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Do school zone knife exclusions violate the 14th Amendment?
| 7 |
https://law.stackexchange.com/questions/86982/do-school-zone-knife-exclusions-violate-the-14th-amendment
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CC BY-SA 4.0
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<p>In the US, most if not all states have some kind of law(s) in place that prohibit the carrying of knives in school zones. While most states define a knife as a weapon by edge length, I can not find any legal definition of what constitutes an edge or what constitutes a knife as a weapon in regards to school zones.</p>
<p>Many things that some people may call a knife are not weapons at all such as palette knives, butter knives, oyster knives, etc. Palette knives are even required school supplies for many schools that have an art program.</p>
<p>Then there are things that look like knives, like nail files, letter openers, etc., which are not called knives, have no cutting edge, but which I've heard of people getting in trouble for purely on the grounds that they "look like knives".</p>
<p>There are also many tools that have an edge sharp enough to potentially cut or stab but not things that people would call a knife, like keys, chisels, box openers, saws, screwdrivers, etc. Many of these tools are allowed on school property by maintenance personnel and are required class materials in certain courses like wood-working, and keys are literally carried by everyone who drives into or through a school zone.</p>
<p>Then there are also "blunted weapons". "Wall-hangers" are decorative swords, daggers, etc. that look like they could be real weapons, but are blunted for safety, and so have no effective cutting or stabbing edges. Similarly, a fencing rapier also looks like a full length sword, but has been blunted and is required equipment on school campuses that have fencing teams.</p>
<p>On top of all of this, a handful of states, such as Louisiana, don't even have edge length restrictions that differentiate a short-bladed "tool" from a long bladed "weapon".</p>
<p>So the question is: with all the ambiguity and exceptions, are there any rulings in place that would allow a reasonable person of at least average intelligence to determine what constitutes the crime, and if not, could knife restrictions in school zones be considered <a href="https://dictionary.law.com/Default.aspx?selected=2228" rel="noreferrer">void for vagueness</a> under the 14th Amendment?</p>
| 86,982 |
[
{
"answer_id": 86987,
"body": "<p>School administrators have the right to try to express the law in seemingly simpler language, but they do not have the right to enforce their misstatements of the law. <a href=\"https://legis.la.gov/legis/Law.aspx?d=78741\" rel=\"noreferrer\">The law of Louisiana</a> does not refer to knives at all</p>\n<blockquote>\n<p>Carrying a firearm, or dangerous weapon as defined in <a href=\"https://legis.la.gov/Legis/Law.aspx?d=78337\" rel=\"noreferrer\">R.S. 14:2</a>,\nby a student or nonstudent on school property, at a school sponsored\nfunction, or in a firearm-free zone is unlawful...</p>\n</blockquote>\n<p>"Dangerous weapon" is defined so that it "includes any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm". The law does not exhaustively list the things that count as firearms or dangerous weapons, so every individual is held responsible for knowing what the courts have held to constitute "dangerous weapons". A novice interpretation (not relying on case law) might lead to the conclusion that a speargun is not a "dangerous weapon" (perhaps on the theory that it is used underwater to spear fish), but a reasonable interpretation of "dangerous weapon" suggests that it is a dangerous weapon because it can be used to kill a person. The same is true of a pencil, as well as a dog.</p>\n<p>You can turn to <a href=\"https://www.animallaw.info/article/jaws-bite-claws-snatch\" rel=\"noreferrer\">this article</a> for an example of the dangerous weapon status of a dog, a propos <a href=\"https://casetext.com/case/state-v-michels-1\" rel=\"noreferrer\">Louisiana v. Michels</a>, where defendant was "armed with a dangerous weapon". That court recited previous case law to the effect that</p>\n<blockquote>\n<p>"the dangerousness of the instrumentality because of its use is a\nfactual question for the jury" State v. Munoz, 575 So.2d 848, 850</p>\n</blockquote>\n<p>RX 14:3 also states that</p>\n<blockquote>\n<p>The articles of this Code cannot be extended by analogy so as to\ncreate crimes not provided for herein; however, in order to promote\njustice and to effect the objects of the law, all of its provisions\nshall be given a genuine construction, according to the fair import of\ntheir words, taken in their usual sense, in connection with the\ncontext, and with reference to the purpose of the provision</p>\n</blockquote>\n<p>which means that if faced with a novel application (dog, pencil, or speargun), the jury can decide based on "context and purpose", not just narrow words. The article points to a law review article by a lawyer involved in the 1942 codification of Louisiana criminal law that "the code was to be read as a civilian document, not a mere compilation of common law rules", thus the code is shorter and uses plain language.</p>\n<p>The article then reviews a number of previous rulings on the scope of "dangerous weapon", starting with <a href=\"https://casetext.com/case/state-v-calvin-4\" rel=\"noreferrer\">Louisiana v. Calvin</a> where it was ruled that teeth and fists are not dangerous weapons, even though you can kill a person with your fists. It therefore turns out that a "dangerous weapon" must be an inanimate object, under Louisiana law.</p>\n<p>A knife <em>can</em> be found to be a dangerous weapon, as reported in <a href=\"https://www.ca5.uscourts.gov/opinions/pub/12/12-41425-CR0.pdf\" rel=\"noreferrer\">this opinion</a> (deportation dependent on a prior criminal conviction for felony aggravated battery, specifically referring to R.S. 14.2(3) and deeming a knife to be a dangerous weapon). Since that conviction is no being appealed at the state level, details of the knife-usage are omitted, so all we know is that a knife was used.</p>\n<p>Insofar as box cutters were the essential weapons that brought about the airplane hijackings on 9/11, it is not unreasonable to at least consider that they are within the scope of "dangerous weapon" (I would not, but that's a matter for the jury). A butter knife or especially a pencil cannot reasonably be deemed to be "dangerous weapons". But there doesn't seem to be any case law specifically addressing these objects. If a pencil were actually used as a weapon, perhaps the jury might find that a pencil (so used) was a dangerous weapon. However, the question is about a law forbidding the mere possession of a dangerous weapon, eliminating how it was actually used from the calculation.</p>\n<p>It is extremely unlikely that I would get arrested for driving past a school with a screwdriver in my car.</p>\n",
"score": 16
},
{
"answer_id": 86984,
"body": "<p>No. Normally schools or school districts will have definitions of their terms covered in student handbooks or rule books that are communicated to the public at request. I recall my schools having definitions of knives that included size or material restrictions of the blade. In U.S. law, a violation of a weapon law can occur regardless of the weapon's ability to inflict actual harm. For example, by law, realistic toy guns must have an orange "safety cap" over the muzzle to indicate the gun does not work. If one takes that cap off or uses the toy in a manner where the safety cap's purpose to alert people to the gun's fake nature is defeated (such as holding the gun under clothing so that you can only see the outline) will be a violation against the weapon law, since the law doesn't care if the weapon is actually functional but rather that it was reasonable for someone to assume the weapon was functional and threatening.</p>\n<p>It is also the case that no right is absolute and the government may restrict a right to something based on a compelling government interest. As most schools in the U.S. are government run, the compelling interest in the safety of those who are by law in the government's care during the course of the school day out ways the public interest in a right to carry arms on school property. In the case of private schools, they are allowed to restrict what items are permissible on private school property the same as any other private property owner.</p>\n<p>The list of impermissible items may not be practice to post on a general sign at the front of the property but most likely can be easily found when talking with an administrator.</p>\n",
"score": 6
},
{
"answer_id": 86998,
"body": "<h3>Absolutely not</h3>\n<p>The 14th Ammendment:</p>\n<blockquote>\n<p>No State shall make or enforce any law which shall abridge the\nprivileges or immunities of citizens of the United States; nor shall\nany State deprive any person of life, liberty, or property, without\ndue process of law; nor deny to any person within its jurisdiction the\nequal protection of the laws.</p>\n</blockquote>\n<p>I'm not sure what here you think would protect you from arrest & incarceration for carrying a "knife" on school grounds. All the state has to do is give you due process. The vagueness doctrine is from both the 5th and 14th Ammendments, and no, calling something a knife isn't going to run afoul of it. You can convince a jury that it wasn't a knife if you're arrested for it. People are going to know what the government means when they say "no knives at school."</p>\n<p>Rules at school are different from laws you can go to jail for. If you can show me someone arrested for a nail file I'll respond, but schools can tell you to not bring a nail file to school all day long.</p>\n<p>While we're at it, constitutional rights don't exist in a vacuum. They must be interpreted with all other rights, including the "necessary and proper" things governments need to do to make a country work. All the constitutional rights that say that they "shall not be abridged" are abridged daily for numerous good reasons. Things just wouldn't work otherwise.</p>\n",
"score": 4
}
] |
[
"united-states",
"us-constitution",
"weapons",
"school",
"louisiana"
] |
A company want me to sign an NDA before I go to a job interview at their facilities
| 2 |
https://law.stackexchange.com/questions/43677/a-company-want-me-to-sign-an-nda-before-i-go-to-a-job-interview-at-their-facilit
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CC BY-SA 4.0
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<p>I have been invited to a face-to-face interview at a company. Before going, I am "obliged" to sign an NDA. This is the private sector and an entertainment company.</p>
<p>Why on Earth would I go into such a legal contract when I have no working relationship with a company?</p>
<p>If they are uncertain about the information they divulge during a job interview, does not that tell unpleasant tales of their organizational and "hush hush" structure?</p>
<p>I have never encountered this before and would like to hear your input.</p>
| 43,677 |
[
{
"answer_id": 43680,
"body": "<p>Nobody forces you to go to the interview. Asking you to sign an NDA before entering their premises is totally legal and can be very reasonable. If you are hired to work on a new product, that competitors would love to hear about, an NDA for the interview would be expected. </p>\n\n<p>If you asked on workplace.stackexchange I’d recommend to apply elsewhere. Here I’ll say “totally legal”. </p>\n",
"score": 9
},
{
"answer_id": 43679,
"body": "<p>The company is placing a condition on offering you an interview, namely that you agree in writing not to use or divulge any information you may learn during the interview process. Legally speaking, this is no different from insisting that you must pay your own expenses of attending; if you feel it is an unreasonable condition, you should decline the interview, which will save you from working for a company with 'unpleasant tales of their organizational structure' and the company from interviewing somebody who does not share their view of how much secrecy is necessary.</p>\n\n<p>If you do decline, you are of course free to post your experience and views of the company publicly; you will not have any possibly confidential information to share.</p>\n",
"score": 7
}
] |
[
"non-disclosure"
] |
Has Anker broken the GDPR since the eufy camera has stored photo data in AWS without notifying users?
| 5 |
https://law.stackexchange.com/questions/87016/has-anker-broken-the-gdpr-since-the-eufy-camera-has-stored-photo-data-in-aws-wit
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CC BY-SA 4.0
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<p><strong>Can a complaint be filed to the European Data Protection Supervisor, with the goal of having a lawsuit brought against Anker (in the context of its eufy products)?</strong></p>
<ul>
<li>I am following the current issue about Anker and its eufy camera products and the storage of thumbnails (photos) on AWS servers. It has become clear that despite the official documentation stating that data is only stored locally, data has been stored on AWS servers.</li>
<li><a href="https://gizmodo.com/eufy-security-cameras-unencrypted-footage-cloud-scandal-1849833489" rel="noreferrer">News report highlighting the issue</a>.
Can the complaint be filed and a lawsuit be created, because of this, since a) the potential misuse of eufy camera feeds, and b), because eufy has lied to its customer, <a href="https://www.theverge.com/2022/11/30/23486753/anker-eufy-security-camera-cloud-private-encryption-authentication-storage" rel="noreferrer">article by The Verge</a>.
Has there been other similar cases of European Citizen "local data" found to be stored on cloud servers, and data been able to be accessed, despite the contrary having been claimed by a product maker (company)?</li>
</ul>
<p>To elaborate, so-called "local data" has been caught as stored in AWS cloud servers, <a href="https://www.cnet.com/home/security/eufy-cameras-caught-sending-local-only-data-to-cloud-servers/" rel="noreferrer">article in CNET</a>.</p>
<p>Thank you for initial information and pointing me in the right direction.</p>
| 87,016 |
[
{
"answer_id": 87017,
"body": "<p>The key issue here is the unauthorized collection of video thumbnails, not the use of cloud services.</p>\n<p>Under GDPR, every personal data processing activity has one or more controllers who are responsible for the activity, and every such activity needs a “legal basis”. With such cameras, the operator will typically be a controller, since they determine the purposes for which this camera is used. In this scenario, the operators – as part of their responsibility to conduct the data processing activity in a GDPR-compliant manner – had disabled any cloud features provided by the camera manufacturer.</p>\n<p>Despite this configuration, the camera manufacturer collected thumbnails and uploaded them to servers under their control.</p>\n<p>So, we likely have two distinct issues at hand:</p>\n<ul>\n<li>the camera manufacturer misled its customers about the privacy settings of the cameras. This is not necessarily a GDPR issue by itself.</li>\n<li>the manufacturer performed data processing activities in contravention of various aspects of the GDPR.</li>\n</ul>\n<p>Relevant aspects of the GDPR that might have been violated:</p>\n<ul>\n<li>the manufacturer did not have an Art 6 GDPR legal basis for this processing activity, such as a “legitimate interest”</li>\n<li>the manufacturer did not provide information per Art 13 GDPR to the people being monitored this way</li>\n<li>even if the cloud-based thumbnail processing were intended, this could be a violation against the Art 25 obligation to ensure “data protection by design and by default”</li>\n<li>depending on how the cloud storage services were configured, there might be violations against the Art 28 responsibility to contractually bind such vendors as data processors, or against the Chapter V rules on international data transfers</li>\n</ul>\n<p>Different actors might have different remedies against this violations:</p>\n<ul>\n<li>buyers of the camera might have remedies under consumer protection and product liability laws against the manufacturer</li>\n<li>data subjects of the illegal processing activity have remedies under the GDPR\n<ul>\n<li>they can exercise their data subject rights against the data controllers, such as erasure of the thumbnails. However, this will be difficult to exercise in practice since the manufacturer will not have identifying information, and would then be free from having to fulfil certain data subject requests per Art 11 GDPR.</li>\n<li>they can lodge a complaint with a responsible supervisory authority, which would be the data protection agency in their EU/EEA member state (or the ICO in the UK). The EDPS is irrelevant here, since it is only the internal supervision authority for EU institutions. The competent supervisory authorities can levy fines.</li>\n<li>they can sue the data controllers, both for compliance (e.g. deleting unauthorized thumbnails) and for damages, if any were suffered. However, immaterial damages awarded for GDPR violations are typically fairly low, if they are recognized by the court at all.</li>\n<li>the right to judicial remedy (sue the controllers in court) and to lodge a complaint are independent. They largely pursue different remedies. Both can be used to seek compliance, but only supervisory authorities can impose fines, and only direct lawsuits by the data subjects can seek damages.</li>\n</ul>\n</li>\n</ul>\n",
"score": 8
}
] |
[
"gdpr",
"european-union",
"data-protection"
] |
When does money become money? (When is a debt "realized"?)
| 9 |
https://law.stackexchange.com/questions/86976/when-does-money-become-money-when-is-a-debt-realized
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CC BY-SA 4.0
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<p>A lot of taxable liabilities depend on the notion of when a monetary gain is "realized", but it is not clear to me how this is defined legally.</p>
<p>For example, if a person sells stock, then the brokerage will credit the cash account of the client. The client does not actually have the money in the sense that the brokerage "owes" them the money, but since the brokerage can be viewed as sort of a bank, then the gain could be considered realized.</p>
<p>So, take a different kind of debt. A gambler wins money at a casino, but just has chips. If the gambler keeps the chips, obviously the chips are not "money" so the gain cannot be said to be "realized". Now, suppose the gambler cashes the chips, but only to his account at the casino. The casino now owes the money to the gambler but has not paid it. The casino is not a bank, so the customer's balance is a commercial debt, not money.</p>
<p>So, if you consider that to be a "realized" gain of money, does that mean any business credit is? For example, if a vendor issues a business a new credit for some reason, then is that gain "realized" as soon as the vendor notifies the business of the credit, or only when the business receives a check for the credit and actually deposits it in its bank account?</p>
<p>For example, if I sell something to a business, they owe me the money for the good, but that is not a "realized" gain yet, until they actual pay me and the money is in my bank account.</p>
<p>So, basically the question revolves around possession of money and whether one can be said to "possess" money owed by a bank, casino, other business, person, or whatever.</p>
<p>One pretty obvious rule here is that only one person can possess the cash. So, either the cash belongs to me or the casino, not both, for example. If the casino is actually holding my money in a separate entitled account which is "mine", then I guess theoretically the money is "mine", but if the casino just considers my "account" to be just a ledger entry, then the cash does not really exist. It's just a debt they have to me, so it cannot be considered to be "realized".</p>
| 86,976 |
[
{
"answer_id": 86980,
"body": "<p>In general, a liquid account, denominated in monetary units (dollars, pounds, euros, etc) from which the owner has the right to make a withdrawal at any time is treated legally much the same as cash. This includes a bank account and a brokerage 'cash" account. It will not include a mutual fund account denominated in shares of stock, nor a debt which is not collectable at will. When the proceeds of a transaction are depositd into such an account, I believe that the profit (if any)m has been "realized" and that a taxable event has occurred.</p>\n<p>Under <a href=\"https://www.law.cornell.edu/uscode/text/26/1001\" rel=\"noreferrer\">26 U.S.C. § 1001</a> a gain or loss is realized on the sale or other disposition, or exchange of property. Nothing is ssid about 'cash" or accounts with a signature authority.</p>\n<p>Under <a href=\"https://www.govinfo.gov/content/pkg/CFR-2009-title26-vol11/xml/CFR-2009-title26-vol11-sec1-1001-1.xml\" rel=\"noreferrer\">26 CFR 1.1001-1</a>:</p>\n<blockquote>\n<p>... the gain or loss realized from the conversion of property into cash, or from the exchange of property for other property differing materially either in kind or in extent, is treated as income or as loss sustained.</p>\n</blockquote>\n<p>in <a href=\"https://scholar.google.com/scholar_case?case=17477022459451533174&q=Cottage+Savings+Association+v.+Commissioner&hl=en&as_sdt=80000002\" rel=\"noreferrer\"><em>Cottage Savings Ass'n v. Comm. of Internal Revenue</em>, 499 U.S. 554, 559 (1991)</a> The US Supreme Court wrote:</p>\n<blockquote>\n<p>Rather than assessing tax liability on the basis of annual fluctuations in the value of a taxpayer's property, the Internal Revenue Code defers the tax consequences of a gain or loss in property value until the taxpayer "realizes" the gain or loss. The realization requirement is implicit in § 1001(a) of the Code, 26 U. S. C. § 1001(a), which defines "[t]he gain [or loss] from the sale or other disposition of property" as the difference between "the amount realized" from the sale or disposition of the property and its "adjusted basis." As this Court has recognized, the concept of realization is "founded on administrative convenience." <em>Helvering v. Horst</em>, 311 U. S. 112, 116 (1940).</p>\n<p>...</p>\n<p>Section 1001(a)'s language provides a straightforward test for realization: to realize a gain or loss in the value of property, the taxpayer must engage in a "sale or other disposition of [the] property." The parties agree that the exchange of participation interests in this case cannot be characterized as a "sale" under § 1001(a); the issue before us is whether the transaction constitutes a "disposition of property."</p>\n<p>...</p>\n<p>Neither the language nor the history of the Code indicates whether and to what extent property exchanged must differ to count as a "disposition of property" under § 1001(a). Nonetheless, we readily agree with the Commissioner that an exchange of property gives rise to a realization event under § 1001(a) only if the properties exchanged are "materially different."...</p>\n<p>...</p>\n<p>We start with the classic treatment of realization in <em>Eisner v. Macomber</em>, <em>supra</em>. In <em>Macomber</em>, a taxpayer who owned 2,200 shares of stock in a company received another 1,100 shares from the company as part of a *pro rata- stock dividend meant to reflect the company's growth in value. At issue was whether the stock dividend constituted taxable income. We held that it did not, because no gain was realized.</p>\n<p>...</p>\n<p>In <em>Phellis</em> and <em>Marr</em>, we held that the transactions were realization events. We reasoned that because a company incorporated in one State has "different rights and powers" from one incorporated in a different State, the taxpayers in<em>Phellis</em> and <em>Marr</em> acquired through the transactions property that was "materially different" from what they previously had. <em>United States v. Phellis</em>, 257 U. S., at 169-173;</p>\n<p>...</p>\n<p>Taken together, <em>Phellis</em>, <em>Marr</em>, and W<em>eiss</em> stand for the principle that properties are "different" in the sense that is "material" to the Internal Revenue Code so long as their respective possessors enjoy legal entitlements that are different in kind or extent. Thus, separate groups of stock are not materially different if they confer "the same proportional interest of the same character in the same corporation." <em>Marr v. United States</em>, 268 U. S., at 540. However, they are materially different if they are issued by different corporations, id., at 541; <em>United States v. Phellis</em>, supra, at 173, or if they confer "differen[t] rights and powers" in the same corporation, <em>Marr v. United States</em>, supra, at 541. No more demanding a standard than this is necessary in order to satisfy the administrative purposes underlying the realization requirement in § 1001(a). See <em>Helvering v. Horst</em>, 311 U. S., at 116. For, as long as the property entitlements are not identical, their exchange will allow both the Commissioner and the transacting taxpayer easily to fix the appreciated or depreciated values of the property relative to their tax bases</p>\n</blockquote>\n<p>Thus <strong>any</strong> exchange of property for other property which is in some significant sense different, such as interests in different mortgages of similar market value, or <strong>any</strong> sale of property causes a gain or loss to be realized.It does not matter in what sort of account the proceeds are held, or even whether the proceeds are in cash as opposed to some other sort of property. The beneficial owner realizes a gain or loss, even if s/he is not the legal owner.</p>\n",
"score": 10
},
{
"answer_id": 86990,
"body": "<blockquote>\n<p>For example, if a person sells stock, then the brokerage will credit\nthe cash account of the client. The client does not actually have the\nmoney in the sense that the brokerage "owes" them the money, but since\nthe brokerage can be viewed as sort of a bank, then the gain could be\nconsidered realized.</p>\n</blockquote>\n<p>Gain is realized when the stock is sold. A cash account has no risk of loss and is available on demand.</p>\n<blockquote>\n<p>So, take a different kind of debt. A gambler wins money at a casino,\nbut just has chips. If the gambler keeps the chips, obviously the\nchips are not "money" so the gain cannot be said to be "realized".\nNow, suppose the gambler cashes the chips, but only to his account at\nthe casino. The casino now owes the money to the gambler but has not\npaid it. The casino is not a bank, so the customer's balance is a\ncommercial debt, not money.</p>\n</blockquote>\n<p>Again, the gain is realized not later than when the chips are turned into the casino or removed from the casino (whichever comes first)m, arguably when the chips are won. Again, the key points are that there is no risk of loss and the chips can be converted to cash on demand.</p>\n<blockquote>\n<p>So, if you consider that to be a "realized" gain of money, does that\nmean any business credit is? For example, if a vendor issues a\nbusiness a new credit for some reason, then is that gain "realized" as\nsoon as the vendor notifies the business of the credit, or only when\nthe business receives a check for the credit and actually deposits it\nin its bank account?</p>\n<p>For example, if I sell something to a business, they owe me the money\nfor the good, but that is not a "realized" gain yet, until they actual\npay me and the money is in my bank account.</p>\n</blockquote>\n<p>This depends upon the method of accounting you elect for tax purposes.</p>\n<p>If you are an accrual basis accounting taxpayer, you have gain when the sale is made and the business credit obligation to you arises, and you take a bad debt deduction if the credit is not paid.</p>\n<p>If you are a cash basis accounting taxpayer, you have gain only when the other business pays you, e.g., by delivering to you a check or an electronic payment or currency or a barter item in lieu of cash.</p>\n",
"score": 6
}
] |
[
"tax-law",
"ownership"
] |
If someone leaves a scooter from a vehicle sharing service in my yard can I dismantle it?
| 0 |
https://law.stackexchange.com/questions/30389/if-someone-leaves-a-scooter-from-a-vehicle-sharing-service-in-my-yard-can-i-dism
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CC BY-SA 4.0
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<p>A scooter from a vehicle sharing service (<a href="https://www.bird.co/" rel="nofollow noreferrer">Bird</a>) was left in my yard. What laws do I break if I dismantle it? Does the owner have any civil claim against me? Assume the scooter can be reassembled.</p>
<p>Also assume that I have no contract with Bird. I’ve never even been on their website. </p>
| 30,389 |
[
{
"answer_id": 30393,
"body": "<blockquote>\n <p>What laws do I break if I dismantle it?</p>\n</blockquote>\n\n<p>That is an interesting question. As far as I can see, legally the scooter would be considered <strong>lost property</strong>. The owner (the company Bird Rides, Inc) presumably did not put it there (some user did), and they still want it back (so it is not abandoned property).</p>\n\n<p>Exact rules vary, but usually you must make a <strong>reasonable effort to return the item to the owner</strong>.</p>\n\n<hr>\n\n<p>What exactly that means will depend on local laws. Sometimes there is an official <em>Lost and found</em> office where you can deposit or report lost property, which absolves you of further responsibility. Sometimes you may even have to make a reasonable effort to find the owner yourself.</p>\n\n<p>In Minnesota specifically, probably you would have to notify the owner. Not doing so <em>may</em> constitute theft under <a href=\"https://www.revisor.mn.gov/statutes/cite/609.52\" rel=\"nofollow noreferrer\">article 609.515 of the Minnesota Statutes</a>:</p>\n\n<blockquote>\n <p>609.52 THEFT</p>\n \n <p>[...]</p>\n \n <p>Subd. 2.Acts constituting theft.</p>\n \n <p>(a) Whoever does any of the following commits theft and may be sentenced as provided in subdivision 3: </p>\n \n <p>[...]</p>\n \n <p>(6) finds lost property and, knowing or having reasonable means of \n ascertaining the true owner, appropriates it to the finder's own use\n or to that of another not entitled thereto without first having made \n reasonable effort to find the owner and offer and surrender the property\n to the owner; or</p>\n \n <p>[...]</p>\n</blockquote>\n\n<p>So you are not allowed to \"appropriate\" the scooter, without trying to contact the onwer. Just disassembling it and storing it is probably ok (but I'm not a laywer etc.).</p>\n\n<p>It's not clear whether you are required to contact the owner if you don't \"appropriate\" the scooter. However, the <a href=\"http://www.minneapolismn.gov/police/about/evidence/police_about_lost-stolen\" rel=\"nofollow noreferrer\">official recommendation of the Minneapolis Police Department</a> is to do so:</p>\n\n<blockquote>\n <p>Lost, Stolen and Found Property Check</p>\n \n <p>[...]</p>\n \n <p>For other found items, please take the item to the nearest Minneapolis\n Police Precinct and turn it in to the desk officer. </p>\n</blockquote>\n\n<p>So to be on the safe side, you should probably report the scooter either to Bird Rides, Inc directly, or to your local police station.</p>\n\n<blockquote>\n <p>Does the owner have any civil claim against me? Assume the scooter can be reassembled</p>\n</blockquote>\n\n<p>If you do not damage the scooter in any way, then probably not. The only damage they could claim would be the cost of reassembly - however, a) this might be too trivial to be worth it for them, and b) you could claim you needed to disassemble it because otherwise you would not have had space to store it.</p>\n\n<p>Again, to be on the safe side you should probably notify Bird Rides, Inc and ask them to collect the scooter within a certain timeframe. If you also notify them that you will disassemble the scooter if it is not collected until a certain time, I don't think they will have a claim against you later.</p>\n",
"score": 2
},
{
"answer_id": 87001,
"body": "<blockquote>\n<p>What laws do I break if I dismantle it?</p>\n</blockquote>\n<p>Even if you don't destroy a single component in doing so, dismantling the scooter will be used as evidence that you wanted to keep the scooter or part of it. There are reasonable means to contact the owner, so <strong><a href=\"https://www.revisor.mn.gov/statutes/cite/609.52\" rel=\"nofollow noreferrer\">Theft</a></strong> is on the table.</p>\n<p>Because your act of dismantling the scooter made it non-roadworthy, <strong><a href=\"https://www.revisor.mn.gov/statutes/cite/609.595\" rel=\"nofollow noreferrer\">Damage to property</a></strong> is totally in. In fact, an error in putting it back together is bringing the risk of bodily harm to the next user, so we are talking <strong>Criminal damage to property in the first degree.</strong></p>\n<blockquote>\n<p>Does the owner have any civil claim against me? Assume the scooter can be reassembled.</p>\n</blockquote>\n<p>You are responsible for the damage you inflict and thus liable for repair or a new one. It's not your property and can't become yours by a third party parking it on your property.</p>\n",
"score": 1
}
] |
[
"property",
"minnesota"
] |
Does the English rule apply to costs in possession claims?
| 1 |
https://law.stackexchange.com/questions/86994/does-the-english-rule-apply-to-costs-in-possession-claims
|
CC BY-SA 4.0
|
<p>In case a claimant triumphs in a possession claim, they are entitled to seek a costs order against the defendant.</p>
<p>But suppose that the claim is instead struck out, while the defendant triumphs, but not without having to go through the burden of researching and preparing their defence, traveling to and from attending court, perhaps even instructing and paying a solicitor to represent them, fuel, and so forth.</p>
<p>Is a defendant entitled to compensation of their own expenses, efforts, and time, in the claim which they had ultimately shown to be invalid, whether through a conventional costs order against the claimant, or through any other separate mechanism, in line with the traditional convention of the English rule when it comes to a triumphant party’s costs in legal proceedings?</p>
<p>If the conventional “English rule” (as it’s been called) does not apply to possession proceedings, then why are they excepted from this otherwise rather general rule?</p>
| 86,994 |
[
{
"answer_id": 86999,
"body": "<h2>Costs follow the event</h2>\n<p>AFAIK, this applies in all civil proceedings except small claims and (some) tribunals.</p>\n<p>However, the defendant’s (or plaintiff’s) personal time and expenses are not recoverable. So, if the defendant spends 2 hours briefing their lawyer, the lawyer’s cost is recoverable, the defendant’s isn’t.</p>\n<p>For example, a case requires the defendant company to spend a week in Birmingham (from London) and they send 2 employees and 3 lawyers. Assuming that was a reasonable thing to do, the lawyer’s fees, accommodation, food and transport costs are recoverable, the employee’s aren’t.</p>\n",
"score": 1
}
] |
[
"england-and-wales",
"landlord",
"civil-procedure",
"costs"
] |
How does the price cap on Russian oil work?
| 1 |
https://law.stackexchange.com/questions/86973/how-does-the-price-cap-on-russian-oil-work
|
CC BY-SA 4.0
|
<p>How does the price cap on Russian oil work? As I understand, EU insurers are now prohibited from doing business with freight companies that transport Russian oil by sea – unless they comply with the cap. I have three questions:</p>
<ol>
<li><p>Can Russian companies simply enjoy insurance services from other providers?</p>
</li>
<li><p>Can Hungary, Bulgaria and other countries, which are exempt from the law, resell non-capped Russian oil and let the Russian government rake in just as much?</p>
</li>
<li><p>It may seem implausible now, but what if the market price drops below the cap level of $60/bbl? Will Russian oil be sold at a premium?</p>
</li>
</ol>
| 86,973 |
[
{
"answer_id": 86996,
"body": "<p>As I understand it, the ban covers EU insurers, EU reinsurers, EU insurance brokers, EU shipping companies, and EU shipowners leasing to companies abroad. The idea is that these cover enough of the respective market to <em>significantly impact</em> Russian trade.</p>\n<p>When it comes EU members abusing exceptions, note that the relationship between Hungary and much of the EU is currently quite adversarial. But Hungary would like to remain a net recipient of EU funds, and that limits the things Hungary and others can do. As Canada said in a similar situation, <em>"the idea of sanctions is to influence Russia, not to hurt allies."</em></p>\n",
"score": 2
}
] |
[
"european-union",
"insurance",
"sanctions",
"russia",
"energy"
] |
Should an attorney that's reviewing employment contracts be licensed in the same state as the employer?
| 3 |
https://law.stackexchange.com/questions/86972/should-an-attorney-thats-reviewing-employment-contracts-be-licensed-in-the-same
|
CC BY-SA 4.0
|
<p>I was recently offered a new job. The company is fully remote and is based in California; however, I live in a different state.</p>
<p>I want to get a Contract Review attorney to take a look at the employment contract and point out any possible issues and edits.</p>
<p>Do I need a lawyer licensed in California or my home state? Or does it not matter?</p>
| 86,972 |
[
{
"answer_id": 86981,
"body": "<p>To simply review the contract terms, a prospective employee may hire an attorney licensed in his or her own state. But since principles of California law may be involved, the employee will probably get a better answer if the lawyer is knowledgeable in California law. There may also be relevant laws of the employee's state that apply tom the contract. Finding a lawyer, or law firm, that practices in both the employee's state and in California may well be the best way to get an accurate and complete answer.</p>\n",
"score": 2
}
] |
[
"united-states",
"contract-law",
"employment",
"jurisdiction"
] |
Debtor owes me, trying to figure out how to freeze RBC account
| 1 |
https://law.stackexchange.com/questions/86969/debtor-owes-me-trying-to-figure-out-how-to-freeze-rbc-account
|
CC BY-SA 4.0
|
<p>Through the summer, I picked up a client on a contract basis for whom I completed about 3 months of work. I had every reason to believe they would come good in terms of paying me, as the owners of the company are associated with other reputable firms. After not having gotten paid and having gotten a ton of excuses and even some bullying, I decided to sue the corporation in Alberta small claims. I won default judgement as they didn't file a response.</p>
<p>With the judgement in hand, and the knowledge that they have a bank account with RBC, I am trying to figure out my next move. There are about ~100 RBC branches in Calgary and trying to narrow down their home branch won't be trivial. I know RBC has a main branch in Calgary - but I am seeing conflicting information about whether they can help me out.</p>
<p>I am also trying to figure out their clients that may owe them money to try to garnish that way. Does anyone have any experience or suggestions they can share that would help me?</p>
| 86,969 |
[
{
"answer_id": 86991,
"body": "<p>In the United States you would issue a writ of garnishment to the bank with a copy by mail to the judgment debtor.</p>\n<p>I suspect that the process is similar to this in Albert with a small claims court judgment, since it is also a common law jurisdiction, but I don't know this for a fact.</p>\n",
"score": 1
}
] |
[
"canada",
"debt"
] |
Are financial penalties common in job offers?
| 3 |
https://law.stackexchange.com/questions/86986/are-financial-penalties-common-in-job-offers
|
CC BY-SA 4.0
|
<p>I am in the EU and I recently got a job offer for a remote role from a games developing startup. A service provider agreement will facilitate the role. The contract however is full of very high financial penalties(tens of thousands of euros) on several breaches (of confidentiality or non competition f.e.). It also says that I will be liable to the full amount of any damage caused intentionally or due to gross negligence. Is this a common practice? I have worked on big corporations and I have never faced such clauses. Can this be a scam of any kind?</p>
<p>Please note the role is not for a manager/director level but rather for a base software developer level. Also the clauses are very generic and I do not have idea how these can materialize f.e. how can the company loose money so I can be liable for it.</p>
| 86,986 |
[
{
"answer_id": 86988,
"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>The contract however is full of very high financial penalties(tens of\nthousands of euros) on several breaches (of confidentiality or non\ncompetition f.e.).</p>\n</blockquote>\n<p>I routinely write non-competition and non-disclosure agreements with such clauses, and see them in contracts written by others. They are called liquidated damages clauses and reflect the fact that proof of actual economic damages from a breach of confidentiality or prohibited competitive acts are difficult or impossible to prove.</p>\n<p>This isn't particularly uncommon.</p>\n<blockquote>\n<p>It also says that I will be liable to the full amount of any damage\ncaused intentionally or due to gross negligence.</p>\n</blockquote>\n<p>This sounds like the term may actually benefit you. The default rule is that you are liable for the full amount of any damage caused by your acts which are negligent, grossly negligent, reckless, intentional, or in bad faith. This clause seems to be exonerating you from liability for simple negligence.</p>\n",
"score": 2
}
] |
[
"contract-law"
] |
What happens if the legislature passes a new law that contradicts historical precedents?
| 0 |
https://law.stackexchange.com/questions/86953/what-happens-if-the-legislature-passes-a-new-law-that-contradicts-historical-pre
|
CC BY-SA 4.0
|
<p>Do judges have the discretion to apply older laws or rulings, or do they have to follow the new legislation regardless?</p>
<p>By historical precedents, I am referring to the common law that has developed over time through various judicial rulings.</p>
| 86,953 |
[
{
"answer_id": 86955,
"body": "<p>The new law wins. That's rather the point of passing a new law-- the legislature wants to change the current law of the land whether that is based on statutes or court rulings.</p>\n<p>Of course, there are caveats. Prior judicial rulings may have relied on an interpretation of a source of law that supersedes the legislature in question (i.e. based on an interpretation of the state or federal Constitution or based on a federal law that supersedes the state law). In that case the new law would be found unconstitutional or ignored. Or the new law might have an ambiguous interaction with current law that courts would have to resolve. The new law might clearly make X illegal but there may be legitimate questions about whether it intended to make previously legal action Y illegal as well. It is, after all, very difficult to write a law that covers every possible fact pattern one would encounter in the real world.</p>\n",
"score": 10
},
{
"answer_id": 86966,
"body": "<p>I agree with the answer from @JustinCave and I am just adding a concrete example.</p>\n<p>In Colorado, the state supreme court decided some cases that interpreted the common law of premises liability (i.e. the liability of a landowner for injuries that take place on their land) in the state. The legislature didn't like the legal rules that resulted from those decisions.</p>\n<p>In response, the legislature passed Colorado Revised Statutes § 13-21-115 Actions against Landowners, often referred to as the Colorado Premises Liability Act, that overruled the state supreme court holdings and adopted a different set of rules for premises liability.</p>\n<p>(Actually, it was a bit more complicated than that, with at least two rounds of court decisions and two rounds of legislative acts overruling those court decisions.)</p>\n",
"score": 6
},
{
"answer_id": 86985,
"body": "<p>In countries with common-law systems, like the United States a new statute that contradicts a previous common-law precedent. A judge does not have authority to disregard the new statute in favor of the older precedent.</p>\n<p>However, a new US state statute <strong>cannot</strong> override a previous federal law, a federal constitutional provision (or a court ruling interpreting such a provision), nor a state constitutional provision. A new state statute which contradicts any of those will be ignored, or held top be unenforceable, at least to the extent of the contradiction. Similarly, a new local ordinance cannot override an existing state law, unless the state law allows for this.</p>\n<p>If a new state statute modifies some older common-law rules, but does not directly contradict others that apply to a situation, a court may well apply as many of the previous rules as were not directly changed by the new law. If it is not clear whether the new law was intended to change an existing precedent or not, a court may well prefer to assume that it does not, and rule so as to apply both the new law and the old rule, if that is possible.</p>\n<p>Note that the rule for an older existing state statute is the same as for a previous common-law precedent. A new law overrides any prior contradictory law (at the same level) if it is clearly intended to do so. But when the new law does not clearly repeal or modify the old one, a court may attempt to apply both.</p>\n<p>A comment asks:</p>\n<blockquote>\n<p>So common laws are more like subordinate "guidelines" to "real laws" from actual legislation?</p>\n</blockquote>\n<p>No, common-law rules are <strong>laws</strong> and have the same status as statutes, but the rule is always that at the same level, the newer law overrides any older law, and the statute is treated as newer than any common law.</p>\n<p>I should add that I agree with the answers by Justin Cave and\nohwilleke, and I have upvoted both. But I wanted to make the point tht "newer law overrides older law at the same level" is a general rule, and not something that applies only to common-law rulings.</p>\n",
"score": 4
}
] |
[
"united-states",
"legal-history"
] |
Who owns the IP for some software that I created in my spare time? Employee or Employer?
| -1 |
https://law.stackexchange.com/questions/86978/who-owns-the-ip-for-some-software-that-i-created-in-my-spare-time-employee-or-e
|
CC BY-SA 4.0
|
<p>I am employed as a designer in the UK by a UK employer. I do not work for a software company.
On my own machine on weekends I created my own software that I believe my employer would benefit from.
I pitched my software to my employer with the intention that my employer could use it for free, support with its future development, and share revenue from future external sales.
My contract with my employer however states the following:</p>
<blockquote>
<p>"Any process or invention which is discovered or made by an employee
or intellectual property which arises during the course of their
employment is, and shall be, the absolute property of the Company...."</p>
</blockquote>
<p>This aligns pretty well with Copyright, Designs and Patents Act 1988 (legislation.gov.uk) which states:</p>
<blockquote>
<p>(1)The author of a work is the first owner of any copyright in it,
subject to the following provisions.</p>
</blockquote>
<blockquote>
<p>(2)Where a literary, dramatic,
musical or artistic work [F1, or a film,] is made by an employee in
the course of his employment, his employer is the first owner of any
copyright in the work subject to any agreement to the contrary.</p>
</blockquote>
<p>So whether the IP of this software belongs to me or my employer appears to boil down to the definition of "during the course of their employment".</p>
<p>Based on Mei Fields Designs Ltd v Saffron Cards and Gifts Ltd [2018], the following tests where used which fell in favour of Mei's employer.</p>
<ul>
<li>(a) the terms of the contract of employment;</li>
<li>(b) where the work was created;</li>
<li>(c) whether the work was created during normal office hours;</li>
<li>(d) who provided the materials for the work to be created;</li>
<li>(e) the level of direction provided to the author;</li>
<li>(f) whether the author can refuse to create the work/s; and</li>
<li>(g) whether the work is ‘integral’ to the business.</li>
</ul>
<p>In my case, my answers to the above would be as follows:</p>
<ul>
<li>(a) In line with England and Wales law.</li>
<li>(b) At home</li>
<li>(c) Outside normal office hours</li>
<li>(d) I provided all materials to carry out the work</li>
<li>(e) I had no direction from my employer</li>
<li>(f) I chose to do this work, and initially didn't tell my employer about it so there was nothing to refuse.</li>
<li>(g) It would be useful for the business. I wouldn't say it was integral (essential or fundamental)</li>
</ul>
<p>Based on the above, who owns the software, me or my employer?</p>
| 86,978 |
[
{
"answer_id": 86979,
"body": "<p>Based on the contract language quoted in the question, and the facts stated there, it would seem that the employee owns the copyright on the software. It would seem that the software was not created "during the course of employment."</p>\n<p>However, when the employee offers it to the employer free of charge, the employer may well want to own the copyright and any other related IP. The employer might want the employee to sign an agreement transferring the copyright. Or the employer might simply treat the software as belonging to the employer. Asserting and enforcing the copyright against the employer might be difficult. Insisting on even a token payment would help establish thst the copyright belongs to the employee, or gettign the employer to sign an acknowledgement of the ewmployee's copyright would have a similar, bnt even stronger effect.</p>\n",
"score": 3
}
] |
[
"united-kingdom",
"intellectual-property",
"employee"
] |
Is it legally possible for a tenant to replace their landlord?
| -2 |
https://law.stackexchange.com/questions/86963/is-it-legally-possible-for-a-tenant-to-replace-their-landlord
|
CC BY-SA 4.0
|
<p>I was wondering if a tenant feels their landlord has wronged them, if there could be any legal argument, even an unusual one, that if a person has established a residence somewhere to some non-trivial extent, they have some inherent right or claim to that as their residence or home, and it may be possible to remove the landlord rather than the landlord removing the tenant.</p>
<p>Eviction is really common so in general I think tenants own property like any other situation, for example, a company can fire employees, a hostel can kick out a guest, and so on. Still, are there any interesting examples of this happening? One could be some kind of community outreach / movement or special legal circumstance to allow someone to stay. Another could be some way of having some third party or organization purchase the property from the landlord.</p>
| 86,963 |
[
{
"answer_id": 86965,
"body": "<blockquote>\n<p>Is it legally possible for a tenant to replace their landlord?</p>\n</blockquote>\n<p>Generally not. The landlord-tenant relationship flows from the landlord's ownership of the property and the tenant can do nothing to change that (short of buying the land from the landlord in a voluntary transaction).</p>\n<p>If the landlord were a government agency, the tenant could petition the government to put a different employee in charge of managing the lease, and if the landlord were a trust it is barely conceivable that the tenant could assist some other party in removing the trustee and replacing the trustee with another trustee (particularly if the trust was a charitable trust or the tenant was also a beneficiary of the trust).</p>\n<p>But, generally speaking, this is not possible.</p>\n",
"score": 7
},
{
"answer_id": 86977,
"body": "<p>Jurisdiction: <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>There is no general right to do this. However, in some specific circumstances it can be possible to do this, or achieve a similar effect.</p>\n<h3>Leasehold enfranchisement</h3>\n<p>If you live in a flat and are a tenant under a lease (as opposed to a tenancy agreement), and meet various conditions, you can effect a compulsory purchase of your freehold under <a href=\"https://www.legislation.gov.uk/ukpga/1993/28/section/1\" rel=\"nofollow noreferrer\">Section 1 of the Leasehold Reform, Housing and Urban Development Act 1993</a>.</p>\n<p>As an alternative to removing the landlord altogether, there is the "right to manage" under <a href=\"https://www.legislation.gov.uk/ukpga/2002/15/section/71\" rel=\"nofollow noreferrer\">Section 71 of the Commonhold and Leasehold Reform Act 2002</a>.</p>\n<h2>Local authority management orders</h2>\n<p>This applies where your property is either an HMO or a "Part 3 House" as defined in <a href=\"https://www.legislation.gov.uk/ukpga/2004/34/section/146\" rel=\"nofollow noreferrer\">Section 146 of the Housing Act 2004</a>. Without going into too many details, an HMO is a house in multiple occupation or certain blocks of flats which do not meet the requirements of the <a href=\"https://www.legislation.gov.uk/ukpga/2004/34/section/146\" rel=\"nofollow noreferrer\">Building Regulations 2010</a>, and a "Part 3 House" is any property which falls within a zone that the local authority has designated as a "selective licensing zone" (a zone in which landlords are required to have a licence before they can rent their property).</p>\n<p>In such properties, the local authority can make an "interim management order" (applicable for no longer than 12 months) or a "final management order" (no longer than 5 years) which enables them to "[secure] the proper management of the house" - effectively permitting the council to take over management from the landlord.</p>\n<p>There is both a duty and a right to make such orders and different conditions attach to each. The conditions which must be met for an interim management order are set out in <a href=\"https://www.legislation.gov.uk/ukpga/2004/34/section/102\" rel=\"nofollow noreferrer\">Section 102</a> and for a final management order in <a href=\"https://www.legislation.gov.uk/ukpga/2004/34/section/113\" rel=\"nofollow noreferrer\">Section 113</a>. Broadly, these conditions relate the health and safety of the property and whether or not an HMO or Part 3 licence is capable of being issued.</p>\n<p>Local authorities will generally use other measures available to them before considering management orders as a last resort.</p>\n",
"score": 0
}
] |
[
"rental-property",
"tenancy"
] |
Why does practice direction 55A begin with 55.3?
| 2 |
https://law.stackexchange.com/questions/86974/why-does-practice-direction-55a-begin-with-55-3
|
CC BY-SA 4.0
|
<p><a href="https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part55/pd_part55a" rel="nofollow noreferrer">Practice direction 55A</a> seems to begin at 55.3. Why are there no Practice Direction 55A rules 55.1 and 55.2, or where are they?</p>
| 86,974 |
[
{
"answer_id": 86975,
"body": "<p>There is no need for <a href=\"https://en.m.wikipedia.org/wiki/Practice_direction#:%7E:text=In%20English%20law%2C%20a%20practice,1998%20contains%20a%20large%20number\" rel=\"nofollow noreferrer\">Practice Directions</a> in this instance as the three previous <a href=\"https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part55#cor\" rel=\"nofollow noreferrer\">Part 55 Rules</a> (i.e. Coronavirus – temporary provision, Interpretation, and Scope) do not require one.</p>\n",
"score": 3
}
] |
[
"england-and-wales",
"civil-procedure",
"rules-of-court"
] |
Is it okay to admit to the police that you were speeding? Are there any benefits?
| 25 |
https://law.stackexchange.com/questions/82064/is-it-okay-to-admit-to-the-police-that-you-were-speeding-are-there-any-benefits
|
CC BY-SA 4.0
|
<p>I know the normal advice is "don't say more to the police than you have to," but what if:</p>
<ul>
<li>They tell you they pulled you over for speeding</li>
<li>You know you were speeding</li>
<li>The officer almost certainly has enough evidence to prove you were speeding</li>
</ul>
<p>In this case, what benefit could there be to not admitting that you were speeding? Is there any benefit to admitting it?</p>
| 82,064 |
[
{
"answer_id": 82071,
"body": "<p>Maybe.</p>\n<ul>\n<li>In many but not all situations, the police have a certain latitude in how they charge an incident.</li>\n<li>In many but not all socieities, speeding is seen as less morally repugnant than, say, theft or tax evasion. "Can happen to anyone, oops," the excuse goes.</li>\n</ul>\n<p>So a <em>credible</em> expression of remorse might cause the police officer to issue a caution or verbal warning instead of a ticket. Unless you are in a place where there is a grossly antagonistic relationship between the police and the citizens, or where the police department relies on <a href=\"https://en.wikipedia.org/wiki/Ferguson,_Missouri#Ferguson_Police_Department\" rel=\"noreferrer\">fines for funding</a>.</p>\n",
"score": 63
},
{
"answer_id": 82068,
"body": "<p>The benefit of not confessing is that they have no confession from you. If you decide later to challenge it on some basis you will have given up any advantage you may have had to get the case dismissed.</p>\n",
"score": 47
},
{
"answer_id": 82096,
"body": "<p>The benefit of confession is that it makes the entire encounter go smoother. Denying something which you know you have done and which they know you have done (or even not admitting it) is just wasting everybody's time. You will end up being detained for longer; the cop has to spend longer dealing with you; you come over as an argumentative person (which will make the cop less likely to be lenient on you); everybody comes away from the encounter slightly more annoyed, slightly more delayed, and with a slightly dimmer view of the general state of humanity.</p>\n<p>You also have to ask yourself: What are you going to do with the ticket? If you are going to pay it then what on earth difference does it make if you confess now? If you are going to dispute it (knowing that you are actually guilty) then you are really doubling down on making life difficult.</p>\n<p>The smooth running of society depends on the reasonable behaviour of most of the people involved most of the time. Always being combative in encounters makes society run less smoothly. Specifically every time a cop encounters someone who is uncooperative it adds a little bit in their mind to the opinion that all non-cops are jerks to be dealt with harshly. Every time a cop treats a non-cop harshly this reinforces in that person's mind the idea that all cops are jerks who need to be resisted at all time.</p>\n<p>If you admit that you did something that you actually did, then that makes you a person of integrity. Denying it, or even remaining silent in the hope that you will get away with it, makes you less so. Your integrity may or may not be valuable to you - it's up to you of course. But trading your integrity for an extremely small chance that you might be let off a relatively small fine, that doesn't sound like a good trade to me.</p>\n",
"score": 44
},
{
"answer_id": 82153,
"body": "<p><a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" rel=\"tag\">germany</a></p>\n<p>On basis of this <a href=\"http://juristisches-lexikon.ra-kdk.de/eintrag/Geeignetheit.html\" rel=\"nofollow noreferrer\">law</a> the Oberlandesgericht (2nd highest civil court in Germany) in North-Rhine-Westphalia decided that it is up to the officer how harshly he wants to pursue an 'Ordnungswidrigkeit' (= minor crime, literally: against the order). Of course, there are caveats to this but it could be beneficial to your case to confess to the officer who pulled you over. He might let you go with a warning.</p>\n<p>This is not true if your speeding is no longer considered an 'Ordnungswidrigkeit. If they would let you go then §258a STgB makes them liable.</p>\n",
"score": 5
},
{
"answer_id": 82148,
"body": "<p>Who doubts that in Law, we should never even hint there was a possibility of any infraction, and so what?</p>\n<p>This situation is one you can only fly by the seat of your pants, and as the moment dictates… assuming your speeding was not what many drivers would consider excessive in the circumstances. That must take into account both to what extent you were speeding, and whether your offence was in a built-up area or on an open high-way.</p>\n<p>Jim's earlier Answer was quite right. I've been in the same situation more than once and through simply fessing up to the speed I was doing, got right off - an even better result than Jim's reduction.</p>\n<p>In every jurisdiction, every officer has an attitude. If you can't read that attitude, or course fall back on zipped lips.</p>\n<p>Every officer also has far too much paperwork to complete for every ticket issued…</p>\n<p>That means that if you can tell you're not dealing with a martinet and your offence really was fairy trivial, there's a good chance you will get away with accepting some personal advice instead of any kind of official warning.</p>\n<p>"No, I was not speeding" will never help you.</p>\n<p>"Yes, I was speeding" might help you.</p>\n<p>"Uh… you know what… I'm not really sure… It's not impossible I was going a bit above the limit…" will often make all the difference if your officer accepts that you're sorry.</p>\n<p>If your speeding was not trivial, why not just suck it up?</p>\n",
"score": 3
},
{
"answer_id": 82110,
"body": "<p>The question you usually hear is "Do you know how fast you were going?"\nPoint of interest: Your average speedometer is calibrated to read a little high. If you pay attention to it, you should avoid speeding. Unfortunately, if you tell the officer the speed reported by your speedometer, you'll likely give him a number higher that the one reported by his radar gun.</p>\n<p>Should you choose to report a number to an officer, one harvested from a GPS system is less likely to actually hurt you.</p>\n",
"score": 2
},
{
"answer_id": 82182,
"body": "<p><a href=\"/questions/tagged/poland\" class=\"post-tag\" title=\"show questions tagged 'poland'\" rel=\"tag\">poland</a></p>\n<p>Up to 3 years ago, radars used by the police to measure speed lacked proper certification. Thus, you could successfully challenge your ticket in court, and a lot of them was dismissed there, or in the court of appeal. Even radars with certification require certain conditions, like distance and angle, for the reading to be valid. There were also situations when police officers were caught trying to fine someone using speed readings from 10 minutes earlier*. I guess that's the results of tickets being part of the funding.</p>\n<p>We also had the situation when police radar reported 12 km/h (7.5mph) on a <strong>house</strong> **!</p>\n<p>If you know you were speeding, there's a chance you weren't speeding as much as police wants to fine you for (again, funding), and until you confess you have a decent chance to challenge your ticket in court.</p>\n<hr />\n<p>* Article in Polish here: <a href=\"https://zwnszzp-katowice.pl/policjanci-polowali-na-kierowcow-z-ustawionym-pomiarem-radaru-komenda-wyjasniamy-sprawe/\" rel=\"nofollow noreferrer\">https://zwnszzp-katowice.pl/policjanci-polowali-na-kierowcow-z-ustawionym-pomiarem-radaru-komenda-wyjasniamy-sprawe/</a></p>\n<p>** <a href=\"https://www.antyradio.pl/News/Zmierzyli-radarem-policyjnym-predkosc-domu-Okazalo-sie-ze-jechal-12-kmh-36767\" rel=\"nofollow noreferrer\">https://www.antyradio.pl/News/Zmierzyli-radarem-policyjnym-predkosc-domu-Okazalo-sie-ze-jechal-12-kmh-36767</a></p>\n",
"score": 2
},
{
"answer_id": 82143,
"body": "<p>You may always have an "out" that is not clear. Speed limits may not be correctly posted. Honest mistakes of fact can occur on both sides, there may be an emergency, you may be overtaking. Mind that an honest mistake of fact is not the same as ignorance of the law. If this is being handled person to person there will be boilerplate questions to qualify the ticket as safe.</p>\n<p>Admitting "speeding" is stating an opinion that you agree that on the balance of the evidence you would likely be found worthy of the ticket. That opinion may be highly regarded at a later time.</p>\n<p>All sorts of flaws in "due process" might occur after the fact as well.</p>\n",
"score": 1
},
{
"answer_id": 86971,
"body": "<p>Yes, it's okay to admit to the police that you were speeding. Yes, there <em><strong>could</strong></em> be benefits, but you're gambling with your chances.</p>\n<p>Among police there's a wide range of philosophies when it comes to deciding when to issue citations. Individual departments <em><strong>can</strong></em> establish strict standards, but most leave it to the individual officer to decide when to be lenient. Here are the two most common approaches you'll encounter:</p>\n<ul>\n<li>Type 1: Some officers have already made up their mind on whether you're receiving a ticket before even approaching your vehicle. If you get pulled over by one of these, nothing you do or say will get you out of the ticket, so it's best to be polite and brief. However, these guys might have decided from the beginning that they're simply planning to let you off with a warning, and being belligerent or defensive can easily change that warning to a citation. Don't make excuses or ask questions, just provide your driver's license, accept your cite, and move on. You retain your chances of successfully disputing the ticket in court, even if it's only a slim chance, since the widespread use of bodycams, dashcams, and other technologies makes it more than just "your word vs the cop's".</li>\n<li>Type 2. Some officers want to evaluate the demeanor of the driver before deciding whether to issue a cite or not. These officers aren't interested in meeting a quota, but are actually interested in eliciting voluntary compliance with traffic laws. If you recognize what you did wrong and immediately own up to it and apologize, these officers see their job as completed. To them, simply pulling you over was enough to restore your compliance with traffic laws, so it isn't necessary to hit you in the wallet this time. However, if you do this, you forfeit any chance at disputing the citation in court, since your entire confession is now recorded on bodycam. You're throwing your chances of a warning at the feet of the officer with no guarantee for mercy.</li>\n</ul>\n<p>Since there's literally no way of knowing which type of officer is pulling you over, it all comes down to your personal perception of police in general. Do you generally believe that police are filthy parasitic road pirates whose primary reason for existence is to extract money from hardworking civilians over trivial infractions? If so, it's highly advised that you keep your mouth shut. On the other hand, do you believe that police are generally reasonable human beings who have simply accepted the job of helping to maintain order in their communities? Then you might consider taking your chances with being open and apologetic. Just know that mercy is never <em><strong>deserved</strong></em>, so if you fess up and get a ticket anyways, you have no right to feel like you got screwed. You <em>were</em> speeding, you deserve the ticket.</p>\n<p>The people who tell you "never talk to the police" and "never admit to anything" aren't completely wrong. The 5th amendment has unfortunately created a system that often rewards those who lie and conceal the truth with acquittals, while punishing those who voluntarily confess with convictions. I'm not saying the 5th amendment is bad or needs to be abolished, just that it's a 2-sided coin.</p>\n",
"score": 1
},
{
"answer_id": 82132,
"body": "<p>This isn’t so likely to happen in your example, but if you’re fighting other charges, and you get caught lying about something minor like speeding, it might destroy your credibility when you testify about something else. In America, you have the right to remain silent.</p>\n<p>If you’re being charged with an actual crime, your best option is to politely decline to be interviewed by the police without your lawyer present (beyond showing your drivers’ license and any other exceptions you might be required to). Traffic stops for minor infractions of the rules of the road might be the exception, though, and I’ve gotten out of a ticket by being polite.</p>\n",
"score": 0
},
{
"answer_id": 82232,
"body": "<p>Depends on the jurisdiction. Let's take Slovakia as an example: if you admit you were speeding on the spot (and paying the fine counts as confession), you pay only half of what you would if you take it to the inspectorate (dopravný inšpektorát) and lose.</p>\n<p>However, if you <em>do</em> pay it on the spot, you forfeit <em>any</em> chance of an appeal later. Yes, this is open to psychological pressure and abuse.</p>\n",
"score": 0
}
] |
[
"police",
"never-talk-to-police"
] |
Can I legally sync and save YouTube comments on my website
| 0 |
https://law.stackexchange.com/questions/86952/can-i-legally-sync-and-save-youtube-comments-on-my-website
|
CC BY-SA 4.0
|
<p>I own a YouTube channel and a website that belongs to it. On the website, I am also displaying the YouTube videos. For various reasons, I want to create a plugin to sync the comments on my YouTube channel with my website. This would mean saving those comments in my database.</p>
<p>Are there any legal implications to this? Privacy problems maybe? Can I get into trouble?</p>
<p>Im from Europe, The Netherlands</p>
| 86,952 |
[
{
"answer_id": 86960,
"body": "<p>Probably not.</p>\n<p>There are potential problems on the levels of copyright, data protection, and the Youtube terms of service.</p>\n<p>You should assume that comments are typically covered by <strong>copyright</strong>. You do not have a license to these comments, only YouTube does. Therefore, YouTube can show the comments but you can't copy them – just like YouTube can stream your videos but others can't download them and host them on their own websites. To cover the copyright angle, you'd either need to obtain a license from the commenters, or get a sub-license from YouTube, or identify a suitable copyright exception.</p>\n<p>The comments are personal data within the meaning of the <strong>GDPR</strong>, so that your processing of these comments (including mere storage) would be subject to GDPR as well. You need a legal basis for processing personal data. Which legal basis is suitable would depend on the purpose of processing, and on your relationship with the commenters. Potentially applicable legal bases in this context:</p>\n<ul>\n<li><p>you have a <em>contract</em> with the commenters that requires you to show the comments on your website. For example, I could see such a contract if there were a “featured comment” perk for a Patreon subscription. But this is not going to fly with random commenters.</p>\n</li>\n<li><p>you have a <em>legitimate interest</em> (LI) that allows the processing. A LI requires that you conduct a balancing test where you weigh this interest against the commenter's rights. This is very specific to the purposes for which you want to show the comments. However, a LI will generally only apply if you have an existing relationship with the commenters, making it possible for them to expect that this processing will occur – unlikely if you'll be scraping comments from YouTube.</p>\n</li>\n<li><p>you have obtained <em>consent</em> from the data subject. Consent must be specific, informed, freely given, and unambiguous – you can't obtain consent by writing “by commenting under this video you consent to XXX” in the video description.</p>\n</li>\n</ul>\n<p>Regardless of legal basis, you would have to inform the commenters under Art 14 GDPR when you scrape their comments from the platform.</p>\n<p>Finally, consider the <strong>platform terms of service</strong>. I have not read the YouTube ToS recently, so I don't know what their specific conditions are. But in general, such ToS will not allow you to scrape content from their platform in order to host it somewhere else. The ToS might allow certain actions like embedding a link/iframe to such videos on other sites, without allowing other actions such as copying other user's content to your site.</p>\n",
"score": 3
},
{
"answer_id": 86970,
"body": "<p>Re. the previous poster's comments about Personal Data ... The UK GDPR definitions is: "‘any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person".\nFrom this description, comments added to a YouTube feed would only be classed as Personal data if they allowed a person to be identified.</p>\n<p>Use of the comments remains problematic however since they are almost certainly captured by YouTube copyright as per the last poster's comments. You still can't use them without getting prior permission!</p>\n",
"score": 0
}
] |
[
"gdpr",
"privacy",
"youtube",
"database"
] |
How is Seditious Conspiracy distinguished from ordinary robbery?
| 6 |
https://law.stackexchange.com/questions/86873/how-is-seditious-conspiracy-distinguished-from-ordinary-robbery
|
CC BY-SA 4.0
|
<p>Seditious Conspiracy is <a href="https://uscode.house.gov/view.xhtml?path=/prelim@title18/part1/chapter115&edition=prelim" rel="nofollow noreferrer">defined as</a>:</p>
<blockquote>
<p>If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to [...] or by force to seize, take, or possess any property of the United States contrary to the authority thereof [...]</p>
</blockquote>
<p>So if Alice is driving a government-owned car and Bob and Charlie decide to steal it at gun-point, are they guilty of seditious conspiracy? Does it matter whether they knew the car to be government property?</p>
| 86,873 |
[
{
"answer_id": 86875,
"body": "<p>We look first to the Hutaree prosecution of 2012, <a href=\"https://volokh.com/wp-content/uploads/2012/03/hutaree.pdf\" rel=\"noreferrer\">US v. Stone</a> where defendants were charged with seditious conspiracy:</p>\n<blockquote>\n<p>Specifically, the Government charges Defendants with conspiring to\n“oppose by force the authority” of the United States Government.\nEssential to that charge, Defendants must have agreed to oppose some\npositive assertion of authority by the United States Government; mere\nviolations of the law do not suffice. <a href=\"https://supreme.justia.com/cases/federal/us/120/678/\" rel=\"noreferrer\">Baldwin v. Franks</a>, 120 U.S.\n678, 693 (1887).</p>\n</blockquote>\n<p>In Baldwin, SCOTUS found (emphasis added) that</p>\n<blockquote>\n<p>All, therefore, depends on that part of the section which provides a\npunishment for ‘opposing’ by force the authority of the United States\n. . . . This evidently implies force against the government as a\ngovernment. To constitute an offense under the first clause, the\nauthority of the government must be opposed; that is to say, force\nmust be brought to resist some positive assertion of authority by the\ngovernment. <strong>A mere violation of law is not enough; there must be an\nattempt to prevent the actual exercise of authority.</strong></p>\n</blockquote>\n",
"score": 6
},
{
"answer_id": 86877,
"body": "<h2>General Issue</h2>\n<p>It is true that 18 USC 2384 reads:</p>\n<blockquote>\n<p>Seditious conspiracy</p>\n<p>If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.</p>\n</blockquote>\n<p>The clause making it a crime to "<em>by force ... possess any property of the United States contrary to the authority thereof</em>" was probably intended to refer to the forcible seizure of forts and armories, not automobiles or wagons. One must recall that this statute was originally passed in response to the outbreak of the US Civil War in 1861, and particularly in response to the forceful seizure of Fort Sumter and many other Federal military posts. While a literal reading of this clause would imply that any theft of Federal Government Property done by two or mote people using force would fall under this statute, a court is not likely to overlook this history, nor the title "Seditious conspiracy". Mere forceful theft of government property cannot reasonably be construed as an attempt to put down, overthrow, or oppode thje authority of the government.</p>\n<h2>Use of Section 2384</h2>\n<p>Section 2384 has not been frequently used, and has surely not been used to prosecute ordinarly theft of government property. As then <em>Lawfare</em> article <a href=\"https://www.lawfareblog.com/seditious-conspiracy-what-make-latest-oath-keepers-indictment\" rel=\"nofollow noreferrer\">"Seditious Conspiracy: What to Make of the Latest Oath Keepers Indictment"</a> (January 14, 2022) states:</p>\n<blockquote>\n<p>... seditious conspiracy remains an exceptionally serious, and rarely prosecuted, criminal offense because of its expressive effect. To label something sedition goes beyond normal criminality, suggesting that the conduct strikes at the heart of American democracy and falls within the same conceptual category as the most serious political crimes, such as rebellion, insurrection and treason.</p>\n<p>...</p>\n<p>As its name suggests, seditious conspiracy, the main charge, requires the government to establish both the existence of a conspiracy and that its aim was sedition. To satisfy the former, the standard elements of conspiracy apply: an agreement between multiple people to commit some unlawful act. ...</p>\n<p>What makes seditious conspiracy special—and a rarely invoked offense—is the sedition part. Specifically, under Section 2384, individuals have committed sedition when they “conspire to overthrow, put down, or to destroy by force the Government of the United States … or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof.” While the facts alleged in the indictment could plausibly be characterized as opposing by force the authority of the U.S. government, the indictment alleges the broader formulation of sedition: the use of force to prevent, hinder or delay the execution of a law—specifically, the constitutional and statutory provisions surrounding the transfer of power after a presidential election.</p>\n<p>Importantly, the alleged conduct at issue avoids the problem the government faced during the most recent seditious conspiracy prosecution: the failed attempt to prosecute members of the Christian military “Hutaree” group in Michigan, which sought to kill a police officer so as to provoke a “more wide-spread uprising against the Government.” In that case, the district court threw out the seditious conspiracy charge because, while the Hutarees were plotting to attack government officials, they were not planning to “forcibly resist a positive show of authority by the Federal Government.”</p>\n</blockquote>\n<p>This reasoning seems to suggest that a prosecution for violation of Section 2384 cannot be maintained unless there is proof that the conspiracy was in fact <em><strong>seditious</strong></em>, that is, was aimed at the overthrow of, or direct forcible opposition to, the United States Government. That would certainly not be the case for a prosecution for a conspiracy to steal government property, without more.</p>\n<p>Another <em>Lawfare</em> article <a href=\"https://www.lawfareblog.com/last-time-justice-department-prosecuted-seditious-conspiracy-case\" rel=\"nofollow noreferrer\">"The Last Time the Justice Department Prosecuted a Seditious Conspiracy Case"</a> (February 24, 2021) states:</p>\n<blockquote>\n<p>Why should anyone care about the Hutaree now? Because one of those serious charges was seditious conspiracy under 18 U.S.C. § 2384. It was the last time the Justice Department would use the statute until the present day. And the fate of the Hutaree may offer some insight into why. The judge in the case threw out the seditious conspiracy charges, along with the other more serious charges on the docket. And in the end, three Hutaree members pleaded guilty to standard-fare federal weapons charges. </p>\n<p>...</p>\n<p>... the seditious conspiracy charge is a genuine rarity on federal criminal dockets. Before the Hutaree case, the Justice Department had brought seditious conspiracy charges only three times in the previous 20 years: twice for small U.S. al-Qaeda cells and once for the Blind Sheikh and other al-Qaeda operatives responsible for the 1993 World Trade Center bombing and a planned spree of terror attacks around the New York area.</p>\n<p>...</p>\n<p>Judge Roberts put an end to the case five days after the government wrapped its presentation of evidence. She dismissed all charges against five of the seven defendants and tabled all charges against Stone and his son except for the more mundane weapons charges, to which the pair later pleaded guilty and got sentenced to time served. </p>\n<p>Roberts foregrounds her acquittal order by emphasizing the case law standards to prove conspiracy charges, seditious or otherwise. She invokes a Seventh Circuit ruling stemming from an appeal of the Chicago Seven conspiracy verdict. That panel held that in cases concerning “group activity” that falls “within the shadow of the first amendment,” the court ought to undertake a “[s]pecially meticulous inquiry into the sufficiency of proof.” The government’s case against the Hutaree relied largely on Stone’s whacky speeches, so Roberts emphasizes that she “takes particular care” to scrutinize the government’s case against each defendant. She also points to <em>United States v. Lee</em>, a 1993 case from the U.S. Court of Appeals for the Sixth Circuit, which lays out a three-pronged test required for conspiracy cases. Per <em>Lee</em>, the government has to prove that everyone named in the conspiracy “shared a ‘unity of purpose,’ the intent to achieve a common goal, and an agreement to work toward that goal.” And she notes that the 1944 Fifth Circuit case <em>Pinkerton v. United States</em> outlines a standard with particular relevance to the Hutaree case: “a conspiracy requires a specific plan.” Never mind seditious conspiracy, Roberts declares that “the Government did not provide sufficient proof of the existence of any conspiracy at all.”</p>\n</blockquote>\n<h2><em>U.S. v. Lee</em></h2>\n<p>In <a href=\"https://casetext.com/case/us-v-lee-170\" rel=\"nofollow noreferrer\"><em>U.S. v. Lee</em> 991 F.2d 343 (6th Cir. 1993)</a> the Sixth Circuit court wrote:</p>\n<blockquote>\n<p>The essential elements of the crime of conspiracy are:</p>\n</blockquote>\n<blockquote>\n<blockquote>\n<p>(1) that the conspiracy described in the indictment was willfully formed, and was existing at or about the time alleged; (2) that the accused willfully became a member of the conspiracy; (3) that one of the conspirators thereafter knowingly committed at least one of the overt acts charged in the indictment, at or about the time and place alleged; and (4) that such overt act was knowingly done in furtherance of some object or purpose of the conspiracy as charged.</p>\n</blockquote>\n<p><em>United States v. Poulos</em>, 895 F.2d 1113, 1117 (6th Cir. 1990) (quoting <em>United States v. Meyers</em>, 646 F.2d 1142, 1143-44 (6th Cir. 1981)). More specifically, to sustain a conviction under 21 U.S.C. § 846, the government is required to prove the existence of an agreement to violate the drug laws and that each conspirator knew of, intended to join, and participated in the conspiracy. <em>United States v. Sanchez</em>, 928 F.2d 1450, 1457 (6th Cir. 1991).</p>\n<p>...</p>\n<p>... A defendant cannot be convicted of conspiracy merely on the grounds of guilt by association, and mere association with the members of a conspiracy without the intention and agreement to accomplish an illegal objective is not sufficient to make an individual a conspirator. See <em>United States v. Melchor-Lopez,</em> 627 F.2d 886, 891 (9th Cir. 1980).</p>\n<p>...</p>\n<p>If an indictment alleges one conspiracy, but the evidence can be construed as only supporting a finding of multiple conspiracies, a variance results. <em>United States v. Warner</em>, 690 F.2d 545, 548 (6th Cir. 1982). However, even if a variance exists, it does not constitute reversible error "unless it prejudice[s] [the defendant's] substantial rights."* United States v. Guerra-Marez*, 928 F.2d 665, 671 (5th Cir.), <em>cert. denied</em>, ___ U.S. ___, 112 S.Ct. 322, 116 L.Ed.2d 263 and ___ U.S. ___, 112 S.Ct. 443, 116 L.Ed.2d 461 (1991) (quoting <em>United States v. Richerson</em>, 833 F.2d 1147, 1154-55 (5th Cir. 1987)). Moreover, "[i]f the government proves multiple conspiracies and a defendant's involvement in at least one of them, then clearly there is no variance affecting that defendant's substantial rights." Guerra-Marez, 928 F.2d at 672 (quoting <em>United States v. L'Hoste</em>, 609 F.2d 796, 801 (5th Cir.), cert. denied, 449 U.S. 833, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980)).</p>\n</blockquote>\n<p>So ther elements of a general conspiracy must be proved for a lawful conviction of a seditious conspiracy.</p>\n<h2>Conclusion</h2>\n<p>As far as I can learn, the US DoJ has never brought seditious conspiracy charges against people accused merely of stealing government property. Rather it has reserved such charges for people accused of seriously attempting to organize a revolt, or a violent armed opposition to the government as a whole, or a significant part of that government. Should a charge under Sec 2384 be brought for a simple case of theft by force of government property, we will then see how a court handles the issue. But it seems unlikely that such a charge will be brought, and no such charge has been brought in the current prosecution under 2384.</p>\n",
"score": 4
}
] |
[
"united-states",
"theft",
"definition",
"conspiracy"
] |
If a creditor refuses to accept payment for a debt, is the debt extinguished?
| 0 |
https://law.stackexchange.com/questions/86933/if-a-creditor-refuses-to-accept-payment-for-a-debt-is-the-debt-extinguished
|
CC BY-SA 4.0
|
<p>JURISDICTION: New Hampshire, United States</p>
<p>If a creditor refuses to accept payment for a debt, is the debt extinguished?</p>
<p>I know this sounds bizarre, but some companies are no longer accepting payment for debts or other obligations unless they meet some criteria.</p>
<p>For example, recently I had a vendor refuse a check to pay for goods because there was a company name on the check and the goods had been purchased under the personal name of the agent who bought the goods, not under the company name. Crazy.</p>
<p>Anyway, from a legal point of view the check was good and was presented to pay for the goods and the vendor's refusal of the check essentially constitutes refusal to accept payment. So, what happens now? Should I consider the debt to be extinguished? Do I need to sue them to extinguish the debt??? What the heck, if they don't accept my check, I don't see how they can keep insisting I owe them money. There was no agreement I ever signed whereby I promised to pay them only out of certain bank accounts or whatever.</p>
<p>What is the law or UCC on this?</p>
| 86,933 |
[
{
"answer_id": 86938,
"body": "<h2>it depends on the contract.</h2>\n<p>Let's say Alice has a contract with Bob, formulated as follows: Alice lends Bob 20 dollars and in return, Bob repays Alice 2 dollars a week for 11 weeks.</p>\n<p>The contract does not have room for an early payment of any outstanding amount. It also has no room for Charly to pay for Bob's fees. So Alice does not <strong>have</strong> to accept Bob trying to pay off all the remaining amount at once, or Charly to pay for Bob's loan. She may, but nothing forces her to accept those alterations to the contract. She can insist on the term: Bob repays Alice 2 dollars a week for 11 weeks.</p>\n<p>Now, Bob presents a check for 2 dollars that is signed by Charly. Does Alice have to accept it? No. Alice is entitled to a payment <strong>from Bob</strong>. The Check is a payment that goes from Charly to whoever cashes the check. Alice is not entitled to any payment from Charly. In fact, she might not even be allowed to cash the check legally.</p>\n<p>Since Alice is entitled to the payment from Bob, Bob could cash the check from Charly and then write a check to Alice. Or Bob could do a money transfer to Alice. Or he could take the cash to Alice. But she does <strong>not</strong> need to accept a check that is not a payment <em>by Bob</em>. Though, nothing forces her to accept checks to begin with, if her terms of service exclude payment by check.</p>\n",
"score": 1
},
{
"answer_id": 86958,
"body": "<h2>A contract may restrict the manner of payment</h2>\n<p>All contracts implicitly limit payment to the currency in which they are denominated. So, for a contract denominated in USD, payment in EUR or CAD or Bitcoin or poppy seeds may be refused.</p>\n<p>A contract may restrict payment by excluding some forms (e.g. no checks or no cash) or by specifically nominating a form (e.g. payment will be by electronic funds transfer). Such terms are binding and other types of payment may be refused.</p>\n<p>If the contract is silent then the recipient may reasonably limit the types of payment they will accept. In countries where there is a legal tender law (e.g. the\n<a href=\"https://www.law.cornell.edu/uscode/text/31/5103\" rel=\"nofollow noreferrer\">USA</a>), legal tender must be accepted unless the contract excludes it. Note that not all jurisdictions have legal tenet laws; Scotland for example and, in England and Wales, it is limited to banknotes issued by the Bank of England - notes from Scottish banks are not legal tender even though they are in GBP.</p>\n<p>Offering payment of a debt in legal tender discharges it whether or not it is accepted - again, unless the contract excludes that method of payment.</p>\n<h2>TL;DR</h2>\n<p>The creditor is not obliged to accept that (or any other) check. You still owe the money.</p>\n",
"score": 1
},
{
"answer_id": 86956,
"body": "<p>ohwilleke was nice enough to answer this question in the comments, so I will just expand on what he wrote. Presenting a negotiable instrument does extinguish the debt if the creditor refuses it. Here is the quote from the UCC:</p>\n<blockquote>\n<p>2016 New Hampshire Revised Statutes<br />\nTitle XXXIV-A - UNIFORM COMMERCIAL CODE<br />\nChapter 382-A - UNIFORM COMMERCIAL CODE<br />\nSection 382-A:3-603 - Tender of Payment.<br />\nUniversal Citation: NH Rev Stat § 382-A:3-603 (2016)</p>\n<p>382-A:3-603 Tender of Payment.<br />\n(b) If tender of payment of an obligation to pay an instrument is made to a person entitled to enforce the instrument and the tender is\nrefused, there is discharge, to the extent of the amount of the\ntender, of the obligation of an indorser or accommodation party having\na right of recourse with respect to the obligation to which the tender\nrelates.</p>\n</blockquote>\n",
"score": 0
}
] |
[
"united-states",
"contract-law",
"debt"
] |
Do Canadian publication bans apply to the contents of court documents?
| 1 |
https://law.stackexchange.com/questions/86954/do-canadian-publication-bans-apply-to-the-contents-of-court-documents
|
CC BY-SA 4.0
|
<p><a href="https://www.justice.gc.ca/eng/cj-jp/victims-victimes/factsheets-fiches/publication.html" rel="nofollow noreferrer">According to this government website, a publication ban is defined as:</a></p>
<blockquote>
<p>A publication ban is an order the Court makes that prevents anyone from publishing, broadcasting, or sending any information that could identify a victim, witness, or other person who participates in the criminal justice system. The publication ban is intended to allow victims, witnesses, and others to participate in the justice system without suffering negative consequences.</p>
</blockquote>
<p>But do these bans also apply to the contents of court documents themselves? For instance, <a href="https://www.canlii.org/en/bc/bcsc/doc/2020/2020bcsc1216/2020bcsc1216.html" rel="nofollow noreferrer">this court document</a>.</p>
<p><strong>Would I be allowed to talk about this on TV? Write about it on a website? Distribute copies of this PDF online/in-person?</strong></p>
<p>Also what on earth does the sentence <em>"These Reasons have been edited for publication purposes"</em> mean?</p>
| 86,954 |
[
{
"answer_id": 86962,
"body": "<p>The publication ban applies universally, even to the court's own publication of the reasons. The court will not typically publish material in violation of its own publication bans. The judgment you cite says, "These Reasons have been edited for publication purposes." That normally means that the reasons as published have been edited with that publication ban in mind. However, the wording of that publication ban seems to encompass information that is apparently in the published reasons, which is perplexing.</p>\n<p>A good publication-ban notice will indicate the statutory or inherent jurisdiction under which the ban was granted, the specific category of information prohibited from dissemination, and the time scope of the ban.</p>\n<p>The actual drafting of the language of the ban in a judgment is up to the judge and court practices.</p>\n<p>A much better example is <a href=\"https://canlii.ca/t/2c6db\" rel=\"nofollow noreferrer\">this one</a>:</p>\n<blockquote>\n<p>Pursuant to s. 486.4, s. 486.5 and the inherent jurisdiction of the Court, information that may identify certain witnesses and undercover police officers may not be published, broadcast or transmitted in any manner. All other publication ban orders issued during this proceeding have expired. This version of the Reasons for Judgment complies with the existing publication bans.</p>\n</blockquote>\n<p>It would be even better if it were to explicitly say it applies indefinitely or until further court order.</p>\n<p>A pretty perfect example is <a href=\"https://canlii.ca/t/jjckl\" rel=\"nofollow noreferrer\">this one</a>:</p>\n<blockquote>\n<p>A publication ban has been imposed under s. 486.5 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence <strong>that could identify a victim/witness/undercover officer, referred to in this judgment by initials</strong>. This publication ban applies indefinitely unless otherwise ordered.</p>\n</blockquote>\n<p>This is good because it identifies which people publications cannot identify (victims, witnesses, or undercover officers, who are referred to in the judgment by initials), it states the statutory source of the ban, and it identifies the length of the ban.</p>\n<p>In the case of the example you provide, I would reach out to the court registry or communication officer to get more details about the ban before publishing anything about the case.</p>\n<p>Also, while the reasons themself may not identify the victim/witness/etc., a third-party publication might combine together information in a way that "could identify" them. Publications are prohibited from doing this. Publications must also not republish information that could identify the protected person even if that information was inadvertently left in the published reasons of the court.</p>\n",
"score": 2
}
] |
[
"criminal-law",
"canada"
] |
Does freedom of religion extend to witchcraft?
| 0 |
https://law.stackexchange.com/questions/86961/does-freedom-of-religion-extend-to-witchcraft
|
CC BY-SA 4.0
|
<p>Someone in my discord server told me the following after someone made an offensive joke to her.</p>
<p>I try to be tolerant with people of different backgrounds.</p>
<blockquote>
<p>I am pagan and I practice witchcraft. I understand SW are a part of the Navajo culture, but they intertwine in paganism. I am offended because that is not a creature to joke about. In paganism just like the Navajo culture it is a relentless witch who practices one of the darkest shades of magick. Even if I wasn’t pagan and got offended, when someone asks you to not make fun of something in another culture. It’s best to not make fun of it.</p>
</blockquote>
<p>The thing is back during the ancient times, people were wrongly executed for witchcraft.</p>
<p>But since this person explicitly says she practices witchcraft, would the freedom of religion protect her or would she be on the government's kill list?</p>
| 86,961 |
[
{
"answer_id": 86964,
"body": "<p>Actually, there is not a government kill list, that is just a meme. The First Amendment says (starts) "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...". That means a number of different concrete things: there shall be no laws prohibiting any religion, or preferring a religion, not may there be laws impeding or promoting the practice of a religion. The government therefore cannot reward or punish a person for believing in skin walkers, nor for turning themselves into a coyote (if they can do it). The old practice of burning witches at the stake is illegal, similarly at least under current understandings of the law it would be illegal to punish those without a religion with a fine or death.</p>\n<p>The aforementioned person can thus practice witchcraft – up to a point. One cannot get away with murder by claiming that they are just practicing the Ásatru ritual of blót. <a href=\"https://supreme.justia.com/cases/federal/us/508/520/\" rel=\"nofollow noreferrer\">Church of the Lukumi Babalu Aye v. City of Hialeah</a> is an example of how the government can <em>not</em> restrict a religious practice (banning animal sacrifices of a particular religion), <a href=\"https://supreme.justia.com/cases/federal/us/494/872/\" rel=\"nofollow noreferrer\">Employment Division v. Smith</a> is an example of a neutral prohibition which happens to impinge on a religion (outlawing certain drugs limits a religious practice).</p>\n",
"score": 4
}
] |
[
"united-states",
"freedom-of-religion"
] |
Are Satanists legal in the US?
| 2 |
https://law.stackexchange.com/questions/35597/are-satanists-legal-in-the-us
|
CC BY-SA 4.0
|
<p>I heard that Satanists in USA are legal and are even represented in the counsil of the churches and have "study books" used in school.</p>
<p>In Russia there is a law that acts which are done to harm somebody other are illegal.</p>
<p>Does the US have a similar law? If so, would the courts consider Satanism harmful and thus illegal (based on the fact that Satan's purpose as he is described in certain religions is to harm and the purpose of Satanists may be to follow Satan as described in certain religion)?</p>
| 35,597 |
[
{
"answer_id": 35598,
"body": "<p>There is no such law in the US, although there many laws prohibiting specific forms of harm, for example laws against murder, theft, assault, arson. All laws are predicated on the idea that an illegal act causes harm, but I don't get to deem, for example, that you are harming society by opposing Satan. There are no laws prohibiting any belief in the US, and such a law would be unconstitutional (in violation of the First Amendment). So being a Satanist could not possibly be illegal. </p>\n",
"score": 14
},
{
"answer_id": 35608,
"body": "<p>The United States has two main (and perfectly legal) branches of Satanism: <a href=\"https://en.wikipedia.org/wiki/LaVeyan_Satanism\" rel=\"nofollow noreferrer\">LaVeyan Satanism</a> which dates to about the 1966, and the <a href=\"https://en.wikipedia.org/wiki/The_Satanic_Temple\" rel=\"nofollow noreferrer\">Satanic Temple</a> founded in 2012. The Satanic Temple has Satanic images recognized in public holiday displays in several states (for example, <a href=\"https://www.foxnews.com/us/satanic-temple-statue-joins-holiday-display-in-illinois-capitol\" rel=\"nofollow noreferrer\">Illinois</a> and <a href=\"http://www.tampabay.com/news/politics/stateroundup/satanic-temple-holiday-display-arrives-at-florida-capitol/2211166\" rel=\"nofollow noreferrer\">Florida</a>). Satanism is fully protected by the First Amendment to the Bill of Rights in the United States.</p>\n<p>Many outsiders would also consider <a href=\"https://en.wikipedia.org/wiki/Wicca\" rel=\"nofollow noreferrer\">Wicca</a> to be a form of Satanism, which is also legal and also full of very moral people doing good things.</p>\n<p>Your references to school study are probably to the Satanic Temple's <a href=\"https://en.wikipedia.org/wiki/The_Satanic_Temple#After_School_Satan\" rel=\"nofollow noreferrer\">After School Satan</a> program, a voluntary and private after school activity club providing an alternative to voluntary and private after school club's for Christians. (I would have enrolled my children in them, if they had existed at the time.)</p>\n<p>The <a href=\"https://nationalcouncilofchurches.us/\" rel=\"nofollow noreferrer\">National Council of Churches</a> in the United States is a private <a href=\"https://en.wikipedia.org/wiki/Ecumenism\" rel=\"nofollow noreferrer\">ecumenical</a> association of Christian denominations, predominantly consisting of mainline Christian and Orthodox churches, that seeks to be a public voice for mainstream Christian views, although it is not a very vocal or powerful political force and has no formal legal power. This organization does not have any Satanist or Wiccan members, or for that matter, any non-Christian members.</p>\n<p>The National Council of Churches is not, however, a <a href=\"https://en.wikipedia.org/wiki/Dominion_theology\" rel=\"nofollow noreferrer\">Christian dominionist</a> organization that seeks to make the United States a country with an officially Christian religion. None of these denominations want the United States to have an established Christian church.</p>\n<p><a href=\"https://en.wikipedia.org/wiki/State_religion#Former_state_churches_in_British_North_America\" rel=\"nofollow noreferrer\">Much of New England</a> did have an established church into the early 1800s, notwithstanding the First Amendment's prohibition of the establishment of a government church (which was understood to only apply to the federal government, at first).</p>\n<p>For example, the established church (historically Puritan in character) of Massachusetts <a href=\"https://www.history.com/news/when-massachusetts-banned-christmas\" rel=\"nofollow noreferrer\">made it a crime to public celebrate Christmas</a> or make it a holiday for about two decades because Christmas was considered to be pagan (or more specifically, Satanic) rather than Christian in nature, and schools and businesses commonly stayed open on December 25 in that state into the mid-1800s.</p>\n<p><a href=\"https://i.stack.imgur.com/26xdr.jpg\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/26xdr.jpg\" alt=\"Public notice banning Christmas\" /></a></p>\n<p>But, <a href=\"https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights#Amendment_I\" rel=\"nofollow noreferrer\">now</a> (and at least since the late 19th century or early 20th century), the First Amendment's free exercise and establishment clauses have been understood to apply to both state and local governments and to the federal government in the United States.</p>\n<p>The notion that Satanism or Wicca harms others is simply not true. For example, claims of <a href=\"https://en.wikipedia.org/wiki/Satanic_ritual_abuse\" rel=\"nofollow noreferrer\">Satanic ritual abuse</a> are hysterical delusions. Your presumption that Satanism is harmful is misguided.</p>\n<p>To the extent that the harm is "spiritual" (e.g. causing your soul to go to hell instead of heaven), such harms are not recognized under U.S. law.</p>\n",
"score": 9
},
{
"answer_id": 35604,
"body": "<p>As another answer has said, in the US people have a protected right under the federal First Amendment, to hold and practice what ever religious views they choose. This includes members of the Church of Satan, and it includes people who do in fact, worship the christian Devil. </p>\n\n<p>There is no such thing as \"the counsil of the churches\" if you refer to some sort of official or government sponsored organization. In some places there are local private organizations which associate various different religious groups. These are voluntary, and decide for themselves which groups to include, there is no single rule among them.</p>\n\n<p>In public schools, run by the government, religious books of any religion are not used as school texts, which is what I suppose you mean by </p>\n\n<blockquote>\n <p>have \"study books\" used in school.</p>\n</blockquote>\n\n<p>In some places students do learn <strong>about</strong> various religions, from a secualr point-of-view. I am not aware of any school that specifically studies satanism, but there could be one.</p>\n\n<p>Religious schools, run by a church or religious organization, of course teach the religion that their sponsoring body holds. Any religion could set up such a school.</p>\n\n<p>People are not allowed, in the US, to do seriously illegal things merely because they claim to do them as part of a religion. For example, human sacrifice would still be murder, and illegal. Some laws do have exemptions for religious organizations, or for people acting under religious motives. For example churches are allowed to hire only members of their own faith as preachers and teachers, even though religious discrimination in employment is usually illegal. Native American groups have been allowed to use traditional intoxicants, even though they are otherwise prohibited. </p>\n",
"score": 4
}
] |
[
"united-states",
"civil-law",
"religion",
"religious-law",
"freedom-of-religion"
] |
Can players and coaches be held criminally liable for actions that they take beyond the scope of their game?
| 10 |
https://law.stackexchange.com/questions/86904/can-players-and-coaches-be-held-criminally-liable-for-actions-that-they-take-bey
|
CC BY-SA 4.0
|
<p>Back in 2012, the NFL charged the New Orleans Saints with running a <a href="https://fanbuzz.com/nfl/new-orleans-saints-bountygate/" rel="noreferrer">bounty system from 2009 to 2011</a> with the stated goal of knocking out opposing players via injury thereby improving their odds of winning their games. Ultimately, <a href="https://en.wikipedia.org/wiki/New_Orleans_Saints_bounty_scandal" rel="noreferrer">Bountygate</a>, resulted in the league handing down some of its most stringent punishments and fines upon some of the guilty parties.</p>
<p>Based on the investigation completed, it appears that there was substantial evidence to support charging blame towards members of the coaching staff, general management, as well as several defensive players (estimates are between 22-27 players) whom had contributed towards a fund to provide payouts for injuries dealt to opposing teams.</p>
<p><a href="https://www.nfl.com/news/legal-action-in-wake-of-saints-bounty-revelations-not-likely-09000d5d82761060" rel="noreferrer">This article</a> indicates that criminal charges in the US are unlikely given courts preference to defer to leagues to be self-regulating, however, the article notes that conduct far outside of what the player can expect might see prosecution. Does the opposing team running a bounty system rise to that level, especially given that the <a href="https://www.onlabor.org/wp-content/uploads/2017/04/co_.pdf" rel="noreferrer">NFL Constitution</a> <a href="https://www.nola.com/sports/saints/full-nfl-statement-into-bounty-program-run-by-new-orleans-saints/article_8742fc0b-72a7-5a8d-998d-b425ffee06df.html" rel="noreferrer">specifically prohibits payment bonuses based on performance against an individual player or team</a>?</p>
<p>The rules of football do promote a physical, high-contact sport that has a high probability of injury, however, the league has made rule changes to reduce the risk of injuries in a lot of scenarios.</p>
<p>Given that opposing players are presumably playing with those rule changes in mind and presumably not trying to deliberately tear another player's ACL and furthermore there being video and audio recordings of coaches promoting tactics to deliberately violate those rules (deliberate targeting of opponents' heads), could a prosecutor file criminal charges against these players and coaches with assault or conspiracy? Furthermore, what court would have jurisdiction if charges were filed?</p>
| 86,904 |
[
{
"answer_id": 86905,
"body": "<h3>Generally, yes</h3>\n<blockquote>\n<p>Can players and coaches be held criminally liable for actions that they take beyond the scope of their game?</p>\n</blockquote>\n<p>Yes. For example, Todd Bertuzzi <a href=\"https://en.wikipedia.org/wiki/Todd_Bertuzzi%E2%80%93Steve_Moore_incident#Legal_action_and_lawsuits\" rel=\"noreferrer\">was convicted with assault causing bodily harm</a> for punching Steve Moore. Since that event happened in British Columbia, it was a British Columbia court that had jurisdiction.</p>\n<p>In 2000, Marty McSorley was found guilty of assault for slashing another player in the head with his stick. This also happened in British Columbia: <em>R. v. McSorley</em>, <a href=\"https://canlii.ca/t/5l69\" rel=\"noreferrer\">2000 BCPC 116</a>. The judge quoted an older case, saying:</p>\n<blockquote>\n<p>Patently, when one engages in a hockey game, one accepts that some assaults, which would otherwise be criminal, will occur and consents to such assaults. It is equally patent, however, that to engage in a game of hockey is not to enter a forum to which the criminal law does not extend. To hold otherwise would be to create the hockey arena a sanctuary for unbridled violence to which the law of Parliament and the Queen's justice could not apply.</p>\n</blockquote>\n<p>The judge recognized that there is an "unwritten code of conduct agreed to by the players and officials" including norms of fighting, but that McSorley's actions were outside of those norms. Even a slash directed at the upper shoulder area was too risky (that it might miss, and instead hit the head) to be covered under any consent.</p>\n<p>A rugby player was convicted of manslaughter when he aimed to "Pile drive [an opponent] hardest I could into ground" and ended up causing his death: <em>R. v. C.(C.)</em>, <a href=\"https://canlii.ca/t/23q50\" rel=\"noreferrer\">2009 ONCJ 249</a>. The judge noted that consent will be implied "with respect to force that is outside the rules but within the scope of the accepted standards by which the game is played." He also found that "[t]he defendant <em>intentionally applied force that was outside the rules of the game or any standard by which the game is played</em>. [The deceased] did not explicitly consent to that force and I am satisfied beyond any doubt that no such consent can be implied."</p>\n<p>The issue will be what degree of contact and force was consented to. The factors often cited come from <em>R. v. Cey</em>, <a href=\"https://canlii.ca/t/1pfmr\" rel=\"noreferrer\">1989 SKCA</a>:</p>\n<blockquote>\n<p><strong>the game of hockey involves a continuous series of assaults</strong>. Obviously, most of the body contact is consented to merely by the decision to participate in the sport. To determine at what point this consent disappears is not an easy task, but it must be identified in order to determine when a player moves from conduct calling for the imposition of a penalty into conduct which involves a criminal assault calling for a criminal conviction and sentence</p>\n</blockquote>\n<blockquote>\n<p>The conditions under which the game in question is played, the nature of the act which forms the subject-matter of the charge, the extent of the force employed, the degree of risk of injury, and the probabilities of serious harm are, of course, all matters of fact to be determined with reference to the whole of the circumstances. In large part, they form the ingredients which ought to be looked to in determining whether in all of the circumstances the ambit of the consent at issue in any given case was exceeded.</p>\n</blockquote>\n<h3>Bountygate seems trickier</h3>\n<p>The rest of this is opinion and is less well researched. I do not believe the above theory of liability (assault vitiating implied consent) is easily applicable to the circumstances of of Bountygate. First, I am not sure this theory of assault is applied in the United States. Second, it seems to me that there would be near insurmountable evidentiary hurdles in establishing that any particular tackle was motivated by an intent to injure (normally, ulterior intent is irrelevant for assault, but it seems to be a factor in considering whether implied consent has been vitiated in the sports context).</p>\n<p>However, there may be some kind of conspiracy-based offence available. Given that the offence would have happened entirely in the United States, it would be state or U.S. federal law that would apply and I will need to leave it to another answer to fill in the details of this theory, if it would indeed be viable.</p>\n",
"score": 14
},
{
"answer_id": 86919,
"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>I know you're asking from a USA perspective but certainly in the UK this has happened on a number of occasions.</p>\n<blockquote>\n<p>On April 16, 1994, in a Scottish Premiership fixture against Raith Rovers, Rangers striker Duncan Ferguson decided to headbutt defender John McStay. It was an incident that would land him a three-month prison sentence for assault.</p>\n</blockquote>\n<p><a href=\"https://www.sportbible.com/football/duncan-ferguson-rangers-jail-headbutt-john-mcstay-raith-rovers-20220722#:%7E:text=On%20April%2016%2C%201994%2C%20in,month%20prison%20sentence%20for%20assault.\" rel=\"nofollow noreferrer\">link</a></p>\n<p>Also probably more famously (in the UK).</p>\n<blockquote>\n<p>He was also sentenced to 14 days in prison by a magistrate after pleading guilty to common assault, but that was overturned by a judge at the end of March, who ruled the player should not be jailed simply because he is a public figure.</p>\n</blockquote>\n<p><a href=\"https://www.espn.co.uk/football/english-premier-league/23/blog/post/2258750/when-manchester-uniteds-eric-cantona-attacked-a-fan-at-crystal-palace-rewind-to-1995\" rel=\"nofollow noreferrer\">Eric Cantona</a></p>\n",
"score": 8
},
{
"answer_id": 86959,
"body": "<p>Back in 1955, there was a stick incident between the Boston Bruins' Hal Laycoe and the Montreal Canadiens' Maurice Richard (aka "Rocket Richard") that nearly resulted in Richard's arrest by the Boston PD (the Montreal players barred the locker room door to prevent the police from entering) (<a href=\"https://en.wikipedia.org/wiki/Richard_Riot#Incident\" rel=\"nofollow noreferrer\">https://en.wikipedia.org/wiki/Richard_Riot#Incident</a>).</p>\n<p>The aftermath of that incident continued, with Richard suspended through the rest of the season (including the playoffs). A large riot ensued at the next Montreal home game.</p>\n<p>Some say that the Richard Riot was one of the sparks that set off Quebec's <a href=\"https://en.wikipedia.org/wiki/Quiet_Revolution\" rel=\"nofollow noreferrer\"><em>Quiet Revolution</em></a>.</p>\n<p>Hockey is important in Montreal - even when it happens in Boston.</p>\n",
"score": 0
}
] |
[
"united-states",
"assault",
"multiple-jurisdiction",
"sport",
"conspiracy"
] |
How to prohibit "Discussion of Illegal Activity" -- but only the bad kind?
| 1 |
https://law.stackexchange.com/questions/86787/how-to-prohibit-discussion-of-illegal-activity-but-only-the-bad-kind
|
CC BY-SA 4.0
|
<p>Online forums often have rules that say "Discussion of illegal activity" is prohibited. By this, they want to prevent users from using the forum from doing things like planning crimes, or (in the case of a game) sharing ways to cheat.</p>
<p>However, the phrase is really too broad.</p>
<p>Taken literally, a user could not ask if something that happened to them was illegal, or if a venture they're planning would violate copyright. A gamer could not explain why a certain trick was prohibited - even if the game had been repaired so that the trick no longer worked.</p>
<p>I understand the sentiment. An article of "scams to avoid" is also a list of "scams you can try".</p>
<p>What's a better way to say "Planning or instructing on how to commit illegal activity is prohibited, but informing on how prevent or avoid illegal activity is allowed"?</p>
| 86,787 |
[
{
"answer_id": 86792,
"body": "<h2>It isn’t too broad</h2>\n<p>English is not interpreted in isolation but in context. You understand that “discussion of illegal activity” means “doing things like planning crimes, or (in the case of a game) sharing ways to cheat”. So does everybody else.</p>\n<p>Including the other things you mention in the phrase are a stretch and obviously so. Therefore, that’s not what it means.</p>\n",
"score": 1
},
{
"answer_id": 86957,
"body": "<p>We decided on "Instructional (as opposed to informational) discussions of illegal activity".</p>\n<p>I'm not entirely satisfied with that, but it will do for the first draft.</p>\n",
"score": 0
}
] |
[
"terms-of-service",
"definition",
"online"
] |
Can you defame a profession?
| 14 |
https://law.stackexchange.com/questions/86912/can-you-defame-a-profession
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CC BY-SA 4.0
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<p>Suppose someone publishes the statement "All lawyers are thieves." Obviously, this is not true; there most likely are some lawyers who are also thieves, but certainly not all. Would it be possible for any lawyer to sue this person for defamation, either individually or in a class action?</p>
| 86,912 |
[
{
"answer_id": 86913,
"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><a href=\"https://www.dmlp.org/legal-guide/who-can-sue-defamation\" rel=\"noreferrer\">https://www.dmlp.org/legal-guide/who-can-sue-defamation</a></p>\n<p>One of the elements of defamation is that the statement must be "of and concerning" the plaintiff.</p>\n<blockquote>\n<p>Accordingly, defamatory statements about a group or class of people\ngenerally are not actionable by individual members of that group or\nclass. There are two exceptions to this general rule that exist when:</p>\n<ul>\n<li>the group or class is so small that the statements are reasonably understood to refer to the individual in question; or</li>\n<li>the circumstances make it reasonable to conclude that the statement refers particularly to the individual in question.</li>\n</ul>\n<p>See Restatement (2d) of Torts, § 564A (1977).</p>\n</blockquote>\n<p>The article suggests that the cutoff for a "small group" is about 25 people.</p>\n<p>(They cite an interesting example from 1952: <a href=\"https://casetext.com/case/neiman-marcus-co-v-lait\" rel=\"noreferrer\"><em>Neiman-Marcus v. Lait</em>,\n13 F.R.D. 311 (S.D.N.Y. 1952)</a>. A store had a sales staff of 25 male and 382 female employees. The defendant published a book asserting that "most of" the male sales staff were homosexual, which I suppose was <em>per se</em> defamatory in 1952, and that the female staff generally were prostitutes. The court held that the men had been defamed but the women had not.)</p>\n<p>So since there are more than 25 lawyers in the world, "all lawyers are thieves" would not defame any individual lawyer.</p>\n<p>I don't believe that class action suits for defamation are permitted at all. I can't currently find a source for this, but I also can't find any report of such a case having been heard.</p>\n",
"score": 29
},
{
"answer_id": 86920,
"body": "<p>I have the impression that certain professions are more likely to sue when faced with criticism (I hope that statement doesn't get me sued). So I searched for cases involving chiropractors and found an article about the British Chiropractors Association suing Simon Singh for libel.</p>\n<p><a href=\"https://www.theguardian.com/science/blog/2012/feb/22/simon-singh-british-chiropractic-association\" rel=\"nofollow noreferrer\">https://www.theguardian.com/science/blog/2012/feb/22/simon-singh-british-chiropractic-association</a></p>\n<p>The outcome was the Singh prevailed but apparently the BCA had legal advice that they had a valid cause to sue (apparently it was "iron clad") so it seems likely that given different circumstances it would be possible to win an anti-defamation case on behalf of a profession in the UK. Note this case was 10 years ago but I don't think there have been substantial changes to the libel laws in the UK in that time.</p>\n",
"score": 4
}
] |
[
"defamation",
"any-jurisdiction"
] |
Is the list of characters from a video game considered a fact?
| 1 |
https://law.stackexchange.com/questions/86947/is-the-list-of-characters-from-a-video-game-considered-a-fact
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CC BY-SA 4.0
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<p>If yes, what uses of a list of character names are non-infringing (on copyright/trademark) according to the <a href="https://en.m.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._Rural_Telephone_Service_Co." rel="nofollow noreferrer">Feist v. Rural</a> ruling? E.g. can the character names be included in a dictionary?</p>
| 86,947 |
[
{
"answer_id": 86950,
"body": "<h2>Names can not be copyrighted, but a list of names... maybe</h2>\n<p>A name by its very nature can not be copyrighted, but a list of names, like any written work, may fall under copyright law if it is not expressly a list of facts created by no creative endeavor. If the list of names you are talking about is a list of user names, then that may qualify as a list of facts, but if the list is something some game designer sat down and came up with as part of the creative work, then it is not. Inside a videogame: any text, source code, and/or graphics can be copyrighted, so a list of names copied as is from a game may be considered copyright infringement if the list is long enough to exceed fair-use practices and if the names demonstrate that they were the result of a creative process.</p>\n<p>So, if the game has written somewhere either in the user interface or source code itself, the list of names: "Liam, Noah, Oliver, ... [1000 names later] ...Davian", and you copy this list exactly, then it could be copyright infringement. If the game has 1000 NPCs, and you make your own game where there are 1000 NPCs with the exact same names as the other game, then you are not copying a contiguous body of text; so, it is still in theory fine even if the names are not classified as a matter of fact.</p>\n<h2>That said, you may get sued anyway</h2>\n<p>Too much similarity between games is often used as grounds for suing over the <em>possibility</em> that you are using stollen source code. Because source code is both proprietary and copyrightable, companies don't need to prove that you are using thier source code to begin giving you a bad day. Just opening an investigation into IF you are using stollen source code can be very damaging.</p>\n<p>Your computers could be seized, employee time wasted complying with audits and interrogations, an injunction could prevent you from selling your game until the investigation is over, your reputation could be destroyed, you have to hire lawyers, etc... in short, your company could be ruined even if the law suit never makes it all the way to court. Because of the cost of defending yourself, some game companies have been known to sue over things like this knowing full-well that they would lose in court because they are more interested in putting competitors out of business and/or to winning an out-of-court settlement from defendants who can not afford the cost of defending against the suit itself.</p>\n<p>In short, just because something is legal does not always mean it is legally a smart thing to do.</p>\n",
"score": 1
},
{
"answer_id": 86948,
"body": "<h2><a href=\"https://www.copyright.gov/help/faq/faq-protect.html#:%7E:text=No.,Titles%2C%20or%20Short%20Phrases%22.\" rel=\"nofollow noreferrer\">Names are <strong>never</strong> copyrighted</a></h2>\n<blockquote>\n<p>No. Names are not protected by copyright law. Some names may be protected under trademark law. Contact the U.S. Patent & Trademark Office, TrademarkAssistanceCenter@uspto.gov or see <a href=\"https://www.copyright.gov/circs/circ33.pdf\" rel=\"nofollow noreferrer\">Circular 33</a> for further information. However, copyright protection may be available for logo artwork that contains sufficient authorship. In some circumstances, an artistic logo may also be protected as a trademark.</p>\n</blockquote>\n<p><em>Feist</em> did not deal with trademarks at all. A list of trademarks indicating who holds their trademark is not confusing in the market as to the origin of goods. If it is a dictionary or directory that just lists facts, such as the character name, holder and games they are in (aka: Mario (Nintendo): Super Mario. Super Mario 2. Super Smash Brothers....) without images at all, then there is no trademark infringement - the trademarks are only in nominative use.</p>\n",
"score": 0
}
] |
[
"united-states",
"copyright",
"trademark"
] |
How drunk is too drunk? How does the law reconcile being drunk in sexual assault vs other crimes?
| 1 |
https://law.stackexchange.com/questions/86657/how-drunk-is-too-drunk-how-does-the-law-reconcile-being-drunk-in-sexual-assault
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CC BY-SA 4.0
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<p>One thing that concerns me about sexual assault court cases is the following:</p>
<p><strong>In sexual assault cases:</strong><br />
an intoxicated person is said to be unable to give legal consent to intercourse.</p>
<p><strong>In other criminal cases:</strong><br />
an intoxicated person cannot use drunkenness as a defense against their actions.</p>
<p>I find it contradictory that a person who is unable to make decisions about their own sexual behavior due to intoxication may still be held accountable for criminal acts committed during that time. Surely, if a person cannot make decisions about their own body while intoxicated, they should also not be held responsible for crimes committed during that same time period?</p>
<p>How do prosecutors typically handle cases involving alcohol? Is there a specific threshold for determining when someone is too drunk to be held responsible for their actions? Do prosecutors rely on blood alcohol level tests to determine a person's level of intoxication, or do they make a judgment based on the circumstances of the case?</p>
| 86,657 |
[
{
"answer_id": 86659,
"body": "<p>I will use <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=9a.44&full=true\" rel=\"noreferrer\">Washington law</a> to lay the landscape for a rape charge. First degree rape is sexual intercourse with another person by forcible compulsion, either with kidnapping, (apparent) threat of a deadly weapon, beating the victim, or feloniously entering the building of vehicle where the victim is. This is not the case under discussion. What does potentially apply is second degree rape, which is sexual intercourse by other types of forcible compulsion, or (b) When the victim is incapable of consent by reason of being physically helpless or mentally incapacitated, or various similar descriptions of diminished capacity (a developmental disability plus perpetrator supervisory authority, etc). Subparagraph (b) is crucial here, and we turn to the definitionL</p>\n<blockquote>\n<p>"Mental incapacity" is that condition existing at the time of the\noffense which prevents a person from understanding the nature or\nconsequences of the act of sexual intercourse whether that condition\nis produced by illness, defect, the influence of a substance or from\nsome other cause.</p>\n</blockquote>\n<p>Also to be clear on "forcible compulsion",</p>\n<blockquote>\n<p>"Forcible compulsion" means physical force which overcomes resistance,\nor a threat, express or implied, that places a person in fear of death\nor physical injury to herself or himself or another person, or in fear\nthat she or he or another person will be kidnapped</p>\n</blockquote>\n<p>In the case of intercourse with an intoxicated person, the government must prove that the victim's condition prevented them from understanding the nature or consequences of intercourse.</p>\n<p>Now compare the law in Minnesota, otherwise analogous, but with a different definition of <a href=\"https://www.revisor.mn.gov/statutes/cite/609.341\" rel=\"noreferrer\">"mentally incapacitated"</a> (subd. 7):</p>\n<blockquote>\n<p>"Mentally incapacitated" means:</p>\n<p>(1) that a person under the influence of alcohol, a narcotic,\nanesthetic, or any other substance, administered to that person\nwithout the person's agreement, <em>lacks the judgment to give a reasoned\nconsent</em> to sexual contact or sexual penetration; or</p>\n<p>(2) that a person is under the influence of any substance or\nsubstances to a degree that <em>renders them incapable of consenting or\nincapable of appreciating, understanding, or controlling the person's\nconduct</em>.</p>\n</blockquote>\n<p>(italics indicate the differences of interest). The second clause in the Minnesota definition states the same idea as the Washington definition, but also adds "inability to control" as a form of incapacity. The first clause states a different standard of inability, lowered from "incapable of deciding" to "lacking judgment", but only when the condition arises without the person's consent.</p>\n<p>The point here is that prosecution and conviction do not just depend on a generic and universal concept of "consent", it very much depends on the exact words selected by the legislature in establishing these laws. Minnesota's legislature made one set of choices, Washington's made another.</p>\n<p>The Washington legislature made another choice when it came to intoxication: per <a href=\"https://apps.leg.wa.gov/rcw/default.aspx?cite=9a.16&full=true#9A.16.090\" rel=\"noreferrer\">RCW 9a.16.090</a>,</p>\n<blockquote>\n<p>No act committed by a person while in a state of voluntary\nintoxication shall be deemed less criminal by reason of his or her\ncondition, but whenever the actual existence of any particular mental\nstate is a necessary element to constitute a particular species or\ndegree of crime, the fact of his or her intoxication may be taken into\nconsideration in determining such mental state.</p>\n</blockquote>\n<p>So an voluntarily drunk person cannot defend themselves saying "I was drunk, I didn't know what I was doing", but intoxication can be relevant to the important question of <a href=\"https://app.leg.wa.gov/RCW/default.aspx?cite=9A.08&full=true\" rel=\"noreferrer\">"knowledge"</a> as an element of culpability. This is a principle of law specifically set by the legislature.</p>\n<p>Prosecutors don't decide based on a hypothetical "how drunk" scale, instead they compare the facts with what the applicable law says. There is no "knowingly" requirement for prosecution for rape, therefore one cannot argue that because of intoxication the accused "lacked knowledge" of their act owing to intoxication. Being intoxicated according to the .08 driving standard does not (generally) render a person incapable of understanding "intercourse".</p>\n",
"score": 5
},
{
"answer_id": 86660,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"canada-container\">canada</a></p>\n<p>In Canada this distinction is explained by the vast difference between (a) the level of mental functioning required for the <em>capacity for consent</em> and (b) the level of mental functioning required for the basic <em>mens rea</em> element of <em>intention</em> to touch the complainant while knowing or being reckless or wilfully blind as to the absence of consent.</p>\n<p>This is because sexual assault has been characterized as a <em>general intent</em> offence. The accused need not have any purpose in mind. They need only to have the ability to take physical acts and the ability to consciously control and intend those acts. They do not need to understand the sexual nature of what they are doing or specifically intend to sexually assault the complainant. See <em>Leary v. The Queen</em>, <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2567/index.do\" rel=\"nofollow noreferrer\">[1978] 1 S.C.R. 29</a>. Consent, on the other hand, is a completely different concept from the ability to physically intend and execute actions; consent is about <em>understanding</em>.</p>\n<h3><em>Actus reus</em></h3>\n<p>The <em>actus reus</em> of sexual assault requires the Crown to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) <strong>to which the complainant did not consent</strong> (<em>R. v. G.F.</em>, <a href=\"https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18884/index.do\" rel=\"nofollow noreferrer\">2021 SCC 20</a>, citing <em>R. v. Ewanchuk</em>, <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1684/index.do\" rel=\"nofollow noreferrer\">[1999] 1 S.C.R. 330</a>).</p>\n<p>Capacity to consent is a precondition to consent and it has four requirements (<em>R. v. G.F.</em>, <a href=\"https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18884/index.do\" rel=\"nofollow noreferrer\">2021 SCC 20</a>). The complainant must be capable of understanding four things:</p>\n<blockquote>\n<ol>\n<li>the physical act;</li>\n<li>that the act is sexual in nature;</li>\n<li>the specific identity of the complainant's partner or partners; and</li>\n<li>that they have the choice to refuse to participate in the sexual activity.</li>\n</ol>\n</blockquote>\n<p>If the complainant is unable to understand even one of those things, they lack the ability to subjectively consent, and this establishes the third prong of the <em>actus reus</em>.</p>\n<h3><em>Mens rea</em></h3>\n<p>The <em>mens rea</em> requirement is that the Crown must show that "(i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent" (<em>R. v. G.F.</em>, citing <em>Ewanchuk</em>). However, in order for the accused to be able to rely on a defence that they mistakingly believed that the accused had consented, they must be able to show that they had an <em>honest but mistaken belief in communicated consent</em> (<em>R. v. Barton</em>, <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17800/index.do\" rel=\"nofollow noreferrer\">2019 SCC 33</a>). This requires the accused to have taken reasonable steps to ascertain that the complainant was consenting. An intention to touch, combined with failure to take reasonable steps to ascertain consent, will establish the <em>mens rea</em> for sexual assault. None of this is negated by the accused's intoxication.</p>\n<h3>Extreme intoxication defence is likely not available from alcohol alone</h3>\n<p>The only circumstance in which the accused's intoxication can provide a defence to sexual assault (or any general intent offence) is where the accused has been rendered "<strong>unaware of, or incapable of consciously controlling, their behaviour</strong>" (<em>Criminal Code</em>, <a href=\"https://laws-lois.justice.gc.ca/eng/acts/C-46/section-33.1.html\" rel=\"nofollow noreferrer\">s. 33.1(4)</a>).<sup>1</sup> This is intoxication so extreme that it is "akin to automatism" (<em>R. v. Daviault</em>, <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1172/index.do\" rel=\"nofollow noreferrer\">[1994] 3 S.C.R. 63</a>; <em>R. v. Brown</em>, <a href=\"https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19389/index.do\" rel=\"nofollow noreferrer\">2022 SCC 18</a>). The Court, Parliament, and expert toxologists have suggested that "alcohol alone is unlikely to bring about the delusional state akin to atomatism"; "it is not clear that extreme alcohol intoxication causes non-mental disorder automatism as a matter of basic science" (<em>R. v. Brown</em> at para. 4). The Supreme Court in <em>Brown</em> "specifically [left] intact the common law rule that drunkedness, absent clear scientific evidence of automatism, is not a defence to general intent crimes, including crimes of violence such as sexual assault."</p>\n<h3>Summary</h3>\n<ul>\n<li>the capacity to consent can be negated by a level of intoxication that impairs understanding of critical elements of the sexual touching</li>\n<li>the <em>mens rea</em> for sexual assault cannot be negated by intoxication unless it is so extreme that the accused is incapable of conscious control of their behaviour; akin to automatism; a degree of intoxication that people doubt can be achieved by alcohol alone.</li>\n</ul>\n<hr />\n<p><sup>1. And there are even further barriers to the use of this defence. If the accused's intoxication was self-induced and they departed markedly from the standard of care that would be expected of a reasonable person in their consumption of the intoxicating substances, even the defence of extreme intoxication will be unavailable. See <em>Criminal Code</em>, <a href=\"https://laws-lois.justice.gc.ca/eng/acts/C-46/section-33.1.html\" rel=\"nofollow noreferrer\">s. 33.1</a>.</sup></p>\n",
"score": 2
},
{
"answer_id": 86944,
"body": "<p>In a rape case, it doesn’t matter that the other person couldn’t make a decision: What matters is that consent was required and not given.</p>\n<p>If the accused says “we should have sex” and the other party says “yes” that’s consent. If they say “no” that is not consent. If they say “let me think about that”, that’s not consent. If they ignore you, that’s not consent. If they would like to have sex but are too drunk to say “yes” that’s not consent. If they don’t want sex but are too drunk to say “no” that’s not consent.</p>\n<p>All cases except saying “yes” are not consent and therefore rape. It doesn’t matter if no consent was given because of drunkenness, what matters is no consent was given. Not saying “no” isn’t consent.</p>\n<p>(PS Saying “yes” is not consent if the victim was forced, mentally handicapped, too drunk or under drugs, too young etc)</p>\n",
"score": 0
}
] |
[
"united-states",
"criminal-law",
"sexual-assault"
] |
Does Fat Fritz 2 violate GPL?
| 1 |
https://law.stackexchange.com/questions/61345/does-fat-fritz-2-violate-gpl
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CC BY-SA 4.0
|
<p>Fat Fritz 2 is a chess engine recently published and sold by Chessbase. <a href="https://en.chessbase.com/post/fat-fritz-2-best-of-both-worlds" rel="nofollow noreferrer">Release article</a>. It uses the Stockfish binary, and replaces the NNUE in Stockfish with its own. Stockfish itself is licensed under GPL; the text on <a href="https://stockfishchess.org/about/" rel="nofollow noreferrer">Stockfish's website</a> is:</p>
<blockquote>
<p>Stockfish is free, and distributed under the GNU General Public License Version 3 (GPLv3). Essentially, this means that you are free to do almost exactly what you want with the program, including distributing it among your friends, making it available for download from your web site, selling it (either by itself or as part of some bigger software package), or using it as the starting point for a software project of your own.</p>
<p>The only real limitation is that whenever you distribute Stockfish in some way, you must always include the full source code, or a pointer to where the source code can be found. If you make any changes to the source code, these changes must also be made available under the GPL.</p>
</blockquote>
<p>Fat Fritz 2 uses Stockfish's binary, and the (small) modifications the author made to the binary is publicly available. However, its NNUE is closed source. Does Fat Fritz 2 violate Stockfish's license? Stockfish's developers certainly <a href="https://blog.stockfishchess.org/post/643239805544792064/statement-on-fat-fritz-2" rel="nofollow noreferrer">aren't happy</a> with Fat Fritz 2, but I am wondering if they have a legal argument against Fat Fritz 2, or if the criticism is entirely on moral grounds.</p>
<p>If it is necessary for context: engines work by searching through the game tree and returning their so-called "eval function" on the end position. In other words, there are two crucial prongs of engine code:</p>
<ul>
<li>search, which governs how the engine searches through the game tree (e.g., which moves it looks at first)</li>
<li>eval, which governs how the engine judges the final position of the search (e.g., the side that has more material is usually better)</li>
</ul>
<p>Different engines usually have different search & eval code. In the case of Stockfish, its eval function is a neural network of a specific type ("NNUE"). Fat Fritz 2 uses Stockfish's search, but replaces Stockfish's NNUE with its own (definitely different) NNUE.</p>
| 61,345 |
[
{
"answer_id": 67994,
"body": "<p><a href=\"https://stockfishchess.org/blog/2021/our-lawsuit-against-chessbase/\" rel=\"nofollow noreferrer\">Stockfish filed a suit against Chessbase</a> (a distributor of Fat Fritz 2) alleging violation of GPL, so the fair answer to this question is probably "don't know, but we will find out".</p>\n<p><strong>Edit</strong>: a settlement has been <a href=\"https://www.chess.com/news/view/chessbase-stockfish-reach-settlement\" rel=\"nofollow noreferrer\">reached</a>. The answer to the title question is "yes"; Chessbase concedes that "they used Stockfish in violation of its license in two of their products, Fat Fritz 2 and Houdini 6". Furthermore, there is this clause:</p>\n<blockquote>\n<p>Also, neural networks offered by Chessbase for use with Stockfish that are included in the compilation or dynamically loaded at runtime to initialize the data structures and logic of the software must be subject to GPL-3.0 or a compatible license.</p>\n</blockquote>\n<p>So Fat Fritz 2's NNUE is also covered by GPL.</p>\n",
"score": 2
}
] |
[
"gpl"
] |
What are lawyers who work with FCC regulations called?
| 3 |
https://law.stackexchange.com/questions/85192/what-are-lawyers-who-work-with-fcc-regulations-called
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CC BY-SA 4.0
|
<p>I have a question about FCC regulations, and would like an answer from a lawyer. How would I find a lawyer familiar with this topic?</p>
| 85,192 |
[
{
"answer_id": 85193,
"body": "<p>The broad area is called <a href=\"https://www.americanbar.org/groups/communications_law/\" rel=\"nofollow noreferrer\"><em>communications law</em></a>. The <a href=\"https://www.americanbar.org/groups/legal_services/flh-home/flh-bar-directories-and-lawyer-finders/\" rel=\"nofollow noreferrer\">ABA links to state bar search tools</a> to help you find a lawyer in that area. Some states (e.g. Oregon) do not have one of those search-by-practice-area tools, but they may have an alternative like a <a href=\"https://www.osbar.org/public/ris\" rel=\"nofollow noreferrer\">lawyer referral service</a>.</p>\n",
"score": 2
}
] |
[
"united-states",
"lawyer",
"fcc"
] |
Arbitration: Favored Way of Resolving Disputes or Equal Footing?
| 2 |
https://law.stackexchange.com/questions/86565/arbitration-favored-way-of-resolving-disputes-or-equal-footing
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CC BY-SA 4.0
|
<p>In <a href="https://law.stackexchange.com/questions/86518/is-an-arbitraton-agreement-binding-during-a-month-to-month-tennacy-in-nj/86520#86520">a recent answer on SE</a> @ _ohwilleke writes:</p>
<blockquote>
<p>that the case law does make clear that the standard to apply the
arbitration clause is relatively modest <strong>especially where one party has
signed the agreement and another is a direct contractual successor to
a signatory party</strong></p>
</blockquote>
<p>And that:</p>
<blockquote>
<p>Courts tend to <strong>err very generously on the side of enforcing
arbitration agreements</strong> which there is a plausible connection of
contactual ties to the original agreement signed by both sides.</p>
</blockquote>
<p>Does the policy of erring on the side of arbitration remain in effect after the recent ruling of the U.S Supreme Court which (seemingly) put arbitration agreements on "equal footing" with other contractual obligations?</p>
<p>In <a href="https://www.supremecourt.gov/opinions/21pdf/21-328_m6ho.pdf" rel="nofollow noreferrer">Morgan v. Sundance Inc</a> SCOTUS ruled:</p>
<blockquote>
<p>The federal policy is about treating arbitration contracts like all
others, not about fostering arbitration.</p>
</blockquote>
<p>An article by <a href="https://www.foley.com/en/insights/publications/2022/06/supreme-court-makes-it-easier-waiver-arbitration" rel="nofollow noreferrer">foley.com</a> summarizes the ruling as follows:</p>
<blockquote>
<p>Supreme Court Reiterates that Arbitration Contracts Should Be
Evaluated on Equal Footing as Any Other Contract, and Courts Cannot
Create Special Arbitration Rules</p>
</blockquote>
<p>Does the new policy differ based on whether we know the two parties entered in an agreement to arbitrate at some point vs. when the parties dispute the formation of an arbitration agreement in the first place?</p>
<p>Are there any instances where the courts have favored arbitration (especially in NJ), after the U.S Supreme Court ruling?</p>
| 86,565 |
[
{
"answer_id": 86807,
"body": "<blockquote>\n<p>Does the policy of erring on the side of arbitration remain in effect after the recent ruling of the U.S Supreme Court which (seemingly) put arbitration agreements on "equal footing" with other contractual obligations?</p>\n</blockquote>\n<p>No. The <em>Morgan</em> court held:</p>\n<blockquote>\n<p>[T]he FAA's "policy favoring arbitration" does not authorize federal\ncourts to invent special, arbitration-preferring procedural rules</p>\n</blockquote>\n<p>(quotation marks in original)</p>\n<p>because ultimately</p>\n<blockquote>\n<p>the FAA's policy "is based upon the enforcement of contract, rather\nthan a preference for arbitration as an alternative dispute resolution\nmechanism"</p>\n</blockquote>\n<p>(quotation marks in original, citations omitted).</p>\n<p>This works in both directions. In the scenarios you have outlined elsewhere, an arbitration clause is to be enforced by virtue of it being a contractual matter rather than because the clause is about arbitration. A mere change of parties to a contract generally does not preclude enforcement of provisions in that contract. That is because the new party acquires the rights and obligations pursuant to the contract.</p>\n<blockquote>\n<p>Does the new policy differ based on whether we know the two parties entered in an agreement to arbitrate at some point vs. when the parties dispute the formation of an arbitration agreement in the first place?</p>\n</blockquote>\n<p>No. A dispute of whether the parties formed an arbitration agreement is moot if there is evidence --i.e., "<em>we know</em>"-- that they entered an agreement to arbitrate. But the policy itself remains the same.</p>\n<p>Enforcement of the FAA is premised on the ascertainment that the party(-ies) "<em>knew of the right [to arbitrate]</em>", just as with any other contract.</p>\n<blockquote>\n<p>Are there any instances where the courts have favored arbitration (especially in NJ), after the U.S Supreme Court ruling?</p>\n</blockquote>\n<p>That seems unlikely. It also would be improper because "<em>[u]nder both the FAA and New Jersey law, arbitration is fundamentally a matter of contract</em>", <em>Antonucci v. Curvature Newco, Inc.</em>, 470 N.J.Super. 553, 561 (App. Div. 2022), and a state may not "<em>subject an arbitration agreement to more burdensome requirements than those governing the formation of other contracts</em>", <em>Leodori v. CIGNA Corp.</em>, 175 NJ 293, 302 (2003). Both precedents are applied in <a href=\"https://www.leagle.com/decision/innjco20221129323\" rel=\"nofollow noreferrer\"><em>Zuluaga v. Altice USA</em>, Sup. Court of N.J. (App. Div., Nov, 2022)</a> in the decision "<em>to enter an order staying the case until the arbitration is completed</em>".</p>\n",
"score": 1
}
] |
[
"united-states",
"residential-lease",
"us-supreme-court",
"new-jersey",
"arbitration"
] |
Is there precedent for Supreme Court justices recusing themselves from cases when they have strong ties to groups with strong opinions on the case?
| 17 |
https://law.stackexchange.com/questions/86924/is-there-precedent-for-supreme-court-justices-recusing-themselves-from-cases-whe
|
CC BY-SA 4.0
|
<p>According to <a href="https://www.newsweek.com/amy-coney-barrett-under-pressure-supreme-court-gay-rights-case-1764605" rel="noreferrer">this article</a> in Newsweek, people are calling for Amy Coney Barrett to recuse herself from the <em>303 Creative LLC v. Elenis</em> case because she has strong ties to anti-gay Christian groups. While these people are probably right that she is biased, this still seems a little odd to me. Barret does not have ties to 303 Creative LLC itself, or to anyone directly involved in the case. She just has ties to people with strong opinions on the issue, which seems like something that would apply to many judges in many cases.</p>
<p>Is there precedent for Supreme Court justices recusing themselves from cases when they have strong ties to groups with strong opinions on the case?</p>
| 86,924 |
[
{
"answer_id": 86926,
"body": "<blockquote>\n<p>Is there precedent for Supreme Court justices recusing themselves from\ncases when they have strong ties to groups with strong opinions on the\ncase?</p>\n</blockquote>\n<p>Not really.</p>\n<p>Supreme Court justices decide unreviewably whether or not to recuse themselves from cases, informed by general canons of judicial ethics which guide their decisions even though they are non-binding on Supreme Court justices.</p>\n<p>There is a strong record of Supreme Court justices recusing themselves from particular cases in which the justice was involved as lawyer prior to becoming a Supreme Court justice.</p>\n<p>There is also a fairly strong record of Supreme Court justices recusing themselves from cases where they have a strong, personal, and particularized to them (as opposed to general to people of their class and situation) financial interest (e.g. from cases involving companies in which they have large investments or family members who are top managers).</p>\n<p>In the example given of the <em>303 Creative LLC v. Elenis</em> case, her strong ties to anti-gay Christian groups would normally not be a ground for recusal. General strong policy dispositions are normally not a basis for recusal. But, if instead, she were an investor in (or even a long time regular customer of) 303 Creative LLC, she would probably recuse.</p>\n",
"score": 29
}
] |
[
"united-states",
"us-supreme-court",
"conflict-of-interest"
] |
Are exhibits presented in order of importance or the order they'relisted?
| 0 |
https://law.stackexchange.com/questions/67336/are-exhibits-presented-in-order-of-importance-or-the-order-theyrelisted
|
CC BY-SA 4.0
|
<p>Are exhibits listed in the order they appear or in order of importance? I'm following the sample format on my county's "self-help center" for pro se litigants, and the example is for another type of case. It has a section for presenting the facts, and under that section (I. FACTS), I list all the relevant facts to the case. The purpose is to refute the libelous claims, so I provide the backstory of what actually happened, leading up to this person creating their libelous content. Thus, while it seems that the main libelous story would be "exhibit A," that doesn't come in until further down the list.</p>
<p>So is "exhibit A,", in my case, a relatively minor piece of evidence refuting an unflattering and false portion of the story, but unrelated to the main allegation (which is libel per se). Or is "Exhibit A" or "Exhibit 1" the libelous material and Exhibit B, the next most important piece of evidence, regardless of the order its presented in the list?</p>
| 67,336 |
[
{
"answer_id": 86929,
"body": "<p>I agree with @INaki Viggers that:</p>\n<blockquote>\n<p>There is no "formal" rule on that, but it is common for exhibits to be\nlabeled/listed in the order they are referenced in the pleadings and\nbriefs.</p>\n</blockquote>\n<p>But, for exhibits to be presented at a trial or hearing, the most common approaches are to list exhibits in order of anticipated presentation, in order of subject matter topics, or a combination of both. However, there is no penalty other than a possible loss of narrative flow, for using another order.</p>\n<p>It isn't uncommon to put late added exhibits at the end to avoid having to renumber them if you are in a time crunch.</p>\n",
"score": 3
},
{
"answer_id": 67340,
"body": "<blockquote>\n<p>Are exhibits listed in the order they appear or in order of importance?</p>\n</blockquote>\n<p>There is no "formal" rule on that, but it is common for exhibits to be labeled/listed in the order they are referenced in the pleadings and briefs.</p>\n<blockquote>\n<p>I'm following the sample format on my county's "self-help center" for pro se litigants</p>\n</blockquote>\n<p>In general, beware that sample formats tend to do more harm than good. You will be better off by looking at [lawyers'] filings of actual cases. Ask the clerk for access to the files of other cases litigated in that court.</p>\n<p>Learning from the filings other cases will be helpful not only from the standpoint of format, but also because their content will guide you on how to articulate your arguments and how to refute the opposing counsel's. Make sure you thoroughly understand the legal meaning of terms you intend to adopt/adapt from those other briefs. Blind imitation/copy of language can backfire.</p>\n",
"score": 2
}
] |
[
"evidence",
"litigation",
"pro-se"
] |
In the US, is it legal for me to commercially advertise a photograph that I took myself of a bottle of Coke?
| 2 |
https://law.stackexchange.com/questions/86925/in-the-us-is-it-legal-for-me-to-commercially-advertise-a-photograph-that-i-took
|
CC BY-SA 4.0
|
<p>Where would I find in <a href="https://www.copyright.gov/title17/92chap1.html" rel="nofollow noreferrer">https://www.copyright.gov/title17/92chap1.html</a> for example or other legal text whether it is legal for me to publish my photograph of a bottle of Coke for use to sell that bottle of Coke in my advertisement that I created, all commercially?</p>
| 86,925 |
[
{
"answer_id": 86928,
"body": "<p>Yes it would be legal to do so.</p>\n<p>A full analysis would look at trademark law (where the bottom line is that the use of the Coke mark is not misleading since you are selling bona fide Coke), and copyright law.</p>\n<p>Whether it was non-infringing or fair use, is a closer call, but there is little doubt that one way or the other, this would be legal.</p>\n",
"score": 4
}
] |
[
"united-states",
"copyright"
] |
Is it possible for the CEO of KODK to be found guilty of insider trading?
| 0 |
https://law.stackexchange.com/questions/55734/is-it-possible-for-the-ceo-of-kodk-to-be-found-guilty-of-insider-trading
|
CC BY-SA 4.0
|
<h2>Background context</h2>
<p>Recently, the American film company KODK announced a deal with the US government to manufacture generic pharmaceuticals in the US.</p>
<p>After the announcement, the company's stock price increased from around $2 on July 27 to $50 on July 29. Before this announcement, there was significant trading activity, leading some to speculate that the company's executives were involved in insider trading.</p>
<p><a href="https://www.reddit.com/r/investing/comments/i73euo/kodak_down_almost_40_in_pre_market_loan_deal_on/g0zjxe7?utm_source=share&utm_medium=web2x&context=3" rel="nofollow noreferrer">Others have dismissed the accusations of insider trading and have instead attributed the unusual volume of trading to a mishandled press embargo.</a></p>
<p>These days, the majority of class action lawsuits against KODK seemingly focuses on two particular points.</p>
<ol>
<li><p>The CEO Jim Continenza bought 46,737 shares on 6/23/2020 (prior to the drug deal announcement). However, the company has defended this by pointing out that Mr. Continenza regularly makes similarly sized purchases of his company's stock every fiscal quarter + he hasn't sold any of his holdings.</p>
</li>
<li><p>The CEO Jim Continenza was granted options on 6/27/2030 (prior to the drug deal announcement). However, the company has defended this by pointing out that Mr. Continenza was granted these options in order to shield him from <a href="https://www.marketwatch.com/story/kodaks-stock-tumbles-again-after-disclosing-investors-have-converted-debt-into-nearly-30-million-common-shares-2020-08-03" rel="nofollow noreferrer">potential dilution as a result of a debt-equity swap</a></p>
</li>
</ol>
<h2>Question about this</h2>
<p>Based on the information provided, what is the likelihood that KODK could be found guilty of insider trading from a legal standpoint?</p>
| 55,734 |
[
{
"answer_id": 86931,
"body": "<p>The NY AG thought that the CEO did and <a href=\"https://markets.businessinsider.com/news/stocks/kodak-ceo-continenza-ny-ag-insider-trading-allegation-letitia-james-2021-6-1030492330\" rel=\"nofollow noreferrer\">secured court ordered questioning</a> related to the allegation, bringing the NY AG to a decision point <a href=\"https://www.democratandchronicle.com/story/news/2022/01/11/will-ag-sue-kodak-leaders-ceo-james-continenza-questioned-in-insider-trading-probe/9133540002/\" rel=\"nofollow noreferrer\">in January of 2022 after the testimony was obtained.</a> It could not find any reports of action taken by the NY state AG after that deposition of the Kodak CEO.</p>\n<p>An update of a related case brought by shareholders as of September 20, 2022 stated:</p>\n<blockquote>\n<p><em>In re Eastman Kodak Co. Sec. Litig.</em>, No. 21-cv-6418, 2021 WL 3361162\n(W.D.N.Y. Aug. 2, 2021): We have been following the consolidated\ncases captioned under the heading <em>In re Eastman Kodak Co. Securities</em>\n<em>Litigation</em> since our 2020 Year-End Securities Litigation Update. The\nplaintiffs in this putative class action allege that Eastman Kodak and\ncertain of its current and former directors and select current\nofficers violated securities laws by failing to disclose that its\nofficers were granted stock options prior to the company’s public\nannouncement that it had received a loan to produce drugs to treat\nCOVID-19. Dkt. No. 116 at 2. The defendants moved to dismiss earlier\nthis year, arguing in part that the stock options grants did not\nconstitute insider trading because the complaint lacked any allegation\nthat the company and the individual defendants did not have the same\ninformation before the options grants were issued, which is necessary\n“[b]ecause an option grant is a ‘trade’ between a company and an\nofficer,” Dkt. No. 159-1 at 21. The defendants also argued that the\nplaintiffs failed to allege that the “timing of the [o]ptions [g]rants\nwas manipulated to provide additional compensation to the officers.”\nId. The court recently heard oral argument on the pending motion, but\nhas yet to issue a decision. Dkt. No. 196.</p>\n</blockquote>\n<p>This case was <a href=\"https://news.bloomberglaw.com/securities-law/eastman-kodak-beats-securities-suit-over-covid-linked-loan-deal\" rel=\"nofollow noreferrer\">dismissed on or around September 27, 2022</a>.</p>\n",
"score": 1
}
] |
[
"united-states",
"insider-trading"
] |
How to handle local sales tax for online sales regarding unincorporated city/town limits
| 1 |
https://law.stackexchange.com/questions/85946/how-to-handle-local-sales-tax-for-online-sales-regarding-unincorporated-city-tow
|
CC BY-SA 4.0
|
<p>I have a client Located in Louisiana performing online sales inside Louisiana which is in a destination-based sales tax state. I have run into an issue where they are using the town name from the delivery address to collect town sales taxes; however, some towns have unincorporated zones where the residents use the name of the closest town for address reasons, but they are technically outside of town limits meaning that the sales tax should not apply to them.</p>
<p>Below is a map of one such town where the red-dotted line is the town limits, but the yellow line represents the unincorporated zone where people use the town's name in thier address.</p>
<p>Due to how these lines fall, how do destination-based sales tax states expect sales tax to be collected when the City and Zip code of an address can not be used to determine if a particular address is inside of a local tax area?</p>
<p><a href="https://i.stack.imgur.com/t54zE.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/t54zE.png" alt="enter image description here" /></a></p>
| 85,946 |
[
{
"answer_id": 85948,
"body": "<p>There are vendors providing software to facilitate this sort of task. <a href=\"https://www.avalara.com/\" rel=\"nofollow noreferrer\">Avalara</a> is perhaps the best known, but I don't have any experience with it and couldn't say whether it's actually any good or not.</p>\n<p>But the bottom line is that in a destination-based sourcing regime, sales taxes must be computed based on the <em>address</em> of the destination, not city or ZIP code associated with that address. As Avalara has noted, <a href=\"https://www.avalara.com/blog/en/north-america/2022/02/small-business-with-tax-calculations-you-cant-just-zip-through.html\" rel=\"nofollow noreferrer\">this is a giant hassle</a>, but it's nonetheless the current state of the law.</p>\n<p>Of course, this assumes <a href=\"https://www.salestaxinstitute.com/sales_tax_faqs/what_is_nexus\" rel=\"nofollow noreferrer\">the seller has sufficient nexus</a> with Louisiana to trigger a duty to collect sales taxes in the first place. From the question, it is not clear whether this is true.</p>\n",
"score": 4
}
] |
[
"united-states",
"tax-law",
"louisiana"
] |
Does a treaty have to be compatible with the US constitution to be implemented?
| 3 |
https://law.stackexchange.com/questions/86922/does-a-treaty-have-to-be-compatible-with-the-us-constitution-to-be-implemented
|
CC BY-SA 4.0
|
<p>What would be the effect of the United States ratifying a treaty that is incompatible with its constitution?</p>
| 86,922 |
[
{
"answer_id": 86923,
"body": "<blockquote>\n<p>Does a treaty have to be compatible with the US constitution to be\nimplemented?</p>\n</blockquote>\n<p>Yes.</p>\n<p>A treaty that is incompatible with the U.S. Constitution is void to the extent it is unconstitutional. <em>See, e.g., Doe v. Braden</em>, 57 U.S. (16 How.) 635, 657 (1853) ("The treaty is . . . a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States."); <em>The Cherokee Tobacco</em>, 78 U.S. (11 Wall.) 616, 620 (1870) ("It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument."); <em>De Geofroy v. Riggs</em>, 133 U.S. 258, 267 (1890) ("It would not be contended that [the treaty power] extends so far as to authorize what the constitution forbids."); <em>Asakura v. City of Seattle</em>, 265 U.S. 332, 341 (1924) ("The treaty-making power of the United States . . . does not extend ‘so far as to authorize what the Constitution forbids.’") (quoting <em>De Geofroy</em>, 133 U.S. at 267); <em>Reid v. Covert</em>, 354 U.S. 1, 16 (1957) ("This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty.").</p>\n",
"score": 7
}
] |
[
"united-states",
"international",
"constitutional-law",
"treaty"
] |
Is the term "evil" defined in law?
| 17 |
https://law.stackexchange.com/questions/86775/is-the-term-evil-defined-in-law
|
CC BY-SA 4.0
|
<p>An infamous clause found occasionally in software licenses is:</p>
<blockquote>
<p>The Software shall be used for Good, not Evil.</p>
</blockquote>
<p>This clause has been discussed in many places, including <a href="https://softwareengineering.stackexchange.com/q/47028/240946">Software Engineering Stack Exchange</a> and <a href="https://opensource.stackexchange.com/q/4247/6207">Open Source Stack Exchange</a>.</p>
<p>While a lot of people don't seem to like this clause, I wanted to step back and analyze the idea of "evil" from a purely legal perspective rather than the social milieu of the open source community.</p>
<p>To that end, is the term "evil" a proper term in law with a distinct meaning? One idea I had was to interpret it as a synonym of "unlawful" or maybe "criminal". The other idea is to understand it more in the sense of legal positivism, where socially-defined "good" and "evil" are distinguished from legally-defined "lawful" and "unlawful", and so a particular act might be "good" but "unlawful" or "evil" but "lawful".</p>
<p>Neither of these definitions seems satisfactory.</p>
<p>The problem I have with the first definition is that it adds unnecessary complexity to what should be more simply expressed as "This software is not to be used for any unlawful purpose." or "Committing any felony or gross misdemeanor with the software shall constitute a breach of the license agreement.". It also likely places someone who commits an unlawful act as minor as forgetting to add coins to a parking meter on the same level as a cackling comic book supervillain who gets off on bombing orphanages, which seems disingenuous.</p>
<p>The problem I have with the legal positivism definition is that it empowers a court to define social rules, which it is not designed to do. For example, some people (based on their beliefs) might characterize using scheduling software to manage abortion clinic appointments to be an "evil" use (and thus a breach of the license), while others might take the opposite perspective and claim that using the same scheduling software to plan anti-abortion protests or manage the shifts of law enforcement officers investigating suspected clandestine abortion clinics are "evil" usages forbidden by the license.</p>
<p>I'm interested in either an analysis of the meaning of "evil" in a general legal sense (in any jurisdiction in which the term might have been given a specific meaning or been interpreted by a court) or a sense restricted to software licenses, if such has ever been done.</p>
<p>Discussion:</p>
<p>As hinted at by respondents and commentators, I do see a distinction between acts that the vast majority of reasonable people would see as "clearly" evil such as ethnic cleansing, slavery, or rape and acts where the evil-ness or lack thereof is a valid point of debate, such as abortion, marketing habit-forming drugs, or not eating vegan. An answer might cover this. For example, is determination of whether a questionable act qualifies as evil a question of law for the judge or a question of fact for the trier of fact (e.g. jury)? Are the personal moral beliefs of the software licensor and/or licensee relevant? For example, if I have a personal moral belief (not shared by most of the members of my community) that eating at Burger King is evil because they buy from factory farms but I nonetheless use scheduling software with a "no evil" clause to schedule a lunch date at Burger King, am I in breach of the license? If the software's owner/licensor is a highly devout Catholic who considers any form of birth control to be pure evil but I (the licensee) disagree, is my act of using the software to facilitate an otherwise lawful condom purchase a breach?</p>
<p>I do recognize that none of the situations I described above are likely to land me inside a courtroom due to practical matters. That is why my question is about the nature and definition of "evil" for legal purposes rather than advice for any specific situation, license, or use. I know what <a href="https://www.youtube.com/watch?v=HEXWRTEbj1I" rel="nofollow noreferrer">"love"</a> means, but what does "evil" mean?</p>
| 86,775 |
[
{
"answer_id": 86781,
"body": "<p>While not defined, in common law systems, there is a concept of <em>Malum in se</em> which can be translated to "Wrong or Evil in itself" and is used to describe criminal actions that are wrong because they are immoral as opposed to criminal actions that are wrong because they are prohibited (<em>Malum Prohibitum</em>).</p>\n<p>As an example, Murder is considered <em>Malum in se</em> while driving on the wrong side of the road is <em>Malum Prohibitum</em>. <em>Malum in se</em> thus is a crime because the action is immoral.</p>\n",
"score": 20
},
{
"answer_id": 86791,
"body": "<h2>Evil exists in the legal system</h2>\n<p>Evil is a perfectly cromulent word and, if this clause was ever litigated, the court would need it to determine its meaning and determine if the acts or omissions alleged met that definition or not.</p>\n<p>The word itself has been used in numerous judgements.</p>\n<p>For example, in <a href=\"https://www.hcourt.gov.au/assets/cases/s172-2012/Monis-Droudis_Res1.pdf\" rel=\"noreferrer\"><em>Monis v The Queen</em> [2013] HCA 4; 249 CLR 92; 87 ALJR 340; 295 ALR 259; 227 A Crim R 451</a> it was used in the following context:</p>\n<blockquote>\n<ol start=\"34\">\n<li>In other words and contrary to the appellants' submissions, it must be taken to mean more than insulting or annoying. Criminal sanctions are imposed. In context it must mean seriously offensive or grossly offensive, or repugnant in a moral sense. <strong>In this way its meaning would be in keeping with menacing: which means threatening to cause <em>evil</em>, harm or injury</strong>; and harassing -tormenting by repeated attacks. In context offensive means conduct which is more deserving of opprobrium than mere annoyance. It derives from the Latin and encompasses the notion of an attack and in this context a serious attack, one which is in keeping with its placement alongside the word menacing. In construing "offensive" in s.471.12, the CCA properly considered a range of matters including the context and subject matter.</li>\n</ol>\n</blockquote>\n<p>More recently, in <a href=\"https://eresources.hcourt.gov.au/downloadPdf/2022/HCA/19\" rel=\"noreferrer\"><em>Alexander v Minister for Home Affairs & Anor</em> [2022] HCA 19</a>:</p>\n<blockquote>\n<p>314 Whilst it must be accepted that it may be possible to enter innocently into a "declared" area, <strong>it is also possible to do so with <em>evil</em> intention.</strong> In 2014, Islamic State's reputation for extreme violence was notorious and it had become one of the world's deadliest and most active terrorist organisations.</p>\n</blockquote>\n<p>In Australian jurisprudence the word appears to mean malicious acts intended to harm others.</p>\n",
"score": 16
},
{
"answer_id": 86776,
"body": "<h2>it would need to be defined in the license!</h2>\n<p>If a clause is ambiguous, a court must decide what it means. If a word isn't in the law, it means what the court decides it means. In this case, <em>evil</em> is not defined and lacks a standard definition that all people can agree to. As a result... the clause is ill-defined to non-defined and thus... means nothing.</p>\n",
"score": 4
},
{
"answer_id": 86777,
"body": "<h2>No</h2>\n<p>There is no legal definition for "evil". Nor is there any generally agreed sense of what constitutes "evil" in the language as a whole. Different people have different ideas of what is and what is not "evil".</p>\n<p>Therefore, it is hard to see how such a license provision could be enforced. What actions using the software could a copyright owner reasonably expect a court to prevent or to award damages for? As far as I know, the clause in question has never been enforced in a court action. It seems to be at best an aspiration or a wish. I would not include such a clause in any license I applied to software that I had written.</p>\n",
"score": 4
},
{
"answer_id": 86786,
"body": "<p>For the specific purpose of copyright licensing, there is no objective legal definition of "evil" that would tell you whether "selling for a profit" is good or evil. If some software so licensed were used to effectuate genocide, the courts could deem that on a balance of probabilities, a reasonable person would understand that genocide is "evil", just as they would find that "selling something for a profit" is "commercial", and also that using said material for educational purposes is not, even if the instructor is paid to teach. Copyright licenses are fundamentally agreements, where the courts primarily inquire into that the parties understood by the wording of the agreement.</p>\n<p>Apart from the specific (in)advisability of a vague reference to "evil" in a copyright license, the concept of "evil" does indeed exist in law, and is rather foundational in all legal systems. However, it is <em>so</em> foundational that a law that "penalizes an evil act" would probably be overturned as unconstitutionally vague. Insofar as Shari`a law depends on Arabic terms, not English terms, I exclude discussion of Shari`a prohibitions (<em>hudud</em>).</p>\n<p>Common law incorporates many concepts derived from church law. <a href=\"https://deliverypdf.ssrn.com/delivery.php?ID=202110105020071066025089101007113000020086089012039042073006094074072097073068069088018007127038053121097006085069064006003099042071071006015067121071097082004019019008017043122024105087075002002007127002001103088080004093119118125007018023075004117096&EXT=pdf&INDEX=TRUE\" rel=\"nofollow noreferrer\">This article</a> focuses on the notion of "evil law", which in the course of the discussion naturally discusses the concept of "evil" in law, indeed in the abstract (indirectly) gives us a succinct definition of evil as "intolerable harm".</p>\n<p>The case of <a href=\"http://media.ca1.uscourts.gov/pdf.opinions/13-1909P-01A.pdf\" rel=\"nofollow noreferrer\">US v. Gray</a> is a criminal case touching on "evil", involving violation of <a href=\"https://www.law.cornell.edu/uscode/text/49/46507\" rel=\"nofollow noreferrer\">49 USC 46507</a> penalizing certain statements given "maliciously or with reckless disregard for the safety of human life". The law doesn't define what "maliciously" means, so the judge must instruct jurors. Based on Sand's Modern Federal Jury Instructions, defense proposes that "[t]o act maliciously means to do something with an evil purpose or motive". The judge then instructs the jury as follows:</p>\n<blockquote>\n<p>And then we turn to the question of what we call "malice," "willful or\nmalicious conduct." To act maliciously in this context means to do\nsomething with an evil purpose or motive. It means to do something\nthat is knowingly wrong, and here suggestions have been made that Ms.\nGray had some malice toward American Airlines. But the [g]overnment\nhas to prove that and you have to evaluate it</p>\n</blockquote>\n<p>but the government chipped away at the instruction, and eventually the jury got an instruction that "what 'malice' means is to act with an evil purpose or an improper motive". Gray was convicted, and appealed – the definition of "maliciously" is the central issue (is it specifically based on "evil"?). The court found in favor of the defendant's more-restrictive definition of malice, one based strictly on evil and not extending to "improper motive". The court's understanding of the difference is summarized in the statement that</p>\n<blockquote>\n<p>The universe of things that are considered improper would encompass\nanything from wearing a hat indoors to filing a frivolous lawsuit.\nEvil, on the other hand, is more commonly used to describe something\nthat is morally reprehensible.</p>\n</blockquote>\n<p>So, "evil" <em>can</em> be a thing in law, but it is highly disparaged exactly because there isn't a clear legal definition of "evil".</p>\n",
"score": 4
}
] |
[
"legal-terms",
"any-jurisdiction",
"legal-doctrine"
] |
When does a retail flight simulator, or racing game, need to license aircraft or vehicles from their manufacturers?
| 3 |
https://law.stackexchange.com/questions/86886/when-does-a-retail-flight-simulator-or-racing-game-need-to-license-aircraft-or
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CC BY-SA 4.0
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<p>Supposing someone (whether an individual, small company like an indie game studio, or large game publisher with an established legal department (EA, Microsoft, etc)) wants to make a flight simulator product - or generic car racing game - featuring aircraft or vehicles from real-life (say, a Boeing 737 in a flight-sim, or Ford Focus in a rally-racing game)…</p>
<ul>
<li>Is it <em>always</em> required to obtain a license to use the aircraft/vehicle maker’s trademarks, even when used strictly nominatively, with attribution?
<ul>
<li>My understanding is that nominative use does not require a license.</li>
</ul>
</li>
<li>…and to model an in-game/in-sim vehicle based on a real-life vehicle’s technical performance statistics? (But not necessarily its visual appearance or aesthetic likeness)
<ul>
<li>My understanding is that technical specifications and performance/handling statistics are not “protected” by any IP law (besides database-rights, which don’t apply in this case).</li>
</ul>
</li>
<li>…and to have a recreation of a vehicle’s visual appearance or aesthetic design?
<ul>
<li><p>My understanding is that in most cases this is required because the design of a car is copyrighted - but this doesn’t seem to be uniformly applicable in all situations: obviously the devs/publishers of <em>Gran Turismo</em> are going to license car designs from Ferrari and Porsche, but e.g. in games built on parody or satire, that such a license likely wouldn’t ever be given - but isn’t necessary due to legal protections for satire. But where is the line drawn between irreverence and satire? Why or when should the law distinguish between those types of games?</p>
</li>
<li><p>What about military aircraft in flight simulators? There are plenty of serious, non-satire, games and simulators using the names, likeness, and specifications of dozens or more real-world aircraft, including aircraft for which are probably un-licensable due to their classified nature (such as the comprehensive set of enemy aircraft in <em>EF 2000</em> and other flight sims from the early 1990s when formerly-Soviet aircraft makers were simply too culturally detached from western game-makers, assuming they could even be contacted at all, or even had legal departments concerned with media IP rights at all).</p>
</li>
<li><p>…and what about <em>megaprojects</em> like 80,000+ tonne aircraft carriers or SSBNs that don’t have a single contractor or conceivably any copyright over their overall aesthetic design?</p>
</li>
</ul>
</li>
</ul>
| 86,886 |
[
{
"answer_id": 86890,
"body": "<p>It is not per se necessary to license objects depicted in a video game.</p>\n<p>A <a href=\"https://www.theartnewspaper.com/2020/04/13/new-york-court-rules-call-of-duty-video-game-as-art\" rel=\"nofollow noreferrer\">2020 court case</a> has decided that the same rules apply to video games as to other forms of art. Just like you don't need to license every car on the road every time you take a picture of said road.</p>\n<p>Most court cases that are brought against non-licensed use of vehicles claim <a href=\"https://www.wsgr.com/en/insights/courts-provide-guidance-on-the-depiction-of-real-world-works-including-video-games.html\" rel=\"nofollow noreferrer\">something other</a> than simple use of the design, such as false implication of license or use of a trademark.</p>\n<p>Military vehicles enjoy less protection than civilian ones. The works of the US Federal Government, for one, are not copyrightable. The design of military vehicles is also a lot more functional rather than artistic.</p>\n<p>To claim copyright protection for a vehicle design, one would have to prove that the design wasn't driven by function - which is something military contractors for large projects definitely aren't hired to do. A carrier's or SSBN's shape, for instance, isn't copyrighted at all, because it's necessary for their performance.</p>\n<p>However, there are elements of real-world objects that would be protected by copyright against depiction in games. An accurate and detailed depiction of non-functional elements can be a copyright violation.\nCases have been brought against artist tattoos on human models. A complex vinyl decal on a car can also be copyright-protected against depictions, but only to the extent that its depiction isn't necessary to keep the vehicle recognizable.</p>\n<p>For a big studio, licensing the vehicles can be simpler and cheaper than risking a need for a potential legal defense. It can also provide help from the manufacturer in recreating a detailed design, such as drawings and 3D models. But it is not strictly necessary.</p>\n",
"score": 5
}
] |
[
"intellectual-property",
"video-games"
] |
Does non-objectively justifiable optimism constitute insider trading?
| 1 |
https://law.stackexchange.com/questions/86899/does-non-objectively-justifiable-optimism-constitute-insider-trading
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CC BY-SA 4.0
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<p>As a hypothetical:</p>
<p>Company A is a competitor of Company B. Management of Company A thinks that Company A is so much better than Company B that Company B will soon go out of business. After getting approval from all major stakeholders of Company A, management publicly announces plans to short Company B and provides their reasons for doing so, but these reasons are mostly subjective. For example, the management of Company A believes that Company A has a better culture, smarter employees, and more efficient processes.</p>
<p>Later on, Company A does short Company B, and Company B shortly thereafter goes out of business, making Company A a lot of money. Has Company A (or its executives acting on Company A's behalf) committed insider trading?</p>
<p>According to rule 240.10b5-1, insider trading is defined as:</p>
<blockquote>
<p>among other things, the purchase or sale of a security of any
issuer, on the basis of material nonpublic information about that
security or issuer, in breach of a duty of trust or confidence that is
owed directly, indirectly, or derivatively, to the issuer of that
security or the shareholders of that issuer, or to any other person
who is the source of the material nonpublic information.</p>
</blockquote>
<p>On the one hand, there was no breach of trust as Company A, with approval from stakeholders, made a good faith effort to publicize their actions and information used to justify these actions in advance. On the other hand, a reasonable person might argue that management of Company A had an unfair advantage over other investors in Company B in that they were acting on "nonpublic information about that security". Specifically, management of Company A knew firsthand what Company A was actually like- information that is relevant to the prospects of their competitor, Company B. The general investing public outside of Company A had to rely on the claims of management, which might reasonably be taken with a grain of salt since many companies claim to have "the best" culture and talent.</p>
<p>I understand that this question is fairly speculative, so to make things a little less theoretical, I would prefer answers that provide specific regulations, court cases, or legislation addressing the following issues central to this question:</p>
<ol>
<li>Is there some privileged information that simply cannot be acted upon even if made public since it cannot be publicly verified in an objective way (e.g. the firsthand impression of management of how well the company is doing)? To put it another way: is an indirect duty of trust owed by management of a company to the entire general investing public- not just investors in the company itself?</li>
<li>To what extent does getting the approval of stakeholders in Company A and publicly announcing planned actions in advance protect against insider trading regulations? (Note that this is different than the typical case of employees filing plans to buy or sell stock in their company in advance because (a) this involves another company's stock and (b) the plan is publicly announced after becoming aware of information relevant to the stock price of Company B not before.)</li>
</ol>
| 86,899 |
[
{
"answer_id": 86915,
"body": "<h2>The management of Company A does not have a duty of trust to Company B</h2>\n<p>As such, they can act on whatever information they like.</p>\n",
"score": 2
},
{
"answer_id": 86921,
"body": "<blockquote>\n<p>Does non-objectively justifiable optimism constitute insider trading?</p>\n</blockquote>\n<p>No. The premise that traders' "<em>reasons are mostly subjective</em>" implies that they did not act on material information at all. Consequently, this defeats the notion that "<em>management of Company A had an unfair advantage over other[s]</em>".</p>\n<blockquote>\n<p>management of Company A knew firsthand what Company A was actually like- information that is relevant to the prospects of their competitor, Company B.</p>\n</blockquote>\n<p>Based on your main premise, the trade stemmed from mostly subjective reasons. A trader does not really need to publicize much of its hunch, train of thought, or of its own background in order to perform a transaction about a competitor's securities lawfully.</p>\n<p><a href=\"https://www.law.cornell.edu/cfr/text/17/229.10\" rel=\"nofollow noreferrer\">17 CFR at §229.10</a>(b)(1) provides that filing good faith assessments of a registrant's future performance is optional, but any such filings "<em>must have a reasonable basis for such an assessment</em>". This reinforces the notion that company A has no obligation to disclose its hunch about others, since (1) a hunch falls short of <em>reasonable basis</em>; and (2) from subsequent references to "<em>outside reviewer</em>" in that same statute it is inferred that the term "registrant" means the company that makes the filings (i.e., company A), not a third party (i.e., company B).</p>\n<blockquote>\n<p>Is there some privileged information that simply cannot be acted upon even if made public since it cannot be publicly verified in an objective way (e.g. the firsthand impression of management of how well the company is doing)?</p>\n</blockquote>\n<p>Yes, but that entails a breach of fiduciary duties (which is in line with "<em>in breach of a duty or trust or confidence</em>" in the excerpt you reproduced), or scenarios such as "<em>misappropriation of material, non-public information from its lawful possessors</em>". <a href=\"https://www.leagle.com/decision/infdco20121115c24\" rel=\"nofollow noreferrer\"><em>SEC v. Berrettini</em> (US Dist. Court, N.D. Illinois, Nov 2012)</a>. These premises have nothing to do with management's explicit speculation or educated guess.</p>\n<p>For instance, <a href=\"https://www.law.cornell.edu/cfr/text/17/240.0-6\" rel=\"nofollow noreferrer\">17 CFR at §240.0-6</a>(a) prohibits the disclosure of information which "<em>has been classified by an appropriate department or agency of the United States for protection in the interests of national defense or foreign policy</em>". The fact that disclosure is prohibited implies that so is any transaction that takes advantage of that privileged information.</p>\n",
"score": 2
}
] |
[
"united-states",
"securities",
"sec",
"insider-trading"
] |
Can countries that apply the dualist approach to international law indefinitely delay the implementation of a treaty into domestic law?
| 0 |
https://law.stackexchange.com/questions/86916/can-countries-that-apply-the-dualist-approach-to-international-law-indefinitely
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CC BY-SA 4.0
|
<p>And can states be held accountable for any violations of the treaty that occurred before they incorporated the treaty into domestic law ?</p>
| 86,916 |
[
{
"answer_id": 86917,
"body": "<h2>Yes, treaties can be indefinitely delayed</h2>\n<p>For example, the United States never ratified the <a href=\"https://en.wikipedia.org/wiki/Treaty_of_Versailles#United_States\" rel=\"nofollow noreferrer\">Treaty of Versailles</a> that ended the First World War against Germany. This is only one of <a href=\"https://en.wikipedia.org/wiki/List_of_treaties_unsigned_or_unratified_by_the_United_States\" rel=\"nofollow noreferrer\">many</a>. Of course, because the legislature is inherently involved in the ratification of treaties in the United States, this may not qualify as a dualist entity.</p>\n<p>For a more directly dualist approach, the <a href=\"https://en.wikipedia.org/wiki/Section_51(xxix)_of_the_Constitution_of_Australia#:%7E:text=Section%2051(xxix)%20of%20the%20Australian%20Constitution%20is%20a%20subsection,respect%20to%20%22external%20affairs%22.\" rel=\"nofollow noreferrer\">Section 51(xxix)</a> of the Australian Constitution gives the Commonwealth Parliament the right to legislate on "external affairs" which includes the implementation of international treaties into domestic law. Australia has agreed to be bound by <a href=\"https://humanrights.gov.au/our-work/education/human-rights-explained-fact-sheet-7australia-and-human-rights-treaties\" rel=\"nofollow noreferrer\">human rights treaties</a> but they are only enforcable once incorporated into domestic law - some parts of these treaties have not been.</p>\n<p>In general, no country is a pure dualist.</p>\n",
"score": 1
},
{
"answer_id": 86918,
"body": "<p>Treaties are obligations to the world. Domestic law creates obligations within the state's own sovereign domain. A country assumes the obligations under the treaty when it signs or ratifies it (which of these is necessary depends on the treaty) and it comes into force (the trigger for this also depends on the treaty).</p>\n<p>A country's self-perception/self-description as "dualist" only means that it does not view its domestic law to be affected at all by international treaties. Treaties only have effect domestically through positive enactments by the legislature. The dualist view does not assert that the obligations do not exist at international law.</p>\n<p>I also note that even for dualist countries, many aspects of treaties speak <em>only</em> to international obligations, rather than to anything that must be done internally. For example the obligation to not destroy cultural heritage during a war is an obligation at international law regardless of whether a nation has enacted positive law directed at its military members to not do that.</p>\n<p>While a country's internal implementation process may be slow, this will be noted by international UN oversight bodies, in their compliance reports.</p>\n<p>Some sovereign nations do not even have sole capacity within their own domestic law to fully implement a treaty. For example, Canada's federalist division of powers places some matters within the exclusive jurisdiction of provinces. So, even though Canada may have ratified a treaty and accepted international obligations, it might need to rely on the provinces to fully implement the treaty. Canada is nonetheless under an obligation to pursue the implementation in good faith, <em>and is liable under the treaty</em>.</p>\n<p>An example of this on display was a <a href=\"https://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/disp-diff/AbitibiBowater.aspx?lang=eng\" rel=\"nofollow noreferrer\">settlement Canada paid to AbitibiBowater</a>, a forestry company, due to actions taken by the provincial legislature of Newfoundland and Labrador in violation of NAFTA.</p>\n",
"score": 1
}
] |
[
"criminal-law",
"international",
"treaty"
] |
If one is suing for libel, would they just list "libel" in the "claims for relief" section in a complaint, or would the specify the type of libel?
| 0 |
https://law.stackexchange.com/questions/67334/if-one-is-suing-for-libel-would-they-just-list-libel-in-the-claims-for-relie
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CC BY-SA 4.0
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<p>If one is suing for libel, do they just write "libel" in the "claims for relief" section of the complaint or do they specify libel per se or libel per quod? Furthermore, can one claim both libel per se and per quod?</p>
<p>In my case, the defamatory content contains both types.</p>
| 67,334 |
[
{
"answer_id": 67341,
"body": "<blockquote>\n<p>If one is suing for libel, would they just list “libel” in the “claims for relief” section in a complaint, or would the specify the type of libel?</p>\n</blockquote>\n<p>It is unclear what you mean by "<em>claims for relief</em>", but this might be one example of why using sample formats from so-called "self-help centers" is <a href=\"https://law.stackexchange.com/questions/67336/are-exhibits-presented-in-order-of-importance-or-the-order-theyrelisted/67340#67340\">discouraged</a>.</p>\n<p>Complaints typically use the term "<em>Prayer for Relief</em>" as title to the section that lists the remedies a plaintiff seeks as compensation for the harm or loss the plaintiff incurred.</p>\n<p>The type of libel is specified elsewhere in the pleadings.</p>\n<blockquote>\n<p>can one claim both libel per se and per quod?</p>\n</blockquote>\n<p>Yes. One same defamatory falsehood can be egregious enough to constitute libel per se <em>and</em> also to have caused provable harm.</p>\n<p>In the case of multiple falsehoods, some might constitute libel per se and others libel per quod. Seeking relief for falsehoods which are libel per se does not preclude seeking relief for those which are libel per quod, and vice versa.</p>\n",
"score": 2
}
] |
[
"defamation",
"pro-se"
] |
Is alcohol considered a date-rape drug? What if both parties were intoxicated?
| -1 |
https://law.stackexchange.com/questions/86652/is-alcohol-considered-a-date-rape-drug-what-if-both-parties-were-intoxicated
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CC BY-SA 4.0
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<h2>Background context</h2>
<p>Date rape is said to occur when one person uses drugs to incapacitate another person and then engages in sexual intercourse without their consent.</p>
<p>It is generally understood that using pharmaceutical drugs to incapacitate someone for the purpose of sexual assault is a clear-cut case of date rape. However, what about the use of more common benign substances like alcohol? Can alcohol be considered a date-rape drug in certain situations?</p>
<h2>Question about this</h2>
<ol>
<li><p>How does the law treat alcohol in cases of date rape? Is it treated in the same way as other pharmaceutical drugs, or is it handled differently?</p>
</li>
<li><p>What happens in cases where both parties were under the influence of alcohol or drugs at the time of a sexual encounter, and the victim accuses the perpetrator of sexual assault?</p>
</li>
</ol>
| 86,652 |
[
{
"answer_id": 86653,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"canada-container\">canada</a></p>\n<p>In Canada, there are the separate offences of:</p>\n<ul>\n<li>sexual assault (premised on lack of consent, no matter by what means consent is lacking; <em>R. v. G.F.</em>, <a href=\"https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18884/index.do\" rel=\"nofollow noreferrer\">2021 SCC 20</a>) and</li>\n<li>administering a stupefying substance.</li>\n</ul>\n<p>If someone were to use a "substance such as everyday alcohol" (I would reject the premise that this is "benign") for the purpose of facilitating sexual assault, this would be an offence under <a href=\"https://laws-lois.justice.gc.ca/eng/acts/C-46/page-35.html#docCont\" rel=\"nofollow noreferrer\">s. 246 of the <em>Criminal Code</em></a>. Section 246 makes it an offence for a person, "with intent to enable or assist himself or another person to commit an indictable offence" to administer or cause any person to take a "stupefying or overpowering drug, matter, or thing."</p>\n<p>The Court of Appeal for Ontario has accepted that the element of administering a stupefying thing could be established by oversupply of alcohol. They have said that alcohol is a "stupefying substance" (<em>R. v. Vant</em>, <a href=\"https://canlii.ca/t/gjrjd\" rel=\"nofollow noreferrer\">2015 ONCA 481</a>) and can support a conviction under s. 246.</p>\n<hr />\n<p><sup>"Date rape" has no legal significance and even criminologically, misframes the circumstances in which people experience sexual assualt. Further, your premise that intimate partner sexual assault "usually happens when someone uses narcotics to drug another into an unconscious state" is not supported by the evidence. While this is a criminological point, rather than a legal point, it is important context for understanding such crimes. This <a href=\"https://www.ojp.gov/pdffiles1/nij/grants/212000.pdf\" rel=\"nofollow noreferrer\">2005 study</a> estimated that 4.6% of intimate partner sexual assaults were facilitated by surreptitious drug use. These two fact sheets describe the variety of circumstances, completely unrelated to incapacitation by drugs, in which people experience intimate partner sexual assault/violence: <a href=\"https://www.gnb.ca/0012/Womens-Issues/PDF/Fact%20Sheet-E2.pdf\" rel=\"nofollow noreferrer\">Fredericton Sexual Assault Crisis Centre Info Sheet</a>; <a href=\"https://www.vawlearningnetwork.ca/our-work/issuebased_newsletters/issue-17/index.html\" rel=\"nofollow noreferrer\">Centre for Research & Education on Violence Against Women & Children Backgrounder on Intimate Partner Sexual Violence</a>.</sup></p>\n",
"score": 3
}
] |
[
"united-states",
"criminal-law",
"sexual-assault"
] |
Is it considered kidnapping if an underaged teenager willingly goes with someone else without the permission of their parent or guardian?
| 28 |
https://law.stackexchange.com/questions/86665/is-it-considered-kidnapping-if-an-underaged-teenager-willingly-goes-with-someone
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CC BY-SA 4.0
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<p>I have often read about kidnapping charges being brought against a non-custodial parent during divorce or against an individual when a teenager runs away from home with their respective boyfriends or girlfriends.</p>
<p>In criminal law, are the wishes of a minor typically taken into account or are they not considered at all until they reach the age of 18? Would non-violent incidents like this even be considered kidnapping at all in the court of law?</p>
| 86,665 |
[
{
"answer_id": 86673,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"canada-container\">canada</a></p>\n<h3>Summary</h3>\n<p>The child's will or consent is relevant to a plain <em>kidnapping</em> charge. The child's will or consent is not relevant to <em>abduction</em> charges.</p>\n<p>This answer presents Canadian law for this body of offences, divided based on who is doing the taking (because of the specific offences created for abduction by a parent).</p>\n<h3>Parent or guardian taking</h3>\n<p>In Canada, a parent or guardian taking a child from the other parent implicates <a href=\"https://laws-lois.justice.gc.ca/eng/acts/C-46/FullText.html#h-120700\" rel=\"nofollow noreferrer\">sections 279, 280, 282, and 283 of the <em>Criminal Code</em></a>.</p>\n<p>If the child is held against their will, this supports the offence of plain <em>kidnapping</em> under s. 279. This is an indictable offence (the higher of two categories of offences in Canada). Very young children will not possess the capacity to consent. <strong>Older children, even those younger than 14, may be capable of consent</strong> (see the discussion at <a href=\"https://canlii.ca/t/jfz8v#par401\" rel=\"nofollow noreferrer\">paragraphs 401-417</a> of <em>R. v. Al Aazawi</em>, 2021 ABPC 155).</p>\n<p>If the child taken is under 16, the offence of abduction (not necessarily by a parent or guardian) of a person under 16 is available (s. 280). For this offence, the consent of the child is not relevant (explicitly stated at s. 286). It is considered an offence against the parent or guardian.</p>\n<p>If the taking is by a parent or guardian of a child under 14, then this supports an offence under s. 282 (abduction by a parent in contravention of custody or parenting order) or s. 283 (abduction by a parent in the absence of a custody or parenting order). Again, under these offences, the consent of the child is irrelevant (explicitly stated at s. 286).</p>\n<p>Sections 280, 282, and 283 create <em>hybrid</em> offences, punishable either by indictment (higher category of offence) or as a summary offence (lower category of offence).</p>\n<p>Often the age and circumstances of the taking may support multiple overlapping charges. See e.g. <em>M.M. v. United States of America</em>, <a href=\"https://canlii.ca/t/gmhcd\" rel=\"nofollow noreferrer\">2015 SCC 62</a>. That was an extradition case in which the corresponding Canadian charges were both s. 280 (abduction—by anyone—of a person under 16) and s. 282 (abduction by a parent in contravention of a custody or parenting order).</p>\n<p>Prosecution directives for this family of offences is available. E.g.:</p>\n<ul>\n<li>From the <a href=\"https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/prosecution-service/crown-counsel-policy-manual/abd-1.pdf\" rel=\"nofollow noreferrer\">British Columbia Crown Counsel Policy Manual</a></li>\n<li>From <a href=\"https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/p5/ch10.html#section_3_1\" rel=\"nofollow noreferrer\">a directive of the Attorney General published in the Prosecution Service of Canada Deskbook</a></li>\n</ul>\n<h3>Taking by someone other than a parent or guardian</h3>\n<p>The same plain kidnapping offence will be available (s. 279) as will the offence of abducting a person under 16 (s. 280). However, there is an additional offence of abduction of a child under 14 (<a href=\"https://laws-lois.justice.gc.ca/eng/acts/C-46/page-40.html#docCont\" rel=\"nofollow noreferrer\">s. 281</a>), also a hybrid offence.</p>\n<p>Again, the consent of the taken person is not relevant for the abduction offences (see s. 286), and the circumstances that give rise to an abduction offence are broader when the taken person is under 14 than when the taken person is merely under 16. A comparison of the elements of these two closely related offences can be found at <a href=\"https://canlii.ca/t/hvsj4#par17\" rel=\"nofollow noreferrer\">paragraphs 17-24</a> of <em>R. v. Gibson</em>, 2018 BCSC 1869.</p>\n<h3>Visualized</h3>\n<div class=\"s-table-container\">\n<table class=\"s-table\">\n<thead>\n<tr>\n<th style=\"text-align: right;\">Age of child</th>\n<th style=\"text-align: center;\">Person taking</th>\n<th>Section</th>\n</tr>\n</thead>\n<tbody>\n<tr>\n<td style=\"text-align: right;\">< 14</td>\n<td style=\"text-align: center;\">parent/guardian</td>\n<td>s. 279 (if against will), s. 280 (general abduction), ss. 282, 283 (abduction by parent)</td>\n</tr>\n<tr>\n<td style=\"text-align: right;\">< 14</td>\n<td style=\"text-align: center;\">non-parent/non-guardian</td>\n<td>s. 279 (if against will), s. 280 (general abduction), s. 281 (abduction by non-parent)</td>\n</tr>\n<tr>\n<td style=\"text-align: right;\">< 16</td>\n<td style=\"text-align: center;\">anyone</td>\n<td>s. 279 (if against will), s. 280 (general abduction)</td>\n</tr>\n<tr>\n<td style=\"text-align: right;\">any age</td>\n<td style=\"text-align: center;\">anyone</td>\n<td>s. 279 (if against will)</td>\n</tr>\n</tbody>\n</table>\n</div><h3>A defence</h3>\n<p>Section 285 provides:</p>\n<blockquote>\n<p>No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person <strong>was necessary to protect the young person from danger of imminent harm or if the person charged with the offence was escaping from danger of imminent harm</strong>.</p>\n</blockquote>\n",
"score": 30
},
{
"answer_id": 86672,
"body": "<p><a href=\"/questions/tagged/washington\" class=\"post-tag\" title=\"show questions tagged 'washington'\" aria-label=\"show questions tagged 'washington'\" rel=\"tag\" aria-labelledby=\"washington-container\">washington</a></p>\n<p>This is covered by a separate and less-severe criminal law, <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=13.32a.080\" rel=\"nofollow noreferrer\">unlawful harboring of a minor</a>. The basic element of the crime is</p>\n<blockquote>\n<p>if the person provides shelter to a minor without the consent of a\nparent of the minor and after the person knows that the minor is away\nfrom the home of the parent, without the parent's permission</p>\n</blockquote>\n<p>but with the further requirement that</p>\n<blockquote>\n<p>the person intentionally... fails to release the minor to a\nlaw enforcement officer after being requested to do so by the officer;\nor (ii) Fails to disclose the location of the minor to a law\nenforcement officer after being requested to do so by the officer, if\nthe person knows the location of the minor and had either taken the\nminor to that location or had assisted the minor in reaching that\nlocation; or (iii) Obstructs a law enforcement officer from taking the\nminor into custody; or (iv) Assists the minor in avoiding or\nattempting to avoid the custody of the law enforcement officer.</p>\n</blockquote>\n<p>Violation of this law is punishable as a gross misdemeanor.</p>\n<p>The following section, RCW 13.32A.082 requires that</p>\n<blockquote>\n<p>any person... that, without legal authorization, provides shelter to a\nminor and that knows at the time of providing the shelter that the\nminor is away from a lawfully prescribed residence or home without\nparental permission, shall promptly report the location of the child\nto the parent, the law enforcement agency of the jurisdiction in which\nthe person lives, or the department.</p>\n</blockquote>\n<p>There is no penalty attached to non-compliance with this requirement. Compliance with the notification requirement immunizes you against civil liability for damages arising from providing shelter, which you don't get if you don't provide notice.</p>\n<p>Kidnapping, on the other hand, is at best a class B felony (if found to be second degree kidnapping). Unauthorized parental abduction (by non-custodial parent) is probably covered as custodial interference which is a class 2 felony. The wishes of the child carry no weight, except insofar as a child's wishes might tip the scales in favor of a change in the custody order, but such a change would have to precede the parent taking custody of the child.</p>\n",
"score": 14
},
{
"answer_id": 86714,
"body": "<p>Since the question is tagged <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>, <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> and not any other jurisdiction, the federal criminal laws on kidnapping are <a href=\"https://uscode.house.gov/view.xhtml?path=/prelim@title18/part1/chapter55&edition=prelim\" rel=\"noreferrer\">18 USC chapter 55</a>. As others have mentioned, each state has its own kidnapping laws as well.</p>\n<p>Taking or keeping the child out of the United States, even willingly, could be a violation of 18 U.S. Code § 1204, International parental kidnapping:</p>\n<blockquote>\n<p>Whoever removes a child from the United States, or attempts to do so, or retains a child (who has been in the United States) outside the United States with intent to obstruct the lawful exercise of parental rights [....]</p>\n</blockquote>\n<p>There are several affirmative defenses, including:</p>\n<blockquote>\n<p>the defendant acted within the provisions of a valid court order granting the defendant legal custody or visitation rights</p>\n</blockquote>\n<blockquote>\n<p>the defendant was fleeing an incidence or pattern of domestic violence</p>\n</blockquote>\n<blockquote>\n<p>the defendant had physical custody of the child pursuant to a court order [...] and failed to return the child as a result of circumstances beyond the defendant’s control, and the defendant notified or made reasonable attempts to notify the other parent or lawful custodian of the child of such circumstances within 24 hours after the visitation period had expired and returned the child as soon as possible.</p>\n</blockquote>\n<p>Additionally, the federal kidnapping statute, 18 U.S. Code § 1201, applies to someone who “inveigles” or “decoys” a victim. The courts have upheld federal convictions for kidnapping of people who tricked children into entering their car willingly, such as in <a href=\"https://casetext.com/case/united-states-v-hughes-2\" rel=\"noreferrer\"><em>United States v. Hughes</em> (4th Cir. 1983)</a>, and even “when a victim, acting because of false pretenses initiated at the instance of the defendant, transports himself across state lines without accompaniment by the alleged perpetrator or an accomplice.” (<a href=\"https://casetext.com/case/us-v-lentz-11\" rel=\"noreferrer\"><em>U.S. v. Lentz</em></a>).</p>\n<p>There are several other elements that need to be met for this statute to apply. There are several jurisdictional clauses (such as “in interstate commerce”). The law also does not apply to a minor child taken by their parent. The kidnapper must hold the victim “for ransom or reward or otherwise.” The courts have usually read these requirements broadly, e.g. in <a href=\"https://casetext.com/case/shaw-v-united-states-21\" rel=\"noreferrer\"><em>Shaw v. United States</em></a>, a 1969 case based on an earlier version of the law:</p>\n<blockquote>\n<p>If she was not kidnaped in the ordinary sense of the word, she was "inveigled" or "decoyed" within the language of the statute. She was transported to another state by the defendant. If she was not "held for ransom," she was held "otherwise", that is to say, for the purpose of coition. If she was not physically held or forcibly kept she was "held" through fear and when she was liberated she was not freed "unharmed" since Shaw had had forcible sexual relations with her.</p>\n</blockquote>\n<p>(Note that the court ended up setting aside the conviction in this case by finding “a larger element of consensuality” for the other underage victim. More than a half-century later, it is very unlikely that a judge would rule the same way today.)</p>\n",
"score": 7
}
] |
[
"united-states",
"criminal-law",
"kidnapping"
] |
In criminal cases, are the charges for which a defendant is found guilty a strict subset of the charges listed in the indictment?
| 0 |
https://law.stackexchange.com/questions/86784/in-criminal-cases-are-the-charges-for-which-a-defendant-is-found-guilty-a-stric
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<p>For instance, if I am arrested and charged for crimes <code>A, B, C</code>.</p>
<p>Then the only possible outcomes for which I can be found guilty are some combination of those crimes - such as <code>A, B, C</code> or <code>A, B</code> or just <code>A</code>, correct?</p>
<p>There would never be a scenario where the charges of <code>A, B, C</code> are dismissed mid-trial and I am convicted of <code>X, Y, Z</code> instead, right?</p>
<p>If the prosecutors want to pursue different charges against me, would they need to initiate a new case, or can they simply replace the original charges with new ones?</p>
| 86,784 |
[
{
"answer_id": 86785,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"canada-container\">canada</a></p>\n<h3>Amending the indictment</h3>\n<p>Section 601 of the <em>Criminal Code</em> allows a court to amend the indictment to conform to the evidence that has come out in trial.</p>\n<p>In making the decision to amend, the court should consider whether the accused has been prejudiced in their defence by any omission and whether the amendment can be made without any injustice being done. For example, if the accused had already started to present their defence, based on the understanding that they were charged with X, but in doing so they hampered a potential defence with respect to not-yet-charged Y, it would likely be an injustice to amend the indictment to charge Y. Usually, the amendment is to alter the particularization of the charge (e.g. broadening the charge from an assault of a specific individual to an assault of a "female person": <em>R. v. Ferguson-Cadore</em>, <a href=\"https://canlii.ca/t/jbv9c#par4\" rel=\"nofollow noreferrer\">2020 ONSC 7094</a>).</p>\n<p>But there is also limited case law suggesting it is okay to swap in an entirely new charge (<em>R. v. Bidawi</em>, 2018 ONCA 698; <em>R. v. Irwin</em> (1998) <a href=\"https://canlii.ca/t/6gq2\" rel=\"nofollow noreferrer\">123 C.C.C. (3d) 316</a>: "I see no useful purpose in absolutely foreclosing an amendment to make a charge conform to the evidence simply because the amendment will substitute one charge for another").</p>\n<p>So, the final convictions do not need to be a subset of the <em>initial</em> indictment, but where there is a deviation, it is because a subsequent amendment has been made.</p>\n<h3>Lesser included offences</h3>\n<p>There is also the possibility that one would be convicted of a "lesser included" offence. The indictment is understood to include offences that are lesser included offences (s. 662). E.g a charge for aggravated assault <em>includes</em> the possibility of conviction for plain assault even if not explicitly stated.</p>\n",
"score": 2
}
] |
[
"united-states",
"criminal-law",
"criminal-procedure"
] |
Does the lack of copyright on facts mean that it is legal to reimplement a simple name generator?
| 0 |
https://law.stackexchange.com/questions/86906/does-the-lack-of-copyright-on-facts-mean-that-it-is-legal-to-reimplement-a-simpl
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<p>There is a website (fantasynamegenerators.com) that allows the user to generate names, ranging from pop culture to real names and including place names.</p>
<p>According to the court case Feist v. Rural a list of things that's not creatively arranged can't have copyright in it.</p>
<p>So this means that it is legal to reimplement a name generator from a website like this without reproducing the actual source code?</p>
| 86,906 |
[
{
"answer_id": 86910,
"body": "<p>You can take inspiration from the function of a website and create something that functions similarly – assuming that you don't copy the graphic design. You also can't just copy their code used to create the outputs, but you can reinvent that wheel.</p>\n<p>In some cases, the underlying real facts could be assembled by the sweat of the brow, as you might get from a digital Norwegian phone book, or from the list of approved names (a government document). It is not possible to generate <em>exactly</em> what the webpage generates without copying the (protected) code – the data is part of the code. Not everything generated by the website is a "fact", for example the Central Asian town name generator is based on a creative rule of the author's invention, and the "Central Asian town" Torakol is not a real fact, it is a creative invention.</p>\n<p>I conclude that with a lot of effort, you could legally construct code that functions like the original page does, and does not copy its embedded databases. But you would have to create your own databases, and therefore the results would be different (example: Ashon is not a Swahili name, the author may have scraped a baby-name website and simply installed the original error in the code, knowingly or unknowingly).</p>\n",
"score": 2
},
{
"answer_id": 86911,
"body": "<p>Copyright protects creative expression, not facts. So, no one can copyright the idea of an online calculator that will show that 2+2=4, but the code that would underlie a particular calculator is copyrightable.</p>\n<p>In your particular example, neither the list of names nor combinations of names can be copyrighted, but the code that uses that list and creates combinations certainly can be.</p>\n<p>In short, yes.</p>\n",
"score": 0
}
] |
[
"united-states",
"copyright",
"intellectual-property"
] |
What charges can be filed against someone who destroys evidence out of suspected negligence?
| -4 |
https://law.stackexchange.com/questions/86868/what-charges-can-be-filed-against-someone-who-destroys-evidence-out-of-suspected
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CC BY-SA 4.0
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<h2>Background context</h2>
<p>In instances of assault and sexual abuse at nightclubs, CCTV footage is a crucial source of information since most people present are likely to be intoxicated.</p>
<p>Please consider the following hypothetical scenario, the owners of a nightclub neglect to save or export evidence from CCTV footage because they don't care or are dishonest (for example, they don't want the police involved at their venue, which could result in lengthy investigations and financial losses).</p>
<blockquote>
<p><em>"Sorry, but it appears I have accidentally lost all footage of the assault due to IT issues."</em></p>
</blockquote>
<h2>Question about this</h2>
<p>If such a scenario were to occur, what charges could be brought against individuals who engage in this type of behavior? Are there any realistic actions that victims can take in response to this?</p>
| 86,868 |
[
{
"answer_id": 86907,
"body": "<p>You post contains 3 questions.</p>\n<blockquote>\n<p>What charges can be filed against someone who destroys evidence out of suspected negligence?</p>\n</blockquote>\n<p>Your question says “suspected”, meaning it’s possible no crime was committed, and if one was committed, the authorities have no evidence of it. They can do nothing.</p>\n<p>Your second question describes a scenario where someone did so, but doesn’t address whether there is or is not evidence of them having done so.</p>\n<blockquote>\n<p>what charges could be brought against individuals who engage in this type of behavior?</p>\n</blockquote>\n<p>Realistically, the answer to this question is also probably nothing, but theoretically there <strong>could</strong> be evidence of their activity and knowledge. Maybe the destruction is caught on an internal CCTV where they first declaim their motivation and knowledge before destroying the evidence. They could in that case be charged with the local equivalent to destruction of evidence <a href=\"https://www.ncleg.net/EnactedLegislation/Statutes/PDF/BySection/Chapter_14/GS_14-221.1.pdf\" rel=\"nofollow noreferrer\">(for example nc 14-221.1)</a> and probably obstruction of justice with a possible prison term of up to 10 months.</p>\n<blockquote>\n<p>Are there any realistic actions that victims can take in response to this?</p>\n</blockquote>\n<p>Nearly the same answer as above, except that instead of being charged, the offender could be sued (by various people), the most likely basis would be Negligent Infliction of Emotional Distress. It might be a bit of a stretch, but given evidence that they intentionally committed a crime (destruction of evidence that would have likely lead to a convict of the assault), not too much. It’s of course a bit easier because the plaintiff wouldn’t need to prove that they committed the act, just that it was more likely than not that they did.</p>\n<p>In the comments you say “doesn’t cooperate with the police”, and nobody is going to be able to do anything about that (legally) as long as no crimes are committed as part of that non-cooperation.</p>\n",
"score": 0
}
] |
[
"united-states",
"criminal-law",
"canada",
"prosecution"
] |
Can a country import from russia and export to other countries which are banned by russia?
| 0 |
https://law.stackexchange.com/questions/78421/can-a-country-import-from-russia-and-export-to-other-countries-which-are-banned
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<p>Provided russia will ban import and export of products to and from specific countries can a country which is not banned by russia import from russia and export it to other countries?</p>
<p>If not what about derivatives of products? Example if russia bans export of wheat to US or UK can countries like China/India or any other neutral country import wheat from russia and make derivative products from russian wheat and export to other countries? If not how other countries are going to trace the source?</p>
| 78,421 |
[
{
"answer_id": 78423,
"body": "<p>Question: Is anyone involved in a place where (worst case) Russia could throw them into jail, or (almost worst case) Russia could fine them, and they would be forced to pay the fine, or (still bad case) Russia could stop any further exports to that country?</p>\n<p>Russia will have laws, the importing company will have laws, and the country exported to as well. For example, the USA could have laws that make it illegal to import goods that are only available because the exporting country is in breach of contract with another contract (a related law is that it is actually illegal for US citizens by US law to bribe someone in another country. Other countries leave that to the other country).</p>\n<p>This would so much depend on the laws of the individual countries, on the actual countries, and the actual laws of each country, and in practice the power of each country that the question cannot be answered in general.</p>\n",
"score": 1
}
] |
[
"sanctions",
"russia",
"export",
"import"
] |
Have there been any efforts to standardize the definitions of "Attempted Aggravated Assault" and "Attempted Murder"?
| 2 |
https://law.stackexchange.com/questions/86278/have-there-been-any-efforts-to-standardize-the-definitions-of-attempted-aggrava
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<p>As far as I know, the key difference between "Attempt Aggravated Assault" and "Attempted Murder" is whether or not the prosecution can prove that the perpetrator intended to kill someone.</p>
<p>However, the requirement for proving intent has led to a lot of inconsistency in how these types of violent crimes are classified in practice.</p>
<p>Has there been any effort in any legal system to standardize the difference between attempted assault and attempted murder? For example, by creating a specific category for attempted violent crimes, perhaps calling it a "violent attempt at harm"?</p>
| 86,278 |
[
{
"answer_id": 86281,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"united-states-container\">united-states</a></p>\n<p>The <a href=\"https://en.m.wikipedia.org/wiki/Model_Penal_Code\" rel=\"nofollow noreferrer\">Model Penal Code</a> (by the American Law Institute) is a standardized code that individual states can draw from. Many states' criminal law is based at least in part on this code.</p>\n<p>The MPC provides definitions for aggravated assault, murder, and attempts.</p>\n<p>In general, crimes do not fit into a neat taxonomy structure with more severe ones being strict subsets of less severe or less specific ones. Sometimes, the definitions, or the manner in which offences are charged in a particular circumstance, will create such a relationship, but this is not inherent in the structure of the code.</p>\n<p>Other statutes do define umbrella terms that might be relevant to what you're thinking of. For example the Armed Career Criminal Act provides for sentencing enhancements after numerous convictions for "<strong>violent felonies</strong>." That term has been interpreted several times by the United States Supreme Court to determine whether it captured specific state crimes.</p>\n",
"score": 3
}
] |
[
"united-states",
"legal-terms",
"definition"
] |
Is "use of force" the same thing as "use of physical force"? Are there examples of types of force that are not physical?
| 0 |
https://law.stackexchange.com/questions/86119/is-use-of-force-the-same-thing-as-use-of-physical-force-are-there-examples
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CC BY-SA 4.0
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<p><a href="https://www.merriam-webster.com/dictionary/rape" rel="nofollow noreferrer">According to the dictionary, the definition of rape is the following:</a></p>
<blockquote>
<p>Unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against a person's will or with a person who is beneath a certain age or incapable of valid consent because of mental illness, mental deficiency, intoxication, unconsciousness, or deception.</p>
</blockquote>
<p>My question focuses around the usage of the term "forcibly". In this context, is "use of force" and "use of physical force" synonyms? Are there any other notable instances of non-physical force in the legal system? Be advised that my question is not about sexual assault - that was just an offhand example of a violent crime.</p>
| 86,119 |
[
{
"answer_id": 86140,
"body": "<h2>No and yes respectively</h2>\n<p>Force in general refers to acting under a compulsion. Physical force is specific that the compulsion arises from violence or physical power.</p>\n<p>Examples of non-physical force include:</p>\n<ul>\n<li>Legal obligation: <em>the witness was forced to answer the question</em>.</li>\n<li>Blackmail: <em>the victim was forced to pay the ransom to the hacker</em>.</li>\n<li>Contractural: <em>after his car fell in the river, he was still forced to make the payments</em>.</li>\n<li>Ethical: <em>despite vowing to never have children the tragic death of her brother forced her into the unexpected role of mother to her niece and nephew</em>.</li>\n</ul>\n",
"score": 4
},
{
"answer_id": 86121,
"body": "<p>"Force" may figure into the writing of laws. An example is in <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=9A.44&full=true\" rel=\"nofollow noreferrer\">RCW 9A.44.010</a>, a component of Washington's rape law. It defines "forcible compulsion" as</p>\n<blockquote>\n<p>physical force which overcomes resistance, or a threat, express or\nimplied, that places a person in fear of death or physical injury to\nherself or himself or another person, or in fear that she or he or\nanother person will be kidnapped.</p>\n</blockquote>\n<p>The first part limits "forcible compulsion" to a subtype of physical force. Threats are not claimed to be a kind of force, instead, the law puts together actual physical force (not all types of actual force), but also threats (promises of future force).</p>\n<p>There is a later provision regarding remote testimony by child applicable to distress "if forced to testify in front of the defendant", where "force" is defined, but is understood to mean "is legally compelled" – and it is also understood that physical force is how the law en<strong>forces</strong> legal requirements. Washington law handles the matter by replacing the broad physical concept "force" with a legal expression that identifies a subtype of force (that which overcomes resistance). That way, speaking to a person (where measurable acoustic force is applied to someone) remains legal.</p>\n<p>On the other hand, "force" is used other parts of Washington's criminal law, in <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=9A.16&full=true\" rel=\"nofollow noreferrer\">RCW 9a.16</a> (for instance "The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases"), and is not defined (therefore one would have to look it up in a dictionary, or in case law). However, the various laws are stated in such a way that things that could be metaphorically called "non-physical force" (threats) are joined with actually-implemented physical force. You would find different wording in a law that prohibited using an economic advantage, typically via the concept of "threat".</p>\n<p>The Wiki article on <a href=\"https://en.wikipedia.org/wiki/Force_(law)\" rel=\"nofollow noreferrer\">force in law</a> cited a definition of "force" from the Indian penal code:</p>\n<blockquote>\n<p>A person is said to use force to another if he causes motion, change\nof motion, or cessation of motion to that other, or if he causes to\nany substance such motion, or change of motion, or cessation of motion\nas brings that substance into contact with any part of that other's\nbody, or with anything which that other is wearing or carrying, or\nwith anything so situated that such contact affects that other's sense\nof feeling: Provided that the person causing the motion, or change of\nmotion, or cessation of motion, causes that motion, change of motion,\nor cessation of motion in one of the three ways hereinafter described.\n(First) — By his own bodily power. (Secondly) —By disposing any\nsubstance in such a manner that the motion or change or cessation of\nmotion takes place without any further act on his part, or on the part\nof any other person. (Thirdly) — By inducing any animal to move, to\nchange its motion, or to cease to move.</p>\n</blockquote>\n",
"score": 2
}
] |
[
"united-states",
"legal-terms",
"definition"
] |
Why can't ordinary people bring criminal charges against someone else?
| 1 |
https://law.stackexchange.com/questions/86869/why-cant-ordinary-people-bring-criminal-charges-against-someone-else
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CC BY-SA 4.0
|
<h2>Background context</h2>
<p>In Canada and the United States, Individuals do not file criminal charges directly against someone else. A criminal proceeding is initiated by the government.</p>
<p>This could be a problem because, unfortunately, law enforcement and prosecutors are not immune to societal biases against marginalized groups and may not always give their concerns the attention they deserve.</p>
<p><a href="https://www.theguardian.com/australia-news/2021/nov/29/queensland-woman-who-ran-down-and-killed-cyclist-in-sheer-rage-jailed-for-10-years" rel="nofollow noreferrer">For example, in Australia, it took nearly a decade for an intentional vehicular homicide against an Asian man to be prosecuted because the police and attorneys office initially ignored the incident and failed to investigate, even though the perpetrator boasted about it publicly for years.</a></p>
<h2>Question about this</h2>
<p>What are the reasons that lead to people being NOT allowed to directly bring up criminal charges like they do civil litigation?</p>
| 86,869 |
[
{
"answer_id": 86870,
"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>Your premise is not entirely correct. Canada provides a path for private prosecutions. See <em><a href=\"https://laws-lois.justice.gc.ca/eng/acts/c-46/FullText.html\" rel=\"nofollow noreferrer\">Criminal Code</a></em>, s. 507.1, the <a href=\"https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/p5/ch09.html\" rel=\"nofollow noreferrer\">Public Prosecution Service of Canada's guidelines on intervening in private prosecutions</a>, and British Columbia's Crown Counsel Policy Manual <a href=\"https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/prosecution-service/crown-counsel-policy-manual/pri-1.pdf\" rel=\"nofollow noreferrer\">policy on private prosecutions</a>. Nonetheless, it is rare that a private prosecution is allowed to proceed.</p>\n<p>The British Columbia manual says:</p>\n<blockquote>\n<p>Generally, BC Prosecution Service policy does not permit a private prosecution to proceed.\nCrown Counsel will usually take conduct of the prosecution or direct a stay of proceedings\nafter making a charge assessment decision.</p>\n</blockquote>\n<p>The PPSC manual says:</p>\n<blockquote>\n<p>If it is determined that the charge is well founded, Crown counsel must then decide whether to assume conduct of the prosecution. The issue must be decided on a case-by-case basis. Normally, there is nothing wrong in allowing a private prosecution to run its course through to a verdict. There is no requirement for the DPP to take charge of the prosecution.</p>\n</blockquote>\n<p>However, it presents <strong>a set of considerations that might answer your question about why private prosecutions are not the norm</strong>, and why the Crown will normally intervene to either control the prosecution itself or to stay the proceedings:</p>\n<blockquote>\n<ol>\n<li>the need to strike an appropriate balance between the right of the\nprivate citizen to initiate and conduct a prosecution as a safeguard\nin the justice system, and the responsibility of the Attorney General\nof Canada for the proper administration of justice;</li>\n<li>the relative seriousness of the offence – generally, the more serious, the more likely it is that the DPP should intervene;</li>\n<li>there are detailed or complex disclosure issues to resolve;</li>\n<li>the prosecution requires the disclosure of highly sensitive material or the conduct of the prosecution involves applications for\nspecial measures or for witness anonymity;</li>\n<li>there is a reasonable basis to believe that the private prosecutor lacks the capacity or the funding to effectively carry the case\nforward to its completion;</li>\n<li>there is a reasonable basis to believe that the decision to prosecute was made for improper personal or oblique motives, or that\nit otherwise may constitute an abuse of the court's process such that,\neven if the prosecution were to proceed, it would not be appropriate\nto permit it to remain in the hands of a private prosecutor;</li>\n<li>given the nature of the alleged offence or the issues to be determined at trial, it is in the interests of the proper\nadministration of justice for the prosecution to remain in private\nhands.</li>\n</ol>\n</blockquote>\n<p>The Attorney General or Crown counsel can always direct a stay (termination) of proceedings (<em>Criminal Code</em>, s. 579).</p>\n<p>Some provinces have specifically given Crown counsel an obligation to watch over private prosecutions and intervene where necessary. For example, Ontario's legislature has directed that the Crown (<a href=\"https://www.canlii.org/en/on/laws/stat/rso-1990-c-c49/latest/rso-1990-c-c49.html\" rel=\"nofollow noreferrer\"><em>Crown Counsel Act</em></a>):</p>\n<blockquote>\n<p>watch over cases conducted by private prosecutors and, without unnecessarily interfering with private individuals who wish in such cases to prosecute, assume wholly the conduct of the case where justice towards the accused seems to demand his or her interposition</p>\n</blockquote>\n<p>Even in provinces where this has not been elevated to a statutory obligation, all Attorneys General / Crowns retain the capacity and discretion to supervise and intervene in private prosecutions and as a matter of practice, do.</p>\n",
"score": 2
},
{
"answer_id": 86872,
"body": "<p>The simple answer is, that's what the law says. The more complex answer looks both at legislative actions and court rulings.</p>\n<p>The relevant case for US federal law is <a href=\"https://supreme.justia.com/cases/federal/us/454/83/\" rel=\"nofollow noreferrer\">Leeke v. Timmerman</a>, 454 U.S. 83. The State Solicitor of South Carolina declined to pursue criminal charges against certain prison guards. Petitioner's sued, the Supreme Court then held that</p>\n<blockquote>\n<p>The decision to prosecute is solely within the prosecutor's\ndiscretion. Thus, a private citizen has no judicially cognizable right\nto prevent state officials from presenting information, through\nintervention of the state solicitor, that will assist a magistrate in\ndetermining whether to issue an arrest warrant.</p>\n</blockquote>\n<p>reaffirming the holding of <a href=\"https://supreme.justia.com/cases/federal/us/410/614/\" rel=\"nofollow noreferrer\">Linda R. S. v. Richard D.</a>, 410 U.S. 614 that</p>\n<blockquote>\n<p>a private citizen lacks a judicially cognizable interest in the\nprosecution or nonprosecution of another</p>\n</blockquote>\n<p>So there is a rule, at least applicable to federal cases.</p>\n<p>It may be of interest to look at the court's reasoning that resulted in that rule. The court says (emphasis added):</p>\n<blockquote>\n<p>The threshold inquiry is whether respondents have standing to\nchallenge the actions of petitioners. As in Linda R. S., there is a\nquestionable nexus between respondents' injury -- the alleged beatings\n-- and the actions of the state officials in which they gave information to a Magistrate prior to issuance of an arrest warrant.\nEven without the prosecutor's acts, there is no guarantee that\nissuance of the arrest warrant would remedy claimed past misconduct of\nguards or prevent future misconduct. Even if a prosecution could\nremedy respondents' injury, the issuance of an arrest warrant in this\ncase is simply a prelude to actual prosecution. <strong>Respondents concede\nthat the decision to prosecute is solely within the discretion of the\nprosecutor</strong>. It is equally clear that issuance of the arrest warrant\nin this case would not necessarily lead to a subsequent prosecution.</p>\n<p><strong>A private citizen therefore has no judicially cognizable right to prevent state officials from presenting information</strong>, through\nintervention of the state solicitor, that will assist the magistrate\nin determining whether to issue the arrest warrant. Just as\nrespondents were able to present arguments as to why an arrest warrant\nshould issue, a state solicitor must be able to present arguments as\nto why an arrest warrant should not issue. This is not a case in which\nprison officials interfered with the transmittal of information from\nrespondents to the magistrate, thereby interfering with respondents'\nability under South Carolina law to seek the arrest of another.</p>\n</blockquote>\n<p>On the other hand, in Washington state, private prosecution is allowed under <a href=\"https://www.courts.wa.gov/court_rules/pdf/CrRLJ/CLJ_CRRLJ_02_01_00.pdf\" rel=\"nofollow noreferrer\">CrRLJ 2.1(c)</a>, as <a href=\"https://www.courts.wa.gov/opinions/pdf/986134.pdf\" rel=\"nofollow noreferrer\">affirmed recently</a> by the state's Supreme Court: "Under the citizen complaint rule, '[a]ny person' may initiate\ncriminal proceedings". <a href=\"https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2457&context=flr\" rel=\"nofollow noreferrer\">This article</a> discussed some of the arguments and rulings related to the private prosecution rule (arguing against private prosecution), and <a href=\"https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2457&context=flr\" rel=\"nofollow noreferrer\">this article</a> compares the US vs. the UK where private prosecution is more viable. There does not seem to be a compelling constitutional reason to prohibit private prosecution, but each jurisdiction has the power to set its own procedural rules, therefore there can be variation.</p>\n",
"score": 2
}
] |
[
"united-states",
"criminal-law",
"canada",
"prosecution"
] |
Is it against the Computer Misuse Act to bypass a client-side paywall?
| 3 |
https://law.stackexchange.com/questions/85873/is-it-against-the-computer-misuse-act-to-bypass-a-client-side-paywall
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CC BY-SA 4.0
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<p>A common practice among news websites is to provide articles online, where an initial portion is freely viewable, and the remainder requires an active subscription. However, on numerous occasions, I have found that this is done through merely blurring or covering up the remaining text with client-side elements that can be disabled with simple 'inspect-element' tools provided by browsers.</p>
<p>Is it violating the <a href="https://www.legislation.gov.uk/ukpga/1990/18/contents" rel="nofollow noreferrer"><em>Computer Misuse Act 1990</em></a> to disable those elements and read the news article?</p>
<p>A couple of points to emphasize:</p>
<ul>
<li>The article was already permissibly present on my machine.</li>
<li>No data is being sent back; it's just a matter of how my computer interprets the data they gave me.</li>
</ul>
| 85,873 |
[
{
"answer_id": 86901,
"body": "<p>The relevant section (§1) of the <a href=\"https://www.legislation.gov.uk/ukpga/1990/18/crossheading/computer-misuse-offences\" rel=\"nofollow noreferrer\">Computer Misuse Act 1990</a> states</p>\n<blockquote>\n<p>(1) A person is guilty of an offence if— (a) he causes a computer to\nperform any function with intent to secure access to any program or\ndata held in any computer, or to enable any such access to be secured;\n(b) the access he intends to secure, or to enable to be secured, is\nunauthorised; and (c) he knows at the time when he causes the\ncomputer to perform the function that that is the case.</p>\n</blockquote>\n<p>When a content-provider puts content "out in the open" in the described fashion, e.g. with a visible snippet of text, they are implicitly authorizing people to access the content (notice that web pages do not have to overtly announce "You are authorized to read this notice"). One approach to narrowing the access so granted is via a log-in scheme which send a portion of text then a "teaser", plus code which (upon authentication) loads the full page. Circumventing that method of access is a violation of the act.</p>\n<p>Another method would be to include the entire content, by blurring, printing white on white, or some other form of display obfuscation, where display = scramble(plaintext). For example</p>\n<pre><code><!DOCTYPE html><html> <head><title>Title</title><style>\n#blur {font-size: 40px; color: transparent; text-shadow: 0 0 16px #000; }\n</style></head><body><div id="blur">Pay money to see this </div></body></html>\n</code></pre>\n<p>When you enter your authorization code, the host computer performs a function (eliminates the scrambling in the code it sends to your computer, change 16 to 0). But you may be able to get the same result by inspecting the page source.</p>\n<p>The crucial wording of the act says "causes a computer to perform any function...", but the host computer is not performing any function at all at this point, indeed the host may have melted down. The owner of the client computer can authorize his own computer to perform functions on data legally received from a host (you can read a web page, you can zoom in and out, all being locally-executed functions).</p>\n<p>So it depends on the method of obfuscation used by the host. With that caveat, your analysis is correct.</p>\n",
"score": 2
},
{
"answer_id": 85877,
"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>I believe it wouldn’t fall under computer abuse, but it might be covered by the DMCA.</p>\n<p>Let’s say I rent a digital movie. It gets downloaded to my computer. It is marked as “rental movie, may be played twice until Dec 3rd”. This is checked on my computer by DRM without contacting any server. And I remove this information and now I can keep that movie and it will play forever. That would be coverdd red by the DMCA, and your situation seems quite similar.</p>\n<p>Comments: Anyone asking “Am I breaking law X if I do Y” can be assumed to want to know about whether they break over laws as well. DMCA: A rented movie is DRM protected just like a DRM protected video or music file. I would bet that companies doing this will do it in a way that making the movie playable forever will break the DMCA.</p>\n",
"score": 0
}
] |
[
"united-kingdom",
"hacking",
"computer-misuse-act"
] |
Does the principle of double jeopardy apply to different charges in the same case?
| 0 |
https://law.stackexchange.com/questions/57167/does-the-principle-of-double-jeopardy-apply-to-different-charges-in-the-same-cas
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CC BY-SA 4.0
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<p>For example, consider a serial killer who sexually assaults their victims before killing them.</p>
<p>For the sake of argument, let's say that the prosecutors are not able to successfully charge the serial killer with murder the first time around.</p>
<p>Later, investigators discover that the victims were raped before being killed. Could the prosecutors bring a new criminal case against the original perpetrator for rape, or would the principle of double jeopardy protect them from further prosecution?</p>
| 57,167 |
[
{
"answer_id": 57168,
"body": "<h2><a href=\"https://en.wikipedia.org/wiki/Double_Jeopardy_Clause\" rel=\"nofollow noreferrer\">Double jeopardy</a> does not apply to different offences</h2>\n<blockquote>\n<p>[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb...</p>\n</blockquote>\n<p>The Supreme Court has held that it means what it says - murder and rape are different offences and so the double jeopardy clause is not triggered.</p>\n<p>However, if an offence requires that the same elements (or a subset of them) be proved, then they are the same offence. So, for example, both murder and rape normally incorporate the elements of common assault - a person acquitted of either murder or rape cannot subsequently be charged with common assault.</p>\n<p>Further, the principle of <a href=\"https://en.wikipedia.org/wiki/Res_judicata\" rel=\"nofollow noreferrer\">res judicata</a> applies to criminal cases as well as civil cases. Therefore any fact or issue of law that was decided in the first trial cannot be reagitated in the second.</p>\n",
"score": 3
}
] |
[
"united-states",
"criminal-law",
"double-jeopardy"
] |
Is it legal to ask users to pay for exporting their data?
| 1 |
https://law.stackexchange.com/questions/24399/is-it-legal-to-ask-users-to-pay-for-exporting-their-data
|
CC BY-SA 3.0
|
<p>I have a RescueTime account (rescuetime.com) and I want to export all of my data with its API. However based on my experimentation the API can access data of only three most recent months.</p>
<p>If I want to access reports of last year on the website, I need to pay for a subscription. I believe the API for raw data export has similar restrictions. Is it legal to charge me for my own data?</p>
| 24,399 |
[
{
"answer_id": 86900,
"body": "<p>Thanks to <a href=\"https://en.wikipedia.org/wiki/General_Data_Protection_Regulation\" rel=\"nofollow noreferrer\">Europe's General Data Protection Regulation (GDPR)</a> the answer to your question generally now seems to be "No, it is not legal to ask users to pay for exporting their data". Specifically, <a href=\"https://en.wikipedia.org/wiki/General_Data_Protection_Regulation#Information_and_access\" rel=\"nofollow noreferrer\">Article 15 grants users (or what the GDPR calls "data subjects") a right to access their personal data</a>:</p>\n<blockquote>\n<p>A data controller must provide, upon request, an overview of the categories of data that are being processed (Article 15(1)(b)) as well as a copy of the actual data (Article 15(3)</p>\n</blockquote>\n<p>and they must do so in a useful way:</p>\n<blockquote>\n<p>In addition, the data must be provided by the controller in a structured and commonly used standard electronic format. The right to data portability is provided by Article 20 of the GDPR</p>\n</blockquote>\n<p>With regards to RescueTime specifically: while they still <a href=\"https://help.rescuetime.com/article/96-premium-reports#exporting\" rel=\"nofollow noreferrer\">charge for access to their sorted, filtered, and aggregated report data through the dashboard</a>, they now allow anyone with an account to download a copy of their full, raw logged time data every 30 days: <a href=\"https://www.rescuetime.com/accounts/your-data\" rel=\"nofollow noreferrer\">https://www.rescuetime.com/accounts/your-data</a></p>\n<p>They talk more about their compliance with the GDPR in a blog post: <a href=\"https://blog.rescuetime.com/personal-data-gdpr/\" rel=\"nofollow noreferrer\">https://blog.rescuetime.com/personal-data-gdpr/</a></p>\n",
"score": 2
},
{
"answer_id": 24403,
"body": "<p>RescueTime Lite has a 3 month report history limit. You agreed to the <a href=\"https://www.rescuetime.com/tos\" rel=\"nofollow noreferrer\">RescueTime TOS Terms of Service</a> when you signed up, and that included the stipulation that you only get 3 months of data with the free plan. That's clearly on the subscription page:</p>\n\n<p><a href=\"https://i.stack.imgur.com/VWmMq.png\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/VWmMq.png\" alt=\"enter image description here\"></a></p>\n\n<p>That's legal. They can charge you for access to more than 3 months of data in the form of a longer subscription. You're not being asked to pay to access your data; you agreed to a free plan that included limited access to that data.</p>\n\n<p>And this is part of what <a href=\"https://www.rescuetime.com/tos\" rel=\"nofollow noreferrer\">you \"signed\"</a> as a click-wrap contract that is relevant to your dispute:</p>\n\n<blockquote>\n <p>...You understand and agree that the cancellation of your membership or a\n particular component of the Service is your sole right and remedy with\n respect to any dispute with RescueTime. This includes, but is not\n limited to, any dispute related to or arising out of: (a) any term of\n the TOS or RescueTime’s enforcement or application of the TOS; (b) any\n policy or practice of RescueTime, including the Privacy Policy, or\n RescueTime’s enforcement or application of these policies; (c) the\n data available through the Service; (d) your ability to access and use\n the Service; or (e) the amount or type of fees, surcharges, applicable\n taxes, and any RescueTime billing methods. RescueTime, in its sole\n discretion, may terminate your membership and remove and discard any\n of your Recommendations without notice if RescueTime believes that you\n have violated or acted inconsistently with the TOS. RescueTime will\n not be liable to you for termination of your membership to the\n Service....</p>\n</blockquote>\n\n<p>You only recourse in a dispute with them is to stop using the service. (Also see <a href=\"https://law.stackexchange.com/questions/13549/are-terms-of-service-legal-contracts/13571#13571\">Are terms of service legal contracts?</a> )</p>\n\n<p>And RescueTime retains all rights to your data. It might be the data that you contributed to the service, but you granted them a permanent license to use it.</p>\n\n<blockquote>\n <p>The license granted in these TOS does not constitute a transfer or\n sale of RescueTime’s ownership rights in the RescueTime Database.\n RescueTime retains all right, title, and interest in and to the\n RescueTime Database including all related intellectual property\n rights.</p>\n</blockquote>\n",
"score": 1
}
] |
[
"privacy",
"data-ownership"
] |
Blackmail is illegal, but how is that enforced in practice?
| 2 |
https://law.stackexchange.com/questions/56995/blackmail-is-illegal-but-how-is-that-enforced-in-practice
|
CC BY-SA 4.0
|
<p>As I'm sure you are aware, blackmail is illegal. However, I am curious about how this would be enforced in a real-world scenario. Could any lawyers provide some insight on this?</p>
<p>For example, if I killed someone or my company is committing significant fraud or tax evasion, and someone threatens to reveal this information unless I help them with something, this would be considered blackmail.</p>
<p>However, if you were in this situation, what could you even do? Report the person to the police and potentially face consequences yourself? What are the practical implications of blackmail being illegal?</p>
| 56,995 |
[
{
"answer_id": 57003,
"body": "<p>Canadian law defines a crime of extortion, but not blackmail. An alternative theory of "blackmail" is that it is <a href=\"https://laws-lois.justice.gc.ca/eng/acts/c-46/section-423.html\" rel=\"noreferrer\">coercion</a>. <a href=\"https://laws-lois.justice.gc.ca/eng/acts/c-46/section-346.html\" rel=\"noreferrer\">This is the law</a> against extortion in Canada. We start with the definition of extortion, §346 (1)</p>\n<blockquote>\n<p>Every one commits extortion who, without reasonable justification or\nexcuse and with intent to obtain anything, by threats, accusations,\nmenaces or violence induces or attempts to induce any person, whether\nor not he is the person threatened, accused or menaced or to whom\nviolence is shown, to do anything or cause anything to be done.</p>\n</blockquote>\n<p>To simplify, one person makes another person do something using threats, accusations or violence and doesn't have a good reason to do so. A parent can altruistically threaten to write a child out of their will if the child doesn't stop taking heroin: that's a good reason, so that is not extortion. If you threaten to turn a murderer in to the police unless they give to $1,000, that is extortion. However, the law also provides that "A threat to institute civil proceedings is not a threat for the purposes of this section". It <em>is</em> legal to threaten to sue the pants off of a person if they don't settle for some cash reward.</p>\n<p>The wording of the law is very broad and it's not obvious from the wording of the statute where the line is drawn. <a href=\"https://zamani-law.com/extortion-a-primer/\" rel=\"noreferrer\">These guys</a> give a number of examples of acts leading to convictions:</p>\n<blockquote>\n<p>A teenager who said he would bring an AK-47 to school and shooting\npeople unless he was compensated for his damaged vape;</p>\n<p>A man who was found to have implied violence by asking for money and\nstating that ‘things will get a lot worse’, and ‘if you can’t pay with\nmoney you’ll have to pay with something else’ if he didn’t receive it;</p>\n<p>Three men who were accused of threatening, harassing, intimidating,\nand extorting a man who tried to start a new chapter of a\nMontreal-based Motorcycle club;</p>\n<p>A man who allegedly committed acts including arson, telephone threats,\nmolotov cocktails, and paintball-gun shootings against his former\nbusiness associates;</p>\n<p>A man who threatened to post nude pictures of people on social media\nunless paid;</p>\n<p>A man who pretended to be a photographer and threatened to send nude\npictures to family or pornorgraphic magazines unless sexual favours\nwere granted;</p>\n<p>A person who threatened to sell a story to a newspaper unless the\nvictim paid a sum of money (the story regarded the victim’s recent\nconviction);</p>\n<p>A woman who threatened to send a letter to another woman’s employer\nunless the other woman repaid a debt she owed</p>\n</blockquote>\n<p>As they say, "the threat must go beyond what a reasonable person in the accused’s situation would view as a legitimate means": the issue is dealt with on a case-by-case basis.</p>\n<p>In case you murder someone or commit tax fraud, and another person threatens to turn you in if you don't {pay them / mow their lawn}, the law takes the position that you should turn yourself in, provide the evidence to the police, and the police will prosecute the other person for extortion. There is no "I was blackmailed" get out of jail defense.</p>\n<p>One practical implication of the law is that you can't extort a person because they committed a crime: instead, you are expected to just turn them (and the evidence) in to the police – that's your civic duty. You can also hold your tongue: what you can't do is extort the other criminal.</p>\n",
"score": 5
},
{
"answer_id": 57012,
"body": "<h2>Blackmail is broader than you think</h2>\n<p>I’m going to use the definition in s249K of the <a href=\"/questions/tagged/new-south-wales\" class=\"post-tag\" title=\"show questions tagged 'new-south-wales'\" rel=\"tag\">new-south-wales</a> <a href=\"https://www.legislation.nsw.gov.au/view/html/inforce/current/act-1900-040#pt.4B\" rel=\"nofollow noreferrer\">Crimes Act 1900</a> which I know is in niether <a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" rel=\"tag\">canada</a> nor the <a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" rel=\"tag\">united-states</a> but the definition will be close enough for this purpose:</p>\n<blockquote>\n<p>(1) A person who makes any unwarranted demand with menaces—</p>\n<p>(a) with the intention of obtaining a gain or of causing a loss, or</p>\n<p>[b) with the intention of influencing the exercise of a public duty,\nis guilty of an offence.</p>\n</blockquote>\n<p>So blackmail is making a threat and while the classic threat in fiction is the threat to reveal unethical, immoral or illegal activities on the part of the victim, while that would be blackmail, that’s not inherent in the crime.</p>\n<p>For example, the following are all blackmail if they are making an unwarranted demand:</p>\n<ul>\n<li>a Union (or employer) threatening unlawful industrial action.</li>\n<li>an employer threatening an employee with unlawful dismissal or reduced shifts</li>\n<li>a professor threatening to give a student a lower grade</li>\n</ul>\n<p>In none of those has the victim done anything wrong that the blackmailer is threatening to reveal.</p>\n<p>That said, this is always a difficult crime to prosecute. Like domestic violence, the victim is usually in an inferior power position (you can’t really threaten someone more powerful than you) and the crime can be unwitnessed except by the victim.</p>\n",
"score": 1
}
] |
[
"united-states",
"criminal-law",
"blackmail"
] |
How will the Trump administration ban TikTok, and are there any limitations on the use of these mechanisms against other companies?
| 2 |
https://law.stackexchange.com/questions/54862/how-will-the-trump-administration-ban-tiktok-and-are-there-any-limitations-on-t
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CC BY-SA 4.0
|
<h2>Background context</h2>
<p>The Trump administration recently announced plans to ban the social media app TikTok. The administration claims this is for national security reasons, alleging that TikTok is an agent of the Chinese Communist Party. TikTok denies these claims and has provided statistics about American ownership and employment. As a result, TikTok is currently for sale in the financial markets, with potential buyers including Microsoft and other tech giants.</p>
<h2>Question about this</h2>
<ul>
<li><p>What specific legal mechanisms will the Trump administration use to enforce the TikTok ban?</p>
</li>
<li><p>What conditions must be met for the executive branch of the government to use these mechanisms to ban TikTok, and can these mechanisms be used arbitrarily by the President or future Presidents? Do the same laws apply to domestic companies?</p>
</li>
<li><p>Is it possible that these mechanisms could be used in the future to select winners and losers in the tech industry at the President's personal discretion?</p>
</li>
</ul>
| 54,862 |
[
{
"answer_id": 54863,
"body": "<p>The authority for the ban is laid out <a href=\"https://law.stackexchange.com/q/54850/4501\">here</a>: all that is required is putting the company on the Commerce Department's entity list. More specifically, under <a href=\"https://www.law.cornell.edu/uscode/text/50/1701\" rel=\"nofollow noreferrer\">50 USC 1701</a> there must be an</p>\n<blockquote>\n<p>unusual and extraordinary threat, which has its source in whole or\nsubstantial part outside the United States, to the national security,\nforeign policy, or economy of the United States, if the President\ndeclares a national emergency with respect to such threat</p>\n</blockquote>\n<p>If that condition is satisfied (and it has been: <a href=\"https://www.whitehouse.gov/presidential-actions/executive-order-securing-information-communications-technology-services-supply-chain/\" rel=\"nofollow noreferrer\">we have the emergency</a>), then <a href=\"https://www.law.cornell.edu/uscode/text/50/1702\" rel=\"nofollow noreferrer\">50 USC 1702</a> grants POTUS broad economic powers, including prohibiting transactions in foreign exchange, or any kind of transaction involving any right regarding any property. Under that order, one implementational step for putting a company on the list\nis an executive review involving the</p>\n<blockquote>\n<p>Secretary of Commerce (Secretary), in consultation with the Secretary\nof the Treasury, the Secretary of State, the Secretary of Defense, the\nAttorney General, the Secretary of Homeland Security, the United\nStates Trade Representative, the Director of National Intelligence,\nthe Administrator of General Services, the Chairman of the Federal\nCommunications Commission, and, as appropriate, the heads of other\nexecutive departments and agencies</p>\n</blockquote>\n<p>There must be a determination that</p>\n<blockquote>\n<p>the transaction involves information and communications technology or\nservices designed, developed, manufactured, or supplied, by persons\nowned by, controlled by, or subject to the jurisdiction or direction\nof a foreign adversary</p>\n</blockquote>\n<p>and that the transaction "is a threat". This last requirement is the tallest hurdle that a Twitter-ban would face, namely establishing that Twitter is controlled by a <em>foreign</em> adversary.</p>\n",
"score": 3
}
] |
[
"united-states",
"internet"
] |
Do countries that are not members of the Berne Convention still enjoy the benefits it provides?
| 0 |
https://law.stackexchange.com/questions/54834/do-countries-that-are-not-members-of-the-berne-convention-still-enjoy-the-benefi
|
CC BY-SA 4.0
|
<p>The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland, in 1886.</p>
<p>Although widely recognized around the world, there are still some countries that are not signatories to the Berne Convention. For example: Palestine, Somalia, Iran, Iraq, etc.</p>
<p>What would happen if an Iranian artist or designer's work is plagiarized by an American company, would they still be protected by the Berne Convention?</p>
<p>What if the aforementioned creative individual later moves to a country that is a member of the Berne Convention? Would there be retrospective application?</p>
| 54,834 |
[
{
"answer_id": 54838,
"body": "<h2>No</h2>\n<p>The <a href=\"https://en.wikipedia.org/wiki/Berne_Convention\" rel=\"nofollow noreferrer\">Berne Convention</a> requires member states to afford copyright protection equal to their own to works from <em>other</em> member states. A work first published only in non-member state(s) and by citizen(s) of non-member state(s) is not required to be given such protection but such protection is not prohibited either.</p>\n<p>A work can not acquire copyright retrospectively if it didn’t have it on creation.</p>\n",
"score": 3
}
] |
[
"united-states",
"copyright",
"canada"
] |
Is informal written consent, such as through text messages or email, legally binding?
| 2 |
https://law.stackexchange.com/questions/54833/is-informal-written-consent-such-as-through-text-messages-or-email-legally-bin
|
CC BY-SA 4.0
|
<p>For this question, let's assume the contract is for common goods and services.</p>
<p>First hypothetical scenario: I meet a plumber on an online marketplace, like Facebook or Craigslist, and he writes that he will fix a problem in my bathroom. He guarantees that he will pay for any unexpected damages that might happen during the repairs.</p>
<p>Second hypothetical scenario: I hire a local graphic designer to create a logo for my new business. In an email, the designer agrees to transfer all copyright claims to the work once they have been paid. This agreement is made through email, not a signed written agreement.</p>
<p>Are the promises made in either of these cases legally binding?</p>
| 54,833 |
[
{
"answer_id": 54837,
"body": "<h2>Contracts don’t have to be in writing</h2>\n<p>Generally, there are specific exemptions. For example, in some jurisdictions, copyright transfers have to be in writing.</p>\n<h2>Written contracts do not have to take any particular form</h2>\n<p>Again, in general, some specific contracts may need to be in particular forms or explicitly deal with particular matters.</p>\n<h2>Writing doesn’t mean ink on paper</h2>\n<p>Of course, ink on paper is “writing” but so is an email, a text message, a Facebook post, a photo, a <a href=\"https://www.comicbookcontracts.com\" rel=\"nofollow noreferrer\">comic book</a>. In law, writing simply means a semi-permanent record.</p>\n<h2>Signatures are not required</h2>\n<p>Unless, of course, they are in the specific circumstances.</p>\n<h2>Your examples</h2>\n<p>The plumber’s promise is both binding and unnecessary - the plumber is responsible for his own negligent acts and omissions even without such an agreement. On the other hand, if you promised not to hold him responsible, that promise would be binding.</p>\n<p>The designer’s agreement to transfer copyright is binding even where such agreements must be in writing because it is in writing.</p>\n<p>See <a href=\"https://law.stackexchange.com/q/6263/344\">What is a contract and what is required for them to be valid?</a></p>\n",
"score": 4
}
] |
[
"united-states",
"contract-law",
"canada"
] |
Does an individual's use of a tool or weapon affect their claim of self-defense?
| 1 |
https://law.stackexchange.com/questions/53595/does-an-individuals-use-of-a-tool-or-weapon-affect-their-claim-of-self-defense
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CC BY-SA 4.0
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<p>Consider the following hypothetical scenario:</p>
<p>A person is at home when a robber, who thought the apartment would be empty, enters. The home owner kills the robber in a subsequent exchange. It is not specified whether the robber was armed or unarmed.</p>
<p><strong>Question 1)</strong> Can the home owner claim self-defense if they killed the robber without using a weapon, such as punching or kicking?</p>
<p><strong>Question 2)</strong> Can the home owner claim self-defense if they killed the robber using a non-lethal weapon, such as pepper spray or a taser?</p>
<p><strong>Question 3)</strong> Can the home owner claim self-defense if they killed the robber using a lethal weapon, such as a hunting rifle or crossbow?</p>
<p>I want to know about self-defense in relation to the criminal code in Canada or the United States.</p>
| 53,595 |
[
{
"answer_id": 53597,
"body": "<p>To provide an initial answer, without getting to the specific of the 51 statutory standards for self-defense in U.S. states and the exact Canadian standard, as applied to your examples, I'll make some general observations:</p>\n<ul>\n<li><p>Self-defense is a justification for doing something that would otherwise be illegal (intentionally using force against someone else).</p>\n</li>\n<li><p>Self-defense justifications include a sense of proportionality. It isn't proper to use more force than is reasonably necessary to achieve the defensive objective.</p>\n</li>\n<li><p>There are basically two levels of self-defensive force: Deadly Force and Non-Deadly Force.</p>\n</li>\n<li><p>Preventing some crimes and harms is statutorily justified to do using deadly force (e.g. to prevent a murder). To prevent other crimes and harms statutes only justify the use of non-deadly force (e.g. to prevent shoplifting). The exact list of crimes in each category varies somewhat. Historically, for example, there have been some U.S. states that have authorized the use of deadly force to prevent a rape that does not put the life of the victim at risk, and others that have not authorized the use of deadly force for that purpose (I don't know if that is still the case).</p>\n</li>\n<li><p>Typically, law enforcement officers are also authorized to use deadly force in some circumstances in which a non-deputized civilian could not.</p>\n</li>\n<li><p>As a practical matter, a use of force that causes death is presumptively considered to be deadly force, even if the means used are not inherently deadly in all circumstances. Meanwhile, a use of force involving the use of a "deadly weapon" such as a firearm, is presumptively considered to be deadly force, even if it doesn't actually kill someone.</p>\n</li>\n<li><p>But both of these "presumptions" (and I am using that term loosely in this answer, rather than with its precise legal meaning), can be overcome with relevant evidence. Mildly shoving someone with hemophilia (or tossing a dish full of peanuts in the face of someone with a severe peanut allergy), without knowing that this person suffers from this condition, is not a use of deadly force within the meaning of laws justifying self-defense, even if it actually ends up causing their death. Similarly, proving that you intended to and did, shoot out the tires of someone's car, or shot their foot, instead of shooting to kill, would not always constitute a use of deadly force for purposes of statutes justifying the use of force in self-defense.</p>\n</li>\n</ul>\n<p>Getting to the specifics of the question, the majority rule would be that the use of deadly force is justified in most circumstances to prevent a home invasion burglar from harming you or other people in the residence, and to repel the home invasion burglar from the residence, although some jurisdictions would qualify this in one respect or another. The case that the use of deadly force is justified would be stronger if the home invasion burglar was armed than if he was not, and would be stronger if the homeowner was not physically competent enough to be confident of an ability to dispatch the invader in a non-deadly manner.</p>\n<p>If deadly force was justified in that circumstance, it wouldn't really matter how you killed him, nor would it matter that you intended to kill him to defense your home and the people in your home.</p>\n<p>If the law only authorized the use of non-deadly force in the circumstances, for example, because the burglar had seized an envelope full of cash and was fleeing the house, so you were really only using force to protect your property, rather than to protect your home or the safety of the people in it, at that point, then the analysis would get tougher.</p>\n<p>If you intended to kill the fleeing thief in circumstances when only non-deadly force was authorized, the weapon you used wouldn't matter. You intended to use deadly force, the force you used caused the intended death, and you did those things even though the law didn't authorize you to do so in those circumstances.</p>\n<p>If you didn't intend to kill the fleeing thief in circumstances when only non-deadly force was authorized, but you ended up killing him anyway (so that you didn't have a prohibited intent behind your actions), then the question would be whether your intent and belief that your actions would not kill him was reasonable under the circumstances.</p>\n<p>If you caused his death with your bare hands, or with a less lethal weapon (in truth, there is no such thing as a non-lethal weapon), your belief that the thief wouldn't die from your use of force would be more likely to be seen as reasonable.</p>\n<p>If you caused his death with a lethal weapon, your belief that the thief wouldn't die from your use of force would be less likely to be seen as reasonable.</p>\n<p>If the jury (or a judge in bench trial) didn't believe you were reasonable in your use of force which you didn't intend to be deadly, then the jury (or judge as the case might be) would not allow a self-defense argument to prevent them from convicting you of some kind of homicide crime. So you would probably be convicted of some form of homicide (perhaps heat of passion manslaughter), although you might still not have the requisite intent for first degree murder in circumstances like that (so that your self-defense argument might end up providing you with an incomplete defense).</p>\n",
"score": 4
},
{
"answer_id": 53596,
"body": "<p><a href=\"https://en.wikibooks.org/wiki/Canadian_Criminal_Law/Defences/Self-Defence_and_Defence_of_Another\" rel=\"nofollow noreferrer\">This</a> provides a summary of the legal principles regarding self defense, stated for Canada but applicable in most important details in the US (where it is governed by state law). If someone breaks into your home, that does not give you an excuse to beat them up or shoot them (retributive force can only be exercised by the courts).\nIf you say "Boo!" and they run away, you may not legally kill them or even slap them. If you can call the police and make them go away, you may not slap or kill them. It is possible that they will undertake an aggressive act against you, and assault you without provocation. You are allowed to use force to defend yourself in that case. An alternative is to retreat, if possible, but in Canada and most if not all states in the US you have no duty to retreat from your own home.</p>\n<p>Even if a person acts aggressively toward you, that does not justify using force against the person. You may use force if you are under a reasonable apprehension of death or grievous bodily harm from the assault and have reasonable grounds to believe that force is necessary to prevent grievous bodily harm or death. The force that you use must be no more than is necessary. If it is plainly obvious that a punch in the snoot will put an end to the assault, you are not justified in blowing his head off with a shotgun because he broke into your home.</p>\n<p>The law does not require you to be omniscient on the issue of whether the person is armed. If force is justified in self defense, the law does not discriminate in terms of using fists, tasers, or guns, at least to the extent that possession of tasers or guns is legal (in some states, felons have not been able to avail themselves of self defense when firearm were used in self defense).</p>\n",
"score": 1
}
] |
[
"united-states",
"canada",
"murder",
"self-defense"
] |
Why does digital copyright appear to be less effective than physical copyright?
| 1 |
https://law.stackexchange.com/questions/53569/why-does-digital-copyright-appear-to-be-less-effective-than-physical-copyright
|
CC BY-SA 4.0
|
<p>I frequently hear on the news about enforcement of patent infringements on physical products, such as various types of wrenches, machinery, and toys.</p>
<p>However, I cannot recall a situation where an online business has been sued for creating a product that is almost identical to another product. For example, in the case of video game app offerings for phones, whenever a new trend emerges, a multitude of copycat products seem to follow.</p>
<p>Initially, I thought this was because the rate of ripoffs is so high that the original creators are unable to file claims as quickly as new copies appear. However, I have also observed that large corporate groups, such as Ketchapp and Voodoo, often have entire portfolios consisting of slightly modified versions of popular products created by competitors.</p>
<p>It is difficult to understand how this is feasible, and copyright law for digital services seems to be less effective than for physical products. Please keep in mind, I am not from a legal background and am simply curious about this.</p>
| 53,569 |
[
{
"answer_id": 53575,
"body": "<h2>Patents protect inventions, Copyright protects artistic or literary creation</h2>\n<p>Software does not qualify for patents. In some jurisdictions but by no means most, algorithms and business processes can be patented.</p>\n<p>Software, both the literary (code) and artistic (UIJ) work, is protected by copyright which prevents copying the expression but not the idea. So software writers can take inspiration from other <em>software</em> but can’t <em>copy</em> it.</p>\n<p>So, things that look like copyright infringement often aren’t but things that look like patent infringement often are.</p>\n<p>Patents last for a short time (10-20 years) and take a lot of investment of time and money so their owners are incentivised to commercialise them quickly and on a large scale.</p>\n<p>Copyright lasts for a long time (life of the creator(s) + 50 years minimum depending on jurisdiction) and come into existence automatically. In general, it is easier to create a literary or artistic work than a novel invention.</p>\n<p>So, patent owners are more incentivised to protect their IP than copyright owners.</p>\n",
"score": 4
}
] |
[
"united-states",
"copyright",
"software",
"canada"
] |
Is the Nazi party legal in the German parliament?
| -5 |
https://law.stackexchange.com/questions/86885/is-the-nazi-party-legal-in-the-german-parliament
|
CC BY-SA 4.0
|
<p>We are in a private community and we are discussing.</p>
<p>So the question is :</p>
<p>Does the Nazism party exist and is legal in the German parliament?</p>
<p>We assume that This party is the same as the Hitler party but without the sign of the Nazi swastika flag,and exist in German parlemant.</p>
<p>Thanks.</p>
| 86,885 |
[
{
"answer_id": 86891,
"body": "<p>Parties in Germany can be banned if, according to the behaviour of the party of their supporters, the party aims to undermine the free, democratic, constitutional order or the existence of the state. Finding that this is the case requires a judgement of the Federal supreme court (<a href=\"https://www.gesetze-im-internet.de/gg/art_21.html\" rel=\"nofollow noreferrer\">Art. 21 GG</a>).</p>\n<ul>\n<li>In the past, the <a href=\"https://en.wikipedia.org/wiki/Communist_Party_of_Germany#Post-war_history\" rel=\"nofollow noreferrer\">Communist Party of Germany</a> has been banned. Their members reorganized as the German Communist Party, taking care to keep certain objectionable sentences out of their manifesto. The German Communist Party was not banned, but their active members were removed from civil service positions. After the fall of Communism, information came to light that might, in hindsight, have justified a ban of the DKP.</li>\n<li>Two attempts were made to ban the <a href=\"https://en.wikipedia.org/wiki/National_Democratic_Party_of_Germany\" rel=\"nofollow noreferrer\">National Democratic Party of Germany</a>, which would meet the example you ask for. The first attempt was rejected by the supreme court because there were so many police informers in the party leadership that it smacked of <a href=\"https://en.wikipedia.org/wiki/Entrapment\" rel=\"nofollow noreferrer\">entrapment</a>. The informers were removed, and the second attempt was partially rejected by the supreme court because the party was found so insignificant by that time that banning it would be disproportional.</li>\n<li>Finally, there was the <a href=\"https://en.wikipedia.org/wiki/Socialist_Reich_Party\" rel=\"nofollow noreferrer\">Socialist Imperial Party</a>, which was more <em>Reich</em> than <em>socialist</em>. It was banned 70 years ago for being too close to Nazi ideology.</li>\n</ul>\n<p>A party as you describe it would, objectively, meet the conditions above. All that leaves is to prove it to the satisfaction of the court. The case law from the second NPD case adds another condition, political significance.</p>\n",
"score": 1
},
{
"answer_id": 86892,
"body": "<blockquote>\n<p>Does the Nazism party exist and is legal in the German parliament?</p>\n</blockquote>\n<h1>No.</h1>\n<p>The Nazi party was found to be a criminal organisation and abolished in the Nuremberg Trials of 1946.</p>\n<p>Trying to refound/reform a criminal organisation is illegal in itself.</p>\n<p><a href=\"https://en.wikipedia.org/wiki/Nazi_Party#Defeat_and_abolition\" rel=\"nofollow noreferrer\">https://en.wikipedia.org/wiki/Nazi_Party#Defeat_and_abolition</a></p>\n<p><a href=\"https://de.wikipedia.org/wiki/Nationalsozialistische_Deutsche_Arbeiterpartei#Parteiverbot_1945\" rel=\"nofollow noreferrer\">https://de.wikipedia.org/wiki/Nationalsozialistische_Deutsche_Arbeiterpartei#Parteiverbot_1945</a></p>\n",
"score": 0
}
] |
[
"germany",
"politics"
] |
Why is Oklahoma divided into three districts?
| 8 |
https://law.stackexchange.com/questions/86883/why-is-oklahoma-divided-into-three-districts
|
CC BY-SA 4.0
|
<p>The <a href="https://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Tenth_Circuit" rel="nofollow noreferrer">United States Court of Appeals for the Tenth Circuit</a> hears appeals from the district courts of the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. With one exception, each state is a single federal district, for example the District of Colorado.</p>
<p>Oklahoma, however, is divided into an Eastern, a Northern, and a Western district.</p>
<p>Why? Are the federal courts of Oklahoma busier than those of the other states? The obvious answer is population, but Colorado is substantially more populous than Oklahoma. Nor is the population of Oklahoma more dispersed than, say, that of Kansas.</p>
<p>How did this happen? Is there a reason for it?</p>
| 86,883 |
[
{
"answer_id": 86887,
"body": "<p>Oklahoma Territory and The Indian Territories were set on the road to statehood by the <a href=\"https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/34/STATUTE-34-Pg267b.pdf\" rel=\"noreferrer\">Oklahoma Enabling Act</a>: §13 of that act stipulated that two judicial districts would be created, where The Indian Territories would be the Eastern District and Oklahoma Territory would be the Western district. This is an ancient-enough political act that we can't say why Congress decided to give the constituent parts separate courts, however legal issues regarding tribes are different from other aspects of federal law, so it would be sensible to have a specialized district for special cases. In <a href=\"https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/43/STATUTE-43-Pg945.pdf\" rel=\"noreferrer\">1925, Congress</a> reorganized the two districts into three. I think that is as far as one can go with the legal aspect of the question, but there may be a historical political explanation</p>\n",
"score": 13
}
] |
[
"united-states",
"federal-courts",
"oklahoma"
] |
Referencing a paragraph between Fair Use and a License
| 0 |
https://law.stackexchange.com/questions/86894/referencing-a-paragraph-between-fair-use-and-a-license
|
CC BY-SA 4.0
|
<p>Let's assume Alice produces a work that lists lore and statistics for beasts, and how to prepare them for adventure meals, and calls it Monster Cookbook, or MC for short. In it, Alice lists a creature on page XX that could be best summarized as a flying orb with a giant mouth with more mouths added on stalks and declares that thing is called a <em>Gourmet</em>.</p>
<p>Now, Alice decides to use the <a href="https://web.archive.org/web/20160302062643/http://www.wizards.com/d20/files/OGLv1.0a.rtf" rel="nofollow noreferrer">OGL (Open Game License) 1.0a</a> for her Monster Cookbook and declares the the <em>Gourmet</em> is a product identity.</p>
<p>Bob now wants to write an adventure set in a gigantic restaurant. He wants to feature the Gourmet... Normally just writing "Gourmet (Alice: MC, p.XX)" would qualify as fair use (as you reference a fact) but here, we have the OGL providing this:</p>
<blockquote>
<ol start="7">
<li>Use of Product Identity: You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity. You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark. The use of any Product Identity in Open Game Content does not constitute a challenge to the ownership of that Product Identity. The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that Product Identity.</li>
</ol>
</blockquote>
<p><strong>May Bob provide a pointer to Alice book or does he breach the License if he does?</strong></p>
| 86,894 |
[
{
"answer_id": 86897,
"body": "<p>The OGL is a licence to <em>use</em> the content. To the extent that use requires distribution/copying, the OGL is licensing that. In several clauses, it specifically contemplates that material used will be distributed. This is the kind of activity that is being licensed.</p>\n<p>A licence to do a thing is required only when the action would otherwise be prohibited.</p>\n<p>You assert in the question that</p>\n<blockquote>\n<p>Normally just writing "Gourmet (Alice: MC, p.XX)" would qualify as fair use</p>\n</blockquote>\n<p>That means no licence is needed to do that thing, so there is no need to even inquire into what any licence says.</p>\n<p>Think about a book whose author has provided a licence for limited kinds of copying (e.g. "you may reproduce up to five pages of material as long as you credit the author and as long as it is not for commercial purposes"). If you want to use the book as a stand for your monitor, you do not need a licence for that. If you want to read the book, you do not need a licence for that. If you want to copy a portion of the book in a way that falls within a fair dealing right or fair use exception, you don't need a licence for that.</p>\n<p>Only when the copying would stray into the exclusive rights of the copyright owner and not be permitted by fair dealing / fair use would one need a licence.</p>\n<p>Your assertion that the use in question is fair use (although, I doubt it would even be infringement) renders the licence question moot.</p>\n",
"score": 1
},
{
"answer_id": 86895,
"body": "<p>No, Bob is not breaching the OGL if he provides a pointer to Alice's book. The OGL only restricts the use of Product Identity as an indication of compatibility or for creating derivative works. Providing a pointer to Alice's book does not fall into either of these categories.</p>\n",
"score": 0
}
] |
[
"united-states",
"copyright",
"licensing"
] |
Why was Ağca tried and imprisoned in Italy?
| 2 |
https://law.stackexchange.com/questions/86882/why-was-a%c4%9fca-tried-and-imprisoned-in-italy
|
CC BY-SA 4.0
|
<p><a href="https://en.wikipedia.org/wiki/Attempted_assassination_of_Pope_John_Paul_II" rel="nofollow noreferrer">Mehmet Ali Ağca tried to kill the pope in 1981 in Vatican City. For this, he was tried and convicted by an Italian court, and served time in an Italian prison.</a> Why Italian? What did Italy have to do with the case?</p>
| 86,882 |
[
{
"answer_id": 86893,
"body": "<p>Because, although the Vatican does have its own laws, it does not make any economic sense to have a full enforcement system. Most of the crime is pickpockets on the public square. Italy already has a police and prison system and can easily handle the one or two more cases a year that are above petty crime:</p>\n<blockquote>\n<p>Under the terms of article 22 of the Lateran Treaty, Italy will, at the request of the Holy See, punish individuals for crimes committed within Vatican City and will itself proceed against the person who committed the offence, if that person takes refuge in Italian territory. Persons accused of crimes recognized as such both in Italy and in Vatican City that are committed in Italian territory will be handed over to the Italian authorities if they take refuge in Vatican City or in buildings that enjoy immunity under the treaty.</p>\n</blockquote>\n<blockquote>\n<p>Vatican City has no prison system, apart from a few detention cells for pre-trial detention. People convicted of committing crimes in the Vatican serve terms in Italian prisons (Polizia Penitenziaria), with costs covered by the Vatican.</p>\n</blockquote>\n<p><a href=\"https://en.wikipedia.org/wiki/Vatican_City#Crime\" rel=\"nofollow noreferrer\">Source</a></p>\n<p>In case it isn't obvious: Italy is the country that fully surrounds the Vatican. The Vatican is <em>inside</em> Italy and has no borders with any other country. It also shares other systems with Italy, for example it is the only independent country without its own airport.</p>\n<p>When you are there, there are no borders. You do not notice when exactly you enter Vatican territory. The police patrolling are Italian police. People speak Italian. Nobody will ask you for a passport. You just turn a street corner and, suddenly, you've crossed into the Vatican.</p>\n",
"score": 3
}
] |
[
"international",
"criminal-procedure",
"history",
"italy",
"vatican-city-state"
] |
What's the consumer's rights in a Telco billing dispute?
| 0 |
https://law.stackexchange.com/questions/86861/whats-the-consumers-rights-in-a-telco-billing-dispute
|
CC BY-SA 4.0
|
<p>My aunt has a billing dispute with a Telco. Telco apologises and promises to resolve the billing issues but nothing has been done.</p>
<p>Her lines are disconnected twice in a month because of the outstanding balance in the account. The outstanding balance is due to the billing error on Telco's end that they failed to resolve in time. The disconnections are triggered by the system. Her lines are disconnected for 5 days each time which adversely affected her work and routine.</p>
<p>What's the consumer's rights in this situation? Is this considered a breach of SLA (Service Level Agreement)?</p>
| 86,861 |
[
{
"answer_id": 86884,
"body": "<p>Such action would seem to violate contract law. In many jurisdictions telephone companies are specially regulated, and there are procedures which must be followed before service can be terminated for nonpayment. These procedures, and the remedies which are available under them vary considerably from one jurisdiction to another. In the US these are maters of state law, not federal. In Canada, I believe these are matters of provincial law.</p>\n<p>A customer who has been disconnected without just cause could sue for contract violation, probably in a court of limited jurisdiction, such as a small claims court. But following the specific procedures for utility violations.</p>\n<p>In some US states there is a "Board of Public Utilities" or some agency with a similar name that will accept such complaints. Some are more responsive to consumers than others. In some cases involving the officed of a member of a state legislator can be helpful, as such boards typically require regular legislative budget approvals. In other cases, media attention may be of value. The exact procedures available in the jurisdiction will matter a good deal. The current political situation may also matter.</p>\n",
"score": 1
}
] |
[
"contract-law",
"civil-law",
"consumer-protection",
"terms-of-service"
] |
Does IIED (emotional distress) apply to infidelity and if no, why not?
| 1 |
https://law.stackexchange.com/questions/86874/does-iied-emotional-distress-apply-to-infidelity-and-if-no-why-not
|
CC BY-SA 4.0
|
<p>I found this interesting corner of law called IIED (Intentional Infliction of Emotional Distress).</p>
<p><a href="https://www.law.cornell.edu/wex/intentional_infliction_of_emotional_distress" rel="nofollow noreferrer">https://www.law.cornell.edu/wex/intentional_infliction_of_emotional_distress</a></p>
<p>To a layman's eye, infidelity seems to fit neatly into 4 bullet points of stated definition at this link, if intent can be shown:</p>
<ul>
<li>It's an act</li>
<li>It is generally considered outrageous</li>
<li>It's well known that infidelity victims are likely to suffer mental health effects (I even saw mentions it's equivalent to PTSD)</li>
<li>Conduct clearly causes the distress.</li>
</ul>
<p>If this is the case, can IIED get applied to a spousal infidelity, and if not, why wouldn't it? I'm looking ideally for a case where it was requested by the accuser, and the court either allowed it thus setting a precedent, or gave an explanation for rejecting it.</p>
<p>Since "well in this case, I don't see enough evidence that causing emotional distress was a <em>purpose</em> of defendant, merely an unfortunate consequence" is an obvious rebuttal, I'm hopefully looking for a more interesting case, such as where there is evidence proving that accused had anticipated emotional distress and it was a desired goal.</p>
<p>Jurisdiction is USA. And just to clarify, this is specifically regarding "<em>intentional</em>", not "negligent" ED.</p>
| 86,874 |
[
{
"answer_id": 86881,
"body": "<blockquote>\n<p>Does IIED (emotional distress) apply to infidelity and if no, why not?</p>\n</blockquote>\n<p>Generally speaking, infidelity falls short of liability for IIED.</p>\n<p><a href=\"https://www.leagle.com/decision/inncco20211207353\" rel=\"nofollow noreferrer\"><em>Clark v. Clark</em>, 867 S.E.2d 704 (2021)</a> appears to be one recent exception, but that is because there the defendants' conduct allegedly entailed more than mere infidelity, such as "<em>sen[ding] at least one email to Plaintiff in which Defendant Barrett told Plaintiff she "was a bad mother, that [she was] uneducated... [she] was a bad wife," and that Plaintiff came "from an unsuccessful family"</em>" (quotation marks in original), conduct that the court seemed to associate with elements of <em>Watson v. Dixon</em> (i.e., frightening the plaintiff, humiliation, etc.), cited in the preceding paragraph of the <em>Clark</em> decision.</p>\n<p>The difficulty for prevailing on a claim of IIED generally lies in proving that "<em>the defendant's conduct was [...] so outrageous that it is not tolerated by civilized society</em>", <a href=\"https://www.leagle.com/decision/intnco20120419647\" rel=\"nofollow noreferrer\"><em>Rogers v. Louisville Land Co.</em>, 367 S.W.3d 196, 207 (2012)</a>. The notion that infidelity "<em>is not tolerated by civilized society</em>" is hard to establish. For instance, many people do not very often distance themselves from a co-worker, friend, or acquaintance merely on grounds of that person being known to cheat on that person's spouse or partner. Also the fact that adultery is hardly ever prosecuted despite being prohibited in a jurisdiction's penal code reflects the extent of societal and governmental tolerance to infidelity.</p>\n",
"score": 4
}
] |
[
"family-law",
"emotional-distress"
] |
Why isn't FBI's access to our data against the right of privacy?
| -1 |
https://law.stackexchange.com/questions/86863/why-isnt-fbis-access-to-our-data-against-the-right-of-privacy
|
CC BY-SA 4.0
|
<p>In many blogs, it's said that your search history may get you in jail, like <a href="https://www.lawteryx.com/knowledge-center/criminal-law/illegal-internet-searches/" rel="nofollow noreferrer">Can Your Internet Search History Get You Arrested</a> and <a href="https://www.eezlaw.com/blog/2021/april/internet-searches-that-could-get-you-arrested/" rel="nofollow noreferrer">Internet Searches That Could Get You Arrested</a>. Seems that FBI can have access to our online data.</p>
<p>Why isn't FBI's access to our data against the right of privacy? What's even worse is that they may abuse their access for other conspiracy purposes. Is there a system to prevent the FBI from utilising their access for some vicious plot?</p>
<p>To avoid technological distinctions, assume for the sake of this question that the searches take place in the US using a United States internet service provider, using a U.S.-based search engine, not using a VPN.</p>
| 86,863 |
[
{
"answer_id": 86867,
"body": "<p>Firstly, because there isn't an explicit Constitutional "right to privacy", per se, and even if there was (and there are arguments that several constitutional provisions amount, in aggregate, to a right to privacy), that it wouldn't be absolute, in the same way that freedom of speech and of the press are not absolutes.</p>\n<p>Indeed, the closest thing to a right to privacy, the 4th Amendment, has explicit caveats: "The right of the people to be secure in their persons, houses, papers, and effects, against <strong>unreasonable</strong> searches and seizures, shall not be violated, and no <strong>Warrants</strong> shall issue, but upon <strong>probable cause</strong>, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (emphasis mine). Thus reasonable searches and seizures, especially those authorized by a warrant, are constitutional.</p>\n<p>Furthermore, even in light of a constitutional right of privacy derived from this statue, depending on how the "search history" is compiled, the 4th Amendment might not even apply, due to the <em>Katz</em> doctrine, also known as the "open fields" doctrine. Basically, the 4th amendment (as far as searches goes) does not apply to things that are publicly observable; while this would protect a literal "search history" compilation (baring a reasonable search), the searches themselves are public queries, broadcasted over the internet. Anyone watching could compile them into a "search history" themselves.</p>\n",
"score": 5
}
] |
[
"privacy",
"constitutional-law",
"search-and-seizure",
"fourth-amendment",
"fbi"
] |
If a business partner did not put money into the founding of the company are they still entitled to their shares?
| 0 |
https://law.stackexchange.com/questions/86858/if-a-business-partner-did-not-put-money-into-the-founding-of-the-company-are-the
|
CC BY-SA 4.0
|
<p>Consider the scenario in <strong>Western Australia</strong>:</p>
<ol>
<li><p>Me and 2 others want to go into business together based on what we
believe will make us profit (etc.).</p>
</li>
<li><p>The decision is to form a company, however, due to financial
difficulties of the other 2 individuals, it is decided that I pay
for the registration of the new company and they pay me back when
they can at a later date.</p>
</li>
<li><p>The company is registered and called "Newco" where I have paid for
the whole proceedings. The allocated shares are split equally; i.e.
5 shares for each person to make up a company made up of 15 shares.
Documents are signed showing witness of this.</p>
</li>
<li><p>Each individual is a 33% shareholder and also a director in "NewCo".</p>
</li>
<li><p>As time goes on it becomes apparent to me that the other 2
individuals continuously seem to use the company's resources to do
things outside of the company's interests (i.e. conflict of
interest).</p>
</li>
<li><p>Arguments occur but the steering of the company is officially
decided by the majority of the director's decisions; which is always
determined by the same voting of the other 2 partners who have a
long history working together.</p>
</li>
<li><p>It becomes apparent to me that I am at significant detriment and
have been for quite some time from their behaviour and dealings and
want to stop doing business with them. I want them out of the
company and make myself the sole director and shareholder but they
are not willing to give or sell me their shares amicably.</p>
</li>
</ol>
<p><strong>Question</strong>: Seeing as they never actually paid me back from the beginning for the company set up do the other 2 actually have a right to their shares? Or are they actually mine because I paid for everything? What can be done to get them out of the company?</p>
| 86,858 |
[
{
"answer_id": 86862,
"body": "<p>The directors are in control of the company, and the directors are appointed by a majority of shareholders. As a minority shareholder, the general rule is that you have to accept the decisions of the directors while they have the support of the majority shareholders. It does not matter what the majority shareholders paid for their shares or if they received them in exchange for other contributions to the business.</p>\n<p>However, the law does recognise that the general rule creates the potential for <a href=\"https://en.wikipedia.org/wiki/Oppression_remedy\" rel=\"nofollow noreferrer\">oppression</a> of minority shareholders. In Australia, the courts can order that a company be wound up, or that some members "buy out" other members' shares, if "the conduct of the company's affairs is oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member": <a href=\"https://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s232.html\" rel=\"nofollow noreferrer\">s 232</a> of the <em>Corporations Act 2001</em> (Cth).</p>\n<p>Applying for such a court order is expensive and complex. The court fee alone starts at <a href=\"https://www.fedcourt.gov.au/forms-and-fees/court-fees/fees\" rel=\"nofollow noreferrer\">$1,530</a>, and litigation of this kind would normally be conducted by professionals at a cost of tens, if not hundreds, of thousands of dollars. The unsuccessful party would generally be required to pay the successful party's legal costs. Almost invariably, it would be in the mutual interest of all parties to negotiate a settlement.</p>\n<p>For more information about shareholders' oppression in Australia, see Victorian Law Reform Commission, <a href=\"https://www.lawreform.vic.gov.au/publication/trading-trusts-oppression-remedies-report-3/3-the-oppression-remedy-in-the-corporations-act/\" rel=\"nofollow noreferrer\">The oppression remedy in the <em>Corporations Act</em></a> (2021):</p>\n<blockquote>\n<p>Irreconcilable differences may establish a basis for winding up, they do not of themselves constitute oppression or unfair prejudice … oppression connotes a lack of probity and fair dealing (although this is not a necessary condition), is something which is burdensome, harsh or wrongful, or is inequitable or unjust, or exhibits commercial unfairness … Examples of oppressive behaviour given by Brockett include where a majority shareholder:</p>\n<ul>\n<li>runs the company in their own interests and ignores the interests of minority shareholders</li>\n<li>improperly issues shares to themselves to outvote other shareholders</li>\n<li>excludes a minority shareholder from being involved in the management decisions of the company</li>\n<li>redirects business opportunities from the company to themselves</li>\n<li>pays themselves excessive salaries at the expense of paying dividends to shareholders.</li>\n</ul>\n</blockquote>\n",
"score": 2
},
{
"answer_id": 86865,
"body": "<p>There are many ways people get shares in a company - all of which require explicit documentation, contracts and so on, supported by the Memorandum and Articles of the company (to permit these contracts).</p>\n<ol>\n<li>Typically shares are issued based on the capital invested (this is the most common)</li>\n<li>Sweat equity is increasingly common - where shares are granted based on work done</li>\n<li>Equity for branding - where someone is granted shares to be associated with a company\n...</li>\n</ol>\n<p>So, yes, shares can ard do get issued even if one does not bring in money.</p>\n",
"score": 2
},
{
"answer_id": 86859,
"body": "<p>In the UK, you paying for initial expenses would be giving a loan to the company, and the company would have to repay the loan to you.</p>\n<p>If company resources are used, the company should send a bill, which needs to be paid. The same as if I used company resources. Being a shareholder doesn’t make a difference. So send bills out.</p>\n<p>I don’t think you have a right to remove them. But if the company goes bankrupt owing people money, someone may take over the company who forces your friends to pay money owed to pay the company’s debts.</p>\n",
"score": 1
}
] |
[
"contract-law",
"business",
"common-law",
"payment",
"shareholders"
] |
Is a US Government order to a private media company to suppress an article/story a violation of the First Amendment?
| 2 |
https://law.stackexchange.com/questions/86853/is-a-us-government-order-to-a-private-media-company-to-suppress-an-article-story
|
CC BY-SA 4.0
|
<p>I'm trying to better understand <a href="https://twitter.com/elonmusk/status/1598853708443357185" rel="nofollow noreferrer">this</a> comment (and its implications):</p>
<p><a href="https://i.stack.imgur.com/RDEbP.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/RDEbP.png" alt="enter image description here" /></a></p>
<p>In a pure hypothetical (so as to avoid any speculation on whether or not it happened), if the US Government were to be found to have ordered a private media company to suppress a story (or stories), would that kind of behaviour constitute a violation of the first amendment, and if so, what are the possible consequences (e.g. is the a range of penalties)?</p>
| 86,853 |
[
{
"answer_id": 86854,
"body": "<p><a href=\"https://www.mtsu.edu/first-amendment/article/1009/prior-restraint\" rel=\"nofollow noreferrer\">This page</a> lists the highlights of case law regarding prior restraint and the First Amendment. Two pertinent cases are <a href=\"https://supreme.justia.com/cases/federal/us/403/713/\" rel=\"nofollow noreferrer\">New York Times Co. v. United States</a>, where the court held that despite the potential harm of publishing the revealed information, the prior restraint doctrine was more important (the government cannot prohibit speech before it happens). <a href=\"https://supreme.justia.com/cases/federal/us/521/844/#tab-opinion-1960201\" rel=\"nofollow noreferrer\">Reno v. ACLU</a> affirms that even if a publication might cause harm to a class of people, that (limited) harm does not justify universally prohibiting the speech.</p>\n<p>There is no criminal penalty arising from the government censoring speech. A civil lawsuit – <a href=\"https://www.law.cornell.edu/uscode/text/42/1983\" rel=\"nofollow noreferrer\">"section 1983"</a> – is possible against an official who illegally attempts to suppress expression contra the First Amendment. The award might be just a dollar if the person so oppressed cannot prove actual damage. Technically, the sky is the limit, and it just depends on how outrageous the jury finds the government's action. If the government were to order suppression of opposition to its policies, we could easily be in the territory of world-record awards for violation of civil rights.</p>\n",
"score": 3
}
] |
[
"freedom-of-speech",
"first-amendment",
"social-media",
"penalty"
] |
How do you prove a fact at issue in litigation?
| 5 |
https://law.stackexchange.com/questions/86825/how-do-you-prove-a-fact-at-issue-in-litigation
|
CC BY-SA 4.0
|
<p>Many questions on this site ask some variant of the question: "how does one prove something in court?" Paraphrasing a few:</p>
<ul>
<li><a href="https://law.stackexchange.com/q/5778/46948">How do you prove that someone forged your signature</a>?</li>
<li><a href="https://law.stackexchange.com/questions/86479/when-claiming-under-manufacturers-warranty-how-can-plaintiff-prove-never-breac">How do you prove that you didn't misuse a product</a>?</li>
<li><a href="https://law.stackexchange.com/questions/86813/is-there-a-limit-to-how-far-and-deep-a-judge-can-look-into-familys-finances-as">How do you prove money went missing</a>?</li>
<li><a href="https://law.stackexchange.com/questions/7254/proof-of-eula-acceptance">How do you prove somebody accepted an EULA</a>?</li>
<li><a href="https://law.stackexchange.com/q/86109/46948">How do you prove that you owned an object before a certain date</a>?</li>
<li><a href="https://law.stackexchange.com/q/86736/3066">How do you prove ownership of a pseudonym?</a></li>
</ul>
<p>Generally, how do you prove a fact in issue in litigation?</p>
| 86,825 |
[
{
"answer_id": 86826,
"body": "<h3>Special regimes</h3>\n<p>For some kinds of questions there are special presumptions or forms of evidence that are specified by statute. For example, in Canada and the United States, registering a copyright creates presumptive proof that the copyright exists and is owned by the registrant. In Canada, breathalyzer results are conclusive proof of the blood alcohol concentration if certain conditions are met.</p>\n<p>Some of these regimes are not subject to challenge: they are legal facts even if they are not objectively true (e.g. the breathalyser results). Others create presumptions that can be overcome by contrary evidence (e.g. copyright ownership).</p>\n<h3>The default: present relevant evidence, including testimonial evidence</h3>\n<p>But outside of special regimes, <strong>you prove a fact by introducing evidence</strong>. The default is that <strong>all relevant evidence that bears on a material fact is admissible</strong>. Evidence is relevant when, if is were to be accepted, it would make the fact in issue more or less likely to be true. Evidence comes in many forms: testimony of the parties or witnesses, documentary evidence, physical evidence, expert opinion evidence.</p>\n<p>If you are wondering, "How do I prove X?" Ask yourself, why do you believe X? Or, how do you know X? Or, how has the event X left its mark on the world? Whatever has led you to believe X probably is the evidence that you would want to introduce to the court to help prove X. Perhaps you saw X: you can tell the court you saw X. Perhaps you took a photo of X: you can present that photo in court. Perhaps you have a receipt for X: you can show that receipt in court. Perhaps X is a proposition about your own actions: you can tell the court about those.</p>\n<h3>Obtaining the evidence</h3>\n<p>Evidence can be obtained from the other party during the discovery process, or from third-parties using subpoenas, subject to objections relating to relevance or privilege.</p>\n<h3>Not all (potentially) relevant evidence is admissible</h3>\n<p>However, some evidence will be inadmissible despite it being potentially relevant. I will only present a few categories, some very general and some more specific:</p>\n<ul>\n<li>hearsay (unless it falls within an exception to the hearsay exclusion),</li>\n<li>privileged material (unless it is a case-by-case privilege or a discretionary privilege and the person seeking to admit the evidence demonstrates to the judge that it should be admitted),</li>\n<li>sexual history evidence of a sexual assault complainant when it will be used to support an inference that the complainant is more likely to have consented to the sexual activity that forms the subject-matter of the charge or is less worthy of belief (this is because it has been recognized as <em>not</em> relevant for this purpose),</li>\n<li>material that was obtained in contravention of the <em>Charter</em> and where the court has decided that the remedy for the <em>Charter</em> violation is exclusion of the evidence (in the United States, there is stricter, exclusionary rule),</li>\n<li>there are many more.</li>\n</ul>\n<p>There are also some meta-rules about the evidence that may be used to impugn a witness's credibility, themselves at trial to provide evidence, but for now I am leaving those out of this fairly summary answer.</p>\n<h3>Weighing the evidence</h3>\n<p>The trier of fact (the judge or a jury) then is to weigh all the admissible evidence, including by weighing the witness and party testimony according to its <a href=\"https://law.stackexchange.com/q/85118/46948\">credibility and reliability</a> after testing through cross-examination, to come to a conclusion on the ultimate question(s) at issue.</p>\n",
"score": 7
}
] |
[
"evidence",
"common-law",
"rules-of-evidence"
] |
Sales Tax on Software as a Service
| 0 |
https://law.stackexchange.com/questions/81044/sales-tax-on-software-as-a-service
|
CC BY-SA 4.0
|
<p>My site provides Software-as-a-Service (SaaS) for a monthly subscription.</p>
<p><a href="https://stripe.com/tax" rel="nofollow noreferrer">Stripe</a> collects all payments. Stripe will also calculate and collect sales tax where applicable.</p>
<p>The LLC is registered in Wyoming, and also registered as a foreign entity in California where the office is physically located.</p>
<p>The site may have customers in any given US state.</p>
<p>What is my responsibility in regard to collecting sales tax? Do I need to apply for a sales tax license/certificate in every US state, or can I rely on Stripe in this instance?</p>
| 81,044 |
[
{
"answer_id": 81046,
"body": "<p>This is determined by the law of the individual state. The general rule is that a state can collect sales tax on sales in that state, if they have passed a law so requiring, see <a href=\"https://www.supremecourt.gov/opinions/17pdf/17-494_j4el.pdf\" rel=\"nofollow noreferrer\">South Dakota v. Wayfair</a>. A state may require the buyer to pay the sales tax in an out-of-state transaction, or it may put the collection and payment burden on the seller. Whether or not services are taxable is also determined by state law, see <a href=\"https://www.avalara.com/us/en/learn/whitepapers/service-taxability-by-state.html\" rel=\"nofollow noreferrer\">this article</a> for some of the patterns across states. But, let's say that you have taxable sales in some state, where you bear the burden of paying – then you are responsible. The payment-collectors may take care of that for you as part of their service, but maybe they don't, so you would need to carefully read the contract to see what they do, and what liability they disclaim in case they screw up.</p>\n",
"score": 2
}
] |
[
"united-states",
"tax-law"
] |
How are non-monetary assets valued in the divorce?
| 1 |
https://law.stackexchange.com/questions/86847/how-are-non-monetary-assets-valued-in-the-divorce
|
CC BY-SA 4.0
|
<p>In case of divorce, let's say spouse A purchased an expensive item for $X, when fair value for it at purchase would be $Y, assessed resell value at time of divorce is $Z, and depreciated accounting value at time of divorce $X2 or $Y2 depending on whether you start depreciating from purchase price or fair value..</p>
<p>When deciding asset division, which valuation methodology would a judge use?</p>
<p>Jurisdiction is US, and if state matters, NJ.</p>
| 86,847 |
[
{
"answer_id": 86849,
"body": "<p>$Z subject to the following qualifications.</p>\n<p>The parties hire appraisers, disclose their expert reports prior to trial (possibly taking their depositions as well) and the judge decides who is most convincing as a question of fact. Book value can be offered as evidence but is low quality evidence. The non-expert testimony of the parties can also usually be considered.</p>\n<p>As of the time of the divorce is correct, but what exactly that means varies and varies from state to state. Some jurisdictions value assets for divorce purposes at fair market value as of the date of the property division hearing, others do so as of the date of the filing of the divorce petition. I haven't done the research to determine which rule (or perhaps some other rule) applies in New Jersey, but the answer to this question could be determined without too much work.</p>\n<p>Book value and purchase price may be relevant to determining fair market value at the time of divorce, however, to the extent that it helps to quantify the likely tax liability associated with an asset if it is sold at fair market value immediately upon the divorce which influences the fair market value to the spouse receiving it.</p>\n<p>There is a split of authority over the extent to which it is proper for divorce courts to consider tax implications of assets in a property division otherwise based upon the fair market value of the assets.</p>\n",
"score": 1
}
] |
[
"divorce",
"accounting"
] |
In what cases is a U.S. Federal Executive Official named in a lawsuit in their official capacity as a defendant and when is the US itself named?
| 6 |
https://law.stackexchange.com/questions/86824/in-what-cases-is-a-u-s-federal-executive-official-named-in-a-lawsuit-in-their-o
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CC BY-SA 4.0
|
<p>I was curious under what situations the United States is named as the defendant in a lawsuit as opposed to when a U.S. Federal Executive Official (or agency) is named (in their official capacity) as the defendant?</p>
<p>Further, in cases the U.S. government is the plaintiff what determines whether the named plaintiff is the United States, Executive Official, or agency in the lawsuit?</p>
<p>Take for example NFIB v. OSHA, Seila Law LLC v. Consumer Financial Protection Bureau, Collins v. Yellen, or the recent Biden v. Nebraska cases. In these specific examples is there any particular reason why was OSHA named as opposed to the U.S. or the agency official, the CFPB was named instead of the Director, or Biden as opposed to the U.S.</p>
<p>Is it determined by statute and/or the enforcing official? Or generally what determines these features? Thank you.</p>
| 86,824 |
[
{
"answer_id": 86827,
"body": "<p>There are two main main circumstances in which individual officials are named.</p>\n<p>One is where the relief sought is non-monetary and the official has the ability to provide the relief, such as a habeas corpus action, which names the warden of the facility having custody of the individual bringing the action, or an action to has an official interpret a statute in a particular way by someone regulated by the statute. Usually, it is an action for an injunction, declaratory relief, or a writ compelling an official to do or refrain from doing something.</p>\n<p>The other is a <a href=\"https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Agents\" rel=\"nofollow noreferrer\"><em>Bivens</em> action</a> seeking to hold a government official responsible for misconduct in money damages, akin to a <a href=\"https://www.law.cornell.edu/uscode/text/42/1983\" rel=\"nofollow noreferrer\">Section 1983</a> lawsuit against a state or local government official, although this is arguably not an official capacity lawsuit.</p>\n<p>Until the federal rules of civil and criminal and appellate procedure were amended in the late 20th century, interlocutory appeals from a judge's decisions (i.e. from orders entered before the case was completed) were structured as lawsuits brought by the appealing party against the judge in his official capacity seeking a writ under the <a href=\"https://www.law.cornell.edu/uscode/text/28/1651\" rel=\"nofollow noreferrer\">All Writs Act</a>, ordering him to change his order. But, this procedural nuance has been reformed in the federal courts and many state courts which instead now provide for these requests for relief to be structured as appeals of an order just like a final order, but under a different court rule authorizing certain interlocutory appeals.</p>\n<p>Cases brought in the U.S. Court of Claims seeking money damages from the United States where sovereign immunity has been waived or does not exist are brought against the United States.</p>\n<p>Claims in U.S. District Court seeking a refund of tax money paid are brought against the United States.</p>\n<p>Cases seeking to adjudicate title to property in which the United States government may have an ownership interest are brought against the United States.</p>\n<p>Counterclaims in cases brought by the United States against a person are brought against the United States.</p>\n<p>Cases against a specific independent government agency (e.g. AMTRAK a.k.a. the National Railroad Passenger Authority, the Tennessee Valley Authority, the U.S. Postal Service, or the CFPB) are brought against the agency, either if the government agency in fiscally independent of the U.S. government as a whole so money damages come from the agency alone, or where there would be an official capacity suit if the person who could afford relief was a single governmental official in charge but for the relief requested only the multi-member board running the entire independent agency can make the decision, or in a counterclaim to an action brought by the agency against someone.</p>\n<p>It is better practice not to sue an agency or office of the United States which is not an independent agency, for example, the U.S. Justice Department, when the United States should have been the defendant. But, often this defect in naming a defendant is overlooked when someone sues, for example, the Justice Department for money damages in the U.S. Court of Claims for failure to pay a court reporting invoice, or sues the IRS in District Court seeking a tax refund, if it doesn't lead to any confusion.</p>\n<p>Agencies of the United States proper without separate corporate existence may not sue each other (e.g. the Justice Department may not sue the Labor Department), although this has been attempted more than once in some high profile cases by federal government attorneys who aren't very sharp when it comes to procedural issues, to the consternation of the judges involved.</p>\n<p>I'm not sure that there is any one convenient place where this is written down. Instead, it is spread piecemeal over case law in many different places.</p>\n<p>There are also probably special cases and exceptions that I haven't mentioned, but the cases I've mentioned are the most common and obvious ones. Perhaps one of them explains <em>NFIB v. OSHA</em>, for which I have no good explanation.</p>\n",
"score": 8
}
] |
[
"united-states",
"civil-law",
"civil-procedure",
"us-federal-government",
"federal-courts"
] |
Death Threats on the Internet
| 16 |
https://law.stackexchange.com/questions/86488/death-threats-on-the-internet
|
CC BY-SA 4.0
|
<p>I recently read a bunch of stories about people making shooting/bomb threats on the internet and being arrested for it. These are often written in a matter-of-fact way.</p>
<p>But I know I have also seen people also make death threats in a joking context, and I am just wondering if even these people are putting themselves at a great risk, were the FBI contacted.</p>
<p>For example,</p>
<p>If someone tweets, "Found an olive in my subway sandwich, gonna go [COMMIT CRIME TO SUBWAY]."</p>
<p><a href="https://i.imgur.com/BuM9yFN_d.webp?maxwidth=640&shape=thumb&fidelity=medium" rel="noreferrer">What about something like this which I remember seeing?</a></p>
<p>Or what about death threats to individuals? I know people, especially women, talk about getting death/rape threats online. Would the police actually do anything about these cases, if it's a person being threatened and not a school or other building?</p>
| 86,488 |
[
{
"answer_id": 86490,
"body": "<p>I don't think there is any way to determine the magnitude of the risk. It is certainly a federal crime – <a href=\"https://www.law.cornell.edu/uscode/text/18/875\" rel=\"noreferrer\">18 USC 875(c)</a>. The FBI doesn't publicly disavow the possibility of an investigation in cases that you might think are hyperbolic speech. There is the case of <a href=\"https://www.supremecourt.gov/opinions/14pdf/13-983_7l48.pdf\" rel=\"noreferrer\">Elonis v. US</a>, who was investigated and prosecuted for "making threats" – focusing on the statutory language</p>\n<blockquote>\n<p>transmits in interstate or foreign commerce any communication\ncontaining any threat</p>\n</blockquote>\n<p>Defendant argued that <em>threat</em> "conveys the\nnotion of an intent to inflict harm", but the court disagreed with both prosecution and defense w.r.t. a mental state requirement in the statute. The court explores various <em>scienter</em> requirements, and concludes that there is a mens rea component to the crime (this is not a strict liability crime). The basis for the appeal is that defendant wanted an jury instruction read saying that "the government must prove that he intended to communicate a true threat", and what the jury was told was that</p>\n<blockquote>\n<p>A statement is a true threat when a defendant intentionally makes a\nstatement in a context or under such circumstances wherein a\nreasonable person would foresee that the statement would be\ninterpreted by those to whom the maker communicates the statement as a\nserious expression of an intention to inflict bodily injury or take\nthe life of an individual</p>\n</blockquote>\n<p>The court rejected importation of the negligence-law "reasonable person" standard, when the question for criminal law should be "awareness". The standard for conviction is that "wrongdoing must be conscious to be\ncriminal".</p>\n<p>As for investigations, law enforcement can investigate the <em>possibility</em> that a literal threat corresponds to an awareness in the utterer's mind that this is a real threat. When the prosecution makes the case in court, they would have to prove beyond reasonable doubt that in the defendant's mind, he intended to make a true threat. Based on the snippet that you posted, there is reasonable doubt as to there being a true threat.</p>\n",
"score": 17
},
{
"answer_id": 86844,
"body": "<p><a href=\"/questions/tagged/czech-republic\" class=\"post-tag\" title=\"show questions tagged 'czech-republic'\" aria-label=\"show questions tagged 'czech-republic'\" rel=\"tag\" aria-labelledby=\"czech-republic-container\">czech-republic</a></p>\n<p>Those people are putting themselves at the risk that their threats, even implied, will be viewed seriously.</p>\n<p>In October 2022, <a href=\"https://www.facebook.com/PolicieCZ/posts/5975211365862892\" rel=\"nofollow noreferrer\">the police interrogated a person making threats online</a>. On a Facebook event for a public gathering, that person commented "at least I know where to go with a submachine gun thanks".</p>\n<p>The police Facebook page wrote about this:</p>\n<blockquote>\n<p>Yesterday he wrote a hateful comment on a social network. Today, he sat in for questioning at the Department of Extremism and Terrorism of the Prague Police. He faces up to a year in prison for violence against a group of people and individuals.</p>\n</blockquote>\n",
"score": 0
}
] |
[
"internet"
] |
If Kayne West/Ye ran for President, would he be listed on ballots as Kayne West or Ye?
| 1 |
https://law.stackexchange.com/questions/86842/if-kayne-west-ye-ran-for-president-would-he-be-listed-on-ballots-as-kayne-west
|
CC BY-SA 4.0
|
<p>It looks like Kayne West is considering running for President. If he runs in 2024 and is included on ballots, will he be listed as "Ye" or "Kayne West"?</p>
| 86,842 |
[
{
"answer_id": 86843,
"body": "<p>Each state sets its procedure for declaration of candidacy and the ballot. He would declare his candidacy in Washington under <a href=\"https://apps.leg.wa.gov/rcw/default.aspx?cite=29A.24.031\" rel=\"nofollow noreferrer\">this law</a>. He or his proxies would look <a href=\"https://www.sos.wa.gov/elections/candidates/\" rel=\"nofollow noreferrer\">here</a>, eventually reading <a href=\"https://www2.sos.wa.gov/_assets/elections/deccand_english_2021.pdf\" rel=\"nofollow noreferrer\">this guide</a>. You will note that it instructs that you should</p>\n<blockquote>\n<p>Print your name exactly as you wish it to appear on the ballot.\nNicknames are acceptable.</p>\n</blockquote>\n<p><a href=\"https://app.leg.wa.gov/RCW/default.aspx?cite=29A.24.060\" rel=\"nofollow noreferrer\">RCW 29a.24.060</a> clarifies that</p>\n<blockquote>\n<p>For filing purposes, a candidate may use a nickname by which he or she\nis commonly known as his or her first name, but the last name shall be\nthe name under which he or she is registered to vote. No candidate\nmay: (1) Use a nickname that denotes present or past occupation,\nincluding military rank; (2) Use a nickname that denotes the\ncandidate's position on issues or political affiliation; (3) Use a\nnickname designed intentionally to mislead voters.</p>\n</blockquote>\n<p>We have a perennial candidate named "Goodspaceguy", who presumably files with his real name but appears on ballots with just his surreal name.</p>\n<p>In case he decides to go for a swash graphic rather than a sequence of letters, he would probably have to argue with the Sec'y of State and file a lawsuit because of the technical problems associating a picture with a candidacy</p>\n",
"score": 2
}
] |
[
"united-states",
"elections",
"president",
"hypothetical"
] |
What happens to judges that are discredited with respect their legal actions?
| 5 |
https://law.stackexchange.com/questions/86840/what-happens-to-judges-that-are-discredited-with-respect-their-legal-actions
|
CC BY-SA 4.0
|
<p>What happens to judges that are discredited with respect their legal actions? Are there adverse professional consequences?</p>
<p>The subject at hand is a <a href="https://talkingpointsmemo.com/edblog/area-judge-drop-kicked-to-eternal-shame" rel="noreferrer">US District Judge</a>.</p>
<p>I'm not asking about a judge who is caught in some extracurricular activity, e.g. one having an affair outside of marriage but about judges who clearly abandoned logic and precedent, especially in favor of politics.</p>
| 86,840 |
[
{
"answer_id": 86841,
"body": "<p>The judge's decision is reversed or vacated, and then she continues being a judge as though nothing happened.</p>\n<p>There are essentially no consequences available for federal judges, with the exception of impeachment.</p>\n",
"score": 16
}
] |
[
"united-states",
"judge"
] |
Can one's personal electronic accounts be forced to be made accessible in a civil case like divorce?
| 6 |
https://law.stackexchange.com/questions/86831/can-ones-personal-electronic-accounts-be-forced-to-be-made-accessible-in-a-civi
|
CC BY-SA 4.0
|
<p>If there's a criminal case, the police can get a warrant to access someone's electronic communications without the suspect's consent.</p>
<p>What about a civil case (if it makes a difference, let's say divorce as the question arose from thinking about that topic).</p>
<p>If person A sues person B, and their lawyer says "there's evidence that B did something bad, in B's email" (in case of divorce, probably adultery evidence), and person B's layer says "they made it up", can A's lawyer - or the judge - demand and enforce access to B's email, social media or other electronic communications?</p>
<p>Jurisdiction is US, if a state matters let's say NJ</p>
| 86,831 |
[
{
"answer_id": 86838,
"body": "<p>Yes. There is both a <em>duty</em> to disclose and permit inspection of certain records (e.g. those that adversely affect either party's case or support another party's case) and a <em>right</em> for the court to demand access to other specific records.</p>\n<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> the applicable rules are found in <a href=\"https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31\" rel=\"noreferrer\">Part 31 of the Civil Procedure Rules</a>. For example:</p>\n<h3>Standard disclosure</h3>\n<blockquote>\n<p>31.6 Standard disclosure requires a party to disclose only– (a) the documents on which he relies; and (b) the documents which – (i)\nadversely affect his own case; (ii) adversely affect another party’s\ncase; or (iii) support another party’s case; and (c) the documents\nwhich he is required to disclose by a relevant practice direction.</p>\n</blockquote>\n<h3>Specific disclosure</h3>\n<blockquote>\n<p>(1) The court may make an order for specific disclosure or specific\ninspection.</p>\n<p>(2) An order for specific disclosure is an order that a party must do\none or more of the following things – (a) disclose documents or\nclasses of documents specified in the order; (b) carry out a search to\nthe extent stated in the order; (c) disclose any documents located as\na result of that search.</p>\n</blockquote>\n<h3>Party's control</h3>\n<blockquote>\n<p>31.8 (1) A party’s duty to disclose documents is limited to documents which are or have been in his control.</p>\n<p>(2) For this purpose a party has or has had a document in his control\nif – (a) it is or was in his physical possession; (b) he has or has\nhad a right to possession of it; or (c) he has or has had a right to\ninspect or take copies of it.</p>\n</blockquote>\n<h3>Right of inspection</h3>\n<blockquote>\n<p>31.3 (1) A party to whom a document has been disclosed has a right to inspect that document except where – (a) the document is no longer in\nthe control of the party who disclosed it; (b) the party disclosing\nthe document has a right or a duty to withhold inspection of it, or\n(c) paragraph (2) applies.</p>\n<p>(2) Where a party considers that it would be disproportionate to the\nissues in the case to permit inspection of documents within a category\nor class of document disclosed under rule 31.6(b) – (a) he is not\nrequired to permit inspection of documents within that category or\nclass; but (b) he must state in his disclosure statement that\ninspection of those documents will not be permitted on the grounds\nthat to do so would be disproportionate.</p>\n</blockquote>\n<h3>Inspection and copying</h3>\n<blockquote>\n<p>31.15 Where a party has a right to inspect a document– (a) that party must give the party who disclosed the document written notice of his\nwish to inspect it; (b) the party who disclosed the document must\npermit inspection not more than 7 days after the date on which he\nreceived the notice; and (c) that party may request a copy of the\ndocument and, if he also undertakes to pay reasonable copying costs,\nthe party who disclosed the document must supply him with a copy not\nmore than 7 days after the date on which he received the request.</p>\n</blockquote>\n<p>And, in case there's any doubt that this applies to electronic records:</p>\n<h3>Meaning of document</h3>\n<blockquote>\n<p>31.4 In this Part – ‘document’ means anything in which information of any description is recorded;</p>\n</blockquote>\n",
"score": 8
},
{
"answer_id": 86833,
"body": "<blockquote>\n<p>If person A sues person B, and their lawyer says "there's evidence\nthat B did something bad, in B's email" (in case of divorce, probably\nadultery evidence), and person B's layer says "they made it up", can\nA's lawyer - or the judge - demand and enforce access to B's email,\nsocial media or other electronic communications?</p>\n</blockquote>\n<p>Yes. If the electronic asset is in the control of person B, person A (or their lawyer acting on their behalf) has a legal right to demand that it be turned over (subject to certain limitations like attorney-client privilege).</p>\n<p>If Person B does not comply they can be penalized and forced to pay monetary sanctions in the lawsuit.</p>\n<p>Person A (or their lawyer) can also subpoena the electronic information directly from the third-party providing the online service in most cases, although it is usually cheaper and faster to just demand it from the other party in the lawsuit.</p>\n<p>This is routinely done in divorces where there are stakes (either related to child custody, or to marital fault, or to assets and alimony) that are significant. It is not routinely done in no fault divorces of couples with no children who are allocating their impoverishment between them and had a short marriage.</p>\n",
"score": 7
}
] |
[
"civil-law",
"evidence",
"divorce",
"warrant"
] |
Means of contract termination (Switzerland)
| 2 |
https://law.stackexchange.com/questions/86816/means-of-contract-termination-switzerland
|
CC BY-SA 4.0
|
<p>The Swiss company Yallo (telecommunication) does not accept written contract terminations (see <a href="https://support.yallo.ch/hc/en-gb/articles/360002401997-Why-do-I-have-to-cancel-by-phone-or-chat-" rel="nofollow noreferrer">here</a>).
Is this legal according to Swiss contract law?</p>
<p>Since I'm a layman I could only find <a href="https://www.fedlex.admin.ch/eli/cc/27/317_321_377/en#a404" rel="nofollow noreferrer">this article</a> which states that both parties have the right to terminate a contract at any time.
However, it does not specify the means by which the termination notice may be/must be transmitted.</p>
| 86,816 |
[
{
"answer_id": 86837,
"body": "<blockquote>\n<p>Is this legal according to Swiss contract law?</p>\n</blockquote>\n<p>Yes. The lawfulness of terminating a contract <a href=\"https://www.fedlex.admin.ch/eli/cc/27/317_321_377/de#art_1\" rel=\"nofollow noreferrer\">expressly or implicitly</a> (see "<em>ausdrückliche oder stillschweigende</em>"), with no further requirements, implies that outlining the specifics to that effect are within the parties' freedom of contract.</p>\n<p><em>A priori</em>, the premise that "<em>Yallo (telecommunication) does not accept written contract terminations</em>" seems inaccurate. The site indicates that chat is a valid method for cancellation. Chats are in writing.</p>\n<p>That being said, the matter --at least at the time of this writing-- sounds in misleading practices insofar as the chat functionality is unavailable. Clicking on the page for <a href=\"https://support.yallo.ch/hc/de/articles/360001085818-Abo-pausieren-oder-k%C3%BCndigen\" rel=\"nofollow noreferrer\">termination of services</a> issues the message that "<em>because of CyberMonday the hotline is overstrained</em>". Similarly, clicking there on "Chat" leads to <a href=\"https://support.yallo.ch/hc/de/sections/360000244757\" rel=\"nofollow noreferrer\">another page</a>, so the customer ends up dealing with circular references rather than a chat. As such, the company is in violation of the <a href=\"https://fedlex.data.admin.ch/filestore/fedlex.data.admin.ch/eli/cc/1988/223_223_223/20210101/de/pdf-a/fedlex-data-admin-ch-eli-cc-1988-223_223_223-20210101-de-pdf-a.pdf\" rel=\"nofollow noreferrer\">Bundesgesetz gegen den unlauteren Wettbewerb</a>.</p>\n",
"score": 1
}
] |
[
"contract-law",
"is-x-legal",
"switzerland"
] |
Why is "standard of living" a consideration in divorce asset division?
| 3 |
https://law.stackexchange.com/questions/86818/why-is-standard-of-living-a-consideration-in-divorce-asset-division
|
CC BY-SA 4.0
|
<p>Why is "standard of living" a consideration in divorce asset division for adults at all, if children aren't involved?</p>
<p>In my layman's mind:</p>
<ol>
<li><p>Nobody is entitled to a "standard of living". Just because you lucked out to marry a high-net-worth or high-earning individual, it should not "entitle" you to live the good life in perpetuity after you stopped being married.</p>
<p>This is <em>separate</em> from the idea that a spouse may have contributed to said high-earning status by supporting their career, which is a far valid - but a wholly separate - reason in divorce court. For example, I assume a judge can apply "standard of living" idea even if the wealthy spouse can show that the wealth/income didn't change upwardly during the marriage; and that the spouse didn't contribute economically at all, due to paying for hired help to do house chores, and no children resulting etc...</p>
</li>
<li><p>It seems like a moral hazard, in that it encourages lower income earners to trick higher income earners into marrying them under false pretenses, just to divorce them after a couple of years for a big payout in raised standard of living, or to simply not be a good spouse since they won't suffer in the divorce.</p>
</li>
</ol>
<p>Ideally, I'm looking for an authoritative answer to "why", for example a reason given by a judge establishing precedent, or a politician proposing the law that passed which establishes the idea). However, a solid legal analysis would also be good.</p>
<p><strong>UPDATE</strong>: Just to clarify - the question isn't asking why there is spousal support/maintenance in general. It's asking very specifically, why "established standard of living" is the criterion used to decide the amount. In other words, if a spouse is used to a billionaire lifestyle, why is the support aimed at perpetuating that same expensive lifestyle, <strong>as opposed to</strong> being a modest livable amount (say, mode or median or average wage).</p>
| 86,818 |
[
{
"answer_id": 86822,
"body": "<p><a href=\"https://mavrideslaw.com/history-alimony-massachusetts/\" rel=\"noreferrer\">A brief explanation</a> follows. The Code of Hammurabi articulates the first form of alimony:</p>\n<blockquote>\n<ol start=\"137\">\n<li>If a man wish to separate from a woman who has borne him children, or from his wife who has borne him children: then he shall\ngive that wife her dowry, and a part of the usufruct of field, garden,\nand property, so that she can rear her children. When she has brought\nup her children, a portion of all that is given to the children, equal\nas that of one son, shall be given to her. She may then marry the man\nof her heart</li>\n</ol>\n</blockquote>\n<p>In the Middle Ages, English ecclesiastical law mandated that a husband still has an obligation to support his wife even when they are separated (recall that divorce was not possible). This carried over to the US. As discussed in <a href=\"https://lawecommons.luc.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1631&context=luclj\" rel=\"noreferrer\">this article</a>, there was a view (articulated in Bradwell v. Illinois by Justice Bradley that "Man is, or should be,\nwoman's protector and defender .... The paramount destiny and\nmission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator".\nThe basic rationale at the time was that the wife had a right to support as a consequence of the marriage, and would continue to exercise that right were it not for the conduct of the husband (by law, someone was at fault, and if it was the husband, he would have to compensate his wife).</p>\n<p>When no-fault divorce became a possibility in the late 60's, concepts of alimony were re-worked, so that alimony was no (usually) longer a permanent property right, and in its place there developed a desideratum of "maintenance" allowing the spouse with lesser economic power to maintain a diminishing property right. See <a href=\"https://leg.wa.gov/CodeReviser/documents/sessionlaw/1973ex1c157.pdf?cite=1973%201st%20ex.s.%20c%20157%20%C2%A7%209\" rel=\"noreferrer\">this 1973 version</a> of Washington's replacement-for-alimony law, which includes "The standard of living established during the marriage" as <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=26.09.090\" rel=\"noreferrer\">the law now</a> does.</p>\n<p>Because this is established by state law in the US, and state legislatures aren't infamous about keeping close track of legislative debates, I don't think there are any surviving records of the rationale of the author of these bills. In fact, this law was drafted a few years earlier by The Uniform Law Commission – there may be some record of their discussion.\n[This article][5], written after the law was passed, takes note of the history of contractual concepts being applied to marriage (e.g. the territorial legislature enacted a measure that "marriage is declared to be a civil contract"), from which perspective one expects there to be compensation for breach of contract.</p>\n",
"score": 7
},
{
"answer_id": 86820,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"canada-container\">canada</a></p>\n<p>In Canada, this justification has been most developed in the context of spousal support rather than property division, but concerns about economic self-sufficiency, and compensatory motivations for spousal support can apply in the context of property division as well (<em>Hathaway v. Hathaway</em>, <a href=\"https://canlii.ca/t/g88gn#par71\" rel=\"nofollow noreferrer\">2014 BCCA 310</a>). However, needs-based, non-compensatory justifications have tended to be confined to spousal support rather than property division.</p>\n<p>There are two contrasting views of marriage and break-up: a "mutual obligation theory" and an "independent, clean-break model" (<em>Bracklow v. Bracklow</em>, <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1688/index.do\" rel=\"nofollow noreferrer\">[1999] 1 SCR 420</a>). Both of these models find simultaneous expression in federal and provincial statutes. I will focus on the "mutual obligation" theory and the bases for spousal support that flow from that model, since that is what explains the focus on standard of living that you ask about.</p>\n<p>You are correct that "the presumption of mutual support that existed during the marriage no longer applies" when a marriage breaks down (<em>Bracklow</em> at para. 21).</p>\n<p>Canada's <em>Divorce Act</em> legislates that spousal-support orders should (s. 15(6)):</p>\n<blockquote>\n<p>(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;</p>\n<p>(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;</p>\n<p>(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and</p>\n<p>(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.</p>\n</blockquote>\n<p>And in doing so, courts <em>must</em> consider the "means, needs, and other circumstances of each spouse" (s. 15.2(4)).</p>\n<p>Parliament's choice to include a focus on needs, promotion of self-sufficiency, relief of economic hardship as a factor separate from the mere economic disadvantages of the marriage or its breakdown all led the Supreme Court to conclude that "spouses may have an obligation to meet or contribute to the needs of their former partners where they have the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation."</p>\n<p><strong>Standard of living can be a proxy for unequally shared economic disadvantage or even need</strong> (<em>Moge v. Moge</em>, <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/946/index.do\" rel=\"nofollow noreferrer\">[1992] 3 SCR 813</a>):</p>\n<blockquote>\n<p>Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement. Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role assumed by one party. <strong>As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.</strong></p>\n</blockquote>\n<p>But that is just one factor, to be balanced among the other objectives. It is not "<em>the</em> criteria used to decide the amount." Spousal support is not "<em>aimed</em> at perpetuating" any particular lifestyle. The four legislated objectives of spousal support are listed above.</p>\n<p>A good survey of how standard of living has been used and justified can be found in the <a href=\"https://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/ug_a1-gu_a1/PDF/ug_a1-gu_a1.pdf\" rel=\"nofollow noreferrer\">Spousal Support Advisory Guidelines: The Revised User's Guide</a>.</p>\n",
"score": 3
}
] |
[
"divorce"
] |
What formal legal procedure applies to creating a derivative work from a copyrighted one?
| 3 |
https://law.stackexchange.com/questions/86819/what-formal-legal-procedure-applies-to-creating-a-derivative-work-from-a-copyrig
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CC BY-SA 4.0
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<p>I imagine the following to be a standard template of the legality of creating derivative works:</p>
<p>Imagine someone wishes to adapt the material of a copyrighted book into a video series.</p>
<p>I understand the general idea that it requires permission from the “copyright holder”.</p>
<p>What I do not know is, I presume the publisher also has some stake in the original work, along with the work’s author?</p>
<p>And, how do you formally record that you were given permission and the precise terms of agreement of what you may and may not do in your derivative work? Is there a classic contract format for this?</p>
| 86,819 |
[
{
"answer_id": 86823,
"body": "<p>The copyright holder (or the holder's authorized agent) has the right to authorize the creation and distribution of derivative works. No one else has a stake. The copyright may be shared between multiple people or entities. For example, co-authors usually share the copyright. The publisher may own some or all of the copyright, but that is less common than it used to be.</p>\n<p>One exception. If the holder has granted an <em><strong>exclusive license</strong></em> to someone, that person (or entity) probably has the right to veto derivitive works, depending on the exact terms of the license.</p>\n<p>It is legally possible, but unusual, for one person (or entity) to own only the right to create derivative works. Then that person is thge copyright holder for this purpose.</p>\n<p>If the publisher is not a copyright holder nor an exclusive licensee, then the publisher has no say in what derivative works may be created.</p>\n<p>The only formal legal procedure involved is granting permission, normally in the form of a <em>license</em> by the copyright holder of the holder's agent. This may be written or oral, except that exclusive licenses must be written. There is no particular form, nor need such license be registered with any government authority. In the US such license may be recorded in the Copyright Office, and become public if they are so recorded, but this is optional.</p>\n<p>It is a good idea for any license to clearly spell out what permissions it grants, and under what terms or conditions. But then this is a good idea for any contract. Often, people make vague or unclear licenses, and may have to clear up the matter in court later.</p>\n<p>In the US, if the copyright is shared, any holder may grant a non-exclusive license, although any receipts must be accounted for to the other holders, and shared if their agreement calls for that. In some other countries all holders, or in others a majority of holders, must agree to any license.</p>\n",
"score": 2
},
{
"answer_id": 86835,
"body": "<p>I fully agree with the answer from @DavidSiegel but provide some additional comments.</p>\n<blockquote>\n<p>how do you formally record that you were given permission and the\nprecise terms of agreement of what you may and may not do in your\nderivative work? Is there a classic contract format for this?</p>\n</blockquote>\n<p>While an actual transfer of copyright ownership must be made a matter of public record, a contract granting permission to make a derivative work from a copyrighted work, called a license, does not have to be and typically is not a matter of public record. It is normally memorialized in a written contract signed by the copyright owner and a representative of the licensee.</p>\n<p>While short licensing agreements of a page or two aren't uncommon in some contexts, an agreement to license of video production of a novel, for example, would often be an extremely lengthy and detailed contract running to ten to eighty pages.</p>\n<p>For example, I have a textbook on intellectual property licensing in my office that runs to about eight hundred and thirty pages, about two-thirds of which consists of form licensing agreements or parts of licensing agreements, addressing a variety of different subjects, and the vast majority of which are quite lengthy. But there are no official government safe harbor forms for licensing agreements. Also, the subfield of law dealing with licensing agreements is insular enough that there aren't even many widely available commercial forms for handling that kind of transaction.</p>\n<p>The primary licensing arrangement to produce the videos for the video production itself may not necessarily be all that complicated on its own, but the licensing arrangement will also have lots of sections related to spin off merchandise, rebroadcast and streaming rights, reissues of the original work with images from the new production, confidentiality to maintain message discipline in the marketing of the new video works, dispute resolution procedures, international licensing rights, an option to extend the license to a sequel, etc.</p>\n<p>If you'd like to find some examples, there are probably some in the Security and Exchange Commission's EDGAR database of securities disclosures made by publicly held corporations because publicly held corporations subject to U.S. securities laws (including all companies trade on U.S. stock exchanges) are required to disclose the material provision of their key contracts to the general public via filings with the SEC, and some of them have probably entered into that kind of licensing agreement.</p>\n<p>Still, licensing agreements are not by a long shot the most involved contracts typically involved in doing a video adaptation of a novel. Hollywood contracts regarding the financing of these productions and the way that profits are shared are much more involved.</p>\n<p>As a practical matter, most video adaptations of existing works are financed in part by making the owner of the original work an executive producer of the video version who receives a large part of the total compensation that the copyright owner receives in the licensing deal in the form of shared profits from the production. So, in addition to the licensing agreement itself, the copyright owner will also be a party to the arcane agreement (basically, very complicated limited liability company or limited partnership operating agreements) setting forth the profit and loss sharing waterfall for the production which will have percentages for the director, star actors, copyright owner, producers, soundtrack composer, and some other top tier players in the production. These agreements often use different formulas for different possible outcomes and have different percentages for different sources of potential future revenue for the production and its related spinoffs and future distribution.</p>\n",
"score": 0
}
] |
[
"copyright"
] |
What information must be removed from judicial decisions in France when made public?
| 1 |
https://law.stackexchange.com/questions/11910/what-information-must-be-removed-from-judicial-decisions-in-france-when-made-pub
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CC BY-SA 3.0
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<p>According to (1), anyone in France may ask for a copy of a judicial decision. If one decides to make it available publicly, e.g. on a website, the <a href="https://en.wikipedia.org/wiki/Commission_nationale_de_l%27informatique_et_des_libert%C3%A9s" rel="nofollow">National Commission on Informatics and Liberty (CNIL)</a> demand to be de-identified (2). What information must be removed from judicial decisions in France when made public?</p>
<p>I am looking for an exhaustive list, such as the list defined by the <a href="http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/De-identification/guidance.html" rel="nofollow">Health Insurance Portability and Accountability Act (HIPAA) rules</a> in the United States that list all types of information that must be removed from a patient note before it can be shared publicly:</p>
<pre><code>(i) Names of patients and family members
(ii) Addresses and their components
(iii) Dates (month and day parts, unless the inclusion of the year part identities an individual to be older than 90 years old)
(iv) Explicit mention of ages over 89 years old
(v) Telephone and fax numbers
(vi) Social Security numbers
(vii) Medical record numbers
(viii) Health plan beneficiary numbers
(ix) Account numbers
(x) Certificate or license numbers
(xi) Vehicle identifiers and serial numbers
(xii) Device identifers and serial numbers
(xiii) Electronic mail addresses
(xiv) Web universal resource locators (URLs)
(xv) Internet protocol (IP) addresses
(xvi) Biometric identifiers
(xvii) Full face photographic images
(xviii) Employers
(xix) Any other unique identifying number, characteristic or code
</code></pre>
<hr>
<ul>
<li>(1) <a href="http://www.precisement.org/blog/Se-procurer-la-copie-d-une-decision-de-justice-les-bases-legales-et-un-guide.html" rel="nofollow">http://www.precisement.org/blog/Se-procurer-la-copie-d-une-decision-de-justice-les-bases-legales-et-un-guide.html</a>:
<blockquote>
<p>Les tiers – personnes qui ne sont pas parties à la décision [7] – peuvent donc se faire délivrer copie des décisions qui ont été prononcées publiquement, ou plus exactement que l’on considère comme telles. <br><br>
Gtranslate: The third-parties, i.e. persons who are not parties to the decision, can therefore be given copies of the decisions that have been spoken publicly , or more precisely that we consider as such.</p>
</blockquote></li>
<li>(2) <a href="http://www.droit-technologie.org/actuality-498/la-publication-des-decisions-de-justice-sur-l-internet.html" rel="nofollow">http://www.droit-technologie.org/actuality-498/la-publication-des-decisions-de-justice-sur-l-internet.html</a></li>
</ul>
| 11,910 |
[
{
"answer_id": 86834,
"body": "<p>For what it is worth, France is internationally know for having some of the most bare bones judicial decisions in the world that typically state the bare minimum to loosely suggest a reason for the decision and to convey the ultimate legal conclusion that the court reached.</p>\n<p>A case that would typically be resolved with a judicial opinion of thirty to fifty pages full of factual detail and legal reasoning in a court in Britain or the United States, would frequently be resolved when identical facts and legal issues are presented with a three to five page decision in France.</p>\n<p>So, often only monetary amounts, account numbers, and some proper names (at least of people other than parties to the case) would have to be redacted from a decision, and sometimes not even that.</p>\n",
"score": 1
}
] |
[
"privacy",
"france"
] |
How does "sexual desertion" get determined by the court?
| -1 |
https://law.stackexchange.com/questions/86821/how-does-sexual-desertion-get-determined-by-the-court
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CC BY-SA 4.0
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<p>I was reviewing <a href="https://www.danddfamilylaw.com/6-legal-grounds-for-divorce-in-new-jersey/" rel="nofollow noreferrer">a link supplied by a helpful user</a> regarding my earlier question, listing various legal grounds for divorce in New Jersey, and found this interesting tidbit:</p>
<blockquote>
<p><strong>4. Desertion</strong><br />
Desertion is a potential cause of action in the event that your spouse has abandoned you physically, ... , <strong>or sexually, as in refusing to engage in a marital relationship.</strong></p>
</blockquote>
<p>How exactly would the court determine this to be the cause of divorce? 99.99% of the time, this would be purely a "he said she said" situation, for how can someone prove <strong>refusal</strong> to engage? You can prove the opposite if there are children born to both parents, but how can one <em>prove a negative</em>? Or is the statement by the divorce initiator considered sufficient for the judge?</p>
<p>I'm interested in the question in general, but if a specific jurisdiction is needed, let's assume New Jersey, US.</p>
| 86,821 |
[
{
"answer_id": 86830,
"body": "<blockquote>\n<p>How exactly would the court determine this to be the cause of divorce?\n99.99% of the time, this would be purely a "he said she said" situation, for how can someone prove refusal to engage? You can prove\nthe opposite if there are children born to both parents, but how can\none prove a negative? Or is the statement by the divorce initiator\nconsidered sufficient for the judge?</p>\n</blockquote>\n<p>Testimony under oath is evidence. Judges resolve "he said she said" situations every day on a routine basis with witness testimony alone by judging the credibility of each witness before them. See also an <a href=\"https://law.stackexchange.com/questions/86825/how-do-you-prove-a-fact-at-issue-in-litigation\">answer by @Jen</a> about the subject of how things are proved in court in general.</p>\n<p>In the appropriate case, testimony under oath with no other corroborating evidence can even support a murder conviction as proof beyond a reasonable doubt. It can certainly suffice to prove marital fault in a civil lawsuit for a divorce.</p>\n<p>If the judge finds that witness testimony under oath between more than one witness is irreconcilably different, and each witness is equally credible, and that it is impossible to tell which person is telling the truth, then the person seeking relief from the court has failed to meet their burden of proof to obtain relief from the court.</p>\n<p>But, this is rare. Usually, when witnesses are both testifying under oath and disagree about what happened, the judge will find that one witness is more credible than the other.</p>\n<p>And, in truth, while people certainly do lie in open court under oath, and probably are more likely to lie in that situation than when speaking to someone not under oath outside of a courtroom, most of the time, people don't lie and the testimony of all of the witnesses are consistent with each other subject to limitations based upon what they could perceive from their perspective and the limitations of imperfect memories.</p>\n<p>This could come down to demeanor in court, hesitation in answering, "tells", inconsistencies in their testimony, corroboration from other evidence and other witnesses (e.g. what someone said to a friend or wrote in a diary at the time), evidence that a witness has been convicted of a crime of deceit in the past, use of language that suggests coaching about their testimony, or common sense judgments about whose story seems more plausible under the circumstances of the parties in front of the judge.</p>\n",
"score": 4
}
] |
[
"divorce"
] |
What are the general rights people have in developed countries regarding debt repayment?
| 0 |
https://law.stackexchange.com/questions/86817/what-are-the-general-rights-people-have-in-developed-countries-regarding-debt-re
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CC BY-SA 4.0
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<p>If you have some kind of official debt I believe it usually goes to a collection agency.</p>
<p>I was curious if there are general principles or rights on an international level about the extent to which you are obligated to repay debts.</p>
<p>For example: is there a certain amount of debt, a certain time elapsed, or a certain kind of/condition on debt, that gives someone (a person, a collection agency, the government) the ability to force repayment? Like is it ever possible for a bank to be asked to transfer funds regardless of the account holder’s decision? Are there any laws / limits about how high of an interest rate a crediting “entity” can claim your debt is accruing? Is it possible to go to prison for not repaying debt?</p>
| 86,817 |
[
{
"answer_id": 86829,
"body": "<blockquote>\n<p>I was curious if there are general principles or rights on an\ninternational level about the extent to which you are obligated to\nrepay debts.</p>\n</blockquote>\n<p>There is very little law at the international level about the extent to which you are obligated to repay debts. These laws are almost entirely at the national or subnational level.</p>\n<p>Typically, the only intentional law components to debt collection are:</p>\n<p>(1) treaties allowing people who have had courts award them money judgments in lawsuits against debtors for certain kinds of unpaid debts to enforce those money judgments in another country which is a party to the treaty,. on the same basis that a money judgment from its own courts could be enforced,</p>\n<p>(2) treaties requiring courts in the countries that are parties to the treaty to cooperate with each other to help courts in the other countries gather evidence, and</p>\n<p>(3) treaties honoring certain kinds of international arbitration agreements, which are private agreements between people to allow a private decision maker rather than a court to resolve disputes between people who have entered into a contract with each other like a contract to borrow money.</p>\n<p>Usually, international law doesn't address the basics of the law governing debtors and creditors, which is left to national and subnational laws.</p>\n<p>In the U.S., the lion's share of the relevant laws for the rights of debtors and creditors are state laws and not federal laws.</p>\n<blockquote>\n<p>What are the general rights people have in developed countries\nregarding debt repayment? . . .</p>\n</blockquote>\n<p>Almost all developed countries have a great many laws regarding debt repayment, the rights of creditors, and the rights of debtors. They vary quite a bit from country to country, however, and often even in different parts of the same country.</p>\n<p>Most developed countries also have laws, called bankruptcy laws, that allow debts to be forgiven because someone just isn't capable of repaying the debts, in order to give them a fresh start.</p>\n<p>Most developed countries also have laws about what lenders have to prove and what court actions they have to take to collect debts, and about what tactics lenders can use to collect debts other than going to court.</p>\n<blockquote>\n<p>For example: is there a certain amount of debt, a certain time\nelapsed, or a certain kind of/condition on debt, that gives someone (a\nperson, a collection agency, the government) the ability to force\nrepayment?</p>\n</blockquote>\n<p>Normally, when someone doesn't pay their debts when they come due, the lender can file a lawsuit against the person who owes the debt called a debtor to collect that debt. If that happens and a court agrees that a debt hasn't been paid when due, then the court imposes a judgment against the debtor and for the benefit of the lender for a certain amount of money, which gives the lender the ability to force repayment of the debt from the debtor's property and income.</p>\n<p>When there is "collateral" to secure repayment of a debt (like a car for a car loan, or a house for a mortgage used to buy the house), in some cases, the lender can take the collateral without going to court to cause the debt to be repaid. The process is called "repossession" or a "repo" for short. There are laws about when this can be done.</p>\n<p>But, if the collateral is real estate, and the loan is what is called a mortgage or a deed of trust, usually there is a lengthy legal process called a foreclosure that the lender has to go through to get the property from the borrower to help repay their loan that hasn't been paid as agreed.</p>\n<p>If you owe a debt for rent that is not paid when it is due, the person who is renting property to you can take the property back and make you give it up. When the property is real estate, this is called an eviction.</p>\n<blockquote>\n<p>Like is it ever possible for a bank to be asked to transfer funds\nregardless of the account holder’s decision?</p>\n</blockquote>\n<p>When a judgment is entered by a court against someone who owes a debt, this gives the lender the power to require a bank to transfer money from the debtor's bank account to the lender. In common law countries (those with legal systems historically based upon English law), this power granted to the lender is exercised using a document called a writ of garnishment.</p>\n<blockquote>\n<p>Are there any laws / limits about how high of an interest rate a\ncrediting “entity” can claim your debt is accruing?</p>\n</blockquote>\n<p>Most developed countries have limits on how high of an interest rate a crediting entity can claim your debt is accruing. Usually, this is set forth in a contract between the borrower and the lender. Often there is one rate that applies when the loan is being paid as agreed and a second higher default interest rate that applies when payments have been missed on a loan.</p>\n<p>But, there is usually a maximum interest rate, which is set by law, that the loan can't exceed. This maximum interest rate varies based upon the kind of loan it is and the place where the loan was entered into. These laws are called <strong>usury</strong> laws.</p>\n<p>Where I live, in Colorado, the maximum interest rate is 45% of the amount owed per year. For some kinds of "consumer debts" in Colorado, however, the usury limit on maximum interest rates is much lower.</p>\n<p>In Muslim countries, charging interest of any kind of usually prohibited, but you can basically "rent" money for a period of time in a way so that you can't earn rent based upon rent, the way that you can earn interest on interest. In practice, what it means is that the equivalent of "compound interest" which is charging interest on payments that are equivalent to interest, isn't allowed in most Muslim countries.</p>\n<p>Many national or subnational laws also have a "statutory rate of interest" which is what a lender is entitled to if the borrower and lender haven't specifically said in their agreement what the interest rate between them will be.</p>\n<p>In Colorado, where I live, that interest rate is 8% of the amount owed per year for most debts, 9% of the amount amount owed per year for other debts, and a rate that varies from month to month based upon interest rates that are charged by banks and government bondholders for certain other kinds of debts (like unpaid tax debts).</p>\n<blockquote>\n<p>Is it possible to go to prison for not repaying debt?</p>\n</blockquote>\n<p>Until sometime in the 1800s, people were routinely sent to debtor's prisons for not paying their debts. In a closely related part of the law, one of the tools that creditor's used to collect debts by incarcerating people who didn't pay was called "body execution."</p>\n<p>But, almost all developed countries came to see this as a stupid idea that cost the government money and prevented debtors from making the money they needed to repay their debts.</p>\n<p>Today, almost all developed countries have abolished incarceration for not paying a debt in most circumstances.</p>\n<p>But there are exceptions to the general rules. I list the three main exceptions below, although these rules wouldn't be the same in every developed country.</p>\n<p><em>Not Paying Criminal Fines In Some Countries</em></p>\n<p>In many developed countries, for example, in parts of Europe, if you fail to pay a criminal fine you can be incarcerated for not paying the debt.</p>\n<p>This is not allowed in the United States, but is sometimes done anyway to people who don't have adequate legal counsel to protect their rights, especially in the case of African Americans who owe criminal fines in the rural South.</p>\n<p><em>Disobeying Court Orders You Are Able To Obey Related To Debts</em></p>\n<p>In the U.S., while you can't be incarcerated for failing to pay a debt that you are genuinely unable to pay, you can be incarcerated for failing to cooperate with court orders in connection with the process of creditors collecting debts from you. Knowingly disobeying a court order that you are able to obey is called "contempt of court".</p>\n<p>So, for example, if a court orders you to tell your creditors where all of your bank accounts and property are, for example, and you fail to answer, or lie in your responses to the creditor's questions, the court can put you in jail until you comply or can just punish you by putting you in jail for a fixed period of time because of your disobedience.</p>\n<p>In the U.S., the most common situation in which someone is jailed for failing to pay a debt is when someone owes child support or spousal support (also known as alimony) and is self-employed and has an ability to pay that child support or spousal support debt, but instead refused to pay the debt.</p>\n<p>Another common situation in which someone is jailed for failing to pay a debt is when they have hidden their property, or put it in a trust, or in the control of a third-party, and the judge believes that the person who owes the debt could make that property available to pay the debt, but the person who owes the debt refuses to do so.</p>\n<p><em>Making Promises While Intending To Break Them</em></p>\n<p>There is one more exception to the general rule that is pretty important too. If you promise to repay money and then end up not repaying it, this broken promise is usually not a crime - it doesn't count as theft. You can be sued, but you can be prosecuted and convicted of a crime for that.</p>\n<p>But, if you borrow money from someone knowing already when you borrow the money that you have no intention of ever repaying it, this is usually a crime, sometimes called fraud and sometimes called theft, because your so called promise was really a lie when you made it.</p>\n<p>Proving that you never intended to repay the money in the first place is usually difficult, but there are some cases where it isn't that hard.</p>\n<p>For example, I had a case once where the debtor bragged to all his friends just minutes after borrowing a large sum of money (about $200,000 U.S.) about how he didn't intend to ever pay the money back and had just totally cheated the man who he borrowed the money from, and testimony from his friends about what he said at that time was eventually his downfall.</p>\n<blockquote>\n<p>If you have some kind of official debt I believe it usually goes to a\ncollection agency.</p>\n</blockquote>\n<p>This isn't really true. It is also a funny way to think about the matter.</p>\n<p>Collection agencies provide a service similar to lawyers, to help people and entities and governments who are owed money to collect it using legal means from people who owe the money.</p>\n<p>Usually collection agencies don't have any special rights different from those of ordinary people who are owed debts to collect debts for their customers. They are just more skilled and efficient at taking the legal steps to collect debts than the average person.</p>\n<p>Usually, collection agencies are private businesses that charge people for whom they collect debts for their services.</p>\n<p>It isn't clear what you mean by an "official debt" or why you think it would be different.</p>\n<p>Collection agencies collect both debts that courts have officially declared in a money judgment that a debtor owes and debts that no one has brought a lawsuit to collect yet. If the person who owes the debt doesn't pay it, often collection agencies bring a lawsuit to collect the debt for the customers.</p>\n",
"score": 1
}
] |
[
"debt"
] |
Countries with similar sexual offences Laws to Germany?
| 1 |
https://law.stackexchange.com/questions/86808/countries-with-similar-sexual-offences-laws-to-germany
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CC BY-SA 4.0
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<p>I will start by saying that my research into German law is incredibly limited, and I am just following news articles on the topic. I of course apologise if I have fallen for fake news!</p>
<p>My understanding is that prior to 2016, Germany had some outdated rape laws. This meant that no did not mean no, and the victim would have to demonstrate injuries from self defence. I also think that a victim being too drunk to consent was not enough for the police to bring a rape prosecution against someone. Is this correct in terms of date and facts? When did Germany officially implement this law, as I think that just because a law is changed does not mean it is implemented immediately?</p>
<p>A good example to clarify my above question is that in Spain the age of consent was changed from thirteen to sixteen, however it took another few years to be implemented.</p>
<p>Last but not least, I was curious as to whether any other countries still have similar laws to Germany regarding the points I covered earlier, namely: no not meaning no, and being too drunk to consent not being a crime?</p>
| 86,808 |
[
{
"answer_id": 86828,
"body": "<blockquote>\n<p>[…] that prior to 2016, Germany had some outdated […] laws. […]</p>\n</blockquote>\n<p>The changes of November 9, 2016, <a href=\"http://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jumpTo=bgbl116s2460.pdf\" rel=\"noreferrer\">BGBl. I 2460 ff</a>, were brought forward under the impression of the <a href=\"https://en.wikipedia.org/wiki/2015%E2%80%9316_New_Year%27s_Eve_sexual_assaults_in_Germany\" rel=\"noreferrer\">2015 NYE spike in reported sexual assaults</a>.\nParticularly incidents around the Cologne train station/cathedral area were widely received.</p>\n<blockquote>\n<p>[…] outdated rape laws.</p>\n</blockquote>\n<p>No, there was <em>no change</em> in the subsection concerning rape.\nOnly editorial changes were made, now following the “new orthography”, less pompous wording/update to today’s parlance, and change in numbering.</p>\n<blockquote>\n<p>This meant that no did not mean no, […]</p>\n</blockquote>\n<p>If I ask you to “touch me down here” and you say “No” and I take your hand regardless and, without (physical) resistance from your side, place it at the respective location, then it’s sexual assault now, because you said “No”.\nPreviously, it would have required <em>force</em>, e. g. <em>grabbing</em> your hand, to constitute a criminal offense.</p>\n<blockquote>\n<p>[…] the victim would have to demonstrate injuries from self defence. […]</p>\n</blockquote>\n<p>Legally – what the law says – it is not necessary.\nYou will not find a single reference in the law “the victim must demonstrate injuries”.\nHowever, <em>successful</em> persecution will be difficult in a he-said-she-said situation.\nIf the court cannot be convinced, it will decide <em>in dubio pro reo</em> (i. e. acquit the accused).</p>\n<p>This is a <em>general issue</em> of criminal prosecution, though, but people get particularly agitated if it is concerning sexual self-determination.\nIt is notable that a change in law does not bring improvements in that regard.</p>\n<blockquote>\n<p>[…] a victim being too drunk to consent was not enough […]</p>\n</blockquote>\n<p>Previously, there was “in a defenseless situation”.\n<em>Courts</em> (not the police) interpreted this mostly restrictive.\nBeing drunk does not automatically mean being defenseless (and arguably some people even like drunken sex/having sex while on drugs).</p>\n<p>Now there is an additional alternative “taking advantage of a person’s physical or psychological condition causing a <em>significant impairment</em> in forming or expressing his will, <em>unless</em> he gives his express consent”.</p>\n<p>This is a shift toward a subjective assessment of criminality.\nA sexually very experienced person is well-versed in his capability of giving consent to sexual interactions, whereas a sexually-inexperienced person exhibits “significant impairment” at an earlier level.\nIt is yet to see how courts deal with that.</p>\n<blockquote>\n<p>[…] When did Germany officially implement this law, […]</p>\n</blockquote>\n<p>The changes took effect the next day, on November 10, 2016.\nTechnically, there’s no “implementation period”.\nHowever, on November 10, 2016, <em>no lawyer</em> could have <em>definitely</em> answered, for instance, the question “What is a legal definition of ‘against apparent wish’?”</p>\n",
"score": 5
}
] |
[
"criminal-law",
"germany",
"civil-legal-system",
"rape",
"sexual-offences"
] |
Can one be liable to pay an agreed sum if they break a promise?
| 7 |
https://law.stackexchange.com/questions/86803/can-one-be-liable-to-pay-an-agreed-sum-if-they-break-a-promise
|
CC BY-SA 4.0
|
<p>Bob wants Alice to share a computer file with him. This could be a photo, a video/audio recording etc. — anything that only Alice has and that Bob craves a copy of. The copyright ownership shouldn't necessarily be a factor (other than it is <em>not</em> Bob's).</p>
<p>Alice says: okay, I'll share the file with you, but you must not share it with anyone and not upload anywhere. If you break this promise, you'll pay me $1m.</p>
<p>Bob says okay, deal. But later he flaunts the file on the Internet and openly admits breaking the promise.</p>
<p>Can Alice get a court order that Bob pays her $1m?</p>
<p>Note that Alice may not necessarily have suffered any quantifiable damages — the file could be just her discreet but private photo which she just didn't want to publish. Alternatively, she could have: the file could be her forthcoming music album, a movie script, a book to be published etc.</p>
| 86,803 |
[
{
"answer_id": 86804,
"body": "<p>Assuming there is a contract (and it is not clear that there is), this is a purported liquidated damages clause. Alice is trying to dictate what Bob will owe her if he breaches his promise to not share the file.</p>\n<p>However, there are limits on what can be stipulated in a liquidated damages clause.</p>\n<p>Super Save Disposal Inc. v. Blazin Auto Ltd., 2011 BCSC 1784:</p>\n<blockquote>\n<p>The enforceability of a liquidated damages provision in an agreement engages two competing objectives: freedom of contract versus the right of the courts to intervene in a given case to relieve against an oppressive or unconscionable result flowing from enforcement of the liquidated damages term. It is well settled that the enforceability of such a term turns on whether it is a genuine pre-estimate of the expected loss that a party will sustain in the event of a breach of contract or a penalty clause so oppressive or unreasonable that equitable intervention is justified to prevent an injustice.</p>\n</blockquote>\n<blockquote>\n<p>Judicial interference with a liquidated damages provision will be justified if enforcement of the term results in payment of a sum which is extravagant and unconscionable in comparison with the greatest loss that could conceivably be proved to have followed from the breach</p>\n</blockquote>\n<p>Oppressive liquidated damages clauses work against a person's freedom to breach and the possibility of efficient breach.</p>\n<p>Perhaps if the file were a trade secret like the Coke recipe, the $1,000,000 might be a genuine pre-breach estimate, but without much more information about the nature of the file, I predict a court would find the $1,000,000 to be extravagant and unconscionable in comparison to the greatest loss that could conceivably be proved to have followed from the breach.</p>\n<hr />\n<p>What follows is less researched.</p>\n<p><em>If</em> it is not a contract then I think it is at best a licence, which would make Bob's agreement to pay $1,000,000 a free-standing unenforceable promise.</p>\n<p>I also agree with <a href=\"https://law.stackexchange.com/a/86805/46948\">Matthew's position</a> on the possibility (and limitations of) a claim in promissory estoppel, especially in jurisdictions following <a href=\"https://en.m.wikipedia.org/wiki/Waltons_Stores_(Interstate)_Ltd_v_Maher\" rel=\"noreferrer\"><em>Waltons Stores</em></a> or similar reasoning.</p>\n",
"score": 15
},
{
"answer_id": 86809,
"body": "<p><a href=\"/questions/tagged/france\" class=\"post-tag\" title=\"show questions tagged 'france'\" aria-label=\"show questions tagged 'france'\" rel=\"tag\" aria-labelledby=\"france-container\">france</a></p>\n<h2>It depends, but probably not; it seems "clearly too high"</h2>\n<p>Let us assume that Bob and Alice entered a contract along the lines of:</p>\n<ol>\n<li>Bob will not [do the thing]</li>\n<li>If Bob [does the thing], Bob will pay Alice $1 million</li>\n</ol>\n<p><em>Note that unlike in a <a href=\"/questions/tagged/common-law\" class=\"post-tag\" title=\"show questions tagged 'common-law'\" aria-label=\"show questions tagged 'common-law'\" rel=\"tag\" aria-labelledby=\"common-law-container\">common-law</a> jurisdiction, there is no need for reciprocal consideration, so that contract (which is all negatives for Bob) is legal.</em></p>\n<p>Let us ignore possible liability towards third parties due to copyright or other concerns. If Bob does the thing, then refuses to pay, Alice will rely on <a href=\"https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000032010131\" rel=\"noreferrer\">Code civil, 1231-5</a>:</p>\n<blockquote>\n<p>Lorsque le contrat stipule que celui qui manquera de l'exécuter paiera une certaine somme à titre de dommages et intérêts, il ne peut être alloué à l'autre partie une somme plus forte ni moindre.</p>\n<p>Néanmoins, le juge peut, même d'office, modérer ou augmenter la pénalité ainsi convenue si elle est manifestement excessive ou dérisoire.</p>\n<p>Lorsque l'engagement a été exécuté en partie, la pénalité convenue peut être diminuée par le juge, même d'office, à proportion de l'intérêt que l'exécution partielle a procuré au créancier, sans préjudice de l'application de l'alinéa précédent.</p>\n<p>Toute stipulation contraire aux deux alinéas précédents est réputée non écrite.</p>\n</blockquote>\n<blockquote>\n<p>When the contract says that whoever fails to execute one of his or her commitments will pay a certain sum of money to the other party as damages, the other party cannot be granted a higher or lower sum.</p>\n<p>However, the judge can, even on his or her own, decrease or increase the penalty so agreed if it is clearly too high or low.</p>\n<p>When the commitment has been partially accomplished, the agreed penalty can be decreased by the judge, even on his or her own, in proportion of the interest that the other party received from partial execution, without prejudice of the previous paragraph.</p>\n<p>Any clause contradicting any of the previous two paragraphs is void.</p>\n</blockquote>\n<p>I highly recommend <a href=\"https://www.lettredesreseaux.com/P-1732-451-A1-le-nouvel-article-1231-5-du-code-civil-relatif-a-la-clause-penale.html\" rel=\"noreferrer\">this commentary</a> (if you can read French) for more information about the jurisprudence surrounding that article and the <em>clause pénale</em> concept in general. A rough summary:</p>\n<ul>\n<li>§1 establishes the general principle that the freely-contracting parties can put on price on a breach that can differ from the prejudice caused by a breach (whether actual, <em>ex post</em>, or reasonably-foreseeable, <em>ex ante</em>). The point of such penalty clauses (generally disallowed in common-law jurisdictions) is to incentivize performance of the contract.</li>\n<li>§2 does limit that principle for exceedingly unreasonable estimates. While the judge can modify the amount, it must be based on other motives than the ones rejected above; for instance the amount must be much higher/lower than typical for similar contracts;</li>\n<li>if the penalty is found to be too high or too low, it must not be changed beyond the actual (<em>ex post</em>) prejudice (assuming such prejudice can be reasonably quantified by the judge). That is, if the prejudice is $100 and the clause amount was "clearly too high" at $1000, the amount can be reduced to $500, $200 or $100, but not $50. Conversely, if the prejudice is $100 and the clause "clearly too low" at $10, the judge can bring it to $20, $50 or $100, but not $1000.</li>\n<li>additional damages can be claimed. For instance, suppose Bob promises to knit a sweater and give it to Alice next time she visits him, under penalty of $X. The first time Alice comes, Bob says he does not have the sweater, and tells her to come back later. Rinse and repeat: Alice repeatedly comes to Bob’s house asking for the sweater without getting it, before she eventually sues. At court, Alice can claim the $X amount, <em>plus</em> her travel costs to Bob’s house beyond the first visit (if she did those travels only in an attempt to get her sweater).</li>\n</ul>\n<p>I will add that although §2 allows the judge to change the penalty amount even if no party asked for it, I would expect this to be a very rare occurrence.</p>\n<p>Bob will likely argue that a $1 million penalty is "clearly too high" <em>(manifestement excessive)</em>. If Bob shared a picture of Alice’s cat, I expect he would prevail, and the judge would operate a large reduction in the penalty. Other fact patterns may warrant otherwise, for instance</p>\n<ul>\n<li>if Bob is a millionaire and he shares an intimate picture of actress Alice, $1m could be a somewhat-reasonable amount and therefore would likely be sustained by the judge</li>\n<li>if Bob had undertaken to not set fire to Alice’s home under a penalty of $1, Alice (as unwise as she was to accept the contract in the first place) could successfully argue that $1 is <em>manifestement dérisoire</em> and she should recover more.</li>\n</ul>\n",
"score": 9
},
{
"answer_id": 86805,
"body": "<p>In addition to the liquidated damages already mentioned, Alice could rely on the doctrine of promissory estoppel to enforce Bob's promise. This requires establishing the following facts:</p>\n<ol>\n<li>Was there an intent to create legal relations between the parties?</li>\n<li>Did the defendant (Bob) make a clear and unambiguous promise?</li>\n<li>Did the plaintiff (Alice) act in reliance on the defendant's promise?</li>\n<li>Was the plaintiff's reliance reasonable and foreseeable?</li>\n<li>Did the plaintiff suffer an injury due to reliance on the defendant's promise?</li>\n</ol>\n<p>These requirements were developed in <em>Central London Property Trust v High Trees House</em> [1947] KB 130 High Court, <em>Ajayi V. Briscoe</em> (1964) 1 WLR 1326, <em>Alan Co. Ltd V El Nasr & Import Co.</em> (1972) 2 QB 18, and <em>Evenden V. Guildford City AFC</em> (1975) QB 917</p>\n<p>Addressing each requirement in turn:</p>\n<ol>\n<li><p>There does not appear to be enough evidence to suggest there was any intention to create legal relations between Bob and Alice. A failure to establish this is fatal to Alice's claim, but I will go on to answer the other elements anyway.</p>\n</li>\n<li><p>Bob made a clear and unambiguous promise not to share the file with anyone or upload it anywhere.</p>\n</li>\n<li><p>Alice acted in reliance of Bob's promise, by then sharing the file with him. She would not have shared the file if he had not made the promise.</p>\n</li>\n<li><p>Alice's reliance on the promise was reasonable and foreseeable by the nature of the promise made to her.</p>\n</li>\n<li><p>The nature of the injury Alice has suffered will depend on what, exactly, the file is. This will also affect the nature of the remedy given by the court and/or the amount of damages awarded to Alice.</p>\n</li>\n</ol>\n<p>The general principle is that promissory estoppel will be used to enact the minimum amount of justice required to remedy the situation. So, it is unlikely she would get $1 million in damages unless she can prove that she really has suffered damage to that amount. She might instead get a worldwide permanent mandatory injunction allowing her to get hosting providers to take the file down, as well as some smaller amount of damages from Bob directly. This is because even though she wants damages, the court is entitled to substitute an appropriate remedy in equity that does justice to her situation.</p>\n<p>However, since there is insufficient evidence that there was any intent to create legal relations between Bob and Alice, her claim for promissory estoppel would likely fail.</p>\n",
"score": 5
}
] |
[
"liability",
"confidentiality",
"any-jurisdiction"
] |
If I fall into a vegetative state, can I donate my living body to science?
| 1 |
https://law.stackexchange.com/questions/86811/if-i-fall-into-a-vegetative-state-can-i-donate-my-living-body-to-science
|
CC BY-SA 4.0
|
<p>Full bodies can be donated posthumously, and living organs can be donated, but if I fall into a state where I am virtually useless as a human, kept alive by life support (or whatever the legal definition of "vegetative state" is), can I donate myself in this state through a living will? Or do I have to die first?</p>
<p>I believe full reign to do something to a technically living but comatose body would have a lot of use, potentially in neuroscience or similar fields, so the question interests me.</p>
| 86,811 |
[
{
"answer_id": 86812,
"body": "<p>Obviously, you can't personally consent while you are in a vegetative state.</p>\n<p>But, it is conceivable that consent to this prior to death by a suitable informed consent form or a medical power of attorney agent or other legally authorized medical decision-maker (e.g. a court appointed guardian) could permit this to be done.</p>\n<p>I've never actually seen this happen and there is no standard form for this kind of consent.</p>\n<p>I'm not aware of researchers interested in doing so.</p>\n<p>But there is no legal principle that obviously invalidates such an agreement. Indeed, often in a teaching hospital you sign a general consent form upon admission to the hospital that allows the hospital and the medical professionals working there to use your care for educational and research purposes in ways that aren't contrary to your best interests. What you are contemplating would take more informed consent than that, but this practice proves the concept.</p>\n<p>Also, in addition to your consent, the people doing the research would need approval from an institutional human subjects research committee before carrying out this arrangement.</p>\n",
"score": 1
}
] |
[
"united-states",
"medical",
"wills"
] |
Collecting judgement against a company
| 2 |
https://law.stackexchange.com/questions/86789/collecting-judgement-against-a-company
|
CC BY-SA 4.0
|
<p>So in a situation where a person wins small claims court against a company, what are the steps in collecting judgement if the company doesn't want to pay? I've researched placing a lien or garnishing wages on the individual but can you do that against a company?</p>
<p>Jurisdiction: NV, US</p>
| 86,789 |
[
{
"answer_id": 86810,
"body": "<p>First, you should simply <strong>write them a letter demanding payment of the judgment</strong>. You can keep sending them demand letters updating the interest on the judgment regularly (e.g. every month) and call them demanding to be paid on a regular basis so that your claim is annoying to them.</p>\n<p>Second, you can <strong>use legal tools at your disposal</strong>. In the approximate order of the likelihood that you would resort to them and the ease of using them, these are:</p>\n<ol>\n<li><p>You can record a judgment lien against any real property it owns, if any. This must be cleared when the property is sold and hurts the credit record of the company. You can also foreclosed on the lien although doing so involve quite a bit of legal technicalities and process and may require you to assume or pay off mortgages and liens higher in priority than your own. Basically, this involves getting the right kind of proof that the judgment was entered (in Colorado one gets a "transcript of judgment" from the clerk, but Nevada process may vary) and recording it in the real property records of the county where the real estate owned by the company is located.</p>\n</li>\n<li><p>You can garnish its bank accounts, if you know where the company banks, if not, you can learn this in the next step. This involves filling out a garnishment form (which may need a clerk of court's stamp) and then mailing it to the judgment-debtor and the bank (local practice might require a process server to deliver it).</p>\n</li>\n<li><p>You can issue interrogatories or take depositions of corporate officials to have them disclose what assets and sources of income it has (pursuant to Rule of Civil Procedure 69). This is somewhat of an involved process with legal rules and forms involved but if you don't know where the company has assets, you have few other choices but to do this and it gets their attention as well. You could also hire a private investigator to try to locate the company's assets.</p>\n</li>\n<li><p>You can obtain a writ of execution and attachment to have the sheriff seize tangible personal property belonging to the company. This involves multiple court form filings, fees, and coordination with the civil division of the sheriff's department that will often require you to post a liability bond, to hire people to carry away the property to a secure storage unit when it is seized for later auction, and for you to pay to publish notice of a sheriff's sale with a newspaper authorized to give legal notices. It may also require you to hire a locksmith and/or some to document the assets seized and to value them in real time during the seizure.</p>\n</li>\n<li><p>You can garnish accounts payable to the company from individuals and businesses who owe it money. The paperwork is similar to a bank account garnishment but it often doesn't go as smoothly and has to be more actively litigated since non-bank persons aren't as familiar with the process.</p>\n</li>\n<li><p>If you learn through Step 3 that the company has transferred assets to its owners or others while insolvent without receiving reasonably equivalent value in exchange, you can sue the recipient of the assets under the fraudulent transfers act in a separate lawsuit. This is almost impossible to do successfully without a lawyer.</p>\n</li>\n<li><p>In an extreme case (probably not justified by a small claims court judgment) you have force the judicial dissolution of the company and liquidation of its assets for failure to pay its debts in a separation lawsuit. This is almost impossible to do successfully without a lawyer.</p>\n</li>\n<li><p>In combination with other creditors of the company who are also unpaid, you can force the company into an involuntary bankruptcy. This is almost impossible to do successfully without a lawyer.</p>\n</li>\n<li><p>Wait for the company to go bankrupt (if this is likely) and file a claim in the bankruptcy. This involves filling out a one or two page form and filing it with the bankruptcy court.</p>\n</li>\n</ol>\n<p>In my experience in Colorado which has similar rules on this subject, companies with real estate usually pay upon demand (especially if they have a mortgage since an unsatisfied judgment is a condition of default on most business mortgages). But, if the company owns no real estate, commencing collections actions combination of 2, 3 and 4 is usually sufficient to get the company to simply pay the judgment without having to take the processes involved to completion.</p>\n<p>This said, most of the options above involve fairly complicated paper work and procedural requirements. The average person who doesn't have a graduate degree or a business background would really struggle to do it right and there are sometimes significant fees involved.</p>\n<p>Third, you can use other methods that don't involve the legal process that involve <strong>notifying people of their non-payment of a judgment</strong>.</p>\n<p>One trick is to learn who it has major contracts like leases and large loans with, and advise them that there is an outstanding judgment against the company, which is often a condition of default under those contract that must be cured quickly.</p>\n<p>Similarly, complaining about the company's non-payment of the judgment on customer review sites and social media can work sometimes.</p>\n<p>Fourth, you can <strong>hire someone to do it for you</strong>. Often lawyers and collection agencies are more willing to collect a true money judgment from a court than they are to take on a claim that hasn't yet been reduced to judgment and will have to be litigated.</p>\n<p>So, because it is so technically difficult to enforce your legal rights without a lawyer, even if you obtained the small claims court judgment without a lawyer, it may be worth the money to hire a lawyer to collect the judgment obtained, or to turn the judgment over to a collection agency (which also hurts the company's credit record) and to pay what that costs.</p>\n<p>On a contingent fee basis, a 33%-50% contingent fee would be customary. Hourly legal fees can run from $150 to $450 per hour in Nevada for this kind of work and it would take at least several hours of work.</p>\n<p>If the judgment is too small, it may not be cost effective to hire anyone to collect it on an hourly basis, and even collection agencies may decline to take on the case on a contingent fee basis because the work required would cost them more than the fee they would obtain if they won.</p>\n<p>In the case of a small claims court judgment that isn't very large it is often not cost effective or worth your time and effort to pursue it actively.</p>\n",
"score": 1
}
] |
[
"united-states",
"small-claims-court",
"nevada"
] |
How can I find out if sample files in a copyrighted software are free to use?
| 1 |
https://law.stackexchange.com/questions/85567/how-can-i-find-out-if-sample-files-in-a-copyrighted-software-are-free-to-use
|
CC BY-SA 4.0
|
<p>I am using the demo of a program called <a href="https://www.biologic.net/support-software/ec-lab-software/" rel="nofollow noreferrer">EC-Lab</a> (electro-chemistry software platform). They have a Demo version available on the web and inside the program they include sample files. They is no license agreement accepted during the installation process.</p>
<p>I have tried to find any licensing description once installed, but there is no info inside the program or in the <strong>Program Files(x86)</strong> folder.</p>
<p>They do not reply and probably won't really know whether those are free to use or not. What would be a way to find this out? Would normally just test files be considered non-proprietary?</p>
| 85,567 |
[
{
"answer_id": 85591,
"body": "<p>One cannot use the works of others unless one of the following applies:</p>\n<ul>\n<li><strong>The copyright holder has given permission</strong>, usually in the form of a license, often explicit, but sometimes implied.</li>\n<li><strong>The work is not protected by copyright</strong>. This can happen in several ways, but the most common is that the work is old enough that copyright has expired. In the US, works older than 1927 are currently out of copyright. So are some others, the rules are a bit complex. In many countries, if the author or creator died more than 70 years ago, the work is out of copyright. In some countries this is a different number, between 50 and 100 years. This is not likely to apply to a file distributed with current software.</li>\n<li><strong>If an exception to copyright applies</strong>. In the US this would most likely be <em><strong>fair use</strong></em>. In the UK it would probably be <em><strong>fair dealing</strong></em>. In other countries there are a variety of exceptions that might apply, including <em><strong>personal use</strong></em> in some.</li>\n</ul>\n<p>AS a comment by Jen points out "use" here refers only to those rights protected by copyright, such as making and distributing copied, making nd distributing derivative works, and the like. (Displaying and publicly performing seem unlikely to apply.)</p>\n<p>Now lets consider the specific situation, and which if any of the reasons for lawful use might apply.</p>\n<ul>\n<li><strong>License or other permission</strong>. There is no explicit license. Since the program is distributed to be run, there is an implicit license to make the sort of use of the file needed to run the program. If the documentation describes how to employ the file as part of running the program, there is almost surely an implied license to employ it in that way. There is not, however, permission to make copies unless that is needed to run the program. There is surely not permission to make derivative works of the file or distribute copies to others, even if you do not charge anything.</li>\n<li><strong>Expired copyright</strong> This pretty clearly will not apply.</li>\n<li><strong>Fair use</strong> This might apply, or might not. There isn't enough info in the question to tell, not even to make a good guess. If any use would be non commercial, that helps fair use a bit. If the use would be for a different purpose than the one the developers used it for, that helps fair use a lot. If the use of the file harmed the market for the program, or served as a substitute, that lean against fair use. without knowing what the file is, what it does, and how it might be used, one really cannot weven guess.</li>\n</ul>\n",
"score": 3
},
{
"answer_id": 85590,
"body": "<h2>No</h2>\n<p>The default for copyright is you do not have any permission. The absence of a license suggests that you can use their demo software (since this is implicit in making it available) but nothing else.</p>\n",
"score": 1
},
{
"answer_id": 85606,
"body": "<p>To answer just the title of your question: You either need to find that your usage of the file is an exception to copyright law that is allowed, or you need to find someone who has the legal right to give you a license, for example the copyright holder or a representative, and convince them to give you a license that allows your use and that you could use as evidence in court. If you can't find anyone willing to give you a license, tough.</p>\n",
"score": 1
}
] |
[
"intellectual-property",
"software"
] |
In France, is it legal to practice target shooting on your own land?
| 3 |
https://law.stackexchange.com/questions/86739/in-france-is-it-legal-to-practice-target-shooting-on-your-own-land
|
CC BY-SA 4.0
|
<p>I can find a lot of information about hunting on your own land, and my land would qualify for that. However, I don't have a hunting license and I'm in fact more interested in target practice / sport shooting. I do of course have a sport shooting license and legally registered weapons.</p>
<p>My land does have a good hill as backdrop and it's large enough and over 150 meter away from the nearest dwelling. In the country of France, is it legal to practice target shooting on my own land, or only at an official gun range?</p>
| 86,739 |
[
{
"answer_id": 86806,
"body": "<h2>Not with that license</h2>\n<p>Your post makes clear that you have a sports license, not a hunting license. In that case, it was delivered in accordance with <a href=\"https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000025503132/LEGISCTA000029655171\" rel=\"nofollow noreferrer\">R312-40 of the <em>code de la sécurité intérieure</em></a>:</p>\n<blockquote>\n<p>Peuvent être autorisés pour la pratique du tir sportif à acquérir et à détenir des armes, munitions et leurs éléments (...):</p>\n<p>1° Les associations sportives agréées (...)</p>\n<p>2° Les personnes majeures (...)</p>\n<p><strong>Sauf dans le cadre des compétitions internationales, ces armes ne peuvent être utilisées que dans les stands de tir des associations mentionnées au 1° du présent article.</strong></p>\n</blockquote>\n<blockquote>\n<p>A license to acquire and own arms, ammunitions and related elements (...), can be granted to:</p>\n<p>1° Accredited sports associations (...)</p>\n<p>2° People older than 18 (...)</p>\n<p><strong>Except within the framework of international competitions, those weapons can only be used in shooting ranges of associations mentioned at 1°.</strong></p>\n</blockquote>\n",
"score": 3
}
] |
[
"is-x-legal",
"france",
"firearms"
] |
Access to information from supermarkets
| 3 |
https://law.stackexchange.com/questions/86794/access-to-information-from-supermarkets
|
CC BY-SA 4.0
|
<p>In a criminal investigation, do the police have access to shopping information / do the police do research that far?</p>
<p>In case of any police officer requesting data from recently bought products (for example walmart), can they get security camera footage of the time those items were bought?</p>
| 86,794 |
[
{
"answer_id": 86796,
"body": "<p>In addition to compelling a store to produce evidence such as video footage, via a search warrant as described by bdb484, police can request access to information in the possession of such information. The store may voluntarily comply with the request, or not. Especially in the case of online transactions, there may be a privacy guarantee that information about a customer's transaction will not be revealed to a third party unless required by law (ergo, a warrant), but security camera recordings are not protected by such guarantees.</p>\n",
"score": 7
},
{
"answer_id": 86795,
"body": "<p>If there is probable cause to believe that the data or footage contains evidence of a crime, the police can get a warrant to obtain it. <em>See</em>, <em>e.g.</em>,\n<a href=\"https://casetext.com/case/united-states-v-mohammad-23\" rel=\"noreferrer\"><em>United States v. Mohammad</em>, 471 F. Supp. 3d 809, 811 (N.D. Ohio 2020)</a> (calculating defendant's sentence based on evidence from grocery store cash-register receipts); <em>United States v. Saleh</em>, No. 14-cr-00148-CMA-1, 2017 U.S. Dist. LEXIS 215807, at *42 (D. Colo. Apr. 19, 2017) (rejecting challenge to conviction based on evidence obtained through warrant authorizing search of grocery store's surveillance system);</p>\n",
"score": 5
}
] |
[
"united-states",
"criminal-law",
"investigation"
] |
Are dropservice suppliers liable for any damages to customers?
| -2 |
https://law.stackexchange.com/questions/86758/are-dropservice-suppliers-liable-for-any-damages-to-customers
|
CC BY-SA 4.0
|
<p>I wanted to ask a question about the dropservice business model.</p>
<p>We have 3 figures, the customer, the supplier and us. Dropservice is a business model in which we can have services delivered to our customers by outside suppliers (such as freelancers)</p>
<p>If the supplier causes harm to the customer (such as in the case of unsavory advertising campaigns) who is responsible?</p>
<p>Since he was the one who provided the service, he should be responsible for anything he causes to the customer.
How can we wash our hands of all the mistakes the provider can do to our customers?</p>
| 86,758 |
[
{
"answer_id": 86759,
"body": "<h2>it depends</h2>\n<p>There's Alice, who wants some service. There's Bob, who offers it. And there's C-Corp, which offers to connect people that seek service with those that offer it.</p>\n<p>The liability of C-Corp depends on many factors. Some that came up:</p>\n<ul>\n<li>Is Bob's service needing a license of sorts? C-Corp might be liable if they were warned that Bob lacks such or C-Corp represented that Bob had the license but did not.</li>\n<li>Is C-Corp getting a fee for <em>referral/payment services only</em> or do they <em>manage or contract with</em> Bob in some way or another? If C-Corp manages Bob or has a work contract with them, they might be akin to a Builder that hires various contractors and who is liable to the buyer of the building and to whom the contractors owe liability for their work. If they <strong>just</strong> provide the connecting and payment service, that's not as easy, but they still might be liable to some degree.</li>\n<li>What does the contract say? If they only provide a listing service like LinkedIn and specifically disclaim and point out that all listings are the contractor's making, they might be totally immune and have no liability.</li>\n</ul>\n",
"score": 3
}
] |
[
"business",
"liability",
"damages"
] |
Unauthorized access to parents bank account
| -1 |
https://law.stackexchange.com/questions/86763/unauthorized-access-to-parents-bank-account
|
CC BY-SA 4.0
|
<p>Early in the morning the bank account password was changed. The investigation pointed to someone without authorization using my parent's phone at 1 am to verify a password change for the bank account which was then accessed. No money was taken or transferred. I assume all the account numbers were copied along with other account information. The local police chief said unauthorized access is not a crime. No money was taken or attempted to be taken so there is not a crime to report; he could note my call. I was surprised that unauthorized access is not a crime.</p>
<p><strong>Is the information correct, that accessing someone's account by changing their password and accessing the account information is not a crime?</strong></p>
| 86,763 |
[
{
"answer_id": 86765,
"body": "<h2>It’s probably a crime</h2>\n<p>But you need to report it to the FBI because it’s a Federal crime.</p>\n<p>If money had been taken it would be the state crime of fraud. However, mere access isn’t fraud.</p>\n<p>It is unauthorized access to a protected computer in contravention of the <a href=\"https://en.m.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act\" rel=\"nofollow noreferrer\">Computer Fraud and Abuse Act</a>.</p>\n",
"score": 2
}
] |
[
"fraud",
"banking",
"computer-misuse-act",
"computer"
] |
Could Scotland Hold an Independence Referrendum Under The Claim of Right?
| 3 |
https://law.stackexchange.com/questions/86694/could-scotland-hold-an-independence-referrendum-under-the-claim-of-right
|
CC BY-SA 4.0
|
<p>The Scottish Claim of Right makes clear that the people of Scotland are Sovereign, not Westminster.</p>
<p>However, under the rest of UK law, Westminster/Parliament is Sovereign.</p>
<p>Given the Supreme Court has ruled that the Scottish Parliament can't hold a referrendum on Scottish Independence without Westminster's permission, could the Scottish Government choose to overrule this (or at least attempt to) by asserting the Claim of Right?</p>
<p>I assume I'm misunderstanding something here, because this isn't a route I've heard anyone suggest and I don't expect something this obvious would have been missed.</p>
<p>So what am I missing here?</p>
| 86,694 |
[
{
"answer_id": 86697,
"body": "<blockquote>\n<p>The Scottish Claim of Right makes clear that the people of Scotland are Sovereign, not Westminster.</p>\n</blockquote>\n<p>Not so much. It establishes principles of parliamentary monarchy... (for example)</p>\n<blockquote>\n<p>That the chargeing of the leidges with lawborrowes at the Kings instance and the imposeing of bonds without the authority of Parliament and the suspending advocats from their Imployment for not Compearing when such bonds were offered were Contrary to Law</p>\n<p>That the putting of Garisones on privat mens houses in tyme of peace without their Consent or the authority of Parliament is Contrary to law</p>\n</blockquote>\n<p>...while inviting William and Mary to accede to the Scottish throne:</p>\n<blockquote>\n<p>The said Estates of the Kingdome of Scotland Doe resolve that William and Mary King and Queen of England France and Ireland Be and be Declared King and Queen of Scotland To hold the Crowne and Royall Dignity of the said Kingdome of Scotland To them the said King and Queen dureing ther lives and the longest liver of them and that the sole and full exercise of the regall power be only in and Exercised by him the said King in the names of the said King and Queen Dureing ther joynt lives And after ther decease The said Croune and Royall Dignity of the said Kingdome to be to the heirs of the body of the said Queen which failing to the Princess Ann of Denmark and the airs of her body which also failing to the aires of the Body of the said William King of England</p>\n<p>And they do Pray the said King and Queen of England to accept the same accordingly</p>\n<p>...</p>\n<p>That for redress of all greivances and for the amending strenthneing and preserveing of the lawes Parliaments ought to be frequently called and allowed to sit and the freedom of speech and debate secured to the members</p>\n</blockquote>\n<p>In other words, it provides that the monarchy is not absolute, and that its power is circumscribed by parliament.</p>\n<p>One thing it certainly does not do is circumscribe the power of the Westminster parliament, which had no power in Scotland before the Acts of Union of 1707. Before then, the Westminster parliament was only the Parliament of England. The Acts of Union provided, in part,</p>\n<blockquote>\n<p>That the United Kingdom of Great Britain be Represented by one and the same Parliament to be stiled the Parliament of Great Britain</p>\n</blockquote>\n<p>With that act, the Parliament of Great Britain assumed the role of the Parliament of Scotland. As a consequence, the Claim of Right Act of 1689 <em>grants power to</em> the Westminster parliament rather than circumscribing its power. To the extent the people are sovereign, this sovereignty is vested in their representatives in Westminster.</p>\n<p>On the other hand, if you're talking about <a href=\"https://en.wikipedia.org/wiki/Claim_of_Right_1989\" rel=\"nofollow noreferrer\">the 1989 claim</a>, that document</p>\n<blockquote>\n<p>has never had or claimed any legal force.</p>\n</blockquote>\n",
"score": 4
},
{
"answer_id": 86797,
"body": "<p>The 1989 Claim of Right cannot be used by the Scottish Government to hold another referendum on independence for the same reasons that the Scottish Government cannot do so under the Scotland Act 1998: they (and by extension, the Scottish Parliament) lack the competence to do so.</p>\n<p>This was decided by the UK Supreme Court in <a href=\"https://www.supremecourt.uk/cases/uksc-2022-0098.html\" rel=\"nofollow noreferrer\"><em>Devolution issues under the Scotland Act 1998, Reference by the Lord Advocate (Rev1)</em> [2022] UKSC 31</a> where the Court held (at 77-82) that a proposed referendum on independence would concern a reserved matter: namely, the Union of Scotland and England. A reserved matter is exclusively within the competence of the United Kingdom Parliament unless it chooses to devolve or delegate some or all of the matter to one of the devolved parliaments.</p>\n<p>In this case, <a href=\"https://www.legislation.gov.uk/ukpga/1998/46/section/29\" rel=\"nofollow noreferrer\">Section 29 of the Scotland Act 1998</a> states:</p>\n<blockquote>\n<p>(1) An Act of the Scottish Parliament is not law so far as any\nprovision of the Act is outside the legislative competence of the\nParliament.</p>\n<p>(2) A provision is outside that competence so far as any of the\nfollowing paragraphs apply—</p>\n<p>...</p>\n<p>(b) it relates to reserved matters</p>\n</blockquote>\n<p>where a reserved matter is defined in <a href=\"https://www.legislation.gov.uk/ukpga/1998/46/schedule/5\" rel=\"nofollow noreferrer\">Schedule 5, Part 1, Section 1 of the Scotland Act 1998</a> as including, amongst other things:</p>\n<blockquote>\n<p>The following aspects of the constitution are reserved matters, that\nis—</p>\n<p>...</p>\n<p>(b) the Union of the Kingdoms of Scotland and England</p>\n</blockquote>\n<p>In the <em>Devolution (Rev1)</em> case, the Supreme Court held (at 92) that the proposed independence referendum question related to a reserved matter and so was outwith the Scottish Parliament's competence.</p>\n<p>The Supreme Court also considered the principle of self-determination as established in international law, which is relevant to the matter at the heart of the Claim of Right. Namely, that the people of Scotland are sovereign and have the right to determine their own independence and so on.</p>\n<p>The Court held (at 88-89) that self-determination was expected to occur within the existing framework of the state, per the Supreme Court of Canada in <em>Reference re Secession of Quebec</em> [1998] 2 SCR 217 and UN opinion on the matter of Kosovo in Written Proceedings in relation to UN General Assembly Resolution 63/3 (A/RES/63/3) (8 October 2008).</p>\n<blockquote>\n<ol start=\"88\">\n<li>In its judgment the Supreme Court explained (at paras 136-137) 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:</li>\n</ol>\n<p>“In summary, the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination. Such exceptional circumstances are manifestly inapplicable to Quebec under existing conditions.” (at para 138)</p>\n<p>It went on to say that in other circumstances peoples were expected to\nachieve self-determination within the framework of their existing\nstate:</p>\n<p>“A state whose government represents the whole of the people or\npeoples resident within its territory, on a basis of equality and\nwithout discrimination, and respects the principles of\nself-determination in its internal arrangements, is entitled to\nmaintain its territorial integrity under international law and to have\nthat territorial integrity recognized by other states. Quebec does not\nmeet the threshold of a colonial people or an oppressed people, nor\ncan it be suggested that Quebecers have been denied\nmeaningful access to government to pursue their political, economic,\ncultural and social development. In the circumstances, the National\nAssembly, the legislature or the government of Quebec do not enjoy a\nright at international law to effect the secession of Quebec from\nCanada unilaterally.” (at para 154)</p>\n<ol start=\"89\">\n<li>In our view these observations apply with equal force to the position\nof Scotland and the people of Scotland within the United Kingdom. ... The submission went on to state that international law does not, in general, prohibit secession; but the relevant point, in relation to the intervener’s submission based on a right of self-determination under international law, is the absence of recognition of any such right outside the contexts described by the Supreme Court of Canada, none of which applies to Scotland.</li>\n</ol>\n</blockquote>\n<p>On this basis, the Claim of Right 1989 is doomed to fail because any self-determination has to operate within the existing framework of the United Kingdom's political hiercharcy and constitution, and the Supreme Court has made it clear that the Union is a reserved matter, so the United Kingdom Parliament must give explicit permission for any proposed Bill or legal mechanism that affects that.</p>\n",
"score": 0
}
] |
[
"united-kingdom",
"constitutional-law",
"scotland"
] |
Is Nanoblock not in violation of LEGO's patents because their product is incompatible with and not the same size as LEGO's product?
| 12 |
https://law.stackexchange.com/questions/86780/is-nanoblock-not-in-violation-of-legos-patents-because-their-product-is-incompa
|
CC BY-SA 4.0
|
<p><a href="https://en.wikipedia.org/wiki/Nanoblock" rel="noreferrer">Nanoblock</a> is an interlocking brick toy similar to LEGO.</p>
<p>They have an <a href="https://nanoblockus.com/nanoblocks-vs-lego/" rel="noreferrer">article</a> on their website that describes their toy and compares it to LEGO. It makes the following claim:</p>
<blockquote>
<p>You may wonder if there is a patent infringement case against Nanoblocks for making a copycat product similar to LEGO. The answer is no.</p>
<p>To avoid a patent claim, Nanoblocks are not compatible with LEGO. Nanoblocks are about one-quarter of the size of LEGO blocks.</p>
</blockquote>
<p>Is it true that Nanoblock is not in violation of LEGO's patents because their copycat product is incompatible with and is not the same size as LEGO's product?</p>
| 86,780 |
[
{
"answer_id": 86782,
"body": "<p>There are two very different laws in play here. Patent rights and trademarks.</p>\n<p><strong>One cannot violate a patent on Lego bricks, because they have all run out a long time ago.</strong></p>\n<p>The <a href=\"https://en.wikipedia.org/wiki/The_Lego_Group#Trademark_and_patents\" rel=\"noreferrer\">Wikipedia article</a> has a relevant section on this. Therefore it is very legal from a patent point of view to produce compatible bricks (and there are several companies that do).</p>\n<p>More complicated is the trademark aspect. Lego tries to sue everyone that attempts to sell its bricks with the statement "lego compatible" or something similar, and the use of the name "Lego" as a name for the bricks in general is contested (sometimes successfully, sometimes less so), even though that is quite common in colloquial speech.</p>\n<p>The <a href=\"https://www.cbc.ca/news/business/mega-bloks-wins-scoc-ruling-on-lego-trademark-1.555292\" rel=\"noreferrer\">Canadian supreme court ruled</a></p>\n<blockquote>\n<p>"Trademark law should not be used to perpetuate monopoly rights enjoyed under now-expired patents"</p>\n</blockquote>\n<p>Bottom line: You may produce lego-compatible bricks, but you must not name them like that. It's probably best you just don't use the name "Lego" at all.</p>\n",
"score": 27
}
] |
[
"patents"
] |
Child kidnap - Enforce return to country of origin of children visiting the USA
| 1 |
https://law.stackexchange.com/questions/86768/child-kidnap-enforce-return-to-country-of-origin-of-children-visiting-the-usa
|
CC BY-SA 4.0
|
<p><strong>Scenario</strong>: A divorced US citizen (call him "parent A") living abroad plans a trip to the US with their and "parent B"'s child (under 18 yo). Before leaving the country of origin, A shares a trip schedule with B, and B approves them leaving the country of origin. However, parent A does not return to the country of origin, kidnapping the child to permanently live in the US.</p>
<p><strong>Question</strong>: Are there any legal means parent B can take <em>before</em> the trip to ensure the return of the child to the country of origin?
If it matters, assume parent B is not a US citizen.</p>
<p><strong>Note</strong>: I'm aware of the Hague convention. But it only offers a remedy after the fact, and, to my understanding, the procedure requires a huge sum of money and could take more than a year in some cases.
I'm looking for something similar to requesting a warrant <em>in advance</em> that will trigger a law-enforcement or legal action if the child does not leave the US on the end of the submitted trip schedule.</p>
| 86,768 |
[
{
"answer_id": 86774,
"body": "<h3>How I understand your question</h3>\n<p>You have asked about mechanisms to "ensure the return" or something that will "trigger a law-enforcement or legal action if the child does not leave the US on the end of the submitted trip schedule." So I take it as premises of your question that there is a parenting agreement regarding schedule and return, and this trip will happen.</p>\n<p><a href=\"https://law.stackexchange.com/a/86772/46948\">Dale M's answer</a> provides advice about what he recommends to a person in such a situation. However, I recognize that many parenting orders include a term that allows international travel that can't be unreasonably refused by the other parent,<sup>1</sup> or that allow international travel with no consent necessary.<sup>2</sup></p>\n<h3>There is no mechanism</h3>\n<p>There is no mechanism to pre-register a potential violation of a parenting agreement with a foreign state.</p>\n<p>I cannot cite to a source to prove a negative, but I am familiar with the operation of the Hague Convention and non-Hague Convention regimes and none that I have encountered have such a mechanism. I have also spent some time looking to see if I have missed something, and am still convinced there is no such mechanism.</p>\n<hr />\n<p><sup>1. <a href=\"https://canlii.ca/t/j55ct#par27\" rel=\"nofollow noreferrer\">2020 BCPC 16</a>: "He shall not unreasonably withhold his written consent to such a trip. If the parties are unable to reach an agreement, Y.N. has liberty to apply for a court order. If the court, on such application, finds that W.G. has unreasonably withheld his consent to such a trip, he is hereby put on notice that he may be ordered to pay Y.N.’s expenses incurred in bringing the application."</sup></p>\n<p><sup>2. <a href=\"https://canlii.ca/t/hwqlc#par35\" rel=\"nofollow noreferrer\">2018 ABQB 1031</a> ("Each party shall be entitled to travel internationally with the children without the consent of the other party upon providing 30 days notice of such travel along with a full itinerary including flight information, destination, where the parties are staying and contact information."); <a href=\"https://canlii.ca/t/flrch#par31\" rel=\"nofollow noreferrer\">2010 ABPC 410</a> ("I will allow T.C. to travel outside the country without the written consent of the father."); <a href=\"https://canlii.ca/t/jhp7b#par176\" rel=\"nofollow noreferrer\">2021 ONCJ 440</a> ("Either party may travel with the Child outside of Canada during his or her parenting time. The Father requires the consent of the Mother, such consent not to be unreasonably withheld. The Mother may travel internationally with the Child without the consent of the Father, but she must advise him accordingly."); <a href=\"https://canlii.ca/t/j8vjv#par41\" rel=\"nofollow noreferrer\">2020 ABQB 434</a> ("either party may travel during their respective vacation or ordinary parenting time in Canada or internationally to any Hague Convention Country, without the consent of the other party"); <a href=\"https://canlii.ca/t/h5jjz#par205\" rel=\"nofollow noreferrer\">2017 BCSC 1463</a> ("The claimant is at liberty to travel with the Children both in Canada and internationally without the consent of the respondent.")</sup></p>\n",
"score": 4
},
{
"answer_id": 86772,
"body": "<h2>Yes, don’t let them go</h2>\n<p>Most countries will not allow a child subject to a parenting order to leave the country without permission. For some this is triggered automatically by the court order which will raise a flag at immigration, for others it might require notification. Some jurisdictions don’t let a child leave with only one parent unless there is written permission from the other.</p>\n<p>If parent B believes this is a serious risk, don’t let them go.</p>\n",
"score": 2
}
] |
[
"united-states",
"kidnapping",
"custody"
] |
If I made a detailed plan to kill one person, then change my target at the last minute, was the murder premeditated?
| 19 |
https://law.stackexchange.com/questions/86699/if-i-made-a-detailed-plan-to-kill-one-person-then-change-my-target-at-the-last
|
CC BY-SA 4.0
|
<p>Let's say I've spent years setting up the perfect murder to kill person A. Then, when the time comes, I learn some information that makes me realize I'd rather person B died than person A. Thus, at the last minute, I swap out the murder victim, but use the otherwise detailed murder plan to kill B.</p>
<p>I am clearly a murderer, but was the murder premeditated, because I used a premeditated method, or was it not premeditated since I wasn't planning to kill B until the last minute?</p>
<p>I know transferred intent applies if I was trying to kill A and killed B instead, which would make the murder premeditated. But in this scenario I explicitly changed plans to only target B. I'm not sure if the premeditation for killing A transfers when I never actually followed through with an attempt to kill A.</p>
<p>So, what kind of murderer am I?</p>
| 86,699 |
[
{
"answer_id": 86703,
"body": "<p>It's still premeditated murder because you made a decision to kill and then acted on it.</p>\n<p>"Premeditation" doesn't require detailed planning or an extended period of time between the decision and the action; it just requires some amount of time in which you could have changed your mind after thinking that you want to kill a person -- in some cases, even as little as a few seconds between the act that provoked the murder and the murder itself.</p>\n<p>There are many ways of defining the term, but the Supreme Court has accepted instructions that tell jurors to find premeditation if there was a "second thought" about whether to proceed with "a preconceived design to kill." <a href=\"https://supreme.justia.com/cases/federal/us/328/463/\" rel=\"noreferrer\"><em>Fisher v. United States</em>, 328 U.S. 463 (1946)</a>.</p>\n<p>So even if you are literally talking about a minute of time between the decision to kill B and the execution of that plan, the murder is sufficiently premeditated to support a conviction for first-degree murder.</p>\n",
"score": 37
},
{
"answer_id": 86701,
"body": "<p>The fact that you planned to murder someone at all is enough to convict on 1st degree Murder. The level of planning is not bound by time or revising your plans or recycling them. You shouldn't have killed someone in the first place and you shouldn't have planned to kill them and taken all the steps either.</p>\n<p>Suppose that you set up your death trap to kill Alice, and then Bob, who you never intended to harm - or even knew for that matter -, springs the trap before Alice and is killed. The law says if you planned to kill someone and someone dies, your guilty. It doesn't have an exception because "you didn't plan to kill that guy." It doesn't say you have to kill the specific person you planned to kill... you just have to plan to kill someone and kill someone.</p>\n<p>As discussed in the notes, Second degree murder requires no planning but because of how pre-meditation has been defined to a very narrow moment of time, the scenarios for murder with no premeditation are basically "A man comes home to find his wife sleeping with another man, flies into a rage, and kills the other man before calming down." It has to occur that quick. The fact that you switched targets doesn't mean you didn't plan the second target's murder. It just means you made a few drafts to kill someone. In many ways it's worse, because you have no reason to kill any target, you just wanted to kill someone.</p>\n",
"score": 5
}
] |
[
"united-states",
"criminal-law",
"murder"
] |
Proving ownership of a pseudonym
| 3 |
https://law.stackexchange.com/questions/86736/proving-ownership-of-a-pseudonym
|
CC BY-SA 4.0
|
<p>Suppose I have written a literary work (an article, some source code, etc.) and published that work under a pseudonym. Suppose also someone else is infringing upon my copyrights and I want to sue them because they are not responding to more friendly requests to come in compliance with the license.</p>
<p>The question is, in what ways can I prove to the courts that I am in fact the copyright holder (i.e. I have a better than 50/50 chance that the court holds that I am the same person as referred to by the pseudonym mentioned in the copyright line).</p>
<p>In case it matters, I have not bothered to register my copyrights with any copyright office and I am interested in jurisdictions that follow the Berne Convention.</p>
| 86,736 |
[
{
"answer_id": 86749,
"body": "<p>If the suit is to be filed in the US, the first step is to officially <em><strong>register</strong></em> the copyright. No US copyright infringement suit can be brought until the copyright has been registered. The registration process includes a formal declaration as to who the author is (or authors are). (I believe this statement is made under penalty of perjury.) Once the registration issues, the certificate of registration is admissible evidence of the facts stated in it in a us court. Indeed <a href=\"https://www.copyright.gov/title17/92chap4.html#410\" rel=\"nofollow noreferrer\">17 USC 410 (c)</a> provides that:</p>\n<blockquote>\n<p>(c) In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute <em>prima facie</em> evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.</p>\n</blockquote>\n<p>In other countries, the testimony of the plaintiff in a copyright infringement suit is itself evidence that the work was created as stated.</p>\n<p>In either case, it is possible for the defendant to challenge the assertion and claim that s/he is the actual author. Showing when and where the work was first published can usefully corroborate the plaintiff's testimony. Having included a copyright notice in the initial publication may be of value, but if the notice only lists the pen name, it is not of much value. Records of the platform on which a work has been published may help in verifying the identity of the author. So may the testimony of others who saw or read the work, or who were told about it by the author. An author's own copies may be of value, if they carry a timestamp, as computer files generally do. But computer timestamps are not usually secure. Timestamps on email generally are reasonably secure, and could establish that the content existed and had been transmitted on a specified date by a specified person.</p>\n<p>But none of this will matter unless the defendant claims that the plaintiff is lying in claiming authorship. Unless that happens, the plaintiff's testimony will usually settle the matter.</p>\n<p>A person whose work seems to have been infringed would usually be wise to consult a lawyer with experience in copyright suits. Such a lawyer could advise if it is wise to bring suit at all, and if it is, what evidence will probably be needed.</p>\n",
"score": 7
},
{
"answer_id": 86746,
"body": "<p>Let's say I violate your copyright by copying the above question and reposting it on Quora.</p>\n<p>What could you do?</p>\n<p>The first step would be to figure out where the work was published first. In today's digital world, that's usually easy. The timestamps assigned by Stack Exchange and Quora would be proof enough which one is the original and which one is the copy. If the publicly visible timestamps are too imprecise (they only mention the same date, not the time), then the court could use <a href=\"https://www.logikcull.com/guide/third-party-subpoena-response\" rel=\"nofollow noreferrer\">3rd party subpoenas</a> to obligate both <em>Stack Exchange, Inc</em> and <em>Quora, Inc</em> to provide the timestamps as precisely as possible. The court could ask admins from Stack Exchange and Quora to testify that nobody tampered with their systems and retroactively changed the timestamps, but I doubt that any court would insist on that.</p>\n<p>The next step would be to prove that you are indeed the person behind the Law Stack Exchange account #27861. That should also be simple. You could simply show to the court that you know the valid password for that account while I would be unable to do that.</p>\n<p>My counter-strategy could be to claim that I did not steal the work from you, I stole it from someone else (alleging that you did the same). So even though I admit that I did something wrong, you are not the one who can sue me for that. But then the burden of proof to show where I got that question from would be on me. When I can't point to an even earlier publication of above question, then my legal argument would probably not convince the court.</p>\n",
"score": 3
}
] |
[
"copyright"
] |
How to inform prosecutors of potentially relevant information, and is it appropriate
| -1 |
https://law.stackexchange.com/questions/86767/how-to-inform-prosecutors-of-potentially-relevant-information-and-is-it-appropr
|
CC BY-SA 4.0
|
<p>There is a somewhat well known streamer in a very small community, who has been well known in the community for making troubling claims, and generally giving the appearance of being, to some extent, mentally unwell.</p>
<p>This streamer never draws a crowd, and isn't famous as a streamer, but is rather well known in the community for his views and troubling behavior. He has had extreme anger fits on his stream when losing, has several guns and knives that he has shown on screen, and lives with his mother and has abused her constantly on stream.</p>
<p>Recently, something happened and he has been arrested, and is currently in jail awaiting arraignment. Aside from his charges, he seems to be undergoing some sort of mental health evaluation to determine if a 'risk protection order' should be applied. This is in Florida.</p>
<p>Several in the community feel previous clips from his stream should be made available to the prosecutors, showing he has a history of violence, such as cocking his gun and talking about finding and killing someone he had a disagreement with.</p>
<p>Is it appropriate for private citizens to make such information available to the police or prosecutors? If so, is emailing them from a provided contact address sufficient, or would something need to be filed in court?</p>
| 86,767 |
[
{
"answer_id": 86788,
"body": "<p>You aren't a party to the prosecution, so you can't file anything in court. You can call or write to the police or the prosecutor and provide them with whatever you want.</p>\n",
"score": 1
},
{
"answer_id": 86793,
"body": "<p>Florida has a <a href=\"http://myfloridalegal.com/__85256CC5006DFCC3.nsf/0/F8A5694BA199CD8585258611005A87E5?Open&Highlight=0,**tips\" rel=\"nofollow noreferrer\">TIPS line</a> that allows you to provide anonymous information about crimes.</p>\n",
"score": 0
}
] |
[
"evidence",
"florida"
] |
Passing Copyright Rights from Independent Contractor to Me to My Customer?
| 0 |
https://law.stackexchange.com/questions/86760/passing-copyright-rights-from-independent-contractor-to-me-to-my-customer
|
CC BY-SA 4.0
|
<p>I hire a graphics designer as an independent contractor to create a logo for my customer (because neither my customer nor myself have any graphics design skills). The logo copyright is initially owned by the graphics designer because the contract with the graphics designer is NOT a work-for-hire contract. However, as a condition of performing the logo design work for me, the graphics designer signed a copyright rights Assignment Agreement that assigned all of the copyright rights in the logo to me.</p>
<p>I now need to transfer the copyright rights that have been transferred to me by the graphic designer to my customer (it's part of the non-work-for-hire contract he and I signed). I sign an Assignment Agreement transferring all of the copyright rights in the logo to my customer. The graphics designer is prohibited from registering the logo copyright, as am I, by our respective Assignment Agreements. All parties are based in the U.S. and the questions, below, concern U.S. copyright law.</p>
<p>I have the following questions:</p>
<ol>
<li><p>My customer wants to register the logo copyright with the Copyright Office. Does he provide both Assignment Agreements with his copyright registration to prove the "provenance" of his copyright claim?</p>
</li>
<li><p>Can copyright registration NOT be done by either the graphics designer or me to save money and time and have only my customer register the copyright?</p>
</li>
</ol>
| 86,760 |
[
{
"answer_id": 86761,
"body": "<h3>Jurisdiction</h3>\n<p>Your mention of registration of the copyright suggests that this is all in the United States, as many other countries do not have similar registration provisions. But the question does not explicitly say that. If this is a US matter, more precise answers will be possible. If some other country is intended, mentioning which will also allow more precise answers. For the rest of this answer I will largely follow <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> law. (The question now explicitly says it is for US law.)</p>\n<h3>Registration of Copyright under US Law</h3>\n<p>There is certainly no need for the logo designer, the web or software designer, and the client to separately register the copyright. Simplest would probably be for the logo designer to register the copyright, and include the registration fee as an expense in the contract terms. Then the logo designer can file a transfer document with the copyright office, transferring the copyright to the developer. The developer can then file a similar document transferring the copyright to the client.</p>\n<p>Alternatively, the client can make the initial registration, showing the logo designer as the original author of then logo, and including the two assignment agreements as evidence of the client's ultimate ownership of the copyright on the logo.</p>\n<p>The legal effect of the two methods is similar, and the costs should be similar also. As long as the copyright is registered either before the logo is first published, or less than three months after the logo is first published, it will have all the available legal protection that copyright can give.</p>\n<p>The client may well wish to register the logo as a trademark as well as register a copyright on the logo. Trademark protection give protection that is different from copyright protection, and can protect aspects of the mark that copyright will not. Trademark registration is more complex than copyright registration, and significantly more expensive. It requires a proper search for existing similar marks. A copyright registration usually does not require a lawyer, or indeed any assistant. A trademark registration is usually unwise to undertake without a trademark lawyer, and if the registrant is from outside the US, the use of an approved lawyer is mandatory.</p>\n<p>Whether the additional time, trouble and expense of trademark registration is justified is a business decision. But the logo designer can do a first-level search to help ensure that the logo is not overly similar to an existing trademark, thus reducing the chance of a registration failing. The designer might well charge for this service.</p>\n<h3>US Copyright Law Citations</h3>\n<p><a href=\"https://www.copyright.gov/title17/92chap2.html#201\" rel=\"nofollow noreferrer\">17 USC 201 (d)(1)</a> provides that:</p>\n<blockquote>\n<p>d) Transfer of Ownership.—</p>\n<p>(1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.</p>\n</blockquote>\n<p><a href=\"https://www.copyright.gov/title17/92chap2.html#204\" rel=\"nofollow noreferrer\">17 USC 204</a> provides in relevant part that:</p>\n<blockquote>\n<p>(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.</p>\n<p>(b) A certificate of acknowledgment is not required for the validity of a transfer, but is prima facie evidence of the execution of the transfer if—</p>\n<p>(1) in the case of a transfer executed in the United States, the certificate is issued by a person authorized to administer oaths within the United States; ...</p>\n</blockquote>\n<p><a href=\"https://www.copyright.gov/title17/92chap2.html#205\" rel=\"nofollow noreferrer\">17 USC 205</a> provides in relevant part that:</p>\n<blockquote>\n<p>(a) Conditions for Recordation.—Any transfer of copyright ownership or other document pertaining to a copyright may be recorded in the Copyright Office if the document filed for recordation bears the actual signature of the person who executed it, or if it is accompanied by a sworn or official certification that it is a true copy of the original, signed document. A sworn or official certification may be submitted to the Copyright Office electronically, pursuant to regulations established by the Register of Copyrights.</p>\n<p>(b) Certificate of Recordation.—The Register of Copyrights shall, upon receipt of a document as provided by subsection (a) and of the fee provided by section 708, record the document and return it with a certificate of recordation.</p>\n<p>(c) Recordation as Constructive Notice.—Recordation of a document in the Copyright Office gives all persons constructive notice of the facts stated in the recorded document, but only if—</p>\n<p>(1) the document, or material attached to it, specifically identifies the work to which it pertains so that, after the document is indexed by the Register of Copyrights, it would be revealed by a reasonable search under the title or registration number of the work; and</p>\n<ol start=\"2\">\n<li>registration has been made for the work. ...</li>\n</ol>\n</blockquote>\n<p><a href=\"https://www.copyright.gov/title17/92chap4.html#411\" rel=\"nofollow noreferrer\">17 USC 411(a)</a> provides in relevant part that:</p>\n<blockquote>\n<p>(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. ...</p>\n</blockquote>\n",
"score": 1
}
] |
[
"united-states",
"copyright",
"copyright-transfer"
] |
How does a country that doesn't recognize same-sex marriage deal with same-sex couples in situations where the couple make decisions for each other?
| 2 |
https://law.stackexchange.com/questions/86766/how-does-a-country-that-doesnt-recognize-same-sex-marriage-deal-with-same-sex-c
|
CC BY-SA 4.0
|
<p>For example, say Alice and Barbara legally married in some country where same-sex marriage is allowed. They then go to a country where same-sex marriage is not allowed. While there, Alice is run down by a car, rendered unconscious, and hospitalized. Barbara, being the next of kin, would "usually" get to decide what medical procedures Alice should undergo. But they are in a country where same-sex marriage is not recognized. Does Barbara still get to decide what medical procedures Alice undergoes?</p>
<p>I imagine this must have happened before, but I'm unable to find results for this with a Google search (e.g. there doesn't appear to be anything relevant <a href="https://travel.state.gov/content/travel/en/international-travel/before-you-go/travelers-with-special-considerations/lgbtqi.html/" rel="nofollow noreferrer">in this link</a>), hence I'm asking this question.</p>
<p>If this varies between jurisdictions, I'm interested in all of them. If there is enough variation that the question becomes too broad, assume the UAE.</p>
| 86,766 |
[
{
"answer_id": 86771,
"body": "<h2>The authorities ignore Barbara</h2>\n<p>Typically.</p>\n<p>Before the recognition of same sex relationships in <a href=\"/questions/tagged/australia\" class=\"post-tag\" title=\"show questions tagged 'australia'\" aria-label=\"show questions tagged 'australia'\" rel=\"tag\" aria-labelledby=\"australia-container\">australia</a>, but after decriminalisation of homosexuality, people who were in that position were simply ignored. “You say you’re the next of kin? No, you aren’t. F#@k off.”</p>\n<p>Before decriminalisation, you kept your mouth shut because you didn’t want to a) go to jail, or b) get <a href=\"https://www.solidarity.net.au/lgbti/poofter-bashing-sport-police-game/\" rel=\"nofollow noreferrer\">bashed by the cops</a>. The latter remained a risk for many years after decriminalisation. Note that this is still the situation in many countries today.</p>\n",
"score": 5
}
] |
[
"international",
"marriage"
] |
contract law situation
| 0 |
https://law.stackexchange.com/questions/86744/contract-law-situation
|
CC BY-SA 4.0
|
<p>There is a breach of contract in which a person A promised to never drink wine in the following month, while a person B promised to sell his car to the person A for a specific amount.</p>
<p>Person B decided one day after signing the contract not to sell his car to the person A.</p>
<p>What can the person A do?</p>
<p>context: studying contract law</p>
<p>Thank you.</p>
| 86,744 |
[
{
"answer_id": 86745,
"body": "<p>B has repudiated the contract, and is liable for resulting damages to A. The damages would be minimal, depending on whether "one day after signing" means "1 day after signing" or "some day after signing". Without any further information on the circumstances, it would seem that there was only trivial damage done to A, so A would be wisest to ask for a couple of dollars compensation for inconvenience. A stands no realistic chance of getting a court order forcing the sale of the car.</p>\n",
"score": 0
},
{
"answer_id": 86757,
"body": "<p>B has breached the contract and the breach appears to amount to a repudiation of the contract.</p>\n<p>A has the following courses of action available:</p>\n<ol>\n<li>Accept the repudiation and accept the status quo. Basically, do nothing.</li>\n<li>Accept the repudiation and sue for damages.</li>\n<li>Reject the repudiation and seek specific performance of the contract</li>\n<li>Reject the repudiation, seek specific performance, and sue for damages.</li>\n</ol>\n<p>If A does 3 or 4 then they must continue to perform their obligations under the contract. That is, they must continue to abstain from wine and pay what the contract requires when the contract requires it.</p>\n<p>Option 1 is only likely to be acceptable to A if they haven’t already paid money yet to B.</p>\n<p>For Option 2, damages for breach of contract are expectation damages, that is, A is entitled to be placed in the position they would have been in had the B completed the contract without the breach. At a minimum, A would be entitled to a refund of any monies paid to B. Beyond that, A is free to pursue whatever damages they can justify. For example:</p>\n<ul>\n<li>A is a used car dealer and can demonstrate that, on average, they resell the cars they buy at a 20% mark-up: damages would be 20% of the purchase price.</li>\n<li>A can prove that they have a specific buyer lined up who was willing to pay $5,000 more then they were paying B: damages would be $5,000.</li>\n<li>The agreed price is $2,000 less then the average market price for equivalent vehicles: damages would be $2,000.</li>\n</ul>\n<p>Specific performance under options 3 and 4 is rarely granted as there is a preference in the courts for contracts to be economically efficient. It is only ordered where damages would be an insufficient remedy, typically when the good being sold is unique. This most commonly happens in real estate or fine art because those products are unique and one house or painting is not a substitute for another. It could be available if the car was unique or rare: one of <a href=\"https://www.hotcars.com/rarest-cars-in-the-world-price/\" rel=\"nofollow noreferrer\">these</a> for example.</p>\n<p>Damages under Option 4 would be the reasonable costs to A of the delay in the performance of the contract. Rental car fees or taxi fares for example.</p>\n",
"score": 0
}
] |
[
"contract-law"
] |
Is it legal for someone to publish a conversation from the Youtube comments section? What if they were one of the commenters?
| 1 |
https://law.stackexchange.com/questions/86717/is-it-legal-for-someone-to-publish-a-conversation-from-the-youtube-comments-sect
|
CC BY-SA 4.0
|
<p>If there was a situation where a journalist wanted to publish a back and forth conversation between two commenters that occurred in the Youtube comments section of a video by quoting the entire conversation and citing the video and commenters involved, would they legally be allowed to do so since the conversation was held online, where the comments were submitted in a public forum?</p>
<p>Perhaps if the answer to the preceding question was no, would it be considered legal for the journalist to give a direct quote of the entire conversation (provided he or she cites who the other commenter was and what video the commentary is located under) if the journalist was the other commenter personally involved in the conversation? What if the journalist did not ask the other commenter for permission to use their comments (although quoted and cited properly) in the piece? Would it still be legal since it was posted in a public forum?</p>
| 86,717 |
[
{
"answer_id": 86752,
"body": "<p>If publishing the content qualifies as fair-use, then that's the answer.</p>\n<p>If not, then <a href=\"https://www.youtube.com/t/terms\" rel=\"nofollow noreferrer\">Google's terms of service</a> apply:</p>\n<blockquote>\n<p><strong>Rights you Grant</strong></p>\n<p>You retain ownership rights in your Content. However, we do require\nyou to grant certain rights to YouTube and other users of the Service,\nas described below.</p>\n<p><strong>License to YouTube</strong></p>\n<p>By providing Content to the Service, you grant to YouTube a worldwide,\nnon-exclusive, royalty-free, sublicensable and transferable license to\nuse that Content (including to reproduce, distribute, prepare\nderivative works, display and perform it) in connection with the\nService and YouTube’s (and its successors' and Affiliates') business,\nincluding for the purpose of promoting and redistributing part or all\nof the Service.</p>\n<p><strong>License to Other Users</strong></p>\n<p>You also grant each other user of the Service a worldwide,\nnon-exclusive, royalty-free license to access your Content through the\nService, and to use that Content, including to reproduce, distribute,\nprepare derivative works, display, and perform it, only as enabled by\na feature of the Service (such as video playback or embeds). For\nclarity, this license does not grant any rights or permissions for a\nuser to make use of your Content independent of the Service.</p>\n</blockquote>\n",
"score": 2
},
{
"answer_id": 86770,
"body": "<h2>Forum does not matter</h2>\n<p>Whether the material are Youtube comments visible to everyone with internet, or an internal report of a company prepared by one person for the CEO’s eyes only, copyright applies exactly the same way.</p>\n<p>There can be non-copyright issues, but I assume those do not apply here, for instance:</p>\n<ul>\n<li>classified information (e.g. nuclear bomb blueprints - but see <a href=\"https://en.wikipedia.org/wiki/United_States_v._Progressive,_Inc.\" rel=\"nofollow noreferrer\"><em>U.S. v. Progressive</em></a>)</li>\n<li>privacy laws (e.g. photos of a famous actor in his private house)</li>\n</ul>\n<h2>Journalists publish stuff, news at 11</h2>\n<p>In the <a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"united-states-container\">united-states</a>, in <a href=\"/questions/tagged/france\" class=\"post-tag\" title=\"show questions tagged 'france'\" aria-label=\"show questions tagged 'france'\" rel=\"tag\" aria-labelledby=\"france-container\">france</a>, and I assume in every functioning democracy, journalists publish conversations, notes, documents etc. without the consent of whoever produced those documents. The point of investigative journalism is that they publish stuff that other people would rather keep hidden, without getting sued to oblivion for it. (Arguably, countries where this is not possible tend to devolve into non-democracies at a relatively quick rate.)</p>\n<p>Journalists are not protected in themselves; rather, <em>activities</em> typically associated by journalism are. In the US, that is part of the doctrine of "fair use". (Pedantic note: "fair use" is a US-specific term, and its use as a general term for similar copyright exceptions in non-US jurisdictions should be avoided, because the exact scope of the exception varies a lot across jurisdictions.)</p>\n<h2>What’s the line of fair use?</h2>\n<p>In the <a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"united-states-container\">united-states</a>, fair use analysis famously uses <a href=\"https://en.wikipedia.org/wiki/Fair_use#U.S._fair_use_factors\" rel=\"nofollow noreferrer\">a four-point balancing test</a>.</p>\n<p>In the case of journalism activities, #1 (purpose and character of use) will always weigh very heavily in favor of the defendant.</p>\n<p>In most cases, #4 (impact on market value) will be favorable as well. Here, few people can be expected to pay for a book "the full comments under Youtube video #4256231", and not just because they are public.</p>\n<p>Finally, #3 (amount and substantiality) might be more or less unfavorable. Citing the <em>full</em> conversation makes a fair use claim weaker on its face, but one might argue that the full conversation is needed to understand context of the good bits. The conversation might also be as short as a few paragraphs, or fill a full book length.</p>\n<p>The balancing test leaves quite a lot of margin of appreciation to the judge. However, I believe the case presented would almost certainly be fair use. Cases that clearly fail #3 and #4 (for instance, publishing <em>in extenso</em> internal reports of a company) have been judged fair use before.</p>\n",
"score": 0
}
] |
[
"copyright",
"intellectual-property",
"fair-use"
] |
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