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<p>MR NEWLINDS: You say that.</p>
<p>THE COMMISSIONER: I do say that. That is a possible
view, is it not?</p>
<p>MR NEWLINDS: I don't accept that's a reasonable view.</p>
</blockquote>
<p>I looked up the legal meaning of &quot;instructions,&quot; which is defined in the Oxford English Dictionary as:</p>
<blockquote>
<p><strong>5.</strong> In <em>plural</em>. <em>Law</em>. Information or directions regarding a case, as given by a client to a solicitor or a solicitor to a barrister. Also: authorization of a solicitor or barrister to conduct a case on a person's behalf.</p>
</blockquote>
<p>However, I also don't understand the point. What is Newlinds saying?</p>


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Answer 1: <h2>“You put that, of course, respectfully?”</h2>
<p>You bet your ass Heydon is telling Newlands off. Knock down drag out fights in a courtroom are more subtle than in a barroom and the judge <em>always</em> wins.</p>
<p>First we have the trivial issue that the barrister interrupted the commissioner <em>while he was speaking</em>! This is <em>extreemly</em> disrespectful and Heydon was pointing that out by calmly but sarcastically suggesting that the interruption should have started with “With respect ..,”. The clear implication that the interruption should not have happened <strong>at all</strong>. It doesn’t matter if you disagree with what the court is saying, <em>you don’t interrupt</em>, you wait for your opportunity to respond. You will be given it. That’s respect.</p>


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<p>More germanely, the barrister is in a tricky position. I don’t know what came before the video starts but it was clearly one Newlands did not expect but that Heydon thought was foreseeable. Newlands is trying to hide behind “I haven’t been instructed on that” but is having trouble because the client (or at least, the client’s representative) is in the room and can instruct him <em>right now</em>.</p>
<p>Not being prepared in court is also disrespectful. At a rough guess, just the people you see in the video are costing <em>somebody</em> north of $10,000 per hour. You don’t show up for the big game, tell the coach you can’t play because you forgot your boots but that it’s not your fault. Particularly when the person standing behind you is <em>holding your boots</em>.</p>


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Question Title: Serving as a trustee of a trust

Question Body: <p>A person serves as a trustee of an asset protection trust without compensation. Suppose there is a problem and some of the money is missing from the trust.</p>
<p>Could the trustee be sued and have to pay money? Would it be a valid defense that since the trustee was not paid there was no contract and therefore the trustee is not liable?</p>


Answer 1: <blockquote>
<p>Could the trustee be sued and have to pay money?</p>
</blockquote>
<p>Yes.</p>
<blockquote>
<p>Would it be a valid defense that since the trustee was not paid there
was no contract and therefore the trustee is not liable?</p>
</blockquote>
<p>No.</p>
<p>There are no gray areas on either of these points. This is clear &quot;black letter law.&quot;</p>


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Answer 2: <h2>Depends on how the money went missing</h2>
<p>A trustee owes a fiduciary duty to the beneficiaries irrespective of if they are being remunerated or not.</p>
<p>They are personally liable for any breach of that duty. However, they are not liable if the acted honestly, justly, and reasonably in discharging their duties under the trust.</p>
<p>So, if money is lost as a result of reasonable businesses or investment decisions made by and honest and just trustee, they are not liable. This may extend if the money went “missing” due to malfeasance by an employee or agent of the trust whom the trustee reasonably engaged (assuming the trust deed allows them to do this - most do), providing the trustee took reasonable precautions such as inquiring into their honesty or considering if they should insure against this risk.</p>
<p>However, if money is just “missing” and no one knows why, the trustee has clearly failed in their duty and would be personally liable.</p>


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Answer 3: <p>It is normal for unpaid trustees (who are not beneficiaries) to have a clause in the trust document, holding them not liable.  This would not normally apply to misconduct by the trustee.</p>
<p>We have such a clause in our last three trust documents for our accountant, who is the third trustee and unpaid and independent.</p>


Tags: united-states, civil-law, trusts-and-estates


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Question Title: Is there a term for set/prescribed measures of damages?

Question Body: <p>A recent answer answers the question with another question, that of what damage the plaintiff has actually <em>suffered</em>. Yet certain statutory/case regimes have guidelines for compensation that are blind to actual damage suffered.</p>
<p>For example, where one can make out that a breach of the equality act has taken place, the Vento scale applies, even if it didn’t actually result in £900 worth of suffering.</p>
<p>Likewise, if a breach of either s213(3/6) HA2004 can be demonstrated, then the value of claims under S214 is prescribed by a set formula, regardless of actual impact to the applicant.</p>
<p>Can anyone think of any further examples of this, and Is there a name for this kind of prescribed, impact-blind regime for damages measures?</p>


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Answer 1: <h2><a href="https://en.wikipedia.org/wiki/Statutory_damages" rel="nofollow noreferrer">Statutory Damages</a></h2>
<blockquote>
<p>… the amount awarded is stipulated within the statute rather than being calculated based on the degree of harm to the plaintiff.</p>
</blockquote>
<h2><a href="https://en.wikipedia.org/wiki/Liquidated_damages" rel="nofollow noreferrer">Liquidated Damages</a></h2>
<p>Parties to a contract are free to agree on the amount of damages that will be payable for a class or classes of breach. For example, it is very common in construction and engineering contracts for a per diem to be set for late completion.</p>
<p>Such damages must be a genuine pre-estimate of the damage that might be suffered by the breach. If they are excessive, they will be set aside as an unlawful penalty clause.</p>
<h2><a href="https://en.wikipedia.org/wiki/Damages#Nominal_damages" rel="nofollow noreferrer">Nominal Damages</a></h2>


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<h2><a href="https://en.wikipedia.org/wiki/Damages#Nominal_damages" rel="nofollow noreferrer">Nominal Damages</a></h2>
<p>Some corners of the law allow a suit to be brought in the absence of actual damage in which a successful plaintiff is awarded $1 or similar nominal sum. Such a victory can still be important in jurisdictions where costs follow the event i.e. the loser pays the winner’s costs.</p>
<p>Many such regimes are statutory in nature and involve areas where damage can be hard to quantify, particularly in advance - IP law, anti-competitive behaviour, consumer protection, unlawful discrimination etc. in essence, this is still statutory damages.</p>
<p>One area of non statutory (i.e. common) law where this applies is defamation.</p>
<p>Notably, it does not apply in the largest area of tort litigation - negligence.</p>


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Question Title: Are there causes of action for which an award can be made without proof of damage?

Question Body: <p>Are there causes of action for which an award can be made without the plaintiff demonstrating loss/damage?</p>


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Answer 1: <p>Yes. Therefore, when assessing a claim, it would be incorrect or premature to conclude simply from lack of actual harm/damage that a wronged party would have no available remedy. In order to make this conclusion, one would have to examine the statutory scheme or the nature of the tort to determine whether the claim is actionable without proof of damage.</p>
<h3>Many statutory causes of action are actionable without having to prove loss or harm.</h3>
<ul>
<li>Canada's <a href="https://laws-lois.justice.gc.ca/eng/acts/C-42/FullText.html" rel="noreferrer"><em>Copyright Act</em>, s. 38.1</a> allows a plaintiff to opt for <em>statutory damages</em></li>
<li><a href="https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00008F.pdf" rel="noreferrer">Texas's SB-8</a> creates a cause of action that allows the claimant to recover statutory damages absent any proof of harm to the claimant</li>


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<li>The <em>Telephone Consumer Protection Act of 1991</em>, <a href="https://www.law.cornell.edu/uscode/text/47/227" rel="noreferrer">47 USC § 227</a> provides for statutory damages in the amount of $500</li>
<li>In British Columbia, &quot;it is a tort, actionable without proof of damage, for a person to use the name or portrait of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose&quot; (<a href="https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-373/latest/rsbc-1996-c-373.html" rel="noreferrer"><em>Privacy Act</em>, RSBC 1996, c 373</a>)</li>
</ul>
<h3>The common law and equity also recognize various wrongs and remedies without proof of damage</h3>


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</ul>
<h3>The common law and equity also recognize various wrongs and remedies without proof of damage</h3>
<p>The tort of trepass is actionable without proof of damage (<em>Peter Ballantyne Cree Nation v Canada (Attorney General)</em>, <a href="https://canlii.ca/t/gtxxf#par130" rel="noreferrer">2016 SKCA 124, at para 130</a>).</p>
<p>The tort of battery is actionable without proof of damage (<em>Norberg v. Wynrib</em>, <a href="https://www.canlii.org/en/ca/scc/doc/1992/1992canlii65/1992canlii65.html" rel="noreferrer">[1992] 2 S.C.R. 226</a>).</p>
<p>The equitable remedy of disgorgement may also be available without proof of damage (for example, after a breach of fiduciary duty) (<em>Atlantic Lottery Corp. Inc. v. Babstock</em>, <a href="https://canlii.ca/t/j8tcb#par32" rel="noreferrer">2020 SCC 19, at para 32</a>).</p>


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Question Body: <p><a href="https://www.theguardian.com/society/2023/jun/27/sharing-deepfake-intimate-images-to-be-criminalised-in-england-and-wales" rel="noreferrer">It is in the news</a> that sharing deepfake intimate images to be criminalised in England and Wales in the <a href="https://bills.parliament.uk/publications/51870/documents/3679" rel="noreferrer">Online Safety Bill</a>:</p>
<blockquote>
<p>Sharing deepfake intimate images is to be criminalised in England and Wales. Amendments to the online safety bill will make it illegal to share explicit images or videos that have been digitally manipulated to look like someone else without their consent.</p>
</blockquote>
<p>To try to find the definition I have searched the bill for the relevant words in that paragraph (deep, manipulated, &quot;someone else&quot;, &quot;explicit images&quot;) and they do not occur.  &quot;consent&quot; occurs 9 times but not in this context.</p>


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<p>I am interested in how the distinction is made between a deep fake created specifically to look like someone and one that looks like someone because they are in the training dataset.  <a href="https://www.indy100.com/science-tech/ai-generated-girls-onlyfans-2659375868" rel="noreferrer">Generative AI porn is a thing</a>, and this is all created from video and images available online, pornographic and not.  It
seems plausible that one could create and share an explicit work using an AI without the knowledge that it looked like a real person.  Could that be criminalised under this law?</p>


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Answer 1: <p>Section 170 of the Online Safety Bill proposes a new section 66A in the Sexual Offences Act:</p>
<blockquote>
<p><strong>66A Sending etc photograph or film of genitals</strong></p>
<p>(1) A person (A) who intentionally sends or gives a photograph or film of
any person’s genitals to another person (B) commits an offence if—</p>
<p>(a) A intends that B will see the genitals and be caused alarm, distress or humiliation, or</p>
<p>(b) A sends or gives such a photograph or film for the purpose of obtaining sexual gratification and is reckless as to whether B will be caused alarm, distress or humiliation …</p>
<p>(5) References to a photograph or film also include—</p>
<p>(a) <strong>an image, whether made by computer graphics or in any other way, which appears to be a photograph or film</strong> …</p>
</blockquote>


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<p>(a) <strong>an image, whether made by computer graphics or in any other way, which appears to be a photograph or film</strong> …</p>
</blockquote>
<p>So the law doesn’t define or prohibit the sharing of “deepfakes” as such. What makes the sharing illegal is the sender’s state of mind and the recipient’s potential “alarm, distress or humiliation.” Subsection (5)(a) then makes it clear that the law applies even if the shared image is computer-generated and therefore not really “a photograph or film of any person’s genitals.”</p>


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Question Title: Salaried workers and sick pay - UK

Question Body: <p>Someone I work with (in the UK) is salaried by definition of their contract. They used to get a flat rate at the end of each month, lets say £2000 or thereabouts.</p>
<p>A new owner has come in and said that sick days will be taken off their pay unless they make those up elsewhere. So the worker has three choices if they are off a day due to illness, they can either have their pay reduced, they can do an extra day at some other point in the month or they can use some of their holiday to cover the illness so they get paid their usual amount.</p>
<p>If they work beyond what is expected of them, they get no overtime as they are salaried.</p>
<p>The contract they have signed doesn't say they get sick pay, just SSP, but to me this seems to be wrong given they are meant to be salaried.</p>
<p>To me this seems like a lose-lose situation for the worker and I'm wondering if it is at all legal?</p>
<p>Thanks
Rabidbean</p>


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Answer 1: <h2>This is <a href="https://www.ouryclark.com/resource-library/quick-guides/employment/employment-overview-of-uk-employment-law.html" rel="nofollow noreferrer">legal</a></h2>
<blockquote>
<p>Employees are not legally entitled to receive their salary whilst off sick. However, if the employee is ill for 4 or more days (including weekends), they would be entitled to Statutory Sick Pay.</p>
</blockquote>
<h2>However …</h2>
<p>It’s possible their contract has been varied by tacit agreement with the previous owner if they were routinely paid for sick time. If so, the varied contract would bind the new owner.</p>
<p>However, waivers and variations by conduct of contracts are a tricky area of law and difficult to prove particularly if they flat-out contradict a written contract.</p>


Tags: united-kingdom, salary


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Question Body: <p>Bob is ejected from a private business as the police are called because the security guard felt his dietary proclivities were socially unacceptable in public. The police arrived and Bob was already out of the store but they claimed even after hearing his side of the story that he must give his personal address and details under s50 police reform act due to their having been allegations of anti social behaviour committed. If he didn’t comply with their demand, they said, then he would be arrested.</p>
<p>Several problems with this: at first they requested Bob’s details for the purpose of rendering a trespass/barring notice to him. When he declined on the basis that no offences had been committed, they replied by changing their request to a demand on threat of arrest, for which the ground was the then-invoked s50 police reform act, and the fact that there had been at least allegations of anti social behaviour.</p>


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<p>First, it was evident that they had not been planning to treat the situation as one of dealing with a case of ASB. They simply wanted to relay the private business’s desire to ban Bob from future visits to their premises, which was evidently the motive for their request for bob’s personal details, and in Itself I think I grounds for a compulsory demand for the same.</p>
<p>The second issue is that they then turned around and disclosed Bob’s details including name and DoB to the private business who in itself has no right to compel such disclosure of personal data.</p>
<p>In my experience, an uncharged criminal suspect’s details have never been disclosed to me by police even when they are aware of them, when I have been a complainant/victim. Why does a business’s private security become entitled to a private individual’s personal details disclosed under compulsion and force of law?</p>


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<p>The officers explained to Bob that it is permissible to disclose for the purpose of prevention and detection of crime. (Which trespassing in itself is not).</p>
<p>Was this officer talking nonsense?</p>


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Answer 1: <p>The relevant part of the act is:</p>
<blockquote>
<p>If a constable in uniform has reason to believe that a person has
engaged, or is engaging, in anti-social behaviour, he may require
that person to give his name and address to the constable.</p>
</blockquote>
<p>It certainly seems reasonable for an officer in this situation to assume this is the case.</p>
<p>Sharing the information in this scenario seems a little more sketchy. The officer was correct that the police can disclose this info for prevention and detection of crime. However, there appears to be no reason that this is the case here.</p>
<p>Bob's information is not necessary to bar him. This can be done without any details besides a physical description for security staff (which the business already has from witnessing and CCTV). Name and address are pointless here. If the business doesn't take that information on entry then it is useless to know; if they do then they know anyway.</p>


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Answer 2: <h2>Complain to the <a href="https://ico.org.uk/make-a-complaint/" rel="nofollow noreferrer">ico</a></h2>
<p>Police are subject to the GDPR just like everybody else. While the collection of the personal information seems legal, the disclosure to a third party is questionable.</p>


Tags: england-and-wales, police, data-protection, trespass, private-property


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Question Title: Closed source code theft prevention via license

Question Body: <p>Let's say I have an app stored as a closed source code (e.g on github) for which I have a software license in place (Apache 2.0), is this enough to prevent/prosecute an employee or just a random outsider who somehow managed to get the code, copy it and thereby &quot;proclaiming&quot; it as his own, and in what specific circumstances is it possible (him publishing the app, giving it to a third party etc.)?</p>


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Answer 1: <p>You can’t <em>prevent</em> “theft” of your source code, but you can ensure that you can sue the “thief” for copyright infringement and receive damages, or force them to delete all copies of your source code.</p>
<p>Now a license doesn’t do what you seem to think it does. Copyright law, without any license, allows people to do very little: It allows them to have and use one copy of the code <em>that you gave them</em> and nothing else. A license allows people to do things that would be illegal without the license. So you need to check the apache license to see what exactly it allows others to do. For example, the GPL license allows people who received the software legally from you with the license to give it to others under some conditions.</p>
<p>But I don’t think there is any license that allows people to just take your copy from you.</p>


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<p>But I don’t think there is any license that allows people to just take your copy from you.</p>
<p>If you think someone took your software without your permission, you can ask a lawyer for help. You can as a first step send them a letter that you believe they have your software without permission, ask them to destroy all copies, and notify you that they have done this.</p>
<p>Penalty for copying your software in the USA is either between 30,000 and 150,000 if you can’t proof the amount of damages, or the amount of damages you can prove. Of course this requires that you win a lawsuit which isn’t cheap, and that they have money to pay you.</p>


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Question Title: In United Kingdom what are consumer rights about online subscription

Question Body: <p>A few months ago I subscribed to an online service that monthly delivers goods (beers) to my home. I now want to cancel but they ask to call to do so.</p>
<p>I tried for a few days and of course, no one is ever available...</p>
<p>What are my rights? Can I just call my bank to stop the payment?</p>


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Answer 1: <p>Assuming the question relates to a consumer as defined in the <a href="https://law.stackexchange.com/a/80427">Consumer Rights Act 2015</a>.</p>
<p>I quote from Janet O'Sullivan, <a href="https://global.oup.com/academic/product/osullivan-and-hilliards-the-law-of-contract-9780198853176?" rel="nofollow noreferrer"><em>O'Sullivan &amp; Hilliard's Law of Contract</em></a> (2020 9 ed), p 207. The <a href="https://global.oup.com/academic/product/osullivan-and-hilliards-the-law-of-contract-9780192856555?" rel="nofollow noreferrer">2022 10 ed</a> shall be published in July 2022.</p>
<blockquote>
<p>8.27 According to s 61 of the CRA, a ‘consumer contract’ is defined in s 61(1) as a ‘contract between a trader and a consumer’. In turn, ‘trader’ and ‘consumer’ are defined in s 2 of the CRA as follows:</p>


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<p>(2) ‘Trader’ means a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf.</p>
<p>(3) ‘Consumer’ means an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession.</p>
<p>(4) A trader claiming that an individual was not acting for purposes wholly or mainly outside the individual’s trade, business, craft or profession must prove it.</p>
</blockquote>
<p>If it does relate to a consumer, then I suggest the starting point is the CRA 2015, which protects Consumers way more than the Sale of Goods Act 1979.</p>


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Answer 2: <p>You might contact the Citizens Advice in UK who help in cases of such issues. You might look at <a href="https://www.citizensadvice.org.uk/consumer/changed-your-mind/cancelling-a-service-youve-arranged/" rel="nofollow noreferrer">Cancelling a service you’ve arranged</a> :</p>
<blockquote>
<p>Contact the Citizens Advice consumer helpline on 0808 223 1133 if you need more help - a trained adviser can give you advice over the phone. You can also use an online form.
If you’re in Northern Ireland, contact Consumerline.
An adviser at your nearest Citizens Advice will also be able to help you argue your case or argue for you.</p>
</blockquote>
<p>Generally, you have a contract with this business, and if you just stop paying they might keep delivering their goods and send a debt collector. Usually a letter with a written cancellation is always strongly recommended.</p>


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<p><a href="https://www.netlawman.co.uk/ia/cancellation-notice" rel="nofollow noreferrer">Here</a> they argue (for UK) that e.g. a letter of cancellation might be sufficient, see below. On the above referenced Citizens Advice webpage they have some templates for cancellation letters.</p>
<blockquote>
<p>There is no specific requirement as to how notification to cancel a contract should be given but in the event of a dispute the burden falls upon the consumer to prove that he did cancel within the cancellation period. So, for example, if he rings you but calls the wrong number, he will have failed to cancel.</p>
<p>As a trader, you have an obligation to provide information about how to cancel as well as the means to do so (a form in a prescribed format that your customer can use to give you notice).</p>


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<p>As a trader, you have an obligation to provide information about how to cancel as well as the means to do so (a form in a prescribed format that your customer can use to give you notice).</p>
<p>But whilst you must provide the model cancellation form in your system or process, the consumer is not obliged to use it. He can notify you in any way he likes, and in hard or soft copy. That includes, by letter or written note, by e-mail, or even by an SMS text message.</p>
<p>If you offer an online cancellation form on your website then your customer may use that, but if he does, then you must acknowledge receipt of that notice without delay through what the Regulations call a durable medium - e-mail message, written letter, or text message.</p>
<p>Of course, the cancellation is effective only if the communication is sent to you before the end of the cancellation period.</p>
<p>To emphasise, the key time is when the communication was sent, not when you received it.</p>
</blockquote>


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Question Title: If a minor enters a contract without the other party knowing about the age, and then the minor breaks a term, is it fraud?

Question Body: <p>A minor who signs a contract can void it at any time, which might cause damage to the other party. Let's consider this scenario:</p>
<p>A minor signs a contract with an adult online with neither party knowing each other's age. So the adult assumes that the contract is legally binding for both. The minor knows that the contract can be voided at any time, but doesn't tell the adult. In the contract, there is a confidentiality agreement which the minor breaks, such as giving out trade secrets to others. The adult decides to file a lawsuit but only then realizes that the contract was never truly valid.</p>
<p>In that case, will the minor face any charges? What can be done?</p>


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Answer 1: <p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a> <a href="/questions/tagged/united-kingdom" class="post-tag" title="show questions tagged &#39;united-kingdom&#39;" aria-label="show questions tagged &#39;united-kingdom&#39;" rel="tag" aria-labelledby="tag-united-kingdom-tooltip-container">united-kingdom</a> <a href="/questions/tagged/equity" class="post-tag" title="show questions tagged &#39;equity&#39;" aria-label="show questions tagged &#39;equity&#39;" rel="tag" aria-labelledby="tag-equity-tooltip-container">equity</a></p>


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<p>A court exercising its equitable jurisdiction may disallow a minor from impeaching the validity of a contract on the grounds of minority if the minor acted fraudulently: <em>Wilbur v. Jones</em> (1881), <a href="https://canlii.ca/t/jkzc0" rel="noreferrer">21 N.B.R. 4</a> (C.A.).</p>
<p>See also <em>Stocks v. Wilson</em> (1913), <a href="http://www.commonlii.org/uk/cases/UKLawRpKQB/1913/46.html" rel="noreferrer">2 K.B. 235</a>:</p>
<blockquote>
<p>What the Court of Equity has done in cases of this kind is to
prevent the infant from retaining the benefit of what he has
obtained by reason of his fraud. It has done no more than this,
and this is a very different thing from making him liable to pay
damages or compensation for the loss of the other party’s bargain.
If the infant has obtained property by fraud he can be compelled
to restore it; if he has obtained money he can be compelled to
refund it. If he has not obtained either, but has only purported


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If the infant has obtained property by fraud he can be compelled
to restore it; if he has obtained money he can be compelled to
refund it. If he has not obtained either, but has only purported
to bind himself by an obligation to transfer property or to pay
money, neither in a Court of law nor a Court of Equity can he
be compelled to make good his promise or to make satisfaction
for its breach.</p>
</blockquote>


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money, neither in a Court of law nor a Court of Equity can he
be compelled to make good his promise or to make satisfaction
for its breach.</p>
</blockquote>
<p><strong>Fraud in this context is not limited to literal misrepresentations at the time of contract formation</strong>: &quot;support may be found for the view that the mere fact that the minor wishes to retain the property which he has obtained while at the same time pleading infancy as a defence to a claim for its value, is fradulent conduct in the requisite sense... 'for an infant to attempt to obtain something for nothing is, in effect, fraud in the eye of equity'&quot;: John D. McCamus, &quot;<a href="https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=&amp;httpsredir=1&amp;article=2387&amp;context=scholarly_works" rel="noreferrer">Restitution of Benefits Conferred Under Minors' Contract</a>&quot; (1979) 28 U.N.B. Law Journal 89.</p>


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<p>In the circumstances you describe, if all is believed by the court, the court may exercise its equitable jurisdiction to require the infant to return any benefit they obtained from the transaction.</p>
<p>I cannot find an example case, but it also seems open for the court to enjoin the minor to stop disclosing the secrets.</p>
<h3>Common law and equity</h3>


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<p>I cannot find an example case, but it also seems open for the court to enjoin the minor to stop disclosing the secrets.</p>
<h3>Common law and equity</h3>
<p><a href="https://law.stackexchange.com/a/93518/46948">user6726's answer</a> focuses on the limited nature of remedies for this wrong at common law. user6726 is correct that fraudulent misrepresentation has a fairly narrow conception in common law, and it is a good answer for pointing this out. My answer is complementary in that it focuses on potential equitable remedies. This is yet another example where the <a href="https://law.stackexchange.com/questions/85675/what-are-equity-and-equitable-remedies">distinction between common law and equity is significant</a>: common law produces a somewhat harsh result for the wronged party, but equity may step in to return some fairness to the situation.</p>
<blockquote>


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<blockquote>
<p>The common law rule is that a minor is not liable to restore benefits conferred on him under a contract which is unenforceable against him, even if the contract results from his fraudulent misrepresentation of majority.</p>
<p><em>Chitty on Contracts</em>, §11-056.</p>
</blockquote>


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Answer 2: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<p>Contract fraud requires that


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<p>Contract fraud requires that
a representation was made, it was false, the defendant knew at the time that the representation was false, and intended that the plaintiff rely on it, in addition plaintiff relied on the misrepresentation and suffered harm as a result. In your scenario, the child does not make a representation, so failure to ask is the responsibility of the plaintiff. In general, there is no duty to speak, except in limited circumstances such as involves a serious defect or serious risk of injury. The plaintiff therefore cannot sue for damages, though if the minor disaffirms the contract in a timely manner, most states will require returning the goods / consideration in their possession. Also, certain contracts can't be disaffirmed by a minor.</p>


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<p>Criminal prosecution for fraud is highly unlikely. In the US, most criminal fraud statutes are limited to specific kinds of fraud such as real estate fraud, vehicle fraud, check or credit card fraud, identity fraud, forgery.</p>


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Question Title: Could any British statutes have remained in force as U.S. federal law after the American Revolution?


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Question Body: <p>The question <a href="https://law.stackexchange.com/q/43524/765">Are any British or English Acts of Parliament still in force in the United States?</a> asked</p>
<blockquote>
<p>Are there any Acts of the British (or English Parliament) in force before American independence that remain in force either at a federal, state (or other) level in the United States?</p>
</blockquote>
<p>The existing answers to that question address state law, but not federal law, so I want to re-ask the question about federal law only.</p>
<p>Clearly, British laws against e.g. murder, theft, fraud, and most other crimes were received into state law because those matters are under the jurisdiction of the states. But there were also some British laws related to the enumerated powers of Congress, so perhaps they continued in force as US federal law, at least for a brief period of time until Congress repealed them?</p>


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<p>For example, before Congress enacted the <a href="https://en.wikipedia.org/wiki/Naturalization_Act_of_1790" rel="nofollow noreferrer">Naturalization Act of 1790</a>, would a person born outside the US to a US citizen father have been a US citizen by dint of the US &quot;inheriting&quot; the <a href="https://en.wikipedia.org/wiki/British_Nationality_Act_1772" rel="nofollow noreferrer">British Nationality Act 1772</a> <em>mutatis mutandis</em>?</p>
<p>And before Congress enacted the <a href="https://en.wikipedia.org/wiki/Crimes_Act_of_1790" rel="nofollow noreferrer">Crimes Act of 1790</a>, would an American who levied war against the US, gave aid and comfort to its enemies, or counterfeited US currency have been convicted and sentenced under the <a href="https://en.wikipedia.org/wiki/Treason_Act_1351" rel="nofollow noreferrer">Treason Act 1351</a>?</p>


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Answer 1: <blockquote>
<p>Clearly, British laws against e.g. murder, theft, fraud, and most
other crimes were received into state law because those matters are
under the jurisdiction of the states.</p>
</blockquote>
<p>States (and also to some extent federal criminal statutes) received British common law definitions of various crimes and defenses, but not British penal statutes (which often didn't define those crimes in the late 18th century).</p>
<p>The statutory law of Britain did not apply as U.S. law at either the state or federal level upon the U.S. Declaration of Independence, except in isolated cases where a state, or the federal government expressly adopted it by reference in their own statute.</p>


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<p>The existence of British law, both statutory and through case law, informs how  the U.S. common law was understood (something that was predominantly a matter of state law) and how concept in the U.S. Constitution, U.S. federal statutes, and state constitutions and statutes were understood (especially when terms from British statutes are used in a similar matter in U.S. state and federal statutes and constitutions). But, British statutes did not have direct force and effect in the U.S. after independence.</p>
<p>As much as anything else, this simply reflect how the nature of statutes v. common law was understood in the late 18th and early 19th century. Nobody expected that British statutes would be directly applicable, so they weren't.</p>


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<p>There may have been instances where common law rules actually had their roots in British statutes that were mostly forgotten in long layers of British common law case law, and many statutes expressly adopting British case law also expressly incorporate selected relevant British statutes of generally applicability. But, no British statutes were applicable &quot;automatically&quot; in the U.S.</p>
<blockquote>
<p>For example, before Congress enacted the Naturalization Act of 1790,
would a person born outside the US to a US citizen father have been a
US citizen by dint of the US &quot;inheriting&quot; the British Nationality Act
1772 mutatis mutandis?</p>
</blockquote>
<p>No. Basic ways of thinking about what nationality or citizenship even was or meant would have been received, but not by receiving the British Nationality Act 1772 as U.S. law.</p>
<blockquote>
<p>And before Congress enacted the Crimes Act of 1790, would an American


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<blockquote>
<p>And before Congress enacted the Crimes Act of 1790, would an American
who levied war against the US, gave aid and comfort to its enemies, or
counterfeited US currency have been convicted and sentenced under the
Treason Act 1351?</p>
</blockquote>
<p>Not really.</p>
<p>From the adoption of the Declaration of Independence on July 4, 1776 until the adoption of the Articles of Confederation on June 11, 1777, as a practical matter, the revolutionary forced had very little actual control of the courts in an enforceable way, there was an insurgency against the British underway, and it was an ad hoc effort from day to day and month to month that was muddled through without a formal structure or guidance at a colony by colony level, or even more granularly within a colony.</p>


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<p>In the period from June 11, 1777 until the new U.S. Constitution was implemented in 1789-1790, under the <a href="https://www.archives.gov/milestone-documents/articles-of-confederation" rel="nofollow noreferrer">Articles of Confederation</a>, the situation was fluid and irregular. State governments made most statutory and common law, adopting their colonial era colonial statutes but not necessarily British statutes that their local legislature didn't adopt. Central government laws usually acted on the states, not directly on individuals, much like treaties today. There was little or no directly applicable central government legislation.</p>


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<p>Many topics, like citizenship, were simply ignored in this era. The U.S. Constitution adopted in 1789, and the initial acts of the First Congress to implement it, were a response to the realization that after the war and its immediate aftermath had settled down, that the newly formed country needed to regularize, institutionalize, and deal with a lot of governance issues and legal questions that nobody had had the time or resources or authority to deal with while a war had been going on.</p>
<p>For much of this time period the Revolutionary War was in progress and it wasn't always obvious who even controlled the courts or had practice authority to enforce court judgments. The <a href="https://en.wikipedia.org/wiki/American_Revolutionary_War" rel="nofollow noreferrer">Revolutionary War</a> was not concluded until 1783.</p>


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<p>It was an improvisation at first, and not necessarily a uniform one, since the Articles of Confederation conceived of the U.S. as many countries in an alliance with each other rather than an actual single nation that had to address legal issues uniformly.</p>
<p>Prior to the establishment of the federal court system under the U.S. Constitution of 1789 that remains in force, the only institution of the central government was Congress and its committees, which functioned as a legislative body, a body selecting people with executive authority, and as a court of last resort from state court judgments. Everything was carried out at the state level except for courts-martial.</p>
<p>Structurally, the Articles of Confederation were a fused system, akin to the U.K. Parliament which had its highest court of appeals and its prime ministership fused with the legislative authority of parliament, layered on top of 13 separate sovereign state governments.</p>


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Answer 2: <p>In 1664 King Charles II decided the eastern boundary of the northern part of the Province of New York would be the west bank of the Connecticut River, and that was reaffirmed a century later by King George III. Then in 1777 the State of Vermont was created within the geographic region considered by those two orders-in-council to be part of New York, and in 1791 admitted to the Union as the 14th state. That would mean the boundary between Vermont and New Hampshire is the west bank of the river rather than running down the middle of the river, as is more typical. If you look a Google Maps, you'll see it clearly marked that way. Only New Hampshire has jurisdiction on the river itself.</p>


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<p>In 1915, the state of Vermont asked the U.S. Supreme Court to rule that the thread of the channel, i.e. the deepest part of the river, is the boundary. New Hampshire maintained that it is the <em>top</em> of the west bank, not just the edge of the water. (That would enable New Hampshire to collect taxes on an industrial plant on the river bank but below the top of the bank.) Finally in 1933 the Court ruled that it is the western edge of the water rather than the top of the bank or the thread of the channel. The Court cited the orders-in-council of those two kings in support of its decision.</p>


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Question Body: <p>I saw repository on GitHub where someone had LICENSE file as below:</p>
<blockquote>
<p>Copyright year name</p>
<p>Licensed under the Apache License, Version 2.0 (the &quot;License&quot;);
you may not use this file except in compliance with the License.
You may obtain a copy of the License at <a href="http://www.apache.org/licenses/LICENSE-2.0" rel="nofollow noreferrer">http://www.apache.org/licenses/LICENSE-2.0</a></p>
<p>Unless required by applicable law or agreed to in writing, software
distributed under the License is distributed on an &quot;AS IS&quot; BASIS,
WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied.
See the License for the specific language governing permissions and
limitations under the License.</p>
</blockquote>
<p>I have read that Apache2.0 license must be copied into <code>LICENSE</code> file, and then the <code>NOTICE</code> file will contain exactly that what I showed above.</p>


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</blockquote>
<p>I have read that Apache2.0 license must be copied into <code>LICENSE</code> file, and then the <code>NOTICE</code> file will contain exactly that what I showed above.</p>
<p>If the license was invalid at first time, then can someone say &quot;your code at some moment wasn't licensed, so I created repo with your code and added copyright on my name&quot;? And if license was fixed, then does still someone could do it, because &quot;law is not retroactive&quot;? If yes, what this poor man should do to have copyrights?</p>


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Answer 1: <h2>It doesn't work like that!</h2>
<p>If the code is not properly licensed, you can not acquire a license for it. If you don't have a license, you can not use it. Usage without a license is <strong>copyright infringement</strong> and not allowed: <strong>the copyright is with the author, and only the author may make derivates or copies or allow them to be made by licensing it.</strong></p>
<p>You do <strong>not</strong> gain copyright by fixing a licensing error - in fact, you commit <strong>copyright infringement</strong> if you do not have a license, and <a href="https://www.law.cornell.edu/uscode/text/17/1202" rel="nofollow noreferrer">providing wrong copyright management information is illegal under 17 USC 1202</a></p>


Tags: copyright, licensing, open-source-software


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Question Title: Can a bank force you to use their app in order to use their services under the PSD2?

Question Body: <p>An online bank I am using (Qonto) contacted my recently by email to tell me that I will not be able to use my account from 5th July unless I install their app in my phone. They say it is mandatory for PSD2 compliance.</p>
<p>While I understand PSD2 may enforce security mechanisms, it surprises me that under the EU, an open standard is not promoted/enforced for banks (like One-Time-Password/OTP mechanisms).</p>
<p>Enforcing to use their app could be discriminatory since it assumes you can install it in your device (you may not have a compatible phone). Also, being a proprietary app, it could be used to track information about you that you do not want to share with your bank.</p>
<p>Can a European bank do this? Wouldn't PSD2 protect users from this somehow?</p>


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Answer 1: <p>The PSD2 <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32015L2366#d1e1374-35-1" rel="nofollow noreferrer">article 4(30)</a> defines multifactor authentication :</p>
<blockquote>
<p>‘strong customer authentication’ means an authentication based on the use of two or more elements categorised as knowledge (something only the user knows), possession (something only the user possesses) and inherence (something the user is) that are independent, in that the breach of one does not compromise the reliability of the others, and is designed in such a way as to protect the confidentiality of the authentication data;</p>
</blockquote>
<hr />
<p>The <a href="https://www.eba.europa.eu/eba-publishes-an-opinion-on-the-elements-of-strong-customer-authentication-under-psd2" rel="nofollow noreferrer">EBA</a> published an opinion about the means of 2FA that are compliant with the Strong Customer Authentication of the PDS2</p>
<blockquote>


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<blockquote>
<p>it surprises me that under the EU, an open standard is not promoted/enforced for banks (like One-Time-Password/OTP mechanisms).</p>
</blockquote>
<p>OTP/TOTP is not a compliant way to conduct SCA because of :</p>
<blockquote>
<p>The EBA is also of the view that an OTP that contributes to providing evidence of possession would not constitute a knowledge element for approaches currently observed in the market. Indeed, knowledge, by contrast with possession, is an element that should exist prior to the initiation of the payment or the online access.</p>
</blockquote>
<p>TOTP would be compliant if it used a non-transferrable token that is only useable on that device alone (which a normal SOTP isn't) :</p>
<blockquote>


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</blockquote>
<p>TOTP would be compliant if it used a non-transferrable token that is only useable on that device alone (which a normal SOTP isn't) :</p>
<blockquote>
<p>As stated in the EBA Opinion on the implementation of the RTS (paragraph 35), a device could be used as evidence of possession, provided that there is a ‘reliable means to confirm possession through the generation or receipt of a dynamic validation element on the device’. Evidence could, in this context, be provided through the generation of a one-time password (OTP), whether generated by a piece of software or by hardware, such as a token, text message (SMS) or push notification. In the case of an SMS, and as highlighted in Q&amp;A 4039, the possession element ‘would not be the SMS itself, but rather, typically, the SIM-card associated with the respective mobile number’.</p>
</blockquote>
<hr />
<blockquote>
<p>Can a European bank do this?</p>
</blockquote>
<p>App-based auth is compliant because :</p>
<blockquote>


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</blockquote>
<hr />
<blockquote>
<p>Can a European bank do this?</p>
</blockquote>
<p>App-based auth is compliant because :</p>
<blockquote>
<p>The EBA is of the view that approaches relying on mobile apps, web browsers or the exchange of
(public and private) keys may also be evidence of possession, provided that they include a device-binding process that ensures a unique connection between the PSU’s app, browser or key and the device. This may, for instance, be through hardware crypto-security, web browser and mobile-device registration or keys stored in the secure element of a device</p>
</blockquote>
<hr />
<blockquote>
<p>Also, being a proprietary app, it could be used to track information about you that you do not want to share with your bank.</p>
</blockquote>
<p>You need to read the Privacy Policy of the app/service and exert your country/EU consent modification/retraction right</p>
<blockquote>
<p>Can a European bank do this?</p>
</blockquote>


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<p>You need to read the Privacy Policy of the app/service and exert your country/EU consent modification/retraction right</p>
<blockquote>
<p>Can a European bank do this?</p>
</blockquote>
<p>Why wouldn't they be allowed? There are many services that you can only access on a proprietary app.</p>
<blockquote>
<p>Wouldn't PSD2 protect users from this somehow?</p>
</blockquote>
<p>PSD2 gives security requirements, not anything else</p>


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Question Title: In what sense is the City of London a &quot;corporation&quot;?

Question Body: <p>According to its recently quoted annual report, legislation treats it &quot;as a corporation&quot;. In what sense is this true and in which is it not true?</p>


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Answer 1: <p>Although the word typically refers to a specific type of business entity, &quot;corporation&quot; simply means a group (or &quot;body&quot;) of people or other entities that are collectively endowed with a status that treats them as though they were a single legal person that can exist indefinitely.</p>
<p>In common-law jurisdictions like the U.K., this includes municipal corporations, which generally consist of the people living within the corporation's territorial boundaries, exercising their collective will through their elected representatives, and assigned certain rights and obligations as a result of their collective status.</p>


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<p>Although the same word is used, it would generally not be the case that a municipal corporation would be governed by the same laws as business corporations or trade guilds, which are also sometimes referred to as corporations. Barclay's and the City of London are both corporations, and therefore are treated as entities capable of making their own decisions, with rules allowing for their decision-making bodies to keep them &quot;alive&quot; in perpetuity. But there are also many obvious differences. The City of London does not have shareholders in the same sense that Barclays would, nor is it obligated to register its existence or undertake most of the other responsibilities facing a corporate entity.</p>
<p><a href="https://en.wikipedia.org/wiki/Municipal_corporation" rel="nofollow noreferrer">Wikipedia</a> has more detail broken down by jurisdiction.</p>


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Answer 2: <h2>A corporation is one type of <a href="https://en.wikipedia.org/wiki/Juridical_person" rel="nofollow noreferrer">judicial person</a></h2>
<p>All corporations are creatures of statute; that is, they exist because there is a statute that creates them or allows them to be created. Most corporations in the UK are companies created under the <a href="https://www.legislation.gov.uk/ukpga/2006/46/contents" rel="nofollow noreferrer">Companies Act</a> 2006; the <a href="https://en.wikipedia.org/wiki/City_of_London_Corporation" rel="nofollow noreferrer">City of London</a> (formally the Mayor and Commonality and Citizens of the City of London) isn't one of those.</p>


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<p>The statute that first created the City does not survive, and the city is regarded as being incorporated by prescription, meaning the law presumes it to have always existed (which is, obviously, not true - it's another legal fiction). The first recorded Royal Charter dates from 1067 when William the Conqueror granted the citizens of London a charter confirming the rights and privileges that they had enjoyed since the time of Edward the Confessor. Over the centuries, various charters and acts of Parliament have modified how the corporation operates.</p>


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Question Body: <p>During the Kyle Rittenhouse Trail, on days 6 and 8, questions were raised about the program used to enhance the video evidence. The program, Amped FIVE, was used for the drone footage. To do this, Amped FIVE employs interpolation algorithms. Because of this, a dispute broke out between the prosecution and defense. These debates ranged from what is an interpolation, to whether the program added colors. James Armstrong, the senior forensic imaging specialist responsible for producing these enhanced videos, was brought in the courtroom to explain the process. What followed was truly interesting.</p>
<p>My main concern was with how the defense went about justifying why the drone footage should not have been used. I admit I do not understand court procedures and several things had me scratching my head. I would like to preface this by saying I understand it is the job of the defense to protect Kyle Rittenhouse. However, I felt did not make the best case.</p>


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<p>When questioned about the algorithm, on multiple occasions the defense would ask Mr. Armstrong how the interpolation worked. However, every time he was asked, he could only provide them with what kind of interpolation was used. He admitted that he did not understand how it was programmed. And why would he? Interpolation is an incredibly complex process that requires advanced mathematics and computer science. Not only that but, companies purposely do not disclose this information to prevent people from reverse-engineering their products. These questions could only be answered by a computer scientist or mathematician who worked on the program. So why wasn't one brought in? Also, because of his ignorance, wasn't a majority of the questioning a waste of time?</p>


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<p>Another problem arose when the defense was trying to explain interpolation, they used an example that oversimplified the concept so much that it seemed to no longer make sense. The red, purple, and blue pixel example was very flawed in how it was presented. I believe the example wouldn't even work for the nearest neighbor because it would not have turned the pixels in the middle purple. Although this was a poor example, the judge used this as a basis for his understanding of interpolation which worked in the favor of the defense. Also, the defense kept trying to make Mr. Armstrong admit things he did not feel comfortable with because of his lack of knowledge. They asked the same question about adding colors repeatedly and he could never answer. And the language they use like &quot;add&quot; and &quot;manipulate&quot; implies that the enhanced footage was deceptively altered to give the prosecution an advantage. Because of this, they tried to argue that the video was unreliable.


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and &quot;manipulate&quot; implies that the enhanced footage was deceptively altered to give the prosecution an advantage. Because of this, they tried to argue that the video was unreliable. Ironically, the defense submitted evidence that was altered similarly.</p>


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<p>Lastly, why was a peer-reviewed process using an industry-standard program not allowed to be used? I am aware that the judge said the burden of proof is on the prosecution but didn't they already prove that the footage was perfectly suitable for use in the trial? The prosecution asked Mr. Armstrong whether the procedures were acceptable for forensic imaging.</p>
<p>I guess to sum everything up, why wasn't this handled better by both the defense and prosecution. I felt like the discussion went nowhere and all parties were incredibly ignorant.</p>
<p><a href="https://i.stack.imgur.com/20xYv.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/20xYv.png" alt="enter image description here" /></a></p>


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Answer 1: <p>The defense has an opportunity to question the witness the prosecution had called to provide foundation for the evidence, and in this case the defense's perspective is that the prosecution was trying to introduce evidence that they had improperly digitally manipulated.  Part of their questioning was trying to figure out how the witness had manipulated the image prior to offering it as evidence.  It's the prosecution's burden to prove that the evidence they are offering is accurate, the defense's purpose in asking the witness questions he could not answer is to try to prove to the judge that the prosecution has not laid proper foundation for the evidence because it has been manipulated from its original form in a way the prosecution cannot explain or justify as remaining fair and accurate to the events captured by the original footage.</p>


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<p>This case in particular had a lot of video evidence, and most of these issues were handled in <em>motions in limine</em> before the trial started.  However, the drone evidence in question was dropped at the prosecutor's office after the trial started, so the prosecution did not really have time to hire and <em>voir dire</em> an expert witness on Amped 5 (keeping in mind that the defense similarly had little time to review and account for the new evidence in the middle of trial).  Since the defense in this case were cross-examining the witness, they have some leeway to present an argument with their questioning like they chose to do with the red/blue pixel drawings.  As I recall the judge allowed the evidence as-is, so it does not appear that the defense's arguments were persuasive to the judge.</p>


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Answer 2: <p>I'm not overly familiar with this case, so will answer in general terms:</p>
<p>If the defence are not satisfied by a prosecution witness’s testimony then they are free to call their own witnesses in rebuttal, or to submit their own version of events and/or evidence to the jury.</p>
<p>As a side note; poor legal representation or case management by the defence team may be grounds for appeal (I don't know about the USA, but this is only available in <a href="https://forrestwilliamssolicitors.com/services/criminal-appeals/appealing-a-conviction-due-to-poor-legal-representation/" rel="nofollow noreferrer">extreme circumstances</a> in England and Wales).</p>


Tags: united-states, evidence, trial


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Question Body: <p>What exactly is &quot;employment&quot;? Does running my own limited liability company (GmbH or similar) constitute &quot;employment&quot;?</p>
<p>I am asking this because my (Swiss) employment contract (which I am about to sign) forbids &quot;any other remunerated employment&quot;. Is it then OK to (at the same time) form a company and serve another client(s), provided that all the other clauses and ethical rules are met, e.g. I am not entering into direct competition, trading business secrets etc.?</p>
<p>Thank you</p>
<p><strong>UPDATE (1):</strong> OK thank you for your answers and hints so far. If we just remove this clause from the contract, would it then be OK to run a company and serve (for pay) other client(s) (provided that all the other clauses and ethical rules are met)? Or is this prohibited by default (where?), and hence must be explicitly allowed?</p>
<p><strong>UPDATE (2):</strong> the employment contract in question is part-time.</p>


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Answer 1: <p>Your own limited company will at the very least have a company director (you) which is most likely employed.</p>


Answer 2: <p>Answer to updated question.</p>
<p><a href="https://www.kmu.admin.ch/kmu/en/home/concrete-know-how/personnel/employment-law/working-hours/multiple-jobs.html" rel="nofollow noreferrer">It is legal</a> to have to jobs, or a job plus your own company, in Switzerland.</p>
<p>This should be known to both employers to prevent them being in violation of labor laws.</p>
<p>Thus, the most non-controversial course of action is to negotiate this clause out of the contract, disclose your private practice, and ask what if anything is needed to comply.</p>


Tags: employment, corporate-law, limited-liability-company, switzerland, competition


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Question Body: <p>A number of news services have report on the Connecticut legislature voting to &quot;exonerate&quot; witch convictions from the 17th century.  For example, <a href="https://www.wtnh.com/news/connecticut/connecticut-senates-passes-resolution-to-exonerate-witch-trial-victims/" rel="nofollow noreferrer">this article from wtnh.com news:</a></p>
<blockquote>
<p>With distant family members looking on, Connecticut senators voted Thursday to absolve the 12 women and men convicted of witchcraft — 11 of whom were executed — more than 370 years ago and apologize for the “miscarriage of justice” that occurred over a dark 15-year-period of the state’s colonial history.</p>
<p>The Senate voted 33-1 in favor of a resolution that officially proclaimed their innocence. ... Some of the descendants recently learned through genealogy testing that they were related to the accused witches and have since lobbied the state’s General Assembly to officially clear their names.</p>


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</blockquote>
<p>I'm not familiar with the Connecticut constitution, but it seems that most states in the United States tend to follow the general format of the U.S. Consitution.</p>
<p>What part of the Connecticut constitution allows the legislature to do this?  That would seem to violate separation of powers for the legislature to void a court decision.  I can understand a pardon from the governor, since that tends to be an enumerated power.  But the <em>legislature</em>?</p>
<p><a href="https://www.cga.ct.gov/asp/content/constitutions/ctconstitution.htm" rel="nofollow noreferrer">Article XVIII</a> of the Connecticut constitution mentions the separation of powers:</p>
<blockquote>
<p>The powers of government shall be divided into three distinct
departments, and each of them confided to a separate magistracy....</p>
</blockquote>


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<blockquote>
<p>The powers of government shall be divided into three distinct
departments, and each of them confided to a separate magistracy....</p>
</blockquote>
<p>And article FIVE section 1 says that &quot;The powers and jurisdiction of these courts shall be defined by law.&quot;  But from my lay person understanding, allowing the legislature to define the &quot;powers and jurisdiction&quot; <em>of the courts</em> wouldn't allow the legislature to grant the power to <em>themselves</em>.</p>
<p>It looks like the Connecticut constitution doesn't enumerate legislative powers the way the U.S. Constitution does.  And that sort of makes sense since &quot;police powers&quot; are granted to the states, and their legislatures can pretty much do anything that they want, as long as it isn't specifically prohibited by the state or U.S. Constitution.</p>


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<p>But since Article FIVE says specifically that &quot;powers of government shall be <em>divided</em>...&quot; [emphasis added], it seems to my lay-person reasoning that the legislature couldn't intrude into court decision unless specifically authorized elsewhere in the Connecticut constitution.</p>
<p>The news article linked above mentions &quot;Because it’s a resolution, it does not require the governor’s signature.&quot;  Does that mean it's all for show?  That it doesn't truly exonerate the victims?</p>


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Answer 1: <p>The <a href="https://legiscan.com/CT/bill/HJ00034/2023" rel="noreferrer">resolution in Connecticut</a> is a statement that has been agreed by the state's legislature, but is not a law. If it were, it would indeed need to be signed by the Governor, by virtue of Article 4, Section 15 of the state Constitution. It exonerates the victims insofar as it expresses the current legislature's disapproval of the witchcraft trials of the past, and apologizes to living relatives. All of the victims are long dead, whether they were executed by the state or not, so even if this were a legally-effective pardon, it would have no other practical consequences.</p>


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<p>That said, a state legislature could enact pardons for named individuals, or a class of people. It would be unlawful to criminalize a named person (that's a &quot;bill of attainder&quot;) or to punish someone for an act that wasn't a crime at the time (an &quot;ex post facto law&quot;). But the opposite, which reduces or eliminates a punishment, is not covered by the federal or state constitutional bans on such laws. That was explained by Samuel Chase in <a href="https://supreme.justia.com/cases/federal/us/3/386/" rel="noreferrer"><em>Calder v Bull</em>, 3 U.S. 386</a>, a Supreme Court decision of 1798 dealing with actions of the Connecticut legislature ordering a retrial in a probate case (with my emphasis):</p>
<blockquote>


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<p>Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive, and it is a good general rule that a law should have no retrospect; but <strong>there are cases in which laws may justly, and for the benefit of the community and also of individuals, relate to a time antecedent to their commencement, as statutes of oblivion or of pardon</strong>. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigor of the criminal law, but only those that create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time or to save time from the statute of limitations or to excuse acts which were unlawful, and before committed, and the


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have an operation before the making thereof, as to commence at an antecedent time or to save time from the statute of limitations or to excuse acts which were unlawful, and before committed, and the like, is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime.</p>


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</blockquote>
<p>At the time, Connecticut's system for pardons made it so that an offender would always have to petition the legislature to pass a bill to that specific effect. That model predated the U.S. Constitution, and continued to operate after its ratification. The Governor only had the power to grant temporary reprieves, when the legislature was out of session - in fact, he still does (Article 4, Section 13 of the Constitution of Connecticut). Presently, the state has instituted a permanent system of a Board of Pardons and Paroles, but in principle they could enact some other model. The contemporaneous <em>A System of the Laws of the State of Connecticut</em> by Zephaniah Smith (1795) <a href="https://www.google.co.uk/books/edition/A_System_of_the_Laws_of_the_State_of_Con/dBE4AAAAIAAJ?hl=en&amp;gbpv=1&amp;pg=RA1-PA406&amp;printsec=frontcover" rel="noreferrer">says in Book 5, Chapter 26</a>:</p>
<blockquote>


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<blockquote>
<p>The power of granting pardon to criminals sentenced to death, or to any other punishment, is vested by law in the legislature.</p>
</blockquote>
<p>This carries forward a practice from the British legislatures, which also often passed acts to pardon or indemnify certain offenders. There was therefore quite a long history for Chase to allude to, even though he was writing not long after the revolution, in terms of this being part of the standard panoply of things a state legislature can generally do.</p>


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Question Body: <p>following scenario:</p>
<p>A man lives and dies in Georgia.</p>
<p>He served in the army and was located for a specific time in Germany. While he was there he was in a relationship with a woman. She became pregnant. The man signed the acknowledgement of paternity while the woman was still pregnant. He left Germany some weeks before his child would be born. A few days / weeks after his return he married in the states.
He adopted the son of this fresh married wife and soon after the marriage she became pregnant with a girl.</p>
<p>So far as a background.</p>
<p>Now the man dies in the scenario. He created a testament will many years ago when his son in Germany was only a couple of years old.
In this testament and will he mentioned that he is married and that he has 2 children (the adopted one and the girl).</p>
<p>In a paragraph you can find this: &quot;Except as otherwise provided in this my LAST WILL AND


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<p>In a paragraph you can find this: &quot;Except as otherwise provided in this my LAST WILL AND
TESTAMENT, I have intentionally anitted to provide herein for any other
relatives or for any other person, whether claiming to be an heir of
mine or not.&quot;</p>
<p>Questions:</p>
<ul>
<li>is the son from Germany disinherited by the sentence mentioned above?</li>
<li>As it is his son (he is named as father in the birth certificate) and he didn´t name him in the
testament and will: is this positive for the son to contest the will?</li>
<li>if the family of the man wants the son from Germany to sign the acknowledgment of service and the son refuses: what will happen next?</li>
</ul>
<p>Thank you!</p>


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Answer 1: <p>Under Georgia inheritance law, when a person writes a will then, unless the will is proven invalid, the provisions of the will are followed. If a person dies without a will, then the laws of intestate succession apply, whereby potentially all children receive a share of the estate. The courts will presumably interpret &quot;anitted&quot; in the will to mean &quot;omitted&quot;. The son from Germany is not necessarily disinherited by the sentence. The outcome depends on the provisions stating who <em>will</em> receive what portion of the estate. Typically, a will would say e.g. &quot;I bequeath my stuff to my son Billy Rae and my daughter Becky Sue&quot;, so the fact of omission of Karl Johan suffices to not entitle Karl Johan to a share. If the will specifies &quot;my two children&quot;, then there is an opportunity for litigation, since &quot;my children&quot; might be interpreted to mean &quot;my two natural issue&quot;, or &quot;the two whom I treated as my children,


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then there is an opportunity for litigation, since &quot;my children&quot; might be interpreted to mean &quot;my two natural issue&quot;, or &quot;the two whom I treated as my children, one having been formally adopted&quot; (who would be entitled to a share under Georgia law – adoption is as thick as blood under the law).</p>


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<p>On the third hand, if the will designates as beneficiaries &quot;all of my children whether by lineal descent or by adoption&quot;, Karl does fall into that category, however, Karl's sister has been explicity excluded by that sentence, likewise his mother, aunt etc.</p>


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<p>Karl can contest the will, but whether it would benefit him to do so depends on what the will actually says. The consequences of refusing to sign an acknowledgment of service are hard to assess, but it will at the very least draw out the process. However, under Georgia law, it <em>does</em> mean that you agree to the terms of the will and do not contest it. So, if Becky Sue is the nominated executor and has signaled her intent to ignore Karl, in signing the acknowledgment of service, Karl has indicated that he'll abide by her decisions. Therefore, Karl should not sign and should lawyer up to contest the will or choice of executor (and Karl should hire a Georgia attorney to do this, since German inheritance law i different).</p>


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Answer 2: <p>Every U.S. state allows you to disinherit your children.</p>
<p>Many U.S. states provide (in what is probably the majority rule) that if a child not provided for in a Will has to be identified by name or other adequate description (which the language in this Will would not meet) is entitled to the same share as other children provided for in the Will. <em>See, e.g.</em>, a <a href="https://law.stackexchange.com/questions/61641/children-and-grandchildren-must-be-explicitly-disinherited-in-wills/61681#61681">Law.SE analysis of New Hampshire law on point</a>.</p>


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<p>Georgia does have a somewhat similar provision in the case of afterborn children, which can be <a href="https://www.gtlaw-legacyadvisors.com/2017/10/state-law-on-after-born-children-leads-to-revocation-of-a-will/" rel="nofollow noreferrer">deemed to be a partial revocation of a Will</a> if the Will is not revised to reflect an intent to provide for that child. The relevant statute is Georgia Code § <a href="https://law.justia.com/codes/georgia/2019/title-53/chapter-4/article-5/section-53-4-48/" rel="nofollow noreferrer">53-4-48</a>. Subsection (a) of that section states:</p>
<blockquote>
<p>Except as otherwise provided in Code Section 53-4-49, the marriage of
the testator, the birth of a child to the testator, including a
posthumous child born within ten months of the testator's death, or
the adoption of a child by the testator subsequent to the making of a
will in which no provision is made in contemplation of such event


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the adoption of a child by the testator subsequent to the making of a
will in which no provision is made in contemplation of such event
shall result in a revocation of the will only to the extent provided
in the remainder of this Code section.</p>
</blockquote>
<p>In this case, however, since the German child is not an afterborn child and was not unknown to the testator (i.e. to th person who wrote the Will), Georgia's law does not amend the Will to reflect this omission.</p>
<blockquote>
<p>is the son from Germany disinherited by the sentence mentioned above?</p>
</blockquote>
<p>As noted by <a href="https://law.stackexchange.com/a/93500/9517">user6726</a>, the failure to affirmatively provide for the German child is what disinherits that child, not the sentence quoted above.</p>
<blockquote>
<p>As it is his son (he is named as father in the birth certificate) and
he didn´t name him in the testament and will: is this positive for the
son to contest the will?</p>
</blockquote>


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<blockquote>
<p>As it is his son (he is named as father in the birth certificate) and
he didn´t name him in the testament and will: is this positive for the
son to contest the will?</p>
</blockquote>
<p>Not really. There is not indication from the facts of the question that the omission of the German child from the will was due to the incapacity of the person writing the Will at the time that the Will was written. Given his formal acknowledgment of paternity, there is every reason to believe that he knew that he has a German child at the time and intentionally omitted that child, rather than doing so because due to dementia he didn't know who his children were.</p>
<blockquote>
<p>if the family of the man wants the son from Germany to sign the
acknowledgment of service and the son refuses: what will happen next?</p>
</blockquote>
<p>There is no context in the question for this statement. Who is serving the German child with what?</p>


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Question Title: Can you be charged with employee theft after being fired?

Question Body: <p>Suppose that a person, A, was hired by an employer, B, and then got fired a week later. Suppose that B mailed A a laptop while A was employed by B. Once A had been fired, B emailed A asking for the laptop back and sent a box for it to be returned. Suppose that A  was fired on Tuesday, got the email Wednesday, and was charged with theft (<a href="https://law.justia.com/codes/north-carolina/2005/chapter_14/gs_14-74.html" rel="nofollow noreferrer">GS 14-74</a>) on the following Monday. Suppose that B called the local police and made a complaint, and a warrant was issued for A's arrest on Tuesday. The laptop has already been mailed back by then.</p>
<p>Is such an arrest lawful? What options does A have?</p>


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Answer 1: <p>If you are facing felony charges, you need to hire a criminal defense lawyer, not ask for legal advice on the Internet.  Do not talk to the police without your lawyer present.  <strong>Do not attempt to represent yourself in any kind of hearing.</strong> Ignore any advice based on what seems fair or reasonable to someone on the Internet unless it is based on a real case in North Carolina or written by a real lawyer.</p>


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<p>That said, it appears to me that you have at least two strong defenses.  First, if you you returned the laptop (It will help if you sent it by registered mail or otherwise kept a receipt, although, remember, they need to prove beyond a reasonable doubt that you kept it), that shows you had no “intent to steal” or “purpose to steal” it, which is a necessary element of the crime.  Second, according to <a href="https://nccriminallaw.sog.unc.edu/embezzlement-vs-larceny-by-employee/" rel="noreferrer">the University of North Carolina criminal law blog,</a> you appear to have been charged with the wrong offense (although I don’t think that will actually help you if the prosecutor decides to bring the charge that matches what your former employer alleges you to have done).  It cites a relevant North Carolina Supreme Court ruling on the difference between larceny and embezzlement, State v. McDonald, 45 S.E. 582 (N.C. 1903).</p>


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<p>I would focus on getting yourself cleared of these charges first.  You can ask your lawyer if there is any recourse you might have against your former employer.  I’m skeptical that suing them would be worth it, but I don’t know the circumstances.  If you have proof of what they said to you and about you, hang on to it.</p>


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Answer 2: <p>The laptop was in your possession legally. Being fired makes no difference, it is still in your possession legally. Of course they can demand that you return the laptop, but that has to happen in a reasonable time. Charging you with theft two working days after is not allowing a reasonable time. For example, if you told me I was fired today, it wouldn't be unreasonable for me to take off for a week or two to visit friends, and get the email and the box two weeks later. Still no theft.</p>
<p>Assuming that you were contacted by the police, you can. go to them, explain the situation, and tell them that your ex-employer made a malicious false allegation. I believe you also have the right to ask the police about anything they hold against you to see exactly what is going on.</p>


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<p>(If we only look at the title of the question: If you are fired today, and next week your old employer figures out that you stole from them, of course you can be charged. The difference is that in your situation, you didn't steal anything, and they should have known that).</p>


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Answer 3: <p>In my jursdiction, the crime of shoplifting only requires that you take physical possession of goods for sale with the intent of permanently depriving their rightful owner of those goods. Pretty much every shopper at a grocery store satisfies every element of the crime of shoplifting <em>except</em> they don't have the right mental state.</p>
<p>If you pick up a melon in a grocery store with the intent to steal it, you've committed a crime. If you pick up that melon with no intent to steal it, you're shopping.</p>
<p>Now, of course, we can't directly prove what mental state a person has. But if you put a chicken down your pants in a grocery store, a jury could reasonably infer that you were stealig it.</p>
<p>In this case, you have satisfied every element of the crime of larceny by employee except the intent element. Larceny by employee requires the employee to have the intent of permanently depriving the rightful owner of the property.</p>


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<p>To charge you, someone had to have a reasonable belief that you intended to permanently retain the laptop. Otherwise, what they're doing is no different from charging someone with shoplifting for picking up a melon.</p>
<p>You need a lawyer. The lawyer needs to figure out what your employer told the police and what was the basis for the charge.</p>
<p>From what you've said, it seems like someone screwed up because there is no conceivable way anyone could reasonably believe that you intended to retain the laptop.</p>


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Answer 4: <p>The real issue here is if charges have been filled.</p>
<p>While unpleasant, an arrest carries very little legal weight. It simply means that the police thought that you could be guilty, but they were not sure and you were not allowed a chance to defend yourself. This means that innocent people get arrested every day, no big deal!</p>
<p>Now, if you have shown to the police/DA (and convinced them) that you already had sent the laptop, it shows that you did not intend to keep it itself, and it is unlikely that the DA (the one who could press charges) will continue.</p>
<p>If he wants to continue, you get representation by a lawyer that helps you through the trial.</p>
<p>To address your questions:</p>
<blockquote>
<p>Is such an arrest lawful?</p>
</blockquote>
<p>Probably yes, at least from the part of the police. Even if from your POV is overkill, that does not mean that they did something illegal or that you can sue them.</p>
<blockquote>


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</blockquote>
<p>Probably yes, at least from the part of the police. Even if from your POV is overkill, that does not mean that they did something illegal or that you can sue them.</p>
<blockquote>
<p>What options does A have?</p>
</blockquote>
<p>If we are talking about defending against charges of theft, there is one: hire a lawyer.</p>
<p>If we are talking at getting a compensation to your troubles, next to none. Certainly none from the police. The only thing that I think could be helpful would be if your employer deceived the police about your intentions.</p>
<p>E.g., if you told your employer &quot;I am busy right now but if you come to my place I will hand you the laptop, otherwise I will mail it on Monday&quot; and your employer reported to the police that what you say was &quot;I am keeping my laptop and you will never see it again!&quot;, then probably you could sue your employer. But then you would need evidence of what was said.</p>


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<p>But if your employer told the police &quot;he says he will return it but I do not believe him&quot;, then the employer was not lying to the police and he is quite safe.</p>


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Question Title: Do I need a licence to fly a drone in public?

Question Body: <p>If I practice flying a drone in a public park not over gardens or using the camera for looking into windows do I need a licence?</p>


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Answer 1: <p><a href="https://skykam.co.uk/uk-drone-laws/" rel="nofollow noreferrer">Skykam</a> has provided a summary of <a href="https://register-drones.caa.co.uk/drone-code" rel="nofollow noreferrer">UK regulations</a> for 2023:</p>
<ol>
<li>Drone operators must be at least 12 years old to fly independently</li>
<li>Drones are not permitted to fly higher than 400 feet (120 meters)</li>
<li>Operators must maintain a line of sight with their drone at all times</li>
<li>Permission is required before flying in restricted airspace</li>
<li>Do not fly your drone within a 5-kilometer radius of airports.</li>
<li>A minimum distance of 50 meters must be maintained from uninvolved persons (Drones below 250 grams are permitted to fly closer and over people)</li>
<li>Drones weighing 250 grams or more must be operated at least 150 meters away from parks, industrial areas, residential zones, and other built-up locations.</li>


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<li>Drones weighing 250 grams or more must be operated at least 150 meters away from parks, industrial areas, residential zones, and other built-up locations.</li>
<li>If a drone is equipped with a camera, the operator must register for an Operator ID with the CAA.</li>
<li>Insurance is mandatory for commercial drone use.</li>
<li>Compliance with these regulations is required during both daytime and nighttime operations.</li>
</ol>
<p>So...</p>
<ul>
<li><strong>If your drone has a camera,</strong> then Yes, you will need a flyer ID. This isn't a licence as such, and is free, but does involve a theory test.</li>
<li>If your drone weighs 250g or more, then you can't use it in a park.</li>
</ul>


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Question Title: Whiteboards availability in High courts and Supreme courts of USA and UK

Question Body: <p>Are Whiteboards available separately for the two lawyers in High courts and Supreme courts of USA and UK to explain their cases?</p>
<p>If No, Do you recommend to have Whiteboards in the courts?</p>


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Answer 1: <h2><a href="https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1#:%7E:text=Typically%2C%20two%20cases%20are%20heard,spent%20answering%20the%20Justices%27%20questions." rel="nofollow noreferrer">US Supreme Court</a></h2>
<p><strong>No</strong></p>
<p><em>Briefs</em></p>
<blockquote>
<p>According to the Supreme Court's rules, the petitioner has a certain amount of time to write a brief, not to exceed 50 pages, putting forth his/her legal case concerning the issue on which the Court granted review. After the petitioner's brief has been filed, the other party, known as the respondent, is given a certain amount of time to file a respondent's brief. This brief is also not to exceed 50 pages.</p>


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<p>After the initial petitions have been filed, the petitioner and respondent are permitted to file briefs of a shorter length that respond to the other party's respective position. If not directly involved in the case, the U.S. Government, represented by the Solicitor General, can file a brief on behalf of the government. With the permission of the Court, groups that do not have a direct stake in the outcome of the case, but are nevertheless interested in it, may file what is known as an amicus curiae (Latin for &quot;friend of the court&quot;) brief providing their own arguments and recommendations for how the case should be decided.</p>
</blockquote>
<p><em>Oral arguments</em></p>
<blockquote>


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</blockquote>
<p><em>Oral arguments</em></p>
<blockquote>
<p>Each case is allotted an hour for arguments. During this time, lawyers for each party have a half hour to make their best legal case to the Justices. Most of this time, however, is spent answering the Justices' questions. The Justices tend to view oral arguments not as a forum for the lawyers to rehash the merits of the case as found in their briefs, but for answering any questions that the Justices may have developed while reading their briefs.</p>
</blockquote>
<p>No room for whiteboards.</p>
<h2><a href="https://www.supremecourt.uk/procedures/practical-guidance-for-litigants-in-person.html" rel="nofollow noreferrer">UK Supreme Court</a></h2>
<p><strong>No</strong></p>
<p><em>Application</em></p>
<blockquote>
<p>An appellant needs to provide four copies of</p>
<ul>
<li><p>the application for permission to appeal;</p>
</li>


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<p><strong>No</strong></p>
<p><em>Application</em></p>
<blockquote>
<p>An appellant needs to provide four copies of</p>
<ul>
<li><p>the application for permission to appeal;</p>
</li>
<li><p>the order appealed against and the order refusing permission to appeal to the Supreme Court;</p>
</li>
<li><p>the official transcript of the judgment of the court appealed from;</p>
</li>
<li><p>the orders made by all other courts in the proceedings;</p>
</li>
<li><p>the transcript of the final judgments of all other courts in the proceedings; and</p>
</li>
<li><p>a document which sets out the history of the proceedings.</p>
</li>
</ul>
</blockquote>
<p><em>Documents</em></p>
<blockquote>
<p>... the documents which are needed for an appeal hearing. These are</p>
<ul>
<li><p>a statement of facts and issues - this document has to be agreed by all the parties to the appeal;</p>
</li>


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<p>... the documents which are needed for an appeal hearing. These are</p>
<ul>
<li><p>a statement of facts and issues - this document has to be agreed by all the parties to the appeal;</p>
</li>
<li><p>the appendix - this includes the documents listed at paragraph 8 above together with other documents which are necessary for understanding the legal issues and the &gt;</p>
</li>
<li><p>arguments in the appeal; and</p>
</li>
<li><p>the appellant's case and the respondent's case - these are the statements of the parties' arguments in the appeal: their 'skeleton argument'.</p>
</li>
</ul>
</blockquote>
<blockquote>
<p>At least two weeks before the hearing date, the appellant must file core volumes which include</p>
<ul>
<li><p>the notice of appeal or re-sealed application for permission to appeal;
statement of facts and issues;</p>
</li>
<li><p>the appellant's and respondent's cases;</p>
</li>
<li><p>Part I of the appendix; and</p>
</li>
<li><p>an index to the volumes of authorities.</p>


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statement of facts and issues;</p>
</li>
<li><p>the appellant's and respondent's cases;</p>
</li>
<li><p>Part I of the appendix; and</p>
</li>
<li><p>an index to the volumes of authorities.</p>
</li>
</ul>
</blockquote>
<p><em>Hearing</em></p>
<blockquote>
<p>At the hearing, the appellant will have the opportunity to state his arguments first. The respondent to the appeal will then make his submissions and the appellant has a right of 'reply'.</p>
</blockquote>
<p>No room for whiteboards here either.</p>
<h2>General</h2>
<p>Even in a trial court, there will be no whiteboards. Cases are not made up spontaneously like a brainstorming session.</p>


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<p>No room for whiteboards here either.</p>
<h2>General</h2>
<p>Even in a trial court, there will be no whiteboards. Cases are not made up spontaneously like a brainstorming session.</p>
<p>For any significant criminal or civil litigation, both sides will have provided large numbers of highly detailed documents (which term includes non-written things like video, audio, and physical evidence), which will have been argued over and agreed upon long before any hearing. Should issues arise during a hearing, the parties will be given time to make further submissions. No one's using a whiteboard</p>
<p>Summary offences and small-value civil claims dealt with in the lower courts are a bit of a sausage factory, with a magistrate dealing with 40 or more matters in a day. That's about 10-12 minutes each. No one's using whiteboards here either.</p>


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Question Body: <p>I was watching the <a href="https://www.youtube.com/watch?v=KXfibK8tCtk&amp;list=PLqOooBy2Rmn8ZH9jR90oGHU-EuI7iA121" rel="nofollow noreferrer">Hansen vs predator</a> series.</p>
<p>In there a random guy called Chris Hansen goes online and pretends to be a 13 years old girl.</p>
<p>When people chat with him, he tries to steer the discussion on a sexual level (&quot;I'm just coming out of the shower&quot;, etc.).</p>
<p>Then he lures them into his house, where there is a real life decoy (a 19 years old girl).</p>
<p>After some talking, the decoy goes away and Chris Hansen appears.</p>
<p>He then starts to question them, and then he &quot;let them go&quot; out of the garage where the police arrests them.</p>
<p>They are charged with &quot;criminal attempt to commit risk of injury to a minor&quot;.</p>
<p>My understanding is that Chris Hansen is a total random guy who does not work for the government. That is, he is not an undercover police agent.</p>


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<p>My understanding is that Chris Hansen is a total random guy who does not work for the government. That is, he is not an undercover police agent.</p>
<p>Question: Can Chris Hansen's interrogation, carried out without Miranda warnings, be used against the suspect in a criminal trial?</p>


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Answer 1: <h2>It's not an interrogation</h2>
<p>Nothing makes Mr. Hansen a police investigator. He is a private person talking with another private person. His testimony or the recording of the interview might or might not be admissible in trial, that's for the court to decide. But Miranda warnings are <strong>only</strong> needed when you are under arrest or when you are in a <a href="https://law.stackexchange.com/questions/4462/why-is-the-miranda-warning-typically-given-during-an-arrest?rq=1">custodial interrogation.</a></p>
<h3>Hansen, agent of the police?</h3>
<p>There's arguments that Hansen might or might not have acted as an agent of the police, and in one case he was deputized. However, that does not change that for Miranda you need an arrest or custodial interrogation (e.g. where one is <strong>not</strong> free to leave). As far as I am aware, none of the people interviewed was in such a situation and technically free to go at any time - making Miranda not required.</p>


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Answer 2: <p>It would be treated as normal <a href="https://en.m.wikipedia.org/wiki/Hearsay_in_United_States_law" rel="nofollow noreferrer">hearsay</a> and admissibility would be determined as per the normal <a href="https://en.m.wikipedia.org/wiki/Federal_Rules_of_Evidence" rel="nofollow noreferrer">rules of evidence</a>. And if used as a <a href="https://en.m.wikipedia.org/wiki/Party_admission" rel="nofollow noreferrer">party admission</a>, it may be admissible outside of the hearsay rubric altogether.</p>


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Answer 3: <p>Hansen vs. Predator is similar to Hansen's Famous mid-2000s era report series for Datline NBC called &quot;To Catch a Predator&quot; which was originally started to alert parents to the then new technology of Online Chat rooms and the threat of sexual predators targeting minors online.  The reports were wildly popular at the time as each one had an unstaged &quot;Just when we thought we've seen it all&quot; moment where the production crew is shocked by the situation unfolding (one of the first was a man who got caught twice in the same sting.  Another memorable moment was a man who was caught in two separate stings (he was on bail for the first one when he got picked up in the second one)).</p>


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<p>The methods are largely the same.  Hansen himself does not pose as the child in the chat room, as many of the suspects engage sometime prior to the sting operation.  Those posing as children are typically volunteers with non-profit organizations that were dedicated to finding people who were targeting children.  They also are not approached by the men first and only entice further once they are engaged by someone and repeatedly make the decoy age known to the suspect.  It should also be noted that the crime most of the suspects are prosecuted for are related to the online conversation and police do not need them to show up at the house.  The benefit is they do not have to track down the suspect AND by showing up at the house, they show further intent.  With exception to the first two Dateline reports, the police are always working in conjunction with Hansen's staff and the non-profit (In the case of the first two, Hansen's team did turn over all evidence to the cops following the


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Dateline reports, the police are always working in conjunction with Hansen's staff and the non-profit (In the case of the first two, Hansen's team did turn over all evidence to the cops following the sting, however, that guy who got caught twice in the same sting convinced the team to do this with the help of local police, who had been skeptical up until the first few shows aired.).</p>


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<p>At the time the actual interview is made, the suspect is not under arrest (&quot;But he soon will be.&quot;) and Hansen presents himself as a stern authority figure and instructs the suspect to &quot;have a seat right there&quot; and proceeds to interview them.  Hansen will tell the truth if he's asked if he is a cop (&quot;I'm not a cop.&quot;) but will dodge the issue of who he is otherwise (&quot;We'll talk about that in a minute.&quot;). Typically, the suspect, on hearing that Hansen isn't a cop, assume he's the decoy's parent.   By the third entry into the &quot;To Catch a Predator&quot; series, a handful of suspects will recognize Hansen on sight and react in various ways (some run without question, others will cry or scream in terror, more than one admit they watched previous entries in the series and will act almost like fanboys meeting their idol.).  At either rate, when Hansen is finished with the interview, he'll tell the ones who don't know what's happening who he is


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entries in the series and will act almost like fanboys meeting their idol.).  At either rate, when Hansen is finished with the interview, he'll tell the ones who don't know what's happening who he is (&quot;I'm Chris Hansen with [Show name]&quot;) as the camera crew comes out and reveals this is going to be broadcast on national TV.  He offers them a chance to give some final comments now knowing everything is taped and the directs them to leave the house (&quot;You are free to go&quot;) which the predator will take up on the offer (&quot;But he won't get very far&quot;) at which point the suspect is swarmed by the police and arrested and Mirandized.</p>


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<p>Because Hansen is a private citizen (with one exception, where the county sheriff's office deputized Hansen's team because state law required all operations of a sting be conducted by Law Enforcement Officers (LEO)) and at no point during the show the interview is the suspect under arrest.  Additionally, he is not in violation of 2 party consent to recording in states with such laws because all 2 party consent laws make exceptions if the recording features a party to the conversation discussing their participation in a crime AND are only good when one has a reasonable expectation to privacy, which they don't have on someone else's property.  The portions of the show where the suspect is talking to the real cops is also legal to use as the recordings are released to the public as part of the open trial requirements, and are by law public domain upon creation as are all government documents in the United States.</p>


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Question Body: <p>I was watching an episode of the <a href="https://www.youtube.com/watch?v=KXfibK8tCtk&amp;list=PLqOooBy2Rmn8ZH9jR90oGHU-EuI7iA121" rel="nofollow noreferrer">Hansen vs predator</a> series.</p>
<p>In the show, there is a random guy called Chris Hansen who goes online and pretends to be a 13-year-old girl. When people chat with him, he tries to steer the discussion towards a sexual level, such as saying &quot;I'm just coming out of the shower&quot;, etc. He then lures them into his house, where there is a real-life decoy, a 19-year-old girl. After some talking, the decoy goes away and Chris Hansen appears. He then starts to question them and &quot;lets them go&quot; out of the garage, where the police then arrest them. They are charged with &quot;criminal attempt to commit risk of injury to a minor&quot;.</p>


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<p>My understanding is that Chris Hansen is a totally random guy who does not work for the government, meaning he is not an undercover police agent. The question is, why is Chris Hansen not charged with criminal impersonation? Chris Hansen operates in Fairfield, Connecticut.</p>
<p>In Connecticut criminal impersonation is defined as (<a href="https://www.jud.ct.gov/lawlib/Notebooks/Pathfinders/criminalimpersonation.pdf" rel="nofollow noreferrer">Conn. Gen. Stat. § 53a-130
(2021)</a>):</p>
<blockquote>
<p>(a) A person is guilty of criminal impersonation when such person:
(1) Impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another;</p>
</blockquote>
<p>It appears to me that he is impersonating another person, a 13-year old little girl, and acting in this assumed character with the intent to obtain a benefit, namely the money from the subscribers of his show, and to injure another, namely making them go to jail.</p>


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<blockquote>
<p>(5) with intent to defraud, deceive or injure another, uses an electronic device to impersonate another and such act results in personal injury or financial loss to another or the initiation of judicial proceedings against another.</p>
</blockquote>
<p>It looks to me he is impersonating another (a little girl of 13 years old), with intent to deceive him (have him think he is a 13-years old girl while he actually isn't), and such act results in the initiation of judicial proceedings against another (the charges against his victims).</p>
<p>Relevantly:</p>
<blockquote>
<p>(b) The provisions of subdivision (5) of subsection (a) of this section shall not apply to a law enforcement officer acting in the performance of his or her official duties.</p>
</blockquote>
<p>Seems not to apply since Chris Hansen is not a law enforcement officer.</p>


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</blockquote>
<p>Seems not to apply since Chris Hansen is not a law enforcement officer.</p>
<p>Note: This is not a duplicate of <a href="https://law.stackexchange.com/questions/88515/can-questions-of-private-investigator-without-miranda-warning-be-used-in-trial">Can questions of private investigator without Miranda warning be used in trial?</a>.  The facts of the case are the same, but the legal question being raised here (is Hansen committing a crime?) is very different to that question (is Hansen gathering useable evidence).</p>


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Answer 1: <p>First Chris Hansen is likely not, in and of himself, posing as a 13 year old girl.  These stings involve some dedicated volunteers posing as under aged minors on online chat forums accessible to the public.  They are not looking for the suspects specifically and generally, do not engage them in the initial communication they explain it is the predator that initiates contact usually, and the person behind the keyboard will quickly tell them they are underaged and make numerous reminders.  At this point, they are free to disengage or have a legal conversation with someone they know to be a minor.</p>
<p>It is a crime to have a sexually charged conversation with a minor in the United States (typically the age will change between states of when the cut off point is and range between 16-18).</p>


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<p>It is a crime to have a sexually charged conversation with a minor in the United States (typically the age will change between states of when the cut off point is and range between 16-18).</p>
<p>It is important to note, that there is no benefit to the person portraying the minor to this kind of behavior NOR is the person who committed a crime injured by the person using the account as they ought to know this behavior is illegal and they were not prompted by the chat conversation at this point.  The example provided (&quot;I'm just coming out of the shower&quot;) is not sexual in and of its self and just a statement of fact.  If it is sexual, most adults would steer the conversation away from sexualizing a 13 year old in the shower.  The full transcripts make it clear that the sexual nature of the conversation originated with the suspect and not the decoy.</p>


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<p>As the suspect is choosing to initiate a conversation like this, knowing that it is a crime, the decoy is not injuring the suspect in anyway he would not have done had the suspect been talking to an actual 13 year old child.  Additionally there are probably months of planning behind the scenes with the police, prosecutors, and lawyers from all involved parties to make sure that the operation is done legally.  Additionally, in some of Hansen's work, he and his team were deputized by the county sheriff to comply with state laws for the duration of the operation.  One does not have the right to sue someone because they provided evidence to the police of crimes that you were found guilty of.   The people Hansen works with do this as volunteer work, investing their own blood, sweat, and treasure into this work and they do it with or without Hansen's cameras rolling.  Hansen is a journalist and his job is to report on newsworthy events, such as the work of volunteers who work to take


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treasure into this work and they do it with or without Hansen's cameras rolling.  Hansen is a journalist and his job is to report on newsworthy events, such as the work of volunteers who work to take dangerous sexual criminals down for no rewards as well as to inform the public what these criminals actually think.  He has done other investigative journalistic stories in his career, but &quot;To Catch a Predator&quot; and &quot;Hansen vs. Predator&quot; are his most popular and best known stories.   The &quot;To Catch a Predator&quot; series can be found uploaded by various people who do not own any IP rights on youtube, and Hansen does not own the rights to those stories nor does he work for NBC News, the current owner.</p>


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<p>Finally, Hansen does not make the arrests (he concludes his interviews before the police affect the arrest), even on the occasions where he is deputized.  Even if he did, arrest authority is not an exclusive power of the police in the U.S. and Citizens Arrest is a lawful form of arrest so long as the minimum amount of force to detain the suspect is used and the citizen turn over the aressted suspect to lawful authority as soon as possible (it's still best left to the professionals).  That said, Hansen is not affecting any of the arrests, though we all know what happens when he ends the interview.</p>


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<p>If Hansen would be guilty of the crime you ask about, this would also include many an informant who work with the cops to get other criminals they are close to arrested and convicted.  Keep in mind that the suspects that appear on the show have already committed a crime by the mere act of having a sexually charged conversation over the internet with someone they know or should reasonable believe are underaged.  Showing up at the house is, for the prosecution, icing on the cake at this point, the transcripts alone are enough to convict.</p>


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Answer 2: <p>Chris Hansen isn't impersonating an actual person. There's a big difference between exploiting a relationship someone has established with a person by pretending to be that person, versus lying about characteristics one has. According to your logic, at what point would Chris Hansen by &quot;impersonating&quot; someone? Chris Hansen is 63 years old. If he were to claim to be a 62 year old man, would that be &quot;impersonation&quot;?</p>


Tags: united-states, criminal-law, criminal-procedure


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Question Body: <p>This question is based on a social media post of a presumably real situation someone I don't directly know is facing.</p>
<p>Suppose a landlord leases housing to a person, with a requirement in the lease to get a &quot;dog permit&quot; from the landlord to have a dog living in the place, and grants the permit at the time the lease is signed. Then, immediately after the person moves in, the landlord tells them the dog permit has been rescinded, with no prior communication or incident that would have caused a change in circumstances, and threatens the new tenant with eviction if they do not get rid of their pet immediately.</p>


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<p>What legal recourse does someone have in such a situation? Are there US jurisdictions where this kind of behavior by the landlord is legal? The person who it happened to belongs to one or more classes likely to be discriminated against, so these antics may be &quot;constructive&quot; to deny housing where the real intent is unlawful discrimination; if so, does that change anything about how the law sees it and how to handle the situation?</p>


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Answer 1: <p>It's hard to imagine a jurisdiction where this would be legal, assuming that the facts are as you present them. Mainly, it comes down to what the lease actually says. If the lease says something that implies that landlord permission is required, then the tenant has to get permission. You can call it a &quot;dog permit&quot;, it just boils down to &quot;landlord permission&quot;. Unless the lease also states &quot;permission for a pet can be withdrawn at any time, sor any reason&quot; or something to that effect, then the dog is permitted. At the end of the lease term, the landlord can refuse to renew the lease and/or can instead offer a no-dogs lease.</p>


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<p>The landlord's only recourse would be to petition the court for breaking the lease, in having a dog without permission, at which point the tenant would present whatever evidence they have that there was permission (hopefully something more substantial than a statement &quot;I asked if I could bring my dog and the landlord said 'hmmmm' with an approving tone&quot;). The courts will not give any credence to &quot;Yeah but I rescinded the permission&quot; unless there is a clause that explicitly allows it.</p>


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Question Title: Can a judge vacate a conviction and then reinstate it?

Question Body: <p>In the TV series Waco:Aftermath, a jury convicts defendants of some crimes but acquits them of some others. Their lawyer argues that the convictions don’t make sense and the judge agrees to vacate them.</p>
<p>Right when the defendants are about to be released, the judge reinstates their convictions and sends them to prison. This is seemingly based on a random change of heart, and there is no new evidence/developments.</p>
<p>This is supposedly based on a true story, but can a judge really do that? Isn’t it a violation of double jeopardy?</p>


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Answer 1: <p>Courts have inherent jurisdiction to reconsider/recall their own decisions. This rarely happens (especially if the decision has already been &quot;sealed&quot; i.e. issued in writing) but still possible. The principle of <a href="https://en.wikipedia.org/wiki/Finality_(law)" rel="noreferrer">finality</a> only applies to parties asking courts to reconsider; it does not constrain courts themselves.</p>
<p>So, in this example, &quot;the judge agrees to vacate them&quot; but that decision hasn't been sealed yet. The judge can easily just change their mind (although, again, it rarely happens).</p>
<p>No double jeopardy applies because it is still the same trial.</p>


Tags: united-states, law-in-fiction, double-jeopardy


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Question Title: What laws, if any, prevent a private individual from overthrowing or helping to overthrow another country&#180;s government?

Question Body: <p>Could be personally participating in the overthrow, financing it, sending them weapons otherwise purchased and shipped legally, giving them intelligence, cracking into their computer networks to shut down their telecommunications, etc.</p>
<p>That would be illegal in the target country of course. But is it illegal anywhere else? And does it matter if they say had a bunch of UN bodies declaring them to be basically outlaws by violating the UN Charter?</p>


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Answer 1: <p><a href="https://www.law.cornell.edu/uscode/text/18/960" rel="nofollow noreferrer">18 USC 960</a> states that</p>
<blockquote>
<p>Whoever, within the United States, knowingly begins or sets on foot or
provides or prepares a means for or furnishes the money for, or takes
part in, any military or naval expedition or enterprise to be carried
on from thence against the territory or dominion of any foreign prince
or state, or of any colony, district, or people with whom the United
States is at peace, shall be fined under this title or imprisoned not
more than three years, or both.</p>
</blockquote>
<p>&quot;At peace&quot; is not defined, but we can assume that a nation that the US is at war with would be exempt from this provision, then again it depends on what it means to be &quot;at war&quot; with a nation.</p>


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Answer 2: <ul>
<li><a href="https://en.wikipedia.org/wiki/Extraterritorial_jurisdiction" rel="nofollow noreferrer">Extraterritorial Jurisdiction</a><br />
Many countries claim the right to try crimes <strong>by or against</strong> their citizens, no matter where they happen. A coup attempt might include acts which are generally seen as ordinary crimes.</li>
<li><a href="https://en.wikipedia.org/wiki/Terrorist_Financing_Convention" rel="nofollow noreferrer">Terror Funding and Support</a><br />
The term 'terrorist' has been twisted into a pretzel in recent decades, but many nations have signed up to relevant conventions. The coup attempt might possibly meet the definition of terrorism (use of force, political motive, intimidation of the population).</li>
</ul>


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Answer 3: <p>You could run afoul of the law if your assistance consists of exporting munitions listed here:  <a href="https://www.ecfr.gov/current/title-22/chapter-I/subchapter-M/part-121/subject-group-ECFRf7e5fe639be4566/section-121.1" rel="nofollow noreferrer">Munitions List</a></p>


Tags: war


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Question Title: Is there anything in the US Constitution to prevent Georgia, USA to stop me from buying liquor before 12:30 based on religious grounds?

Question Body: <p>I, an agnostic person, was perturbed just now being told I couldn’t buy wine, the only thing I came in to buy, at 11:30AM on a Sunday in Augusta Georgia, because the law prevents them (Walmart) from selling it before 12:30PM. I’m pretty sure this law is based on religious beliefs.</p>
<p>I don’t know much about law, but it just seems absurd to me that a religion’s beliefs were just allowed to affect my personal life, minding my own business, and to do so with legal backing.</p>
<p>I didn’t even choose to live here. I was ordered to live here through military service. Can someone explain whether or not this is a completely constitutional thing in the US? If so, what’s the most relevant court case about it?</p>


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Answer 1: <p>No, given McGowan v. Maryland, 366 U.S. 420, Braunfeld v. Brown, 366 U.S. 599 and In Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582.


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The principle is that laws with religious origins are constitutional if they have a secular purpose. In <a href="https://supreme.justia.com/cases/federal/us/366/599/" rel="noreferrer">Braunfeld</a>, the defendants who were Orthodox Jews could not operate their business from sunfall to sunfall on Friday-Saturday, and sought to operate on Sunday contrary to a Pennsylvanis law prohibiting retail sales of their commodities on Sunday. The court rules that the law &quot;does not violate the Equal Protection Clause of the Fourteenth Amendment, nor constitute a law respecting an establishment of religion, and it does not prohibit the free exercise of appellants' religion, within the meaning of the First Amendment, made applicable to the States by the Fourteenth Amendment&quot;. Their argument was based on the fact that to comply with the requirements of their religion plus the statutes of Pennsylvania, they would suffer economic loss. The court historically reviewed blue laws and concluded


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based on the fact that to comply with the requirements of their religion plus the statutes of Pennsylvania, they would suffer economic loss. The court historically reviewed blue laws and concluded that the requirement to be closed on Sunday is not necessarily tied to religion, noting for example that in 1776 Virginia seemed that &quot;all men are equally entitled to the free exercise of religion&quot; and repealed laws penalizing expression and observations of religions, but also maintained laws prohibiting Sunday labor. Restrictions are possible on &quot;people's actions when they are found to be in violation of important social duties or subversive of good order, even when the actions are demanded by one's religion&quot;.</p>


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<p>The matter has not come before SCOTUS since then (the constitutionality of blue laws is now &quot;established law&quot;, until these rulings are overturned, analogous to Dobbs overturning Roe).</p>


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Question Title: Is it against the DMCA to use the recent implementation of the Windows XP&#39;s product activation algorithm if one has an XP licence?


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Question Body: <p><a href="https://tinyapps.org/blog/202304230700_xp_wpa.html" rel="nofollow noreferrer">The Windows XP's product activation encryption algorithm</a> has recently been &quot;cracked&quot;, and a software implementation that emulates the telephone activation question / response procedure is available.  This technically allows one to activate new XP installations, safely and securely, without a crack, offline even though Microsoft has turned off all the activation servers.</p>
<p>This is particularly relevant for those with older scientific equipment that relies on an XP computer.  I think these would usually be sold with quite permissive licences, allowing one to change the computer freely and reinstall Windows XP.  However it would appear that using this software could be &quot;circumventing a technological measure or access control technology&quot;, and therefore illegal in the US.</p>


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<p>Is this a reasonable interpretation of the law?  Is there some exception that would apply in this case?  Is there a way to utilise this application legally in such a situation?</p>


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Answer 1: <p>The DMCA applies if the item being copied is protected by some mechanism that prevents copying.</p>
<p>Just because that mechanism isn't very strong, doesn't mean DMCA doesn't apply. For example, there is a mechanism designed in the 1980s to prevent DVDs from being copied. This was cracked some time later by clever mathematical methods; today your home computer would be powerful enough to crack it using brute force without having to do anything clever. That doesn't mean it's not protected; it is, and therefore it is covered by the DMCA.</p>
<p>Same here. The product activation algorithm is protected. Just because someone broke that protection doesn't mean it's not protected. This is like a burglar buying a new tool to open your locked front door, just because the burglar has this tool doesn't mean your front door isn't locked. So here as well DMCA still applies.</p>


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<p>(I assume this has been done because copy protection can have bugs and prevent legitimate users from copying, so they made the legal protection strong so that companies are not forced to create the strongest possible copy protection, which might hurt their customers. )</p>


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Question Title: Is it legal to profit from an open source software

Question Body: <p>I am planning on making a service that uses a modified open source software. Would it be legal for me to profit from it? I am not sure what information would be relevant to this so if I have missed some relevant info, please tell me what additional information is required to determine this.</p>


Answer 1: <p>Generally yes. The concept of 'free software' is almost identical Open Source, and one of the four fundamental freedoms is the freedom to run the software for any purpose. That includes seeking profit.</p>


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Answer 2: <p>Yes, you can use open source software commercially. The <a href="https://opensource.org/faq#commercial" rel="nofollow noreferrer">Open Source Initiative</a> (OSI) says:</p>
<blockquote>
<p><strong>Can Open Source software be used for commercial purposes?</strong></p>
<p>Absolutely. All Open Source software can be used for commercial purpose; the Open Source Definition <a href="https://opensource.org/docs/osd#fields-of-endeavor" rel="nofollow noreferrer">guarantees</a> this. You can even <a href="https://opensource.org/faq#selling" rel="nofollow noreferrer">sell</a> Open Source software.</p>


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<p>However, note that <em>commercial</em> is not the same as <em>proprietary</em>. If you receive software under an Open Source license, you can always use that software for commercial purposes, but that doesn't always mean you can place further restrictions on people who receive the software from you. In particular, <a href="https://opensource.org/faq#copyleft" rel="nofollow noreferrer">copyleft</a>-style Open Source licenses require that, in at least some cases, when you distribute the software, you must do so under the same license you received it under.</p>
</blockquote>


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</blockquote>
<p>When using code from a copyleft license, the question then becomes whether you need to share your derivative source code. This depends on which copyleft license was used and what your program is doing with the code, as some licenses have what is known as <a href="https://resources.whitesourcesoftware.com/blog-whitesource/the-saas-loophole-in-gpl-open-source-licenses" rel="nofollow noreferrer">the SaaS loophole</a> which would allow you to use copyleft code server side without needing to release your code.</p>
<p>See also OSI’s <a href="https://opensource.org/licenses" rel="nofollow noreferrer">list of open source licenses</a>.</p>


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Answer 3: <p>It depends on what license you obtained the open source software under.</p>
<p>Some open source licenses require you to not use the software for commercial purposes. For example, the CC BY-NC 3.0 license requires that you do not use the software (including derivatives) for commercial purposes.</p>
<p>Some open source licenses, on the other hand, explicitly permit the software to be used for commercial purposes, with some requirements. For example, the MIT license explicitly permits the sale of the software.</p>


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<p>Some open source licenses, such as the GPL, have requirements that make it very difficult to sell the software directly (for example, because anyone who obtains a copy of it gains the legal right to redistribute it to anyone for no cost), but it is permitted under the license to sell derivative programs, with certain restrictions (for example, the GPL requires you also make the source code available, and if you edited the source code, the GPL requires that you indicate such, and make the edited source code available).</p>
<p>In order to determine whether you are permitted to profit by providing a service using a modified open source software, you should read the license under which you obtained the software. It is also prudent to get the aid of a lawyer so as to make sure you don't misunderstand the license.</p>


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Question Title: Are unreasonable late fees prosecuted as usury?

Question Body: <p>As I understand the term usury: it is the action or practice of <strong>lending money</strong> at unreasonably high rates of interest.</p>
<p>Are unreasonable <strong>late fees</strong> prosecuted as usury? Is there mother term?</p>
<p>If a concrete example is needed for an answer: assume a Florida commercial lease / rent with a late fee of 1% per day.</p>


Answer 1: <p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a></p>
<p>This is covered by the Tenant Fees Act 2019. This act caps any late fees for a tenancy to 3% above the Bank of England rate.</p>


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Answer 2: <p><a href="http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&amp;URL=0600-0699/0687/0687.html" rel="nofollow noreferrer">Florida law</a> recognizes a concept of &quot;usury&quot;</p>
<blockquote>
<p>All contracts for the payment of interest upon any loan, advance of
money, line of credit, or forbearance to enforce the collection of any
debt, or upon any obligation whatever, at a higher rate of interest
than the equivalent of 18 percent per annum simple interest are hereby
declared usurious.</p>
</blockquote>
<p>Late fees are liquidates damages, not interest on a loan, so this law is irrelevant. Violation of the prohibition against usury is criminally prosecutable, under §687.146.</p>


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<p>Instead, late fees have a separate potential limit under <a href="http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&amp;Search_String=&amp;URL=0000-0099/0083/Sections/0083.808.html" rel="nofollow noreferrer">§83.808</a>, which declares that a landlord &quot;may charge a tenant a reasonable late fee for each period that he or she does not pay rent due under the rental agreement&quot;, and also declares that &quot;a late fee of $20, or 20 percent of the monthly rent, whichever is greater, is reasonable and does not constitute a penalty&quot;, plus it allows collecting reasonable enforcement expenses, which are not defined. The law does not prohibit late fees greater than 20% or declare them to be penalties, it simply does not statutorily declare them to be reasonable, in which case the court must assess whether the fee is reasonable. The landlord would have to shoulder a substantial burden to prove that a fee above 20% is reasonable. Assuming, for example, a 25%


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in which case the court must assess whether the fee is reasonable. The landlord would have to shoulder a substantial burden to prove that a fee above 20% is reasonable. Assuming, for example, a 25% late fee (and not including separate collection fees), and assuming that the landlord failed to convince the court that the fee is in fact reasonable, the courts would limit the fee to what it deems to be reasonable, and there cannot be criminal prosecution of the landlord for having such a clause in the lease.</p>


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Question Title: A representative guides one through the signing of a contract; e.g. internet services. What empowers them to do this? What are they, legally?

Question Body: <p>I'm looking for some legal terms and concepts related to the empowerment of a representative to guide someone through the signing of a contract. Is there a legal concept for such a person? Specifically, in the case of, e.g., whoever answers one's call in a cellphone company one wants to make a contract with, the representative isn't allowed to, for example, change the adhesion contract, but they do seem empowered to represent the company in the signing of the contract. So it seems to me that they are some sort of representative, but maybe they are legally something less than a &quot;full&quot; representative of the company. What is such a person, legally?</p>


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Answer 1: <h2>An <a href="https://en.wikipedia.org/wiki/Law_of_agency" rel="noreferrer">agent</a></h2>
<blockquote>
<p>a person, called the agent, that is authorized to act on behalf of another (called the principal) to create legal relations with a third party.</p>
</blockquote>


Tags: contract-law, adhesion-contracts


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Question Title: Russian army refuses to demobilize a conscript on demobilization day?

Question Body: <p>Suppose someone joined the Russian army as a conscript in Rostov-on-Don.  But on their demobilization day, they are told they will not be demobilized and instead will be held &quot;until further notice&quot; (&quot;до особого распоряжения&quot;). Is there a legal basis for this action, and are there legal avenues to appeal it?</p>


Answer 1: <p>As many Western analysts see it, Russia does not have the <strong>rule of law</strong>, it is an autocracy which makes use of the legal system to enforce the will of the central government. That is, in any important lawsuit the outcome is not determined by judges looking at the law, it is determined by power plays in the Kremlin. And the case you describe would certainly be important for the precedent it sets.</p>
<p>Russian analysts might disagree, of course.</p>


Tags: military, russia


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Question Body: <p><strong>NOTE: This is a hypothetical question I came up with while walking around. I’m not planning on taking scooters.</strong></p>
<p>In many major US cities, i.e. DC, Philly, NYC, companies will place electric scooters out on the sidewalk. These scooters must be “unlocked” with an app on your phone, which cost a rental fee, to be used. The scooters are typically branded with the companies, information, and if you were to pick one up and walk away with it without unlocking them, they start beeping.</p>
<p>In the US, if someone places a couch out on the sidewalk, it’s well known that this couch is up for grabs before the trash truck comes. That is, anyone can come and take the couch for free. What is the difference between me taking this couch and one of the electric scooters?</p>


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<p>If I were to take a couch left on the side of the road, and reupholster it, there’s no problem. Can I take an electric scooter, reflash the firmware so I can use it without paying, and spray paint it?</p>


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Answer 1: <p>The premise about couches is true in terms of popular beliefs, but false in terms of law. Taking the property of another person without permission, with the intention to keep it, is theft. However, taking it with permission is allowed. W.r.t. a couch, your belief works because you generally have implicit permission.
A sign saying &quot;free&quot; is good evidence, in lieu of a personal interaction with the owner, that you have such permission. There are scenarios where a person is moving a couch into their house, leaves it outside for a break, and some prankster puts a &quot;free&quot; sign on the couch. You nab and leave, 911 is called, you get arrested (more likely there will be an interaction of the type &quot;give him back his couch&quot;) and you defend yourself against a charge of theft on the grounds that you reasonably believed you had permission to take the couch.</p>


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<p>At present, a reasonable person would know that a scooter left by the side of the road is not actually &quot;there for the taking&quot;, therefore you know (or should know) that you are committing a crime. Additionally, there are more stringent law regarding theft of vehicles as opposed to theft of couches, which expands the concept of &quot;theft&quot; to include &quot;take in order to just temporarily use&quot;, thus &quot;keeping&quot; is not a requirement of vehicle theft laws. Rentascooter is generally and obviously locked in some way,  which is further evidence that the item was not abandoned (this goes to your state of mind in taking the object), supporting the wrongfulness of this taking.</p>


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Answer 2: <h2>The presumption that trash is up for grabs varies by jurisdiction</h2>
<p>Cities may ban it for several reasons.  First, they need to protect the revenue stream of the garbage company - a lot of trash is profitable, and there's a significant operation to picking through trash to get at it. <strong>That especially applies to recyclables</strong> and they aren't necessarily in a separate bin.   Most landfills operate a metallic separator (Magnetic for ferrous, eddy current for non-ferrous) at the very least.  Some towns do &quot;recycling in the same bin&quot; asking that you bag or bundle your recyclables, then at the landfill they have an operation that uses bio-robots to pick out the recyclables.</p>


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<p>It's well understood that &quot;pickers&quot; are a serious threat to the financial viability of recycling programs.  Especially in bottle deposit states. The recycler depends on the revenue from the mineral value (or deposit value) of the recyclables. Hey, I used to get $50/ton for paper back in the 90s.  I'm sure it hasn't gone down.</p>
<p>So right out of the chute, a scooter would probably count as a &quot;recyclable&quot; even if someone was honestly putting it to the curb, and probably illegal to take if separate-bin recycling exists.</p>


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<p>Other reasons they ban picking are: residents can be uneasy about pickers wandering their neighborhoods.  They are loud at night.  Many of them make a huge mess because they toss on the ground anything they don't want. They may be &quot;casing&quot; the neighborhood for crime, and it's just creepy to have people go through your trash, people perceived as &quot;riff-raff&quot;. Police are very happy for an ordinance criminalizing trash picking.</p>
<h2>Even so, a reasonable person's standard applies</h2>
<p>You plainly know there's a difference between taking an old fluorescent fixture on a pile of obvious trash, vs. taking a 2022 Harley motorcycle parked right next to it.</p>
<p>And the difference is, can you can convince a &quot;reasonable person&quot; (or more precisely, twelve on a jury) that you had honest reason to believe it was bona-fide garbage located there because it was in a bona-fide waste stream?</p>


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<p>Many American cities have 2 days a year where normal trash rules are suspended and you can set out almost anything to the curb and the trucks will take it away.  Honestly I have to wonder if any of those short-term-rental scooters disappeared because someone left them next to a pile of special trash?</p>
<p>So the plan of taking a plainly marked rental scooter will fail the &quot;reasonable person&quot; test.</p>
<p>Though, it's been tried, by people who reasonably ought to have better lawyers than us rabble.
<a href="https://www.theverge.com/2019/7/24/20696405/dockless-scooters-share-repo-men-repossessor-lawsuit-tow-yard-lime-bird-lyft-uber-razor" rel="nofollow noreferrer">https://www.theverge.com/2019/7/24/20696405/dockless-scooters-share-repo-men-repossessor-lawsuit-tow-yard-lime-bird-lyft-uber-razor</a></p>


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Question Title: Is income from youtube considered as freelance income?

Question Body: <p><a href="https://law.stackexchange.com/questions/73719/is-it-legal-to-earn-money-from-youtube-as-a-bluecard-holder-in-germany">Tangentially related</a>. I ask ebecause I know in general freelance work is not taxed, so does youtube income count as freelance income?</p>
<p><a href="https://law.stackexchange.com/questions/27038/is-it-permitted-to-work-as-a-freelancer-on-upwork-while-studying-in-germany">Related</a>, and <a href="https://law.stackexchange.com/questions/27038/is-it-permitted-to-work-as-a-freelancer-on-upwork-while-studying-in-germany">also this</a></p>


Answer 1: <h2>I know in general freelance work is not taxed</h2>
<p><strong>Your “knowledge” is wrong.</strong></p>
<p>In general, <strong>all</strong> income is taxed.</p>
<p>Some jurisdictions may exempt certain income derived from hobbies that are not businesses but this is by no means universal.</p>


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Answer 2: <p>Freelance work is taxed in Germany, § 2 Ⅰ 1 No. 3 EStG. What is not taxed is income from a hobby, if the income is occasional and if making money is not the primary goal of the hobby. So the question has to be answered on a case by case basis.</p>
<p>The question arises often enough that the German Federal Ministry of Finance has published a PDF document with guidelines: <a href="https://www.bundesfinanzministerium.de/Content/DE/Standardartikel/Themen/Steuern/Steuerliche_Themengebiete/Social_Media_Akteure/2020-07-30-FAQ-Ich-bin-Influencer.pdf?__blob=publicationFile&amp;v=5" rel="nofollow noreferrer">&quot;I am Influencer. Do I have to pay taxes&quot;</a> (German).</p>
<p>It lists the kind of taxes that might apply (Einkommenssteuer, Gewerbesteuer Umsatzsteuer - Income tax, trade tax and VAT).</p>
<p>You never pay income tax if your total (e.g. from all activities, not just the youtube stuff) yearly income is below the tax exempt allowance, § 32a Ⅰ 2 No. 1 EStG.</p>


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<p>You never pay income tax if your total (e.g. from all activities, not just the youtube stuff) yearly income is below the tax exempt allowance, § 32a Ⅰ 2 No. 1 EStG.</p>
<p>You have to pay trade tax if you make more than 24 500 Euro per year, § 11 Ⅰ 3 No. 1 GewStG.</p>
<p>If you work on youtube or other social media with the goal of making money (&quot;Gewinnerzielungsabsicht&quot;) you have to do a &quot;Umsatzsteuervoranmeldung&quot; (VAT declaration). That is, if you write invoices to your sponsors, you charge them VAT, which however does not belong to you - you collect it and pass it on to the state. If you buy stuff for your social media work, you can deduct the VAT you pay for that from the sum you pass on. Note that you have to do the declaration even if you do not actually owe anything.</p>


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<p>If making money is not your primary goal, and the revenue is small and irregular, then you do not need to pay taxes on your social media income. However there is no fixed amount that constitutes &quot;small&quot; income, that depends to some extent on your tax office (also if you do not pay taxes for it, you cannot deduct business cost from tax bill). As mentioned in a comment, monetizing your videos via ad views would be almost certainly considered a Gewinnerzielungsabsicht (since the idea is making a regular income), getting a bit of free stuff in return for a video not necessarily.</p>


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<p>This is not legal advice, but personally I would not bother to report a few hundred that I make on the side over the year, especially if I get the money in non consecutive months (but then in my case a few hundred would not make a difference in any case). But if your income is high (thousands rather than hundreds) or regular (e.g. monthly for most of the year) you need to declare it on your taxes.</p>


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Question Title: Would Ukraine have legal grounds to declare war on Belarus as well?

Question Body: <p>Given the vulnerability in the Russian command and control system right now, some people are thinking that Ukraine should depose Lukashenko as well.</p>
<p>Regardless of whether this would be a good idea or not, would Ukraine have a legal right to do this? I am pretty sure they would given the armed attacks from Belarussian territory and which is being directly aided by the Belarussian military, Article 51 of the UN Charter would protect self defense.</p>


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Answer 1: <p>I think Ukraine's legal grounds to run a <em>special military operation</em> to depose Lukashenko would have the same validity (if any) as Russia's grounds to do the same to depose Zelenskyy.</p>
<p>I'm not aware of &quot;turnabout is fair play&quot; being codified anywhere in this international rule of law that is the basis for the West's support of Ukraine.</p>
<p>So such an action would then create an intractable moral problem which would hinder ongoing support of Ukraine, and reduce the war and the international support to &quot;might makes right&quot;.</p>


Tags: united-nations-charter, war


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Question Title: Does the private component of the City of London Corporation pay any tax on its financial activities?

Question Body: <p>I'm referring to the privately run functions of the <a href="https://en.wikipedia.org/wiki/City_of_London_Corporation" rel="nofollow noreferrer">City of London Corporation</a> that are exempt from public authority provisions such as the Freedom of Information Act.</p>


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Answer 1: <p><a href="https://www.cityoflondon.gov.uk/assets/about-us/budget-and-spending/city-cash-accounts-2021-22.pdf" rel="nofollow noreferrer">CITY’S CASH
ANNUAL REPORT AND FINANCIAL STATEMENTS
FOR THE YEAR ENDED 31 MARCH 2022</a></p>
<blockquote>
<p>The City of London Corporation is a single legal entity and
legislation treats it as a local authority for tax purposes. VAT is
recovered from HMRC on supplies received and paid to HMRC on supplies
made. All transactions are therefore included without VAT. The City of
London Corporation is exempt from income and corporation tax.</p>
<p>City Re Limited, a wholly-owned subsidiary of the City of London
Corporation in its City’s Cash capacity, conforms to the tax
requirements for Guernsey companies.</p>
<p>Barking Power Limited and Thames Power Limited are both subject to
corporation tax, which comprises current and deferred tax. Corporation
tax is the expected tax payable on the taxable income for the year,


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corporation tax, which comprises current and deferred tax. Corporation
tax is the expected tax payable on the taxable income for the year,
using tax rates enacted or substantively enacted at the balance sheet
date and any adjustment to tax payable in respect of previous years.</p>
<p>Deferred tax is recognised in respect of all timing differences that
have originated but not reversed at the balance sheet date where
transactions or events have occurred at that date that will result in
an obligation to pay more, or a right to pay less tax, with the
exception of deferred tax assets that are recognised only to the
extent that the Directors consider that it is more likely than not
that there will be suitable taxable profits from which the future
reversal of the underlying timing differences can be deducted.</p>
<p>Deferred tax is measured on an undiscounted basis at the tax rates
that are expected to apply in the periods in which timing differences


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<p>Deferred tax is measured on an undiscounted basis at the tax rates
that are expected to apply in the periods in which timing differences
reverse, based on tax rates and laws enacted or substantively enacted
at the balance sheet date.</p>
</blockquote>


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Question Title: Does the Sale of Goods Act continue to be applicable to second-hand items bought from private individuals rather than professional traders in 2023?

Question Body: <p>I have been told that the Consumer Rights Act 2015 only supersedes the Sale of Goods Act 1979 for second-hand items bought from companies, and not ones bought from individuals. Is this correct?</p>


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Answer 1: <p>The Consumer Rights Act 2015 does not apply to goods other than those <a href="https://www.legislation.gov.uk/ukpga/2015/15/section/3" rel="nofollow noreferrer">sold by a trader to a consumer</a>.</p>
<p>Almost always (as demonstrated in <a href="https://law.stackexchange.com/a/91608/46948">several</a> <a href="https://law.stackexchange.com/a/92414/46948">other</a> <a href="https://law.stackexchange.com/q/91609/46948">answers</a>), the interaction between related legislation is explained in <a href="https://law.stackexchange.com/q/91609/46948">explanatory notes</a>. In this case, <a href="https://www.legislation.gov.uk/ukpga/2015/15/notes/division/2/5" rel="nofollow noreferrer">they say</a>:</p>
<blockquote>
<p>The [Sale of Goods Act] will still apply to... consumer to consumer contracts</p>
</blockquote>


Tags: england-and-wales, sale-of-goods


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Question Body: <p>This question is not specific to Florida which is only provided as an example.</p>
<p>Florida Statute <a href="http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&amp;Search_String=&amp;URL=0000-0099/0099/Sections/0099.021.html" rel="nofollow noreferrer">99.021</a> requires an &quot;oath or affirmation&quot;:</p>
<p><em>For state elective offices</em>:</p>
<blockquote>
<p>... that he or she will support the Constitution of the United States and the Constitution of the State of Florida.</p>
</blockquote>
<p><em>For federal elective offices</em>:</p>
<blockquote>
<p>... that he or she will support the Constitution of the United States.</p>
</blockquote>


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</blockquote>
<p><em>For federal elective offices</em>:</p>
<blockquote>
<p>... that he or she will support the Constitution of the United States.</p>
</blockquote>
<p>Thus, it would appear that if such an individual had voted for a law that was subsequently found to be unconstitutional, that individual would have violated their obligation to &quot;support the Constitution&quot;. In Florida, that <em>may be</em> considered a third-degree felony, depending on the the meaning of the phrase.</p>
<p>Florida Statute <a href="http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&amp;Search_String=&amp;URL=0100-0199/0104/Sections/0104.011.html" rel="nofollow noreferrer">104.011</a> regarding &quot;false swearing&quot;:</p>
<blockquote>


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<blockquote>
<p>(1) A person who willfully swears or affirms falsely to any oath or affirmation, or [...], in connection with or arising out of voting or elections commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.</p>
</blockquote>
<p>Admittedly, the use of &quot;willfully&quot; and &quot;falsely&quot; may limit the use of the statute to, for example, &quot;single-issue&quot; candidates who don't care what it means to &quot;support the Constitution&quot; and only want to enact a law without regard to the applicable Constitution.</p>
<p>Is there a legal definition or meaning for &quot;support the Constitution&quot;?</p>


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Answer 1: <p>An oath of office cannot be legally enforced through the courts, other than to demand that officials take it in order to take office, and to bar people who have taken it and then engaged in treason or sedition from holding public office in any federal, state, or local office, military or civilian, in the United States.</p>
<p>This is something which is required of all federal and state and local public officials under the U.S. Constitution, which states in the third paragraph of Article VI:</p>
<blockquote>
<p>The Senators and Representatives before mentioned, and the Members of
the several State Legislatures, and all executive and judicial
Officers, both of the United States and of the several States, shall
be bound by Oath or Affirmation, to support this Constitution; but no
religious Test shall ever be required as a Qualification to any Office
or public Trust under the United States.</p>
</blockquote>


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be bound by Oath or Affirmation, to support this Constitution; but no
religious Test shall ever be required as a Qualification to any Office
or public Trust under the United States.</p>
</blockquote>
<p>The U.S. President's parallel oath of office is found in the last paragraph of Section 1 of Article II of the U.S. Constitution. It states:</p>
<blockquote>
<p>Before he enter on the Execution of his Office, he shall take the
following Oath or Affirmation: — &quot;I do solemnly swear (or affirm) that
I will faithfully execute the Office of President of the United
States, and will to the best of my Ability, preserve, protect and
defend the Constitution of the United States.&quot;</p>
</blockquote>
<p>But, while taking the oath is required, <a href="https://www.lawfareblog.com/jan-6th-committee-why-oaths-matter" rel="nofollow noreferrer">it is also the case that</a>:</p>
<blockquote>
<p>An oath is not justiciable. The FBI cannot investigate adherence to


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<blockquote>
<p>An oath is not justiciable. The FBI cannot investigate adherence to
oaths because they are not enforceable as codified law. A prosecutor
cannot establish that an oath has been broken by proving certain legal
elements beyond a reasonable doubt, and a judge cannot adjudicate it.</p>
</blockquote>
<p>There is one exception to this rule, however. Section 3 of the 14th Amendment to the U.S. Constitution states:</p>
<blockquote>
<p>No person shall be a Senator or Representative in Congress, or elector
of President and Vice-President, or hold any office, civil or
military, under the United States, or under any State, who, having
previously taken an oath, as a member of Congress, or as an officer of
the United States, or as a member of any State legislature, or as an
executive or judicial officer of any State, to support the
Constitution of the United States, shall have engaged in insurrection
or rebellion against the same, or given aid or comfort to the enemies


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executive or judicial officer of any State, to support the
Constitution of the United States, shall have engaged in insurrection
or rebellion against the same, or given aid or comfort to the enemies
thereof. But Congress may by a vote of two-thirds of each House,
remove such disability.</p>
</blockquote>
<p>So, an oath of office does impose a justiciable duty to not engage in insurrection or rebellion against the United States, or give aid or comfort to the enemies of the United States, upon pain of not being able to hold any state or federal, military or civilian public office without a two-third majority waiver from Congress (in addition to any other consequences that may flow from this conduct without regard to having taken an oath). But, this is a very slight slap on the wrist indeed for committing treason or engaging in sedition (which are criminally punishable by decades in prison or death) after having sworn this oath.</p>


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<p>Justice Joseph Story <a href="https://www.heritage.org/constitution/#!/articles/2/essays/85/oath-of-office" rel="nofollow noreferrer">noted</a> in his &quot;A Familiar Exposition of the Constitution of the United States&quot; (1842) that:</p>
<blockquote>
<p>A President, who shall dare to violate the obligations of his solemn
oath or affirmation of office, may escape human censure, nay, may even
receive applause from the giddy multitude. But he will be compelled to
learn, that there is a watchful Providence, that cannot be deceived;
and a righteous Being, the searcher of all hearts, who will render
unto all men according to their deserts. Considerations of this sort
will necessarily make a conscientious man more scrupulous in the
discharge of his duty; and will even make a man of looser principles
pause, when he is about to enter upon a deliberate violation of his
official oath.</p>
</blockquote>


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discharge of his duty; and will even make a man of looser principles
pause, when he is about to enter upon a deliberate violation of his
official oath.</p>
</blockquote>
<p>The purpose of an oath of office is simply to deny public offices to people who are not willing to publicly state that the legal system in which the people taking them will operate is legitimate.</p>
<p>An oath to support the constitution is the modern equivalent of the feudal European ritual of &quot;bending the knee&quot; to one's legitimate feudal superior. This ritual was highlighted, for example, in the <em><a href="https://en.wikipedia.org/wiki/Game_of_Thrones" rel="nofollow noreferrer">Game of Thrones</a></em> books by R. R. Martin, which is based loosely on the fights over legitimacy in 15th century England's &quot;<a href="https://en.wikipedia.org/wiki/Wars_of_the_Roses" rel="nofollow noreferrer">War of the Roses</a>&quot;.</p>


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<p>Another legacy of this historical tradition is the duty of someone in military service to salute his or her superior officer.</p>
<p>As a historical note, these seemingly toothless rituals have, historically, been surprisingly effective a screening out hard core extremist leaders trying to bring down a government based upon claims that the whole system is illegitimate when new regimes are established, and following civil wars and insurgencies.</p>
<p>Many regimes, democratic and non-democratic, in Western political history, have imposed similar requirements. When they have done so, this has seriously influenced the political tactics used by factions that deny the legitimacy of the state and its incumbent leaders. Simply taking the oath undermines one's credibility as an insurgent leader, even if one does so in bad faith.</p>


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<p>In the United States, oaths of office were also key preconditions to the post-conflict settlements if the <a href="https://en.wikipedia.org/wiki/Whiskey_Rebellion" rel="nofollow noreferrer">Whiskey Rebellion</a>, the Civil War, and some of the lesser known episodes of a century of <a href="https://en.wikipedia.org/wiki/American_Indian_Wars" rel="nofollow noreferrer">Indian Wars</a>.</p>
<p>As a more recent example, the requirement of an oath of office has materially influenced the 20th and 21st century political tactics of <a href="https://en.wikipedia.org/wiki/Sinn_F%C3%A9in" rel="nofollow noreferrer">Sinn Féin</a>, a political movement in Ireland, seeking to make the U.K. political subdivision known as Northern Ireland, which it deems illegitimate, a part of the Republic of Ireland.</p>


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<p>Notably, the U.S. Supreme Court in the case <em>Powell v. McCormack</em>, 395 U.S. 486 (1969), distinguished between a Congressional determination that someone has not satisfied the constitutionally established requirements to have an oath of office administered to them after they have been elected, which can be made by majority vote, and a Congressional determination that a member of Congress should be expelled by a two-thirds majority vote of the house of Congress to which the member of Congress has been elected. A Congressional vote to expel a member of Congress is a non-justiciable question that is not tied to the content of the member's oath of office.</p>


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<p>Similarly, judicial and executive branch officials in the federal government may be impeached by Congress, and removed from office through that process, only for &quot;high crimes and misdemeanors&quot; and not merely for otherwise failing to live up to their oath of office in a non-criminal manner (although what constitutes &quot;high crimes and misdemeanors&quot; is also a non-justiciable political question).</p>
<p>Some legal authorities, however, have held that in some contexts, the oath of office does reflect an intent to <a href="https://irp.fas.org/agency/doj/olc110294.html" rel="nofollow noreferrer">empower executive branch officials to refuse to enforce what the President believes to be unconstitutional legislation</a>, when its constitutionality has not yet been definitively adjudicated yet.</p>


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<p>But, courts have also held, for example, that a member of the U.S. military does not have standing to bring a suit claiming that military action in which he is involved was unconstitutionally authorized. This decision was reached on the grounds that the claim that the service member was forced to violate that service member's oath of office does not constitute a justiciable &quot;injury in fact&quot; to that member for standing to sue purposes. <em>Smith v. Obama</em>, No. 16-843, 2016 WL 6839357 (D.D.C. Nov. 21, 2016) at page 10 (as discussed <a href="https://harvardlawreview.org/print/vol-130/the-justiciability-of-servicemember-suits/#footnote-ref-6" rel="nofollow noreferrer">here</a>).</p>


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Question Body: <p>In Germany, we have a law that limits contractual capacity of minors: <em>&quot;A contract concluded  by the minor  without the approval  of the legal representative  is deemed effective from the outset if the minor effects performance under the contract with means that were made available to the minor for this purpose or for the minor’s free disposition by the legal representative or by a third party with the representative’s approval.&quot;</em> (§ 110 German Civil Code). The &quot;means made available to the minor&quot; could e.g. be pocket money. This leads to the situation that minors may not acquire goods that are more expensive than a monthly average sum of pocket money for a certain age (e.g. a 13-year-old receives on average about 26 € per month). In effect, a seller could refuse to sell the good to the minor and would want the minor to bring his parents to buy the good with their consent.</p>


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<p>My question: does something like that exist in the USA as well? What if a minor wants to buy e.g. a Playstation 5 without his parents? Will he be able to buy it?</p>
<p>Thanks in advance for helpful responses.</p>


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Answer 1: <h2>In common law jurisdictions, contracts with minors are voidable unless they are for necessities</h2>
<p>That means an adult who enters a contract with a child is legally bound. A child that enters a contract is bound for as long as they choose to be (until they turn 18 and for a reasonable period thereafter) or until the contract is complete or unless the contract is for necessities.</p>
<p>What counts as a necessity depends on the financial means of the particular child.</p>


Tags: contract-law, minor


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Question Title: Is it true that electrically assisted pedal cycles must be limited to 6mph if operating with twist throttles?

Question Body: <p>What provision or instrument requires this, if so?</p>


Answer 1: <p>This isn't true. In order to not be treated as a motor vehicle, &quot;twist and goes&quot; must be capable of pedal operation and must not provide electrical assistance above 15.5 mph.</p>
<p><a href="https://www.gov.uk/government/publications/electrically-assisted-pedal-cycles-eapcs/electrically-assisted-pedal-cycles-eapcs-in-great-britain-information-sheet" rel="nofollow noreferrer">https://www.gov.uk/government/publications/electrically-assisted-pedal-cycles-eapcs/electrically-assisted-pedal-cycles-eapcs-in-great-britain-information-sheet</a></p>


Tags: england-and-wales, traffic


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Question Body: <p>Say a company is facing a trial and the court requires</p>
<ul>
<li>(version 1) the company</li>
<li>(version 2) someone with expertise from the company</li>
</ul>
<p>to provide a sworn opinion (something like <em>&quot;the process to do X is Y&quot;</em>), and answer questions in court.</p>
<p>To what extent can a company formally require a generic employee to do that? To fix an idea, let's say that this is a computer-related data processing process that interests the court, and the person who can talk about it is an IT engineer.</p>


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<p>The scope is ideally <a href="/questions/tagged/europe" class="post-tag" title="show questions tagged &#39;europe&#39;" aria-label="show questions tagged &#39;europe&#39;" rel="tag" aria-labelledby="tag-europe-tooltip-container">europe</a> (a wide scope, but the labour law is usually similar) and <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>


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Answer 1: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<p>Absent an agreement to the contrary, the employer can make expert testimony a requirement for further employment, and the employee can quit if this is not acceptable. As a practical matter, employees almost always agree to do so without any serious objections to testifying as experts on behalf of their employers.</p>
<p>Also, U.S. courts distinguish between retained and non-retained expert testimony.</p>
<p>A retained expert is someone testifying solely because they were hired to do so in particular case.</p>


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<p>Also, U.S. courts distinguish between retained and non-retained expert testimony.</p>
<p>A retained expert is someone testifying solely because they were hired to do so in particular case.</p>
<p>A non-retained expert is someone who has personal knowledge of the events in the case who has expertise in an area and is being asked to testify about that personal knowledge in a manner informed by that person's expertise.</p>
<p>A non-retained expert can be compelled to testify by subpoena, even if an agreement for that person to testify as an expert voluntarily is not reached.</p>
<p>Many employees asked by an employer to provide expert testimony would fall in the category of a non-retained expert who could be compelled to testify about the matter from their personal knowledge in a manner informed by their expertise, even if they quit.</p>


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<p>But, a non-retained expert can only be compelled to testify at trial, not to cooperate in preparing for that testimony with an attorney for the employer or preparing a written report in advance of that testimony.</p>
<p>Incidentally, it would be the rare exception to the rule for the written report of a retained expert witness in advance of their testimony at trial or in a deposition to make that report stating that opinion under oath. Typically, it would be signed but not sworn to by the expert.</p>
<blockquote>
<p>the court requires</p>
<p>(version 1) the company (version 2) someone with expertise from the
company to provide a sworn opinion (something like &quot;the process to do
X is Y&quot;), and answer questions in court.</p>
</blockquote>
<p>In U.S. cases, it isn't &quot;the court&quot; that is proactively telling litigants what evidence they have to provide. The law tells litigants what has to be proved.</p>


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</blockquote>
<p>In U.S. cases, it isn't &quot;the court&quot; that is proactively telling litigants what evidence they have to provide. The law tells litigants what has to be proved.</p>
<p>Sometimes, in U.S. non-criminal litigation, expert testimony from someone is required to proven or disprove an element of a case.</p>
<p>For example, in professional malpractice cases, someone with expertise in that profession must testify that the professional did or did not perform the work which is the basis of the lawsuit in a manner that falls below the standard of care for a professional of that type.</p>
<p>Other times, expert testimony is one means of many possible means to prove a fact in the case.</p>
<p>For example, one could prove lost profits by showing that a specific contract was lost by someone's action, or one could instead hire an expert to show what profits could have been earned if something was done.</p>


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Question Title: What is the legal basis for making servers pay for customers who walk out?

Question Body: <p>In the US, different states have different laws regarding customers who leave without paying the bill, aka &quot;Dine and Dash.&quot;</p>
<p>Some states allow for a restaurant to dock a server's pay, when a customer leaves without paying.  However, I dont understand how a server is responsible for the actions of a customer.  I cant think of any reason why a server would be considered negligent or how they would be in any way responsible for a customer walking out while they were doing their job, like paying attention to different customers, getting food, or any of the many other reasons the server would not be watching their customers.</p>
<p>So I am asking, what is the legal basis for a law allowing restaurants to make servers pay for dine and dashers?</p>


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Answer 1: <p>Unless it is prohibited by law in some state (such as California), a server's employment contract can have a clause holding the server responsible for an unpaid tab. Even in lieu of such a clause, since in most states employment is at-will, the employee can be fired if they do not do as told. There is a limit to the effect that their wage cannot be reduced below minimum wage.</p>


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<p>The question of the political rationale of this practice is outside the scope of law, but there are some legal factors that can lead to getting compensation from a server, even if pay-docking is prohibited. If a server intentionally colludes with a dine-and-hash customer, the server is liable. The server might also be negligent, for example they may have failed to notify management of evidence of an impending dine-and-dash such as overhearing a conversation, or watching the customers trickle out; or, disappearing for an unreasonable time for a smoke break (leaving the table unattended). Liability requires a lawsuit where the court decides if the server should pay.</p>


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Question Title: Discovery of Evidence - Context, Significance and Meaning?

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


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Answer 1: <p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<p>The Crown's duty to disclose all materials and information, inculpatory or exculpatory, unless clearly irrelevant, does not extend to Crown &quot;work product.&quot;</p>
<p>The &quot;work product&quot; privilege means that &quot;notes and materials that involve the thought process and strategic or tactical considerations of Crown counsel in the preparation and presentation of its case&quot; are not within the mandatory disclosure requirements. See <em>Dudley v. British Columbia</em>, 2016 BCCA 328.</p>


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<p>However, the Crown will present its case first. It will present an opening statement laying out the theory of the case and explain the relevance of the evidence it will be presenting. It will call all of its evidence first and then close its case before the defence presents its case.</p>
<p>Also,</p>
<blockquote>
<p>[t]he Crown must not be allowed to change the case it has presented once the accused has begun to answer the Crown’s case</p>
<p><em>R. v. G. (S.G.)</em>, <a href="https://canlii.ca/t/1fr1d#par38" rel="noreferrer">[1997] 2 SCR 716, at para 38</a></p>
</blockquote>


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Answer 2: <blockquote>
<p>Is the Prosecution also required to explain the evidence and describe
how they intend to use it?</p>
</blockquote>
<p>Generally not, although sometimes a disclosure of a potential witness must explain in a cursory manner, what pertinent knowledge the witness has related to the case.</p>
<p>For example, the prosecution, when disclosing Fredrick Gonzales Ho as a witness, might have to say something like &quot;Mr. Ho witnessed the defendant stab the murder victim on the date alleged in the indictment&quot; or &quot;Mr. Ho is the custodian of records of Cellphone Co. who will authenticate as business records the cell phone record evidence of the prosecution which has also been disclosed by the prosecution.&quot;</p>


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<p>The <a href="https://law.stackexchange.com/a/93387/9517">solid answer by Jen</a> describing Canadian law is also a good description of U.S. law on the subject. The main differences between Canadian law and U.S. law on the question of discovery by the prosecution in a criminal case involve the sanctions, remedies, and procedures available if the obligation is breached by the prosecution. But, the actual disclosure obligation of the prosecution in a criminal case is essentially the same under U.S. law and Canadian law.</p>


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Question Title: Could a child on a bike get a speeding ticket?

Question Body: <p>Can a child who is younger than sixteen, and who is below an age at which they could hold a driver's license, be ticketed for exceeding the posted speed limit on a road on a (non-motorized) bicycle?</p>


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Answer 1: <p>It depends on the laws of the jurisdiction. In Washington, speed limits are implemented via <a href="https://apps.leg.wa.gov/rcw/default.aspx?cite=46.61&amp;full=true" rel="nofollow noreferrer">Chapter 46.61 RCW</a>, the very first section of which states:</p>
<blockquote>
<p>The provisions of this chapter relating to the operation of vehicles
refer exclusively to the operation of vehicles upon highways except:
(1) Where a different place is specifically referred to in a given
section. (2) The provisions of RCW 46.52.010 through 46.52.090,
46.61.500 through 46.61.525, and 46.61.5249 shall apply upon highways and elsewhere throughout the state</p>
</blockquote>


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section. (2) The provisions of RCW 46.52.010 through 46.52.090,
46.61.500 through 46.61.525, and 46.61.5249 shall apply upon highways and elsewhere throughout the state</p>
</blockquote>
<p>We then turn to the question of what a &quot;vehicle&quot; is (this is the discussion of a number of legal treatises). Title 46 is about <em>motor</em> vehicles, but still you should look at the definition, if any, of &quot;vehicle&quot;. We have two definitions of vehicle in RCW <a href="https://app.leg.wa.gov/RCW/default.aspx?cite=46.04&amp;full=true#46.04.670" rel="nofollow noreferrer">46.04.670</a>. Definition 1 says that</p>
<blockquote>
<p>&quot;Vehicle&quot; includes every device capable of being moved upon a public
highway and in, upon, or by which any persons or property is or may be
transported or drawn upon a public highway, <em>including bicycles</em></p>
</blockquote>
<p>Definition 2 omits the italicized bicycle inclusion, and explicitly excludes</p>
<blockquote>


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transported or drawn upon a public highway, <em>including bicycles</em></p>
</blockquote>
<p>Definition 2 omits the italicized bicycle inclusion, and explicitly excludes</p>
<blockquote>
<p>A bicycle, for the purposes of chapter 46.12, 46.16A, or 46.70 RCW, or
for RCW 82.12.045((.))</p>
</blockquote>
<p>This is a bit of a mess arising from legislative screwup, which should be resolved by appeal to <a href="https://app.leg.wa.gov/RCW/default.aspx?cite=1.12.025" rel="nofollow noreferrer">RCW 1.12.025</a>. The explicit-exclusion sections are about registration, dealers and taxes, and not speed limits. The latter version was <a href="https://lawfilesext.leg.wa.gov/biennium/2023-24/Pdf/Bills/Session%20Laws/House/1066.SL.pdf" rel="nofollow noreferrer">recently reaffirmed</a> effective July 23, 2023.</p>


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<p>The courts could therefore be somewhat inclined to <em>not</em> apply speed limits to bicycles, because bicycles were recently removed from the set of explicit vehicles. But as notes in the Eskridge's extensive discussion of a hypothetical ban on vehicles in Lafayette Park, there are multiple principles for interpreting laws, and &quot;legislative intent to assure safety&quot; would be one prominent consideration, in case the wording of the law is not crystal clear – as it is not, in this case.</p>


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Answer 2: <h2><a href="https://www.transport.nsw.gov.au/roadsafety/bicycle-riders/road-rules-for-bicycle-riders#:%7E:text=Bicycle%20riders%20in%20NSW%20must,road%20rules%20as%20other%20vehicles." rel="nofollow noreferrer">Yes</a></h2>
<p><a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" aria-label="show questions tagged &#39;australia&#39;" rel="tag" aria-labelledby="tag-australia-tooltip-container">australia</a></p>
<blockquote>
<p>A bicycle is considered a vehicle in NSW and must follow the same road rules as other vehicles.</p>
</blockquote>
<p>Like all states and territories, the NSW rules are an implementation of uniform Australian Road Rules. While there are a few jurisdictional variations, there aren’t any about bikes.</p>


Tags: traffic, texas, minor, speeding


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Question Body: <p>I'm a leader in a church-sponsored children's group.  We're going to attend a half-day &quot;day camp&quot; run by Boy Scouts of America.  The activities will include short hikes, archery, bb guns, and paddling in a shallow pond.  The camp is requesting from me (as a leader) a <em>detailed medical history</em>, including all past surgeries, all diagnoses, and full medication list.</p>
<p>This is more personal information than I would like to provide and allow them to store.  If I refuse to provide such detailed information, and rather state that I'm physically able to perform my role as a leader, does privacy law protect me from being turned away?</p>


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<p>For example, and employer can't ask an applicant for a list of disabilities, list of illnesses/operations, or medical history.  But they can <em>ask if an interviewee is able to perform the essential functions of the job, or to undergo a medical exam</em> after a job is offered. (Source: University of New England, <a href="https://www.une.edu/sites/default/files/legal_interview_questions.pdf" rel="noreferrer">https://www.une.edu/sites/default/files/legal_interview_questions.pdf</a>)</p>
<p>Notes:</p>
<ul>
<li><p>I've recently done activities which involved much more risk--whitewater rafting and sea kayaking. The touring companies I went through didn't ask for nearly as much medical info.</p>
</li>


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<li><p>I've recently done activities which involved much more risk--whitewater rafting and sea kayaking. The touring companies I went through didn't ask for nearly as much medical info.</p>
</li>
<li><p>I've searched a bit through HIPAA explanations, and the closest example I've found has to do with employers requesting records.  If I understand correctly, an employer has a right to require medical records if they feel they might need to make an ADA accommodation, or if job safety might be endangered.</p>
</li>
</ul>


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Answer 1: <p>You generally are not required to share your medical details with people you don't want to. That said, the camp would also not be required to allow people who don't comply to enroll. They can't force you to divulge your information, but you can't force them to let you come if you don't, either.</p>
<p>HIPAA deals with the ability of healthcare providers to disclose medical information to parties who aren't the patient themselves - it would be a HIPAA violation for your doctor to disclose your information directly to the camp without your consent. HIPAA has absolutely no bearing on who you choose to disclose your own information to, however - you can disclose your own information to anyone you want.</p>


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Answer 2: <p>I was a Boy Scout as a boy, am currently registered as a Boy Scout leader, and it's been over 10 years since my oldest child started Cub Scouts. As mentioned in a comment, the form you're asking about is probably the <a href="https://filestore.scouting.org/filestore/HealthSafety/pdf/680-001_AB.pdf" rel="nofollow noreferrer">Annual Health and Medical Record, parts A and B</a>.  (There's also a <a href="https://filestore.scouting.org/filestore/HealthSafety/pdf/680-001_ABC.pdf" rel="nofollow noreferrer">parts A, B and C</a> version of the form that includes a page that must be filled out by a doctor.)</p>
<p>My understanding of the way the form is used is that it has two purposes:</p>
<ol>


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<p>My understanding of the way the form is used is that it has two purposes:</p>
<ol>
<li>It allows event organizers and supervisors to take reasonable precautions to keep all participants healthy (not just the adults filling out the form for themselves, or children whose parents filled out the form for them, but also <strong>other</strong> children whose parents entrusted them to the organizers of the activity).</li>
<li>In the event that a participant <strong>is</strong> injured and requires medical care, and is unconscious or incoherent, the form will be shared with first responders or the Emergency Room. (Although I've heard from leaders who actually had to take someone to the emergency room that there was little opportunity to introduce the form, even though they had it ready!)</li>
</ol>


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</ol>
<p>It's not used to deny someone membership in Boy Scouts of America (the <a href="https://filestore.scouting.org/filestore/pdf/524-406.pdf" rel="nofollow noreferrer">youth</a> or <a href="https://filestore.scouting.org/filestore/pdf/524-501.pdf" rel="nofollow noreferrer">adult</a> membership application is a separate form, and has no medical questions.)  And while various people might possess the form and many of them are unpaid volunteers, the tradition is that the form is kept private and only shared with those who &quot;need to know&quot; its contents. At day-camps and similar activities run by my Council, the form is reviewed once by a designated health officer at check-in, kept in a secure place by that officer, and returned to an adult participant, or the parent or other leader of a youth, at the end of the activity.</p>


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<p>And if the information disclosed on the form suggests that the subject's participation is unsafe, that might mean the subject is refused participation in the activity, but it might also give the organizers an opportunity to prepare an accommodation. For example, suppose there is a ladder on a certain course that is rated at 200 pounds, and you report that you weigh 215 pounds.  They could tell you that you can't go on the course, or they could replace that ladder with a ladder rated at 250 pounds.</p>
<p>(Although for a situation like that, it might be prudent for the operators to have a scale at the course entrance, and re-weigh everyone before entry!)</p>


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<p>(Although for a situation like that, it might be prudent for the operators to have a scale at the course entrance, and re-weigh everyone before entry!)</p>
<p>While I've dealt with private tour operators and standalone youth camps that had shorter liability-release forms, that might not be the best comparison. Typically a tour operator runs one specific activity (whitewater rafting on a particular river, or climbing a particular mountain).  The BSA program could include activities all the way from playing with dough (could trigger a gluten allergy in a child who nibbles it) to scuba diving, sometimes at an organized &quot;camp&quot; like the one you were going to and sometimes at public parks or even privately-owned backcountry.</p>


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<p>A better comparison might be the Utah High School Athletic Association's <a href="https://www.uhsaa.org/forms/forma.pdf" rel="nofollow noreferrer">Pre-Participation Examination Form</a>, or &quot;<em>Physical Form A</em>&quot;. Not counting the instructions, that's three pages.  Utah isn't alone in having such a form for student athletes; I live in Michigan, and have had to fill out the Michigan High School Athletic Association's <a href="https://www.mhsaa.com/sites/default/files/2022-06/physical2page.pdf" rel="nofollow noreferrer">Physical Card/Medical History Form</a> every year I wanted my children to play sports.</p>


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<p>And just because another organization's form is shorter doesn't mean that it doesn't require medical details. For example, one well-known church headquartered in Utah uses a <a href="https://assets.churchofjesuschrist.org/ec/6a/ec6a32b2ded011eda8abeeeeac1eefc32321140e/pd60004035_000_interactive.pdf" rel="nofollow noreferrer">Permission and Medical Release Form</a> (<a href="https://www.churchofjesuschrist.org/callings/church-safety-and-health/permission-and-medical-release-form?lang=eng" rel="nofollow noreferrer">description</a>), which includes questions under the headings &quot;Medical Information&quot;, &quot;Conditions that Limit Activity&quot;, and &quot;Other Accommodations or Special Needs&quot;. The instructions for that last block end with &quot;(attach additional pages if needed).&quot;</p>


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Question Title: Can the corporation that I work for (I am not salary or a subcontractor) use my personal information &amp; home address for business and billing purposes?

Question Body: <p>I have a corporate credit card that is utilized for business purposes at the location I work, which is not where corporate headquarters is.</p>
<p>Today the business/ billing address was changed by the corporation I work for to my PERSONAL HOME ADDRESS WITHOUT my permission! I was notified via email by the credit card company about the change.
I have messaged the credit card not giving permission to do that and I am restricted from changing it on my own.</p>
<p>I do not work from home. I do not utilize a corporate credit card for purchases or deliveries to my home. My employer does not operate out of my home address.</p>
<ol>
<li>Can my employer do that?</li>
<li>How do I stop this immediately?</li>
</ol>


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Answer 1: <p>It may depend on the structure of your company's arrangement with the credit card company, as well. I am familiar with at least one setup where each cardholder is issued a card <strong>in their own name</strong> to be used as a charge card, pending reimbursement from central accounts for approved expenses.</p>


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<p>For that organization, each cardholder is responsible for paying off their card balance each month (one can claim expenses mid-trip, if necessary), and failure to pay it off is a hit on their personal credit - which would explain why the bank needs the home address for each cardholder. Essentially, they have a card which is only authorized for official expenses, but any mistakes made (eg, improper charges, failing to file an expense report in a timely manner, etc) fall to the cardholder to remedy. I think this is meant to provide more incentive for proper management of funds, as they are also rather aggressive at searching out misconduct and fraud among those provided with charge cards.</p>


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<p>For that organization, the answer to your second question (how can I stop that) would be to return the card to the credit card issuer. Doing so may not be without consequences. However, as I mentioned, each card which goes to an individual's address is also in that individuals name. The very few cards not associated with an individual are strictly limited and each charge more rigorously checked (eg, fleet cards used to refuel and maintain the vehicles, where the mileage is tracked to make sure someone isn't filling up their own car, too). Those cards all keep the office as their billing address.</p>


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


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Question Body: <p>(In Tennessee, as the tag indicates)</p>
<p>My previous 12 month lease expired May 30th, 2023. Shortly before my lease expired, my previous landlord suddenly sold the apartment complex to another landlord, and notified us in an email to now contact the new landlord under an email address provided. I sent a message to that email asking about the previously agreed upon new lease agreement details I had with my last landlord, to which I never got a reply to.</p>


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<p>The new managers/owners were clearly struggling to get everything up and running, and they seemingly forgot about my lease renewal in the process (previous landlord emailed me lease renewals, these new people didn't even text/call/email me). They posted a late rent notice on my door on June 6th. I walked to the front office with the notice and told the manager I didn't even have a lease agreement with them but was still living in my unit. She tried to get my new online portal set up but couldn't. 3 weeks later, they finally get my online portal set up and are now charging me my previous lease agreement's rent/fees though I have not seen nor signed any lease agreement with them.</p>


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<p>If they decide to increase my rent/fees, do I have the right to say no and move out? I believe I'm still obligated to give them a 30 or 60 day move out notice, but would I be required to pay them something like an additional 3 months rent as an &quot;early move out&quot; fee? That was a stipulation in my previous (now expired) rent agreement.</p>
<p>Thank you all in advance for the help!</p>


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Answer 1: <p>There are two distinct questions here.</p>
<p>One is what happens when a lease expires and you don't vacate and the landlord doesn't try to evict you. Generally, in the absence of holdover tenant provisions expressly in the existing lease, the lease becomes a month to month lease on the same terms as previously in force. If the lease does provide for holdover tenant provisions, that lease remains in force.</p>
<p>The second issue is what happens when the landlord transfers ownership of the property. Basically, the lease runs with the land, regardless of who owns it, and the legal analysis is no different from what it would have been if the landlord had remained the same.</p>


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<p>So, if a lease with no holdover provision expires, no new renewal of the lease is signed, and a new owner buys the property from the old one, you have a month to month lease with then new owner on the same terms as the old lease, until the tenant and landlord agree otherwise, even in the absence of an express agreement with the new owner.</p>


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Question Title: What regulations have been made under S2 Housing Act 2004?

Question Body: <p>The Secretary of State is thereunder to make regulations prescribing categories of housing hazards. Where are these to be found?</p>


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Answer 1: <p><a href="https://www.legislation.gov.uk/ukpga/2004/34/section/2?timeline=false" rel="nofollow noreferrer">Section 2</a> Housing Act 2004 states:</p>
<blockquote>
<p>Meaning of “category 1 hazard” and “category 2 hazard”</p>
<p>(1) In this Act—</p>
<ul>
<li><p>“category 1 hazard” means a hazard of a prescribed description which falls within a prescribed band as a result of achieving, under a prescribed method for calculating the seriousness of hazards of that description, a numerical score of or above a prescribed amount;</p>
</li>
<li><p>“category 2 hazard” means a hazard of a prescribed description which falls within a prescribed band as a result of achieving, under a prescribed method for calculating the seriousness of hazards of that description, a numerical score below the minimum amount prescribed for a category 1 hazard of that description; and</p>
</li>


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</li>
<li><p>“hazard” means any risk of harm to the health or safety of an actual or potential occupier of a dwelling or HMO which arises from a deficiency in the dwelling or HMO or in any building or land in the vicinity (whether the deficiency arises as a result of the construction of any building, an absence of maintenance or repair, or otherwise).</p>
</li>
</ul>
<p>(2) In subsection (1)—</p>
<p>“prescribed” means prescribed by <strong>regulations made by the appropriate national authority</strong> (see section 261(1)); and</p>
<ul>
<li>“prescribed band” means a band so prescribed for a category 1 hazard or a category 2 hazard, as the case may be.</li>
</ul>
<p>(3) Regulations under this section may, in particular, prescribe a method for calculating the seriousness of hazards which takes into account both the likelihood of the harm occurring and the severity of the harm if it were to occur.</p>
<p>(4) In this section—</p>
<ul>
<li><p>“building” includes part of a building;</p>


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<p>(4) In this section—</p>
<ul>
<li><p>“building” includes part of a building;</p>
</li>
<li><p>“harm” includes temporary harm.</p>
</li>
</ul>
<p>(5) In this Act “health” includes mental health.</p>
</blockquote>
<p>For <a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a> these regulations are:</p>
<ul>
<li><p><a href="https://www.legislation.gov.uk/uksi/2005/3208/contents/made" rel="nofollow noreferrer">The Housing Health and Safety Rating System (England) Regulations 2005</a></p>
</li>
<li><p><a href="https://www.legislation.gov.uk/wsi/2006/1702/contents/made" rel="nofollow noreferrer">The Housing Health and Safety Rating System (Wales) Regulations 2006</a></p>
</li>
</ul>


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Question Title: Do Swiss banks have the right to demand seeing a visa for a foreign country?

Question Body: <p>A friend who is a Swiss citizen and resident of Switzerland has a checking account with a Swiss bank. Because of a stay in the US, he was asked to file a &quot;Status Declaration Form for Individuals&quot; confirming that he is not a US resident.
In addition to many more documents including tax returns, the bank asks to see his US visa.</p>
<p>Does a Swiss bank have the legal right to request seeing a visa for a foreign country, and if so under which paragraph of which law?</p>


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Answer 1: <h2>Yes</h2>
<p>The relevant Swiss law is known as the <a href="https://www.sif.admin.ch/sif/en/home/bilateral-relations/countries/united-states-america/fatca-agreement.html" rel="nofollow noreferrer">FATCA Agreement</a> and has been in force since 30/6/2014. FATCA stands for the Foreign Account Tax Compliance Act, a unilateral set of US regulations that applies worldwide for all countries. It requires foreign financial institutions to disclose information on US accounts to the Internal Revenue Service or levy a high tax.</p>
<p>At the moment, Switzerland uses the &quot;Model 2&quot; agreement with the USA, which requires the consent of the US taxpayer or an administrative request by the IRS. There are plans to move to the &quot;Model 1&quot; arrangement, which uses automatic data sharing, but the timeline is uncertain.</p>


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<p>The bank is required to verify that your friend is not a US tax resident, and the visa is one of the pieces of evidence they need. Your friend can, of course, refuse to produce it. The bank can then either refuse to do business with them, or treat them as though they <em>are</em> a US tax resident and withhold the required tax until such time as they prove they are not.</p>


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Question Title: when uploading videos to tiktok/youtube, as oringal content creators what copyright do we transfer to the platform, what is left to the creators?

Question Body: <p>when uploading videos to tiktok/youtube, as original content creators what copyright do we transfer to the platform, what is left to the creators?</p>
<p>where can we learn more those &quot;laws&quot; on their platforms?  Do we have any laws that transfer ownership completely, meaning that as soon as we use the platforms to upload content we agree to transfer the owner?</p>


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Answer 1: <blockquote>
<p>when uploading videos to tiktok/youtube, as original content creators what copyright do we transfer to the platform, what is left to the creators?</p>
</blockquote>
<p>Most of these platforms provide that the creator retains all copyright but grants the platform a non-exclusive and irrevocable license to redistribute and reuse the content.</p>
<blockquote>
<p>Where can we learn more those &quot;laws&quot; on their platforms?</p>
</blockquote>
<p>They are found in the terms of service.</p>
<blockquote>
<p>Do we have any laws that transfer ownership completely, meaning that as soon as we use the platforms to upload content we agree to transfer the owner?</p>
</blockquote>
<p>Most platforms avoid this, probably because they do not want to alienate potential users.  Most people would not upload their videos or other creations to a platform that would sue them for making subsequent use of the uploaded material.</p>


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<p>For example, from <a href="https://www.youtube.com/t/terms" rel="nofollow noreferrer">YouTube's terms of service</a>:</p>
<blockquote>
<p>Rights you Grant</p>
<p>You retain all of your ownership rights in your Content. In short, what belongs to you stays yours. However, we do require you to grant certain rights to YouTube and other users of the Service, as described below.</p>
<p>Licence to YouTube</p>
<p>By providing Content to the Service, you grant to YouTube a worldwide, non-exclusive, royalty-free, transferable, sublicensable licence to use that Content (including to reproduce, distribute, modify, display and perform it) for the purpose of operating, promoting, and improving the Service.</p>
<p>Licence to Other Users</p>


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<p>Licence to Other Users</p>
<p>You also grant each other user of the Service a worldwide, non-exclusive, royalty-free licence to access your Content through the Service, and to use that Content (including to reproduce, distribute, modify, display, and perform it) only as enabled by a feature of the Service.</p>
<p>Duration of Licence</p>
<p>The licences granted by you continue until the Content is removed as described below. Once removed, the licences will terminate, except where the operation of the Service, use of Content permitted before your removal, or the law requires otherwise.  For example, removal of Content by you does not require YouTube to: (a) recall Content that is being used by other users within any limited offline viewing functionality of the Service; or (b) delete copies we reasonably need to keep for legal purposes.</p>
</blockquote>


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Question Title: Prosecutor Disqualified for False Statements

Question Body: <p>I am looking for specific cases where a prosecutor was disqualified for making false statements or violated professional conduct rules.</p>
<p>I have seen cases where they were disqualified for conflicts.</p>


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Answer 1: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<h3>Short Answer</h3>
<blockquote>
<p>I am looking for specific cases where a prosecutor was disqualified
for making false statements</p>
</blockquote>
<p>I am not aware of any such cases where the judge attempting to do so was not reversed on appeal and rebuked for trying to do so.</p>
<h3>Long Answer</h3>
<p><strong>Professional Ethics Considerations</strong></p>
<p>The rules of professional conduct in the United States prohibit lawyers, including prosecutors, from making false material statements (of fact in most cases, and of law in some very narrow circumstances).</p>


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<p>All U.S. jurisdictions have rules of professional conduct based upon the <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents/" rel="nofollow noreferrer">Model Rules of Professional Conduct</a> promulgated by the American Bar Association and enacted on a state by state basis, sometimes with local modifications of the rules. But, the rules about making false statements are almost completely uniform.</p>
<p>Rule of Professional Conduct 3.3 prohibits making false statements to a tribunal, such as a court.</p>
<p>Rule of Professional Conduct 3.4 prohibits falsification of evidence.</p>
<p>Rule of Professional Conduct 4.1 prohibits making false statements to third-parties to litigation.</p>


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<p>Rule of Professional Conduct 3.4 prohibits falsification of evidence.</p>
<p>Rule of Professional Conduct 4.1 prohibits making false statements to third-parties to litigation.</p>
<p>There is a Rule of Professional Conduct 3.8 which sets forth duties specific to prosecutors, but that rule contains no provisions about truthfulness since those requirements apply to all lawyers.</p>
<p>Violations of the rules of professional conduct are punished with a public or private censure of a lawyer (i.e. an official rebuke with no other punishment), with suspension from the practice of law for a certain time periods, or with disbarment in extreme cases.</p>
<p>The rules related to truthfulness are not, however, a basis upon which a prosecutor or other lawyer would be barred from participating as a lawyer in a case in any circumstances that I can imagine.</p>


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<p><strong>The only usual grounds upon which prosecutors are disqualified from participating in litigation on ethical grounds are conflicts of interest and the &quot;lawyer-witness rule&quot; which prohibits lawyers from serving as trial lawyers and material trial witnesses in the same trial in most circumstances.</strong></p>
<p><strong>Other Considerations</strong></p>
<ol>
<li><strong>Generally speaking, a lawyer who is not currently disbarred or suspended from the practice of law (even if legal action to obtain that relief is pending) will not be disqualified from serving as a lawyer in a case for making false statements in a case.</strong></li>
</ol>
<p>I've seen one or two rare cases of cranky sexist federal judges trying to disqualify certain female Department of Justice prosecutors for allegedly making false statements, and being rebuked by appellate courts for doing so. But, I couldn't easily find a link to a case where that happened, which was at least a few years ago.</p>


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<ol start="2">
<li><p>Prosecutors have absolute immunity from civil liability (i.e. lawsuits) for money damages for their conduct in the course of the judicial process.</p>
</li>
<li><p>Prosecutors can be prosecuted criminally by other prosecutors for violating criminal laws related to fraud in separate lawsuits.</p>
</li>
<li><p>A prosecutor who makes a false statement of case in a courtroom in the course of a case could also be held in contempt of court by the judge and summarily fined or incarcerated (with punishments generally no more serious than a minor misdemeanor criminal offense).</p>
</li>
<li><p>A misrepresentation by a prosecutor, especially one made in closing arguments, can be a basis for setting aside a conviction on appeal, or in a collateral attack on a conviction (such as a habeas corpus petition). Generally, lawyers don't make statements of facts to juries in the course of trials at all.</p>
</li>
</ol>


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</li>
</ol>
<p><strong>Non-Judicial Removal Of A Prosecutor From A Case</strong></p>
<p>The prosecutor's boss might want to remove a prosecutor who is caught making a false statement in a court case from the case, because this makes the prosecutor less effective in front of the judge. But, this is an H.R. decision for the prosecutor's office to make, not something that a party in the case can demand that the court require in most cases.</p>


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Question Body: <p>I am trying to understand the context behind the recent <a href="https://www.supremecourt.gov/opinions/22pdf/21-1484_aplc.pdf" rel="nofollow noreferrer">SCOTUS decision</a> against the Navajo Nation.</p>
<p>It seems like the US, as a trustee, has an equitable duty to perform a Water Rights Accounting, and to seek a court's approval of such an accounting, to which the Navajo Nation could file exceptions.</p>
<p>Does anyone know a Water Rights Accounting has happened in for the Navajo Reservation?</p>
<p>Is the supreme court saying that the duty to account is not an affirmative duty?</p>
<p>Updated:</p>
<p>After researching the 1868 Navajo treaty, it seems the agreement was made under threat of extreme military force by the US, and agreed to by natives who mostly lacked the capacity to sign their names.  Ouch!</p>


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<p>According to Wikipedia, the Indian Appropriations Act of 1871 contained an amendment ending tribal recognition and the treaty system.   All Indians were made wards of the state; thus the U.S. government no longer needed tribal consent in dealing with the tribes.</p>
<p>In other words, to hell with the rule of law, the U.S. Congress we can do whatever they want. in &quot;Indian Country&quot;.</p>


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Answer 1: <h2>The US role as trustee is limited by the treaty</h2>
<blockquote>
<p>The Federal Government owes judicially enforceable duties to a tribe “only to the extent it expressly accepts those responsibilities.”</p>
</blockquote>
<blockquote>
<p>To be sure, this Court’s precedents have stated that the United
States maintains a general trust relationship with Indian tribes, including the Navajos. But unless Congress has created a conventional trust relationship with a tribe as to a particular trust asset, this Court will not “apply common-law trust principles” to infer duties not found in the text of a treaty, statute, or regulation.</p>
</blockquote>
<p>The 1868 treaty is silent on water rights so the US Government has no duty to do anything.</p>


Tags: us-supreme-court, water


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Question Body: <p>I recently had someone angrily bring up on Facebook the <a href="https://www.krtv.com/news/great-falls-news/great-falls-gun-shop-re-opens-after-a-visit-from-federal-agents" rel="noreferrer">IRS raid of Highwood Creek Outfitters on June 14th, 2023</a> where they apparently seized several years of <a href="https://www.atf.gov/firearms/atf-form-4473-firearms-transaction-record-revisions" rel="noreferrer">ATF 4473 forms</a>, forms used to document gun ownership transfer. I'm having difficulty finding many unbiased records of the situation, since the majority of posts are people who are front and center that they believe this was a massive overstep by the government and the first step to forcing a gun registry, particularly since said forms were not on the items to be seized in the warrant.</p>


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<p>Leaving aside such allegations, a recurring theme in articles has been people posting that there is no business need for the IRS to capture such forms. To me, a layman, it seems like it's relevant to tracking sales, particularly to determine if there might have been under-the-table sales (which, of course, would likely have tried to avoid official notice by not filing a transfer form), but I'm not an expert in the field.</p>
<p>Is there a good reason for the IRS to have seized these forms?</p>
<p><a href="https://www.breitbart.com/2nd-amendment/2023/06/17/montana-ag-sounds-alarm-armed-irs-agents-rounding-up-gun-purchase-records/" rel="noreferrer">Reference for the Attorney General Austin Knudsen stating that the warrant did not include those records</a>:</p>
<blockquote>


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<blockquote>
<p>“I spoke with the shop owner who told me that 20 heavily armed IRS agents from multiple states in our region served a warrant before his business opened. They took dozens of boxes full of 4473s — more than a decade’s worth. This is extremely concerning because it seemingly exceeds the search warrant which limited the scope of the search to financial records. These aren’t financial records, they’re records of lawful firearm purchases. What the hell does the IRS need with 4473s? We know the ATF in Washington, DC is trying to scoop up as many of these purchase records as possible, and that’s what it looks like they’re trying to do here.”</p>
</blockquote>
<p>And I've seen a few posted images of a tweet by Rep. Rosendale calling out the forms not being &quot;financial data&quot;, although it looks like he's removed it from his profile, if the image wasn't fabricated to start:</p>


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<p><a href="https://i.stack.imgur.com/G4lqWm.jpg" rel="noreferrer"><img src="https://i.stack.imgur.com/G4lqWm.jpg" alt="Tweet by Rep. Rosendale" /></a></p>
<blockquote>
<p>I met with Tom Vanhoose this morning after 20 armed IRS agents raided his store in Great Falls earlier this week.</p>
<p>Tom informed me that these agents confiscated all the 4473 forms, none of which contain any financial information; instead, the IRS now has access to these forms… twitter.com/i/web/status/1…</p>
</blockquote>


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Answer 1: <p>There are several federal excise taxes on firearms. The main ones are (dispensing with the fine definitional details and Internal Revenue Code citations):</p>
<ul>
<li><p>A tax on transfers of firearms of $5 per concealable firearm and $200 per firearm on certain other firearms;</p>
</li>
<li><p>a $500 per year firearm's dealers tax which is increased to $1000 if you import more than a certain number of firearms per year;</p>
</li>
<li><p>a 10% of sales price excise tax on pistols and revolvers; and</p>
</li>
<li><p>an 11% of sales price excise tax on other firearms and on ammunition.</p>
</li>
</ul>
<p>Of course, like any other business, firearm's dealers also have to file annual income tax returns on their revenues less their expenses on tax forms that depend upon the form of organization of the business (e.g. C-corporation, S-corporation, partnership/LLC, trust, etc.).</p>


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<p>The IRS has the right to examine the books and records of people who owe or are believed to owe taxes without going to a court to obtain permission to do so. Treas. Reg. § 1.601.105.</p>
<p>Subject to certain exceptions, information obtained by the IRS in a review of a taxpayers records and their return information are confidential. 26 U.S.C. § 6103.</p>
<p>There are criminal penalties for (slightly over simplifying) tax offenses including willfully failing to keep records necessary to file tax returns, willfully attempting to evade or defeat taxes, willfully failing to collect and pay taxes where required by law to do so, and willfully making false statements to IRS employees or on returns. 26 U.S.C. § 7201-7212.</p>


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<p>If the government provides probable cause to a federal judge or magistrate in connection with a possible criminal tax prosecution that there is probable cause to believe that a taxpayer has committed a criminal tax offense, then the government may obtain a search warrant to seize records without the advanced notice available in the usual civil record examination process.</p>


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<p>For example (not based on any facts I have been told about or read about in this particular case), suppose that a former employee of a firearm's dealer or an ex-spouse of one of the owners of the business, told the IRS that the dealer intentionally lied on their excise tax return by underreporting the number of firearms the dealer sold and that the dealer then kept the sales taxes collected from unreported buyers who completed Form 4473, and told the IRS criminal division investigators where the Form 4473s were kept at the dealer's offices. In that case, it would be routine for the IRS to obtain a federal search warrant to obtain those forms to seize and review in connection with an excise tax fraud investigation.</p>


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<p>If there was just an income tax audit, bank records and accounting records obtained by subpoena from banks and accountants would usually be sufficient. But this would cease to be the case if the inventory records obtained by subpoena from the dealer's suppliers, for example, and the accounting records, didn't match.</p>
<p>If there was evidence of unreported firearm sales income, or of unreported excise taxable sales, the IRS would usually need to compare the the Form 4473s of the business to its income and excise tax returns filed with the IRS. It would be routine to obtain these records with a search warrant rather than a civil office record review with advanced notice if tax fraud was suspected.</p>


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<p>The Form 4473s due to IRS confidentiality requirements, wouldn't be publicly available to anyone by the IRS and criminal investigators (not even members of Congress or local law enforcement), and would probably only be presented in redacted or summary forms in a criminal tax fraud prosecution at trial.</p>
<p>In all likelihood, the IRS doesn't care about the customers who filled out the Form 4473s at all, and isn't even bothering to investigate them (except possibly to spot check for fake social security numbers or names, which appear on the forms, to see if fake information was used to Form 4473s used to substantiate tax records).</p>
<p>Instead, the IRS is probably simply tallying them up and noting dates of sale, putting them in a spreadsheet, and seeing if they are different from what was reported to the IRS on the dealer's tax returns.</p>


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<p>If the dealer, for example, paid the proper excise taxes on 800 guns in 2022, but had 1200 Form 4473s in banker's boxes at its offices, then the people involved in the tax fraud at the dealership are probably going to go to federal prison for a few years. Indeed, they would probably just plead guilty rather than going through a futile trial where documents with their own signatures on them from boxes seized in their shop clearly establish their guilt in that case.</p>
<p>Federal firearm excise tax fraud prosecutions aren't terribly common, but they are about as plain vanilla as they come in the world of federal criminal prosecutions. This certainly doesn't portend any threat the Second Amendment rights or any crack down on the firearms industry.</p>


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<p>In terms of this message this sends, this is really no different that seizing the electronic records of a gas station that filed false gasoline excise tax returns to show how much gasoline was actually sold, and prosecuting the people who engaged in the tax fraud for that.</p>
<p>The argument that a <a href="https://www.justice.gov/usao-nh/page/file/1245526/download" rel="noreferrer">Form 4473</a> isn't a &quot;financial record&quot;, when it provides documentation of all of the information except the price on all of the dealer's firearm sales (Manufacturer, Model, Serial Number, Type of Firearm, Caliber or Gauge, number of firearms sold, and check boxes for tax exemptions), and the fact the some of the federal firearm excise taxes due don't even depend upon the price of the firearm, isn't a very strong one.</p>


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<p>Even if the search warrant didn't single out Forms 4473s from other kinds of business records, this would probably just be harmless error, because the IRS absolutely has the right to ask for and seize Form 4473s in connection with the tax fraud investigation, just like any other business record of a firm suspected of not paying its taxes. These records aren't protected by any evidentiary privilege in a federal tax fraud prosecution.</p>
<p>Also, combined with past sales fliers and catalogues and business records about sales pricing for different products from the dealer in its accounting records, it would be fairly trivial to use this information to recreate a very accurate forensic reconstruction of the gross firearm sales revenues of the dealer and the amount of excise taxes that should have been paid. It would be tedious work, but it would be extremely damning evidence of tax fraud if the estimated sales significantly exceeds the sales reported on the dealer's tax returns.</p>


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<p>Even if the some of the documents in a particular banker's box aren't within the scope of the search warrant (for example, perhaps someone put Christmas Cards and as well as accounting ledgers and cancelled checks in the same box), the IRS would not be beyond its rights to grab all of the banker's boxes of documents, review them at their leisure in a government office, and then return the contents of the boxes that turned out to be something other than what the IRS requested a search warrant to seize.</p>


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<p>A good faith belief that the boxes seized has some financial records in them would justify taking them away, reviewing their contents, and returning materials that were beyond the scope of what was sought. The IRS criminal division agents don't have to look through the many, many banker's boxes page by page at the dealer's place of business to screen them at that time at that level of detail. Similarly, the IRS agents are not required to assume that boxes actually contain what the label on the outside of the box says that the box contains.</p>


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<p>Of course, if the Form 4473s corroborate the tax returns filed by the dealer apart from minor clerical errors or uncertainties about the exact sales prices of sales reported on them due to irregular discounts provided by a dealer who sometimes haggled over the prices of used firearms, the dealer would be vindicated and the informant who triggered the investigation and prosecution (if there is evidence that this informant willfully lied to IRS investigators) might even be prosecuted for making an intentionally false report to a law enforcement officer.</p>
<p>The dealer wouldn't be entitled to reimbursement for criminal defense expenses or harm to the dealer's reputation, but it would still be a huge PR coup and the criminal charges would go away, probably long before a trial was even held.</p>


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<p>Montana Attorney General Austin Knudsen absolutely knows all of the facts in the post above. His claimed fear of a crackdown on gun users is something he is doing to willfully mislead the people of Montana for political gain. He may also be throwing stones at federal prosecutions because he was irritated that the IRS and Justice Department didn't keep him in the loop on this tax investigation in his state which he sees as his turf, even though it was purely a matter of federal tax law violations which his office didn't have jurisdiction over. Indeed, the IRS may have kept him in the dark and out of the loop from this investigation, in part, in order to protect taxpayer and gun owner privacy by not sharing confidential IRS investigation information with state law enforcement officers, something that it is not allowed to do.</p>


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Answer 2: <p>Records of firearms sales would be records of financial sales as well. One would suppose the issue is that the business is being investigated for not paying proper taxes, and this would be a way of cross-checking sales transactions.  Even tax cheats might be hesitant to hide firearms transactions.</p>
<p>Of course these things are easier to adjudicate in the media than in court, which is where the argument should be made.  The issues of &quot;new gun registries&quot; I leave to the assorted yahoos trying to make it an issue.</p>


Tags: united-states, tax-law


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Question Title: Is a company bound by a contract signed by a person disqualified from managing companies?


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Question Body: <p><a href="https://www.austlii.edu.au/au/legis/cth/num_act/ca2001172/s206b.html" rel="nofollow noreferrer">Section 206B</a> of the Australian <em>Corporations Act</em>  provides that a person is automatically disqualified from managing corporations if convicted of certain offences or made bankrupt.</p>
<p><a href="https://www.austlii.edu.au/au/legis/cth/num_act/ca2001172/s206a.html" rel="nofollow noreferrer">Section 206A</a> provides that a person who is disqualified from managing corporations commits an offence if they act as a &quot;shadow director,&quot; that is:</p>
<blockquote>
<p>(a) they make, or participate in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or</p>
<p>(b) they exercise the capacity to affect significantly the corporation's financial standing; or</p>


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<p>(b) they exercise the capacity to affect significantly the corporation's financial standing; or</p>
<p>(c) they communicate instructions or wishes … to the directors of the corporation … knowing [or intending] that the directors are accustomed to [or will] act in accordance with the person's instructions or wishes.</p>
</blockquote>
<p>It is a basic principle that the courts will not enforce an illegal contract. Lord Mansfield CJ held in <a href="https://en.wikipedia.org/wiki/Holman_v_Johnson" rel="nofollow noreferrer"><em>Holman v Johnson</em></a> (1775) 1 Cowp 341:</p>
<blockquote>


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<blockquote>
<p>The principle of public policy is this; <em>ex dolo malo non oritur actio</em>. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own standing or otherwise, the cause of action appears to arise <em>ex turpi causa</em>, or the transgression of a positive law of this country, there the court says he has no right to be assisted.</p>
</blockquote>
<p>Suppose that A continues to manage company B while disqualified, by arranging for (and signing on behalf of) B to borrow money from C. If C sues B to recover the loan, can B argue that it is not bound by the contract because it was illegal for A to sign on B's behalf?</p>
<p>Does the answer depend on whether B &quot;allowed&quot; A to illegally act on its behalf (for example, because A was the sole director and shareholder)? Would it be different if there were other directors who tried to stop A from purporting to act on behalf of B?</p>


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<p>Does the answer depend on whether C knew that A was disqualified from managing corporations? What if C knew about, or turned a blind eye to, B's internal management problems because C stood to earn a high interest rate?</p>
<p>What if the loan was in the other direction? If B sued C to recover a loan, could C refuse to pay because A was disqualified from lending B's money in the first place? Would it matter whether C was aware of A's disqualification?</p>


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Answer 1: <blockquote>
<p>Suppose that A continues to manage company B while disqualified, by
arranging for (and signing on behalf of) B to borrow money from C. If
C sues B to recover the loan, can B argue that it is not bound by the
contract because it was illegal for A to sign on B's behalf?</p>
</blockquote>
<p>The fact that the person who signed a contract couldn't legally have authority to execute the contract on behalf of a company doesn't mean it is an &quot;illegal contract&quot;.</p>
<p>Whether a contract is illegal or not goes to the subject-matter of the agreement, not to the means by which it is entered into.</p>


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<p>Whether a contract is illegal or not goes to the subject-matter of the agreement, not to the means by which it is entered into.</p>
<p>A contract on an otherwise valid subject-matter is not invalid <em>on the grounds of illegality</em> merely because the circumstances under which the contract was entered into were irregular or illegal, whether the problem with the entering into the contract was duress, abuse of a confidential relationship, minority, lack of authority to do so within the company, failure to memorialize the contract in writing when it is required by law, or what have you.</p>
<p>Unless there is clear statutory direction to the contrary in Australian law, the analysis here would be the same as the analysis under the common law of agency that applies in any circumstance where someone purports to enter into a contract on behalf of a principle (such as a company) without the legal right to do so.</p>


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<p>This rule is that the company is bound if the person had &quot;apparent authority&quot; to enter into the contract on behalf of the company and the connection between the company and the person claiming to act on its behalf was not totally made up (i.e. that the company had done something that contributed to the appearance that someone who was in some way connected to the company has the authority to take action on its behalf by not being clear enough with the outside world about who has authority to do what).</p>


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<p>So, absent clear statutory authority to the contrary, the company would be bound by the contract vis-a-vis the third-party on the other side of the contract (assuming that the counterpart to the contract didn't actually know that the person they were dealing with was disqualified), even though the person entering into the contract didn't have &quot;actual authority&quot; to do so, because that person was prohibited under the Australian Company Law from exercising that kind of authority.</p>
<p>The company could still sue the disqualified person who entered into the contract for any harm suffered by the company as a result of the disqualified person's failure to disclose to the counterparty in the contract that the disqualified person didn't have the authority to enter into the contract. But that would be it and would only be available if the company actually did suffer economic harm from being wrongfully bond by the contract.</p>


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<p>The disqualified person could also be criminally prosecuted for entering into the contract.</p>
<p>Now, some kinds of improperly entered into contracts aren't subject to a rule as unyielding or harsh as the apparent authority rule, and I wouldn't be shocked if Australian courts chose to deviate from the apparent authority rule in this particular case.</p>
<p>For example, another possible analogy would be a case where a minor enters into an executory contract (i.e. one that is not fully performed by both parties contemporaneously when it is entered into like a purchase of goods at a retail store), that is not for &quot;necessities&quot;, rather than under the agent without authority to act under internal corporate allocation of responsibility to employees analogy.</p>


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<p>In the contract by a minor case, the contract improperly entered into by the minor is not automatically void <em>ab initio</em>, but it is &quot;voidable&quot; by the minor. In other words, the contract could be undone, or there could be a defense to a lawsuit to enforce the contract, if the minor, properly represented by a guardian, wanted to do so.</p>
<p>Contracts entered into under duress, through fraud in the inducement, and as an abuse of a confidential relationship, for example, are similarly not &quot;void <em>ab intio</em>&quot;, but are &quot;voidable&quot; in the same way as a contract entered into by a minor who did not have the capacity to do so.</p>


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<p>On the other hand, if some random third-party in an act of outright fraud, who has no connection to the company, purports to sign a contract on behalf of the company, that contract is void <em>ab initio</em> and has absolutely no force or effect. This is treated legally as if the purported contract formation never happened and can't be enforced by either party to the contract.</p>
<p>I don't have access to Australian legal authorities sufficient to determine definitively if this situation under this particular Australian statute is governed by the apparent authority rule of agency law, or by the voidable contract rule that applies to other contracts with legal subject-matters which are entered into improperly.  But, the basic legal theories involved and the main possible legal conclusions are ubiquitous for how the common law of contracts and agency handles this situation in all common law countries where statutes don't expressly provide otherwise.</p>
<blockquote>


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<blockquote>
<p>Does the answer depend on whether B &quot;allowed&quot; A to illegally act on
its behalf (for example, because A was the sole director and
shareholder)? Would it be different if there were other directors who
tried to stop A from purporting to act on behalf of B?</p>
</blockquote>
<p>Somewhat. If B allowed A to illegal act on its behalf, it would probably be governed by the apparent authority rule. And, if other directors tried to prevent this in a way that wasn't effectual to advise C of A's disqualification, that probably wouldn't matter in lawsuits vis-a-vis C.</p>
<blockquote>
<p>Does the answer depend on whether C knew that A was disqualified from
managing corporations? What if C knew about, or turned a blind eye to,
B's internal management problems because C stood to earn a high
interest rate?</p>
</blockquote>


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managing corporations? What if C knew about, or turned a blind eye to,
B's internal management problems because C stood to earn a high
interest rate?</p>
</blockquote>
<p>Yes, this matters. If C knew that A was disqualified or was on inquiry notice due to suspicious circumstances that he might be disqualified and ignored those circumstances, the contract would be void or voidable.</p>
<blockquote>
<p>What if the loan was in the other direction? If B sued C to recover a
loan, could C refuse to pay because A was disqualified from lending
B's money in the first place? Would it matter whether C was aware of
A's disqualification?</p>
</blockquote>


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loan, could C refuse to pay because A was disqualified from lending
B's money in the first place? Would it matter whether C was aware of
A's disqualification?</p>
</blockquote>
<p>Generally speaking if C agreed to pay the loan, the fact that A was disqualified wouldn't matter. If C was aware of A's disqualification, B might have a right to bring a lawsuit against both A and C for fraud or conspiracy to commit fraud, in addition to the right to bring a lawsuit for breach of contract or unjust enrichment for failing to repay the loan, which might conceivably provide B with addition relief or remedies (e.g. it might impact thee way that the debt was treated in a bankruptcy if C went bankrupt).</p>


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Question Title: Would it be legal to shut down functionality on users phone?

Question Body: <p>This would be US jurisdiction, say NYC.</p>
<p>Note this is a question about the law only; not a question about technical feasibility.</p>
<ul>
<li>Could Apple or Google of their own volition legally shut down functionality of users' phone, say photo or video capabilities?</li>
<li>Could Verizon or T-Mobile legally do this as well?</li>
</ul>
<p>If so, under what circumstances could a provider take such an action?</p>
<ul>
<li>Could providers be ordered to take such an action, say under a
declared state of emergency?</li>
<li>Could the state order providers to push updates that halt
functionality of users' phones?</li>
</ul>
<p>Have these scenarios already made it into law or into courtrooms?</p>
<p>Are phones owned, or just licensed to use, and does this change legality of above actions?</p>


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Answer 1: <p>Short answer: YES, shutting down some phone functionality is legally permitted.  However, it is judicially reviewable.</p>
<p>The ability to throttle long-distance service in the event of emergency is a well-accepted capability, both in regulations and technically.   This was implemented to be able to give government agencies and other first responders priority over the general public.</p>
<p>An interesting implementation note is that, generally, throttling occurs for outgoing calls from the area of the emergency, not for incoming calls to the area.  At least in the days of plain old telephone service, throttled calls would receive a &quot;fast busy&quot; signal, so most people might not notice it.</p>


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<p>These capabilities were developed more than 20 years ago on recommendation of the President’s National Security Telecommunications Advisory Committee.   I'm not sure if there are FCC regulations related to it, but my guess would be that's where you would find any codification of the legal authority.</p>
<p>911 service is a different matter.   During an emergency, telephone companies are not allowed to throttle service. The FCC has taken a number of steps to increase public safety by encouraging and coordinating development of a nationwide, seamless communications system for emergency services1. In fact, in 2018 Verizon announced that it would stop throttling emergency responders’ data speeds.</p>
<p>It seems implicit in the above that throttling data services to the general public is permitted, emergency or not.</p>


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<p>It seems implicit in the above that throttling data services to the general public is permitted, emergency or not.</p>
<p>Given the regulatory structure involved, there seems little that a telecom company could not be ordered to do by the president under the National Emergencies Act (NEA)</p>
<p>Note: Under the NEA, the United States has been permitted to do actions not normally permitted nearly continuously since 1976.</p>
<p><strong>Continuous emergency powers, how's that for executive overreach?</strong>
<a href="https://sgp.fas.org/crs/natsec/98-505.pdf" rel="nofollow noreferrer">https://sgp.fas.org/crs/natsec/98-505.pdf</a></p>
<p><a href="https://www.fcc.gov/general/9-1-1-and-e9-1-1-services" rel="nofollow noreferrer">https://www.fcc.gov/general/9-1-1-and-e9-1-1-services</a>
<a href="https://en.wikipedia.org/wiki/Wireless_Communications_and_Public_Safety_Act" rel="nofollow noreferrer">https://en.wikipedia.org/wiki/Wireless_Communications_and_Public_Safety_Act</a>


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<a href="https://en.wikipedia.org/wiki/Wireless_Communications_and_Public_Safety_Act" rel="nofollow noreferrer">https://en.wikipedia.org/wiki/Wireless_Communications_and_Public_Safety_Act</a>
<a href="https://en.wikipedia.org/wiki/List_of_national_emergencies_in_the_United_States" rel="nofollow noreferrer">https://en.wikipedia.org/wiki/List_of_national_emergencies_in_the_United_States</a></p>


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Question Title: Can a group of people be libelled

Question Body: <p>If I was thinking of writing a blog where I refer to a  group of people such as immigrants, as traitors, would that constitute libeling?</p>
<p>I was interested in any country's laws to see what people think.  A blog wouldn't normally be limited for view, to one country.</p>


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Answer 1: <p>It depends on the jurisdiction, among other things. There is such a thing as group defamation, and a lawsuit could be possible if the statement the statement falsely imputes to a small group some damaging fact, for example &quot;The members of the Podunk City Council took bribes&quot;. A statement that &quot;immigrants&quot; committed murder would not be specific enough that one of more immigrants can bring a lawsuit. A statement about &quot;Rohit Gupta&quot; could if the circumstances support the conclusion that a <em>specific</em> Rohit Gupta was referred to, but a statement about &quot;Rohit Guptas&quot; (the plural, not a misspelling) would not because there are tens of thousands of Rohit Guptas.</p>


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<p>A relevant piece of case law is <a href="https://scholar.google.com/scholar_case?case=17519695507761331317&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr" rel="nofollow noreferrer">Weatherhead v. Globe Intern., Inc.,</a> 832 F. 2d 1226. It is a general rule quoted there that</p>
<blockquote>
<p>if ... the statement concerns a group sufficiently large that it
cannot reasonably be understood to apply to plaintiff particularly, it
is not actionable in the absence of content or circumstances
reasonably specifying the plaintiff individually. 2 F. Harper, F.
James &amp; O. Gray, The Law of Torts § 5.7 (2d ed. 1986)</p>
</blockquote>
<p>To succeed in a group defamation claim, plaintiff must</p>
<blockquote>
<p>(a) the group or class is so small that the matter can reasonably be
understood to refer to the member, or (b) the circumstances of
publication reasonably give rise to the conclusion that there is
particular reference to the member.&quot; Restatement (Second) of Torts §


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publication reasonably give rise to the conclusion that there is
particular reference to the member.&quot; Restatement (Second) of Torts §
564A (1977)</p>
</blockquote>
<p>See <a href="https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=2806&amp;context=luclj" rel="nofollow noreferrer">this article</a> for discussion of how group libel laws potentially infringe First Amendment rights, noting that group libel laws stood in for &quot;hate speech&quot; laws which are unconstitutional in the US.</p>


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Answer 2: <p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<p>A statement made about a group can defame its individual members.</p>
<blockquote>
<p>The person who made the impugned comments cannot avoid liability by hiding behind the fact that he or she used general terms applying to a group.  Attacks on a group may in fact personally affect some or all of the group’s members.  While the injury must be personal, it does not have to be unique, that is, different from the injury sustained by the other members of the group.  The reputation of more than one person may be tarnished by the same wrongful comments.  While the law does not punish the defamation of groups having no juridical personality, it does punish multiple individual defamation.</p>


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<p><em>Bou Malhab v. Diffusion Métromédia CMR inc.</em>, <a href="https://canlii.ca/t/2frk1#par49" rel="nofollow noreferrer">2011 SCC at para 49</a>.</p>
</blockquote>


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Question Title: Can you have a Facebook group with a trademark company&#39;s name?

Question Body: <p>Can you force a Facebook group to change their name if it matches your trademark?  One group I am in is thinking about changing their name because of this and it is a group of current and former members of that organization. This is within the U.S. and the organization is events and adventures.</p>


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Answer 1: <p>Trademarks are all about customer confusion.   The ruling factor is: is a reasonable person likely to confuse the thing with the trademark holder's thing?</p>
<p>However, you're allowed to be <em>referential</em> - for instance say you have a group for former Microsoft employees.  You aren't prohibited from using the term Microsoft. You have a practical reason since it defines what your group is.    Calling themselves &quot;Angry Microsoft Expats&quot; isn't likely to be confused with official Microsoft (even if Microsoft may not be amused), but calling themselves &quot;Microsoft Exit&quot; - <em>see, that kind of sounds like a product</em>.</p>


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<p>But here's the thing. A lot of people get confused by free speech.  If the site <strong>stores</strong> content (words, sounds, images, video, haptics)  <em>free speech does not exist</em>. What exists is <strong>freedom of the press</strong>, which is enjoyed by <strong>them who own a press</strong>.  It's like that.  You have no rights. Facebook can put up or delete anything they please, for any reason or no reason at all (e.g. sales rep says &quot;customer will do an ad buy if we delete it&quot;).*</p>
<p>If you don't like that, you can get your own press for $17.99 at GoDaddy.</p>
<p>* Except for a very narrow list of reasons such as &quot;you are black&quot;, but even this has constraints.</p>


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Question Body: <p>I feel this is fairly straightforward, but I have seen no explanation as to why Midjourney is allowed to restrict the &quot;copyright&quot; or commercial use rights of their users, paid or otherwise, in their ToS.</p>
<p>In their terms of service, it states that you only have the right to use generated images commercially if you have paid for a membership during the time the asset was made. This seems to directly contradict the idea that AI generated images have no copyright, and are therefore public domain (as my understanding goes, which could be way off-base). It doesn't seem like they have a leg to stand on if I created a free account and used generated images commercially, since my assumption is that they could only attempt a DMCA claim, which shouldn't work because the image has no copyright.</p>


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<p>So, I ask anyone here with knowledge on the subject to explain to me whether or not I am mistaken. I know it's all still fairly new, but I thought the ruling on AI-generated content was pretty clear. The only thing I could potentially see is that the images were generated by their machines, but I don't see how that changes things.</p>
<p>The section in question:</p>
<blockquote>
<ol start="4">
<li>Copyright and Trademark In this section, Paid Member shall refer to a Customer who has subscribed to a paying plan.</li>
</ol>
<p>Rights You give to Midjourney By using the Services, You grant to
Midjourney, its successors, and assigns a perpetual, worldwide,
non-exclusive, sublicensable no-charge, royalty-free, irrevocable
copyright license to reproduce, prepare Derivative Works of, publicly
display, publicly perform, sublicense, and distribute text, and image
prompts You input into the Services, or Assets produced by the service


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display, publicly perform, sublicense, and distribute text, and image
prompts You input into the Services, or Assets produced by the service
at Your direction. This license survives termination of this Agreement
by any party, for any reason.</p>
<p>Your Rights Subject to the above license, You own all Assets You
create with the Services, provided they were created in accordance
with this Agreement. This excludes upscaling the images of others,
which images remain owned by the original Asset creators. Midjourney
makes no representations or warranties with respect to the current law
that might apply to You. Please consult Your own lawyer if You want
more information about the state of current law in Your jurisdiction.
Your ownership of the Assets you created persists even if in
subsequent months You downgrade or cancel Your membership. However,
You do not own the Assets if You fall under the exceptions below.</p>
<p>If You are an employee or owner of a company with more than $1,000,000


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You do not own the Assets if You fall under the exceptions below.</p>
<p>If You are an employee or owner of a company with more than $1,000,000
USD a year in gross revenue and You are using the Services on behalf
of Your employer, You must purchase a “Pro” membership for every
individual accessing the Services on Your behalf in order to own
Assets You create. If You are not sure whether Your use qualifies as
on behalf of Your employer, please assume it does.</p>
<p>If You are not a Paid Member, You don’t own the Assets You create.
Instead, Midjourney grants You a license to the Assets under the
Creative Commons Noncommercial 4.0 Attribution International License
(the “Asset License”). The full text is accessible as of the Effective
Date here: <a href="https://creativecommons.org/licenses/by-nc/4.0/legalcode" rel="nofollow noreferrer">https://creativecommons.org/licenses/by-nc/4.0/legalcode</a>.</p>
<p>Please note: Midjourney is an open community which allows others to


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<p>Please note: Midjourney is an open community which allows others to
use and remix Your images and prompts whenever they are posted in a
public setting. By default, Your images are publically viewable and
remixable. As described above, You grant Midjourney a license to allow
this. If You purchase a &quot;Pro&quot; plan, You may bypass some of these
public sharing defaults.</p>
<p>If You purchased the Stealth feature as part of Your “Pro”
subscription or through the previously available add-on, we agree to
make best efforts not to publish any Assets You make in any situation
where you have engaged stealth mode in the Services.</p>
<p>Please be aware that any image You make in a shared or open space such
as a Discord chatroom, is viewable by anyone in that chatroom,
regardless of whether Stealth mode is engaged.</p>
</blockquote>


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as a Discord chatroom, is viewable by anyone in that chatroom,
regardless of whether Stealth mode is engaged.</p>
</blockquote>
<p>Clearly, I'm not lawyer, and I could easily misunderstand what this trying to say. I understand companies typically needing to add broad language to protect themselves, and is usually innocuous, despite the claims made by others. I'm mostly here to try and gain an understanding of why they might have included this.</p>


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Answer 1: <p>A TOS is not intrinsically illegal, but an interpretation of a TOS may or may not be supported by a court, that remains to be seen. It probably does not constitute a &quot;deceptive practice&quot; under FTC standards.</p>
<p>The <a href="https://docs.midjourney.com/docs/terms-of-service" rel="nofollow noreferrer">TOS</a> is your permission to use the software, and there can be no question that they have the right to impose conditions on customer use of the software. E.g. Amazon cannot freely use software that is only licensed for free <em>educational</em> use. They speak of &quot;ownership&quot; of IP so created and explicitly disclaim any claims about Current Law in Your Jurisdiction. At the crucial point in the agreement, they switch to talking about the license (BY-NC) that they grant when you are not a paid member.</p>


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<p>The exact details of this ownership are not part of the free tier TOS, but they do seem to add certain protections to &quot;owned&quot; content created under the Pro plan – they are under no legal obligation to make all content universally visible and usable.</p>


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Answer 2: <blockquote>
<p>In their terms of service, it states that you only have the right to
use generated images commercially if you have paid for a membership
during the time the asset was made. This seems to directly contradict
the idea that AI generated images have no copyright, and are therefore
public domain (as my understanding goes, which could be way off-base).
It doesn't seem like they have a leg to stand on if I created a free
account and used generated images commercially, since my assumption is
that they could only attempt a DMCA claim, which shouldn't work
because the image has no copyright.</p>
<p>So, I ask anyone here with knowledge on the subject to explain to me
whether or not I am mistaken. I know it's all still fairly new, but I
thought the ruling on AI-generated content was pretty clear.</p>
</blockquote>
<p>Two main points.</p>
<p><strong>The Law Is Not That Clear Yet</strong></p>


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thought the ruling on AI-generated content was pretty clear.</p>
</blockquote>
<p>Two main points.</p>
<p><strong>The Law Is Not That Clear Yet</strong></p>
<p>First, you are mistaken that the law on the copyrightable content of AI-generated content is pretty clear.</p>
<p>AI-generated content comparable to Midjourney or ChatGPT in their current dramatically new versions is only a year or two old so far. At this point, we have opinion letters and policy statements from the U.S. Copyright Registrar's office, and a handful of trial court orders, and perhaps one or two rulings on requests for preliminary injunctions pending appeals.</p>
<p>But, there is still a legitimate argument that these AI engines are different in kind in legally relevant ways from earlier automated technologies like motion activated cameras, or cameras on timers, or cameras operated by monkeys or other animals. This argument has not yet been definitively foreclosed by existing law.</p>


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<p>Copyright infringement cases are in the exclusive jurisdiction of the federal courts, and AFAIK, there is really no meaningful body of precedential final U.S. Court of Appeals opinions on the merits of these issues in light of this arguably different in kind AI technology. There is certainly no U.S. Supreme Court ruling that is squarely on point factually yet. And, even if one or two circuits had ruled a particular way on the issue, the possibility of a circuit split evolving before the dust settles is real.</p>
<p>We have the &quot;first word&quot; on how copyright law applies to these kinds of works, but not the &quot;last word&quot; or a definitive ruling regarding the question under U.S. law.</p>
<p>Furthermore, it isn't just U.S. legal authorities that matter.</p>


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<p>Furthermore, it isn't just U.S. legal authorities that matter.</p>
<p>Anything Internet based can be used anywhere in the world, and it is entirely possible that even if U.S. law ultimately concludes that A.I. generated content can't be copyrighted, nothing prevents courts and intellectual property right administering administrative agencies in Japan or France or Russia or Brazil or Australia or China from coming to a different conclusion, which could give these terms in a ToS legal significance to the extent that the choice of law provisions and substantive terms of a ToS don't resolve them.</p>


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<p>An attorney drafting a ToS in this context needs to consider every plausible way that courts could ultimately reach without knowing for sure at the time it is drafted what will happen, and wants to do that in a way that maximally preserves the firm's preferred outcome in each of those scenarios. If this turns out to be irrelevant latter, so be it, at least they tried. If it turns out to be important later due to, for example, an unexpected U.S. Supreme Court precedent addressing the issue in the future, the drafting lawyer gets sued for malpractice for not anticipating the possibility.</p>
<p>If, when the time comes to try to rely upon the ToS in a court case, the legal assumptions about copyright of A.I.- generated material in the ToS turns out to be untenable under the law as it has evolved by then in the place where the case is actually being litigated, the firm can abandon that legal argument at the outset of the case and would almost surely not be sanctioned for doing so.</p>


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<p>If an agency like the FTC sued them for deceptive trade practices, or they were sued in a class action on similar grounds, and again, the legal position taken when the ToS was drafted now seems untenable, the firm could enter into a consent degree and amend the ToS prospectively to settle the lawsuit and probably wouldn't face serious money damages or fines for not predicting the state of a body of law which was really only a year or two old or less at the time that it was drafted.</p>
<p>The uncertainty in the law at the time the ToS was drafted is reflected in the following very atypical ToS language, which disclaimed any liability on the part of the firm of taking a position about the copyright status of the A.I.-generated work in the ToS or elsewhere, that turns out to be wrong:</p>
<blockquote>
<p>Midjourney makes no representations or warranties with respect to the
current law that might apply to You. Please consult Your own lawyer if


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<blockquote>
<p>Midjourney makes no representations or warranties with respect to the
current law that might apply to You. Please consult Your own lawyer if
You want more information about the state of current law in Your
jurisdiction.</p>
</blockquote>
<p><strong>Copyright Rights v. Contract Rights</strong></p>
<p>Suppose that there are no copyrights that can be obtained in A.I.-generated content. This doesn't mean that the ToS are improper or wrongful. The ToS is doing several things:</p>
<ol>
<li><p>It is prohibiting users from using the firm issuing the ToS or fellow users on intellectual property grounds. The waiver dispenses with the need to litigate over the merits of whether there is a valid copyright or not.</p>
</li>
<li><p>It establishes rules of the road about who has to pay for using the website and what rights within the platform come with what kind of relationship a user has with the firm.</p>
</li>


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</li>
<li><p>It establishes rules of the road about who has to pay for using the website and what rights within the platform come with what kind of relationship a user has with the firm.</p>
</li>
<li><p>It disavows any expectation of privacy in the content generated in order to protect the firm from breach of privacy rights claims.</p>
</li>
</ol>
<p>Critically, note also that it is possible and legal to license and/or profit from content even if the content isn't protected by copyright.</p>


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</ol>
<p>Critically, note also that it is possible and legal to license and/or profit from content even if the content isn't protected by copyright.</p>
<p>For example, it is usually legal to print copies of an out of copyright book, sell it to consumers at a profit, and enter into non-competition agreements with firms that are distributing that book that prohibits them from printing their own copies of the same out of copyright book and selling it to their buyers at a price lower than your product's price. The justification for a non-competition clause like this isn't that you own the rights to the out of copyright book. Instead, it is the business justification that someone you are hiring to do something for you (i.e. distributing the book) shouldn't also be competing with you in the same line of business that you are hiring them to do work for you in. You shouldn't have to be subsidizing your very own competition by giving them profits from your business dealings with them.</p>


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<p>Similarly, it is legal to sell customer lists or other compilations of &quot;sweat of the brow&quot; data that is not protected by copyright law (e.g. conveniently packaged complete packages of U.S. government documents that are inconvenient to get directly from the agencies in question) in a contract with the buyer (the &quot;first sale doctrine&quot; limits somewhat what restrictions on use of the purchased item can be imposed on a buyer, but doesn't completely limit all contractual arrangements of this kind).</p>
<p>So, the fact that there are provisions about licensing in an agreement isn't inherently unlawful even if the underlying material isn't actually protected by copyright as the ToS implicitly and explicitly assumes.</p>
<p>There are times when licensing restrictions can go too far and raise anti-trust concerns.</p>


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<p>There are times when licensing restrictions can go too far and raise anti-trust concerns.</p>
<p>For example, there is a duty in some cases to license legally protected intellectual property that is necessary for any other firm to participate in an industry like, e.g., cell phones, on an equitable basis under anti-trust law in some cases, so that the IP dependent industry doesn't become a natural monopoly, and so that the IP owner gets paid but doesn't pick winners or losers in the competitive marketplace for improper reasons.</p>
<p>But these kinds of restrictions are the exception and not the rule. This kind of analysis also implicates legal doctrines far afield from the contract and copyright oriented issues raised in the question.</p>


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Question Title: Two Margin accounts at the same Brokerage Account

Question Body: <p>Both E*Trade and TD Ameritrade have a policy that says an investor cannot have two margin accounts with them. He can have two or more cash accounts. Neither firm could tell me why they have this policy.</p>
<p>Is there a law or a FINRA regulation that prevents them from opening two margin accounts for the same customer?</p>


Answer 1: <p>Margin accounts typically have terms that automatically seize the securities that are collateral for the account when the loan to value of the account is too high. More than one margin account would undermine the administrative process of determining that this loan to value limit has been exceeded, and having multiple margin accounts rather than just one, for a brokerage account serves no legitimate purpose.</p>


Tags: united-states, securities


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Question Title: Are there countries where vehicles involved in an accident must move if they&#39;re blocking the flow of traffic?

Question Body: <p>When driving in Europe, one can often notice traffic jams caused by car accidents where there's very minor damage to both parties and they could easily move out of the way, however the law mandates them both to stay put and wait for the police/insurance to collect evidence about the accident. This is understandable from the perspective of people involved in an accident as no one wants to see increased insurance premiums if they're not responsible, however this is sub-optimal for all the other drivers as the time wasted in the traffic jam far surpasses the total monetary cost of any small car crash.</p>
<p>Are there countries where this is different and drivers are obligated to move out of the way immediately if their car remains operable?</p>


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Answer 1: <p>The <a href="https://www.gesetze-im-internet.de/stvo_2013/StVO.pdf" rel="noreferrer">Straßenverkehrsordnung</a>(<a href="https://germanlawarchive.iuscomp.org/?p=1290" rel="noreferrer">Translation</a>) in <strong>Germany</strong> says this:</p>
<blockquote>
<p>§ 34 Accidents</p>
<p>(1) Any person involved in a traffic accident must:</p>
<ol>
<li><p>stop immediately;</p>
</li>
<li><p><strong>take the necessary steps to ensure traffic safety and, if there is only minor damage, move their vehicle to the edge of the
carriageway</strong>;</p>
</li>
<li><p>ascertain the consequences of the accident;</p>
</li>
<li><p>assist injured persons (section 323c of the Penal Code);</p>
</li>
<li><p>to other persons present at the scene of the accident who were involved and have suffered damage:</p>
<p>a) state that they (i.e. the person referred to in the first clause) were involved in the accident; and</p>


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<p>a) state that they (i.e. the person referred to in the first clause) were involved in the accident; and</p>
<p>b) if requested to do so, provide their own name and address, present their own driving licence and vehicle registration document and, to the best of their knowledge, provide details of their third-party insurance;</p>
</li>
<li><p>a) remain at the scene of the accident until, by virtue of their own presence, it has been possible to identify their personal details, their vehicle and the nature of their involvement to the benefit of the other persons who were involved in and have suffered damage in the accident; or</p>
<p>b) wait for a reasonable length of time and leave their own name and address at the scene of the accident if nobody was prepared to perform the identification;</p>
</li>
<li><p>immediately facilitate subsequent identification if they have left the scene of the accident legitimately, after giving a plausible


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</li>
<li><p>immediately facilitate subsequent identification if they have left the scene of the accident legitimately, after giving a plausible
excuse or upon expiration of the waiting time (paragraph 6(b)). For
this purpose, they must inform at least the persons referred to above
(paragraph 6(a)) or a nearby police station that they were involved in
the accident and must provide their own address, their present
whereabouts as well as the registration number and location of the
vehicle that was involved in the accident, which must be kept
available for immediate investigation for a reasonable length of time.</p>
</li>
</ol>
</blockquote>


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vehicle that was involved in the accident, which must be kept
available for immediate investigation for a reasonable length of time.</p>
</li>
</ol>
</blockquote>
<p>For minor accidents (no injuries, no suspected criminal offence, no major disagreements between involved parties, ...) you do not have to call and wait for police (you have a right to call them but they might try to discourage you from requesting that they come to the scene). For normal traffic accidents insurance doesn't come and collect evidence at the scene, instead an appraiser will document damage to your car and look at statements and witness reports and other documentation. You can just exchange all necessary information with the other party/ies and then leave with your car (possibly using a towing service).</p>


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<p>However, OP might refer to the specific case of an accident with a rented car. In that case, the contract with the rental service often mandates that you call police and request an official police documentation and report in case of an accident.</p>


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Answer 2: <p>This is the law in <a href="/questions/tagged/california" class="post-tag" title="show questions tagged &#39;california&#39;" aria-label="show questions tagged &#39;california&#39;" rel="tag" aria-labelledby="tag-california-tooltip-container">california</a>.</p>
<p><a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=20002.&amp;lawCode=VEH" rel="noreferrer">California Vehicle Code Section 20002(a)</a>:</p>
<blockquote>
<p>The driver of any vehicle involved in an accident resulting only in damage to any property, including vehicles, shall immediately stop the vehicle at the nearest location that will not impede traffic or otherwise jeopardize the safety of other motorists. Moving the vehicle in accordance with this subdivision does not affect the question of fault.</p>
</blockquote>


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</blockquote>
<p>Failure to do so is a misdemeanor, punishable by a fine of up to $1000 or up to six months in jail, or both.  The vehicle could also be towed and impounded, see  the <a href="https://www.dmv.ca.gov/portal/driver-education-and-safety/educational-materials/fast-facts/vehicle-collisions-ffdl-16/" rel="noreferrer">DMV website</a>:</p>
<blockquote>
<p>You must do the following: Move your vehicle off the street or highway if no one is injured or killed. If you do not move your vehicle or have it removed from the street or highway, any peace officer or authorized personnel may have your vehicle removed and impounded. (CVC §§22651 and 22651.05).</p>
</blockquote>


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</blockquote>
<p>On some busy highways, there are signs posted to inform drivers of this rule.  For instance, <a href="https://goo.gl/maps/LECj2bokdFLezSWX7" rel="noreferrer">a Google Street View photo along I-80 W in Emeryville</a> of a sign saying &quot;Minor Crash / No Injuries / Safely Move Vehicles From Travel Lanes&quot;.  This is an area with very heavy traffic, where traffic obstructions could cause major delays.  (In fact, I found out about the rule from seeing this very sign.)</p>


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Answer 3: <p>In Spain, for example, there's no obligation to move the vehicle out of the way, but it is recommended if there are no serious injuries (minor incidents). As far as I know, there's no directives from the Traffic Department (DGT), but you can read this recommendations from official sources such as some local police departments (<a href="http://policialocal.santiagodecompostela.gal/info.php?id=39&amp;idioma=es&amp;sec=28&amp;cat=39" rel="noreferrer">link in spanish, Santiago de Compostela police department</a>).</p>
<p>It is also recommended from non-severe crashes on highways, since it will prevent being run over by other vehicles coming at highway speeds: <a href="https://www.autopistas.com/blog/como-actuar-en-caso-de-averia-o-accidente/#:%7E:text=Si%20tienes%20la%20posibilidad%20de,una%20zona%20segura%2C%20puedes%20salir." rel="noreferrer">link in spanish, highway consortium</a>.</p>


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<p>In case of a severe accident with injuries, there is an official behaviour protocol from the Spanish Traffic Department (<a href="https://www.dgt.es/muevete-con-seguridad/que-hacer-ante-un-accidente-de-trafico/#:%7E:text=Estaciona%20tu%20veh%C3%ADculo%20en%20un,veh%C3%ADculo%20col%C3%B3quese%20el%20chaleco%20reflectante." rel="noreferrer">DGT guide on accidents, in spanish</a>). It is supposed than, in this case, the passengers of the affected vehicles are injured and so, they can't (and they shouldn't try to) move their vehicles away. The DGT advises you to not move the vehicles nor the victims either, unless there's a clear danger (if the vehicles are in flames you should try to drag the victims out of them, for example). The manual explicitly mention &quot;danger to the victims, or to the traffic&quot; - if a vehicle is crossed in the middle of the road in a low-visibility spot another vehicle could crash against it, so it is advisable to move it.</p>


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<p><strong>TL;DR</strong> In general in Spain there's no obligation to move the vehicles away, nor to keep them in place. Common sense is expected to be applied.</p>


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Answer 4: <p><a href="https://www.mvr.bg/opp/%D0%BF%D0%BE%D0%BB%D0%B5%D0%B7%D0%BD%D0%B0-%D0%B8%D0%BD%D1%84%D0%BE%D1%80%D0%BC%D0%B0%D1%86%D0%B8%D1%8F1/%D0%BF%D1%80%D0%B0%D0%B2%D0%B8%D0%BB%D0%B0-%D0%B8-%D0%BF%D1%80%D0%B5%D0%BF%D0%BE%D1%80%D1%8A%D0%BA%D0%B8/%D0%BF%D0%BE%D0%B2%D0%B5%D0%B4%D0%B5%D0%BD%D0%B8%D0%B5-%D0%BF%D1%80%D0%B8-%D0%BF%D1%8A%D1%82%D0%BD%D0%BE%D1%82%D1%80%D0%B0%D0%BD%D1%81%D0%BF%D0%BE%D1%80%D1%82%D0%BD%D0%BE-%D0%BF%D1%80%D0%BE%D0%B8%D0%B7%D1%88%D0%B5%D1%81%D1%82%D0%B2%D0%B8%D0%B5" rel="nofollow noreferrer">In Bulgaria</a> you can arrange without police if all of the following apply:</p>
<ul>
<li>only 2 vehicles part of the incident</li>
<li>only material damages</li>
<li>both drivers agree on the incident details and fill-in a specific protocol</li>
</ul>
<p>You call police just to get a reference number.</p>
<p>Later this protocol is brought to the insurance agency of the &quot;guilty&quot; driver.</p>


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</ul>
<p>You call police just to get a reference number.</p>
<p>Later this protocol is brought to the insurance agency of the &quot;guilty&quot; driver.</p>
<p>If the above conditions are not met, then you stay in place waiting for the police. Although there is text about clearing the road but preserving traces which is not very clear how to apply.</p>


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Answer 5: <p>Actually,</p>
<p>in Czech Republic, &quot;Zákon o silničním provozu&quot; (Road-traffic law) in section &quot;Dopravní nehoda, § 47&quot; (Traffic accident) says</p>
<p>[CZ]</p>
<blockquote>
(3) Účastníci dopravní nehody jsou povinni
<p>...</p>
<p>c) označit místo dopravní nehody,</p>
<p>d) umožnit obnovení provozu na pozemních komunikacích, zejména provozu vozidel hromadné dopravy osob,</p>
<p>...</p>
</blockquote>
<p>[EN]</p>
<blockquote>
(3) Participants in a traffic accident are obliged to
<p>...</p>
<p>c) mark the place of the accident</p>
<p>d) allow the restoration of traffic on roads, especially the traffic of mass-transport vehicles</p>
<p>...</p>
</blockquote>


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<p>...</p>
<p>c) mark the place of the accident</p>
<p>d) allow the restoration of traffic on roads, especially the traffic of mass-transport vehicles</p>
<p>...</p>
</blockquote>
<p>( see <a href="https://www.kurzy.cz/zakony/361-2000-zakon-o-silnicnim-provozu/paragraf-47/" rel="nofollow noreferrer">https://www.kurzy.cz/zakony/361-2000-zakon-o-silnicnim-provozu/paragraf-47/</a> or <a href="https://www.policie.cz/clanek/silnicni-provoz-a-dopravni-nehoda.aspx" rel="nofollow noreferrer">https://www.policie.cz/clanek/silnicni-provoz-a-dopravni-nehoda.aspx</a> )</p>


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Answer 6: <p>In <a href="/questions/tagged/italy" class="post-tag" title="show questions tagged &#39;italy&#39;" aria-label="show questions tagged &#39;italy&#39;" rel="tag" aria-labelledby="tag-italy-tooltip-container">italy</a>, behavior in the event of an accident is regulated by Article 189 of the Highway Code. People involved in a road accident have the following duties, in order of importance:</p>
<ol>
<li>Safeguard traffic safety (i.e., they must avoid endangering other motorists).</li>
<li>Do not alter traces and other evidence useful for determining responsibility for the accident.</li>
<li>If even one of the people involved is injured, even slightly, it is necessary to call the Traffic Police (and, if necessary, other emergency services). The agents will take care of restoring traffic as soon as possible, after having carried out the necessary surveys.</li>


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<li>If there has only been material damage, it is necessary to avoid obstructing traffic (note: this is different from securing the road; other motorists can remain stuck in traffic for hours while being completely safe).</li>
</ol>
<p><a href="https://www.aci.it/i-servizi/normative/codice-della-strada/titolo-v-norme-di-comportamento/art-189-comportamento-in-caso-di-incidente.html" rel="nofollow noreferrer">Source (in Italian) here.</a></p>


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Answer 7: <p>Yes. In the UK it is recommended (even mandated?). Our <a href="https://www.gov.uk/guidance/the-highway-code/breakdowns-and-incidents-274-to-287" rel="nofollow noreferrer">highway code</a> says</p>
<blockquote>
<p><strong>Rule 286</strong></p>
<p>If you are involved in a collision which causes damage or injury to any other person, vehicle, animal or property, you MUST stop. If possible, stop in a place of relative safety (see Rule 275)</p>
<p>... give your own and the vehicle owner’s name and address, and the registration number of the vehicle, to anyone having reasonable grounds for requiring them</p>
<p>if you do not give your name and address at the time of the collision, report it to the police as soon as reasonably practicable, and in any case within 24 hours.</p>
</blockquote>
<blockquote>
<p><strong>Rule 275</strong></p>


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</blockquote>
<blockquote>
<p><strong>Rule 275</strong></p>
<p>If you need to stop your vehicle in the event of a breakdown or incident, try to stop in a place of relative safety. A place of relative safety is where you, your passengers and your vehicle are less likely to be at risk from moving traffic.</p>
<p>The safest place to stop is a location which is designed for parking. On motorways and other high-speed roads, the safest place to stop is a service area. Other places of relative safety include lay-bys, emergency areas (see Rule 270), hard shoulders (see Rule 269) Be aware that hard shoulders provide less protection than other places of relative safety because they are so close to high-speed traffic.</p>
</blockquote>


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Answer 8: <p><a href="/questions/tagged/tennessee" class="post-tag" title="show questions tagged &#39;tennessee&#39;" aria-label="show questions tagged &#39;tennessee&#39;" rel="tag" aria-labelledby="tag-tennessee-tooltip-container">tennessee</a></p>
<p>The law in the U.S. state of Tennessee says that drivers 'should' do this on divided, controlled-access highways (including, but not limited to Interstate highways) and removes liability for doing so.</p>
<p><a href="https://law.justia.com/codes/tennessee/2010/title-55/chapter-10/part-1/55-10-117" rel="nofollow noreferrer">TCA 55-10-117</a></p>
<blockquote>
<p>(a)  Notwithstanding any law to the contrary, a motor vehicle involved in a traffic accident and the driver of the motor vehicle shall be subject to this section.</p>
<p>(b)  This section shall apply to any motor vehicle traffic accident that occurs on a divided, controlled access highway or interstate highway of this state.</p>


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<p>(c)  <strong>When a motor vehicle traffic accident occurs with no apparent serious personal injury or death, the driver of each motor vehicle involved in the traffic accident, or any other occupant of any such motor vehicle who possesses a valid driver license, should remove the vehicle from the immediate confines of the roadway into a safe refuge on the shoulder, emergency lane, or median, or to a place otherwise removed from the roadway whenever, in the judgment of the driver, the moving of a vehicle may be done safely and the vehicle is capable of being normally and safely driven, does not require towing, and may be operated under its own power in its customary manner without further damage or hazard to itself, to the traffic elements, or to the roadway. The driver of the motor vehicle may request any person who possesses a valid driver license to remove the motor vehicle as provided in this section, and that person may comply with the request.</strong></p>


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<p>(d)  The driver or any other person who has removed a motor vehicle from the main traveled way of the road as provided in subsection (c) before the arrival of a law enforcement officer shall not be considered liable or at fault regarding the cause of the accident solely by reason of moving the vehicle pursuant to this section.</p>
<p>(e)  This section does not abrogate or affect a driver's duty to file any written report that may be required by law, but compliance with the requirements of this section does not allow a driver to be prosecuted for the failure to stop and immediately report a traffic accident.</p>
<p>(f)  This section does not abrogate or affect a driver's duty to stop and give information in accordance with law, nor does it relieve a law enforcement officer of the officer's duty to render a report in accordance with law.</p>
</blockquote>


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Question Title: Toronto Public Library waives all charges for the disabled. What laws require (1) public bodies, (2) corporations to do the same?


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Question Body: <blockquote>
<p><a href="https://www.torontopubliclibrary.ca/accessibility/persons-with-disabilities-status" rel="nofollow noreferrer">Persons with Disabilities Status are exempt from:</a></p>
<ul>
<li>fines for holds not picked up</li>
<li>being referred to a collection agency for long overdue items or charges</li>
</ul>
</blockquote>
<h4>What <em>Canadian</em> laws require &lt;1&gt; public bodies, &lt;2&gt; private companies to exempt the disabled from charges + fees + fines — just like the Toronto Public Library does?</h4>
<p>Examples of public bodies are  — public hospitals that levy (parking) fees,<br />
— government ministries that levy health card + driver licence fees.</p>
<p>Examples of private corporations are — banks, credit unions that charge overdraft + NSF fees.</p>
<p>Above link adduces the <em>Accessibility for Ontarians with Disabilities Act,</em> 2005 (<em>AODA</em>). I know that</p>
<blockquote>


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<p>Above link adduces the <em>Accessibility for Ontarians with Disabilities Act,</em> 2005 (<em>AODA</em>). I know that</p>
<blockquote>
<p><a href="https://www.ohrc.on.ca/en/policy-ableism-and-discrimination-based-disability/8-duty-accommodate" rel="nofollow noreferrer">Under the [Ontario <em>Human Rights] Code</em>, employers and unions, housing providers and service providers have a legal duty to accommodate the needs of people with disabilities who are adversely affected by a requirement, rule or standard.</a></p>
</blockquote>
<p>But this <em>AODA</em> and <em>Human Rights Code</em> don't answer my question, because both don't outright waive fees for the disabled.</p>


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Answer 1: <p>The <a href="https://www.ontario.ca/laws/statute/05a11" rel="nofollow noreferrer">Accessibility for Ontarians with Disabilities Act</a>, 2005, until the Supreme Court or the pertinent regulatory agencies deem that this accommodation is not required under the law. The statute requires that everybody establish accessibility standards so that no person with a disability is prevented from fully participating in all aspects of society because of his or her disability, therefore they must set out to removal barriers w.r.t. services etc. Fees are not specifically enumerated under the law, instead, the law is to be understood to refer to &quot;anything that constitutes a barrier&quot;. <a href="https://docs.ontario.ca/documents/4845/guidelines-to-iasr-english.pdf" rel="nofollow noreferrer">Here</a> is a larger government document that say in part what that means. §19 specifically requires public libraries to establish standards, and Toronto seems to have complied with that


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noreferrer">Here</a> is a larger government document that say in part what that means. §19 specifically requires public libraries to establish standards, and Toronto seems to have complied with that requirement.</p>


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<p>In other words, the law allows the library to establish standards which it deems to be necessary in order to comply with the act. Nothing in current Canadian directly requires exemption from fees for other entities, but the courts could determine that an exemption is implicit in the requirement to remove barriers.</p>


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Answer 2: <blockquote>
<p>What Canadian laws require &lt;1&gt; public bodies, &lt;2&gt; private companies to exempt the disabled from charges + fees + fines — just like the Toronto Public Library does?</p>
</blockquote>
<p>None. And Toronto Public Library does not do that. While disabled persons do not pay fines for holds not picked up and the library chooses to not refer to the matter to collection agencies, they are still expected to pay the library if they lost borrowed books and can be charged for using printing services for example. Disabled people still need to pay a restaurant to get food, pay a gas station to fuel the car (even if it is required for mobility), tuition fees still apply even in public universities. And of course income tax, GST/HST/QST/PST and property taxes still need to be paid.</p>
<blockquote>
<p>But this AODA and Human Rights Code don't answer my question, because both don't outright waive fees for the disabled.</p>
</blockquote>


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<blockquote>
<p>But this AODA and Human Rights Code don't answer my question, because both don't outright waive fees for the disabled.</p>
</blockquote>
<p>No general law waives fees or charges for people with disabilities.</p>
<p>However, as you have found, under human rights legislation, there is a requirement for goods and service providers to provide reasonable accommodation to individuals with disabilities to (attempt to) ensure equal access and treatment. For public governmental bodies, such obligation also results from section 15 of the Canadian Charter of Rights and Freedoms.</p>
<p>But it does not explicitly mandate specific actions such as waiving fees. Whether a specific accommodation is required or reasonable in the context will depend on the circumstances.  A library which charges late fees but have a longer grace period for disabled persons would likely be still within the legal parameters.</p>


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<p>In any case, organizations may choose to voluntarily waive fees or charges for individuals with disabilities as part of their policies or initiatives to promote inclusivity and accessibility, even if not necessarily mandated by law.</p>
<p>To be qualified as reasonable accommodation required under the law, it must be connected to the disability (or another protected ground), improve equality of treatment and access, and does not pose an undue burden to the service provider. A library may be legally required to accommodate the fact that some persons with disabilities are unable to pick up or return books on time, but it is not required to exempt disabled people from charges for losing library books since that is not connected to a disability. A accommodation must also be reasonable, the library could be required to have a collection  of books and media in alternative format, but is unlikely to be required to provide a personal assistant to read a book to a blind person.</p>


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Question Title: Stamp duty liability when adding partner to mortgage? (UK)

Question Body: <p>My friend and her partner have recently moved in together (England). Her partner owns a property that is now being let out, and she has added him to her mortgage.</p>
<p>They were under the impression he would be liable to pay Stamp Duty as he now owns a second property, however the solicitor has told them he doesn't need to pay it.</p>
<p>Is this classed differently as he has been added to the mortgage and not &quot;purchased&quot; a property together?</p>


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Answer 1: <p>Web search for &quot;stamp duty&quot; ownership change.</p>
<p>First result:</p>
<blockquote>
<p><a href="https://www.gov.uk/guidance/sdlt-transferring-ownership-of-land-or-property#if-you-marry-enter-into-a-civil-partnership-or-set-up-home-together" rel="nofollow noreferrer">Stamp Duty Land Tax: transfer ownership of land or property</a></p>
<p>You may need to pay <a href="https://www.gov.uk/stamp-duty-land-tax" rel="nofollow noreferrer">Stamp Duty Land Tax</a> when all or part of an interest in land or property is transferred to you and you give anything of monetary value in exchange.</p>
<p>Anything of monetary value that you give in exchange is called the ‘chargeable consideration’.</p>
<p>The rules you use to work out how much Stamp Duty Land Tax you pay depend on the circumstances of the property transfer. ...</p>
</blockquote>
<p>If the partner takes liability for the mortgage, the partner will have 'chargeable consideration' for their share of the property.</p>


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</blockquote>
<p>If the partner takes liability for the mortgage, the partner will have 'chargeable consideration' for their share of the property.</p>
<p>For example (summarising from that page) the partner takes on 50% of a £600,000 mortgage. So £300,000 is the 'chargeable consideration' for the share of the property. Current SDLT threshold for residential property is £250,000. Partner pays 0% x £250,000 + 5% x £50,000 = £2,500.</p>
<p>If on the other hand the partner's chargeable consideration is less than the SDLT threshold there is no tax to pay but &quot;you must still tell HMRC about the transaction on an Stamp Duty Land Tax return&quot;.</p>


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Question Title: Does Trump have the right to waive a jury trial and request a bench trial in the classified documents case?

Question Body: <p>In the Federal criminal case against Donald Trump in the Mar-a-Lago classified documents case, does former president Trump have the ability to waive a jury trial and request a bench trial?</p>
<p>Given Aileen Cannon's history in cases involving the defendant, and potential bias towards the person who appointed her would this be a good legal strategy on his part?</p>


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Answer 1: <p>While the right to a jury trial is waiveable, in order to have a bench trial in a federal district court, <a href="https://www.law.cornell.edu/wex/right_to_jury_trial" rel="noreferrer">the court and prosecutor generally must agree</a>.</p>
<blockquote>
<p>before any waiver can become effective, the consent of government counsel and the sanction of the court must be had</p>
<p>(<em>Patton v. United States</em>, <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep281/usrep281276/usrep281276.pdf#page=37" rel="noreferrer">281 U.S. 276, 312</a> (1930))</p>
</blockquote>
<p>This is codified in Rule 23(a) of the <a href="https://www.uscourts.gov/sites/default/files/rules-of-criminal-procedure.pdf" rel="noreferrer">Federal Rules of Criminal Procedure</a>.</p>


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<p>However, just because the waiver <em>can</em> be (and generally <em>is</em>) conditioned on governmental consent, some courts have nonetheless allowed the defendant's request for a bench trial despite the lack of consent from the government. See e.g. <em>United States v. Panteleakis</em>, <a href="https://casetext.com/case/united-states-v-panteleakis" rel="noreferrer">422 F. Supp. 247</a> (D.R.I. 1976) (a trial against multiple defendants that would require considering &quot;approximately 1,000 exhibits,&quot; &quot;over a three month period,&quot; with some evidence admissible against some defendants while <em>in</em>admissible against others; and the government did not try to &quot;rebut the inference that substantial prejudice [in a trial by jury] is practically impossible to avoid under these circumstances&quot;).</p>


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<p>This possibility appears to have been left open by the Supreme Court in <em>Singer v. United States</em>, <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep380/usrep380024/usrep380024.pdf" rel="noreferrer">380 U.S. 24</a> (1964):</p>
<blockquote>
<p>We need not determine in this case whether there might be some circumstances where a defendant's reasons for wanting to be tried by a judge alone are so compelling that the Government's insistence on trial by jury would result in the denial to a defendant of an impartial trial.</p>
</blockquote>


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Question Title: what is compensation under the Homes (Fitness for Human Habitation) Act 2018 considered?

Question Body: <p>Is it a case of refunding rent that has been paid or a portion thereof, or is it rather damages and a case of the amount of liability for damages simply being calculated as a function of the amount of monthly rent due under the tenancy multiplied by the relevant liability period?</p>


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Answer 1: <p>The Government's <a href="https://www.gov.uk/government/publications/homes-fitness-for-human-habitation-act-2018/guide-for-tenants-homes-fitness-for-human-habitation-act-2018" rel="nofollow noreferrer">guide to the Act for tenants</a> contains this explanation:</p>
<blockquote>
<h3>What will happen to my landlord if I win in court?</h3>
<p>If the court decides that your landlord has not provided you with a home that is fit for habitation, then they can do one or both of these two things:</p>
<ul>
<li>they can make your landlord do the necessary works to improve your home</li>
<li>they can make your landlord pay you compensation</li>
</ul>
<p>The court will decide how much the compensation should be by looking at how long the house or flat was unfit, how bad it was and how this harmed you.</p>
</blockquote>


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</ul>
<p>The court will decide how much the compensation should be by looking at how long the house or flat was unfit, how bad it was and how this harmed you.</p>
</blockquote>
<p>So presumably there is a calculation done when working out how much those damages may be, which could include any of the things mentioned in the question - and this may be in addition to requiring the landlord to actually fix the problems with the property.</p>


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Question Title: Who has copyright when photographs are retouched or edited?

Question Body: <p>Client B took photos and hired Contractor A to retouch or edit them.</p>
<p>Client B retains the copyright for the originals, but who owns the copyright for the retouched/edited photos?</p>


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Answer 1: <h2>Copyright does not grant copyright willy nilly</h2>
<p>B made a photo. B owns the copyright in the photo - Including the right to authorize derivates. Nobody but B may allow (or allow to allow) those as long as B owns the copyright.</p>
<p>A makes changes to the photo. A can only get copyright <strong>in his changes</strong>. If the changes amount to copyrightability is a different question, but if there is copyright in the changes, A owns the copyright in the changes.</p>
<p>While A can own the copyright in the changes, A being contracted to do the work <em>can</em>, but doesn't have to, put the work into the area of <em>work for hire</em>. That requires the contract for the edit to include language that says that the editing is a work for hire. If it is a work for hire, the copyright is with B wholly and A has no rights. If such language is missing, the copyright of an ordered edit is - if it exists - with A.</p>
<h2>Random person modifies the picture?</h2>


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<h2>Random person modifies the picture?</h2>
<p>However, in the US, A might have less than nothing but instead a count of copyright infringement if he is not a contractor but just a random person editing the picture: if you had no right to make a derivative work, you can not have copyright in the changes you made. See <a href="https://en.wikipedia.org/wiki/Anderson_v._Stallone" rel="nofollow noreferrer">Anderson v. Stallone, 11 U.S.P.Q.2d 1161 (C.D. Cal. 1989)</a>:</p>
<blockquote>
<p>The Court finds that Anderson's treatment is not entitled to copyright protection. This finding is based upon the following determinations that will be delineated further below:</p>
<p>(a) the Rocky characters developed in Rocky I,  [*16]  II and III constitute expression protected by copyright independent from the story in which they are contained;</p>


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<p>(a) the Rocky characters developed in Rocky I,  [*16]  II and III constitute expression protected by copyright independent from the story in which they are contained;</p>
<p><strong>(b) Anderson's treatment appropriated these characters and created a derivative work based upon these characters without Stallone's permission in violation of <a href="https://www.law.cornell.edu/uscode/text/17/106" rel="nofollow noreferrer">[17 USC] Section 106(2);</a></strong></p>
<p>(c) no part of Anderson's treatment is entitled to copyright protection as his work is pervaded by the characters of the first three Rocky movies that are afforded copyright protection.</p>
</blockquote>


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Answer 2: <h2>Contractor A has copyright in the changes</h2>
<p>(Assuming they are sufficient to attract copyright protection)</p>
<blockquote>
<p>17 U.S.C. § 103(b) provides:</p>
<p>The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.</p>
</blockquote>


Tags: copyright, california, photography, derivative-work


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Question Title: Small claims court when the plaintif lives overseas (USA/Idaho)

Question Body: <p>I live in Europe and my property manager in Idaho (USA) is not sending me the rents (which were paid by the renter).</p>
<p>I was thinking about suing her in small claims court, but it looks like I have to appear in court. Which is hard living 10000km away!</p>
<p>Is the physical court apearance a must, could it be virtual/teleconf?</p>
<p>Thanks</p>


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Answer 1: <p>Realistically, if your lawsuit is with the person who has been acting as your agent in the United States, small claims court is probably not the right way to go.</p>
<p>If you are owed less than $10,000 (possibly including attorney fees), you probably need to hire a lawyer to pursue your case in the non-Small Claims Magistrate Division of the District Court. Lawyers are allowed in this forum, unlike the Small Claims division which is oriented towards <em>pro se</em> parties (i.e. people without lawyers). Small claims can consider only claims up to $4,000 against defendants in the county where the lawsuit is brought, and attorneys are now allowed in small claims court. (<a href="https://isc.idaho.gov/overview.pdf" rel="nofollow noreferrer">Source</a>)</p>


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<p>Even if you can be in the Small Claims division of Magistrate's Court, the enforcement of a judgment if you win requires technical court documents which are essentially the same as those for collecting a judgment from any other court.</p>
<p>Even when Zoom participation is allowed in a court, usually the main trial can't be conducted entirely remotely so someone needs to be in the courtroom representing you for the trial. (The only U.S. state where there is an actual right to participate in a civil court trial remotely is Alaska.)</p>
<p>A lawyer will also often be more effective at negotiating a settlement, with or without a mediator, which would avoid the need for a trial at all, and mediations these days since COVID are routinely conducted remotely. Mediation is often required before a case goes to trial.</p>


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<p>If you are owed more than $10,000, you probably need to hire a lawyer to pursue your case in District Court (outside the Magistrate's Division). (<a href="https://isc.idaho.gov/overview.pdf" rel="nofollow noreferrer">Source</a>)</p>
<p>It is also possible in District Court (not the Magistrate's division) in some cases to resolve the case in &quot;motion practice&quot; based upon submitted papers, rather than in a hearing. This is not really a possibility in the Small Claims Court or the Magistrate's Division.</p>
<p>Also, to be perfectly honest, the kind of case you describe is probably beyond the capacity of even a college educated person without legal training to do right and not screw up.</p>


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<p>Also, to be perfectly honest, the kind of case you describe is probably beyond the capacity of even a college educated person without legal training to do right and not screw up.</p>
<p>Handling issues like service of process, the rules of evidence, and the collection of a judgment are all highly technical matters, and there may be legal claims related to possible misappropriation of funds that you might not know how to raise. Depending upon the language of your contract, the other side may even be able to demand a jury trial which is far beyond the capacity of an unrepresented person to manage, even if they are only doing it to force you to hire a lawyer. It could also be necessary to use the &quot;discovery&quot; process or subpoenas to obtain records needed to prove the case.</p>
<p>For what it is worth, Idaho lawyers are less expensive than lawyers in much of the U.S., and Idaho is not known for having overcrowded courts the greatly delayed schedules, however.</p>


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Answer 2: <p>There are special rules for small claims courts, so the first thing one would do is check the rules for your jurisdiction. If you were interested in Idaho, you would look at the rules set by the <a href="https://isc.idaho.gov/irsca" rel="nofollow noreferrer">Idaho courts</a>. Rule 2 says that &quot;Any individual, partnership, corporation or association may file a small claim as a plaintiff in the action. An employee of the plaintiff may sign the pleadings&quot;, so you can file the claim, and an employee can sign the pleading. Rule 4(d) says &quot;If the plaintiff or employee does not appear at the time set for any hearing on the matter, the court may dismiss the action with or without prejudice&quot;, which is to say that you or your employee must appear. Rule 8 says that  &quot;Any party may appear in person or by an authorized non-attorney employee&quot;, and &quot;No attorney may appear with or for a party in any hearing&quot;. As you can see, you need an employee


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&quot;Any party may appear in person or by an authorized non-attorney employee&quot;, and &quot;No attorney may appear with or for a party in any hearing&quot;. As you can see, you need an employee who is in Idaho to act on your behalf. However, rule 11 says &quot;The court may allow the parties and any witnesses to appear telephonically&quot; (may, not shall). Idaho courts do somewhat have the capacity for Zoom procedings, and <a href="https://www.canyoncounty.id.gov/elected-officials/clerk/court-operations/zoom-hearing/" rel="nofollow noreferrer">here</a> is one county's Zoom session page. This may not be an option for all counties.</p>


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Question Title: Are US federal guidelines and statistics available for sentencing for &quot;possession of a gun by an addict&quot;?


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Question Body: <p>After 04:44 in CNN's June 22, 2023 <a href="https://youtu.be/aDoNP8OV5LY?t=284" rel="nofollow noreferrer">Was Hunter Biden given a 'sweetheart deal'? Legal expert weighs in</a>, the senior legal analyst for CNN, and former assistant United States Attorney <a href="https://en.wikipedia.org/wiki/Elie_Honig" rel="nofollow noreferrer">Elie Honig</a> says:</p>
<blockquote>


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<blockquote>
<p><strong>If we look at the gun charge here, it is exceedingly rare for somebody to be charged with a federal gun crime and given pretrial diversion</strong>, as Hunter Biden has been given, meaning he doesn't even have to plead guilty as long as he behaves himself, the charge will go away. On the other hand, the vast majority of federal gun crimes involve somebody who either use the gun in some sort of violent crime or somebody who is a prior convicted felon. <strong>So it's rare to even see anyone prosecuted at all under the law that Hunter Biden was prosecuted for, which is possession of a gun by an addict.</strong></p>
</blockquote>
<p>Rare or not, are US federal guidelines and statistics available for sentencing for &quot;possession of a gun by an addict&quot;?</p>
<p>That would seem to be germane to a discussion of the level of &quot;sweetheartness&quot; associated with this particularly notable and visible case.</p>


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Answer 1: <p>I can at least look at the <a href="https://www.ussc.gov/guidelines/2018-guidelines-manual-annotated" rel="nofollow noreferrer">federal sentencing guidelines</a>. From the description of the offense I'm guessing he's charged under <a href="https://www.law.cornell.edu/uscode/text/18/922" rel="nofollow noreferrer">18 USC §922</a>(g)(3). In the guidelines, this offense would appear to fall under &quot;§2K2.1. Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition&quot;. The notes here say:</p>
<blockquote>
<p>For purposes of subsections (a)(4)(B) and (a)(6), &quot;prohibited person&quot; means any person described in 18 U.S.C. § 922(g) or § 922(n).</p>
</blockquote>
<p>I therefore believe he meets the criteria of §2K2.1(a)(6) (&quot;if the defendant was a prohibited person at the time the defendant committed the instant offense&quot;), which would mean the base offense level was 14.</p>


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<p>Then the big question is whether he falls under §2K2.1(b)(2):</p>
<blockquote>
<p>If the defendant, other than a defendant subject to subsection (a)(1), (a)(2), (a)(3), (a)(4), or (a)(5), possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition, decrease the offense level determined above to level 6.</p>
</blockquote>
<p>I doubt the handgun was for sporting purposes or for collection; it was likely for self-defense. But I also don't think he is accused of unlawfully discharging or using it. I'm not sure exactly how this would be interpreted.</p>
<p>If the offense level is 6, a sentence of probation would normally fall within the guidelines. If it was 14 (or even 12 after a possible 2-level decrease for taking responsibility), a sentence of probation would <em>not</em> be within the guidelines.</p>


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<p>This is, however, a pretrial diversion, not a conviction. I'm not sure how much the ordinary guidelines apply to that, or whether that's normally done for this sort of thing. It's also possible that I'm missing some factor which would change the offense level more.</p>


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Answer 2: <blockquote>
<p>Rare or not, are US federal guidelines and statistics available for
sentencing for &quot;possession of a gun by an addict&quot;?</p>
</blockquote>
<p>As the <a href="https://law.stackexchange.com/a/93355/9517">solid answer by DM</a> notes, U.S. federal sentencing guidelines are completely publicly available online.</p>


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<p>As the <a href="https://law.stackexchange.com/a/93355/9517">solid answer by DM</a> notes, U.S. federal sentencing guidelines are completely publicly available online.</p>
<p>There are no statistics, that are publicly available, at that level of granularity without personally combing through PACER for every relevant case and analyzing those records case by case yourself. You would be hard pressed to get anything more specific than &quot;federal firearms offenses&quot; (which make up about <a href="https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/quarterly-sentencing-updates/USSC_Quarter_Report_1st_FY22.pdf" rel="nofollow noreferrer">14.7% of federal criminal cases</a>). A review of that specificity would typically be undertaken by a professor, a research assistant and a student intern or two, as one of their major research projects for a full academic semester. It would involved hundreds of hours of quite skilled work.</p>


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<p>There are statistics about the extent to which sentences actually imposed by judges are above, within, or below the guideline sentences, although again, not at this level of granularity. But, below guideline sentences are quite common for most offenses, while above guideline sentences are quite uncommon for most offenses. This is, in part, because one of the relevant statutes calls for a judge to impose the lowest sufficient sentence for an offense, and in part, because there are more circumstances to justify leniency than there are to justify an above guidelines sentence (as measured by the frequency with which such factors are present in a case).</p>
<p>Overall, about 1-2% of federal criminal sentences are above the guideline range, about 40% are within the guideline range, and the remaining 58-59% of federal criminal sentences are below the guideline range.</p>


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<p>Under the particular sentencing guideline pointed out by DM (i.e. §2K2.1), there were 2,171 sentences imposed in the 2022 federal fiscal year, of which 1,133 (52%) sentences were within the guidelines, 19 (1%) were above the guidelines, while sentences below the guideline range were imposed in the balance (47%) of sentences imposed. (<a href="https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/quarterly-sentencing-updates/USSC_Quarter_Report_1st_FY22.pdf" rel="nofollow noreferrer">Source</a>)</p>
<p>The slightly higher rate of within guidelines sentences for this guideline mostly reflects the fact that one of the applicable sub-offenses covered by it (possession by a convicted felon) has a mandatory minimum sentence by statute with only a few narrow relief valve options.</p>


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<p>Finally, keep in mind that the sentencing guidelines are tools by which judges are assisted in deciding on a sentence following a sentencing hearing, following a conviction. But, a pre-trial diversion is outside this process and outside the jurisdiction of the U.S. Sentencing Commission. It is a function of prosecutorial exercises of discretion, regulated only lightly by U.S. Justice Department internal policies, and not something in which the judge has any meaningful discretionary role. Sentencing statistics only show you the &quot;shadow of going to trial&quot; or plea bargaining that provides a context of pre-trial diversion negotiations and discussions. Some discussion of pre-trial diversions can be found in <a href="https://oig.justice.gov/news/doj-oig-releases-report-pretrial-diversion-and-diversion-based-court-programs" rel="nofollow noreferrer">a 2016 report on the subject</a>. Pre-trial diversions are used with any significant frequency in only a minority of federal


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rel="nofollow noreferrer">a 2016 report on the subject</a>. Pre-trial diversions are used with any significant frequency in only a minority of federal judicial districts.</p>


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<p>All of this said, however, the nuances of how federal prosecutors handle particular kinds of cases and the factors that are considered by them and influence their decisions are best answered by people with a wealth of experience working in the federal criminal justice system as a lawyer. Statistics alone don't tell the whole story.</p>
<p>The main skill set that lawyers who practice criminal law gain from on the job experience, which is really what you pay them for, is an ability to evaluate what sentences or alternative sentencing options are viable in the facts of a particular case. This skill is used in every single case such a lawyer handles. Other skills, like familiarity with the rules of evidence, only come into play in one case in fifty or so in the federal criminal justice system.</p>


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Question Title: can i write in my portfolio about a critical security bug in my last job?

Question Body: <p>I want to write about how i found a critical security bug when i was working at a company. Am going to stop working there in about a month and was just updating my portfolio with the things i did there over past three years.</p>
<p>The thing is for me this was a very big achievement and i want to brag about it, but my boss told me i have to take it down immediately or i will get in trouble. It was no details about any system or programing language and just a paragraph about it on my portfolio page.</p>
<p>What part of my contract or any contract can give employer right to do so?
This just dont sound right that i cant tell other employer how good i am</p>


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Answer 1: <blockquote>
<p>The employee must, during and <strong>after employment</strong>, without limitation in time, observe a duty of confidentiality regarding [...]
the Company's internal affairs such as business plans, profitability, pricing, employees, methods, processes, routines, <strong>code</strong> and the like as well as <strong>other information that the Company typically wants to keep secret</strong></p>
</blockquote>
<p>The pure information that the company <em>had</em> at some time a security problem with their product is internal knowledge you only gained through working there. By what is written here, you are indeed prohibited from speaking about it.</p>
<p>If it were public knowledge, you could point to a press release and say &quot;I did that, that was me fixing the problem&quot;. That would work. Because it doesn't share anything that isn't public anyway. But you cannot share things the company wants to keep secret.</p>


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<p>Finding out whether that contract is legally enforcable in your country and juristiction is the job of a real lawyer, but just as written, they are right. You signed a contract to not do that, not talk about it an certainly not publish it on the internet. So you should not do that, unless a good lawyer you trust tells you otherwise.</p>
<hr />
<p>That said, &quot;I found a security flaw&quot; is about as impressive as &quot;I found a dollar on the floor&quot;. Maybe you can talk about your knowledge to <em>prevent</em> something like it happening. That says nothing about whether or not it happened in your old company, and for me as an employer it is much more valuable to have you on board with structured knowledge you can apply, than with your memories of being lucky once.</p>


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Question Title: &#39;Homicide by words&#39; hypothetical - First Amendment and jurisdictional questions


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Question Body: <p>This hypothetical is based on the ongoing prosecution of Mandie Reusch.</p>
<p>Mr Y lives in Nevada, and Ms X lives in Wyoming. Ms X also suffers from depression and PTSD. They still speak to each other, and they have joint custody of their children.</p>
<p>Mr Y is the ex-partner of Ms X. Over the last few months since their breakup, which was caused by Mr Y's infidelity, Mr Y continues to have many arguments with his ex. Consequently, Mr Y sends Ms X messages <a href="https://www.dailymail.co.uk/news/article-12195333/The-depraved-texts-girlfriend-Mandie-Reusch-drove-Army-veteran-suicide.html" rel="nofollow noreferrer">of similar nature to those of Mandie Reusch's</a> for a couple of weeks.</p>
<p>One day, Ms X decides to fly to California. On the same day, Mr Y is flying back home from New Jersey. They both fly on private jets. The previous night, they had an extremely heated and personal altercation on the phone.</p>


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<p>Whilst Mr Y is in the air on his flight back, he once again sends many of these messages to Ms X, who is, at this point, still in Nevada, driving to the airfield. But she sees these messages, and this is around the point where her suicidal thoughts begin to be more active than passive.</p>
<p>During her flight, Ms X receives more of those extremely mean-spirited messages from Mr Y (in which he uses secrets that she trusted him with against her, explains how he told others about her secrets and so on). Mr Y sends these messages while his flight is still in New Jersey airspace. After everything that's happened, Ms X considers it too much to bear, and she takes her own life during her flight. When she does this, she is exactly over the border between Wyoming and Nebraska.</p>
<p>In none of the messages does Mr Y explicitly tell or direct Ms X to end her own life.</p>
<p>I have two questions:</p>
<ol>


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<p>In none of the messages does Mr Y explicitly tell or direct Ms X to end her own life.</p>
<p>I have two questions:</p>
<ol>
<li><p>With these facts, assuming Mr Y was charged with involuntary manslaughter (like in MA v. Carter) or aiding a suicide, based solely or almost solely on the messages, under which jurisdiction would he be charged?</p>
</li>
<li><p>Is Mr Y's speech in this case protected by the First Amendment?</p>
</li>
</ol>
<p>Thank you for your answers.</p>


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Answer 1: <blockquote>
<ol>
<li>With these facts, assuming Mr Y was charged with involuntary manslaughter (like in MA v. Carter) or aiding a suicide, based solely
or almost solely on the messages, under which jurisdiction would he be
charged?</li>
</ol>
</blockquote>
<p><em>Applicable Law</em></p>
<p>States have jurisdiction both over crimes that are committed in the state and over crimes that cause harm in a state.</p>
<p>The classic law school example is a murder committed by shooting someone with a gun across a state line. Both the state where the gun is fired and the state where the person is shot have jurisdiction over the crime.</p>
<p>Jurisdiction generally requires a purposeful act directed at someone or something in the state where the harm is suffered in most cases. But that isn't a hard and fast rule of constitutional law in other contexts, and there are few cases on point. I would consider this to be an open question.</p>


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<p>Certainly, however, the mere fact that the victim of a crime is transported to another state for medical treatment, where that victim then dies from causes relate to the crime, does not give the state where the death ultimately occurs in the hospital jurisdiction over the offense.</p>
<p><em>Double Jeopardy</em></p>


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<p><em>Double Jeopardy</em></p>
<p>Indeed, the constitutional protection against double jeopardy does not prohibit both states from independently convicting and punishing the same defendant for the same crime in this situation under the &quot;<a href="https://crsreports.congress.gov/product/pdf/LSB/LSB10763#:%7E:text=This%20prohibition%20on%20%E2%80%9Cdouble%20jeopardy,the%20%E2%80%9Cdual%20sovereignty%E2%80%9D%20doctrine." rel="nofollow noreferrer">dual sovereignty</a>&quot; doctrine. As background, the Colorado Supreme Court decided <a href="https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2021/21SC473.pdf" rel="nofollow noreferrer">a dual sovereignty double jeopardy case today</a>.</p>
<p><em>Application To Facts</em></p>
<p>(The application to the facts has been revised upon closer examination of them.)</p>


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<p><em>Application To Facts</em></p>
<p>(The application to the facts has been revised upon closer examination of them.)</p>
<p>The line about &quot;Ms X, who is, at this point, still in Nevada,&quot; is confusing because she was in California before and isn't described as ever being in Nevada. I presume that &quot;still in California&quot; was really meant.</p>
<p>Mr. Y could be charged (at least) in Nevada or New Jersey from which the continuing course of communications was sent (undue emphasis on the final communication is probably inappropriate), and Wyoming, to which the bulk of the communications were directed and where the bulk of the harm was suffered.</p>
<p>California and Nebraska do not seem to be places to which the communications were really directed or where the greatest harm was suffered. Momentary presence in Nebraska air space is probably insufficient.</p>


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<p>There are also a <a href="https://law.stackexchange.com/questions/1284/which-state-has-jurisdiction-in-a-case-of-a-murder-in-an-airplane/1287#1287">set of statutes that specifically address crimes committed during an airplane flight</a> (see also <a href="https://law.stackexchange.com/questions/77771/who-has-jurisdiction-on-an-international-flight-in-international-airspace-in-a-s">here</a>) that has been discussed in other answers at this website. To the extent that this is treated as a homicide committed while in flight, 49 USC § 46506, might also allow for a federal criminal prosecution.</p>
<p>I'm not sure that this is really a crime committed in flight, however, as it involved a course of conduct. A single email or a single moment of death doesn't really capture it. It is more analogous to a poisoning taking place in many doses over a period of time.</p>
<blockquote>
<ol start="2">
<li>Is Mr Y's speech in this case protected by the First Amendment?</li>
</ol>
</blockquote>


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<blockquote>
<ol start="2">
<li>Is Mr Y's speech in this case protected by the First Amendment?</li>
</ol>
</blockquote>
<p>No. First Amendment considerations do apply to crimes involving communications between people that are not false, but if there is sufficient intent to cause suicide or other harm, the First Amendment yields to other considerations. The freedom of speech is not absolute. The exact place that the line is drawn is a matter of ongoing litigation.</p>
<p>This specific issue is explored in depth in Clay Calvert, &quot;<a href="https://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1917&amp;context=facultypub" rel="nofollow noreferrer">The First Amendment and Speech Urging Suicide: Lessons from the Case of Michelle Carter and the Need to Expand Brandenburg Application</a>&quot; 94 <em>Tulane Law Review</em> 79 (November 2019).</p>


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<p>This article is responsive to that case of <em>Commonwealth v. Carter</em>, 115 N.E.3d 559 (Mass. 2019). The article explains in its introduction that:</p>
<blockquote>
<p>In February 2019, the Massachusetts Supreme Judicial Court in
Commonwealth v. Carter' affirmed Michelle Carter's conviction for
involuntary manslaughter as a youthful offender based on her urging
Conrad Roy to commit suicide.' In doing so, the court rejected
Carter's claim that her conviction violated her First Amendment' right
of free speech. Specifically, it reasoned that Carter's words with Roy
immediately before and while he died were &quot;integral to a course of
criminal conduct and thus [did] not raise any constitutional problem.&quot;</p>
<p>In brief, Massachusetts's high court concluded that Carter's speech
caused Roy's death' and that the First Amendment provided her no
refuge.'</p>
</blockquote>


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Question Title: Severance pay when getting terminated just after major change in scheduling

Question Body: <p>Normally the amount of severance pay is calculated based on the most recent past several weeks (<a href="https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_96113_01#part1" rel="nofollow noreferrer">8 in this example</a>). What if there is an upcoming major change to the employees schedule right around the time of him being terminated without cause?</p>
<p>For example, Bob has worked for a company 2 days per week for the past 6 months. He recently accepted a full time position with the company (and as a result, quits his other part time job). Shortly after switching to full time, he is terminated without cause. Would Bob be entitled to severance just based on the 2 days a week or could it be argued that the severance should be based on the full time hours? Does having quit his other job to work full time have any bearing?</p>


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Answer 1: <h2>Bob is entitled to severance based on his current duties</h2>
<p><a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" aria-label="show questions tagged &#39;australia&#39;" rel="tag" aria-labelledby="tag-australia-tooltip-container">australia</a></p>
<p>Redundancy (severance) pay is <a href="https://www.fairwork.gov.au/ending-employment/redundancy/who-doesnt-get-redundancy-pay" rel="nofollow noreferrer">not applicable</a> to certain employees and certain businesses.</p>
<p>For employees and businesses where it is payable, the specific award or registered agreement will detail how it is calculated. If an employee is not covered by one or the other than the National Employment Standard applies.</p>
<p>How many weeks an employee is entitled to depends on their period of continuous service and can be quite a complicated calculation. However, at the end of it, they will be entitled to a specific number of weeks of pay.</p>


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<p>Those weeks are for the hours they are presently contracted for irrespective of it this has recently changed.</p>


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Question Body: <p>Looking at the recently delivered findings and conclusions in Brandt <em>et al.</em> v. Rutledge <em>et al.</em>, full text <a href="https://wp.api.aclu.org/wp-content/uploads/2023/06/win-in-arkansas.pdf" rel="noreferrer">here</a>. On pp. 56-57 of the PDF, one of the expert witnesses is discussed (emphasis added):</p>
<blockquote>
<p>Dr. Levine was the State’s only expert witness who has experience
treating patients with gender dysphoria. In his practice, he has
enabled minor patients with gender dysphoria to access hormone therapy
on a case-by-case basis. (Tr. 785:3-6, ECF No. 246 (Levine)).</p>
<p>Dr. Levine does not support banning gender-affirming medical care for
adolescents with gender dysphoria. He has concerns about Act 626’s
impact on youth who are currently receiving gender-affirming hormones.</p>
<p>Dr. Levine testified that doctors who provide gender-affirming medical
care to adolescents with gender dysphoria encourage patients to


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<p>Dr. Levine testified that doctors who provide gender-affirming medical
care to adolescents with gender dysphoria encourage patients to
identify as transgender and provide hormones immediately without
assessing patients and addressing other mental health conditions or
informing patients and their parents of the risks and the limitations
of the evidence regarding treatments. Id. at 809:18- 810:4;
811:21-812:10; 824:5-14 (Levine). <strong>He offered no evidence that
treatment was being provided this way in Arkansas or anywhere in the
United States. Dr. Levine conceded he has no knowledge of how most
gender clinics provide care and, thus, does not know how common it is
for care to be provided in the way he described. Id. at 887:19-888:25
(Levine). He further does not know how care is provided by doctors in
Arkansas. Id. at 888:24-891:16 (Levine).</strong></p>
<p><strong>The Court found Dr. Levine a very credible witness</strong> who struggles with


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Arkansas. Id. at 888:24-891:16 (Levine).</strong></p>
<p><strong>The Court found Dr. Levine a very credible witness</strong> who struggles with
the conflict between his scientific understanding for the need for
transgender care and his faith.</p>
</blockquote>
<p>From p. 60:</p>
<blockquote>
<p>The legislative findings in Act 626 assert that there is insufficient
evidence of the efficacy of gender-affirming medical care for minors.
<strong>Some of the state’s expert witnesses—Dr. Levine and Dr. Hruz—offered
opinions to that effect. (Tr. 833:12-16, ECF No. 246 (Levine); Tr.
1274:15-25, ECF No. 249 (Hruz)). The Court does not credit these
opinions</strong> because it finds that the evidence showed that decades of
clinical experience in addition to a body of scientific research
demonstrate the effectiveness of these treatments.</p>
</blockquote>
<p>p. 71:</p>
<blockquote>
<p>The State argues that minors with gender dysphoria will desist with


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demonstrate the effectiveness of these treatments.</p>
</blockquote>
<p>p. 71:</p>
<blockquote>
<p>The State argues that minors with gender dysphoria will desist with
age. They contend that there is a significant risk of harm to a minor
who elects to undergo gender hormone therapy or surgery because they
will eventually identify with their sex assigned at birth and regret
the treatment they sought as a minor. The State offered the testimony
of Dr. Levine to support this argument. <strong>The Court found Dr. Levine’s
testimony to be inconsistent and unreliable in this area.</strong> To the
contrary, the evidence proved that there is broad consensus in the
field that once adolescents reach the early stages of puberty and
experience gender dysphoria, it is very unlikely they will
subsequently identify as cisgender or desist. (Tr. 310:13-25, ECF No.
220 (Turban)).</p>
</blockquote>


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experience gender dysphoria, it is very unlikely they will
subsequently identify as cisgender or desist. (Tr. 310:13-25, ECF No.
220 (Turban)).</p>
</blockquote>
<p>In this context, what does it mean to describe a witness as &quot;very credible&quot;, and yet not to credit their evidence? The court clearly had significant doubts about the accuracy of his testimony, the findings note his lack of knowledge on key points, and that his testimony was in some areas &quot;inconsistent and unreliable&quot;. How do those reconcile?</p>
<p>Does &quot;credible&quot; here mean &quot;comes with good credentials&quot; (e.g. his experience treating trans children) rather than &quot;gave evidence that should be credited&quot;? Or is there some other nuance here?</p>
<p>(I'm not looking for discussion on the merits of the case, only on how this description of a witness reconciles with the assessment of his evidence.)</p>


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Answer 1: <p>Credible means &quot;not lying&quot;.</p>
<p>But someone who is telling the truth to the best of their ability may still lack the knowledge to be a strong witness on the matters that the court has to make a decision upon.</p>
<p>For example, if a witness testifies that there was a fight involving a large man and a woman, but is legally blind and didn't get a good view of the people involved, the witness's testimony can be credible, while still not proving the case that a particular person was the large man in question.</p>
<p>&quot;Credited&quot; means that the evidence provided by someone provided an important factual basis upon which to resolve a disputed issue of fact.</p>


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Answer 2: <p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<p>There is a distinction between credibility and reliability. Credibility is about sincerity. Reliability is about ultimate accuracy, which can be doubted for reasons other than sincerity (memory, perception, narration, etc.)</p>
<p><a href="https://canlii.ca/t/225zl" rel="noreferrer"><em>R. v. H.C.</em>, 2009 ONCA 56</a>:</p>
<blockquote>
<p>Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately</p>
<p>i. observe;</p>
<p>ii. recall; and</p>
<p>iii. recount</p>


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<p>i. observe;</p>
<p>ii. recall; and</p>
<p>iii. recount</p>
<p>events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence ...</p>
</blockquote>


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Answer 3: <p>Credibility of a witness has aspects such as appearance of honesty, appearance of forthrightness, reliability of senses and memory (a distinct concept from the overall reliability of the testimony), impartiality/objectivity regarding the issue at hand, consistency, clarity, professional or other reputation (including experience, knowledge, training), and, above all, direct and comprehensive <em>witnessing</em> of the events or facts that they are reporting on.</p>
<p>Even the most credible testimony on any matter has only a limited probatory value.  It may be the best evidence available in a case, or it may not be.</p>


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<p>Even the most credible testimony on any matter has only a limited probatory value.  It may be the best evidence available in a case, or it may not be.</p>
<p>This question shows an example where one of the sides of a dispute produced a very credible witness, trying to prove a negative claim through their testimony, and the other side presumably offered some evidence to the contrary (to the corresponding positive claim).  It is generally difficult to prove a negative - even if you summon a diverse group of expert witnesses with stellar credentials, it might happen that the other side will be able to prove the corresponding positive claim with at least the same level of persuasiveness.</p>
<p>Finally, if a testimony is characterized as &quot;inconsistent&quot; (i.e., some part of what the witness said is contradicting something else that they also said in the courtroom), its overall credibility/persuasiveness may be high, but not stellar.</p>


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Question Body: <p>One time I was walking quickly in a park trail for my exercise routine in California, and there were dog owners who didn't leash their dogs or use a 25 foot leash and let them go freely within the 25 feet radius.</p>
<p>So because the trail was narrow and the grass land was limited, when the dogs confronted me and sometimes even bark, I had to stop and wait for the owner to react and pull back the dog, and then I can go forward.</p>
<p>So when it was the 6 or 7 times that had happened, I said to that owner, &quot;isn't he supposed to be on a leash?&quot;</p>
<p>She exclaimed: &quot;NO THEY ARE NORRRROOOOOT (NOT)!&quot;</p>
<p>I was so surprised because I remembered there was some law that said all dogs need to be on leash in public parks in California or in our County.</p>


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<p>I was so surprised because I remembered there was some law that said all dogs need to be on leash in public parks in California or in our County.</p>
<p>So I called the park ranger, and the park ranger said yes, that's the law.  Upon hearing what the park ranger said on my phone through the speakerphone, the lady with the dog said, &quot;even if it is the law, I am not going to do it&quot; and that she and her husband live in a rich city nearby.</p>
<p>And then she yelled with the top of her lung to the park ranger, &quot;this CRAZY woman comes out of no where, and then...&quot;.</p>
<p>So by yelling loudly &quot;CRAZY woman&quot; to the park ranger and to a few other people nearby, is it subject to possible fine and penalty for defamation?  I know in some countries in Asia, that is a US$10,000 penalty to falsely claiming somebody is crazy when obviously they are not.</p>


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Answer 1: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<p>Simply insulting someone without saying something false is not defamation in the U.S. (historically it was the subject of criminal defamation liability to might light of someone's disabilities or call them out in an insulting way, but later U.S. constitutional law jurisprudence interpreting the First Amendment in the late 20th century rendered these laws unconstitutional).</p>


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<p>If a statement might damage someone's reputation if taken literally, and the statement is false, it can be defamatory and give rise to civil liability (or criminal liability in the few states that still have criminal defamation statutes), if the people to whom the statement is &quot;published&quot; (i.e. the audience of the statement) could reasonably believe that the statement was intended to be taken literally.</p>
<p>Whether a statement can be taken literally is an &quot;all of the facts and circumstances&quot; analysis. Statements meant only as hyperbole or parody or metaphorically, if a reasonable audience person would understand the statements in that sense, do not impose liability based upon what they would mean if taken literally.</p>
<p><strong>Other Countries</strong></p>


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<p><strong>Other Countries</strong></p>
<p>As noted in the question itself, not all countries treat statements like this the same way. Germany imposes criminal liability for all manner of insults. England and Wales imposes defamation liability in many circumstances when U.S. law would not. And, many countries in Asia are closef to the German model of liability for insulting speech than they are to the U.S. model.</p>


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Answer 2: <p>Simply insulting someone is not illegal. That is why I'm not posting this from a supermax.</p>
<p>Defamation is a civil matter. It's not something she would be arrested for- it'd be dealt with by a lawsuit.</p>
<p>However, defamation requires significant damage to the victim's reputation. I really cannot imagine a situation where you suffered damages besides hurt feelings here.</p>


Tags: united-states, defamation


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Question Title: What legal conditions do I have to meet to open an open source website?

Question Body: <p>I'm working on a website for a pretty long time and in the close future I want to open it into the public. The problem is, my website collects personal data and cookies which (in my country - Poland) must be documented in something called privacy policy because of GDPR, etc, etc.</p>
<p>I've written some basic policy, but I'm stressed about locations. In every policy I saw, there were an address of a company working on the site.</p>
<p>I don't want to share my private address. I'm scared about this.</p>


Answer 1: <h2>Don't collect or process personal data</h2>


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Answer 1: <h2>Don't collect or process personal data</h2>

<p>Many (though of course not all) websites can easily be run without collecting or otherwise processing any personal data. The position of GDPR is that if you are not able to fulfil the basic, simplest core conditions for processing personal data (understanding what you're processing and why and why it's allowed, describing it in a privacy policy, having a non-underage person who's responsible for that) then you are not allowed to process personal data of other people. So don't. Build your website so that any personal data are not collected.</p>


Answer 2: <p>The basics of GDPR is that you must design your software (here the website) in a manner that :</p>


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Answer 2: <p>The basics of GDPR is that you must design your software (here the website) in a manner that :</p>

<ul>
<li>You do not collect / compile / use any private data that is unnecessary to your software.</li>
<li>You must state what type of private data you are collecting and why</li>
<li>You must ensure a reasonable security of those datas</li>
<li>You must be able to ensure the application of the rights related to those personal datas.</li>
</ul>

<p>rights related to personal data:</p>

<ul>
<li>right to know (know which datas about a specific person you own)</li>
<li>right to edit those datas</li>
<li>right to freeze the use of those datas for a period of time</li>
<li>right to delete definitively those datas</li>
</ul>

<p>(there are some others but they are related to some specific mechanics)</p>


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<p>(there are some others but they are related to some specific mechanics)</p>

<p>personal data definition:
any type of data that can allow, directly or indirectly, the identification of a person (directly : an email address, indirectly: the person owns a brown dog and lives in XXXXX city)</p>

<p>Not knowing which type of website you are building, it will be difficult for me to go further or give you precise advices.</p>

<p>Using a software, you are supposed to be able to contact someone regarding those rights. </p>

<p>My advice would be to create an email dedicated to this website (exemple : youwebsite.contact@mail.com) and disclose it.</p>

<p>Don't let those rules deter you, they are simple to apply once you know them :)</p>

<p>good luck with your website and do not hesitate to ask further questions</p>


Tags: internet, privacy, gdpr, open-source-software


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Question Title: Can I put &quot;Original Motion Picture Soundtrack&quot; on my album cover (which is not a soundtrack)?

Question Body: <p>If I wrote an album with a soundtrack-&quot;feel&quot; to it, which (crucially) is not a real motion picture soundtrack, would I be allowed to put &quot;Original Motion Picture Soundtrack&quot; on the album cover for artistic purposes?</p>


Answer 1: <p>Yes. You could, assuming that you did not associate it with any real motion picture (which would be a trademark violation).</p>
<p>You'd probably want to clarify in fine print somewhere, however, to avoid confusing your fans.</p>


Tags: music


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Question Title: Is there an inherent legal obligation to repay a guarantor?

Question Body: <p>So as I understand a guarantor is liable to pay rent arrears if the tenant is unable, unwilling, or just doesn't pay.</p>
<p>I am wondering if such an occasion arose and the landlord contacted the guarantor to pay, and they did, would the tenant, without a written agreement specific to that occasion, have any inherent legal obligation to repay the guarantor for the arrears.</p>
<p>Does the use of a guarantor give the tenant an automatic legal responsibility to repay them?</p>


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Answer 1: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<blockquote>
<p>Does the use of a guarantor give the tenant an automatic legal
responsibility to repay them?</p>
</blockquote>
<p>Yes, unless a contract expressly says otherwise.</p>
<p>A guarantor has the right to recover what the guarantor had to pay from the primary person obligated on a debt that are the same as the creditor who the guarantor pays unless a contract or statute says otherwise. This right is called the right to <strong>subrogation</strong>.</p>


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<p>The subrogation rights of a guarantor are a matter of equitable principles set forth in case law precedents (and in the case of promissory note, a statutory right under the Uniform Commercial Code, <em>see, e.g.</em>, Colo. Rev. Statutes § 4-3-419(e)), even though best practice is to formally state that in a guarantee agreement. <em>See, e.g., Behlen Mfg. Co. v. First Nat. Bank of Englewood</em>, 28 Colo.App. 300, 472 P.2d 703 (1970). (&quot;‘It is well settled that where one secondarily liable is called on to make good on his obligation and pays the debt, he steps into the shoes of the former creditor. He becomes subrogated to all the rights of the creditor against the principal debtor, including the security given to secure the debt.’&quot;).</p>
<p>The law as stated in an insurance context is that:</p>
<blockquote>
<p>When an insurer reimburses a victim for damages pursuant to a claim
under the victim's insurance policy, the insurer enjoys a right to


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<blockquote>
<p>When an insurer reimburses a victim for damages pursuant to a claim
under the victim's insurance policy, the insurer enjoys a right to
subrogation, under which he can stand in the victim's shoes and
collect the reimbursed amount from the party responsible for the
damages. <em>Am. Family Mut. Ins. Co. v. DeWitt</em>, 218 P.3d 318, 323
(Colo.2009). The right can arise pursuant to an express provision in
the insurance policy—a “conventional” subrogation right—or under
principals of equity—an “equitable” subrogation right. <em>Id</em>.</p>
</blockquote>
<p><em>Ferrellgas, Inc. v. Yeiser</em>, 247 P.3d 1022, 1027 (Colo. 2011).</p>
<p>But, the law of subrogation of guarantors is the same as that of insurers, who are both a subset of people who are called &quot;<a href="https://www.merriam-webster.com/dictionary/surety" rel="noreferrer">sureties</a>.&quot;</p>


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<p>Colorado's common law right is referenced obliquely in its statute governing contribution rights (see below) for sureties:</p>
<blockquote>
<p>Nothing in sections 13-50-102 to 13-50-104 affects or changes the
right of a surety who has paid his proportionate share of an
indebtedness of recovering the same from his principal debtor.</p>
</blockquote>
<p>Colo. Rev. Stat. Ann. § 13-50-104.</p>
<p>Similarly, in the case of a release of some but not all joint debtors or guarantors, Colorado has a (widely adopted model) statute which states more affirmatively:</p>
<blockquote>
<p>In case one or more joint debtors are released, no one of the
remaining debtors shall be liable for more than his proportionate
share of the indebtedness, unless he is the principal debtor and the
debtor released was his surety, in which case the principal debtor is
liable for the whole of the remainder of the indebtedness.</p>
</blockquote>
<p>Colo. Rev. Stat. Ann. § 13-50-103.</p>


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debtor released was his surety, in which case the principal debtor is
liable for the whole of the remainder of the indebtedness.</p>
</blockquote>
<p>Colo. Rev. Stat. Ann. § 13-50-103.</p>
<p>When there are multiple debtors, or multiple guarantors, the obligation is generally joint and several, so that the entire debt may be collected by the creditor from any one of them, not just their fair share of the debt.</p>
<p>But, there is also a common law and statutory right for guarantors who pay more than their fair share of a guarantee obligation upon which there are multiple guarantors to recover the fair share of any guarantor who did not pay their fair share of the guaranteed debt from that other guarantor in an action for <strong>contribution</strong>.</p>
<blockquote>
<p>It is well established that guarantors paying more than their
proportionate share of an obligation are entitled to contribution from
other guarantors who are jointly and severally liable for the


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<p>It is well established that guarantors paying more than their
proportionate share of an obligation are entitled to contribution from
other guarantors who are jointly and severally liable for the
obligation. <em>Taylor v. Hake</em>, 92 Colo. 330, 20 P.2d 546[.]</p>
</blockquote>
<p><em>Stieben v. Korby</em>, 533 P.2d 530, 531 (Colo. App. 1975).</p>
<p>Incidentally, this is an area of law upon which United States law is generally very uniform, even though it is, as most things are in U.S. law, a matter of state law and not a matter of federal law, in most cases.</p>


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Answer 2: <p>Yes. Although the details will depend on the jurisdiction, the wording of any documents signed, and any specific statutes regulating the type of contract in question (eg. residential tenancy legislation), <a href="https://en.wikipedia.org/wiki/Subrogation" rel="noreferrer"><strong>subrogation</strong></a> is an old common law principle which applies generally to guarantees, as explained in <a href="https://www.austlii.edu.au/au/journals/AukULawRw/1990/6.pdf" rel="noreferrer">this article in the <em>Auckland University Law Review</em></a> (1990):</p>
<blockquote>
<p>Upon payment by the surety of the principal debt he is legally entitled to the full rights of subrogation, thereby stepping into the creditor's shoes. This equitable principle was stated in <em>Craythorne v Swinbume</em> (1807) 14 Ves 160, 162; 33 ER 482, 483:</p>
<blockquote>


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<blockquote>
<p>a surety will be entitled to every remedy, which the creditor has against the principal debtor, to enforce every security and all means of payment; to stand in the place of the creditor … [t]his right of a surety ... stands, not upon contract, but upon a principle of natural justice.</p>
</blockquote>
<p>This principle generally applies to both guarantees and indemnities.</p>
</blockquote>
<p>The modern cases on subrogation, such as <a href="https://en.wikipedia.org/wiki/Lord_Napier_and_Ettrick_v_Hunter" rel="noreferrer"><em>Lord Napier and Ettrick v Hunter</em></a> [1993] AC 713, are quite complicated and tend to involve insurance rather than guarantees. That is because in the ordinary case of a guaranteed debt, the right of subrogation is usually not worth fighting about in court, because it is the right to sue somebody who has already failed to pay their creditors and is likely to become bankrupt.</p>


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Question Title: If a moderator of an online forum edits my post to say something illegal, how could I prove I didn&#39;t write the incriminating message?


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Question Body: <p>Hypothetical situation.</p>
<p>Several years ago, Reddit co-founder Steve Huffman caused some controversy by editing comments that criticized him. On most social media platforms, staff cannot edit users' messages without direct access to the database.</p>
<p>However, this is often not the case for certain forum software, such as phpBB and vBulletin. In some cases, the forum does not even indicate that a moderator has edited a message. So if a moderator changes my post to say something illegal, then how could I prove in court that my post was tampered with?</p>


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<p>Let's say I go on a forum and say I wish to meet the president of the United States. Suppose a mod decides to pull a &quot;prank&quot; and edits the message to say I want to murder the president of the United States, and I end up getting a visit from the Secret Service. To complicate matters, the forum requires registration to view and is not accessible to the Wayback Machine or Google caches. In this case, how could I prove I didn't threaten the POTUS?</p>


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Answer 1: <p>You do not have to. The burden of proof is on the prosecution to prove that you made the threat. Reasonable doubt exists in the circumstances that you describe, that there are no logs of who accessed what when and how. Your attorney may have to introduce expert witnesses who can explain how it is possible that text from your computer can end up on a web page, and they can testify that there are many ways that data can be entered into the database, only a few of which actually involve you.</p>


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Answer 2: <p>You're describing an attempt to incriminate you for a crime you didn't commit. This isn't unique to the Internet.</p>
<p>While in most countries with rule of law the prosecution needs to prove your guilt to a very high degree of certainty (e.g. &quot;beyond a reasonable doubt&quot; in the US), this does not mean absolute certainty. The fact that you can come up with a speculative alternative explanation of what happened is not necessarily enough to introduce reasonable doubt.</p>


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<p>So just like in most criminal cases, a decision will be made on the specific facts of your hypothetical case. If you're talking about a major social network, the prosecution's case will be stronger than if you're talking about some guy's hobby project. If the prosecution shows that you have a history of crimes similar to the one you are framed for, that will make their case stronger as well. However, if you can show that someone with write access to your comments has a motive for framing you, that would be deadly to their case, as that shows a likely and coherent alternative explanation for the facts.</p>


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<p>In the extreme case, though, where you're talking about a major social network and one of the database employees just decides one day to single you out for no reason and make you look like a lunatic that wants to kill the president (and he properly hides his tracks so the social network later insists you were the author), you're probably out of luck unless you can provide at least some proof. That hypothetical scenario is so far-fetched that in case it ever were to happen, no judge or jury would probably consider this a plausible alternative explanation without evidence.</p>


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Answer 3: <p>While the situation you describe is very difficult for your hero, the company would have to have a hell of a reason to target your hero.   <strong>Because, they only get to do that trick 2-3 times <em>ever</em></strong>.</p>
<p>&quot;The first time is happenstance. The second time is coincidence. The third time is enemy action.&quot; Military proverb.</p>


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<p>&quot;The first time is happenstance. The second time is coincidence. The third time is enemy action.&quot; Military proverb.</p>
<p>The first person who claims this was done, straight faced, in open court, is an obvious liar.  The second who claims it is a coincidence of liars. But the third is starting to get traction.  Now the judge will be more tolerant of some exploration of this topic.  People get subpoenaed, the logging system gets discussed, &quot;how this could be done&quot; becomes a topic of discussion.  Third parties start snapshotting content from the site so alterations can be detected.  The fourth time it happens, the company is caught red-handed, socially canceled,  sued to oblivion, and some people go to jail for perjury and obstruction of justice in case #3.</p>
<p>So for this social media company to use one of its 1-2 &quot;free shots&quot; would require a <em>truly extraordinary</em> loathing from company management.</p>


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<p>So for this social media company to use one of its 1-2 &quot;free shots&quot; would require a <em>truly extraordinary</em> loathing from company management.</p>
<p>And here's the problem with that.  That loathing wouldn't arise from nothing.  It's gonna leave a documentation trail across social media or elsewhere in the world. It may be common knowledge among acquaintances that they had an acrimonious feud.  There may be a restraining order or police records.   So even defendant #1 would be able to show this to introduce doubt.</p>
<p>And similarly, as we certainly do know, a person doesn't get out of bed one day and decide to kill the president. Read &quot;The Gift of Fear&quot; by Gavin DeBecker.   If they're active on social media, there'll be <em>years</em> of increasingly radicalized blah-blah. A <em>conspicuous absence</em> of such a profile makes it very much more likely to be a Joe Job by a third party.</p>


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<p>The jury will figure that out, and so will the authorities. So their &quot;one shot&quot; probably  wouldn't even work.</p>


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Answer 4: <p>The primary evidence against you would be based on server logs or database entries of the website where the illegal information is posted. You could counter that evidence by recording logs of browser submissions on your side. There are extensions (e.g. <a href="https://github.com/drewsb/FormVault" rel="nofollow noreferrer">Form Vault</a>) which automate saving of web form submissions in your browser. It's also possible to set up a local proxy / vpn server which your browser would use, and collect the server's logs.</p>
<p>The degree of trust in logs from both side will likely depend on expert judgement. If the website in question is a major platform with proper security practices (automated log handling, strict access control on servers which store the logs and regular security audits), the log on your side (which you may have forged) may not be enough.</p>


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<p>For a smaller website the degree of trust would be comparable, so having local logs would be an effective defence.</p>


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Question Body: <p>There's a certain intersection in Idaho, USA that's causing confusion for a lot of drivers.  As you can see in the photo, the pavement widens near the intersection, as if there should be a right turn lane.  But the widening area is marked with diagonal lines.  The turn arrows show that the same lane should be used for traffic going straight and turning right.  The only lane usage indicators are the pavement markings and traffic lights.  There is no additional signage.</p>
<p>Many drivers turn right from the area with the diagonal stripes, and many others turn right from the lane with the right and straight arrows.  There's no clear consensus among drivers on how to make right turns here.</p>


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<p>I asked the highway department about it, and they said &quot;...even though this area is not specifically striped as a right turn lane (there isn’t enough room to physically stripe a dedicated area for right turning vehicles), drivers who use it as such are acting lawfully.&quot;  They cited Idaho Code 49-644, which says, &quot;Both the approach for a right turn and the right turn shall be made as close as practicable to the right-hand curb or edge of the roadway.&quot;</p>
<p>Their answer could be correct, but it doesn't feel right to me.  I was taught to stay off diagonal lines, and to turn where the arrows are.  I searched as many places as I could think of, including titles 40 and 49 of the Idaho code, and I couldn't find the specific meanings of turn arrows or diagonal stripes.  What is the correct way to turn right at this intersection, and why?</p>


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<p><a href="https://i.stack.imgur.com/J4CPS.png" rel="noreferrer"><img src="https://i.stack.imgur.com/J4CPS.png" alt="photo of pavement markings" /></a></p>


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Answer 1: <p>The &quot;definition&quot; of diagonal crosshatches is given in the <a href="https://mutcd.fhwa.dot.gov/pdfs/2009r1r2r3/mutcd2009r1r2r3edition.pdf" rel="noreferrer">Manual on Uniform Traffic Control Devices</a>, under §3B.24, which says:</p>
<blockquote>
<p>Option: 01 Chevron and diagonal crosshatch markings may be used to
discourage travel on certain paved areas, such as shoulders, gore
areas, flush median areas between solid double yellow center line
markings or between white channelizing lines approaching obstructions
in the roadway (see Section 3B.10 and Figure 3B-15), between solid
double yellow center line markings forming flush medians or
channelized travel paths at intersections (see Figures 3B-2 and 3B-5),
buffer spaces between preferential lanes and general-purpose lanes
(see Figures 3D-2 and 3D-4), and at grade crossings (see Part 8).</p>
<p>Standard: 02 When crosshatch markings are used in paved areas that


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(see Figures 3D-2 and 3D-4), and at grade crossings (see Part 8).</p>
<p>Standard: 02 When crosshatch markings are used in paved areas that
separate traffic flows in the same general direction, they shall be
white and they shall be shaped as chevron markings, with the point of
each chevron facing toward approaching traffic, as shown in Figure
3B-8, Drawing A of Figure 3B-9, Figure 3B-10, and Drawing C of Figure
3B-15. 03 When crosshatch markings are used in paved areas that
separate opposing directions of traffic, they shall be yellow diagonal
markings that slant away from traffic in the adjacent travel lanes, as
shown in Figures 3B-2 and 3B-5 and Drawings A and B of Figure 3B-15.
04 When crosshatch markings are used on paved shoulders, they shall be
diagonal markings that slant away from traffic in the adjacent travel
lane. The diagonal markings shall be yellow when used on the left-
hand shoulders of the roadways of divided highways and on the


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diagonal markings that slant away from traffic in the adjacent travel
lane. The diagonal markings shall be yellow when used on the left-
hand shoulders of the roadways of divided highways and on the
left-hand shoulders of one-way streets or ramps. The diagonal markings
shall be white when used on right-hand shoulders.</p>
<p>Guidance: 05 The chevrons and diagonal lines used for crosshatch
markings should be at least 12 inches wide for roadways having a
posted or statutory speed limit of 45 mph or greater, and at least 8
inches wide for roadways having posted or statutory speed limit of
less than 45 mph. The longitudinal spacing of the chevrons or diagonal
lines should be determined by engineering judgment considering factors
such as speeds and desired visual impacts. The chevrons and diagonal
lines should form an angle of approximately 30 to 45 degrees with the
longitudinal lines that they intersect.</p>
</blockquote>


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</blockquote>
<p>Idaho adopts this standard, and <a href="https://apps.itd.idaho.gov/apps/manuals/traffic_manual.pdf#%5B%7B%22num%22%3A408%2C%22gen%22%3A0%7D%2C%7B%22name%22%3A%22FitR%22%7D%2C-202%2C-3%2C813%2C795%5D" rel="noreferrer">has not modified it</a> in this area. Idaho statutes <a href="https://legislature.idaho.gov/statutesrules/idstat/title49/t49ch8/sect49-801/" rel="noreferrer">49-801</a> commands you to &quot;obey the instructions of any traffic-control device placed or held in accordance with the provisions of this title&quot;. The pertinent section of MUTCD does not command, is says that you are discouraged from traveling. <a href="https://legislature.idaho.gov/statutesrules/idstat/Title49/T49CH6/SECT49-644/" rel="noreferrer">§49-644</a> commands you to make the turn &quot;as close as practicable to the right-hand curb or edge of the roadway&quot;. You should first obey commands, then I suppose you should take their suggestions.</p>


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Question Title: Is it illegal to perform a song from sheet music that I transcribed?

Question Body: <p>So I have been transcribing a copyrighted song (as a HOBBY) that I love and was thinking about using it as a graduation song for my music school, but I’ve had to make some tweaks because there are some instruments involved that my music school doesn’t have access to.
Even if I give credit to the composer, and I will make no profit from the performance, will it still be illegal to use my transcription?</p>


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Answer 1: <blockquote>
<p>Even if I give credit to the composer, and I will make no profit from
the performance, will it still be illegal to use my transcription?</p>
</blockquote>
<p>This definitely infringes the composer's performance and derivative work rights under the composer's copyright. There is a mandatory right to cover someone else's composition outside of a movie or TV show (roughly speaking) for a statutorily fixed royalty, but the bureaucracy is such that it would be impractical to do here.</p>
<p>Whether or not the &quot;fair use&quot; defense applies in this case is a &quot;colorable&quot; argument, but really, when you perform the entire work as written except for transcription, winning a &quot;fair use&quot; defense in a infringement action would be a long shot.</p>


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<p>The fact that it is somehow connected to an educational activity would be the strongest argument in this case. Also, as noted in a comment, your school may have obtained express permission to cover the work:</p>
<blockquote>
<p>Your music school may have a license with a <a href="https://blog.songtrust.com/guide-to-usa-pros" rel="noreferrer">PRO (performing rights
organization</a>) that covers your song. You might make some inquiries
with the administration as to whether this is the case.</p>
</blockquote>
<p>Radio stations obtain similar licenses to play a large catalog of music without individually obtaining licenses to use each work separately from the author.</p>
<p>This said, this kind of activity is often done, despite the fact that it is a copyright infringement, and most of the time, if the performance isn't too widely broadcast, most copyright owners will never pursue copyright infringement claims over something like this and indeed often won't even consider doing so.</p>


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<p>Still, copyright is an absolute bar to infringing rights without permission, even if there is absolutely no money received for the work and even if there is full attribution of its author. I'm not a great fan of the law as it is, and it is often disregarded, but that is the law.</p>
<p>Also, this answer is based upon U.S. law, but there isn't much international variation in this part of copyright law in countries that meaningfully enforce copyright laws in their courts. But, as another answer notes, in some countries the mandatory right to do a cover of songs in the U.S. is much easier bureaucratically, in some other countries:</p>
<blockquote>
<p>In several countries, there are organizations that deal with the
copyright issue globally. That means you pay a certain (quite small)
fee to be allowed to perform a piece of music publicly, and the
organization deals with the individual right owners. That makes
reusing works much simpler.</p>
</blockquote>


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Question Title: Would using individual sentences from news articles for a language learning app be considered fair use?


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Question Body: <p>Suppose a commercial language learning app displays a single sentence at a time to a user, with the purpose of reviewing the sentence to learn new words.</p>
<p>In order to get examples of natural sentences for learning use, would it be considered fair use in terms of copyright to take sentences from news websites?</p>
<p>Reviewing the factors from: <a href="https://law.stackexchange.com/questions/7683/in-the-us-when-is-fair-use-a-defense-to-copyright-infringement">In the US, when is fair use a defense to copyright infringement?</a></p>
<p>Factor 1: Purpose and character of use</p>
<ul>
<li>The app is for language learning so is therefore of an educational use (weighs in favour)</li>
<li>The app is commercial (weighs against)</li>
</ul>
<p>Factor 2: The nature of the copyrighted work</p>
<ul>


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<li>The app is commercial (weighs against)</li>
</ul>
<p>Factor 2: The nature of the copyrighted work</p>
<ul>
<li>&quot;[T]he scope of fair use is generally broader when the source of borrowed expression is a factual or historical work&quot; (Campbell). (weighs in favour since news articles are factual)</li>
</ul>
<p>Factor 3: Amount and substantiality of the portion used in relation to the copyrighted work as a whole</p>
<ul>
<li>Only one sentence at a time is displayed to the user (weighs in favour)</li>
</ul>
<p>Factor 4: Effect of the use upon the potential market for or value of the copyrighted work</p>
<ul>
<li>It is extremely unlikely that users of the app will be drawn away from using the original news website.</li>
</ul>
<p>All 4 factors seem to be in favour apart from the commercial nature of the app.</p>
<p>Question:
Would this be in favour of fair use even though the app is of a commercial nature?</p>


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</ul>
<p>All 4 factors seem to be in favour apart from the commercial nature of the app.</p>
<p>Question:
Would this be in favour of fair use even though the app is of a commercial nature?</p>
<p>Similar question: <a href="https://law.stackexchange.com/questions/60266/can-one-use-already-said-sentences-as-examples-on-a-language-lesson">Can one use already said sentences as examples on a language lesson?</a></p>


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Answer 1: <p>Usually, copying a single sentence for educational purposes such as language learning would constitute fair use under U.S. copyright laws, assuming that the publisher is not going sentence by sentence to use a large share of the source work in the aggregate. This would be true even if the education provider was a &quot;for profit&quot; educational provider.</p>
<p>Every &quot;fair use&quot; case is evaluated on a case by case basis if litigated. But this is a fairly clear case of fair use that is only the slightest bit gray.</p>


Tags: copyright, fair-use


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Question Body: <p>Let’s say that Bob has work done to his home.  Some payments are made per the contract, but the final payment requires some adjustments to be made to account for changes agreed to during the project, so the amount is unknown.  However, following completion of the project the contractor goes quiet.  For several months…</p>
<p>Is there any period of time after which the contractor’s right to bill and expect timely payment will have expired?</p>
<p>Ethically Bob should pay them for work done, but just in case there is a dispute over the adjustments Bob would seem to have greater leverage to negotiate the longer the contractor takes to submit an invoice.  (<em>i.e. if the contractor takes 6 months to submit a final invoice wouldn’t it be fair for Bob to have 6 months to negotiate or pay?</em>)</p>


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<p>Is there any statute of limitations beyond which Bob is considered to be out from under the terms of the contract?  (<em>Presume that terms of the contract are not tied to the lifespan of any British royalty…</em>)</p>


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Answer 1: <p>The statute of limitations for a breach of contract applies. This is <a href="https://app.leg.wa.gov/rcw/default.aspx?cite=62A.2-725#:%7E:text=(1)%20An%20action%20for%20breach,but%20may%20not%20extend%20it." rel="nofollow noreferrer">four years</a> in Washington State.</p>
<p>But, if a claim isn't made within a much shorter period of time after the last work is done (typically a few months at most), the contract waives the contractor's right to a mechanic's lien in the property to enforce those contract rights. This deadline in <a href="https://www.levelset.com/mechanics-lien/washington-lien-law-faqs/#:%7E:text=In%20Washington%2C%20the%20deadline%20to,it%20is%20what%20it%20is." rel="nofollow noreferrer">90 days</a> in most cases in Washington State (with quite a bit of case law spelling out when you start counting).</p>


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<p>The contract can, of course, provide for other deadlines and consequences for not meeting them, and frequently would, especially in a construction loan financed project.</p>


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Question Title: usage of the same applicationname

Question Body: <p>we are currently developing a mobile-App for Android and IOS and we would like to use a name for this application, that already exists: &quot;YouTrack&quot;.
BUT of course our application has nothing to do with the existing app.
The existing app is for tracking issues in software, our app is for motorsports.</p>
<p>Is it safe to use the name for our Application?</p>


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Answer 1: <blockquote>
<p>Is it safe to use the name for our Application?</p>
</blockquote>
<p>YouTrack is a registered trademark of another company producing software.</p>
<p>Said software is 14 years old, so there is no question here of who came first.</p>
<p>The trademark is valid in the EU. In Germany specifically, this is covered by <a href="https://www.gesetze-im-internet.de/markeng/" rel="nofollow noreferrer">MarkenG</a>.</p>
<p>You using the same name for your software as the one registered as a trademark for their software goes against many of the points, but the most obvious one is</p>
<blockquote>
<p>(2) Dritten ist es untersagt, ohne Zustimmung des Inhabers der Marke im geschäftlichen Verkehr in Bezug auf Waren oder Dienstleistungen<br>
1.<br>
ein mit der Marke identisches Zeichen für Waren oder Dienstleistungen zu benutzen, die mit denjenigen identisch sind, für die sie Schutz genießt,</p>
</blockquote>
<p>Translated:</p>
<blockquote>


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ein mit der Marke identisches Zeichen für Waren oder Dienstleistungen zu benutzen, die mit denjenigen identisch sind, für die sie Schutz genießt,</p>
</blockquote>
<p>Translated:</p>
<blockquote>
<p>Third parties shall be prohibited, without the consent of the proprietor of the trade mark, from using in the course of trade in relation to goods or services<br>
1.<br>
Use a sign identical with the trademark for goods or services identical with those for which it enjoys protection,</p>
</blockquote>
<p>So the name is in no way &quot;safe&quot;.</p>
<p>Given that there is &quot;YouTrack&quot;, &quot;uTrack&quot; and even &quot;u-track&quot; already, don't you want a unique brand people can recognize as yours? Isn't that the point of a <em>name</em>?</p>


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Question Title: Legality of printing out scanned hand signature

Question Body: <p>I'm working with someone oversea to submit a project for evaluation by an institute in US, and the institute requires signed IP statements (patent disclosure, licensing condition, etc.). To save postage costs, I told my oversea peer to scan his signed statement, email it to me, and I'll print it and mail it along with my signed statement to the institute.</p>
<p>In this case, my signature will be hand-written on a fresh paper; but my oversea peer's will be a printed one, albeit being scanned from a original paper-signed version.</p>
<p>Are such printed signature considered valid under the context of IP licensing and patent disclosure in US? Or do we have to send both of our physical papers through mail?</p>


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Answer 1: <p>Under U.S. law, a copy of a document has the same legal effect as the original in almost all cases. The main exceptions are &quot;live&quot; promissory notes and checks (absent an e-deposit agreement), and wills. This document does not come within any of the exceptions.</p>
<p>As background, the exception for promissory notes and checks is because the physical instrument is &quot;negotiable&quot; and can be physically transferred to transfer the rights associated with it.</p>
<p>The exception for wills has a different basis, which is that a will can be revoked by destroying or defacing the original. This practice developed at a time when copying documents was almost non-existent, and persisted once established.</p>


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Answer 2: <p>This is not definitive, and is just my guess from reasoning.</p>
<p>From reading on this site, I (roughly) understand that, the purpose of signature is to <em>indicate assent</em>. If the person expressing assent is not capable of signing (e.g. illiterate), there are other ways to prove assent (e.g. marking an &quot;X&quot;).</p>
<p>When a physical paper is digitized, the proof is destroyed in its digital form, until it can be reproduced, for example, printed or faxed. While the <em>act</em> of faxing can transfer the proof of assent from the <em>act</em> of signing to a recipient of the fax. Printing a file cannot, as anyone with the file's digital source can print it. Therefore, another way of proving assent is needed - mailing it.</p>
<p>Both faxing and mailing allows the recipient of the signed document verify that the signed document originates from what they claim to be from, because both usually come with the contact method or address of the sender.</p>
<hr/>


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<hr/>
<p><strong>Update:</strong> For my case, the lawyers from the institute explicitly requested that physically signed <strong>original</strong> version of IP statements be provided. So I guess the conclusion is <em>case-by-case</em>.</p>


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Answer 3: <p>I think that instead of calling the signature an indication of agreement, it’s better to think of it as evidence of agreement.  Evidence, not proof, its validity and value can both be disputed.  Simple example, the signer is illiterate either in the language the contract is written in or entirely.  If the contract has terms which weren’t adequately conveyed to the signer, those terms, and possibly the entire agreement could be determined to be invalid.</p>
<p>Also, and directly on point to your question, is evidence of agreement to whom? The institute that is asking for this, can put whatever terms they want on how the terms will be accepted. Common “extra” terms are signing with a particular color and notarized signatures.</p>
<p>If they want a signed, original document, that’s what they want. You can fake it, but that gives them the opportunity to repudiate the contract if they find out.</p>


Tags: united-states, signature


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Question Title: Why would a clause apply until 21 years after the death of the last descendant of King Charles III?


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Question Body: <p>Inspired by this <a href="https://law.stackexchange.com/questions/93229/to-what-extent-a-factual-mistake-invalidate-a-legal-document?noredirect=1#comment213476_93229">question</a>, why might any corporation draft a legal document containing provisions that are random, arbitrary, and completely beyond their control?</p>
<p>In case the question is deleted, it had to do with Disney maintaining control over its districts &quot;until twenty one (21) years after the death of the last survivor of the descendants of King Charles III, King of England living as of the date of this declaration.&quot;</p>
<p><em>(I don't have access to the document quoted in the other question.)</em></p>


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<p><em>(I don't have access to the document quoted in the other question.)</em></p>
<p>The rule against perpetuity makes some sense from an estate planning perspective, (<em>a just-borne heir would reach the age of majority to be able inherit property 21 years following a death</em>) but what rationale is there for preventing an on-going legal entity from tying any or all of its legal documents directly to the continued existence of the entity itself?</p>


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Answer 1: <h2>It’s a common law rule dating from the 17th to 19th centuries</h2>
<p>Known as the <a href="https://en.wikipedia.org/wiki/Rule_against_perpetuities" rel="nofollow noreferrer">rule against perpetuities</a> “that prevents people from using legal instruments (usually a deed or a will) to exert control over the ownership of private property for a time long beyond the lives of people living at the time the instrument was written.”</p>
<blockquote>
<p>The rule has its origin in the Duke of Norfolk's Case of 1682. That case concerned Henry, 22nd Earl of Arundel, who had tried to create a shifting executory limitation so that some of his property would pass to his eldest son (who was mentally deficient) and then to his second son, and other property would pass to his second son, but then to his fourth son. The estate plan also included provisions for shifting property many generations later if certain conditions should occur.</p>


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<p>When his second son, Henry, succeeded to his elder brother's property, he did not want to pass the other property to his younger brother, Charles. Charles sued to enforce his interest, and the court (in this instance, the House of Lords) held that such a shifting condition could not exist indefinitely. The judges believed that tying up property too long beyond the lives of people living at the time was wrong, although the exact period was not determined until another case, Cadell v. Palmer, 150 years later.</p>
</blockquote>


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</blockquote>
<p>Historically, the rule was no longer than 21 years from the death of some person alive at the time the trust or estate was created. However, that person(s) must be limited and identifiable. Which led to the creation of <a href="https://en.m.wikipedia.org/wiki/Royal_lives_clause" rel="nofollow noreferrer">Royal lives clauses</a>. The descendants of British monarchs became popular because it’s easy to find out who they are, even many years after the fact, and that family tends to live a long time. Other popular choices, particularly in the United States, are the descendants of John D. Rockefeller or Joseph P. Kennedy.</p>
<p>This is often only one of the conditions for the end of the trust and becomes a “savings clause” to prevent violation of the rule if the other conditions are (or become) too far in the future.</p>


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<p>This is often only one of the conditions for the end of the trust and becomes a “savings clause” to prevent violation of the rule if the other conditions are (or become) too far in the future.</p>
<p>The period has been changed or abolished by statute in many jurisdictions. For example, England and Wales has adopted a flat 125 year limit. As a state-based law, the United States is hugely variable.</p>
<h2>Examples</h2>
<p>For example, one of the businesses I run operates under a trust deed that says:</p>
<blockquote>
<p>&quot;The Vesting Date&quot; means the first to occur of the following three dates namely:-</p>
<p>(i) Sixty years after the date of this Deed.</p>
<p>(ii) Twenty years after the date of the death of the last survivor of the lineal descendants of His late Majesty King George V born and living at the date hereof or,</p>
<p>(iii) The date (if any) which the Trustee shall in his discretion appoint as the distribution date of this settlement.</p>
</blockquote>


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<p>(iii) The date (if any) which the Trustee shall in his discretion appoint as the distribution date of this settlement.</p>
</blockquote>
<p>The deed was made in 1982, which partly explains its style and implicit sexism, but I suspect that the solicitor who drafted it has been using the clause about George V for a lot longer than that. As of today, there are 35 living people who fall into the definition, including Charles III (see if you can work out the others); since there are now less than 20 years to go until 60 years after the deed, the clause will never be relevant.</p>
<p>Another business operates under a deed made in 2022:</p>
<blockquote>
<p>14.1 Termination date</p>
<p>The Trust shall be wound-up and terminate on the first to occur of:</p>
<p>a) the date which The Trustee with the written consent of the Leading Member Appointer determines; or</p>
<p>b) 80 years from the date of this deed unless a State law allows otherwise including South Australia.</p>
</blockquote>


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<p>b) 80 years from the date of this deed unless a State law allows otherwise including South Australia.</p>
</blockquote>
<p>Note that the reference to living people is gone. Also, note the specific reference to South Australia, a jurisdiction that has abolished the rule against perpetuities. So long as they don't change their law back, this trust is effectively perpetual. Finally, not how much easier this is to read and skips the implicit sexism; progress.</p>
<h2>Why doesn’t it affect the property of ‘immortal’ entities like companies or governments?</h2>
<p>Because, in theory, it isn’t dead people telling living people what they can do with the property.</p>


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<p>Because, in theory, it isn’t dead people telling living people what they can do with the property.</p>
<p>While the organisation may be ‘eternal’ the people making decisions for that organisation aren’t - the directors and legislators/executives in charge today can decide what to do with the property. This includes having the capacity to rewrite the rules of the organisation. While it may be hard to change a company’s rules and very, very hard to change a country’s constitution, it isn’t impossible the way it is with a trust deed or a will.</p>
<p>Changing a deed or will too much can result in <a href="https://www.corneyandlind.com.au/resource-centre/trust-resettlements/#:%7E:text=A%20trust%20resettlement%20occurs%20when,transferred%20to%20a%20new%20trust." rel="nofollow noreferrer">resettlemet</a>; creating a new trust and usually crystalising tax obligations the delaying of which was often one of the motivations for the trust in the first place.</p>


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Answer 2: <p>This is an effort to avoid the rules against perpetuities which immediately invalidates contracts that do not expire within the life of someone living at the time that the contract is entered into plus twenty-one years, in its most traditional historic version.</p>
<blockquote>
<p>what rationale is there for preventing a legal entity from tying any
or all of its legal documents directly to the existence of the entity
itself?</p>
</blockquote>
<p>Entities live forever, but the &quot;dead hand&quot; of people who wrote a contract, long, long ago, shouldn't bind people in the present.</p>


Tags: united-states, corporate-law


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Question Title: To what extent does a factual mistake invalidate a legal document?

Question Body: <p>Due to a “<a href="https://en.wikipedia.org/wiki/Royal_lives_clause" rel="nofollow noreferrer">royal lives clause</a>”, Disney retains power over its districts</p>
<blockquote>
<p>until twenty one (21) years after the death of the last survivor of the descendants of King Charles III, King of England living as of the date of this declaration.</p>
</blockquote>
<p>This is interesting and tricky, as there is no such person as King Charles III, King of England, the title “King of England” having been defunct since 1707 (many years before the USA was even established as an independent country). Does this in any way affect the legal power of the clause?</p>


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Answer 1: <p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<h3>The language is clear in context</h3>
<p>Covenants and easements are interpreted using ordinary contractual interpretation: <em>Connick v. Owners, Strata Plan VIS7092</em>, 2022 BCCA 52.</p>
<p>This means that interpretation should give the words &quot;their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract... The meaning of words is often derived from a number of contextual factors&quot;: <em>Sattva Capital Corp. v. Creston Moly Corp.</em>, 2014 SCC 53.</p>
<p>A court would have no difficulty determining who &quot;King Charles III, King of England&quot; refers to.</p>


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Answer 2: <p>In <a href="/questions/tagged/france" class="post-tag" title="show questions tagged &#39;france&#39;" aria-label="show questions tagged &#39;france&#39;" rel="tag" aria-labelledby="tag-france-tooltip-container">france</a>, minor factual errors do not matter.</p>
<p>Code Civil, <a href="https://www.legifrance.gouv.fr/codes/id/LEGISCTA000032041275/" rel="noreferrer">article 1188</a>:</p>
<blockquote>
<p>Le contrat s'interprète d'après la commune intention des parties plutôt qu'en s'arrêtant au sens littéral de ses termes.</p>
<p>Lorsque cette intention ne peut être décelée, le contrat s'interprète selon le sens que lui donnerait une personne raisonnable placée dans la même situation.</p>
</blockquote>
<blockquote>
<p>A contract is construed according to the common intention of both parties rather than by the literal meaning of its terms.</p>


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</blockquote>
<blockquote>
<p>A contract is construed according to the common intention of both parties rather than by the literal meaning of its terms.</p>
<p>When that intention cannot be ascertained, the contract is construed under the meaning that a reasonable person placed in the same situation [as the contracting parties] would assume.</p>
</blockquote>
<p>Any reasonable person would understand &quot;King Charles III, King of England&quot; to mean Charles Philip Arthur George, born on 14 November 1948, even if the title is incorrect. This would likely also be true with the imprecise wording &quot;Charles III&quot;, <a href="https://en.wikipedia.org/wiki/Charles_III_(disambiguation)" rel="noreferrer">even though there's a whole bunch of Charles IIIs</a> (most of which are deceased).</p>


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Question Title: Notice period of tenant to terminate apartment

Question Body: <p><a href="https://i.stack.imgur.com/v4FKt.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/v4FKt.png" alt="enter image description here" /></a>I have a apartment with fixed term. (10 month). in Contract it mentioned that,</p>
<blockquote>
<p>tenant can live in current month if noticed landlort before 15th of
each month. In this case no metter when tenant leave before 15 month,
landlort should pay only half of the price back. (take payment of 15
day).</p>
</blockquote>
<p>So, my question is, if above information mentioned in contract does 3 month notice period applies to tenant ? or according to the contract he can leave if inform before 15th day of month?</p>


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Answer 1: <p>There is nothing in that contract that says <em>anything</em> about 3 months notice period. The 3 months is the legal default for contracts that <em>do not expire</em> on their own, unlike yours, that has all properties of a limited time contract. I would personally see the detailed description of how you can end this contract as overriding any legal default.</p>
<p>But as always, with this specific contract in the original language, you need to see a lawyer to know for sure.</p>
<p>Your contract clearly states: you can leave your appartment whenever you want, even before the agreed upon time.</p>
<p>If you leave between the 15th and the end of a month, you have to pay for that month in full.</p>


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<p>If you leave between the 15th and the end of a month, you have to pay for that month in full.</p>
<p>If you leave between the 1st and the 14th of the month, you have to pay the fair share of the rent for the days you where there. So for example, on a 30 day month if you lived there for 10 days, you still have to pay a third of the rent and the landlord will return the rest if you paid for the month in advance. If you live there for 16 days, you have to pay for the full month and nothing will be returned if you paid for the month in advance.</p>


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<p>Please note that you need to &quot;hand over&quot; the vacated rental object during normal business hours. So don't go in there on the evening of the 14th at 16:59. And don't try to &quot;hand it over&quot; when you haven't moved your stuff out yet. At the hand over, you give the keys to the landlord and that is it, it is the last thing you do. Very likely your landlord will want to have a look at the rental object while you are there, so they can make sure it is all in order, you did not damage it or did not leave any of your stuff.</p>


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<p>Generally speaking, there is nothing your landlord could do to you if you decide to leave early. They cannot <em>make</em> you leave even earlier or any other retaliatory shenanigans you may have heard of in other countries. In Germany, such contracts are not adversarial. You don't need to keep it a secret to the last second. If you know you want to leave on a certain date, inform your land lord, make an appointment for the &quot;hand over&quot; well in advance and save yourself (and them) all the stress from doing things last minute.</p>


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Question Title: To what extent will Artificial Intelligence affect criminal court proceedings with respect to digital evidence?


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Question Body: <p>These days (2023) AI can produce convincing images and even videos that realistically portray people saying or doing things that they did not actually do. Currently we can employ experts to detect whether such images are genuine or not. However as technology progresses, this will become less-and-less feasible.  (Note, my background is in technology)</p>
<p>For example, one established method of making such fakes more realistic is to pit another AI against them. The second AI attempts to distinguish between real and fabricated images. The first AI then learns from this and tries to fool the second AI more effectively, and so on.</p>
<p>This purely machine-based co-evolution can happen very quickly and produces better and better fakes and better and better detectors. At some point, fakes will become so good that even other machines will not be able to detect the difference.</p>
<p>I see two problems with respect to presenting digital evidence in court:</p>
<ol>


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<p>I see two problems with respect to presenting digital evidence in court:</p>
<ol>
<li>The guilty can claim that any digital evidence is fake.</li>
<li>The innocent will be unable to produce any convincing digital alibi and could be portrayed doing something that they did not (perhaps by digitally-altered CCTV footage).</li>
</ol>
<p><em>Assuming</em> that there comes a time where digital fakes are completely indistinguishable from reality, how could this affect the working of current court proceedings? (Any justice system may be discussed)</p>
<hr />
<p><strong>Note</strong>
In case anyone thinks his cannot be answered objectively, I would counter that I am seeking specific information. I would like to gain an idea of the current usage and perceived importance of digital evidence in criminal proceedings as opposed to witness reports and other non-technological evidence. If technological evidence were no longer trustworthy, what would be left to rely on?</p>


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Answer 1: <p><strong>Chain of custody and testimony in this regard.</strong></p>
<p>Say there is a murder victim, with DNA of the suspect under the fingernails and a knife with the suspect's bloody fingerprints stuck in the chest.</p>
<p>There would be testimony what happened to the knife. If a paramedic removed it to attempt first aid, the paramedic would testify. So would the officer who bagged it, and the forensic analyst who took the fingerprints. A pathologist would testify if the knife was consistent with the stab wound (a careful pathologist could never swear that the knife was the cause of death, just that it matches). The pathologist would also testify how DNA was collected under the fingernails, and how it was sent to the lab. The defense may claim that the suspect also tried first aid, or that a corrupt cop forced the suspect to hold the knife. The court or jury then draw their conclusions from this and other testimony.</p>


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<p>Same here. A lifelike picture found on the web proves nothing. A witness who takes the stand to testify that he or she took a certain picture would be more credible. So would a forensic officer who testifies how she or he removed the data from a surveillance camera, checked for common signs of tampering, and then signed a copy of the data with a private key. (The signing shows no third-party tampering after collection, it is not evidence of integrity before that.)</p>


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<p>Years ago, in <a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a>, there was the case of a bank robber who claimed that a fleeing suspect had handed him a bag of money in the forest and then vanished. &quot;Prove it wasn't so,&quot; he demanded. &quot;You can't. So there is reasonable doubt.&quot; Well, the court found that the statement merely created <em>unreasonable</em> doubt, and the sentence was upheld on appeal.</p>


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Question Title: First criminal court trial with DNA evidence Idaho

Question Body: <p><strong>I'm wondering what was the first Idaho criminal court trial that admitted DNA evidence and led to defendant's conviction?</strong></p>
<p>The only thing I found is the following but the defendant pleaded guilty in that case.</p>
<p>State of Idaho v. Horsley;
May 1988;
DNA evidence admitted in rape case. Defendant convicted.
(LifeCodes)</p>
<p>Thank you!</p>


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Answer 1: <p><em>State v. Todd Horsley</em>, 117 Idaho 920, 792 P.2d 945 (Idaho 1990) is the first reported appellate case in Idaho involving DNA evidence (which was only a conditional plea bargain, reserving the appellate issue of the admissibility of the DNA evidence). The trial court judge was James R. Michaud in a trial in Bonner County. The conditional plea was entered sometime between February 8, 1988 and May 10, 1988, followed by an appeal to the Idaho Supreme Court argued on April 5, 1989 (the opinion contains a typo that in one instance states that the oral argument was on April 5, 1988 rather than April 5, 1989). The ruling was delayed due to the death of one of the justices who heard the oral argument and the resignation of another justice who heard to oral argument. The ruling was deferred until those two vacancies were filled and was made by the full reconstituted court on the basis of the briefing and a recording of the oral argument that was conducted on April 5,


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ruling was deferred until those two vacancies were filled and was made by the full reconstituted court on the basis of the briefing and a recording of the oral argument that was conducted on April 5, 1989.</p>


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<p>Another early appellate case involving a plea bargain was <em>State of Idaho v. Roy R. Garcia</em>, 126 Idaho 836, 892 P.2d 903 (Idaho App. 1995). This case was charged as a rape case with DNA evidence, but downgraded to a battery conviction in connection with a plea bargain entered mid-trial during a trial commenced on October 12, 1993 after two previous continuances were granted on speedy trial grounds. The court of appeals held that the speed trial objection was waived by the plea bargain.</p>


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<p>The first reported appellate case involving DNA evidence where the defendant was convicted following an evidentiary trial on the merits (in this case to a jury) was <em>State of Idaho v. Gene Allen Faught</em>, 127 Idaho 873, 908 P.2d 566 (Idaho 1995). The jury trial took place in March of 1994 and involved the defendant's alleged rape of his fourteen year old step-daughter (a conviction affirmed on appeal with the admission of the DNA evidence upheld as proper). The trial court judge was Judge George D. Carey presiding over a trial in Ada County.</p>


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<p>The underlying trial in the appellate case <em>State of Idaho v. Robert Andrew Amerson</em>, 129 Idaho 395, 925 P.2d 399 (Idaho App. 1996), however, commenced September 13, 1993 in Lincoln County before Judge Phillip M. Becker, and resulted in a conviction for the crimes of rape and robbery. The convictions were affirmed although the sentence was modified on appeal. This conviction took place in the trial court about six months before the conviction in <em>Fraught</em>.</p>


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<p>It is possible that there was an earlier case than either of these two cases in Idaho that did not result in an appeal because the defendant did not appeal the conviction. There is no good database with that kind of information, other than media reports. Unreported appellate decisions are also not always available. But given the novelty of DNA evidence at the time, the severity of the kind of charges typically proven with DNA evidence in its early days, and the right of a defendant to an appeal at state expense on a novel legal issue, it is fairly unlikely that the appellate cases listed overlook a trial court conviction following a trial that was based upon DNA evidence in Idaho.</p>


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<p>I included the full name of the defendant in these cases and other information not customarily mentioned in a summarized case report or citation in order to assist in the search for additional media reports, even though customary citation practice is to include only the surname of the defendant in the citation. It is possible that media reports from one of these earlier cases might allude to earlier cases where there was a conviction that was not appealed.</p>


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Question Body: <p>For a while now, there has been a lot of discussion about large language models such s ChatGPT of OpenAI. A major issue has been whether newly trained, open-source models can be used in a commercial setting or not if they were trained on synthetic data that was generated by OpenAI.</p>
<p>I read through all the related materials that I could find of OpenAI:</p>
<ul>
<li><a href="https://openai.com/policies/terms-of-use" rel="nofollow noreferrer">https://openai.com/policies/terms-of-use</a></li>
<li><a href="https://openai.com/policies/service-terms" rel="nofollow noreferrer">https://openai.com/policies/service-terms</a></li>
<li><a href="https://openai.com/policies/sharing-publication-policy" rel="nofollow noreferrer">https://openai.com/policies/sharing-publication-policy</a></li>
<li><a href="https://openai.com/policies/usage-policies" rel="nofollow noreferrer">https://openai.com/policies/usage-policies</a></li>
</ul>


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<li><a href="https://openai.com/policies/usage-policies" rel="nofollow noreferrer">https://openai.com/policies/usage-policies</a></li>
</ul>
<p>The only commercially restrictive &quot;legal speak&quot; that I can find is in the terms of use, 2c.iii:</p>
<blockquote>
<p>[You may not] use output from the Services to develop models that compete with OpenAI</p>
</blockquote>
<p>That is clear: the models that you create cannot be commercially usable. But what does that say about the data itself?</p>


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</blockquote>
<p>That is clear: the models that you create cannot be commercially usable. But what does that say about the data itself?</p>
<p>As far as I can tell, that does not imply that the license of a dataset should change (in case of changing/augmenting/updating an intial dataset and redistributing it) or that a dataset cannot be commercially licensable. The Terms of use are very specific in that respect: 1. <em>models</em> may not be developed; 2. these models may not compete with OpenAI. But it does not mention data. So if you generated a dataset with OpenAI tools, I believe that you can still use that data in a commercial setting - simply not to <strong>specifically</strong> build a model that competes with OpenAI's services.</p>


