1st amendment), nothing in the constitution establishes a right to cryptocurrency. The only amendment that would be relevant is that in banning it, there needs to be <strong>due process of law</strong> under the fourteenth amendment in depriving them of property. This can be most easily done by declaring a cutoff date after which usage and possession of cryptocurrency is made illegal.</p>\n<p>But does the federal government have power? It does. Any transaction on the internet automatically is Interstate commerce, thus the <a href=\"https://www.law.cornell.edu/wex/commerce_clause\" rel=\"nofollow noreferrer\">commerce clause</a> applies and as a result, federal laws apply. The same paragraph vests all decisions on minting and the shape of minting with the US Congress in <a href=\"https://constitution.congress.gov/browse/essay/artI-S8-C5-1/ALDE_00001066/\" rel=\"nofollow noreferrer\">Art. I, S.8 c.5</a>. Most relevant:</p>\n<blockquote>\n<p>The Congress shall have Power ... to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.</p>\n</blockquote>\n<p>They can ban the trade of Cryptocurrency across state lines under that clause just as much as they could have banned trading alcohol. They went for the 18th amendment instead, because that banned intra-state sales too. Since the servers where cryptocurrency is stored are usually <em>not</em> in your state, in fact not even the US usually, such transactions fall under the commerce clause and federal law.</p>\n",
"score": 1
}
] |
[
"contract-law"
] |
What are the possible penalties for the misuse of a coat of arms?
| 6 |
https://law.stackexchange.com/questions/87403/what-are-the-possible-penalties-for-the-misuse-of-a-coat-of-arms
|
CC BY-SA 4.0
|
<p>As far as I'm aware, disputes about the misuse of heraldry in England and Wales are dealt with in the first instance by the <a href="https://en.wikipedia.org/wiki/High_Court_of_Chivalry" rel="noreferrer">High Court of Chivalry</a>, which hasn't convened since the mid-twentieth century.</p>
<p>What sentences can the court impose upon the losing party? Is it limited to an order to stop using a heraldic device or face a conviction for contempt of court, or does the court have more powers available to it in law?</p>
<p>While the High Court of Chivalry's jurisdiction is confined to England & Wales, I'd also be interested in the penalties for the misuse of arms in countries with heraldic authorities.</p>
| 87,403 |
[
{
"answer_id": 87404,
"body": "<p>According to the <a href=\"https://www.theheraldrysociety.com/articles/bringing-proceedings-in-the-high-court-of-chivalry-today/\" rel=\"nofollow noreferrer\">Heraldry Society</a>:</p>\n<blockquote>\n<p>The first step is to Petition the Earl Marshal requesting that he issue process.</p>\n<p>[<em>Detailed, and lengthy, process and procedures omitted</em>]</p>\n<p>The hearing takes place before the Earl Marshal or his Surrogate. Both parties submit a “Definitive Sentence”, similar to a draft order, upon which the Court gives its judgment, adopting one of the two versions put forward with any adaptations that the Court deems necessary. <strong>The Court has the power to award damages, to fine and to award costs</strong>. Itemised bills of costs must be submitted and signed by each Counsel, and the assessment of costs is by the Register, subject to appeal to the Earl Marshal or his Surrogate. Costs can also be agreed. in the High Court.</p>\n</blockquote>\n",
"score": 4
}
] |
[
"england-and-wales",
"civil-law",
"penalty"
] |
How was SCOTUS established as the ultimate arbiter of federal constitutional matters?
| 0 |
https://law.stackexchange.com/questions/87433/how-was-scotus-established-as-the-ultimate-arbiter-of-federal-constitutional-mat
|
CC BY-SA 4.0
|
<p>As I understand it, in the early days of the US, it was held that the president had veto rights over laws that were unconstitutional. It was not entirely clear how these matters were to be dealt with in the early days of the US democracy.</p>
<p>How exactly then was SCOTUS made the ultimate judge? Was there amendments to the constitution involved? What exactly was the process?</p>
| 87,433 |
[
{
"answer_id": 87439,
"body": "<p>This came in the famous case of <a href=\"https://en.wikipedia.org/wiki/Marbury_v._Madison\" rel=\"nofollow noreferrer\">Marbury v. Madison</a> (1803). At the last moments of his term, President Adams and Congress appointed a bunch of new judges to the courts. One of those was Marbury, but his new commission was not delivered by the outgoing Secretary of State John Marshall. The incoming President Jefferson had the undelivered commissions thrown out and ignored by his own Secretary of State (Madison). So Marbury sued to have his commission instated.</p>\n<p>There were some peculiar subtleties to the case. One is that Marbury sued directly in the Supreme Court, rather than an inferior court. A law passed by Congress had granted SCOTUS authority to be the trier of certain cases; said law was repealed before the case went before the court. Another oddity is that the Chief Justice was the very same John Marshall that had originally failed to deliver the commission; he did not recuse himself.</p>\n<p>The case was very contentious. Congress and the President were both very combative and eager to claim control of "constitutionality" for themselves. Congress would not much appreciate its laws being thrown out, and Jefferson was of the (combative) mind that it was in fact the President who decided the constitutionality of laws (the constitution can be said to explicitly charge him with enforcement of the laws and protection of the constitution), etc. The court risked getting neutered by both sides with just the slightest misstep. The President was sure to ignore any attempt to make him do anything, and Congress would retaliate if anyone but them threw out their laws. And simply declaring themselves impotent was the same set of problems. That the ruling effectively avoided all such problems makes it one of the great examples in SCOTUS opinions to this day, though not all hold it up in a positive way (it arguably intentionally handled the case backwards, so as to yield a ruling rather than a dismissal; some even argue the case may have been manufactured as a way to formally let SCOTUS claim this power).</p>\n<p>The ruling basically said the following:</p>\n<p>(1) Does Marbury have a right to this commission? Yes, the commission was validly created and the deliverance of it is just a non-discretionary formality, failure of which is an injury that can be fixed (give him the commission).</p>\n<p>(2) Do we have the power to force the Executive branch to do something like this? Yes, for non-discretionary duties that are non-political and owed to a particular person, the courts may order the lower ranks of the Executive branch to do things.</p>\n<p>(3) Do we even have the authority to hear this case? No. It is held that the law in question would grant us original jurisdiction over this issue, but that is unconstitutional: our original jurisdiction is completely enumerated by the Constitution, and cannot be expanded by legislation.</p>\n<p>(4) So what do we do? Nothing, we just dismiss it. Madison can be ordered to do this thing, but won't actually be so ordered since the law required to let us do so is invalid. And we can invalidate that law, but don't actually do so since Congress has already repealed it.</p>\n<p>In this way both Congress and the President were left with no real angles to hold a beef over the court, as neither one of them had effectively had their authority directly neutered or compelled. The ruling did nothing but what was already done, and simply asserted the Judiciary had certain powers it could flex later: it could rule on the constitutionality of laws, and it could order the Executive branch to do things. For what it's worth, the Marshall court never really invoked these powers again, seemingly still mindful of a contentious battle for power between the branches of government that could render the courts impotent, but one way or another the ruling successfully claimed the power to decide the constitutionality of things for the courts.</p>\n",
"score": 4
},
{
"answer_id": 87435,
"body": "<p>The US President did and continues to have veto power over legislation passed by Congress. If the President believed that legislation that came to him was unconstitutional, then he could veto it. Of course he could sign it or let it become law without his signature. Even if the President vetoed legislation Congress could override the veto with the required majorities.</p>\n<p>As far as the Supreme Court, <strong>Article III, Section 2</strong> details the court's authority over constitutional matters:</p>\n<p><a href=\"https://constitutioncenter.org/media/files/constitution.pdf\" rel=\"nofollow noreferrer\">US Constitution</a></p>\n<p>Specifically:</p>\n<blockquote>\n<p>The judicial Power shall extend to all Cases, in Law and Equity,\narising under this Constitution, the Laws of the United States, and\nTreaties made, or which shall be made, under their Authority...</p>\n</blockquote>\n",
"score": 2
}
] |
[
"constitutional-law",
"legal-history"
] |
Can I Create and Sell Another Virtual Machine Software for macOS?
| 0 |
https://law.stackexchange.com/questions/87437/can-i-create-and-sell-another-virtual-machine-software-for-macos
|
CC BY-SA 4.0
|
<p>I would like to know if I can legally create and sell a software that creates, opens, manages, and runs virtual machines for macOS.</p>
<p>I know that there are a lot of virtual machine software out there but I think that I have a shot since I think I figured out how to create fast and responsive virtual machines using the virtual machine software I am planning to develop.</p>
<p>So, is the general software concept of creating, managing, and running virtual machines legally-protected? How come there are a lot of virtual machine software out there that basically do the same thing but are not in legal trouble?</p>
<p>Also, how can I know if the feature I am planning to include will not lead me to legal trouble?</p>
<p>One last thing, about the EULA of these existing virtual machine programs, will they still be in effect after I uninstalled the existing virtual machine program I bought and deleted their installer files from my storage devices? Their EULA says that I cannot create derivative works. So does that mean when I uninstall these existing virtual machine programs from my computer and delete their installers I can then create derivative works?</p>
<p>Thanks!</p>
| 87,437 |
[
{
"answer_id": 87438,
"body": "<p>Virtual machines have been around for quite some time now. The first commercially offered VM system was from IBM with their System/360 but it was based on idea from MIT that were funded by DARPA. My patent search skills are not that great but even if this was patented then, in the early 1960's, those patents have long since expired. So the basic idea of a virtual machine is now unencumbered.</p>\n<p>That being said, VMs are an area of ongoing research and development today and many aspects of VM operation have been patented. If you are going to develop a new and improved VM system you will want to do your own research to ensure that the parts of your system that you believe are unique have not already been patented by someone else. If your ideas are novel you may want to consider patenting them.</p>\n<p>Your questions:</p>\n<blockquote>\n<p>So, is the general software concept of creating, managing, and running\nvirtual machines legally-protected?</p>\n</blockquote>\n<p>They are protected the same as any other invention. Through patents and/or trade secrets. There are any number of companies today that hold various patents on various aspects of VM systems.</p>\n<blockquote>\n<p>How come there are a lot of virtual machine software out there that\nbasically do the same thing but are not in legal trouble?</p>\n</blockquote>\n<p>The same way as any other invention. They either license the patented technologies or they find a non-infringing alternative and probably patent that themselves. In many cases the leading companies in theses area may have cross-licensing agreements.</p>\n<blockquote>\n<p>Also, how can I know if the feature I am planning to include will not\nlead me to legal trouble?</p>\n</blockquote>\n<p>You do your homework and determine if your ideas are already covered by someone else's patents. Or you simply proceed and wait to hear from someone that thinks you are infringing.</p>\n<blockquote>\n<p>Their EULA says that I cannot create derivative works.</p>\n</blockquote>\n<p>The EULA is still in effect regardless of whether the software is currently installed or not. (In my opinion at least.) So its terms bind you regardless. But what is a "derivative work"? Just because it's something that works similarly to another application doesn't make it a "derivative". Usually the EULA will define what they mean by derivative work and it almost always involves using the source code to create your own version or flavor of the original application.</p>\n<p>You'll want to be sure you are creating an original application and not a derivative of someone else's application.</p>\n",
"score": 1
},
{
"answer_id": 87440,
"body": "<p>Can you legally create a virtual machine software? Yes, unless you commit copyright infringement by copying someone else software, or violate patents that others have on similar software, or if you signed an agreement with your previous employer not to create virtual machines and so on. But in principle there is no law against it. Just make sure that your virtual machine software is not a "derivative work" of anyone else's.</p>\n<p>Can you create a virtual machine for MacOS? As far as I know Apple isn't trying to keep anyone from doing this. If the software runs on iOS, Apple wants you to provide it through Apple's App Store and it must survive their review process or won't be accepted.</p>\n<p>Can I run any software on my virtual machine? That depends on the license of that software. You are allowed by Apple to install Apple software on one Apple labelled computer if the use is commercial or on any number of Apple labelled computers that you own or control for private use. So as long as the real physical hardware is Apple labelled you are fine. If you want to run Linux, Windows, Android etc. you have to check their license.</p>\n",
"score": 1
}
] |
[
"copyright",
"intellectual-property",
"software",
"patents",
"eula"
] |
Is self-defense allowed when there are objectively reasonable grounds but it is actually done subjectively for improper reasons?
| 9 |
https://law.stackexchange.com/questions/87377/is-self-defense-allowed-when-there-are-objectively-reasonable-grounds-but-it-is
|
CC BY-SA 4.0
|
<p>Suppose that someone uses deadly self-defense in circumstances when it would have been objectively reasonable to do so (e.g., someone has a gun pointed at you and has threatened to shoot). But, the actual subjective reason that the person used it was invalid (e.g. the partially deaf person firing at the assailant misheard the threat to shoot and thought the assailant was insulting his dog).</p>
<p>Is this a good defense to murder?</p>
| 87,377 |
[
{
"answer_id": 87387,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"canada-container\">canada</a></p>\n<p>The person claiming self-defence <em>must have the subjective belief</em> that "a threat of force is being made against them or another person." Such belief must also be based on reasonable grounds. They must also act <em>with the subjective purpose</em> of protecting themselves or the other person from that use or threat of force.</p>\n<p>This comes from the text of the defence, codified at s. 34 of the <em>Criminal Code</em>. It reads:</p>\n<blockquote>\n<p>34 (1) A person is not guilty of an offence if</p>\n<p>(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;</p>\n<p>(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and</p>\n<p>(c) the act committed is reasonable in the circumstances.</p>\n</blockquote>\n<p>"Unless the accused subjectively believed that force or a threat thereof was being used against their person or that of another, the defence is unavailable" (<em>R. v. Khill</em>, <a href=\"https://canlii.ca/t/jjlbr#par52\" rel=\"nofollow noreferrer\">2021 SCC 37, para. 52</a>).</p>\n<p>The National Judicial Institute's <a href=\"https://www.nji-inm.ca/index.cfm/publications/model-jury-instructions/defences/self-defence-in-force/defence-34-self-defence/\" rel=\"nofollow noreferrer\">model jury instructions</a> slightly rephrases:</p>\n<blockquote>\n<p>[the accused] believed that force [or the threat of force] was being used against him/her [or against another person] and [accused]’s belief was based on reasonable grounds</p>\n</blockquote>\n<hr />\n<p><sup>Regarding evidence in general: the court needs <em>some evidence</em> on which to give an "air of reality" to every element of this defence in order to place the burden on the Crown to rebut the defence beyond a reasonable doubt. <strong>This does not require the accused to testify about their subjective belief. The evidence about the subjective belief can come from elsewhere in the evidence. For example, even if an accused had no memory of the encounter, there may nonetheless be evidence about their subjective belief: video evidence of the encounter, hearsay evidence about what the accused said during the events, physical evidence revealing a defensive posture, etc.</strong> The evidence <em>must</em> support an inference of a subjective belief in a threat. It is not enough that the evidence shows that a subjective belief would have been reasonable. But none of that is relevant to the question of what the elements of self-defence are or whether an act taken without the subjective belief that the accused or another person is being threatened is self-defence. The question has helpfully taken the standard approach to legal hypotheticals of just asserting what the facts are in order to take questions of evidence off the table.</sup></p>\n",
"score": 12
},
{
"answer_id": 87386,
"body": "<h2>No, this is not <a href=\"https://www.judcom.nsw.gov.au/publications/benchbks/criminal/self-defence.html\" rel=\"noreferrer\">self-defence</a></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>The Crown must eliminate self-defence beyond reasonable doubt by either:</p>\n<p>3(a) Proving at the time that the accused did not believe they were acting in self-defence, or</p>\n<p>3(b) the accused's act was not a reasonable response in the circumstances as they perceived them</p>\n<p>On the facts given, both are a gimme. Therefore, the correct verdict is murder.</p>\n",
"score": 10
}
] |
[
"united-states",
"criminal-law",
"self-defense",
"washington"
] |
Can game developers legally revoke the license of use of game assets?
| 0 |
https://law.stackexchange.com/questions/87364/can-game-developers-legally-revoke-the-license-of-use-of-game-assets
|
CC BY-SA 4.0
|
<p>Large video game companies such as Blizzard, Valve, Mojang, etc. usually include a notice on their terms of use for video game assets for non-profit use, claiming that the license can be revoked at any time. Is this allowed?</p>
| 87,364 |
[
{
"answer_id": 87366,
"body": "<blockquote>\n<p>"...claiming that the license can be revoked at any time."</p>\n</blockquote>\n<p>Of course a game company can revoke their license at any time. The company grants you a license to use the product, and a license is not an obligation on their part to provide the product, or a right to use it on your part.</p>\n<p>There's nothing illegal about a license or TOS that has clauses which stipulate when the license or TOS can be revoked changed or revoked.</p>\n",
"score": 4
},
{
"answer_id": 87399,
"body": "<h1>It depends on the terms of the license.</h1>\n<p>I'm not a lawyer, but my understanding from reading stuff about the open source community goes like this:</p>\n<p>Many open source licenses are irrevocable- once content is released under them, it is released under the terms of the license for anyone to use, forever.</p>\n<p>If the license doesn't include such language however, and it included language that allows them to revoke the license, then yes, they could.</p>\n<p>If it contains neither language that makes it irrevocable or language that explicitly allows its revocation, then they could presumably still break the terms of the license to revoke your rights to use the software if they're willing to eat the costs of breaking a contract. You could sue them for damages, and you might even win, but you wouldn't be allowed to continue using the software unless the court orders otherwise.</p>\n",
"score": 2
}
] |
[
"intellectual-property",
"internet",
"terms-of-service"
] |
What does this fuzzy court clerk stamp say? It's from a very old case in 1995 in the state of Washington
| 24 |
https://law.stackexchange.com/questions/87329/what-does-this-fuzzy-court-clerk-stamp-say-its-from-a-very-old-case-in-1995-in
|
CC BY-SA 4.0
|
<p><a href="https://i.stack.imgur.com/DvgQm.png" rel="noreferrer"><img src="https://i.stack.imgur.com/DvgQm.png" alt="court clerk stamp" /></a></p>
<p>At first I thought it says "MAILED" but that doesn't seem to work...or does it? If you're familiar with court clerk stamps perhaps you can give advice as to what this is? Thank you.</p>
| 87,329 |
[
{
"answer_id": 87331,
"body": "<p><strong>FILMED</strong></p>\n<p>The document was archived onto microfilm.</p>\n<p>User <a href=\"https://law.stackexchange.com/users/11316/dai\">@Dai</a> used the font Myriad Pro Bold to overlay this onto the image:</p>\n<p><a href=\"https://i.stack.imgur.com/stA1d.png\" rel=\"noreferrer\"><img src=\"https://i.stack.imgur.com/stA1d.png\" alt=\"Picture of the text "FILMED" overlayed onto the stamp's remains\" /></a></p>\n",
"score": 52
}
] |
[
"civil-law"
] |
How much is a child's income allowed to benefit their parents?
| 0 |
https://law.stackexchange.com/questions/87427/how-much-is-a-childs-income-allowed-to-benefit-their-parents
|
CC BY-SA 4.0
|
<p>I asked this on Finance and they said it was a Law question.</p>
<p>Let's say you are an ordinary family, and one of your young children is lucky enough to be cast in a huge blockbuster movie franchise, for which they are paid many millions of dollars.</p>
<p>The income is of course earned by the child and belongs to them. Since they are a minor their parents must manage the money, but are obliged to manage it for the benefit of the child. The money isn't theirs.</p>
<p>However it seems unlikely that the parents continue to work regular jobs, pay the mortgage on their suburban 3-bed house and buy groceries for the family out of their salary while the child is worth tens of millions. But how is this managed, legally speaking, without the parents being able to enrich themselves at their kids expense?</p>
<p>Experience or knowledge rather than guesswork please.</p>
| 87,427 |
[
{
"answer_id": 87428,
"body": "<p>The legal answer is, it isn't "managed". A parent has a fiduciary duty to manage the child's wealth, and have the same duty to provide for their child that everybody does. This is the abstract theory, but there have been some cases where parents overstepped their parental rights and unjustly enriched themselves. The child can file suit and claw back the money, and the court may appoint someone else to be in charge of the child's wealth (example: Macaulay Culkin, of Jackie Coogan). California <a href=\"https://en.wikipedia.org/wiki/California_Child_Actor%27s_Bill\" rel=\"nofollow noreferrer\">Child Actor’s Bill</a> provides partial protection for the child's interest, so that at least 15% of the proceeds are place in a trust. A parent who breaches their fiduciary trust can be sued, but there is no general requirement that parental decisions be pre-approved by a court-appointed guardian in case the child earns "a lot of money".</p>\n",
"score": 1
}
] |
[
"minor",
"any-jurisdiction",
"family"
] |
Does Tesla or Nikola have grounds to sue the other for trademark infringement?
| 2 |
https://law.stackexchange.com/questions/55191/does-tesla-or-nikola-have-grounds-to-sue-the-other-for-trademark-infringement
|
CC BY-SA 4.0
|
<p>Tesla and Nikola are both companies that produce electric vehicles, and both companies are named after the inventor Nikola Tesla. It seems to me that this could cause confusion. Does either company have grounds to sue the other for trademark infringement?</p>
| 55,191 |
[
{
"answer_id": 55354,
"body": "<h2>It wouldn't be frivolous, but I doubt either party could prevail in a trademark suit</h2>\n<p>The test to use for trademark infringement is a set of factors known as the Lapp factors.</p>\n<p>Per <a href=\"https://law.justia.com/cases/federal/appellate-courts/F3/237/198/564897/\" rel=\"noreferrer\">A&H Sportswear, Inc. v. Victoria's Secret Stores, Inc., 237 F.3d 198 (3rd Cir. 2000)</a>:</p>\n<blockquote>\n<p>[L]ikelihood of confusion for both competing and noncompeting goods should be tested with reference to the following:</p>\n<ol>\n<li><p>the degree of similarity between the owner's mark and the alleged infringing mark;</p>\n</li>\n<li><p>the strength of the owner's mark;</p>\n</li>\n<li><p>the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase;</p>\n</li>\n<li><p>the length of time the defendant has used the mark without evidence of actual confusion arising;</p>\n</li>\n<li><p>the intent of the defendant in adopting the mark;</p>\n</li>\n<li><p>the evidence of actual confusion;</p>\n</li>\n<li><p>whether the goods, competing or not competing, are marketed through the same channels of trade and advertised through the same media;</p>\n</li>\n<li><p>the extent to which the targets of the parties' sales efforts are the same;</p>\n</li>\n<li><p>the relationship of the goods in the minds of consumers, whether because of the near-identity of the products, the similarity of function, or other factors;</p>\n</li>\n<li><p>other facts suggesting that the consuming public might expect the prior owner to manufacture both products, or expect the prior owner to manufacture a product in the defendant's market, or expect that the prior owner is likely to expand into the defendant's market.</p>\n</li>\n</ol>\n</blockquote>\n<p>Let's take a few of these.</p>\n<blockquote>\n<ol>\n<li>the degree of similarity between the owner's mark and the alleged infringing mark</li>\n</ol>\n</blockquote>\n<p>Low, but non-zero. They're facially completely dissimilar: the words sound and look nothing alike, and their logos are completely different as well in both design and color. The only similarity is that they are both parts of Nikola Tesla's name. The USPTO gives as an <a href=\"https://www.uspto.gov/trademark/additional-guidance-and-resources/possible-grounds-refusal-mark\" rel=\"noreferrer\">example</a> "LUPO" and "WOLF" being similar, "because, when the Italian word 'LUPO' is translated into English, it means 'WOLF.'" However, in that example, the words have identical meaning in different languages. Overall, this seems to weigh against infringement, as neither company is associated with the actual person, and <a href=\"https://www.wolframalpha.com/input/?i=nikola\" rel=\"noreferrer\">Nikola is a common given name</a>.</p>\n<blockquote>\n<ol start=\"2\">\n<li>the strength of the owner's mark</li>\n</ol>\n</blockquote>\n<p>Tesla's is quite strong: they're quite prominent. Nikola probably less so. Would weigh in favor of Tesla in a suit.</p>\n<blockquote>\n<ol start=\"3\">\n<li>the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase</li>\n</ol>\n</blockquote>\n<p>Extremely high: the Tesla and Nikola trucks start at ~$40k and $60k, respectively. This weighs against infringement, as consumers are unlikely to make such an expensive purchase hastily.</p>\n<blockquote>\n<ol start=\"5\">\n<li>the intent of the defendant in adopting the mark</li>\n</ol>\n</blockquote>\n<p>Both chose the mark to pay homage to Nikola Tesla. Per the same case, "defendant's intent will indicate a likelihood of confusion only if an intent to confuse consumers is demonstrated via purposeful manipulation of the junior mark to resemble the senior's." None appears clear here, which does not support infringment.</p>\n<blockquote>\n<ol start=\"6\">\n<li>the evidence of actual confusion</li>\n</ol>\n</blockquote>\n<p>I couldn't quickly find any. I'm sure a lawyer would search more thoroughly, but this seems to weigh against infringement.</p>\n<blockquote>\n<ol start=\"7\">\n<li><p>whether the goods, competing or not competing, are marketed through the same channels of trade and advertised through the same media</p>\n</li>\n<li><p>the extent to which the targets of the parties' sales efforts are the same</p>\n</li>\n</ol>\n</blockquote>\n<p>These are probably pretty similar. Would weigh in favor of infringement.</p>\n<hr />\n<p>As with any balancing test, it's a bit of a guessing game how a court would weigh the factors, but given the low similarity, high price, and lack of evidence of actual confusion, I find it unlikely that a court would find either party has infringed the other's trademark.</p>\n",
"score": 6
},
{
"answer_id": 87424,
"body": "<p>It seems to me obvious that while that might cause confusion outside the legal community, still your premise is flawed.</p>\n<p>I don't think confusion in the ordinary sense comes into this kind of Question.</p>\n<p>Take for example WH Smith and Smith & Nephew, Smiths Group plc and Smiths Industries.</p>\n<p>I think confusion in the ordinary sense might very well conflate all those Smiths but legally, not only every word but every letter matters.</p>\n<p>As a silly equivalent, when I as 'Goodwin' was in the military it was clear that I had no duty to respond to any order addressed to 'Godwin' or 'Goodwyn' however clearly any other details referred to me. I might have have had ethical or moral duties to ask what this was about, but not legally to obey…</p>\n",
"score": 0
}
] |
[
"united-states",
"trademark"
] |
Rent a residential address
| -3 |
https://law.stackexchange.com/questions/87389/rent-a-residential-address
|
CC BY-SA 4.0
|
<p>I want to have a residential address in England or another country; I want to know is it possible to have it ?
If yes, is it possible to have document which states this address is on my hold such as utility bill or something else ?
emphasis : I just want to have a residential address and I do not want to live there.</p>
| 87,389 |
[
{
"answer_id": 87394,
"body": "<h2>Your residential address is the place where you live</h2>\n<p>A place that you own or rent but don’t live at, is not a residential address.</p>\n<p>To be a resident of England or most other countries require that you live there for at least part of the year and have the appropriate citizenship or visa. For example, as an Australian I can (probably) get a work visa for the UK for up to 5 years - that will make me a resident for certain purposes like taxation but not for other purposes like immigration. Notwithstanding I will need to spend a significant portion of each year living in the UK.</p>\n",
"score": 2
},
{
"answer_id": 87401,
"body": "<p>You cannot have a residential address in another country without commiting fraud. If you don't live there it isn't your residence.</p>\n<p>It is relatively easy to own or rent real property in (some) other countries. It would not be difficult to receive utility bills or any other mail there, assuming there were someone to retrieve and pay them. This is not the same as establishing residence. Major cities worldwide are filled with propery owned by foreigners who do not live there and in fact may never even visit.</p>\n",
"score": 2
}
] |
[
"rental-property"
] |
Is it illegal to give advice to a 17 year old girl who wants to pursue a 50 year old man once she turns 18?
| 2 |
https://law.stackexchange.com/questions/66525/is-it-illegal-to-give-advice-to-a-17-year-old-girl-who-wants-to-pursue-a-50-year
|
CC BY-SA 4.0
|
<p>I met a girl on an internet forum who expressed how she at 17 years old liked an older man (a 50 year old). As I am someone who had a similar experience (but I was an 18 year old woman, so legal) she asked me for advice on her situation.</p>
<p>I'm still hesitant as to whether I want to "help her out" or not since that could be considered grooming. Although I haven't given her any advice yet, I have advised her against some things. For example, she expressed how she wanted to wear something "sexy" to get his attention, to which I said that could be a bad idea. She also wants to hold off on anything until she turns 18, then ask him out. But I feel like even advising her from this frame could be illegal since it could seem like I'm encouraging her to pursue him.</p>
<p>To the extent of my knowledge he hadn't groomed her, since according to her she basically fancied him when she saw him for the first time. They met at a formal event and only engaged in small talk, he didn't flirt with her in any way. I would also like to add that I don't know her real life identity or where she's from, nor does she know mine, but her name sounds western.</p>
| 66,525 |
[
{
"answer_id": 66534,
"body": "<h2>You’re an adult, she’s an adult, he’s an adult</h2>\n<p>At least in most western jurisdictions. Age of consent is usually 16-17 depending on other factors.</p>\n<p>There are no illegalities involved in consensual relationships between adults. This is a matter for your conscience, not the law.</p>\n",
"score": 2
}
] |
[
"criminal-law",
"internet",
"international"
] |
What's the difference between a petition vs. declaratory judgment action?
| 1 |
https://law.stackexchange.com/questions/87379/whats-the-difference-between-a-petition-vs-declaratory-judgment-action
|
CC BY-SA 4.0
|
<p>An article by <a href="https://www.wikihow.legal/File-a-Court-Proceeding-to-Compel-Arbitration-As-the-Complainant" rel="nofollow noreferrer">WikiHow</a> states:</p>
<blockquote>
<p>Many people are familiar with responding to a lawsuit with a motion to
compel arbitration. However, you can also file a petition to compel
even when no lawsuit is pending.</p>
</blockquote>
<p>I was researching this area of law and I came across a different (but overlapping) concept known as a <strong><a href="https://www.law.cornell.edu/wex/declaratory_judgment" rel="nofollow noreferrer">declaratory judgement action</a></strong>:</p>
<blockquote>
<p>A declaratory judgment is a binding judgment from a court defining the
legal relationship between parties and their rights in a matter before
the court. When there is uncertainty as to the legal obligations or
rights between two parties, a declaratory judgment offers an immediate
means to resolve this uncertainty.</p>
</blockquote>
<p>What's the difference between the two types of fillings/lawsuits?</p>
<p>In what circumstances should each one be used?</p>
| 87,379 |
[
{
"answer_id": 87420,
"body": "<p>A motion to compel means that the court <em>orders</em> a party to do something.</p>\n<p>A declaratory judgment means that the court confirms some fact or legal position but without ordering anyone to do anything.</p>\n<p>E.g.:</p>\n<p>"The court orders Party A to disclose document X to Party B".</p>\n<p>vs.</p>\n<p>"The court declares that Party A is under an obligation to disclose document X to Party B".</p>\n<p>A declaration is typically sought when two parties merely want to understand what their position is without actually entering into a dispute. For example, they disagree on what their obligations are under a contract, but there isn't actually a breach of contract which one party wants to sue the other for.</p>\n",
"score": 2
},
{
"answer_id": 87410,
"body": "<blockquote>\n<p>What's the difference between the two types of fillings/lawsuits?</p>\n</blockquote>\n<p>This is an apples-to-oranges comparison. Proceedings to compel arbitration address the question of <em>where</em> to litigate a dispute. There a party seeks to enforce a method for dispute resolution that the counterparty is trying to elude. Declaratory action indicates a <em>type of relief</em> which has the form of preemptively outlining the parties' rights and obligations should an injury materialize in the future.</p>\n<p>Although the parties could resort to arbitration for declaratory relief, typically arbitration is sought only after the injury has occurred. Arbitration for purposes of declaratory relief essentially amounts to asking the arbitrator to determine the "correct" and binding interpretation of a contract.</p>\n<p>Note that the <a href=\"https://www.wikihow.legal/File-a-Court-Proceeding-to-Compel-Arbitration-As-the-Complainant\" rel=\"nofollow noreferrer\">WikiHow</a> resource to which you refer contains some mischaracterizations. One example is the assertion that "<em>federal courts have a strong policy of favoring arbitration</em>". A <a href=\"https://law.stackexchange.com/a/86807/18505\">recent answer</a> provides legal precedents clarifying that arbitration is to be enforced <em>by virtue of being premised on some contract</em> (or maybe some statute) rather than because of judicial preference. A policy preference for or against arbitration is within legislator's province, not something for courts to override by means of "policies".</p>\n<p>Also the notion, stated in that article, that many people are familiar with responding to a complaint by moving to compel arbitration is irrelevant and highly doubtful.</p>\n<p>The article would have been more productive if it warned that arbitration rulings are significantly harder to reverse than those from court proceedings. In part, that difference is because:</p>\n<ul>\n<li>"<em>[i]n deciding whether the arbitrator exceeded its authority,\n[courts] resolve all doubts in favor of arbitration</em>", <a href=\"https://www.leagle.com/decision/1994134026f3d131411139\" rel=\"nofollow noreferrer\"><em>Executone\nInformation Systems, Inc. v. Davis</em>, 26 F.3d 1314, 1320 (1994)</a> (note that the <em>Executone</em> appellate opinion refers to arbitrator's conclusions, which is different from asserting that courts prefer to compel arbitration);</li>\n<li>"<em>even if [the court] does not agree with the arbitrators'\ninterpretation of the contract[,] [...] the standard of review of\narbitration awards requires [courts] to defer to the arbitrators'\ninterpretation of the contract [...] [whereas the] court need not be\nso deferential to the district court's judgment</em>", <a href=\"https://www.leagle.com/decision/19902133918f2d121511942\" rel=\"nofollow noreferrer\"><em>Anderman/Smith\nCo. v. Tenn. Gas Pipeline Co.</em>, 918 F.2d 1215, 1218-1219, n1\n(1990)</a>, "<em>[j]udicial review of arbitration awards is extremely\nlimited</em>", Id. at 1218; and</li>\n<li>"<em>[w]hether or not the [Arbitrator]'s findings are supported by the\nevidence in the record is beyond the scope of [the Court's] review</em>",\n<a href=\"https://www.leagle.com/decision/infco20100610145\" rel=\"nofollow noreferrer\"><em>Lagstein v. Certain Underwriters, Lloyd's, London</em>, 607 F.3d 634,\n642 (2010)</a>.</li>\n</ul>\n<blockquote>\n<p>In what circumstances should each one be used?</p>\n</blockquote>\n<p>For reasons stated in the preceding paragraph, arbitration entails a high risk of arbitrator's subjectivity (arbitrariness) and therefore should be avoided whenever possible. The easiest way to avoid it is by declining to sign agreements that establish arbitration as "alternative method for dispute resolution".</p>\n",
"score": 0
}
] |
[
"united-states",
"contract-law",
"new-jersey",
"arbitration"
] |
General Practice doctors and the law on reporting colleagues
| 4 |
https://law.stackexchange.com/questions/87416/general-practice-doctors-and-the-law-on-reporting-colleagues
|
CC BY-SA 4.0
|
<p>In the UK, if one GP believes another GP has acted in a dishonest manner in their actions, for example by providing a diagnosis that is known to be false, does the first GP have a legal duty to report the second GP to the appropriate authorities?</p>
| 87,416 |
[
{
"answer_id": 87417,
"body": "<p>Yes, see the General Medical Council's Ethical Guidance for Doctors:</p>\n<blockquote>\n<p><a href=\"https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/raising-and-acting-on-concerns\" rel=\"nofollow noreferrer\">Here</a>:</p>\n<p>You must take prompt action if you think patient safety, dignity or comfort is being compromised.</p>\n</blockquote>\n<blockquote>\n<p><a href=\"https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/raising-and-acting-on-concerns/part-1-raising-a-concern#paragraph-7\" rel=\"nofollow noreferrer\">And here</a>:</p>\n<p>All doctors have a duty to raise concerns where they believe that patient safety or care is being compromised by the practice of colleagues or the systems, policies and procedures in the organisations in which they work. They must also encourage and support a culture in which staff can raise concerns openly and safely.</p>\n</blockquote>\n<p>Whether any criminal, civil or disciplinary action is taken will depend on the particular circumstances and available facts.</p>\n",
"score": 3
}
] |
[
"united-kingdom",
"medical",
"professional-ethics"
] |
resources for reviewing legal cases in the UK
| 2 |
https://law.stackexchange.com/questions/87418/resources-for-reviewing-legal-cases-in-the-uk
|
CC BY-SA 4.0
|
<p>Is there a (free) resource in the UK for someone to obtain details of various cases brought to court, for example details of case history, court rulings?</p>
<p>I have come across, for example, <a href="https://www.lexisnexis.com/uk/" rel="nofollow noreferrer">https://www.lexisnexis.com/uk/</a> but this appears restricted to legal students or professionals</p>
| 87,418 |
[
{
"answer_id": 87419,
"body": "<p>The main free resource is <a href=\"https://www.bailii.org/\" rel=\"nofollow noreferrer\">Bailii</a>. I've sometimes also found cases on <a href=\"https://www.casemine.com/\" rel=\"nofollow noreferrer\">Casemine</a>, which is free. The most popular paid resources are <a href=\"https://www.lexisnexis.co.uk/\" rel=\"nofollow noreferrer\">Lexis</a> and <a href=\"https://uk.westlaw.com/\" rel=\"nofollow noreferrer\">Westlaw</a>.</p>\n<p>In general, the paid databases are more complete and provide additional useful features such as cross-referencing statutes and cited/citing cases, information on whether the case is still good law or not, and others. For this luxury you will pay a heavy price: typically a few thousand a year depending on what type of subscription you take out. If you are lucky you can get free access via a university course.</p>\n<p>With that said, Bailii can sometimes have judgments not found on the others; particularly unreported judgments. Ideally as a professional you would have access to all three if you can afford to do so.</p>\n<p>If you want a specific case and can't find it on any database you may be able to <a href=\"https://www.gov.uk/apply-transcript-court-tribunal-hearing\" rel=\"nofollow noreferrer\">ask the court to provide a transcript</a>, usually for a fee.</p>\n",
"score": 3
}
] |
[
"united-kingdom",
"legal-research"
] |
What is the limitation period for a violation of the Computer Misuse Act of 1990's provision(s) on phishing?
| 4 |
https://law.stackexchange.com/questions/9049/what-is-the-limitation-period-for-a-violation-of-the-computer-misuse-act-of-1990
|
CC BY-SA 4.0
|
<p>I came across a story about a twenty-something year old male who setup a fake website in order to 'phish' for usernames and passwords for a popular game.</p>
<p>After acquiring the credentials he would then login in to these accounts and remove the in-game currency and transfer it over to his own account.</p>
<p>After a number of years he was finally found out after admitting to friends what he had done.</p>
<p>He was found guilty in court, even though the last time he did it was around 6 years ago.</p>
<p> </p>
<p>I'm curious as to how this would play out in the UK. I believe the act would be covered under the Computer Misuse Act 1990, but i am un-sure if there would be a time limit for a trial under the Limitations Act 1980.</p>
<p> </p>
<p>My question is how long would it take for this offence to 'expire' and no longer be punishable under UK law?</p>
<p>If I am misunderstanding the limitation act please let me know. </p>
| 9,049 |
[
{
"answer_id": 9334,
"body": "<p>The offences found in the Computer Misuse Act 1990 are <em>criminal</em> offences. The Limitations Act 1980 deals with <em>civil</em> offences and is thus not relevant. Apparently, there is <a href=\"http://www.solicitorsjournal.com/comment/should-there-be-%E2%80%98statute-limitations%E2%80%99-criminal-offences\" rel=\"noreferrer\">no general statute of limitations</a> for criminal offences in the UK (though for <a href=\"https://en.wikipedia.org/wiki/Summary_offence\" rel=\"noreferrer\">summary</a> proceedings, the limit is in general 6 months). </p>\n",
"score": 6
},
{
"answer_id": 87406,
"body": "<p>The Computer Misuse Act 1990 contained, until 1 October 2008, its own limitation:</p>\n<blockquote>\n<ol start=\"11\">\n<li>Proceedings for offences under section 1<br />\n(1) A magistrates' court shall have jurisdiction to try an offence under section 1 above if—<br />\n (a) the accused was within its commission area at the time when he did the act which caused the computer to perform the function; or<br />\n (b) any computer containing any program or data to which the accused secured or intended to secure unauthorised access by doing that act was in its commission area at that time.<br />\n(2) Subject to subsection (3) below, proceedings for an offence under section 1 above may be brought within a period of six months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to his knowledge.<br />\n(3) No such proceedings shall be brought by virtue of this section more than three years after the commission of the offence.<br />\n...</li>\n</ol>\n</blockquote>\n<p>That section was repealed in its entirety on 1 October 2008.</p>\n<p>Legislation is not generally retrospective, so it may have continued to limit the prosecution of offences committed prior to 1 October 2008 (which would have expired on 30 September 2011). This could have meant that it was possible to try only those offences committed between October 2008 and when the series was discovered.</p>\n<p>Given that the last offence occurred "around six years ago" in 2010, it is possible that at least some of the series — those offences more than three years old — would have been out of time.</p>\n<p>However, there doesn't appear to be any saving or transitional provision, so it's more likely that the abolition of the limitation actually made it possible to prosecute all offences committed after 30 September 2005, regardless of when they came to light or reached court.</p>\n",
"score": 0
}
] |
[
"statute-of-limitations",
"computer-misuse-act",
"england-and-wales"
] |
Is there any other jurisdiction where a government-devised scheme similar to civil forfeiture for crime prevention exist other than the U.S.?
| 7 |
https://law.stackexchange.com/questions/74408/is-there-any-other-jurisdiction-where-a-government-devised-scheme-similar-to-civ
|
CC BY-SA 4.0
|
<p>In the U.S., many states adopted laws that allow law enforcement to appropriate property that is liquid or easily liquidated (in practice predominantly cash) not only in cases where past criminal activity has been found substantially likely by law enforcement and confiscation is done to initiate criminal prosecution, but even when (1) there would be no such prosecution (or if there was and a case was closed the confiscated property would not be returned) and even in cases where (2) there is only a suspicion of future criminal activity.</p>
<p>Is there any state in the Western world that allows for either one of the two or both situations?</p>
<p>Are there better arguments to this ploy in the U.S. today than the sovereign citizen-equivalent arguments that the property is the defendant (Haha!) and not a person so due process doesn’t apply?</p>
| 74,408 |
[
{
"answer_id": 87412,
"body": "<p>Yes, in <a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"england-and-wales-container\">england-and-wales</a> the <a href=\"https://www.legislation.gov.uk/ukpga/2017/22/part/1/chapter/1/crossheading/unexplained-wealth-orders-england-and-wales-and-northern-ireland/enacted\" rel=\"nofollow noreferrer\">Criminal Finances Act 2017</a> introduced 'Unexplained Wealth Orders', which compel the respondent to provide a statement:</p>\n<blockquote>\n<ul>\n<li>(a) setting out the nature and extent of the respondent’s interest in the property in respect of which the order is made,</li>\n<li>(b) explaining how the respondent obtained the property (including, in particular, how any costs incurred in obtaining it were met),</li>\n<li>(c) where the property is held by the trustees of a settlement, setting out such details of the settlement as may be specified in the\norder, and</li>\n<li>(d) setting out such other information in connection with the property as may be so specified.</li>\n</ul>\n</blockquote>\n<p>There a few requirements set out in section 362B, for example, the property must have value of over £50,000; there should be "reasonable grounds" for suspicion that the respondent would have been unable to obtain the property using their lawfully obtained income; the respondent or their connections must have either been involved in serious or organised crime, or be a politically exposed person, and so on.</p>\n<p>If the respondent refuses to make such a statement, the police may apply for a Civil Recovery Order to confiscate the property, with the property in question "presumed to be recoverable property" (section 362C(2)). Giving false information in such a statement is a criminal offence.</p>\n",
"score": 3
},
{
"answer_id": 87413,
"body": "<p><a href=\"/questions/tagged/british-columbia\" class=\"post-tag\" title=\"show questions tagged 'british-columbia'\" aria-label=\"show questions tagged 'british-columbia'\" rel=\"tag\" aria-labelledby=\"british-columbia-container\">british-columbia</a></p>\n<p>British Columbia has a civil forfeiture regime governed by the <a href=\"https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/05029_01\" rel=\"nofollow noreferrer\"><em>Civil Forfeiture Act</em></a>.</p>\n<p>It establishes an office called the "director" of civil forfeiture. The director can apply to the court for orders forfeiting to the government property that was the proceeds of or the instrument of unlawful activity.</p>\n<p>Findings are "to be made on the balance of probabilities."</p>\n",
"score": 3
},
{
"answer_id": 74412,
"body": "<h2>Yes</h2>\n<p><a href=\"/questions/tagged/australia\" class=\"post-tag\" title=\"show questions tagged 'australia'\" rel=\"tag\">australia</a></p>\n<p>The Commonwealth and all states and territories have <a href=\"http://www6.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/poca2002160/\" rel=\"nofollow noreferrer\">Proceeds of Crime</a> legislation. Under these acts, the government can confiscate:</p>\n<blockquote>\n<p>benefits derived from breaking the law,</p>\n<p>money made from writing or having film or television shows made about how you broke the law,</p>\n<p>unexplained wealth that you can’t prove was obtained legally,</p>\n<p>as a punishment.</p>\n</blockquote>\n<p>Further there is a Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and the Commonwealth’s law was enacted to actuate Australia’s obligations under that Convention and other treaties.</p>\n",
"score": 2
},
{
"answer_id": 74438,
"body": "<p>There are states where money can be seized simply because the owner gives no plausible explanation of the source, with no requirement for the prosecution to show any connection between the money and a crime, e.g. <a href=\"https://www.osce.org/files/f/documents/b/0/93412.pdf\" rel=\"nofollow noreferrer\">Italy</a>. AFAIK the prosecution still has to show an organized crime connection, but they do not have to suggest any connection between the money and the crime, as long as the money is disproportionate to the legal economic activity of the owner.</p>\n",
"score": 2
}
] |
[
"united-states",
"international",
"due-process",
"civil-rights"
] |
Can Scotland secede without permission from London?
| 2 |
https://law.stackexchange.com/questions/56475/can-scotland-secede-without-permission-from-london
|
CC BY-SA 4.0
|
<p>Can Scotland secede without permission from London, from the standpoint of international law? There's a thing called "the right of a people for self-determination". I wonder whether it's applicable to Scotland. Could they carry out a new referendum regardless of what Boris thinks on the matter?</p>
| 56,475 |
[
{
"answer_id": 56476,
"body": "<p>There are two major relevant judicial decisions: <a href=\"https://www.webcitation.org/5rRB9e3bz?url=http://www.icj-cij.org/docket/files/141/15987.pdf\" rel=\"noreferrer\">the International Court of Justice's advisory opinion</a> on whether Kosovo's unilateral declaration was in accordance with international law, and <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1643/index.do\" rel=\"noreferrer\">the Supreme Court of Canada's opinion</a> on whether Quebec had the right under international law to unilaterally secede.</p>\n<p>Judicial opinions aren't terribly common, because questions of secession are usually handled through force of arms. Although the Canadian decision was made by a national court, it's considered a significant work of reasoning and is often cited on this issue (for instance, it was heavily cited in briefs before the ICJ).</p>\n<p>The ICJ held that Kosovo's unilateral declaration of independence was in accordance with international law. However, this did <em>not</em> mean that Kosovo could unilaterally secede. As the ICJ noted, they were not asked what the legal consequences of the declaration were and they were not asked whether Kosovo was independent. They were only asked whether <em>making</em> the declaration <em>violated</em> international law. The ICJ found that in general international law does not prohibit unilateral declarations of independence. In particular situations they might violate other rules of international law (e.g. if they're tied to an unlawful use of force or violation of peremptory norms), but in general a unilateral declaration of independence is not illegal. Again, though, the ICJ took pains to emphasize that they were not making any decisions about the right to <em>secede</em>. The case was only about <em>announcing</em> that a country was seceding.</p>\n<p>The Supreme Court of Canada's ruling, in contrast, <em>was</em> about whether actual secession was allowed. The court found that it was not, under either Canadian or international law. While international law creates a right to self-determination, that right typically only justifies secession in colonial empires. In general, a people is meant to achieve self-determination in the state they reside in. When a people is fully integrated into the life and governance of their state, they are not being denied self-determination. They might not always get what they want, but if two people disagree then <em>someone</em> is always going to be disappointed. The court held that</p>\n<blockquote>\n<p>A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self‑determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states.</p>\n</blockquote>\n",
"score": 7
},
{
"answer_id": 87411,
"body": "<p>No; the UK Supreme Court, in <a href=\"https://www.supremecourt.uk/cases/docs/uksc-2022-0098-judgment.pdf\" rel=\"nofollow noreferrer\">its judgement on the reference by the Lord Advocate</a> regarding whether the proposed Scottish Independence Referendum Bill would refer to reserved matters, specifically ruled on the self-determination argument put forward by the Scottish National Party, as intervener, at paras 88-90.</p>\n<p>It first refers to the Supreme Court of Canada's judgement in the <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1643/index.do\" rel=\"nofollow noreferrer\">Reference re Secession of Quebec [1998] 2 SCR 217</a>, where the court "explained that Canada was a sovereign and independent state conducting itself in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction. It considered that the then current constitutional arrangements within Canada did not place Quebecers in a disadvantaged position within the scope of the international law rule." It continued:</p>\n<blockquote>\n<p>In summary, the international law right to self-determination only\ngenerates, at best, a right to external self-determination in\nsituations of former colonies; where a people is oppressed, as for\nexample under foreign military occupation; or where a definable group\nis denied meaningful access to government to pursue their political,\neconomic, social and cultural development. In all three situations,\nthe people in question are entitled to a right to external\nself-determination because they have been denied the ability to exert\ninternally their right to self-determination. Such exceptional\ncircumstances are manifestly inapplicable to Quebec under existing\nconditions.</p>\n</blockquote>\n<p>The UK Supreme Court took the position that this applied equally to the case of Scotland, saying:</p>\n<blockquote>\n<p>[These observations] are also consistent with the United Kingdom’s\nsubmission to the International Court of Justice in the case of\nKosovo, adopted by the intervener as part of its submissions in the\npresent case: “To summarise, international law favours the territorial\nintegrity of States. Outside the context of self-determination,\nnormally limited to situations of colonial type or those involving\nforeign occupation, it does not confer any ‘right to secede’”: Written\nProceedings in relation to UN General Assembly Resolution 63/3\n(A/RES/63/3) (8 October 2008), Written Statement of the United Kingdom\nin response to the Request for an Advisory Opinion of the\nInternational Court of Justice on the Question, ‘Is the unilateral\ndeclaration of independence by the Provisional Institutions of\nSelf-Government of Kosovo in accordance with international law?”, (17\nApril 2009), para 5.33. The submission went on to state that\ninternational law does not, in general, prohibit secession; but the\nrelevant point, in relation to the intervener’s submission based on a\nright of self-determination under international law, is the absence of\nrecognition of any such right outside the contexts described by the\nSupreme Court of Canada, none of which applies to Scotland.</p>\n</blockquote>\n<p>It concluded by observing that the power delegated to Scotland under the Scotland Act "establishes and promotes a system of devolution founded on principles of subsidiarity", and does not constitute a breach of the principle of self-determination in international law.</p>\n",
"score": 3
}
] |
[
"united-kingdom",
"international"
] |
Does Power of Attorney extend to voting in an election?
| 16 |
https://law.stackexchange.com/questions/56287/does-power-of-attorney-extend-to-voting-in-an-election
|
CC BY-SA 4.0
|
<p>Let's say that a citizen of the United States is in declining mental health and is not of sound mind or body to care for their own affairs, so the family sought Power of Attorney and received it. Let's also say that before an election and before deteriorating health, they had applied for an option to have a mail in ballot for the general election in November.</p>
<p>If the individual with Power of Attorney receives the mail in ballot, would they be participating in a type of voter fraud by filling out the ballot on behalf of the person, then presenting the ballot to the person for their signature, assuming that person is capable of physically providing their signature, however incapable of mentally comprehending the voting decision?</p>
<p>I know that the individual with Power of Attorney has the right to sign for legal documents on behalf of the person as they should be doing this with their best interest at heart, however is there an explicit exclusion for election ballots? If not then how could one account or check for election fraud?</p>
| 56,287 |
[
{
"answer_id": 56289,
"body": "<p>No.</p>\n<p>Because these laws are controlled by the states, there could theoretically be 50 different answers, but every state I've looked at so far (Arizona, Florida, Massachusetts, New Hampshire, Wisconsin) forbids using power of attorney to cast votes in a public election. In many states, a POA may not even request an absentee ballot for a voter.</p>\n<p>The general principle is that the POA can undertake any legal act the agent could undertake, except those "so peculiarly personal that their performance cannot be delegated." States generally treat voting as peculiarly personal.</p>\n",
"score": 41
},
{
"answer_id": 56307,
"body": "<h2>No</h2>\n<p>Partly because you are conflating some concepts which while conceptually related are legally different things:</p>\n<ul>\n<li><strong>Power of Attorney</strong> - allows another person (the attorney) to deal with the assets of another person.</li>\n<li><strong>Proxy</strong> - allows another person (the proxy) to exercise the vote of another person. Either as instructed or at the proxy's discretion.</li>\n<li><strong>Guardianship</strong> - allows another person (the guardian) to make medical, lifestyle or legal decisions on behalf of another person.</li>\n</ul>\n<p>So, to rephrase the question: <strong>Does a <a href=\"https://en.wikipedia.org/wiki/Proxy_voting\" rel=\"nofollow noreferrer\">Proxy</a> extend to voting in an election?</strong></p>\n<p>Depends on the election.</p>\n<p>For elections in companies, clubs, housing associations etc. the answer is usually yes. The rules of that organisation will set out how proxies must be set up and used. Usually, a legal representative (an attorney if the right to vote is asset-based, a guardian if it isn't), can execute a proxy form and appoint themselves or somebody else as the proxy.</p>\n<p>Proxy voting in the <a href=\"https://en.wikipedia.org/wiki/Proxy_voting#United_States\" rel=\"nofollow noreferrer\">United States</a> has been legal in the past but is currently not in any State or Territory for state and national elections. It is prohibited in some state constitutions and so would require a constitution amendment to allow in those but in other it could be made legal again by legislative action.</p>\n",
"score": 16
},
{
"answer_id": 56298,
"body": "<p>The search might be restricted to Colorado, Idaho, Illinois, Indiana, Kansas, Maine, Michigan, New Hampshire, North Carolina, Pennsylvania and Vermont, since in other states, mentally incompetent people can have their right to vote stripped from them (but it is not automatic). In Ohio, <a href=\"http://codes.ohio.gov/orc/3505.24\" rel=\"noreferrer\">ORC 3505.24</a> says that</p>\n<blockquote>\n<p>any elector who does both of the following may be accompanied in the\nvoting booth and aided by any person of the elector's choice, other\nthan the elector's employer, an agent of the elector's employer, or an\nofficer or agent of the elector's union, if any:</p>\n<p>(A) Appears to vote on the day of an election or appears at the office\nof the board of elections to cast absent voter's ballots in person;\nand</p>\n<p>(B) Declares to the presiding judge of elections or to the election\nofficial who is accepting applications to cast absent voter's ballots\nin person that the elector is unable to mark the elector's ballot by\nreason of blindness, disability, or illiteracy.</p>\n<p>The elector also may request and receive assistance in the marking of\nthe elector's ballot from two election officials of different\npolitical parties. Any person providing assistance in the marking of\nan elector's ballot under this section shall thereafter provide no\ninformation in regard to the marking of that ballot.</p>\n<p>Any election official may require a declaration of inability to be\nmade by the elector under oath before the election official.\nAssistance shall not be rendered for causes other than those specified\nin this section, and no candidate whose name appears on the ballot\nshall assist any person in marking that person's ballot.</p>\n</blockquote>\n<p><a href=\"http://codes.ohio.gov/orc/3509\" rel=\"noreferrer\">ORC 3509.08</a> governs disability and absentee voting. A voter may apply for absentee voting which allows for assistance in voting if they are confined or physically disabled, but not mentally disabled. A mentally disabled person must show up, though they can vote curbside. It is not clear how coherent the voter's required declarations have to be.</p>\n",
"score": 7
},
{
"answer_id": 56292,
"body": "<p>The acts you describe in the body of the question do not fit with the acts implied by its title.</p>\n<blockquote>\n<p>Does Power of Attorney extend to voting in an election?</p>\n</blockquote>\n<p>This implies that the attorney-in-fact is contemplating signing the ballot envelope on behalf of the voter. The power of attorney grants the attorney-in-fact the power to act on behalf of the principal.</p>\n<blockquote>\n<p>would they be participating in a type of voter fraud by filling out the ballot on behalf of the person, then presenting the ballot to the person for their signature?</p>\n</blockquote>\n<p>Here, because the principal is signing the ballot, the principal is purportedly acting for himself or herself. The power of attorney is not implicated. Anyone can prepare documents and present them to someone else for a signature. Whether doing so is lawful or not in any case does not depend on power of attorney. Rather, the question would be whether it is prohibited to induce someone to sign a legal document when the person is not competent to understand the document, or to assist someone in voting despite the person's mental incapacity. In some states, people with mental incapacity are not qualified to vote, so if this case is in one of those states it would be necessary to establish whether that disqualification applies to the person.</p>\n",
"score": 4
},
{
"answer_id": 56331,
"body": "<p>The situation in <a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" rel=\"tag\">germany</a> is similar to the United States:</p>\n<p>Power of Attorney does not extend to voting in a political election.</p>\n<hr />\n<p>Some details:</p>\n<p>Under German law, the equivalent to power of attorney due to mental health concerns would be a <a href=\"https://de.wikipedia.org/wiki/Betreuung_(Recht)\" rel=\"nofollow noreferrer\"><em>Betreuung</em></a> (if it applies to all affairs) or a <a href=\"https://de.wikipedia.org/wiki/Pflegschaft\" rel=\"nofollow noreferrer\"><em>Pflegschaft</em></a> (only for some areas, such as only for representation in a specific court case).</p>\n<p>A <em>Pflegschaft</em> is, as mentioned, only for specific areas where (such as representation in a court case, health decisions, or financial decisions) and simply does not exist for voting in elections.</p>\n<p>For a <em>Betreuung</em>, which is typically granted for individuals who have severe mental disabilities or suffer from dementia (and must be ordered by a judge):</p>\n<p>Until 2019, someone under a complete <em>Betreuung</em> lost their right to vote. Since this was considered discriminatory towards people with disabilities, this restriction was lifted in 2019. Since then, the law only says (after stipulating that in general a vote must be cast by the voter personally):</p>\n<blockquote>\n<p>(5) Ein Wahlberechtigter, der des Lesens unkundig oder wegen einer\nBehinderung an der Abgabe seiner Stimme gehindert ist, kann sich\nhierzu der Hilfe einer anderen Person bedienen. Die Hilfeleistung ist\nauf technische Hilfe bei der Kundgabe einer vom Wahlberechtigten\nselbst getroffenen und geäußerten Wahlentscheidung beschränkt.\nUnzulässig ist eine Hilfeleistung, die unter missbräuchlicher\nEinflussnahme erfolgt, die selbstbestimmte Willensbildung oder\nEntscheidung des Wahlberechtigten ersetzt oder verändert oder wenn ein\nInteressenkonflikt der Hilfsperson besteht.</p>\n</blockquote>\n<p><a href=\"https://www.gesetze-im-internet.de/bwahlg/__14.html\" rel=\"nofollow noreferrer\">Bundeswahlgesetz - § 14 Ausübung des Wahlrechts</a></p>\n<p><em>Translation (no guarantees, legal German is hard to translate):</em></p>\n<blockquote>\n<p>(5) A voter who cannot read or cannot cast a vote due to disability\nmay use another person's help. The help is limited to technical help\nto declare a voting decision made and communicated by the voter\nthemselves.\nHelp is not permissible if it uses illegal influence, if it replaces or\nchanges the decision process or the decision of the voter, or\nif there is a conflict of interest for the person helping.</p>\n</blockquote>\n<p>This makes it abundantly clear that <em>only</em> the person eligible to vote may make the actual voting decision.</p>\n",
"score": 4
},
{
"answer_id": 56436,
"body": "<p>"Sound of mind" has been covered, but re: "sound of body":</p>\n<p>I voted in person but early in the 2016 election in the state of Virginia due to a physical injury and I had someone else with me in line helping me. The election officials offered me a second form for my helper to fill out if I needed my helper to physically help me with voting. I didn't read the other form or use my helper while actually voting, but the explanation of the form was that my helper would be agreeing to only help as I told them to, and not to do anything based on their own opinions or feelings. So if I said push the button for X, they could push the button for X, but they couldn't push the button for Y even if they really wanted to.</p>\n<p>The procedure for absentee (by mail) ballot in Virginia <a href=\"https://www.elections.virginia.gov/media/formswarehouse/absentee-voting/ballots/ELECT-706.4-AB-Instructions-for-Voting-an-Absentee-Ballot_2-20.pdf\" rel=\"nofollow noreferrer\">is similar</a>. You need to complete a "Request for Assistance" before someone physically helps you with marking your ballot and there are other details, e.g. if the person who is voting (not the helper) is blind, that needs to be indicated.</p>\n<p>Even <a href=\"https://www.ncsl.org/research/elections-and-campaigns/vopp-table-10-who-can-collect-and-return-an-absentee-ballot-other-than-the-voter.aspx\" rel=\"nofollow noreferrer\">returning the ballot</a> has special procedures and limits on who can do that for you in many states.</p>\n<p>(Btw, I'm fine now, it was just bad timing on throwing my back out.)</p>\n",
"score": 1
},
{
"answer_id": 87409,
"body": "<p>In <a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"england-and-wales-container\">england-and-wales</a>, this is explicitly excluded in the Mental Capacity Act 2005 which established lasting power of attorney. <a href=\"https://www.legislation.gov.uk/ukpga/2005/9/section/29\" rel=\"nofollow noreferrer\">Section 29 states</a>:</p>\n<blockquote>\n<ol>\n<li>Nothing in this Act permits a decision on voting at an election for any public office, or at a referendum, to be made on behalf of a\nperson.</li>\n<li>“Referendum” has the same meaning as in section 101 of the Political Parties, Elections and Referendums Act 2000 (c. 41).</li>\n</ol>\n</blockquote>\n",
"score": 1
},
{
"answer_id": 56459,
"body": "<p>I don't think so. I'm pretty sure that POA only extends to financial and legal affairs, so that would not extend to voting. For example: in Arizona, Title 16-102 states</p>\n<blockquote>\n<p>A power of attorney or other form of proxy is not valid for use by a person in any procedure or transaction concerning elections, including voter registration, petition circulation or signature, voter registration cancellation, early ballot requests or voting another person's ballot.</p>\n</blockquote>\n<p>Therefore, it directly prohibits that.<br />\nI'm pretty sure that other states have similar laws about it.</p>\n",
"score": 0
}
] |
[
"united-states",
"elections",
"power-of-attorney"
] |
How much do I owe my lawyer?
| 0 |
https://law.stackexchange.com/questions/87391/how-much-do-i-owe-my-lawyer
|
CC BY-SA 4.0
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<p>I'm the Plaintiff in a civil case. The Opponent has made a non-Part 36 offer of an all-inclusive settlement.</p>
<p>I have a conditional fee agreement (CFA) with my solicitor. The Client Care Letter (CCL) has a section,</p>
<blockquote>
<p><strong>Costs you are liable to pay if you win the case</strong></p>
<p>Our base costs [... and a] success fee of 25% of base costs.</p>
</blockquote>
<p>My solicitor says the base fee now stands at about 80% of the offer. Adding 25% of that 80% (i.e. 20% of the total) would bring the base fee to 100% of the offer.</p>
<p>On the other hand, the CCL clarifies that</p>
<blockquote>
<p>To provide as much certainty as possible, but subject to you following all advice given and complying with all the terms of our agreement, you will not receive less than 75% of the compensation received from the Opponent.</p>
</blockquote>
<p>On that basis, it would seem the offer should be split 75-25 in my favour.</p>
<p>On the third hand, the solicitor proposed to me in a phone call that we split the offer 50-50, and has now emailed me saying that if I accept the offer I would get 37.5%. I think the reasoning is that, since we would be settling rather than proceeding to trial, the division of the winnings is back on the table and, if we go 50-50, the 25% success fee then comes out of my half (50% of the total minus 25% of that 50% leaves 37.5%).</p>
<p>For my solicitor's position to be consistent with the CCL, I think the word 'compensation' has to be interpreted to exclude the solicitor's fee. Is that a reasonable interpretation?</p>
| 87,391 |
[] |
[
"united-kingdom",
"civil-law",
"litigation"
] |
How copyright law works for compilations or lists?
| 1 |
https://law.stackexchange.com/questions/87375/how-copyright-law-works-for-compilations-or-lists
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CC BY-SA 4.0
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<p>Can a list or compilation be protected by copyright in certain cases?</p>
| 87,375 |
[
{
"answer_id": 87381,
"body": "<p>To consider whether something is infringing a copyright, one must consider what protected work it might infringe.</p>\n<p>In general, for a list to be protected it must have originality (which is not quite the same as creativity) in the wording of individual list items, in the selection of itms for the list, or in the order of the list.</p>\n<p>A selection of popular items as determined by a survey or some third party, listed in order of popularity would not have any originality.</p>\n<p>A list of "best popular songs" according to the judgement of the compiler would be original in selection, and probably in order.</p>\n<p>In the classic case <em>Feist v Rural</em> it was held that a phone book listing everyone in an area, in alphabetical order, had no originality.</p>\n<p>In general if the list compiler uses judgement in pickings the items, or in arranging them then those choices are protectable, and imitating them may well be infringing. But the factual content of individual items may be used by anyone.</p>\n",
"score": 1
},
{
"answer_id": 87398,
"body": "<p>There are jurisdictions, e.g. <a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"germany-container\">germany</a>, where the creation of a database can considered a protected work to protect the investment by the creator. That means basically two people could compile a list of weather data or phone numbers, but one cannot just copy from the other.</p>\n",
"score": 0
}
] |
[
"copyright"
] |
What are the criteria to file a suit to compel arbitration in federal court?
| 4 |
https://law.stackexchange.com/questions/87382/what-are-the-criteria-to-file-a-suit-to-compel-arbitration-in-federal-court
|
CC BY-SA 4.0
|
<p>The Federal Arbitration Act (FAA) is the federal law that governs arbitration. It is possible to petition the state or federal courts to compel arbitration. Filing in federal court is ideal, since federal courts have a strong policy of favoring arbitration. However, there are specific criteria that must be met to bring an arbitration suit in federal court. Some of the criteria are:</p>
<ul>
<li>diversity of citizenship</li>
<li>the dispute must be worth at least $75,000</li>
</ul>
<p>What other criteria must be met to file a suit to compel arbitration in federal court?</p>
| 87,382 |
[
{
"answer_id": 87393,
"body": "<p><strong>Overview</strong></p>\n<p>To file a suit to compel arbitration in federal court, the court must have subject matter jurisdiction and personal jurisdiction, venue must be proper, special considerations must be met for certain kinds of defendants, and there must be a basis on the merits alleged to compel arbitration.</p>\n<p><strong>Subject Matter Jurisdiction In Domestic Cases</strong></p>\n<p>One set of rules applies in cases where all parties to the case are U.S. persons.</p>\n<blockquote>\n<p>Some of the criteria are:</p>\n<ul>\n<li>diversity of citizenship</li>\n<li>the dispute must be worth at least $75,000</li>\n</ul>\n</blockquote>\n<p>While this is usually the case, the requirements of 28 U.S.C. § 1332 pertaining to diversity jurisdiction don't always apply to motions to compel arbitration in federal court.</p>\n<p>The FAA, 9 U.S.C. § 1 et seq., does not itself confer federal-question jurisdiction—the federal courts must have an independent jurisdictional basis to hear a case under the FAA. <em>Hall Street Associates, L.L.C. v. Mattel, Inc</em>., 552 U.S. 576 (2008).</p>\n<p>A federal court can compel arbitration under Section 4 of the FAA, however, if, on a “look through” basis, the underlying dispute were to give rise to federal question jurisdiction, even in the absence of diversity of citizenship. <em>Vaden v. Discovery Bank</em>, 556 U.S. 49 (2009). In these cases, there is no minimum amount in controversy and diversity of citizenship is not required.</p>\n<p>But, <em>Vaden</em>’s “look through” approach to determining federal jurisdiction does not apply to requests to confirm or vacate arbitral awards\nunder Sections 9 and 10 of the FAA. <em>Bagerow v. Walter</em>, 596 U.S. ____, Case No. 20-1143 (March 31, 2022).</p>\n<p>A motion to compel arbitration could also be brought in federal court if the United States government was one of the parties to the case.</p>\n<p>Case law has also created some exceptions to the general rule that diversity jurisdiction is present when there is diversity of citizenship and the amount in controversy is in excess of $75,000. The most important of those exceptions are for family law matters and for probate cases. Most family law arbitration cases involve agreements of a Jewish married couple to submit certain marital disputes to arbitration before a Jewish law tribunal arbitration. Most arbitration requirements in probate cases are established in an instrument such as a will under which the case arises.</p>\n<p>It is also possible for the parties to contractually agree to waive a federal forum for any purpose whatsoever. This is frequently done, for example, in cases involving marijuana business transactions in which the businesses are legal under state but not federal law.</p>\n<p><strong>Subject Matter Jurisdiction In International Cases</strong></p>\n<p>The subject matter jurisdiction analysis (but not the personal jurisdiction analysis) is usually different in international arbitration cases to which treaty agreements usually apply.</p>\n<p>Enforcement of an international arbitration treaty will usually constitute a federal question under 28 U.S.C. § 1331, and provide a basis for federal court subject matter jurisdiction that would be absent under the FAA. As noted <a href=\"https://www.fitchlp.com/blog/2018/04/enforcement-of-international-arbitration-agreements-belongs-in-federal-court/\" rel=\"nofollow noreferrer\">here</a>:</p>\n<blockquote>\n<p>In 1970, the United States acceded to the New York Convention on the\nRecognition and Enforcement of Foreign Arbitral Awards (the “New York\nConvention”), which requires all of its 157 State-Parties to enforce\narbitration agreements and awards rendered in other countries or which\nare non-domestic. In the implementing legislation, Congress\nestablished that any arbitration agreement or award that was\ncommercial and international in nature fell under the New York\nConvention. 9 U.S.C. § 202.</p>\n<p>Congress also provided that “An action or proceeding falling under the\nConvention shall be deemed to arise under the laws and treaties of the\nUnited States.” 9 U.S.C. § 203. This confers federal jurisdiction on\nany motion to compel arbitration or any enforcement action regarding\nan international arbitration.</p>\n<p>Congress also provided extremely broad removal powers whenever a state\ncourt action “relates to” an international arbitration agreement or\naward. 9 U.S.C. § 205 allows for removal “at any time before the\ntrial” and says that the grounds for removal “need not appear on the\nface of the complaint but may be shown in the petition for removal.”</p>\n<p>Every circuit that has analyzed this has found that it confers broad\njurisdiction on the federal courts to hear claims “whenever an\n[international] arbitration agreement . . . could conceivably affect\nthe outcome of the plaintiff’s case.” <em>Infuturia Global Ltd. v. Sequus\nPharaceuticals, Inc</em>., 631 F.3d 1133, 1138 (9th Cir. 2011); <em>Reid v.\nDoe Run Resources Corp</em>., 701 F.3d 840, 844 (8th Cir. 2012); <em>Beiser\nv. Weyler</em>, 284 F.3d 665, 669 (5th Cir. 2002).</p>\n</blockquote>\n<p>The New York Convention will not always apply, however, in consumer cases and in other cases that are not commercial in nature, even if they are international.</p>\n<p><strong>Personal Jurisdiction</strong></p>\n<p>In addition to having "subject matter" jurisdiction over the type of controversy involved, a party filing suit in a U.S. District Court must establish that the court has "personal jurisdiction" over the parties. This analysis is the usually same as it would be if the suit were filed in a state court concerning the same matter. <em>See</em> <a href=\"https://www.law.cornell.edu/rules/frcp/rule_4\" rel=\"nofollow noreferrer\">Federal Rule of Civil Procedure 4(k)</a>.</p>\n<p>Thus, the defendant must either be (1) subject to general personal jurisdiction in that state, because the defendant has a headquarters, place of incorporation, or a domicile in that state, or (2) the defendant must be subject to specific personal jurisdiction in that state (i.e. the specific controversy must involve conduct of the defendant that links the defendant to that state).</p>\n<p>The scope of general jurisdiction over entities was greatly narrowed by the U.S. Supreme Court in <em>Daimler A.G. v. Bauman</em>, 134 S. Ct. 746 (2014), with respect to the prior rule under the longstanding U.S. Supreme Court holding of <em>International Shoe Company v. Washington</em>, 326 U.S 310 (1945) (which allowed a company or person to be sued on any matter anywhere that the defendant had an office for the conduct or business or a permanent agent). The law of personal jurisdiction, however, after many decades of great clarity, is now ridden with uncertainty and internal doctrinal ambiguities as a result of several recent U.S. Supreme Court rulings in this area. <em>See, e.g.</em>, Richard D. Freer, "From Contacts to Relatedness: Invigorating the Promise of "Fair Play and Substantial Justice" in Personal Jurisdiction Doctrine" 73 Alabama L. Rev. 583 (2022).</p>\n<p>Often, a forum selection clause in a contract containing an arbitration clause will supply a partial basis for a court to assert specific personal jurisdiction over a case. But the forum must still have some connection to the parties or the transaction or matter to support a federal court's personal jurisdiction over the case.</p>\n<p>There are also some narrow exceptions to the usual personal jurisdiction rules requiring that either general jurisdiction or specific jurisdiction be present. These include "tag jurisdiction" over natural person defendants that allows them to be tried in a federal court in a state if the defendant was personally served with process in the case in that state, <em>see Burnham v. Superior Court</em>, 495 U.S. 604 (1990), "in rem" jurisdiction, and "quasi-in rem" jurisdiction. Tag jurisdiction is not available against entities, however. <em>See Martinez v. Aero Caribbean</em>, <a href=\"https://scholar.google.com/scholar_case?case=16979137307834164613&hl=en&as_sdt=6&as_vis=1&oi=scholarr\" rel=\"nofollow noreferrer\">764 F.3d 1062</a> (9th Cir. 2014).</p>\n<p>For personal jurisdiction (but not venue) purposes, every U.S. District Court District in a state is on an equal footing. Facts necessary to establish personal jurisdiction in a U.S. District Court do not all have to be present in the judicial district in question if the facts establish that any state courts in the entire state in which the U.S. District Court is located would have personal jurisdiction over the case.</p>\n<p>The defendant must also be properly served with process in the manner set forth in Federal Rule of Civil Procedure 4 in order to be subject to the personal jurisdiction of the federal court.</p>\n<p><strong>Venue</strong></p>\n<p>Venue is proper in a U.S. District Court if the state in which the U.S. District Court is located has personal jurisdiction over the case, and, in states with more than one U.S. District Court, one or more of the parties has the proper connection to that particular U.S. District Court. <em>See generally</em> <a href=\"https://www.law.cornell.edu/uscode/text/28/1391\" rel=\"nofollow noreferrer\">28 U.S.C. § 1391</a>. The general rule under that statute is that:</p>\n<blockquote>\n<p>A civil action may be brought in—</p>\n<p>(1)a judicial district in which any defendant resides, if all\ndefendants are residents of the State in which the district is\nlocated;</p>\n<p>(2)a judicial district in which a substantial part of the events or\nomissions giving rise to the claim occurred, or a substantial part of\nproperty that is the subject of the action is situated; or</p>\n<p>(3)if there is no district in which an action may otherwise be brought\nas provided in this section, any judicial district in which any\ndefendant is subject to the court’s personal jurisdiction with respect\nto such action.</p>\n</blockquote>\n<p>If a U.S. District Court has personal jurisdiction over the parties, but the plaintiff has chosen an improper venue, then the usual remedy is a motion to change the venue and transfer the case to a different district, rather than to dismiss the case.</p>\n<p><strong>Other Considerations</strong></p>\n<p>Additional steps must be taken to protect a defendant's rights in order to commence a case in federal court to compel arbitration if a defendant is in military service (to which the Soldier's and Sailor's Civil Relief Act, 50 U.S.C. §§ 101-165, applies), if a defendant is a minor, or if a defendant is incompetent.</p>\n<p><strong>Stating A Claim Upon Which Relief Can Be Granted</strong></p>\n<p>Of course, there must also be allegations of a valid basis to compel arbitration on the merits - e.g., allegations that an arbitration agreement was entered into and that it binds the party against whom arbitration is sought to be compelled, and that it involves a matter that can be subject to arbitration.</p>\n",
"score": 2
},
{
"answer_id": 87388,
"body": "<h2>There must be an arbitration agreement that covers the dispute</h2>\n<p>Arbitration is a contract-based alternative dispute resolution process that must be voluntarily entered into by both parties. These are typically covered by an arbitration clause in a contract between the parties (although the arbitration agreement is a separate contract under the severability principle) or a separate agreement that the parties enter specifically to resolve the dispute before them.</p>\n<p>Either way, the arbitration agreement will have a scope defining which disputes it covers, and the dispute in question must fall within the scope. An arbitration agreement may be broad (e.g. "any and all disputes between the parties"), narrow (e.g. "disputes under the contract" - which would exclude tort and equity-based disputes), or stupidly narrow (e.g. "disputes regarding payment").</p>\n<h2>The court must have jurisdiction to hear the dispute were it not for the arbitration agreement</h2>\n<p>A court can only compel arbitration if the dispute would fall into its jurisdiction but for the arbitration agreement. So, for example, if the dispute rests entirely on State law, a Federal court cannot compel arbitration.</p>\n<p>If it has jurisdiction, the court will refer the matter to arbitration unless the making of or the performance of the arbitration agreement is in issue, in which case it will hold a summary trial on the merits of those issues and, depending on the outcome, refer the matter to arbitration or not. Note that this is different from most other parts of the world where the referral would be automatic, and the tribunal would decide issues of jurisdiction itself.</p>\n",
"score": 1
}
] |
[
"united-states",
"contract-law",
"new-jersey",
"arbitration"
] |
Is there a legal reason why many advertisements say “Limited Time Offer”?
| 4 |
https://law.stackexchange.com/questions/87334/is-there-a-legal-reason-why-many-advertisements-say-limited-time-offer
|
CC BY-SA 4.0
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<p>Companies often offer various types of short-term promotions. The ads almost always contain fine print that says “Limited Time Offer.” Is there a specific reason why they have to do that?</p>
<p>It seems really unlikely to me that, if they didn’t include that disclaimer, they would just be forced to honor the offer in perpetuity. Is there a law that says they have to include that?</p>
| 87,334 |
[
{
"answer_id": 87353,
"body": "<blockquote>\n<p>Is there a legal reason why many advertisements say “Limited Time Offer”?</p>\n</blockquote>\n<p>Sometimes, especially where the advertisement specifies the deadline. This would help defeating a claim of <em>unfair and misleading practices</em> that customers might pursue apropos of an open-ended offer.</p>\n<p>An offer triggers the offeree's <em>power of acceptance</em>. <em>Lapse of time</em> --whether reasonable or specified by the offeror-- and <em>revocation by the offeror</em> are two permissible methods for termination of that power. See <a href=\"http://www.oneclubofjusticides.com/p/restatement-second-contracts.html\" rel=\"nofollow noreferrer\">Restatement (Second) of Contracts</a> at §§ 36, 41. By specifying a deadline, the offeror preempts both the question of fact as to what constitutes <em>reasonable time</em> under the circumstances, <em>Id.</em> at 41(2), and an argument that revocation of the offer was so arbitrary that it took customers by surprise.</p>\n<blockquote>\n<p>Is there a law that says they have to include that?</p>\n</blockquote>\n<p>No. The decision mostly depends on the offeror's marketing preferences and the litigation risks associated to making an open-ended offer.</p>\n",
"score": 4
},
{
"answer_id": 87341,
"body": "<h2>No</h2>\n<p>"Limited Time Offer" is a marketing term, not a legal one, and is intended to create a sense of urgency in the target audience.</p>\n",
"score": 3
},
{
"answer_id": 87392,
"body": "<p>When the offer takes the form of a coupon, part of the motivation is a function of financial accounting concerns for firms that use accrual basis accounting.</p>\n<p>When a coupon has an expiration date, the allowance on the corporate books for coupons potentially redeemed in the future ends on that date. But, if the coupon has no expiration date, then the accountants have to make a reasonable estimate of how many coupons from that series will be redeemed each year, basically in perpetuity.</p>\n",
"score": 2
}
] |
[
"united-states",
"advertisements"
] |
Is there a reason lawyers are hesitant to use the media against an adversary?
| 6 |
https://law.stackexchange.com/questions/5177/is-there-a-reason-lawyers-are-hesitant-to-use-the-media-against-an-adversary
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CC BY-SA 3.0
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<p>I'm not a lawyer, so I'm only familiar with a small cross section of civil suits, but it seems to be a general trend that lawyers are very hesitant to publicize any part of a case. Even when the adversary has huge vulnerabilities because of the nature of the civil suit, the lawyer insists you keep quiet, in order to "not make them mad." Instead, you pay the lawyer to keep filing documents and orders, asking for "christmas lists," etc, while they other side does the same, and in the end, it's often a war of attrition, and the little guy loses. However, anecdotally, it seems that a number of cases resolve themselves within hours or days after an appropriate post on social media or call to a journalist. Corporations that rely heavily on their public image and understand their exposure will suddenly see that balance shifted against them and do everything they can to settle as humanely and quickly as possible. </p>
<p>My first conclusion is that using social media cuts into the usual business of lawyering, and so culturally, this would not be welcome around law firms. Is there a better explanation for this?</p>
| 5,177 |
[
{
"answer_id": 5181,
"body": "<p>This appears to be a complaint about lawyers using the legal process to achieve what their client wants. Forgive me, but this seems to be like complaining that doctors only want to cure the client's disease, architects only want to design the client's buildings and generals only want to kill the client's enemies.</p>\n\n<p><strong>Your lawyer is not your business strategist or your life coach!</strong></p>\n\n<p>A civil case is <strong>always</strong> about the money. If you are pursuing a civil case over a principle then you are going to spend a lot of money and probably lose.</p>\n\n<p>The use of a lawyer should <strong>always</strong> be part of your wider negotiation strategy in the same way that your armed forces are part of your diplomacy; in both cases the threat of use is usually better than the actual use.</p>\n\n<p>A civil case <strong>always</strong> follows a failure to successfully negotiate. Not all by any means, but most, civil cases would be better settled by agreement than litigation by all parties.</p>\n\n<p>If <strong>you</strong> believe that your objectives can best be served by a social media campaign, political pressure, etc. then go for it. Your lawyer can advise you what the risks are wrt to defamation etc. but ultimately how you choose to pursue your goal is up to you.</p>\n\n<p>Lawyers, understandably, look for legal solutions. A public relations professional is far better placed than a lawyer to inform your media strategy.</p>\n",
"score": 10
},
{
"answer_id": 87395,
"body": "<p>For the sake of simplicity, let's imagine this is a straightforward case where Alice alleges that Bob negligently injured her during a sporting event.</p>\n<h2>It locks you into a narrative</h2>\n<p>If Bob tells the media that, say, Alice was being careless, and that was the cause of her injury, Bob has now conceded at least the following:</p>\n<ol>\n<li>Alice was injured at all.</li>\n<li>Bob was present and witnessed the injury.</li>\n</ol>\n<p>Additionally, if Bob wants the media to believe him, he will probably have to concede the following as well:</p>\n<ol>\n<li>Bob physically touched Alice.</li>\n<li>Bob was paying attention to Alice at the time.</li>\n<li>Some acknowledgement of how serious (or trivial) Bob believes Alice's injury to be.</li>\n</ol>\n<p>If Bob is sufficiently foolish, he may also end up saying one or more of the following (all of which are basically gifts to Alice's counsel):</p>\n<ol>\n<li>Bob "made a mistake."</li>\n<li>Bob intentionally did [something more specific than touching Alice, such as deliberately running into her].</li>\n<li>Bob "shouldn't have" [done that thing].</li>\n<li>Bob "didn't think ahead."</li>\n<li>Bob "wasn't expecting" an injury to occur.</li>\n<li>Bob was the proximate cause of the injury.</li>\n</ol>\n<p>Bob is going to be reliant on an <em>assumption of risk</em> and/or <em>contributory negligence</em> defense (or a similar argument), and will not be able to credibly raise most other defenses. This may weaken his case, both because some defenses have been forfeited, and because Alice will no longer need to prove any of the above statements. Also, Alice can depose Bob and ask him to elaborate on his statements to the press, or use his statement to impeach him during cross-examination, which is especially useful if any element of Bob's press statement is false, misleading, or inconsistent.</p>\n<h2>It can antagonize the judge</h2>\n<p>In general, judges prefer for cases to be tried in front of them, and not in the court of public opinion. This is especially likely to annoy the judge if Bob's press statement emphasizes something which the judge has decided to exclude, or facts which are not legally relevant (such as Alice's character).</p>\n<p>Judges are supposed to be impartial, but they have to make a large number of subjective decisions throughout the trial. Not all of these decisions can be easily appealed, and due to the harmless error standard, an appeal may not be productive anyway. So antagonizing the judge is usually a bad plan.</p>\n<h2>It is irrevocable</h2>\n<p>Once you make a statement to the press, it's out there. The public will read it and make up their minds, one way or the other. Lawsuits can take months or even years to fully litigate, and what looks like a slam dunk case today may turn into a quiet settlement agreement tomorrow. It's harder to make that transition if you've released a confident press statement explaining in great detail why your side is right and the other side is wrong. This gets even worse if you actually manage to <em>lose</em> the case. At that point, the old press statement is just embarrassing.</p>\n",
"score": 4
},
{
"answer_id": 5183,
"body": "<p>No because lawyers have no special ability to use the media. Anyone can pay for airtime. However, lawyers do purport to have mastery of persuasion. In reality, sales people (sometimes called agents) are the true masters of persuasion. That's why they make all the money!</p>\n\n<p>Nothing secret or magic. In summary, lawyers have no special ability to use the media. As for playing outcomes, predicting the future is nearly impossible. Just ask a financial trader.</p>\n",
"score": 0
}
] |
[
"civil-law"
] |
Are random generators that use the names of fictional characters not infringing?
| 0 |
https://law.stackexchange.com/questions/86930/are-random-generators-that-use-the-names-of-fictional-characters-not-infringing
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CC BY-SA 4.0
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<p>For example, if I create a random generator that uses the names of the characters from a Multiplayer Online Battle Arena (MOBA) video game plus a random string attached after the character name, and also release the source code of this generator to the public (for demonstrative purposes), is this an IP infringement? In order to achieve this I (in this case) would have to include the names of the characters in the source code.</p>
| 86,930 |
[
{
"answer_id": 86932,
"body": "<p>You would be in poorly-tested waters under US law. The invented name "Cthulhu" as appearing in a novel is not protected by copyright. A collection of invented names and other words assembled into a dictionary (e.g. of Klingon) might be found to constitute a copyright-protected creative work. In Paramount Pictures v. Axanar Productions (<a href=\"https://consumerist.com/consumermediallc.files.wordpress.com/2016/04/klingrep.pdf\" rel=\"nofollow noreferrer\">complaint</a>), plaintiffs partially base their claim on infringement of language; defendants sought to dismiss the suit on various grounds ("questions of law" rather than questions of fact), but the <a href=\"https://www.loeb.com/-/media/files/publications/2017/01/axanarpsj.pdf\" rel=\"nofollow noreferrer\">court denied</a> defendant's motion for summary judgment. Subsequently, defendants settled the case.</p>\n<p>Constructed languages are highly creative expressive works whose elements are deliberately selected for an artistic purpose, and they are not naturally-occurring facts. The copyright office has no position on copyright protection of a constructed language, and any such position would have to come from so-far non-existent (definitive) case law. The dismissal in Paramount v. Axanar doesn't clearly indicate that a constructed language is protected.</p>\n<p>The primary legal question would be whether the database that you copy into your system is protected. There is a colorable legal argument that a collection of language-like objects. The statutory language in <a href=\"https://www.law.cornell.edu/uscode/text/17/102\" rel=\"nofollow noreferrer\">17 USC 102</a> does not specifically preclude protection of a wholely-creative database, and the copyright office does not say whether a conlang can be protected because the courts have not ruled one way or the other. The situation in <em>Feist</em> is very different from the case of a work which invents a language from nothing.</p>\n",
"score": 4
},
{
"answer_id": 87390,
"body": "<p>While character names are not copyrightable, they can be trademarked. Failure to ensure that all the names are free of trademark is required to prevent infringement -- especially since the trademark holder must actively protect the trademark.</p>\n",
"score": 1
}
] |
[
"united-states",
"intellectual-property",
"fair-use"
] |
Post Miller, have there been any obscenity convictions or prohibitions for purely textual material?
| 1 |
https://law.stackexchange.com/questions/87376/post-miller-have-there-been-any-obscenity-convictions-or-prohibitions-for-purel
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CC BY-SA 4.0
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<p>If I understand correctly, a U.S. state could in principle criminalize or otherwise prevent publication of a text-only book meeting the <a href="https://en.m.wikipedia.org/wiki/Miller_test" rel="nofollow noreferrer">three-pronged test for obscenity</a> handed down in <em>Miller v. California</em>. Before that case, there were several important obscenity trials involving literary works, including <em>Ulysses</em> and <em>The Naked Lunch</em>. Since then, it has seemed as if the <em>Miller</em> test has been treated as having a tacit corollary that text-only works are never obscene. But is that impression wrong? Have any <em>successful</em> enforcement actions been brought against text-only content? (Recently, an attempt was made to restrict sales of two books in Virginia, but <a href="https://www.virginiamercury.com/2022/08/30/judge-throws-out-obscenity-case-attempting-to-restrict-sales-of-books-in-virginia-beach/" rel="nofollow noreferrer">that was dismissed</a>.)</p>
| 87,376 |
[
{
"answer_id": 87383,
"body": "<p>An almost-successful case is the recent case <a href=\"https://www.pacourts.us/assets/opinions/Superior/out/J-S17041-21o%20-%20104819877139092537.pdf?cb=1\" rel=\"nofollow noreferrer\">Pennsylvania v. Alexander</a>, where the defendant was convicted of sending obscene text messages. However, the conviction was overturned on appeal to the PA Superior Court. The trial court, as summarized in the appeal</p>\n<blockquote>\n<p>reasoned that text messages may constitute obscene “material” because\nthe statutory definition does not “expressly exclude” them, and the\nGeneral Assembly must have intended for them to fall within the ambit\nof the obscenity statute.</p>\n</blockquote>\n<p>and</p>\n<blockquote>\n<p>because the messages appealed to the prurient interest, described\npatently offensive sexual conduct, and lacked any social value,\nAlexander’s messages were “obscene” as defined in Section 5903(b)</p>\n</blockquote>\n<p>Defendant argues (and the appeals court agrees) that</p>\n<blockquote>\n<p>the statute does not make it a crime to send sexually explicit text\nmessages to a consenting adult</p>\n</blockquote>\n<p>because the law</p>\n<blockquote>\n<p>only criminalizes the dissemination of obscene “material”: No person,\nknowing the obscene character of the <strong>materials</strong> or performances\ninvolved, shall: . . . . design, copy, draw, photograph, print, utter,\npublish or in any manner manufacture or prepare any obscene <strong>materials</strong></p>\n</blockquote>\n<p>(emphasis in appellate ruling)</p>\n<p>and 18 Pa.C.S. § 5903(a)(3)(i) states that</p>\n<blockquote>\n<p>Obscene “material” is defined for the purposes of that subsection as:\nAny literature, including any book, magazine, pamphlet, newspaper,\nstorypaper, bumper sticker, comic book or writing; any figure, visual\nrepresentation, or image, including any drawing, photograph, picture,\nvideotape or motion picture.</p>\n</blockquote>\n<p>The conviction was overturned because the texts were not "material": as the appellate court reasoned,</p>\n<blockquote>\n<p>even assuming that Alexander’s texts were obscene under the Miller\ntest, private and consensual text messages between two adults are not\n“material” within the meaning of subsection 5903(b). For the purposes\nof the statute, “obscene material” unambiguously refers to content\nmade for public dissemination.</p>\n</blockquote>\n<p>This "necessarily excludes private speech\nexchanged via text messages by two consenting adults". The ruling does not consider whether a message disseminated to three or four adults would constitute "public dissemination".</p>\n",
"score": 2
}
] |
[
"first-amendment"
] |
How are statutes cited in a trial?
| 3 |
https://law.stackexchange.com/questions/81933/how-are-statutes-cited-in-a-trial
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CC BY-SA 4.0
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<p>When an argument in a court case relies on the specifics of a statute, and that case goes to trial, how does that statute typically get presented to the opposing party and the judge? Does the attorney (or self represented party) typically just quote the relevant portions of the law, or do they provide a copy of it to the judge and/or other party?</p>
<p>If it were an exhibit, the rules seem pretty clear about that a copy of the evidence would be provided to both the judge and the opposing party. I'm no legal expert, but unless I'm mistaken this doesn't seem like it would be an exhibit, since it's a law and not a piece of evidence.</p>
<p>Since the specifics of the statute can be very relevant to the argument, it seems important that both parties and the judge have access to the referenced statute.</p>
<p>The particular case I have in mind would be a civil trial, but this seems something just as relevant for trials of other types.</p>
<p>How does this typically work in practice?</p>
| 81,933 |
[
{
"answer_id": 81937,
"body": "<p>One does not introduce statutes in a trial, criminal of civil. Rather, one introduces facts. The judge will present "the law", and will present it in a digested form in the form of interpreted instructions to the jury about what the law says. Jurors are <em>not</em> required to interpret the meaning of statutes, because jurors are also not expected to know the relevant case law surrounding a statute.</p>\n<p>A party might make a motion to the judge where the argument depends in part on the wording of a statute. Then there is a standard but jurisdiction-dependent way of referring to s statute, e.g. ORS 164.015, RCW 9A.56.010. For Minnesota there are three interchangeable forms: "Minnesota Statutes 2008, section 123.45, subdivision 6" which is the same as "MINN. STAT. 123.45 (2008)" or "MINN. STAT. ANN. 123.45 (2008)", which is for statutes. You have to look it up on a jurisdiction by jurisdiction basis – <a href=\"https://www.lrl.mn.gov/leg/history/citations\" rel=\"nofollow noreferrer\">here is the answer</a> that Minnesota gives (all legal citations).</p>\n",
"score": 4
},
{
"answer_id": 81957,
"body": "<h2>case law is included in the pleadings</h2>\n<p>When the parties present that case to the court and each other, they cite the statutes and case law that is applicable and state how they believe it applies to the facts. This may be accepted by the other party or it may be disputed (possibly with other relevant law brought in). The judge considers the submissions of the parties on the law and makes a ruling on what the law is. This may or may not be communicated to the jury depending on if it is relevant to their deliberations.</p>\n",
"score": 0
},
{
"answer_id": 87372,
"body": "<blockquote>\n<p>When an argument in a court case relies on the specifics of a statute,\nand that case goes to trial, how does that statute typically get\npresented to the opposing party and the judge? Does the attorney (or\nself represented party) typically just quote the relevant portions of\nthe law, or do they provide a copy of it to the judge and/or other\nparty?</p>\n</blockquote>\n<p>In legal arguments made orally in court to a judge, the customary practice is to state out loud the citation to the authority cited.</p>\n<p>This would often come up in arguments on an evidence objection during trial, where someone might say, "this testimony is not admissible under the psychotherapist-patient privilege, Section 13-90-107(g), Colorado Revised Statutes." If necessary to advance the legal argument, the pertinent language of that statute might then be quoted or paraphrased by the lawyer making the argument.</p>\n<p>Another time that this would be done is in what is colloquially called a "half-time motion" in a trial under Rule 50 of either the Federal Rules of Civil Procedure or a similarly numbered state rule of civil procedure, seeking to dismiss a case for failure to state a claim upon which relief can be granted supported by evidence from which a reasonable juror could rule in favor of the plaintiff, which is called a "motion for directed verdict."</p>\n<p>For example, one might state, "This action must be dismissed because there is no evidence from which a reasonable juror could conclude that the applicable three year statute of limitations under Section 13-80-101, Colorado Revised Statutes, has not lapsed, because it is an action for fraud that accrued in 1984, more than three years before this case was filed in 2021."</p>\n<p>Case citations are also communicated this way. So one might argue, "the plaintiff's second claim for declaratory judgment fails due to the U.S. Supreme Court decision in <em>Loving v. Virginia</em>, 388 U.S. 1 (1967)."</p>\n<p>Typically, when authority is presented orally by citation, it is recited at slower than a usual speaking rate in order to allow the judge to write it down in the judge's notes.</p>\n<p>Certain statutes and cases are so widely known that they are instead referred to by their common name, without a full citation. So you might say, "this is a <em>Miranda</em> violation" or "this Court has jurisdiction under the All Writs Act," or "the Plaintiff alleges a violation of the Securities Exchange Act of 1934."</p>\n<p>There are also a handful of statutes that have informal citations that are often used instead of the standard one.</p>\n<p>For example, Title 26 of the United States Code is often referred to as the "Internal Revenue Code" (sometimes abbreviated I.R.C.") so one might say, "this is income pursuant to IRC Section 61."</p>\n<p>Short form oral citations are also common in oral arguments before appellate courts, where the full citation is available in the appellate briefing, and in oral argument of written motions made to a trial court.</p>\n<p>Sometimes this oral statement of legal authority is supplemented with a short legal pleading, usually a page or three with the case caption, setting forth the legal analysis with written citations to authority supporting it, and presented to the judge and opposing counsel at that time, sometimes called a "pocket brief." The preferred option, however, is to prepare a "trial brief" or "hearing brief" prior to trial setting forth that legal authority and filing it with the court before a deadline set by the court. But not all legal issues can be anticipated prior to trial.</p>\n",
"score": 0
}
] |
[
"united-states",
"civil-law",
"statutes",
"minnesota"
] |
Why isn't a gay marriage established in one state protected in other states by the Privileges and Immunities Clause?
| 4 |
https://law.stackexchange.com/questions/87272/why-isnt-a-gay-marriage-established-in-one-state-protected-in-other-states-by-t
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CC BY-SA 4.0
|
<p>Of course I know it's otherwise protected by the new <em>Respect for Marriage Act</em> and <em>Obergefell</em>, but I happened to be reading about the rather demure P&I Clause in Article 4. and it seemed relevant. IIUC, it's been used to guarantee that "fundamental" rights for a citizen of state A are recognized when travelling to all the other states. Is marriage not considered a fundamental right?</p>
| 87,272 |
[
{
"answer_id": 87300,
"body": "<p>The relevant portion of the U.S. Constitution is the <a href=\"https://en.wikipedia.org/wiki/Full_Faith_and_Credit_Clause#Application_to_family_law\" rel=\"nofollow noreferrer\">full faith and credit clause</a> (which the <em>Respect for Marriage</em> act is primarily an implementation and enforcement of). This requires states to honor marriages and divorces entered into in different states (subject to limited public policy exceptions that the <em>Respect for Marriage</em> act further limited), and also, for example, paternity determinations and court judgments from other states.</p>\n<p>This was one argument among many used to argue that same sex marriages from other states should be recognized in other states. But the U.S. Supreme Court in <em>Obergefell v. Hodges</em>, <a href=\"https://www.oyez.org/cases/2014/14-556\" rel=\"nofollow noreferrer\">576 U.S. 644</a> (2015), in which it established a right to same sex marriage in all U.S. states, relied instead mostly upon a substantive due process clause analysis similar to that of <em>Loving v. Virginia</em>, <a href=\"https://supreme.justia.com/cases/federal/us/388/1/\" rel=\"nofollow noreferrer\">388 U.S. 1</a> (1967), which held that bans on interracial marriage were unconstitutional.</p>\n<p>The Article IV <a href=\"https://en.wikipedia.org/wiki/Privileges_and_Immunities_Clause\" rel=\"nofollow noreferrer\">privileges and immunities clause</a> protects very little (mostly the right to interstate travel and the right for an out of state resident to be licensed in a profession in a state).</p>\n<p>The <em>Slaughterhouse cases</em>, <a href=\"https://supreme.justia.com/cases/federal/us/83/36/\" rel=\"nofollow noreferrer\">83 U.S. 36</a> (1872), in the late 19th century gave a very crabbed interpretation to the 14th Amendment privileges and immunities clause, limited that only to rights arising from federal citizenship.</p>\n<p>The logic of the <em>Slaughterhouse</em> line of cases spilled over into the privileges and immunities clause of Article IV of the U.S. Constitution. The Article IV privileges and immunities clause applies to rights specific to state citizenship to prevent those rights from being denied to out of state U.S. citizens. But those rights are few and far between, and court crafted exceptions have been carved out in cases where it does exist (hunting and fishing license fees and college tuition, for example).</p>\n",
"score": 7
}
] |
[
"united-states",
"us-constitution",
"marriage"
] |
What are the main conditions to have a housing loan in the USA?
| 0 |
https://law.stackexchange.com/questions/87367/what-are-the-main-conditions-to-have-a-housing-loan-in-the-usa
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CC BY-SA 4.0
|
<p>Apart from having 1 year of work in the same company and a good credit score... Once that's okay... For example I earn $5000 a month, can I borrow $4500 a month if I want ? Or is there a limit based on a percentage of my net incomes a month ? And is there a limit on the duration of the real estate loan ?</p>
| 87,367 |
[
{
"answer_id": 87368,
"body": "<p>This is more of a bank policy question, but typically they won't loan you more than can be covered by around 30% of your income.</p>\n<p>In your example, depending on current interest rates and the number of periods in the loan, (i.e. 15 or 30 years) your cap might be a monthly payment of $1500 per month.</p>\n",
"score": 2
},
{
"answer_id": 87370,
"body": "<p>There are limits imposed by federal banking regulations on loans made by FDIC-insured banks, and on loans made that can be processed by FHA or other government programs. These limits were tightened after the wave of mortgage defaults in the 2000s.</p>\n<p>But many, probably most, lenders have their own standards, often moire restrictive than federal regulations would require. These will vary from one lender to another, but will often be based on a percentage of the borrower's income, perhaps nor permitting a loan for which the payment would be more than say 25% or 30% of the borrower's income. length of the loan, value of the property, and the loan-to-value ratio will all influence this to some degree, as will the borrower's credit standing and history.</p>\n",
"score": 1
}
] |
[
"employment",
"loan"
] |
Is it legal to hijack online scammers accounts?
| 6 |
https://law.stackexchange.com/questions/13134/is-it-legal-to-hijack-online-scammers-accounts
|
CC BY-SA 4.0
|
<p>If someone were to start phishing scammers, hijacking their accounts and handing them over to the FBI, is there any protection for said vigilante?</p>
<p>I think there is some precedence for the <a href="https://en.wikipedia.org/wiki/Necessity" rel="nofollow noreferrer">necessity law</a> but for the life of me I can't find any information online. You always hear about people taking the fight back to criminals but one thing commonly left out in these articles is the legality.</p>
<p>So my direct question: Is there any certificate, law, license that one can get that protects their ability to hunt scammers, phish their accounts and hand over the information to the feds?</p>
<h1>Update</h1>
<p>Since this got migrated to law I will clarify some of the terms above.</p>
<p>When I say phish someones account I mean tricking the scammer into handing over their credentials. Usually this is done with a fake login page that is tied to the hacker's [good guy in this case] database. When the scammer types in their credentials they are handing over their username and password willingly. I don't doubt this is legal.</p>
<p>What I am asking is, if said hacker then uses these credentials to log into the scammers accounts, and changes all the passwords effectively locking the scammer out [hijacking]. Would the hacker be in violation of the computer fraud and abuse act, and therefore liable when they handed the accounts over to the FBI?</p>
| 13,134 |
[
{
"answer_id": 13140,
"body": "<p>No, it is not.</p>\n\n<p>Just as it is illegal to steal from a thief, it is illegal to hack a hacker.</p>\n\n<p>Criminals are often considered a good target for crimes from a practical standpoint, but crimes against criminals are still prosecuted. As criminals are unlikely to report crimes against them to the authorities (particularly when doing so runs the risk of them being arrested for <em>their</em> crimes), targeting them does tend to result in a lower risk of being caught by the authorities, but if the crime is discovered, it will generally be prosecuted all the same.</p>\n\n<p>To that point, <a href=\"http://www.forbes.com/sites/laurashin/2016/05/30/mystery-solved-6-6-million-bitcoin-theft-that-brought-down-dark-web-site-tied-to-2-florida-men/#16220def53bb\">two Florida men have recently been arrested and are being prosecuted for stealing millions of dollars in Bitcoins from an illegal, darkweb drug marketplace in 2013</a>, and there is always the more famous case of the <a href=\"http://arstechnica.com/tech-policy/2015/10/corrupt-silk-road-agent-carl-force-sentenced-to-78-months/\">two government agents who are in jail for stealing from the Silk Road</a>.</p>\n\n<p>In your specific example, if all you did was hand over the information to the FBI, it's less likely that you'd be prosecuted than if you did so for personal gain, but you would be at risk of prosecution for engaging in vigilante computer hacking, yes. Also consider that if your actions happened to interfere with an ongoing investigation or result in the inability to prosecute (say, for the evidence you gathered being tainted and inadmissible by your involvement), you could be charged with crimes such as obstruction of justice or interfering with a police investigation as well. </p>\n",
"score": 14
},
{
"answer_id": 13136,
"body": "<p>Law enforcement can do those things. You can't.</p>\n<p>The <a href=\"https://www.justice.gov/sites/default/files/criminal-ccips/legacy/2015/01/14/ccmanual.pdf\" rel=\"nofollow noreferrer\">Department of Justice publishes a manual on Prosecuting Computer Crimes</a>.</p>\n<blockquote>\n<p>Several provisions of the CFAA impose criminal liability on a defendant who, among other things, “exceeds authorized access” when accessing a computer. See 18 U.S.C. §§ 1030(a)(1), (a)(2), & (a)(4).</p>\n<p>[...]</p>\n<p>password protection is an implicit (and technological)\nlimit on access for otherwise authorized users who are not given the password.\nSee EF Cultural Travel BV v. Zefer Corp., 318 F.3d 58 (1st Cir. 2003).</p>\n</blockquote>\n<p>The DOJ recommends that you contact law enforcement if you suspect a crime has been committed:</p>\n<blockquote>\n<p>If at any point during the organization’s response or investigation it\nsuspects that the incident constitutes criminal activity, law enforcement should be contacted immediately.</p>\n</blockquote>\n<p>The DOJ says to not "hack back":</p>\n<blockquote>\n<p>Although it may be tempting to do so (especially if the attack is ongoing),\nthe company should not take any offensive measures on its own, such as\n“hacking back” into the attacker’s computer—even if such measures could in\ntheory be characterized as “defensive.” Doing so may be illegal, regardless of the motive.</p>\n</blockquote>\n",
"score": 5
}
] |
[
"internet",
"fraud",
"hacking"
] |
Does consuming a product in a shop count as theft, if the intent to pay for that product at checkout exists?
| 11 |
https://law.stackexchange.com/questions/87357/does-consuming-a-product-in-a-shop-count-as-theft-if-the-intent-to-pay-for-that
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CC BY-SA 4.0
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<p>I sometimes see this happen in supermarkets; parents of bored children will give them some non-specific snack while shopping or while standing in line to pay, and will then scan the wrapper of the item at the checkout and pay for it with the rest of their items.</p>
<p>While I understand that realistically it's unlikely that someone would be charged with a criminal offence for doing this, technically speaking, does this satisfy the definition of theft? As far as I'm aware, theft requires the perpetrator to</p>
<p>(1) take control of property, and</p>
<p>(2) intend to deprive the rightful owner of it.</p>
<p>This would seem to be satisfied in the example above, as once the product is consumed the rightful owner (the supermarket) is deprived of it. Does the intent to pay <em>eventually</em> make a difference to (2)?</p>
<p>Please assume that the intent to pay for the goods at checkout is not in dispute.</p>
| 87,357 |
[
{
"answer_id": 87362,
"body": "<p>It depends on whether one honestly believes that the supermarket would consent to them eating a snack before paying for it.</p>\n<p>If there is no consent, either explicit or implied, then it is theft as no contract has been performed or fulfilled so ownership hasn't transferred, as follows:</p>\n<p>Theft is defined by <a href=\"https://www.legislation.gov.uk/ukpga/1968/60/section/1?timeline=false\" rel=\"noreferrer\">section 1</a>Theft Act 1968 as:</p>\n<blockquote>\n<p>(1) A person is guilty of theft if he dishonestly 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>The two elements relevant here are "dishonestly" and "intention of permanently depriving".</p>\n<p><a href=\"https://www.legislation.gov.uk/ukpga/1968/60/section/2?timeline=false\" rel=\"noreferrer\">Section 2</a> offers three defences to being dishonest, with this being the only one applicable here:</p>\n<blockquote>\n<p>(1) A person’s appropriation of property belonging to another is not to be regarded as dishonest—</p>\n<p>...</p>\n<ul>\n<li>(b) if he appropriates the property <strong>in the belief that he would have the other’s consent</strong> if the other knew of the appropriation and the circumstances of it...</li>\n</ul>\n</blockquote>\n<p>The definition of intention to permanently deprive may be found at <a href=\"https://www.legislation.gov.uk/ukpga/1968/60/section/6?timeline=false\" rel=\"noreferrer\">section 6</a>:</p>\n<blockquote>\n<p>(1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having <strong>the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights</strong>...</p>\n</blockquote>\n<p>See this article by <a href=\"https://www.newsshopper.co.uk/news/18766027.supermarket-habit-illegal-uk/\" rel=\"noreferrer\">News Shopper</a> that explains it in a much better way than I could without me commiting plagiarism:</p>\n<blockquote>\n<p>Buying a product at the till is what transfers the ownership from the product belonging to the shopkeeper, to it belonging to you.</p>\n<p>And only when that sale is complete do you have the legal right to consume or use it.</p>\n<p>If you eat the chocolate before you legally own it, you are permanently depriving the owner of his right to the product – <strong>he can no longer refuse you the sale or take the item off the shelves.</strong></p>\n</blockquote>\n",
"score": 13
}
] |
[
"criminal-law",
"england-and-wales",
"theft"
] |
What is the shortest prison sentence ever given in the US?
| 1 |
https://law.stackexchange.com/questions/87346/what-is-the-shortest-prison-sentence-ever-given-in-the-us
|
CC BY-SA 4.0
|
<p>What is the shortest recorded prison or jail sentence in US history?</p>
| 87,346 |
[
{
"answer_id": 87348,
"body": "<p>Likely an extremely hard or impossible question to answer, and may very well be one that may, barely anyone would go to appeals for a sub-1 day sentence, and it searching superior court decisions is far from well-digitized, and there are over 3,000 counties in the U.S.. Since they generally have no binding effect on future cases there is no incentive in digitizing older cases at all. I would not be surprised if during the history of the U.S., certain courts would have lost their past records for example in fires, earthquakes or other acts of God, including of such cases that no one remembered at the time, and no other record existed of any more.</p>\n<p>If you're lucky, some historian may have <em>somehow</em> answered this question, and is somewhere as a trivia. Also, I have never heard a sentence to be expressed in hours, minutes or seconds, so likely the answer will be a single day which plausibly could have happened where other remedies were not appropriate (defendant not having money and incapacitated from being able to do community service or engage in labor or service in servitude per a sentencing).</p>\n<p><strong>UPDATED</strong> — There is record, in fact, of a 1906 case where a judge sentenced a man for 1 minute in jail for "being drunk and disorderly" "what was probably the lightest sentence ever given a prisoner, that of one minute in the county jail[;]" (<a href=\"https://blogs.sos.wa.gov/library/index.php/2013/10/the-one-minute-jail-sentence/\" rel=\"noreferrer\">The One Minute Jail Sentence</a>) but of course, even less than a 150 years in the existence of the Union, they could not assert that with certainty.</p>\n",
"score": 7
}
] |
[
"united-states",
"criminal-law",
"legal-history",
"sentencing",
"prison"
] |
Does the exclusionary rule attach to the illegality of the search or to the person whose rights were violated?
| 11 |
https://law.stackexchange.com/questions/87339/does-the-exclusionary-rule-attach-to-the-illegality-of-the-search-or-to-the-pers
|
CC BY-SA 4.0
|
<p>Police blatantly illegally searches Bob's house and finds very strong evidence that Bob and Rob independently committed a horrific crime each. A variation: the crime is the same and Bob and Rob committed it together.</p>
<p>Rob lives elsewhere and his rights, unlike Bob's, were not violated by the search.</p>
<p>Will Bob go free and Rob get prosecuted?</p>
| 87,339 |
[
{
"answer_id": 87340,
"body": "<p>In order to challenge a search at trial via an evidence suppression motion, the particular defendant has to have Fourth Amendment "standing"<sup>1</sup> with respect to that search: <em>Rakas v. Illinois</em>, <a href=\"https://supreme.justia.com/cases/federal/us/439/128/\" rel=\"nofollow noreferrer\">439 U.S. 128</a> (1978).</p>\n<p>From the <a href=\"https://en.wikipedia.org/wiki/Syllabus_(legal)\" rel=\"nofollow noreferrer\">syllabus</a>:</p>\n<blockquote>\n<p>Fourth Amendment rights are personal rights which ... may not be vicariously asserted ... a person aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed.</p>\n</blockquote>\n<p>Subject to the various exemptions to the exclusionary rule discussed <a href=\"https://law.stackexchange.com/q/87128/46948\">at this question</a>, the evidence in your scenario would not be admissible against Bob, but would be admissible against Rob. This does not necessarily mean that Bob would go free. As noted in that other question, if police/prosecution have other evidence, independently gathered, or sufficiently attenuated from the illegal search, they may still have a case against Bob.</p>\n<p>This also doesn't mean that an unconstitutional search of a person who will not even be prosecuted is without a remedy. See <a href=\"https://law.stackexchange.com/a/326/46948\">this answer</a> for a discussion of civil remedies available for a person who has suffered an unconstitutional search.</p>\n<hr />\n<p><sup>1. The Court has distanced itself from the term "standing" in this context, so I am using it somewhat colloquially as it is still in common usage in this sense. The Court instead just conceives of whether the defendent even experienced a Fourth Amendment search; the notion of <em>standing</em> is either redundant with or subsumed by such analysis.</sup></p>\n",
"score": 9
}
] |
[
"united-states",
"evidence",
"rules-of-evidence",
"fourth-amendment",
"admissibility"
] |
What is it about the SDNY that results in the phenomenon captured by the slang name "Sovereign District of New York"?
| 1 |
https://law.stackexchange.com/questions/87315/what-is-it-about-the-sdny-that-results-in-the-phenomenon-captured-by-the-slang-n
|
CC BY-SA 4.0
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<p>The SDNY seems to hear a lot of high-profile civil and criminal cases that many might argue verge on jurisdictional overreach or extraterritorial jurisdiction. In any case they certainly see a lot of "juicy" matters, and seem to be especially powerful as a branch of the judiciary, and to like to throw their weight around. What is it about this section of the court system that results in this peculiar phenomenon, captured in that it is widely referred to as the "Sovereign District of New York"?</p>
| 87,315 |
[
{
"answer_id": 87356,
"body": "<blockquote>\n<p>The SDNY seems to hear a lot of high-profile civil and criminal cases ... What is it about this section of the court system that results in this peculiar phenomenon, captured in that it is widely referred to as the "Sovereign District of New York"?</p>\n</blockquote>\n<p>There are a lot of people living and working in the SDNY, and a lot of them have a very high profile. Perhaps most critically, the district notably contains the center of the US financial sector. Here's the second paragraph of the district's <a href=\"https://en.wikipedia.org/wiki/United_States_District_Court_for_the_Southern_District_of_New_York\" rel=\"nofollow noreferrer\">Wikipedia article</a>:</p>\n<blockquote>\n<p>Because it covers Manhattan, the Southern District of New York has long been one of the most active and influential federal trial courts in the United States. It often has jurisdiction over America's largest financial institutions and prosecution of white-collar crime and other federal crimes. Because of its age and influence, it is sometimes colloquially called the "Mother Court" or the "Sovereign District of New York." The district has had several prominent judges on its bench, including Learned Hand, Michael Mukasey, and Sonia Sotomayor, and many of the U.S. Attorneys for the district have been prominent American legal and political figures, such as Elihu Root, Henry L. Stimson, Robert Morgenthau, Rudy Giuliani, James Comey, Michael J. Garcia, and Preet Bharara.</p>\n</blockquote>\n<p>As to the topic of extraterritorial jurisdiction, that is generally a feature of certain acts of congress. If any district court exceeds the authority granted to it by congress, it can be overruled by the appeals court (in this case, the second circuit) or the supreme court if the party harmed by the judicial overreach appeals the ruling.</p>\n",
"score": 3
}
] |
[
"united-states",
"new-york-state",
"new-york-city",
"judiciary",
"extraterritorial-jurisdiction"
] |
Is there legal precedent when there is no permission granted & a sibling enters your room? They were caught on camera
| 2 |
https://law.stackexchange.com/questions/87336/is-there-legal-precedent-when-there-is-no-permission-granted-a-sibling-enters
|
CC BY-SA 4.0
|
<p>I am interested to know if trespass will be considered if its a family member.</p>
<p>The door was closed & permission was not granted.</p>
<p>There was nothing wrong being done but they just enter & walk around the room.</p>
<p>Would there be legal precedent in Singapore to stop them from coming in?</p>
| 87,336 |
[
{
"answer_id": 87337,
"body": "<p>The applicable Singapore statute is:</p>\n<p><a href=\"https://sso.agc.gov.sg/Act/PC1871?ViewType=Within&Phrase=trespass&PageIndex=0&PageSize=20#:%7E:text=Punishment%20for%20criminal%20trespass%20Whoever,or%20with%20both.%20...\" rel=\"nofollow noreferrer\">Singapore Statute</a></p>\n<p>There it says:</p>\n<blockquote>\n<p>441 Criminal trespass ...Criminal trespass Whoever enters into or upon\nproperty in the possession of another with intent to commit an offence\nor to intimidate, insult or annoy any person in possession of such\nproperty, or having lawfully entered into or upon such property,\nunlawfully remains there with intent thereby to intimidate, insult or\nannoy any such person, or with intent to commit an offence, is said to\ncommit criminal trespass</p>\n</blockquote>\n<p>It seems highly unlikely that the local authorities would consider it trespass if it was done by another person lawfully in the property.</p>\n",
"score": 3
}
] |
[
"trespass",
"family",
"singapore"
] |
What legal actions can we take for website that doesn't remove PII upon requests?
| 3 |
https://law.stackexchange.com/questions/87109/what-legal-actions-can-we-take-for-website-that-doesnt-remove-pii-upon-requests
|
CC BY-SA 4.0
|
<p>A business directory listing website scraped old data for their listings. They use random contact information, personally identifiable information (PII), logos/banners to falsely represent those business listings and individuals.</p>
<p>That directory listing website presents itself as a self submission service but those listings are listed without owners permissions and valid contact information.</p>
<p>Simply, that directory listing website is just to generate impressions for ads revenue. The contact info stated on their website is invalid.</p>
<p>What legal actions can an individual take to have the listing that contains PII to be removed from such directory website? Does the use of random banners/logos to misrepresent those listings have any copyright infringement issues?</p>
<p>-- Added Info ---</p>
<ul>
<li><p>Based on a search, the directory website should be hosted at Deutschland.</p>
</li>
<li><p>It scraped data from all over the world. It has a very huge database of domains(active and expired) but most of the information is invalid.</p>
</li>
<li><p>It looks more like a bogus directory website than anything. The last edit of privacy policy was in early 2018 in which the operation is different from what it claims. The listed contact information is invalid too.</p>
</li>
</ul>
<p>Are there anything to be done in this scenario?</p>
| 87,109 |
[
{
"answer_id": 87354,
"body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"england-and-wales-container\">england-and-wales</a></p>\n<blockquote>\n<p>What legal actions can an individual take to have the listing that\ncontains PII to be removed from such directory website?</p>\n</blockquote>\n<p>You can take action under the <a href=\"https://uk-gdpr.org/\" rel=\"nofollow noreferrer\">UK GDPR</a>.</p>\n<p>Assumptions:</p>\n<ul>\n<li>The processing falls within the territorial scope in <a href=\"https://uk-gdpr.org/territorial-scope/\" rel=\"nofollow noreferrer\">Article 3</a>.</li>\n<li>The data falls within the definition of "personal data" under <a href=\"https://uk-gdpr.org/chapter-1-article-4/\" rel=\"nofollow noreferrer\">Article 4(1)</a>.</li>\n<li>The controller doesn't have any of the six lawful bases for processing the personal data under <a href=\"https://uk-gdpr.org/chapter-2-article-6/\" rel=\"nofollow noreferrer\">Article 6(1)</a>.</li>\n</ul>\n<p>In that case you have the right to require the controller to erase the data under <a href=\"https://uk-gdpr.org/chapter-3-article-17/\" rel=\"nofollow noreferrer\">Article 17</a>. <a href=\"https://uk-gdpr.org/chapter-3-article-12/\" rel=\"nofollow noreferrer\">Article 12</a> contains details of how controllers must handle such requests.</p>\n<p>The request would most likely be made under Article 17(1)(d) i.e. that the controller never had a lawful basis to process the data in the first place. Alternatives include Article 17(1)(a) (the controller had a lawful basis but the processing is no longer necessary under that basis) or Article 17(1)(b) (the only lawful basis was consent and you are withdrawing your consent).</p>\n<p>Under Article 12(3) the following deadlines apply for the controller to action your request:</p>\n<ol>\n<li>The controller must <em>always</em> action it <em>without undue delay</em>.</li>\n<li>Even if the controller can justify a delay, there is an upper time limit of 1 month.</li>\n<li>That can be extended to 2 months for complex requests provided that you are notified within 1 month.</li>\n<li>The clock can be paused under Article 12(6) if the controller has reasonable doubts about your identity and requests further information from you.</li>\n</ol>\n<p>After the applicable deadline has passed, you have two options:</p>\n<ol>\n<li><p>Complain to the regulator under <a href=\"https://uk-gdpr.org/chapter-8-article-77/\" rel=\"nofollow noreferrer\">Article 77</a>. In the UK the regulator is the ICO and you can make a complaint <a href=\"https://ico.org.uk/make-a-complaint\" rel=\"nofollow noreferrer\">here</a>. Under <a href=\"https://uk-gdpr.org/chapter-6-article-58/\" rel=\"nofollow noreferrer\">Article 58</a>, the ICO can, among other powers, order the controller to erase the data. It can also impose a fine of up to £17,500,000 or 4% of annual turnover under <a href=\"https://uk-gdpr.org/chapter-8-article-83/\" rel=\"nofollow noreferrer\">Article 83(5)</a>. Complaining to the ICO is often preferred as it is free and without risk to the complainant.</p>\n</li>\n<li><p>Seek an injunction in the courts under <a href=\"https://uk-gdpr.org/chapter-8-article-79/\" rel=\"nofollow noreferrer\">Article 79</a>. That is done by applying to the County Court for a compliance order under Sections <a href=\"https://www.legislation.gov.uk/ukpga/2018/12/section/167\" rel=\"nofollow noreferrer\">167</a> and <a href=\"https://www.legislation.gov.uk/ukpga/2018/12/section/180\" rel=\"nofollow noreferrer\">180(1)(a)</a> of the Data Protection Act 2018. If you go down this route you will have to pay court fees which you may not recover if you lose. You may also risk paying the other party's costs.</p>\n</li>\n</ol>\n<p>Very similar rules apply to the EU. The main difference is that you need to look at the <a href=\"https://gdpr-info.eu/\" rel=\"nofollow noreferrer\">EU GDPR</a> instead of the UK GDPR.</p>\n",
"score": 1
}
] |
[
"copyright",
"internet",
"data-protection",
"personal-information"
] |
Taxed in Spain due to COVID overstay?
| 5 |
https://law.stackexchange.com/questions/87349/taxed-in-spain-due-to-covid-overstay
|
CC BY-SA 4.0
|
<p>Someone on Facebook claimed that tourists who were unable to leave Spain due to COVID were declared tax residents if their stay was over 183 days. I haven't been able to find such a case in a web search, but that's not a refutation, since the search terms required appear in thousands of unrelated pages.</p>
<p>I would appreciate a citation if someone is aware of a specific case of a visa-exempt 90/180 tourist without padrón being taxed by Spain due to an overstay caused by COVID restrictions. Or other overstay. (Income tax, not fines for the overstay.)</p>
<p>Padrón is the registration of address required within thirty days of arrival if you are on a visa that implies intention for permanent or temporary residence.</p>
<p>UPDATE: This looks pertinent: <a href="https://www.surinenglish.com/local/202010/02/concern-month-obligation-ruling-20201002104434-v.html" rel="noreferrer">https://www.surinenglish.com/local/202010/02/concern-month-obligation-ruling-20201002104434-v.html</a> but it doesn't say they were actually taxed, and they are Lebanese, who aren't 90/180 visa-exempt. It also refers to "second-home owners," so it's too vague to really answer my question.</p>
| 87,349 |
[
{
"answer_id": 87351,
"body": "<p>Your link points to an article published in October 2020.</p>\n<p>More recent articles (May, July 2021) points out that the <strong>Spanish Directorate General of Taxes (DGT)</strong>, since April 2021, accepts the OECD recommendations, where when a <strong>double taxation agreement</strong> (DTA) exists, to make an exception to the 183 days rule for those who were forced to stay due to the lockdown (being a <strong>force majeure</strong> situation).</p>\n<hr />\n<blockquote>\n<p><a href=\"https://lex.ahk.es/de/aktuelles-recht/steuerwohnsitz-zeiten-von-covid-19\" rel=\"noreferrer\">2021-05-31: Steuerwohnsitz in Zeiten von COVID-19 | LEX | Das deutsch-spanische Rechtsportal</a><br />\n<strong>Welche Haltung hat die spanische Generaldirektion für Steuern (DGT) eingenommen?</strong><br />\n...<br />\nDie OECD-Empfehlungen scheinen bei der Auslegung der DGT nicht berücksichtigt worden zu sein. Es handelt sich jedoch um Staatsbürger des Libanon - ein Staat, mit dem es kein DBA mit Spanien gibt und der nach unserer Gesetzgebung sogar als Steueroase gilt.</p>\n<p>Im April hat die DGT ein Urteil bezüglich derjenigen Personen erlassen, die sich während des Alarmzustands zwangsweise in unserem Land aufhielten, und sich den Empfehlungen der OECD angeschlossen. Aufgrund der in Artikel 4.2 des DBA festgelegten Kriterien ist es unwahrscheinlich, dass in solchen Fällen die betroffenen Personen letztlich als in Spanien und nicht in dem anderen Staat ansässig gelten, so dass der Konflikt der Doppelansässigkeit gelöst werden kann.</p>\n<blockquote>\n<p><strong>What is the position of the Spanish Directorate General of Taxes (DGT)?</strong><br />\n...<br />\nThe OECD recommendations do not appear to have been taken into account when interpreting the DGT. However, they are citizens of Lebanon - a state with which there is no DTA with Spain and which, according to our legislation, is even considered a tax haven.</p>\n<p>In April, the DGT issued a verdict on those who were forced to stay in our country during the state of alarm, following the recommendations of the OECD. Based on the criteria set out in Article 4.2 of the DTA, it is unlikely that in such cases the persons concerned will ultimately be deemed to be residents of Spain and not of the other country, so that the dual residency conflict can be resolved.</p>\n</blockquote>\n</blockquote>\n<blockquote>\n<p><a href=\"https://www.mallorcazeitung.es/behoerden/2021/07/28/mallorca-lockdown-ohne-effekt-auf-steuern-55309970.html\" rel=\"noreferrer\">2021-07-28: Lockdown von 2020 ohne Auswirkungen auf Steuern - Mallorca Zeitung</a><br />\nJetzt hat sich die Generaldirektion für Steuerfragen in Spanien – auch nach negativer Presse zu dem genannten Fall – noch einmal zu Wort gemeldet und erklärt, <strong>man werde die Empfehlungen der OECD akzeptieren</strong> und bei Bürgern aus Ländern, <strong>mit denen ein Doppelbesteuerungsabkommen besteht</strong>, nicht auf eine Steuerpflichtigkeit in Spanien bestehen, selbst wenn die Person sich aufgrund des Lockdowns mehr als 183 Tage im Land aufgehalten haben sollte.</p>\n<blockquote>\n<p>Now the General Directorate for Tax Issues in Spain - even after negative press on the case mentioned - has spoken out again and declared that <strong>they will accept the recommendations of the OECD</strong> and, in the case of citizens from countries <strong>with which there is a double taxation agreement</strong>, not on one Tax liability in Spain exists even if the person has stayed in the country for more than 183 days due to the lockdown.</p>\n</blockquote>\n</blockquote>\n<hr />\n<p><strong>Sources</strong>:</p>\n<ul>\n<li><a href=\"https://lex.ahk.es/de/aktuelles-recht/steuerwohnsitz-zeiten-von-covid-19\" rel=\"noreferrer\">2021-05-31: Steuerwohnsitz in Zeiten von COVID-19 | LEX | Das deutsch-spanische Rechtsportal</a> (in Germann)\n<ul>\n<li><a href=\"https://www.mallorcazeitung.es/behoerden/2021/07/28/mallorca-lockdown-ohne-effekt-auf-steuern-55309970.html\" rel=\"noreferrer\">2021-07-28: Lockdown von 2020 ohne Auswirkungen auf Steuern - Mallorca Zeitung</a> (in Germann)</li>\n</ul>\n</li>\n</ul>\n",
"score": 8
}
] |
[
"tax-law",
"covid-19",
"travel",
"spain"
] |
Can you transfer a Windows license from hardware to a VM running on the hardware?
| 3 |
https://law.stackexchange.com/questions/82404/can-you-transfer-a-windows-license-from-hardware-to-a-vm-running-on-the-hardware
|
CC BY-SA 4.0
|
<p>I bought a computer with Windows, and I am currently dual-booting Windows and Linux. I would like to remove Windows from the computer itself and install it in a virtual machine (VM) in Linux using the OEM activation key. Is this legal?</p>
| 82,404 |
[
{
"answer_id": 82407,
"body": "<p>It is, if the terms of the license allow you to do so. That means (1) it is not categorically illegal to transfer software to a new machine (in any sense of "machine") and (2) it is not universally allowed. OEM licenses are not generally transferable to a "new machine", and there are technical aspects that prevent you from illegally transferring the OS from one machine to another. It would also be illegal to thwart those technological safeguards that prevent copying without permission (infringement).</p>\n<p>The license terms might not be crystal clear as to what constitutes "the machine" for which the license is valid. I assume that you didn't change the motherboard. Then the question would be, what clause in the license agreement clearly forbids installing Windows on a virtual machine under another operating system? <a href=\"https://www.microsoft.com/en-us/Useterms/OEM/Windows/10/UseTerms_OEM_Windows_10_English.htm\" rel=\"nofollow noreferrer\">This version</a> of the license does not appear to impose any restrictions on installation under a virtual machine, other that the requirement to install on only <em>one</em> virtual machine.</p>\n",
"score": 1
}
] |
[
"united-states",
"copyright",
"software"
] |
In a defamation case, can the defendant not prove statement to be true and still win the case?
| 10 |
https://law.stackexchange.com/questions/87249/in-a-defamation-case-can-the-defendant-not-prove-statement-to-be-true-and-still
|
CC BY-SA 4.0
|
<p>A male celebrity has said to a tabloid newspaper he slept with a female celebrity when they worked in a production few years ago. The female celeb is now suing him for defamation as she says that this is false; she never slept with him.</p>
<p>If the male celebrity decided to say he can't remember the specifics for example where and when this alleged encounter happened, is that enough of a defence for the male celebrity or does he have to provide specifics of encounter to win this case.</p>
| 87,249 |
[
{
"answer_id": 87253,
"body": "<p>There are a variety of reasons someone might not win a defamation case, some of which are defenses, and others of which are part of the basic prima facie case that every person pursing a claim must establish. The exact details vary significantly from jurisdiction to jurisdiction.</p>\n<ol>\n<li><p>The statute of limitations for bringing suit based upon the alleged statement has passed. Many jurisdictions have especially short statutes of limitations for defamation claims. For example, in Colorado, the statute of limitations for a defamation claim is just one year, while other civil claims have two to six year statutes of limitations.</p>\n</li>\n<li><p>The quoted statement isn't actually what was said.</p>\n</li>\n<li><p>The statement is not defamatory in nature (i.e. it doesn't tend to harm the Plaintiff's reputation).</p>\n</li>\n<li><p>The Plaintiff's reputation is so bad that no further statement could harm it.</p>\n</li>\n<li><p>The court lacks jurisdiction over the claim or the case is filed in the wrong venue.</p>\n</li>\n<li><p>The statement was substantially true. Note that this is not a defense to all types of claims called defamation in all jurisdictions. Some jurisdictions prohibit certain kinds of inflammatory negative statements (e.g. about religious figures, monarchs, dead people, family members, or disabled people) without regard to their truth, in causes of action that are seen as a subset of defamation actions. For example, Germany's criminal defamation statute prohibits some kinds of speech that would be considered insulting or "fighting words", effectively imposing a standing of civility in every day contexts, that applies without regard to truth. U.S. law carefully distinguishes between remedies for fraudulent lies about someone, statements that are objectionable because they implicate privacy concerns, statements that are objectionable because a person has a contractual or particularized legal duty not to say negative things about a particular individual, and statements that are disrespectful and disorderly, but not all jurisdictions draw these careful and fine lines.</p>\n</li>\n<li><p>In context, the statement could not reasonably have been understood to be true as opposed to puffing, hyperbole, or an opinion.</p>\n</li>\n<li><p>Failure to prove damages in jurisdictions where this is required on claims where it is required (proof of damages is not required for libel or slander per se in some jurisdictions). Some jurisdictions allow only economic damages, others allow emotional harm damages, others allow punitive damages, some allow statutory damages, and some allow some but not all of these kinds of damages.</p>\n</li>\n<li><p>The statement is privileged or subject to a qualified privilege (e.g. statements made to law enforcement investigators, by attorneys in litigation, in court documents, by legislators in legislative debate, etc.)</p>\n</li>\n<li><p>The statement was false but believed in good faith and with a reasonable basis to be true at the time, and at the time of the litigation, the person making the statement acknowledges its inaccuracies or a sense in which a statement meant as true could be misunderstood.</p>\n</li>\n<li><p>Some jurisdictions make retraction of full defense or a partial defense. Some jurisdictions even make a request for a retraction a condition precedent to bringing a defamation lawsuit in some circumstances.</p>\n</li>\n<li><p>The person bringing the lawsuit doesn't meet their burden of proof at trial. Usually, the burden of proof is on the person making the claim, but truth is sometimes considered an affirmative defense which some jurisdictions place on the defendant to prove. The burden of proof could be quite relevant to the answer. Ultimately, if truth is an issue in a case, the finder of fact (jury or judge depending upon the jurisdiction and whether a jury is demanded) would have to decide what evidence is sufficient. There is no black and white rule that applies.</p>\n</li>\n</ol>\n",
"score": 22
},
{
"answer_id": 87252,
"body": "<blockquote>\n<p>does he have to provide specifics of encounter to win this case.</p>\n</blockquote>\n<p>Providing specifics is not decisive. I will assume you have in mind a jurisdiction in the US.</p>\n<p>Since the plaintiff is a celebrity, under US defamation law she would be considered <em>public person</em>. This requires her to prove that any false statements were made with <em>actual malice</em>, which is the term for denoting that those statements were made (1) with knowledge that they were false, or (2) with reckless disregard of whether they were true.</p>\n<p>The matter also involves issues of parties' credibility. A defendant might provide plenty of specifics and still fail to persuade the fact-finder (typically the jury) that the statements are true. Conversely, a defendant is likely to prevail over a plaintiff who is known as liar or gives inconsistent testimony.</p>\n<p>A plaintiff whose reputation (in this case, on matters of chastity vs. promiscuity) prior to the defamatory statements is bad enough would be considered "defamation-proof", implying that the defendant's statements cannot significantly worsen the plaintiff's reputation.</p>\n<p>The import or context of the statements might outweigh the sexual connotation that is typically associated with the expression "<em>slept with X</em>". In that case, the statements, even if false and defamatory, they would not be <em>defamatory per se</em>. This means that the plaintiff would have to prove that the defamatory statements caused her a particular harm (the term for that is <em>special damages</em>).</p>\n",
"score": 10
},
{
"answer_id": 87338,
"body": "<p>[united-states]</p>\n<p>Your case contradicts your title somewhat, because the rules change significantly when the defamation is about sexual virtue.</p>\n<h2><em>Defamation per se</em> doesn't need to be proven</h2>\n<p>There is a special word for the case when the defamation is so inherently offensive that it offends general sensibilities. Calling someone a child molester is a contemporary example, but the classical textbook example was attacking the virtue of a respectable woman. Your example is dead-nuts on point there.</p>\n<p>But of course, times have changed and that is no longer doom to a woman's social prospects.</p>\n<h2>There has to be a reputation <em>to harm</em>, though.</h2>\n<p>One defense against defamation is that the defamation didn't actually harm the person's reputation <strong>because that person did not have any reputation</strong>.</p>\n<p>So the keystone of the actress's defamation claim was "the possession of a reputation prior to defendant's statement".</p>\n<p>This could be complicated. I can think of one particular actress-singer who is an empowered feminist icon, who poses nude and is openly promiscuous... loved by liberals and whose marketability turns on that. That person would be greatly harmed by a claim from an openly misogynistic arch-conservative.</p>\n",
"score": 1
}
] |
[
"defamation"
] |
What are the trade-offs involved in accepting an offer to contract that would combine an installment payment and service fee?
| 0 |
https://law.stackexchange.com/questions/87326/what-are-the-trade-offs-involved-in-accepting-an-offer-to-contract-that-would-co
|
CC BY-SA 4.0
|
<p>Let's say someone purchased an item on an instalment payment plan from a company. They also subscribed to their services. The instalment scheme is separated from the monthly service fee. That means every month they pay for the service fee and the instalment for the item separately.</p>
<p>For e.g, the item costs $5000 with a monthly payment plan of $500. The service fee is $25 per month and is a pay-as-you-go service. The terms are that the customer can switch service providers anytime. They can use the item elsewhere too. There is no vendor lock-in.</p>
<p>Assume, for some reason, the company dropped the installment scheme and offered to have the balanced amount included as the monthly service fee instead. The customer can continue to make the monthly payment as usual but as a service fee.</p>
<p>It seems unaffected on the surface but I reckon service and the instalment payment plans are two independent contract terms.</p>
<p><strong>What is the downside/upside to the customer accepting this offer to change the terms?</strong></p>
<p>---- Added Info -----<br />
Thank you for editing my post and rephrased the question with more clarity.</p>
<p>I understand it depends on the actual contract terms. I asked the question on the assumption that contracts have to work within stipulated guidelines to be valid. And based on the nature of the contracts, what are the tradeoffs one should be concerned with?</p>
| 87,326 |
[
{
"answer_id": 87327,
"body": "<h2>Contracts can always be renegotiated</h2>\n<p>What appears to be happening here is that 2 contracts - one for payment for equipment and the other for payment for a service - will be replaced with one contract paying for both.</p>\n<p>Whether this is better or worse for either party depends on the terms before and after and their assessment of those to their needs.</p>\n",
"score": 1
},
{
"answer_id": 87328,
"body": "<p>Contracts bind the parties; parties can also agree to modify a contract.</p>\n<p>It appears that before the offer, there were two separate payments. If the offer is accepted, there will be a single payment.</p>\n<p>We can't know all of the trade-offs without knowing the terms of the contract. And it is of course not possible to assess whether any of these things are upsides or downsides without knowing the customer's particular preferences.</p>\n",
"score": 0
}
] |
[
"contract-law",
"terms-of-service",
"payment",
"sale-of-goods"
] |
What does HHJ stand for?
| -1 |
https://law.stackexchange.com/questions/87332/what-does-hhj-stand-for
|
CC BY-SA 4.0
|
<p>I have seen many explanatory materials of judicial titles recommend this abbreviation to be used in certain contexts, but none which explain what it is itself short for. What does it mean?</p>
| 87,332 |
[
{
"answer_id": 87333,
"body": "<p>HHJ stands for <a href=\"https://en.wikipedia.org/wiki/Honour_(style)\" rel=\"nofollow noreferrer\">Her Honour Judge</a> or <a href=\"https://en.wikipedia.org/wiki/Honour_(style)\" rel=\"nofollow noreferrer\">His Honour Judge</a>. See an example usage <a href=\"https://www.nuffieldfjo.org.uk/events/in-conversation-with-hhj-carole-burgher\" rel=\"nofollow noreferrer\">here</a>:</p>\n<blockquote>\n<p>Join us as we talk to Her Honour Judge (HHJ) Carole Burgher about...</p>\n</blockquote>\n",
"score": 1
}
] |
[
"legal-terms"
] |
Is there criminal or civil liability for sabotaging or lying about the use of contraception, which then results in a pregnancy?
| 19 |
https://law.stackexchange.com/questions/87237/is-there-criminal-or-civil-liability-for-sabotaging-or-lying-about-the-use-of-co
|
CC BY-SA 4.0
|
<p>Alice and Bob, both unmarried adults, engage in consensual intercourse. Alice lies to Bob about her use of contraception or sabotages Bob's use of contraception, and as a result, Alice becomes pregnant.</p>
<p>Alternatively, Bob and Alice, both unmarried adults, engage in consensual intercourse. Bob lies to Alice about his use of contraception or sabotages Alice's use of contraception, and as a result, Alice becomes pregnant.</p>
<p>In either case, could there be any criminal or civil liability? <strong>I'm not talking about child support or any custody issues.</strong></p>
<p>Any jurisdiction.</p>
| 87,237 |
[
{
"answer_id": 87238,
"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> <a href=\"/questions/tagged/criminal-law\" class=\"post-tag\" title=\"show questions tagged 'criminal-law'\" aria-label=\"show questions tagged 'criminal-law'\" rel=\"tag\" aria-labelledby=\"criminal-law-container\">criminal-law</a></p>\n<p>These acts could be sexual assault. Pregnancy is irrelevant to the analysis.</p>\n<h3>Deviating from the sexual activity consented to</h3>\n<p>A majority of the Supreme Court of Canada, in <em>R. v. Kirkpatrick</em>, <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/19458/index.do\" rel=\"nofollow noreferrer\">2022 SCC 33</a>, in the context of a sexual assault charge, held that where birth control measures "change the physical act itself, like condom use" they are part of the "sexual activity in question" that is being consented to. Deviation from that activity is stepping outside of the consent.</p>\n<p>For the majority, birth control measures can very well change the physical act and can be a condition of a complainant's consent. In <em>Kirkpatrick</em> the issue was condom use, but the language the majority used was "birth control measures." Whether birth control measures are in fact alter the physical act to which consent is granted in particular circumstances depends on the facts of the scenario. See para. 100.</p>\n<p>What matters is whether the method of birth control changes the physical nature of the act (not whether the purpose was to prevent pregnancy) and whether consent was conditioned on that. So methods like diaphragms, condoms (penile and vaginal variants), and other barrier methods are all probably relevant.</p>\n<h3>Consent vitiated by fraud</h3>\n<p>There is an alternate path to sexual assault: if the consent was vitiated by "deceptions about the conditions or qualities of the physical act." See <em>R. v. Hutchinson</em>, <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13511/index.do\" rel=\"nofollow noreferrer\">2014 SCC 19</a>. Deceptions that deprive a person from the choice not to become pregnant, or exposing a person to an increased risk of becoming pregnant, or exposing a person to a significant risk of bodily harm such as a risk of contracting sexually transmitted diseases can all vitiate consent.</p>\n<p>This path to sexual assault is not as straightforward as the path described above from <em>Kirkpatrick</em>, as it requires a showing of dishonesty, which can include non‑disclosure of important facts, and a risk of serious bodily harm (<em>R. v. Cuerrier</em>, <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1646/index.do\" rel=\"nofollow noreferrer\">[1998] 2 S.C.R. 371</a>).</p>\n<p>At least one court has said this reasoning does not apply when a person falsely represents that they are taking a birth control pill and then gets pregnant (<em>PP v. DD</em>, <a href=\"https://canlii.ca/t/h03wd\" rel=\"nofollow noreferrer\">2017 ONCA 180</a>). This was in the context of a civil claim for sexual battery, but the court considered the reasoning from <em>Cuerrier</em> and found it was not analogous because the deceit had "no physically injurious consequences" for the plaintiff. The court recognized the consequences of a person having to support a child, but in the context of a wrong based on physical contact, what matters is physical damage.</p>\n<blockquote>\n<p>the appellant's alleged damage is principally emotional harm or, in other words, hurt feelings and lost aspirations and/or career opportunities flowing from the birth of his child. His situation, as a man, is quite different from that of the woman. Clearly, there are profound physical and psychological effects on a mother undergoing a pregnancy that do not apply to the father of the child. The appellant was not exposed to any serious transmissible disease or other significant risk of serious bodily harm flowing from the intercourse. Moreover, it is noteworthy that the appellant was willing to assume some risk, albeit small, that pregnancy would result from the several instances of sexual intercourse, a risk present even where the woman is taking contraceptive pills.</p>\n</blockquote>\n",
"score": 21
},
{
"answer_id": 87239,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"united-states-container\">united-states</a></p>\n<blockquote>\n<p>In either case, could there be any criminal or civil liability?</p>\n</blockquote>\n<p>No.</p>\n<p>Not in any U.S. jurisdiction of which I am aware. One or two states (including California) have recently considered passing laws to that effect, but to the best of my knowledge they have not done so.</p>\n<p>The <a href=\"https://law.stackexchange.com/a/87288/9517\">answer to this question from user48216</a> provides a good law journal reference to support this assertion.</p>\n",
"score": 11
},
{
"answer_id": 87288,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"united-states-container\">united-states</a></p>\n<p>In the United States, there apparently is neither criminal nor civil liability in such circumstances.</p>\n<blockquote>\n<p>Cases of sexual deceit resulting in an unwanted pregnancy have not received sympathetic treatment in the courtrooms. While New Mexico has no earlier cases on point, several other states have addressed this issue and have unanimously rejected these claims. Those rulings involving individuals who fraudulently or negligently misrepresent whether the individual is using birth control are premised on two overriding policy concerns.</p>\n</blockquote>\n<p>"<a href=\"https://core.ac.uk/download/pdf/151603997.pdf\" rel=\"noreferrer\">Tort Law: Tort Liability When Fraudulent Misrepresentation Regarding Birth Control Results in the Birth of a Healthy Child - Wallis v. Smith</a>",\nBrenda Saiz, <em>New Mexico Law Review</em> Volume 32, Issue 3, Summer 2002 (page 550)</p>\n<p>The first concern Saiz describes is that allowing such claims is not considered in the benefit of the child. The second concern is that of privacy.</p>\n",
"score": 9
}
] |
[
"criminal-law",
"civil-law",
"sexual-assault"
] |
Can a website Demand acceptance of non-essential cookies to allow free access?
| 7 |
https://law.stackexchange.com/questions/87318/can-a-website-demand-acceptance-of-non-essential-cookies-to-allow-free-access
|
CC BY-SA 4.0
|
<p>I have experienced several times now that sites require payment if you do not accept non-essential cookies. My reading of the relevant legislation (from the EU - I have not browsed the Californian legilation) indicates that I, as a consumer, should be allowed to refuse cookies that I do not want to accept.</p>
<p>Is it legal for them to block access and require payment? (I am not blocking ads - just saying that they cannot target ads to me. I cannot comprehend how me not allowing them to save a cookie would make them try to block my access)</p>
<p>Just to clarify: I am aware that collection of demographic data can be important to ensure that your content and ad campaigns are relevant to visitors. My concern however is that I don't see how I have to accept to be tracked more than strictly necessary to read their site - this is cookies, not blocking ads!</p>
<p>The types of sites have always been news sites.</p>
<p>I have read <a href="https://law.stackexchange.com/questions/85524/is-consent-required-for-paying-corporate-subscribers-of-a-b2b-website">this</a> answer and I don't feel that it has sufficiently answered the question I have.</p>
| 87,318 |
[
{
"answer_id": 87323,
"body": "<p>Your title is not necessarily consistent with your example.</p>\n<blockquote>\n<p>Can a website demand acceptance of non-essential cookies to allow access?</p>\n</blockquote>\n<p>As you have found, GDPR prohibits conditioning the provision of service on consent to the processing of personal data. Cookie walls <em>without alternative means of access</em> are generally considered violations of the GDPR.</p>\n<blockquote>\n<p>Can a website demand acceptance of non-essential cookies to allow <em>free</em> access?</p>\n</blockquote>\n<p>The situation of a "consent or pay" scheme (or "cookie paywalls") is more uncertain and has not been clearly settled at the EU level. There are data protection authorities that do not consider such scheme necessarily a GDPR violation (<a href=\"https://www.ris.bka.gv.at/JudikaturEntscheidung.wxe?Abfrage=Dsk&Dokumentnummer=DSBT_20181130_DSB_D122_931_0003_DSB_2018_00&ShowPrintPreview=True\" rel=\"noreferrer\">Austria</a>, <a href=\"https://www.cnil.fr/fr/cookies-et-autres-traceurs/regles/cookie-walls/la-cnil-publie-des-premiers-criteres-devaluation\" rel=\"noreferrer\">France</a>) if a reasonable alternative access, without requiring non-essential cookies, is provided. For what it is worth, the French data protection authority (CNIL) held initially that all cookie walls are illegal, but on appeal from publishers and advertisers, the French supreme administrative court annulled CNIL's initial guidelines for being too absolute.</p>\n<p>German and Italian authorities are still examining the validity of such scheme.</p>\n<p>More reading:</p>\n<ul>\n<li>Consent or Pay: Privacy Considerations with Cookiewall-Paywall Hybrid Solution, <a href=\"https://securiti.ai/blog/cookie-paywall/\" rel=\"noreferrer\">https://securiti.ai/blog/cookie-paywall/</a></li>\n<li>Is the use of a cookie wall allowed in European Countries, <a href=\"https://www.iubenda.com/en/help/24487-cookie-walls-gdpr\" rel=\"noreferrer\">https://www.iubenda.com/en/help/24487-cookie-walls-gdpr</a></li>\n</ul>\n",
"score": 14
}
] |
[
"european-union",
"cookies"
] |
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