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If someone is cybersquatting myname.com, can I claim it back? | According to the Anticybersquatting Consumer Protection Act , Cybersquatting on a trademark is illegal. However, someone registered myfirstname.com. Do I have any legal right to ask them to sell it to me at a reasonable price ($10)? | 3,838 | First, unless you are the only person with that first name, there wouldn't be any reason why you should have the right to this domain name, and not someone else with the same first name. Looking at howmanyofme.com I found there are between 100,000 and 200,000 people in the USA alone with the same first name as me, and about the same number with the same first name as my wife. And that's the USA alone with less than 5% of the world population. Now if your full name is Mr. Chiperryman Smith you might have a point :-) Second, unless there are circumstances that would make this unfair, the rule for domain names is first come, first served. What would count strongly for the currently registered owner would be if they have a genuine connection to that name, if they are actively trading with that name. What would strongly count against the currently registered owner would be offering the name to the other person for a large amount of money; typically this would happen if a name is registered for the purpose of selling it to someone else. So if I registered www.chipperyman.com after reading your post here and then offered to sell it to you for $10,000, I would likely lose. If I used www.chipperyman.com to sell little chippery figures for the last 15 years, you have no chance in hell. If you read about the definition of cybersquatting just on wikipedia, it is quite obvious that someone using the domain name for 15 years is not in the slightest way coming anywhere near the definition of cybersquatting. | 0 |
What is the legal meaning of "related to"? | I'm filling out a paternity affidavit right now. The instructions say, The parents of this child or anyone related to the parents cannot be witnesses to any of these affidavits. This cannot be interpreted literally, as all human beings are distantly related to each other. Surely in order to claim paternity of my child I do not have to rustle up two extraterrestrials (or an extraterrestrial notary public). Even if it is taken to mean "provably related to," that seems problematic. Birth records go back a long way, and I've certainly met people and only later coincidentally learned that they were my fifth or sixth cousin; it would be unreasonable if I used a notary who happened to be my fifth cousin and that fact could later be used to invalidate my paternity. How closely-related to me or my partner does someone have to be in order to be considered "related to" us for this sort of purpose? (I'm in the United States — Missouri, to be precise.) | 3,833 | My interpretation would be: As related to the parents... Immediate family (e.g., brothers, sisters, etc.) First and second cousins, aunts and uncles Any direct ancestors (i.e., parents, grand-parents, great-grandparents, etc.) Any direct decendants (i.e., children, grandchildren, etc.) Any extended family members who have a close emotional relationship or frequent day-to-day interactions. Unfortunately, the vagueness of the requirement leaves the interpretation subjective — as you have noted. The interpretation of this requirement might be the reasonable person standard — i.e., what a reasonable person would consider related to to mean. However, IMHO, any future challenge would have a higher likelihood of success if any of the above family members were used as witnesses. Disclaimer: I am not an attorney. So don't follow my advice. Hire a real attorney if you need one. | 3 |
Creating an image derived from a stock image | I have created two images of a horse and an elephant from scratch based on Shutterstock images. I have changed some colors and added some more details but at the bottom line it looks very much the same. I want to use those images in my website, can I do it without risking being sued for copyrights violations? | 3,830 | Check your license from shutterstock what you are allowed to do with these images. They allow you, for appropriate payment, to publish their original images on your website. There is no reason why you couldn't ask them for a license to create an image derived from their original and publish it on your website. Anyway, according to your description, you created a derived work of the shutterstock images. Which is copyright infringement unless your license from shutterstock allows this. You have of course copyright on your modifications, but shutterstock also has a copyright on your work, because it is derived from theirs. If you have no license to create a derived work, then publishing it makes the situation worse. To answer your question: Legally, by getting an appropriate license. Illegally, by creating a work with so little similarity that you are not suspected. | 4 |
Why do lawyers "never" call hostile witnesses for direct examination? | In a novel version of "Perry Mason," the fictitious (mostly TV) lawyer called the actual perpetrator of the crime to the stand, as a direct witness because she had declined to testify for the prosecution (against Mason's client). Mason won the case with three questions: Mason: Are you Martha Lavinia? Witness: Yes. Mason: Is this your signature on this letter? Witness: Yes. Mason: Please read the letter to the court. It incriminated her. I understand that this tactic is highly unusual, to say the least. Perhaps it is because a lawyer can't impeach his own witness or ask leading questions, whereas he can do so on "cross." On the other hand, if a lawyer couldn't get a key (hostile) witness on the stand, except in the "worst" way, why wouldn't he do so? | 3,820 | Lawyers control hostile witnesses with leading questions. The reason Perry Mason's tactic worked in this example is because his only "real" question ( which actually wasn't a question at all as the below analysis explains ) was to read the letter. Since the contents of the letter were written, Mr. Mason knew exactly what the answer would be and, therefore, he had "control" over what the witness would say. Same analysis also applies for the other two "questions." As @cpast correctly points out in his comment, the rules allow direct examination of hostile witnesses . Witnesses are designated hostile by the judge in response to a request by the attorney who calls them for direct examination. Question Analysis Question 1: Leading. Are you Martha Lavinia? Not leading. What is your name? Question 2: Leading. Is this your signature on this letter? Not leading. Whose signature is on this letter? Question 3: Not a question. Please read the letter to the court. Question. What does this letter say? | 2 |
Where can I validate my music compositions? | After somebody creates his/her own new song, where does (s)he need to register/verify to be sure it's not a plagiarism? I'm curious how these things work–who has the power to say a song is a plagiarism of another song or not? Is there any tool to verify this? | 3,829 | Anyone in a country without strong laws against libel can accuse you of plagiarism. If I hear your song on the radio, I'm free to say "it sounds just like xyz written by abc in 1968". But that doesn't mean anything. If Mr. ABC himself thinks "it just sounds like xyz that I wrote in 1968", then he can accuse you of copyright infringement. And take you to court. And a judge or a jury, supported by expert witnesses, would make the decision whether you copied the song or not. | 2 |
Publishing code for redesigning web sites on Github | I've been learning web designing for a while now, and I hope to achieve an internship in this field sometime soon. I've noticed that most prospective employers ask for samples of work while looking at resumes. Since I don't have any real world experience in web design, it's important for me to show some relevant skills at least upfront. While a portfolio is always a given, I have been redesigning some random websites from time to time. Is it legal for me to put up the source code for these websites that I've redesigned on Github? The idea is that since Github repositories are publicly visible, I would be able to show my work through Github to prospective employers. This, I feel, is always better than just claiming - "I have skills in XYZ area". I'm a graduate student in the US. Will I face legal issues according to US laws if I do this? Should I include some copyright notice in all my Github source folders, something like - "The content designed in the websites is not mine, and I'm just recreating them"? Some of the websites I have re-designed include company logo pictures, which I had to just save (to my computer) and re-use. | 1,738 | Yes, in general you can face legal issues if you distribute copyright material in a way that is not authorised by the copyright holder. The text and images of websites are almost always subject to copyright. | 1 |
Publishing code for redesigning web sites on Github | I've been learning web designing for a while now, and I hope to achieve an internship in this field sometime soon. I've noticed that most prospective employers ask for samples of work while looking at resumes. Since I don't have any real world experience in web design, it's important for me to show some relevant skills at least upfront. While a portfolio is always a given, I have been redesigning some random websites from time to time. Is it legal for me to put up the source code for these websites that I've redesigned on Github? The idea is that since Github repositories are publicly visible, I would be able to show my work through Github to prospective employers. This, I feel, is always better than just claiming - "I have skills in XYZ area". I'm a graduate student in the US. Will I face legal issues according to US laws if I do this? Should I include some copyright notice in all my Github source folders, something like - "The content designed in the websites is not mine, and I'm just recreating them"? Some of the websites I have re-designed include company logo pictures, which I had to just save (to my computer) and re-use. | 1,952 | According to http://en.wikipedia.org/wiki/Fair_use : Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. Examples of fair use include commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship. If your re-designs clearly indicate the appropriate commentary, criticism or research on the matter (e.g., the before and after screenshots, together with the before and after source code, for example), giving appropriate credit to the original source, and without you trying to misattribute to yourself the work done by others, then someone in your situation would likely have a good affirmative defense based on the fair use doctrine to any copyright violation claim that the copyright holders might bring. | 1 |
Are performance bond and sanction the same thing? | I am translating a legal text into English. The original text (Persian) has footnoted "Zemanat Ejraii" which literally means performance bond as sanction but I doubt its correctness. Looking up both terms in legal dictionaries, I infer that performance bond is more appropriate in the context of providing guarantee for performing in accordance with some international agreement or treaty, but sanction is probably most suitable in case of punishing an infringement or breach. Part of the context says: Realization of sanctions in each legal system depends on creating two elements: the legal element i.e. measures predicted in law against violation of legal regulations and the executive authority superior to society powers that requires a power to ensure law enforcement across the whole society, being able to counter any rioting power and enforce predicted punishments (Bagherzadeh, 2002). I assume performance bond should replace all occurrences of sanction in the context, but I am not sure this is the case due to my little background in law. | 3,825 | Performance Bond Definition: Source: Duhaime's Law Dictionary A contract wherein a third-party, in exchange for a fee, secures another's fulfillment of a contract or performance of a duty. Sanction Definition: Source: Law.com n. 1) a financial penalty imposed by a judge on a party or attorney for violation of a court rule, for receiving a special waiver of a rule, or as a fine for contempt of court. I think the text is fine as it is. Without substitution. It would not make sense to me to substitute sanction with performance bond as I understand your question. My reading of the passage is that the realization of sanctions requires two elements. Not the realization of a performance bond. | 1 |
Terminating contract before book is published | My situation is as follows:
I signed a contract with a book publisher to write a book. The problem is now I wish to terminate the contract early. I have not received any money from the publisher yet. The editing process has just started, they started editing one chapter (out of 10). Normally in this kind of case, will I be required to pay any damages? I am ok with giving up the rights to my work to the publisher. (It is a children's workbook), however if possible I would like to avoid paying any damages. Thanks for help. | 3,814 | Short Answer To successfully exit your contract, you need to do two things. Read the contract to understand your position. Negotiate with your counterparty to achieve an exit. Explanation Step 1. Read the contract. The contract might or might not address this specific situation. Before you approach your counterparty make sure you have a thorough understanding of what the contract stipulates your relative positions are. If the contract doesn't address it, then you need to become familiar with the common law in this situation and whether or not your counterparty will have a claim to be reimbursed for any expenses they might have incurred so far. Step 2. Negotiate with your counterparty. After you understand your legal position, figure out what is a reasonable range of outcomes for both parties. And look at the situation from their point of view. For example, if they spent money based on assurances you made in the contract, you might conclude they are due to be reimbursed that money. Then the question becomes how much more would they be due. If nothing, then fine. You might want to open the negotiations with that offer. Also: Study common industry practice Also, you should become familiar with how these matters are commonly dealt with in the publishing industry. Ask around. Read some articles. Do some GIYF research . Maybe get a publishing attorney's advice. This should all help you understand what a reasonable range of outcomes might be in this situation. Then negotiate. | 2 |
Offering money to potential witnesses in criminal proceedings | A friend of mine was involved in a confrontation with a police officer in the UK, in which the officer basically accused him of assault. While the officer was arresting him, a bystander shouted something like, "Officer, you touched him first!" My friend immediately shouted back, "Come in and testify, there's two hundred pound in it for you." The man spoke with the head at the police station, the charges were dropped, and my friend paid the man £200 as promised. In the US, it would seem that situations often arise in which potential witnesses refuse to take the time to testify (loose use of the term), and those falsely accused suffer. If an American accused of a crime offered money to a verifiable witness, would his or her testimony be admissible in a court? How about in a police station? Would it not be considered bribery? | 3,808 | In many jurisdictions, there is a "witness fee" that one is required to pay, as a token recognition of the value of a person's time. Fact witnesses can often be obligated to appear and testify, for minimal compensation, but not against themselves. In federal cases, Rule 17(b) of the Rules of Criminal Procedure permit the defendant to apply to ask the government to pay the witness fee if they cannot afford it and the presence of the witness is necessary for an adequate defense. The other side of a case (in this example, the prosecutor) could try to impeach the witness's testimony (i.e. make him seem less credible in the eyes of the jury) by demonstrating that the witness is a "professional witness" (i.e. fees from saying things in court are a major part of the witness's regular income). That doesn't seem to apply to the facts you've listed, where the witness just happened to be in that place and time to observe what happened and (assuming for this question) accurately testified as to what he saw. Personally paying the police officer or judge for a favorable result is a different question with a different answer. | 5 |
How many days in advance should a subtenant notify the sublessor that he will leave earlier than expected? | Alice is subletting an apartment to Bob. The contract stipulates that Bob is subletting the apartment till August 15. Can Bob leave earlier, i.e. decide to end the sublet earlier than what the contract stipulate? If so, how many days in advance should Bob notify Alice? Everything is happening in Massachusetts, United States. | 1,236 | First and foremost there are laws in Massachusetts that govern leasing (and subleasing - this is only a sub-category of leasing after all) of real property. I do not know what they say and I am not going to bother finding out; you should. Start here . Typically, real property transactions are one of the most highly regulated areas in any jurisdiction. In general, they will read terms into any contract, prohibit other terms and may specify the form of the contract - it may be that the contract must contain certain clauses or it is unenforceable. Notwithstanding, if the contract is enforceable and if the only terms are the ones you have given (both questionable predicates): Bob can physically leave anytime he wants to - a subtenant is not an inmate of a prison. Bob will have access to the property until 15 August and must pay the rent up until that date. Alice must allow Bob "quiet enjoyment" of the property until that time. Bob can ask Alice to vary the terms of the contract in any way he likes; including reducing (or extending) the term with or without notice periods. If Alice agrees then the contract is varied and the new terms replace the old. Having said that, civil law only matters when there is a dispute ; if Bob and Alice (and Ted and Carol) are (reasonably) happy with their arrangement it does not matter that it may be legally unenforceable. Courts and judges do not wander around town sticking their nose into every arrangement to make sure it is in full compliance with the law (largely because of the risk of bodily harm that would result :)); they only interfere when one of the parties asks them to. | 1 |
Illegally crossing Hungarian border | Recently I read this article with the following quote: But Hungary acted this week to stop the huge flow of people, sealing off its border with Serbia with a razor-wire fence and making it a crime to enter the country illegally . I'm wondering why it was not a crime previously to cross the borders illegally. If this was not a crime, doesn't this made crossing the borders illegally an " empty box "? | 3,798 | In the US it is not a crime to be in the country illegally. As a general rule, it is not a crime for a removable alien to remain in the United States. Arizona v US So it's illegal, you get a state induced consequence (deportation) but it doesn't make you a criminal e.g. you don't go to jail for it. I have no idea if that's what's going on over there but it's a plausible explanation. | 3 |
Illegally crossing Hungarian border | Recently I read this article with the following quote: But Hungary acted this week to stop the huge flow of people, sealing off its border with Serbia with a razor-wire fence and making it a crime to enter the country illegally . I'm wondering why it was not a crime previously to cross the borders illegally. If this was not a crime, doesn't this made crossing the borders illegally an " empty box "? | 3,785 | I would put that down to bad wording of the article. As you mention it would be a crime if you did anything illegally. | 0 |
Writing exam questions on docs.google.com, Legality? | Scenario: someone creates an excel sheet in docs.google.com. Make the document publicly visible. And post some exam questions that he/she had to write at the exam and the answers if possible. And asks other exam takers to add their exam questions they had to face at the exam as well. Suppose the exam is a international exam, such as IELTS etc. Since we are exchanging what we had to write at the exam, can IELTS officials sue us from copyright infringement? Criminal law? Legal background of this? | 3,795 | Most exams are going to have an agreement that prohibits this type of thing. The main penalty is that a violator automatically fails the exam and perhaps is banned from taking it again. The exam owner may also threaten copyright violations (which are civil, not criminal, meaning they will sue for damages). There was a case where this sort of thing was discussed. EDUCATIONAL TESTING SERVICE, et al. v. STANLEY H. KAPLAN, EDUCATIONAL CENTER, LTD. 965 F.Supp. 731 (1997) ...take the test in an organized effort to prove that there was a
large number of reappearing questions that could be memorized and
passed on. When this effort was successful, Kaplan compiled a list of
200 questions from the exam. Without more these actions would not
have constituted a copyright violation because of the fair use
defense. Fair use is defined in 7 U.S. Code § 107 Limitations on exclusive rights: Fair use In determining whether the use made of a work in any particular case
is a fair use the factors to be considered shall include— 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. The fact that a work is unpublished shall not itself bar a finding of
fair use if such finding is made upon consideration of all the above
factors. Is it copyright infringement? It depends on how much of the exam is rebuilt. Mostly likely it won't lead to legal action because there are no damages if it's just a few people working together. You could also ask the question in the Academia stack; they have talked about similar subjects: https://academia.stackexchange.com/questions/28206/are-there-universities-that-consider-it-academic-misconduct-for-students-to-publ | 1 |
Non-disparagement in California | Two somewhat unrelated questions on disparagement, specifically in the context of California: What is the current standing law with regard to non-disparagement clauses in contracts? I recall a recent law prohibiting them in terms of service agreements, but what about employment an other (e.g. severance) contracts? Are they legally enforceable? Does California have an anti-SLAPP law? What is the legal definition of disparagement in the context of a non-disparagement agreement? Is it like libel in that it is limited to untrue claims, or are any negative and business-impacting claims subject to it even if demonstrably true? | 3,793 | California has a law prohibiting non-disparagement clauses in consumer transactions. 1 The rule tells us that any waivers of the rule are void. We also learn that the penalty is $2500 for the first violation and $5000 for each subsequent. The consumer can bring the lawsuit. Non-disparagement agreements are valid in employment and severance agreements. So, yes, they are enforceable as a matter of law. (But note that the NLRB and the EEOC have recently come out against certain broadly worded non-disparagement language.) CA has an anti-SLAPP statute. 2 There is no "legal definition of disparagement in the context of a non-disparagement agreement." If the term is not defined in the contract the court will likely apply the plain meaning rule. Generally speaking, the plain meaning of disparagement is speaking or writing about the subject in a negative light. As such the term "disparagement" will apply to negative speech, regardless of truth. In fact, most non-disparagement clauses will include a word like "criticize." The thing is, false negative comments are already a tort which means that you can get sued for those even without the non-severance agreement. However, a non-disparagement agreement makes it easier for the plaintiff because they do not need to prove damages and they can include liquidated damages in the contract. This might be confusing because disparagement is a tort recognized in CA. 3 A claim of disparagement requires a plaintiff to show a
false or misleading statement that (1) specifically refers to the
plaintiff's product or business and (2) clearly derogates that product
or business. The point is that the disparagement prohibited in employment contracts is not the recently-defined tort of disparagement but rather the plain definition of disparagement. The disparagement prohibited in employment contracts applies to true statements. (The caveat being that the definition is subject to a definition included in the contract.) 1 Cal. Civ. Code 1670.8. (a) (1) A contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer's right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services. 2 CODE OF CIVIL PROCEDURE 425.16. (a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. 3 Hartford Casualty Ins. Co. v. Swift Distribution, Inc. , 326 P. 3d 253 - Cal: Supreme Court 2014 | 1 |
Is it legal to let sister-in-law drive my vehicle in another state and have her on my insurance? | This is about my wife's sister who is a single parent mom and lives in a different state. Not sure if it matters but I live in Massachusetts and she lives in Georgia. Because of her life situation she has not been able to afford car payments and I for this reason have allowed her to use one of the two cars that are in my name. In this case this means I make the monthly payments on these cars and I also pay for the car insurance for both of them. Both of my cars are insured from the same company. On the insurance, she is listed as a driver for the car that she has with her in Georgia, and that car is also listed as garaged in Georgia. Can the car insurance company legally deny insuring the vehicle she is driving in this kind of case? Update: The reason for my question is that the car was in an accident where parts of the body (side front bumper, and side rear panel) got scratched. This happened when the car was parked outside a shopping center (someone tried to squeeze into a parking space next to it), meaning that she was not driving the car, or even inside it, at the time. A police report was made about this incident but it is not yet known if the driver of that other car had insurance, as they had left the scene after bumping into this car (some passerby got the tag# of that other car and gave it to my sister-in-law). When we asked the insurance company about this, we eventually received the reply that the insurance company "is not going to insure the [car] that is garaged in Georgia, they are going to issue legal notice to cancel the insurance since [my sister-in-law's] residence is there." The insurance policy has listed her as the driver on the car garaged in Georgia for 3 years. So if there was an issue with this setup, I would have thought that we had been informed about it. I am not particularly concerned about whether they are willing to cover the damage, as it is not major and the insurance in any case has a $500 deductible. The concern and question I have is about the "legal notice" from the insurance company, because that implies that this setup has been somehow illegal. | 3,788 | The insurer can absolutely deny paying any claims if they discover that you misrepresented something in obtaining your policy, or you failed to notify them of relevant changes in accordance with the policy's terms. In fact, even changing the "garage" location within a state can affect your premium. You should call your insurer and provide them an honest and complete description of the regular use of the car. It is up to their underwriters whether they will continue to provide insurance for that use, and whether they will change your premium accordingly. Update regarding the question update: The insurer could not legally deny a claim for any insured damage prior to notice of cancellation, so long as there was no misrepresentation and you had paid your premiums. As to when an insurer can legally cancel a policy: This is first a contractual question, and their policy should include terms and conditions that address this. (E.g., they might reserve the right in the policy to cancel it for any reason at any time , in which case it's almost certainly legal.) Note that all policy terms must be approved by a state's insurance commission. I happen to remember that Massachusetts has some very unusual terms and restrictions for car insurance, so I wouldn't be surprised if the Massachusetts entity discovered that their policy on the out-of-state car was non-compliant and they had to cancel it. The great thing about the tight regulation of auto insurance is that if a claim on a policy is denied, or if a policy is improperly cancelled, then you can file a complaint with the state regulator, and those tend to get resolved quickly and in the insured's favor. Therefore, you should simply review your policy terms and the cancellation notice. If anything seems out-of-order you can call both the insurer and your state regulator. | 9 |
Was I forced into a mental hospital legally? | If, after an accidental Xanax overdose, a person went to the ER to be safe, is it legal for the hospital to force them into a psychiatric hospital for three days? What if the person told the nurses it was an accident? This scenario occurs in Florida. | 3,780 | Every State in the union has some form of involuntary mental health hold. Regardless of whether or not the patient claims it was an accident, it is incumbent upon the hospital or facility where the individual is held (which is typically at least 72 hours) to do an in-depth analysis of whether the person is a danger to themselves or others. While in this scenario it may've been an inadvertent overdose, the empirical evidence suggests it could have been intentional as the practitioner cannot see into the thoughts and motivations behind the patient's actions. Even taking the patient at face-value, addiction to the extent of overdose is also a mental health issue, which may cause a person to be a danger to themselves. From a clinical perspective, it is much more likely than not that one of the two scenarios occurred, versus a truly mistaken overdose. One would need to mistake their actions numerous times in a day to take so much as to overdose. If you look at it from the inverse perspective, if the facility failed to keep a person who'd just overdosed, or the first responder failed to initiate a hold and the person later died, minimally they would be liable if sued by the family in an action for wrongful death. The unfortunate facts are that if a person was set on committing suicide, it unlikely they would be forthcoming with that fact, for this very reason (the mandatory hold), so a person's word cannot be the determining factor. Even if someone was not intentionally trying to take their life, having taken enough Xanax to cause medical overdose would suggest the potential that even if not suicidal, the individual was at a minimum abusing the medication by taking much more than prescribed (or in a way that is contraindicated - such as with alcohol or other depressants) and potentially suffering from benzodiazepine addiction. Either way, if the hold was not initiated or cut short - and then someone ended up dying from an overdoes - the responsibility and potential liability is the same. A person who is suicidal can reassess what may be a snap decision, or have a chemical imbalance stabilized, or a severe addiction identified in that amount of time. For the person who ctually takes so much medication as to mistakenly cause overdose, this is certainly inconvenient; however, 72 hours is a short time in the grand scheme of things to potentially save a life. The law will nearly always err on the side of safety and prevention. | 4 |
Was I forced into a mental hospital legally? | If, after an accidental Xanax overdose, a person went to the ER to be safe, is it legal for the hospital to force them into a psychiatric hospital for three days? What if the person told the nurses it was an accident? This scenario occurs in Florida. | 3,777 | I don't like citing Wikipedia , but: The Baker Act allows for involuntary examination (what some call emergency or involuntary commitment). It can be initiated by judges, law enforcement officials, physicians, or mental health professionals. There must be evidence that the person: possibly has a mental illness (as defined in the Baker Act). is a harm to self, harm to others, or self neglectful (as defined in the Baker Act). Examinations may last up to 72 hours after a person is deemed medically stable The relevant statute is here . | 3 |
Renewing copyright for an artistic work | Scenario: A British artist dies and the 70 years pma rule comes into effect. However, his daughter sits on the board for the artist's foundation and does not want copyright to expire after 70 years. Can she renew copyright for his works somehow and if so, what are the limitations on this? | 3,779 | The duration of copyright is specified in the Copyright Designs and Patents Act 1988 : 12 (2) Copyright expires at the end of the period of 70 years from the end of the calendar year in which the author dies The only provision for extending the copyright is where is some doubt about authorship. If an unknown author is identified within that 70-year period, then the copyright expires seventy years after the death of the last-surviving author ( ibid. ) In the case of an artistic work which is presumably verified as being the work of the artist and protected as such, it would be very difficult to suddenly "discover" an unknown contributor who would cause the copyright to be extended. | 3 |
Renewing copyright for an artistic work | Scenario: A British artist dies and the 70 years pma rule comes into effect. However, his daughter sits on the board for the artist's foundation and does not want copyright to expire after 70 years. Can she renew copyright for his works somehow and if so, what are the limitations on this? | 3,766 | The copyright for the original work will expire. That foundation is free to create copies of the work that are slightly modified and claim copyright on the modified work. Now I would personally not be happy to buy a modified copy of a great work on art, so I doubt that strategy would be too successful. | 0 |
Display images of trademarked items in blog post product review | A lot of media, both on the web and in many other forms, offers all kind of product reviews to their readers/viewers. Obviously, they use the name of the product, which might be trademarked, to identify what they are talking about. Very often they will show images of the product, which would most likely show a logo that could also be trademarked. Assuming one is the author of the text and the images, so no copyright are infringed, but obviously doesn't own the trademark of the item that is discussed and/or displayed, what are the consequences, if any, to host a blog in Canada that would review products he likes. I know many people already do it, either commercially or as a hobby. Obviously they do not make people believe they are associated with the product in any way. Does this type of activity require any kind of permission from the trademark owner ? | 3,774 | From IP Australia : A trade mark is used to distinguish your goods and services from someone else's and is enforceable under IP law. If you are using the trade mark in a way that doesn't create confusion between your goods and services (product reviews) and the trade mark owner's goods and services (whatever that is) then there is no infringement. Permission is not required. For example, I can write Coke and talk about Coke and review Coke and paint pictures of Coke so long as I do not use Coke to sell beverages. | 1 |
Is it legal to work without pay - Australia? | Inspired by Is it legal to work without pay - Canada? ; I figured I would ask the same question for a different jurisdiction. In what circumstances is it legal to work without pay in Australia? | 3,770 | There are circumstances in Australia where it is legal to work unpaid . Unpaid Trials A work trial is okay when: it involves no more than a demonstration of the person’s skills, where they are directly relevant to a vacant position it's only for as long as needed to demonstrate the skills required for the job. This will be dependent on the nature and complexity of the work, but could range from an hour to one shift the person is under direct supervision for the entire trial. Any period beyond what is reasonably required to demonstrate the skills required for the job must be paid at the appropriate minimum rate of pay. If an employer wants to further assess a candidate's suitability, they could employ the person as a casual employee and/or for a probationary period and pay them accordingly for all hours worked. Student Placements Under the FW Act, a vocational placement is lawfully unpaid if it meets all the following criteria: There must be a placement There must be no entitlement to pay for the work the student undertakes The placement must be done as a requirement of an education or training course The placement must be one that is approved by the training institution When all of the above criteria are satisfied, hosts are not required to pay students entitlements under the FW Act. However, a host can choose to pay the student at their own discretion if they wish. If the placement doesn't meet all of the above criteria, it won’t be a vocational placement under the FW Act. However, this doesn't automatically mean that the person is an employee and entitled to payment. The relationship may be a ... Work Experience & Internships A work experience placement is an unpaid internship only if it meets a number of criteria; if it doesn't it is an employment relationship and the worker is required to be paid. The criteria are: the person must not be doing “productive” work the main benefit of the arrangement should be to the person doing the placement, and it must be clear that the person is receiving a meaningful learning experience, training or skill development. Volunteering Key characteristics of a genuine volunteering arrangement include: the parties did not intend to create a legally binding employment relationship the volunteer is under no obligation to attend the workplace or perform work the volunteer doesn't expect to be paid for their work. The more formalised that volunteer work arrangements become (for instance if the volunteer is expected to work according to a regular roster) the greater the possibility that an employment relationship will be found. It is less likely that an employment relationship will be found to exist where the volunteer work is undertaken for selfless purposes or for furthering a particular belief in the not-for-profit sector. Large not-for-profits (e.g. Red Cross) consist of a mix of paid employees and volunteers; smaller not-for-profits (e.g. a local rugby league club) may consist entirely of volunteers. In this context it is important to note that if there is an expectation of payment (other then reimbursement of expenses) like a stipend for officials then the arrangement is an employment arrangement and all relevant employment law (e.g. minimum wage, workers compensation etc.) kicks in. As an aside a not-for-profit that has even a single employee loses its exemption under Work Health and Safety laws for all their workers; both employees and volunteers. | 3 |
What if someone's testimonial account changes and contradicts itself? | I am curious to know what happens if someone gives testimony in Court 2 times, and there are contradictions or discrepancies between the two statements. As an example, how might the following two statements be reconciled or handled in Court? Statement #1 : I was jogging along a trail when all of a sudden in
became foggy, I was able to see a man who threatened a lady and
punched her. The other 3 people with me couldn't see anything, but
they did hear the lady yell. Once the man ran away, I fainted and
within a few minutes I woke up. Statement #2 : I was jogging along a trail when all of a sudden in
became foggy, I was able to see a man who threatened a lady and
punched her. The other 3 people could see what I saw, but they didn't
hear anything. Once the man ran away, I fainted and after 1 hour I
woke up. Assume this is the only testimony of the event. Would this witness's testimony still hold up in court? | 3,722 | Yes. It will hold up in court. IMHO, there is no difference in the admissible portions of the two testimonies. "Few minutes" vs. "One hour" is immaterial The difference between "a few minutes" and "one hour" IMHO is immaterial given: the witness was unconscious and say, between 45 and 60 minutes would match both descriptions of the time interval. What other people saw and heard is hearsay Testimony about what other people saw and heard (with a few notable exceptions) is hearsay and not allowed into evidence because it is generally unreliable and not subject to cross-examination . So after the rejection of the hearsay portions, there is no difference in the admissible portions of the two versions. Qualification By "hold up in court," I mean it will be allowed as evidence. The weight and veracity of the testimony would be determined by the (judge or) jury after cross-examination . | 5 |
Can U.S. border guards do warrantless searches? | If I am a U.S. citizen entering the United States by car from Canada or Mexico can border guards legally search my car without a warrant? | 3,718 | Yes. At international borders and international airports (because those are the equivalent of a border), US customs officers may do searches of people and belongings without a warrant and without any particular reason to think they'll find contraband. This includes the authority to do some level of disassembly of the car, if they then reassemble it. See United States v. Flores-Montano , 541 U.S. 149 . This is known as the "border search exception." Moreover, police normally don't need warrants to search your car if it was mobile when they found it and if they have probable cause to believe they'll find contraband. This is known as the "automobile exception" or the "motor vehicle exception." It was established in Carroll v. US , 267 U.S. 132 . Individual states may have stricter requirements on police searches, but the Fourth Amendment doesn't require police to get a warrant to search your car if, say, you drove it up to a checkpoint and they have probable cause. The difference at a border is that they don't need probable cause and the car never had to be mobile: they can search you on a hunch. | 4 |
Can U.S. border guards do warrantless searches? | If I am a U.S. citizen entering the United States by car from Canada or Mexico can border guards legally search my car without a warrant? | 3,717 | Border searches [are] not subject to the warrant provisions of the
Fourth Amendment and [are] " reasonable " within the meaning of that
Amendment. United States v. Ramsey, 431 US 606 (1977) The fourth amendment only denounces unreasonable searches. Border searches, then, from before the adoption of the Fourth
Amendment, have been considered to be "reasonable" by the single fact
that the person or item in question had entered into our country from
outside. There has never been any additional requirement that the
reasonableness of a border search depended on the existence of
probable cause. This longstanding recognition that searches at our
borders without probable cause and without a warrant are nonetheless
"reasonable" has a history as old as the Fourth Amendment itself. The Ramsey case is full of good stuff, like this: "But a port of entry is not a traveler's home. His right to be let
alone neither prevents the search of his luggage nor the seizure of
unprotected, but illegal, materials when his possession of them is
discovered during such a search. Customs officials characteristically
inspect luggage and their power to do so is not questioned in this
case; it is an old practice and is intimately associated with
excluding illegal articles from the country." quoting United States v. Thirty-seven Photographs , 402 U. S. 363, 376 (1971) | 3 |
Leaving a rental house, and would like to know if I am losing any privileges upon moving out | I would like to start with saying that nothing has been said on the part of my landlord yet. I am not in any kind of urgency with the issue, I am simply trying to get informed. I've been living in a rental house for the last 5 years. And there has been a few cases of damages that were not repaired, for which the landlord took responsibility. The handrail has broken off, as part of the wall became brittle. The landlord was due to replace it, but 3 years later and several mails / phone-calls and visits later, has not done so. A case of bad piping caused sewage to come out of the downstairs toilets, and flood the whole downstairs during a bad storm. The doors to the downstairs toilet have warped edges at the bottom. Related to (2) the walls became damp, and mold and water marks appeared on the walls. A year will have passed in January since the storm, and some of the street piping has been redone by the city (after some lengthy mail and phone conversations). However the bad piping in the house is still present, and during bad storms we can smell the sewage. I am due to leave the house in December, and the landlord has told me that they will not repair anything as of yet, and are looking for new tenants. Is there some hidden danger for me in relation to the damages and the search for new tenants? I know that you have more rights as an inhabitant of a house, that is legally domiciled there, however I'm unsure if these rights are in any way relevant here. Possible relevant information: We live in Belgium. I plan to seek legal aid if the situation worsens, however I'd first like to know if I am making a mistake upon moving out without some written assurances of some sort. | 3,743 | I'm acually not familiar with the situation in Belgium (I live in Germany), but what kind of trouble do you expect? Your landlord charging you for the damages? Once you move out, you have no interest in how the damages are handled. Your goal is ending the rental in a smooth way without losing energy or money in the process. Sounds like you relationship to your landlord isn't the best one, and there's always a possibility of complications when moving out. You should obviously document the state of the house (take photos of every room, and of details related to the storm), and know you obligations and rights. I have found it useful to be very kind and understanding to private landlords even when there are grave disputes - but this is just me. Even if you didn't cause any damage - The whole situation will be disappointing for your landlord too. | 1 |
Disputing Tenancy Deposit Scheme Adjudication Decisions | After years of complaining about the lack of care the landlord had for the property I was renting from them I finally got served an eviction notice. I moved out, and 2 weeks later because of terms in the tenancy agreement I was still renting the property but there was a water leak from a bathroom pipe. I was issued a demand for £4,500 worth of damage to the property which would partially be covered by the deposit which i refused to pay. I went to my insurance company who told me that they would sort everything out until the landlord claimed that I had deliberately damaged the pipe in the bathroom. At this point the Insurance company offered me only advice but would not handle the case. I raised a dispute with the tenancy deposit scheme in order to recover my deposit giving lots of evidence showing that I had continuously complained about the bathroom the whole of of the time I had been living there, at one point the landlord sent their brother in law to fit a whole new bathroom (poorly I might add) and yet all of this was shot down by the adjudicator with the reason being ... The landlords report states that I damaged the pipe so due to "the balance of probabilities" I was in breach of my tenancy agreement and my full deposit has been awarded to the landlord to cover renovation costs. I am also aware the landlord intends to sue me for the rest of the cost I refused to pay outside of the adjudication process. My understanding (which may be wrong) ... In a civil case the law seems to state that if I am "probably at fault" (in this case, I had a set of keys which appears to be enough to implicate me) then I likely am liable. In a Criminal case it would have to be certain that I did indeed cause the damage and proof to that nature would need to be provided in order for me to be deemed liable. So, my question is ... Given that the landlord claims I "criminally damaged" their property but never provided a single shred of evidence to back this up what can I do to fight this with no help from my insurer? ... or ... Is there some way I can force this in to a criminal court or in the event that this can't be forced that way perhaps force my insurer to step in and help? | 3,746 | Given that the landlord claims I "criminally damaged" their property but never provided a single shred of evidence to back this up what can I do to fight this with no help from my insurer? The only thing you can do is bring a claim in the County Court (assuming you are in England or Wales) against your landlord for recovery of your deposit. Since you agreed to use the deposit scheme's Alternative Dispute Resolution service, and the adjudicator found against you, the landlord will undoubtedly introduce his findings as evidence in his defence. You will have to adduce evidence to the contrary. The standard of proof in a civil case is on the balance of probabilities. Since you are bringing the claim, it will be for you to prove that it's more likely than not that you did not cause the damage yourself. Without seeing the evidence it's impossible to say what your chances of success might be. You should seek legal advice before beginning a claim. Is there some way I can force this in to a criminal court... No, you can't. The only way this could become a criminal matter is if your landlord involves the police. Under the circumstances it seems unlikely that he would do this, and even less likely that the police would consider it anything other than a civil matter. ...or in the event that this can't be forced that way perhaps force my insurer to step in and help? You could raise a formal complaint with your insurer and, if that doesn't give you the result you want, refer the matter to the Financial Ombudsman . You should read their procedures carefully before doing so. | 1 |
Disputing Tenancy Deposit Scheme Adjudication Decisions | After years of complaining about the lack of care the landlord had for the property I was renting from them I finally got served an eviction notice. I moved out, and 2 weeks later because of terms in the tenancy agreement I was still renting the property but there was a water leak from a bathroom pipe. I was issued a demand for £4,500 worth of damage to the property which would partially be covered by the deposit which i refused to pay. I went to my insurance company who told me that they would sort everything out until the landlord claimed that I had deliberately damaged the pipe in the bathroom. At this point the Insurance company offered me only advice but would not handle the case. I raised a dispute with the tenancy deposit scheme in order to recover my deposit giving lots of evidence showing that I had continuously complained about the bathroom the whole of of the time I had been living there, at one point the landlord sent their brother in law to fit a whole new bathroom (poorly I might add) and yet all of this was shot down by the adjudicator with the reason being ... The landlords report states that I damaged the pipe so due to "the balance of probabilities" I was in breach of my tenancy agreement and my full deposit has been awarded to the landlord to cover renovation costs. I am also aware the landlord intends to sue me for the rest of the cost I refused to pay outside of the adjudication process. My understanding (which may be wrong) ... In a civil case the law seems to state that if I am "probably at fault" (in this case, I had a set of keys which appears to be enough to implicate me) then I likely am liable. In a Criminal case it would have to be certain that I did indeed cause the damage and proof to that nature would need to be provided in order for me to be deemed liable. So, my question is ... Given that the landlord claims I "criminally damaged" their property but never provided a single shred of evidence to back this up what can I do to fight this with no help from my insurer? ... or ... Is there some way I can force this in to a criminal court or in the event that this can't be forced that way perhaps force my insurer to step in and help? | 3,733 | This answer is for U.S. law. Avoid the criminal justice system. Don't force your case into criminal court. The only two possible outcomes are (a) conviction (b) acquittal . Conviction can be used against you in civil court. Acquittal can not be used to prove that you are not civilly liable as the standard of proof is higher for the prosecution in a criminal case ( reasonable doubt ) than it is for the plaintiff in a civil case ( preponderance of evidence ). Civilly, you would have no other recourse but to appeal the adjudication or sue them in landlord / tenant court or small claims court. Depending on the rules at play in your situation. Disclaimer : I am not an attorney. I am not your attorney. This site is for educational purposes only. So do not follow my advice. Instead, hire a real attorney to advise you. | 0 |
In the state of Maryland, are there codes governing apartment building garage doors | I haven't been able to find anything on this particular issue. Are there safety regulations governing the type, maintenance, operation, etc. of garage doors in the state of Maryland for condos/apartments? It would seem there probably should be some law governing necessary postings, regular maintenance, etc. to guarantee safe operation of an apartment garage. A reference would be great. | 3,744 | Yes probably. If you are not the owner, why not contact your municipality? http://www.choosecambridge.com/index.php/extensions/dept-public-works/building-safety-services/ | 0 |
Can a dark web site exempt itself from prosecution with an immunity agreement? | Is it possible in the United States for a dark web site operator (or potentially anyone involved in an illegal activity) to create a contract that legally binds a law enforcement organization to grant preemptive immunity against any illegal activities that might occur? For example, upon sign-up the site might present a EULA or similar that says something to the effect of: "By signing in to this site, you, as a representative of any law enforcement agency, acting as a representative of and on behalf of your respective agency, do hereby grant the site operator and any affilates of this site perpetual immunity from civil or criminal prosecution for any and all activities associated with this site, including indemnification against damages for ..." Is there any legal predent anywhere in the United States where a person has been encouraged by a law enforcement organization to commit a crime under protection of immunity, possibly in pursuit of some greater good (justification: it takes a criminal to catch a criminal)? Could such a precent be used as a defense in conjunction with this agreement ("They signed the agreement Your Honor, just like they did with Homer vs. The City of Springfield, 1985")? If it isn't possible, what law(s) prevent it? If it is possible, what would such a contract look like (note, I won't be the one to test this, just curious...)? | 3,741 | Absolutely not. Lack of authority Law enforcement officers do not have the authority to grant immunity from prosecution. The decision to prosecute lies with the district attorney's office. Courts have sometimes held that a promise of immunity by a police officer can make resulting statements inadmissible, but that's it -- the state is not bound by the police officer's promise to not prosecute, except in exceptional cases. They can gather other evidence and prosecute anyway. Prospective immunity The contract claims to provide immunity against prosecution for future crimes. Contracts against public policy are void, and I'm having trouble thinking of something which is more against public policy than a license to commit crimes. No one can offer that immunity through contract. In a recent trial of a Boston mob boss, he attempted to claim that a federal prosecutor had given him immunity for any and all future crimes for some time period; the court did not accept that, because a license to break the law is not a valid contract. Public authority There is a situation in which certain officers can grant authority to break certain laws: to catch bigger criminals. However, for fairly obvious reasons, there are extremely strict rules on when this is valid, both on the government procedure side and the claiming-the-defense side. The defense can only work if the defendant honestly believed the government had authorized his actions, if the government actually had authorized them, or if he followed official government legal advice. In this case, the defendant has no idea if government officials have agreed to the terms; he would have approximately no chance of convincing anyone he legitimately thought that the government approved of his actions. They certainly wouldn't be actually properly authorized, and he hasn't sought advice from the government. Other issues Police aren't the only people on this site. An investigation tends to involve one or more non-government agents who provide testimony in court. No contract with a private party can stop them from testifying in a criminal trial; certain relationships mean testimony isn't allowed (e.g. a lawyer can't testify about dealings with their client without client permission), but regular users could be required to testify against the site operator (possibly on the basis of actual immunity). Sources Public authority stuff: this Justice Department page , plus some discussion in this order . Prospective immunity: that same order . Lack of authority: myriad readings. | 9 |
If an FBI or some law enforcement agent is on the Dark Web posing as a user, does this constitute entrapment? | If an FBI or some law enforcement agent is on the Dark Web posing as a user, does this constitute entrapment? They do not inform you of their status. Sharing personal information is not very frequent there, but if it does come up and they directly do not mention occupation if asked, will you be able to avoid future charges initiated with this contact because they were not honest? | 3,687 | A law enforcement officer not telling you they are a law enforcement officer is not entrapment ; it's just undercover police work. Entrapment involves the law enforcement officer inducing the perpetrator to commit a crime that they otherwise would not. Will you be able to avoid future charges initiated with this contact because they were not honest? Of course not, there is no obligation on a law enforcement officer to be honest if being dishonest is in accordance with their job requirements at the time. For example, it is perfectly legal for a male 45-year-old police officer to pretend to be a 14-year-old female on the web in an attempt to catch pedophiles. If the officer induced the perpetrator to request a meeting for the purposes of sex or to request child abuse material then that would be entrapment; if they simply play the role and respond without crossing that line that is OK. | 19 |
If an FBI or some law enforcement agent is on the Dark Web posing as a user, does this constitute entrapment? | If an FBI or some law enforcement agent is on the Dark Web posing as a user, does this constitute entrapment? They do not inform you of their status. Sharing personal information is not very frequent there, but if it does come up and they directly do not mention occupation if asked, will you be able to avoid future charges initiated with this contact because they were not honest? | 3,704 | Dale M. has a pretty good, black letter law definition: "Entrapment involves the law enforcement officer inducing the perpetrator to commit a crime that they otherwise would not." However, I think that from a practical standpoint I'd actually go even further: A defense on the basis of entrapment is highly unlikely to succeed unless the law enforcement officer puts the idea to commit the crime in your head and then persuades you to do it . Or, to use a couple of (only slightly facetious) hypotheticals: Not Entrapment: Undercover law enforcement officer says to you: "Man, I could really use some cash. You know, we could rob a bank." You: "Huh, well, I think ABC Bank has pretty lousy security guards. We could hit that one, if we wanted to. Yeah, that's a pretty good idea." Undercover: "Hey, that sounds like a plan to me. I'm in if you are." You: "Yeah, I think I am. Let's do it." Possibly Entrapment: Undercover: "Man, we could both use some cash. Why don't we rob a bank or something?" You: "I don't know. That sounds kinda dangerous. Plus, if we get caught we could go to a federal prison for years. I don't think I'd be down with that." Undercover: "Oh, come on. I know this sweet bank, ABC Bank. Terrible security. We'd be in and out in no time. No danger, nobody goes to prison. And you need cash as bad as I do, don't you?" You: "Well, yeah, I guess so." Undercover: "Alright, so don't be chicken. Let's do it." You: "Well..." Undercover: "Oh, come on. Easy money!!" You: "Okay, I guess." Let's put it this way: When I took criminal procedure in law school the modern cases we read all had the same theme: "No, X doesn't constitute entrapment." To my knowledge, it's just a really, really hard defense to win on in modern American law. (Under federal law and in almost all states, as far as I'm aware.) Requisite disclaimer: I am not a criminal lawyer who has direct experience with making entrapment law defenses under the law of whatever jurisdiction you might be worried about potentially being charged under. If you want a definitive, reliable answer you need to talk to somebody who is. (You already figured that out, I'm sure, but just for the record...) Still, maybe this helps. | 12 |
If an FBI or some law enforcement agent is on the Dark Web posing as a user, does this constitute entrapment? | If an FBI or some law enforcement agent is on the Dark Web posing as a user, does this constitute entrapment? They do not inform you of their status. Sharing personal information is not very frequent there, but if it does come up and they directly do not mention occupation if asked, will you be able to avoid future charges initiated with this contact because they were not honest? | 3,688 | Generally not. In the U.S. police can use lies and deception during investigations and interrogation of suspects. There are few limitations on this. Just search for " police can lie ". "Entrapment" is a defense whose viability is very case-specific. Again, plenty of reading to be had on the subject . In general , States employ either an objective or a subjective standard to
determine whether entrapment occurred. Objective standard: Under an objective standard, when defendants offer entrapment evidence jurors
decide whether a police officer's actions would have induced a
normally law-abiding person to commit a crime. Subjective standard: Entrapment defenses are less likely to succeed under a subjective
standard. The reason is that under a subjective standard, when a
defendant offers entrapment evidence, jurors decide whether the
defendant's predisposition to commit the crime makes the defendant
responsible for his or her actions, regardless of any government
agent's inducements. | 9 |
If an FBI or some law enforcement agent is on the Dark Web posing as a user, does this constitute entrapment? | If an FBI or some law enforcement agent is on the Dark Web posing as a user, does this constitute entrapment? They do not inform you of their status. Sharing personal information is not very frequent there, but if it does come up and they directly do not mention occupation if asked, will you be able to avoid future charges initiated with this contact because they were not honest? | 3,737 | It's worth taking a look at the past stings on the DNMs to get an idea of what is considered kosher. I keep a comprehensive list of DNM-related arrests , and there are a number of stings using undercover agents & flipped accounts, primarily relating to poisons and guns: the 'weaponsguy' case, several UK buyers of poison, Brian Korff, 'dark_mart', and some others. If you read the available complaints, you see that there is a consistent pattern of the UC letting the future arrestee initiate contact and initiate the deal - the seller, at least after flipping, is never strongly advertising themselves on the DNM forums and may be quite low key about even selling products. (While initially investigating 'dark_mart' to figure out if he was the FBI honeypot, which eventually I figured out he was, I wasn't even certain if he was selling in the relevant time period, he was so low key about it.) Once the buyer has initiated contact and expressed definite intentions about buying the gun or poison, I've noticed the seller is often quoted as reminding the buyer that the items are illegal or could be used to kill, which I assume is deliberate on the UC's part to help establish mens rea. If the buyer doesn't give up, then the UC will take the money and ship fake goods and usually the buyer will then receive a controlled-delivery. (At which point depending on how elaborate the sting is, the buyer might then be coerced into leaving positive feedback on the seller account, which I believe is part of how the weaponsguy sting racked up something like 18 arrests before I figured out who it was and Agora then shut them down.) | 1 |
Do I have to pay my debt collector if I collect my debt myself? | I setup an account with a debt collection service. The collectors will collect my debt for a percent taken from the owed amount. If I sue my client for unpaid debt and win a summons proceeding, do I have to pay my collector? Nothing to this effect was written in the collector's contract between us. | 3,725 | The answer lies in the contract itself. Double check your contract. Most of the times, these contracts are exclusive . Meaning, you do have to pay them. That, or they outright buy the debt from you and you don't own it anymore. That said, I will take your statement " Nothing to this effect was written in the collector's contract between us. " to mean the question of you collecting your own debt is not referenced at all by the contract. In that case... If it's not in the contact, I don't think you have to pay them. The principle of ei incumbit probatio qui dicit ( proof lies on him who asserts ) seems to apply here. Disclaimer: I'm not an attorney. Consult a real attorney before you do anything based on this answer. | 1 |
Can a landlord dictate where I can park when moving in/out of an apartment? | I recently moved out of a room that I rented in a house in Oakland, California. In my lease it under terms of vacating the premise my landlord added a clause stating: "All moving must be done in rear of driveway or pay $250 (near basement door)" However, my parent's truck was too large to fit in his driveway and back up to place designated, so my parents parked in the street and we packed everything up in the street (taking about 45 minutes). The landlord showed up on the premise during the last ~10-15 minutes of moving and cleaning the room. He told me that I was not supposed to park there, and stated that he told me this the day before. However, I told him (person-to-person) two days prior to moving out, that I was moving out Friday morning and requested the driveway clear, which he obliged; however, he stated nothing about where I could or couldn't park. I also asked him if he would do a walk-through of the room with me, to verify any damages, after I moved and cleaned the room out, which he did not do while I was present and simply stated "I'm sure it's fine" -- he also refused to do a pre-move-out inspection that's in written as a Right in my lease. My question: Is this actually enforceable, since I did park in a public space and not necessarily on his property? I had trouble with this landlord since I moved into the house. I have a brief write up of my concerns posted here on Reddit prior to my move. I did follow through with what was suggested in the thread (take photos, document, save texts, etc.), but I've yet to talk to a lawyer, as I don't think it's quite that time It will be three weeks since I moved out on the August 21st. I'm going to wait a week until the 28th to send him a certified letter requesting my full deposit be returned if it already hasn't, and if I don't hear anything back I'll probably be taking him to small claims court. | 1,894 | Agreement You say: my landlord added a clause stating: "All moving must be done in rear of driveway or pay $250 (near basement door)" Was this addition made at the time you signed the lease or subsequently? This matters because the terms of a contract cannot be changed unilaterally, they must be agreed. If the change happened after the lease was signed then , unless you agreed to it, it has no effect whatsoever. Since that resolution is boring; I will assume that it was always there. Enforcability Is this actually enforceable, since I did park in a public space and not necessarily on his property? Yes, it is enforceable. People can agree in a contract to do (or not do) anything so long as that thing is not illegal - that is what a contract is; a legally enforceable agreement for two people to do certain things. You agreed "All moving must be done in rear of driveway ... (near basement door)" and you didn't do what you agreed to do. Therefore you broke a term of the contract. It doesn't matter that you don't know why he wanted you to do this or if it was reasonable or if it meant that you couldn't use your parent's truck - if these were issues for you they should have been raised before you agreed to do it. If the clause said "When moving out you will wear a blue double breasted suit with a yellow and purple bow tie" then that is what you must do. Consequences There are a number of options open to the wronged party when the other party breaches a term of a contract. The most relevant in these circumstances is to sue for damages. So how much are damages? Well, they are an amount to restore the wronged party to the position they would have been in if you hadn't broken the agreement. In situations where damages can be hard to calculate, contracts can make a provision for liquidated damages ; a pre-agreed amount of what the damage will be: in this case "$250". However: In the United States, Section 2-718(1) of the Uniform Commercial Code provides that, in contracts for the sale of goods: Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty. This largely mirrors the common law rule, which applies to other types of contracts under the law of most US states. On the face of it, it would appear that $250 may be "unreasonably large" given the nature of the breach where it appears that the landlord has actually suffered no damage. | 3 |
Can Apple be found in violation of antitrust laws for Apple Music? | Spotify, Rdio, Pandora and certainly others that I haven't heard of are all competing for a spot on iOS while Apple's Music software is both bundled and cannot be uninstalled. Are there parallels here to Microsoft and Internet Explorer? Is there something I am missing otherwise? | 3,727 | In United States v. Microsoft , Microsoft was accused of abusing its monopoly power by bundling. A prerequisite for this type of Sherman Act Section 2 claim is that the company must have monopoly power to abuse. Market share is one of the primary measures courts use to determine if a company has monopoly powers, and therefore can be punished for abusing them. At the time of the Microsoft case, its market share was over 80% of all PCs and over 95% of Intel PCs. In United States v. Alcoa , 148 F.2d 416, Learned Hand considered three possible market share numbers. He wrote that market share of more than 90% "is enough to constitute a monopoly; it is doubtful whether sixty or sixty-four percent would be enough; and certainly thirty-three per cent is not." Worldwide, iOS has about 15% of the smartphone OS market. In the US, it's about 40%. According to Judge Hand, that's well below "doubtful" and awfully close to "certainly not" a monopoly. No monopoly equals no monopoly power equals no Sherman Act Section 2 violation. | 4 |
Can Apple be found in violation of antitrust laws for Apple Music? | Spotify, Rdio, Pandora and certainly others that I haven't heard of are all competing for a spot on iOS while Apple's Music software is both bundled and cannot be uninstalled. Are there parallels here to Microsoft and Internet Explorer? Is there something I am missing otherwise? | 3,730 | These competitors typically give away their applications for free, and sell paid memberships either through App Store purchases, or through their websites. The terms and conditions these competitors receive are the exact same ones that any other distributor of applications through the App Store gets. These competitors can instead sell paid memberships exclusively through their website, let Apple pay for the cost of distributing their free applications, and pay not a penny to Apple. If they chose not to do so, that's their problem. | 1 |
Is crypto legal in a weapon-free zone? | To expand on Is the right to keep and bear crypto protected by the Second Amendment? , since in the U. S. of A. crypto is considered munition ( Bernstein v. United States http://export.cr.yp.to/ ), is it legal to use crypto in an area marked by a parking-like sign that reads " THIS IS A WEAPON FREE ZONE "? For example, there's some sitting rest area at Austin Seminary in Austin, TX, that has such a sign, should you enter it from the sidewalk on 27th St. Would the legality of the prohibition in regards to crypto depend on the location of the sign, or on property type? E.g., would it the term "weapon" include crypto only if the sign is erected by the federal government? | 3,724 | The definition of munitions includes weapons but is not restricted solely to weapons. From dictionary.com: noun Usually, munitions. materials used in war, especially weapons and ammunition. material or equipment for carrying on any undertaking.
verb (used with object) to provide with munitions. Just because cryptographic technology is listed as a munition doesn't mean it's a weapon. Further, the list of restricted munitions is related to the definition created within the International Traffic in Arms Regulations (ITAR). Part 21 of ITAR , the part that lists and defines munitions for purposes of the regulations, lists "cryptographic devices" under Category XIII - Materials and Miscellaneous Articles. Further, Texas defines weapons, for purposes of a "Weapons Free School Zone", in Texas Penal Code, Title 10, Chapter 46 . A "Weapons Free School Zone", by itself, doesn't prohibit weapons. It increases the penalty for committing an offense described in the above chapter. Note: it may still be illegal to take a weapon into a "Weapons Free School Zone" depending on other statutes - both federal and local. However, the definition of the "Weapons Free School Zone" does not, by itself, prohibit the weapon.) Summary: The definition of cryptographic equipment being a munition is one created as part of ITAR. A munition does not always mean weapon The definition of weapons for Texas "Weapons Free School Zones" is provided by Texas law, not federal law or regulation (ITAR) The application of the ITAR definition of munitions does not apply to the Texas "Weapons Free School Zones" law | 3 |
What are the laws on showing another company's logo in commercial photos? | On a webpage we would like to have a background image demonstrating our product on different devices. The current images we have contain an Intel logo and an iPad (logo not visible but clearly an iPad). Is it OK to use these images without permission? | 3,695 | Generally speaking, you must be Licensed, or enter a written agreement, in order to use any logos from any company, especially any time the reference is referenced commercially. There are exceptions to the rule, and some are more lenient than others, but you should always check before showing any company's trademarks or brand icons. For example, Intel® allows third parties to refer to them by name, but displaying a logo requires a license or written permission, per their Trademarks and Brands guideline. You'll find that most companies are probably willing to overlook violations of Licensing as long as the product is placed in a favorable light, since's that's basically free advertising, but you'll want to take the extra few moments and simply call them and ask. A ten minute call could save you tons in legal fees and/or fines. From what I've seen, most companies will allow use of their company name for most commercial and non-commercial uses, but reserve some logos only for licensed partners, and others still only for themselves. They will also generally specify appearance guidelines, such as rendering ® and ™ only the first time on each page of printed material, as well as a specific guideline for sentences and phrases that the name may or may not appear in. They also usually specify that such phrases may not imply that the company is a partner or representative of the company, etc. You can see Intel's Trademark Symbols and Acknowledgements page for an example of what you'd expect to be required to do. This page also gives some example sentences of acceptable and unacceptable phrases. For example: Correct Usage Look for PCs with Intel® Core™ processors. Incorrect Usage Look for PCs with Intel® Core. Mostly, they're concerned about making sure ™ is used correctly, as well as specifying that they make processors, not entire systems. You'll want to try and stay on the good side of their legal department, and represent fairly. | 3 |
What are the laws on showing another company's logo in commercial photos? | On a webpage we would like to have a background image demonstrating our product on different devices. The current images we have contain an Intel logo and an iPad (logo not visible but clearly an iPad). Is it OK to use these images without permission? | 3,710 | The Trade Marks Act 1994 provides Rights conferred by registered trade mark. (1) The proprietor of a registered trade mark has exclusive rights in the trade mark which are infringed by use of the trade mark in the United Kingdom without his consent. The acts amounting to infringement, if done without the consent of the proprietor, are specified in section 10 . Section 10 provides (5) A person who applies a registered trade mark to material intended to be used for labelling or packaging goods, as a business paper, or for advertising goods or services, shall be treated as a party to any use of the material which infringes the registered trade mark if when he applied the mark he knew or had reason to believe that the application of the mark was not duly authorised by the proprietor or a licensee. It could be argued that you have applied the registered mark in your photograph which is intended to advertise goods or services. And you know or have reason to believe that the "application" of the mark was not duly authorised by the proprietor or a licensee, because you have not sought that authorisation. A trademark such as Intel's "Intel Inside" text swoosh will almost certainly be registered ("Intel Inside" is); even the company name may be (Intel's is). You will need to ascertain whether the shape and appearance of a particular product is a registered trademark. It may be. The protections the Act provides to the trade mark holder are to counter misrepresentation, either by counterfeiting or otherwise; and to counter derogatory use of their mark. They wouldn't want their mark to appear on goods which weren't theirs, nor in circumstances which show their product in a bad light. If your use of the mark is neutral, or even beneficial, to its proprietor, get your use authorised. There will be a few hoops to jump through, I expect, which may be as easy as a small caption. This saves you from arguing about what an "application" is, and could improve relations between you and the mark's proprietor. Perhaps they will offer you a better machine to photograph! In every case, it's better to ask; as Phyrfox has said in his answer , it's free advertising for the proprietor of the mark and not much effort for you. There may be a licensing cost, but for the incidental appearance in a photograph [which is explicitly legislated not to infringe copyright ], it's not likely to be enormous. If it is enormous, then it's highly likely that the proprietor jealously guards all appearances of the mark and would pursue you if you had used it without asking. | 1 |
When should my "Date of Formation" be for my LLC Company? | Please let me know if this should be posted somewhere else! Sorry if it isn't in the correct location! Background I am starting up a Web Development & Marketing Company in Ohio. I am not finished finalizing all of the small details, but plan to start taking client at the beginning of 2016. When filing for my LLC, what should I write down for my "Date of Formation"? I can only set it at a maximum of 90 days after filing. If I choose January 1st, 2016 is that going to work? "Date of Formation" Idea? September 16th, 2015? December 15st, 2015? (To ensure the effective date is within 90 days.) December 31st, 2015? January 1st, 2016? Forms Limited Liability Company Certificate of
Amendment . Articles of Organization for a Domestic
Limited Liability Company Thanks in advanced! | 3,711 | There's no requirement that you see clients immediately, but why not wait a few weeks to file so January 1st is within the 90-day period? | 1 |
Can you plead the fifth to avoid revealing the identity of someone you were accused of being? | This is a question for the sake of a story, I'm not seeking legal advice to use in court, just fact checking general laws. Any elaboration on interesting facets that may be useful for story writing is always welcomed as well :). Let's say that there is an individual whose actual identity is not known: he goes by the alias Kal-el. Another individual, Clark Kent (yeah, I decided to get geeky with my names), has been accused of being this person in the past, and has told everyone that he is not this person, but he does know this person, and his real identity, but won't reveal that identity. Later Kal-el is somehow related to a crime (accused of doing it, or a witness, whatever), and the police need to know who he is as part of their investigation, thus they talk to Clark. Let's say that Kal-el is a different person, but Clark does not want to admit this. Could Clark ever be put in a position where he is forced to admit Kal-el's actual identity? I assume he usually wouldn't, but if he is aware of Kal-el's involvement in a crime at some point he becomes an accessory by not revealing it? If there is a point at which Clark would usually be compelled by the court to give Kal-el's actual identity could Clark refuse to do it on the grounds that he has been accused of being Kal-el? Arguing that if he is Kal-el he would be bearing witness against himself to admit it and is thus protected by the fifth amendment. He has previously claimed he isn't in an unofficial capacity, but he is not going to make that claim legally, instead refusing to admit rather he is Kal-el or if Kal-el is someone who he knows. If you only allow him to plead the fifth if he is Kal-el then the act of pleading the fifth still bears witness by implicitly stating he must actually be Kal-el, thus the only way to protect him from having to reveal the truth is by allowing him to plead the fifth even if he isn't actually Kal-el without this being considered lying to the court. Obviously you therefore can't force him to reveal the actual identity of Kal-el without implicitly forcing him to bear witness against himself as to whether or not he is this individual. Does this argument work? | 3,703 | No. The Fifth Amendment provides limited protection that gives you some ability to not answer police questions about where you were at a specific point in time, if you can identity a piece of evidence, etc. It also allows you to avoid testifying in court if the testimony would also incriminate you. Clark Kent, if he were a reporter, could try and claim First Amendment protection to protect Kal'el's identity, but simply being accused of being somebody isn't a crime, and therefore wouldn't be subject to Fifth Amendment protections. Even under the First Amendment, a court could subpoena Clark Kent and force him to reveal the identity of Kal'el; failure to do so results in a contempt in court charge, including possible jail time, fines, or both. However, they couldn't generally make Clark Kent answer any questions about Kal'el's activities if they could possibly lead to a conviction of Clark Kent. For example, he could refuse to testify in court, or choose not to answer questions about where he was on the night of the 25th, if they could cause him to be self-incriminated. | 2 |
Is it legal to post a photograph that I captured of a stranger in the street? | I captured a photograph in the street. The photograph includes people who I don't know. There is nothing in the photograph that I believe can offend anybody (e.g. no nude or illegal act). I just like this photograph. Is it legal to publish the photograph for commercial use without permissions from the subjects appear in the photograph? The photo was taken in Australia.
I want to publish it as a demo-photo as part of a photo-editing App (distributed internationally). Edit: Please note that the question marked as possible duplicate does not relate specifically about someone captured in Australia, and does not specific to my commercial usage context. | 3,620 | OK, the prohibition on commercial use stems from either: The tort of passing off ; this is a private civil matter between the model and the publisher, or Breach of s18 of the Australian Consumer Law which involve misleading or deceptive conduct; this is a public civil matter with strict liability (i.e. intention or negligence is irrelevant) between the ACCC and the publisher with fines of up to $1,100,000 for a body corporate and $220,000 for an individual. In both cases the cause of action arises from the possible presumption by a person who views the photograph that the model in it is endorsing the goods or services that you are selling. The standard is: Would a reasonable person, viewing the photograph in context, come to the conclusion that the model is endorsing the goods or services (either because they really like it or they were paid to show they really liked it). Context is everything here. Some examples: If you a photo studio selling the actual photograph then there is no endorsement. If you are using the photograph to promote the studio there is. If you are showing a crowd scene (e.g. at a football match) there is no endorsement. If you are showing a building and the people are incidental there is no endorsement. If you are showing individuals or small groups in a way that promotes your goods or services there is endorsement. So, look at the photograph and the purpose you are using it for: could a reasonable person draw the conclusion that the people in it are endorsing your application? | 3 |
Right to privacy at place of work | In the United States, is one's workplace generally considered to be a place where an employee can assume a relative level of privacy from hidden surveillance? For example, suppose that I had a private office at work. Can I legally assume a reasonable level of privacy in my "private" office. Or can my employer record, without my knowledge, conversations I have with my wife on my personal cell phone during my lunch break? Can my employer just have a live mic hooked up in my office 24-7 to see if I say anything they do not like? Legal disclaimer: This is a hypothetical question and I am not under the suspicion of my employer recording my conversations with my wife. I am not seeking personal legal advice for me or my agents. | 1,709 | You are right that this is probably a private space; you are wrong in thinking it is your private space; it isn't. The space belongs to your employer and they can do whatever they want with their space unless there is a law that says they can't. As to what type of "hidden surveillance" is allowed that depends on your particular circumstances including what state and federal laws apply and the employment contract you are covered by. As a starting point, if this was happening in Australia then: If you gave permission, all would be legal If you did not give permission: it would be illegal to record anything taking place across a public telecommunications system (i.e. phone tapping) it would be legal for anyone to make an audio recording (not phone tapping) of any conversation to which they were a party it would be legal to make a video recording without sound. | 3 |
Right to privacy at place of work | In the United States, is one's workplace generally considered to be a place where an employee can assume a relative level of privacy from hidden surveillance? For example, suppose that I had a private office at work. Can I legally assume a reasonable level of privacy in my "private" office. Or can my employer record, without my knowledge, conversations I have with my wife on my personal cell phone during my lunch break? Can my employer just have a live mic hooked up in my office 24-7 to see if I say anything they do not like? Legal disclaimer: This is a hypothetical question and I am not under the suspicion of my employer recording my conversations with my wife. I am not seeking personal legal advice for me or my agents. | 3,700 | In general, video recording is always allowed everywhere, unless one has a reasonable expectation of privacy. (I don't see how a place of employment would be much different in this regard.) For example, if you're having a lunch break in a break room, and anyone else could come in at any time, it would not be reasonable to have an expectation of privacy even when noone else is around (say, you popped in during a holiday). To avoid any possible confusion, many employers in the US may explicitly put signs like "area subject to surveillance". On the other hand, if you have a private office with a locking door and completely dark blinds or no windows, it would appear quite fitting to be able to use it to e.g. change after a gym, without video monitoring taking place in such private moments; it would appear to be improper for an employer to covertly record such areas without a clear and visible signs of such policy. Audio is different and varies between state lines; very often the recording could only be made by persons that are a party to the conversation, unless everyone's permission to the recording has been obtained. | 1 |
IP Rights in Recordings | Suppose a private party were to pay for the production of a theatrical play in England, and one of these performances was filmed, with the intention that the filming would be later edited into a DVD. There are therefore several interested parties: The party that paid for everything The person who filmed and edited the performance (the same person in this example) The actors The venue To which of these parties (or any others) do rights belong in the recording and DVD? Do these rights differ if the DVD is (a) publicily sold for profit, (b) privately sold for profit (e.g. just to those associated with the production), (c) privately distributed for free? | 3,690 | It would literally take nearly a treatise to answer this question and it would still be more theoretical rather than practical, as the answer to this question will inevitably be one largely born of a variety of licenses and contractual agreements and will differ with each production. What follows is only an overview of the typical course of how these converging rights get addressed and parsed out. In a stage play or a film, the producer(s) are the ones who fund or raise all the money without which the production would never come to fruition. They are the ones responsible for the underpinnings of all the manner of IP that goes into a production. As you (likely) know, the production will begin with a writing (the script), to which copyright originates with the author (unless the work is commissioned from the beginning). However, it is not always that a producer's vision begins with a pre-ordained screen or stageplay. It may begin with a book, or an article, or a short story, etcetera, that may then be transitioned into a piece that can be performed. This transition may or may not be created by the originating author; in the case of not, the built upon work would result in its own, new copyright. So, while the producer may not be the author, or even responsible for the vision behind of the original idea for the screenplay, without their imagination, planning, and money - a film or stage project is unlikely to ever be....well....produced. Throughout the entire process, it is typical that the producer (actually, the producers' lawyers) will negotiate multiple agreements that define how the IP rights will be dispersed from inception to a project's completion. A production includes creative material that would, if created independent of the whole, give rise to numerous copyrights vested in a variety of individuals. This would be very messy to say the least, and would be untenable when the goal is one cohesive work when the final version is complete. Practically speaking, if everyone retained an individual copyright in their creative contribution, it would be analogous to each thread claiming responsibility if not ownership for the shape of the garment. When a production agreement is drafted, it will typically result in the final rights vesting in one entity (although not always); this, usually being the producer/production company, and from that agreement varying rights of remuneration will flow to the various contributing entities. While the producer/production company will typically own all the combined copyrights to a given production as a whole when the production is finalized, there will likely be licenses or limited copyrights retained for the explicit use of the parts in separate endeavors (eg. soundtracks or the right to perform a score one composed). Since the input of the various creative contributors will be used in the production of the whole, each contributor is remunerated in a variety of ways. This can be anything from the commissioning of a work whereby a lump payment creates the ownership of the copyright, to payments for the work as it occurs, to royalties for each time a work is viewed or sold in reproduced form, to partial ownership rights in the completed work (much more rare) or any combination of these things. These agreements are foundational to any production, as without them, courts throughout the world have recognized, and alike failed to recognize, various copyrights in all manner of contribution. They (the agreements) arise out of the combined tenets of copyright and contract law, and are typically known as or referred to as chain of title documentation. This conglomeration of titles, licenses, contracts, copyrights, trademarks and so-on, are how this equation is resolved. It is different with each production, although there are formulaic ways of compiling these chains of titles (See: From Script to Screen; What Role for Intellectual Property at http://www.wipo.int/ip-outreach/en/ipday/2014/ip_and_film.html as well as http://www.wipo.int/edocs/pubdocs/en/copyright/950/wipo_pub_950.pdf Securing Rights for a comprehensive discussion of the varying types of agreements producers need to negotiate.) Just think, each production, at minimum, has: a script, a variety of actors (who may have copyrights in their performances, separate from the scripted words), directors whose vision lends to the flow of the work, cinematography, costume designer and creators, make-up artists (if unique enough, their designs can hold copyright-for example a certain henna tattoo design), stage/set designers and creators, musical scores that were composed and performed (rights flow to each), and myriad other creations that go into a production. These chain of title compilations are some of the most lengthy and complex commercial transactions arising under IP law, with so many moving parts to draft, negotiate, revise, renegotiate and finalize. This legal process alone can often take up the bulk of preproduction planning and expense. | 1 |
IP Rights in Recordings | Suppose a private party were to pay for the production of a theatrical play in England, and one of these performances was filmed, with the intention that the filming would be later edited into a DVD. There are therefore several interested parties: The party that paid for everything The person who filmed and edited the performance (the same person in this example) The actors The venue To which of these parties (or any others) do rights belong in the recording and DVD? Do these rights differ if the DVD is (a) publicily sold for profit, (b) privately sold for profit (e.g. just to those associated with the production), (c) privately distributed for free? | 3,689 | I will assume the only intellectual property rights you are talking about are copyright; other could apply (especially trade marks). Easy part first: the rights are unaffected with how the recording is dealt with. Here is a list of the raw copyright involved: The playwright holds copyright in the script The set designer holds copyright in the artistic content of their set The costume designer holds copyright in the costume designs The actors, producers, director etc. hold copyright in their performances which is a derivative work of the script, the sets and the costumes The filmmaker holds copyright in the recording as a derivative work of etc. etc. The venue has no copyright The financier has no copyright Now, this is the way it would be unless there were agreements between the parties to transfer their rights (i.e. a contract or other agreement). | 0 |
Is there a legal duty to inform a caller claiming official business that they have the wrong number? | I recently changed my phone number. Today, I received a number of phone calls from an unknown entity claiming they had to make contact with the individual who last had the number, pertaining to legal documents or some other official purpose. Some of the message is unclear, but I originally assumed the caller was an attorney, because the voicemail included the name, last four digits of the SSN, case number, two last known addresses, and a number at which the call could be returned. Since that time, I've come to believe it is a phishing scam due to the repetitive nature of the calls as well as a family member telling me they received a similar, yet unrelated call, not too long ago. In the event the call is legitimate, do I have a legal duty to inform the caller that they have the wrong number? | 3,675 | You have no legal duty to inform callers they have the wrong number. Official business is not carried out by telephone, despite the fact that some collection agencies commonly use the tactic that there is service of process forthcoming, or some other legal jargon, to entice a callback. From a non-legal perspective, you may want to call and tell them to take you off their call list and that they have the wrong number; otherwise, they are likely to continue to bother you day and night. It appears to be either a scam or a collections attempt. | 14 |
Is there a legal duty to inform a caller claiming official business that they have the wrong number? | I recently changed my phone number. Today, I received a number of phone calls from an unknown entity claiming they had to make contact with the individual who last had the number, pertaining to legal documents or some other official purpose. Some of the message is unclear, but I originally assumed the caller was an attorney, because the voicemail included the name, last four digits of the SSN, case number, two last known addresses, and a number at which the call could be returned. Since that time, I've come to believe it is a phishing scam due to the repetitive nature of the calls as well as a family member telling me they received a similar, yet unrelated call, not too long ago. In the event the call is legitimate, do I have a legal duty to inform the caller that they have the wrong number? | 3,674 | No; it's a scam. All legal notices have to be served by mail or in person. Which is perhaps partly why it's illegal to throw away mail for someone else . If you are so inclined you should report them to the FCC . If you answer the call you can tell them, "Put me on your Do Not Call list." (Or you can try to get more details on who they are to report them to their state's Attorney General.) Or phone the callback number yourself and find out how much personal information they are trying to collect and under what pretext (and let us know!). | 9 |
Is my client free from obligation to pay an unpaid invoice under contract? | I created a contract between myself and a client. The contract states that I will provide service A to the client. I provided service A. A third party is blocking the use of the end product of service A to be used for my client. My client no longer returns my emails or texts and has failed to respond to my invoices (sent certified mail and with return receipt). | 3,681 | This depends on the representations that were made at the time of forming the contract, the prior knowledge of possible interference, and the nature of the interference by the third party. If the interference, or likely interference was known: To you, the vendor, and you made representations that your service would work despite this, or you did not disclose this, then you may have sold a product that was not fit for purpose and the client may be entitled to statutory relief, or may not be required to fulfil their contractual obligations To you and the client, and you notified them that this may prevent use of your service, and despite your advice they decided to enter into the contract, then the client is unlikely to be entitled to relief and must fulfil their contractual obligations To only the client, then they are unlikely to be entitled to relief and must fulfil their contractual obligations If the interference is of a nature such that the third party was aware of your contractual relationship, caused such an interference resulting in a breach of contract, and was not entitled to create such a breach, then the third party may have committed the tort of economic interference (generally known as tortious interference ) and either you or your client may be entitled to seek damages, if any. | 3 |
Is my client free from obligation to pay an unpaid invoice under contract? | I created a contract between myself and a client. The contract states that I will provide service A to the client. I provided service A. A third party is blocking the use of the end product of service A to be used for my client. My client no longer returns my emails or texts and has failed to respond to my invoices (sent certified mail and with return receipt). | 3,683 | Prima facie, you have fulfilled their side of the obligation, they must fulfil theirs and pay the bill. @jimsug has given the reasons why they may not have this obligation, however, those are all subject to proof. Take out a summons, state why they owe you the money and serve them. If they do have a defence or counter-claim then this forces them to put it on the table. More likely, they don't and will pay the bill. | 2 |
Scraping factual data off the web and re-organize to release under proprietary license? | Lots of bits and pieces of information and chaotic data spread across the web and it does cost an arm and a leg to gather them together to form something larger and consistent that would prove to be much more useful. Is it legally viable to scrape these factual data / information from different websites, compile and re-organize them as databases / data sets that will then be licensed under a proprietary license ? Thus far after some research, I find factual data can't be copyrighted , but the particular compilation / structure of data can. Does this mean I can do whatever with the scraped factual data as long as I have my own unique data organization / compilation / structure ? For example, I want to make a business information database off hundreds of different websites and then radically re-organize / re-structure / re-index these different data sets into one database that is better than any of the sources. Can I proprietorially license this particular database I made? I know I can never own the data as they are straight facts. Right? But can I OWN the particular data organization and legally profit from it? We are operating in US, but the data could be from websites on other continents. | 3,547 | From your question(s), as well as your various comments, I understand you to have two general inquiries: 1. Is there any infringement of copyright laws if you use things like the titles of books, games, apps, names, address (and any other number of things) which you will then put into datasets that will be licensed for proprietary commercial purposes? You may freely put titles, names of people, places or things into datasets without fear that you are infringing on copyright or any other laws. That is clear. Copyright law does not protect names, titles, short phrases or expressions. Even if a name, title, or short phrase is novel or distinctive it cannot be protected by copyright. So, there is no point in discussing the doctrine of fair use in this context, because Fair Use is a defense, or a legal safe harbor that is merely an exception to copyright infringement allowing people to use a copyrighted works under specific circumstances. As I understand your intended endeavor, you will not be infringing on any copyrights to the extent that you are merely using factual data, like names of copyrighted things for the purpose of creating a dataset or an application to help access it. This is why I say you need not concern yourself with the test for Fair Use with regard to this issue. The Copyright Office states clearly, despite what people may think, that there are no exclusive rights in brief combinations of words such as: • Names of products or services
• Names of businesses, organizations, or groups (including the names of performing groups)
• Pseudonyms of individuals (including pen or stage names)
• Titles of works
• Catchwords, catchphrases, mottoes, slogans, or short advertising expressions
• Listings of ingredients, as in recipes, labels, or formulas. When a recipe or formula is accompanied by an explanation or directions, the text directions may be copyrightable, but the recipe or formula itself remains uncopyrightable. Hence, these things are not registrable under a copyright. While something may be potentially attached to or included in copyrighted material, is not in and of itself subject to the protections of these laws. If it (whatever it is) cannot be registered for a copyright, it is not copyrightable. Because copyright registration/notices have been optional since 1989, when the U.S. attached itself to the Berne Convention, whereby copyright protection is automatic as soon as a work is “fixed in a tangible medium of expression” (written down, recorded, painted, etc.) it’s protected. No notice is required. Registration only becomes required for litigation or enforcement purposes. But this is really extraneous to your inquiry anyway, as far as it applies to the actual data. When you get into copying whole databases for your purpose, that analysis is different. 2. You want to "scrub" the internet for information that you intend to put into your proprietary datasets and use for commercial purposes, some or most of which is already in a database or some organized form, and you want to know if there is some sort of copyright or duty owned to the person who originally databased the materials? Since ideas, procedures, principles, discoveries, and devices are all specifically excluded from copyright protection, if you want to compile this type of information from the internet for the purpose of creating datasets, or searchable databases, this is permissible. That said, there are protections for existing databases under copyright law, provided under the concept of a "compilation copyright". A compilation copyright protects the collection and creative assembling of data or other materials . Compilation copyrights protect the collection and assembling of data or other materials, such that databases are generally protected by copyright law as compilations. Under the Copyright Act, a compilation is defined as a "collection and assembling of preexisting materials or of data that are selected in such a way that the resulting work as a whole constitutes an original work of authorship." 17. U.S.C. § 101. The preexisting materials or data may be protected by copyright since the selections of materials and the form they take in an existing database may be original enough to be subject to a copyright. However, the data itself is merely information and is not protectable. The Copyright Act specifically states that the copyright in a compilation extends only to the compilation itself, and not to the underlying materials or data. 17 U.S.C. § 103(b). As a result, "compilation copyrights" can't be used to place protection upon those things that are otherwise not protectable. In the case of Feist Publications, Inc. v. Rural Telephone Service Company, Inc. , the U.S. Supreme Court ruled that a compilation work such as a database must contain a minimum level of creativity in order to be protectable under the Copyright Act. Feist makes clear that even a copyright protected database does not hold the right to prevent an individual from extracting factual data from the database (so long as you're not copying the entire database as a whole). If you take an already compiled and copyrighted dataset in its entirety, you must obtain a license for its use. However, if you are merely amassing great amounts of data to then put into your own dataset, that you are free to do. The big issue will be (and you seem to realize this) where you will amass this data from. Some websites have specific licenses in place that say you cannot use or rework their content. However, many times these websites simply throw these license requirements out there for users to see, despite the fact that they may not be (and some would argue) are not enforceable. The courts have heard arguments that "contracts" (the end-user licenses) that protect databases and information on websites is beyond the protection available through copyright law should be "preempted" by the Copyright Act itself. The preemption argument goes like this: Federal law controlling something that is subject to interstate commerce or use, should be controlled by the federal laws. So,since the federal government has enacted the Copyright Act to govern any protections to any original works, states should be (arguably are) prohibited from having contradictory laws. Because of the ability of a federal statute to preempt state law, and the fact that the Copyright Act at 17 U.S.C. § 301 sets forth specific preemptions, no state may create rights that are equivalent to any of the exclusive rights provided under the Act. It is this concept of preemption that prevents copyright protection from varying depending upon the state where a work of authorship is created. Arguably, the same is true for the internet, and supposed contractual relationship created through licenses that dictates how non-copyrightable material may be used. In the case of ProCD, Incorporated v. Matthew Zeidenberg and Silken Mountain Web Services, Inc . the court examined whether an end-user of a CD ROM phone database was subject to the license, when they extracted a large portion of the database and made it available over the Internet. The database was almost the same as the type of data in the Feist case-The lower court rejected all copyright claims and found that the shrinkwrap license that controlled the end user's right to use the data was both unenforceable (as a shrink wrap license) and preempted by the Copyright Act. As a result, there was no relief available to the creator of the phone database and the end-user was free to extract the data and use it as he saw fit. However, on appeal this decision was reversed (7th circuit). The appellate court did acknowledge that the database (on the CD) was not original enough to be protected by copyright (finding no copyright infringement by the end-user); However, they did find the end-user was breach of contract, since the shrink-wrap license prohibited the end-user's conduct. What this tells us is that these licenses (on websites) may or may not be enforceable. While the 7th Circuit found a contract right pursuant to the license, despite the preemption argument, another appellate court that is more liberal may find otherwise. Also, this was a disk, not the internet, which is the "wild west" of information, largely unregulated and unlitigated as it pertains to the legality and enforceability of (some) regulations that do exist. License agreements for site use on the internet are everywhere. If you take a database from some site that has a license saying you cannot take their work and add to it, or whatever, and you do add it to other databases that are not licensed and then make your own dataset - chances are you are NOT going to be infringing on anyone's copyright. That said, you may be in breach of contract (the license) if they find out about it, and sue you (using it doesn't put you in breach; only getting sued and having a court determine you're in breach puts you in breach. It may be a distinction worth contemplation, but that is up to you). The safest , bet would be to get a license from them to rework the materials. If the material is generic enough, and will be changed enough, that you are creating your own new (copyrightable) work - I'm not sure how they would know you "scrubbed the data in contravention of their license agreement ( I have NO CLUE if there is coding or metadata attached to it such that it's identifiable in that way. I have not tech background and do not endorse taking what's not yours). But if they can and do know, they could cause problems for you. Lastly, I will just say that the internet is littered with sites that claim copyrights, or impose unenforceable licenses on material that is ripe for public use. Just because it says it's theirs does not make it so. The inverse is also true. Just because a site does not claim copyright to something, does not mean it is in the public domain. I would recommend either sticking to public domain/use sites for your scrubbing endeavors, or seeking permissions from the sites who impose licensing requirements. Short of that, I would recommend (as I already have) seeking an formal legal opinion to say that you are not imposing on anyone's copyrights (this could only be done once you showed an attorney every place you took material from, as well as what the material is), and that the licenses from sites with generalized information that may try to limit use, are unenforceable. I would do this before you invest a lot of time or money into something that is largely based on the accumulation of other peoples work product. I wish there was an answer certain, but there just isn't without seeing everything in the end. | 11 |
Scraping factual data off the web and re-organize to release under proprietary license? | Lots of bits and pieces of information and chaotic data spread across the web and it does cost an arm and a leg to gather them together to form something larger and consistent that would prove to be much more useful. Is it legally viable to scrape these factual data / information from different websites, compile and re-organize them as databases / data sets that will then be licensed under a proprietary license ? Thus far after some research, I find factual data can't be copyrighted , but the particular compilation / structure of data can. Does this mean I can do whatever with the scraped factual data as long as I have my own unique data organization / compilation / structure ? For example, I want to make a business information database off hundreds of different websites and then radically re-organize / re-structure / re-index these different data sets into one database that is better than any of the sources. Can I proprietorially license this particular database I made? I know I can never own the data as they are straight facts. Right? But can I OWN the particular data organization and legally profit from it? We are operating in US, but the data could be from websites on other continents. | 2,015 | It's actually impossible to answer w/out knowing where you're intending to do this. In the US, collection criteria & presentation might make it copyrightable. In some other places (e.g., the UK & Europe) databases are protected by sui generis database rights . You'd want to track when & where you got each bit of data, and what licenses it was provided under, to reduce the chances of a protracted lawsuit. ( When is important, as websites may change their license terms, so you'll want to grab a snapshot of the license terms on each day that you scraped them.) Also note that some "facts" are written as sentences or presented as graphs – in the US, those are copyrightable, as are photographs establishing facts. Take the case of TV listings: The time a show is scheduled on a given channel on is a fact and not copyrightable in the US, but the summary of the episode is a creative work, and copyrightable. Creative filtering (selection) or presentation may be copyrightable; that issue was left open in Feist v. Rural . | 6 |
Scraping factual data off the web and re-organize to release under proprietary license? | Lots of bits and pieces of information and chaotic data spread across the web and it does cost an arm and a leg to gather them together to form something larger and consistent that would prove to be much more useful. Is it legally viable to scrape these factual data / information from different websites, compile and re-organize them as databases / data sets that will then be licensed under a proprietary license ? Thus far after some research, I find factual data can't be copyrighted , but the particular compilation / structure of data can. Does this mean I can do whatever with the scraped factual data as long as I have my own unique data organization / compilation / structure ? For example, I want to make a business information database off hundreds of different websites and then radically re-organize / re-structure / re-index these different data sets into one database that is better than any of the sources. Can I proprietorially license this particular database I made? I know I can never own the data as they are straight facts. Right? But can I OWN the particular data organization and legally profit from it? We are operating in US, but the data could be from websites on other continents. | 3,476 | Short Answer You don't need to license data to your users to generate revenue if you adopt any of the following business models. Software as a Service (SaaS) Pay-per-use Web Application Data API Explanation It sounds like you're describing either one of the above business models in your question. In all cases, the value of your reorganized datasets will be in the way your app or service allows the user to interact with it to do useful things. So I think you might not really want or need to license the datasets at all — just charge for the service and the use of your software, app or API. Implementing a Data API Model If you prefer to just focus on the data and let your users build their own apps, then building a data API might be your best option. With this product, you would allow your users send RESTful HTTP requests to your data service. The service would respond (most likely) with a JSON-P callback to supply the data. You would need to thoroughly document all the methods available from your API along with example calls in various common languages. (Start with cURL as that is relatively universal.) In this model, as with the others, you would issue authorization credentials to all your users (this is what they would pay for). Then with each data call, they would supply these credentials which would in turn be verified server-side before sending the response. Disclaimer : I am not an attorney so don't follow my advice. Consult a real attorney as that is the only way to make sure you stay out of trouble. | 1 |
Ownership percent change if co-founder gets funding from family | I recently had a business agreement with my co-founder to split our business 70-30. 70% for me and 30% for my co-founder. We filed the LLC and two days ago my co-founder called me and told me that his family is giving us 40K with no ties for him and our business. I am tonight going to talk to my lawyer about the ownership, but want to know if giving him more equity is the best decision. I thought about treating the money as a loan and he would get repaid the money plus gain a percentage back once our company starts generating revenue. I just would like to know if their is anyone else out their that has been down this route and might know a great way on going about this. | 3,679 | The general rule is that equity is the most expensive way (in the long run) to finance your startup. However, debt carries more risk. Only you can decide, given the nature of your business and all the other factors at play, whether it's best to use debt or equity financing. That's the business side. The legal side comes down to this... Whatever you decide, make sure it's clear and in writing. Personal experience speaking here. Startups fail more often than they succeed, so you will want to have the terms drafted by a lawyer after you all agree how you want to handle the capital. Even if you are successful, it's important for everyone to agree on the terms formally and in writing because internal shareholder disputes are a common way companies fail also. Especially when you encounter the inevitable "speed bumps" along the way. | 2 |
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? | 2,088 | 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. | 2 |
To what degree do I have to comply to COPPA in this scenario? | The Children's Online Privacy Protection Act (COPPA) is designed to restrict sites collecting information about children under the age of 13 years of age. If I am operating a general purpose web service that has, in its End User License Agreement (EULA) or Terms and Conditions/Terms of Use a clause that prohibits children under the age of 13 from registering on the site, am I still obligated to take action if they disregard this requirement? | 1,665 | COPPA is filled with references to "websites directed towards children or with actual knowledge the data was collected from a child." Actual knowledge means you actually did know; it's OK if you honestly and unreasonably thought the child was over 13, as that means you don't have actual knowledge. To quote the FTC (emphasis added): COPPA covers operators of general audience websites or online services only where such operators have actual knowledge that a child under age 13 is the person providing personal information. The Rule does not require operators to ask the age of visitors. However, an operator of a general audience site or service that chooses to screen its users for age in a neutral fashion may rely on the age information its users enter, even if that age information is not accurate. In some circumstances, this may mean that children are able to register on a site or service in violation of the operator’s Terms of Service. If, however, the operator later determines that a particular user is a child under age 13, COPPA’s notice and parental consent requirements will be triggered. | 4 |
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. | 2,269 | 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. | 5 |
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. | 2,289 | Although the implication is that you have to block all children under 13, in reality you are likely to be able to fairly easily defend yourself if you have undertaken "Reasonable" actions to comply with the law. And, in fact, you are hugely unlikely to find yourself even needing to defend yourself Make all reasonable attempts to block 13 year olds, sure, but there's very little you can do if someone lies or deliberately works around your techniques. There is no sure-fire way to guarantee you can block under-13s: you can't track their movements if they do something like travel to a friends house, and even requiring credit card information isn't foolproof (what 13 year old do you know of that can't get hold of their parents credit card if they really wanted to?). You are looking at sensible techniques to block a normal user, not to catch the one who can bypass your security. What are your peers doing? What are larger websites than yours doing in the same circumstance? If you are doing at least as much, you're probably in the clear. You could decide whether you wish to increase the security beyond the minimum level suggested by COPPA, for example applying IP bans, but they aren't foolproof either... in truth, there's no way to truly ban someone from a website. Note: I am not a lawyer, nor do I play one on TV. You should probably consult one, if in any doubt. . | 3 |
Can I post edited comedy images of Indian politician in social website | I edited an image of an Indian politician. Added some comedy picture taken from a Tamil movie. And also wrote some thing funny about that politicians. Is that legal. Can I post that image to a social website.. Do I face any problem in future for posting such images. What does the law say. | 3,661 | Legally you face no problem. The section 66A of the Indian IT Act, which used to be previously misused for penalizing anyone who dared insult a politician, has been struck down as unconstitutional by the Supreme Court of India. But the police could still detain you for 48 hours (legally) without giving any grounds; they are required to do that, but the police are seldom held accountable. The supporters of the said politician can vandalize your home and office without fear of legal action. I am not a lawyer. Whatever is posted above is my opinion and data that I believe to be true to the best of my knowledge and resources available to me. Please contact a lawyer for professional advice. | 3 |
How to verify validity of a notarized document or a document issued by means of Apostille | How do you make sure that document signed and verified by notary or by means of Apostille are not false, tampered with? Is there a central registry for authenticating notarized documents? I am dealing with documents verified all over the world, looking for an answer for English speaking countries. For example I found Verify an Apostille government website for UK. What about documents notarized in UK? For Ireland, I found e-Register government website, but what about notarized documents? For USA, I can not find online verification of Apostille and I did not find out if there is federal central registry or I will have to verify documents state by state. | 3,653 | Short Answer You need to go state by state. States regulate notaries and apostilles In the U.S., notaries are empowered and regulated at the state level. ( I don't believe there is a such thing as a federal notary. ) So your verification process must go state-by-state. Look for the Secretary of State web site With that said, each state has the equivalent of an Office of Secretary of State. You will need to go to their web site (or the Department of Licensing) to learn how to perform your verification task. Each state will have it's own database and procedure for conducting the verification. Google is your friend I think the easiest way to find these state sites is to use Google. Use the following search term: verify notary in X where you replace X with the name of the state. Make sure you begin by going to the state web site (not a third party) since the state website is "official." Look for the .gov domain on the URL to make sure it's a state web site. Example for California So, for example, when I Goggled: verify notary in california this web site popped up . So that is where I would begin the process for California. Then repeat. | 2 |
How to verify validity of a notarized document or a document issued by means of Apostille | How do you make sure that document signed and verified by notary or by means of Apostille are not false, tampered with? Is there a central registry for authenticating notarized documents? I am dealing with documents verified all over the world, looking for an answer for English speaking countries. For example I found Verify an Apostille government website for UK. What about documents notarized in UK? For Ireland, I found e-Register government website, but what about notarized documents? For USA, I can not find online verification of Apostille and I did not find out if there is federal central registry or I will have to verify documents state by state. | 3,660 | Apostille According to Article 6 of Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents there is a official and updated list of authorities who are competent to issue the certificate. On the official website hcch.net you can find and filter Authorities per state or per convention, filtered per Convention of 5 October 1961 will list all authorities sorted by country worldwide. According to Article 7 of Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents : Each of the authorities designated in accordance with Article 6 shall keep a register or card index in which it shall record the certificates issued, specifying the number and date of the certificate, the name of the person signing the public document and the capacity in which he has acted, or in the case of unsigned documents, the name of the authority which has affixed the seal or stamp. At the request of any interested person, the authority which has issued the certificate shall verify whether the particulars in the certificate correspond with those in the register or card index. It does not say anything about rules, fees, if they have to provide this service free over phone, it depends, some countries have only personal or phone verification, some allow e-mails, some have e-Registry and some issue even e-Apostilles signed digitally. When trying to find an online verification form, it helps to look for e-Register, that is what it is called in most of US states that support it, UK, Ireland, New Zealand ... and many others, according to question 12 in official HCCH's guide ABCs of Apostilles : Many Competent Authorities have started to operate online electronic Registers (e-Registers). These e-Registers allow for easy online queries to verify the origin of an Apostille without Competent Authorities having to answer these queries individually by phone, e-mail or otherwise. If a Competent Authority operates such an e-Register, the web address of the e-register is mentioned on the Apostille. Notary My first encounter with notary fraud inspired me to ask this question. My research is in progress and I found out, that this part of question is too broad to be answered here. As it is easy to find notary on the internet, and his name and commission number, I am failing to find guides and regulations on their duty to cooperate when I want to confirm his records with document I have in hand. It varies from state to state in US, country to country worldwide. Usually there is no reference to fees for record verification, deadlines, anything useful in process of verification. There are many documents like Prohibited Acts, Duties of a Notary Public, Notary Public Handbook, but I do not find them useful as a source for somebody who wants to verify if notary is a fraud. I found on several .gov websites with some US states, that notary public is not obliged to keep records. To somebody paranoid and with trust issues, choice is to either ask your international clients for Apostille or to use notary you trust, that is not always possible. | 2 |
Legality of "Version x or later" licenses | A standard way to license something under the GPL, is to grant a license to the "GPL version 3 or later", meaning that the recipient receives a license under the license terms of the GPLv3, or at their choice any later version of the GPL. I have been told that in the EU, or at least Germany this is impossible because the license constitutes a contract, and it's not lawful to enter into a contract that has terms that are unknown to you at the time of entering it. Is this correct? | 3,650 | The terms are known - GPL version 3 or later. Just write it a bit more complicated: "I hereby sell you the software X. You are allowed to use the software under the terms of the GPL license version 3. I have the right to change the license terms, at any time and repeatedly, to the terms of a later version of the GPL license". So everything is absolutely known and fine. | 2 |
Religious Freedom, Housing, and Apostasy | I was raised in the LDS (Mormon) church and am an official member. I am currently attending college and rooming in an apartment complex owned by said church. To make a long story short, I am now seriously considering formally resigning from the church and am worried about how this will affect my living situation. One practically has to be a church member for an application to reside in this complex to be considered: 98% of the tenants are members. If being a non-member is hard enough, I can't imagine how it would be for a former member (culturally referred to as an apostate , with the term practically being a curse word in Mormon theology). It's no secret that organizations cannot discriminate against individuals on religious basis. But when the time to renew my contract arrives, and I'm denied, or they terminate my residency immediately, do I have legal recourse? Also, I live in Michigan, with a state-level reinforcement of the Religious Freedom Restoration Act. Is enforcing religious neutrality in a housing complex owned by a church a 'compelling governmental interest'? I'm also generally unaware of the LDS church's handling of legal affairs or how they'd react to this situation. Any research I've attempted to do has lead me to extremely biased sites. Any solid information is appreciated, as I may just be worried over nothing. I also have the option to just fly under the radar and remain 'inactive' (but still on the records) until my economic situation changes and I can move out. However, I really don't want to feel like my hand is being forced. Amendment: Apparently students at BYU (one of the church's largest universities) are expelled if they apostatize . How is this even legal? | 3,654 | What that church is doing is legal. There is a statutory exception in the Fair Housing Act for religious and non-profit organizations. 42 U.S. Code § 3607 - Religious organization or private club exemption Nothing in this subchapter shall prohibit a religious organization,
association, or society, or any nonprofit institution or organization
operated, supervised or controlled by or in conjunction with a
religious organization, association, or society, from limiting the
sale, rental or occupancy of dwellings which it owns or operates for
other than a commercial purpose to persons of the same religion, or
from giving preference to such persons, unless membership in such
religion is restricted on account of race, color, or national origin.
Nor shall anything in this subchapter prohibit a private club not in
fact open to the public, which as an incident to its primary purpose
or purposes provides lodgings which it owns or operates for other than
a commercial purpose, from limiting the rental or occupancy of such
lodgings to its members or from giving preference to its members. | 5 |
Religious Freedom, Housing, and Apostasy | I was raised in the LDS (Mormon) church and am an official member. I am currently attending college and rooming in an apartment complex owned by said church. To make a long story short, I am now seriously considering formally resigning from the church and am worried about how this will affect my living situation. One practically has to be a church member for an application to reside in this complex to be considered: 98% of the tenants are members. If being a non-member is hard enough, I can't imagine how it would be for a former member (culturally referred to as an apostate , with the term practically being a curse word in Mormon theology). It's no secret that organizations cannot discriminate against individuals on religious basis. But when the time to renew my contract arrives, and I'm denied, or they terminate my residency immediately, do I have legal recourse? Also, I live in Michigan, with a state-level reinforcement of the Religious Freedom Restoration Act. Is enforcing religious neutrality in a housing complex owned by a church a 'compelling governmental interest'? I'm also generally unaware of the LDS church's handling of legal affairs or how they'd react to this situation. Any research I've attempted to do has lead me to extremely biased sites. Any solid information is appreciated, as I may just be worried over nothing. I also have the option to just fly under the radar and remain 'inactive' (but still on the records) until my economic situation changes and I can move out. However, I really don't want to feel like my hand is being forced. Amendment: Apparently students at BYU (one of the church's largest universities) are expelled if they apostatize . How is this even legal? | 3,627 | Generally, an individual cannot be discriminated against on the basis of religion. However, churches have a large number of exemptions to this for some quite sensible reasons: for example, it is inconsistent with the objectives of the Catholic Church for their Cardinals to be atheists. It is not clear that these exemptions would apply but you can bet that the lawyers for the LDS would make great efforts to convince a court that they do. Notwithstanding, they could probably evict you without triggering discrimination - in your position you would need to scrupulously comply with every provision of your lease and the rules. If you step out of line, you're gone and there is no question of discrimination. Remember, you have to prove on the balance of probabilities that they got rid of you for a prohibited reason. The legal system costs money and the LDS have more of that than you do. Everyone is equal before the law in the same way that everyone is equal on the sporting field - if you are good at the law or sports respectively or can afford to employ people who are you will win far more often then those that aren't. Oh, and please don't complain that this isn't fair . Life isn't fair; get used to it. | 2 |
What are the limits on police "qualified immunity"? | When the police seize property in the course of their official duties, they have "qualified immunity." How is that immunity qualified? I.e., what are the minimal conditions under which they could be stripped of that immunity and subject to criminal charges like Theft? To take the most extreme example I can think of: A police officer encounters you during the investigation of a crime. You happen to be moving that day, so all of your belongings are in "plain view" between the yard, open house, and open moving truck. The cop decides he really doesn't like you and so, even though there is no nexus between you or your property and the crime he is investigating he decides to seize all of your property as "evidence." Because it's in "plain view" he doesn't need a warrant. He properly logs your property into evidence, and then lets you know you won't see it until the case has been adjudicated. (What case, and when will that be? He won't tell you because it's an open investigation, but he notes that these things can drag on for years . I.e., he articulates an intent to deprive you of your property for so long a period as to satisfy the requirements of Theft.) Is this cop immune to any criminal charge for this action? What if you, as the victim, can prove beyond a reasonable doubt that he did not follow proper procedures. E.g., he took something that was provably exempt from the "plain view" doctrine and therefore should have not been taken without a warrant, which he did not have? | 3,647 | Qualified immunity is a doctrine that protects government officials (including police) from civil liability in §1983 suits. Anderson v. Creighton describes the legal standard - objective legal reasonableness. There is no condition that would strip an officer of civil immunity and open him up to criminal liability because the criminal charges could attach regardless of the disposition of civil liability. I say "could" because who is going to charge and prosecute the crime? The CATO Institute tracks police misconduct . Not all misconduct is criminal, but reading through their site will give you an idea of why it is difficult to determine when and why cops are charged with crimes. Only a small fraction of the 17,000 law enforcement agencies actually
track their own misconduct in a semi-public manner, and even when they
do, the data they provide is generic and does not specify what
misconduct occurred, who did it, and what the end result was. | 4 |
Police misconduct: Who could be charged? | Suppose a police officer commits a misdemeanor in the line of duty: Let's say that as an act of retaliation he seized something as "evidence," in such a way that he satisfies the criteria for committing theft and will be found guilty of that crime for that incident. My general question is, with respect to criminal charges against law-enforcement officers, how far down "the thin blue line" can a misdemeanor reach? Assuming the worst case for the police: In the given example, suppose the thief's partner was present and on-duty during the commission of that crime, but he said and did nothing on the scene, and his name is on none of the paperwork. Is he potentially guilty as an accessory or abettor? Now suppose the victim called the station the next day and spoke to the evidence custodian to ask for the return of the improperly seized item. The custodian, of course, has possession of the stolen item and refuses to return it. Can he be charged with a crime – e.g., for possession of stolen property? Now suppose the victim also called the thief's supervisor to ask for relief and is rebuffed. Is the supervisor guilty of any crime? Even without the call can the supervisor incur any criminal liability due to his failure to prevent or address the crime? Can the police department as an entity be charged with any crime, since (as I assume the previous items suggest) the fact that the crime was carried out and not corrected (e.g., by immediate return of the property) implicates a number of its officers for criminally acting, failing to act, and – presumably – failing to properly train and supervise the original actor? I suspect at some point down the line the offense (if any) changes color from criminal to civil. I'm interested in the theory and law on that transition. | 3,639 | As far as the entity of a police department they can fall under a consent decree as a result of incidents within the department that the federal government has filed a lawsuit against. Decrees by consent are more binding than those issued in invitum, or against an unwilling party, which are subject to modification by the same court, and reversal by higher courts. The decree issued by consent cannot be modified, except by consent. If the decree was obtained by means of fraud or given by mistake it may be set aside by a court. Errors of law or of inferences from the facts may invalidate it completely. Typically a consent decree dispenses with the necessity of having proof in court, since by definition the defendant agrees to the order. Thus the use of a consent decree is not any sort of sentence or admission of guilt. Likewise the consent decree prevents a finding of facts, so the decree cannot be pleaded as res adjudicata. | 2 |
Police misconduct: Who could be charged? | Suppose a police officer commits a misdemeanor in the line of duty: Let's say that as an act of retaliation he seized something as "evidence," in such a way that he satisfies the criteria for committing theft and will be found guilty of that crime for that incident. My general question is, with respect to criminal charges against law-enforcement officers, how far down "the thin blue line" can a misdemeanor reach? Assuming the worst case for the police: In the given example, suppose the thief's partner was present and on-duty during the commission of that crime, but he said and did nothing on the scene, and his name is on none of the paperwork. Is he potentially guilty as an accessory or abettor? Now suppose the victim called the station the next day and spoke to the evidence custodian to ask for the return of the improperly seized item. The custodian, of course, has possession of the stolen item and refuses to return it. Can he be charged with a crime – e.g., for possession of stolen property? Now suppose the victim also called the thief's supervisor to ask for relief and is rebuffed. Is the supervisor guilty of any crime? Even without the call can the supervisor incur any criminal liability due to his failure to prevent or address the crime? Can the police department as an entity be charged with any crime, since (as I assume the previous items suggest) the fact that the crime was carried out and not corrected (e.g., by immediate return of the property) implicates a number of its officers for criminally acting, failing to act, and – presumably – failing to properly train and supervise the original actor? I suspect at some point down the line the offense (if any) changes color from criminal to civil. I'm interested in the theory and law on that transition. | 3,618 | I think in your hypothetical, the only individual with liability is the first police officer. Unless there was a conspiracy. I think the operative legal principle is ei incumbit probatio qui dicit ( Proof lies on him who asserts. ) A/k/a "Innocent until proven guilty." | 0 |
Can I teach those careless kids a lesson and destroy their ball? | As we learned from the hypothetical In California, if a baseball lands in my yard, is it legally mine? I could face detinue for not returning the baseball upon request. But what if: I accidentally destroy the baseball, without knowledge whatsoever that it was on my property, by running over it with my lawnmower before its return is requested? I intentionally destroy the baseball before its return is requested? Is there a common law tort that clearly applies to either of these scenarios? | 3,633 | Actions in common law tort exist for both scenarios. Potential torts are negligence , trespass to chattel , and/or conversion . Putting the largely apparent tort of negligence aside, since that is nearly always available when something and/or someone is damaged by another (requiring only the [negligent] act, causation and damages) I'll focus on the other tort potentially applicable to scenario 1. The minority rule concerning trespass to chattel can be established even when the interference is negligent, whereas the majority rule requires intent to deprive. Interestingly, when the Restatement 2d of Torts talks about minority rule vs. majority rule, it really means "least often applied" vs. "most often applied", rather than merely "in some (fewer or greater) defined jurisdiction(s)". With these type of uncommonly pled torts, you could find a huge jurisdiction like California having lower courts (especially small claims or district courts) applying both the minority rule in some courts and the majority rule in others. This, all within one judicial jurisdiction if that state's law court has not weighed in on their interpretation of preference. The Restatement 2d (Second) of Torts § 217 and §218 define liability in trespass to chattel as "intentionally (negligently - minority rule ): (a) dispossess(ing) the other of the chattel, or; (b) the chattel is impaired as to its condition, quality, or value, or; (c) the possessor is deprived of the use of the chattel for a substantial
time, or; (d) bodily harm is caused to the possessor, or harm is
caused to some person or thing in which the possessor has a legally
protected interest. Trespass to chattel can consist of mere "intermeddling with or the limited use of the possession" and no damage need occur to the property, as damage is per se ; however in your scenario, actual liability would occur in the destruction of the possession. The 2nd scenario would lie in the more serious tort of conversion.
The tort of conversion will always requires intent to deprive the owner of his property, and the majority view is that the deprivation is intended to be total or forever (whether by continued deprivation or by destruction). There are 3 elements required to establish conversion: plaintiff's ownership or right to possession of the property at the time of the alleged conversion; defendant's conversion by a wrongful act or disposition of plaintiff's property rights; damage(s). While anticipating the follow-up question to either scenario, being
"what about the fact that you didn't take the ball, but rather it ended up on your land, and shouldn't that count for something"...the answer (to the unasked question :~) is no. The act of taking possession over property to satisfy the necessary prong in both torts may take any number of forms, but need not be wrongful to begin with. All that is required to establish possessory control over the chattel in a tortious manner is merely interfering with the plaintiff's right of possession, which is a wrongful deprivation of something the owner was entitled to possess (so in other words, even if you didn't go and take it, once you know it's there, it's not yours, and you seek to keep it, either temporarily, permanently – the act of wrongful possession has occurred. The way the property was acquired is not at issue. Conversion and Trespass in Chattel are often spoken of interchangeably despite the fact that they are different. The difference between a cause of action for conversion and one for trespass against chattel is measured only by the degree of interference with the plaintiff's rights in their chattel. While the distinction seems subtle in a vacuum, in the old English cases where these torts were typically decided, conversion was one small step from criminal activity, whereas today conversion may be the civil adjunct to a criminal suit. *for those not familiar: chattel is any possession that is not real estate. | 6 |
What are customary items for an hourly lawyer to bill? | This question presumes the hourly billing method and the lawyer's perspective. To avoid broadness, I restrict this question to the UK (but please advise whether I should remove this). I already know of the following: expenses incurred for a client's case (e.g.: fees for court, experts, and other lawyers; travelling) meetings reading, preparing, negotiating and working on notes and documents (e.g.: of meetings, of telephone calls and of proceedings) research; composing and receiving correspondence (e.g.: letters, faxes, email, telephone calls) attending court or other formal proceedings, including waiting time; | 3,631 | Lawyers generally will bill clients for two broad categories: Professional fees (time spent working on a client's matter); and Cost recovery (lodging forms, printing, faxing, photocopying, etc) Anything that falls within these two groups is fair game, including everything you've mentioned in your question. I suspect it's not possible to devise a comprehensive list of items that may be billed, as it will depend largely on the matter being worked on. | 1 |
Interim Relocation Coverage Under Homeowners Policy | We had a flood in a rental property in Philadelphia, PA. The floors are now "dry" but there is significant water damage and the walls and ceilings are soaked. To prevent mold from forming, as soon as tomorrow a remediation company is coming. The adjuster from the insurance company has not come out, yet, although a claim is filed. We have been asked by the tenants to move them out, because they work from home, placing phone calls, etc. The noise of the fans, dehumidifiers, walls being demolished, and other is bound to be intense, and disruptive. If there is a critical time when they need to be out of the house is more now than in the future, when everything is dry, and they are just putting walls back up again. So the question is, How can we make it happen so that the insurance company honors our request to grant our tenants temporary housing under our landlord-homeowners policy without delays? Thank you in advance! | 3,625 | It depends what the terms of your lease and the insurance policy are. In general, most leases do not oblige the landlord to pay for temporary accommodation if the property is unusable (other than through the landlord's neglect) - the only remedy the tenant generally has is that they do not have to pay rent for that period and it may be grounds for the contract to be terminated; either explicitly or through the doctrine of impossibility (e.g. if the building is destroyed it is clearly impossible to live in it). Even if it does, the tenant is asking to be relocated for convenience; not because the property is unusable. A residential lease would require the property to be unusable as a residence ; the fact that it is unusable as a place of business is not relevant. Unless the lease imposes an obligation on the landlord in these circumstances the insurance company would, quite rightly, see this as your gift to the tenant and not something they are liable to reimburse. Even if the lease does impose this obligation you need to see if consequential loss (loss as a consequence of being unable to provide the premises) is covered under the insurance policy. That is, if the tenant can't use the premises and therefore stops paying the rent does the policy step in to pay the loss of the rent to the landlord. | 1 |
Does one have rights to a profit from something that he helped to make but declared abandonment of? | Suppose that Peter creates a project with James. This project gets off the ground and becomes a reality. But James decides to give up and has no interest in working in it anymore. Later, the project becomes a success and Peter profits with it. James then finds out about this and demands the division of the profits with him, using as argument the co-working he had in the development, but continues uninterested in working in it, and just wants the profits. In this case, would James be right? Why? And what would cause the loss of this right (if he has)? | 3,635 | There are a number of things that could complicate this but to keep it simple I will assume: There are no intellectual property issues (i.e. Peter is not profiting from James' IP). Remember, there is no IP in ideas. However, there is CopyRight in computer code (among other things); if Peter is using James' code then James is entitled to a) make Peter stop or b) take a share of the profits (or both). Peter and James did not formally form a partnership or company. There is no written agreement between Peter and James. So, this just hinges on what Peter and James agreed when: They began working on the project, James stopped working on the project. In the initial situation what they agreed may or may not have amounted to a contract; the main reason why it wouldn't is whether they intended to be legally bound. Making an agreement to "have bit of fun and see what happens" does not create a contract; agreeing to pursue the project as a real business venture probably does and probably creates a common-law partnership as well. Notwithstanding, if you had asked Peter and James what their intensions regarding any future profits when they started and were working on the project, what would they have said? Probably , they would have said that they intended to split the profits equally. Let's take this as the most likely hypothesis. How does this agreement change when James leaves the project? Again, a court will ask the same question: if you had asked Peter and James what their intensions regarding were regarding any future profits when James had just left, what would they have said? This depends on how close the project was to commercialisation. If a lot of work was still required before commercialisation then, probably , James would have said that he has no further interest in the project and good luck to Peter. In this case James is not entitled to anything. If commercialisation was just around the corner then, probably James would have said that Peter should be paid for bring the commercialisation about and the profits should be spilt after Peter takes his pay. A court would try to give force to what was agreed at the time; not with the benefit of hindsight. | 2 |
Who would be responsible for returning the damage deposit if landlords changed but no contract was made | If the damage deposit was paid to one person, who was going to be the acting landlord, but the situation changed and the money was given to the actual landlord, who would be responsible to returning it to a tenant in the end? Order of events Several roommates move into a house owned by Bob. The initial (verbal) agreement was Joe was supposed to be the acting landlord who would sign the lease for the whole house and collect rent from everyone else and give it to the landlord. Jane paid her portion of the damage deposit to Joe. Joe gives Bob everyone's damage deposit The actual owner (Bob) comes by a few days after everyone moved in and has everyone cosign a lease (which is unclear whether it's tenants in common or cotennancy). Joe moves out of the house and the landlord returns his portion of the damage deposit to him. A new roommate takes over Joe's place and no new contract is written. The lease comes to an end but Jane never gets her damage deposit returned. Does Bob or Joe owe Jane the damage deposit? If relevant, another tenant, named Steward, always collected the rent and made the lump sum payments to the landlord. | 3,623 | If I can summarise: Jane gave money to Joe on the understanding that he would give it to Bob, Joe kept the money. This is matter between Jane and Joe, Bob is not involved. Edit The OP has stated that Joe did give the money to Bob. In that case, Joe was acting as Jane's agent and he discharged his agency. This is a matter between Jane and Bob, Joe is involved only so far as he was a witness to what happened. | 3 |
How to handle an issue not covered by the renter's agreement? | Ideally, all possible scenarios are covered in the lease contract or rental agreement. Some things are not mentioned, however, and these can inevitably cause friction. What actions can be taken if something happens that isn't covered by the lease? What options do I have? I know the following: Try to work it out with the landlord: Ask nicely. Ask firmly, repeatedly. Threaten to sue. Hire a lawyer to study the case more closely. | 170 | You seem to be coming from a corporate viewpoint -- if you're just renting something from a one-off landlord, the rental agreement doesn't at all have to cover every possible scenario, and doesn't even have to be in writing at all. The problem with oral agreements is that even with the best of intentions, it's difficult to remember what exactly did you agree upon many months ago, so, although an oral agreement for a residential lease is still completely legal, and would indeed be accepted by a judge in California, a written one would be much easier to enforce and present to the court (even if the whole agreement is done through email -- you'd simply show the email (or emails) to the landlord and the judge etc). Things that are not specifically covered by the rental agreement, in the United States, would fall under state law. For example, in California, unless otherwise agreed upon, you have to pay the rent at the end of the month -- which basically noone ever does, so, hence most agreements do explicitly specify when rent is due, since this specific part is always important to both the landlord and the tenant. It's always best to try to get everything done through mutual agreement. On the other hand, if you think you might have a nasty landlord that's trying to abuse their power and discretion, best course of action would be to go to a law library and look at the relevant state laws (in annotated form), with summaries of sample cases of various past disputes between tenants and landlords (called "case law" in legal jargon). | 1 |
How to handle an issue not covered by the renter's agreement? | Ideally, all possible scenarios are covered in the lease contract or rental agreement. Some things are not mentioned, however, and these can inevitably cause friction. What actions can be taken if something happens that isn't covered by the lease? What options do I have? I know the following: Try to work it out with the landlord: Ask nicely. Ask firmly, repeatedly. Threaten to sue. Hire a lawyer to study the case more closely. | 174 | The answer to this question may depend largely on where you live. In Alberta everyone has access to the Residential Tenancies Act , and are encouraged to resolve any issues themselves. If an agreement cannot be made with your landlord, the first thing you're advised to do is to talk with an Information Officer in the Consumer Contact Centre, they will advise you and tell you whether or not you can file a complaint with Service Alberta. From there it moves on up to the Residential Tenancy Dispute Resolution Service which offers landlords and tenants an alternative means of resolving serious disputes outside of court (and is a lot cheaper). Getting advice is free in Alberta, so it's sensible to take advantages of the services that are offered. | 1 |
Appointment and Elected Offices of an Assembly under Robert's Rules | In most assemblies following Robert's Rules, there are elected positions, such as members of the executive board, chair and vice-chair of the assembly and so forth.
Now for this question, assume that an organization has two assemblies. Call them assembly A and B. All members of assembly A are also members of assembly B by virtue of office. However, there are also members who are just members of assembly B.
Assume that a member, C, of assembly B is the elected chair of assembly B.
Before the next election of members to assembly A, a vacancy is created in Assembly A. Member C receives a vacancy appointment to A. My question is:
Does C continue to be the chair of assembly B or does the assembly need to hold another election for chair? | 3,626 | Robert's Rules are one set of standing orders for the operation of a parliamentary-type assembly. They are not legally enforceable; they are simply "the way we do things 'round here." What is legally enforceable are the organisations constitution and any resolutions passed in accordance with them. If these prohibit a person who is on assembly A from being the chair of assembly B then, in the first instance, person C should resign or if they do not do so, a point of order should be raised to force this; and a new chair appointed in accordance with the constitution. If there is no such prohibition, then they remain the chair until they are replaced in the normal course of business. | 2 |
Can I legally decompile my own binary code created by copyrighted compiler? | I've the following scenario: I've written some programming code which I own, but I lost the source code, however I've binary which was created by the compiler. Can I simply decode my own binary code back to the source code if I know how to do it? Here are the technical details to reproduce that scenario on the computer: Write a dummy program: $ echo "void start() { }" > foo.mq4 I've downloaded the compiler (without accepting any agreement): $ curl -O https://download.mql5.com/cdn/web/metaquotes.software.corp/mt5/mql.exe Compile the program (which generated encrypted foo.ex4 binary file): $ mql.exe /mql4 foo.mq4
MQL4/MQL5 Compiler build 1162 (02 Jul 2015)
Copyright 2001-2015, MetaQuotes Software Corp.
foo.mq4 : information: Compiling 'foo.mq4'
Result: 0 error(s), 0 warning(s) I lost my source code: $ rm -v foo.mq4
removed ‘foo.mq4’ I'm trying to decompile the binary file using a tool to recover my source code: $ ./decompiler foo.ex4 Is that perfectly fine to do that, or not? Or it depends, if so, on what? | 3,556 | I certainly don't see why this would not be legal. If you wrote a novel in English and paid someone to translate it into Spanish you could translate it back if you want. The copyright scenario is they have copyright in the compiler; you own the copyright in the input and output of it. The compiler's creators have no claim on the output because there is none of their creativity in it. | 2 |
Proving Theft From a Store | If the burden of proof lies on the plaintiff, how could the plaintiff prove the defendant didn't pay for an item removed from a store. From what I understand a negative can't be proven. In this case isn't it always possible that the item was paid for, but the record of it isn't brought forward?
How are we to take the word of the plaintiff on this matter that they aren't withholding evidence when no evidence exists? I'm not actually concerned with the specifics here, but more so on how a case like this where everything lies in the absence of some event occurring is the cause of a crime is handled. | 1,749 | The need to prove a negative arises only from the way you've phrased the problem. In the UK, theft is defined as — dishonestly appropriating property belonging to another with the intention of permanently depriving its legitimate owner of it. All five elements must be proved in order to secure a conviction for theft. In the case of an item removed from a store, the prosecution must prove beyond a reasonable doubt that— the defendant had a dishonest intent; the defendant appropriated the item (treated it as his own); the item was 'property' (straightforward in this case); the item belonged to someone else (ditto); and the defendant intended to permanently deprive the owner of it. Clearly proving that the defendant left the shop without paying would be an important element in proving (2) and (5) above. Note that the prosecution must prove that he left without paying , not that he did not pay . In this example, the prosecution might adduce CCTV or witness evidence of defendant leaving without paying. If the defendant did pay for the item but doesn't have a receipt, he can still give witness testimony in his own defence. The prosecution is unlikely to have strong evidence to the contrary if payment was in fact made. The totality of evidence, put before a jury or summary court, will be considered in the round when establishing guilt. | 3 |
Proving Theft From a Store | If the burden of proof lies on the plaintiff, how could the plaintiff prove the defendant didn't pay for an item removed from a store. From what I understand a negative can't be proven. In this case isn't it always possible that the item was paid for, but the record of it isn't brought forward?
How are we to take the word of the plaintiff on this matter that they aren't withholding evidence when no evidence exists? I'm not actually concerned with the specifics here, but more so on how a case like this where everything lies in the absence of some event occurring is the cause of a crime is handled. | 3,617 | Prosecutor's evidence Prosecutors prove theft with evidence. In this case, the most likely evidence would be: Witness testimony Video camera recording Defendant's evidence The defendant's goal at trial is to create reasonable doubt in the mind of the judge or jury. Production of a purchase receipt by a defendant should be sufficient to create reasonable doubt for a judge or jury. If the defendant did not get a receipt or threw it away — stores keep records of every transaction via the checkout register. These records can be subpoenaed by the defendant for exculpatory purposes. | 2 |
What type of organizations are exempt from EEOC regulations? | What type of organizations are exempt from EEOC (Equal Employment Opportunity) regulations? I know that very small businesses are usually exempt. How about non-profit organizations? How about federally funded non-profits? | 3,616 | From the U.S. Equal Employment Opportunity Commission (EEOC) website : An employer must have a certain number of employees to be covered by the laws we enforce. This number varies depending on the type of employer (for example, whether the employer is a private company, a state or local government agency, a federal agency, an employment agency, or a labor union) and the kind of discrimination alleged (for example, discrimination based on a person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information). All employers are covered, whether or not a particular regulation covers a particular employer is dependent on the number of employees. For example, age discrimination is covered by employers who have more than 20 employees and Equal Pay Act coverage is for virtually all employers. From the same web site: People who are not employed by the employer, such as independent contractors, are not covered by the anti-discrimination laws. Figuring out whether or not a person is an employee of an organization (as opposed to a contractor, for example) is complicated. If you aren't sure whether a person covered, you should contact one of our field offices as soon as possible so we can make that decision. The EEOC has regulations covering: Title VII of the Civil Rights Act of 1964 The Pregnancy Discrimination Act The Equal Pay Act of 1963 The Age Discrimination in Employment Act of 1967 Title I of the Americans with Disabilities Act of 1990 Sections 102 and 103 of the Civil Rights Act of 1991 Sections 501 and 505 of the Rehabilitation Act of 1973 The Genetic Information Nondiscrimination Act of 2008 The EEOC is an agency responsible for creating rules and regulations and enforcing civil rights laws against workplace discrimination. The regulations and enforcement actions are based on a large number of laws, any one of which may or may not apply to a particular employer. Exemptions are based on a particular anti-discrimination law, not on the agency itself. Each anti-discrimination law has a different set of entities to which the law applies and different sets of exemptions. | 3 |
Why do software licenses use passive voice? | I've been researching user-readable software licenses, and it strikes me that even as they get simpler and cut words, they always start with a wordy passive-voice construction: MIT: Permission is hereby granted ... to any person obtaining a copy of this software and associated documentation files (the "Software") ISC: Permission ... is hereby granted BSD: Redistribution ... are permitted Zlib: Permission is granted to anyone Why do the licenses use this same sort of wording even as they simplify in other places? Is there a legal advantage to using it in favor of the more obvious you may ? | 3,594 | Primary Theory I suspect there might not be a legal answer to this question. I have always suspected a sort of pseudo-intellectual elitism (or simple preference or carelessness ) with passive voice sentence construction in general. I sense license writers have not (yet) escaped this general trend. I would love someone to prove this theory incorrect. But, alas, I doubt it will happen. Alternative Theory But because this is a Law Q&A site, I will advance the following alternative theory. I don't believe it's correct. But I will advance it because it's the only possible explanation I can think of that might be even remotely based on legal reasoning... Maybe they are just basing their construction on the way the law itself is written? For example, if the law says, "Permission must be granted..." Then it would follow that a writer who wants to comply with the law might choose, "Permission is hereby granted..." instead of something like "The authors hereby grant permission..." or, as the OP suggested, "You may..." | 3 |
Is it illegal to carry a baton? | Is it illegal to carry an expandable/extendable baton in the state of Indiana? | 3,607 | Indiana has no state law against carrying an expandable baton, a.k.a. asp. (Hard to prove a negative, but here's one reference in support .) NB: Batons are considered deadly weapons. NBB: Laws on these weapons vary tremendously by state, and sometimes even by city, so this answer should not be construed to apply to any jurisdiction outside of Indiana! | 4 |
If someone's record has been expunged, can they legally say that they have not been arrested? | If someone applies for a job and the application asks whether they've ever been arrested, can they legally say on the application that they have not been arrested before? Note: Case was dismissed with no finding of fact. | 3,577 | New York Criminal Procedure - Article 160.6 states, Upon the termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision two of section 160.5 of this chapter, the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution. The arrest or prosecution shall not operate as a disqualification of any person so accused to pursue or engage in any lawful activity, occupation, profession, or calling. Except where specifically required or permitted by statute or upon specific authorization of a superior court, no such person shall be required to divulge information pertaining to the arrest or prosecution. From this short article you will note: As far as the law is concerned, the arrest never happened Except for specific occupations listed in statute (such as law enforcement) the arrest record can not be considered The person arrested can not be required to divulge information pertaining to the arrest This is why the employment guide posted in @jqning's answer states: Generally, an employer cannot ask about arrests during a job interview or on a job application If none of your arrests are open or led to any convictions, you are legally permitted to answer "no" to these questions. If a job application asks you to list any "crimes", "convictions of crimes," or "criminal offenses," you should list only misdemeanor and felony convictions - not arrests. Remember from this previous answer , open arrests are on the record. The New York statute linked in that article explains the process and timing for sealing an arrest record after a criminal proceeding goes in favor of the arrested person. | 31 |
If someone's record has been expunged, can they legally say that they have not been arrested? | If someone applies for a job and the application asks whether they've ever been arrested, can they legally say on the application that they have not been arrested before? Note: Case was dismissed with no finding of fact. | 3,578 | First, be sure you are talking about actual expungement and not just having your record sealed. The terms “expungement” and “sealing” are often used interchangeably, but they are not the same and there are some very important differences. “Sealing” is when the general public no longer possesses the right to search for your criminal records in a background check or even under FOIA. If you have had your record "expunged", under the law it is as if it never happened and the record is destroyed. It carries more force and applies to more situations. It is also irreversible. When your record is sealed, it means the conviction cannot be accessed by normal background checks; but the arrest will remain on your record. Those considering you for employment or who you are petitioning for a loan cannot look into these records during a background check. Furthermore, you can generally legally deny that the events on your record ever happened (there are a variety of exceptions). The record itself, however, does still exist and it is possible for certain entities to discover both the arrest and sealed conviction, and under some circumstances it can be unsealed. That said, only a court order to unseal the records can make the records accessible via a standard background check. However,even the expungement has practical limits. So, while you can answer "no" if asked if you've ever been convicted of a felony, there are certain agencies and employers are allowed to seek and use information on an applicant’s expunged convictions. Even if you have either of these done, police officers will still be able to see you've been arrested. When your record is expunged, it is as if the offense never happened at all. Your record is removed or destroyed (legally if not literally), and it is not available for anyone to access, even by court order. As with a sealed record, you can legally deny the existence of the events that occurred. For example, if you have a job application that asks if you were ever convicted of a criminal offense, you can legally answer "no." An expungement is a more permanent and reliable form of clearing your record. An expungement literally clears the record of any mention of your name as it pertains to a criminal court case, as well as all evidence that you were ever convicted. A sealed record serves much the same purpose, but the record still exists; it's just that almost no one can access it through conventional means unless it's unsealed. Keep in mind, if you get an expungement, you should seek an order from the court having the record of arrest sealed as well, or you should go to the arresting police department and give them a copy of the order and ask they remove any notation of arrest from their databases (some will do this without a separate court order, some will not). A different administrative body deals with this so it is not automatic in many jurisdictions. If your arrest record is sealed, and your record is expunged, it is very unlikely anyone will ever know (aside from those entities that can know no matter what). There are also situations when you still are supposed to answer yes to a question of whether you've been arrested (even w/out a conviction!) or convicted. For example, a law school application will often ask if you've ever been arrested or convicted, and they want a full explanation of the event. Even if you've not been convicted and even if sealed or expunged. Along with all circumstances surrounding it, they will want the order of expungement. While you can legally answer "no" and they may never find out, you should answer "yes" in that limited situation (although it is up to you) because as an institution you are agreeing to be honest on the application and if they find out you've lied, they can retract an otherwise legitimately earned degree. The same is true with the board of bar overseers. They will ask, and it is best to answer yes. It is not a bar to being admitted or licensed to practice law, but if you lie and they find out, it is reason to take action against you, because it shows moral turpitude. This is one example but there are others. | 19 |
If someone's record has been expunged, can they legally say that they have not been arrested? | If someone applies for a job and the application asks whether they've ever been arrested, can they legally say on the application that they have not been arrested before? Note: Case was dismissed with no finding of fact. | 3,575 | Yes, you can legally say you were not arrested. The exception is law enforcement and maybe some federal jobs that I do not know about. Employers are not allowed to ask about arrests. The exception is that they can ask about open arrests - arrests that have not resulted in a disposition. Employers can ask if you have been convicted of a crime. You are only required to answer questions about arrests that led to convictions. If you have no open arrests and have no convictions, you can answer no to the question if you have ever been arrested. Info is from Do You Have A Criminal Conviction History? A Guide To Your Employment Rights In New York | 13 |
Worst realistic effect in the U.S. of JSLint license? | The JSLint license specifies that code "shall be used for Good, not Evil". It's been a source of (what appears to be) alarmist and ridiculously overblown controversy for a while now. I've noticed this conversation tends to attract a lot of developers who really like open source, know next to nothing about the law, and reach the conclusion that this might have real legal implications. I'll freely admit I'm a developer who knows next to nothing about the law, but it seems obvious that since the license makes no attempt to precisely define either "good" or "evil", and they don't already have legal definitions (as far as I know), or even consistent definitions in common parlance, no sane judge would attempt to enforce that part of the license. Then again, my uninformed opinion is just as uninformed as all the uninformed opinions I'm disagreeing with, so I could be completely off base with my analysis. So what is the worst thing that could (realistically, legally) happen to someone using JSLint because of that specific section of the license? | 3,595 | Short Answer The entire license could be ruled invalid and therefore unenforceable. Explanation Two legal principles at play in jimsug's answer might be: Vagueness Doctrine Overbreadth Doctrine Either or both of which might be sufficient for a judge to waive enforcement of any provisions that relate to the terms "good" or "evil." An interesting side effect of this might be that unless the principle of severability were applied to the JSlint license, then the license could be considered completely invalid due solely to the addition of the words "good" and "evil." A judge would have to affirmatively impose severability because the license itself does not assert it. | 3 |
Worst realistic effect in the U.S. of JSLint license? | The JSLint license specifies that code "shall be used for Good, not Evil". It's been a source of (what appears to be) alarmist and ridiculously overblown controversy for a while now. I've noticed this conversation tends to attract a lot of developers who really like open source, know next to nothing about the law, and reach the conclusion that this might have real legal implications. I'll freely admit I'm a developer who knows next to nothing about the law, but it seems obvious that since the license makes no attempt to precisely define either "good" or "evil", and they don't already have legal definitions (as far as I know), or even consistent definitions in common parlance, no sane judge would attempt to enforce that part of the license. Then again, my uninformed opinion is just as uninformed as all the uninformed opinions I'm disagreeing with, so I could be completely off base with my analysis. So what is the worst thing that could (realistically, legally) happen to someone using JSLint because of that specific section of the license? | 1,703 | It would be very difficult for a court to make a judgment based on this specific provision of the JSLint license, for the simple fact that good and evil, except perhaps at the very extremes of the scale, are inherently subjective and contextual terms. The wording of this provision is such that it is likely that if a court were required to consider it, it would need to fall back, so to speak, to a consideration of whether a reasonable person would find the code acceptable or not, or otherwise, whether a reasonable person would find the purpose of the software acceptable or not. | 2 |
How much "more" needs to be added to an abstract idea in order to pass the subject matter eligibility test for a patent? | In Mayo v. Prometheous 566 U. S. ____ (2012) , the Supreme Court said (regarding 35 U.S.C. §101 subject matter eligibility): a process that focuses upon the use of a natural law [must] also
contain other elements or a combination of elements,
sometimes referred to as an “inventive concept,” sufficient
to ensure that the patent in practice amounts to significantly
more than a patent upon the natural law itself. This was reiterated in Alice v. CLS Bank 573 U.S. ___ (2014) : a court must first “identif[y] the abstract idea represented in the claim,” and then determine “whether the balance of the claim adds ‘significantly more.’” What is the standard for judging, as part of assessing subject matter eligibility, whether the claimed process contains "significantly more" such that it is not preempting entirely the use of the natural law (or abstract idea, or other ineligible concept) itself? | 568 | The USPTO has incorporated the test for "significantly more" in their subject matter eligibility test as follows (see step 2B): (Figure from 2014 Interim Guidance on Subject Matter Eligibility .) The USPTO says ( ibid. ): A claim directed to a judicial
exception must be analyzed to
determine whether the elements of the
claim, considered both individually and
as an ordered combination, are
sufficient to ensure that the claim as a
whole amounts to significantly more
than the exception itself. They say this several different ways: this has been termed a search for an inventive concept ... To be patent-eligible, a
claim that is directed to a judicial
exception must include additional
features to ensure that the claim
describes a process or product that
applies the exception in a meaningful
way, such that it is more than a drafting
effort designed to monopolize the
exception In section 2.B.1., they give a summary of Supreme Court jurisprudence on this point, listing examples of considerations that have been found relevant for this analysis of "whether a claim with
additional elements amounts to
significantly more than the judicial
exception itself". Limitations that "may be enough to qualify as significantly more" ( ibid. ): Improvements to another
technology or technical field Improvements to the functioning of
the computer itself Applying the judicial exception
with, or by use of, a particular
machine Effecting a transformation or
reduction of a particular article to a
different state or thing Adding a specific limitation other
than what is well-understood, routine
and conventional in the field, or adding
unconventional steps that confine the
claim to a particular useful
application Other meaningful limitations
beyond generally linking the use of the
judicial exception to a particular
technological environment Examples of limitations that are insufficient to qualify as significantly more ( ibid. ): Adding the words ‘‘apply it’’ (or an
equivalent) with the judicial exception,
or mere instructions to implement an
abstract idea on a computer Simply appending well-understood,
routine and conventional activities
previously known to the industry,
specified at a high level of generality, to
the judicial exception Adding insignificant extrasolution
activity to the judicial exception Generally linking the use of the
judicial exception to a particular
technological environment or field of
use | 3 |
How much "more" needs to be added to an abstract idea in order to pass the subject matter eligibility test for a patent? | In Mayo v. Prometheous 566 U. S. ____ (2012) , the Supreme Court said (regarding 35 U.S.C. §101 subject matter eligibility): a process that focuses upon the use of a natural law [must] also
contain other elements or a combination of elements,
sometimes referred to as an “inventive concept,” sufficient
to ensure that the patent in practice amounts to significantly
more than a patent upon the natural law itself. This was reiterated in Alice v. CLS Bank 573 U.S. ___ (2014) : a court must first “identif[y] the abstract idea represented in the claim,” and then determine “whether the balance of the claim adds ‘significantly more.’” What is the standard for judging, as part of assessing subject matter eligibility, whether the claimed process contains "significantly more" such that it is not preempting entirely the use of the natural law (or abstract idea, or other ineligible concept) itself? | 576 | Nobody really knows. (NB: the "you" in this answer is a generic person and not you personally ; as always, you should consult a lawyer before relying on random information you found on the internet) The USPTO's opinion is relevant, if you're just trying to get a patent. But if you want to use it in a court of law, it needs to be acceptable to the judiciary, not the USPTO. And the Supreme Court has been rather vague about this one. Worse, it seems there's a fundamental disconnect between the Supreme Court and the Federal Circuit. Looking at Alice in particular, the Federal Circuit split seven different ways, with no opinion holding a majority. Then the Supreme Court looked at it and unanimously ruled that it was a straightforward application of Mayo . Unfortunately, they thought it was so straightforward that they declined to provide any further guidance. Thus, the Federal Circuit is guessing just as much as we are. I think Diamond v. Diehr may provide guidance. In that case, the computer was controlling a rubber curing machine, and the patent was on the whole apparatus. That was upheld, and so far as I'm aware, this has not been revisited or seriously questioned. It seems (to me) that satisfying the machine-or-transformation test is a sufficient condition for section 101 patent eligibility. But Bilski made it clear that this is not a necessary condition. Looking to the other extreme, in Alice and Bilski , we see people taking traditional business methods (such as hedging, escrow, etc.) and applying them on a computer. This is not patentable. But they're not patentable under section 101, not on the basis of prior art or some other reasoning. So this isn't about the age of the business methods. It's about their nature. They are abstract ideas, disconnected from physical matter, and often rather vague so as to cover the entire concept rather than one specific implementation. Where's the boundary? I would look carefully at patents which relate to physics without directly interacting with physical matter. This would include things such as these: Audio and video codecs CAD software Image manipulation software I don't know whether any or all of these things are patentable, but I believe they are probably close to the boundary line, one way or another (at least, closer than the extremes discussed above). I should note that the MPEG-LA already holds several patents on image and video codecs (and possibly audio codecs as well, I'm not sure), but I'm not aware of any case which went to trial in which they asserted any of those patents. They have had some public back-and-forth with Google over whether or not the WebM format infringes these patents, so it's possible we'll get an answer in this space. To maximize the chances of patentability, these patents would need to be highly specific about their design and implementation, as both Alice and Bilski were very critical of vague patents. As a developer, I would consider source code ideal for this, but it's not clear to me that the courts would agree. Even without source code, though, good patents would be wide open to clean-room reverse engineering once they expire. Since copyright lasts much longer than patents in most jurisdictions, this may not be a net win. | 2 |
How much "more" needs to be added to an abstract idea in order to pass the subject matter eligibility test for a patent? | In Mayo v. Prometheous 566 U. S. ____ (2012) , the Supreme Court said (regarding 35 U.S.C. §101 subject matter eligibility): a process that focuses upon the use of a natural law [must] also
contain other elements or a combination of elements,
sometimes referred to as an “inventive concept,” sufficient
to ensure that the patent in practice amounts to significantly
more than a patent upon the natural law itself. This was reiterated in Alice v. CLS Bank 573 U.S. ___ (2014) : a court must first “identif[y] the abstract idea represented in the claim,” and then determine “whether the balance of the claim adds ‘significantly more.’” What is the standard for judging, as part of assessing subject matter eligibility, whether the claimed process contains "significantly more" such that it is not preempting entirely the use of the natural law (or abstract idea, or other ineligible concept) itself? | 565 | You seem to know as well as anybody. I'll phrase it in one more way: it can't just be "insignificant post-solution activity." (Bilski). Also note that the Machine-or-Transformation test is still helpful. Bilski only said that it wasn't the only test, and Mayo and CLS Bank are kind of exceptions to the norm -- because the "machine" involved in CLS Bank was pretty much just a pretense for an algorithm. Generally, I would also say that the more inventive it seems, the nicer courts are going to be to you, and the more it seems like bullshit, the more courts are going to hate you. The PTO tries to follow stricter rules than that, but you get to work with your examiner so he can inform you better than we do. | 0 |
Are motions to censure opposing counsel used? | Is it common, considered a good tactic, or even allowed, to move a court to censure – or even hold in contempt – the opposing counsel? If one has a reasonable argument for why the opposing counsel is out of line, and the judge hasn't called them on it, it seems to me like it would almost always be a good tactic. And it seems like it could occur with some frequency when the opposing counsel is a criminal prosecutor, since their duty is to truth and justice, and it's a fine line to walk between being a principled advocate for justice and a competent adversary to a defendant. But what is the reality? Are such motions allowed? Do judges take kindly to being encouraged to censure an officer of their court? Are there clear benefits or expected outcomes of such motions? Also, would such motions succeed by appealing to the principles espoused by courts and legal professional associations? Or does a lawyer really have to substantially neglect their duty or abuse their position before a motion to censure will be entertained? | 1,840 | The reality is that it is almost never an acceptable tactic to use in any jurisdiction where I ever have/or currently do practice. The bar is relatively small no matter where you are; even in bigger cities. Your reputation is your most valuable asset and it would be crippled if this became your M.O., or was used in anything but the most rare and egregious situations (e.g. withholding evidence, lying to the judge, tampering with jury). Small violations (which are seemingly big in the heat of trial) happen every day and if you even suggested this it would come back on you more times than not. This is exponentially true in the criminal arena where the Judges and prosecutors interact on a daily basis and have formed collegial relationships. If you practice criminal law you often need to form good working relationships with the ADAs or AAGs since most cases get disposed of through negotiations with these very individuals. I have been in situations where my colleagues and I discussed it, opined on how it would be appropriate, but in the end have never gone that far. One time things were so bad with opposing counsel on so many levels, I considered it; however, I was a newish lawyer and my mentor at the time told me that he had never seen anyone but a federal court judge issue a sanction and aside from that, had never even seen it requested by a lawyer in the local bar. And these were horribly bad violations of the rules of procedure, conduct unbecoming, etc. So, I would suggest avoiding this practice. My rule of thumb is that unless the offending practice is so egregious that one would be technically duty bound to report the conduct to the bar, it is not appropriate to ask for sanctions. | 6 |
Does Florida bankruptcy law apply to second homes? | A New York couple filed for bankruptcy. In New York state, they have to surrender all their assets to the bankruptcy court except for $150,000 each of "exempt" assets. They own a "second" home in Florida worth about $250,000. If that was their primary residence, Florida law would cover their home to that amount (or more). But given that they lived in and filed for bankruptcy in New York, would the Florida home be part of the New York bankruptcy estate? | 3,593 | Yes, the second home will be part of the New York bankruptcy estate. Congress broadly defined property within the bankruptcy estate as all property, "wherever located and by whomever held," subject to limited exemptions. Florida's homestead exemption is among the broadest in the Unite dStates; the value of the property that can be protected is unlimited. See Florida Constitution, Article X, Section 5 . As such, I have broken down your question into two parts: May the debtors use the Florida homestead exemption for their Florida home even if they are domiciled in New York? If not, may the debtors use either the Federal or New York state homestead exemptions to protect their Florida home? Exemption Eligibility The debtors can choose between either the federal exemptions of section 522(d) or the exemptions available under New York state and nonbankruptcy federal law; the debtors may not choose the exemptions available under Florida state law. Section 552 of the Bankruptcy Code is the operative statute. To take advantage of a state's exemption scheme, the debtor must either: Be domiciled in the state for the 730 days immediately prior to filing its petition; or If the debtor has not been domiciled in a single state for such period, the state in which the debtor was domiciled for the 180 days immediately preceding the 730-day period (or for the longer portion of that 180 day period). 11 U.S.C. § 522(b)(1)(A) : . . . any property that is exempt under Federal law . . . or State or local law that is applicable on the date of the filing of the petition to the place in which the debtor’s domicile has been located for the 730 days immediately preceding the date of the filing of the petition or if the debtor’s domicile has not been located in a single State for such 730-day period, the place in which the debtor’s domicile was located for 180 days immediately preceding the 730-day period or for a longer portion of such 180-day period than in any other place; As a result, the debtor may only utilize either the Federal or New York homestead exemptions. Federal Homestead Exemption Section 522(d)(1) provides a homestead exemption in the amount of $22,975 in value for the debtor's residence. (1) The debtor's aggregate interest, not to exceed $ 22,975 in value, in real property or personal property that the debtor or a dependent of the debtor uses as a residence, in a cooperative that owns property that the debtor or a dependent of the debtor uses as a residence, or in a burial plot for the debtor or a dependent of the debtor. (The linked statute says that the federal homestead exemption is capped at $15,000. But pursuant to 11 U.S.C. § 104, the amount is adjusted every three years to account for changes in the cost of living. Effective April 1, 2013, the cap is $22,975). Essential to the right to a homestead exemption is designation and occupancy of the property as a residence. Residence and domicile are not necessarily the same thing. Courts seem to be split as to whether a debtor may hold multiple "residences" at the same time. For example, the court in In re Lawrence , 469 B.R. 140 (Bankr. D. Mass. 2012) held: By choosing not to limit the residence qualified for exemption under § 522(d) to a principal or primary residence, Congress presumably intended to encompass a broader category than principal residences, namely any residence . . . . To sum up, on the date of their bankruptcy petition the [debtors] owned two residences, one in Massachusetts and one in Maine. They used them both. They were entitled to exempt either one, but only one, under § 522(d)(1). See also In re Demeter , 478 B.R. 281 (Bankr. E.D. Mich. 2012); In re Gandy , 327 B.R. 807 (Bankr. S.D.Tex. 2005). But the New Jersey Bankruptcy Court in In re Stoner , 487 B.R. 410 (Bankr. D.N.J. 2013) read the term "residence" in a manner "requiring some measure of permanence." I couldn't find any cases from New York discussing this issue, making it difficult to determine whether a New York bankruptcy court would allow the debtors to apply the federal homestead exemption to their Florida home. But given that the exemption is capped at only $22,975, it is unlikely to have a significant impact on the bankruptcy. New York Homestead Exemption The New York homestead exemption is more generous than the federal exemption. It provides exemptions capped between $75,000 to $150,000. However, it is limited to property located within New York and used as a primary residence. As such, the Florida property is not subject to the exemption. New York Civil Practice Law and Rules § 5206 : Property of one of the
following types, not exceeding one hundred fifty thousand dollars for
the counties of Kings, Queens, New York, Bronx, Richmond, Nassau,
Suffolk, Rockland, Westchester and Putnam; one hundred twenty-five
thousand dollars for the counties of Dutchess, Albany, Columbia, Orange,
Saratoga and Ulster; and seventy-five thousand dollars for the remaining
counties of the state in value above liens and encumbrances, owned and
occupied as a principal residence, is exempt from application to the
satisfaction of a money judgment, unless the judgment was recovered
wholly for the purchase price thereof: a lot of land with a dwelling thereon, shares of stock in a cooperative apartment corporation, units of a condominium apartment, or a mobile home. | 3 |
Is it fair use to discuss a fictional work on a webpage? | On my for-profit website, users can rate and comment on works of literature, film, and music, most of which are copyrighted. The only information I include is: 1.) Title 2.) Release date 3.) MPAA rating, if it is a movie 4.) Similar works Does this count as fair use of the work? | 2,109 | Titles can't be copyrighted . Meta-data like #2 aren't copyrighted. Not sure if the MPAA could protect its ratings, but I can't find anywhere that it has asserted restrictions on the use of those. If the list of "Similar works" is not somebody else's intellectual property then there's no problem. (If it is I'm not certain what protection it could be eligible for.) | 4 |
Is it fair use to discuss a fictional work on a webpage? | On my for-profit website, users can rate and comment on works of literature, film, and music, most of which are copyrighted. The only information I include is: 1.) Title 2.) Release date 3.) MPAA rating, if it is a movie 4.) Similar works Does this count as fair use of the work? | 3,358 | Your website is probably fair use. In the 2013 case of Authors Guild, Inc. v. Google Inc., the court held that Google Books was permitted to scan books and provide snippets to the readers. The court found the following benefits of Google Books.
1. It provided new and efficient ways for readers to finds books.
2. It promotes research and data mining.
3. It gives access to books to underserved populations.
4. It helps to preserve books and it gives them new life.
5. It helps to sell the books because the researcher is directed to a link where they can purchase the book. Ultimately the court held Google Books is fair use because Google only used snippets of the book. The case. https://scholar.google.com/scholar_case?case=140462947356925233&hl=en&as_sdt=6&as_vis=1&oi=scholarr | 3 |
Is it fair use to discuss a fictional work on a webpage? | On my for-profit website, users can rate and comment on works of literature, film, and music, most of which are copyrighted. The only information I include is: 1.) Title 2.) Release date 3.) MPAA rating, if it is a movie 4.) Similar works Does this count as fair use of the work? | 3,431 | All courts do a case-by-case examination of the facts, using a “Four Factor test” to analyze whether the doctrine Fair Use applies in a given situation. The four factors are stated in the opinion of the Joseph Story in Folsom v. Marsh , 9 F.Cas. 342 (1841) (widely cited – even in the most recent of cases). This case had to do with a guy (the defendant) who'd copied hundreds of pages from the plaintiff’s multiple-volume biography of George Washington, so as to produce a separate work of his own. (Most of what he copied are letters Washington wrote – so there is also the public right need to know analysis – but much of this was not original.) If you want a book on the subject that cites a number of sources and discusses all of the law on copyright and fair use, Infringement Nation: Copyright 2.0 and You , by John Tehranian, is a good resource for people in your position as it cites many cases and scholarly articles as well as discussing the landscape of using copyrighted works in today's society. Under this case, what became abundantly clear is that Fair Use is not a finite legal rule with a one-size-fits-all definition. It is also just an affirmative defense if you're ever sued under the theory of copyright infringement. To know if your site is a fair use, I'd objectively try to apply the test a court would. It sounds to me like you'd be fine, but only you know the intricacies of your site. Folsom is often touted as the landmark case that created safeguards of copyright law against over-protection and for maintaining the balance between private exclusion power and public "accessibility to information and knowledge." Notwithstanding the provisions of...copyright laws....the fair use of
a copyrighted work, including such use by reproduction...for purposes
such as criticism, comment , news reporting, teaching ...is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered (now codified in 17 U.S. Code § 107) shall include: 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. See also: http://www.copyright.gov/title17/92chap1.html http://www.law.cornell.edu/uscode/text/17/107 http://ogc.harvard.edu/pages/copyright-and-fair-use | 1 |
Is it fair use to discuss a fictional work on a webpage? | On my for-profit website, users can rate and comment on works of literature, film, and music, most of which are copyrighted. The only information I include is: 1.) Title 2.) Release date 3.) MPAA rating, if it is a movie 4.) Similar works Does this count as fair use of the work? | 3,485 | This is not fair use because you haven't even used anyone else's copyrighted materials . Fair use is a defense again prima facie cases of infringement that the law nevertheless permits; however, in your case, you don't even come close to having a prima facie case of infringement. In copyright terms, your uses are already squeaky-clean before a fair use defense even needs to be considered. Title: The U.S. Copyright office has explicitly stated that titles are not eligible for copyright . Release date: Copyright only protects creative works. Historical factual information is not eligible for copyright. (Indeed, imagine the robust censorship possibilities if I could somehow enforce copyright protection on public facts about myself .) MPAA rating: While the decision-making process that goes into assigning a rating probably requires a modicum of creativity, a single letter or two simply isn't eligible for copyright under any circumstances. Again, this appears to be a matter of historical fact, i.e., the MPAA historically did assign such-and-such rating to this movie. (The brief descriptions about why a rating is assigned, like "some violence" are likewise ineligible for copyright; the link above about titles also applies to short phrases.) If MPAA ratings were comprehensive documents that explained the rationale behind each rating, such a document would be protected by copyright, but a simple rating score is not. Similar works: If you compiled the mapping of related works, this certainly can't be fair use because you yourself are the copyright holder! You certainly have no need to defend the use of your own work. This mapping is a "complilation" and is protected by copyright. From 17 U.S.C. §101 : A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. As long as the complication was created using creative direction, it qualifies for copyright. This means, of course, that if you did not make this compilation yourself, you'd need permission from the author who did. It's very unlikely that using someone else's compilation in this wholesale, non-transformative way would be defensible under fair use. | 1 |
Is debt a publicly tradeable commodity? | Suppose I have debt – student loans or something. So the bank and I have a contract that says I owe them $500. From what I understand, the bank can sell the contracted debt to some other agency, and then assert that I owe that company the debt. Can I as the debtor also sell (trade, or transfer) my debt to another person or agency? Is that legally viable? | 3,545 | The debtholder is the person or entity that is owed the money. When you owe someone or something money you are the debtor. A debtholder holds the note or other instrument that identifies the terms of the debt. That note is an asset that, as you point out, can be traded on the market. The debtor owes the holder of the note according to its terms. As a debtor you have no say, unless specified in the note, who can own that note. One method of changing the holder of a debt would be to re-finance from another lender. Find a lender who is willing to lend you the money to pay off the current debt and then become a holder of the "new" debt. This assumes the current debt can be settled early; again, something that would be specified in the terms of the current debt. | 3 |
Is debt a publicly tradeable commodity? | Suppose I have debt – student loans or something. So the bank and I have a contract that says I owe them $500. From what I understand, the bank can sell the contracted debt to some other agency, and then assert that I owe that company the debt. Can I as the debtor also sell (trade, or transfer) my debt to another person or agency? Is that legally viable? | 3,569 | You owe A money. Borrow money from B to pay A. Now you owe B money. | 2 |
Can I legally break my lease without repercussion if my apartment is in disrepair? | I recently rented a basement apartment, since I got there I noticed things wrong with it: Massive amount of spiders No light or railing on the staircase Kitchen light sometimes does not work fridge handle broken cupboard hinges broken ceiling tiles stained and some won't stay in place I have contacted my landlord about these, and some he has taken action on (he called the pest control company about the spiders) the rest he has done nothing, he even said he would replace the ceiling tiles and the property manager said he would fix the cupboards, but nothing has been done. Am I in the legal right to break the lease?
If so, how do I do it without repercussion? | 3,566 | Disclaimer: This answer is from a general point of view, not specific to the United States. This is essentially a contractual dispute: Your have entered into a contract with the landlord, which states that you pay the landlord a monthly rent, and in exchange the landlord lets you live in the appartment you rented, and maintains it in reasonable condition You think that the landlord is not keeping up their side of the deal by neglecting maintenance. In general, you must establish: that the landlord indeed owes you what you are expecting that they did not provide it to you in a timely manner after you requested it To clear up the first point you must establish what exactly the landlord is required to provide - this can be either explicitly in the contract or implicit due to local law or general consensus. This highly depends on the nature of your contract, and on local law and customs. To clear up the second point, you must establish that you explicitly told the landlord about the problems and asked for a solution, and that the landlord did not address the problems. Again, exact requirements, timeframes etc. vary a lot, but in general you should demand changes in writing, document them and explicitly specify reasonable time limits for the landlord. TL;DR: find out whether what you expect is covered by your contract or local law / customs ask your landlord in writing to fix it, and set a time limit If that fails, you can probably sue, and/or unilaterally cancel your contract.
Again, details will vary with jurisdiction. | 2 |
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