Datasets:

vblagoje

/

Law-StackExchange-Deduplicated

like 0

What (if any) position is the highest office in the line of succession that someone ineligible to be president could hold?

" Can a young US Vice President follow in the line of succession? " was a question that sparked my interest. The answer to that questions is that a VP must actually be legally able to be President, as well. Okay, so VP is out - but if there was a Tom Clancy's Debt of Honor -style situation where most of the government officials were killed, is there any position in the U.S. Government that could legally assume presidency, even though under normal circumstances due to age, birth, or other restriction they would normally be ineligible to hold the office? And if so, what is that office?

There are several possible ways to get there, but the answer is "there is no such position." Acting President vs. President Under the Constitution: In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President, and the Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected. When William Henry Harrison died, there was some question as to what "the same" that devolved on Tyler (his VP) meant. Some thought it meant that Tyler was Acting President; others thought the office itself went to Tyler. Tyler was in the latter group, and set a precedent that the VP became the President (finishing out the President's term) if the President died; the VP wasn't just acting. The 25th Amendment later clarified that presidential death, removal, or resignation made the VP the President; if the President was unable to exercise the powers and duties of the office, the VP was Acting President. Further down the line, the Constitution explicitly says Congress decides "who shall act as President." Congress only talks about succession further down the line in terms of the Acting President and the officer acting as President. So, if that interpretation is correct, the answer is "the VP is the only officer who can assume the office of President in the event of the President's death." Of course, a new precedent could potentially be set if this situation ever arises; if someone will definitely act as President until the end of the term, then it makes a certain amount of sense to say they just assume the office itself. Eligibility for office The Constitution doesn't say "you can't be elected President unless over 35, natural-born citizen, and 14 years a resident." It says you are not eligible for the office unless you meet those requirements. That would include any way of assuming the office, including succession. You can't become President if you are not eligible to hold the office, period (that's what eligibility for an office means ); the only requirements you'd get around are those covering eligibility to be elected. Succession It's unclear whether the Constitution's eligibility requirements apply to a person acting as President who does not assume the office. However, Congress has decided that they should. 3 USC §19 , which sets out who acts as President if both President and VP are unable to, says: (e) Subsections (a), (b), and (d) of this section [i.e. the ones listing people who can act as President] shall apply only to such officers as are eligible to the office of President under the Constitution.

Is the Justice System Fundamentally Flawed?

" Justice is the legal or philosophical theory by which fairness is administered." In the Justice system a person is reprimanded for an act committed. However the punishment of any given person is a function of more factors than the act committed in a nontrivial way. It varies, not insignificantly, with race, gender, wealth, attractiveness, and so on... You can, for instance, take the average difference of sentencing between a white person and black person for murder. This difference will be the punishment assigned to a person for the act of being a certain race. This punishment is not insignificant and cannot be considered to satisfy the condition of fairness in any approximation. Is the Justice System flawed in it's most fundamental principle? If so, how can this be corrected?

Yes As a product of the effort and imagination of human beings, it is, like all institutions, fundamentally flawed.

What are the differences between "Malum In Se" and "Malum Prohibitum" Laws

" Malum In Se " and " Malum Prohibitum " are Latin phrases, but beyond their translations what differences do they carry with them in describing laws? Malum In Se meaning "That which is wrong in itself" Malum Prohibitum meaning "That which is wrong because it is prohibited"

Malum prohibitum can be defined as An act which is immoral because it is illegal; not necessarily illegal because it is immoral. while malum in se can be defined as An innately immoral act, regardless of whether it is forbidden by law. Examples include adultery, theft, and murder. A side-by-side comparison is given here : Legal scholars have used the terms mala prohibita and mala in se to draw the distinction between legally proscribed and morally proscribed offenses. The former are those offenses that are wrong simply because there exist formal, codified rules prohibiting them. Efforts to define mala in se, on the other hand, have resulted in vague, often conflicting meanings that leave the analyst with little but examples to serve as definitions. As a result, some have argued that the distinctions mala in se and mala prohibita be abandoned altogether. If one examines mala in se from an equity theoretical viewpoint, incorporating the concepts of intent and harm, it may be possible to arrive at a more understandable and useful concept. In theory, the two are easy to distinguish, but in cases of, say, statutory rape, the differences fade away.

Unable to understand this text in a deed of assignment of intellectual property

" The assignor has agreed to assign to the Company all of his intellectual property rights and title, interest in and to assigned rights relating to the business, technologies, software, products and services of the Company on the terms set out in this Deed. " I have joined a startup and have been asked to sign a "Deed of assignment of intellectual property" document. My specific question is that does it mean whatever IP I owned till today automatically becomes their property? There is another clause: " To the extent that the Assignor owns (or if applicable owned) Intellectual Property Rights in the Assigned IP, the Assignor assigns to the Company (or if applicable confirms the assignment to the Company of) all of his or her right, title and interest in the Assigned IP. " I do not understand the legal stuff. I own a domain name and a patent. I also plan to own a company in a few years and am working towards it. Does it mean all that I develop in my personal time will belong to this company? Full deed copy: https://simmondsstewart.com/template/ip-assignment-2016-09-16.pdf

I’m going to answer the headline question “Unable to understand this text in a deed of assignment of intellectual property” because the body is way off-topic as seeking legal advice. Don’t sign anything you don’t understand! Ever! Legally signing something means 3 things: I’ve read it I understand it I agree with it If you don’t, don’t sign it. You need to get someone who does understand it to explain it to you until you do understand it. Because the act of explaining a contract is legal advice, that person has to be someone authorised to practice law i.e. a lawyer.

What are "divisional patent applications"?

"...from November 5, 2020, there is a New Mexican IP Law in force, which has established new legal concepts and has brought light to some Practice areas which before this New Law, were imprecise or not entirely clear. The New Mexican IP Law has established rules and filing exceptions, which to consider when filing divisional patent applications..." Uhthoff I just can't get my head around what is meant by the term "divisional patent applications"

A divisional application is one that is a spin-off if a patent application that claims subject matter that is fully supported in a previous patent application’s specification and drawings if required but is not claimed in the parent application. The divisional gets the benefit of the filing date of the earliest relevant parent patent application. An example would be an application that discussed two inventive ways to make a toaster that toasted bread to desired degree automatically. One uses a camera to look at the bread and pops the toaster when a set degree of brown is detected and the other uses an electronic “nose” to sense the vapors from burning the bread. Both are well supported with details in the specification and drawings. If there is one claim to one invention and one claim to the other invention the examiner will declare that you do not have “unity of invention” and require you to pick between them and cancel any claims to the other. In the U.S. this has different name with slightly different criteria. If you want to pursue the unselected invention it will be via a divisional application. It is a new application that states that it is a divisional of patent application 1235667 and claims priority from it. It could also be a case where two inventions are described but only one is claimed. You not get any notice from the examiner but can later chose to file a divisional. There are rules as to when a divisional can be filed and these have been recently changed in Mexico. A rule that many jurisdictions have is that it can only be filed while the parent application is still pending, Mexico tightened up those rules.

Under what circumstances do "alternative lyrics" represent copyright infringement?

"Alternative lyrics" are those lyrics are written to the music of an existing song. An example would be "My Country "Tis of Thee" written to the tune of "God Save the Queen." My understanding is that if you put the alternative lyrics to the sheet music of the original song without permission, that would be copyright infringement. (You've copied the music.) But suppose you publish the alternative lyrics on a "standalone" basis (without the music in any form). Would the fact that it can "sing" to someone else's song be copyright infringement even if there were no "substantial similarity" in the lyrics?

Original lyrics that would otherwise be non-infringing do not become infringing just because somebody might choose to sing those lyrics to an existing melody. The person who chooses to sing those lyrics to an existing melody, however, may be infringing that melody.

I paid off my student loans myself. If Biden announces Federal Student Loan forgiveness, am I owed money?

"Biden to Announce Decision on Student Loan Debt, Affecting Millions of Borrowers." I owed $40,000 in student loans, and paid them off by working two and three jobs at a time for many years. If Biden announces he is forgiving $10,000 of student loans, am I owed money? It certainly seems fair that I should receive a check in the mail for $10,000. Is there any legal recourse to this announcement? If a $10,000 forgiveness is announced, is there a basis for a class action lawsuit against the Federal Government?

You have no injury and so no basis for a suit, unless your claim is that the educational institutions you attended were fraudulent (in which case you'd most likely sue them, or try to petition the government for existing relief procedures for such cases). Since you don't, you have no injury. All parties entered their loans under the understanding that paying them off was necessary and potentially long term and arduous. The government forgiving amounts on existing loans does no injury to those who already paid. There is no injury in you having done what you agreed to do, in accordance with governing laws. Forgiving some debt for some people is just an act of executive largesse, and does not hurt you in any legally cognizable form. Indeed, it could be said that you have benefitted from having paid them off. For since doing so you have no longer been burdened by them, saving you both money and potential credit score or even legal issues, whereas those who still have debt are still so burdened. Plus paying them off yields benefits in your credit score and general loan worthiness; you can expect to have been able to get meaningfully better interest rates than someone identical to you but with substantial student debt. These are all benefits nobody who gets forgiveness will retroactively receive. At best, going forward they will get to be on similar footing as you. And having more people on the same beneficial footing as you is not a legally cognizable injury in fact to you.

Could "Brutus is an honorable man" be a defamatory statement in the U.K.?

"Brutus is an honorable man" is not a defamatory statement on its face. That, I believe, would satisfy U.S. law. But the quote was from Shakespeare. And the context was an ironic way of implying that Brutus is not an honorable man. English libel law is more favorable to plaintiffs than is U.S. law. So has anyone gotten into trouble in the U.K. for making a sarcastic comment that implied the opposite of what was nominally being said? Here's how it might play out in practice: "Jane Doe goes out to bars most nights. She is a chaste, virtuous woman. Jane Doe is seen with a different man most nights. She is a chaste, virtuous woman. Jane Doe hangs out with the "Wild Girls." They are chaste, virtuous women. So are they all." Would a defendant have to prove that the underlying assertions were true to have a solid defense? Or is the statement, "she is a chaste, virtuous woman" be sufficiently non-libelous by itself?

You should look at McAlpine v Bercow. Bercow had made what she thought was a fairly benign tweet, but Lord McAlpine brought proceedings for libel against her. McAlpine won. Afterward, Bercow issued this statement: “Today’s ruling should be seen as a warning to all social media users. Things can be held to be seriously defamatory, even when you do not intend them to be defamatory and do not make any express accusation. On this, I have learned my own lesson the hard way”.

How can casinos take "extrajudicial" measures against card counters?

"Cardcounting" is technically legal, but frowned upon by casinos, because it violates the "unwritten law" that casinos are supposed to come out ahead. When card counters are caught, casinos can expel them under threat of being charged with trespassing. But apparently casinos sometimes do more than that, like refusing to cash out their chips, or taking card counters to back rooms for questioning. (Detention and questioning are powers supposedly reserved for law enforcement. The casinos are only supposed to detain people until the police arrive.) How do casinos manage to conduct such "extrajudicial" proceedings? Do the police and courts turn a blind eye to them because the casinos are important to the local economy?

Extrajudicial implies there is some weight of law behind the casino behaviors you describe. I don't think there is. For example, refusing to cash out chips could just be a management intimidation tactic to try to coerce the customer into agreeing to be "questioned." Which the customer would be under no legal obligation to do. Card counting can't be proven if the counter is not using a device of any kind. The casino can refuse to serve the customer and expel the customer but they can't unilaterally keep the customer's money by not cashing the customer's chips without a judgment. I am not an attorney. This answer is not legal advice.

"Etsy" plans as download - license, restrictions?

"Etsy" is an online platform designed to allow individuals to sell models via a standardized platform. Some sellers off downloadable files, containing plans to recreate those models. Example, rubber band gun "Etsy" doesn't seem to specify which license those files are distrubuted under, and no "shop policies" are specified. What would I be allowed to do with those plans, and the models I may choose to build myself? While immoral, what may prevent me from reuploading the same and monetizing them? Would I even have to provide attribution?

It's up to the seller to specify the license the buyer acquires the model. Very common in those licenses is "no resale of the model" as well as "no sale of derivative works of the model." Derivate means by the was both altered as well as acessory to an item. Some have also express terms for selling manufactures of the model. By downloading the files the buyer then is bound to the licensing agreement and has to abide to them or be liable for willful copyright infringement. Mentioning the source you had only shields you if you have express permission via license from the owner - but claiming you would have a license when you have not might put you into extra hot water for misrepresentation! By reuploading the files you break that no resale part of the license, in addition to possibly breaching your contact with Etsy as established in their ToS.

Is there "evidence-based" practice in law?

"Evidence-based practice" (sometimes colloquially called "what works") is a buzzword floating around many professions nowadays, especially medicine and education. The idea is to use scientific research to inform and continuously improve day-to-day professional practice. For example, a schoolteacher following non evidence-based practices might teach square roots the same way he has for decades and the same way he was taught them as long as nothing obviously is going wrong (e.g. a flood of parental complaints, excessive number of students flunking out, etc.). By contrast, an evidence-based teacher would keep tabs on the latest scientific journal publications in mathematics pedagogy and alter his lectures, homework assignments, tests, etc. to conform to what was shown to work best in such studies. He may even do his own studies that he then publishes. In theory, this is supposed to create a virtuous cycle of continuous improvement where everyone is sharing their research and optimizing each others' practices. Research in evidence-based practice tends to be quantitative, for example, "Doing this instead of that in the classroom resulted in a 20% gain on standardized literacy test scores, a 10% rise in cumulative GPA, and 50% fewer behavioral referrals for student misconduct." Does evidence-based practice exist in the practice of law? If so, what does it consist of? Is it quantitative or qualitative? I have read legal research journals, and have found most publications to be deep-dive studies of this or that specific legal issue or area (e.g. intestate probate in California when the decedent was legally incompetent at the time of death and had a living spouse, not resident in California, who refuses to attend the probate hearing) rather than quantitative studies on whether doing X or Y will get me more wins at trial, get my clients more favorable settlements, or give me an edge getting "questionable" evidence not ruled inadmissible. The difference could be compared to a physician reading an essay on "What is non-XYZ skin cancer?" versus reading a study showing that increasing chemotherapy doses by 5% in patients with non-XYZ melanoma resulted in 10% fewer deaths among skin cancer patients at X hospital with caveats A and B and confidence interval C. In a nutshell: Non-evidence-based : Deep dive into the history of the Chewbacca Defense in criminal law from its origins in the mid-1300's to the present day, with specific notes to its successful use in a landmark Mopery case in Podunk Superior Court in 1955 and an Aggravated Creeping with Dishonest Intent case in the Supreme Court of Ruritania in 1987. Evidence-based : In a sample of Mopery cases in Podunk courts (N=235) from 1973 to 1982, defendants raising the Chewbacca Defense obtained 30% more acquittals than those using the Twinkie Defense. Among the small number of defendants who were convicted after raising the Chewbacca Defense, they, on average, received 20% lighter sentences than those who had lost after raising the Twinkie Defense. Conclusion: the Chewbacca Defense is more effective against Mopery charges than the Twinkie Defense with caveats A and B and confidence C. See Tables A and B for supporting data.

The primary field of research where the kind of studies you are thinking about are done is often called "empirical legal research." There is a fairly rich literature, that a substantial minority of practitioners in the relevant areas are guided by, in the area of issues related to jury trials: how jury composition influences outcomes, how juries make decisions, the difference in outcomes between jury trials and bench trials, the fact patterns that are prone to wrongful convictions or mistakes about the facts in civil cases, techniques that influence jury decision making outcomes, and the kinds of awards juries tend to make of non-economic damages in particular kinds of cases. Another area where there is a fairly rich literature that a smaller minority of practitioners reference concerns the facts that influence likelihood of success on appeal, which in turn influences the decision to appeal or not appeal a case, or to bring collateral attacks on a trial court decision (e.g. in habeas corpus review of a criminal conviction). A third area where empirical studies guide a minority of practitioners is the more general literature on negotiation which is used to influence how both transaction negotiations and settlement discussion negotiations, are conducted. In most other areas, empirical literature is used mostly to evaluate risk, either to determine its materiality in connection with worrying about it in planning a transaction, or in the early stages of a lawsuit. In these areas this is incorporated holistically into the general career experience and life experience of the attorneys involved. For example, there is an empirical literature that demonstrates that small business bankruptcies rarely successfully reorganize a business and usually result in tax creditors receiving most of the available assets, while big business bankruptcies usually do successfully reorganize (with some industries more successful than others) and tend to pay different kinds of creditors different proportions of their claims. This literature influences the decisions of individual creditors regarding what kind of cases to pursue more or less aggressively, and also influences how lawyers familiar with this literature advise clients about the risks involved in particular investments. Likewise, there is a literature on the likelihood of small business success over particular time frames with additional other factors considered (e.g. franchise v. non-franchise).

What is the rationale behind fair use exemptions?

"Fair use" is one exemption that allows the use of copyrighted material. From what I understand, this exemption falls into one of two broad categories: Teaching, research, news reporting, etc. Basically, this is "educational" use of one sort or another. Although there may be a commercial purpose (for a college, research lab, newspaper), etc., there is a public policy priority of informing people. The second category is comment, criticism, or parody. Here, the use is clearly commercial, but is often allowed. My understanding is that's because such work is protected under free speech, and perhaps opens new markets (e.g. among people who are "anti" a given work, and who probably wouldn't purchase the original). On the other hand, certain other "derivative works" are not considered fair use, even though they may be at least somewhat "commentative," and also have educational value. Why might that be? That is, how might they differ (legally) from items in (2) above?

It is complicated to answer why a law is what it is. Judge Frank Esterbrook writes (in the forward to Reading Law by Scalia and Garner): Every legislat or has an intent, which usually cannot be discovered, since most say nothing before voting on most bills; and the legislat ure is a collective body that does not have a mind; it "intends" only that the text be adopted, and statutory texts usually are compromises that match no one's first preference. If some legislators say one thing and others something else, if some interest groups favor one outcome and others something different; how does the interpreter choose which path to follow? I will provide the historical background leading to the current fair use statute and case law, but take from it what you will as to why it is what it is. Fair use is a statutory defence provided by 17 USC 107 . Its application is clearly demonstrated in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) . Fair use was an "exclusively judge-made doctrine until the passage of the 1976 Copyright Act ". ( Campbell ) Courts had been finding exceptions for "fair abridgements" and other precursors to fair use as far back as under the Statute of Anne of 1710. ( Campbell , citing William Patry's "The Fair Use Privilege in Copyright Law".) This doctrine worked its way into US case law in the nineteenth century. In Folsom v. Marsh, 9 F. Cas. 342 (No. 4,901) (CCD Mass. 1841) 1 , Justice Story distilled the essence of law and methodology from the earlier cases: "look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work." ( Campbell ) Folsom states: There must be real, substantial condensation of the materials, and intellectual labor and judgment bestowed thereon; and not merely the facile use of the scissors; or extracts of the essential parts, constituting the chief value of the original work. This early incorporation of fair use focused on whether something new was being created, or whether the "chief value" of the original work was being taken. This primary focus on transformativeness has stuck with with fair use doctrine until today. Campbell said (internal citations removed): The central purpose of this investigation is to see, in Justice Story's words, whether the new work merely supersedes the objects of the original creation ("supplanting" the original), or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is "transformative". Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. Campbell also includes the following statement of rationale for why Congress included section 107: Congress meant § 107 "to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way" and intended that courts continue the common-law tradition of fair use adjudication. H. R. Rep. No. 94-1476, p. 66 (1976) (hereinafter House Report); S. Rep. No. 94-473, p. 62 (1975) (hereinafter Senate Report). There is no support for your separation of "parody, comment, and criticism " from "teaching, research, and news reporting", or that there are differing amounts of commercial use allowed for these types of work. The statute lists together "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" as examples purposes. The statute requires that "whether such use is of a commercial nature or is for nonprofit educational purposes" be considered in all fair use cases. There is also very little if any First Amendment rationale expressed for the fair use doctrine. The intersection of the First Amendment and copyright law is more clearly found in the idea/expression dichotomy . 1. Folsom v. Marsh full opinion text

Does the concept of fairness and due process apply only to the defendant or to the prosecution as well?

"Fairness" isn't mentioned in the constitution but due process is and I would think typically applies to a defendant - someone who has been accused of a crime. But is there a concept where the prosecution can say the process wasn't fair to them?? Case in point - the impeachment of Trump by the House of Reps. Pelosi is saying she won't send articles of impeachment to the Senate until she can be convinced that there will be a fair trial. BUT - in the trial, she and company will be prosecutors. The defendant will be Trump. Is it Trump's constitutional right to demand fairness or the right of those who want to prosecute him? In short, you should be awarded fairness when you are defending yourself or when you are prosecuting someone?

Due Process is for defendants: The "fairness" provisions in Amendments 4-8 do not "typically" apply to defendants. They explicitly apply only to defendants. For instance, the 5th Amendment says: No person shall...be deprived of life, liberty, or property, without due process of law... The basic idea is that the public is best served by having a fair, impartial trials under law. As Paul Johnson notes in his excellent comment, the general presumption is that the state has much more power than defendants, and hence is more likely to pervert justice for its benefit. The "fairness" provisions aim to reduce the power imbalance by requiring the state to follow certain procedures, such as getting warrants, and so on. Fairness and prosecutors It is bad when either side perverts justice. That is why even prosecutors have some ability to challenge trial procedures that seem biased in favor of defendants. Thus, prosecutors cannot generally ask for a change of venue, but they can object to particular jurors. The idea, again, is that given its resources, allowing the state to move a trial would hurt defendants. As Paul Johnson notes, the analogy of impeachment to regular trials breaks down at this point. The Constitution imposes only a few bare-bones requirements on the impeachment process. This lack of structure, when combined with the Constitutional provision that each House can make its own rules, makes it easier for House and Senate to do things that would not be allowed in regular trials, such as delay bringing charges (which would violate the " speedy trial " clause), or seat admittedly " not-fair " jurors. What is fair? The obvious response to charges that the process is "unfair," is to ask, "Unfair by what standard?" After, all the rules of impeachment are what they are. It is hard to see how using these rules to one's advantage is unfair. It is important to remember, that as in regular trials, both sides are busy trying to put their spin on what is going on. If either side believes they will get more support by talking about "basic fairness," that is how they will talk. But this spin should not hide the reality that the impeachment rules are what they are. As with any rules, whether some tricky manuever within the rules is fair depends on whose ox is being gored. After all, most Republicans were thrilled when Mitch McConnell invoked the Constitution to justify delaying a vote on Merrick Garland, President Obama's nominee to the Supreme Court. Democrats were not. Now when delay does not serve Republicans, they are much less impressed with the Constitutional arguments.

Is it legal for a company to restrict people from re-selling (second hand) their products?

"Hive Home" lock their hardware devices to specific accounts. If you move into a house with Hive products already connected to a previous user: you’ll need to buy a new Hive Hub. source And what they don't say is: you have to throw away the old one . The old one is completely useless, and tied to previous person's account. It's like Apple saying once you tie a MacBook to an Apple ID, you can't disconnect it and cannot sell it to anyone. Is it legal for a company to restrict people from re-selling (second hand) items - they call this "transferring ownership"? Both their app, and their human customer service representatives have told me I cannot transfer ownership or rename the account - as this is the same as transferring ownership.

This is not prohibiting the resale. You can resell your old box, but you can not transfer your account, and since the box can't take a new account, it is not a useful item to anyone but the original account holder. It is not illegal to make a resale effectively impossible , but you can not ban it under the First Sale Doctrine and [Patent] Exhaustion Doctrine . Accounts are in this case not sold items but subscriptions and don't fall under First Sale but instead are running contracts - and can be regulated as the contracting parties put into the contract. This contract can ban the transfer (for money or free) of the contract.

When is Pro Hac Vice an actual thing?

"I am licensed in the State of Texas and have been admitted on a pro hac vice basis for a case I am handling in Florida. I am not licensed as an attorney in Florida." This is what a lawyer wrote to me in an email, when I asked where he was licensed. The matter at hand in in FL or NJ, while he is licensed in TX. I am not a lawyer but my understanding was that Pro Hac Vice is for appearing in court. We have simply been negotiating via phone/email. How is Pro Hac Vice applied here? And should he be saying that in this case or is he trying to bamboozle me with his legal jargon? Should I request a copy of the authorization he claims to have received? Answers to any of these questions would be very helpful to me. Thank you in advance!

How is Pro Hac Vice applied here? Once you sue your former employer, this lawyer would need to be admitted on a pro hac vice basis if he intends to file an appearance for the defendant (that is, a notification to the court that he will be litigating this matter on behalf of your former employer). And should he be saying that in this case or is he trying to bamboozle me with his legal jargon? He might be trying to stave off any presumption of him making "misleading representations" as to being licensed in Florida. That is because false portrayals on that matter would subject him to sanctions by the disciplinary body of Florida and/or Texas. Or he might be trying to get you to trust him so that later on he can deceive you [on something relevant to your case] more easily. I would consider his disclaimer irrelevant --and bizarre, unless he stated it in response to some inquiry by you-- for the matters you are pursuing. Should I request a copy of the authorization he claims to have received? I believe it is unlikely to be of any use. If you really want to scrutinize his status, though, you can always inquire with the TX and FL bar associations.

Can the defense claim that the defendant isn't the defendant? And if so, how is the case handled?

"I object, Your Honor. What precedent are we setting here? That the defendant isn't actually the defendant?" — An American Pickle (2020) Suppose that a man that society identifies as Herschel Greenbaum is put on trial for a crime that Herschel Greenbaum allegedly committed. However, his attorney claims that the defendant is not Herschel Greenbaum, but another person, Ben Greenbaum, and thus he is innocent. Would such a defense be possible? If so, how the trial would be handled? My perplexity is that the purpose of a trial is to establish the innocence or guilt of the defendant, not to establish that the person in the courtroom is the actual defendant. Note: It seems that my question is somehow unclear. To make it more clear, you can image that the prosecutor has very compelling evidences against Herschel Greenbaum, and that the judge, the jury, and even the defense are quite convinced that Herschel Greenbaum is guilty. Can the defense prove that the man in the courtroom is not the real Herschel Greenbaum? If so, what happens? Is the verdict: "Herschel Greenbaum is not guilty," or is it: "Ben Greenbaum is not guilty," or is there no verdict and the trial is canceled, since the defendant was the wrong man, or something else?

This is, in effect a defense of mistaken identity, and an assertion that the person on trial is not in fact the person who committed the crime. It is not legally significantly different from a case where the defendant claims that a witness has identified the wrong person. Exactly how the defense would be conducted would depend on what evidence establishes that "Herschel Greenbaum" committed the crime, and what evidence establishes (or disproves) that the defendant on trial is that same Herschel Greenbaum. The purpose of a trial is to establish or fail to establish the guilt of the person actually on trial, normally the person present in the courtroom. (trials do not establish innocence in the US). "The defendant" is the person actually on trial, even if an incorrect name has been used in bringing the charge. In such a case people would need to be careful about evidence that applies to a person named "Herschel Greenbaum" but might not apply to the defendant actually on trial.

Can you be shot in "self-defense" for attempting to disarm someone?

"I'd like to see you try and take my gun" is a common mantra among 2nd amendment enthusiasts, the implied sentiment being they'll kill anyone who tries, but I'm interested in what would happen if this actually occurred. If, for instance, a student brought an AR-15 slinged across her back challenging others to take it, and another student abruptly tried to disarm her but was shot and killed, would the student who brought the gun be able to argue a successful self-defense case to a court, or would she likely be found guilty of homicide?

I think it would depend on how a jury viewed the "challenge" to her audience. The general rule for self-defense in Texas is that the person needs to reasonably believe that force is immediately necessary to protect herself from someone else's use of force. I think a jury would find it reasonable to believe that someone forcefully attempting to steal your gun was planning to use it against you. More importantly, the law generally presumes that that belief is reasonable if the person is being robbed, assuming that she isn't otherwise engaged in criminal activity. Since openly carrying an AR-15 is -- as far as I know -- legal in Texas, I think she'd probably be fine. But: The law also says that the use of force is not justified when a person consents to the other person's use of force, or if the person has provoked the other person. So now you have the question of whether the student's challenge constitutes a provocation or consent to the use of force. I think you can make a decent argument for provocation, which means that "the defendant did some act or used some words intended to and calculated to bring on the difficulty in order to have a pretext for inflicting injury." Neal v. State , No. 12-14-00158-CR, 2016 WL 1446138, at *11 (Tex. App. Apr. 13, 2016) . You might also make out a decent argument for consent, which doesn't necessarily seem to require that the parties exactly spell out the rules of engagement, just that there is some kind of agreement between the two parties. In one case, for instance, a defendant tried to argue that a fight had gone beyond the rules because one party used a chokehold and knocked the other out. But the court said that the only actual rule agreed to was that there would be no weapons used. Padilla v. State , No. 03-07-00513-CR, 2008 WL 5423139, at *2 (Tex. App. Dec. 31, 2008) . That makes me think that as long as there's consent to some kind of fight, you don't necessarily need rules, though you do need to abide by them if you agree to them. So what's the scope of consent in this case? If we say that she's agreed to the use of force by challenging people to take something from her, and she hasn't said how you can do it, can you do it by any means you choose? I don't think a court would let someone shoot her to get it, but maybe they would be allowed to pry it out of her hands. So all of that is a long way of saying that this is a tricky question, and that any decision would probably depend a lot on the specific facts of who she was talking to, what exactly she was saying, how she was carrying the gun, and so on.

Is "If it's not forbidden, it's permitted" codified somewhere?

"If something is not forbidden by law, then it is allowed" is a principle that is usually taken for granted in everyday life. For example, there is no law explicitly permitting me to wear a top hat, but there is no law against it either, so wearing a top hat is permitted "by default". Does this principle actually have a formal foundation in law?

Strictly speaking, that principle isn't even true everywhere in the US. The maxim "nulla poena sine lege" (i.e. "no punishment without a prior penal statute") was historically applicable to civil law systems, such as are found in continental Europe. In common-law systems, there was never a tradition in which a crime wasn't a crime unless it violated a penal law, because crimes themselves were traditionally defined by court precedent instead of by statute. In US federal court, the only allowable common-law offense is contempt of court. This is due to a court decision ( United States v. Hudson ), in which the Supreme Court ruled that federal courts do not have the constitutional authority to hear a case in which someone is accused of committing a common-law crime. Even so, and even though there is a federal contempt statute, the Supreme Court has ruled that contempt is an inherent power of any court, and statutes around it only regulate the power (but the power would be there even without a statute). At the state level, some states have explicitly passed laws saying something is not a crime if it doesn't violate the penal code (although this doesn't necessarily apply to contempt); see section 6 of the California Penal Code for an example. In other states, like Florida, common-law crimes still exist; Florida has a statute saying that any common-law offense is still a crime unless a statute has explicitly covered that same subject matter (section 775.01 ), and specifies a generic penalty for anything which is an offense at common law and not addressed by any Florida penal statute (section 775.02 ). While this is sort of statutory (as it's a statute giving the penal provision), it's also basically not (as no statute has to say "X is illegal," because it's enough that English common law makes X illegal).

Does HM Courts and Tribunal Service profit from court fees for litigants unconnected to the UK?

"In fact, English law is the preferred governing law for business transactions worldwide, even those that don’t have any geographic connection with the UK ." If too many litigants unconnected to the UK sue in UK courts, then they shall overwhelm the UK courts and unjustly crowd out UK taxpayers. Thus how does Her Majesty's Courts and Tribunal Service safeguard English courts from being overflowed with foreign litigants unrelated to the UK? HM Courts and Tribunal Service has to get more out of these litigants than these litigants pay???? More than £200,000 £10,000 For example, Soviet oligarchs have sued for way more than £200,000 . Unquestionably, their complex litigation cost English judges, not to mention HM Courts and Tribunal Service, WAY more than £10,000. I know that English judges don't bill by the hour, but I instance with billable hours. Most judges in the Senior Courts were QC's. Presuppose £500/hr as the average fee for a QC. Then £10,000/(£500/hr) = 20 hours. But these complex cases must have taken judges way more than 20 hours to hear! And these lengthy judgments take way more than 20 hours to write!

Courts are a public service They run at a loss. Notwithstanding, just because a contract is under English law doesn’t mean it will be heard in an English court. Other nation’s courts will determine disputes according to English law if the contract so stipulates. Whether an English court will agree to hear a case depends on a) if there is a sufficient nexus with England or Wales to engage jurisdiction and b) if one of the parties argues that a court in another jurisdiction is a more appropriate venue, if the English court agrees.

Copyright implications of dismissing Individual and Representative Plaintiffs v. Github Inc, Microsoft Inc, OpenAI (et al.) on derived LLMs

"Individual and Representative Plaintiffs v. GITHUB, INC., a Delaware corporation; MICROSOFT CORPORATION, a Washington corporation; OPENAI, INC., a Delaware nonprofit corporation; [...]" is a class action lawsuit filed against OpenAI et al which includes the allegation of "violation of the Digital Millennium Copyright Act" (p.4) wrt the way Codex, a GPT-3 series large language model, was trained using open source code from Github user repositories. They note "Numerous questions of law or fact common to the entire Class arise from Defendants’ conduct—including [...] Whether Defendants’ conduct violated the Class’s rights under the DMCA when GitHub and OpenAI caused Codex and Copilot to ingest and distribute Licensed Materials without including any associated Attribution, Copyright Notice, or License Terms. (VI)(D)(37)-(VI)(D)(37)(1) The defendants have made a motion to dismiss the case on several grounds stating "the crux of this claim asserts that OpenAI improperly benefited from using Licensed Materials to create Derived Works" (VI)(A)(3)(B) but refuting that "Plaintiffs do not asserts a copyright infringement claim. Instead they allege that Defendants violated the DMCA by [...] (3) knowingly providing CMI that is false by "asserting and/or implying that CoPilot is the author of Licensed Materials"". (VI)(C)(1). If the DMCA abuse claim of this case gets dismissed, I'm wondering if it would have the effect of nullifying the legal basis to prosecute commercial use of large language models (LLMs) derived from data selected by an even larger model (henceforth, "data derived LLM") -- or at least setting the precedent to do so. Examples of data derived LLMs include Alpaca, Koala, GPT4ALL, and Vicuna, all of which were trained on data produced by OpenAI's models and are currently only available for non-commercial purposes. EG, "the instruction data is based on OpenAI’s text-davinci-003, whose terms of use prohibit developing models that compete with OpenAI." Also worth consideration is this provision in OpenAI's ToS : (c) Restrictions. You may not [...] (iv) except as permitted through the API, use any automated or programmatic method to extract data or output from the Services, including scraping, web harvesting, or web data extraction; [...] The precedent set by the action to dismiss or not dismiss the class action lawsuit against OpenAI et al could have an enormous impact on the economics of training LLMs, since (as of Apr 29) it is orders of magnitude cheaper to train a data derived LLM like Alpaca than a new one . Surely OpenAI would attempt to restrict others from using their LLMs to train new ones for fractions of the price (the maximum penalty for violation is suspension and termination ToS 6(a)), but under their current ToS, could they prosecute such incidents? The big question I'm asking is: Is it considered intellectual property theft to capitalize on synthetic datasets produced by OpenAI's LLMs?

A motion to dismiss sets no precedent Whether it succeeds or not, it does not result in a judgement on the merits, it is simply an analysis on whether the case as pleaded shows the defendant has a case to answer. The case would have to go to trial, have a judgement issued (i.e. not settle), and await the result of final appeals (if any) before it would be considered precedent. As to your final question Is it considered intellectual property theft to capitalize on synthetic datasets produced by OpenAI's LLMs? No one knows. Hence the lawsuit.

"Jingle bells, Batman smells, etc" -- any copyright or trademark problems in that now-famous song lyric?

"Jingle bells, Batman smells, Robin's laid an egg" -- any copyright or trademark problems, per se , in that now-famous song lyric?

The original Jingle Bells song was first published as a Thanksgiving Song in 1857 and has lapsed into public domain. The Batman lyrics constitute parody which would further put their singing under fair use. You may sing it as part of your own musical arrangement with little discourse from Warner Bros, the current copyright holders of Batman and related properties OR the original parody lyricist, who has not to my knowledge done anything to protect his copyright claim to the song. You may not sell the version of the Batman version as sung by Mark Hamil in the 1992 Batman: The Animated Series episode "Christmas with the Joker" without permission of Warner Bros.

"Like Facebook, only better" - Can I legally use this in marketing?

"Like Facebook, only better" - Can I legally use this in advertising for my website. Is it possible to do so without getting sued?

UK-based answer here: It is entirely legal for a firm to make a statement which compares itself to a competitor, so long as it is true (Defamation Act 2013 s2) or is an honest statement of opinion (Defamation Act 2013 s3(1)). However with regards to a "statement of opinion", generally speaking a disclaimer of "it is our opinion that..." is necessary because certain statements may be ambiguous as to whether they are opinions or not. For example, "I hate x, he sucks," is a clear statement of opinion but "X is ugly," may or may not be one, whereas "I believe that / It is my opinion that X is ugly," reaffirms that this is an opinion. I use the example of someone calling someone else ugly because in Berkoff v Burchill (1996) All ER we know that calling someone ugly counts as defamation if their career can be impacted by it (in this case the complainant was involved in showbusiness and was called "hideously ugly"). But do note that with regards to statements of opinions, a basis for this opinion must be indicated in the statement (Defamation Act 2013 s3(3)). The law on defamation (while mostly case law, see Defamation Act 2013 ) is that a statement has caused or is likely to cause serious financial or reputational harm to a person (or firm) (see DA 2013 s1). In a commercial context this means a business can commit defamation if they say something that is not only false but also causes serious financial harm to the victim of the false statement. Because of this, firms will not often directly attack or compare themselves to other large competitors, unless these are factual comparisons (e.g., "Our apples are 50% cheaper than Tesco's/Walmart's apples!"). The problem with the statement "like Facebook but better" is that it is hard to outright prove that your site is better in every way than Facebook, or is overall a better experience. However if this statement was scrutinized in court one would argue that it was simply an obvious statement of opinion rather than fact (an obvious statement of opinion is a defence to defamation). That all said, DA 2013 s1(2) requires that: For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss. So if a small social networking site makes such a statement, Facebook would need to show that they have suffered massive financial loss as a result of the statement, or would likely suffer serious financial loss in the future. So I would argue that the statement "like Facebook, only better" is a realistically safe statement to make (unless the site becomes so successful it takes a majority of Facebook's users away, in which case the site would likely get sued and may have to take the statement down).

Marijuana Reclassification

"Marihuana" is a Schedule I drug. What will it take for marijuana to be reclassified into a federally legitimate (available anywhere over the counter and could be used recreationally by anyone over 18) drug? https://www.fda.gov/news-events/public-health-focus/fda-and-cannabis-research-and-drug-approval-process

The controlling federal (US) law is: 21 U.S. Code § 812 - Schedules of controlled substances 21 US Code 812 and "Marijuana" is specifically listed among Schedule 1 substances. Just as with any other federal law, for this to be changed, Congress would need to amend or repeal this statute so that Marijuana no longer appears in the list and the act would then need to be signed into law by the President, allowed to take effect without signature, or vetoed and overridden by Congress. I suppose another possibility would be for a federal court to rule that 21 U.S. Code § 812 (or Marijuana's inclusion in the list) is unconstitutional.

Is it legal to say "Let's Go Brandon" on amateur radio?

"No amateur station shall transmit... obscene or indecent words or language..." Saying the original phrase Let's Go Brandon was derived from would certainly violate this, but would saying Let's Go Brandon be an issue? As a comment by user sonyfreak points out, quoting the Wikipedia article "Let's Go Brandon" : "Let's Go Brandon" is a political slogan and Internet meme that has been used as a minced oath for "Fuck Joe Biden", in reference to Joe Biden, the 46th president of the United States.

According to the official FCC page "Obscene, Indecent and Profane Broadcasts" : Indecent content portrays sexual or excretory organs or activities in a way that is patently offensive but does not meet the three-prong test for obscenity. This page does not cite any laws or sources. The "three-prong test" would ber the rule from Miller v. California , 413 U.S. 15 (1973) A minced oath such as "Let's Go Brandon" would not appear to violate this rule. Violations of the rule against indecent content that the FCC may penalize are known as "Actionable indecency" . These rules originated in the case Federal Communications Commission v. Pacifica Foundation , 438 U.S. 726 (1978) but have since been modified by the FCC. Such violations may be penalized under 47 USC 502 or 47 USC 503 Lili Levy, in The FCC's Regulation of Indecency (April 2008) has argued that these modified rules may not be constitutional as applied. 47 USC 152 defiens the scope of this chapter as: The provisions of this chapter shall apply to all interstate and foreign communication by wire or radio and all interstate and foreign transmission of energy by radio, which originates and/or is received within the United States, and to all persons engaged within the United States in such communication or such transmission of energy by radio, and to the licensing and regulating of all radio stations as hereinafter provided;  but it shall not apply to persons engaged in wire or radio communication or transmission in the Canal Zone ... 47 USC 153 the definitions section of this law) specifies that: The term “amateur station” means a radio station operated by a duly authorized person interested in radio technique solely with a personal aim and without pecuniary interest. ... The term “broadcast station”, “broadcasting station”, or “radio broadcast station” means a radio station equipped to engage in broadcasting as herein defined. ... The term “broadcasting” means the dissemination of radio communications intended to be received by the public, directly or by the intermediary of relay stations.

When is "at the time of the gift or inheritance"?

"Similarly, if you received specified foreign property as a gift, or inheritance, the cost amount is its fair market value at the time of the gift or inheritance" Question: If I am the beneficiary of a foreign non qualified annuity and I opt to leave the annuity in place for a few years (five year rule) and take out a distribution here and there..... What is the timing of this gift? would I be in receipt, time of death, time of reporting death to insurance company, time of receipt of distributions? Would the full amount of the annuity be a part of my calculation of ACB for currency gains/losses or just the distribution?

That would be the moment you came into the possession of the item. Specific to the clause, it's looking for the fair market value of the item (if it's not a specific dollar sum) when you received it (once upon a time, during the Ming Dynasty, you could get Ming Vases for a lot cheaper than you can today, since that Dynasty ended in 1644 and by default any Made in China Vase you can buy today isn't going to be a Ming Dynasty vase). Basically put, when the item was given to you for free, how much would you have had to pay for an identical item at the same time?

Can I use a TV character name for my business brand?

"Species 8472" is a legendary race in the Star Trek universe, which is the only one other than humans to ever have defeated the Borg. It has particular resonance amongst tech nerds, for this reason. I want to therefore register a website with the number 8472 in it. For example "trader8472" or "sensor8472" etc. Would this be against copyright? Assume I did not use the likenesses of Species 8472 nor any overt Star Trek references. Am I likely to have CBS or Paramount, owners of Star Trek, come after me if the site is operated as a business?

There is no IP in a number - can't be copyright, can't be trademarked. We have Pentium chips today because Intel couldn't patent the 586.

Meaning of "Strike from the Record" in legal code? Is there *any* memory/record once "stricken"? By who/what handled/processed? Proof of striking?

"Strike the record" ("strike from the record", "strike that from the record") is a frequently spoken phrase in legal procedural docudramas. Are there violent connotations historically to the word "strike" as used (very often the term is screamed [at extreme decibels], by my memory), legal repercussions from being strickened? Speaking terminology, are we talking about specifically the delete key or are we burning fires of physical storage, do such operations require write-over how many times, are there standards for the definition of stages of being stricken, otherwise are there rules for storage (how much leaks/security?), is it a vault filing cabinet with what security, is somebody watching somebody securing the evidence struck, are there universal standards for the polices behind the law, is the strickening process recorded, is there a process? Searching https://www.google.com/search?q=%22strike+from+the+record%22 / https://en.wikipedia.org/wiki/Strike_from_the_record / https://www.google.com/search?q=%22strike+the+record%22 / https://en.wikipedia.org/w/index.php?title=Special:Search&search=%22strike+the+record%22 / https://www.google.com/search?q=legal+definition+%22stirke+the+record%22 ...there are limited references to the legal/technical process that the specific verbal statement has the power to enact. There, the search results are repetitive definitions, and not much of an explanation (maybe specific step-by-step process would help, so for my frame of reference I can try to relate to if a computer strikes information similarly, as an issue of data integrity is it at all an appropriate analogous process to help explain? I'm thinking if that's like a question being moderated/censored/deleted/hidden where there are varying levels of access after, for example, with the process being cursorily defined by standards of law and mostly driven by customs. Am I correct to expect the same data integrity standards and principles are applied to cloud and court data equally? Is the court obligated to process/serve/protect/encrypt the striking before/during/after in specific written and agreed upon ways in every court room?) of the process. If you also know, does that mean there is any record? Clearly people might remember, but does the law have any power to remember such stricken information? Is the paper burned, or electronically written over? Specifically the delete key or are we burning physical storage? To what extent, for in or out of court, is there penalty for remembering stricken information? Legal docudrama example as mentioned, shows a physical pen being theoretically used to demarcate. Once the order is made, is that the whole/entire official process?

My understanding is that "the record" only refers to the official record of the proceeding, e.g. the transcripts that would be kept on file and used as the basis for formal decisions. Such records are usually prepared after the fact by a court reporter based on their shorthand notes or audio recordings, so this indicates that the reporter should simply leave out the statement in question when creating those records, perhaps replacing it with a marking saying "(stricken)" or something of the sort. "Stricken from the record" doesn't indicate that the statement is to be kept secret or scrubbed from all history in some Orwellian fashion, merely that it should not be considered in any legal decision-making process (e.g. a judge's ruling). The decision should be made as if the statement had never been uttered. Anyone else in the courtroom -- lawyers, journalists, members of the public -- is free to remember it, write it down, publish it, shout it from the rooftops, or etch it into stone tablets, if they wish. No penalties exist for doing so. I also don't think there is any requirement to delete it from the court reporter's preliminary notes or audio recordings; again, only from the final official transcript. (There could be other situations where it is forbidden to record or divulge what was said: secret grand jury proceedings, material under seal, gag orders, etc. But those would all require some sort of regulation or order outside the usual meaning of the phrase "strike from the record".)

How specific must a contract be?

"There is no refunds with this purchase. If you are a mentor or are affiliated with any other trade teams you will be removed and will not be refunded if found. Legal action will be taken on any members that share our content. Vertex Investing are not financial advisors, Following trade ideas and trading in general does have an element of risk. Please do not risk capital you cannot afford. Vertex investing are not liable for any losses incurred." This is what is in my terms and conditions... Someone is trying to get out of paying (of course I will be writing a proper contractual agreement after this) but how valid is my argument for having them pay?

The question does not say what reasons the other party gives for not paying, and so one cannot judge whether such reason is covered by the terms quoted in the question. In general a contract need not be highly specific if the intent is clear. However, any ambiguity will usually be resolved against the party who wrote the contract, so it is in that party's interest to be as clear and specific as possible. It is not clear from the quoted terms that they form a contract at all. No consideration is stated. Contractual provisions which deny all recourse are not always enforceable. They may be overruled by law or regulation, or by prior court decision or by an equitable decision. If there is a serious problem with the service provided, particularly in a consumer transaction, a court might reject a provision denying all refunds even if it is quite specific and clear. The question does not list the jurisdiction (country and, for federal countries, state or province). Laws on contracts and enforceable terms vary significantly in different jurisdictions. Without this a specific answer is not possible.

How can incitement of imminent lawless action not be constitutionally protected?

"advocacy intended, and likely, to incite imminent lawless action, see Brandenburg v. Ohio, 395 U.S. 444 (1969);" But doesn't the founding documents of the US enshrine the right of the people to overthrow a government when it no longer serves their democratic ends? Are these two doctrines not at severe conflict? Is Revolution not intrinsically lawless action? For that matter how are offences like treason and conspiracy to overthrow the government or defying lawful authorities reconciled with this founding doctrine?

How can incitement of imminent lawless action not be constitutionally protected? The short answer to your question is "because the Supreme Court of the United States said so." In Brandenburg v. Ohio SCOTUS found that the Constitution protects speech that calls for lawless action in the abstract but does not protect speech "directed to inciting or producing imminent lawless action and is likely to incite or produce such action". The court's per curiam opinion seems to treat the decision as self-evident - it's quite short after discussing the facts of the case. However, Justice William O. Douglas wrote a concurring opinion (his "caveat") that discussed and was critical of previous decisions in such cases, including the use of the 'clear and present danger test', so his opinion is useful for a brief history of First Amendment judgments to that point ( Brandenburg ). The Declaration of Independence is not law. Following "a history of repeated injuries and usurpations" and failures to reach political settlements it asserts a moral right to overthrow the tyranny of the British crown. It alludes to rights, it does not "enshrine" or create a legal right that the judiciary can interpret. Judges might refer to the Declaration in their judgments, not using it as legal authority but an articulation of fundamental values.

How do you interpret: option to break after 12 months with at least 2 months’ notice

"option to break after 12 months with at least 2 months’ notice" In my opinion, the sentence above can be interpreted as follows: 1) the agreement can be broken at least 12 months after inception date. In our case, the agreement starts June 1st 2019 and hence the agreement cannot be broken before May 31st 2020. 2) Would we wanna break the agreement, we need to give a 2 months notice before ending the agreement. Example: if we wanna leave Sept 1st 2020, we need to inform you/the landlord latest June 31st 2020. Both conditions 1 and 2 have to be fulfilled. The two conditions are inclusive.

Your interpretation is correct. And yes, both conditions need to be met. Other terms in the lease might clarify that the last month's rent will not be prorated even if the notice is such that the unit is vacated prior to the end of a calendar month.

Clarifying language on law of auction sale

"where the sale is not notified to be subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ any person to bid at such sale, or for the auctioneer knowingly to take any bid from the seller or any such person; and any sale contravening this rule may be treated as fraudulent by the buyer;" Can anyone explain this in simple terms and if possible with an example.

The seller may not bid (on item referred to) unless notification (in unspecified manner) has been given that the seller retains the right to bid. The seller also may not employ a person to bid on his/her behalf unless such notification is given. The auctioneer may not take such bids, if he knows that the bid is forbidden in this way. A sale violating this rule is fraudulent. This is a widespread rule: it means that if I'm selling my car at an auction, I can't bid on the car, or get someone to bid for me, unless I give notice that I'm doing that. I might do so in order to get a higher sale price (as long as I don't get stuck as the highest bidder); instead, there is the reserve / upset price clause allowing a minimum sale price.

Bribery? $1 million pledged against Collins if she backs Kavanaugh

$1 million pledged against Collins if she backs Kavanaugh "The senator and her Republican colleagues are decrying the effort in Maine as attempted bribery, as attention shifts from Kavanaugh's confirmation hearings to the question of how lawmakers will vote on his nomination" How does the pledge fit the label of bribery? or does the notion earn another label? Obviously the donor can not give Senator Collins $1M to vote against Kavanaugh, without a bribery issue being raised. That being said, this is an interesting spin in that if Collins does not vote for Kavanaugh, how can we know that she is not influenced by the pledge?

It sounds less like bribery (where you give someone a benefit in exchange for an official act) than like extortion (where you threaten some harm in the absence of an act).

What is meant by a litigant insuring a judge's life?

' Lord Scarman ' The Telegraph (10 Dec 2004). Scarman was assigned to the Probate, Divorce and Admiralty Division (moving to the Family Division when it was abolished) and presided over the longest probate case ever heard: his judgment ran to 24,000 words and his life was insured for £300,000 by one of the parties involved . During the case, he commented sagely: "Darkness and suspicion are common features of will cases. Truth too often is the secret of the dead or the dishonest."

It means exactly what it says: one of the parties (call them A) to the case purchased a life insurance policy that would pay £300,000 (presumably to A) if the judge were to die. Why they did this, we can only guess. But if the case was extremely long, there may have been a greater chance that the judge would die before it ended, and this would presumably delay the proceedings even further, causing more trouble and expense to the parties. It may be that A wanted to be protected financially if this happened. Another possibility is that A felt that Scarman was favoring A's side of the case; if Scarman were to die and be replaced by another judge, it might reduce A's chances of winning, and so A wanted insurance against that.

Intra-community civil actions in the EU

'A' (in an EU member state) contracts with 'B' (in another member state) who then breaches the contract. Can 'A' sue 'B' under some harmonised community-wide procedure? If not, in which state does 'A' bring his action (if not stated in the contract)?

For the first question, assuming EU legislation being applicable here, EU regulation No 1896/2006 of 12 December 2006 on creating a European order for payment procedure may be relevant, foreseeing a unified procedure for payment claims. On the second one, the answer is likely to be found in EU regulation No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters . This regulation has in its Article 4 a general rule (persons domiciled in a Member State shall [..] be sued in the courts of that Member State) but of course also several exceptions to this rule. A relevant exception here is contained in Article 7: In matters relating to a contract, the courts for the place of performance of the obligation in question are competent.

What is a 'creed' legally?

'Creed' is a 'protected characteristic' with respect to discrimination or harassment, at least in some U.S. jurisdictions or for some private employers. The Wikipedia article "Creed" defines it thus: A creed (also confession, symbol, or statement of faith) is a statement of the shared beliefs of a religious community in the form of a fixed formula summarizing core tenets. Does the legal definition, or any (if there are multiple) legal definitions, significantly differ from the above?

It appears to be a grey area and does not appear to have an explicit definition aside from religion in many jurisdictions. Even those jurisdictions that discuss a broader definition, seem to shy away from actually doing so. Note that this is only a cursory search and experts in various jurisdictions may come up with more detailed results. This case seems to mean that it is a formal declaration of a recognized religion. Creed Legal Definition The word creed imports a formal declaration of religious belief. The word has no reference to benevolent, philanthropic or fraternal organizations, secret or otherwise, even though of a moral character. [Hammer v. State, 173 Ind. 199 (Ind. 1909)]. This site Says that it appears to be based on religion, but shows that (in Tennessee at least) there is no specific case law on the matter. Since the law has not yet established what “creed” means, as far as prohibiting employment discrimination on that basis, employers have little guidance in this area. If an employee presents a non-religious but sincerely held belief, will that be enough to be considered a “creed” by the courts? With only a gut feeling to go by, we think it likely that Tennessee courts will lean toward the view that “creed” and “religion” are synonymous terms; thus, veganism, for example, since it does not constitute a religious belief, would not be a protected group under the THRA. However, to play it safe, employers should refrain from passing judgment or making derogatory comments regarding an employee’s expressed beliefs. The hard part will come when an employer is faced with a situation that may appear he is terminating an employee due to his creed. Sooner or later, the courts will be ruling in such cases. While we tend to think that Tennessee will decide that creed equals religion (for THRA purposes), the last time we checked, the courts were not giving us a vote on the question. So, employers, proceed with care! Ontario Human Rights Commission Various other cases have left open the possibility that non-religious belief may constitute a creed under the Code (as discussed below). Overall, the courts appear to be reluctant to offer any final, authoritative, definitive or closed definition of creed, preferring a more organic, analogical (“if it looks like a duck, walks like a duck and quacks like a duck, it must be a duck”)[232] case-by-case assessment. This has yielded a variety of results. Courts and tribunals have recognized a wide variety of subjectively defined religious and spiritual beliefs within the meaning of creed under the Code and religion under the Charter, including: Aboriginal spiritual practices,[233] Wiccans,[234] Hutterian Bretheren[235] Raelians[236] Practitioners of Falun Gong[237] Members of the Worldwide Church of God[238] Rocky Mountain Mystery School.[239] There is nothing in the case law that would prohibit redefining “creed” more broadly and include secular ethical and moral beliefs. Therefore, the question of what should constitute a creed in terms of the right to be free from discrimination under the Ontario Code – in particular with respect to secular, moral or ethical beliefs – remains an open one. In fact, this is a central question being considered in the current creed policy update. At the same time, the courts have offered some guidelines around the outer limits of what they will recognize as meriting protection under the Code ground of creed (as discussed below) .

To whom does the German 'Impressumspflicht' apply?

'Impressumspflicht' is a law in Germany forcing people running a website to publish personal information like name, address, email, telephone number and so forth. If it is a commercial website, even more information needs to be provided like tax number, competent court and so on. My question is, what are the exact circumstances for this law to apply? I'm pretty sure it applies to people residing in Germany, even if the server hosting the website is not in Germany. But what about a foreigner or a German citizen not residing in Germany, but the hosting server is in Germany? Does the law apply then? Or if the website officially belongs to a foreign company? Thus, the variables in which I would like the application of said law to be examined are: Citizenship (German or not) Permanent residency (in Germany or not) Location of the server (in Germany or not) The possible implications of a foreign company It might also make a difference, if the foreign country is in the EU. Maybe the values should better read (Germany / EU / Rest of the World).

Disclaimer: Links are in German. My German is quite rough. Quoted translations provided by Google Translate. Turns out the question "Do I need an Impressum ?" is complicated. I'll start with examining the case for companies, then work down to the average private citizen. Impressum requirement The requirement for an online Impressum comes from the Telemediengesetz (TMG) § 5 : 1) Service providers are obliged to keep the following information readily available, readily accessible and constantly available for commercial, usually paid telemedia: the name and address under which they are established [...] Applicability based on country of origin The applicability of the TMG is described in §§ 2a , 3 . Thankfully, there is a 2013 court case focused on these sections, involving an Egyptian company marketing cruises and not having a proper Impressum on their website. Also thankful is that law firm mth Tieben & Partner summarized this decision, because as it turns out, I cannot read judicial German. Summarizing their summary, §§ 2a, 3 sets the standard that the required information is based on a country of origin principle ( Herkunftslandprinzip ), where if that country of origin is Germany, § 5 applies. However, this principle is rooted in EU directives, and as such is not applicable to non-EU countries. For these, the law falls back on the older principle of market location ( Marktortprinzip ). If the non-EU company advertises in Germany and thus participates in the German market, then it must have a valid Impressum . I'll note that, the TMG considers Germany to be the "country of origin" if the company is either registered in or has significant operations in Germany (see the given sections for specifics). This is not the same "country of origin" as is found in copyright law. Applicability to private website hosts As it turns out, an Impressum is not required for private non-commercial websites. However, as pointed out by this Anwalt article , the wording of the TMG makes it such that omitting an Impressum may often be illegal. In particular, the definitions section of the TMG provides very broad definitions of "Service provider" ( Diensteanbieter ): Service provider shall mean any natural or legal person who provides his own or third-party telemedia for use or provides access to use; in the case of audiovisual media services on demand, service providers shall mean any natural or legal person who effectively controls the selection and design of the content offered, and "commercial communication" ( kommerzielle Kommunikation ): Commercial communication means any form of communication which serves the direct or indirect promotion of the sale of goods, services or the appearance of an undertaking, other organization or a natural person engaged in trade, trades or crafts or a liberal professions; [...] Conclusion In terms of variables like the one you suggest, the proper "variable" for companies is the country of origin. For private web hosts, I would argue that residency is the closest analogue to country of origin as defined in TMG §§ 2a, 3. Location of server doesn't matter, and I don't think citizenship does either. With that in mind, the values would be: Germany: Required EU: Not required Rest of world: Required if advertised/directed in/towards Germany. with the caveat that truly private non-commercial websites never require an Impressum .

reduce into possession

'reduced into possession' isn't just worded for animals. 'reduce' here doesn't feel like ordinary meaning. What does it mean? I quote Etymonline because legalese can deceivingly use common words today but actually aim for some bygone meaning. Why not just use 'possess'? Herring, Criminal Law: Text, Cases, and Materials (8 edn, 2018) . p. 493 Wild creatures These are dealt with by section 4(4) of the Theft Act 1968, which provides: Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either it has been reduced into possession [emboldening mine] by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession . The key distinction drawn in this section is between tamed creatures (e.g. pets), wild creatures kept in captivity (e.g. wild animals kept in a zoo) or reduced into possession (e.g. wild animals which have been trapped), and wild creatures not kept in captivity. Tame animals are treated as property and can be stolen. Similarly, wild animals kept in captivity or reduced into possession can be stolen.8 However, wild animals not kept in captivity are not property and cannot be stolen. [....] 8 Cresswell v DPP [2006] EWHC 3379 (Admin) held that wild badgers were not property.

A thing that is not owned by anyone is said to be Res nullius (no person's thing). When a person captures, seizes, or takes into his or her possession such a thing, that person is said to "reduce it to possession". This refers to the act by which it becomes that person's legal property. Subsequently it is one of that person's possessions. This phrase is an idiom and cannot be usefully analyzed by looking at the meanings of the individual words. Why it has the form it does is an historical question, which I cannot answer. The phrase "reduce to possession" is also used for an act which converts a legal right into an asset. For example, a person who is owed a debt has a right to collect a sum of money, but does not have possession of that money, nor title to it. The act of paying the debt "reduces it to possession". So does the act of seizing collateral in satisfaction of the debt. The English Larceny Act of 1916 reads, in part: Provided that save as hereinafter expressly provided with respect to fixtures growing things, and ore from mines, anything attached to or forming part of the realty shall not be capable of being stolen by the person who severs the same from the realty, unless after severance he has abandoned possession thereof; and the carcase (sic) of a creature wild by nature and not reduced into possession while living shall not be capable of being stolen by the person who has killed such creature, unless after killing it he has abandoned possession of the carcase." See: TheLaw.com The Law Dictionary Black's Law Dictionary American Legal Encyclopedia

I owe rent for a month and my landord is threatening me to move my stuff out of the house

( Note: I know a similar question has been asked but this is slightly different in terms of the agreement and I also have specific location information which might help come up to a better conclusion.) This is Covid19 pandemic time and I understand that it is a tough time for everyone. I'm living in a rented single room in a shared-house with a verbal agreement (No on-paper lease) in MA, US. As per the verbal agreement, I'm supposed to pay the rent at the start of every month. Also, there is a 1-month deposit which I had already paid. Also, I'm not sure if my landlord is renting the place legally or illegally. Only, this month (May 2020), I requested him to pay the rent of May & June together by June 15th. Also, I haven't been staying at my house since more than 2 month. But, he threatens me to pay rent of May within a couple of days or he will ask someone to put my personal belongings from my room to somewhere outside the house in my absence and without my permission. Q. Can he legally do that without me giving him permission and in my absence? Any solution or recommendation? Thanks in advance!

Even with a verbal lease, evictions must be done legally; the landlord can't evict you with out going through a legal process that takes time, and can't legally dump your possessions outside, or ask someone else to do it. In addition, according to MassLegalHelp , there are temporary changes to evictions due to Covid-19: • Evictions and foreclosures are on hold. • Your landlord cannot lock you out or shut off your utilities. Read the link Housing - MassLegalHelp for more information and help if needed.

Why obtain two first degrees in law, when one suffices?

( TL;DR - Summary ) Why study 2 first professional degrees in law? I know firsthand that a first degree in law from Canada, US, UK, or Oceania qualifies for postgraduate law programs (eg LLM) in these countries. So why did these 'legal eagles' NOT do an LLM, in place of the second LLB or JD? Doing a second LLB or JD, resembles repetition of material already learned. ( Optional Reading ) I know that in North America, the LLB is superseded by the JD, but not in other Commonwealth countries (eg Oceania, UK). I exemplify with some notable legal practitioners: SCOC Justices (whom I originally found from this article ): Ronald Martland ,   B.A. in 1926, an LL.B in 1928 (University of Alberta), BA in 1930, a BCL in 1931 (Hertford College, Oxford University) Gérard La Forest BCL in 1949 (University of New Brunswick), BA in 1951, MA in 1956 (St John's College, Oxford) Ian Binnie ,  LL.B in 1963, LL.M in 1988 (Cambridge University), LL.B in 1965 (U of Toronto) Governor General of Canada David Johnston , LL.B in 1965 (Cambridge University), LL.B in 1966 Queen's University . I don't know what Justice Julien Chouinard studied at Oxford; so I don't list him. Professor Trevor Farrow , BA/MA Jurisprudence in 1992 (Wadham College, Oxford), LLB in 1993 (Dalhousie Law School) Retired SCOTUS Justice David Souter ,  A.B. magna cum laude in 1961 (Harvard), MA Jurisprudence in 1963 (Magdalen College, Oxford), LLB in 1965 (Harvard Law School)

Basically: what Flup said in his last paragraph (and so upvoted accordingly). Every one of the practitioners you named has an undergraduate degree from the UK, and an undergraduate degree from Canada. This, presumably, is because you're not permitted to practise law in most jurisdictions unless you have some kind of qualification in the law of that particular jurisdiction. The laws of each country, and moreover, the way in which cases are decided and in which each country's legal system works, varies so tremendously that you need to study the particulars for each jurisdiction before you can practice there. Regarding Canada: from this site : You must complete a Bachelor of Laws (L.L.B.) program or Juris Doctor (J.D.) program in order to qualify for bar membership in any Canadian province or territory. This generally takes three years to complete. In England and Wales, you can now take a law conversion course in place of an undergraduate law degree as a first stage towards being qualified. I suspect, however, looking at the dates of the judges you list, that the law conversion course wasn't an option at the time they got their qualifications, so their only option was a full undergraduate course. So the answer is: they each have two undergraduate qualifications, one from each jurisdiction, so that they could qualify to practise law in both jurisdictions.

Income tax bracket threshold for zero tax in the US and regarding no income at all

(1) I am trying to find out whether one has to file any income tax if they are an American citizen permanently living abroad but having literally no income? (2) While trying to search about this on the internet, I wondered why is there no tax bracket with 0% or nil income tax (the UK doesn't tax income upto £12,500 for example). This means that people earning below that threshold are exempt from paying tax. Is there no such Nil or 0% tax thing in the US? So many countries have this minimum threshold income where no filing of income tax is required. Even countries like India have such policy. But I can only see that in the US you have to pay 10% tax minimum no matter how less you earn. I would really appreciate if you could help me regarding those 2 questions. Thank you:)

Q2: US tax brackets are based on your taxable income , which is computed by applying various adjustments and deductions to your "actual" gross income. In particular, most taxpayers are entitled to apply a standard deduction which is currently about $12,000 for a single taxpayer. So if you are a single taxpayer with a gross income of, say, $10,000, then after taking the standard deduction you have a taxable income of $0 (it cannot go negative) and therefore you owe $0 in taxes. The overall effect is somewhat similar to having a 0% tax bracket.

What is the significance of Knight First Amendment Institute v. Trump/Biden?

(1) It appears that a Federal court had ruled that Trump's twitter account is a public forum, and thus protected by the first amendment. Is this a correct analysis of the original ruling by the Federal court? (2) Why was Twitter allowed to delete Trump's account, after the ruling by the Federal court was issued, designating Trump's account as having special status under the First Amendment? (3) Ironically, shortly before his permanent ban, Trump appealed to the Supreme Court, arguing that his personal twitter account is not a public forum. "The Supreme Court subsequently vacated the decision and remanded the case to the Second Circuit as to render the case moot" What does this mean, in simple English? (4) "The Knight Institute has responded to this brief by arguing the Second Circuit ruling should remain" So, as of now, is the original ruling by the Federal court still valid? Or is it null and void? (5) Justice Thomas said in 593 U. S. ____ (2021) "We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms." So why haven't any of the banned public figures filed lawsuits arguing that social media accounts are protected public squares? And why did Trump paradoxically file suit arguing otherwise?

Overview Knight First Amendment Institute v. Trump, No. 1:17-cv-05205 (S.D.N.Y.) was a suit over Trump's blocking various people and other account holders from posting to his Twitter account, @realDonaldTrump. The district court held that by positing official government actions to twitter, as well as statements of public policy, and inviting people generally to respond, Trump had created a public forum, and could not constitutionally block specific people or groups from that forum based on their political views. The Second Circuit Court of Appeals upheld this decision. Trump appealed to the US Supreme Court. Before the Court could rule, President Biden was elected and took office. Because Trump had been sued in his specific role as President (and more generally as a government official) Biden was substituted for Trump as Defendant. Because the @RealDonaldTrump account was no longer controlled as a government official, the Court held that it was no longer a public forum, and remanded it to the Second Circuit as moot . That means the issue was closed, and there is no remaining issue for a court to resolve. US Courts do not decide moot issues. Specific Questions (1) It appears that a Federal court had ruled that Trump's twitter account is a public forum, and thus protected by the first amendment. Is this a correct analysis of the original ruling by the Federal court? Almost but not quite. More specifically, the district court held that that part of the President's Twitter account used for responding to the President's tweets constituted a public forum. The rest of the account was not a public forum. (2) Why was Twitter allowed to delete Trump's account, after the ruling by the Federal court was issued, designating Trump's account as having special status under the First Amendment? Because the "public forum* status limited only what the President, and other public officials could do, not what Twitter or another private actor might do. Moreover, what was prohibited was the act of excluding specific people from responding based on their political views or expressed opinions, while allowing others to respond. Nothing in the ruling would have forbidden Trump from deleting the account completely, or from prohibiting anyone to respond. It was the selective blocking by Trump, then a government official that was held to be unlawful. "The Supreme Court subsequently vacated the decision and remanded the case to the Second Circuit as to render the case moot" What does this mean, in simple English? It means that the Supreme Court held that there was no longer a live controversy for a court to decide, and sent the case back to the Second Circuit (the Court of Appeals that had previously issued a judgement in the case) for it to officially declare the judgement canceled because there was no longer a case to decide (which is what "moot" means in this context). (4) "The Knight Institute has responded to this brief by arguing the Second Circuit ruling should remain" So, as of now, is the original ruling by the Federal court still valid? Or is it null and void? The judgement has been, at least technically, voided, and is not binding precedent. But the opinion was and is published, and may be cited as persuasive authority. It is not unlikely that a similar case in future would follow the Second Circuit decision, which upheld the district court. (5) Justice Thomas said in 593 U. S. ____ (2021) "We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms." So why haven't any of the banned public figures filed lawsuits arguing that social media accounts are protected public squares? And why did Trump paradoxically file suit arguing otherwise? A person cannot, in any US Federal court, file a lawsuit just to establish an abstract legal point. There must be an actual case with significant rights or interests at stake. This is known as the "case or controversy rule". Until some government action blocks a person from some "digital town square" no one can sue to establish that it is a public forum and that the blocking is unlawful. Trump's contention that his Twitter account was not a public forum was in no way paradoxical. If the Court had held that it was not a public forum, he would have been free to control it as his private property (subject to those twitter rules that apply to all users) and could have freely blocked whoever he chose, for any reason or none. District Court Ruling In the Memorandom and Order in response for a motion for Summery Judgement, Judge Buchwld (of the US District Court) wrote: We hold that portions of the @realDonaldTrump account -- the “interactive space” where Twitter users may directly engage with the content of the President’s tweets -- are properly analyzed under the “public forum” doctrines set forth by the Supreme Court, that such space is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment. In so holding, we reject the defendants’ contentions that the First Amendment does not apply in this case and that the President’s personal First Amendment interests supersede those of plaintiffs. ... Since his inauguration in January 2017, President Trump has used the @realDonaldTrump account as a channel for communicating and interacting with the public about his administration. ... With the assistance of Mr. Scavino in certain instances, President Trump uses @realDonaldTrump, often multiple times a day, to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations whose coverage of his Administration he believes to be unfair; and for other statements, including on occasion statements unrelated to official government business. ... The primary point of dispute between the parties is whether a public official’s blocking of the individual plaintiffs on Twitter implicates a forum for First Amendment purposes. ... ... As a threshold matter, for a space to be susceptible to forum analysis, it must be owned or controlled by the government. See, e.g., Cornelius , 473 U.S. at 801 [A] speaker must seek access to public property or to private property dedicated to public use to evoke First Amendment concerns. ... The Supreme Court has instructed that in determining whether these requirements are satisfied (i.e., whether forum analysis can be appropriately applied), we should identify the putative forum by “focus[ing] on the access sought by the speaker.” Cornelius , 473 U.S. at 801; see Lebron v. Nat’l R.R. Passenger Corp. (Amtrak) , 69 F.3d 650, 655 (2d Cir. 1995). ... ... in Lehman v. City of Shaker Heights , where the plaintiff sought access to advertising space on the side of city buses, the advertising space and not the buses constituted the putative forum. 418 U.S. 298, 300-01 (1974). Indeed, this exercise in carefully delineating the putative forum based on the access sought is not an academic one. ... Though Twitter is a private (though publicly traded) company that is not government-owned, the President and Scavino nonetheless exercise control over various aspects of the @realDonaldTrump account: they control the content of the tweets that are sent from the account and they hold the ability to prevent, through blocking, other Twitter users, including the individual plaintiffs here, from accessing the @realDonaldTrump timeline (while logged into the blocked account) and from participating in the interactive space associated with the tweets sent by the @realDonaldTrump account, ... the extent to which the President and Scavino can, and do, exercise control over aspects of the @realDonaldTrump account are sufficient to establish the government-control element as to the content of the tweets sent by the @realDonaldTrump account, the timeline compiling those tweets, and the interactive space associated with each of those tweets. ... As the Second Circuit has recently explained, [b]ecause facilities or locations deemed to be public forums are usually operated by governments, determining that a particular facility or location is a public forum usually suffices to render the challenged action taken there to be state action subject to First Amendment limitations. Halleck v. Manhattan Cmty. Access Corp. , 882 F.3d 300, 306–07 (2d Cir. 2018) (citing Widmar v. Vincent , 454 U.S. 263, 265-68 (1981), and City of Madison, Joint Sch. Dist. No. 8 v. Wisc. Emp’t Relations Comm’n , 429 U.S. 167, 169-76 (1976)). ... Here, the President and Scavino’s present use of the @realDonaldTrump account weighs far more heavily in the analysis than the origin of the account as the creation of private citizen Donald Trump. ... “Regulation of [a designated public forum] is subject to the same limitations as that governing a traditional public forum” -- restriction are permissible “only if they are narrowly drawn to achieve a compelling state interest.” ISKCON , 505 U.S. at 678-79; see also Cornelius , 473 U.S. at 800. Regardless of the specific nature of the forum, however, “[v]iewpoint discrimination . . . is presumed impermissible when directed against speech otherwise within the forum’s limitations.” Rosenberger , 515 U.S. at 830; see also Matal , 137 S. Ct. at 1763 ... Here, the individual plaintiffs were indisputably blocked as a result of viewpoint discrimination. The record establishes that “[s]hortly after the Individual Plaintiffs posted the tweets . . . in which they criticized the President or his policies, the President blocked each of the Individual Plaintiffs,” Stip. ¶ 53, and defendants do “not contest Plaintiffs’ allegation that the Individual Plaintiffs were blocked from the President’s Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies.” Stip. at 1. The continued exclusion of the individual plaintiffs based on viewpoint is, therefore, impermissible under the First Amendment [ Emphasis added ]

Was Derek Chauvin protected by Castle Rock v. Gonzales, 545 U.S. 748 (2005)?

(1) Was Derek Chauvin protected by Castle Rock v. Gonzales, 545 U.S. 748 (2005) 1 ? (2) If Chauvin had not touched Floyd at all, would Chauvin be protected by Castle Rock v. Gonzales? Meaning no attempt at arrest, no confrontation, nothing. Just let Floyd leave with his cigarettes. (3) Given the apparent huge disparity in the risk-reward calculation of a police officer taking action versus just sitting in the car, why don't all police just sit in their car all day? 1 a court decision that says that a person cannot sue the police (in the US) for failing to enforce a law, and that the police have no duty to enforce any particular law in any particular case.

Was Derek Chauvin protected by Castle Rock v. Gonzales, 545 U.S. 748 (2005)? No. Derek Chauvin , the police officer whose affirmative physical acts caused the death of George Floyd is not protected by this precedent. Castle Rock v. Gonzales holds that the police do not have a duty to enforce the law that may be enforced by a private party in a civil action. Police instead have broad discretion regarding whether they will or will not take action to enforce a law. But, when a police officer does take action affirmatively, this case does not apply. Instead, the question then, is whether the affirmative use of force by the officer was justified by the applicable substantive criminal law. If Chauvin had not touched Floyd at all, would Chauvin be protected by Castle Rock v. Gonzales ? Meaning no attempt at arrest, no confrontation, nothing. Just let Floyd leave with his cigarettes. Yes. (A much more complicated analysis applied if a fellow officer did what he did and he stood back and did nothing, but that is beyond the scope of this question as I understand it and would call for a separate question.) Given the apparent huge disparity in the risk-reward calculation of a police officer taking action versus just sitting in the car, why don't all police just sit in their car all day? Police officers who do that are routinely fired and given bad recommendation by their superiors when applying for a new law enforcement position. Law enforcement supervisors routinely punish police officers for inaction construing that as being a "coward" but are much less likely to punish a police officer for being unlawfully overzealous without strong pressure from civilians in the relevant government agency or local government. Empirically, sitting in their car all day is not how police act. They are much more likely to be overzealous than to be docile. This said, there is some statistical evidence that has been construed to show that following the announcement of the Chauvin prosecution and related protests before and after that was done, that police took a less active role in policing that led to higher crime.

How can it be legal for companies to send me random crap and then demand payment?

(Although I live in Sweden, I think this applies more or less globally.) Numerous times throughout the years, the most recently today, I have received snailmail notifications from the postal office saying that I have a package to collect. These are not fake messages; somebody has actually inputted my address information (available in public, obviously) on random websites to send me items I don't want. They never state any e-mail address or web address on the notification, but it does say the company name. I'm thus forced to manually search and attempt to find this company's website and then figure out how to contact them through some form, then waste tons of time writing them an explanation and hoping that they don't ignore me. Before you tell me to "stop pissing off people", I have to tell you that I do not control the actions of other human beings. (It's highly questionable if I even control my own actions...) To me, it's unthinkable to expect something to be delivered which I haven't pre-paid. The idea of this being possible at all is insane to me. And it's clearly abused, wasting tons of time and energy and causing stress as I have to repeatedly deal with this nonsense. If the person sending stuff to my address, in my name, had been forced to pre-pay it, it wouldn't matter if it sits on the postal office shelves until it expires and they throw it away. However, since they don't have to pre-pay, the company assumes that I actually ordered it just because it's my name and address (again, public information that any psychopath anywhere in the world can look up in one second), and treats me as a "misbehaving customer" for not paying for "my" goods. Even though I had nothing whatsoever to do with the order and never have even heard of their business. How can this be legal? It's almost as if they designed this in order to allow for abuse... Especially as there is no obvious/direct way to dispute it on the "reminder" notice.

It isn’t legal If people want to send you stuff, they are free to do so. You don’t have to pay for it.

Why is the onus for adhering to privacy directives (e.g. GDPR, CCPA, etc.) on a host and not the user?

(Apologies in advance for the lengthy epistle) Background: A colleague is planning to launch a social media and forum website which will appeal to a relatively narrow audience. For the sake of discussion, I've compared it to an online dating website. During a technical review, I noted he intends to block the entire EU due to GDPR regulation, as other major media outlets (presumably following legal advice) have taken the same approach. Personally, I've always detested blanket-bans as they inhibit the open and collaborative nature of the Internet. I sought for a solution that would allow EU users to knowingly waive their GDPR rights in order to use a site that was not necessarily GDPR compliant. See GDPR & Blocking EU Visitors? In response to the question, @DavidSiegel pointed out a US State Privacy Legislation Tracker map which depicted five US states that also currently have active GDPR-like data privacy laws. Additionally, there are apparently a handful of other states that are working to introduce similar laws which are expected to possibly be active by 2023. @DavidMulder noted that other countries like Japan, Canada, Brazil, Israel, Kenya, Argentina [and probably many others] also have their own data privacy legislation. All this information was helpful, but it ultimately led my colleague to drastically expand his geoblock ranges to encompass these additional states and countries. Ugh! Changing gears, I myself am also an engineer who has several services and websites I would someday like to share with the world. Consequently, this discussion around GDPR/CCPA has piqued my interest to some degree. So now that you have an overview of the background...on to The question: Why is the onus for adhering to privacy directives (e.g. GDPR, CCPA, etc.) on a host and not the user? If I create a website and make it available to the Internet, anyone in the world can theoretically access it. From EU users, to Iran users, to California users. If my server resides in New York City, USA, I would expect that the laws of the USA, New York State, and New York City apply to that server. I'm not a lawyer by any stretch of the imagination, but many articles I've reviewed seem to suggest that my server (in NYC, USA) would be responsible for adhering to GDPR if someone in the EU connected to it and provided so called PII. Likewise, if someone in California connected to my server in (NYC, USA) and provided personal info, the server must adhere to California's CCPA law. The preceding paragraph is the crux of my concern. If my NYC server doesn't actually need to care about who is connecting from where or what data they provide, this entire question I posed is moot/there is no concern. However, if my server must be concerned about every single privacy law legislation in existence (GDPR, CCPA, California Prop24, Colorado SB 190, Connecticut SB 6, Virginia SB 1392, Utah SB 227, and surely more to come in the US) plus Japan, Canada, Brazil, Israel, Kenya, Argentina and forthcoming privacy laws legislation from other countries (and/or their states?)... Well hopefully, you see what I'm getting at. If it's required to support this plethora of ever increasing and changing legislation, it effectively prevents law abiding individuals or small businesses from providing interactive websites or services -- we simply just don't have the time, legal team, or financial resources that large corporations do. If this is the case, then the Internet's future does not look very bright to me. Assuming your answer is GDPR/CCPA/XYZ compliance is required for my NYC server, how does that mandate even bear any weight? The US is a sovereign nation, not a part of EU. Even though California is a part of the US, it's not part of New York so I would expect that only servers operating within California would be required to adhere to CCPA. If/when New York State creates privacy legislation, then my NYC server would be subject to it. And Iran, only servers in Iran would be expected to follow Iran's mandate. Etc., etc. This is the only approach I can fathom that makes any sense when dealing with multiple disparate legal jurisdictions. While I suspect (and would hope) there is a significant amount of overlap between the privacy legislation from all these legal jurisdictions, there doesn't have to be. Some jurisdictions may change their legislation more than others, add unique requirements, etc. I don't want anyone to think that I'm against data protection or privacy; I've always been a strong technical proponent for both. But we must ensure that individuals and small businesses can still operate in a global connected environment without having to blacklist the world for fear they don't comply with one of the ever fluctuating policies for country XYZ. Personally I think a site that is claiming GDPR/CCPA/XYZ compliance should clearly disclose it to users when they visit the site and then leave it up to the user to decide whether or not they will use the site. (I always assumed that was the entire point of the barrage of popups that routinely appear when visiting a website?) Instead of burdening every service with the requirement to support every piece of privacy legislation in existence from where it's users may visit (again, how is that even legal to enforce in sovereign nations like the US?), it would be much better to do things the usual way of requiring the user to take personal responsibility for the sites that they access. Reflect back on how things transitioned for web browser connections: In the old days, you visited a web server and it was always an unencrypted HTTP connection. Anyone between your computer and the server could read or change anything you sent or received. Later, SSL and then TLS encryption was added to scramble all data when in transit. Today, when you visit a site, popular browsers displays a padlock icon for sites that using a secure connection and a warning is first displayed if you try to access an older site that isn't setup to use encryption. Moreover, you can verify the site's certificate to ensure it matches the entity that you expect to be communicating with (e.g. your financial institution, business, etc.) The system isn't perfect, but it allows users to be much more confident that their sensitive information (e.g. a credit card number, passwords, government id numbers, PII/whatever you want to call it) won't be stolen in transit over the internet, while still allowing older non-encrypted sites to be usable. Something similar could be setup to support all these different privacy legislations. If the site doesn't support whatever privacy legislation you desire, then choose not to use the site. (Again, I believe this is what all the popups you see when first visiting a website are trying to do.) Large businesses will quickly adapt to support whatever legislation you want because they don't want to lose sales. Sites that aren't profit driven (or generate very low profits) likely won't care and they'll just accept that the user doesn't want to use their site and will use an alternative instead. In summary, I'm really tired of reading about privacy legislation. Attempting to foist privacy legislation on services external to the legal entity that created them is going to destroy individual and small business innovation, lead to more monopolies and ultimately be bad for everyone. While it is important to protect PII information, all it takes is a single data compromise for it to be exposed. Large corporations routinely experience data breaches. Being GDPR/CCPA/XYZ compliant does not mitigate the problem of protecting PII. Thanks in advance to all who share what they know about this. Looking forward to reading everyone's feedback.

For the same reason that states require doctors to be licensed Surely, if I want an unqualified, unlicensed surgeon (or a person that says they’re a surgeon) to crack open my cranium and poke my brain, that’s up to me? There is no doubt that requiring people to attend medical school for half a decade and then spending a similar period as an intern and a resident is a large barrier to entry compared to handing high school graduates a scalpel and a bone saw and telling them to learn on the job. The same applies to engineers, lawyers, plumbers, electricians, builders etc. I mean if a building falls down because the engineer or builder didn’t know what they were doing, it can’t kill that many people, can it? Even drivers for that matter - it’s a large cost to individuals and businesses to learn to drive, pass a test, maintain a license and a relatively clean record, register a car, keep it roadworthy etc. Surely it would be simpler to let anyone drive anything and if they cause someone harm, like dying, for that individual to seek redress through the courts? We’ll, there’s a reason why states mandate things and it’s economic rather than legal. When people don’t trust each other transaction costs go up. These costs are usually borne by the consumer as the suppliers engage in a “race to the bottom” - whoever provides the worst service at the lowest cost wins. Further, these costs are borne unevenly - most consumers are fine, some are very severely damaged; possibly with no real redress. By imposing minimum standards, the state places these costs in the hands of the people who are best positioned to manage them - the supplier. Once a user has given their data to the supplier they have no control over it. Therefore the economical optimal solution to maximize economy-wide output is to make the supplier legally responsible for managing the data in accordance with minimum standards. Extraterritoriality In an ideal world, there would be universal privacy standards. There would also be universal standards for training doctors and engineers. But there aren’t. Therefore, countries and states impose their own standards on organizations that operate within their jurisdiction. The threshold for the GDPR (and most other privacy laws) is whether you are targeting users within their jurisdiction. If so, they have the power under international law to assert sovereignty even if you are located elsewhere. A state has power where it says it has power. Otherwise, you could plan a terrorist attack on the USA from the UK and not have to fear prosecution. That’s what extradition treaties and honoring other nation’s civil judgements is all about. A website or similar platform operates in each and every jurisdiction it is accessible from. Like a surgeon with unlimited plane tickets. Therefore, it must comply with the law in each and every jurisdiction it’s operating in. Countries have adopted one of 2 solutions - China’s is to simply block all external sites, everyone else has said you can operate here but you have to follow our rules, just like every other business has to. Now, you may not like this but there is no doubt they have the legal power to do it.

Can the state of New York arrest and/or prosecute President Trump during a time when Trump is still president?

(Assuming there were grounds for arrest and prosecution).

Nobody knows for sure. The Constitution gives the House and Senate the (sole) power to impeach and remove a president, but that does not preclude a President being prosecuted for a crime. The Constitution does not distinguish the between the president and other high officials in terms of alleged immunity: it says The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors which includes federal judges. Harry Claiborne was a federal judge who was criminally convicted while holding office, and was impeached after imprisonment because he threatened to return to the bench. In US v. Nixon , the court found that Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances That case, though, was about subpoenaing records, not prosecuting a sitting president for a crime (it was ruled that he had to comply with the subpoena). It is reported in a NY Times article that the best arguments on the topic are contained in the briefs in the Nixon case files by St. Clair (for Nixon) and Jaworski (special prosecutor). SCOTUS avoided making a ruling on that issue.

Family trust but probate (informal or formal?) needed

(Based on @ohwillieke's answer, I've updated this to clarify the facts) Family trust: was set up by parents as a revocable living trust. had "upon death" instructions to transfer all to beneficiary #1 (B1), or if B1 was dead, then divide among B2, B3, etc. per the land abstract from the county recorder's office, shows (a) family trust recorded on MMM dd, yyyy with the trust itself as Grantees, and (b) a quit claim deed recorded a few days later with parents (not trust) as Grantors. Real estate appears to be the only asset recorded, ever. Upon each parent's death, their wills were poured over into the trust to handle non-real-estate assets (autos and such), and B1 received everything. (Not sure if the wills of either parent were ever recorded when they died, but maybe that's moot). B1, who was also a trustee, eventually died and left the home and belongings (cited in the parents' pourover wills) in the trust. B1 wrote their last instructions on their own; no lawyer or witnesses involved. It was typed but in great detailed, was hand-signed and dated, and there is ample extrinsic evidence to show B1's intent. Indeed, B1's instructions were essentially the same as in the trust: I'm dead, divide everything among B2, B3, etc. So, B1 owned the home and kept it in the trust. The value is more than allowed for a small affidavit, but that is apparently moot anyway because the home remained in the trust. Yes? B1's bank accounts and insurance polices were ToD (nonprobate). B1's probate assets were very old car, very old furniture, very old etc., certainly worth less than $42K. Some of the current beneficiaries are also co-successor trustees. The home will be sold. There are no family disputes to settle. All known creditors have been notified. Can this situation be handled via an informal probate (possibly under the guidance of a lawyer), or does it have elements that require a formal probate? Based on @ohwillieke's answer, it appears that, an informal probate may be all that's needed, if that.

Short Answer If everything was set up correctly in the first place, it is probably unnecessary to open up either an informal probate case or a formal probate case, although it may be necessary to prepare a small estate affidavit. But, there aren't enough facts in your question to know for sure. There are also a couple of documents that have to be filed or recorded with regard to the trust, but those documents aren't part of either a formal probate or an informal probate. If there is a will, however, (and it appears that there is) it needs to be lodged with the court even if there is no formal probate and there is no informal probate. You Are Almost Surely Confused About The Facts Family trust was set up with: a quitclaim deed transferring the home into the trust, and a parent's pourover will that left the home first to a single beneficiary, and second, if that beneficiary died then to other beneficiaries. If it was set up this way, somebody made a serious mistake. (Your mention of a holographic will worries me because it suggests that somebody didn't use a lawyer to set this up in which case they probably screwed it up.) But, I suspect that you misunderstand the situation. Normally, you would set up a revocable trust (also known as a "living trust") and quitclaim the home into the trust, and use a bill of sale to transfer all tangible personal property into the trust, and title all bank accounts and investment accounts in the name of the trust. Then, the provisions of the trust (not the will) would say which beneficiary received the trust's assets. Assets in a trust are governed by the terms of the trust and the terms of any will are disregarded with respect to the assets in the trust. A pourover will , by definition, is a will that leaves any property that is not in the trust on the date of death to the trust (which ceases to be a revocable trust and becomes an irrevocable trust upon the date of death). A pourover will is only used if there are assets on the date of death that are not titled in the trust and that do not pass by another non-probate transfer (i.e. a beneficiary designation or a joint tenancy with right of survivorship or a lifetime transfer to a beneficiary before death or property in a trust created during life). A will has no authority to direct the disposition of property that passes via a non-probate transfer. Instead, a will only applies to probate property. Probate property is property owned by the dead person which does not have a beneficiary designation or survivorship provision and is not in a trust. Lodging The Will If there is a will, it must be delivered to the court of general jurisdiction in the county where the person who died resided by the person who is in possession of it, within a certain number of days after the death of the person who wrote the will, even if there is no need for a formal probate or an informal probate, and even if the person who is in possession of the will doesn't know if it is valid or not. When Is Probate Required? Possibility One: There Is No Probate Property Ideally, all property would be in the trust as of the date of death. In that case, there would be no probate (informal or formal), because property in a trust is one kind of property that passes via a non-probate transfer . All property that does not pass by a non-probate transfer is probate property. Possibility Two: There is no probate property which is real estate and all of the probate property combined is worth $42,000 or less. If there is probate property, then you have to determine if a probate proceeding, either formal or informal, is required, or if instead probate can be dispensed with entirely. If the total amount of probate property is less than the amount of the exempt property and family allowance amounts under the probate code (Title 75 of the Utah Statutes) (which is $42,000 as of 2010, although it appears from the Utah State Legislature website that this has not changed since 2010), and there is no real estate that is outside the trust, then the probate property may be transferred by a small estate affidavit of the person named as personal representative (PR a.k.a. executor) in the Will without opening up an informal probate or formal probate , if all of the people whose consent is necessary to make the transfer (such as the DMV for a car, or a bank handling a final paycheck or tax refund) will accept the affidavit in lieu of letters testamentary. If a small estate affidavit is sufficient to transfer all of the probate property in this situation, then there is no probate proceeding, formal or informal. Possibility Three: There is probate real estate, or there is probate property worth more than $42,000, or someone in control of probate property refuses to accept a small estate affidavit. If there is real estate outside the trust, or if the total value of the property outside the trust that does not pass by non-probate transfer is worth more than the combined exempt property amount and family allowance (i.e. if it was more than $42,000), then you must probate the will, either formally or informally, and have the PR appointed by the court registrar. Then, as PR, the PR can transfer all of the probate property to the trust and close the estate. The only time that a will can have any validity, in the absence of an informal probate or a formal probate, is when the estate qualifies for a transfer by affidavit. And, in practice, lots of third parties other than the DMV will balk at accepting an affidavit, so it is usually easier to simply do an informal probate, than it is to bother with an affidavit. Formal v. Informal Probate When Probate Is Required Informal Probate An informal probate is very easy, although you should still have a lawyer at a minimum assist you in filing it and in closing the estate when you are done. There are standard court forms to commence an informal probate that are mostly pretty straightforward to fill out, and once the forms and original will are delivered to the court of general jurisdiction where the person who died resided the clerk in charge of probate cases called the Registrar reviews it and if everything is in order, immediately stamps them and gives the PR his or her " letters testamentary " (that give the PR the authority to transfer the property to the trust) without holding any hearings or even talking to a judge. An informal probate is only allowed if there are no disputes in the case regarding the validity of the will or the appointment of the person named in the will to be the PR. An absence of dispute is shown in an informal probate by having everyone with a right to dispute the will or the PR appointment sign a consent form which is included in the package of forms submitted to the court in an informal probate. The letters testamentary issued to the PR in an informal probate expire when the probate case is closed, which is done by filing a one page court form with the court that certifies that all of the probate assets of the person who died, and all of the debts of the person who died, have been taken care of by the PR. A case that starts out as an informal probate can be converted to a formal probate if after letters testamentary are issued by the registrar in the informal probate (which often happens the same day that the case if filed), someone contests the will before the case is closed. When that happens, everyone starts over from scratch to determine if the will is valid and if the right person was appointed as PR, but in the meantime the person appointed informally continues to act as PR in a caretaker capacity (without making any distributions to heirs or devisees) until the validity of the will and the validity of the informal appointment of the PR is resolved. Formal Probate A formal probate is only necessary if (1) there is a dispute regarding the validity of the Will, or (2) regarding the person entitled to be PR, or (3) if the Registrar (i.e. the clerk of the court in charge of probate matters) in the Registrar's sole discretion feels that it doesn't smell right and refers it to a judge. Realistically, formal probates are only brought when (1) there is a bona fide dispute over the validity of the will or (2) when someone with a right to contest the will can not be located to sign off on a consent or can't be bothered to sign and return it. When probate cases are filed they are filed formally maybe 5%-10% of the time and bona fide disputes are only present maybe 1%-2% of the time (less than 20% of formal probates). If there is not a bona fide dispute, a formal probate is really just a pro forma bump in the road and is no big deal. Your lawyer schedules a hearing, gives formal notice to everyone entitled to notice (basically all family and anyone named in a current or prior will who is still living), lines up a witness or two, and if anyone file a will contest, actually conducts the hearing. If no one files a will contest, then the judge , issues letters testamentary to the PR, and the remaining probate case is no different than an informal probate. If someone does file a will contest, then the judge conducts a will contest hearing (with a jury if one was demanded in the will contest) and if decides which will, if any, is valid and who is entitled to be the PR. A pretty hotly contested will contest trial before a judge without a jury lasts about two or three days (usually after a few months to allow the parties to prepare for the trial). Once letters testamentary are issued and a PR is appointed following that hearing, a formal probate is the same as an informal probate. Supervised Administration. In very rare cases, maybe one in 200 to one in 500 cases, there are heated disputes about almost every issue related to administering the probate estate and a party requests and is granted permission to conduct a supervised administration . It is possible to have a supervised administration even in an informal probate, if there is no dispute over which will is valid, or who the PR should be, but there is great dispute over how the PR should handle the administration of the probate estate that posting a bond isn't sufficient to address. In a supervised administration, the PR must obtain pre-approval from the judge to do anything (which is how probate usually works in states that didn't adopt the Uniform Probate Code the way that Colorado and Utah did). This is much, much more expensive. What Formalities Are Necessary For The Trust Whether or not there is a probate proceeding or a small estate affidavit, if there is a trust, the trust must comply with certain formalities. If no probate is required, but there is a trust, the trustees by a deadline set in the Utah Probate Code have to file a "trust registration statement" which states the date that the trust became irrevocable (usually either the date it is formed or the date the person creating it died), the name and contact information of the trust, and the county where the trust records are kept which is also the county were the trust "resides" for lawsuit purposes. The trust must also obtain a taxpayer identification number from the IRS and file Tax Form 1041 and the parallel state tax form every year that it has more than $600 of income. In connection with a transfer of real property out of the trust, the trust will need to prepare and record in the real property records of the county where the real estate is located, in addition to the deed, a document which is basically an affidavit, proving that the person who is signing the deed as the trustee is really the trustee and authorized to sign the deed.

Can a franchise owner avoid paying overtime by splitting employees between locations?

(Based on this question from workplace.SE ) Can a fast food franchise owner avoid paying overtime by splitting employees between two nearby locations, say 20 hours at location A, and 25 hours at location B? Would it matter if the locations were different restaurants? Or if one location was an entirely different kind of business (a dry cleaner)? Would it depend on how exactly the franchises were incorporated or something?

I believe that under federal law, the franchise owner cannot avoid overtime in this way. A similar case was considered by the Labor Department in 2005 (FLSA2005-17NA) : This is in response to your request for an opinion concerning the application of the overtime requirements of section 7 of the Fair Labor Standards Act (FLSA) to employees who work at two different health care facilities operated by one management company. It is our opinion that all hours worked at any of the facilities must be combined for the purpose of calculating hours worked under the FLSA. The letter explains the logic pretty clearly, with citations. When an employee is "jointly" employed by two or more employers, then the hours are all combined for overtime purposes. 29 CFR 791.2(b) explains how "jointly" is determined: Where the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as: (1) Where there is an arrangement between the employers to share the employee's services, as, for example, to interchange employees; or (2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. Paragraph (1) applies: the two employers (the two restaurants) have an arrangement to share the employee's services (the owner is explicitly dividing their hours). Paragraph (3) also applies: both employers are under common control, since the same person owns both. They certainly are "not completely dissociated". The same logic would seem to apply even if the two locations are different restaurants, or different types of businesses. The 2005 letter explains further: Factors that are relevant in finding joint employment include, for example, whether there are common officers or directors of the companies; the nature of the common management support provided; whether employees have priority for vacancies at the other companies; whether there are any common insurance, pension or payroll systems; and whether there are any common hiring seniority, recordkeeping or billing systems. These also seem likely to apply in your hypothetical cases.

Rental Agent claiming an admin fee from 2 years ago

(Context Details: UK, renting in London. Agent is Foxtons.) I've just left a rental property after 3 years there. The landlord has authorised the full return of the deposit, but the rental agency has turned around and said that there's £96 of annual renewal fees outstanding. I've proved that I paid the fee 1 year ago, and I have several emails from them discussing the "outstanding balance" from the points at which the monthly rent changed, but they're now asserting that the outstanding fee is from 2 years ago, and that those conversations were about the RENTAL balance only (and thus don't pertain to any administration fee balance). As far as I can tell they are technically right - there's an email from 2 years ago asserting that they WILL invoice me for the renewal, but no actual INVOICE for that (that I received) and it looks like all the payments I made add up to cover the rent and NOT the renewal fee. So I think their assertions about what happened are correct. Question: Am I actually obligated to pay this fee? If they didn't invoice me CAN they turn around 2 years later and say "we should totally have charged you for this." The Ts&Cs do state that there will be such a fee.

If it's in the contract, you must pay it. You can claim money up to the statute of limitations which will almost certainly be more than 2 years.

How much money can the owners of an LLC pay themselves to not be accused of "shielding funds from a lawsuit"?

(Context: This question is about US law). Let's say an LLC has two owners and it makes 300k a year in profit. The owners each pay themselves a (reasonable) 150k salary each year, leaving the assets of the LLC itself 0. In the event the LLC is sued, can a court pierce the corporate veil and go after the salaries that the owners paid themselves? If I understand correctly, it would have to justify that by saying the owners used the LLC as their personal bank account, with the intent to shield the money from lawsuits. But in this case the salaries are reasonable amounts, so how can the court prove illegal intent? In general, is there a maximum salary the owners can collect from an LLC before it's considered as 'shielding funds'?

If your LLC made 300K before paying salaries, and paid 300K total in salaries, that seems quite reasonable. You might have a point if the order of events was: LLC pays 100K in salaries, LLC gets sued for 200K, LLC raises salaries by 200K. Note that the owners have to pay income tax on 300k earnings, plus whatever else employers and employees have to pay. And an LLC doesn't pay salaries to owners , it pays salaries to employees who be sheer coincidence are also owners. It's a different matter if the company pays dividends. A company must keep dividends low enough so that it can run its business, including paying damages for lawsuits that it knows about. So if the company planned all along to pay 300k in dividends, then is sued for 200k, they likely have to reduce the dividends.

Is it legal to earn money via selling online currency (videogame)?

(Europe/Netherlands) Let's say I'm a World of Warcraft or Runescape player, in these games there are certain prices for gold, for example a X amount of ingame Runescape money might be worth a Y amount of real money. The game does not allow you to "Real-World trade" the money, this is written in the ToS you accept. Often getting caught leads to termination of ones account. I have read this question and answer Is legal to sell virtual goods? but I'm wondering about the legality of earning money this way. If this is not illegal how would you do this legally? I guess it would be comparable to earning tickets at a arcade (you don't have to pay to earn them) the arcade says you can't sell the tickets for money but you do so anyway.

Let's take Runescape as the example, because there's some guidance about the Dutch legal status of items in that game: the ToS terms do not alter the fact that within Runescape, items are under the actual and exclusive control of a specific player . That is to say, we can treat these virtual goods as if they were non-virtual. Now what is the legal status if I try to sell something which by contract I'm forbidden to sell? Such contracts are not illegal per se, but the bar(*) is rather high. As an example, a ticket scalping law is discussed because concert and sports ticket vendors currently cannot ban resale by ToS. By analogy, games cannot ban resale by ToS either (There is neither a general law nor a law specific to in-game items). (*) Resale restrictions can apply to houses as they are a recognized scarce good.

Lack of action taken by landlord against a noisy neighbor

(First time posting on this SE, I hope it's not off-topic.) I have a friend who lives in the Netherlands, let's call her Allison. Both her and her neighbor (let's call him Bob) live in an apartment complex owned by a therapy organization they are both patients at, and their landlord is also the owner of said organization. Bob has lived there longer than Allison. Every once in a while (at least once a week, though sometimes a lot more often), Bob tends to be very noisy in his apartment, by listening to loud music or playing with a pinball machine (a physical, real life one, not a video game). This often also happens very late at night, which is obviously not allowed per contract, and the walls are incredibly thin. Allison has complained about this numerous times, as it prevents her from sleeping at night and her mental health is suffering because of it, which the therapy home was supposed to be helping with. The inhabitants of the other apartments don't hear any noise, as Allison's apartment is the only one that share's a wall with Bob's. The problem: Since Bob is a therapy patient himself, the landlord and the therapists appear to be protective of him. Supposedly, he has his own baggage that prevents him from noticing, caring or remembering that he's being inconsiderate. While they don't explicitly condone him doing this at night, they barely take any direct action. Instead, they advised Allison to use earplugs, since the person who lived in her apartment before her never complained about this and they figured she may just be too sensitive. When the earplugs didn't help, they told her to message Bob whenever he's being too loud, because he apparently needs constant reminding that he's not supposed to do this after a certain time of day. Allison tried this, and it helped, but the silence usually only persists for a few minutes before being broken again. On Allison's request, the landlord eventually agreed to order noise cancelling panels to be installed on the wall between their apartments. However, he only agreed to pay for the very cheapest ones available, which had to be shipped from China and are now being withheld due to the Corona virus. Furthermore, after it was clarified that these panels would need to be installed on Bob's side of the wall in order to have any effect, Bob suddenly expressed that he's not willing to put in the effort to do so. In other words, he refuses to actively do something to fix the problem he's causing, despite the panels being gifted to him (Allison has expressed willingness to invest into panels for her side of the wall out of her own pocket, just for added sound isolation, but as stated earlier, those won't do much on their own). Recently, Allison's therapist started encouraging her to look for other apartments, all of which turned out to be substantially more expensive than her current one (given similar size and quality). Despite knowing that Allison's financial situation isn't the best, her therapist kept suggesting that it might be worth it to get some peaceful nights. Allison feels like this is rather unfair, like she's being punished for her neighbor breaking the contract and keeping her up at night, and that the landlord / therapy organization should put more effort into solving this for her, as the contract states that excessive noise at night is grounds for eviction. However, whenever she brings these arguments up, they keep getting dodged. Allison tried contacting the police about this, but they dismissed her case as something that's out of their reach. They advised her to try something called a "neighborhood mediation", though Allison has strong doubts about the usefulness of such a thing, as the landlord and therapists have already tried mediating between the two of them. Question: Is there any other way to resolve this issue? Can a therapy organization get away with catering to one patient's needs, despite that being extremely counterproductive to the needs of another patient, especially if the former is the one breaking the rules? Is it legal for the landlord to blatantly ignore a contract that was signed by all the involved parties and not take any action against one of these parties breaking it and strongly inconveniencing another one? And if not, how does one get him to take action?

Can a therapy organization get away with catering to one patient's needs, despite that being extremely counterproductive to the needs of another patient, especially if the former is the one breaking the rules? Is it legal for the landlord to blatantly ignore a contract that was signed by all the involved parties and not take any action against one of these parties breaking it and strongly inconveniencing another one? First, it is important for Allison to distinguish between the existing legal relations and each one's separate ramifications. The therapist looks manipulative and dishonest when encouraging Allison to rent a more expensive place, since at this point it seems that the therapist knew or should have known that the situation involves the landlord (who coincidentally is the therapist's employer). At the very least, the therapist should have informed Allison that the therapist has a potential conflict of interest, and thus let Allison decide whether or not to rely on that organization's services. Here, the therapist failed to make due disclosure. Instead, the therapist's acts have all the appearance of accommodating its other customer (Bob), and ultimately trying not to disrupt its employer's profits both as landlord and as therapy business owner. That conflict of interest sounds in therapist's malpractice and may even amount to [therapist's & company's] fraud . Regardless of whether Allison chooses to denounce the therapist and/or the business, she should ask herself whether a therapy organization with such practices is apt for continued treatment of --and the ensuing profits from-- Allison's therapy needs. One aspect Allison needs to consider is that her continued business there would weaken her arguments if she eventually brings court proceedings against the therapist or his employer. Allison's tenancy is a separate issue. Allison knows better than I (and the public in general) the terms of her lease and the physical details of her residential unit, so only she can compare them with section 7.4.2 of the Burgerlijke Wetboek to assess whether the lack of quiet enjoyment is attributable to a defect of the leased property (article 7:204.2). Allison should assess this issue from the standpoint of landlord's possible allegation that " "the disturbance is caused by a third person " (whereby the landlord would seek to avoid liability under 7:204.3). Depending on Allison's determination of the aforementioned issue, she would have a claim against the landlord for breach of contract , and/or against Bob for tortious conduct (6:162). There are at least three reasons why Allison should follow the police's suggestion of neighborhood mediation . The first reason is that there has been essentially no mediation in Allison's dispute. Mediation requires a nonparty whose neutrality is not compromised when conducting the mediation. That has been missing here so far. Allison has only dealt with third parties (i.e., the landlord and therapists) who are first and foremost reluctant to inconvenience their noisy client Bob for fear of affecting their own business interests. Allison's belief that these people were conducting a form of mediation is mistaken. The second reason is that, from mediation, Allison may pursue and obtain a written & signed agreement whereby Bob promises to desist from his pattern of disturbances (ideally Allison would secure an akin sort of commitment also from the landlord). In the event that Allison subsequently needs to sue either or both of the parties for the continued disturbances, filing in court these binding documents (which she would have obtained through mediation) will ease Allison's burden of proof. The third reason is that genuine mediation might obviate Allison's need to seek remedies in court. That is because it would teach both landlord and Bob that Allison is able and willing to take legal action if the situation persists or escalates, which might have a dissuading effect on them. Furthermore, mediation proceedings will give Allison some experience as to presenting her legal arguments in a more formal setting. Courts in Netherlands may grant injunctive relief in situations like Allison's where the ongoing harm is not susceptible of being quantified in monetary terms. Allison may pursue that relief, which if granted would compel the police to enforce it each time Bob violates it.

Joint Enterprise and Witness Intimidation in UK

(For MOOT case). An accused burglar is currently in an ongoing criminal trial. The accused burglar tells his friend details about the person who accused them. The friend, after hearing about the allegations the accuser has made against the burglar, intimidates the accuser about the allegations. Can the burglar be tried for joint enterprise . What is the burden of proof for this ?

Not on those facts If, as you say, the accused merely identified the witness and said (unflattering) things about them in a private conversation then they have committed no crime. In most cases, the names of witnesses are not secret and unless the court has issued an order to keep a witness’ identity secret (which would be almost unheard of in a simple burglary case) the accused can exercise his freedom of expression to talk privately about the witness with whoever they want. If the talk publicly about a case that is sub judice then they may be committing contempt of court. If they asked, conspired with or otherwise incited their friend to take action against the witness, then they have committed a crime. However, if the friend, on their own initiative takes criminal action, that does not make the accused actions criminal.

Can you make campaign donations on someone's behalf?

(For US Federal election law only) If someone were to give me a sum of money, and direct me to donate it to congressmen that voted a certain way, would I be able to donate it on their behalf (i.e. in their name)? Would I need power of attorney to do so? Or could I otherwise get authorization to act as an agent?

Campaign contribution laws require that the donor of campaign funds be disclosed and in some cases with dollar caps on contributions per person. Now, if you are actually donating their money in their name, you really aren't doing anything different than a bank is in taking money of the account of a checking account owner and giving it to the recipient. I don't see an obvious reason that you would have to have a power of attorney in writing to have the authority to do so, which could probably be granted orally, but you might still want something in writing documenting the transaction so that you wouldn't be wrongfully convicted of making a donation of your own money in someone else's name or at your direction rather than the direction of the true donor, which would be illegal. It isn't clear, however, why someone would want to set up the transaction that way.

Is it legal for a landlord to refuse a lease because an Occupant on the application is an undocumented immigrant?

(For clarity: Applicant - the adult financially responsible for the lease. Occupant - anyone over the age of 18 that will be residing with the Applicant but is not financially responsible for the lease.) Is it legal for a landlord to refuse a lease application for the sole reason that an Occupant included in the application is an undocumented immigrant despite the Applicant being a US Citizen? Examples would include a US Citizen who is seeking housing to live with his/her legal spouse or adult child who is an undocumented immigrant. In this case, the Citizen would be the Applicant and the spouse or child would only be included in the rental application as an Occupant. One justification some landlords give is that they are unable to process a background or credit check without an SSN, however some resources such as this one seem to make that defense untenable. I'm not an attorney but it seems to me that refusing to lease housing to an undocumented immigrant, who meets all other requirements and is only an Occupant, based solely on their immigration status is nearly equivalent to refusing to sell other necessities such as food, water or clothing to a person simply because of their immigration status. Or perhaps even worse, refusing to sell those necessities to a Citizen who is buying those necessities with or for an undocumented immigrant. (Potentially relevant is the case of Lozano vs City of Hazleton where the Supreme Court denied to City of Hazleton their appeal to an earlier decision that ruled as unconstitutional a city ordinance that prohibited landlords to rent to undocumented immigrants. The basis for the decision was mostly due to local government being deemed to have overreached into the arena of immigration enforcement - an area explicitly reserved for the Federal government.)

The default rule is that a landlord can refuse to rent to anyone for any reason, in which case the landlord can refuse to rent in this case. There are civil rights laws that limit this discretion in the case, for example, of discrimination based on race, or family status. But, those laws often have exemptions for owners of small amounts of property (e.g. a unit in their own home), which can't easily be determined from the question. If a civil rights law applies, the landlord must choose among potential renters on a non-discriminatory basis - the landlord doesn't have to rent to anyone in particular, but can't use the prohibited reasons to make the choice. If the default rule does not apply because a civil rights law unrelated to immigration bars discrimination against a tenant, someone's undocumented immigrant status probably doesn't provide an absolute defense to the civil rights law, but might be one factor among many that a landlord could consider in choosing among available tenants in much the same way that credit ratings, income, and a prospective tenant's criminal record, and other factors might be considered.

Should I blur personally identifiable information on Facebook screen recording for YouTube?

(Global question: EU, US, etc) I'm recording a video for YouTube where I show how browser extension works while surfing through different Facebook Groups, Business Pages, Personal Profiles, etc. Should I blur surnames and photos of people who meet on the screen? According to this article: https://gdpr.eu/eu-gdpr-personal-data/ photos are also considered personally identifiable information: Video, audio, numerical, graphical, and photographic data can all contain personal data. ... Methods of identification that are not present today could be developed in the future, which means that data stored for long durations must be continuously reviewed to make sure it cannot be combined with new technology that would allow for indirect identification. So it's possible to find people if I show their avatars (using Neural Networks, Google Images, or other services). So It seems that even avatars should be blurred. But should I blur personally identifiable information? Especially considering that people on Facebook made it public and do not hide it. Thanks!

There are multiple issues with what you are trying to do, including issues with copyright, personality rights, and data protection. You are trying to use other people's content and likeness for your advertisement. Unless you are certain that you can do this in your relevant jurisdictions, without their consent, this sounds like a very bad idea. At least under GDPR, “but they made it public” is not an excuse. Personal data is personal data regardless of how you acquire it. The GDPR also has a very broad concept of identifiability that goes beyond direct identifiers or PII. If you want to use other people's personal data, you need a legal basis, and must provide them notice about your processing. Consent (informed opt-in) is one legal basis, legitimate interest (opt-out) another. You are suggesting to avoid this by blurring PII, but you may also have to blur other content that is indirectly identifiable. Real anonymization that meets the GDPR's definition is a really hard problem. In some cases, a legitimate interest is able to avoid such problems. E.g. if I make a video with commentary about a Tweet, it would likely be OK to show surrounding personal data like the responses including the identities of the various accounts, to the degree that this is relevant to the commentary and/or necessary for proper attribution. However, that commentary likely has strong protections under freedom of expression. At least from an European viewpoint, a tutorial, demo, or advertisement would not have a freedom of expression argument that would shift a GDPR legitimate interest balancing test in your favour. Instead of blurring almost everything in your video or working on GDPR compliance, content licenses, and release forms, you should consider a different solution: create dummy content just for your videos. You can use your own content, and maybe add a dummy profile.

Lawyer knows trial is hopeless but tells client they can win

(Hypothetical) Rob is charged with a crime. His lawyer, upon receiving discovery, realises that they are very unlikely to win the trial if they plead not guilty, that the best course of action for Rob is to plead guilty and get a sentence discount. But the lawyer knows that Rob has money and wants to suck it out of him, especially that he knows Rob will be jailed anyway. So he encourages Rob to plead not guilty by saying they have good chances to win. What would be the best way for Rob to detect that, if any possible? Are there any working protections in place that would secure Rob from going on trial with unscrupulous lawyers like that? Or can they always get away with it? (Any jurisdiction)

Such an action by the lawyer is certainly unethical, but there is no automatic or routine mechanism to detect it and give better advice to Rob, at least not in the US. Rob could get a second opinion, but criminal defendants do not often do this, and there is no requirement to do so. If the situation is extreme, it might be reported, after the fact, and the lawyer sanctioned. But no one is ever required to do a plea bargain, and there is always a chance, even if only a very small one, that a jury will acquit. Whether to try for a trial is a judgement call. That makes it hard to deal with the unethical intention, which the lawyer presumably did not tell anyone about. Rob's only practical protection is to pick a lawyer with a good reputation for not doing that sort of thing, and reputations can be misleading. If Rob does not have money he may not be able to choose at all, but then the lawyer will not be tempted to go to trial to "suck money out of" Rob, because there will be none to suck. In that case the lawyer may, indeed, be tempted not to go to trial when (rarely) that would be in Rob's best interest. Rob would have little protection against that.

Can artists file for plagiarism if their art is used in AI models to make AI art, given that there is proof they're the authors of their work?

(I am an IT student writing a report proposing using blockchain technology to attribute "art" files, used in AI models, to their authors. I know next to nothing about copyright laws for creative works) Suppose metadata in the files used for AI models to generate new derivative art can be attributed to their original authors. Would it be enough for authors to file for plagiarism under lack of attribution and compensation for art generated this way? If not, what must be changed in the legal system so that artists get justice for supposed art theft?

"Plagiarism" is an academic concept, not a legal one Plagiarising the work of another without attribution is academic misconduct in every reputable academic facility and can lead to disciplinary action. But it's not against the law, and you can't be sued for doing it. Copyright violation is against the law You violate copyright when you copy or make a derivative work from the copyrighted work of another without permission or without an exemption under the law. In some jurisdictions, authors and artists have moral copyright, which operates alongside proprietary copyright and gives certain rights, including the right of attribution and the right for their work to be treated respectfully. In those jurisdictions, even if you have the copyright holder's permission, you must still respect the moral rights. Let's make some things explicit by considering a particular artwork. Say, this one: This particular piece is not subject to copyright because a) it was created before there was such a concept, and b) da Vinci died in 1519, so if there had been a copyright law, copyright in this work would have long expired. So, you can make as many copies of this as you like. Now, let's consider what the situation would be if Leonardo's alchemical pursuits had been more successful and instead of dying in 1519, he died last Tuesday. If you want to make a copy of this image, you must have Leonardo's heir(s) permission or be operating under an exemption under copyright law in your jurisdiction. When you train your AI, you will need to make a copy of the image. Do you have permission? Do you have a relevant exemption? If you obtained your images by scraping websites then the answers are no and (probably) no. Whether the image has metadata identifying the author is irrelevant to answering the questions. Whether there is any way of identifying the artist is also irrelevant - you still need their permission even if you don't know who to ask. If your AI, when prompted, generates an image that is strikingly similar to a copyrighted image it was trained on, that is a derivative work and you need permission for that. Under current law, the programer(s) are likely the copyright violators rather than the users of the AI.

Understanding Declaration

(I am in New Zealand, but am interested in answers following British style law.. When entering into New Zealand (as with most countries), passengers are required to fill out an arrival card . At the bottom of this arrival card it states "I declare the information I have given is true, correct, and complete". The document also states "This arrival card is a legal document - false declarations can lead to penalties...". A person is cited for "being required to make a declaration in relation to goods specified in that declaration, erroneously declared..." - where the only document in question was an arrival card. There was also a brief discussion with an MPI agent. The act allegedly contravened is the Biosecurity Act 1993 - however this act does not define the word declaration, or use it this context. There is another act - the Oaths and Declarations Act 1957 , which does, in section 8-10 define "Manner of making declarations". If the arrival card meets neither the oath/affirmation requirementnor form or wording of the Oaths and Declarations Act - which seems to be the case here, legally speaking, [can and how/by what interpretation] be charged for making a false declaration such that it will hold up in court? Relatedly, and maybe not clearly implied in the above question - (1) Can a declaration be verbal? (2) Relating to (minor) criminal charges ala parking tickets, does a declaration have to be in the form/is it covered by the Oaths and Declarations Act?

The Biosecurity Act 1993 gives inspector's the power to take declarations at s30(1B): An inspector may require a person arriving in New Zealand to make a declaration about 1 or more of the following in a manner specified by the inspector: A "manner specified by the inspector" can be either verbal or written. Making a mistake in this declaration exposes the declarant to a penalty under s154N(21): A person commits an offence against this Act who erroneously declares that he or she is not in possession of any or all of the goods specified in a declaration that the person is required to make about the goods. And this is an infringement offence (meaning it can be dealt with summarily by an infringement notice) under the Biosecurity (Infringement Offences) Regulations 2010 attracting a fee of NZD400. The declaration under the Biosecurity Act 1993 supersedes the requirements of the Oaths and Declarations Act 1957 because it specifically empowers inspectors to determine the manner of the declaration.

Is there case law supporting the view that literary themes are protected by copyright?

(I am not certain that "literary theme is the technically correct term: my question is contain in the body of the question). It is standard legal knowledge that copyright law protects expression and not ideas, that some element of creativity is required for a work to be protected, and that words and short phrases are not protected. It is also often widely believed that permission of the copyright holder is required to create a “related product”, such as a video game version of Star Trek, Harry Potter or James Bond (now partially in the public domain). Certain graphics associated with the protected work clearly require a license to use (I explicitly am not asking anything about trademark protection). If we set aside copying of graphic objects, and copying of non-minimal stretches of text, is there any case law evidence that supports the belief that any work “about” a protected work requires a copyright license? For example, does the case law tell me whether I can legally write a novel fully exploiting the ideas of the Man-Kzin Wars novels (a warlike feline spacefaring race etc.)? An optional complication involves the putative non-copyrightability of words. The words “chmee; chrowl; kzinrret; kdaptist; sthondat; strakh; wtsai” are introduced in protected works – they are not words of English. They pass the sniff-test for creativity, but the US Copyright Office by policy declines to register individual words. However, presence of these words is clear evidence of copying of a protected work. It therefore may be important to distinguish infringement claims that involve the ideas of a protected work, and the additional copying of distinctive terminology.

A copyright protects particular expressions of ideas, not ideas themselves. So, general themes are not generally protected by copyright. Indeed, there is actually case law to the opposite effect , that prevents thematic elements particular to a genre from being granted copyright protection: Scène à faire (French for "scene to be made" or "scene that must be done"; plural: scènes à faire) is a scene in a book or film which is almost obligatory for a book or film in that genre. In the U.S. it also refers to a principle in copyright law in which certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre. . . . The United States Court of Appeals for the Second Circuit interpreted the scènes à faire doctrine expansively to hold that a motion picture about the South Bronx would need to feature drunks, prostitutes, vermin, and derelict cars to be perceived as realistic, and therefore a later film that duplicated these features of an earlier film did not infringe. These elements are not protected by copyright, though specific sequences and compositions of them can be. Citing Williams v. Crichton , 84 F.3d 581, 583 (2d Cir. 1996), commenting on Walker v. Time Life Films, Inc. , 784 F.2d 44 (2d Cir.), cert. denied, 476 U.S. 1159 (1986).

Can a pre-court settlement include an admission of guilt?

(I do have a lawyer I'm working with in this case, however they are currently on leave for the Christmas holiday season and I am expressly permitted to ask others, even in a public forum, questions like these, as it's a general law question and not specific to my case) An organization ("The Company") recently broke state and federal laws and I suffered damages accordingly. I contacted them offering to settle without going to court and they made me an initial offer. Their initial offer includes a clause about them making no admission of guilt. The language in the offer is (paraphrased): No admission of liability This settlement does not in any way constitute an admission of guilt, liability, or wrongdoing by The Company. Any such liability is expressly denied. From what I understand, this is to prevent any future claims against The Company - however the same agreement also includes a section where I promise not to sue them for any other reason ever again (I object to this and tell my lawyer that when they return) - so even if they do admit guilt (and I agree to never sue them for any reason ever again) it makes no difference to their bottom-line, right? I do know that many times when a defendant is a company and they settle with a plaintiff it's done to make the problem go-away because the cost of a settlement would be cheaper than the cost of hiring lawyers and running an investigation to verify the claims - as well as to prevent word getting-out if reputations would be damaged by any public court action, even if they would be acquitted. But those reasons don't apply in my case - I don't believe The Company gains anything at all by refusing to admit guilt or wrongdoing. I would gain immense personal satisfaction if The Company would just say in writing "we broke the law" - and hopefully "sorry" too. I find denials quite frustrating and dishonest. Can I have my lawyer respond with a counter-offer that modifies the settlement agreement to replace the clause with something like "The Company admits to wrongdoing and is sorry." - or anything?

Can I have my lawyer respond with a counter-offer that modifies the settlement agreement to replace the clause with something like "The Company admits to wrongdoing and is sorry." - or anything? You can ask. But unless you have a rather strong case and the company very much wants to avoid going to court, quite likely they will refuse. Such an admission is likely to harm their reputation, and might be admissible evidence in other civil or even criminal cases, depending on the jurisdiction and the specific circumstances. You also mention that: ...the same agreement also includes a section where I promise not to sue them for any other reason ever again (I object to this and tell my lawyer that when they return) Such a provision in a settlement is very common, perhaps more common than not. It is intended to make sure that the settlement covers the entire dispute between you and the Company, that you do not later come up with some aspect that was not covered by the agreement now being negotiated, and file a new suit. The provision should be so worded that it covers only causes of action that arose prior to the date of the agreement; it should not immunize them from being sued for future wrong doing. It could be further limited to causes related to the transaction or issue now under dispute, but the Company is likely to insist that it be fairly broadly worded. If told that you object to the provision, they are likely to say something like "well, what other claims does he have? Let's get them out in the open and settle all of them." which does not seem unreasonable. The Company wants certainty that the whole dispute, in all of its aspects, is closed.

Does the state forbid competition with so-called natural monopolies?

(I don't need information about specific country, so it's OK to post information about laws of country that you know, just remember to include the name of the country in your post). For example, I heard that the state forbids competition with public utilities. So you can't have two water pipes systems in your house, even if you're willing to pay big money for it. You can't open new water-pipes company, it would be against the law. Is it correct? I just can't find anything that would either support or disprove such information. If it's correct, then I would want you to provide me few examples of this.

You can't open new water-pipes company, it would be against the law. Is it correct? In the US it depends on state law. According to Wisconsin law : (a) Except as provided in par. (am), the commission may not grant any person a license, permit or franchise to own, operate, manage or control any plant or equipment for the production, transmission, delivery or furnishing of heat, light, water or power in the municipality, if there is in operation under an indeterminate permit a public utility engaged in similar service in the municipality, unless the person seeking the license, permit or franchise secures from the commission a declaration, after a public hearing of any interested party, that public convenience and necessity require the delivery of service by the applicant. So it's not technically prohibited to have a second utility under Wisconsin law; it's just that you have to show a very good reason.

Client does not pay invoice and is claiming copyright

(I looked for similar cases and answers and could not find anything, so please forgive me if it was) I have a 1099 contract with a client for services in the finance industry. Because of my 30+ years of professional IT services, he also asked me to do a variety of IT-related services for him already before he hired me for the financial services. In the past, these were rather small things (e.g., setting up a newsletter), and he always paid my invoices promptly without question. Sometimes we would agree on an amount upfront and mostly we did not - he trusted me, and I trusted him. This month, he asked me to simplify an Excel sheet with a large number of columns which was very difficult for him to navigate. I created a proof of concept for him which he again paid promptly. We reviewed the POC together to verify that I was going in the direction he wanted. When he confirmed that, I said that finalizing this app (which it turned out to be) will be a lot more work. He said that's fine and did not ask any further questions. Since we saw each other almost every day, I kept him in the loop about me working on the app, that I spent a significant amount of time already, and that there is a lot more to do. He always responded with "that's fine". In fact, he liked what I had done as POC so much that he said later that he had reached out to the patent office for filing copyright. There was never any agreement on transfer of intellectual property. Last Thursday I sent him another invoice since we had reached a milestone close to completion. He said this invoice was too high, and that he would not pay it. He would be willing to pay "what's fair" but not this. And he wanted me to adust the invoice to a lower amount. Sidenote: since he did not make any attempt from his end to reach any kind of resolution I ended the working relationship this Monday. He now claims that he does not owe me anything. If I remove his access to the app (it's a Google file) does he then have the right to not pay the invoice and I have waived my right to receive payment? Is the transfer of intellectual property automatically assumed? Is there any way for me to veto his copyright registration? Thank you very much in advance for any input.

Contracts where the price is not agreed in advance He’s right, you’re wrong. He is required to pay a fair price, or, in legal terms a reasonable price. What is reasonable will depend on the circumstances including the amount of time invested, the market rate for similar projects, and your past dealings together. Further, a dispute over the price doesn’t entitle you to terminate the contract. If you have done so, and he has accepted your repudiation, then he does not owe you anything and can sue for damages. This is because you are not being paid for working on the project, you are paid to deliver it - and you haven’t. If the sum is significant, consult a lawyer but expect to be disappointed.

Creating products and inventing during employment and assignment of inventions

(I need to ask this question again since I did not have enough information last time. Now I have access to full set of documents I signed including: NDA, Assignment of inventions etc....) If I create a product-idea outside of reasonable office hours using my own resources (Money, computer, code-base etc...) will assignment of inventions I signed with my employer prevent me from claiming full rights to my invention? I also want to make sure that I can use this code-base later to productionize my invention and sell it to enterprise customers later when I leave my current employer. If it helps the following section applies and is mentioned in my agreement: CALIFORNIA LABOR CODE SECTION 2870 However I have to mention that I work from GA How will my "Assignment of Inventions Agreement" harm me? I am happy to provide more details on request...

If what you do falls within the scope of the assignment clause and that clause is reasonably necessary to protect the employer’s interests (i.e. it is limited in scope) then they will own the IP. For example, if your employer is an accounting firm and what you produce is accounting software they will own it. If what you produce is a game or an operating system for a Mars rover, they won’t. If what you produce is a pricing model for financial derivatives, it could go either way.

How can you block GDPR users from US based sites?

(I originally asked this question on Server Fault with GDPR tag, but due to minimal response was advised to try asking here) As I understand it, GDPR is European legislation promoted as protecting EU citizen's privacy and granting EU citizens rights to control how websites use data/whether the websites can store said data. My initial impression of GDPR is that if an EU citizen wants GDPR rights, they should only use servers residing in the EU which would be subject to GDPR legislation. However, there apparently is some notion that EU legislation can somehow affect servers outside of the EU? I'm not a lawyer, but I would expect that each nation defines and enforces their own laws -- which may or may not be in alignment with another nation's legislation. How is GDPR even applicable to servers residing in the US (or any other non-EU nation)? Based on several articles I've read online, it seems somehow the US allows EU's GDPR legislation to be enforced on US soil. Since I don't want to deal with GDPR headaches, I seemingly have no choice but to block ALL EU citizens (and anyone else accessing my sites/services from within the EU) from using my websites and services. I can firewall the entire EU IP address space to catch the bulk of EU users, but there are EU citizens who could use VPN or otherwise access my site from an non-EU ISP. Is there a legal approach that can be used to block EU citizens? E.g. "Accessing this site or service as an EU resident is illegal" such that if one violated the legal directive, GDPR expectation would be void? I don't care if they use my websites and services as long as they understand I'm not playing the GDPR game and anything they submit to my servers won't be subject to it.

This might be based on a misunderstanding of the GDPR. The GDPR applies under three circumstances: Art 3(1): you (the data controller) are established/live in the EU. Art 3(2)(a): you offer goods or services to people in the EU. Art 3(2)(b): you monitor behaviour of people who are physically in the EU. What is not a factor: what citizenship your site visitors have (see Recital 14). whether your site can be accessed from the EU (see Recital 23). The crucial part is what “offering of goods or services” means. The EDPB has issued official guidelines on the interpretation of this targeting criterion ( guidelines 03/2018 on the territorial scope of the GDPR ). Some important notes: The offer of goods or services does not have to involve any compensation. Gratis access to a website can also be a service. GDPR applies when targeting people currently in the EU. US tourists in the EU are protected, EU tourists in the US are not. The moment of offering the service matters. E.g. a US person using an US service cannot claim GDPR protection against the US service while travelling to the EU. Instead of looking at the users of the service, we should look at the target market of the service: if the service doesn't cater to people in the EU, GDPR doesn't apply. The essential question is whether the provider of the service “envisages” offering services to people in the EU. Does the service provider intend for EU data subjects to use the service? The guidelines assemble a non-exhaustive list of indications from case law, in particular the Pammer and Alpenhof case . An excerpt of indications that GDPR might apply: the EU or member states are mentioned in the offer of services the website has marketing targetted at an EU audience the activity at issue is of international nature, e.g. tourism mentioning special contact details for the EU market using a top-level domain name associated with the EU or member states travel instructions when visiting from the EU mentions of an international clientele including people/companies from the EU use of a language or currency other than yours offering delivery of goods to the EU So whether GDPR applies would depend on the subject matter of your website, and on whether you intend to participate in the EU market (even if only online, even if your service is gratis). If GDPR were to apply, then blocking people from the EU would be questionable. It might also be illegal, but not on GDPR grounds. If GDPR does not apply, then blocking people from the EU is already unnecessary. However, geoblocking would be a very strong indication that you don't intend to offer your services to people in the EU. There is no good case law on whether geoblocking is necessary or sufficient. I assume that geoblocking is sufficient (even if it can be easily circumvented e.g. with a VPN), but that it's not necessary in the first place. You could also re-emphasize that you're not targeting the EU market when considering the above indications. E.g. a web shop might clarify that they only ship to North America, but not internationally. Again: your targeting of your website is the crucial factor, not the origin of your visitors. So even if there is an occasional EU visitor, that doesn't mean you have to comply with GDPR.

Contract tied to a non-refundable deposit if I don't sign

(I read the disclaimer in the sidebar: I'm not looking for legal advice: I'm just curious as to the implications to both parties). Pre-amble and context : So I'm trying to rent a property in the UK. The agent we're going through wanted a holding deposit when we agreed to start the process (fine), which came with an agreement that the deposit is returned if we sign the tenancy agreement (reasonable), but not returned if we don't (ok, so they're protecting themselves against some loon block-reserving their entire property listing. Fine). I agreed because the justification sounded reasonable (with hindsight: I am not a smart man). The fees had to be paid before seeing the tenancy agreement. The agency has thus far refused to negotiate terms on any bit of paper it's got me to sign (so we're clear: not asking about that. I ultimately agreed to the conditions, I understood the implications). The question: Is it legal to have a deposit that is non-returnable on the basis of not signing a contract that the consumer hasn't had a chance to read before agreeing to the deposit terms? I understand that a contract, in principal, needs to be fair ( http://www.legislation.gov.uk/uksi/1999/2083/introduction/made ), but what if it wasn't fair? Could they have claimed it was fair, and refuse to amend any terms (at which point, I'd have had a "take it or leave it" contract that if I don't sign, I'm out of pocket)? I'm aware the situation described is at least ethically dubious, but it seems to me that if they refused to negotiate, if I do sign it would be under some sort of duress (?) for the sum of money I'd be out-of-pocket by? Likewise, this looks similar to the EULA sort of question that arises (pay money for a product behind terms that you can't read until you pay money). (again, so we're clear: it's a situation that happened to me, but if I want actual legal advice I'll call a solicitor. The question is more that I don't understand enough about contract law to work out whether or not this was legally questionable rather than just the agency screwing me).

Competent parties can contract for any terms that are not forbidden by law, and a contract is valid if each party provides consideration (i.e., something of value). It sounds like the contract you're questioning is essentially, "I will give you money in exchange for you showing me an agreement and giving me the option to sign it." The act of "showing an agreement" evidently has some value, as does the "option to sign," so your counterparty has provided consideration. Therefore, the high-level answer is that the only way this contract would be inherently flawed would be if a law explicitly forbids it.

Third Party Liability for representations

(I suspect this looks a bit like a homework question. Its not. I have tried to distill the question as much as possible). I'm interested in how this would typically be answered in countries based on English law (the events happened in New Zealand) Scenario - Mr Debtor asks Mr Creditor for a loan on the basis that Mr ThirdParty will pay Mr Debtor money within a month. Mr Creditor verifies this information with Mr ThirdParty and issues Mr Creditor a short term loan on the strength of this verification. Mr Debtor defaults and it turns out that Mr ThirdParty did not pay Mr Debtor. Does Mr Creditor have recourse against Mr ThirdParty and why ? (I assume that there is no contract between Mr Creditor and Mr ThirdParty because no money remuneration was provided to Mr ThirdParty, but I'm not clear if Mr ThirdParty can misrepresent to Mr Creditor with impunity )

In contract: no If ThirdParty was a guarantor for the loan, then they would be liable to Creditor for any amount unpaid by Debtor. However, in the absence of a guarantee deed there is no contractural liability on ThirdParty. In equity: maybe The relevant doctrine is promissory estoppel . If new-zealand law follows the precedent set in england then the answer is a clear no because English promissory estoppel acts “as a shield, not a sword” - that is, it can be used to defend against a claim but cannot be used to initiate one. Alternatively, if it follows australia precedent then it can be used to initiate a lawsuit. However, in general, if all you have is promissory estoppel, good luck! It’s a bastard to win unless you have clear and unequivocal evidence that ThirdParty: Made a clear and unequivocal promise to Creditor. Engaged in dishonest behaviour at the time or subsequently. Note that dishonest means more than getting things wrong. It means a deliberate deception of Creditor. There was a special relationship between ThirdParty and Creditor, (e.g., duty of information); irreversible change of position on the part of ThirdParty There are soooooo many ways that this sort of claim fails. For example: was there a promise? “Verif[ying] information” doesn’t sound like a promise to make a payment. what was promised? Did they promise to pay $X or “what was owed” - if the latter then a dispute between Debtor and ThirdParty could legitimately reduce what was owed. Similarly, saying a payment is scheduled is not a promise to make that payment. did they know that Creditor was relying on the promise to change their behaviour?

Transcription law

(I'd be interested in UK, US, or any internet/international biased opinions here; as well as anything I could further ready up on!) Let's assume a physical Text exists. Is it legal for person A to transcribe the Text into digital form, for personal use? (eg. Easy searchability) I make the assumption that it is frowned upon and increasingly likely to draw legitimate legal action if person A shares that Transcription with others — even non-commercially, as a "gift". (One friend no-one's going to care, an entire classroom might be legal risk a school would avoid, "publish on the internet" would be a high risk) Does that risk level change if person A was able to assert that: The recipient definitely owns a copy of the source text? There are no commercial transcriptions available for purchase? The recipient would also be obtaining for the same level of personal use as if they had put the work in to do the transcription themselves?

Per definition: transcription Transcription (from Latin: trans scribere -> transcribere: to transfer (text)) is one of two things: Taking audio and turning it into text taking one text and turning it into a text in a different writing style, e.g. Cyrillic to Latin, Japanese (Kanji, Katakana, Hiragana) to Romanji, handwritten script to digital Latin letters. To transcribe is to make a copy A transcription is by default a full copy of the original text. If it is a pure transcription, there is no creative element added - a translation would have such an element in some regard. Making a copy under copyright Copyright is the exclusive right of the Author to make copies or assign the right to make copies. So by default, transcriptions are copyright infringement. However, there is fair use or fair dealing. In the US, Fair-use is defined as needing to satisfy the fair use factors more than not. They are defined in 17 U.S.C. § 107 : the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. In general, the second factor more often than not cuts against fair use in works of fiction. Transcription of the whole work also wouldn't necessarily be fair use, as the third factor demands the absolute minimal amount needed to be taken. However, factor 1 - personal non-profit use, especially for research or criticism - can heavily cut for fair use. And factor four, "market impact", of a purely personal file that never enters circulation heavily cuts for fair use. As a result, it might be fair use, if for purely personal use. Sharing would alter the market impact: the more the file is shared, the more market impact it has - it is a full substitute, so it might be deemed to destroy the market of the original, cutting heavily against fair use.

Is a corrupt Attorney General able to quash any and all Federal investgations?

(I'll try to ask this in as non-biased way as possible) If an Attorney General is part of a corrupt administration, would he or she be able to quash any and all Federal investigations related to that corruption as a way of protecting that administration? For example, William Barr has been widely criticized for what some see as his acting more as Donald Trump's personal defense lawyer than as "the people's lawyer". Concurrent with this is the news that Rudy Giuliani, one of Trump's actual personal lawyers, is under criminal investigation by Federal prosecutors from the Southern District of New York . Some view this as a possible threat to Mr Trump. Is the SDNY free to pursue the cases they want or do they need approval of the AG? If the latter, is it possible that a corrupt AG can "shut down" a case if it threatens their special interests?

The AG is technically the boss of everyone in the DOJ, and can fire people if they don't do as he says. To fire people appointed by the president and confirmed by congress, he would need the approval of the president. The SDNY does not have to ask for permission to start a case, but they can be fired.

Lawyer billing the other party for writing a letter to them

(I'm in New Zealand, but I'm also interested in answers/data points from other jurisdictions) A friend whose Intellectual Property (design patent) is being infringed engaged a lawyer who intends to write a cease and desist letter to the other party, and to send a bill to this other party for his letter! Although it is likely the other party is aware they are infringing, my friend has not reasonably communicated with this other party asking them to stop prior to getting his lawyer involved. I can't quite put my finger on why, but it is my distinct impression/feeling that if the other party challenges the bill, they could not be forced to pay it. Are there any rules of law around this kind of thing?

As a matter of contract law it would not be possible to enforce a requirement to pay legal fees without agreement. You could easily see how this would be problematic: one could just draft letters to hundreds or thousands of people and require them to pay the costs of composing the letter. My understanding is that this is common practice in the United States (see speculative invoicing). However, people are generally free to pay whatever they want to anyone they want. The other side is free to pay the legal costs, they just probably won't. In some common law jurisdictions, the concept of a Calderbank offer may be another reason to write a letter such as this; the settlement offer can be relied upon in later proceedings as an indication as to the costs that would be appropriate to award to the winning party, should the offeree unnecessarily prolong legal proceedings

Copying HTML: copyright violation?

(I'm reposting this from workplace S.E. where I was advised to ask here; apologies in advance for any inconvenience) tl;dr : in the USA, is copying the HTML code from a site (any site whose code is presumably copyrighted) and storing it, for a limited or unlimited amount of time a violation of copyright? Are there prior lawsuits related to this? I'm mostly interested in the particular case where the copy is not reproduced, but kept private. I've recently learned that this is indeed the case. This came as a huge surprise to me since: [First of all] most browsers retain a copy of the HTML (for the period of the visit or much longer, if caching is enabled) Proxy servers often keep cached copies of these files Web archives (like Google's) not only copy all assets of a site it find to keep historical versions of these pages but also make available to the general public these historical copies. Programs that scrape external sites often have in their repositories copies of (likely copyrighted) HTML for testing purposes Number (4) is the one that directly affects the company I work for, since we do web analysis and therefore write programs that visit other sites. For example, we make extensive use of vcrpy library to record external accesses and test our code against these "frozen" HTMLs. Also, specifically in our case, we don't really copy the entirety of any site, since we are only concerned with a subset of its pages, but from what I've been informed, that doesn't seem to qualify as "fair use", such as quoting a passage of a book (where, in a sense, the book would be analogous to the entire site with all its public assets). We don't even copy assets like CSS files or images, so we can't reproduce the actual content in full. After I was told that such copies are likely unlawful, we are not only being limited to explore more robust testing methodologies (which would likely make use of a large amount of HTML copied from the web in a local storage) but the current use of vcrpy library has become something that demanded analysis (as it's not clear if our use of it is unlawful).

You are clearly seeking legal advice. Answers on this site come from anonymous people on the internet and are not legal advice. You should not act based on information from this site. I am unaware of any lawsuit where one would be sued for merely storing and reading HTML for personal use. Downloading a webpage is probably not a copyright violation. Most things you create, including HTML source code, are protected by copyright and copyright includes the exclusive right to choose who can read what you created. I couldn't find any actual reference to this but I would hazard a guess that displaying an HTML webpage online is implicitly allowing others to read that code. I believe this guess is correct because all modern web browsers have the capability to view source that nobody considers illegal and browsers also include the capability to save webpages to disk. These browsers are made by companies with large legal departments, I doubt Internet Explorer would include this function if using it was a copyright violation. Here begins speculation: However, your expanded question says that not only you wish to read the HTML code but you also wish to process it, extract information from it and use what you learn this way. This could, I think, be prevented by the copyright holder. Still, what you are describing is commonly done in the world. Services such as Google, Bing or the Wayback Machine go far beyond what you are doing. In theory, I can see this as being a copyright violation but again, the fact that these big companies - without any kind of contract with the website owners - keep doing it is big evidence in favor of legality of storing webpages. You should be careful about how you use the stored data, though. For example, computer programs often have a stipulation in EULA that prevents you from reverse engineering the code. I could see that the use of some websites could be protected in such manner. Further (not authoritative) internet pages on this topic: https://stackoverflow.com/q/22819287/1580088 https://answers.yahoo.com/question/index?qid=20120621055815AAvJPvN

Can the court order my retired father, who is a single father, to make more money (Canadian Law) (revised to anonymous)

(I'm sorry about deleting and re-posting the question, there are family details and the site was attaching my real name. I'm reposting using an email address that isn't linked to me.) My father was married to his wife for over 20 years and she recently started a divorce. He retired after many years in a higher paying job, as he had always planned to do, to focus on his acreage and business. The pension is quite decent, more than most people get. However she pressured him to make more money anyway, and since their rural area has few good jobs, so he tried working away from home, which he hated. But he explained to me that he had to work, or she might leave him. Suddenly she divorced him. So he stopped working a second job, which he only did to make her happy. Now she is using his one particular past income statement to "prove" to the judge that he CAN make more money, just because he worked a lot that year. Furthermore, he's the primary caretaker of their daughter because the mom left without saying goodbye, and the mother is not pursuing custody in any way. The judge has ordered him to pay half his entire income to the mom. That means each of my dad and my sibling have a quarter of the income to take care of them, while the mom gets half. This seems wrong to me. The mom is also doing things like hiring expensive lawyers, which he is unwilling to do because it's whittling away at their savings, so she might win. The full court arguments will be in months. In the meantime the court ordered a huge payment (50% of all income monthly). The judge ordered him to "get a job," because "everyone else does," but that seems wrong to me for a retired single parent. 1) What happens if my dad just can't, realistically, pay the huge interim amount that was awarded to the wife? (50% of his income) Also he can't really get loans because of a lien 2) Is my dad going to be forced to work in the long run? Should he just "accept it" and start taking loans for a lifetime of huge payments to his ex-wife who doesn't even look after the daughter? 3) Does the court care that his ex-wife was pressuring him to make more money and it made him miserable? If she divorced him literally because they couldn't agree about his work, it seems unfair for her to use the courts to get her way.

I am going to convert a set of comments into an answer. Please note, IANAL, especially in your jurisdiction. You are asking the wrong question. The Court is not specifically ordering your father to make more money; it is ordering him to support his ex-wife (XW) at a level similar to what she enjoyed during the 20-year marriage. This is not outlandish. In fact, it would be typical of a divorce in the old days, when the mother (1) was likely to have custody of any minor children and (2) was likely to have not worked outside the home, at least, not in a high-skill job. It's less typical today, since these conditions are less common now. He can do this by continuing to work to make more money, or by giving her most of his pension, or by selling off his land, etc. How is his issue. However, your father is making no attempt to improve his situation, and as I will discuss below, this doesn't seem unprecedented. Even though XW has hired an attorney, he has not, using the excuse it is too expensive—while the XW’s capable attorney takes him to the cleaners. Penny wise pound foolish. This is a serious error. He has not entered into a formal custody arrangement. XW could appear at any time demanding at least half-time custody, for whatever reason. This is a serious error. He has taken on unofficial sole custody of the minor child (your half-sister, I suppose), without asking for child support, even though this would substantially offset the alimony to XW. He could probably get this even before the full court hearing, although, again, IANAL, and he needs a local lawyer to handle such a petition. This is a very serious error. He allowed XW to present what you feel is an unrealistic picture of his income based on his second job. Now, depending on your father's age, maybe lowering the standard of living and retiring on a pension is unrealistic. But did your father make any attempt to show that XW had worked before or during the marriage or had marketable skills? At least in some jurisdictions, alimony would be reduced by what the Court feels XW should contribute to her own upkeep. Since she isn't taking care of children, she can't use them as an excuse to stay home. This is a serious error. He could also explain that since he was now in charge of the minor child, it was unfair to ask him to work far from home (more common with the sexes reversed, but not unheard of). Did he introduce a more complete income history showing that the second job was recent, intended to be temporary, away from home, and he detested it? Or did he just let XW bring in her version, unopposed? A lawyer would have introduced this argument if it is valid where you live. This is a serious error, that must be remedied before the final hearing. My first thought was that your father is still in shock from XW leaving him and petitioning for divorce, but on re-reading your description of why he took the second job, frankly, he seems to arrange his life to get pushed around and then whine about it. You need not indulge this. Tell him to get a divorce lawyer, not go around looking for someone to sympathize over the bad deal he got after "saving" money representing himself.

How would one comply with a court order to unpublish unlimitable information?

(If this has been asked, please deduplicate; I searched but couldn't find anything similar. Thanks!) This is wholly hypothetical, I hope. Let's have two people, "Alice" and "Bob" . Alice publishes some data that, for whatever legal reason, they ought not to publish. Bob gets some sort of court order which directly instructs Alice to stop publishing the content. From what I've heard, the court may deputize Alice somewhat, instructing them to not just cease publication, but also to actively inform other publishers that they must cease & desist. If those other publishers continue, then Bob may complain to the court again, and the court may order those other publishers to cease as well. We are now in the 21st century, though, and the content may be available via e.g. Bittorrent, a key-value data store which can make data internationally available as long as one person, somewhere in the world, is reachable and has a copy of the data. This can create a problem for Alice; let's imagine a third person, "Mallory", who sits beyond the court's jurisdiction. Mallory openly flouts the court order by publishing a Bittorrent key (a torrent file or magnet link ) which allows anybody to obtain a copy of the data. (Also note that tools like Magnetico can be used to let anybody become an eavesdropper, passively learning Bittorrent keys as they transit the network. Mallory may "openly flout" the court without the equivalent of a conspicuous notice in a public place.) Given that Alice has been instructed by the court to stop publishing the data, and given that Mallory refuses to stop publishing the data, what might Alice be obliged to do to comply with the court? Since this is an international question, answers can pertain to any jurisdiction!

united-states This answer analyzes the question under U.S. law, although it is really generally applicable in all countries with a common law legal system. I'm not familiar with how non-common law countries address this issue at this level of granularity. Given that Alice has been instructed by the court to stop publishing the data, and given that Mallory refuses to stop publishing the data, what might Alice be obliged to do to comply with the court? Very little. This is why courts very rarely issue orders like this one. Disobedience to a court order is enforced with a contempt of court proceeding against a party that allegedly knowingly and willfully failed to comply with the court order. But an inability to comply with the court order (at least if this is not due to sabotage by the party subject to the order after that party learns of the order's existence) is a complete defense to contempt of court sanctions. Contractually, this is why most non-disclosure agreements have liquidated damages and actual money damages remedies as well as the remedy of injunctive relief. If harm that can't be unwound results from conduct taken before an injunction is in place, or as a result of a breach of an injunction that the person who was ordered to do something can't remedy, then a court imposes money damages and/or punitively imposes a criminal fine or incarceration on a party who defied a court order.

What would be the fastest way to sue someone in a traffic accident? Post Accident Legal Strategies

(In America), when there is a traffic accident, it is generally a civil matter that can be resolved between the parties. Several courses of action are available to the parties to resolve the dispute which generally involves property damage and or injury to the parties or to other third persons or property. An insurance company plays an important part in resolving the disputes but that alone does not preclude the parties from litigating in the court, in addition to filing an insurance claim. The party who moves the court may have some advantage in negotiating or sometimes have the opportunity for a default judgement which makes the option of SUING IMMEDIATELY a valuable tool to achieve or expedite settlement. Taking some general assumptions in mind such as jurisdiction, value of car, who is at fault or not at fault,the questions presented are:- What is the fastest way to sue someone in the event of a traffic accident ? What sort preparation can a driver make to move swiftly. Whatever time or day of the week accident takes place, summons served to defendant by next court day 9 AM. (assuming court opens at 8 AM). This will requires much planning and advance prep. Once complaint filed, would there be greater chance that an attorney will be willing to represent for a lower cost or a limited scope representation with lowered fee than to process the case from scratch ? What would you estimate as the cost difference in % for one traffic accident case for full scope from scratch compared to the described situation where moving party files, serves summons and then shops.Would you say the cost could be more than 50% less or less than 50% less that full scope ? In your personal experience, has moving the court provided any benefits in achieving settlement / justice over simply letting the insurance process drive the matter ? Would you be "shocked" if you received summons by the time you woke up next day following the day of the accident ? What would your reaction be and how would you plan the response ? Would you counter sue or just run to the nearest attorney ? ( perhaps your car is still in the workshop causing additional distress) Finally, what kind of documentation,artifacts can make the moving party prevail ? Photographs, accident witnesses, police reports are all known. Are there any specialized approaches to propel judicial process,negotiation advantage or cause the other party to throw in the towel ? E.g Accident reconstruction report, Expert witness, GIS analysis, other drivers driving history subpoena,proving other driver as negligent/reckless using sources of information other than the accident ? ( How about evidence that driver was distracted using cell phone - compel forensic exam of drivers cell phone) or use car black box report. A well pre-planned strategy could include obtaining subpoenas addressed to some 10-20 parties to discover and open up the other parties such that the party will be compelled to settle.

Short answer The general approach and attitude that you propose is a horrible one that would bring an unfavorable result. It would add many months or years to the time when the case would mostly likely be resolved and would reduce the economic value of your case by a substantial percentage, perhaps cutting it in half or more. Your instincts towards the litigation process in a simple car accident case are all wrong. Lawsuits are poker games, not wars, and lawyers are good poker players.The way to get a good result in a case like this one is to act like you are in no rush, to marshal all relevant facts in a non-flashy matter of fact way that makes the result seem pedestrian and predictable, and to build enough of a level of trust with opposing counsel to make a settlement easy for everyone to sell to their respective clients. The winning tactical approach in an automobile accident case is MEGO ("my eyes glaze over"), and not "shock and awe". The only people who are impressed by "shock and awe" in an automobile accident case are the jurors, and if you have gotten to a jury, you have defeated your goal of getting a quick result and have probably also failed to get the maximum possible recovery net of legal fees in the case. This because the court process takes a long time to get to a jury and because the defendant has a limited settlement budget and it takes a considerable amount of money to litigate a case to trial that could otherwise have been used to compensate you more fully in an earlier settlement. Long answer The party who moves the court may have some advantage in negotiating or sometimes have the opportunity for a default judgement which makes the option of SUING IMMEDIATELY a valuable tool to achieve or expedite settlement. You are wrong. This is a very bad idea for reasons explained at greater length below. Also, automobile accident cases rarely produce default judgments because defendants with an ability to pay a judgment can hire attorneys for free as part of their car insurance. Usually default judgments are obtained only in cases where you have wildly undervalued your case and are asking for a judgment that is too small. What is the fastest way to sue someone in the event of a traffic accident? What sort preparation can a driver make to move swiftly. Whatever time or day of the week accident takes place, summons served to defendant by next court day 9 AM. (assuming court opens at 8 AM). This will requires much planning and advance prep. In many courts it is possible to efile a complaint 24 hours a day. But, one might be wary of filing suit when the nature of the harm (especially physical injuries) was not fully known which could take more time, because if the other side defaults and you don't know the full extent of your damages at that point, you could recover less than the full value of your claim. Also, this is often too fast to determine if there are other parties who are liable of whom you were not aware (e.g. a defective product implicating a manufacturer, an employer who is vicariously liable, family members under a family car or negligent supervision theory, etc.). Acting like you are in a hurry conveys the impression that you are weak and will settle for a low or nuisance offer. This bad first impression will work against you for the entire time until the case is resolved and is not easily remedied. Once complaint filed, would there be greater chance that an attorney will be willing to represent for a lower cost or a limited scope representation with lowered fee than to process the case from scratch? What would you estimate as the cost difference in % for one traffic accident case for full scope from scratch compared to the described situation where moving party files, serves summons and then shops.Would you say the cost could be more than 50% less or less than 50% less that full scope? I would charge significantly more to anyone who tried to do it themselves, potentially damaging their case with rookie mistakes. If it was a contingency case, I might insist on a 50% contingency with a larger advance for costs than in a usual case, rather than the usual 1/3rd. On an hourly basis, your legal fees could easily double. Many lawyers would refuse to represent you at all if you had already filed a case. Also, don't forget that the prevailing party does not get attorneys' fees in an automobile accident case. If a plaintiff spends too much on litigation, that reduces the amount the plaintiff will have left, net of litigation costs, as compensation. In contrast, a typical defendant's automobile insurance policy provide (theoretically) unlimited defense attorney services without reducing the amount of coverage available to pay an eventual judgment (if any) to the plaintiff. There is no added value from pro se work in a personal injury case. Pro se efforts significantly reduce the value of the case in the eyes of an attorney. Anyone who wants to represent themselves pro se in any half way serious automobile accident case is a fool. In your personal experience, has moving the court provided any benefits in achieving settlement / justice over simply letting the insurance process drive the matter? The two are not necessarily tightly linked. Often using the insurance process without going to court can lead to a faster resolution. Would you be "shocked" if you received summons by the time you woke up next day following the day of the accident? Yes. What would your reaction be and how would you plan the response? I would suspect that the whole accident was a pre-planned intentional insurance fraud and would take extreme and unusual measures in discovery and investigation to rule out that possibility. I would be extremely reluctant to settle with you and would not make offers nearly as reasonable to you as I would in an ordinary case because I would not be able to trust you. Your desire for a quick resolution on favorable terms would be spoiled. Would you counter sue or just run to the nearest attorney? (perhaps your car is still in the workshop causing additional distress) I would contact my insurance company which would provide an attorney at their expense. Finally, what kind of documentation,artifacts can make the moving party prevail? Photographs, accident witnesses, police reports are all known. All of the above. Auto accident cases are won with facts, not law. Are there any specialized approaches to propel judicial process,negotiation advantage or cause the other party to throw in the towel? E.g Accident reconstruction report, Expert witness, GIS analysis, other drivers driving history subpoena,proving other driver as negligent/reckless using sources of information other than the accident? (How about evidence that driver was distracted using cell phone - compel forensic exam of drivers cell phone) or use car black box report. The more clear liability and damages are, the more likely someone is to settle. But, it usually takes months to achieve that clarity and there is no magic bullet. Some cases justify intense discovery, others do not. It depends upon the facts and circumstances and the severity of the harm. In a lot of cases, liability is clear at the outset and damages are the primary issue. A well pre-planned strategy could include obtaining subpoenas addressed to some 10-20 parties to discover and open up the other parties such that the party will be compelled to settle. This is generally allowed only in the middle part of a lawsuit once there has been a preliminary exchange of pleadings and certain other case management matters and disclosures have taken place. Normally, 10-20 subpoenas at the outset would be quashed as unreasonable and disproportionate to the amount in dispute. If someone came on that strong early in litigation, I would assume that they had no case on the merits and were trying to bluff me the same way that someone with a weak poker hand might. I would be disinclined to offer even a nuisance settlement, and would do everything possible to slow down the case because your urgency would indicate weakness. It is much easier to slow down a lawsuit than it is to speed one up. Also, no one is ever compelled to settle. A defendant can always take the case all of the way to a trial by jury, followed by an appeal, which could easily take two to three years. If you want a quick resolution, you need the other side's cooperation. Postscript I spent several years practicing in an insurance defense law firm and several more in a firm that brought personal injury claims on a regular basis. So, I am more qualified than most people to answer questions on litigation tactics such as this one which don't have neat, clean answers that can be found in rule books or appellate case law.

What are my rights as an apartment tenant if I have no active lease agreement, in terms of rent amount and move out procedure?

(In Tennessee, as the tag indicates) My previous 12 month lease expired May 30th, 2023. Shortly before my lease expired, my previous landlord suddenly sold the apartment complex to another landlord, and notified us in an email to now contact the new landlord under an email address provided. I sent a message to that email asking about the previously agreed upon new lease agreement details I had with my last landlord, to which I never got a reply to. The new managers/owners were clearly struggling to get everything up and running, and they seemingly forgot about my lease renewal in the process (previous landlord emailed me lease renewals, these new people didn't even text/call/email me). They posted a late rent notice on my door on June 6th. I walked to the front office with the notice and told the manager I didn't even have a lease agreement with them but was still living in my unit. She tried to get my new online portal set up but couldn't. 3 weeks later, they finally get my online portal set up and are now charging me my previous lease agreement's rent/fees though I have not seen nor signed any lease agreement with them. If they decide to increase my rent/fees, do I have the right to say no and move out? I believe I'm still obligated to give them a 30 or 60 day move out notice, but would I be required to pay them something like an additional 3 months rent as an "early move out" fee? That was a stipulation in my previous (now expired) rent agreement. Thank you all in advance for the help!

There are two distinct questions here. One is what happens when a lease expires and you don't vacate and the landlord doesn't try to evict you. Generally, in the absence of holdover tenant provisions expressly in the existing lease, the lease becomes a month to month lease on the same terms as previously in force. If the lease does provide for holdover tenant provisions, that lease remains in force. The second issue is what happens when the landlord transfers ownership of the property. Basically, the lease runs with the land, regardless of who owns it, and the legal analysis is no different from what it would have been if the landlord had remained the same. So, if a lease with no holdover provision expires, no new renewal of the lease is signed, and a new owner buys the property from the old one, you have a month to month lease with then new owner on the same terms as the old lease, until the tenant and landlord agree otherwise, even in the absence of an express agreement with the new owner.

Discovery of Evidence - Context, Significance and Meaning?

(In US criminal proceedings) The Prosecution must provide all evidence against the Defendant to the Defense before the trial begins in the "Discovery process". Is the Prosecution also required to explain the evidence and describe how they intend to use it? For example, could they provide a big listing of cell-phone records and tower pings without detailing the significance of the records? Or must they also outline to the Defense how the cell phone data demonstrates the defendant's planning and movements before the alleged crime? What if the meaning and significance of the evidence for the Prosecution evolves due to the Defense strategy? Can the prosecution change their interpretation of the evidence without violating discovery rules?

canada The Crown's duty to disclose all materials and information, inculpatory or exculpatory, unless clearly irrelevant, does not extend to Crown "work product." The "work product" privilege means that "notes and materials that involve the thought process and strategic or tactical considerations of Crown counsel in the preparation and presentation of its case" are not within the mandatory disclosure requirements. See Dudley v. British Columbia , 2016 BCCA 328. However, the Crown will present its case first. It will present an opening statement laying out the theory of the case and explain the relevance of the evidence it will be presenting. It will call all of its evidence first and then close its case before the defence presents its case. Also, [t]he Crown must not be allowed to change the case it has presented once the accused has begun to answer the Crown’s case R. v. G. (S.G.) , [1997] 2 SCR 716, at para 38

Redistribution of fan art that used copyrighted assets as a reference in the US

(In the context of United States law) Basically I plan to rip model files from legally-obtained video game ROMs and then use those models as references for fan art (high-poly remodels of characters, vehicles, etc.) My first question is if it's legal (ripping assets for personal use without redistributing/sharing them). If so, is it also legal if I download illegally redistributed model files and use them for the same purpose? Obviously redistributing is illegal, but is consuming? I also want to state that I have always assumed distributing fan art is legal, even if I did use copyrighted assets as references and even if they are trademarked (I see it everywhere in drawings, etc., so long as I don't use it for profit or any other personal gain...?) If someone could definitively clear that up for me, that'd be great. (Also a possibly related question, though I understand if it should be separate, but would uploading full renders of ripped models to a website be legal, as long as it's not the model itself?) Thanks.

Creating copies of a work is generally illegal, since the right "to reproduce the copyrighted work in copies" and the right "to prepare derivative works based upon the copyrighted work" are both exclusive rights of the copyright holder. If you don't distribute those copies, though, it could be quite difficult for the copyright holder to know anything about it. Whether you acquired the original work legally or illegally has no bearing on the legality of making copies and derivatives. Fan art is generally prima facie copyright infringement, since it creates a derivative work without permission from the copyright holder. However, it may be permissible under fair use -- but remember that "permissible under fair use" means that when you are being sued , you may be able to convince a judge that your use is fair, despite being prima facie copyright infringement. It is possible that a particular fan work could be sufficiently transformative and well-aligned with the four fair use factors to qualify as fair use, but there's no way to know until it is the subject of legal action and a judge assesses the case. You see fan art everywhere, despite its unfavorable legal status, because in general, it is not worth the trouble for artists, authors, and corporations to pursue legal action. They will probably see no tangible benefit to justify their legal expenses, since, unlike verbatim copying of their works, fan art does not typically impact their profits. Furthermore it could be harmful to their reputation to be aggressively litigious against their own fans. Trademark is only relevant if you are using the mark in commerce to identify the source of goods or services. I'm not a lawyer, so I'm not well equipped to discuss whether your use of a well-known trademarked character would automatically constitute trademark infringement because a reasonable person would assume that your fan art's use of the trademarked character was licensed and approved by the trademark holder.

Is it possible to distribute BSD (derived) software with a warranty?

(In the following, assume that "I" is not personal, but could be a corporation or group suitable in size and training to perform the tasks) I have received sample code carrying a license patterned after BSD: Copyright (c) (Year and original author are specifically named here) . All rights reserved. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. Neither the name of author nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission. THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. The significant deviation from the "classic" three-clause BSD license, as seen for example on Wikipedia is that the disclaimer uses the phrase "AUTHORS OR COPYRIGHT HOLDERS" instead of naming a particular entity. Assume that I take steps to ensure quality of the final version of the software I develop using this BSD-licensed source code, such as code inspection, testing, use of static analysis tools, perhaps even going so far as formal proofs of correctness. (Ignore for the moment that compared to these costs, recreating the software from scratch is probably feasible) May I now offer the final version to a client under terms that extend warranties disclaimed in the original BSD license, such as fitness for a particular purpose? Due to my quality assurance process, I am expecting to assume the associated risks, and hold harmless the authors who gave sample code to me. Or does the license disclaimer, which I must preserve intact under the terms of redistribution, fixate the agreement between myself and my customer to the same "as-is" terms that governed the original sample, because that disclaimer names "COPYRIGHT HOLDERS AND CONTRIBUTORS", a category into which I now fall? Is it permissible for me to substitute the name of the actual entity in place of references to that entity such as "COPYRIGHT HOLDERS", "AUTHORS" or "CONTRIBUTORS"? Does the answer change at all if the quality assurance and warranty are provided by a separate entity who has not contributed to the software itself?

The creator of the software doesn't provide any warranty. If you feel confident in the quality of the software, nothing stops you from providing a warranty. If the software doesn't meet your guarantees, you will have to pay out because you provided the warranty, depending on the terms. Not the creator of the software because they explicitly didn't provide any warranty. If that's what you want to do, go ahead. I wouldn't. You don't have to republish under the BSD license, which you wouldn't. You must attach the license terms, which clarifies the role of the original creators, and that they don't give a warranty. Doing this allows you to copy the software. It doesn't mean you can't provide a warranty.

In-court identification of defendants

(Inspired by Can a lawyer subject the court to a (temporary) ruse for a legitimate purpose? ) Under which circumstances are witnesses asked to identify people present (in particular defendants) in the courtroom? In which jurisdictions is this a thing? (I know it happens in the US; what about the UK, etc?) Are there rules mandating it (either local court rules, statutes, or jurisprudence), or is it something the parties may choose to do or not? If the parties choose, why would they do or not do it?

canada criminal-law In Canada, this is called "in- dock " identification and, while not prohibited, it is recognized to have very little probative value. It has "particular frailties over and above the normal frailties attaching to identification evidence" and "adds little" ( R. v. Izzard (1990), 54 CCC (3d) 252 , pp. 255-56 (Ont C.A.); R. v. F.A. (2004), 183 CCC (3d) 518, para. 47 (Ont. C.A.)).

Can a vigilante be useful for a police department?

(Just for reference, this question is for a story I'm working on, and I wanted a realistic look at the law's side of things.) So, a lot of fiction likes to play off the trope of a Vigilante. This person, (superhero or otherwise) often cuffs the baddies, and leaves them gift wrapped for the police, along with providing damning evidence to go with that. So my question is, does that actually help the police in any way? These situations are almost always portrayed as: Acquiring evidence without a warrant Falsely imprisoning a person/criminal (This does not always involve the Vigilante seeing the crime happen, but they are usually acting like a police officer and pre-empting the crime. The Vigilante is generally unable to be present for the accused to 'face their accuser'. So, if evidence came from a known Vigilante, can it be used in a court of law?

Can a vigilante perform an arrest? This depends on whether the vigilante has the power to perform a citizen's arrest . The rules depend on the jurisdiction (and vary from state to state in the US), but generally the power to perform a citizen's arrest is quite limited. It may include the power to 'pre-empt' an offence if the would-be offender has attempted to commit the offence. However, often the power is limited to particularly serious offences (eg. felonies). There may also be a requirement that the crime occurred in the citizen's presence, or that the citizen was unable to contact the police instead. Is evidence obtained by a vigilante admissible? In the United States, the constitutional exclusionary rule generally prevents evidence from being admitted if the government obtained it illegally. I answered a general question about the scope of the exclusionary rule here. However, the Fourth Amendment exclusionary rule does not apply to evidence obtained illegally by a private individual: Burdeau v. McDowell , 256 U.S. 465 (1921). In Burdeau , the defendant's papers had been stolen and turned over to the government, which proposed to present them as evidence to a grand jury. The Supreme Court said: In the present case, the record clearly shows that no official of the federal government had anything to do with the wrongful seizure of the petitioner's property ... there was no invasion of the security afforded by the Fourth Amendment against unreasonable search and seizure, as whatever wrong was done was the act of individuals in taking the property of another ... We assume that petitioner has an unquestionable right of redress against those who illegally and wrongfully took his private property under the circumstances herein disclosed, but with such remedies we are not now concerned. However, the exclusionary rule in some states goes beyond the Fourth Amendment. For example, article 38.23 of the Texas Code of Criminal Procedure provides that evidence illegally obtained 'by an officer or other person ' is inadmissible. This provision was apparently enacted to deter vigilantes: Bubany and Cockerell, ' Excluding Criminal Evidence Texas-Style: Can Private Searches Poison the Fruit? ' 12 Texas Tech Law Review 611 (1981), p 625. Can such evidence be admitted even if the vigilante is not present? Assuming that no exclusionary rule applies, evidence obtained by a vigilante can potentially be admitted through the testimony of a police officer or other witness, subject to the rule against hearsay and the question of reliability. The rule against hearsay means that a police officer cannot give evidence that a vigilante told them that the accused was guilty. Evidence of this kind is not admissible because the accused has no opportunity to challenge the reliability of the source of the information in cross-examination. The rule against hearsay does not apply when the probative value of the evidence does not depend on the truth of the absent vigilante's assertion. If the evidence provided by the vigilante is really 'damning' then it might fall into this category. For example, a vigilante might provide the police with a weapon that has the accused and victim's DNA on it, or tell the police that incriminating evidence can be found at a particular location. A police officer can then give evidence that the weapon was tested and found to have matching DNA, or a search warrant was executed and the incriminating evidence was found. There is no admissibility issue here. However, the fact that the police were tipped off by a vigilante who has broken the law and is not present to face court may cause the jury to reject the evidence as unreliable (ie. it could have been planted).

In BC, Canada, may an adult seek & receive a Protection Order if the respondent is the mother of the petitioner but the parties do not live together?

(N.B. I've never studied the Canadian legal system, I'm not Canadian, I don't live in Canada, and I've never been to Canada. But I like cheese curds.) In a nutshell: what I want to know (Hypothetically) A mother is abusing her adult child, but they do not live together. Does the Family Law Act, or any other law, enable the victim to seek and receive injunctive relief, such as a Protection Order? Laws that might apply Family Law Act , S.B.C. 2011, c. 25 (FLA). Hypothetical facts Parties Aaron is an adult natural-born Canadian citizen residing in British Columbia. Aaron lives alone in his domicile. Rita is Aaron's mother, and she is an adult natural-born Canadian citizen residing in British Columbia. All legally-relevant actions occurred within British Columbia. Assumptions The government is not prosecuting criminal charges against either party. Assume each has fully vested rights, privileges, powers, and immunities: for example, neither of them has been found incompetent or been placed under guardianship. Assume the default legal-relationship between them: the rights, privileges, powers, and immunities automatically granted by the law due to their familial status have not been mitigated. Actions by the parties If a court were to fairly and thoroughly examine evidence presented by Aaron and Rita, the court would likely find that one or more of Rita's actions were psychological and/or emotional abuse of Aaron. The court would likely find that Rita's actions included one or more of the following: harassment of Aaron, coercion of Aaron, unreasonable restrictions on and/or prevention of Aaron's financial autonomy, and restrictions on and/or prevention of Aaron's personal autonomy. What (civil) relief is available in British Columbia? I'm unsure about the scope of application of the FLA. Specifically, I am unsure if a court can issue a Protection Order against a respondent if the two family members do not live together. Procedures such as seeking a Protection Order under the FLA in provincial court are intentionally designed to make it easier for laypeople to seek and receive relief. Whether or not Aaron may seek relief under the FLA, what other layperson-friendly laws might provide relief? Thank you for your time.

Under the act, "child" means a person who is under 19 years of age (ignoring a complication about child support). The law covers households, not genetic relations, so the fact that Rita is Aaron's mother doesn't make the FLA applicable. This page explains protective orders in the context of this law. First, such orders are against "family violence" which includes sexual abuse and psychological or emotional abuse of a family member, including (i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property, (ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy, (iii) stalking or following of the family member, and (iv) intentional damage to property A "family member" is (a) the person's spouse or former spouse, (b) a person with whom the person is living, or has lived, in a marriage-like relationship, (c) a parent or guardian of the person's child, (d) a person who lives with, and is related to, (i) the person, or (ii) a person referred to in any of paragraphs (a) to (c), or (e) the person's child, Remember that being a genetic offspring doesn't make you a person's "child" under this law. Under the meaning of this act, Aaron is not a "family member". There does not appear to be any anti-nagging statute in BC whereby Aaron can get an order requiring Rita to leave him alone. If she does threaten to kill or spank him, that could change things.

Can governors deploy state police vs federal police?

(Non US national here) Can the governors of states that disagree with the deployment of federal troops deploy some kind of state force to stop these? Does state police loyalty lie with the governor or the nation?

There are multiple police forces in the US: city, county, state and national, and each is responsible to a relevant executive. Typical "police" are city police, who are responsible to a chief of police, who is appointed at the municipal level. Counties usually have an elected sheriff, and a set of deputies; at the state level, they are usually called state troopers. The typical protocol is that decisions are made at the lowest applicable level, so Seattle police enforce or refuse to enforce laws within Seattle, and King County police enforce or not in remaining unincorporated locations in the county. Individual city officers do not then decide to ignore the chief of police and instead follow orders from the county sheriff or the governor. However, each state grants vast powers to their governor, so it is possible that in the case of a state of emergency, the governor can take command of all law enforcement in the state. Governors "can't" deploy police to oppose federal law enforcement in a shoot-out, except that they might actually do so on some theory that federal law enforcement officers are violating the law. In general, you are not immune to arrest for illegal acts just because you are a law enforcement officer. The governor of Washington could easily (in the legal sense) declare an emergency and order state troopers to prevent federal officers from effecting arrests. Of course, resolving these disputes in court is another option.

Are courts obliged to act if they're aware of a violation, even if the parties are no longer interested?

(Not sure if the title is good) Hypothetical case: Alice files a lawsuit against Bob, alleging some grievance. During the case it's established that Alice violated the law first, causing Bob to take revenge (and also violating the law in the process). Logically the court would punish both of them, but Alice persists in litigating because she believes the law will be harsher on Bob than on her. However, during the case, Bob dies. Now the court cannot penalize Bob, so Alice is no longer interested and wants to withdraw the case. Is the court still obliged to rule against Alice, or do they dismiss the case? In other words, is the court obliged to issue penalties even though one party is dead and the other is no longer interested? If the country matters, assume the USA.

Alice files a lawsuit against Bob This is a civil suit, it will not lead to any court punishing Alice, or anyone else. If facts come out showing that Alice violated the law, the local prosecutor could , but need not, file a criminal case against Alice. If the prosecutor does not file such a case, Alice's worst possible outcome is to get no damages, with costs and fees awarded to Bob (or his estate). If Bob dies and Alice wishes to drop the case, there is no obvious reason not to permit it, unless Bob or his estate has counter-sued. Bob (or his estate) might ask for costs and legal fees, and perhaps sanctions for a frivolous suit. The court might well asses whether to grand such a costs order before or as it dismisses the case. ; The question seems to confuse the idea of a civil lawsuit and that of a criminal prosecution. In an Civil lawsuit, one person (or company) (the plaintiff) claims that another (or several others) (the defendant) have violated an agreement, or have in some other way caused legal injury. For example, if Alice claims that she had a contract with Bob and Bob violated the terms that would be a civil suit. Or if Alice claims that Bob infringed her copyright, or slandered her, or falsely advertised something or any of many other possible situations. The case would be Alice C vs Bob D . However, if Alice accuses Bob of having stolen from her, or punched her, or raped her, that woulds be a criminal accusation. The police would investigate, and if they found evidence to support the accusation, the local prosecutor could (but need not) file a case, which would be something like State of Franklin vs Bob D IN THE CRIMINAL COURT. Alice would be a witness, but not the plaintiff. If the investigation found that Alice committed a crime also, the prosecutor might file, State of Franklin vs Alice C Or the prosecutor might file both cases, or neither. The prosecutor has wide discretion whether or not to prosecute in any particular case, even when the evidence is clear. Neither Alice nor Bob could insist that either criminal case be dropped. Only the prosecutor, or the Judge, could do that. A criminal court is a different court from a civil court, and in many places a given judge hears only one or the other type of case. In many other places a judge may hear both kinds, but any one case is still either civil or criminal.

If Trump's legal challenges to the 2020 elections are so bad, why haven't the courts ruled them as frivolous?

(Not sure if this should be on the Law.SE) Per title. Most of the news coverage I've seen have said the challenges are bad, such as this recent one on the result of a challenge in Pennsylvania . "One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption," he wrote. "Instead, this court has been presented with strained legal arguments without merit and speculative accusations ... unsupported by evidence. Second example : Russell J. Ramsland Jr., a cybersecurity worker and an expert witness in the case, filed an affidavit Wednesday claiming that his company had uncovered evidence of inconsistencies in electronic voting machines. But the inconsistencies he claimed to identify were in districts in Michigan, not Georgia. The affidavit also listed a number of towns and counties in which Ramsland’s analysis ostensibly showed that the number of votes cast exceeded the number of eligible voters. But most, if not all, of the places Ramsland listed appeared to be townships and counties in Minnesota, not Michigan. Taken at face value this would imply that the legal cases are really bad, effectively wasting the courts' time. That in turn implies that the judges would've handed down a frivolous litigation judgement with associated penalties for the plaintiffs. But if that has happened, I've not seen it reported in the media. Why? A first guess is that there is no law against frivolous litigation in the US, but Wikipedia seems to indicate that's not the case .

First, while most US court systems do have rules against frivolous lawsuits, most judges are loathed to employ them because the punishment is that the vexatious litigant would be denied the use of courts for when they do actually have a case of merit. Declaring someone a vexatious litigant also does not 100% block someone from filing suits. Normally they can file if a judge or officer of the court (i.e. a lawyer) signs off on the case. Since most lawyers won't touch the kind of cases that vexatious litigants tend to file, the litigant tends to be representing themselves pro se (Lawyers taking these types of cases tend to get disbarred quite quickly as they are effectively taking money from clients who they ought to know don't have a snowball's chance in hell... with global warming in full effect... in an El Nino year). Furthermore, being declared a vexatious litigant in one state does not ban you from filing in another state and most election cases at the time of writing have yet to reach the Federal Level (and even then, such a declaration is not a nationwide ban. It only bans the litigant in federal courts. All 50 states have to separately ban the litigant in their own legal system). Secondly, while there are a number of cases over the past election that were dismissed, only a handful were filed by Trump's legal team. Many were filed by down-ballot Republicans or even voting citizens in many cases who's desired outcome just happens to align with Trump's desired outcomes. While most have been dismissed, it's wrong to say they were filed by Trump or his legal team. The right to litigate election results is quite broad as to who has the standing to file these cases and it varies from state to state. Finally, not all cases dismissed are dismissed "with prejudice" which means that while the case in it's current state is not acceptable for a court to hear, it's not without merit to be heard once the deficiencies are amended. As an example, one early case filed and dismissed was seeking an injunction to stop the vote-counting until the court could rule on the matter of how well ballot observers could actually "observe" the ballots being counted. However, between the time the case was filed and the judge heard the case, the ballots were all counted, which meant that the relief sought by the plaintiff (i.e. Trump) was physically impossible to grant BUT the legal question of whether ballot observers were allowed to properly observe the counting is still valid, so it was dismissed "Without Prejudice" which means the plaintiff could amend the case and refile as the relief needed to be changed. Essentially the judge is willing to at least hear the arguments but cannot grant the relief for damages sought. In the U.S., Judges cannot hear cases that are moot, even if there is a valid argument to be made (to give a criminal angle to this, yes, a judge should hear the evidence that a man committed mass murder... but only if that accused mass murderer is still alive to be punished... if he's dead there's really nothing the Judge can do.).

Why prosecute Kyle Rittenhouse if there is no real chance of a guilty verdict?

(Not sure if this should be on the Politics.SE) From divibisan's answer to one of my questions on Politics.SE : You won't find many people seriously arguing that the Rittenhouse jury ruled incorrectly as a matter of Wisconsin state law. The standard for self-defense is so loose, that it's hard to see how they could have found him guilty of first-degree murder: Under Wisconsin law, you can kill people in self-defense if you reasonably believe that doing so is necessary to spare yourself or others from imminent bodily harm or death. This belief need not be accurate. Nor must it be reasonable from an objective perspective. It only needs to be reasonable from the subjective point of view of the shooter in the moment he or she pulls the trigger. If most people won't seriously argue this, then why would prosecutors even bother to bring the case to trial? It'd just be a waste of time and money. Furthermore, even if the prosecutors bring the case, presumably courts should decline to hear it (since they already moot cases to not waste taxpayer money ). Are prosecutors empowered to prosecute cases that will never result in guilty verdicts? Can prosecutors ever be classified as vexatious litigants?

The trial was held because A Kenosha County Court Commissioner ruled there is enough evidence for Kyle Rittenhouse to stand trial for homicide charges. “All this court needs to find was that a felony was committed and probably committed with this defendant,” said Thomas Binger, the assistant district attorney of Kenosha County. The court agreed.

Sandy Hook defamation case and opinions based on disclosed facts

(Note that I 100% think the Sandy Hook shootings were 100% real.) From a BBC article : In June a Wisconsin judge ruled that James Fetzer had defamed Leonard Pozner by claiming he had fabricated the death certificate of his son Noah. ... In his book, written with co-author Mike Palacek, Mr Fetzer claimed that the Sandy Hook shooting was a hoax, ... Which means that the following defense did not work: "Fetzer concluded, based on disclosed facts X, Y and Z that the Sandy Hook shootings were a hoax, and therefore Noah's death certificate must be fake." So, why didn't it work? If the reasoning used is illogical enough then "opinion based on disclosed facts" doesn't apply? Because Fetzer went beyond just saying that the death certificate was fake, and more specifically said that Leonard Pozner himself had faked it?

The "failure" in this case can be seen in the transcript of the hearing of arguments for a motion for summary judgment, especially starting at p. 163 where the judge gives his reasons and his ruling granting summary judgment. It really reduces to this sentence: "Having concluded there's no genuine dispute as to any of the material facts, I conclude that the Plaintiff is entitled to judgment on liability as a matter of law". There is ample discussion in the preceding pages establishing that the two sides agreed on the legally-material facts. Defendants (who represented themselves) may have had some idea for a "matter of law" defense, and did propose that plaintiff is a "public figure" (thus bring in the "actual malice" standard), but the judge ruled against that. Since the statements were false, what was left for the jury was to decide what damages to award.

CC Non commercial software licensing and selling exceptions

(Originally posted to Open Source. I am programmer, not very good with legal stuff) I have created an app that I feel has potential and want to license it appropriately. It produces visual output that could cause epilepsy, so I want to explicitly make myself not liable for that as well as refusing liability in general. I have chosen to distribute it and its source code together as a single unit under the CC BY-NC-SA license as I want users to be able to: Share Use Modify But only if they: Attribute Don't use commercially, such as in a club/festival, either to sell the app/source code, the output, or show the output in a way that makes them money Share-alike Distribute the source with the app I also want to retain all patent rights, and to be able to sell exceptions for commercial use, which I expect companies will want. I have done a lot of research on how to accomplish this, and from what I could find, GPL doesn't fit as it allows commercial use, and CC BY-NC-SA is not designed for software. I am not a lawyer, and don't know anything about software licensing so I thought I would check if what I want to do is feasible legally. I would like to have a license somewhat along the lines of as follows: This software is provided without any warranties or liability, as detailed below. The author shall not be liable for any damages in general, especially as a result of epilepsy or other forms of photosensitivity. The source code and binary are licensed as a single unit, to be distributed together, under the CC BY-NC-SA 4.0 license. The binary shall not be distributed without the source code and vice versa. The output of this app shall also be [distributed under/subject to] the CC BY-NC-SA 4.0 license, unless an exception is purchased. The author reserves all patent rights. [CC BY-NC-SA license follows] I appreciate that I am effectively kludging together a license here, but what I want to know is whether I can actually do this, add terms to the top of an existing license as shown above, and if that means the software isn't licensed under CC BY-NC-SA anymore.

You may surely create your own license if you please, and use ideas from the Creative Commons license if you wish, but it would not then be a CC license, and you may not use the trademarked "Creative Commons" name for the license. Also the actual license text is protected by copyright. If you license the work under the CC "-SA" provision, or anything like it, you are permitting anyone to create a derivative work based on your work, which could include leaving out the source code. If you want to mandate that all redistributors include both source and object code, you would have to use the "-ND" element prohibiting modified works at all, or a very different license, one bearing little relationship to any CC license. Disclaimers of liability are not always legally effective, depending on the jurisdiction. The law may impose liability no matter what disclaimer you include. If the harm is reasonably foreseeable, and the developer has not taken all reasonable and prudent steps to guard against it and warn of it, liability is likely, but this will depend greatly of the exact law of the place where a suit might be filed. In the US, this varies from state to state.

Where can I find insurance claim requirements and standards for a given state (Texas, etc)

(PLEASE NOTE: the insurance company I am referring to is the other driver's. The other driver was ruled at fault in the accident) As a handy way to illustrate my experience, here is a scenario: So you're at work and I go to your parking lot and smash your car up and total it so that the repair cost exceeds the value. You walk out at 5:00PM and discover this. Since you weren't in the car, nobody was injured. You probably don't like me because now you have to take all your personal effects out of your car. But I say, "hey, I'll give you a rental car to use, and pay you the fair value of your vehicle - are we good?" Your response would no doubt be, " No! You're not accounting for the inconvenience of having to move my personal effects around, handle insurance updates, as well as the time and disruption to find a new car. Certainly that is worth something". My question is, where may I find, in direct law or other resources, what the other driver's insurance company is obligated to pay in this case, for my state? In my case it's the state of Texas but I figure this would be more helpful generically.

You should have exchanged insurance information at the time of the crash (and if there was a police report, it would also probably be found in that, which you can obtain with some paperwork from the police). You can then contact the insurance company and ask them what the coverages are on that policy. The amount of coverage depends upon how much the other person purchased from there insurance company. There is usually a minimum insurance requirement, but different drivers carry different amounts of insurance. If you do not receive the information voluntarily, the next step is to sue the owner of the other car. Insurance information will have to be disclosed in the course of the litigation, and, if you prevail or settle, the insurance company will pay the other party's liability.

Is failing to report a bank error in and of itself a crime?

(Related to discussion at https://money.stackexchange.com/questions/133263/how-should-i-handle-money-returned-for-a-product-that-i-did-not-return/133270 ) Suppose a customer receives a deposit into their bank account due to an error by the bank. They decline to mention this to the bank, hoping that the deposit will not be reversed, but they keep the entirety of those funds in the same account ready for return in case it is. The customer's contractual agreement with the bank surely has a clause that enjoins the customer to promptly notify the bank of any errors and they will have violated that (although perhaps in plausibly deniable fashion). However for the crime of theft to have been committed, we need "intent to deprive". To me (not a legal expert) it seems that merely failing to inform the bank of its own mistake does not rise to the level of intent to deprive, and no crime is committed unless/until the customer takes further action (such as spending the money). Am I wrong? Even if it is technically illegal, as a practical matter I assume that no bank would pursue this over merely reclaiming the funds. Is there any precedent for someone being punished purely for failing to report a bank error? (Jurisdiction note: the initial discussion centered around UK law, but as this is a hypothetical question, answers from other jurisdictions are also interesting.)

Disclaimer: I was the person who originally had the debate with the OP which prompted this question. My answer is based on the UK jurisdiction. Short answer (TLDR) If the action is deliberate, then under UK law it is likely that a crime of theft has been committed. Under the statutory definition of theft, five elements need to be established: dishonesty, appropriation, property, belonging to another, and intention to permenantly deprive. The first four are easy to satisfy. To establish intention, it is not necessary that the money be spent. It is only necessary to establish that at the moment that the recipient realised the mistake , they intended not to return the money. Even if they do plan to eventually return the money, it can still amount to an intention to permenantly deprive. In A-G's Reference (No 1 of 1983) , the Court of Appeal held that theft could be committed in a case where an employer had mistakenly paid £74.74 to an employee for hours they had not worked. The obligation to return the money arose at the moment the employee realised the mistake. Whether or not the money was spent was not an issue (it was not even raised). Full answer I'm starting from the assumption (stated in the question) that the action is deliberate, as opposed to the recipient simply not noticing they have received the money. If it was accident or unnoticed then it is unlikely a crime has been committed as the necessary intention will be lacking. By deliberate I mean the person notices the money being received, realises it was an error, knows who the sender was (or can reasonably find out), and does nothing to rectify it. If the action is deliberate then this is likely to amount to the crime of theft under the Theft Act 1968 ('TA 1968'). Note, whether or not the prosecution could actually prove the crime is a separate matter. The question is not asking how easy it is to prove the elements, only whether or not the crime has been committed. Statute Theft is defined as "dishonestly appropriat[ing] property belonging to another with the intention of permanently depriving the other of it" (Section 1(1) TA 1986). Your motivations for appropriating the property (including whether or not you spend it) are not a relevant factor: "It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit." (Section 1(2) TA 1986). The important thing is whether or not the five elements of theft are present. These elements appear in the statutory definition of theft and are further elaborated in the Act: dishonesty (section 2 TA 1986), appropriation (section 3 TA 1986), property (section 4 TA 1986), belonging to another (section 5 TA 1986) and intention to permenantly deprive (section 6 TA 1986). Dishonesty: Defences include believing there is a legal right to deprive the other of the property, believing there was consent, or believing that the person to whom the property belongs cannot be reasonably discovered (section 2(1) TA 1986). None of these exceptions apply here, given the premise of the question. However if one of these beliefs were instead present, it is worth pointing out that "belief" is assessed using the subjective test (what the defendant genuinely believed), not the more common objective test (what a reasonable person would have believed in the circumstances) (R v Robinson. [1977] Crim LR 173). If none of the exceptions apply, then there is two-stage test for dishonesty: an objective test and a subjective test. However, if the objective test is passed then the subjective one is likely to as well: "In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people to consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did." (R v Ghosh, [1982] QB 1053). Appropriation : "Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it , any later assumption of a right to it by keeping or dealing with it as owner." (emphasis added) (section 3(1) TA 1986). That very clearly applies here. Property: "'property' includes money [and] things in action" (Section 4(1) TA 1986). A bank balance is not money but a "thing in action" (a debt from the Bank to the customer) (A-G's Reference (No 1 of 1983) [1984] 3 All ER 369). Belonging to another: " Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration , and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds." (Section 5(4) TA 1986). Note that it is not necessary that the customer be under a contractual obligation to return the money to the bank. Such an obligation can arise anyway under the law of restitution. It also arises in the law of equity - a person who gives property by mistake retains an equitable interest in that property (Chase Manhattan Bank v Israel-British Bank [1981] Ch 105). This principle has specifically been applied to bank errors (R v Shadrockh-Cigari [1988] Crim LR 465). Intention to permenantly deprive: "A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal." (Section 6(1) TA 1986). There are two important things to note here: firstly, an intention to take and then return an item can still amount to theft. Secondly, it is the intention at the time of the appropriation which matters. If the person intended to keep the money (in our case, by hoping it will never get asked for) at the time they became aware of the mistake then it doesn't what their later intention is after the event (e.g. they later decide to return the money because they have been asked for it). See also the reference to intention above in relation to "belonging to another". Other relevant case law Hibbert McKiernan [1948] 1A, ER 860: Property can cease to belong to another if abandoned. However the threshold for this is very high. Property is not abandoned just because the owner has stopped looking for it. You are therefore unlikely to be helped by the fact that the bank does not attempt to recover the money. R v Scott [1987] Crim LR 235: The defendant stole a pair of curtains from a shop but planned to return them the next day (to claim a fraudulent refund). Held: intention to permenantly deprive was present at the moment they were taken from the shop since the defendant treated the item as theirs to dispose of (see statutory definition of intention above). It didn't matter that defendant intended to return the item, even within a short timespan. Now you may argue that on the face of it it appears that you don't treat the bank balance as yours to dispose of because you leave it untouched. But remember you are under an obligation to return it as soon as you notice the error, which you fail to do. A-G's Reference (No 1 of 1983) [1984] 3 All ER 369: the defendant (R), a police officer, was mistakenly paid by bank transfer £74.74 for overtime she had not worked. The police made no demand for repayment. Held by the Court of Appeal: (1) section 5(4) TA 1986 applicable, (2) the legal obligation to return the money commenced as soon as R became aware of it, (3) satisfactory proof that R had no intention of making restoration to the police would be proof of an intention permanently to deprive. Note that whether or not the money is spent is not a factor (nor was it examined in the case): it is the intention that matters. Judgment excerpts: 186: "There was some evidence before the jury that she had decided to say nothing about this unsolicited windfall which had come her way, and had decided to take no action about it after she discovered the error. No demand for payment of the sum was made by the Receiver of the Metropolitan Police or anyone else." 189: "there was a legal obligation upon the respondent to restore that value to the receiver when she found that the mistake had been made" 189: "once the prosecution succeed in proving that the respondent intended not to make restoration, that is notionally to be regarded as an intention to deprive the receiver of that property which notionally belongs to him." Other points raised in the question "merely failing to inform the bank of its own mistake does not rise to the level of intent to deprive, and no crime is committed unless/until the customer takes further action (such as spending the money). Am I wrong?" Yes. For most crimes (other than absolute or strict liability crimes), you need to establish two things: actus reus (an action) and mens rea (a state of mind). A failure to inform the bank is part of the actus reus (it is an action, not a state of mind). It therefore has nothing to do with intention. The intention is the reason why you carried out the action. In our case it is the part in bold here: "they decline to mention this to the bank, hoping that the deposit will not be reversed ". It is that hope which establishes intention. "Even if it is technically illegal, as a practical matter I assume that no bank would pursue this over merely reclaiming the funds." It is not necessary for a civil entity to pursue a criminal conviction. That is handled generally by the Crown Prosecution Service or by other government agencies that are empowered to prosecute. The bank's co-operation is only needed if their evidence is required to prove the case. Even then, a witness can be compelled to assist the case against their will (section 2, Criminal Procedure (Attendance of Witnesses) Act 1965 and Part 17, Criminal Procedure Rules and Practice Directions 2020). Note that it is unlikely that a bank would refuse to cooperate. In any case, whether or not a crime will actually be prosecuted is not relevant to whether or not a crime has been committed (see my opening remarks about proving a case). "Is there any precedent for someone being punished purely for failing to report a bank error?" There are plenty of cases reported in the media involving convictions for failing to report and then spending money resulting from a bank error. See 1 , 2 , 3 for some examples. I was unable to find any precedents specifically relating to cases involving a bank error where the money was not spent. However, A-G's Reference above is essentially the same scenario, just involving an employer instead of a bank. In any case, the lack of an identical precedent does not mean that the courts would acquit a person in these circumstances. What matters is the statutory rules and whether or not the court would apply the existing precedents to the facts.

Is linking to illegal free-movie streaming websites itself copyright infringement?

(Site hosted in Canada) Would a website containing a list of links to free-movie websites be considered illegal? The "free movie websites" are hosting copyrighted movies without permission. Note, the site in question is not linking to particular movies on these sites. It is just providing a list of the free-movie websites that exist. Would this be illegal? Also, what if the website still provided the same list of website links, but it was meant as a "blacklist" of sorts. With warnings saying "Please do not go to these websites because they are illegal and infringe copyright. This list is provided as reference so you can avoid these bad websites. Please make sure to add these bad websites to your site-blockers and firewalls." Would this "warning" website be illegal?

No. This would not be illegal. There is considerable case law holding that a mere link to a website is not itself actionable, either civilly or criminally, for wrongdoing by the operator of the destination site. This said, even though it would not be a breach of copyright, per se , in some circumstances one could imagine the link, together with other actions to give the link more context and substance (e.g. a revenue sharing agreement with the illegal website operator based upon clicks referred from your site) to support a claim of civil conspiracy to violate copyright laws, or even a criminal conspiracy to do so. But, it would be very hard to make out a civil or criminal conspiracy claim against someone who maintained a "warning" site. Similarly, it would not be actionable to have a webpage that linked to a website that used to be legitimate when the webpage was set up, if the link then rotted and the site at that address was replaced by a website that streamed videos illegally or promoted child pornography, without your knowledge.

Where can I find UK law on the way through Parliament (with effect before it has gone through)?

(Slightly different to this question: Where can I find actual UK law paragraphs? ) Basically, where can I find such details about laws that are "in-flight", more specifically laws that are on the way through Parliament to gain final Royal Assent, but will have effect before they do (unless they do not gain Royal Assent in the end)?

You're looking for Bills or Draft Bills. Bills & legislation - UK Parliament — this lists them all. A Bill is a draft law; it becomes an Act if it is approved by a majority in the House of Commons and House of Lords, and formally agreed to by the reigning monarch (known as Royal Assent ). An Act of Parliament is a law, enforced in all areas of the UK where it is applicable.

Selling custom electronic projects online in the uk

(Sorry if I am posting in the wrong forum) I am wanting to have a go at selling some of my projects (mostly lighting: epoxy, led strips) after doing a search, it sounds like there are a lot of regulations about this sort of stuff. I have also read about CE which it sounds like I would need in order to sell online (I am looking at eBay), the product would use an led strip that most likely already comes with a CE mark. So I am here to ask if that would allow me to sell this lighting product straight to eBay without problems occurring with regulations? If there are problems with regulations would it be an idea to think about selling it as individual parts that the end user builds?

If you are selling "low voltage" (meaning under 1000 volts ) equipment across an EU border then it requires CE marking . It sounds like your products qualify. If you merely resell equipment that someone else has produced then you can rely on the CE marking of that equipment, but if you are manufacturing something using CE marked components then your product has to be CE marked . You can't just rely on all your components being CE marked because your product as a whole might not comply. Selling the components as a kit also does not avoid the need to CE mark your product. A CE mark is simply a declaration that your product conforms to all the relevant EU regulations. How you demonstrate this depends on the product. You may be able to demonstrate "minimal risk" if, for instance, you use a CE marked transformer that outputs 12 volts to the rest of the lighting, and there is no possibility of anything getting hot enough to burn someone. In that case you can just record your reasoning and stick the CE mark on the product. If you are merely selling in the UK then I don't think you don't need CE marking. However as a practical matter you should still consider getting it because it will help avoid possible negligence claims and/or prosecution if something bad happens due to one of your products. You might also want to consider legal insurance against such an eventuality.

My child's name is "Robert'); drop table *;--" Is he in trouble?

(Source: https://xkcd.com/327/ ) So with the upcoming birth of my first child, I suggested the name "Robert'); drop table *;--". While I was quickly told that wasn't going to happen, I have to wonder what could happen if he was actually named that. For the less technical, this name contains what is called a SQL injection attack. If the name is entered into a poorly designed SQL system, it could potentially execute a sql command and drop all tables (i.e. cause the organization's IT manager to have a somewhat bad day, depending on how good their backups are). So assuming I am able to get this name on his birth certificate and get his SSN assigned under that name (let us assume that the government has been able to build their system such that this name can be handled without issue), what would happen if his name fulfills its intended purpose when signing him up for day care? In that while signing little Bobby tables up for day care, his name wiped out all their data, and because of their lack of a good IT policy, they have no backups, causing no small amount of trouble for the day care. What would I be charged with or sued for in this case? I assume I am on the hook for some sort of malicious destruction of data or somehow liable for the loss of data. Would this being his name afford any sort of protection? Or would the fact that it was selected intentionally to cause damage be an issue? Jurisdiction: United States, pick any state you feel like.

Your kid is not in trouble; he's a minor. You're in trouble. A criminal case for the charges a prosecutor would bring, i.e. destruction of property (the data) or for a relevant cyber or computer crime (malware, etc.), and/or a civil case for damages due to the destruction of the data would both hinge on one point: the concept of intent . See intent - Wex Legal Information Institute and Civil Law vs. Criminal Law: The Differences | Rasmussen College . Did you knowingly intend to cause damage or data loss with the structure of the name? It's pretty clear you did. The structure of a name that can invoke an SQL command is not in any sense a standard name in spelling or format or punctuation. So how would you convince the jury or judge that you had no intent when you named your kid? The possible poor design of a data system that didn't sanitize inputs is no defense. Saying the door was unlocked so I assume the homeowners didn't care if I trashed their house will get you laughed into jail or on the hook for a stiff civil judgement.

I would like to blow a whistle but don't want to face retaliation

(The following is slightly fictionalized, but more-or-less true) I recently ended a relationship with a hedge fund. The relationship ended unpleasantly, and lawyers were involved. I tried to explain to my lawyer that they were doing a number of things that are breaking SEC's regulations - but these things were way too complicated for my lawyer to wrap his mind around. My lawyer told me to settle with them and sign a non-disparagement agreement. So I did. (They dropped legal action, but did not compensate me in any way.) The hedge fund has continued to do the things which I believe are illegal, and not only that, they are bragging about them openly to their investors. This infuriates me. I would relish reporting them, especially since they are continuing to do this, and they are bragging about doing this, and because this is what led to my original dispute with them. I emphasize that I strongly believe they are breaking the law: I have read the laws and I have read their descriptions of what they are doing. I have put these side-by-side and if I can read English, they are breaking the law. However, my experience is that how laws are enforced in practice can sometimes be different from how the law reads to someone on the outside. My understanding is that this is an issue of public interest, and that they couldn't retaliate against me by enforcing the agreement. I'm not willing to do this without consultation from an attorney. So now I have several options. Go directly to the SEC. I could show them exactly where they brag about breaking the law. I could do this anonymously, but the hedge fund would have a good idea it was me. Go to a lawyer who represents hedge funds, and have a consultation before reporting anything. This lawyer would probably have a good picture of what laws are prosecuted and which ones aren't, but I would have to trust there was no conflict of interest. Go to a consumer lawyer and have a consultation before reporting anything. The problem here is that I doubt the average lawyer would have any idea about these laws, because they are somewhat complex. Sit here and try to root for the Mets and be content that the hedge fund is hurting other people and not me.

Take option #2. Your concern in that scenario is not realistic: A lawyer who "reported" you to the counterparty of your settlement for such a consultation would be disbarred so quickly and harshly that it might actually give you faith in the Bar Associations. Consultations with lawyers are privileged , and lawyers have a duty to maintain client confidentiality in all but the most extreme situations . Furthermore, you might (ultimately) be entitled to whistleblower compensation, and unless you're an SEC rules specialist you probably wouldn't know how to get that without an advocate like a securities industry lawyer.

Is the cop right? Is it OK to harass people, but only as long as it's non-sexual?

(The protagonist of this clip, the "bagel guy", went viral recently in someone else's video) In this Youtube video ( now removed, Twitter copy ) a cop tells him it's not illegal to harass people, but only as long as it's "non-sexual". Is he right? Asking a (very short) guy "How tall are you?" Asking a woman "How big are your breasts?" Asking an apparently foreign-born man "What country are you from?" (All featured in the video) Is there a substantial difference in the legality of these actions?

Overview The cop is basically wrong. Sexual harassment is not the only kind of harassment recognized by U.S. law. The question and the cop's answer to it, assume that simply asking certain questions is illegal or not illegal, but it isn't that straight forward. Words communicated verbally are part of the analysis, but not the entire analysis. It all depends upon context and the character of the communication. None of these questions are per se (i.e. always) illegal to ask in the abstract, although a good lawyer would advise a client that it is rarely prudent to ask them because, together with other facts, they could give rise to civil or criminal liability. In this regard, he is correct that two of the three questions aren't necessarily unlawful, but he is incorrect when he assumes that the third one, which would suggest that there might be sexual harassment present, is always unlawful. But, any of these three questions could be a part of a pattern of conduct that constitutes illegal harassment, and each of these three questions suggest an intent that one would often expect to be a part of a larger pattern of harassing conduct. So, he is incorrect when he suggests that non-sexual forms of harassment are definitely legal. Also, there are really at least three kinds of illegal harassment that need to be analyzed separately, one in the context of state and federal laws prohibiting discrimination on the basis of protected classes, one in the context of the common law tort of intentional infliction of emotional distress arising under state law, and the third under a state's general criminal laws. In addition, certain kinds of harassment can provide a basis for the issuance of a restraining order or protection order under state law. A particular course of harassing conduct may be governed by only one of these kinds of laws, by some but not all of these kinds of laws, or by all of these kinds of laws, depending upon the nature of the conduct and the laws of the state that are at issue. In cases where the relevant law is state law, rather than federal law, the applicable laws may, and frequently do, differ in important details from state to state. I describe the most common provisions of state law that apply, using the state of Colorado, which is the primary place where I practice law, for some specific examples. But, while some important details (particularly with regard to criminal liability) differ from state to state, the broad outlines of the relevant state laws are usually fairly similar in the vast majority of U.S. states. Harassment That Is A Form Of Discrimination The Nature Of The Liability One kind, is a subset of discriminatory conduct in the context of a relationship such as employment, or operating a "public accommodation" (such as a restaurant open to the public), or carrying out governmental functions, in which there is a legal duty not to discriminate on a particular basis. This is implicated in the second and third questions. In both of these cases, harassment as a form of employment discrimination arises from the same statute. Neither that statute nor regulations interpreting it, at the time that sexual harassment claims were first recognized by the courts, specifically delineate an offense of sexual harassment or other kinds of harassment separate and distinct from employment discrimination generally. Subsequently, the case law, regulations interpreting the statute promulgated by the EEOC, and to a less extent some statutes (especially at the state and local level), have spelled out sexual harassment as a distinct type of discrimination on the basis of sex in employment with its own set of specific legal elements of the claim that must be established which differ somewhat from other employment discrimination claims. Why Isn't This A Free Speech Violation? One of the reasons that this can be prohibited, notwithstanding the First Amendment to the United States Constitution, is that in the employment and public accommodations cases, this involves commercial speech, the regulation of which is subject to less rigorous review than non-commercial speech, as a matter of United States constitutional law. In the case of governmental speech, this regulation is directly authorized (and arguably required) by the 14th Amendment requiring government to provide people with equal protection of the laws, which was enacted after the First Amendment. Also the First Amendment generally limits the power of government to regulate the speech of others, not its own speech. Discrimination On The Basis Of Sex In the context of an employer-employee relationship, a man (or woman) asking a woman "How big are your breasts?", could be interpreted as sexual harassment, which is a kind of employment discrimination on the prohibited basis of sex, and if violated, gives rise to the right of the EEOC or the woman to whom the question is directed, and possibly even to the all of the women in that workplace to bring a civil action for employment discrimination seeking money damages. While the expectation is that this sort of harassment happens from superior to subordinate that is not necessarily the case and it can occur between peers or from subordinate to superior. The U.S. Equal Employment Opportunity Commission (the EEOC) defines sexual harassment as follows: Sexual Harassment It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. Discrimination On The Basis Of National Origin Similarly, in the context of an employer or prospective employer asking an employee or prospective employee who is apparently a foreign-born man, "What country are you from?", this could be interpreted as evidence of employment discrimination on the prohibited basis of national origin, which, if it was occurring could give rise to the right of the EEOC or the man to whom the question is directed, and possibly even to the all of the foreign born people in that workplace to bring a civil action for employment discrimination seeking money damages. General Considerations Regarding Harassment As A Form Of Discrimination In each of these cases, the damages could be related to the direct economic harm associated with not being hired or promoted, for example, or could arise from the largely non-economic harm suffered from harassing conduct itself. Also, in each of these cases, simply asking the question is not harassment. The asking of the question must be part of a pattern of conduct that together has the effect of constituting harassment taken as a whole, and must involve some sort of improper motive on the part of the employer. An employer asking "how big are your breasts?" for purpose of ordering uniforms for a woman isn't engaged in harassment, nor is an employer asking "what country are you from?" for the purpose of determining if the employee has knowledge that would allow the employer to better serve a customer in a particular country. Harassment as a form of employment discrimination is not generally a crime, it is merely tortious conduct prohibited by law. Intentional Infliction Of Emotional Distress The Common Law Tort Courts in the United States have the power to established when conduct gives rise to a claim for money damages against another person which is developed through case law precedents extending back for centuries into the laws of England, so long as this is not in conflict with a statute. One such claim that is recognize by U.S. courts in most states is a tort (i.e. civil wrong) known as "intentional infliction of emotional distress." In the case of asking a (very short) guy "How tall are you?", except to the extent that the short statute was such that it amounted to a disability protected by the Americans With Disabilities Act (ADA) (which would be unusual but not inconceivable), this would not be a protected class and so it could not constitute harassment in the sense of a subtype of employment discrimination. But, that is not the end of the analysis in the case of the short employee. The law also recognizes a tort (i.e. a right to sue someone for a civil wrong) that is sometimes called " intentional infliction of emotional distress " and sometimes called "outrageous conduct" that is not infrequently invoked in an employer-employee context. Wikipedia at the link above summarizes this tort as follows: Intentional infliction of emotional distress (IIED; sometimes called the tort of outrage) is a common law tort that allows individuals to recover for severe emotional distress caused by another individual who intentionally or recklessly inflicted emotional distress by behaving in an "extreme and outrageous" way. Some courts and commentators have substituted mental for emotional, but the tort is the same. In the United States, the common law tort most often tracks the language of the Restatement of Torts (Second) Section 46 (1965), which states: One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. This tort cannot, however, be used to shut down offensive statements and parodies. Per the same Wikipedia entry: The U.S. Supreme Court case Hustler v. Falwell involved an IIED claim brought by the evangelist Jerry Falwell against the publisher of Hustler Magazine for a parody ad that described Falwell as having lost his virginity to his mother in an outhouse. The Court ruled that the First Amendment protected such parodies of public figures from civil liability. Unlike harassment as a form of discrimination, this tort is not limited to any particular protected class of persons, or to a particular specified kind of relationship between the perpetrator and the victim. But, the threshold of conduct which qualifies as "extreme and outrageous" needs to be both much more egregious and much more directly targeted at a particular individual. Basically, the conduct complained of must amount to either effective bullying, or to a malicious prank (there is considerable overlap between these kinds of conduct). An Example Of Conduct Held To Be Actionable Outrageous Conduct An example of conduct that was held sufficiently extreme and outrageous to give rise to tort liability if established at trial was this case: In January 1978, Zalnis contracted with defendant Thoroughbred Datsun for the purchase of a 1978 Datsun automobile. She took possession of the car on that day, and paid the balance of the purchase price two days later. Zalnis dealt directly with Linnie Cade, a salesperson employed by Thoroughbred Datsun. Defendant Trosper, President of Thoroughbred Datsun, approved the transaction based on representations by Cade which were later determined to be based upon erroneous calculations. When Trosper discovered several days later that Cade had sold the car at a loss of approximately $1,000, he instructed Cade and the sales manager to make good the loss by either demanding more money from Zalnis, retrieving the car, or repaying the difference out of Cade's salary. Cade refused to follow any of Trosper's alternative instructions, but another sales employee, defendant Anthony, telephoned Zalnis and told her to return her car to the dealership because it was being recalled. When Zalnis arrived at Thoroughbred Datsun, she refused to give up possession of her car without a work order explaining the need for the recall. Nevertheless, her car was taken from her. During the next few hours, Zalnis alleges that Anthony called her a “French whore,” followed her throughout the showroom, told her they were keeping her automobile, yelled, screamed, used abusive language, grabbed her by the arm in a threatening manner, and continually threatened and intimidated her when she attempted to secure the return of her automobile by telling her to “shut up.” During this period, Zalnis telephoned her attorney, who then telephoned Trosper and eventually obtained the return of her car. During their conversation, Trosper told the attorney that Zalnis had “been sleeping with that nigger salesman and that's the only reason she got the deal she got.” Trosper had known Zalnis for many years, and had told Cade and the sales manager that she was crazy and she had watched her husband kill himself. Zalnis v. Thoroughbred Datsun Car Co. , 645 P.2d 292, 293 (Colo. App. 1982). The analysis that lead the Court to reach this conclusion was as follows (most citations omitted): The defendants argue that their actions here were no more than “mere insults, indignities, threats, annoyances, petty oppressions, and other trivialities.” However, the defendants did not merely threaten and insult Zalnis; they took away her car and repeatedly harassed her. Conduct, otherwise permissible, may become extreme and outrageous if it is an abuse by the actor of a position in which he has actual or apparent authority over the other, or the power to affect the other's interests. The conduct here is not a mere insistence on rights in a permissible manner. Rather, the defendants' recall of the car was to avoid a bad bargain, and accordingly, the conduct was not privileged. [S]ee Enright v. Groves , 39 Colo.App. 39, 560 P.2d 851 (1977). Defendants assert that their actions must be judged by the impact they would have on an ordinary person with ordinary sensibilities. We disagree. The outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress by reason of some physical or mental condition or peculiarity. In Enright, supra , outrageous conduct was found where a police officer effecting an illegal arrest grabbed and twisted the plaintiff's arm even after she told him her arm was easily dislocated. In the instant case, plaintiff was peculiarly susceptible to emotional distress because she had witnessed her husband's suicide, and Trosper and Anthony knew about her susceptibility. Here, as in Enright , the defendants' knowledge exacerbated the conduct. There is outrageous conduct where the actor desires to inflict severe emotional distress or knows that such distress is certain or substantially certain. Here, Zalnis has sufficiently alleged that Trosper and Anthony acted with the intent to bully her into giving up her car. In view of their knowledge of her emotional susceptibility, they could be considered to have acted intentionally or recklessly in causing her severe emotional distress. The defendants argue that we should observe a distinction between a single outrageous occurrence and an outrageous course of conduct. While it is true that “the courts are more likely to find outrageous conduct in a series of incidents or a ‘course of conduct’ than in a single incident,” it is the totality of conduct that must be evaluated to determine whether outrageous conduct has occurred. Zalnis v. Thoroughbred Datsun Car Co. , 645 P.2d 292, 294 (Colo. App. 1982) Harassment That Is Criminal Conduct General Considerations Another form of harassment is harassment that constitutes criminal conduct. In these cases, the existence or absence of protected class status is irrelevant (or only goes to the sentence that is appropriate for a violation, rather than guilt or innocence), and the formal character of the relationship between the people (e.g. as employer-employee, merchant-customer, government employee-citizen) is secondary. Instead, in these cases, the existence or absence of harassment hinges on the character and subtextual message of the question in the context of the larger interaction. Exactly what is defined to be criminal harassment varies from state to state, but the key point is that the subtext of the message must either be (1) something that is outright prohibited, for example, when the superficially non-threatening question, in light of the tone used, body language, and the physical context where it takes place is an implied threat to harm someone, or (2) must be part of an overall context of conduct including the question, and a manner of communication which is calculated to distress, annoy, or disturb a person, to an extent that exceeds communication of an idea they may be inherently distressing in a civil, calm and non-combative manner, and would in fact disturb a reasonable person. In the latter case signs that it may be criminal harassment include yelling at a person, bombarding them over and over again with the statement in a way that it can't be avoided verging upon stalking, and being part of a large context of discussion showing specific animus against the individual target of the communication. The Example Of Colorado's Criminal Harassment Statute For example, Colorado's criminal harassment statute reads as follows: (1) A person commits harassment if, with intent to harass, annoy, or alarm another person , he or she: (a) Strikes, shoves, kicks, or otherwise touches a person or subjects him to physical contact; or (b) In a public place directs obscene language or makes an obscene gesture to or at another person; or (c) Follows a person in or about a public place; or (e) Directly or indirectly initiates communication with a person or directs language toward another person , anonymously or otherwise, by telephone, telephone network, data network, text message, instant message, computer, computer network, computer system, or other interactive electronic medium in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, computer system, or other interactive electronic medium that is obscene; or (f) Makes a telephone call or causes a telephone to ring repeatedly, whether or not a conversation ensues, with no purpose of legitimate conversation; or (g) Makes repeated communications at inconvenient hours that invade the privacy of another and interfere in the use and enjoyment of another's home or private residence or other private property ; or (h) Repeatedly insults, taunts, challenges, or makes communications in offensively coarse language to, another in a manner likely to provoke a violent or disorderly response. (1.5) As used in this section, unless the context otherwise requires, “obscene” means a patently offensive description of ultimate sexual acts or solicitation to commit ultimate sexual acts, whether or not said ultimate sexual acts are normal or perverted, actual or simulated, including masturbation, cunnilingus, fellatio, anilingus, or excretory functions. (2) Harassment pursuant to subsection (1) of this section is a class 3 misdemeanor; except that harassment is a class 1 misdemeanor if the offender commits harassment pursuant to subsection (1) of this section with the intent to intimidate or harass another person because of that person's actual or perceived race; color; religion; ancestry; national origin; physical or mental disability, as defined in section 18-9-121(5)(a); or sexual orientation, as defined in section 18-9-121(5)(b). (3) Any act prohibited by paragraph (e) of subsection (1) of this section may be deemed to have occurred or to have been committed at the place at which the telephone call, electronic mail, or other electronic communication was either made or received.... (7) Paragraph (e) of subsection (1) of this section shall be known and may be cited as “Kiana Arellano's Law”. (8) This section is not intended to infringe upon any right guaranteed to any person by the first amendment to the United States constitution or to prevent the expression of any religious, political, or philosophical views. Colorado Revised Statutes § 18-9-111 (emphasis added). The case of the harassment of Kiana Arellano, after whom the statute was named, is discussed in an article in the Denver Post , and sheds some light on the kind of conduct that legislators where attempting to punish when they passed the law. It was a case of severe cyber bullying that caused this person to attempt to commit suicide. Restraining Orders And Protection Orders Both tort remedies and criminal sanctions for harassment punish a perpetrator and/or compensate a victim of harassment after it has happened. In many case, the law also allows a court to enter orders known as restraining orders or protection orders directing someone who has engaged in harassing conduct to cease doing so. States differ considerably in defining exactly what kinds of harassing conduct can provide a basis for entry of a restraining order or protection order against an individual directing that person to cease having contact with or harassing the individual protected by the order. The most common fact patterns in which restraining orders or protection orders are entered for harassment (which is not the only kind of conduct that can provide basis for an order like that) involve (1) a former romantic partner harassing his or her ex, (2) a person who had engaged in elder abuse harassing the elderly person who had been abused, (3) a criminal defendant harassing potential witnesses in a case, and (4) a "fan" (often, in part, because they don't really understand the difference between entertainment performances and reality), or a "hater" (often, as part of a larger political agenda intended to bully opponents into compliance) harassing a celebrity, politician, or adult entertainer. Harassment that justifies issuance of a restraining order or protection order, like the harassment that can justify a common law intentional infliction of emotional distress claim, must typically be very extreme and pose an imminent threat to the protected person's safety, emotional well being, the judicial process, or the ability of the protected person to live an ordinary daily life. There must also generally be some reasons to think that the harassing conduct will continue if the court does not act. As in the case of other legal remedies for harassment, harassment in a restraining order or protective order context usually involves consideration of the context of a pattern of conduct over time, even though it can be based on a single very extreme incident. Every state provides that someone who violates a court order like this one may be held in contempt of court, which can result in incarceration or a fine, after a hearing is held in which someone (usually the victim's attorney) acts as prosecutor against the person who violated the order in a quasi-criminal proceeding within the main civil or criminal lawsuit in which the order was obtained. Some states make violation of a court order like this one a criminal offense as well, that can be enforced by law enforcement prior to a hearing if there is probable cause to believe that it was violated.

How can California not honor a fishing/hunting license or driving instruction permit issued by Oregon?

(These are just examples; the question is more general; it applies to any states and any type of license.) California does not honor a driving instruction permit issued by another state if the holder is under 16, nor do they honor an out-of-state hunting or fishing license. Is this constitutional under the full faith and credit clause? I'm intentionally not tagging this as oregon or california because they're just examples.

The Full Faith and Credit clause says Full faith and credit ought to be given in each state to the public acts, records, and judicial proceedings, of every other state; and the legislature shall, by general laws, prescribe the manner in which such acts, records, and proceedings, shall be proved, and the effect which judgments, obtained in one state, shall have in another For example, if Jones has been found liable to Smith in California, according to this clause, Nevada must "believe" this finding of California, and cannot say "Jones has not been found liable to Smith". Likewise Arizona has to recognize the validity of court records from Tennessee, etc. Congress then passed a law, the source of 28 USC 1738 , which says The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto. The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form. Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. Other laws such as 42 USC Ch 136 known in part as The Violence Against Women Act of 1994 and 28 USC 1738B ("Full faith and credit for child support orders") were passed which take away state power to say "that's not our law". In the case of marriage (which was subject to state-specific recognition exceptions until US v. Windsor , 570 U.S. 744 fixed that) interstate recognition of marriage derives from the Equal Protection Clause – marriage is a fundamental right. Driving and fishing are not fundamental rights. The reason why driving licenses are recognized across states is that every state has a clause to that effect in their laws (for politically-sensible reasons). The reason why fishing licenses are not ?ever recognized across state lines is that it's not necessary, legally or politically, to do so. Even in states with teaching certification reciprocity, you still have to apply for a new license when you start teaching in another state. In other words, the Full Faith and Credit Clause does not say "permission granted by one state shall be binding on all states".

How to block children under 13 to access my website and still comply with COPPA?

(This is a follow-up question from How to make sure my website complies with things like COPPA? ) COPPA stands for Children's Online Privacy Protection Rule . In their FAQ they say "yes, you can block children under 13 from visiting your website if you choose to" (assuming the website is not directed to children - and for the sake of this question, indeed it is not). Great! But later on they say that I should ask their age in a certain manner that confuses me. Quoting FTC's COPPA FAQ : G. GENERAL AUDIENCE, TEEN, AND MIXED-AUDIENCE SITES OR SERVICES 3. Can I block children under 13 from my general audience website or online service? Yes. COPPA does not require you to permit children under age 13 to participate in your general audience website or online service, and you may block children from participating if you so choose. By contrast, you may not block children from participating in a website or online service that is directed to children as defined by the Rule. See FAQ D.2 above. If you choose to block children under 13 on your general audience site or service, you should take care to design your age screen in a manner that does not encourage children to falsify their ages to gain access to your site or service. Ask age information in a neutral manner at the point at which you invite visitors to provide personal information or to create a user ID. In designing a neutral age-screening mechanism, you should consider: Making sure the data entry point allows users to enter their age accurately. An example of a neutral age-screen would be a system that allows a user freely to enter month, day, and year of birth. A site that includes a drop-down menu that only permits users to enter birth years making them 13 or older, would not be considered a neutral age-screening mechanism since children cannot enter their correct ages on that site. Avoiding encouraging children to falsify their age information, for example, by stating that visitors under 13 cannot participate or should ask their parents before participating. In addition, simply including a check box stating, “I am over 12 years old” would not be considered a neutral age-screening mechanism. In addition, consistent with long standing Commission advice, FTC staff recommends using a cookie to prevent children from back-buttoning to enter a different age. Note that if you ask participants to enter age information, and then you fail either to screen out children under age 13 or to obtain their parents’ consent to collecting these children’s personal information, you may be liable for violating COPPA. See, e.g., the FTC’s COPPA cases against Path, Inc., Playdom, Inc. and Sony BMG Music Entertainment. This is looking weird to me. So I can block children under 13, but I can't tell them that? Please re-read this part: In addition, consistent with long standing Commission advice, FTC staff recommends using a cookie to prevent children from back-buttoning to enter a different age. Note that if you ask participants to enter age information, and then you fail either to screen out children under age 13 or to obtain their parents’ consent to collecting these children’s personal information, you may be liable for violating COPPA. Their suggestion about using a cookie can be easily bypassed. For example: if a child tries to register and gets blocked for being too young, the child can use another computer and then claim to be older (this was just an example, there are thousands of ways to bypass that) . Then what is the correct way to block children under 13 to access my website and still comply with COPPA? Note: I have read this question , and I think its answer might be incomplete, considering my question here.

So I can block children under 13, but I can't tell them that? You can tell them after they fail, you cannot tell them on the asking screen. Then what is the correct way to block children under 13 to access my website and still comply with COPPA? I agree with you that it is odd that they recommend using a cookie but they do!* So you have a entry page with a simple question, "Please indicate your age" and then block based on the response. That's it. Note that the rule is neutral . This means that you do not need to disguise your purpose or try to trick people into entering their correct age. *I think that what is happening here is that any parent who wants to complain to their legislator can be met with the response, "If your kid is so sneaky that they are using different computers to lie about their age what do you want us to do about it?" The fact is, this scheme keeps innocent kids from seeing stuff they shouldn't; the sneaky ones are going to find a way.

Help with interpretation: must I comply or not with COPPA?

(This is a follow-up question from How to make sure my website complies with things like COPPA? ) Quoting FTC's COPPA FAQ : The Internet is a global medium. Do websites and online services developed and run abroad have to comply with the Rule? Foreign-based websites and online services must comply with COPPA if they are directed to children in the United States, or if they knowingly collect personal information from children in the U.S. The law’s definition of “operator” includes foreign-based websites and online services that are involved in commerce in the United States or its territories. As a related matter, U.S.-based sites and services that collect information from foreign children also are subject to COPPA. I am Brazilian and my website would be hosted in Brazil. I am not sure about the section "if they are directed to children in the United States" - if my website is not directed specifically to children in U.S. but directed to any children in the world, do I have to comply? If yes, does this mean I have to comply with all similar laws that might exist anywhere in the world?

Yes, they are saying that COPPA applies to you if any of the children are in the US. https://www.law.cornell.edu/uscode/text/15/6501 The term “operator”... means any person who operates a website located on the Internet... who collects or maintains personal information from or about the users of or visitors to such website... where such website or online service is operated for commercial purposes... involving commerce... among the several States or with 1 or more foreign nations.... Compliance with these sorts of things is interesting and when you ask if you have to comply with all similar laws I wonder who enforces the "have to." I can imagine, for example, if you are a franchisee and the franchisor has boilerplate language requiring you to comply with all local laws. Or in your case perhaps a software distributor has requirements. In those cases, sure, you need to comply with these types of laws in every country. But as for the US, what are they going to do to you? EDIT to address comment: This is all just my opinion: there is no private right of action under COPPA so it is not an individual who would sue you but the state; a state's attorney. So you would have to get on their radar and they would need to decide to come after you. Then they have to find you, in Brazil, and file the lawsuit which they can do in their own jurisdiction. Then they have to serve you, in Brazil. You can go to the US and defend yourself or take the default judgment. If you lose you can see the penalties and the factors on that FAQ page. Best advice is to do your best and if threatened fix the holes. Oh yeah - some states have their own private right of action laws so you could be sued under a state law.

Do any US laws restrict ownership?

(This is inspired by and a generalization of the firearms ownership question ). Many laws in the US restrict acquisition or possession of a thing. One can have legal title to a physical thing whose possession is restricted in the person's jurisdiction, where the thing is located in a jurisdiction without the restriction. In that case, one would own the thing, but not be in possession of it in the restricted jurisdiction. I have never seen any US law that specifically restricts ownership , and I suspect that there are none (possibly for constitutional reasons). Is it a fact that there are no such laws? (If there are any such laws, what interests me is whether "ownership" can be construed as an "act"). [An earlier version asked about 'addresses', not it seems clear that it should be narrowed to 'restrictions', since various laws incidentally mention ownership].

A random example I found is 16 USC 363 , which forbids anyone to own a bathhouse in Hot Springs National Park which has been granted a hot water supply, if they already own another bathhouse nearby. 42 USC 2061 says that the Atomic Energy Commission shall be the exclusive owner of all production facilities for special nuclear material (with certain exceptions), which effectively forbids any other person to own such a facility.

Schengen Area: What was the legal rationale for countries extending Temporary Reintroduction of Border Control beyond Nov. 2017?

(This is not about the coronavirus pandemic, which I understand is a different issue, but about the six countries that had already been maintaining border controls since related to migration and terrorism since 2016.) Could someone explain to me the legal basis of Germany, Austria, Denmark, Sweden, and Norway's extension of "temporary reintroduction of border control" declarations past the original 2-year deadline in November 2017? I'm trying to understand what the legal justification was for that, and I just keep getting more and more confused the more I read. Was the Commission's recommendation of September 2017 on extending the time frames adopted at some point? Or did they find some other loophole? I have found some media references to them "switching to France's strategy" (which I don't understand well either) or switching from Article 29 provisions to Article 25 provisions. But when I read the Schengen Borders Code, I can't find anything in Article 25 that I can manage to interpret as allowing unlimited extensions. I understand that there's an argument that what these five countries and France have been doing is indeed illegal, but I want to also understand what their own lawyers' argument would be for its legality. Thanks in advance!

Regarding Germany, Austria, Denmark, Sweden, and Norway, details can be found on the Commission website . According to the table of all notifications , they all periodically invoke the “security situation in Europe and threats resulting from the continuous significant secondary movements”. This is obviously in blatant contradiction with article 25 but in practice that doesn't matter. You cannot find anything in there foreseeing unlimited extensions because there isn't. It's as simple as that, no sophisticated legal wizardry is involved (regarding the fate of Juncker's 2017 proposal: that limit hasn't changed since the current framework was introduced in 2013 and is still present in the June 2019 consolidated version of the Borders Code ). By contrast, France's strategy is to ignore the law entirely (as opposed to merely ignoring some specific clause of article 25): introduce quasi-systematic checks on some borders, don't try to create half-hearted legal justifications, don't notify the Commission or invoke some generic “persistent terrorist threat” applying to all borders and count on the Commission to carefully avoid challenging France on this. Back in 2015, the country suffered a string of deadly terrorist attacks and ultimately activated a state of emergency so that it had already invoked the right to reintroduce border controls and did not need any additional notification when the refugee crisis worsened. The table on the Commission's website gives some additional insight into how all this came to pass. Back in 2015, many countries invoked article 28 with rather specific justifications related to the increasing number of refugees entering the Schengen area. After this initial unilateral move, the Council issued three recommendations to give these countries some legal cover (November 2016, February 2017, and May 2017) while roughly following the letter of article 25 (no more than six-month extension at once, not more than two years of border controls in total). Meanwhile, the Commission initiated a “ Back to Schengen ” strategy to try to salvage open borders in the Schengen area and make sure they appeared to be in charge. But in reality, the countries in question were clearly intent on imposing checks no matter what, even if it was not possible to find some other face-saving legal basis. So when the last six-month period expired, they stopped being so specific and just reverted to a generic notification while everybody else turned a blind eye. Note that the Commission does have a tool to enforce these rules and force a member state to, at the very least, make an effort to offer a more detailed legal rationale for its actions: infringement proceedings. For a long time, rules pertaining to the “Area of freedom, security and justice” were subject to different rules but since 2014, it falls under the ordinary EU law regime. The Commission has however been very shy in launching infringement proceedings on such a politically sensitive topic.

Can a company actually become GDPR compliant? Is there such a thing?

(This question could be expanded to other auditing procedures too) How do huge multinational companies that want to become GDPR compliant start off this? I mean, I guess one has to read the regulation, correct? But what if you misunderstood a point? Do companies usually call in an external party like an auditing company or consulting firm specialized in GDPR? Say you read and understood all the necessary things to be GDPR compliant. You do the privacy impact assessment then implement features within your solution/product to achieve this (Eg: purge user data on demand, opt-in full cookies by default, don't have any "sign me up" box checked by default, etc). Who then decides whether this set of features that should have been implemented is "complete" or not? Do auditing firms or whoever says "You are compliant" offer some sort of insurance in case there's a lawsuit and the company has to pay for failing GDPR? Or they just tell the company "The probability of paying in case of a GDPR lawsuit has been minimized"?

The GDPR consists largely of principles instead of concrete rules. It's possible to reasonably believe that you are fully compliant, but then have a court rule against you. Thus, a company might mitigate risks by getting experienced compliance consultants, and by not toeing the line of what is and isn't allowed. But at some point, working to reduce the remaining risk is not worth the effort. This will depend very much on the business. E.g. an adtech business will likely want to tolerate more risk than a bank. As the interpretation of the GDPR evolves, compliance efforts must adapt. For example, the Schrems II judgement that invalidated the EU–US Privacy Shield shifted our understanding on the legality of international transfers. This judgement was not necessarily surprising for anyone who paid attention, so to some degree it was possible to prepare in advance. But that judgement was the kind of shift in jurisprudence where you can't fix your compliance by filling out one extra form, but rather have to rethink all international transfers of personal data – a blow to US SaaS providers and European SMEs that depend on them. Some parts of the GDPR are geared to assist with a compliance process. For example, larger data controllers must create a Records of Processing Activities (ROPA) register. This lists all processing activities and their legal basis, which helps spotting potential compliance gaps. Risky processing activities require an Impact Assessment (DPIA) where the controller has to weigh different factors against each other and determine appropriate safeguards. While the GDPR doesn't necessarily say whether something is allowed or not, it frequently provides factors that must be considered in an analysis. In addition to the GDPR itself, there's a lot of guidance available. Data protection authorities publish guidelines and can also be consulted directly. In fact, that's sometimes explicitly required. In the EDPB, the different authorities coordinate with each other and publish a series of EU-wide guidelines. Sometimes the subject is very specialized, sometimes the guidelines touch on a very general matter such as the concept of “consent”. These guidelines are an effectively–binding interpretation and thus bring welcome clarity to a compliance process.