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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? | 3,584 | You might be the victim of a constructive eviction which might release you from your obligations under the lease. Consult an attorney. | 1 |
Who is liable, the franchise owner or franchising company? | Suppose a car was damaged by a body shop (or similar shop) and the shop refused to cover the cost of repair. (Assume the damage done is not related to work performed. For example, engine is damaged from moving the car, but the service requested was a paint job.) The body shop is a franchise, so there are potentially three entities in the shop: the manager, the franchisee (owner), and the franchiser. When taking the matter to small claims court, which entity should be held liable? | 3,576 | If the manager of the shop is an employee of the franchisee, then they would not be likely to be personally liable if the damage occurred in the course of performing their duties, even if it was not related to the specific work being performed on the vehicle. For instance, consider the situation where engine work is requested, but as a result of some object falling from a height, some panel damage occurs. As long as the manager did not maliciously drop the object, the employer would be vicariously liable for the employee's actions. Let's turn to the franchisee-franchisor relationship - while it is legally more like an independent contractor relationship, it is both symbiotic and interdependent , and legally independent . 1 What would be considered is the actual franchising contract, as well as the substance of the relationship. In unusual cases, a franchisor may be liable for franchisees who act as the agent for them. 2 Where a franchisor is considered an employer of the franchisee, then the franchisor can be held vicariously liable. 3 Additionally, US case law shows a number of instances where the franchisors have been held liable for negligence in selecting franchisees, maintaining standards, franchise unit design, food safety, and security. 4 In the US, the Restatement (Second) of Agency extent of control test imposes vicarious liability on a franchisor that controls (or has the right to control) the day-to-day operations of the franchisee. 5 Therefore, a court would request a lot more information pertaining to the particulars of a situation, in order to arrive at a judgement on such a matter. This information was synthesised from Franchisor Liability for Franchisee Conduct , (2013) Andrew Terry and Joseph Huan, Monash Law Review pp.388-410, page references below. You probably don't need to read all of it, as most of the important information is introduced in the first dozen pages. 1. p. 390 2. p. 390 3. p. 390 4. p. 392 5. p. 394 | 2 |
Is it legally required for districts to be contiguous? | I was reading about Shaw v. Reno , a case about a congressional district that was altered on the basis of the race of its voters. Is there a law (precedent or statutory) which requires congressional districts to be contiguous? I was thinking that you could gerrymander much more effectively if you could make up a district from multiple unconnected parts. The oddly shaped district in question: | 3,587 | No; only 23 states require their congressional districts to be contiguous. See Reapportionment and Redistricting in the West by Gary F. Moncrief : Only 23 states have [contiguity] requirements for their congressional districts, although as a practical matter most congressional districts will be contiguous; the relative dearth of legal limits is a manifestation of the fact that few states have provided any express legal constraints on congressional districting at all. But that's not to say more states don't have contiguous districts. On Profesor Justin Levitt's website , he observes that: Many states require contiguity only "to the extent possible," and
courts generally accept anomalies that otherwise seem reasonable in
context. I am having a difficult time finding a list of states with such requirements; I will update if I find it. | 11 |
Is rent acceleration legal in Texas? | Texas Association of Realtors' Sample Lease has the following: B. If Tenant fails to timely pay all amounts due under this lease or otherwise fails to comply with this lease,
Tenant will be in default and: ... (2) all unpaid rents which are payable during the remainder of this lease or any renewal period will be
accelerated without notice or demand; However, the standard Texas Apartment Association (TAA) apartment lease contract is explicitly unforgiving and unconditional, to the point of being quite unreasonable and unconscionable about the application of acceleration, something I've hardly seen on any other lease anywhere: 11. UNLAWFUL EARLY MOVE-OUT; RELETTING CHARGE. You’ll
be liable for a reletting charge of $____________ (not to exceed 85%
of the highest monthly rent during the Lease Contract term) if you:
(1) fail to move in, or fail to give written move-out notice as
required in paragraphs 23 or 37; or
(2) move out without paying rent in full for the entire Lease
Contract term or renewal period; or ... 14. FAILING TO PAY FIRST MONTH’S RENT . If you don’t pay the
first month’s rent when or before the Lease Contract begins, all future
rent will be automatically accelerated without notice and immediately
due. ... 32. DEFAULT BY RESIDENT. You’ll be in default if: (1) you don’t pay
rent or other amounts that you owe on time; (2) you or any guest or
occupant violates this Lease Contract, apartment rules, or fire, safety,
health, or criminal laws, regardless of whether or where arrest or
conviction occurs; (3) you abandon the apartment; ... Acceleration. All monthly rent for the rest of the Lease Contract term
or renewal period will be accelerated automatically without notice or
demand (before or after acceleration) and will be immediately due
and delinquent if, without our written consent: (1) you move out,
remove property in preparing to move out, or give oral or written
notice (by you or any occupant) of intent to move out before the Lease
Contract term or renewal period ends;
and
(2) you’ve not paid all rent
for the entire Lease Contract term or renewal period. Such conduct
is considered a default for which we need not give you notice.
Remaining rent also will be accelerated if you’re judicially evicted or
move out when we demand because you’ve defaulted. Acceleration
is subject to our mitigation obligations below. ... 38. MOVE-OUT PROCEDURES. The move-out date can’t be changed
unless we and you both agree in writing. You won’t move out before
the Lease Contract term or renewal period ends unless all rent for the
entire Lease Contract term or renewal period is paid in full. Early
move-out may result in reletting charges and acceleration of future
rent under paragraphs 11 and 32. Is this at all legal? For example, if someone signs a 15 month lease, but has to move after a couple of months, are they really supposed to shell out 13 × the monthly rent prior to being able to assign the lease to someone else, and/or until some such someone else is actually found and takes over the lease? If the provision is not actually enforceable in Texas, for example, due to damage mitigation provision, or due to the late fee statutes, why is it so prevalent in all residential leases in Texas, especially by all TAA members? | 3,586 | Yes, acceleration clauses in residential leases have been enforced by Texas courts. However, whether the acceleration clause quoted in your question will be enforced is an issue of fact for which there can be no definitive answer at this time. Acceleration Clauses are Valid in Texas Acceleration clauses have been recognized as valid by Texas courts. In Rem Servs. v. Zaheer , a Texas Court of Appeals upheld a judgment by the trial court "award[ing] the landlord $24,000 in damages, representing the four months of accelerated rents on his breach of contract claim." See Rem Servs., Inc. v. Zaheer , No. 14-12-00724-CV (Tex. App. Apr. 4, 2013). Also, in Williams v. Colthurst , the court implied that the damages given by the trial court included an accelerated rent provision: Additionally, the trial court had previously determined that the
tenants owed unpaid rent and late fees of $8,850. The lease provided
that the landlords could deduct unpaid or accelerated rent and late
fees from the security deposit. Unfortunately I couldn't find the trial court opinion to ensure that accelerated rent was included in the $8,850. See Williams v. Colthurst , 253 S.W.3d 353 (Tex. App. 2008). Limitations on Acceleration Clauses There are several sections of the Texas Property Code that may mitigate the use of an acceleration clause. First, a landlord cannot charge a tenant a fee for failure to pay rent unless the fee is a reasonable estimate of uncertain damages to the landlord that are incapable of precise calculation and result from late payment of rent." See § 92.019(a)(2) of the Texas Property Code : (a) A landlord may not charge a tenant a late fee for failing to pay
rent unless: (1) notice of the fee is included in a written lease; (2) the fee is a reasonable estimate of uncertain damages to the
landlord that are incapable of precise calculation and result from
late payment of rent; and (3) the rent has remained unpaid one full day after the date the rent
was originally due. Further, landlords have a duty to mitigate damages. See § 91.006 of the Texas Property Code : (a) A landlord has a duty to mitigate damages if a tenant abandons
the leased premises in violation of the lease. (b) A provision of a
lease that purports to waive a right or to exempt a landlord from a
liability or duty under this section is void. This duty requires that the landlord use "objectively reasonable efforts to re-lease the premises when the tenant vacates in breach of the lease." See Rem Servs., Inc. v. Zaheer (citing Austin Hill County Realty, Inc. v. Palisades Plaza, Inc. , 948 S.W.2d 293 (Tex. 1997) ; White v. Harrison , 390 S.W.3d 666 (Tex. App. 2012) ). But it's important to note that the tenant bears the burden of proving both that the landlord did not mitigate his damages and the amount by which the landlord could have mitigated his damages. This is likely a difficult burden. In Rem Servs. v. Zaheer , the court decided that the landlord did not breach his duty to mitigate even though he did not list the property for rent during the four months remaining on the lease. Disclaimer This was the only case and statutory law on point that I found; I may have missed some. If you are referencing a real lease, I recommend that you discuss this matter with a real estate lawyer licensed to practice law in Texas. | 3 |
If my spouse gets arrested for domestic violence but I do not press charges, will that still be on his record? | First time I've ever called the authorities on my husband for Domestic Violence . He was arrested, however, I didn't press any charges, will it still be on his record? | 3,456 | The victim of domestic violence is referred to as the complaining witness. Domestic violence arrests will result in a criminal investigation. It is not up to the complaining witness to determine if charges are brought against the one who was arrested - this is up to the prosecutor. Here is a good article at Findlaw that discusses the process. If the complaining witness recants, the prosecutor may decide to drop the charges. The prosecutor may, though, decide to continue the charges and prosecute the case. The complaining witness in recanting may face charges as well - for example, for making a false police report. If the prosecutor presses the case and your husband is convicted then, yes, it will be on his record. Seeking the advice of a New York attorney who specializes in these matters is the best course of action. EDIT: Here is additional information regarding New York Criminal History Records: New York State law does specify that, unless the court orders otherwise, arrest records are sealed when criminal actions are terminated in favor of the accused - dismissed, found not guilty, etc. This is spelled out in Criminal Procedure Law 160.50 . Arrest records are part of the public record until disposition of the case is completed. At New York State's Court web site , you can read about how to get criminal records of anyone - they are public record so anyone can make a request about anyone. There is a fee of $65. Records can be ordered online and the results can be emailed to you. Searches are processed by an exact match of name and date of birth. From their web site you will see that criminal cases transferred or removed to Family Court are not reported. Neither are records for people who had a single misdemeanor conviction over ten years ago or pending criminal cases categorized as Youthful Offender Eligible. Generally speaking, New York criminal cases are part of the public record and are available to anyone unless they meet certain criteria or have been sealed under New York State law. Note that sealing records doesn't mean the record goes away. It just means that the record is not available to the general public without a court order unsealing the record. Here is the link to on-line direct access to records requests: http://www.nycourts.gov/APPS/chrs/onlinedirectaccess.shtml | 31 |
If my spouse gets arrested for domestic violence but I do not press charges, will that still be on his record? | First time I've ever called the authorities on my husband for Domestic Violence . He was arrested, however, I didn't press any charges, will it still be on his record? | 3,459 | Yes he can still have a record if he is convicted and yes, they can still go forward if the victim asks to withdraw the complaint. The victim to a crime (any crime, DV especially) can be subpoenaed to testify even if they don't want to. And you're under oath in the event of a trial, subject to the penalties of perjury. You also cannot mislead the police or DA's investigators in their investigation. To this extent, the State takes the place of the victim in all criminal matters. That is why you see "State v. John Doe", not "Jane v. John Doe", in all criminal matters. This is a very typical question by women who are the victims of domestic abuse. They often want it to stop at the moment but then feel bad, or feel he will change, or feel guilty, so they try to "drop the charges" only to find out that they aren't the ones who've filed the charges in the first place. @Dave D is right in that you are merely the victim (complaining) witness. In some states, they will do as the victim asks of them if the batterer submits to anti-domestic violence/anger management counseling. In other states they move forward no matter what, and I have even seen them threaten a woman who said she wouldn't testify with false reporting . (This is an awful thing to put an already fragile, emotionally and physically abused women through, but it has happened). A battered woman does have the ability to drop any restraining order, but if he's arrested there is one in place as part of the terms of release anyway, and only a court can amend it. The state has a duty to protect the public (his future victims, as well as the current one) from criminal behavior by seeking a conviction if the facts justify it. Also, with the advent of the battered women's defense to homicide of their batterer, they often feel duty bound to pursue these cases. When a victim asks the case be dropped, it will almost always depend on the severity. If you had a tiny mark on your arm and called the police because you were scared then there is a chance they'd drop it. In cases of severe injury or Felony Domestic Violence, no way. | 20 |
If my spouse gets arrested for domestic violence but I do not press charges, will that still be on his record? | First time I've ever called the authorities on my husband for Domestic Violence . He was arrested, however, I didn't press any charges, will it still be on his record? | 3,491 | YES! Everything against you an be dug up nowadays no matter how long ago and even if charges were dismissed. I was falsely accused of DV by a former live-in girlfriend, the charges were dropped in a hearing, but a dozen years later a detective investigating me after defamation by an ex-step-daughter brought it up as a factor in perceptions of me. | 4 |
Recording a phone conversation with customer support/sales | I understand the law about private communications in person and over the phone not allowing recording. However, in cases where a consumer records a conversation between him and a company offering them service (e.g. Comcast Cable), and before the human conversation begins there is a recorded notification that the call will be recorded for quality assurance , doesn't that count as consent? If anything, it proves intention for the business to record the call! Thus, in a two-consent state such as California, if I were to record my call to Comcast, and that notice was heard over the phone, both parties (myself and the employee speaking with me) have consented by taking the call. Would this be legal then? | 3,568 | It depends, but a caller could certainly hit record when the computer answers and as soon as a person gets on the line say, "I am recording this call." In other words: "Hello this is Comcast, can I have your account number?" "I am recording this call my account number is blah blah." | 3 |
What stops you from invoking §19.6 if a police officer attempts to seize your mobile phone? | Section 19 of PACE (the Police and Criminal Evidence Act 1984 ) states: (3) The constable may seize anything which is on the premises if he has reasonable grounds for believing— (a) that it is evidence in relation to an offence which he is investigating or any other offence; and (b) that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed. It has been suggested by officers on YouTube videos that the person recording the video has evidence of a crime on their mobile, that they've recorded; thus they're seizing their phone under PACE. But section 19.6 states: (6) No power of seizure conferred on a constable under any enactment (including an enactment contained in an Act passed after this Act) is to be taken to authorise the seizure of an item which the constable exercising the power has reasonable grounds for believing to be subject to legal privilege. So my question is: what stops someone about to have their mobile seized from telling the police officer that there is legally privileged information on their phone? They could even keep an email from a solicitor on it, which would fulfil the requirement. Would this legally prevent them from seizing the phone? | 117 | I'm not going to comment on the specifics of this law; rather, I think this question shows a misconception of the way the legal system works in general. Here's the question: do you actually have "legally privileged" material on your phone? If not, what's keeping you from claiming that is that it's not true, and lying to a police officer is a bad idea. And just putting a letter from your lawyer on the phone doesn't mean you've established a legal privilege--attorney-client privilege is not a magic spell, it's a reasonable system of protection that only covers certain communications. The bottom line is: the statute in general, and that clause in particular, were included in the law to protect real, important, and substantial legal right. The courts interpret the law in light of that purpose. If the police officer finds a solution that protects your rights while still carrying out the purpose of the statute, the court will be unlikely to fault him or her. In this case, if you tell the officer that there is a letter from your attorney in a particular folder, the obvious solution is for the officer not to open that folder. Problem solved. In practice, in the United States at least, these cases are dealt with routinely; computers are seized, and attorneys and judges work together to ensure that privilege is protected while still allowing reasonable access to seized materials. I would imagine the same is true in the U.K. The bottom line is: the law is not a game, and technical "gotchas" are rarely effective. Common law systems allow judges enough leeway to avoid this sort of pointless technicality. | 5 |
What stops you from invoking §19.6 if a police officer attempts to seize your mobile phone? | Section 19 of PACE (the Police and Criminal Evidence Act 1984 ) states: (3) The constable may seize anything which is on the premises if he has reasonable grounds for believing— (a) that it is evidence in relation to an offence which he is investigating or any other offence; and (b) that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed. It has been suggested by officers on YouTube videos that the person recording the video has evidence of a crime on their mobile, that they've recorded; thus they're seizing their phone under PACE. But section 19.6 states: (6) No power of seizure conferred on a constable under any enactment (including an enactment contained in an Act passed after this Act) is to be taken to authorise the seizure of an item which the constable exercising the power has reasonable grounds for believing to be subject to legal privilege. So my question is: what stops someone about to have their mobile seized from telling the police officer that there is legally privileged information on their phone? They could even keep an email from a solicitor on it, which would fulfil the requirement. Would this legally prevent them from seizing the phone? | 3,562 | I am not very familiar with UK statutory law, however I read the the statute a bit differently. The operative terms are reasonable grounds for believing to be subject to legal privilege . Reasonable grounds does not mean that the perpetrator says there are privileged materials on the phone. It means independent grounds, like finding a letter with the letterhead of a lawyer; if a constable see's this letterhead and they are seizing all documents from a premises, that would need to be left behind. Even in the event the constable believes there are, for instance, emails that are privileged on the phone, but also has reasonable grounds to believe the phone contains crucial evidence, they can just not seize the privileged materials. So, sticking with the attorney-client privilege for the purposes of the answer (despite there being others), the constable would not be able to view those communications, but would be able to view, say photographs, if there was information that there were photographs of stolen goods or a drug lab on the phone. Seizure of a thing can occur without seizure of the entire thing. | 5 |
Is keeping an engagement ring theft? | Is keeping an engagement ring theft in New York City, NY, where he is the one who breaks the engagement, and no fault is claimed against her? | 3,558 | It's not theft, but the donee (recipient) generally is not entitled to keep the ring. A number of states - not all - have so-called "Heart Balm" Laws, which abolish the ability to sue for a breach of a promise to marry. New York State is one of them. However, this does not bar actions for recovery of a chattel, money, or securities transferred in contemplation of marriage - including wedding rings. Consider Mancuso v Russo , 132 AD2d 533 [2nd Dept 1987]. In this case, the plaintiff entered a claim to recover a gift of real property conditional upon subsequent marriage. The Court, and the appeals court, entered judgement in favor of the plaintiff. The relevant law is found in N.Y. CVR. LAW § 80-b: NY Code - Section 80-B: Nothing in this article contained shall be construed to bar a right of action for the recovery of a chattel, the return of money or securities, or the value thereof at the time of such transfer, or the rescission of a deed to real property when the sole consideration for the transfer of the chattel, money or securities or real property was a contemplated marriage which has not occurred, and the court may, if in its discretion justice so requires, (1) award the defendant a lien upon the chattel, securities or real property for monies expended in connection therewith or improvements made thereto, (2) deny judgment for the recovery of the chattel or securities or for rescission of the deed and award money damages in lieu thereof A search for Civil Rights Law § 80-b returns many more cases where claims for (primarily) engagement rings are disputed. | 8 |
Is perimeter search without a warrant ever legal? | Are perimeter searches without consent nor warrant ever legal? What if it's a motor vehicle / car? Is the situation different with a house? | 224 | Huge difference between a car and a house. For example, at least in Pennsylvania no warrant is required to search a vehicle on public roads . In other states there are so many easy pretexts that you practically have little protection from a full vehicle search (although the pretext will have to withstand strict scrutiny if evidence found in a search is used to charge you with a crime). Your house, on the other hand, still enjoys very strong fourth-amendment protections: One of my favorite U.S. Supreme Court cases on the subject is Florida v. Jardines , in which SCOTUS ruled that even approaching the front door with a drug-sniffing dog without a warrant constituted an illegal search. (The majority opinion is worth reading for its illumination of current law on this question.) | 5 |
Is perimeter search without a warrant ever legal? | Are perimeter searches without consent nor warrant ever legal? What if it's a motor vehicle / car? Is the situation different with a house? | 3,557 | Depends on what you mean by "perimeter search". Police can, for example, walk around the perimeter of a car or house if they have permission or the right to walk where they're walking (e.g, in your next-door neighbors' yard) If, while walking, they see evidence in your yard that you committed a crime, they can walk over and seize it (see http://www.olemiss.edu/depts/ncjrl/pdf/Law%20Enforcement%20Materials/Plain%20View%20Doctrine.pdf for more info on the plain view doctrine) If a K9 is lawfully walking with them, and the dog smells evidence of illegal activity on your property, the police can legally act on the dog's alert. | 1 |
How does a police officer / the state prove a particular breathalyzer reading was taken? | If a police officer takes a breathalyzer reading of someone, what kind of record proves to a court what the reading was? General US information and/or info about California are both appreciated. | 3,553 | Different states vary on all of this stuff but many times the roadside breathalyzer is given to establish probable cause to arrest a driver. After that the driver is given another test on a computer-connected breath tester at the station (or wherever). It's these big testers that are usually used as the evidence and are the ones which are at the center of controversy in various states. As @Dale M stated, for roadside tests the officer can write the results in a notebook, some breathalyzers have printers, and other are connected to a computer. Whatever the case, there is usually a process that officers go through to ensure this stuff is accurate and complete. A lot of it is departmental policy and would only be revealed if challenged in court or perhaps via an open data request. But again, this record is to show probable cause for the arrest and the trip to the bigger badder test which is fully computerized and documented and witnessed. (In at least one state (NC) you have the right to have a witness present when you are tested.) EDIT: Oh, and if your plan is to challenge probable cause because the record-keeping on the roadside breathalyzer is mediocre, the cop can cite all sorts of other probable cause, like he saw you swerving, you were slurring your speech, he smelled alcohol, you failed the in-car test, and you failed the roadside walking, touching, dancing, singing test. | 3 |
How does the statute of limitations on defamation work? | My understanding is that defamation has a very short window for a lawsuit, like one year. So suppose a libelous statement was published in a widely circulated journal, call it the New York Times, and the victim didn't see it when it first came out. Going back through old copies of the Times, the victim saw it a year and day later. Does that mean that the victim can no longer sue? Why would this be? Or put another way, what is the theory behind it? | 3,415 | Statutes of limitations (hereinafter "SOL") vary from jurisdiction-to-jurisdiction. If it is only one-year in New York (I've not confirmed this) that would not be surprising. SOLs exist for all civil matters and nearly all criminal matters. I'd just like to point out that your question is not really limited to defamation or to the time frame for which the specific SOL runs for libel/slander ... at least as I've read it. It seems you are asking the broader question pertaining to what the philosophical or practical purpose(s) for SOLs in general are, as well as what effect these limits can have on the ability of a would-be claimant/plaintiff to get relief through the courts. So, to answer whether a person who believes they've been defamed can still bring a cause of action after the SOL has passed: the short answer is no . But, that is only the short answer. SOL is an affirmative defense, meaning that it can only be asserted if it is pled in the answer to a complaint. So, if John Doe feels he's been defamed by a libelous statement in the Times, and he files suit 4 years after the statement was made (and the SOL is 1 year), the court will still accept the filing of the complaint and Times must still be served. You do not lose the right to file your claim, when the SOL has passed, which is a very common misconception of the law. And, Times must still file an Answer to avoid defaulting. However, in that answer Times (no doubt by and through qualified counsel) will most likely assert a variety of affirmative defenses pro forma , which will include the passage of SOL (the claim is stale). If, in fact, the SOL has passed and the affirmative defense is pled, the next thing the Times will do is file a motion to dismiss. The judge will view the complaint in a light most favorable to Doe, the plaintiff, which will lay out all the facts (including when the libelous statement was published). If the cause of action accrued (this just means when the injury was sustained) and the claim was not filed prior to the expiration of the SOL, Doe's case will be dismissed. If the Times does not assert SOL though, it is deemed to have been waived for that and any subsequent related proceedings. There are ways to toll (extend) the statute of limitations. There is a discovery rule (this does not mean Doe didn't read it until after the SOL, even though he was able to). It means that the SOL can be tolled in cases where one could not have discovered the tort occurred. In these instances, the SOL doesn't begin to run until the discovery was either made or should have been made. This is most typically seen in medical malpractice cases (e.g., a surgeon leaves a sponge or instrument in your abdomen, and after years of failed treatments for IBS your doc sends you for an x-ray and an MRI and it's discovered) or in asbestos cases (you don't know you breathed it until you have asbestosis) – those types of scenarios. In cases like that, the SOL begins to run when you find out the tort occurred. This has also been successful in recovered memory cases where childhood sexual abuse occurred but was suppressed. Incapacitation is another way the SOL can be tolled. So, in Doe's libel case, the SOL can be tolled if he is incapacitated (in a coma and didn't wake for 4 years, in a mental hospital in a break from reality for 5 years) – in such circumstances you can still file a claim and have it survive a motion to dismiss based on SOL once you are rehabilitated. Also, Absence due to military service is reason to toll in some jurisdictions. Lastly, (at least the last one I can recall) is that minors can often toll the SOL however long the statute is (say 1 year) after they turn 18. As for why there are SOLs: That is more public policy than anything else. It is one of the oldest rules of law known to modern man, dating back all the way to early Greek and Roman law. Statutes of limitations are a fundamental part of EU and US law, as well as most other modern legal systems. They function to prevent fraudulent and stale claims from arising after all evidence has been lost or after the facts have become dubious and unclear due to the progression of time, which can lead to lost or uncertain memories, death of witnesses (for each side), or disappearance/inability to locate witnesses. The policies behind SOLs are also for judicial economy and to protect defendants from having a never-ending potential suit looming over them. Often, the seriousness of the crime or the tort, or some element of it, dictates the time frame of the SOL. It is a means to ensure that plaintiffs pursue their claims with reasonable diligence: I.e., if it matters to you, file it. Also, as I touched on above, time disadvantages defendants. Plaintiffs are the "injured" party, so they tend to retain evidence much longer than a defendant, who might not even realize he has done wrong – especially in civil matters. So, in a libel case, the whole basis of the claim is the irreparable damage to your reputation. If more than a year has passed and you didn't know about it, one could assume the damage never rose to the level of having sufficed to make a valid claim in the first place. That is why they run fast in those cases. They run fast in medical malpractice claims too, but this is a result of tort reform – the public policy that litigation against doctors/hospitals causes increased health care costs for everyone. So, policy suggests it's best for society to dispose of these claims quickly (not so much if you're the plaintiff). Whereas most regular negligence claims can have SOLs as long as six years in some jurisdictions where I have practiced. So there are clearly policy determinations going into these legislative acts. The Golden Rule of Law that I tell all of my clients is this: If you think you have a claim, talk to a lawyer right away, because if you don't you can lose the right to pursue relief, much, much quicker than one may ever imagine! I know this is a long answer, but I get asked this (type) of question all the time. Plaintiffs feel the SOLs run too fast, while Defendants cannot believe they can still be on the hook! | 6 |
How does the statute of limitations on defamation work? | My understanding is that defamation has a very short window for a lawsuit, like one year. So suppose a libelous statement was published in a widely circulated journal, call it the New York Times, and the victim didn't see it when it first came out. Going back through old copies of the Times, the victim saw it a year and day later. Does that mean that the victim can no longer sue? Why would this be? Or put another way, what is the theory behind it? | 3,407 | I'm not going to speculate as to what sort of political sausage making leads to any specific statutory duration, but one key requirement of a libel tort is "injury". If you can't show an injury (damaged sales, lost job or inability to gain work, social shunning, or extensive effort to deal with press) then you don't have a libel case. See item 4 If you don't know you were injured after a set period, how could you show an injury? | 1 |
Is there a law in Arkansas requiring foster children be adopted together, rather than individually? | I am currently a foster parent in Arkansas. One foster child lives with me, and the other three live with other foster parents. We're not sure yet, but it looks like the parents' rights will be terminated soon. My wife and I have expressed interest in adopting the child currently in our care, but we have recently been told that there is a "new law" in Arkansas which requires that foster children be adopted with their siblings. We were told (by a social worker from the state) that first the children would be available to residents in the county, and if nobody adopted the children from the county after a period of time, they would subsequently open the adoption up to the whole state, followed by the whole country. I understand the desire to keep the children together if at all possible . However in this case, three out of the four children have special needs which make taking care of them particularly difficult. I cannot imagine that anybody will take on the task of adopting all four of them (maybe I'm completely wrong - I hope I am). But when I asked what would happen after, say, several years with no adoption prospects, I was told that, no, the children would still ONLY be allowed to be adopted together. Is this true? Would the state seriously deny adoption in all cases, even after the children had been up for adoption for several years? It seems in this particular case that it may do more harm to the children than good - e.g. the child which we are fostering (and who we are interested in adopting) is very young, and at this point, we have had the child for nearly half of his life; he barely even remembers his parents/siblings. Does anybody know what specific law this person was referring to? I am curious to look it up myself and see if it is as absolute as this person was telling me. I would challenge this person myself, but I don't want to appear rude by challenging them outright without having researched it myself. | 3,546 | First off: if someone in DHS is telling you this, your first, best, and really only option is to get advice from an attorney specializing in family law. Regardless of what we tell you here, without representation you will have a hard time with officials who believe otherwise. That said: I don't find anything exactly matching what you describe. The Uniform Adoption Code (AR Code § 9-9-200 (2014)) does not specifically address sibling groups at all. Adoptive parents do have rights to streamlined adoption of a sibling of a child they already adopted, under the Streamlined Adoption act (AR Code § 9-9-701 (2014)). In the section related to Placement of Minors ( AR Code § 9-28-108 (2014) ), however, is likely what the case worker was describing. Subsection (b) (2) reads, in part: (2) When it is in the best interest of each of the juveniles, the
department shall attempt to place: (A) A sibling group together while they are in foster care and adoptive placement This is discussing foster care and adoptive placement, of course. I think the key wording is When it is in the best interest of each of the juveniles ; that would be your argument (that it is not in their best interest). I see a 2011 case , for example, discussing a sibling group of four children not entirely different from yours; while there are not children with special needs, there is a child with major behavioral issues, and one of the (three) foster parents is considering adopting one of the children and "would be open" to considering others, but clearly isn't expecting to be required to do so. Note: I am not a lawyer, and particularly not one specialized in family law This is based on my reading of the 2014 Arkansas code. That is almost 2 years old. That said, I don't see any news articles or similar discussing limitations in sibling group placement in Arkansas recently, which is the sort of thing that usually would get attention. That said, this has also been something that HHS has been trying to encourage states to push for – more sibling group placement and awareness of sibling group issues – so it's entirely possible something could have changed. | 3 |
Does fair housing law prevent landlords from making deals? | I've had a couple of negotiation dealings with various corporate landlords (for residential housing) in a couple of states, and, basically, every time I would try to negotiate any sort of a remotely creative request, they would refuse to accommodate any such request, covering it up as being prohibited from doing so by the Fair Housing laws. For example, me making a very economically reasonable offer for both parties to sign a limited month-to-month lease on a brand new and half-empty student housing apartment complex in Indiana after the school year has already started (since they wouldn't be able to fill it up for another year anyways), but they outright refused to even consider it. Instead, couldn't they simply accept any such offers from anyone who proposed it? As long as conditions are the same, e.g. they're still heavily under-occupied? Or do the fair housing laws mandate heavy documenting etc that really does make any such deals impractical? As a tenant, in which ways do the federal and state fair housing laws diminish my negotiating power and my ability to negotiate some kind of a custom deal from a corporately-staffed landlord? Or do the corporate landlords simply use such laws as a pretext for making the tenant submit? | 533 | Put simply: the fair housing laws are there to protect the rights of tenants and potential tenants. They limit your negotiating power to the extent you are trying to do something that the law is designed to prevent. There are a lot of laws that could be described as "fair housing" laws, so it's hard to be more specific than that in response to this very vague question. For example: most jurisdictions have laws requiring notice before eviction and prohibiting or limiting self-help evictions--i.e., the landlord changing the locks and throwing your stuff on the street. If you try to make a "creative" deal that lets the landlord evict tenants on 24 hours' notice, they will refuse. If you offer to get them all-white tenants, or tell them they don't need to finish the ramp because you won't be renting to any disabled people, they will refuse. Without more details about the "creative" solutions you were suggesting or what laws specifically prohibited them, it's hard to give a more specific answer. | 2 |
Spam email blockers where recipient may never receive an important message | In the hope of reducing my email burden, I have been considering something like the service here . The process works as follows: Person A sends email to Person B Person A receives automated message saying something along the lines of "Your email has not been delivered yet. Please verify your email address by confirming on the below link to prove your message is now spam" Person A completes the request and receives an email saying that their address has now been added as a recognised address for future communication with the address they were writing to Person B receives the message My question is, what would the legal standing be in cases where the sender itself may be an automated mailing address or the person does not verify their email address? In such scenarios, the intended recipient would never read the message and would be unable to respond. I am thinking of examples such as: Legal letter that requires responses within fixed a fixed time period Important governmental message | 1,752 | Legal methods of service in most jurisdictions are: hand delivery to the person hand delivery to the person's last known address post to the person's last known address other methods of service where there is evidence of receipt. This can all get very technical: for example, a document placed under a company's door is not legally served unless it is entirely under the door or a document served on a Queensland council's offices was not served because it was not served on the CEO . On the other hand, service by Facebook has been held to be legal service because there was evidence the account had been accessed and the document opened. Email is generally not accepted as legal service without evidence of receipt; this is partly traditional and partly because the way email operates, although generally very reliable, is not foolproof. Technically it is possible for an email to be undeliverable. When that happens the last server sends a response saying this, however, this is also an email and may not itself be delivered. From what you describe, unless and until the sender gets evidence that the email has reached your account, legally, it hasn't. Of course, that doesn't help you much when the lights go off because you didn't pay your electricity bill. | 1 |
Spam email blockers where recipient may never receive an important message | In the hope of reducing my email burden, I have been considering something like the service here . The process works as follows: Person A sends email to Person B Person A receives automated message saying something along the lines of "Your email has not been delivered yet. Please verify your email address by confirming on the below link to prove your message is now spam" Person A completes the request and receives an email saying that their address has now been added as a recognised address for future communication with the address they were writing to Person B receives the message My question is, what would the legal standing be in cases where the sender itself may be an automated mailing address or the person does not verify their email address? In such scenarios, the intended recipient would never read the message and would be unable to respond. I am thinking of examples such as: Legal letter that requires responses within fixed a fixed time period Important governmental message | 1,753 | I'm going to assume that, in your examples where legal documents and governmental documents are being served via email, you have provided your email to the sender with the understanding that you may receive email from them. In general, unless the form and method of communication is regulated by a specific law, a court will consider whether or not a reasonable effort has been made. This may, for instance, consider the importance of the message, and other channels of communication that have been made available to the sender. If Person B provided no other method of communication, and the email was one at which they have said that they would be contactable, then it is unlikely that a court would find an attempt, even without verifying their email address, to be unsatisfactory. Compare this with another situation where Person B has provided their email address, postal address, and phone number. While an email might suffice for informational communication, something that requires action would likely require a more exhaustive attempt. It is likely to be that, if email is offered as a medium for contract offer and acceptance, it occurs when a communication is sent, rather than received. This is consistent with the formation of contracts via post . However , if email is not offered as a medium for contract acceptance, then acceptance occurs when the email is brought to the recipient's attention, rather than when it is sent. This is a largely untested area of law, with few cases to create precedent. Some jurisdictions have laws that make this explicit. In short: If service of a document is expected by email, service is considered to occur and be received when the email is sent , regardless of when it is actually received. Otherwise, it is considered to be served when it is brought to the recipient's attention. | 0 |
(US) Under what circumstances can a person be forced to enter a facility for having a mental illness? | Though this question would be great to know for various legal systems, I'm tagging this with united-states since it will likely be complicated enough with just a single country being considered. When can someone be legally required to enter a facility because of their mental illness? Are there particular diagnoses that would be enough? Would they have to commit a crime first? Could a doctor require it of them? | 3,538 | The primary reason for involuntary commitment is that a person poses a threat to themselves or others . This is usually intentionally broad, but can be taken to mean suicidal, delusional or homicidal tendencies, or other personality disorders that make a person a threat. There are usually provisions for holding a person for a limited period of time in emergency situations - for example, if they have recently attempted to commit suicide. Each State will have different standards required to have a person involuntarily committed beyond this emergency period. However, in general, if a person is a danger to themselves or others unable to provide for themselves, and will continue to be without assistance, then they will meet the criteria for involuntary commitment. This chart has some elaborated and detailed information, state-by-state. | 6 |
Does SB-1341 prohibit educational research entirely? | The text of SB-1341 bill (just introduce to the US Senate) is available here . Summary As far as I understand it, if this bill were to pass, researchers would be unable to connect student-level data to any other outcomes (e.g., academic, social, etc.). Student-level data can be test scores and survey data about any number of topics (e.g., learning strategies, student mindsets, etc.). The bill would also prohibit collecting video or audio data, which can be helpful for identifying important aspects of teaching behaviors, student-teacher interactions, student interactions with peers in small group learning formats, and so on. It also appears to restrict research based on standardized test results. Basically, the bill seeks to severely restrict educational research. My question: Would this bill prohibit educational research entirely? | 3,537 | From my reading of the bill, and the manner in which it would amend the Family Educational Rights and Privacy Act, the changes do not prevent educational research, but rather, ensures that constraints are in place to prevent the identification of individual students as a result of that research. It also requires a student's parents to consent to such research and/or video monitoring. The data is required to be aggregated prior to any kind of public release, and this is already common practice in most research programs. | 4 |
Putting farm you do not own into a living trust | Here is the deal: Owner Adam of a farm gives the farm in 2003ish to son-in-law Hank via quit claim deed. Owner Adam becomes just Adam . Adam continues to live on the farm. New owner Hank doesn't record the deed with the county, but pays property taxes henceforth. Fast Forward to 2014. Subject Tango (Son of Hank) moves into farm. Tango apparently has a motive to acquire the farm and Adam (now 99 years old) decides they want Tango to have the farm. Tango brings in an attorney and the farm is put into living trust without Hanks knowledge or consent. After Hank finds out, he believes that since Adam signed the quit claim deed they have no basis to put it into the living trust and the farm is still his. Does Hank have the power to dispute the farm being in the living trust? Can there be consequences for the attorney who put the farm into the trust despite knowing there was a quit claim deed? Is the new quit claim deed inside the trust worthless or is the quit claim deed from circa 2003 worthless? Thank you for any insight or information/experience you have. | 1,662 | There is a legal term for exactly what you describe: "a real mess". Have a look at http://wiki.lawdepot.com/wiki/Quitclaim_Deed_FAQ_-_United_States#Property_Transfers Does Hank have the power to dispute the farm being in the living trust? Yes, anyone can dispute anything they like, however, it will almost certainly end in court and his prospects of success are OK at best. Can there be consequences for the attorney who put the farm into the trust despite knowing there was a quit claim deed? This rather begs the question: was there a quit claim deed? That is, I am not suggesting that there isn't a piece of paper so described but is it actually what it says it is at law? Given that the answer to these questions is ambiguous; it would be difficult to state that the attorney has done anything that would be actionable. Is the new quit claim deed inside the trust worthless or is the quit claim deed from circa 2003 worthless? If they are valid then all they can do is transfer whatever interest Adam had in the land to Hank and Tango respectively. If the 2003 deed is valid then Hank owns what Adam owned and all the new deed can do is transfer whatever rights remain to him (for example, a right to live there for the rest of his life). It is important to remember that a quit claim deed does not make any claim that Adam has title to the land - I could give you a quit claim deed over it knowing that I really do not have an interest in it. The Land Mines Here are some of the legal issues that I can see Registration with the country appears to be a prerequisite of a valid quitclaim deed A quitclaim deed can only transfer whatever ownership Adam had in the land - it doesn't mean that other people (e.g. Tango) don't also have a claim Did Hank/Tango use "undue influence" to induce Adam to sign the quitclaim deed? Did Hank/Tango give "valuable consideration" to Adam? Did Adam intend that the documents he signed would be legally binding? Did Adam at 87/99 years old respectively have legal capacity to sign the deeds? Your friend is going to need professional legal advice and needs to seriously consider the consequences to the family of initiating legal action - no matter who wins; relationships will be changed. | 1 |
Putting farm you do not own into a living trust | Here is the deal: Owner Adam of a farm gives the farm in 2003ish to son-in-law Hank via quit claim deed. Owner Adam becomes just Adam . Adam continues to live on the farm. New owner Hank doesn't record the deed with the county, but pays property taxes henceforth. Fast Forward to 2014. Subject Tango (Son of Hank) moves into farm. Tango apparently has a motive to acquire the farm and Adam (now 99 years old) decides they want Tango to have the farm. Tango brings in an attorney and the farm is put into living trust without Hanks knowledge or consent. After Hank finds out, he believes that since Adam signed the quit claim deed they have no basis to put it into the living trust and the farm is still his. Does Hank have the power to dispute the farm being in the living trust? Can there be consequences for the attorney who put the farm into the trust despite knowing there was a quit claim deed? Is the new quit claim deed inside the trust worthless or is the quit claim deed from circa 2003 worthless? Thank you for any insight or information/experience you have. | 1,663 | Short Answer The property belongs to the first to record their deed. In this case, the trust. You didn't specify this in the question. But I assume the deed was recorded first by the trust because they had an attorney do it. Explanation If you possess a deed, you must record it for it to take effect. The reason for this is to prevent exactly the situation you describe from "clouding" the title. A deed is generally not a deed unless and until it's recorded. Reference Read this link . There, it says: ...if your deed is not recorded, there is nothing in the public record to stop the seller from conveying the property to another person. Disclaimer I am not an attorney. So don't follow my advice. Or any advice from a stranger on the internet. Hire a real attorney to handle your legal matters and treat this web site and my answer just like it came from one of your drunk friends at a party. | 1 |
Why is it legal to give away for free a physical copy of copyrighted material that you bought, but not a digital copy? | After posting this question , another one, more obvious came to mind. If the "first sale doctrine" is a widespread law, and allows someone to give their whole collection of VHS or DVDs or vinyls for free, then why is this rule not applying when it comes to a digital copy? If the first sale doctrine rule applied, then someone who legally purchased thousands of albums and movies digitally should be able to give these files for free to whoever they want. | 3,517 | A frequent distinction between the two situations is that usually, you buy the actual physical thing (DVD, VHS, CD, book, etc.), but for a purely digital asset, you may be only buying a restricted licence to the asset (on iTunes , for example). In the case where you did buy the digital asset (not simply a restricted licence to it), another difference is that the transfer of a physical item does not implicate the reproduction right 1 that is given exclusively to copyright owners. However, transfer of a digital asset often does implicate that reproduction right. See Capitol Records, LLC v. ReDigi Inc. : It is also undisputed that
Capitol did not approve the reproduction or
distribution of its copyrighted recordings on
ReDigi’s website. Thus, if digital music files
are “reproduce[d]” and “distribute[d]” on
ReDigi’s website within the meaning of the
Copyright Act, Capitol’s copyrights have
been infringed. It is a different situation if you transfer the actual medium onto which you downloaded the digital content ( ibid. ): Section 109(a) still
protects a lawful owner’s sale of her
“particular” phonorecord, be it a computer
hard disk, iPod, or other memory device
onto which the file was originally
downloaded. Notes 1. 17 USC §106 (1) " the owner of copyright under this title has the exclusive rights to [...] reproduce the copyrighted work... " This answer assumes US jurisdiction, but Canada's Copyright Act is fairly similar to 17 USC and similar holdings have been made in Canada. | 4 |
Why is it legal to give away for free a physical copy of copyrighted material that you bought, but not a digital copy? | After posting this question , another one, more obvious came to mind. If the "first sale doctrine" is a widespread law, and allows someone to give their whole collection of VHS or DVDs or vinyls for free, then why is this rule not applying when it comes to a digital copy? If the first sale doctrine rule applied, then someone who legally purchased thousands of albums and movies digitally should be able to give these files for free to whoever they want. | 3,516 | The first sale doctrine only applies to materials you own . If you bought and own the digital copy you can give it away or sell it provided you delete your copy - remember copyright prohibits making copies. However, many works, particularly digital works are licensed, not sold. If you have possession through a license then you do not own the item and the first sale doctrine does not apply. | 1 |
Is it legal to buy second-hand vinyls? | I live in a town that has lots of second-hand stores that sell second-hand vinyl records, tapes, etc, for incredibly low prices.
I recently bought the soundtrack from A Clockwork Orange for 1 dollar on a vinyl record.
I believe the right holders will never see the color of this money. The CD of the same soundtrack, brand new from a store, or as a digital download, costs between 15 and 80 dollars. It seems obvious that anyone in their right mind would buy a vinyl for 1$, rather than a 15$ copy considering the price difference.
But does it break a law to do so? | 3,493 | It is legal Because of the first sale doctrine a person may freely sell a copy that they legitimately own. Copyright preserves the owner's right to make copies - Copy-right; once they have made (or authorised) a copy then the physical embodiment of that copy (record, CD, DVD, book etc.) is personal property and can be bought and sold like any other piece of personal property. The prohibition on copying its contents remains. | 27 |
Is it legal to buy second-hand vinyls? | I live in a town that has lots of second-hand stores that sell second-hand vinyl records, tapes, etc, for incredibly low prices.
I recently bought the soundtrack from A Clockwork Orange for 1 dollar on a vinyl record.
I believe the right holders will never see the color of this money. The CD of the same soundtrack, brand new from a store, or as a digital download, costs between 15 and 80 dollars. It seems obvious that anyone in their right mind would buy a vinyl for 1$, rather than a 15$ copy considering the price difference.
But does it break a law to do so? | 3,514 | After referring to Dale's fine answer, something about licenses and copying: You may have purchased an item with a license that allowed certain copies to be made. If you sell the item, the license now applies to the new owner. So unless the license says that you can keep copies even after a sale (which is unlikely with an item that is sold for profit), you will have to either destroy all copies made or hand them over to the new owner. You have no right to those copies anymore. Also, if you agreed to license terms, then the new owner will have to agree to the exact same license terms. You can't circumvent licensing conditions by doing a resale. Basically, after X used the item for some time and then sells it to Y, the result should be exactly the same as if Y had bought the item in the first place. To those who think it is horrible that the copyright owner might not get paid: When I buy anything, I look for value for money. The "value" includes my ability to recover some money by selling the item used. If I couldn't do that, the item would be worth less to me in the first place, and I wouln't buy it for that price. | 6 |
What, if any, consequences exist in practice for "purchase required" sweepstakes & drawings? | I frequently see promotions like the following: "If [and only if] you make a purchase or donation, you will be entered into a drawing to win X." Larger and more conservative corporate sponsors of such drawings often have fine print saying "No purchase necessary, for official rules that include an alternative method of entry click here." This leads me to think that alternative methods of entry are required and that there are rules about requiring purchase or donation in order to be entered (and they probably fall under "illegal lottery" rules). However, I also commonly see examples where there are no alternative methods of entry (e.g. no official rules, short official rules that don't include it, official rules that link to a 404 Page Not Found for alternative method of entry, or alternative method of entry pages that don't allow you to enter the drawing being advertised as tied to the purchase/donation). From the perspective of a potential offerer of such promotions, I can see why there's clear incentive to simplify and only offer an actual chance to win to anybody who's doing the requested action. From the consumer perspective, I don't see how any individual would have standing or individual damages that would motivate or permit anybody to do anything about it. Individuals/consumers also don't have places to report such observations (do they?), and any state or federal agencies would find even giveaways worth a few thousand dollars not worth doing anything about. Most prizes are worth a lot less; are there official thresholds where the rules do/don't apply? As described above, incentives seem aligned to permit organizations to advertise publicly even if some percentage of observers will notice potential violations of rules/laws. What, if any, practical consequences could (or recently have) come to organizations for offering such an incentive? Assume US law; if states matter try NJ, PA, NY, and/or CA and/or assume Web-based promotions, according to what's most convenient for you to answer. | 3,512 | In California, you are correct that this is an illegal lottery if you require that customers to purchase something in order to qualify for the drawing. The elements of a lottery are: a prize, distributed by chance, with consideration required to be eligible for the prize (e.g. "you must make a purchase to be eligible"). If the store would actually let someone enter without a purchase but represents that paying is necessary or helpful, or treats people who
paid differently than those who didn't, it isn't a lottery, but is an illegal sweepstakes ( source ). Running a lottery in California, with the exception of chartable bingo, charitable raffles, and the official state lottery, is a crime. So is running an illegal sweepstakes. It can be reported to the police; the entity with standing to bring a case is the People of the State of California. As for lawsuits, it is possible that someone who paid to enter could sue under section 17200 of the Business and Professions Code, which allows those directly harmed by unlawful business practices to sue. A case before a California appellate court found that someone who paid to enter an illegal lottery could sue a payment processor who had actual knowledge that the site was a lottery; I can't find the ultimate result of the lawsuit (and the appeal doesn't cover the website itself), but it at least strongly suggests that someone who paid to enter can have standing to bring a lawsuit. | 1 |
If elected officials are exempt from CRA Title VII, what protects their civil rights? | According to the answers to Are county clerks exempt from Title VII of the Civil Rights Act of 1964? , elected officials of pretty much any sort are exempted from the protections offered citizens under Title VII. But it seems that without this protection, municipalities could enact laws such as "no Muslim or person with a physical or mental disability may hold an elected position." Something clearly protects this from happening. Yes, it is a violation of the constitution, but from my understanding laws are what establish protections against constitutional violations. | 3,467 | The protection lies in the fact that these sorts of restrictions are expressed in state laws, and states are Constitutionally forbidden from denying to any citizen the equal protection of the law, or from interfering with religion. The First Amendment, as applied to the states through the Fourteenth Amendment, forbids states from making any law impeding free exercise of religion, or having the effect of establishing a state religion. This means that any law that forbids people of any religious denomination (including atheists) from holding any office (elected or not) under any level of government is unconstitutional. See Torcaso v. Watkins . Moreover, Title VII's protected classes are also (with the exception of sex) suspect classes under the Equal Protection Clause. A state or local government may not pass a law discriminating against a suspect class unless it is a narrowly tailored law which is the least intrusive way to achieve a compelling state interest. In practice, that means a state can't pass a law discriminating on the grounds of national origin, race, or religion. Sex is a quasi-suspect class; government discrimination on the grounds of sex must further an important state interest in a way reasonably related to that interest; again, in practice this will tend to rule out laws saying "no women can be elected to this post." The Americans with Disabilities Act actually does not exclude elected officials. It defines "employee" as "an individual employed by an employer." The Equal Pay Act doesn't apply to elected officials, but again, sex is a quasi-suspect class. The Age Discrimination in Employment Act also excludes elected officials, and this is the one case where a state really could discriminate -- the applicable test is whether the law is rationally related to a legitimate state interest, which is not an especially high bar. | 5 |
If elected officials are exempt from CRA Title VII, what protects their civil rights? | According to the answers to Are county clerks exempt from Title VII of the Civil Rights Act of 1964? , elected officials of pretty much any sort are exempted from the protections offered citizens under Title VII. But it seems that without this protection, municipalities could enact laws such as "no Muslim or person with a physical or mental disability may hold an elected position." Something clearly protects this from happening. Yes, it is a violation of the constitution, but from my understanding laws are what establish protections against constitutional violations. | 3,466 | Preventing Constitutional violations is not solely the province of the Legislative body; it is the purpose of the Judicial body. No law is necessary to protect a right that is ensconced in the Constitution; the Constitution is that law: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land The relevant concept is that of Judicial Review , and has been a cornerstone of American jurisprudence since nearly the beginning (in 1796, during the Jay court, and again in 1803 in the famous Marbury vs. Madison ). Many Supreme Court cases depend on this; any time the Court strikes down a law, this is what they're doing. Some civil rights are protected by the Constitution itself, or by its Amendments; the 14th amendment, for example, would prohibit a state from passing such a law as above. Congress has the power to enforce this prohibition, per the 5th section of the amendment: Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. But that's actually granting Congress that power (since the 10th amendment otherwise limits the power of Congress). Even if Congress does not exercise that power, nonetheless any state that passes a law contrary to this Amendment (or any other) would find that law subject to be struck down by the Courts under judicial review. Of course, the actions of the Court are the actions of nine men and women, and it is certainly not guaranteed that they will act in a correct manner at any time; referring to the comment about the internment of Japanese citizens. In the specific case noted - denying Muslims the right to hold office - this would be held up based on First Amendment rights as well as Fourteenth; Torcaso v Watkins supports that (which struck down a prohibition against atheists holding office, but the reasoning would be the same). As far as mentally impaired individuals, many states do prohibit them from holding office. I wouldn't be surprised to find, in the (probably not near) future, that this is eventually struck down as well. | 3 |
Are county clerks exempt from Title VII of the Civil Rights Act of 1964? | Under the Civil Rights Act of 1964 Title VII, employees are offered certain protections under the law. However, section f states that (f) The term “employee” means an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. Yet it also states the following: The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. So are county clerks protected under Title VII or are they exempt because the position is an elected position? | 3,458 | Elected officials are not "employees subject to the civil service laws" unless a state has made extremely odd decisions, and maybe not even then. The "civil service," as that term is used when talking about government employment, consists of at most those people who work for the government as a career. It generally actually means something even more restricted: civil servants are people protected from arbitrary action or political cronyism. For instance, the Labor Department's Wage and Hour division (interpreting the same type of language) defines it as follows ( 29 CFR 553.11 ): The term “civil service laws” refers to a personnel system established by law which is designed to protect employees from arbitrary action, personal favoritism, and political coercion, and which uses a competitive or merit examination process for selection and placement. Continued tenure of employment of employees under civil service, except for cause, is provided. Elected officials, in contrast, do not have an expectation of continued employment other than for cause -- they can be voted out for any reason whatsoever. | 7 |
Are county clerks exempt from Title VII of the Civil Rights Act of 1964? | Under the Civil Rights Act of 1964 Title VII, employees are offered certain protections under the law. However, section f states that (f) The term “employee” means an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. Yet it also states the following: The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. So are county clerks protected under Title VII or are they exempt because the position is an elected position? | 3,460 | Elected county clerks are exempt. Here is a dismissal of a county commissioner complaint by the EEOC stating the reason: Elected official are specifically excluded from coverage under Title VII | 3 |
Are county clerks exempt from Title VII of the Civil Rights Act of 1964? | Under the Civil Rights Act of 1964 Title VII, employees are offered certain protections under the law. However, section f states that (f) The term “employee” means an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. Yet it also states the following: The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. So are county clerks protected under Title VII or are they exempt because the position is an elected position? | 3,471 | County Clerks (this means the Clerk not a clerk working at the Clerk's office, which would be a civil service employee) are always either elected, or they are appointed by elected officials or governmental entities, so they are exempt. See italics portions of definition: The definition the term "employee" to mean: an individual employed by
an employer, except that the term "employee" shall not include any
person elected to public office in any State or political
subdivision of any State by the qualified voters thereof, or any
person chosen by such officer to be on such officer’s personal staff,
or an appointee on the policy making level or an immediate adviser
with respect to the exercise of the constitutional or legal powers of
the office. The exemption set forth in the preceding sentence shall not include
employees subject to the civil service laws of a State government,
governmental agency or political subdivision. With respect to
employment in a foreign country, such term includes an individual who
is a citizen of the United States. It doesn't mean they are not protected, it just means they can't file suit under Title VII, which is meant to protect actual employees, not elected or appointed political officials who are acting in political capacities. Such officials can still sue for civil rights violations if they occur during their term, under myriad other laws depending on who violates them and how it occurred and what right was violated. They continue to be protected under the Federal and State Constitutions as a whole. | 3 |
What liabilities do the police/CPS have if you are found innocent? | Being accused of a crime you did not commit is an expensive problem. The police may kick your door in and ransack your house looking for evidence. They may deprive you of your property (phones, computers, vehicles, etc.) for months or years. You may have to pay for legal representation. You might be locked up in remand for a very long time (UK justice is extremely slow). You may lose your job. In the event that you are eventually found innocent, what liabilities can you make claims against? Do the police have you pay to fix your front door? If they took a year to analyse a mobile phone, can you claim due to the excessive amount of time it took? What if the device is returned broken or wiped? If your legal team and expert witnesses cost you £1,000,000, can you recover some or all of that cost from the CPS? What if your job has been filled by someone else and you can't get it back? | 3,508 | Do the police have to pay to fix your front door? If they took a year to analyse a mobile phone, can you claim due to the excessive amount of time it took? What if the device is returned broken, or wiped? What court costs can you recover? Can you recover loss of income? You've asked a few questions; I'll attempt to deal with them all, and I'll refer to each item as I do so. Damage to property This could apply to damage to property (items 1 and 3, which are more or less the same thing). The answer? The police may pay damages. Here's a recent example from 2008 : Police in Britain paid out more than half a million pounds last year to repair doors, ceilings and even mantelpiece ornaments smashed in raids that were based on wrong information. ... The Home Office said that compensation policy was decided at force level but most police authorities draw tight legal lines round repayments. A spokesman for the Gwent force said: "The critical factor is simply whether forced entry is legal, proportionate and reasonable given the circumstances." Items seized as evidence In general, you are not entitled to compensation for an item that is seized for an extended duration of time (2). The Police and Criminal Evidence Act (1984) ("PACE") states : (1) Subject to subsection (4) below, anything which has been seized by a constable or taken away by a constable following a requirement made by virtue of section 19 or 20 above may be retained so long as is necessary in all the circumstances. (4) Nothing may be retained for either of the purposes mentioned in subsection (2)(a) above if a photograph or copy would be sufficient for that purpose. If it's just the data on your phone they want, then they would be required by PACE to copy it and then return the device. Legal costs A successful defendant (4) is entitled to compensation in some cases, including costs incurred for expert witnesses. Schedule 7, para. 3 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 inserts additional provisions to the Prosecution of Offences Act 1985: (3)Condition A is that the accused is an individual and the order is made under— (a)section 16(1), (b)section 16(3), or (c)section 16(4)(a)(ii) or (iii) or (d). (4)Condition B is that the accused is an individual and the legal costs were incurred in proceedings in a court below which were— (a)proceedings in a magistrates’ court, or (b)proceedings on an appeal to the Crown Court under section 108 of the Magistrates’ Courts Act 1980 (right of appeal against conviction or sentence). (5)Condition C is that the legal costs were incurred in proceedings in the Supreme Court. (10)In this section— “legal costs” means fees, charges, disbursements and other amounts payable in respect of advocacy services or litigation services including, in particular, expert witness costs; “advocacy services” means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right of audience in relation to any proceedings, or contemplated proceedings, to provide; “expert witness costs” means amounts payable in respect of the services of an expert witness, including amounts payable in connection with attendance by the witness at court or elsewhere; “litigation services” means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right to conduct litigation in relation to proceedings, or contemplated proceedings, to provide.” Basically, you can include the legal costs noted above : where the accused is an individual and the order is made under section 16(1), 16(3), or section 16(4)(a)(ii) or (iii) or (d) of the POA; where the accused is an individual and the legal costs were incurred in proceedings in a court below, which were either proceedings in a Magistrates Court, or proceedings on appeal to the Crown Court under Section 108 of the Magistrates' Court Act 1980 (right of appeal against conviction or sentence); or where the legal costs were incurred in proceedings in the Supreme Court; where the accused is an individual and the legal costs were incurred in relevant Crown court proceedings, as defined in POA s6A(11), and the Director of Legal Aid Casework has made a determination of financial ineligibility in relation to the accused and those proceedings (POA s16A(5A)). Compensation for loss of employment Loss of a job in and of itself is not generally grounds for compensation. What if you were arrested for some highly sought-after skill - say, computer vulnerability testing - and were acquitted by means of an affirmative defense? You might end up with a job that pays more . You are not entitled to any statutory relief. But, let's say it's something unflattering, and the police continued to broadcast your arrest and charges even though they were aware it was false. There's precedent for aggravated damages, as per Patel v Secretary of State for the Home Department [2015] EWCA Civ 645 . In this case, the Claimant was stopped and searched upon entry to the UK. After being denied entry, the Claimant appealed the decision... the primary judge found that the immigration officers had falsified information pertaining to the Claimant's suitability to enter. Although this was appealed, I haven't been able to find the subsequent ruling; it's possible it was settled outside of court. However, this shows that judgement can - and has - been made against a defendant who causes pecuniary loss through malicious and contumelious conduct. I think I've covered everything, but it's hard to be sure. Consider your question into several separate questions in future :) | 6 |
Legality of using data obtained by hacking to make a blog post | As a data scientist, based in the UK, I am thinking about downloading the recently leaked Ashley Madison data, producing some interesting statistics (none of them incriminating), and using them to write a data blog post or making a dashboard about them. I would make all text completely impartial towards Ashley Madison or the users, since I only care about the statistical insights that could be drawn from the data. What possible legal problems could I face? I'm guessing that the data is "owned" in the IP sense by Avid Life Media, but it's also very public. Many thanks. | 1,941 | These are some thoughts about the state of affairs in the US, I do not know how it works in the UK. In the US it seems to be a legal gray area. Gray enough that I do not think any lawyer could say for certain that the use of the data is legal. The data is stolen. If possessing stolen property is illegal then possessing this data is also likely illegal. Of course experts disagree, Stuart Karle, an adjunct media professor at Columbia University and former general counsel for the Wall Street Journal says: ... the documents have been published by the hackers, they are now public by virtue of being put on the Internet . But Barrett Brown was charged with trafficking in stolen authentication when he forwarded a link to some stolen emails. He signed a plea for acting as an accessory after the fact. He spent more than a year in jail while they sorted it out. In the US there is no law banning the download of hacked documents. In fact Bartnicki v. Vopper 532 US 514 (2001) stands for the rule that journalists can report on illegally obtained information. But contrast that with the Barret Brown prosecution! And decide where a data scientist fits. Also there is the question of whether an illegally recorded conversation is of the same "illegal" nature as hacked personal information. | 3 |
Legality of using data obtained by hacking to make a blog post | As a data scientist, based in the UK, I am thinking about downloading the recently leaked Ashley Madison data, producing some interesting statistics (none of them incriminating), and using them to write a data blog post or making a dashboard about them. I would make all text completely impartial towards Ashley Madison or the users, since I only care about the statistical insights that could be drawn from the data. What possible legal problems could I face? I'm guessing that the data is "owned" in the IP sense by Avid Life Media, but it's also very public. Many thanks. | 3,505 | In the UK the documents would be covered by Data Protection laws. If your report is using the data in a commercial context you would have to comply with those rules, and it is hard to see how you could since the subjects of the data have not given permission for you to use it. If you are an academic or hobbyist the only risk is being sued by the subjects of the data (the site users) if they feel that your analysis has in some way harmed them financially. | 2 |
Interpretation of content ownership/usage in service provider agreement | I'm interested in using Firebase . Their terms of service states in section 3.2 that: You hereby grant Company an irrevocable, non-exclusive, royalty-free, transferable license, with rights to sublicense, to use, reproduce, modify, display, perform and create derivative works of the Applications, the Content and the Brand Features and Marks for the sole purpose of allowing the Company to provide the Company Software and the Services to You. For me it is very important that the content I would put into my Firebase database would remain mine and that it would only be used by/accessible to those that I explicitly grant access. The license agreement says that I would grant Firebase the right to use the content (which is something I do not wish to agree to), but on the other hand it also says that Firebase is only granted to do so for the sole purpose of providing the service to me . I'm confused by this and would appreciate any help on interpreting what the agreement really says about the content I would store in/access through their service. Update I've asked for a clarification directly from Firebase. Their answer does not make things much more clear though: I would consult legal counsel to determine what effects this would have on your application, as we aren’t able to provide legal guidance specific to your product. That said, these types of terms are fairly standard across SaaS vendors. As far as I can tell they're essentially saying that I'll need legal guidance to determine what kind of rights Firebase are granted on my content as controlled by section 3.2. Are they allowed to do pretty much anything with my content after I've stored it inside a Firebase database? Could anyone give a definite answer to this? Or maybe it is impossible to give such an answer? (in which case it would effectively be impossible to agree to the license terms for anyone that cares about privacy and content protection rights!?) | 3,499 | As I suspected, a party to a contract isn't going to interpret it for you, as this could constitute inducement, misrepresentation, or form grounds for a claim of promissory estoppel. Let's look at the Terms, shall we? Section 3.2: You hereby grant Company an irrevocable, non-exclusive, royalty-free, transferable license, with rights to sublicense, to use, reproduce, modify, display, perform and create derivative works of the Applications, the Content and the Brand Features and Marks for the sole purpose of allowing the Company to provide the Company Software and the Services to You. You give the Company a license to your Applications, Content, Brand Features and Marks. (the "stuff") You can give others a license as well. You can't require the Company to pay royalties. The Company can transfer the license. This license allows sublicensing (this means the company can grant others a license), use, reproduction, modification, performance and the creation of derivative works of the stuff for the purpose of allowing the company to provide Company Software and Services to You, and for no other reason For me it is very important that the content I would put into my Firebase database would remain mine and that it would only be used by/accessible to those that I explicitly grant access. Well, let's look at section 3.1: As between the parties and except for the licenses granted by this Agreement, (a) You retain all right, title and interest, including all related intellectual property rights, in and to the Applications, the Content and the Brand Features and Marks and (b) Company retains all right, title, and interest, including all related intellectual property rights, in and to the Company Software. You keep the rights in and to the Applications, Content, Brand Features and Marks The Company keeps all rights in and to the Company Software You're also concerned about use - well, the reason they ask for permission to use it is to avoid a situation where you haven't given them permission to do so, and a Court determines that them "providing the Services to You" is a use . You'll tend to find these, or similar (or more or less favourable) terms on almost any service that allows the sharing or distribution of user uploaded content. | 2 |
In California, if a baseball lands in my yard, is it legally mine? | Say some neighborhood kid was playing baseball and accidentally hit the ball into my yard. Theoretically, if I own the house or my lease permits, I have the right to control access to my yard and, therefore, access to the ball, even if I don't own the ball. If someone retrieves the ball without my permission, they are trespassing. | 3,496 | This is a general common law answer; specifics in California may differ. Yes, they are committing the tort of trespass and you could sue them for whatever damage they did to your property; probably nothing. On the other hand, if you keep the ball, you are committing the tort of detinue (wrongful detention of another person's goods when the owner has requested their return) and they can sue you for whatever damage you have done to them; the cost of a new ball probably. TL;DR No, it isn't; give it back. | 30 |
Happy Birthday song lawsuit: grounds for retroactive class action lawsuit? | there. you may know about the lawsuit by a documentary filmmaker against Warner-Chappell for controlling the right to the Happy Birthday song. http://boingboing.net/2015/08/07/the-twisted-history-of-the-hap.html I don't know how this will turn out (and by the way IANAL). If the Court rules against Warner--Chappell (let's say they find that copyright control ended in 1998), would there be grounds for everybody who paid licensing fees during the intervening time to recover those amounts? (I'm assuming there's no deception or fraud on the part of Warner-Chappell). Would there be grounds to recover damages retroactively? Is a class action suit a viable mechanism to recover these amounts? I know this is all wild speculation, but I have always wondered whether there is legal risk in wrongfully keeping something under copyright. Thanks. | 1,724 | As Dale M. Suggests, the article did allude to refunding money retroactively. So somebody clearly is thinking about it. QUOTE: This would seem to be the end of the line for "Happy Birthday." The filmmaker should prevail; fees collected starting in 2009, within the statute of limitations at the time the suit was filed, should be refunded; and a clear future would be established for public-domain use. | 1 |
Do you need a business license(In California, USA) | I am curious if I need a business license or permit for an online Social media Startup company? I am located in California and applying for a LLC through LegalZoom and it asked me if I needed a business license for my LLC. | 3,354 | Cities in California and unincorporated areas may require their own licenses and different types of industries require additional licensing, such as a license to sell medical services, food and beverages, insurance, pharmaceuticals, etc. If your social media site does not exist for buying or selling anything that requires a special license then you probably do not need this license to operate your website. If your business model is to profit through third-party advertisements such as Google Adsense then you may be classified as a commissioned sales agent or a subcontractor and not have to register a company and apply for a business license. If you do decide to register an LLC then you probably do need to obtain a city business license. An LLC will offer you personal protection from liability, but a lawsuit can still get access to your personal bank account through a process known as "piercing the corporate veil." In order to avoid this, avoid commingling funds from your corporate account with your personal account. In other words, don't withdraw from your corporate account to pay your personal bills. If you do need to withdraw money from the corporate account then document it as either paying yourself a dividend or paying yourself salary. | 1 |
If a software concept is discussed on the job, does the software company own the concept? | A few years ago I worked for a software company and we discussed several hundred different ideas for software, but never did any kind of testing or prototyping, we simply discussed the ideas. In other words, there's no identifiable embodiment of any of the ideas. I left the company years ago and would like to build one of the ideas that we discussed while I worked there. Am I prohibited from building the idea on my own because the idea was conceived while I worked there? I'm sure I signed some kind of NDA when I was hired. | 3,481 | This is an Australian perspective; other jurisdictions will differ. Patent The only IP protection for ideas is if they are patented; embodying the ideas in a tangible form is a pre-requisite for acquiring a patent. You can check if this idea has been patented because if it has then it is a matter of public record. Confidential Information However, there is another method of protecting ideas; keeping them secret. It is highly likely that the information that you gained as an employee is confidential. You say you signed a non-disclosure agreement; you will be bound by whatever that says. Even if you hadn't, confidentiality is an implied term of any employment contract ; an explicit term can reduce its coverage or make explicit what is and is not confidential. For breach of confidence to be established: The information must be confidential (it probably is); The circumstances of the disclosure to you are such that you know or should know it is confidential (they probably were); Your disclosure of the information must be unauthorised (it probably is) and to the detriment of the company (if you make money off it then they could have and that is to their detriment) and you do not have a public interest defence (you don't). Remedies include: An injunction to restrain disclosure; An accounting of profits (i.e. what you make, they take); An order for delivery up or destruction; an order for seizing evidence. There is no statutory limit on how long you must maintain the confidence; presumably until disclosure will not cause detriment. Solutions Ask for authorisation: "Remember that idea we discussed years ago? If you are not doing anything with it do you mind if I have a go?" You may get a simple "Sure, go ahead." in which case document it (send them an email confirming your conversation) or you may get a "No" (that's the risk with this option) or you may get pages and pages of license agreement (deal with that on its merits). Do it anyway - they may not sue, if they do they will have a hard time proving that you are using their ideas in the absence of contemporaneous evidence. | 2 |
Could I medically or surgically modify my own child? | Keep in mind this is a hypothetical scenario. I was recently very surprised to find out that many males in the United States are circumcised shortly after birth. No one had ever told me (it's not a subject I've spoken at length with anyone about), and certainly no one asked my permission before the procedure was performed on me. And yet it happens all the time, probably still to this day. So this got me thinking, what are the legal limits to which a parent can physically modify a child? Could they turn a girl into a boy, or vice versa (I assume hormone therapy would work best when started at an early age)? Could they give them elf ears or vampire fangs? Could they replace all their limbs with state-of-the-art prostheses in an effort to create a Baby Robocop? As far as I know, all of these things can be legally done to oneself, but children aren't old enough to consent, and there are definitely cases where things are done to them against their consent by parents, with the law supporting the parents. Let's assume that any modification has no perceived detriment to the child (for instance, in the limb-chopping scenario, assume prosthesis are advanced enough to match the abilities of natural limbs). Also assume that the procedure is painless, performed by a certified medical professional, and does not impede the mental and physical development of the child. Are there any laws that specifically prevent these sorts of modifications? Or are there more general parenting laws that apply? | 3,468 | At least one court has found that unnecessary surgeries are child abuse. Quoting from Is Circumcision Legal? by Peter W Adler (I recommend this article to you, it goes into common law and Constitutional law around surgeries). I think that we should not be distracted by the definition of abuse adopted by the court (risk of death, impairment of function etc) because even with your caveats about wonderful bionic legs, the replacements are not members of the body. Arguably. A 2010 Tex as appellate case, Williamson v. State , confirms that any
unnecessary surgery on children constitutes statutory child abuse. The
Williamson court held a mother criminally liable for unnecessary
surgery that caused serious bodily injury to her son, defined in Texas
as “an injury that creates a substantial risk of death or that causes
death, serious permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.” A physician
testified that unnecessary surgery does not constitute reasonable
medical care. The court also found a scalpel to meet the
definition of a “deadly weapon” as it can cause death or serious
bodily injury. Circumcision, whether male or female, is thus criminal
child abuse. | 6 |
Can data from computer forensic investigation be denied as evidence? | 3 computers were sealed and taken from a person's apartment. Investigators invited him to unseal the PCs; the seals were intact and confirmed by owner and they started the cloning process. However, the hashes were just photographed by an expert without putting them into a document and giving it to the person who's being investigated, saying that they will invite him the next day to finish the paperwork. He wasn't invited, not even after 4 days, meaning that all devices remained unsealed all these days. Considering the above facts: Can evidence found by computer forensic expert be used in a court? Could a lawyer challenge this evidence in court given the procedure of investigation? Is there any applicable case law? Note: All hard-drives were cloned using a write-blocking device. Click this link to see what it looks like . Software that was/is used in investigations is FTK if I am not mistaken. | 1,537 | Short Answer Chain of custody is a common challenge to the admissibility and weight of evidence. Qualification This sounds like a real case. Not a hypothetical. The outcome can go either way. It sounds like it's heading for litigation. The result will depend on the facts and legal arguments. If this is meant to be a hypothetical there are too few facts described to be able to analyze it. I suggest you hire an attorney and forget about getting the question answered here. Generally speaking, it's impossible to prove a negative. So on that basis, proving they did not tamper with the data will be a challenge at best. Lawyers can always challenge evidence. And chain of custody is a common challenge to the admissibility and weight of evidence . | 7 |
Can data from computer forensic investigation be denied as evidence? | 3 computers were sealed and taken from a person's apartment. Investigators invited him to unseal the PCs; the seals were intact and confirmed by owner and they started the cloning process. However, the hashes were just photographed by an expert without putting them into a document and giving it to the person who's being investigated, saying that they will invite him the next day to finish the paperwork. He wasn't invited, not even after 4 days, meaning that all devices remained unsealed all these days. Considering the above facts: Can evidence found by computer forensic expert be used in a court? Could a lawyer challenge this evidence in court given the procedure of investigation? Is there any applicable case law? Note: All hard-drives were cloned using a write-blocking device. Click this link to see what it looks like . Software that was/is used in investigations is FTK if I am not mistaken. | 3,463 | Edit - this all assumes civil court, not criminal since the question does not mention cops. The problem you describe sounds procedural. It does not sound like any spoliation has occurred. Assuming you can get a hash match the fact the computers are "unsealed" for a period of time is not going to matter. But assuming you don't get a hash match, the evidence can still be admitted. The attorney will call the forensic expert who will lay the foundation for the evidence. Stating what it is and where it was found etc. On cross examination the other side can ask about the hash problem but if the expert can establish that the evidence as shown is accurate then the chain of custody might not carry much weight. In other words the evidence will be admitted, it's up to the parties to argue about how to weight it. It sounds like the concern is that the owner was not present when the hashes were calculated. I don't see what this gets you. It's rare for a party to hang around while forensic engineers do their work. As for whether he wrote down, copied and pasted, or photographed the hashes this doesn't get you much either. The hashes exist to confirm that the working copy is the same as the original forensic image. As I said at the beginning, matching hashes is all that is needed for verification and a photo can be used to support foundation. If something was promised but not given, the judge might order the thing, but even then what does it get the party here? All that will happen is you'll confirm that nothing was spoliated or that if it was then you can argue about weight. As for cases, those are going to be hard to find. It's rare that chain of custody impacts the outcome of a case. To the extent that electronic discovery makes it into an order or opinion it's usually the result of a sanctions motion. So start there. But even then the best facts can be found in the motions and pleadings which requires some time on PACER. If you are going to challenge, make sure the lawyer knows what he or she is doing. You don't want the George Zimmerman Twitter guy. | 1 |
What is this called? E.G: Competition buys product, breaks it, and asks for a return | Say I'm selling at a swap-meet. A person who, unbeknownst to me, is operating another store in the same area approaches my stall and purchases an item (specifically an old, but still functional laptop), then later demands a refund after removing the screen and hard drive claiming " you said this still worked, but there is no screen or drive. " Shortly after providing a picture taken before opening (featuring the device still intact) and then pointing to a plainly-written sign stating "No Refunds," the person proceeds to make a loud fuss in front of my stall for an hour or so. As another example: Say I'm selling something on ebay. Another store buys a $100 item and mutilates it upon receipt, then demands a refund claiming "not as described." I refuse the refund and receive a negative review. I'm tempted to call the behavior in either case "fraud & defamation of character," but I'm not sure if that applies here... | 3,450 | California recognizes the tort of disparagement - a false or misleading statement that (1) specifically refers to the plaintiff's product or business and (2) clearly derogates that product or business. Sue the first guy for this. A summons might shut him up and you can do this in small claims court. Here is a sort of intro published by the state of California. As for the eBay thing, it's eBay... you sort of ask for that kind of fraud and you could try to use the court but you probably weren't really damaged and you'll be wasting the court's time. Consider this information about as useful as something you might trade for a busted laptop at a swap shop. It's not advice and if it was it would be bad advice. Both wrongheaded and misdirected. | 1 |
Taking payments online via personal website | I'm very close to releasing a business website with my brother-in-law. It's a brewery business (based in the UK) and we'll be taking payments via a secure payment gateway, such as PayPal. As we'll be selling online, do I need to have anything in place before taking credit card payments? All the security side of things will be handled by a third party gateway. We won't be holding any sensitive customer data in our databases. Thanks in advance. | 3,445 | It's illegal in the United Kingdom to supply alcohol to people who are under 18. Your use of Paypal will assist here, as Paypal have a minimum age limit : A Special Note about Children: Children are not eligible to use PayPal Services and we ask that minors (persons under the age of 18) do not submit any personal information to us or use the PayPal Services. However, this does not appear to be sufficient to satisfy Section 146 of the Licensing Act , because you have to take all reasonable steps to establish the purchaser's age, and that means that you have to ask for evidence. Note the and at the end of 146(4)(a): Sale of alcohol to children Where a person is charged with an offence under this section by reason of his own conduct it is a defence that— (a) he believed that the individual was aged 18 or over, and (b) either— (i) he had taken all reasonable steps to establish the individual’s age, or (ii) nobody could reasonably have suspected from the individual’s appearance that he was aged under 18. For the purposes of subsection (4), a person is treated as having taken all reasonable steps to establish an individual’s age if— (a) he asked the individual for evidence of his age, and (b) the evidence would have convinced a reasonable person. To satisfy this requirement, I believe it will be necessary to ask the purchaser for evidence of age, since that is the reasonable step required by 146(5) and 146(4)(b)(ii) cannot apply to a website. If you were accepting payments yourself rather than relying on a third party, then evidence of a credit card would probably be sufficient. But a Paypal account can be linked to a debit card, and those are available to under-18s. Some jurisdictions abroad have a minimum age of 21 for the supply of alcohol, and you will need to decide how to deal with that. One way to do all of this might be to use the UK Government's driving licence service which allows holders of driving licences to freely generate and give you a code to check their driving licence. [Purchasers generate the code at that link; check it at another point ]. Most driving licence categories expire the day before the holder's 70th birthday, so you can work out how old they are. Once you have this proof of age, you could store it so the purchaser only has to go through the hoop once. A scan of photograph of a licence or passport would also suffice. As WBT has commented, you need the correct licences to supply alcohol in the first place, but you asked specifically about payments. | 2 |
GPL - Do I have to distribute the source of my changes? | I will be creating a piece of (probably) commercial closed source software. It will be a web game. I hope to use some software that is GPL licensed, like nodejs or express(js). If I make minor changes to these frameworks, mostly to change a small behaviour I do not like, do I have to publish that change? Also can I include unchanged software in my project? None of this is being distributed, it will only serve pages to clients. | 3,443 | If the software runs entirely on your server, it is not generally considered to be "distributed" (for GPL v2) and is certainly not "conveyed" (for GPL v3). That excuses you from all GPL requirements. There is a different license (the Affero GPL) which does apply to use on your own server communicating with others, but that was written precisely because the GPL does not apply. This is the interpretation adopted by the FSF, who wrote the GPL. See their answer to this question here . | 1 |
How do I find city ordinances online? | How would I be able to find city ordinances online for: Millbrook, AL 36054, USA ? | 3,361 | A Google search turned up this link: https://www.municode.com/library/al/millbrook/codes/code_of_ordinances | 6 |
How does "apparent authority" work for a company's directors? | An employee or agent of a company has apparent authority to transact on behalf of the company if his function or standing with the company will lead a reasonable person to believe that the company person has authority to transact, whether or not s/he actually has that authority. For instance, if a company made someone VP of Purchasing, one would reasonably believe that this person can purchase on behalf of the company. More to the point, if a Manager of Purchasing had the authority to purchase up to $1 million, and actually made a purchase of $2 million, in most cases the manager would have "apparent" (though not actual) authority to make the $2 million purchase. If one is a member of the company's Board of Directors, the term "ostensible authority" is used to describe apparent authority. How does this work, and does it differ in any way from "apparent authority." Put another way, what gives (or removes) "ostensible authority" from a board member to deal on behalf of the company. | 3,433 | They are the same thing. We turn then to the subject of apparent or, as it is sometimes called,
ostensible authority , essentially the legal wellspring from which,
absent actual authority... Greene drew the right to hold Hellman for
the acts of Driscoll. GREENE v. HELLMAN 51 N.Y.2d 197 (1980) apparent authority is dependent on verbal or other acts by a principal
which reasonably give an appearance of authority to conduct the
transaction | 3 |
How does "apparent authority" work for a company's directors? | An employee or agent of a company has apparent authority to transact on behalf of the company if his function or standing with the company will lead a reasonable person to believe that the company person has authority to transact, whether or not s/he actually has that authority. For instance, if a company made someone VP of Purchasing, one would reasonably believe that this person can purchase on behalf of the company. More to the point, if a Manager of Purchasing had the authority to purchase up to $1 million, and actually made a purchase of $2 million, in most cases the manager would have "apparent" (though not actual) authority to make the $2 million purchase. If one is a member of the company's Board of Directors, the term "ostensible authority" is used to describe apparent authority. How does this work, and does it differ in any way from "apparent authority." Put another way, what gives (or removes) "ostensible authority" from a board member to deal on behalf of the company. | 3,438 | As another answer has stated ostensible and apparent authority are the same thing. A director has ostensible authority to do anything the company is legally able to do by virtue of being a director - this is essentially what a director is . For a company to invalidate an action taken by the director they would need to demonstrate that the other party knew or should reasonably have known that the director did not have the authority. | 2 |
Who owns the the lake? | In the U.S. if I anchor my houseboat for an extended period in the middle of a large lake connected to a navigable waterway can the city or municipality bordering the lake charge me taxes? | 3,436 | Property tax? No. Every other tax, like sales tax or income tax if you get a job, yes. | 2 |
Use of logo, trademark and brand | Let's say X develops an app that tracks injuries of players who play in the NFL... Questions Can X legally name the app NFL Injury Tracker ? (...without infringing on any trademarks, etc.?) What restrictions would there be on X 's use of the NFL logo in the app's marketing materials? What if X uses a logo slightly resembling the NFL logo but is not the same as the NFL logo? | 3,423 | The NFL can prohibit X from using its trademarks, or markings that would be likely to confuse a reasonable person, in any of X's business marketing. The NFL's shield wordmark has USPTO registration number 4682232 (deep links aren't allowed, but their search engine is here .) The images you've added don't seem alike enough to be confusing to me (I don't think I'd be mistaking one for the other), but in a lot of settings the app name will have only text, not an image. Then you get at the trademark issue for the term "NFL" itself. NFL can trademark that three-letter sequence, and there are good reasons for them being able to keep control of that trademark to authenticate sourcing. For example, if I said "this hamburger is from McDonalds" you have certain expectations about it based on the brand, and McDonalds the company has a legally protected interest in preventing me from saying that if it wasn't true. I have no right to put that 9-letter sequence on my burger joint without a license from the corporate giant. Similarly, The NFL has a legally protected interest in preventing somebody from advertising or implying that an information source or the information contained therein is licensed and/or an official source of information, if that's not true. A reasonable person might expect that an information source about NFL player injuries, with "NFL" in its name, would be an official licensed source of that information; the real NFL can seek an injunction and/or penalties if that's not actually the case. "Pro Football Player Injury Tracker" might not carry the same expectation. At the bottom of NFL.com , they claim, emphasis added, that " NFL and the NFL shield design are registered trademarks of the National Football League." So they have put folks on notice they intend to defend that three-letter sequence as theirs, at least for all subjects related to professional American football. Sean Mullin says "The NFL is notorious for guarding its intellectual property rights to the full extent of the law." X should probably spend some time with an IP lawyer. If you're asking if it's possible for X to legally use the NFL's trademark, the short answer is yes . It is possible for X to license use of the trademark from the NFL so long as the NFL is willing to grant/sell the license on terms that X also agrees to. See this prequalification page linked to from this law firm's website , or click "Become a Licensee" here to see that in context. | 2 |
Use of logo, trademark and brand | Let's say X develops an app that tracks injuries of players who play in the NFL... Questions Can X legally name the app NFL Injury Tracker ? (...without infringing on any trademarks, etc.?) What restrictions would there be on X 's use of the NFL logo in the app's marketing materials? What if X uses a logo slightly resembling the NFL logo but is not the same as the NFL logo? | 3,432 | It seems to me that NFL Injury Tracker might fall under the same use as the Playboy case . The Court held that nominative use (a type of fair use for discussing
the product itself) is permitted where: The product or service can not be readily identified without using the
trademark (i.e. trademark is descriptive of a person, place, or
product attribute); Only so much of the mark may be used as is reasonably necessary for
identification (e.g. the words may be reasonably used but not the
specific font or logo); and The user does nothing to suggest sponsorship or endorsement by the
trademark holder - which applies even if the nominative use is
commercial. Here, the Ninth Circuit Court applied the nominative fair use test to
the defendant and concluded the Defendant’s use of these trademarked
items was permissible because there was no other practical way for the
Defendant to describe herself . If someone is tracking injuries in the NFL, I hope a court would find that there is no other practical way to describe the data source than to refer to the NFL. I would think that they should not use the logo at all as this fails the "only so much of the mark may be used" test. As for number three, confusion was addressed by another answer. | 2 |
When do I need a licence to play music in a public place and how do I get it? | I would like to know if restaurants, lounges, clubs and places like that need a licence to play music. I'm a developer and I would like to develop a solution that would allow them to play music in a convenient way, but I'm not sure if this should be considered as a "commercial use". I live in West Africa, but I would like to sell my software in other parts of the world if possible so I would like a solution that is rather generic. I can see that the prices for licences are quite high, so if I do need one, what solutions do I have? Do I need to purchase a licence for every single song, or is there any way to have a discount, a monthly fee or something like that? I'm pretty new to all this and I'd like to know who I should contact and how all this works. I've contacted Sony via their website but I haven't received any reply yet. However, I've seen on forums people claiming to have received a reply from Sony and having to pay over $2500 for a single song (to be played in a video). Thanks | 3,416 | I don't believe there's a worldwide scheme here, you're likely going to have to negotiate this on a per-country basis at the very least. Talking about the UK specifically, there is a scheme run by the Performing Rights Society where you buy a license to play music in public places: https://www.prsformusic.com/USERS/BUSINESSESANDLIVEEVENTS/MUSICFORBUSINESSES/Pages/default.aspx . I assume other countries have similar schemes. | 1 |
What qualifications does a registered Copyright Agent need? | I'm considering appointing somebody to be a registered Copyright Agent with the US government. What qualifications do they need? Do they need to be a lawyer or something? | 3,413 | Good news, anybody can be a registered copyright agent, even you! You just have to have an easy way to reach you, including email and phone, and enough time to actually respond to take-down requests expeditiously. Just make sure to make up your mind once and for all before submitting the request, because editing a registration costs as much as a new registration. | 1 |
Use the name of a product for another type of product | I develop software and computer fonts, and have been wondering lately if I could title my software or computer fonts the same name as products that already exist; for example medicinal products and drugs.
For example, could a computer font (to be sold online, therefore all over the world) be called "Tums"? I understand that originality is always the best bet for many reasons, but with many things having a similar name but in different fields, sometimes as an hommage (the band "Twin Peaks" as an hommage to the TV show), I feel like the using a name / brand in another field somehow legitimately is always a bit blurry for me. | 3,409 | There is no copyright in a word or short phrase because it lacks the necessary creativity to be considered a "literary work". The concept that could apply is a trademark . Trademarks must be registered and ... the application must also contain a list of goods or services to which the sign would apply. Anyone can use a trademark to promote goods or services in a field for which it is not registered and can seek registration in that different field (which the original holder would object to, probably successfully). Remedies for infringement can include an injunction and damages or an account of profits. In addition, unregistered trademarks (and registered ones too) may be protected by the common law remedy of the tort of passing off which requires the plaintiff to prove: they have reputation or goodwill in the trademark the defendant has misrepresented such that the public is liable to believe that the goods and services offered are offered by the plaintiff the defendant's conduct has or is likely to result in damage to the plaintiff Remedies are the same as for trademark infringement but the plaintiff has more to prove. In addition, in some jurisdictions (e.g. Australia) there may be statutory prohibitions on "misleading and deceptive conduct" which are available to both the offended party and the state. | 1 |
Can police enter a dwelling to intervene in a suicide attempt in a state where suicide is not a crime? | I have often heard claims that the reason suicide (and attempted suicide) is criminalized (at common law, if not statutorily) in some states is that it allows law enforcement personnel to enter a residence if they have reason to believe a person is or has attempted to commit suicide - it grants them probable cause, since suicide is a crime. That is, the idea is that suicide laws are on the books not for the sake of prosecuting suicidal people, but rather for legitimizing interventions by law enforcement. Does this mean, then, that in states that do not recognize suicide as a crime at common law, a police officer cannot enter a dwelling if they have "probable cause" to believe that a person currently is or soon will attempt to commit suicide (but not genuine probable cause for any other reason)? I would have thought that police have some level of carte blanche to intervene in situations like this (which, if it were the case, would mean that it doesn't matter whether or not a state has laws against suicide), but I'm no lawyer. (This question is about regular-old people-killing-themselves suicide, not euthanasia or other forms of assisted suicide, which I recognize is a whole different ball of wax.) | 3,405 | I am assuming, for the purpose of this answer, that you are talking about actual (attempted) suicide - rather than (physician or associate) assisted suicide. With regard to the U.S., various states at one time or another did have the act of attempted-suicide listed as a crime; some even as a felony, although I cannot find a single case of actual prosecution (of attempted - obviously you cannot enforce a law against actual suicide since the actor would be deceased). With that said, currently there is no law against the act of committing suicide in any state in the United States. I did a full Lexis search. Suicide (attempted suicide) is considered a mental health issue rather than a criminal one; hence, a person who is thought to be suicidal is subject to well being checks by fire, police, social services, and other like entities/people and are also subject to civil commitment and mental health holds if they are thought/found to be a danger to themselves or others. To that end, the reason police can enter a dwelling without a warrant under these circumstances, is to do a well being check. If they have a reasonable suspicion that someone may be attempting to kill themselves (a family member, friend or a neighbor calls and says they believe you're are in eminent danger of harming yourself), the police may enter the premises and bring them to a hospital, even against there will. They can be held (at a hospital) to determine if they are of "sound mind". Every state has some form of civil commitment (statutes) and some limited amount of time a person can be held for observation (again, at a hospital or treatment facility). I do not believe this is a typical ruse used by the police to enter premises without a warrant. Why? Not because all police are above skirting the laws against warrantless searches; however, there are just much easier means to accomplishing that end, if that is what they are going to do. Yes, if evidence of a crime is in plain view while the police enter for a well being check (or any other legitimate reason), the individual can be charged with that crime. However, most police officers are not going to charge someone if they see (a usable amount of) drugs, paraphernalia, or evidence of some other low level crime. This is true since (1) they are already in crisis and (2) they are there for the very reason that they have information they may not be of sound mind, hence potentially not criminally responsible. If they walk into a meth lab or a murder scene or some other serious criminal scene, ...well that is different and all bets are off. The bottom line is while this may have happened somewhere sometime to someone....this is not a practice I would be worried about. | 6 |
Does NJ law prohibit alcohol consumption in public parks? | Does NJ law prohibit alcohol consumption in public parks? | 3,368 | Yes. TITLE 7 OF THE NEW JERSEY ADMINISTRATIVE CODE. 7:2-2.6 Alcoholic beverages prohibited A person shall not possess and/or consume alcoholic beverages on lands
and waters under the jurisdiction of the State Park Service except
where the sale, use or possession is specifically approved by the
Director of the Division of Parks and Forestry or the Assistant
Director of the Division for the State Park Service. There is no statewide law governing non-state parks - like city and county parks for example. These entities are free to regulate as they see fit. For those rules you will need to inquire specifically. | 1 |
How do you request for a TV show to be made available again? | Say you remember a show from your childhood and would love to watch it again.
It could be for sentimental purposes, because you want to write about it, or make a research paper, or want to adapt it for the big screen, etc. Now, say that the right holders are either retired and very old, and haven't decided to make a VOD or a DVD or a BLU-RAY offer for this TV show that would allow you to legally purchase or watch it again. Is there a way to request that the right holders make the works for which they own a copyright public?
I'm not asking how to get in touch with someone, but if there's a law that can make a copyright holder forced to release the works they own copyright to. | 3,406 | There is no such law; copyright secures exclusive rights for the copyright holder (and related rights sometimes secure certain rights for the author which cannot be sold or given away except through death), but it cannot be used to force them to spend money to distribute it in a form that you can conveniently use. Such a rule would defeat the purpose of copyright law, which is to give the copyright holder control over the use of the work, not take away their ability to do so. You can certainly request that they release the work, and can offer to pay them for doing so. But someone who does not own the copyright or any related rights cannot use copyright law to force the person who does own the copyright to spend their own money to convert a show into a new format. | 4 |
If I create slightly altered version of apple emoji glyphs, would that protect me legally? | I want to use apple's emoji font in my android application. Both ios and android market is flooded with the apps that use apple emoji glyphs in their app and I am sure none of them are licensed with apple. I want to use same emoji glyphs as well however I want to be sure there won't be any legal problem in future because of IP or un licensed design assets. Now most viable options seems to be making my own glyphs that is very similar to apple emoji fonts, however I am not sure if that would protect me legally, since it will still look like apple's original work. | 3,395 | Google and Apple petitioned the Unicode Consortium to include a number of these characters, ie. emoji's and version 6.0 of the Unicode Standard ended up with 722 emoji that are copyrighted. Of the other however many, most are likely licensed. That said, Apple does NOT own the right to use a smiley face or a slice of pizza, but if you are using it as a font, in the exact way Apple (or Google or the others) wrote the code to have it appear, you are infringing on the copyright. This link is a detailed article on the topic, and also a way to sort of get around it called Phantom Open Emoji. If you specifically want to use Apples....well....Read the article. http://words.steveklabnik.com/emoji-licensing This is a special category a bit different from other types of copyright whereby you can have similar fonts. That is what this Phantom Open Emoji allows. I checked the legal standard on the theories in this article and its right on. I would think it answers your questions. | 2 |
If I create slightly altered version of apple emoji glyphs, would that protect me legally? | I want to use apple's emoji font in my android application. Both ios and android market is flooded with the apps that use apple emoji glyphs in their app and I am sure none of them are licensed with apple. I want to use same emoji glyphs as well however I want to be sure there won't be any legal problem in future because of IP or un licensed design assets. Now most viable options seems to be making my own glyphs that is very similar to apple emoji fonts, however I am not sure if that would protect me legally, since it will still look like apple's original work. | 3,393 | With copyright infringement, there are always two questions: Did you copy or create a derivative work without permission, and can it be proven? If you create a slightly altered version of Apple's Emojis, then you are creating a derivative work without permission, which is copyright infringement. If you independently create Emoji glyphs, and they happen to look almost the same as Apple's, that is not copyright infringement. You'll notice that whether it is copyright infringement or not depends on what you have actually done. On the other hand, you could be taken to court, and then some judge or jury would have to decide whether they believe that you copied or not. That's where a cleanroom implementation is handy (you hire designers who have never seen emojis), or at least a demonstrable history how you created the emojis. If you can only show Apple's emoji -> some slightly different emoji, that's bad for you. If you can show all the steps creating the emoji from scratch, that's a lot better. | 1 |
Can I be arrested if I'm not home and there are drugs in my room? | If I am out somewhere, and say my door is open and there are drugs in plain view, if a cop was in the house could I be arrested even though I'm not there? | 3,374 | In the US, there is a co-occupant consent rule (United States v. Matlock, 415 U.S. 164 (1974)). If a co-occupant of your house consented to a search, anything in plain view from the common areas is useable as justification for probable cause (for arrest) and admissible as evidence at trial. | 2 |
Will the Iran nuclear agreement become a treaty if passed? | United States. Question Will the agreement between the United States and Iran regarding their nuclear program become a U.S. treaty if passed by a simple majority of Congress? My understanding is that a treaty requires a 2/3 approval by the Senate. But has the "Corker bill" (or anything else) changed that to make the Iran agreement have the effect of a treaty if it's passed by a simple majority? If so, how was that accomplished given the constitutional requirement for a treaty and the constitutional requirement for amendments to the constitution? | 1,684 | No, under US law, it is an " executive agreement ", not a "treaty". The vast majority of US's international agreements are done as executive agreements, and not treaties; and the power of the executive branch to make executive agreements has been repeatedly upheld in the courts. Specifically, there are two types of executive agreements: " Congressional-executive agreements ". These are the ones that require changes to legislation to be implemented. Congress passes the needed legislation just like any other normal legislation, i.e. a majority of both houses of Congress. Most trade agreements are passed as congressional-executive agreements. " Sole executive agreements ". These are the ones that do not require changes to legislation to be implemented. Congress is not involved at all. This Iran nuclear agreement is a "sole executive agreement" because it does not require Congressional action to be implemented. (So it doesn't need to be passed by a simple majority by Congress.) The President already has the legal authority to implement all of the US's obligations under the agreement, which are the relief of certain Iran sanctions. Some of those sanctions were implemented by the President, and which the President can remove by himself. Some of these sanctions were implemented by Acts of Congress, but those Acts specifically give the President the authority to waive them. The Iran Nuclear Agreement Review Act of 2015 (the "Corker bill"), passed by Congress in May 2015, also confirms that "It is the sense of Congress that: [...] this Act does not require a vote by Congress for the agreement to commence;" As to your question about whether something can "have the effect of a treaty if it's passed by a simple majority". The answer is yes (in the other way around). The Supreme Court ruled in the Head Money Cases that "treaties" (ratified by 2/3 of the Senate as specified in Article II) have the same legal effect in US law as regular legislation passed by Congress (by a simple majority of both houses), which means that Congress can modify or repeal (insofar as US law is concerned) any "treaty" that is ratified by the Senate, by passing a later law that contradicts it, just like it can with regular legislation. So, yes, any regular legislation passed by a simple majority (including for congressional-executive agreements) has the same legal effect as treaties. | 3 |
Can I keep my last name if I get married? | Can I keep my last name the same if I get married? I don't want to hyphenate it either. Is this possible? Is it a MUST that I change or hyphenate it? I am in New York City, New York. | 3,370 | You can keep your name; this is the default. Source: Your surname does not change automatically upon marriage unless you elect to change it. Nothing in the law requires you to change your name when getting married; it is your personal choice. You are not required to have the same surname as your spouse. | 13 |
Is it illegal to sell malware? | Is it illegal to produce and sell malware? If no, is there any data I need to collect on the customers? Is it illegal to produce and sell Crypters(programs that hide other programs from antivirus)? If no, is there any data I need to collect on the customers? | 3,353 | The exact laws will vary by region and country, but the laws will range anywhere between illegal and almost illegal. If you want to operate as legal as possible then you will have to disclose to the buyer that the software is malware or a crypter and you should require for the buyer to sign an agreement to only use the software for legal and educational purposes. Hiding the disclosure in a long Terms of Service agreement will likely not be sufficient. You will have to explicitly advertise that the software is malware and a crypter and that you are looking for reputable tech firms to buy your software in order to improve their software. If you sell software without disclosing to the customer that the software contains malware or a crypter then you are exposing yourself to a lawsuit for products liability, invasion of privacy, fraud and misrepresentation, the cost of damages, and possibly criminal liability. | 4 |
Who owns a recorded Skype conversation? | If someone records my Skype conversation, is that video his property or mine? Is there a law against him making that video public or even recording it to begin with? Country- India. | 2,238 | As stated in the answer to What is considered "public" in the context of taking videos or audio recordings? ; if either of the participants is in Australia than unless all parties have given consent then the recording is illegal. Notwithstanding its legality, property in the recording vests in the person who made it. There is no law against him keeping it. There is no law against him publishing it unless the material contained is offensive, hate speech or defamatory (see Customer feedback gathering in Australia ). | 4 |
Am I allowed to use my university's logo? | After graduating from college I am more than relieved to be done. What I am curious about is if it is ok to feature the logo image from my school on social media or perhaps on my personal website legally? I assume that I am not allowed but could probably get away with it, though I don't want to be doing anything that is technically illegal. | 3,357 | Under Playboy Enterprises, Inc. v. Welles, it is likely legal due to fair use if you are only using the logo for identification purposes. In Playboy Enterprises, Inc., the court ruled that the former Playmate of the Year was permitted to place the Playboy image on her website for self-identification even though she was advertising herself for commercial gain. https://en.wikipedia.org/wiki/Playboy_Enterprises,_Inc._v._Welles | 2 |
Am I allowed to use my university's logo? | After graduating from college I am more than relieved to be done. What I am curious about is if it is ok to feature the logo image from my school on social media or perhaps on my personal website legally? I assume that I am not allowed but could probably get away with it, though I don't want to be doing anything that is technically illegal. | 1,668 | Your use of the trademark should qualify as Nominative Fair Use. Basically you can use the trademark to refer to the company. | 0 |
Can a contract clause be weakened by providing a nonsensible reason for it? | Company A is selling products to Company B at a highly discounted price. Part of the agreement is that Company B cannot resell the products. Consider the following clause in a contract between the two companies: Company B may not resell any products purchased from Company A at a discounted price. Now consider the same clause, but with a reason provided: In order to prevent toilets from overflowing, Company B may not resell any products purchased from Company A at a discounted price. Suppose the 2nd clause is in effect and Company B goes ahead and turns a profit by reselling the discounted products. However, no toilets overflowed as a result of this action. Is the clause weakened (harder to enforce) due to a nonsensible reason being provided? Obviously the "reason" is hypothetical, but I believe the question stays the same if you substitute anything in its place that did not occur as a result of the resale. | 3,348 | That would likely be treated as a preamble. These have been held in some jurisdictions to not have any weight. For example, see Sherbrooke Community Centre v. Service Employees International Union , 2002 SKQB 101: The preamble to a contract is nothing more than an introduction to that about which the parties have actually agreed. It puts the agreement into context. It describes the goals of the agreement. It speaks to what went before and the spirit in which agreement was achieved. On the other hand, it does not contain any promises. It does not contain any restrictions or commitments. It could be removed entirely without in any way altering that which was agreed to and set out in specific terms. [...] this clause in the preamble does not create or eliminate rights or obligations Granted, the introductory phrase in your hypothetical clause is not literally a preamble, but it has the same characteristics cited in the above decision: "it describes the goals", "it does not contain any promises", "it could be removed entirely without in any way altering that which was agreed to". If you wanted the clause to only take effect if toilets overflowed, use an alternative wording, like: Company B may not resell any products purchased from Company A at a discounted price in a manner that causes toilets to overflow. | 3 |
Can a contract clause be weakened by providing a nonsensible reason for it? | Company A is selling products to Company B at a highly discounted price. Part of the agreement is that Company B cannot resell the products. Consider the following clause in a contract between the two companies: Company B may not resell any products purchased from Company A at a discounted price. Now consider the same clause, but with a reason provided: In order to prevent toilets from overflowing, Company B may not resell any products purchased from Company A at a discounted price. Suppose the 2nd clause is in effect and Company B goes ahead and turns a profit by reselling the discounted products. However, no toilets overflowed as a result of this action. Is the clause weakened (harder to enforce) due to a nonsensible reason being provided? Obviously the "reason" is hypothetical, but I believe the question stays the same if you substitute anything in its place that did not occur as a result of the resale. | 3,356 | This is an ambiguity that would likely end in a lawsuit. Transactional attorneys must avoid this kind of ambiguity in order save both companies from the expense of litigation.
The court would look to evidence within and possibly outside of the contract to help determine the ambiguity, but every jurisdiction is different. Look up the parol evidence rule or the four corners rule in your jurisdiction to determine how ambiguities in a contract are determined. | 0 |
Can one use a contract to enforce a bluff? | Amy has been working for Bill for 15 years. Despite the fact that Bill runs a very profitable company, and that Amy is a very productive employee, Bill has not given Amy a raise in 15 years. Bill has long promised he will give Amy a raise sometime in the future, but never does. Amy has threatened to quit, but Bill ignores this because he knows quitting and finding a new job will pose significant inconvenience to Amy. So Amy goes to a third party, a signs a contract with the third party. The contract states that unless Amy has received a raise of $2.00/hr by January 1, the third party is entitled to all subsequent wages she earns from Bill. The third party then gives the contract to Bill. Bill sees that if this contract is enforceable, then Amy must be very serious. Bill is a rational businessman, and calculates that the cost of giving Amy her well-deserved raise is much less than bringing on a new, untrained employee. The only question is: Is this enforceable? EDIT: Amy pays the third party a small fee. The third party is a business that specializes in these types of contracts. (Amy and Bill are not real people, so they are having trouble contacting an attorney in their jurisdiction.) | 3,336 | It's not a contract because there is no consideration on the part of the third party. It's not enforceable. Consideration is either: a) giving up (or doing) something that you have a legal right to not give up (or not do) or b) not giving up (or not doing) something that you have a right to give up (or do). | 1 |
Can one use a contract to enforce a bluff? | Amy has been working for Bill for 15 years. Despite the fact that Bill runs a very profitable company, and that Amy is a very productive employee, Bill has not given Amy a raise in 15 years. Bill has long promised he will give Amy a raise sometime in the future, but never does. Amy has threatened to quit, but Bill ignores this because he knows quitting and finding a new job will pose significant inconvenience to Amy. So Amy goes to a third party, a signs a contract with the third party. The contract states that unless Amy has received a raise of $2.00/hr by January 1, the third party is entitled to all subsequent wages she earns from Bill. The third party then gives the contract to Bill. Bill sees that if this contract is enforceable, then Amy must be very serious. Bill is a rational businessman, and calculates that the cost of giving Amy her well-deserved raise is much less than bringing on a new, untrained employee. The only question is: Is this enforceable? EDIT: Amy pays the third party a small fee. The third party is a business that specializes in these types of contracts. (Amy and Bill are not real people, so they are having trouble contacting an attorney in their jurisdiction.) | 3,335 | There is no contract in this situation. Amy hasn't received any consideration from the "third party". | 0 |
Can one use a contract to enforce a bluff? | Amy has been working for Bill for 15 years. Despite the fact that Bill runs a very profitable company, and that Amy is a very productive employee, Bill has not given Amy a raise in 15 years. Bill has long promised he will give Amy a raise sometime in the future, but never does. Amy has threatened to quit, but Bill ignores this because he knows quitting and finding a new job will pose significant inconvenience to Amy. So Amy goes to a third party, a signs a contract with the third party. The contract states that unless Amy has received a raise of $2.00/hr by January 1, the third party is entitled to all subsequent wages she earns from Bill. The third party then gives the contract to Bill. Bill sees that if this contract is enforceable, then Amy must be very serious. Bill is a rational businessman, and calculates that the cost of giving Amy her well-deserved raise is much less than bringing on a new, untrained employee. The only question is: Is this enforceable? EDIT: Amy pays the third party a small fee. The third party is a business that specializes in these types of contracts. (Amy and Bill are not real people, so they are having trouble contacting an attorney in their jurisdiction.) | 3,355 | There is no contract because Amy did not give the third party consideration for the contract and it is void for public policy reasons. The contract is unconscionable or unreasonably unfair and oppressive to Amy. The contract may be illegal in a jurisdiction that prohibits gambling or gambling on employment contracts. The contract may also be illegal for being an unreasonable restraint on trade because Amy would be required to end her employment with Bill unless she forgoes her entire paycheck. | 0 |
Will I have to pay for training if resigned before probation? | I am based in UK. About 4 months ago I started a job that turned out to be different to what I expected. Responsibilities are below my qualifications and ambition; I was basically sold dreams during the hiring process. As they have half a year probation, I am considering leaving on the basis of not being the right person for the role. The problem is that the first weeks of employment was training with some external coaches and there is a statement in my contract that says resignation before 1 year of employment implies paying for the training taken. It does not state how much exactly I will have to pay. My question is, do I have any right / chance to refuse to pay it if I am still on probation and I think the role is just not what I was promised it will be? I personally think the training did not benefit me in anyway: it was mainly coaching and lectures – no certifications whatsoever that I can use further in my career. | 1,661 | The general principle of common law contracts is that parties can contract to do whatever they like unless there is a law that says they can't. As employment contracts are one of the most regulated type of contract and as I am not familiar with UK employment law (which may vary depending on which country of the UK governs it) this answer will be general in nature. Probation will not affect the training question. Probation gives the employer the right to terminate employment without cause or reason during the probation period; it gives the employee no rights. In general, the contract is the contract: if you agreed to pay for training if you leave within the first 12 months then that is what you are legally obliged to do. You may be able to avoid paying for training in Work Health and Safety as in most jurisdictions an employer is legally obliged to provide this without charge. That said, if the employer misrepresented the role then the contract may be void or voidable - this would need real legal advice and evidence of the misrepresentation. All of that said, if you explain your problem to the employer it is quite likely that you will be able to part ways amicably and without involving the law - that would be best all around, | 4 |
What if the user disagreed with the Terms of Service, but still registered on a website? | This is purely hypothetical, based on an anecdote told on a web design lecture a long time ago. Most websites nowadays require you to click on a little checkbox that usually says I agree to the Terms of Service when registering on a website, presumably to avoid any liability that may accrue because of your use of the site. However, some sites allow the user to register without marking this checkbox (in the mentioned anecdote, one website accidentally allowed this simply because the check didn't work in certain web browsers), in which case, to my understanding, the user never actually agreed to the terms. Should the user proceed to sue the website owners, could he argue that he never agreed with these terms simply by proving that it's possible to register without marking the famous I agree checkbox? | 3,349 | One of the key fundamentals for the formation of a contract is that the parties demonstrate their intention to be legally bound. There are two ways that websites usually use to show that intent by their users: click wrap and browse wrap . With click wrap terms the user explicitly agrees to the terms and creates a binding contract by ticking a box or pressing a button. As far as I am aware there has never been a case where a user has been successful in claiming there was not a contract. With browse wrap terms: For assent to occur the browse-wrap agreement should be conspicuous, state that there is an agreement, and provide where it can be located. it is certainly arguable (IMO with a good chance of success) that the stack exchange browse wrap, with its tiny link embedded among many others at the bottom of the page, is unenforceable. For the circumstances you describe the site tried for a click wrap but due to technical difficulties got a browse wrap. If it can be demonstrated that the user saw the terms or a prominent link to them and continued this would probably be enforceable. Licenses: if the terms contain the grant of a copyright licence then that can be enforced because copyright exists even if a contract doesn't. | 3 |
What if the user disagreed with the Terms of Service, but still registered on a website? | This is purely hypothetical, based on an anecdote told on a web design lecture a long time ago. Most websites nowadays require you to click on a little checkbox that usually says I agree to the Terms of Service when registering on a website, presumably to avoid any liability that may accrue because of your use of the site. However, some sites allow the user to register without marking this checkbox (in the mentioned anecdote, one website accidentally allowed this simply because the check didn't work in certain web browsers), in which case, to my understanding, the user never actually agreed to the terms. Should the user proceed to sue the website owners, could he argue that he never agreed with these terms simply by proving that it's possible to register without marking the famous I agree checkbox? | 3,338 | Usually you implicitly agree with the terms if you use the site, even if you don't click the checkbox. For example, quoting form the Stack Exchange Terms of Service : By using or accessing the Services, you agree to become bound by all the terms and conditions of this Agreement. Quoth the Terms of Use of Wikia : In order to use the Service, you must accept these Terms of Use. You may do so by (a) registering for membership with the Service and/or Company or (b) by actually using the Service. Yes, this site has a checkbox for clicking I agree when you register. Third and last example: The Google Terms of Service : By using our Services, you are agreeing to these terms. | 1 |
Does reviewing material added by users revoke my DMCA safe harbor? | I run a site that has pages for famous people, brands, movies, etc. Each page has a "profile picture" that is added by a user (if no user has submitted a picture yet, a default image is used). When a user submits an image to be used as a page's profile picture, a site moderator reviews it, and either approves it or rejects it based on whether it is not offensive and meets reasonable quality standards. My question is, if the work turns out to be copyrighted, am I still granted safe harbor under the DMCA, even if I review the material before it is published? From the Digital Millenium Copyright Act, Title 17, Chapter 5, § 512 "Information Residing on Systems or Networks at Direction of Users.—
(1) In general. — A service provider shall not be liable for monetary relief, or,
except as provided in subsection (j), for injunctive or other equitable relief, for
infringement of copyright by reason of the storage at the direction of a user of
material that resides on a system or network controlled or operated by or for the
service provider, if the service provider -
(A)(i) does not have actual knowledge that the material or an activity using the
material on the system or network is infringing; or
(ii) in the absence of such actual knowledge, is not aware of facts or
circumstances from which infringing activity is apparent;
(B) does not receive a financial benefit directly attributable to the infringing
activity, in a case in which the service provider has the right and ability to
control such activity." On my site I include the following disclaimer: "We will screen your image to ensure that it is relevant to the page, meets
reasonable quality standards, and contains no obscene content. We will not screen
the image to ensure that it is fair use. We reserve the right to reject any
image that does not meet our quality standards." | 3,334 | This is the Viacom v Youtube case. Take a look at the wikipedia page because it contains summaries of various rulings. You are dealing with actual knowledge in (c)(1)(A)(i) or "red flag" knowledge in (c)(1)(A)(ii). Unless your photo reviewer has some way of determining if a profile photo is copyrighted you will not have actual knowledge - note that this knowledge is subjective and most be proven by a plaintiff. As for the red flag test, this is met if infringement is objectively obvious to a reasonable person. You don't have actual knowledge. Unless you want to change the question to include certain facts which create actual knowledge you do not subjectively have knowledge. As for objectively obvious knowledge, again, all we know from your facts is that a photo was received, it cannot be determined what an reasonable person would know about the copyright based on those facts. | 1 |
Work-of-art found in estate house has no proof-of-ownership; artist wants it back | Artwork in house of an Estate has no documentation of ownership. Painter claims it was never bought and wants it back. Who legally owns this item? This artwork was a dedication to a family member who died 15 years ago and arrive at the Estates house 8 years ago for an unknown reason. The Executor of the Estate can not find any proof of ownership or contract to return to painter. | 2,322 | Relationships are more important than the law Important first question: Is the painting worth fighting about? That is, does it have any significant monetary or sentimental value for the beneficiaries? If not, let the painter have it and avoid the fight. Common law regarding transfer of personal property Prima facie the painter was the original owner of the painting by virtue of creating it. At common law there are 6 ways that ownership of personal property can be transferred (and several involuntary ways that are not relevant): Purchase and sale (either of the painting itself or of the painting service as a work for hire) Transfer or gift by delivery Transfer by deed of assignment Transfer by declaration of a trust Inheritance under a will Taking possession of abandoned property The most relevant to the facts is No 2: Transfer or gift by delivery. For this to have occurred the painting must have been given to the deceased with: An intention (at the time) to transfer title Delivery Acceptance of the delivery. Delivery and acceptance cannot be denied as it has been hanging in the deceased's house for 8 years (unless the painter co-habited with the deceased; delivery has not taken place in that case). The painter has the onus to prove that they did not intend at the time to transfer title. It is difficult to see what evidence they could put forward that would convince a court of this if the facts are as you say. Case and statute law in your jurisdiction may have changed the common law. TL;DR The Estate owns the painting. | 2 |
If rental agreement is month to month, must one full month of notice be given before leaving? | If no contract was signed and the verbal agreement was month-to-month (no specific end of tenancy) must 1 full month of notice be given to move out and get the damage deposit back? | 2,287 | In most jurisdictions, yes, you must give 30 days notice; this is a statutory requirement incumbent on both parties. This (your rental type) is a tenancy-at-will. If you pay rent monthly (on 1st) then this is the period of time required for notice to vacate. In some jurisdictions 30 days is required no matter what intervals you may rent (say weekly), other jurisdictions if you pay rent weekly then a week's notice is all that's necessary. This is In the absence of a rental agreement setting forth another agreed to term. See this question: If no prior contracts have been signed, can a landlord make tenants sign after a week of tenancy? It is not the same but there is some information on this type of tenancy. | 3 |
If rental agreement is month to month, must one full month of notice be given before leaving? | If no contract was signed and the verbal agreement was month-to-month (no specific end of tenancy) must 1 full month of notice be given to move out and get the damage deposit back? | 3,326 | In Ontario, you're normally required to give at least a 60-day notice to end the tenancy. In many other jurisdictions, it's normally 25 to 30 days. It appears that in British Columbia, a notice must be received at least one month before the effective date of the notice (and, weirdly enough, if the government site as per below is to be believed, it looks like you must still pay for one full month of rent after giving out a notice, e.g., you might effectively have to give out the notice as many as almost two months prior to moving out). A quick search (for something like >> british columbia tenancy 30 days <<) reveals a government web-site on the matter: http://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/ending-a-tenancy . http://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/ending-a-tenancy/tenant-notice For a month-to-month, or periodic tenancy agreement, a tenant must serve written notice to end the tenancy so that it’s received: At least one month before the effective date of the notice, and Before the day that rent is due In order for the tenancy to end the following month, the landlord has to receive the notice before the date the rent is normally paid. For example, if rent is due on the first day of the month, a notice given on March 15 would not take effect until the last day of April and the tenant would have to pay rent for the month of April. Ouch! Basically, it looks like you must still pay the landlord for one full month of rent after giving out the notice. | 1 |
Is a UDP/IP network exempt from COPPA? | COPPA 312.2 defines "Internet" as collectively the myriad of computer and telecommunications facilities, including equipment and operating software, which comprise the interconnected world-wide network of networks that employ the Transmission Control Protocol/Internet Protocol, or any predecessor or successor protocols to such protocol, to communicate information of all kinds by wire, radio, or other methods of transmission. A literal reading of this means that if you use UDP instead of TCP, you would be exempt from COPPA. Have there been any rulings on this? | 3,323 | As far as I can tell, no appeals court has had to decide whether "the Transmission Control Protocol/Internet Protocol, or any predecessor or successor protocols to such protocol" includes UDP for the purposes of 16 CFR §312. I will argue that UDP is included. From King v. Burwell (internal citations removed): when deciding whether the language is plain, we must read the words in
their context and with a view to their place in the overall
statutory scheme. 16 CFR §312, in conjunction with 15 USC §6501-6505, implements the Children's Online Privacy Protection Act of 1998 . The FTC is directed in 15 USC §6502(b) to promulgate regulations that (emphasis mine): require the operator of any website or online service directed to children [...] to provide notice of what information is collected [...] and to obtain verifiable parental consent The FTC drafted 16 CFR §312 to that end. To treat UDP as exempt would mean that the FTC has not fulfilled their duty under 15 USC §6502(b). So, given the context of the overall statutory scheme, it is reasonable to conclude that the FTC intended 16 CFR §312 to include UDP. However, even without the above line of reasoning, if the FTC were to attempt enforcement of 16 CFR §312 as if it included UDP, that interpretation would be controlling. The FTC would be afforded Auer deference by the court. They wrote the regulation; they know what it means. From Auer v. Robbins 519 U.S. 452 (1997): Because the salary basis test is a creature of the Secretary's own regulations, his interpretation of it is, under our jurisprudence, controlling unless plainly erroneous or inconsistent with the regulation. And from Bowles v. Seminole Rock & Sand Co. 325 U.S. 410 (1945): Since this involves an interpretation of an administrative regulation, a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. The intention of Congress or the principles of the Constitution in some situations may be relevant in the first instance in choosing between various constructions. But the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation. Again, given the context of the overall statutory scheme, such an interpretation of the regulation by the FTC wouldn't be plainly erroneous. | 4 |
Right of return for already replaced goods | Around 9 months ago I purchased a product, a pair of headphones, in the UK directly from the manufacturer. After 5 months, this product became defective, and was exchanged for another identical product. Upon exchange, I was provided with a new order number and confirmation email for the new product. Now, another 4 months later, the new replacement product has developed another defect, and I'd like to return it again. I have read that, per the Sale of Goods Act 1979, I should be able to get the goods replaced if it was less than 6 months from when I purchased them, but, legally, is the date of purchase for the replaced product 9 months ago when I made the initial purchase, or 4 months ago when I received another order confirmation for the brand new replacement goods? I'm inclined to believe that the date of purchase would be the date on which I paid for the goods, but then the second order confirmation from 4 months ago makes me wonder if I might have a case. Either way, I'm aware that a £60 pair of headphones won't be a major loss, but after hours of frustration with customer support I'm genuinely interested to know just what my rights are here! Thanks in anticipation! | 2,321 | If you wait until 1 October 2015 the Consumer Rights Act 2015 will come into force; I have had a brief look at the regulation and it appears that it will cover contracts that are "on hand" when it does. Under that your rights are very clear: you are entitled to a replacement, if the replacement becomes defective you are entitled to another replacement or a refund at your discretion. | 0 |
Does not following a religion "to the letter" disqualify you from protection of religious freedom? | I could probably come up with a logical argument as to why individual religious beliefs and patterns of behavior should be protected in the same way as those which belong to a "recognized" religion, but I'm wondering what kind of case law exists on the issue. I'll separate this into two questions. There are many cases where an individual practices a form of Christianity which is different from a generally agreed upon profile of the religion. For instance, essentially no Christian follows the idea that women are not allowed to speak in Church. It seems common for the layperson to argue that such "hypocrisy" precludes a person from being protected by the first amendment. What does the case law say on this? Related to this, if a person happens to have an individual religious belief which again differs from the general profile of what is considered to be Christianity, is that belief still protected? It would seem that protection of religion would be on an individual basis. In other words, so long as a person holds a specific religious belief or follows a specific religious pattern of behavior, then regardless of what religion with which the person identifies, the person would be protected in the exact same way as if the person somehow managed to "perfectly" match an expected profile of a given religion. | 2,314 | See Holt v. Hobbs 574 U.S. ____ (2015) and Burwell v. Hobby Lobby 573 U.S. ____ (2014) : Under RLUIPA, the challenging party bears the initial burden
of proving that his religious exercise is grounded in a sincerely held
religious belief The test is ignorant as to whether the person's belief happens to match an "expected" profile of a particular religion, although if it did, that would go some way to establishing that the belief is a sincerely held religious belief. In Holt v. Hobbs , Gregory Holt requested that he be allowed to grow a 1/2 inch beard in prison. In oral argument, Justice Scalia noted that the religious requirement is to grow a full beard [...] I mean, you're still violating your religion Counsel for Holt responded: Well, the religious teaching is a full beard. He testified that religiously half an inch is better than nothing. [...] A partial beard is better than none. And that's not just in secular terms. That's also in religious terms. The court ruled in favour of Holt. That his belief differed from the strictest interpretation of the religious text was not relevant. | 5 |
Why is it wrong for google to show its own other products in its search results? | Google is facing antitrust probe in India. I don't know about other countries but what Indian law is broken in google search? Google search is a private free product. Why is it bad to prefer its own other products like google-maps instead of bing-maps? http://economictimes.indiatimes.com/tech/internet/antitrust-probe-into-google-moves-into-next-phase/articleshow/48751439.cms | 2,240 | Its just free enterprise, right? Well ... except when there is a law that says its not allowed. I am unfamiliar with Indian law but the relevant law in Australia is the Trade Practices Act which deals with this under the category of Misuse of Market Power . In a nutshell: A business with a substantial degree of power in a market is not allowed to use this power for the purpose of eliminating or substantially damaging a competitor or to prevent a business from entering into a market. By preferring their products over a competitor's in their search engine they are "... eliminating or substantially damaging a competitor ...". | 3 |
Why is it wrong for google to show its own other products in its search results? | Google is facing antitrust probe in India. I don't know about other countries but what Indian law is broken in google search? Google search is a private free product. Why is it bad to prefer its own other products like google-maps instead of bing-maps? http://economictimes.indiatimes.com/tech/internet/antitrust-probe-into-google-moves-into-next-phase/articleshow/48751439.cms | 2,310 | I cannot add comments yet (darn low reputation), so I'm saying this here: This same issue is very big in the EU. Google us under scrutiny for not providing equal advertisement/favoring their own products. According to many New York Times articles, this is the EU trying to promote their own businesses and decrease reliance on US companies; it is definitely not just righteousness. I am not sure if this is the same or even similar scenario in India. At least in the U.S., this issue is known as net-neutrality . | 1 |
Can I patent my invention which is just an enhancement to an already patented device? | Can I claim patent for my invention which is a little upgraded version of already patented devices. Moreover, I use same patented devices in my invention and add new functionalities to it. Is it worth patenting? | 2,307 | Not if it is "just" an advancement. Improvements to processes, machines, manufactures, or compositions of matter, are patentable but only if they are new and useful, and non-obvious (among other requirements like adequate disclosure etc.) 35 USC 101-103, 112 | 2 |
Would Google's Alphabet Inc. have any rights to alpha.bet? | If you own a "Google" trademark, then your sunrise rights to "google" in any of the newly proposed generic TLDs would likely be quite straightforward. However, what about domain hacks? There appears to be a new ".bet" zone, and "alphabet.com" has already been taken by BMW's global devision of fleet management, famously leaving Google's Alhabet Inc.'s new address as a mere "abc.xyz", even though Google's founders do mention that "Alphabet" is not just the abc , but also the alpha bet — "investment return above benchmark". Would Google's Alphabet Inc. have any rights to alpha.bet during sunrise? | 2,305 | According to ICANN: only if they have trademark rights in the label "alpha". (The label is defined as the word between the dots and is determined after illegal characters are resolved with nothing or a hyphen. This means that the trademark A_L_P_H_A and alpha both become just alpha for the purposes of this process.) If another alpha trademark holder also tries to register alpha.bet the applicants will end up in the clearinghouse for resolution during the claims period which follows the sunrise period. The Trademark Claims period follows the Sunrise period and runs for at
least the first 90 days of an initial operating period of general
registration. During the Trademark Claims period, anyone attempting to
register a domain name matching a mark that is recorded in the
Trademark Clearinghouse will receive a notification displaying the
relevant mark information. See section 2.1 in the New gTLD Program: Trademark Clearinghouse memo. The clearinghouse is the system whereby the matches are identified and processed. All Clearinghouse trademark comparisons occur by comparing the textual
elements of a mark with the second level label of the domain name
being registered. When all and only the complete and identical textual
elements exist in both the trademark and the label, it is considered
an identical match. For example, the trademark and the domain
label “ICANN” to be used in a domain name such as “icann.org” would be
an identical match. If two entities both hold a trademark in the same gTLD label they ultimately end up in auction where the domain goes to the highest bidder. ( Understanding Auctions ). If the bidder who wins ends up registering a site in an infringing manner it's up to the mark holder to resolve the dispute using their local courts. | 2 |
Definition of "Direct Financial Benefit" in the DMCA Title 17 | I run a website with pages for famous people, books, brands, movies, etc. Users can rate and discuss these things. Each page has a "profile picture", which is added by a user and then approved by a site moderator, to make sure it is non-offensive and meets quality standards. I receive financial benefit by selling adspace. The Digital Millenium Copyright Act, Title 17, Chapter 5, § 512, provides a safe harbor from copyrighted works added by users, as long as the website does not directly benefit financially from the work: "A service provider shall not be liable for monetary relief, or, except as
provided in subjection (j), for injunctive or other equitable relief, for
infringement of copyright by reason of the storage at the direction of a user
of material that resides on a system or network controlled or operated by or for
the service provider, if the service provider...does not receive a financial benefit
directly attributable to the infringing activity, in a case in which the service
provider has the right and ability to control such activity..." It could be argued that the user-added pictures make the site a more pleasant experience and therefore more profitable, but it is clear that they are not the main purpose of the site. Has the phrase "directly attributable to the infringing material" ever been concretely defined as used in this context? | 2,299 | Costar Group Inc. v. Loopnet , Inc., 164 F.Supp.2d 688 (D. Md., 2001) touched on this. The court distinguishes Playboy Ent. v. Russ Hardenburgh, Inc., 982 F.Supp. 503 (N.D.Oh.1997) which held that "contributory liability could attach where infringing performances enhance the attractiveness of the venue to potential customers." (internal quotes omitted) This sounds like your concern. The Costar court stated explicitly that merely adding value does not constitute direct benefit. In Costar the court found that Whereas in Playboy and Fonovisa, the finding of added value to the
defendant was evidence that the defendant induced the infringement, for the purposes of the DMCA, the financial benefit must be "directly
attributable to the infringing activity." 17 U.S.C. § 512(c)(1)(B)
(1998). CoStar might make an argument that the indirect type of
benefit cited in Hardenburgh is also present here. However, such a
benefit does not fit within the plain language of the statute .
Accordingly, § 512(c)(1)(B) does not present a barrier to LoopNet
remaining in the safe harbor. You could also take a look at Columbia Pictures Indus., Inc. v. Fung , 710 F.3d 1020 (9th Cir., 2013) the relevant inquiry is “ ‘whether the infringing activity constitutes
a draw for subscribers, not just an added benefit.’ That case cites Ellison v. Robertson, 357 F.3d 1072 (9th Cir., 2004) Ellison ultimately concluded that the financial benefit standard was
not met, because there was inadequate proof that “customers either
subscribed because of the available infringing material or cancelled
subscriptions because it was no longer available.” But back to Fung, check this out (I quote this in its entirety because it's not that long and it should lead you to your own conclusion): Against this background, we note that we have never specified what
constitutes a “financial benefit directly attributable to the
infringing activity,” 17 U.S.C. § 512(c)(1)(B) (emphasis added),
where, as here, the service provider's revenue is derived from
advertising, and not from users. We do so now. Here, the record shows that Fung generated revenue by selling advertising space on his websites. The advertising revenue depended on
the number of users who viewed and then clicked on the advertisements.
Fung marketed advertising to one advertiser by pointing to the “TV and
movies ... at the top of the most frequently searched by our viewers,”
and provided another with a list of typical user search queries,
including popular movies and television shows. In addition, there was
a vast amount of infringing material on his websites—whether 90–96% or
somewhat less—supporting an inference that Fung's revenue stream is
predicated on the broad availability of infringing materials for his
users, thereby attracting advertisers. And, as we have seen, Fung
actively induced infringing activity on his sites. Under these circumstances, we hold the connection between the infringing activity and Fung's income stream derived from advertising
is sufficiently direct to meet the direct “financial benefit” prong of
§ 512(c)(1)(B). Fung promoted advertising by pointing to infringing
activity; obtained advertising revenue that depended on the number of
visitors to his sites; attracted primarily visitors who were seeking
to engage in infringing activity, as that is mostly what occurred on
his sites; and encouraged that infringing activity. Given this
confluence of circumstances, Fung's revenue stream was tied directly
to the infringing activity involving his websites, both as to his
ability to attract advertisers and as to the amount of revenue he
received. Edit to add: There is also some legislative history that some courts point to at H.R.Rep. No. 105-551, Part 2 . (I include the link to the closest thing I could find.) This language shows its age! I think the only thing that speaks to your issue is the last sentence (bc it's not you). In determining whether the financial benefit criterion is satisfied,
courts should take a common-sense, fact-based approach, not a
formalistic one. In general, a service provider conducting a
legitimate business would not be considered to receive a ‘financial
benefit directly attributable to the infringing activity' where the
infringer makes the same kind of payment as non-infringing users of
the provider's service. Thus, receiving a one-time set-up fee and
flat, periodic payments for service from a person engaging in
infringing activities would not constitute receiving a ‘financial
benefit directly attributable to the infringing activity.' Nor is
subsection (c)(1)(B) intended to cover fees based on the length of the
message (e.g., per number of bytes) or by connect time. It would
however, include any such fees where the value of the service lies in
providing access to infringing material . | 3 |
Choosing what level of scrutiny to apply to enumerated rights | In court decisions dealing with burdens on enumerated rights you often see a discussion, or at least a reference to a previous decision, as to what level of scrutiny to apply. Why, in the case of enumerated rights, is it not automatically strict scrutiny? If the rights were important enough to list, I would expect them to be given the highest level of scrutiny. | 2,294 | This is an opinion question, even if it doesn't seem like one. The life work of many professors is trying to explain the current system of review. One theory that is fairly well accepted relates to the concept of deference to other political actors. To understand this theory, we need to begin by recognizes that the Court is not unilaterally adjudicating political rights; it is one of many actors that all have some stake in making Constitutional decisions. The Court recognizes this, even if it also demands that it get last word on whether or not it gets last word. In footnote four of Caroline Products the Court laid the foundation for the modern equal protection doctrine. That text embraced a constitutional scheme whereby rights are given judicial protection primarily if they are unlikely to be given political protection by the other branches of government. Under this scheme, we care about groups that are politically weak or political distant from those with power. This equal protection jurisprudence is an example of deferential thinking; we trust the political branches generally unless there is reason to doubt the effectiveness of the political process. The deferential thinking approach to constitutional law holds that we do the same for many other area of Constitutional law. A given enumerated right is only Scrutinized strictly by the courts if the courts don't trust the other political actors (States, Legislature and Executive), to adequately protect that right. As I said, that is a theory. Not everyone agrees that this is what is going on or that this is what should be going on. Moreover, many enumerated rights are protected under a very strict level of review. Strict review and "strict scrutiny" are similar ideas, with the latter being a term of art and the former being a reasonable description of how much attention courts will pay to protecting a given right. | 4 |
Choosing what level of scrutiny to apply to enumerated rights | In court decisions dealing with burdens on enumerated rights you often see a discussion, or at least a reference to a previous decision, as to what level of scrutiny to apply. Why, in the case of enumerated rights, is it not automatically strict scrutiny? If the rights were important enough to list, I would expect them to be given the highest level of scrutiny. | 2,291 | Tiered scrutiny has always garnered some level of....well scrutiny....and in some ways has been controversial. A big reason this occurs is to strike a balance between the federal gov't and states' rights and individual rights. Tiers of scrutiny allow the Court to distinguish between strongly and less strongly (and, frankly, weakly) protected rights. It also allows for differentiation between protected and unprotected classes. These categories are a matter of judicial construction throughout the ever changing make-up of the Supreme Courts. Some members of the current Supreme Court have pushed against precedent in applying long held "tiered tests" to determine the type of scrutiny to apply; and have balked at having to fit a case into formal "tiers," each with its own special "test" (rational basis review, intermediate scrutiny, strict scrutiny, etc). I was just reading somewhere that Thurgood Marshall wanted to replace the Court's use of tiers with a balancing approach that could be adjusted on a case by case basis. On the current Supreme Court, Kennedy has long spoken out against tiers, and instead applies his own version of a reasonableness test (see Romer v. Evans , Lawrence v. Texas , and others). Much of the Court finds Kennedy’s approach contrary to precedent and frankly unorthodox, although it may be a better approach. Different kinds of scrutiny for different kinds of rights has been the rule because, for example, your right to property is not the same as your right to speech. You can see how the government's interest in serving the best interest of the masses may override your property rights (10th amendment), but speech or civil rights are of a different ilk. But if you read the same-sex marriage case, Obergefell v. Hodges , the Court was more Kennedy-esque, moving somehow away from formal tiers and towards more of a "reasonableness" standard. In most cases, however, the tiers will remain because there is a difference in certain types of rights: wealth and things are never going to be as unalienable as when we are talking about the the civil rights of the people. It bears remembering when and why tiers of judicial scrutiny came into
being in the first place. The Supreme Court constructed these tiers
not to constrain the protection of individual rights, but to guard
against the unjustified interference with the political process.
Removing the tiers removes the guard. ( Building the Tiers of Judicial
Review , Kurt T. Lash.) | 1 |
Employer Tuition Repayment | 1 year ago, I accepted a new job with an education budget included. I turned down their initial job offer. When they asked if there was anything that could entice me to reconsider, I countered with the options of an increased salary or an education budget. The job became too much... I was given many duties well outside of the job description I signed when I took the job. Also, an employee that left was not replaced and I had to take on many of his duties as well. I have been stressed to the point of affecting my health and working endless hours of overtime that I don't get paid for because I'm on salary. Now that I have accepted another job (similar pay, less stress/hours), I am being asked to repay the education budget and realizing that the job offer did stipulate 2 years of employment. I am trying to negotiate with the employer based on the fact that I wouldn't have accepted the job without the education. However, if that fails, I still think I have a case because the clause is worded "I will to the best of my ability continue to work for (company) for 2 years". I have put every effort I have into the job, put in all the time required to keep up with the added duties, and in the end I am still being asked for more. Would the "best of my ability" argument hold up if I get taken to court? (Amount: $2500, Country: Canada) | 2,254 | There is a general common law doctrine of contract interpretation which tells us that ambiguities are construed against the drafter. In your case, had the employer intended to require two years of work (or else reimbursement back to them) they could have explicitly stated this . The fact is, the contract is written as it is for a reason, likely to entice you to accept the offer of employment. They softballed the requirements to get you to take the job and now they are trying to play hardball. I would hope that a court would find this and tell the employer to think about these clauses next time. The fact is, after a deal goes south is a bad time for an employer to start explaining what these terms mean. You have fulfilled your half of the bargain. If the facts are as you say they are then you satisfied the "best of my ability" condition. Another problem you might have is if the employer does not take you to court but instead continues to make threats, maybe sends a collections agency after you. In that case you will need to get an injunction to stop the employer. In other words, get a court to state that you do not owe them any money and enjoin them from continuing to as if you do. EDIT: as a commenter mentioned, a contract may explicitly provide that ambiguous terms will not be construed against either party. | 4 |
Employer Tuition Repayment | 1 year ago, I accepted a new job with an education budget included. I turned down their initial job offer. When they asked if there was anything that could entice me to reconsider, I countered with the options of an increased salary or an education budget. The job became too much... I was given many duties well outside of the job description I signed when I took the job. Also, an employee that left was not replaced and I had to take on many of his duties as well. I have been stressed to the point of affecting my health and working endless hours of overtime that I don't get paid for because I'm on salary. Now that I have accepted another job (similar pay, less stress/hours), I am being asked to repay the education budget and realizing that the job offer did stipulate 2 years of employment. I am trying to negotiate with the employer based on the fact that I wouldn't have accepted the job without the education. However, if that fails, I still think I have a case because the clause is worded "I will to the best of my ability continue to work for (company) for 2 years". I have put every effort I have into the job, put in all the time required to keep up with the added duties, and in the end I am still being asked for more. Would the "best of my ability" argument hold up if I get taken to court? (Amount: $2500, Country: Canada) | 2,292 | I cannot say how Conract Law differs from U.S. law under in Canada; however, if this was in the U.S. it would be difficult to win. I'd have to (meaning you should have an attorney) look at the rest of the contract, but these educational/tuition reimbursement incentives in employment contracts are pretty typical and the employer generally gets to recoup if you don't fulfill the minimum commitment. Courts don't like to invalidate these societally beneficial types of contractual obligations on the basis that the job ended up being too much work or much harder than anticipated. Usually, there are definitions that outline the meaning of key terms. However, I can see "best of your ability" really meaning "unless you become disabled", except if all of your duties are clearly outlined in the contract and you can show that you were clearly forced to operate far in excess of these standards. But again.... nobody can really assess this to any reasonable degree without analyzing the whole contract. | 2 |
Is there a case to be pursued for a non-domesticated bank account attachment? | I'm going to try and be as brief as possible because I just want to get an idea if there is something to pursue here as a case: I had old community debts from my marriage in CA; one of those debts was pursued by a collection agency, also in CA. The collection agency knew that I was in NV. An attachment to my bank account was pursued and granted, that levy was served by the Sherrif's department (also in CA). Sheriff served that levy to my nationwide bank; the bank also knew I was in Nevada. I had my bank account released by a bankruptcy judge in NV. Part of the reason why it was released was because the judgement against my bank account was never domesticated in Nevada. In short, I had three CA agencies - the collector, the Sherrifs and the nationwide bank - all of whom knew I was in Nevada, all act upon a non-domesticated judgement. The NV constable was never aware of the judgements against me. For all intents & purposes, both the Sheriffs and Chase reached across state lines when they all knew that I was no longer in CA and an established resident in NV. Can I pursue a case against all three of them for not domesticating the judgement. At some point, doesn't the Sheriff and/or Chase have the responsibility to say "no, we can't act on this across state lines"? | 2,276 | Probably not. As I read your question you legitimately owe money on a debt proven in California. The proper way for the creditor to recover it in Nevada was by domesticating the judgement (essentially an administrative rather than judicial action) and this didn't happen. The only person who has suffered damage through this is the court system in Nevada by not being able to collect their fee for domestication. On what basis of damage to you are you proposing to sue? | 1 |
How is obfuscated code treated by the law? | Hypothetical Scenario Developer, A , contracts with company, B , to write code, C , that accomplishes X . A writes C . A obfuscates C . (Obfuscation transmorphs C into C' which still accomplishes X but C' is very difficult to interpret by another coder.) A demonstrates to B that C' accomplishes X . B pays A . A delivers C' to B . At some time later, B hires another developer, D to do some code maintenance and/or upgrades. D informs B he can not interpret or work on C' because it has been obfuscated . Question Does B have any recourse against A ? | 2,273 | Depends on the agreement between A and B If the agreement is to simply produce code that accomplished X then generally there is no recourse. (Some jurisdictions may have legal doctrines or laws that do provide recourse). If instead the contract specifies some specific industry standards A must follow while accomplishing X , then B probably may sue for breach of contract. | 2 |
How is obfuscated code treated by the law? | Hypothetical Scenario Developer, A , contracts with company, B , to write code, C , that accomplishes X . A writes C . A obfuscates C . (Obfuscation transmorphs C into C' which still accomplishes X but C' is very difficult to interpret by another coder.) A demonstrates to B that C' accomplishes X . B pays A . A delivers C' to B . At some time later, B hires another developer, D to do some code maintenance and/or upgrades. D informs B he can not interpret or work on C' because it has been obfuscated . Question Does B have any recourse against A ? | 2,275 | All other things considered I would deem it wholly inappropriate if a contract calls for source code (and this would be the default for an employment contract but not necessarily other kinds of contract for code), if the source code submitted is not the code as the developer wrote it for his own reading and how he intended to maintain it, I would consider that an actionable breach. In the GPL, they spelled it out in some verbiage that I am not inclined to repeat, but the form intended to be maintained is the form as needs to be provided. As for deliberately writing it hard to maintain but he himself must endure the code as it is, that's a whole 'nother can of worms. You see, there are some who write bad to make themselves job security, and there are those who just write bad because they know it doesn't matter to the compiler. | 1 |
Why were books never published with a EULA? | Software companies write EULA to force users to relinquish their rights (such as first sale, decompiling/reverse engineering) before being allowed to use the software. Why are books never published this way (by opening this book you agree to the license ...). There are many publishers that would love to remove right of first sale (textbooks et al.), yet I've never seen one that tried that? | 2,266 | In fact, the first recognition of the First Sale doctrine came about precisely because a publisher attempted to do something of the nature of what you suggest. In Bobbs-Merrill Co. vs Straus , the Bobbs-Merrill Corporation attempted to enforce the following restriction, printed on the inside of a book it published: "The price of this book at retail is one dollar net. No dealer is licensed to sell it at a less price, and a sale at a less price will be treated as an infringement of the copyright." They made the mistake of attempting to enforce it against, among others, R.H. Macy and Co. , who they then had to take to court - and lost. This established the First Sale Doctrine, which then later (in 1976) was codified (in 17 U.S. Code § 109 . Textbooks recently tested another element of this; in the 2013 case, Kirtsaeng v John Wiley and Sons Inc. , the Supreme Court held that the First Sale doctrine trumped a notice forbidding selling a book outside of a particular territory or region (Kirtsaeng imported textbooks from Thailand, where they were much cheaper than in the US, and resold them at a profit in the US). | 5 |
Why were books never published with a EULA? | Software companies write EULA to force users to relinquish their rights (such as first sale, decompiling/reverse engineering) before being allowed to use the software. Why are books never published this way (by opening this book you agree to the license ...). There are many publishers that would love to remove right of first sale (textbooks et al.), yet I've never seen one that tried that? | 2,070 | You are conflating two concepts here. Copyright allows the holder to make copies of the material Sale, rental, leasing or licencing are means by which a (or a bundle of) copies may be transferred from one person to another. There is nothing that prevents a book publisher from licensing books rather than selling them; except practicality. In fact, lending libraries (as owners of a copy not necessarily as copyright owners) do this all the time. | 0 |
Why were books never published with a EULA? | Software companies write EULA to force users to relinquish their rights (such as first sale, decompiling/reverse engineering) before being allowed to use the software. Why are books never published this way (by opening this book you agree to the license ...). There are many publishers that would love to remove right of first sale (textbooks et al.), yet I've never seen one that tried that? | 2,264 | @feetwet: To answer what you wrote in your comment... A EULA cannot force the customer to do anything. What the copyright holder can do is to declare that a sale is not final until you accept that your rights are restricted to what the EULA declares, and if they don't agree, they can return the item sold for a refund. And both with books and software, you have obviously no right to make a copy without the sale being final. Now look how that works out with a book. You say "the sale is not final unless I agree that I cannot resell or lend the book". I have the book in my hands at my home. I have to think about whether I want to agree to the license or not. While I think about this, it is absolutely legal for me to read the story in the book, which I do. When I finished and have read the complete book, I go book to the store and say "I don't like your license, so take the book back and return my money". That's exactly how it works with software. But while I can read a book without copying, I cannot use the software without copying. See how it works? Because of the technical differences between software and books, there is no way for the copyright holder of a book to get anything useful out of such a license. If he tries, I can make him decide to either let me read the book for free, or to forget about the license. "By opening this book you agree to this license..." - that doesn't work! I don't agree with it, and that's it! Since I have the right to open a book (there's a copyright law, but there's no openright law), I don't have to agree to anything to open and read the book. "By copying this software you agree to this license..." that works slightly better. Since I don't have the right to copy the software, you cannot force me to agree to the license, but you can force me to either agree or to admit copyright infringement. | 0 |
Review of contract with startup | I'm considering a contract with a very small startup (in the US). The compensation is largely equity-based, as opposed to salary. I understand the offer and have strong trust in the other owners (I've worked with them previously). I don't, however, have a huge amount of trust that the small lawyer hired by the company did a great job with the contract. The primary risk I'm concerned about it that an acquiring company might take advantage of a poorly written contract to not pay me. What services are available to an individual to have this contract reviewed and ensure it protects my interests? How important is it to get the contract reviewed at this point? Is there any recourse in a future dispute for the legalese not matching the lay-person's understanding of the contract? | 2,262 | This is what lawyers are for. There is no reasonable alternative to paying a lawyer with expertise in corporate and employment law to review the contract to ensure it protects your interests. Even if you did think the lawyer hired by the company was competent, he is not looking out for your individual interests because you didn't pay him. There are many reasons that contracts and their clauses can be voided or interpreted in different ways. But if it ever comes to a dispute it's too late to hire a lawyer to reconcile the contract to your understanding. At that point all you can do is spend a lot more money trying to litigate it into being interpreted your way. And by the time you're in litigation, it has been said, "only the lawyers win." | 1 |
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