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law-stackexchange-questions-answers.json

law-stackexchange-qa-77733

What is the effect of lost and recovered prior art on patent validity?

Normally, the existence of prior art containing matters for which a United States utility patent makes claims to patent rights prevents a patent from being issued for those claims, and if a patent somehow issues anyway, it provides a defense to a defendant in a patent infringement action. But suppose that there exists prior art that is not know to anyone alive at the time that the patent is applied for and issued, but ten years later when the patent holder brings a timely patent infringement lawsuit, the prior art which had been unknown to anyone alive at the time is rediscovered. Does that invalidate the patent? Example For example, suppose that Sharp Co. develops a process of making steel for knives that is superior in some way (e.g., it makes it much cheaper and quicker to manufacture the knives than an alternative status quo process that produces exactly the same end result), by incorporating flax oil into the process of forging its knives. It is impossible to discern that the flax process was used by physically inspecting a knife made with it after the fact. Assume that this patent easily qualifies as valid by every relevant legal test evaluated as of 2012-2014 and under all changes to patent law since then that do not pertain to prior art. This process was something that no published work available to living people was aware of at the time that Sharp Co. applied for its patent in 2012, and the patent was issued in 2014. In time, Sharp Co. discovers that Dull Co., a company next door to it, is using the same flax oil process to forge its knives and brings suit in 2022 for patent infringement, having copied the Sharp Co. process from its patent application, and Dull Co. gains 50% of the market share of knives made with this process costing Sharp Co. US $50 million a year in lost profits. But after filing an answer in the patent infringement lawsuit in U.S. District Court, the patent infringement defense lawyer for Dull Co. who reads archaeology and linguistics texts in his spare time happens to learn that in 2016, archaeologists discovered an inscription in Old Persian from 1100 BCE in a newly unearthed tomb and translated it and published their findings in the journal Nature, describing precisely the same lost art of using flax oil to forge knives that Sharp Co. reinvented independently in 2012 and for which it secured its patent. No one affiliated of Sharp Co. learned about the newly discovered Old Persian texts until after they brought their infringement lawsuit and the lawyer for Dull Co. brought it to their attention. Dull Co.'s lawyer had raised the defense of invalidity based upon prior art in the answer that Dull Co. filed even though he didn't know about this particular prior art at the time. Evidence from the ancient Old Persian text and some related authentic texts written by Old Persian priests from a few centuries later indicates that there were hundreds of copies of the description of this process which were included in every prayer book of the predominant religion of the region now called Iran in 1100 BCE that was freely available in each of hundreds of temples in the region to anyone interested, but it was not preserved by later scribes who decided that it was considered an obvious piece of knowledge among metal workers that wasn't worth recopying at some point in the early Iron Age, even though they were wrong and the process was later entirely forgotten. Question Does the previously lost prior art, that is rediscovered before the patent of the lost prior art process expires, provide Dull Co. with a meritorious prior art invalidity defense to the validity of Sharp Co.'s patent infringement lawsuit against Dull Co.? I can imagine this question functionally hinging on when prior art has to exist, and I could also imagine it hinging on the definition of what has to happen for something to constitute prior art. But, I'm not really sure exactly what the proper analysis would be. Differences from prior similar questions This differs from the similar question "What impact does prior art discovered after (US) patent awarding have on enforceability and even validity of that patent?", because in this question, by design, there was nothing that would have operationally counted as prior art available at the time the patent was applied for and at the time that it was issued, while that question implicitly assumes that the only reason that prior art wasn't discovered was due to an inadequate prior art search when the patent was issued, and that a sufficiently thorough search for prior art at the time the patent was applied for and issued could have possibly found it. This also differs from the fact pattern where someone already uses the patented process in a secret manner protected as a trade secret that is not disclosed until after the patent is issued, because, as I understand it, to be prior art, something must be knowable to people in the general public at some prior time (usually in a publication that is not confidential). The example is loosely inspired by Rahil Alipour, Thilo Rehren, Marcos Martinón-Torres. "Chromium crucible steel was first made in Persia." Journal of Archaeological Science (2020); 105224 DOI: 10.1016/j.jas.2020.105224 (recounting their discovery that there was widespread manufacturing of chromium steel in Southern Persia around 1000 CE, a metallurgy technique that was subsequently lost and then only rediscovered about nine centuries later).

The patent is invalid From 35 U.S.C. 102 A person shall be entitled to a patent unless — (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent There is no doubt that the Persion "printed publication" in c.1100 BCE predates the invention of the technique by Sharp Co. in 2012 CE. If follows that Sharp Co. is not entitled to patent protection. This is merely a refinement of 35 U.S.C. 101 which says (my emphasis): Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. The process Sharp Co. invented was not "new" - patent rights only accrue to the first inventor, in this case, some unnamed ancient Persian. The prior art exclusion is merely one means of ensuring that the patent holder is the first inventor.

patents,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-22111

As a startup, Should we avoid using React (reflecting on the BSD + patents license)

Recently, i read the following article : If you’re a startup, you should not use React (reflecting on the BSD + patents license). The example in this article : Fridgebook Inc. For the sake of illustration, say you’re a fridge company “Fridgebook Inc.” who markets intelligent fridges. Your fridges have a screen that runs your proprietary application, and you use React for the UI. Overnight, you hear that Facebook decides to move into the fridge industry, and they’ve announced the worldwide launch of their new product: “FBfridge”, in just 1 week. In the hypothetical case that Facebook blatantly infringes some of your patents with ‘FBfridge’, what can you do? Well, you cannot sue them immediately. You’re using React on the customer-facing app, remember? If you sue them before migrating to something else (like vue.js), you will immediately lose the license grant for React, and suddenly you’re in breach yourself, fighting against a potential lawsuit for illegal use of software, from an almost-$500-billion company, all by yourself. And obviously, you don’t want to interrupt customer service. So if you want to sue them, or at least hold any leverage for doing so, you will need to find a solution to migrate away from React in record time. My question: Is the claim in that article accurate, and we have to go away from React to avoid Facebook laws ?

Adding to what Martin Bonner said: If you are a startup, and your grand plan is to be bought by a big company for a lot of money, and that big company thinks your use of React makes it risky to buy you, then you will lose out. It doesn't matter whether there is a risk, what matters is whether a potential buyer believes there is a risk. And if that is your plan, then you need to re-read Martin's answer from the point of view of a bigger company. You may not have any valuable patents, but that bigger company might. If I have an LLC with no money, then I can say "I don't care if Facebook sues me for 100 millions, I'll just let the LLC go bankrupt and start another one". If the company is worth millions or more, then the risk is much higher.

intellectual-property,licensing,patents,software,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-82379

Judge granted me early discharge from probation; when can I stop reporting?

Short Version A judge just granted me early discharge from my probation sentence. Am I legally required to continue reporting to my probation officer (regardless of whether the officer has acknowledged my release)? I am being supervised in a different state from my conviction. Background I live in (United States) state A, and was convicted of a crime in another state, state B. I was sentenced in state B to probation, and my supervision was transferred via the Interstate Compact to my home state, state A. My attorney filed a motion in state B requesting that my probation be terminated early. The judge granted our motion, thereby ending my state-mandated supervision. My question is: As soon as the judge signed the order granting my motion, am/was I legally finished with my responsibilities as a probationer? For example, can I stop reporting to my probation officer in my home state? Or must I wait for some official termination procedure to wend its way from the court, through the probation office in state B, over to the probation office in my home state A, after which I will presumably be told that I may stop reporting? What Actually Happened I sent a copy of the judge's order to my PO, and she said that before she can let me stop reporting, she needs to hear from state B's probation department telling her that my supervision has been terminated. (Via ICOTS, which I vaguely understand is some sort of communication portal for the Interstate Compact.) What she said makes complete sense to me and was not surprising. At the same time, though, once the judge has decreed my sentence to be over, isn't it over effective immediately? (Not that it has to necessarily be symmetric, but for what it's worth, my supervision began the very second the judge sentenced me; is it not logical to suppose that my supervision ends the very second the judge ends the sentence?) NOTE: FWIW, I'm not suggesting that I'll completely ghost my PO, even if the law says that I can. I don't want trouble, nor would I want to be rude to her. I just want to know my rights, both for my own curiosity and also in case things go south and I need to exercise them.

You’re both right Legally, you no longer have an obligation to report to your probation officer. Legally, she must report you for not reporting and request a warrant for your arrest. You will then be arrested and, when you get to court, the judge will release you. Probably easier just to keep reporting.

united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-28997

How are terms in poor English enforced?

I was contacted by this phone company, who are trying to sell their service to me. They say that if I purchase a $19.95 credit on their phone plan, then I can get some discounts; also the $19.95 will be applied to my account, expiring in six months -- and I will not get billed until I use it up. However, when I went to sign up, this is what their terms said: With activation $ 19.95 Promotions: • 5% dsctose. by automatic debit • 5% of Bill E - 1st, 2nd, 3rd Bill • 30% dsctose. In the (favorite Number) frequently called • RETURN ACTIVATION FEE $ 19.99 from 6 months reflected in the bill Not knowing this phone company well, I am afraid they'll take my $19.95, and not offer anything in return. Will they be liable if they do so, with the above Terms and Conditions, given that I was provided a verbal assurance of what I described above?

First, if by "they say" you literally mean they use spoken words, and not a printed advertisement, or an advertisement on the internet that you can print out, then you may have a hard time proving what they said. If you can prove what they said that would be very helpful, a seller may be in trouble if their contract is not the same as what they promised. If things go to court, then a judge will first figure out what the contract is (let's say both sides have a copy of the contract - but the words are different, then a jury decides). That's not what we have here. Then the judge decides what the words in the contract mean. If the words are ambiguous, then the judge interprets the words in favour of the person who didn't write the contract.

legal-terms

law-stackexchange-questions-answers.json

law-stackexchange-qa-1064

Does "so as to" limit the application of a permission, or define it as a possible use case

I have been asked to sign an employment agreement which includes The Employee irrevocably appoints the Employer as the Employee’s lawful and authorised attorney to sign a document or do any thing and generally to use the Employee’s name so as to give to the Employer the full benefit of this clause. in the clause relating to Intellectual Property. My main concern here is that so as to reads to me as if it was an example of possible usage, and not a limitation of authorisation. Something along the lines of "appoint us as your attorney so we can sign paperwork, such as those required for this clause, on your behalf." Using the example from https://english.stackexchange.com/a/129573 Ensure that the firewall is properly configured so as to prevent an attacker from infiltrating our network. could seem to support this since a "properly configured firewall" can do more than just protect your network from infiltration. If the phrase for the purposes of was used instead it would read as though authorisation was being granted, but would be restricted to this one specific use case. In terms of legal documents (and probably everywhere else?) does so as to restrict the authorisation to only the provided purpose?

Contractual terms must always be read in context. Given the context, it is unlikely that the term could support the definition that you are worried about. It is clear that the purpose of you appointing the company as your attorney is to allow them to perfect the IP rights you have given them by the other parts of the clause; not to allow them to sell your house or make end-of-life decisions. If you are worried about it, ask them what they mean and ask for the clause to be clarified to your satisfaction.

australia,employment

law-stackexchange-questions-answers.json

law-stackexchange-qa-50740

Is there a law that requires allegiance or respect to the Office of the President of the United States?

It has become common in America today to hear people refer to the President of the United States as "not-my-president". Is such a statement as saying that the head of our Executive Branch is "not-my-president" something that's unlawful for any citizen or member of the military? Although we have freedom of expression in America (and I wholeheartedly support it!), there is already a proposal to make it illegal to burn the flag of the United States. I do believe a kingdom divided against itself will hardly stand! So likewise--short of encouraging draconian rule--I'm wondering how as a country we've considered or dealt with reducing or curbing the division that can arise from such public displays of rebellion against the leader we lawfully elect into office. Perhaps there's a rule about it that would only apply to the military. Or maybe there is something requiring allegiance or respect out of each citizen for the Office of the President. If not, I'd like to know if any such bill has ever been introduced to the House of Representatives, and whether there is any online reference where I can find out more about past issues or ongoing discussions regarding this matter.

The US developed from an earlier kingdom, and the First Amendment enshrines the main issue that led to our departure from that kingdom. The underlying political premise has been that disagreement is to be dealt with rationally and not through force, such as where opinions contrary to those articulated by the government are squashed (in order to eliminate divisions). There have been numerous laws passed in the US to outlaw "contrary" speech including "disrespectful" speech, and they are constantly being overturned by the Supreme Court. Texas v. Johnson, 491 U.S. 397 and U.S. v. Eichman, 496 U.S. 310 are two recent reaffirmations that such laws are unconstitutional. The only way such a law can work is if the Constitution is amended to in some way re-write the First Amendment, like this. Outlawing indirect insults towards political figures ("not my Speaker of the House", "not my FBI director") would require an even more extensive suspension of the First Amendment. It is possible that at some time, a bill was introduced to outlaw saying disparaging things about POTUS, but I would be surprised if it got out of committee, because it would fail challenge in court. The most-likely retrenchment on our freedom of expression is likely to be a flag-burning law, which has relatively wide support in the US. There are a number of interpretive problems associated with the key concept "physical desecration". Even more interpretive problems would arise if Congress were given the power (via an anti-disparagement amendment) to outlaw "disparagement of public officials". Can one simultaneously "respect the Office of the President" and "disrespect the holder of the office"? As for specifically restricting the military, that's a challenging issue. It is a court-martial offense for a commissioned military officer to use contemptuous words against the President and Congress (10 USC 888), and by directive from the Department of Defense this also applies to enlisted personnel. SCOTUS in Parker v. Levy, 417 U.S. 733 articulated the Military Necessity doctrine, that "The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it". So "not my President" probably is illegal for soldiers. This article reviews various First Amendment issues as they pertain to the military.

freedom-of-speech,libel,treason

law-stackexchange-questions-answers.json

law-stackexchange-qa-26085

Advice sought regarding GDPR and managing sensitive data

We have a site that has very sensitive information including medical and information about children. This is on a public website with many organisations shared on one server. There are files that are available without a login, they are not linked on main site, but they are available that share this information (excel files). The site is vulnerable to many different attacks, including sql injection (which allows you to download all data). I have a list of about 10+ major security holes. It is being treated as not a major issue as there has been no reported breach, and we do not know of any. It is kept being said - "has a breach been reported?". If we keep the site up knowing it has issues and fix them "when we can", and we don't tell customers that their data has been insecurely kept for a very long time, are we breaking laws? Or is it only really something that should take the site down and be communicated to customers if we know of a breach. This is in the UK and we need information valid for prior to GDPR I would guess?

"We have a site that has very sensitive information including medical and information about children. This is on a public website with many organisations shared on one server." Whilst it's perhaps not following industry best practice, I don't think it would necessarily be considered illegal to use shared hosting for such a website provided suitable technical controls are in place and tested such as can provide a high level of confidence other users on the same server cannot access the data in your account. Issues such as this would be considered risks that need to be managed and reviewed regularly, and the technical controls implemented to be adequate and proportionate to the risks. That having been said, the Data Protection Act does say that you should "design and organise your security to fit the nature of the personal data you hold and the harm that may result from a security breach" and I find it hard to belief security has been designed and organised given the circumstances - "very sensitive information including medical and information about children". In the very least for a website like this I would be expecting an SSL/TLS certificate to be installed, dual-factor authentication, sensitive data to be encrypted in storage etc. "There are files that are available without a login, they are not linked on main site, but they are available that share this information (excel files)." If these Excel documents you refer to are both unencrypted and contain any personal data then there are clearly insufficient technical measures taken to prevent unauthorised access to them, and this is a breach of the UK Data Protection Act's seventh principle: "Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data." The ICO instructs organisation to be clear about who in the organisation is responsible for ensuring information security, making sure they have the right physical and technical security, backed up by robust policies and procedures and reliable, well-trained staff and being ready to respond to any breach of security swiftly and effectively. "The site is vulnerable to many different attacks, including sql injection (which allows you to download all data). I have a list of about 10+ major security holes." The likelihood of a breach progressively increases when vulnerabilities are left unpatched/ unfixed. Industry best practice is for known issues to be fixed with 30 days of discovery and/or the release of a suitable security patch from the software vendor if applicable. Knowingly and negligently leaving vulnerabilities unpatched on a production system with sensitive personal data when this could be prevented through exercising good information security practices is another breach of Principle 7. See the ICO's published guidance on Protecting Personal Data in Online Services: Learning from the Nistakes of Others for more information about appropriate security measures. "It is being treated as not a major issue as there has been no reported breach, and we do not know of any. It is kept being said - "has a breach been reported?"." Do you have suitable mechanisms in place to detect if the site/data is breached? Are you monitoring access to these Excel files? The legislation is there to protect the data subjects - perhaps reporting to the ICO the breaches of compliance with the Data Protection Act is the only way to ensure necessary actions are taken to protect the data before a data breach occurs. "If we keep the site up knowing it has issues and fix them "when we can", and we don't tell customers that their data has been insecurely kept for a very long time, are we breaking laws?" If there is currently no evidence of a data breach then I'm not certain there would be a requirement to notify your customers, however keeping their personal data insecurely is an offence under s21(1) of the Data Protection Act 1998 - as mentioned above. Additionally. under Section 61(1) when directors consent to or are complicit in negligence with regard to data protection compliance they are also personally liable for prosecution. "Or is it only really something that should take the site down and be communicated to customers if we know of a breach." If you have exhausted pursuing resolution internally within the organisation due to systemic lack of commitment to information security and data protection, I would strongly urge you report your concerns directly to ICO for them to investigate as in the event of a breach they are perhaps more likely to attempt cover it up than address it properly. ICO have the powers to force them to comply with the law or enforce the law with penalties when appropriate. There may be way to do this anonymously, you would have to look into this. "This is in the UK and we need information valid for prior to GDPR I would guess?" The risk to your organisation in terms of enforcement penalty will be significantly greater once GDPR is in force from 25th May 2018. Compliance with GDPR requires substantially more preparation and paperwork and includes privacy risk assessments and a formal record of actions taken to identify, reduce and review these risks. There is tons of information available now to help with GDPR compliance however I would suggest you start be reading the GDPR text itself.

data-protection,gdpr

law-stackexchange-questions-answers.json

law-stackexchange-qa-17004

Sister is living rent free in inherited property. Should she pay rent to other sibling?

My father died in Jan 2015. My sister moved in with my mother Feb. 2015 to care for her. In April, 2015 my sister sold her home. She was now mortgage free. The following month, my mother added my sister on to the Title of her home, which she owned free and clear. Even though the will states that we have equal share of all assets, I live 3000 miles away so my mom thought it made the most sense to just add my sister on. My mom died in Oct 2015. My sister still lives there, mortgage-free and rent-free, and has no immediate plans to move out. I'm ashamed to admit this, but until recently, it had never even occurred to me how much she has been benefiting financially all this time and how much I have been losing. For 2 years, she has not had to pay rent or a mortgage payment. I believe she should be paying me an amount every month that is half of the fair market rent, which is $1950. And since she should have been paying that to me for the last 2 years, that total should be deducted from her share of the proceeds when the house is sold. I need to know what the law says about this before I talk to her.

These types of situations can, do and will get very messy and bitter fast. The key question here is actually two basic areas: What’s the legal situation now in terms of what you can actually claim etc? For this you need a lawyer familiar with the local laws. Second, and much more important, is how much you value your relationship with your sister. These types of situations can and do irreparably break families, and you need to think very hard about this element of the situation regardless of what your legal rights are. Personally I would err towards probing gently into what she thinks is fair/your mother intended etc and go from there, with the emphasis on extreme caution. Money can always be replaced. Families can’t.

real-estate,trusts-and-estates

law-stackexchange-questions-answers.json

law-stackexchange-qa-4962

Facebook does not obey the Google Play's central opt out of the Ad ID

Facebook states in this Terms and services that it respects Google plays advertising id: Yes, the Audience Network SDK for Android uses the Advertising ID and respects its limit tracking option in accordance with Google Play's terms and conditions. I checked it by sniffing its traffic, and it is true. But it is striking that it does not obey google plays opt-out mechanism: I still could see that it used the IDFA Header even after opting out. https://graph.facebook.com/network_ads_common/ MAKE: LGE IDFA_FLAG: 1 APPVERS: 1.1.10 ATTRIBUTION_ID: NUM_ADS_REQUESTED: 1 CARRIER: SDK: android SCREEN_HEIGHT: 592 VIEWABLE: 1 ADAPTERS: AN REQUEST_TYPE: 0 SDK_CAPABILITY: [3,4,5,7,11] CLIENT_EVENTS: COPPA: false PLACEMENT_ID: ???? SDK_VERSION: 4.7.0 TEMPLATE_ID: 200 OS: Android BUNDLE: ??? DENSITY: 2.0 APPNAME: ??? OSVERS: 4.4 SCREEN_WIDTH: 384 SCHEMA: json PLACEMENT_TYPE: native APPBUILD: 10 LOCALE: en_GB MODEL: Nexus 4 IDFA: a6a1bca3-1f90-408e-8a9b-960ba26aa60a So is that behavior legal from Facebook and can I do something about that? Edit It seems that they need to obey the opt out mechanism: Usage. The Android advertising identifier must only be used for advertising and user analytics. The status of the “Opt-out of Interest-based Advertising” setting must be verified on each access of the ID. From: Google Play Developer Programe Policies

This question expresses two misconceptions: first being that the terms of service agreement language cited governs whether Facebook uses the ID "at all," and in fact they likely need to use the ID to identify BOTH users who are opt-in, AND users who are opt-out. So the ID is going to be present regardless...and second, that presence of the ID notwithstanding,this is not a question of "legality." Ignoring their own terms of service is not "against the law," it's "against the contract."

privacy,terms-of-service

law-stackexchange-questions-answers.json

law-stackexchange-qa-92178

Do governments with Rule of Law sometimes (too broad of word?) hand over their citizens even without extradition treaties?

Prompted by this question. For example, officials from Cuba or Iran (or even friendly countries like Taiwan, Ukraine, etc) officials go to US officials, present evidence that one of their nationals committed a crime in the source country then legally (how is irrelevant) entered the US for the long term. To make it juicy, lets say it was a heinous crime with lots of solid evidence. Would the US say "sorry, wish we could help, but legally impossible", or could they arrest him and start extradition proceedings anyway (under some legal theory which I'm unaware of)?

There are circumstances in which countries that are generally recognized to follow the rule of law will extradite in the absence of a treaty. For example, the U.S. generally will not extradite absent a treaty, and there are many countries with which the U.S. does not have an extradition treaty. Regardless, 18 U.S. Code §§ 3181 and 3184 leave the executive with the authority to extradite without regard to the existence of a treaty, persons (other than citizens, nationals or permanent residents of the United States), who have committed crimes of violence against nationals of the United States in foreign countries. U.S. Department of Justice Manual, 9-15.100 - General Principles Related to Obtaining Fugitives from Abroad

extradition

law-stackexchange-questions-answers.json

law-stackexchange-qa-36555

Is a step by step route considered as personal data?

I would like to know whether a route between two physical places A and B, with its different step by step streets, can be considered as a personal data and should be processed as it. We don't know whether the user is going to type a direction with number or just the street name, for example, and the intermediary streets we will provide are just composed by street name and city. We are not able to know whether the user is typing its home or workplace. Thanks.

Thinking about personal data becomes a bit easier when you start thinking of it as biographical data: information about an identifiable person. Does the data in question tell a story about a person (that I can identify or may be able to identify if I tried)? I need to fill out some detail to help you out... For example, once you know that: I looked at/considered taking/searched for a route on (say) my phone, the data is personal data. I walked that route (or parts of it) at a particular time of day or date, it is personal data. Also, if you store the route information that I queried ("type a direction with number or just the street name"), and associate it with me it's personal data (about me).

data-protection

law-stackexchange-questions-answers.json

law-stackexchange-qa-2181

What are customary items for an hourly lawyer to bill?

This question presumes the hourly billing method and the lawyer's perspective. To avoid broadness, I restrict this question to the UK (but please advise whether I should remove this). I already know of the following: expenses incurred for a client's case (e.g.: fees for court, experts, and other lawyers; travelling) meetings reading, preparing, negotiating and working on notes and documents (e.g.: of meetings, of telephone calls and of proceedings) research; composing and receiving correspondence (e.g.: letters, faxes, email, telephone calls) attending court or other formal proceedings, including waiting time;

Lawyers generally will bill clients for two broad categories: Professional fees (time spent working on a client's matter); and Cost recovery (lodging forms, printing, faxing, photocopying, etc) Anything that falls within these two groups is fair game, including everything you've mentioned in your question. I suspect it's not possible to devise a comprehensive list of items that may be billed, as it will depend largely on the matter being worked on.

fees,united-kingdom

law-stackexchange-questions-answers.json

law-stackexchange-qa-81462

Is there any legal way for a state to be expelled from the US?

This is similar to my question about legal secession, but with one major difference. Is there any way a state could be expelled from the US without its consent? A Constitutional amendment could do this just as easily as one could allow a state to voluntarily secede, except that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." If a state is removed from the Union, it obviously is not represented in the Senate. However, at this point, is it a state for the purposes of the constitution?

The Constitution does not describe such a method, and no one has ever tried to do so. During and immediately following the U.S. Civil War, states that attempted to secede from the U.S. to join the Confederate States of America were not represented in Congress until their insurrections ceased and a post-war government approved by the Union forces in the Reconstruction era was in place. But this was not on the theory that these areas had ceased to be states, it was on the theory that there was a vacancy in the positions because these areas had not held elections for the U.S. House of Representatives, had not nominated U.S. Senators, and were in degradation of the U.S. Constitution once the 14th Amendment was adopted (denying the right to serve in office to confederate leaders until Congress acted otherwise). Prior the 14th Amendment this denial of U.S. government representation was simply viewed as a function of practical reality and the war powers of Congress, and perhaps the "invasion or insurrection" and "Republican government" clauses of the U.S. Constitution. Certainly there is no recognized roadmap for doing so today.

secession,united-states,us-constitution

law-stackexchange-questions-answers.json

law-stackexchange-qa-74353

Irrational fear of needles

I want to get an injection (vaccination or treatment) for very good medical reasons. Unfortunately I have an irrational fear of needles (I don’t actually, it’s hypothetical). I can approach a doctor and say I want this injection, I can pay for it if needed, but as soon as a nurse arrives with a needle, I run away, and I definitely don’t consent to the injection at that point. What can my doctor do legally? Can he ask me to sign a form for example where I consent to the injection and allow him to give me the injection even if I strongly refuse a minute later? If I sign to give him permission to get two strong men to hold me in a chair to give me the injection, against my strong objections at that time, would that be legal?

Medical PoAs in General A medical power of attorney (PoA) is only valid (at least in most US states, the rules vary a bit) when the principal (the person granting the power), is unconscious, unable to make a choice, or legally incompetent. A fear, even an irrational fear, will not suffice to make a person incompetent. Maryland To deal with a specific example, consider the law of maryland. According to the article on "Powers of Attorney" from The People's Law Library : Unless otherwise stated in the advance directive, the directive goes into effect when the person becomes too sick to make a decision about his care. If the patient is unconscious or not able to communicate, then the attending doctor may make the determination that the advance directive is in effect. Otherwise two doctors must certify that the patient is not capable of making an informed decision about care. More specifically to use a Maryland advance directive (healthcare PoA) for the purpose described in the question, a person would need to create a written Advance directive under code §5–602(a). It would need to include language waiving the right to revoke the directive. The person would then need to be formally declared "incapable of making an informed decision" about injections by two physicians. Then, and only then, would anyone acting under the PoA be justified in restraining the principal and forcibly administering an injection. I suspect one would find many health care facilities very apprehensive of malpractice suits and other possible legal complications in such a situation, and thus very reluctant to undertake care in such circumstances. Specific Maryland Laws Maryland code section 5–602 reads, in relevant part: (a) (1) Any competent individual may, at any time, make a written or electronic advance directive regarding the provision of health care to that individual, or the withholding or withdrawal of health care from that individual. (a) (2) Notwithstanding any other provision of law, in the absence of a validly executed or witnessed advance directive, any authentic expression made by an individual while competent of the individual’s wishes regarding health care for the individual shall be considered. ... (e) (1) Unless otherwise provided in the document, an advance directive shall become effective when the declarant’s attending physician and a second physician certify in writing that the patient is incapable of making an informed decision. (e) (2) If a patient is unconscious, or unable to communicate by any means, the certification of a second physician is not required under paragraph (1) of this subsection. §5–601 reads: (f) “Competent individual” means a person who is at least 18 years of age or who under § 20–102(a) of this article has the same capacity as an adult to consent to medical treatment and who has not been determined to be incapable of making an informed decision. ... (m) (1) “Incapable of making an informed decision” means the inability of an adult patient to make an informed decision about the provision, withholding, or withdrawal of a specific medical treatment or course of treatment because the patient is unable to understand the nature, extent, or probable consequences of the proposed treatment or course of treatment, is unable to make a rational evaluation of the burdens, risks, and benefits of the treatment or course of treatment, or is unable to communicate a decision. §5–604 reads: (a) (1) Except as provided in paragraph (2) of this subsection, an advance directive may be revoked at any time by a declarant by a signed and dated written or electronic document, by physical cancellation or destruction, by an oral statement to a health care practitioner or by the execution of a subsequent directive. (a) (2) A declarant, knowingly and voluntarily, may elect in an advance directive to waive the right under paragraph (1) of this subsection to revoke any part or all of the advance directive, including the appointment of an agent, during a period in which the declarant has been certified incapable of making an informed decision under § 5–602(e) of this subtitle. (b) If a declarant revokes an advance directive by an oral statement to a health care practitioner, the practitioner and a witness to the oral revocation shall document the substance of the oral revocation in the declarant’s medical record. Alternate Procedure In many cases it is possible to treat and mitigate irrational fears. The process is not instant, but it is often effective, I understand. The hypothetical patient might be wise to undertake such treatment. It is possible to render a person unconscious without using an injection, although this has significant risks. That is not a legal issue, but a person could consent to such a procedure, and then be injected while unconscious. Whether a doctor would be willing to undertake this I cannot say. Some medications normally taken by injection can be administered by other routes, but I gather that some cannot, so this might or might not be a useful solution.

medical

law-stackexchange-questions-answers.json

law-stackexchange-qa-1916

At what point can a computer-generated file infringe copyright?

In general it is illegal to download a copyrighted file without paying the copyright owner. But is having metadata (hash) of the copyrighted material legal? What if I've run a program (like Mathgen) that generates random documents and at some point it generated the copyrighted material? Another example: my program generated a two-line program extracted from pi that by chance (or perhaps not) is copyrighted (like IEFBR14 which has around 10 words). Does my program's output infringe that copyright?

Copying is illegal, creating an identical work by coincidence isn't. If it is not a criminal case, then a court decides whether it is more likely that the identical work was created by copying or by coincidence. Creating an identical work through a random process isn't going to happen, claiming this would be an awful defense. On the other hand, it is quite possible that two software developers using very stylized code adhering to struct coding conventions can produce quite large bits of identical code. Your links titled "metadata" and "hash" don't actually link to a description of metadata, or the description of a hash, but to a description of torrent files, which is something totally different. Systematically distributing files whose only purpose is the illegal duplication of copyrighted works should not be done without consulting a lawyer, as has been said on other threads (whether posting links to copyrighted files is legal). The chances that a random process will generate a file identical to an existing copyrighted file of say over 100 bytes are virtually zero. If there is an illegal copy of a copyrighted file, and you claim that you created it through a random process and coincidence, you will lose, and deservedly so.

copyright,software

law-stackexchange-questions-answers.json

law-stackexchange-qa-707

Is it legal to program a published game for educational purposes (and put the source code on GitHub)?

I own a card game that I enjoy playing (not a playing card game using a standard 52-card deck). I enjoy it enough that I thought it'd be fun to write a program (complete with AI!) that plays that game. Is this legal? Furthermore, may I publish the source code to a public website such as GitHub without incurring any legal issues? Assuming it's illegal for me to do this, at what point does doing this become legal? I likely cannot simply change all the names of the various cards to something else, right? If I start changing the rules of the game, does that make it legal for me to share my source code, for instance? It'd be a game that's heavily inspired by the original, but isn't (different rules, different cards, different amounts even).

If any elements of the game are protected by copyright, then you cannot reproduce those elements (17 U.S.C. §106) unless your reproduction falls under a fair use exception (17 U.S.C. §107). Elements that may be protected by copyright include: artwork specific language on each card the aggregate effects of the cards (i.e. copying a single card's effects might not infringe copyright, but if you copy the effect of a bunch of the cards, such that you are taking expression of the original author's creativity, that might infringe, even if you change the words used) Whether an element of the game is protected by copyright is a fact-intensive question that would depend on the specifics of the game. Whether your copy infringes is likewise a fact-intensive question that would depend on what you copy. Fair use is also a fact-intensive, case-by-case analysis, but in my opinion, it is likely that creating a computer program derivative work (17 U.S.C. §101) of the game for your own personal education would be considered fair use. From a practical standpoint, even if it were not fair use, it would be near impossible for the copyright owner to discover. Posting the code on GitHub tips the scales away from fair use because of (17 U.S.C. §107(4)): "the effect of the use upon the potential market for or value of the copyrighted work." But, none of the factors are determinative on their own. You ask: I likely cannot simply change all the names of the various cards to something else, right? I agree. In my opinion, the selection and arrangement of the effects attributed to each card is an expression of the author's creativity, and no matter what you call the cards, copyright in the game would be implicated if you retained the effects associated with each card. If I start changing the rules of the game, does that make it legal for me to share my source code, for instance? At some point, it will be an entirely different game, so certainly, in the limit, your work would not be infringing. We can't answer where that line is, but in general, the less of the original author's creativity that you re-use, the less likely a ruling of infringement. Also, in general, the more transformative your work is, the more likely a fair use exception would apply.

intellectual-property,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-33901

YouTube Copyright

What could happen if I copy some content from an article on a website and narrate it on my YouTube channel with some modifications? What copyright issues would I be facing?

You would have created a "derivative work" (PDF link) of the original. If you did so without permission then you will have violated the copyright of the creator. The link above is for the US, but most jurisdictions are substantially similar.

copyright,youtube

law-stackexchange-questions-answers.json

law-stackexchange-qa-51894

How dangerous is it for British lawyers to give advice on Law Stack Exchange?

How risky is it for people to self-identify as legal professionals and answer questions here? In Britain, precedent such as Chaudry v Prabhakar – 1989 can make British lawyers reticent to give informal advice, even when outside of a professional or business context. I do wonder whether the site disclaimer is sufficient to protect against a claim for incorrect advice however. Law Stack Exchange is for educational purposes only and is not a substitute for individualized advice from a qualified legal practitioner. Communications on Law Stack Exchange are not privileged communications and do not create an attorney-client relationship. It is also questionable as to whether professional indemnity insurance in the U.K. would cover a British lawyer sued in this way. So, what are the risks for British lawyers, and do other countries rulings similar to Chaudry v Prabhakar – 1989? I don't believe this is a duplicate of other 'advice on stack exchange' questions, as it addresses more specific concerns. Also, I posted this on the main site rather than on Meta as it's an interesting legal question in its own right. Also I acknowledge that there may be selection bias in responses by legal professionals prepared to answer this. *8')

Chaudhry v Prabhakar is unlikely to be applicable Giving specific advice one-on-one in a field of known expertise when specifically asked creates a duty of care. Giving general advice on a mass-communication forum to general questions when all parties are aware that specific legal advice is specifically off-topic doesn’t.

advice,indemnity,united-kingdom,unlicensed-practice

law-stackexchange-questions-answers.json

law-stackexchange-qa-78004

How is soliciting a prostitute illegal in states where prostitution is legal?

This question is not concerned with whether prostitution should be legal or not. It is also not concerned with the moral implications of either position. What I find hard to accept is in states where prostitution is legal, soliciting a prostitute still gets you on a register of sex offenders. You can pay money for sex in Nevada: You just have to have the prostitute infer your desire for the service from deductive reasoning alone. I don't get the logic of how a service can be legal but asking for it is not. If soliciting a prostitute is a problem then prostitution should be illegal. To me both should be illegal or legal together.

Focusing on the titular question, it's not. Soliciting prostitution is not illegal in exactly those places where it is legal to engage in prostitution. Here's the law. NRS 201.354(1) says It is unlawful for any person to engage in prostitution or solicitation therefor, except in a licensed house of prostitution. FYI, street prostitution is not legal in Nevada, or anywhere else in the US. This is not to be confused with the situation in jurisdictions which shifted the onus of illegality onto the customer as opposed to the service-provider.

criminal-law,discrimination,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-17691

My ex keeps coming to my house uninvited

A little under a year ago I broke up with my (ex) girlfriend because she cheated on me. I told her to get out of my life and I would stay out of hers and that was the end of it. Well for some reason this semester she keeps coming to my house uninvited and will not leave or stay away no matter how much I request it. Her response is always a long the lines of "you can't tell me what to do" About the house: it's owned by the college we both attend there are 12 residents in the house, all of which say she has no reason to be here she has been over 3 times in the past 7 days she slept on the living room couch one night I have tried telling her that she is on the black list we made and cannot enter the house. How do I ensure that I can live peacefully in the privacy of my residence without her coming in whenever she pleases? We keep the doors locked but she either a) comes over with her friends who we are fine with or b) sneaks in when we have a lot of people over. Is there something I can do legally to get the point across to her that she can not be here? This is in the US

Call the police and ask them to throw her out.

trespass

law-stackexchange-questions-answers.json

law-stackexchange-qa-79650

Are there any circumstances under which a council tenancy of a council flat in a council estate can be sublet?

Generally the answer is a clear no, but what exceptions are there to this, if any?

The Citizens Advice Bureau states in Rights of tenants to sublet their home Rights of secure and flexible tenants to sublet Most local authority tenants are secure tenants. You are also likely to be a secure tenant if your landlord is a housing association and your tenancy started before 15 January 1989. Most secure tenancies don’t have an end date. If your tenancy has an end date and you rent from the local authority, your tenancy is a ‘flexible tenancy’. Flexible tenancies are a type of secure tenancy. What rights do secure and flexible tenants have to sublet? You can sublet part of your home with your landlord's written permission. If you sublet part of your home without permission, you are in breach of your tenancy agreement. Your landlord can't unreasonably withhold their consent to a request to sublet part of your home. Also, your landlord can't attach conditions if they allow you to sublet. If your landlord refuses your request to sublet part of your home, they must give you their reasons why. And then, crucially You can't lawfully sublet all of your home. If you do, you lose your status as a secure tenant and your landlord can evict you. For more detail about types of tenancy, please see that page.

england-and-wales

law-stackexchange-questions-answers.json

law-stackexchange-qa-59513

Can I legally refuse entry to a landlord?

I am subletting an apartment from a friend who is technically my landlord. I refused him entry late at night after we had a row about a longstanding problem with one of the facilities in the apartment I just moved in to. The friend is angry at me saying that I "Refused him entry to his own room", and sent messages requesting his room back within a week. There was no notice given before he wanted to enter the room, it was just something he decided after we had already met that night. Can I legally refuse entry to a landlord?

In general, a German landlord needs to give at least 24 hours notice before he can enter a home, and allowance from the renter. The renter also has the "Hausrecht", not the landlord. There are exceptions, most of them to prevent damage from an ongoing danger threatening the house. A clear example would be a broken water pipe. 1 week notice also appears to violate tenant laws - I hope you have a written contract about the subletting.

germany,landlord,rental-property,residential-lease,tenant

law-stackexchange-questions-answers.json

law-stackexchange-qa-27108

Shooting victim taken off life support. What crime would be charged?

About a week ago a girl was shot in a Maryland school. Soon after that, a police officer shot and killed the gunman. The girl was critically injured, and on life support. After a few days, the family decided to take her off life support and she died soon after. Suppose the killer didn't die. What crime would the killer be charged with? The girl has died, but technically she would probably still be alive if her parents didn't take here off life support. I think in some cases, a jury could be convinced that it would be extremely unlikely that a victim would ever regain consciousness. Many would regard this as worse than attempted murder. Do some states have a crime that is appropriate for that situation?

It would be murder (assuming the facts surrounding her getting shot would support a murder charge, of course, and it wasn't something like an accidental discharge.) The fact that she was on life support for a time is irrelevant. Under Maryland law § 2-102 it doesn't matter how much time has elapsed: A prosecution may be instituted for murder, manslaughter, or unlawful homicide, whether at common law or under this title, regardless of the time that has elapsed between the act or omission that caused the death of the victim and the victim's death. It's a Wisconsin and not a Maryland case, but according to State v. Below, 799 NW 2d 95 - Wis: Court of Appeals 2011, it doesn't even matter if life support was wrongly terminated; the defendant is still guilty: [E]ven if the Defendant can establish that the termination of Madison's life support was "wrongful" under Wisconsin Law, that wrongful act would not break the chain of causation between the Defendant's actions and Madison's subsequent death.

criminal-law

law-stackexchange-questions-answers.json

law-stackexchange-qa-29981

What are some good sources for the rights of individual in an international context?

I am looking for sources for the international rights of individuals between nations. Nations might have problems politically, yet one might say individuals of nations have some international rights. For example, when 2 nations are in war, individuals of each nation have right to travel to the other when necessary. I am looking for some sources for such concept of rights.

There are a variety of sources of international human rights law, but very few of them are enforceable by individuals in a binding judicial forum. For example, the UN Declaration of Human Rights is not enforceable in the United States or most other signatories by individuals. Similarly, the decisions of the Inter-American Commission on Human Rights are not enforceable in U.S. courts. There is not any right, whether or not two nations are at war with each other, for individuals of each nation to right to travel to the other when necessary. I can think of only four such cases right off: The Council of Europe enumerates a set of human right that member nations agree to enforce in their domestic courts with appeal available from a highest domestic court to the European Court of Human Rights. The European Union establishes rights of citizens of member states to travel, including for employment to other member nations, to vote in local elections where they reside in other member nations, and to be free of certain barriers to international trade when that trade is between member nations, all rights that would be enforced in domestic courts after adoption by a member state's legislative body. The International War Crimes tribunal tries and punishes certain individual war criminals, once they can be apprehended by participating states in the wake of genocidal type activity usually in connection with counterinsurgency operations by government officials. This does not afford an individual any enforceable legal rights, however. The Geneva Conventions create certain rights for civilians in war (e.g. not to be targeted without military justification) that nations that adhere to them are supposed to follow, and that a member state's courts might even enforce.

international,nationality

law-stackexchange-questions-answers.json

law-stackexchange-qa-29171

Facebook blocked my account until I consent to their new privacy policy under GDPR. If I consent now, will I be able to withdraw my consent later?

I am going to delete my Facebook account in a month, I can't do it now because I still use it for work. I live in the EU and Facebook has blocked access to my account unless I accept their privacy rules, which means giving up GDPR protections. I worry that if I accept their rules now, I won't be protected anymore by GDPR, and that even if I delete my Facebook account in the future, that I won't be able to request my data to be fully deleted with full protections of GDPR. In other words, I worry that agreeing to their privacy policy will override GDPR and that I won't be able request to delete the data they have about me anymore. Is my worry justified?

I live in the EU and Facebook has blocked access to my account unless I accept their privacy rules, which means giving up GDPR protections. Facebook operates in the EU and has EU data subjects, therefore Facebook is subject to GDPR. You should be able to withdraw your consent. Article 7(3) says: The data subject shall have the right to withdraw his or her consent at any time. The withdrawal of consent shall not affect the lawfulness of processing based on consent before its withdrawal. Prior to giving consent, the data subject shall be informed thereof. It shall be as easy to withdraw as to give consent.

data-ownership,data-protection,european-union,gdpr,privacy

law-stackexchange-questions-answers.json

law-stackexchange-qa-76488

US Travel restrictions after withdrawal of US asylum application/Canadian PR application, Waiting for asylum interview in US

I am a permanent resident of Canada. My girlfriend and I plan to marry in the USA soon. She has been waiting for her asylum interview in the USA; she has already obtained her USA work permit and Social Security Number. Here are some of our questions: Once I come back to Canada after marriage and apply for her PR, does she need to withdraw her USA asylum application before getting Canadian PR approval (to start her PR application) or can she start her PR application and withdraw her asylum application after her successful Canadian PR approval? Once she withdraws her asylum application in the USA, how many days can she stay inside the USA? Once she moves to Canada, can she travel back to the USA in the future? Will there be any kind of ban for her from entering the US?

I am not familiar with Canadian PR applications. When you say "start her PR application", are you referring to steps you take while she is outside Canada? or are you referring to steps she will take after entering Canada? If she leaves the US while her asylum application is pending, without first being granted Advance Parole, she abandons her asylum application. In that case, it would not matter if she withdraws it or not. If the process is something that is completed while she is in the US, then I see no reason why she cannot engage in that process while simultaneously continuing her asylum application in the US. If she withdraws her asylum application, if her underlying status has expired or she had no status to begin with, she cannot stay in the US for any length of time. As for the unlawful presence ban, she does not accrue "unlawful presence" while a "bona fide" asylum application is pending, as long as she never works illegally. If her asylum application is denied or withdrawn, she starts accruing unlawful presence if she no longer has an underlying status. You have not told us what status she had before applying for asylum and when it ended, so we don't know how much unlawful presence, if any, she may have accrued before applying for asylum. So there is not enough information to determine if she has enough unlawful presence to trigger a ban upon departure.

asylum,canada,immigration,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-52737

Termination of Agreement clause. Why allow a contractor/employee to be able to use it?

I was presented a contract with an NDA; non-compete and a bunch of other stuff in it. One of clauses in it was this: Duration. This Agreement shall be in force and effect until December 31, 2027; provided, however, that this Agreement may be terminated by either party upon ten (10) days written notice. Only one other clause, the non-compete, indicates that it survives the part termination: Covenant Not To Compete. During the term of this Agreement and for a period expiring two (2) years after the termination of this Agreement for any reason, Contractor covenants and agrees that Contractor will not: [.. and the definition of competition stuff follows thereafter] No other part of the Agreement indicates that is survives for any period after the termination of the Agreement, so can any other part be in effect if the Agreement is past 10 days termination? For example, 10 days after I terminate the Agreement I understand that I no longer agree to a clause such as: Attorney’s Fees. In the event that either party hereto should employ the services of an attorney in connection with a breach of this Agreement or the enforcement of the terms hereof, the defaulting or losing party shall pay, in addition to any other sums due hereunder, the other or prevailing party’s reasonable attorney’s fees, costs and expenses Doesn't termination of the Agreement mean what it says in that it terminates everything (except that which it specifically says will survive termination for a certain duration such as the non-compete?)

No other part of the Agreement indicates that is survives for any period after the termination of the Agreement, so can any other part be in effect if the Agreement is past 10 days termination? Easily. The fact that one part specifies how long it stays in effect after termination by no means means that any other part (that does not specify so) ceases in effect upon termination. Specifying "2 years" in the NDA clause is necessary: the duration cannot be figured out otherwise. Specifying how long a clause about legal costs in a possible legal battle between the parties applies would not make any sense: such a legal battle can happen at any time, and so the clause is meant to apply at such time whenever it happens. Doesn't termination of the Agreement mean what it says in that it terminates everything No. The termination of an agreement only terminates what the agreement was purported for.

contract-law

law-stackexchange-questions-answers.json

law-stackexchange-qa-8470

Getting a conservatorship in Ohio (United States)

My mom had a stroke a few months ago and I need to file for conservatorship as I understand it. She is not mentally capable to making decisions at this point nor taking care of herself; she is currently in a nursing home. I need to sell her property in the next 13 months because of Medicaid. My siblings are all on board with this and my next plan is to get a lawyer, but I am not sure where I should get a lawyer. Will we file with the Probate courts in the county where she lived prior to her stroke or in the county where I reside and she is currently? EDIT: So this post may be of help to people in the future... I needed written confirmation from the county where her home was located that the probate court was relinquishing jurisdiction over the case; the county where I filed continued the case because they needed that in writing. Also, I basically was told by the court that I had to get a lawyer because I needed to sell my mom's real estate and that it would be very difficult for a lay-person to successful do a land sale. Also, I couldn't find a bonding company that would bond me (even with GREAT credit) until I had a lawyer.

You need to apply to be a guardian, not a conservator. A conservator can be appointed by someone who's competent only, and you've stated that she isn't. I'm not sure that you need a lawyer yet, but your first step may be to read this PDF, a guide to guardianship published by the office of the Ohio Attorney General.

probate

law-stackexchange-questions-answers.json

law-stackexchange-qa-57319

If a judge evidences a misunderstanding of the law is that grounds for an appeal?

In criminal matters, if a judge makes statements during oral arguments that clearly show that the judge has a misunderstanding of the case law pertaining to the matter at hand, can the judge's decision be appealed even if the written decision itself does not contain an explicit error? For example, let's imagine the police search a car and find an illegal item. The defendant makes a motion to have the evidence from the search suppressed on the grounds that the police had no probable cause to search the vehicle. Whether the police had probable cause in the case is complex issue involving many different facts. Let's imagine that one of these facts is that the police officer stated that the car owner's mechanic told him that the the car's airbag system had been tinkered with, a violation of US Federal regulations. During oral argument the defense argues that the possible violation of a Federal regulation is not grounds for a search. The judge then speaks out and says that violation of a regulation is still a crime and therefore potentially grounds for search. Later, in the written decision, the judge dismisses the motion to suppress, but does not explicitly give his reasons or gives other reasons, not involving the violation of a regulation. So, let's assume for the sake of argument that the judge made an error when he stated that violating a regulation is a "crime" and therefore grounds for local police to search a vehicle. Can the defense argue that even though this error does not appear in written form in the judge's decision, the fact that he said such a thing in court shows that he has a defective and incorrect understanding of laws relevant to the motion, therefore he is not fit to make a ruling on such laws. So, imagine that the appeals court finds that the judge has a clearly defective understanding of search and seizure law as evidences by his remarks in court. What is the outcome? Do they remand the case to the court, reverse the ruling, or take some other action?

Only if counsel challenged the point during the trial Difficult as it might be, you can’t allow the judge to be wrong during the trial without calling them on it: very, very politely. For example, there is case law that says you can’t successfully appeal because the judge was asleep through significant parts of the trial; appeals courts are clear that you have to wake them up. If you don’t then you accepted that you didn’t want the judge to hear the parts of the case they slept through, it’s your choice how you present your case. Frankly some cases are better if the judge misses half the evidence. Of course, if the error of law makes it through to the oral or written judgement then you can appeal even if you didn’t take issue with it.

appeal,constitutional-law,criminal-law,criminal-procedure,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-86195

Can an Elder Mother kick out her adult child from her house?

Imagine a adult child is living with her mother (and has been for a long time) who has some dementia issues. It is the mother's house and the adult child has been trying to help the mother. Then one day the two get into a heated verbal argument and the mother tells the adult child to move out? Does the adult child have to move out that night? If the adult child does move out, can be charged with elder abuse for leaving the mother alone when the adult child believes it is not safe for the mother to live alone. Part of the problem with the mother living alone is that she would need to get to the food store and her driving skills have detoriated.

First, a landlord cannot just expel a tenant, this involved getting a court order where the judge tells the tenant to leave. Second, she might think that "You're not a tenant, you're just living here" but that is pretty much what it means to be a tenant – she agreed to let the relative live there. There does not have to be a detailed lease written up, though the term of such unwritten agreements is usually month-to-month (this is all about the laws of the particular state, but no state authorizes instant expulsion). You would need to look at the laws of your state for the "abuse" question. Using Washington as an example, and trying to make the best case possible that bailing out is against the law, the potential legal concern is "abandonment", which is defined as an action or inaction by a person or entity with a duty of care for a vulnerable adult that leaves the vulnerable person without the means or ability to obtain necessary food, clothing, shelter, or health care. the failure of a vulnerable adult, not living in a facility, to provide for himself or herself the goods and services necessary for the vulnerable adult's physical or mental health, and the absence of which impairs or threatens the vulnerable adult's well-being. This definition may include a vulnerable adult who is receiving services through home health, hospice, or a home care agency, or an individual provider when the neglect is not a result of inaction by that agency or individual provider. RCW 74.34.200 creates a legal cause of action for abandonment, abuse, financial exploitation, or neglect of a vulnerable adult. Then one might sue for abandonment if one is living at home and receives care from a home health, hospice, or home care agency, or an individual provider But, "individual provider" is a defined legal term: a person under contract with the department to provide services in the home under chapter 74.09 or 74.39A RCW If the tenant is under contract with the state to provide services, then abandoning the vulnerable adult could get you sued. The courts do not declare that a duty of care exists because of a genetic relationship. A duty of care might be found from a contractual relation (one not involving a state social services agency), for example "You can live here if you take care of me". So there is a legal concern over abandonment, which the person should talk out with an attorney (which is possible since instant-eviction is not an option). Said attorney might also discuss the concept of guardianship.

family-law,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-42883

Joint executors: can one be silent?

In a will where two executors have been named, can one be "silent" without having to go through renunciation? I believe the writer named two in case one didn't survive the other, but only one has an interest in administering the estate/will. Can the other just be silent?

Being named in the will does not actually make you an executor; nobody can execute any will until probate is granted (both legally, since somebody else may wish to put forward another will, and practically because no bank or asset-holder will give you the time of day without a grant of probate). When the single executor applies for probate the relevant website says If more than one person is named as an executor, you must all agree who makes the application for probate. ... If only one executor applies they’ll need to prove they tried to contact all executors when they apply. so the simplest thing would be for the 'passive' executor to write a note saying he is happy for the estate to be administered by just one person (if that is his wish) and for the active executor to attach the note to the application form. Of course, he may actually wish to be a formal executor but leave the other person to do the work. The Ministry of Justice has no objection to this so long as the two can agree; in that case both would sign the application and be jointly responsible for the estate.

united-kingdom,wills

law-stackexchange-questions-answers.json

law-stackexchange-qa-78141

Tort: Parental negligence in leaving a child unattended in a car

A layman, I'm looking at educating myself with the basics of law. Jurisdiction: India Relevant Law: Perhaps None Applicable. I may be wrong. This content I have writes to present a legal principle with an example, and the lesson. Principle: A person is not liable for a tort committed by his/her child except when the parent affords the child an opportunity to commit it. Example: A mother takes her 7yo child with her in the car to the market. Once there, she kills the engine, engages the handbrake, and puts the car in gear. Then she goes shopping leaving the child unattended in the car. The child, in playing with the controls, sets the car in motion which then kills a pedestrian. The lesson here is that the mother is liable in tort as she was negligent. It appears to me the mother took all necessary precautions in engaging the handbrake, and putting the car in gear. How is the legal principle established in this example?

The registered owner of a motor vehicle in India has vicarious legal liability for accidents involving the vehicle (at least absent a theft of the vehicle) even if the owner is not the person operating the vehicle at the time. The link discusses a case where there was liability on the part of the registered owner and the registered owner's insurance company for an accident of the operator of the vehicle who purchased the vehicle when the parties had not yet registered the change in ownership. See Surendra Kumar Bhilwale v. The New India Company Assurance Limited, Civil Appeal No. 2632 (SCC June 18, 2020). But the same body of law applies in the case in the question.

india,tort

law-stackexchange-questions-answers.json

law-stackexchange-qa-36295

Do/can integration clauses terminate other contracts?

Question 1. Sometimes it's not clear what contracts (especially implied ones) already exist. If parties want to solidify everything in a single written agreement, what's the best way of doing this? It may not be possible/easy to individually expressly terminate each one of the existing contracts. This could be a problem because some contracts contain specific details on how they can be terminated (such as "this contract can be terminated by both parties agreeing to it in writing"). From https://www.lawinsider.com/clause/integration-clause is the following clause enforcable and able to over ride termination conditions set forth in other contracts (emphasis mine)? Integration Clause. Except for the other Loan Documents, this Agreement constitutes the entire agreement between Bank and Borrower regarding the Loan, and all prior oral or written communications between Borrower and Bank shall be of no further effect or evidentiary value. OTOH I've seen clauses written like this from a different page on lawinsider.com Merger Clause. This Agreement..., contains the final, complete and exclusive statement of the agreement between the parties with respect to the transactions contemplated herein, and all prior or contemporaneous written or oral agreements with respect to the subject matter hereof are merged herein. Technically speaking does this terminate any previous contracts? It seems to say "if we forgot anything from a previous agreement, just include it here". Question 2. Is there any difference between Merger Clauses, Integration Clauses, Entire Agreement Clauses, or are they all names for the same thing?

Do/can integration clauses terminate other contracts? If the parties to the other contracts knowingly and willfully accept such clauses, then yes, subject to not affecting other parties' interests in those contracts. If parties want to solidify everything in a single written agreement, what's the best way of doing this? It depends on whether the parties opt to "start fresh" in their relation or whether they intend to preserve any pre-existing contract(s). This is accomplished by incorporating one or the other type of clause, accordingly. Is there any difference between Merger Clauses, Integration Clauses, Entire Agreement Clauses, or are they all names for the same thing? Clause titles are just for ease of reference. What matters is the language and substance of their contents. For instance, the effect of the language in an improperly titled "Merger" clause could merge nothing and instead literally nullify "all prior or contemporaneous written or oral agreements". That "merger" clause would certainly be enforceable. A word of caution: An "Integration Clause" with language (as in the excerpt) that nullifies the evidentiary value of all prior oral or written communications seems suspicious and detrimental to an injured party (that is, in the event of an injury). Contract law is premised on the covenant of good faith and fair dealing. Since good or bad faith is a subjective state of mind, and malice/bad faith is rarely admitted (see Dalbec v. Gentleman's Companion, Inc., 828 F.2d 921, 927 (2nd Cir. 1987)), prior-act evidence might inferentially prove the absence of a party's good faith. Thus, waiving the evidentiary value of prior communications is detrimental to the injured party. Although such waiver could and ought to be stricken [in court] under principles of equity, that waiver makes it easier for a corrupt judge to prevent the injured party from obtaining/using crucial evidence that proves the tortfeasor's liability. The corrupt judge can (and does!) force an improper ruling anyway, but that does not mean that a party should act naively by waiving evidentiary value as the sample "Integration Clause" establishes.

contract-law

law-stackexchange-questions-answers.json

law-stackexchange-qa-49941

Why do statutes of limitations exist?

I don't understand: why artificially create a set of deadlines before which one crime or another can be brought to the conviction stage? Why not be able to investigate and prosecute for an indefinite period of time after a crime has been committed? Why encourage criminals to just sit out?

Statutes of limitations go back a long way The law code of ancient Athens had a five year limitation period except for murder and constitutional crimes. According to Demosthenes, these restrictions were introduced to control sycophants (people who made their living as professional litigators) from bringing unjustified lawsuits in the hope of a lucky verdict. As then, Statutes of Limitations exist to protect defendants who are, remember, presumed innocent. The principles on which this protection is based are that: a plaintiff or prosecutor with a valid case should pursue it with diligence, the older the claim or allegation, the more likely evidence is to be unreliable or lost, litigation or prosecution of a long-past wrong may result in more cruelty than justice. Obviously, this is all a matter of degree and different causes of action have different limitation periods. Most civil causes of action have a limitation period of a few months to a few years which runs from when the plaintiff should have become aware (or from when they attain their majority if they were a child) that they suffered damage. The logic here is that people doing their normal day-to-day activities should not live in perpetual fear that someone from the distant past is going to come out of the woodwork to sue them over an incident they can't remember happened if indeed it did happen. Notable exceptions include claims for damage for child abuse which have a much longer limitation period if they have one at all. Minor criminal offences usually have a very short limitation period partly as a spur to efficiency by those required to prosecute them and partly because the punishments are small and courts have better things to do with their time then try and sort out the probity of 15-year-old evidence for a speeding offence. Serious crimes like, murder and sexual assault typically have no statutory limit or they have a limit that can be set aside on application to the court. For example, in New South Wales the default limitation for civil matters is 6 years, however, it is only 1 year for defamation but 12 years if the action is founded on a deed (among other exceptions). For criminal matters, summary offences (magistrate's court jurisdiction and maximum 2 years imprisonment) must be must generally be brought within six-months, however, there is no limit on serious indictable offences.

statute-of-limitations

law-stackexchange-questions-answers.json

law-stackexchange-qa-81729

What is the intra-brief equivalent of judicial estoppel?

Judicial estoppel prevents a party from arguing two opposite positions in separate proceedings. Is there a similar doctrine that applies to argumentation in the same brief? Or is this so basic as to just be “common sense”? Concrete example: There is a dispute over which of two separate arbitration agreements, with material differences, are applicable to a pending arbitration. Agreement A delegates threshold questions such as the "applicability, existence, scope, or validity" of the agreement to the arbitrator. Agreement B does not. One party goes to court and asks for a declaration that Agreement A is applicable to the arbitration and Agreement B is not, relying on the language of the agreements. But it seems there is a catch-22. If Agreement A is applicable, then the court has no authority to decide the request. But if Agreement B is applicable, then the court has authority to decide the request, but the request is necessarily moot.

Judicial estoppel prevents a party from arguing two opposite positions in separate proceedings. Is there a similar doctrine that applies to argumentation in the same brief? No. The general rule is that a party is permitted to argue inconsistent positions in the alternative within a brief. When a party does so without expressly saying so, it is assumed that they are arguing in the alternative unless the party clearly indicates otherwise (and is just being illogical). But the law in the context of arbitration is a special case that doesn't align perfectly with the general rule, and makes different distinctions sometimes. Under the substantive law of arbitration clause validity, sometimes a party can be forced to arbitrate even if there is a possibility that the underlying contract is unenforceable, with the arbitrator making that decision. But, a party cannot be forced to arbitrate in every case where the validity of the underlying alleged agreement is in doubt, simply because an agreement, on its face, contains or references an arbitration agreement. Under the Federal Arbitration Act, certain preliminary decisions are vested in the courts even if a written arbitration purports to provide otherwise, if a party choses to raise those issues. A dispute over which of two significantly different competing arbitration agreements applies to an issue between the parties could be such a circumstance. Thus, a term that provides that "delegates threshold questions such as the 'applicability, existence, scope, or validity' of the agreement to the arbitrator," is partially void as a matter of public policy under the Federal Arbitration Act, although some of its retains its validity. For example, you can't delegate the question of the existence of an arbitration agreement to an arbitrator if that question is disputed, even if the contract says otherwise. In arbitration cases, there is a rather elaborate jurisprudence governing what issues are for a court to decided and what are for an arbitrator to decision when the right of a party to arbitrate, and/or the validity of the underlying contract, are disputed, that makes some very fine distinctions between different kinds of arguments. For example, if a party claims that he never had dealings with a party that presents an unsigned document that is a contract and also asserts that this party is bound to an arbitration agreement, that question can be decided by a court. But, if a party signed an agreement with a plain vanilla arbitration clause but claims it is unenforceable because it was induced by duress or undue influence, the arbitration will usually go forward with the arbitrator deciding the validity of the contract. When a decision is decided by a court, or by an arbitrator, is not easily summarized or manifestly obvious without a review of the relevant case law which is voluminous and intricate. See, e.g., Samson v. NAMA Holdings, LLC, 637 F.3d 915, 923 (9th Cir. 2011); Santich v. VGG Holding Corp., 2019 CO 67 ¶ 6 (June 24, 2019); N.A. Rugby Union, LLC v. U.S. of Am. Rugby Football Union 2019 CO 59, ¶¶ 20-22, 442 P.3d 859, 863-864 (June 17, 2019);;;

united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-83026

Can I be forced to indemnify a company for my own claims?

I see some really broad indemnification clauses in EULAs. Here's one from the Tower of Fantasy EULA: You agree to indemnify (in other words, compensate for all and any losses incurred), pay the defense costs of, and hold the Company Parties and their employees, officers, directors, agents, contractors, and other representatives harmless from all claims, demands, actions, losses, liabilities, costs and expenses (including, without limitation, attorneys’ fees, costs, and expert witnesses’ fees) that arise out of or in any way are connected with: (a) your access to or use of the Services; or (b) any claim that, if true, would constitute a breach by you of this EULA. You agree to reimburse us for any payments made or loss suffered by us, whether in a court judgment or settlement, based on any matter covered by this Section 20. As written, this indemnification clause does not explicitly restrict itself to third-party claims, or to claims over something that's the user's fault. If I were to play this video game, almost anything I might want to sue this company over (or go to arbitration over, since there's an arbitration clause too) would be reasonably described as connected with: (a) your access to or use of the Services Even if I'm totally innocent and I'm trying to get compensation for something the company did wrong, anything wrong they did to me would almost certainly be connected to my use of the services. Would that mean the indemnification clause applies? Note that while the line preceding the quoted paragraph, If someone sues us based on your breach of this EULA or your access or use of the Services, you agree to defend us or pay for our defense in that lawsuit. might seem to limit the indemnification clause, that line is not actually part of the EULA. Quoting section 2 of the EULA, You’ll notice that we added some text in italics throughout the EULA to make it easier to read; however, this text is provided for guidance only, and does not form part of the EULA. That line is italicized, so not part of the EULA.

Yes It's a basic principle of contract law that the parties are free to agree to anything they want - unless there is a legal prohibition. So a contract for murder is, at first blush, enforcable - except the law says that you can't contract for illegal things. Similarly, an agreement by you to hold the company harmless for anything they do; even if they do it negligently, recklessly, or intentionally is, at first blush, enforcable. Insurance contracts have this as their essence - the insurance company is indemnifying you even if it was your fault, or more accurately, especially if it's your fault. However, that's not what it says You have left out the preceding paragraph which says: If someone sues us based on your breach of this EULA or your access or use of the Services, you agree to defend us or pay for our defense in that lawsuit. These need to be read together so the indemnity only kicks in when someone sues Tower of Fantasy for something you did.

indemnity,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-74492

Is a defendant allowed to contribute to his defense during trial without arguing pro se?

I have been watching the Kyle Rittenhouse trial. In the deliberation to determine jury instructions, much ado was made about a grainy video purportedly showing Kyle point his gun at Joshua Ziminski. The judge was about to deny the video, but the prosecution was able to argue for approximately an hour about it until eventually the judge allowed it. For most of the argument, the defense said almost nothing and just let it go. A panel of lawyers I was watching commentate on the hearing said it was a critical error and may have blown the case. I'm not saying Kyle had the knowledge to do this, but could another defendant in a similar case realize the moment was critical and step in when his lawyers were dropping the ball?

Your lawyer must act in your best interests; not follow your directions Lawyers are professionals and they are supposed to use professional judgement in how they run a case. While a client can suggest a course of action, the lawyer is not only not obliged to follow it, they would be committing malpractice if they unquestioningly did so. Just like a doctor would be if they unthinkingly implemented a patient suggested treatment plan. A panel of lawyers I was watching commentate on the hearing said it was a critical error and may have blown the case. So, a group of Monday-morning quarterbacks who weren’t chosen and don’t know all the facts would have done it differently? Perhaps it was a mistake. Or, perhaps the lawyer judged that there was nothing he could say that would help and considered that sounding desperate about the video would elevate its import in the minds of the jury.

united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-36862

How do i evict a son who wont work, pays nothing and is 26 years old. I'm the homeowner

My son is 26, he doesn't work. My wife and I are pensioners. We keep him and he doesn't contribute in any way. We own our house. We have reached the end of our patience and help. How do we get him out of the house? If anyone can provide the answer we would be very grateful. We live in the UK. Thank you.

You can always politely ask a person to leave, which could solve your problem. If that doesn't work, you will have to take legal action: you cannot change the locks or force him out (without the risk of a costly lawsuit). In Washington this would probably be the slower ejectment process, since you are not in a landlord-tenant relation. The actual process depends on the laws of your jurisdiction, though it is doable in any US jurisdiction. You probably have to hire an attorney to navigate the process, since an unlawful detainer action would likely be dismissed (that is, you have to file the correct action, not just some action that's in the ballpark).

eviction

law-stackexchange-questions-answers.json

law-stackexchange-qa-60947

Held indefinitely for contempt of court?

Tommy Gregory Thompson is a former deep-sea treasure hunter and is about to mark his fifth year in jail for contempt of court for refusing to disclose the whereabouts of 500 missing coins made from gold found in an historic shipwreck. The normal maximum to hold someone is 18 months, so we are well past that. Can the courts hold someone indefinitely for contempt of court? When would this situation be considered 'cruel and unusual' punishment?

Can the courts hold someone indefinitely for contempt of court? Yes. This is civil contempt which is imposed to compel compliance with a court order that the disobedient person has the ability to comply with, rather than criminal contempt which is limited to a set time period to punish disrespect for the Court in an instance that is over and complete. Often, it is eventually vacated on the grounds of futility (i.e. it is clear that further incarceration will not secure compliance) or mootness (e.g. when a witness refuses to testify in a trial and then the trial is completed). In the case of government officials who refuse to comply to an order directed to them in an official capacity, the government official can be released forthwith by resigning from their official post. Long periods of detention for civil contempt are most common for cases like this where someone refuses to provide the location of something of great value, or in asset protection trust type cases involving millions of dollars worth of assets where the detained person refuses to disclose hidden assets or to take the steps necessary to cause them to be turned over to a creditor or ex-spouse, and the Court has determined that the person detained is capable of doing so. Less often, it is done for quite a long time in cases involving national security secrets. Persons held in civil contempt also have fewer due process protections than persons charged with indirect criminal contempt which is just a procedurally unusual form of crime (direct criminal contempt is even more procedurally unusual and involves less due process, the person held in direct criminal contempt can be jailed or fined for a set period of time summarily by a judge without a hearing for disrespectful conduct in the judge's physical presence with only a brief few seconds opportunity to speak up for himself or herself without a right to counsel in response before being punished). When would this situation be considered 'cruel and unusual' punishment? No. Cruel and unusual punishment applies to punishment for wrongdoing. Civil contempt isn't designed to punish wrongdoing. It is calculated to secure compliance going forward with a lawful court order with which the person incarcerated has the ability to comply. In a case of civil contempt, a fundamental principle is that the person detained, who has refused to comply with a court order that the person has the ability to comply with and does so without lawful justification, "holds the key to the jail" and can be released forthwith upon complying with the Court's order at any time.

contempt-of-court,court,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-22117

Copyright for unauthored articles in The Economist

The Economist is a weekly magazine, where articles are never signed by authors. Is it then enough that the magazine itself is in the public domain? I have come across posts like this one stating that individual articles might be further protected under copyright. But if I do not know the author, how can I know?

...articles are never signed by authors. Is it then enough that the magazine itself is in the public domain? Absolutely not. Even though articles are not signed, they are still copyrighted at moment of being written by whoever wrote them, and upon publication by who the authors are writing for. That's basic copyright law; read https://en.wikipedia.org/wiki/Berne_Convention Further, the magazine's own Terms of Service outlines this: Intellectual Property The contents ... supplied to you in conjunction with the Site and/or a Digital Application (such contents, design and materials being collectively referred to as the "Economist Content"), is copyright of The Economist and its licensors. You may not use or reproduce ... for any reason without written permission from The Economist... http://www.economist.com/legal/terms-of-use

copyright

law-stackexchange-questions-answers.json

law-stackexchange-qa-73117

Can a website terms and conditions change bind: (1) new users immediately, (2) existing users after a contractual notice period?

Assume that my website offers a service requiring registration and payment - i.e. the service is NOT available by just typing the website address in the browser. Considering this service, I'm wondering if it's fine to update my website T&Cs with: immediate effect for new users; 30 day delay for existing users (as stipulated in T&Cs themselves). This would obviously create a period of time when some users are bound by version X and some users are bound by version X+1. I wonder if there are some (consumer?) laws that specifically prohibit such a duality. Some reasons why this may be desirable: price increase for new users without delay; giving access to new features for new users without delay. I also realize there are significant administrative disadvantages to managing this dual state while it lasts. Edit: A (very helpful) answer raised doubt about changing the T&Cs for existing users after the notice period. I should have mentioned: existing users have the option to refuse the change, which would terminate the contract, again, as stipulated in the T&Cs themselves. As far as I'm aware this approach (if existing users refuse, end of contract) is universal for online services. Though this is not the focus of my question: the focus is the legality of the temporary dual state, where some users are on T&Cs version X, and some are on T&Cs version X+1. Thanks!

Can a website terms and conditions change bind: (1) new users immediately, (2) existing users after a contractual notice period? It can bind new users immediately. The matter is more uncertain and/or complex in regard to existing users because, inter alia, a party's unilateral and belated imposition of new terms contravenes a tenet of contract law that the parties enter the terms of an agreement [willfully and] knowingly. With respect to existing users, what you outline is an amendment of contract. All parties to a contract have to agree to an amendment. Otherwise the amendment is not binding. This means that you would have to maintain the old version of your service for as long as a contract with an existing user is in place. If existing users reject the amendment and decline to rescind/void the contract or terminate it early, there is little or nothing you can do (i.e., other than continue performing the contract) lest you opt for [an actionable] breach of contract. Contract law typically leaves room for exceptions on the ground that it is reasonable in the circumstances to do so. Your description is too generic for us to assess whether that would be the case here, though.

contract-law,terms-of-service

law-stackexchange-questions-answers.json

law-stackexchange-qa-21397

Is there a better state for men divorce?

I am currently overseas and will be returning to the state of my choosing soon. I need to get a divorce and don't want to land in a man hating state. I have 3 kids and have been married for 9 years. I'm the higher income earner since she refused to work and since I work from home I do the parenting too. It's important I at least get 50/50 of my kids.

General Considerations While I am not convinced that this question isn't proper for this site, I don't think that, for the most part, it has a clear and simple answer. Also, strictly speaking there is no such thing as a "man-hating state" because de jure distinctions based upon gender in divorce law are constitutionally forbidden. But, that doesn't mean that some states don't have laws that are usually more favorable to a typical man than others. For example, there is meaningful variation between states in the law of maintenance (a.k.a. alimony) that favor the more or the less affluent spouse, although less than you might naively expect. Interstate Differences There are a handful of states that are quite distinctive. For example, in the states where I am licensed, New York State was the last state to have a "no fault" divorce option, which could help you or hurt you depending on the circumstances as judges there still have a mindset that fault matters, and Colorado has some distinctive rules related to presumptive maintenance awards, to non-parental custody claims, and to the treatment of property received by gift, or inheritance or owned prior to the marriage. But, most U.S. states are very similar on most important issues, particularly on matters of child support (where federal welfare regulations create strong incentives for states to have almost uniform laws) and parental rights and responsibilities (where the "best interests of the child" standard is almost universal with only slight differences in case law). Every state now has a "no fault" divorce option (and most completely disregard all forms of marital fault in making their decisions) and most states afford judges in divorce cases very wide discretion on issues of property division and maintenance. There are differences between states regarding the legal standard for dividing property in divorce (some states are "community property" states, some are "quasi-community property" states and some a separate property states each of which have detailed rules that matter in some states). But, it also isn't uncommon, for example, to divide property acquired in a community property state according to the community property rules of the state where the property was acquired rather than the property division rules of the state where the divorce is taking place. The differences tend to be greatest in situations where there is substantial property owned by a spouse that was owned prior to the marriage or was received by gift or inheritance, particularly in a long marriage. There are also some states that have more specific rules governing maintenance awards (a.k.a. alimony), but the majority rule affords a judge immense discretion in making maintenance awards. So, often the tradeoff is not so much between a more favorable regime and a less favorable regime on the merits, but between a more predictable regime and one with a greater range of possible outcomes, even though the outcome in the average case may be very similar. Sometimes very fine details can really matter (often much more than "big picture" issues that are used to classify state divorce law regimes). For example, some states use the economic circumstances of the parties on the date that the divorce is filed to make decisions on property division and maintenance, while others use the date of the divorce hearing. If your family's economic circumstances are in rapid flux, either up or down, that difference could be huge in your particular case. And, incidentally, there is nothing inherently pro-husband or pro-wife about either rule. One rule might favor men with rising fortunes, while another might favor men with falling fortunes. Intrastate Differences Are Mostly More Important Than Interstate Differences For the most part, however, the differences in typical outcomes between particular judges and particular geographic regions within a state are more important than the differences between states. This is also why you should usually ignore anecdotal evidence you hear that is usually specific to a judge in someone's case, rather than having much to do with the law of a particular state. Your mileage will vary. Judges in affluent counties, for example, may be more inclined to think that a higher alimony award is necessary to maintain someone's standard of living, but may also be more sophisticated on average, in understanding assets like ownership interests in closely held businesses or complex financial instruments, that may be unfamiliar to judges in less affluent counties. Divorce cases in counties that are growing rapidly in population typically take longer to process cases than in counties that have stable or declining populations, because the number of judges assigned to a county typically lags behind changes in population, and judges with larger case loads only have so many days a year upon which they can hold hearings. There are some counties in Colorado where you can get a two day divorce hearing six months after the case is filed and others where you can expect a two year wait for a two day divorce hearing, due to differences in local caseloads. Particularly in "best interests of the child" determinations, the outcome is inevitably influenced by the personal life experiences of your particular judge and two different judges in the very same county could easily come up with radically different decisions based upon precisely the same facts. Some of this, on average, is influenced by regional culture. For example, an average judge in rural Alabama may have different ideas about the best interests of the child, than an average judge in Seattle, Washington. But, your case wouldn't be in front of an "average judge", it would be in front of one particular judge. It is entirely possible, for example, that your rural Alabama judge spent most of his life in Seattle, was chosen to serve as a judge because there were no other qualified lawyers who wanted the job in that rural county, and has views about what is in the best interests of a child that are very different from the "average" rural Alabama judge. In general, judges in rural areas are more urban in their sensibilities and more secular in their world views than the general population (per a survey of rural judges I saw in print form and no longer have an easy way to cite). How To Evaluate Your Options As a practical matter, the best approach for someone in your situation is to identify several different particular places you might choose to move (down to the particular county level), and then talk to lawyers in each to evaluate your likely prospects in light of the facts of your particular case. While a lawyer licensed in only one state is generally not forbidden from comparing the law of multiple states by the laws of professional responsibility, the practical reality is that few lawyers have the kind of expertise necessary to do so on a national basis. You might find a lawyer near a state boundary who is knowledgable, for example, about the differences in the divorce laws between New Jersey, New York and Connecticut that are all present in the same metropolitan area. But, there are few lawyers personally qualified to make meaningful and accurate comparisons between, say, Georgia, Maine, North Dakota, Texas and Idaho. Your Attitude Towards The Process Matters Finally, one sentence in your question really sticks out: "I need to get a divorce and don't want to land in a man hating state." So does your statement "It's important I at least get 50/50 of my kids." These sentences reflect a somewhat cynical and self-centered attitude towards divorce law and the divorce process, in general, which is quite common among men contemplating a divorce, and which almost always receives a negative response from judges, no matter which county they serve. If a judge sniffs a hint that you think that the process isn't fair, or if a judge discerns that you care more about what you want than what is best for your kids and fair for your wife, almost every judge in every jurisdiction will burn you. If a judge gets any sense that you have that kind of attitude, you are almost certain to have a worse result in almost all matters in which the judge has any discretion, which is almost all of them in a case like yours. UPDATE July 9, 2019 To Address Additional Sub-Topics: Two areas where there are significant differences in the law between states are how infidelity is treated legally and how marital agreements are treated. Heartbalm Lawsuits One quite important issue in a handful of outlier states is the existence or lack thereof of heart balm lawsuit such as lawsuits for "alienation of affections." These are lawsuits by a spouse against someone having an affair with that spouse (usually as satellite litigation parallel to a divorce). As explained here (with further sources at the link), as of 2010: [I]n fiscal years 2000–2007, there were an average of 230 alienation of affections filings in North Carolina per year — a bit over 0.5% of the number of all divorces. The tort is also recognized in Hawaii, Illinois, Mississippi, New Mexico, South Dakota, and Utah, but it seems to be often litigated only in North Carolina and (to an apparently smaller extent) in Mississippi[.] Prevailing parties have won hundreds of thousands to millions of dollars. These states also frequently allow the consideration of fault in making economic decisions in divorce cases as well (although the "best interests of the child" standard is the norm even in these states). The U.S. Supreme Court has declined to declare these actions unconstitutional on several occasions (usually be simply denying certiorari in cases well suited for addressing the issue). Most other states have abolished these lawsuits, and in Colorado, it is actually a crime to try to file one in its courts or to attempt to secure a settlement of such a case. In a case where infidelity is at issue, this factor can be a very significant one. Choice of law issues (i.e. determining which cases are and are not, for example, subject to the North Carolina alienation of affections tort in various complicated fact patterns with some in state facts and some out of states facts), can be very tricky, however. I am certain that this is still good law in North Carolina and Mississippi, but the status of these lawsuits in other jurisdictions may have changed in the last decade. Criminal Adultery Statutes [In] Virginia, as in 22 other [states] including Massachusetts, adultery remains a criminal act, a vestige of the way US law has anchored legitimate sexual activity within marriage. In most of those states, including New York, adultery is a misdemeanor. But in others — Massachusetts, Idaho, Michigan, Oklahoma, and Wisconsin — it is a felony, though rarely prosecuted. In the armed forces, it can be punished severely, although usually in combination with greater wrongdoing. In nearly all the rest of the industrialized world, adultery is not covered by criminal code. From the Boston Globe crediting the New York Times (November 15, 2012). As of 2019, only 19 states have criminal adultery statutes as several states have repealed this statutes since 2012. In the context of a divorce in a "no fault" divorce state (all states have "no fault" divorce, but some also have a parallel fault based divorce system or allow consideration of fault in economic decision making in the case) where there has been infidelity this creates the tricky situation where the divorce court may not consider adultery in making its decisions, even though that conduct is a crime (and sometimes even a felony) in that state. Generally speaking, these statutes are vary rarely actually prosecuted despite the fact that the "crime" is fairly common and is reported in those states more frequently than you would guess, as a matter of prosecutorial discretion, and generally speaking, it is not possible to prosecute this crime without the approval a prosecuting attorney who is a government official responsible to an elected official, usually a county attorney, district attorney, or state attorney general. But, the mere fact that conduct is a crime can influence how that conduct is treated in a civil case. Pre-Nup and Post-Nup Recognition The are modest differences in the extent to which different states will treat a prenuptial agreement or a post-nuptial marital agreement as valid (and there are also differences in how individual judges evaluate their state's legal standard). In a case where one of these is allegedly present this could be quite significant. For example, in some states, a marital agreement is presumptively invalid or conclusively invalid, if it is not in writing and does not have a certification from an attorney representing each party and other disclosures mandates by statute. In other states, the requirements for a marital agreement are only slightly heightened relative to an ordinary contract between strangers, although most require them to be in writing and screen them for signs of "undue influence" in persuading a "poor spouse" to give up important rights. A few states even honor oral agreements between spouses entered into before or after the marriage, if they are proven with sufficient specificity and convincing enough evidence. No states that I am aware of allow for decisions relating to child custody to be made in a marital agreement, as void because a key party (the child) does not consent to it, and do not allow the grounds for a divorce to be changes except through a "covenant marriage". Most states (but not all) do not allow valid marital agreement to contain rights that depend upon marital fault. States also vary in the extent to which arbitration clauses in marital agreements (such as an agreement to submit a divorce to a Jewish rabbinical forum for arbitration) are honored. There are also choice of law issues with regard to all of these questions. Some states will apply the law of the state where the agreement was allegedly entered into in order to determine its validity, while other states will simply apply forum state law to evaluate that question regardless of where it was executed because the forum state has jurisdiction over the couple and the marriage at the time of the divorce. Neither approach is forbidden by the U.S. Constitution. Covenant Marriage Three states also have what amounts to a marital agreement since it customizes the obligations of marriage called covenant marriage that basically limits divorces to either fault based divorces or "no fault" divorces with much longer waiting periods than usual. Covenant marriage is a legally distinct kind of marriage in three states (Arizona, Arkansas, and Louisiana) of the United States, in which the marrying spouses agree to obtain pre-marital counseling and accept more limited grounds for later seeking divorce (the least strict of which being that the couple lives apart from each other for two years).... Despite the goals of covenant marriage proponents, in the three states with covenant marriage statutes, only an extremely small minority of newlyweds has chosen covenant marriage. In Louisiana, between 2000 and 2010, only about 1 percent of marrying couples chose a covenant marriage, with the other 99 percent choosing to marry under standard marriage laws permitting no-fault divorce. In Arizona, estimates of the rate of covenant marriage among new couples range from 0.25 percent to 1 percent. In Arkansas, a similarly very small number of couples choose covenant marriage. Covenant marriages are not necessarily recognized outside covenant marriage states, making these limitations, in practice, easy to circumvent by moving to a new residence across a state line for a short period of time. This is one of several reasons why they are not popular options for newly marrying couples.

divorce,family-law,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-64643

Can a contract be designed to prohibit an employee from quitting?

Suppose a company were to specify, in a contract, that a candidate is bound to remain an employee, with all the work obligations that come with the role, unless and until one of two things happens: The company terminates the contract in writing, Circumstances entirely outside of the employee's control results in the employee's death. Additionally, they throw in a penalty specifically designed to deter termination - such as now OWING the company money, as opposed to being paid. For example, you quit, and now you have to pay back all of the money we paid you throughout your employment here. Would such a contract be legally enforcible?

No, a penalty clause is illegal, end of story. A contract could include a "liquidated damages" clause – this is how late fees are legal – that if you breach the contract in a certain way, you will compensate the company for the damage that you have done (bookkeeping, interest on money owed) in a standard and reasonable manner. Incidentally, what you describe is slavery, which is illegal throughout the US. The closest you could get is if the company offers a benefit for staying with the company for some period of time, then the employee might forego that benefit if they don't fulfill that aspect of the contract.

colorado

law-stackexchange-questions-answers.json

law-stackexchange-qa-64507

Mask mandate for unvaccinated employees and privacy

Is it legal for an employer such as a public school (in the US) to impose a mask mandate on only unvaccinated employees, or would that be a violation of those employees ADA or HIPPA rights? It seems like an employee could easily claim they are singled out be being required to wear a mask.

ADA is about "disabilities", and not being vaccinated is not a disability under the law. Applicability of HIPAA is very complex and unclear. The Privacy Rule refers to and restricts the actions of Covered Entities. Healthcare providers and insurance companies are Covered Entities. The regulation 45 CFR 160.103 defines "covered entity" as (1) A health plan. (2) A health care clearinghouse. (3) A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter 45 CFR 164.512 lists instances where authorization to disclose is not required, saying that "A covered entity may use or disclose protected health information without the written authorization of the individual". The employer is not likely to be a "covered entity", so these permissions are irrelevant. Furthermore, included in this section is a provision where disclosure is allowed in the case of (v) An employer, about an individual who is a member of the workforce of the employer with various conditions following such as (A) The covered entity is a covered health care provider who provides health care to the individual at the request of the employer: (1) To conduct an evaluation relating to medical surveillance of the workplace; or (2) To evaluate whether the individual has a work-related illness or injury However, these permissions apply to covered entities, not employers. ("Work-related" is not defined, but having a dangerous contagious disease does clearly relate to the workplace, thus it would be reasonable but not guaranteed to consider such a disclosure to be connectable to this section). 45 CFR 164.510 says that A covered entity may use or disclose protected health information, provided that the individual is informed in advance of the use or disclosure and has the opportunity to agree to or prohibit or restrict the use or disclosure, in accordance with the applicable requirements of this section §508, covering required authorization ("explicit yes") says Except as otherwise permitted or required by this subchapter, a covered entity may not use or disclose protected health information without an authorization that is valid under this section. There is no applicable provision whereby the proposed employer policy would clearly expose the employer to legal sanctions, since HIPAA does not purport to regulate everybody, only those entities where Congress authorized it to do so, via the concept of a "covered entity". Furthermore, the employer is not directly revealing any personal medical information: the employee (the other employee) is. A vaccinated employee is allowed to wear a sticker that says "I was vaccinated". An imaginable application of HIPAA to vaccinated employees would be a policy of requiring a vaccinated employee to advertise that they were vaccinated. One can reasonably guess that a person who does not wear a mask, given such a policy, has been vaccinated, but it is not a reasonable inference that a person who wears a mask has not been vaccinated (many vaccinated people continue to wear masks out of an abundance of caution). There is no legal basis for penalizing an employer who allows vaccinated employees to do things that weakly suggest that other employees have not been vaccinated.

covid-19,privacy,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-83445

Under what general conditions can one sue for money from an organization or person?

Under what general conditions can one sue for money from an organization or person? Are there any resources out there that can easily summarize when one can sue? I see that many people sue for settlement or money for many different reasons.

When you have standing, a cause of action, and have suffered loss Standing means you have sufficient connection to the harm that the law will recognize your injury. A cause of action is the legal right you claim was transgressed. Broadly, there needs to be a remedy that lies within the jurisdiction of the court to grant. Monetary remedies are called damages and for most causes of action you need to prove your loss although some have statutory damages and others allow nominal damages.

civil-claims,constitutional-law,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-27789

Similarity between drawing and photograph - What constitutes infringing upon the photographer's copyright/ intellectual property?

I came across a discussion where a photographer attempted to reach out to an online clothing store for using his/her intellectual property without permission. (Pictures below) In my opinion, the photographer is stretching the definition of derivative works in their claim, as the drawing is pretty abstract, and there is no evidence that it was indeed derived from said photograph. Therefore, I'd like to know if the photographer is justified in their claim. I've read this question, but it isn't quite applicable to this scenario, I think.

If the drawing is derived from the photograph it is infringing. If it isn’t derived from the photograph, it isn’t. Fair use/dealing defences may apply and, if the transformation is sufficiently widesweeping it may be considered a new original work.

copyright,intellectual-property

law-stackexchange-questions-answers.json

law-stackexchange-qa-49253

Issues with Changing Legal First Name

Are there any legal problems that could arise in changing my legal first name that I may not consider? For example, I'm a US citizen and how difficult would it be to get my passport and social security card changed? Would this legal first name change affect me negatively in other ways in regards to the law? I'd like to change my legal first name from something like "David" to "Dave". I have good reasons for this; live in Washington State and know the process; and my family has always called me "Dave" (even my parents), never "David". I've also signed many non-government forms (both paper and online) with my "Dave" nickname. Any words of advice from people that have actually changed their legal first names would be appreciated.

If you do this, you should make a list of all your assets, such as a house, car, investment account, or stock certificates. After a while, all your ID cards in your old name will be expired, so you may have trouble selling these assets. Some organizations, like departments of motor vehicles, are allowed to "connect the dots"; if you show them an ID card in your new name and the court order that changed your name, they'll be happy. But organizations, or officials such as notaries public, may believe they're not allowed to "connect the dots" and won't assist you in selling assets in the old name. You could go to a forum that caters to notaries such as Notary Rotary; click the "FORUM" tab and search to see what the perceptions are. So you should be sure to change your name on all your assets while you still have ID in both the new and old name.

name,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-32758

Is there copyright issue in the following condition?

Organisation A conducts exam every year,question paper goes out with student(There is no copyright claim on paper by A). Company B collects them and publishes them with some charge. Now, if company C tries to provide some content which need question papers to be shown, can C use B's product? It is quite difficult for C to assemble those papers by self at present moment.

A owns the copyright in the papers notwithstanding the lack of a notice. Copyright exists from the moment of creation of an artistic or literary work. Both B & C need A's permission to make derivative works (or a fair use defence). In addition, C needs B's permission assuming that the transformation of A's work was substantial enough to create a separable copyright for B.

copyright

law-stackexchange-questions-answers.json

law-stackexchange-qa-35998

Is intentionally advertizing and billing for more service than provided legal if the contract mentions that the quality of service is variable?

Here's the situation. A certain telecom company is advertising a "7 Mb/s" internet connection plan, and the monthly bill shows "7.1 Mb/s" internet service. When measured, connection speed is 3 Mb/s. Called customer service and found out that the contract for the "7 Mb/s" plan specifies that connection speed may vary between 3 and 7 Mb/s, and, what surprised me most, I was told that customers in my area are "allocated 3.3 Mb/s". That is, the allocated bandwidth is fixed at 3.3 Mb/s and doesn't really vary between 3 and 7, and most certainly can never reach the advertised 7 Mb/s. I wonder whether this practice is legal. Can a baker advertise a 7 lbs cake, bill for 7.1 lbs cake, mention in the contract that the actual weight of the cake may vary between 3 and 7 lbs, and fine tune its machinery to always produce 3.3 lbs cakes to be sold as the 7.1 lbs ones? EDIT: After quick googling I found that the same telecom company has been accused of all kinds of deceptive practices and fraud: medium, consumeraffairs, bayleyglasser, dorothyayer.

Assuming everything exactly as in the question, that is probably deceptive advertising. But ads for ISP services, much less contracts for them, tend to be full of exceptions and details, and he exact wording of those will matter here. If there was "fine print" that said the service will often be at 3 Mb/s, that may be enough to make this legal. Also, that each customer was 'allocated" 3.3 Mb/s may well not mean that each customer's connection was fixed at the speed, in fact it is unlikely to. It more likely means that for each 100 customers, bandwidth of 330 Mb/s was available to be shared among them dynamically, with the exact amount a given customer receives varying by demand. if 7.1 Mb/s is the maximum bandwidth ever provided to a customer, the ad may be considered accurate. Legal aid for consumer issues may be available at http://lawhelpca.org/ for those unable to afford a lawyer. For further information this FindLaw page gives section numbers for some key California consumer protection information.

advertisements,contract-law

law-stackexchange-questions-answers.json

law-stackexchange-qa-76881

Is GDPR consent as part of Terms & Conditions valid?

In the terms and conditions of the kite festival consent for use of footage of the audience is written into the Terms & Conditions: 5.c: Ticket Holders consent to being photographed, filmed and sound recorded as an audience without payment, and to their image being exploited in any and all media for any purpose at any time throughout the world by the Promoters who shall own the copyright in all such recordings. If you attend the Event with a child under 16 you give the foregoing your express consent on their behalf. Note that consent is implicit, with no instructions given for withdrawal of consent. From the ICO site: What is valid consent? Consent must be freely given; this means giving people genuine ongoing choice and control over how you use their data. Consent should be obvious and require a positive action to opt in. Consent requests must be prominent, unbundled from other terms and conditions, concise and easy to understand, and user-friendly. Consent must specifically cover the controller’s name, the purposes of the processing and the types of processing activity. Explicit consent must be expressly confirmed in words, rather than by any other positive action. This seems to miss most if not all of these points (note "the Promoters" are not specifically defined in that document, but is "U-Live Portfolio Ltd and any associated promoter(s) of the Event"). Is this legal consent? I assume that if they used the 9.b. right to refuse you entry after you withdrew consent that would be illegal? In the privacy policy they detail the results of withdrawing consent for marketing communications but not for this photography and recording.

Consent in the GDPR sense? No. Consent in the more general sense of “agreement”? Sure. Under the GDPR, consent is only one of many legal bases for processing personal data. Consent requires an unambiguous indication of the data subject's wishes through a clear statement or affirmative action. Thus, consent cannot be “hidden” in another document – it would be ambiguous whether the data subject just wanted to agree to boilerplate terms of service or specifically consent to a particular purpose of processing. Indeed, Art 7(2) GDPR explicitly requires that “the request for consent shall be presented in a manner which is clearly distinguishable from the other matters”. Another legal basis is Art 6(1)(f) legitimate interest. A legitimate interest requires some interest that outweighs the data subject's rights and interests. This balancing test must consider whether the data subject can reasonably expect the processing to occur, given the data subject's relationship with the data controller. I would argue that an event venue does have a legitimate interest to film and photograph events, and that this interest outweighs the data subject's rights and interests at least for larger shots, but not necessarily for close-ups, portraits, etc. The event participants can reasonably expect the audience to be filmed and photographed. Indeed, the linked privacy policy (linked just after the part that you quoted) is very thorough and explains in detail what is happening. The table starting on page 9 describes the purposes of processing, the data being used for that purpose, and the legal basis for that purpose. Here, the relevant entry is: Purpose: Photographs of crowds at our festivals and/or events Type of data: (a) Identity Legal basis: (a) Necessary for our legitimate interests (to capture footage of artists performing at our festivals and events which feature crowd or to record images of our festivals and events for showreel and marketing purposes) This means: they are not asking for consent in the GDPR sense. They are relying on a “legitimate interest” instead. They have to inform you in advance about the processing of personal data – which they evidently did by providing the privacy notice – but they don't have to ask you. So what is that consent about then? The consent you quoted is more about personality rights: you would consent to “being photographed, filmed and sound recorded as an audience without payment, and to [your] image being exploited in any and all media for any purpose at any time throughout the world”. This is essentially a model release.

consent,gdpr,united-kingdom

law-stackexchange-questions-answers.json

law-stackexchange-qa-92229

What does "Household Exception" to the GDPR mean?

GDPR Section 2 Recital 18 (?) reads: Not Applicable to Personal or Household Activities This Regulation does not apply to the processing of personal data by a natural person in the course of a purely personal or household activity and thus with no connection to a professional or commercial activity. Personal or household activities could include correspondence and the holding of addresses, or social networking and online activity undertaken within the context of such activities. What information do we have to determine what counts as "a purely personal or household activity"? Data processing tools available to the individual have become much more powerful in recent years, and it seems this is likely to increase rapidly in the near future. Last year I thought the most powerful tools available to anyone that had the potential to break the GDPR were bellingcat's tools for building personal network graphs from public information such as social media and Companies House. However in the last month open source tools derived from Meta’s LLaMA Large Language Model have improved to the point that they are competitive with the best in the world and Google expects them to eclipse this performance in coming months. For example Vicuna-13B runs on a reasonable gaming computer and when asked "tell me about [FIRST SURNAME] from [INSTITUTION]" will provide a mostly inaccurate paragraph that includes some true personally identifiable information. This works for me and some others who have a web presence such as have published peer reviewed literature but are not in any way famous. They have an online demo that requires no registration, you can try it yourself here. It seems at the very least it would be challenging to justify the use of such a tool under the GDPR. As I understand it all the information within the network is used to answer every question, even if just as far as "do not use this bit of the network". Therefore any use could be classed as the processing of personal data. Therefore if one wanted to download and experiment with such a model the easiest way would be to rely on the Household Activities exception. However it is not totally clear what would and would not be counted. What information could we use to try and determine if such a use was legal, and what the limits would be? Previous Reaserch The ICO has a page on the exceptions but that explicitly does not cover domestic purposes: "This is simply because they are not covered by the UK GDPR". It gives the topic two sentences, the first repeats the law and the second give a couple of examples that are not relevant here. There is a denied FOI request for "any policy, guidance, lines-to-take or other material you hold on the scope of the exemption contained in GDPR art 2(2)(c) and/ or recital 18" with the denial based on this information appearing in guidance including "a final published version". However I cannot find this guidance with either Google or the ICO website search. There is a case from the Netherlands that excludes posting photos of one's child on social media from the household use exception. While this may not directly relate to my question, it does illustrate the the exception can be interpreted quite narrowly. It rather surprised me as posting photos of one's children seems to be quite a big bit of social media.

The household exemption is part of Art 2 GDPR, which lays out the subject matter scope. Clearly, the use of LLMs and other technologies can be GDPR-covered processing of personal data, unless this is done “by a natural person in the course of a purely personal or household activity”. You cited Recital 18, which provides a bit more background, and gives correspondence, keeping addresses, and some social media use as examples of personal or household activities. There is some CJEU case law on the GDPR household exemption. In Lindqvist (C-101/01), the court noted: 47. That exception must therefore be interpreted as relating only to activities which are carried out in the course of private or family life of individuals, which is clearly not the case with the processing of personal data consisting in publication on the internet so that those data are made accessible to an indefinite number of people. That case was about a personal blog about the lives of coworkers. It would likely have been fine for that person to keep a personal diary of those matters, but here the problem was publication to the internet. Since anyone could read it, the blog was not purely personal. A decade later in Rynes (C‑212/13), the court noted that the legislators' use of the word "purely" requires this exception to be interpreted narrowly: 30. The fact that Article 3(2) of Directive 95/46 falls to be narrowly construed has its basis also in the very wording of that provision, under which the directive does not cover the processing of data where the activity in the course of which that processing is carried out is a ‘purely’ personal or household activity, that is to say, not simply a personal or household activity. Such a narrow interpretation is also necessary to maintain the data subject's fundamental rights. Note that Directive 95/46 is the old Data Protection Directive which was replaced by the GDPR. It contains a household exception that is worded virtually identically to the one in the GDPR, so these old CJEU judgments remain directly applicable. They also remain relevant in the UK, as all of this predates Exit Day. To my knowledge there has not been any further guidance on the household exception, neither by the ICO nor by the EDPB. This is also because these data protection agencies do not make law or policy, but merely apply it. It is up to courts to correctly interpret the household exception. In the Dutch case you mention (for GDPRHub has more details and the original judgement is here), the court does not explain why exactly the household exemption wouldn't apply, but the narrow interpretation seems in line with the CJEU case law. I want to highlight in particular that the defendant in that case failed to demonstrate that the personal data in question wasn't accessible to an "indefinite number of people", to borrow the expression from the Lindqvist case. My personal opinion is that this "indefinite number of people" aspect provides the clearest criterion for whether the household exception might apply. If processing activities are not shared at all, or only made available to close friends and family, there's a good chance the exception might apply. In the LLM context, to the degree that their use constitutes processing of personal data, running such models for personal amusement or out of personal curiosity is probably fine. It might also be OK to share such outputs in a closed chat group. But creating them for non-personal purposes (e.g. employment purposes) or disseminating them to the public could cause GDPR to apply. LLMs are far from the only scenario where such difficult questions arise. Another fun topic is the degree to which the use of LinkedIn is GDPR compliant (since no one uses that platform for purely personal purposes), or how large a friend group's Discord server can grow while still counting as "purely personal". If the household exception doesn't apply, this means that data processing activities have to be performed in compliance with the GDPR. This doesn't generally means that they would be illegal. However, the use of AI models does pose some potential challenges: What is the legal basis for training the models? Perhaps there is a legitimate interest for using publicly available data, maybe not. Can an unlawfully trained model still be used lawfully? What is the legal basis for using the models for inference? This will depend massively on the purpose for which the models are used. How does the use of (potentially wrong) AI output interact with the Art 5(1)(d) accuracy principle and the Art 22 restrictions on automated individual decision-making? To which degree are prompts other people's personal data? How does this interact with the legal basis used for inference? Whose personal data is the output?

artificial-intelligence,computer,european-union,gdpr,united-kingdom

law-stackexchange-questions-answers.json

law-stackexchange-qa-5580

Would the structural engineer be liable for this?

Let's say that I have a structural engineer come to my house to determine if I can remove one of the support posts from the basement. He then determines that I don't need both posts as they are so close together. If I remove the post and over time there are issues with the house due to sagging or other structural issues, is the structural engineer liable for damages because he gave me incorrect information? Assume I have his "recommendation" in writing and the damages are clearly from the removal of one of the posts.

If he is a professional engineer, then he is almost certainly (supposed to be) licensed and insured. You could probably recover damages simply by reporting them to his insurer. Also, some states have insurance pools that provide for claims against professionals that they license.

damages,liability

law-stackexchange-questions-answers.json

law-stackexchange-qa-36781

Does statute take precedence over case law (in the US)?

Hypothetical situation: An US court decides a case for which there is no statute nor previous court decision (precedent) which would provide how the case should be decided (resolved). So the court (judge) decides it in own way which the judge believes is "the most fair". This would establish a new precedent (I assume). Then a new legislation (statute) is passed and it provides that the issue (case) shall be resolved (decided) differently. Does this statute take precedence over (overrule) the previous court precedent?

This would establish a new precedent (I assume) You assume correctly. However, a precedent is only binding on lower courts and persuasive on courts at the same level so a trial judge precedent is not very far-reaching. Does this statute takes precedence over (overrules) the previous court precedent? Not exactly. The precedent was good for the old (common) law. Now the law has changed and the old precedent is irrelevant. Courts only interpret the law and legislatures are free to change the law within the limits of their constitutional power. Indeed, a fair number of laws are enacted because the legislature does not agree with how courts are ruling.

case-law,precedent,statutes,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-61638

Who controls access to a rented unit after the tenant dies

Bob lives in a rented apartment. He dies. Bob's sister, Alice (who is the executor of Bob's estate), wants to enter the apartment. The apartment complex refuse to give her access without a court order. The apartment management give access to maintenance personnel. Alice does not want that to happen, as she believes they may damage Bob's property. Who can enter the property here? Who has the right to restrict access from the other?

The lease or rental agreement is probably still in effect. Under that agreement, the landlord or its agents will probably have a right to access for required maintenance and other purposes. The exact circumstances under which they have the right of access will depend on the provisions of the lease or other agreement. If Alice has a key, she should be able to access the apartment without needing the management to do anything. If Alice does not have a key, she would need the management to provide one. They would quite properly want assurance that Alice is in fact the proper person, and not some other relative or some court-appointed administrator. Alice could send notice to the management, asking it to limit maintenance access to Bob's apartment to what is urgent and essential, and warning of possible damage to Bob's property. She could send this both by email and by certified mail, as both of these preserve a record of the communication, and keep a copy of the communication with a note of when it was sent. If lawyer for the esatate has been selected, Alice could ask the lawyer to write also, as the managemetn might pay more attention to that. Meanwhile Alice should attempt to get letters testamentary issued by the probate court as soon as possible. That would give her the legal right of access. This can often be done on a relativity quick basis, depending on the circumstances. It does not need to wait on the full probate process.

ohio,rental-property,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-16328

How does this agreement define 'revenue'?

Microsoft restricts its license of some particular software for organizations with "more than one million US dollars (or the equivalent in other currencies) in annual revenues...." My clients are small business owners, less than 50 employees. I am confident that none of my clients net over a million dollars in profit in any given year, but can I define "revenue" as profit? If a client sells widgets for $5k each, 201 in a year, and makes 2% profit after Costs of Goods Sold, is that $1.005MM revenue, or $20.1k revenue? I don't want someone to give me assurances that I can win against Microsoft in court, but I don't know where to look to confirm my suspicion that revenue has very little legally to do with how much money moves through your account in a given year, but instead how much money you actually make. My suspicion comes from the fact that Microsoft seems to be equating an organization with $1MM in revenue with one that has 250 PCs in use at any given time. Without explicit legal clarification from Microsoft, can I determine how a court would construe this otherwise undefined term?

You cannot define "revenue" as profits. Indeed, you probably can't even deduct cost of goods sold. Revenue is the amount of money that a company brings in from selling goods and services (investment income is arguably more ambiguous, and loan proceeds would clearly not be revenue). In the absence of other indications, a court would probably look the generally accepted accounting practices (GAAP) to define revenue, or perhaps definitions used by the U.S. Small Business Admnistration, or dictionary definitions, in the context of a contract. Whatever "revenue" means, it almost certainly doesn't mean "profits". Revenue makes more sense than profits in any case in this circumstance. They are trying to use a measure that is hard to manipulate, easy to determine from accounting records, easy to estimate in the absence of good record keeping, and that reflects the scale of the enterprise. Revenue is a standard measure of small v. large businesses for many purposes. Profit, in contrast, can be easily manipulated (e.g. through salaries paid to insiders and related party cost of goods sold contracts). Businesses are also much more likely to publicly disclose their revenues (and hence create evidence relevant to the contract) than to disclose their profits.

contract-law,licensing,software

law-stackexchange-questions-answers.json

law-stackexchange-qa-57947

Is this a one of the only ways to legally avoid data privacy laws for payment processing?

Stripe offers a checkout system where there is a stripe hosted page. Here I am redirecting the user to stripe's page for payment. So in that case I am not collecting anything . I am just redirecting to stripe's page. Will link to the following page: https://stripe.com/en-in/privacy and state that we do not selling data from stripe except to required legal authorities under obligation. So basically all information is collected by stripe directly by their data requests must be addressed by stripe. So I am NOT liable right?This is a brilliant service from stripe.

So you’re not collecting payment data. What about all the other data? So you have a user. You direct them to stripe. They come back. How do you know they paid? You have to be collecting some personal data that links the user who left to the user who returned as well as something that links them to the payment. You have to comply with the law for that data.

privacy

law-stackexchange-questions-answers.json

law-stackexchange-qa-48031

What to do when a company charges a credit card on authorized payments that go against regulations, though terms and conditions were agreed on?

In Quebec, a company is not allowed to automatically charge after a free trial period (see section 230c of the consumer protection act), they have to cancel the subscription, then they can ask if the customer wants start a new subscription and pay at the regular rate (this was confirmed with the office of consumer protection). However, in other parts of the country, merchants are allowed to charge automatically after a free trial period. So most companies make the terms and conditions that one agrees on say that the charge will be automatic after the free trial period for most of the country, but make it clear the terms are different for Quebec. Some companies have not done this, and automatically charge people, even though it's not allowed (the terms and conditions go against regulations). People often don't read the terms and assume merchants are following regulations. What does someone do if the terms and conditions were agreed upon, and the company charged automatically after the free trial period, even though they aren't allowed? The company was contacted and they contend that they are following regulations. The office of consumer protection says a formal complaint can be made, where the business could be fined (even having a website in the first place saying one is automatically charged after a free trial is not allowed, unless it states rules are different for Quebec) and should refund the money. If one is curious what businesses do this, searching for online movie services that offer free trials, without special cases for Quebec, probably give good examples.

Make the formal complaint Your question contains the answer. The regulator will investigate and if they decide the law has been broken require the company to repay you (and anyone else affected). The may also take legal action against the company, particularly if the company doesn’t fix the problem. You can also tell your credit card company to reverse the transactions as they were done unlawfully. Or you can take the company to court yourself.

canada,consumer-protection,online,payment,quebec

law-stackexchange-questions-answers.json

law-stackexchange-qa-51407

Licensing an image and artwork

A musician asked me to create his latest album cover off one of my photographs. He's not famous and will only publish his work on a few music websites, so he will use the artwork as a digital file only. I want to grant him the sole rights to do this. In other words he would become the only owner of the photograph and the album artwork created. If, one day, his album would be physically published, ie. as a vinyl, or if he would want to sell products derived from it, we would then discuss a separate license and fee. Do I need separate licenses, 1 for the photograph and 1 for the artwork? What license type would be acceptable for such a use case? Let me know if anything needs to be clarified.

Do I need separate licenses, 1 for the photograph and 1 for the artwork? You don’t “need” 2 licences but given that you haven’t agreed the terms of physical publication it might be more practical. What license type would be acceptable for such a use case? One that sets out the rights and obligations of each party in sufficient detail that disputes are unlikely. On that point, a dispute resolution clause might also be a good idea.

copyright,licensing,music,photography

law-stackexchange-questions-answers.json

law-stackexchange-qa-31173

Identifying corruption in tendering process

Under Indian law, is it allowable for a department (or department head) to bypass the a formal open "request for tender" process, by instead calling limited tender among arbitrary selected venders. Specifically, does this (or is this likely to) violate vigilance rules of central vigilance commission or state vigilance commission, for a state-owned company for generating thermal power? The company has a official public notice published in its website stating that material and services will be procured through e-tender and interested parties must acquire Digital Signature Certificates from authorized agencies for participating in the e-tendering process and in the said notice there is no mention of value range or type of items or services for which e-tendering is exempted and other methods are to be followed.It is also mentioned in the notice that for any unforeseen eventualities interested parties may follow notice in organization website However, in one of this company's power plants, procurement is not handled through the open e-tendering process, but instead tender is only available to vendors arbitrarily selected by an official. Is the "limited tendering" policy described above legal? If not, is it a form of corruption? Could this be evidence of a kickback scheme or other systematic corruption?

Since no one more knowledgeable has posted an answer, here is my best attempt at an answer. I suggest that the OP, or other interested party, treat this as an initial overview rather than a final answer, and do some more research themselves. I hope that the provided links are helpful in that endeavor. Source: Tender Rules from the Indian Central Vigilance Commission (hereafter referred to as "CVC") http://www.cvc.nic.in/guidelines/tender-guidelines Primarily PDF#1: http://www.cvc.nic.in/sites/default/files/011VGL01414022011.pdf PDF#2: http://www.cvc.nic.in/sites/default/files/Transparency%20in%20WorksPurchasesConsultancy%20contracts%20awarded%20on%20nomination%20basis%20–%20reg.pdf Disclaimer: IANAL; I am also not familiar with Indian law or legal system, nor the specific state rules (as the Indian state is not specified). 1. What is the tender process, and what is its purpose? Tender is, in essence, a public quote and public application process for a business to be hired for a job the public sector. It exists for three reasons: 1) Accessibility: New companies should be able to compete with existing companies, and not be shut out due to political and personal connections (or lack thereof). 2) Transparency: The public of a democracy, in general, should know what their money is being spent on, and what actions their government are taking. 3) Accountability: Even in ideal circumstances, decision makers need to weight different factors such as price and safety records. In a democracy, decision makers can be held accountable (directly or indirectly) for their decisions, which means the public should be able to make themselves aware of the factors considered by decision makers. 2. Are the described actions in violation of the CVC guidelines? Is is illegal? It certainly may be a violation of CVC guidelines. One CVC circular (PDF#2) explicitly states that awarding a contract "on nomination basis without adequate justification amounts to a restrictive practice eliminating competition, equity, and fairness", but in that circular at least, fails to describe what constitutes "adequate justification". However, that an action violates CVC guidelines does not necessarily mean that it is illegal. From what I could gather (and this is where I would hope someone more knowledgable than I ), the CVC is an advisory body only, and exists to give guidance and recommendations to lawmakers, at the federal and state levels, and to its state-level counterparts, which may or may not have regulatory authority (and if those counterparts have regulatory authority, then violations of their rules are illegal). 3. Is the described behavior corruption? Possibly, but not necessarily. It certainly could be a corrupt scenario of kickbacks or other forms of graft. However, if multiple (if limited and preselected) vendors are offered a bid, then in my experience the likelihood of corruption drops, as bribes more likely to be payed to secure a job, rather than to secure the ability to bid for a job (barring an endemic corruption problem resulting in a "pay-to-play" environment). More over, the CDC notes(PDF#1) that some projects require iteration and consultation of the technical requirements, and as someone with an engineering degree(disclaimer: software engineering), I would heartily suggest that a electrical generator, and especially a geothermal electrical generator, would be such a project. In such a case, the CDC recommends first reaching out to "knowledgable and experienced" suppliers to find solutions. Indeed, depending on the various requirements, which may include locality (because local governments tend to favor work by companies in their geographic area) and a record of reliability(because some projects have massive consequences if done poorly, such as a electrical generator which if it something goes wrong, fails to give the nearby area power in the best case, and in worse cases can do damage to the electrical grid, which can prevent power from being sent from other working generators, and even cause fires), the limited list of vendors may be the only companies who are eligible to perform the project. TLDR: Its probably against the CVC guidelines, but may or may not be illegal or unethical based on specific facts.

corporate-law,criminal-law,government-contracts,government-officers,india

law-stackexchange-questions-answers.json

law-stackexchange-qa-81606

Do I need a confidentiality waiver (from the parent company I worked at) to work at a spin-off company?

I had a contract and I worked at a company for several months. During this time our project leader negotiated with the parent company and formed his own company (with 2 other team members). Later the parent company publicly announced the creation of the spin-off company. For some members of the team (like me), the transition took more time. We're going to have our contract with the parent company terminated and sign new ones with the new company. Do I need a confidentiality waiver from the parent company? My termination notice reminds me of confidentiality obligations. I asked a lawyer from the parent company about a waiver (or to mention the spin-off company as an exemption) and I was told that the IP rights are already transferred to the spin-off and therefore it doesn't make sense to add that.

Do I need a confidentiality waiver (from the parent company I worked at) to work at a spin-off company? No. What the lawyer told you is right. The confidentiality reminder is pointless when transferring to the spinoff company, since this process is largely a form of restructuring. The confidentiality reminder might be in consideration that the terminated employee could opt to work elsewhere and not in the spinoff company. But even in that scenario the reminder is irrelevant because it does not (and cannot) modify the terms of the contract the employee entered with the parent company.

confidentiality,contract-law

law-stackexchange-questions-answers.json

law-stackexchange-qa-25732

Nuisance-causing passwords or technology at US borders

My question pertains to the somewhat recent emergence/increase of technological searches present at US borders. The premise I am operating under is that, a), while there are limits to this, border agents can demand passwords to phones, laptops or similar devices, and b), you face annoying to potentially serious consequences (being detained, not allowed to enter the US, and/or having your device confiscated for a period of time or indefinitely). I don't have what I would consider sufficient sources for this information (i.e. for documenting what is actually legal*, certainly there are many sources documenting that such events have occurred). *I am aware that the law in this case may change or become more clearly defined, as matters seem to have a degree of fuzziness now. All of that out of the way, consider somebody (a US citizen) crossing the US border who, knowing they might be stopped and asked for their password by border agents, set an unusually long password. Specifically, one occupying several letter-sized pages. When asked for their password, they provide a pre-printed copy of this password (the rationale is that typing such a password would likely take many attempts and be highly irritating, since you cannot see mistakes on most computer login screens - the individual perhaps intends this to be a protest). What, if any, legal consequences could result from doing this? I am aware that there are significant risks of practical consequences resulting from this, such as being detained regardless of law, however, I am interested in the legal aspect. In a different scenario, someone (again a US citizen) chooses to instead infect their computer with malware which is programmed to spread to any connected devices (say, if border agents connect USB devices with forensic tools to collect data). Perhaps this person too thinks of this as a protest. What are the potential legal consequences of doing this? I should specify that while I am somewhat flexible with my language by saying "potential" consequences, an answer merely stating the relevant computer misuse laws for the latter, or failure-to-comply laws for the former isn't exactly what I am looking for - I am interested in an analysis that specifically accounts for the context of these border searches. I have no intention of doing any of these things, nor would I endorse them being done.

As a citizen, you cannot be denied entry into the US, so you can simply refuse to comply with a demand to unlock your phone, or give them the password. They may (temporarily, some number of weeks) confiscate the device until it is determined to not be a problem (whatever the security issue is). They cannot compel you to unlock it or reveal the password, though a court order could have that result. The consequences of having a 400 character long password are probably similar to the consequences of a refusal, save for the court order part: you can be delayed, and it will cost you something (shipping) to get your device back. This ACLU article spells out the difference between what you'd hope for and what is. CBP has a leaflet explaining that you may be searched, some of what their statutory authority is (8 USC 1357, 19 USC 1499,1581,1582). As they say, "failure to provide information to assist CBP or ICE in the copying of information from the electronic device may result in its detention and/or seizure". A more detailed document is here: is it almost 10 years old, so things may have changed. However it indicates that seized devices should normally be returned within 30 days; they should be conducted with the knowledge or presence of the traveler; consent is not necessary. See p. 8 for a bit of discussion of the possibility that it may be impossible or imprudent to get a password from a traveler – they can just copy the storage device. As for leaving a computational booby trap is concerned, that presumes more technical knowledge about how CBP works and what such a trap would be like than I have. Infecting another computer is a crime.

borders,data-protection,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-77981

What will happen if one is caught smuggling something that is not illegal?

For example if someone is caught at some major airport trying to smuggle condoms with talcum powder in his butt, or in a hidden compartment in a suitcase for example Someone might do this with the intention to test the airport security for various reasons, but what I mean is without any permission I know this will vary from country to country, but let's say western Europe or US for example

It should be pointed out that smuggling doesn't just involve illegal goods but also includes legal goods that are brought in without following proper procedures such as paying required duties. https://www.findlaw.com/criminal/criminal-charges/smuggling-and-customs-violations.html False Declarations; Exporting violations; and Importing violations. False declarations can happen when a person returns to the U.S. or enters for the first time. They must declare the value of any goods they are bringing in from overseas. You can violate the law by misrepresenting the value of the goods, omitting them from the declaration form completely, or making false representations. Also, if you fail to disclose leaving or entering the country with $10,000 worth of currency, you can be criminally charged. While I am not a lawyer I could see that the authorities might have an issue with someone pulling a stunt like that in order to "test" them. Even if there is no legal issue the person could be put through a lot while they run tests to confirm that nothing illegal is being brought in and there is nothing preventing them from making the process as long and painful as they can. Something else to consider they also have rules in place for brining other legal objects on board planes if they resemble objects that are not allowed. https://www.tsa.gov/travel/security-screening/whatcanibring/items/toy-guns-and-weapons Squirt guns, Nerf guns, toy swords, or other items that resemble realistic firearms or weapons are prohibited. We recommend emptying water guns, which must follow the 3-1-1 Liquids Rule. Replicas of explosives, such as hand grenades, are prohibited in checked and carry-on baggage. TSA officers have the discretion to prohibit any item through the screening checkpoint if they believe it poses a security threat. It is also possible to be charged with selling fake drugs and the local authorities can bring those charges and it can become their word versus your word about what your intentions are. In this case you might not be intending to sell them but it would be impossible to argue that you are not trying to pass it off as fake drugs. https://www.criminaldefenselawyer.com/legal-advice/criminal-defense/drug-charges/jail-selling-fake-drugs.htm Question: I sold a baggie of aspirins that I said was OxyContin to a guy at a concert. After the show, I heard that there were undercover officers in the crowd. Could I be busted for selling fake drugs? Answer: Yes. States and federal laws make the sale of fake drugs illegal, and you can even be charged with an attempted drug sale under some laws.

criminal-law,customs-law,drugs

law-stackexchange-questions-answers.json

law-stackexchange-qa-42687

Not paying property rent due to unlivable condition

I'm living in an apartment complex in Chicago suburbs. I was paying rent continuously throughout the course of the lease. But it has been 2 months that I'm surrounded with huge number of pests, mostly roaches and ants. I raised it to them now and pest control people come by once in a while and do some treatments. I have all my stuff bundled in a corner, and kitchen is empty. I have hard time sleeping at nights as I'm scared of the roaches coming over my body. I don't want to pay the rent for this last month as the living condition is defined as "unhabitable". I'm not familiar with the specifics of the law, but can I NOT pay the rent? And what is the exact reference to the law?

Many states require an escrow of rent for habitability issues, simply not paying rent can be grounds for eviction proceedings. Illinois has a statute for deducting a repair from rent (765 ILCS 742/5). If it’s less than half the monthly rent and less than $500, a tenant can inform the landlord of the repair required. If the landlord has not provided a repair within 14 days, the tenant can have the repair completed in a workman like manner by someone having the appropriate licenses. In this case, if you’ve notified the landlord and they’ve done nothing, you can have an licensed exterminator come and treat the property. BUT... your lease may override this statute. Many leases include terms that the tenant is responsible for pest control - since often it’s the tenant’s lack of cleanliness that draws pests (not in all cases of course). So definitely review your lease and discuss with someone who is more familiar with IL law. Note that Chicago has its own interesting laws that may add to or contradict IL laws.

breaking-the-lease,illinois,rental-property,residential-lease,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-50934

Are there laws against International student in UK doxxing others in other country

A Chinese international student in the UK doxxing a netizen on Twitter because the netizen have an opposite political standard (don't support PRC) against him. He is going to report this netizen to the Chinese government and may cause that netizens have judicial trouble. Is it illegal or Violate some rules in the UK?

Doxxing (targeted research and broadcasting of personal information) is not regulated as such. Regulated are separate elements that individual doxxing cases may include: hacking, harassment, extortion, defamation etc. He is going to report this netizen to the Chinese government and may cause that netizens have judicial trouble. So, whether the activity in question is illegal depends solely on whether it includes any illegal elements exampled above. Bringing a person to the attention of justice or law enforcement (whether locally or in any other country) is not illegal by itself.

united-kingdom

law-stackexchange-questions-answers.json

law-stackexchange-qa-51030

Is it legal to copy large amount of data peer to peer in Canada

Is it legal to transfer large amounts of encrypted data peer to peer in Canada? I transfer data from my friend PC in another country. The data is encrypted, so nobody can ever know which data it is. An article from 2006 states the following: In Canada, the Copyright Act protects all works and prohibits the confection of copies or the communication to the public without authorization. Thus, as a general rule, Internet file-sharing is illegal. Is it true? Is it about any file-sharing or only for copyrighted works? Does it mean that file-transfer is also illegal because I don't share I copy onto my PC.

Encryption of data is relevant only if your permission from the copyright holder is contingent on the data being encrypted. First, if you did not create the content and it is protected by copyright (generally it is), you have to have permission to copy it. If the rights-holder says "you may copy it or transfer it to X, but only if you use a (particular) secure file transfer protocol", then you can't copy / transfer it unencrypted. But if you hold the copyright, then you can do whatever you want with the content.

canada,copyright,internet

law-stackexchange-questions-answers.json

law-stackexchange-qa-42340

If a security guard wrongly physically stops you, is that assault?

Suppose you are a law-abiding citizen, but a security guard wrongly thinks you stole something from a store. Without warning, the guard physically restrains you. Could you press charges for assault? (United States)

This will vary by state. In Wisconsin, according to state statute 943.50(3) the security guard could be immune from both criminal charges and civil liability for detaining you if they have "reasonable cause for believing" that you stole something, even if they later turn out to be wrong. A... merchant's... security agent who has reasonable cause for believing that a person has violated this section in his or her presence may detain, within or at the merchant's... place of business where the suspected violation took place, the person in a reasonable manner for a reasonable length of time to deliver the person to a peace officer, or to his or her parent or guardian in the case of a minor. The detained person must be promptly informed of the purpose for the detention and be permitted to make phone calls, but he or she shall not be interrogated or searched against his or her will before the arrival of a peace officer who may conduct a lawful interrogation of the accused person. The... merchant's... security agent may release the detained person before the arrival of a peace officer or parent or guardian. Any... merchant's... security agent who acts in good faith in any act authorized under this section is immune from civil or criminal liability for those acts.

assault,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-80046

Is each version of a software considered a "derivative work"?

Originally asked in Software Engineering but a user raised it is more a legal question than an engineering one. Let's suppose there is a software at version a1 in code repository A on an online code hosting website. Let's suppose the original author updated it and made a version a2, then a3. Another person comes along, forked a1 to another code repository B, then modified it resulting their own b2, then modified b2 again and resulted in b3. All versions are available online - a1, a2, b2 are available in the code commit history, and a3, b3 are available on the home page. a1 -- a2 -- a3 `-- b2 -- b3 Question: how many derivative works of the software exist in this scenario? My initial instinct is one, because there is the original code repository A, and a forked-and-modified repository B which is the derivative work. But I realized the answer might be four (that is, a2, a3, b2, b3 all count as derivative works of the original code -- but not sure), given that in the copyright law (using US copyright law as an example): A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. The definition given in the Apache 2.0 license is more direct: "Derivative Works" shall mean any work, whether in Source or Object form, that is based on (or derived from) the Work and for which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship. I think a key point a software is different from a book/painting/movie is that software is very much a "live" thing - that is, software is constantly being updated after being "published". Especially, each small iteration (commit) of an open source project is accessible publicly, instead of periodically being made public after accumulating a few months' works behind the scene.

Four Yes, each version is a derivative work, as mentioned in https://www.copyright.gov/circs/circ14.pdf The following are examples of the many different types of derivative works: ... A new version of an existing computer program

copyright,derivative-work,open-source-software,software

law-stackexchange-questions-answers.json

law-stackexchange-qa-22949

Do judges in Massachusetts always have original jurisdiction even in "trials by jury"?

How exactly does the law work with regards to the powers and privileges of juries. For example, in Massachusetts the law (General Laws Part III Title I Chapter 214) reads: The supreme judicial court, upon request of a party to a civil action in which equitable relief is sought, may frame issues of fact to be tried by a jury and order the same to be tried in that court or in the superior court in the county in which such cause is pending, or upon the request of all parties in any other county. Which gives the impression that trial is by jury and the jury has the full power over the trial. However, if we read General Laws Part III Title I Chapter 218 19B, we find something different, at least for district courts: (c) The justice presiding over a jury of 6 session shall have and exercise all powers and duties which a justice sitting in the superior court department has and may exercise in the trial and disposition of civil cases including the power to report questions of law to the appeals court. Trials by juries of 6 shall proceed in accordance with the law applicable to trials by jury in the superior court;... So, now all of a sudden, we have a "justice" that has some kind of power, but that power is undefined except that is the "same" as the power of a superior court justice. If we then refer to the conduct of the superior court, it reads ( General Laws Part III Title I Chapter 212 Section 2): The court shall be held by one of the justices, and when so held shall have and exercise all the power and jurisdiction committed to said court. The chief justice shall make such assignments for the attendance of a justice at the several times and places appointed for holding the court as will be most convenient and as will insure the prompt performance of its duties. So, here it says the court is held by the justice, not by the jury. If we then refer to the "powers" of the Superior Court, it reads in part as follows ( General Laws Part III Title I Chapter 213 Section 3: Rules; power to make and promulgate): The courts shall, respectively, make and promulgate uniform codes of rules, consistent with law, for ... Second, Prescribing the terms upon which amendments will be allowed or unnecessary counts and statements stricken from the record; discouraging negligence and deceit; preventing delay; securing parties from being misled; placing the party not in fault as nearly as possible in the condition in which he would have been if no mistake had been made; distinguishing between form and substance; and substituting fixed and certain requirements for the discretion of the court. Third, Conducting trials. Fourth, Presenting distinctly the questions to be tried by the jury. Fifth, Giving a party such notice of the evidence which is intended to be offered by the adverse party as will prevent surprise and enable him to prepare for trial. Sixth, Prescribing such forms of verdicts as will place upon record the finding of the jury. So, by this Superior Court apparently can boss around the jury however it likes, so long as it is according to "rules" (not laws) which it must "promulgate". So, my question is, if we are not dealing in law anymore but in "rules" concocted by the Superior Court: (a) where are these "rules"? (at least in the case of Massachusetts) (b) since the original jurisdiction seems to be vested in a "justice" not a jury, should I consider the statements concerning "trial by jury" to be just mistatements and that the jury does not have original jurisdiction in Massachusetts in any court, but that it is always the judge that has original jurisdiction?

The statutes you are referring to involve a very unusual set of circumstances which probably almost never actually happen. The material you cite involves cases in which a lawsuit is filed directly in the court of last resort in Massachusetts which is the state analog to the U.S. Supreme Court for the state court system, because it is part of that court's extraordinary original jurisdiction as opposed to its usual appellate jurisdiction. For example, it is probably applicable in cases of attorney discipline for misconduct. What it basically says is that the chief justice of the highest court in Massachusetts, when it has a case in its original jurisdiction in which a jury trial is appropriate, can designate one of that court's judges (a "justice" is simply a judge who serves on the state's highest court) to serve as a trial judge in the case within the original jurisdiction of the highest court, in more or less the same manner as an ordinary trial court judge would in a civil jury trial. The only difference between an ordinary civil jury trial in a trial court, and a civil jury trial conducted in a case where the highest court has jurisdiction, is that the justice presiding over the jury in the original jurisdiction case can refer any legal issues that come up immediately to the entire panel of the highest court in the state rather than making those decisions personally subject to judicial review by an appellate court. The rules in question are the ordinary rules of civil procedure and evidence governing matters such as pre-trial dispositive motions, discovery, "half-time" motions to dismiss or for directed verdicts, post-trial motion rules, etc. In a nutshell, those rules defer the final verdict to the jury except in cases in which "no reasonable jury" could rule correctly in any other manner if it is correctly applying the law to the undisputed facts (pre-trial) or the facts presented so far at trial (during or after trial). There are also probably some "local rules" in each court addressing issues such as the mailing address and operating hours of the court, the way that hearing dates are scheduled, the process by which motions are considered, the duty if any of parties to confer with each other or engaged in ADR, mandatory pre-trial disclosure obligations, civil cover sheets for new cases, standard deadlines to finish tasks that don't have deadlines in the general application civil rules, preferred forms for certain kinds of motions and orders such as entries of appearance, etc. The jury's role is always the same - show up, be selected and sworn in, listen to the opening and closing arguments and the evidence that the judge admits under the rules of evidence, listen to the jury instructions from the judge, deliberate and render a verdict based upon that deliberation in a manner set forth on a jury verdict form that the jury is provided with by the judge, they do this for sub-minimum wage jury fees, a few free meals, and maybe a parking or transit voucher.

civil-procedure,jury,massachusetts

law-stackexchange-questions-answers.json

law-stackexchange-qa-91480

How "risky" it is if I lose my passport? Will police investigate how I lost it?

I have some stamps on my passport that are not really good, and I don't want any of my family members to see it. Now, if I lose my passport somehow, and apply for a new passport, would I get a clean passport, without any travel history on it? Would police investigate if passport is actually lost, or is it carelessness or other reason for its loss? Any other thing I should worry about if I take this route?

Losing your passport is fine, happens all the time But that’s not what you are talking about, is it? You’re intending to deliberately destroy it. While destroying a passport is not a specific offence under the Act or the Rules, your proposed course of action is still illegal. The passport doesn’t belong to you. It belongs to India and deliberately destroying other people’s stuff is illegal. To get a new passport you would necessarily be lying and giving false information on a passport application is an offence. Of course, one wonders why your family are looking at your passport; just don’t show it to them.

india,indian-penal-code

law-stackexchange-questions-answers.json

law-stackexchange-qa-21424

America's Cup boat model

We would like to build a model of one of the America's Cup team boats (team NZ-winner). Like the attached image. My question is about all the trademarks on the boats. Will it be possible to replicate the boat with all trademarks for commercial purposes?(selling the model boats) We are interested in selling in New Zealand first. Can you help me what to do in order to make this?

You will run directly into both copyright and trademark law. The only way for this to be legal is if you have permission – a licence fee would probably be involved.

copyright,licensing,new-zealand,trademark

law-stackexchange-questions-answers.json

law-stackexchange-qa-49791

Dual citizenship and different legal gender?

Is there any information on any prevailing or official policy on people with dual citizenship, where the legal gender is different in the two countries? Is there any information available on what the policy is in different countries? The reason I'm asking is that my wife is a Thai citizen, but will live in Sweden and eventually become a Swedish citizen. She was born male, but lives as a woman and has gone through gender reassignment surgery (at a certified clinic, with all paperwork in order). In Thailand it is not possible to change one's legal gender (ie in official records and documents, like passport), but it is possible to do that in Sweden. If someone has information regarding the policy in these specific countries, that is of course very welcome. But I am also interested in general information about the policy in other countries. I have not found much online, and nothing of any official standpoint or law text. And official policies aside, can you think of any strong arguments against doing this, ie having dual citizenship and different legal gender? In what situations could this become a problem? And is there anything one could do to mitigate some of these problems? One problem I can think of is when traveling, as this article focus on.

Your wife wants Swedish citizenship with female gender. Having "female gender" will be much much more important than having the same gender in two passports. Most countries want to see one passport. They will check one passport, and only one passport, and check if there is anything suspicious or unusual about the passport. There's nothing unusual about your wife having a Swedish + female passport. It would be unusual for your female looking wife to have a Thai + male passport. Or a Swedish + male passport. So she can show her Swedish passport and should have no problems. (In the situation described in the linked article, your wife would have been fine with her Swedish + female passport, but not with Thai + male, and quite possibly not with two passports).

dual-citizenship,passport,transgender

law-stackexchange-questions-answers.json

law-stackexchange-qa-51944

NON-COMPETE inside a small country, inside a small profitable market

I have received a Consulting Agreement in the middle of a project. I live in Cambodia. The NON-COMPETE clause in question During the Term of this Agreement and 05 (five) year thereafter, the Consultant shall not engage, directly or indirectly, in any capacity, to be in any competition in the Client or any of its subsidiaries, including any company engaged in the business which is in competition with the Company's business. Clarifications from comments @Greendrake Need clarity as to which party is Client and which one is Company. Are they the same thing? Which one do you work for? Company refers to the CEO and his company. I have read the whole contract and "Client" only appears once in that NON-COMPETE. My Questions The market is small for the services I provide. Only banks are willing to pay for the services. Would this clause prohibit me for offering this service to anyone outside the current company I'm working with? The CEO, with his lawyer have tried to convince me that this only apply to current client and any past clients that I have work on. Is this true? If I start my own company, this would also apply to me right? Even if I start a company that provide online courses and don't offer services, this will still apply? Would this make it impossible for me to take any job from any company in the country that provide this service? From your view, how fair is this? Should I expect the CEO to offer a fair contract or is this something you read and negotiate? (This service has nothing todo with legal matters and I'm not expected to be good in legal matters) Country size: around 15 million people market: Only the capital, with less than 50 clients.

The CEO, with his lawyer have tried to convince me that this only apply to current client and any past clients that I have work on. Is this true? No. It will be true only if they make that clarification in the clause or a properly added amendment. The clause currently has no indication that it is limited to "current client and any past clients that [you] have work[ed] on". The CEO's & lawyer's refusal to amend the clause so as to make it consistent with their attempts [to persuade you] would be a red flag. Their inconsistent representations to you suggest that they are not planning to honor the covenant of good faith on which all contracts are premised. Should I expect the CEO to offer a fair contract or is this something you read and negotiate? You should require a contract that seems fair to you. And by "to you" I mean that it has to be in line with your expectations regardless of the average conditions in the labor market. Negotiations are not binding. They are merely a preamble to a contract, and that contract is binding. This is why you should reject a contract that falls short of your requirements. Some clauses are unlawful and/or void and unenforceable as unconscionable or for contravening legislation (unlawful clauses can and do arise even if drafted by attorneys). Thus, although you might not have to worry about those clauses in particular, the company's mere attempt to include them in a contract should alert you of the high risk of ending up with other abusive terms & conditions which are binding and enforceable nonetheless.

non-compete

law-stackexchange-questions-answers.json

law-stackexchange-qa-51491

What's the license of a license?

If I were to take license texts of publicy available licenses, such as the WTFPL, to add some paragraphs and create my own license, which I then ship with content created by me, would that be legal? What about AGB's for example? I'm sure companies put a lot of work/money in form of lawyers into writing the terms, and often it can't be prevented to make them open source. Three options seem to be plausible to me: (a) license not yet specified and anything possible (b) public domain (c) same license as the license if a license. (Initially intended to include the here used CC BY-SA 4.0, but after some additional search I found out that all CC licenses are itself licensed public domain. The question remains for the WTFPL for example, which is clearly copyrighted but without a license for the license given. Could use of the text be revoked / sued?)

Whenever there is a license to share things, the license creator wants the license to be widely used, but absolutely does not want slightly different licenses that could be used to trick people, or that just cause legal problems when used. Normal copyright law applies. And for the reasons above, the GPL license as an example allows you to copy the license verbatim but absolutely doesn’t allow you to make any modifications other than changing who is the person licensing a work. I would be curious what happens legally if someone licenses something with a sneakily modified copy of the GPL and then makes claims against a licensee who assumed it was the original GPL.

licensing

law-stackexchange-questions-answers.json

law-stackexchange-qa-16317

Can Trump use executive order to lower the Medicare age?

I was reading this opinion piece about the new Trump presidency and healthcare legislation. They mention an interesting thought at the end: it if Trump decided to ... lowering the age-limit for Medicare to zero by executive order. The question is simple: would this be legal? Once Trump is inaugurated, can he create "Medicare for all" with the stroke of a pen?

No. The scope of Medicare is established by statute which must be amended with a statute approved by Congress and signed by the President, or approved after being vetoed by the President with a veto override, to be changed. The age limitation is set forth at 42 U.S.C. 1395c: The insurance program for which entitlement is established by sections 226 and 226A provides basic protection against the costs of hospital, related post-hospital, home health services, and hospice care in accordance with this part for (1) individuals who are age 65 or over and are eligible for retirement benefits under title II of this Act (or would be eligible for such benefits if certain government employment were covered employment under such title) or under the railroad retirement system, (2) individuals under age 65 who have been entitled for not less than 24 months to benefits under title II of this Act (or would have been so entitled to such benefits if certain government employment were covered employment under such title) or under the railroad retirement system on the basis of a disability, and (3) certain individuals who do not meet the conditions specified in either clause (1) or (2) but who are medically determined to have end stage renal disease. Also, money doesn't grow on trees. The only way to provide that greatly expanded single payer health care benefit would be to raise hundreds of millions of dollars or more of new taxes to pay for it. Any new tax would have to be proposed with a bill initiated in the House of Representatives, approved by the Senate, and then passed by the President (or approved over his veto with a veto override). Likewise, the increased appropriation of funds for the benefits would have to be approved by Congress, even though it is an entitlement, because current legislation doesn't authorize spending for that purpose.

constitutional-law,executive,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-68035

Dutch Portrait rights for persona

I'm no lawyer, so the following is to the best of my understanding. In Dutch copyright law there's the notion of portrait rights. This law specifies certain restrictions for the author of a photo/drawing/painting/sculpture/etc and rights for the person in the art piece. For this to count as a portrait, it says that it doesn't necessarily need to show the face. It is enough if the person is recognizable, for instance from other body features, iconic clothing or posture. I was wondering, with the internet being a thing, if this recognizability requirement extends to alter-egos/personas/main oc/etc. They and their likeness and character traits are a recognizable characteristic of the person behind that persona. For example, if you have an account on a certain website (say YouTube or DeviantART) where you always represent yourself with a certain character (for avatars, emoticons, profile pictures, etc), instead your own photo. This character is uniquely used as an identifiable character by you (so not something like a character from a movie or a game). You then commission someone to make a drawing of this character for yourself. Do portrait rights apply in this case?

I am not sure about the scope of "Portrait Rights" under Dutch law. But the original avatar or character image would presumably be protected by copyright, in which case the commissioned work would be a derivative work, and so subject to approval by the holder of the original copyright. In any case, since this is a commission, the artist and client should have a contract in which they agree on what rights the client is purchasing, which would be a cleaner way of dealing with the matter. Only if there was no such contract would there be a need to fall back on the Portrait Rights.

authorship,copyright,netherlands,privacy

law-stackexchange-questions-answers.json

law-stackexchange-qa-88126

Computer Fraud and Abuse Act statute of limitations

I was looking into the criminal law application of the Computer Fraud and Abuse Act in the United States of America. Since, to the best of my knowledge, it is a Federal crime the statute of limitations is usually five years, however I know individual Acts can set their own time-bars. Could somebody confirm what the statute of limitations is, and anything which would stop the clock from counting down?

Unless stated otherwise in law, the Statute of Limitations for filing of criminal charges is 5 years from the date of the actions charged, although where specified in law, it can be extended for a predefined time based on the crime and the entity committing a crime. Major Fraud ($1,000,000+) will be extended to 7 years if committed by anyone who is not committing the crime at the behest of a Bank (if you are, this will be extended to 10 years) AND the victim of the fraud is the United States Government. Additionally, if charges are dismissed in court for reasons unrelated to the statute of limitations, the court may grant a sixth month extension from the date of the statute of limitations to refile charges, and may grant an extension at the court's discretion if evidence is in a foreign nation. All if the crime occurs over multiple dates, the date of the last action in the charge will be the start of the Statute of Limitations. The Federal Government has no statute of limitation for any crime if it is a Capital offense, a terrorist charge, or a sexual offense against a child. At a state level, this will depend on the states in question. Source.

common-law,computer,criminal-law,statute-of-limitations,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-6742

Of a judgment, how do 'substantive merits' differ from 'formal qualities'?

Source: pp 108-109, Is Eating People Wrong? Great Legal Cases and How They Shaped the World (2011) by Allan C. Hutchinson [...] For example, the difference between Plessy and Brown has nothing to do with their legal integrity as a matter of constitutional doctrine. It has everything to do with the changing currents and concerns in the contemporary political context. Plessy’s separate-but-equal dogma ceased to be a fixed point on the constitutional compass because it no longer enjoyed sufficient political confidence and public support, at least among the elite. When Justice Harlan in 1896 predicted in his dissent that the Plessy judgment “will, in time, prove to be quite as pernicious as the decision in Dred Scott,” he was talking about its substantive merits as a political outcome, not its formal qualities as a legal judgment. And he was correct. I do not understand the distinction by the bolded: What are the differences between substantive merits as a political outcome vs formal qualities as a legal judgment? I do know of the distinction between law and politics; some judgments reflect judges' political opinions than real law.

The Common Law is not just the interpretation of the law by the courts in their judgements; it is also a creature of the society in which it lives. A judge is bound by precedent and following that precedent leads to "its formal qualities as a legal judgement". However, if the precedent that must be followed was established in, say 1816, applying it to facts in 2016 may lead to an unjust outcome; post-Napoleonic ideas of justice do not always mesh with early 21st century ideas of justice. The judgement may be flawed in its "substantive merits as a political outcome" i.e. the punter's won't stand for it. Remember that a court can always overturn a precedent set by an equivalent level or lower court so at this level, they have to decide if the precedent should be overturned to match current community notions of justice. For example, in the Australian Capital Territory it was recently decided that the precedent that an intoxicated person could not be criminally liable was not in line with community expectations and was overturned; creating a new precedent. Courts are cautious about doing this because justice is only one of the functions of the legal system; certainty is another and if you change precedents willy-nilly to give justice you reduce certainty. A judge in a position where they must follow precedent has 3 options: He can follow the law and the losing party can appeal because the judgement is self-evidently wrong in providing justice - it will make its way up the chain of appeals until it reaches a level where the precedent can be overturned. He can follow justice, the losing party can appeal because the judgement is self-evidently wrong in the law - it will make its way up the chain of appeals until it reaches a level where the precedent can be overturned. He can kick it - basically say that whatever judgement he makes will be appealed so it should be moved to a court that can consider and perhaps overturn the precedent before everyone goes to the time and expense of arguing the facts.

jurisprudence,us-supreme-court

law-stackexchange-questions-answers.json

law-stackexchange-qa-91304

Is willingly and knowingly touching a person in public without a good reason harassment?

Hypothetical Situation Person A: A person with autism. Person B: A person shooting videos for social media making fun of unsuspecting people like person A. Person A is enjoying a meal in a restaurant. They're sitting at a table, not in the way of people that need to pass through. Person B sneaks behind person A and tabs person A on the shoulder while trying to keep their presence hidden. Person A gets a sensory input overload due to their autism. The authorities are involved to deal with the situation. Person A wants the authorities to write a report as person A intends to sue person B for harassment. Question Does person A have a case in this specific situation? Reason for asking This is an ongoing discussion between a few people, yet none of us have the required legal knowledge to get to a conclusion. Searching up the definition of Harassment didn't help much either: "Harassment is unwelcome conduct that is based on race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, older age (beginning at age 40), disability, or genetic information (including family medical history)." Autism is a disability and touching would be unwelcome conduct. However, person A doesn't know person B suffers for this disability, yet also has no reasonable reason to touch person B as it's just for their own entertainment.

new-south-wales No it's not harassment State and territory laws criminalise stalking. These offences often target behaviour amounting to harassment There are also state and territory offences that capture harassment at work, in family or domestic contexts, and in schools and other educational institutions. "Harassment" requires a pattern of behaviour which is missing from your example. It's probably the tort of battery A battery is a voluntary and positive act, done with the intention of causing contact with another, that directly causes that contact: Barker et al at p 36. See Carter v Walker (2010) 32 VR 1 at [215] for a summary of the definition of “battery”. The requisite intention for battery is simply this: the defendant must have intended the consequence of the contact with the plaintiff. The defendant need not know the contact is unlawful. He or she need not intend to cause harm or damage as a result of the contact. The modern position, however, is that hostile intent or angry state of mind are not necessary to establish battery: Rixon v Star City Pty Ltd, above, at [52]. It is for that reason that a medical procedure carried out without the patient’s consent may be a battery. On the other hand, it is not every contact that will be taken to be a battery. People come into physical contact on a daily basis. For example it is impossible to avoid contact with other persons in a crowded train or at a popular sporting or concert event. The inevitable “jostling” that occurs in these incidents in every day life is simply not actionable as a battery: Rixon at [53]–[54]; Colins v Wilcock [1984] 3 All ER 374 per Robert Goff LJ.

harassment

law-stackexchange-questions-answers.json

law-stackexchange-qa-2319

Right of return for already replaced goods

Around 9 months ago I purchased a product, a pair of headphones, in the UK directly from the manufacturer. After 5 months, this product became defective, and was exchanged for another identical product. Upon exchange, I was provided with a new order number and confirmation email for the new product. Now, another 4 months later, the new replacement product has developed another defect, and I'd like to return it again. I have read that, per the Sale of Goods Act 1979, I should be able to get the goods replaced if it was less than 6 months from when I purchased them, but, legally, is the date of purchase for the replaced product 9 months ago when I made the initial purchase, or 4 months ago when I received another order confirmation for the brand new replacement goods? I'm inclined to believe that the date of purchase would be the date on which I paid for the goods, but then the second order confirmation from 4 months ago makes me wonder if I might have a case. Either way, I'm aware that a £60 pair of headphones won't be a major loss, but after hours of frustration with customer support I'm genuinely interested to know just what my rights are here! Thanks in anticipation!

If you wait until 1 October 2015 the Consumer Rights Act 2015 will come into force; I have had a brief look at the regulation and it appears that it will cover contracts that are "on hand" when it does. Under that your rights are very clear: you are entitled to a replacement, if the replacement becomes defective you are entitled to another replacement or a refund at your discretion.

business,consumer-protection

law-stackexchange-questions-answers.json

law-stackexchange-qa-18678

Seizure Without a Warrant

Can the police in California seize your car (i.e. tow it from where it's parked) without a warrant?

This is allowed under the police's "community caretaking" function. See South Dakota v. Opperman 428 U.S. 364 (1976): To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic control activities. Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.

california,property,search-and-seizure

law-stackexchange-questions-answers.json

law-stackexchange-qa-80270

Does an employee have any responsibility to protect company assets?

I work in a store. A customer made a purchase. But had another bottle in his hand that he didn't put on the counter for me to scan. I asked if he had already paid for it. He tried to pick a fight saying I'm accusing him of theft and he wants to fight me outside. He held up the line and disrupted other customers. I told management about the incident and they didn't care. I asked if we could review the surveillance video to get a picture of the guy, they said no. There were 2 of us scheduled to work at the time, though my coworker was doing work in another room. Was the employer negligent in this example? As an employee, is it ever implied that a certain amount of effort goes into safeguarding the assets of the employer? I get that I wasn't hired as security, but asking if he remembered to pay seemed like my job. As an extreme example, if someone I don't recognize walks in, grabs the laptop and walks out, would an employee be negligent if they sat their watching, did nothing and didn't report it?

Does an employee have any responsibility to protect company assets? Yes. An employee is an agent of their employer and they are obliged to act in the best interests of their employer. It is not in their interest to have their stuff stolen or damaged. However, it is also not in their interests to have their employees damaged - that leads to lost productivity, workers compensation payments, negligence suits, and, worst of all, paperwork. Was the employer negligent in this example? No. Because only the employer was damaged. To be negligent, you have to damage someone else. Cutting off your own finger is careless: it has to be someone else’s finger to (possibly) be negligent. In any event, businesses that deal with products expect and allow for a certain amount of “wastage”: things that get lost, stolen, spoilt, or damaged. Most take efforts to reduce it but at a certain point, the cost of further reduction is more than the amount saved. However, your employer is doing things that might expose them to a lot of liability. As an employee, is it ever implied that a certain amount of effort goes into safeguarding the assets of the employer? Yes, but for an employer it is extremely unwise to make this implicit rather than explicit. A prudent employer should have given you specific training in what to do if you suspect shoplifting. This should include what actually constitutes reasonable suspicion, whether to engage with the suspect or just let it slide, what to say and how to say it, and how to deescalate an inflammatory situation. Consider: what if the customer had just decided to break your nose then and there (or worse, if you had broken his). The employer is responsible for that and it will cost a lot more than a bottle of most things sold in a store - even perfume is only a few hundred dollars at most. For a soft drink or a beer? That’s not even a rounding error.

british-columbia,canada,employment

law-stackexchange-questions-answers.json

law-stackexchange-qa-7760

Soliciting a Criminal Action

If I approach a person and offer to pay them to assault a third party and the assault took place, I assume that I would be guilty of some crime myself. If, however, I approach a person and offer to pay their legal fees if they assault a third party, but not pay for the assault itself, would I also be guilty of a crime ??

In both cases these are Inchoate offenses there are a whole bunch of common law offences you could be charged with depending on the specific facts, including: being an Accessory or Criminal Facilitator to Assault Attempted Assault Compounding Assault Conspiracy to commit Assault. Solicitation of Assault Many of these common law offences have been abolished in many jurisdictions but where this is so, they have been replaced with similar statutory offences. It doesn't matter if you agree to pay for the assault or to indemnify the person for their legal costs: you are offering something of value in return for a criminal act.

criminal-law

law-stackexchange-questions-answers.json

law-stackexchange-qa-973

Can I be sued for posting a night picture of the Eiffel Tower under CC-BY-SA?

I am an American tourist visiting France, and take a picture of the Eiffel Tower at night, the tower being the main and central subject of the picture. Going back to the US, I upload this picture to my website under a CC-BY-SA license. Can I be sued for infringing the copyright of the Eiffel Tower's lighting design?

Yes. Your work is a derivative from the Eiffel lightning so you could be sued (the Société d’Exploitation de la Tour Eiffel may not be too interested in prosecuting you at a foreign country, and thus you might get away with it, but they certainly can). You can license your copyright in the photo, but their copyright still remain, so the full photo cannot be used as CC-BY-SA unless they also licensed their piece or until it expires. Depending of the contents of the photo you could claim that it is Fair Use (applicable to using the photo on your website, not to your claim that the photo is CC-BY-SA) or de minimis (if the eiffel tower was not the main focus, you should take into account the how it is interpretated in US and France). You seem to think that by publishing from US you don't need to care about French copyright but that's not the case, since both are signers of the Berne Convention. However, a possible outcome of being sued in the US and winning might be that court ruled that the Eiffel lightining is not really copyrightable.

france,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-33362

In a disclaimer of liability, does the order of sentences matter?

Supposing that a "disclaimer of liability" is phrased in such a way that the meanings of sentences are independent of each other - would the order of presentation of the sentences have any impact on its legal standing as a document? For example, given the disclaimer here, I produce a few permutations here , here , and here. Are all the permutations equivalent in terms of legal meaning?

Yes they are equivalent. However, the particular disclaimers breach consumer protection law in many parts of the world and may actually be punishable with a fine.

disclaimers,liability

law-stackexchange-questions-answers.json

law-stackexchange-qa-51842

How to encourage landlord to fix retaining wall

I am located in Colorado, USA. We own a house that has a rented home behind it. There is a retaining wall between the two properties. We have checked on the county assessor's website and the retaining wall is entirely on their side of the property line, and the neighboring property is lower and was excavated to be level, creating the need for the retaining wall. Based on all of that, it is my current understanding that it is the responsibility of the neighbor to maintain the retaining wall, which is over 30 years old, wood, and crumbling to the point that there are large sections of exposed dirt currently being held up by nothing. The problem is, despite the tenant in the house telling us that about a year before we bought the property the landlord had an estimator out to look at it, and more recently she told us they said that they'd have another estimate done over a month ago, nothing has happened. I have had to brace the fence to keep it from falling over as the dirt around the fence posts erodes away. The property management company / owner are very unresponsive and do not seem very keen on repairs based on the visible condition of the property (rotting window frames) and the tenant telling us about other repairs she has requested not being done. I had even contacted a few companies to see about doing the repairs myself but they declined as they could not get the permits as the work would not be on my property. I have set aside some money to cover probably the entire cost of the work, and definitely half, but as this is a rental and therefore the owner is profiting from it, I would only want to help pay for their maintenance as a last resort if they ask for it. There are other repairs to our own home we could use that money for as well as we bought this as a bit of a fixer upper. What options do I have legally to get them to actually repair this retaining wall before it falls?

The legal responsibilities of landlords, tenant-landlord laws and any laws dealing with structures such as retaining walls are all very local in nature; they will depend on the laws in your town/city and county in Colorado, as well as state law. The best thing to do is call your local city or county building inspectors office and tell them that there is a retaining wall that is failing; they will inspect it and send letters to the property owner (and probably you) outlining the legal requirements and who is responsible for the required mitigations. The rental property owner should not ignore a letter from the building inspector; there is too much legal liability. The inspector may also flag other problems with the rental property and will require they be fixed, or make referrals to other government agencies. The tenant should also contact local legal aid and tenant organizations if they get push back or no response from the landlord.

real-estate,rental-property

law-stackexchange-questions-answers.json

law-stackexchange-qa-47137

Would Veronica Theriault Have Been Arrested in the US?

There is a viral news story about an Australian woman named Veronica Hilda Theriault, who falsified her resume and used fake pictures and references to get a high-paying job. She was arrested and sentenced to a year in prison. While her actions are obviously distasteful (and certainly grounds for dismissal), would this be criminal in the US? It seems unusual to me that ordinary lying (not in court) would be treated as a criminal matter.

Potentially, yes - especially if its the government you lie to in your CV/resume or course of work. Wayne Simmons, a regular Fox News commentator who claimed to have worked for the Central Intelligence Agency for almost three decades, was arrested on Thursday for allegedly fabricating his agency experience. CNN Money reports that Simmons appeared in court on Thursday, where he faced charges of major fraud against the United States for falsely claiming to be a former “outside paramilitary special operations officer”—a padded resume that federal officials say he used to successfully gain government security clearances. https://www.motherjones.com/politics/2015/10/wayne-simmons-cia-arrested-fox-news/ Simmons claimed to have been an "outside paramilitary special operations officer" for the CIA from 1973 to 2000. Not only did he use that claim to get guest appearances on Fox News, but the government claims he used it to gain security clearances and a defense contractor gig that included advising senior military personnel overseas. He's now being charged with wire fraud, major fraud against the United States, and making false statements to the government and could face 35 years in prison. https://blogs.findlaw.com/law_and_life/2015/10/can-you-get-arrested-for-lying-on-your-resume.html Making false or fraudulent statements also may be punishable by fine or imprisonment. https://www.usajobs.gov/Help/working-in-government/fair-and-transparent/signature-false-statements/

fraud,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-17716

What are some pitfalls and ramifications of publishing written content to Youtube as audio content

Someone has written content and wishes to read it aloud as audio-based entertainment. The content is of such a nature as could also be feasibly published in novel form. If the content is published to Youtube, does it receive legal protection as a written work? Moreover, can the creator self-publish it in PDF form through a service such as Amazon while also maintaining ownership of the audio content? How easy is it for someone to republish the work as their own? Are there important legal ramifications relevant to the interests of the creator not being mentioned here?

Assuming that the content written is itself not a derivative work (e.g., not fan fiction), and that the author has copyright over the work (which is the default situation): Copyright attaches when the work is set forth in a "tangible medium", which is "when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Skipping past the legalese, basically, when it was typed on a computer or written on paper, the author obtained copyright over the work. Part of copyright is the ability to control derivative works, such as a reading. So if the author has copyright, the author can read it aloud and post the recording on YouTube, creating a derivative work of their material. Some caveats: If the material is a derivative work, and not fair use, a) the original material is under the control of the original copyright holder and b) the audio version of the material is as well. If the author was paid to create the original work, as a general rule subject to their contract, the one who paid to create the work owns the copyright, and their approval is necessary to make the derivative audio recording.

copyright,intellectual-property

law-stackexchange-questions-answers.json

law-stackexchange-qa-13655

How do US municipalities get their authority to govern?

Municipalities in the US can: Make laws that apply to all people who find themselves within their boundaries. Tax residents. Tax economic activity (e.g. sales). Arrest people and apply other police powers. Where do municipalities get the authority to make all of these impositions on people? Can an individual buy up a parcel of land, declare it to be a municipality, make arbitrary laws, and use armed police to enforce those laws? Clearly not, but why not?

A common phrase regarding US cities is, "cities are creatures of the state." All of their authority comes from the authority granted states, and states can limit the authority of cities, counties and their other political subdivisions. In the US cities cannot have additional authority beyond the authority the containing state has, as opposed to, for example, cities granted Royal Charter in the United Kingdom, which may have equal or greater authority than their containing counties. Most states have constitutional and legal descriptions of what powers cities and towns can exercise. Recently many cities have begun passing laws to ban things like plastic grocery bags or hydraulic fracturing, and states have then passed laws to remove that authority from cities. States also set requirements for creating new towns. In Texas, any town smaller than 5,000 population is a general law town. General law towns have very little authority to create laws, but they can have a police force to enforce state laws. A city in Texas with population larger than 5,000 people can enact a charter by popular vote and become a home rule city. Home rule cities in Texas can enact some laws with criminal punishments (only citations and class C misdemeanors) and have greater taxing authority, but really can only pick from a menu of options created by the state.

police,tax-law,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-87403

What are the possible penalties for the misuse of a coat of arms?

As far as I'm aware, disputes about the misuse of heraldry in England and Wales are dealt with in the first instance by the High Court of Chivalry, which hasn't convened since the mid-twentieth century. What sentences can the court impose upon the losing party? Is it limited to an order to stop using a heraldic device or face a conviction for contempt of court, or does the court have more powers available to it in law? While the High Court of Chivalry's jurisdiction is confined to England & Wales, I'd also be interested in the penalties for the misuse of arms in countries with heraldic authorities.

According to the Heraldry Society: The first step is to Petition the Earl Marshal requesting that he issue process. [Detailed, and lengthy, process and procedures omitted] The hearing takes place before the Earl Marshal or his Surrogate. Both parties submit a “Definitive Sentence”, similar to a draft order, upon which the Court gives its judgment, adopting one of the two versions put forward with any adaptations that the Court deems necessary. The Court has the power to award damages, to fine and to award costs. Itemised bills of costs must be submitted and signed by each Counsel, and the assessment of costs is by the Register, subject to appeal to the Earl Marshal or his Surrogate. Costs can also be agreed. in the High Court.

civil-law,england-and-wales,penalty

law-stackexchange-questions-answers.json

law-stackexchange-qa-89043

Waiver of a Right During Appeal When the Lower Court Rules that such a Right Does Not Exist?

Let's say two parties enter into an arbitration agreement and one of the parties seeks to enforce the arbitration agreement while the second party seeks to annul it. The two parties appear in court and the judge rules that the arbitration agreement is invalid. The party seeking to enforce the arbitration agreement appeals the decision to the Appellate Division. However, at the same time they are forced to act in a way that is inconsistent with the enforcement of the arbitration agreement. For example, suppose Party A sues Party B for a breach of contract for $50,000. Party B attempts to compel arbitration but the court denies the request. While the case is pending appeal, Party B counter sues Party A for $25,000 for breach of the same contract with the logic that until the higher courts reverse the decision of the lower courts, Party B wants the courts to get a full picture of their version of the story. Could it be argued that Party B now forfeited their right to appeal by filling a suit in court against Party A and not waiting until the appeal is either accepted or denied?

No... I forget the specific term but in court you can bring in multiple points of contradiction that are all contradictory to your other arguments, but would not be contradicting to your case, because they all contradict your legal adversaries case. The example as I heard it is A man is bitten by a neighbor's Pit Bull and the man takes takes his neighbor to court for damages. The neighbor mounts his defense by saying 1.) I don't own that dog. 2.) If I did own a dog, I wouldn't own that breed of dog. 3.) I always keep my dogs on a leash when I take them out of the house and would pull it away before it bit someone. 4.) On the day in question my dog was in the kennel. In this case, the defense would be valid because the Plaintiff would have to disprove all 4 statements, any one of which would impact the case against the neighbor. In a criminal case, the defendant doesn't have to prove his story is true, he just has to prove that the Prosecution's story isn't. In a civil case, both sides merely have to prove their story is more likely to be true than the other side's. What's more, none of those statements is contradictory, they only seem so (Neighbor doesn't own that dog (he dog sits for his sister). If he did own a dog, it would be a different breed (He doesn't like Pitt Bulls). He never takes a dog out of his house without putting a leash on the dog and maintains control of the dog (Because that's what any dog owner would do). The dog was in the kennel on the day of the incident (because for his own reasons, he can't dog sit for his sister.)). In effect, to avoid damage, the argument of "That's not my dog" is to argue that the neighbor isn't the responsible party for the dog's behavior. The second argument is that the neighbor would never own a pit bull even if he did own a dog, the third would demonstrate that even when there is a dog that the neighbor is caring for, he does so in a responsible way AND the dog being in the kennel shows that the dog couldn't possibly have been the one who bit the plaintiff. What's more, the defendant can counter sue his neighbor for harassment, who just plain hates Pit Bulls and has been shouting at defendant for daring to care for his sister's dog even on days where the dog is not on the man's property and instantly blamed the Defendant in court without considering the possibility that there could be another Pit Bull owner in the area and their Pit Bull got loose. In OP's case, the filing of a countersuit is just "Hope for the Best, prepare for the worst". They could be filing because the appellant court's decision may not come out in the window of time they have before they lose the ability to file counter claims. In that case, if the appeal goes in their favor, the suit is dismissed as well as the countersuit and goes to arbitration. If it goes against them, they will be arguing their claim at the trial.

appeal,arbitration,civil-law,new-jersey,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-7632

What is the difference between liquidation and receivership of a company?

What are the legal differences between a company that is in "liquidation" as opposed to "receivership" under Australian law?

There are 4 types of "insolvency" in Australia, three apply to incorporated entities and the last, bankruptcy, only to individuals. Receivership A receiver is appointed by a secured creditor, usually a bank, under the terms of the loan. Their job is to manage the company in the interests of the person that appointed them. Administration An administrator is appointed by the directors (voluntary administration) or, less frequently, by a receiver, liquidator or the court. Their job is to inspect the company and make a recommendation as to if the company should enter a deed of company arrangement with its creditors, be liquidated or, very rarely, be returned to the directors' control. Liquidation A liquidator's job is to sell of the assets of the company and from the cash generated pay off the creditors and, if anything is left, the shareholders and then deregister the company. A company may also be voluntarily liquidated if it has assets of less than $1,000 and no liabilities. Bankruptcy an insolvent person can enter into a Personal Insolvency Agreement with their creditors or go bankrupt.

australia,bankruptcy,corporate-law

law-stackexchange-questions-answers.json

law-stackexchange-qa-62115

Law enforcement requesting passwords from companies?

Could UK law enforcement enforce s.49 of RIPA 2000 on a company outside the UK, say Snapchat, Facebook, or Google, in order to retrieve a user's hashed password from their database to log into that users account? If they could, will the company comply and provide them with the user's details or just say no? And even if law enforcement didn’t use section 49 from RIPA but still asked for the users password, what will the company say?

Q: Could UK law enforcement enforce RIPA section 49 on a company outside the UK? NO For two reasons: RIPA 2000 is not extraterritorial so only applies in England, Wales and Northern Ireland - there is no power to compel a foreign company to comply. The procedure to obtain material in an evidential format from, say, a foreign service provider is not RIPA but usually via an International Letter of Request which may negate the need for the key if it can't be cracked by digital forensics investigators. The ILOR will specify what the UK authorities are seeking which may be just the key but will probably be a portion of, if not the entirety of, the available stored data relating to the username, IP or any other identifier therefore making the need for the key redundant. It's then up to the receiving jurisdiction to decide on the format with which to proceed (terminology varies around the world so it could be called a warrant, production order, writ etc). The recipient company is legally obliged to comply just like everyone else who gets served with a lawful court order. (Also, for general interest, some countries have mandatory reporting for certain types of online offending, such as the American Cyber Tip Line operated by NCMEC which can legally share information (but not necessarily in an evidential format) with national law enforcement agencies - although it's highly unlikely, if not impossible, that this would include the key.) Q: If law enforcement didn’t use section 49 from RIPA but still asked for the users password, what will the company say? In my experience they don't usually say anything to requests that just ask for information, but if they do reply it's words to the effect NO, get a warrant (see point 2, above).

criminal-procedure,encryption,international,police,united-kingdom

law-stackexchange-questions-answers.json

law-stackexchange-qa-44004

Refusing service based on sexual orientation

LegalZoom wrote an article about whether businesses can refuse service here: https://www.legalzoom.com/articles/the-right-to-refuse-service-can-a-business-refuse-service-to-someone-because-of-appearance They wrote that "a baker refused to create a wedding cake for a same-sex couple, saying that it violated his religious beliefs. The court held the baker liable, saying that his reason was just a pretext for discriminating against gays." But in the same article they state "the federal law does not prohibit discrimination based on sexual orientation, so gays are not a protected group under the federal law." So "the pretext for discrimiating against gays" is a non sequitur because it doesn't exist. But they wouldn't give the details about what case it was. If they were talking about Masterpiece Cake Shop v. Colorado Civil Rights Commission they got it totally wrong... Is LegalZoom wrong?

LegalZoom did not get it wrong. The case Masterpiece Cakeshop v. Colorado Civil Rights Commission was under Colorado law (hence it was against the Colorado Civil Rights Commission), not federal law. LZ stated that 20 states have enacted laws against discrimination based on sexual orientation, and Colorado is one of those states. The issue was heard by SCOTUS because the plaintiff raised claims under the Free Speech and Free Exercise Clauses of the First Amendment, hence he could make a federal case of it. A prior case (Azucar Bakery) cited by LZ was about refusing to make a cake with anti-gay slogans, and was decided by the commission. Here is a brief filed by that plaintiff in that and two related cases, arguing a pattern of religious discrmination. LZ got it mildly wrong in saying "the court ruled that this was not discrimination because...", because the case did not go to court, it ended at the Colorado Civil Rights Commission. The second case appears to refer to Charge No. CP2018011310 a complaint filed against Masterpiece, where the same commission found probable cause for an anti-discrimination proceeding. In that proceeding, the Colorado Civil Rights Division finds that complainant Scardina "adequately shows that the Respondent's reason is pretext". This led to a complaint against the commission in US District Court (Civil Action No. 18-cv-02074-WYD-STV). There was a motion to dismiss which had partial success, but which was not about the substance of the case (it had to do with immunity, standing, abstention doctrines). The case was later dismissed, because the parties settled. So at no point did a court rule on the substance of the "pretext" issue – on this point, I think LZ overstated the significance of the commission's decision.

customer-service

law-stackexchange-questions-answers.json

law-stackexchange-qa-21706

Timing of disclaimers for an inheritance vs. an interest in a trust? (USA)

Context Update The context is a trust and beneficiaries who disclaimed earlier did so to help another beneficiary. The ones who want to disclaim now also want to do so to help the same beneficiary. Original Question Consider a situation where: There are many beneficiaries for an inheritance. Some of the beneficiaries disclaim while the grantor is alive. A decade passes and the grantor dies. The beneficiaries who did not disclaim earlier want to disclaim now. Do all disclaimers have to be "brought up to date," or is it OK that the disclaimers were executed over many years, and some while the grantor was alive and some when the grantor is dead? If this varies by state, then the state of interest is Utah. Does everyone need to disclaim within a similar timeframe (such as within 12 months), or can substantial time elapse between disclaimers (such as years or even decades)?

What Is A Disclaimer? A disclaimer is an unequivocal and irrevocable rejection of a donative transfer of property, such as a gift or inheritance, without providing any direction or guidance regarding who will receive it in lieu of the disclaimer beneficiary of the transfer. In other words, even if someone leaves you something in their will, you can refuse to accept it. Why Would Someone Make A Disclaimer? There are a variety of reasons someone might disclaim an inheritance. A disclaimer might reduce the amount of taxes owed related to the property disclaimed in the long run. The specifics of the tax laws that could cause this to be the case are beyond the scope of this answer. The person disclaiming the inheritance might have large outstanding debts that would lead to an imminent bankruptcy, such that the inheritance would just go to their creditors any way. The property inherited might have negative value before, for example, it is a toxic waste site that any owner of the property would have to clean up at the owner's expense. The property inherited might have negative emotional value to the person disclaiming it, for example, a firearm that was used by the decedent to kill their mother. Inheriting the property might disqualify the person receiving it from essential government benefits such as Medicaid coverage for a seriously ill person who could not obtain insurance otherwise and could not pay the medical bills that could have to be paid with the inherited assets since those assets are not worth much or are to illiquid to be sold in time to pay for necessary medical care. Inheriting the property might cause financial aid grants for someone in college to drop so much that almost all of the inheritance would be consumed by increased tuition bills. The person receiving the inheritance might believe that the person who will receive it if a disclaimer is made (i.e. the person who would have received it if the person making the disclaimer had predeceased the decedent leaving the inheritance), needs the inheritance more than the person who is entitled to it. Only Property Interests That Exist Can Be Disclaimed You can't disclaim the mere possibility that someone might leave you a gift or inheritance in the future, there has to be some presently existing right to give up before it can be disclaimed. (The technical name for a possibility like this is an "expectancy".) So, you can't disclaim an inheritance (which is a right that comes into being only when someone dies) while they are still alive, although you could disclaim an interest as a beneficiary in a trust that exists already but only takes effect when someone dies. So, a disclaimer of an inheritance made before someone dies is meaningless and basically "doesn't count". Describing a timely disclaimer following an ineffective disclaimer made during life as bringing the disclaimer up to date isn't really a very accurate description of what is going on, but yes, disclaimers made prior to death do need to be "brought up to date." An Aside: What Is An Inheritance? The narrow meaning of "inheritance" is property received as a result of the death of someone who doesn't have a will, in contrast to a "devise" which is property received from someone who died under their will. But, often the word "inheritance" is used in a broader sense that includes property received both from intestate and testate estates - i.e. both from decedents who do and from decedents do not have wills. A very broad sense of "inheritance" includes all major donative transfers even if they take the form of lifetime transfers, beneficiary designations, jointly owned property, or trust distributions, but this very broad sense is less common. Normally, the terms "grantor" and "beneficiary" are used to refer to a person who creates a trust and who is entitled to benefits from a trust, rather than in connection with an inheritance. But, the tags "wills" and "probate" were attached to he question, which would be inconsistent with the existence of a trust. So, it isn't entirely clear what is really meant by the question. Disclaimer Deadlines For Federal Tax Purposes Most disclaimers, historically, were done for tax purposes and needed to be made within the nine month deadline from date of death for filing an estate tax return established by the Internal Revenue Code. The IRS deadline is found at 26 USC § 2518 as clarified by Treasury Regulation § 25.2518-2. Disclaimer Deadlines Under State Law Most states followed the IRS lead when they set deadlines for making disclaimers under state law (which governs whether, how and when it is possible to disclaim since a state does not have to allow disclaimers in every situation that the IRS does but can allow disclaimers that the IRS does not recognize as valid for tax purposes to have validity for other state law purposes). The current trend is for states to adopt more flexible rules as, for example, is the case in Colorado. In Utah, however, disclaimers are governed by Utah Code § 75-2-801, which tracks the IRS requirements for making a valid disclaimer for tax purposes. This lengthy statute has a lot of rules governing the mechanics of how a disclaimer is done, rules about when you can be disqualified from making a disclaimer, and how to count the deadlines, but the primary portions of that statute governing the deadlines which establish the nine month deadline are subsection (2)(a) and (2)(b): (2) The following rules govern the time when a disclaimer shall be filed or delivered: (a) If the property or interest has devolved to the disclaimant under a testamentary instrument or by the laws of intestacy, the disclaimer shall be filed, if of a present interest, not later than nine months after the death of the deceased owner or deceased donee of a power of appointment and, if of a future interest, not later than nine months after the event determining that the taker of the property or interest is finally ascertained and his interest is indefeasibly vested. The disclaimer shall be filed in the district court of the county in which proceedings for the administration of the estate of the deceased owner or deceased donee of the power have been commenced. A copy of the disclaimer shall be delivered in person or mailed by registered or certified mail, return receipt requested, to any personal representative or other fiduciary of the decedent or donee of the power. (b) If a property or interest has devolved to the disclaimant under a nontestamentary instrument or contract, the disclaimer shall be delivered or filed, if of a present interest, not later than nine months after the effective date of the nontestamentary instrument or contract and, if of a future interest, not later than nine months after the event determining that the taker of the property or interest is finally ascertained and his interest is indefeasibly vested. If the person entitled to disclaim does not know of the existence of the interest, the disclaimer shall be delivered or filed not later than nine months after the person learns of the existence of the interest. The effective date of a revocable instrument or contract is the date on which the maker no longer has power to revoke it or to transfer to the maker or another the entire legal and equitable ownership of the interest. The disclaimer or a copy thereof shall be delivered in person or mailed by registered or certified mail, return receipt requested, to the person who has legal title to or possession of the interest disclaimed. Another Key Limitation On When A Disclaimer Can Be Made In addition to these deadline requirements, under federal law and the law of every state, a disclaimer must be made before the person entitled to receive the gift or inheritance takes any action which is inconsistent with a disclaimer such as receiving an economic benefit from the property that the person making the disclaimer would like to disclaim.

probate,tax-law,united-states,utah,wills

law-stackexchange-questions-answers.json

law-stackexchange-qa-48011

Is the United States in a state of war with Iran?

As of January 7, 2020, Is the US at war with Iran? What is the litmus test to determine if the US is at war with Iran?

No (assuming that nothing new as happened since I last saw the news earlier today, these matters can change in a matter of hours during the course of a day). There has been no declaration of war by Congress (which has the sole power to declare war under the U.S. Constitution), there has been no authorization by Congress to use military force (the modern functional equivalent of a declaration of war), and Iran has not taken acts which by definition constitute an act of war that have been used to treat the two countries as at war (such as conducting prolonged mutual battles between military forces, as opposed to a single attack). War does not exist merely because of an armed attack by the military forces of another nation until it is a condition recognized or accepted by political authority of government which is attacked, either through an actual declaration of war or other acts demonstrating such position. -- Blacks Law Dictionary, "War" (5th Ed. 1979) (citing Savage v. Sun Life Assur. Co. of Canada, 57 F. Supp. 620, 621 (W.D. La. 1944)). Thus, the fact that Iran appears to have fire missiles at U.S. targets, in and of itself (which the New York Times indicates as of 9:34 EST that it has) does not cause the U.S. and Iran to be at war. This story states that: The Asad and Erbil bases were targeted by Iran in retaliation for the killing of a top Revolutionary Guards commander in Baghdad. American military officials said that Iran had launched more than a dozen ballistic missiles against United States military and coalition forces. I am not aware at this moment, however, of any official reaction or statement regarding how this action will be classified by the United States, although that could happen very quickly before the day is out even. What matters in determining whether or not the U.S. and Iran are "at war" is the meaning that is assigned to this attack by the President, cabinet members and senior military and diplomatic officials, and Congress. Notably, being "at war" with a country does not mean, by definition, that the other country is "at war" with you. One country often becomes "at war" with another country at a different time that the second country comes to be at war with the first country. So, even if Iran's Parliament had declared war on the U.S, that wouldn't necessarily automatically and immediately cause the U.S. to be "at war" with Iran for purposes of U.S. law, even though a declaration of war in response would usually follow in short order. @user6726 however, accurately and importantly notes that the isn't a single universal definition of "being at war" with a country that applies for all purposes. The correct definition depends upon the context and the purpose for which you are asking the question, and the consequences that flow from a determination that we are "at war". N.B. One of the important reasons to know if you are "at war" or not, among others, is that an "enemy" for legal purposes, generally only includes someone you are at war with. Citizens or nationals of a nation with whom you are at war are "enemies" and have different legal rights that citizens or nationals of foreign countries with whom you are not at war.

laws-of-war

law-stackexchange-questions-answers.json

law-stackexchange-qa-90585

Does a YouTuber have any copyrights over a mirrored video?

On YouTube, it is common for users to upload videos that they have created or own the rights to. However, some users may attempt to avoid copyright infringement by uploading mirrored versions of videos that they do not own the rights to. In these cases, does the original YouTuber still have any copyrights over a mirrored version of their video? Can they still make a claim against the uploader for using their content without permission?

First of all, taking a video made by someone else, making alterations and then distributing the resulting work is probably already a copyright violation. There are exemptions like fair use (check the comments for an example), but just taking a whole video, mirroring it and reposting it without any own contribution very likely does not constitute fair use. The people who do that don't avoid copyright infingement. They just try to avoid getting caught by any automatic system YouTube has in place to detect copyright infringements. But avoiding automatic filters does not mean to avoid DMCA takedown notices, cease&desist letters or lawsuits from real humans who find a mirrored version of their video and feel that their copyright was violated. However, alterations to a creative work can be a creative work in itself. So regardless of the fact that one violated copyright in creating a derivative work, that derivative work might still be eligible for copyright in its own right. That means someone who reposts a video originally made by party A and then altered by party B would violate the copyright of both A and B at once and thus expose themselves to potential legal actions from either party. But the question is if simply mirroring a video constitutes the necessary threshold of originality to make the resulting work eligible for copyright. In most courts, it probably would not.

software,youtube

law-stackexchange-questions-answers.json

law-stackexchange-qa-42685

How can a person with a similar experience with the defendant, help the plaintiff in a lawsuit?

I lived in a house that was shared with the landlord and other tenants in common. I have now moved out and have a lawsuit started against the landlord. From "rumors" I heard that a previous tenant who got kicked out did not get his damage deposit or furniture back. (Call him Joe.) I managed to contact Joe and he confirmed this to be true. I too was kicked out and didn't get my damage deposit and have at least one piece of furniture unreturned. In what way can I use Joe's story? For example could it be considered a testimony or corroboration or some piece of evidence saying that the landlord had done similar things in the past? Can Joe and I form some sort of legal team?

How can a person with a similar experience with the defendant, help the plaintiff in a lawsuit? You may bring Joe as witness or present some sworn testimony from him. That could be in the form of affidavit, deposition transcript, or by testifying in court. In what way can I use Joe's story? Joe's testimony will be relevant to the extent that it proves the defendant's pattern of conduct or system for doing a thing. Many (if not all) jurisdictions in the U.S. had a provision similar to Michigan Rule of Evidence 404(b)(1): Evidence of other crimes, wrongs, or acts [...] may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act [...] when the same is material, whether [they] are contemporaneous, or prior or subsequent to the conduct at issue in the case. Thus, Joe's testimony would not prove your entire claim, but it can discredit important aspects of defendant's foreseeable denials in your matter. In some way the suggestion in the other answer makes sense, but I would discourage you from bringing suit together with Joe. That is because, despite all similarities, your claim are Joe's claim are different instances: Each cause of action stemmed from a separate contract; each contract/cause involves a different plaintiff; the statute of limitations of each wrong started running at different times; and your history with the defendant might differ from Joe's history with him on relevant aspects in a way that could prejudice you. Furthermore, if the defendant requests that the suits be separated, you and Joe would have no persuasive arguments on why your matters should remain consolidated. Lastly, the mere fact that a complaint is filed by two or more plaintiffs will not prompt a judge to act with honesty or with competence.

civil-law,civil-procedure,evidence,witnesses

law-stackexchange-questions-answers.json

law-stackexchange-qa-53186

Is it legit to fork an unlicensed repository for non-commercial purposes?

Edit: bear in mind that I'm not asking for which license, I'm asking whether it's fair or not. I want to use the treepedia_dl_public library as a core part of a new website. I checked the repository and noticed that the developers hadn't chosen a license, even though it has been already 2 years since the last time they made a commit. https://github.com/billcai/treepedia_dl_public For the last 2 weeks, I've tried to contact the developers and they didn't answer. Is it legal to fork an unlicensed project for non-commercial purposes?

Yes, you can fork it - but you can’t use it GitHub explain what’s a public deposit with no licence means here. If you find software that doesn’t have a license, that generally means you have no permission from the creators of the software to use, modify, or share the software. Although a code host such as GitHub may allow you to view and fork the code, this does not imply that you are permitted to use, modify, or share the software for any purpose. Your options: Ask the maintainers nicely to add a license. Unless the software includes strong indications to the contrary, lack of a license is probably an oversight. If the software is hosted on a site like GitHub, open an issue requesting a license and include a link to this site. If you’re bold and it’s fairly obvious what license is most appropriate, open a pull request to add a license – see “suggest this license” in the sidebar of the page for each license on this site (e.g., MIT). Don’t use the software. Find or create an alternative that is under an open source license. Negotiate a private license. Bring your lawyer.

licensing,open-source-software,unlicensed-practice

law-stackexchange-questions-answers.json

law-stackexchange-qa-43012

GDPR: Can I collect non-personally identifiable information?

I'm creating a game that collects data in two ways: Unity Analytics for usage stats, and bug reports that sends me a report of an issue along with several files to help me diagnose the issue. However, GDPR is becoming a rather confusing problem for me. The data collected with my bug reporter is: A hashed unique device ID A game save file System specs Settings configuration A short in game video recording (only shows the game window - not the users desktop) None of this is personally identifiable (I'm pretty sure) - I don't collect IPs, names, emails, gamer tags etc. As such, do I need permission from the user to collect this data? Would I still be GDPR compliant?

There are two relevant bodies of EU law to consider here. The GDPR covers processing of personal data. Personal data is any data where the data subject can be identified directly or indirectly. The ePrivacy directive is also relevant, and covers how you may access and store information on the user's device. Directives are not directly applicable law. Instead every member state translates the directive into national law. In the UK, ePrivacy is implemented by PECR. Is the data you collect personal data in the sense of the GDPR? Yes: that hashed unique device ID or a system-provided advertising ID likely is personal data, and any linked data would then be personal data as well. This is going to be the case in particular if you store user accounts on your server and can connect these bug reports to a user. Consider also whether the game save could include personal data, and whether the video clip could be analyzed to identify the data subject. Does this mean collecting this information in bug reports is forbidden? No, the GDPR doesn't forbid or allow anything outright. Instead, you should go through the compliance process. In a nutshell: determine the purpose of this processing, e.g. “fixing bugs” find an Art 6 legal basis for this purpose, e.g. “Art 6(1)(f) legitimate interest” or “Art 6(1)(a) consent” if the legal basis is legitimate interest, you must balance that interest against the data subject's interests determine whether your compliance requirements include creating/updating your Records of Processing, or whether you have to write a Data Protection Impact Assessment implement the processing in a manner that respects GDPR principles such as Transparency and Data Minimization if the legal basis is legitimate interest you must implement an opt-out solution if the legal basis is consent, you must request consent first in a manner that satisfies the Art 7 conditions for consent – and allow consent to be revoked easily prepare to satisfy data subject rights: information requirements per Art 13, usually done in the privacy policy right to access, rectification, erasure, and data portability right to object (opt-out) and to restrict processing be aware of your general requirements a data controller to process this data securely, e.g. use HTTPS connections to transmit bug reports, take steps to protect your own accounts (e.g. 2FA), and ensure you have a suitable contract with any data processors that act on your behalf, e.g. cloud providers or contractors I would question whether your bug reports really need to include a device ID. That isn't forbidden, it just complicates compliance a bit. And what about ePrivacy? The ePrivacy directive is known for its cookie consent requirements. But these consent requirements apply when accessing any information on the user's device, or when applying equivalent fingerprinting techniques. Your game save is not an issue because it is necessary for the game. But that device ID and other system information is more difficult. So what to do? Compliance isn't trivial, but certainly possible. You will likely process the bug reports under your legitimate interest, but might still have to collect consent for accessing a system ID due to ePrivacy. Such a screen might look like this: Oh no, the game crashed! Do you want to send a bug report to the developers? Your bug report will be protected as per our privacy policy (link). Your bug report will contain the following information: … Yes, collect system information and send bug report No, do not send bug report You could make an argument that a bug report can be sent in any case, and that you just need ePrivacy consent to collect useful system information. For example: Oh no, the game crashed! When sending a bug report to developers, do you want to include extra system information (link to details) that helps fixing the problem? In any case, your bug report will be protected as per our privacy policy (link). Your bug report will contain the following information: … Yes, send bug report with extra system information No, send anonymous report

data,gdpr

law-stackexchange-questions-answers.json

law-stackexchange-qa-78728

Do countries (with rule of law) exist where a court ruling can be achieved before an action is taken?

Let's say I want to Create a taxi-like service that avoids requiring medallion Create a hotel-like service that can avoid zoning and insurance laws Create a tax scheme involving moving money in interesting ways so that I can pay less taxes Refuse to decorate a cake with offensive-to-me decoration From what I know of US law, you can get a lawyer to advise you (and if the offence is criminal, that may help lower the penalty). However, if after preforming the action, the state decides that what you did is against the law, you can still get in trouble. Are there jurisdictions where I can go to a court with my proposal for what I plan to do, argue for it, and receive a binding judgement? By binding, I mean of similar strength of common Double jeopardy rules. That way, if later I get sued I can show a previous court ruling stating that what I am doing is fine.

united-states Processes vary greatly from country to country on this matter. In the U.S., most courts (including the federal courts) cannot issue advisory opinions that are binding, subject to some narrow exceptions in fact patterns different from those you are envisioning. But, if there is a "bona fide dispute" involving an actual case or controversy between two or more well defined parties, it is sometimes possible to get a declaratory judgment from a court regarding what a law means, or the meaning of contract. For example, if you are in a position where you have no choice but to administer a law one way or the other in a particular upcoming case, you can usually ask a court for guidance. Also, some administrative agencies can enter into binding agreements with citizens regarding how it will treat a particular activity (the comments give the example that is typical of the IRS issuing a private letter ruling to a taxpayer) in advance. Sometimes an agency charged with enforcing a law (e.g. a prosecutor's office) can likewise make a binding interpretation of the law that people to whom the binding interpretation of it are legally entitled to rely upon. Furthermore, even when these options are not available, something called an opinion letter from an attorney in the U.S., while not binding courts in later litigation, can mitigate the harm suffered from breaking the law because you will usually be found to have acted in good faith in interpreting the law even if you are wrong, and may shift some of the exposure to monetary harm from a misinterpretation of the law to the author of the opinion letter if you are a person whose reliance on the opinion letter is expressly intended by the author of the opinion letter.

civil-procedure,jurisdiction,rules-of-court