By Elspeth Crawford Getting divorced and looking to save money? For a lot of people, the first thought that comes to mind that you might be able to save a few bucks by hiring one divorce lawyer for both you and your partner. It's not unheard of, but buyer be warned. An attorney is supposed to be your advocate, and sharing him with your ex might compromise the attorney's ability to perform that role. Here's what I mean. Let's say you and your partner have joint ownership of a car. As you're going through the divorce process, you will need to decide who will take full ownership of the car. Even if you both aspire to be as cooperative as possible, this is a zero sum game, and as a result, your interests are adverse to your partner. In this case, who will the attorney side with? If he sides with you, your partner will feel like he/she isn't getting the full benefit of the attorney fees that he's paying. If he sides with your partner, you will feel like you're not getting the full benefit of the attorney fees that you're paying. No matter how you toss the dice, someone is going to feel slighted. And the potential damage of this arrangement is not limited to you and your partner. Your attorney may also pay the price. Attorneys are required, by law, to avoid conflicts of interest. This is a rule that was set in place in order to protect you - the client. But if you, the client, ask your attorney to represent both yourself and your partner, you put your attorney in a very difficult position. If the state bar association finds out about it, your attorney could be punished. He or she may be forced to pay a steep fine, or even worse, lose his or her license to practice law. For all of these reasons, you and your partner should have separate attorneys. Sure, you could save a few dollars in attorney fees by hiring the same person, but if the underlying service doesn't live up to the price tag, is it worth it? More to the point, there are other ways that you can reduce the cost of divorce. For example, you and your partner can have a prenuptial agreement - this way, all of the contingencies will be worked through while tempers are calm. Also, you can practice the age old art of compromise. Finally, you can search for an attorney who is known for very affordable fees. In short, there are many ways to save money on divorce, and most of them don't involve compromising the quality of the services that you're paying for.
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By Elspeth Crawford Before you swipe a Google image for your next post, you might want to read further. Online Defamation Law Defamation is a false and unprivileged statement of fact that is harmful to someone's reputation and is published "with fault," meaning as a result of negligence or malice. If the defamed person is a public figure, then the statement must be published with “actual malice”. Posting defamatory content online (p.s., this includes more than blogging) bears the same weight as publishing it in a magazine. Defamation law requires merely that the statement be made to someone who is not the defamed subject of the statement. Be mindful of everything you post about a person. Posting “anonymously” does not protect you, and brings me to my next point. Blogging Anonymously If you operate an “anonymous” account, be it a blog or Twitter, you may be surprised to learn it’s not really anonymous. Every move you make online leaves a trail, a very easily accessible trail known as an IP address. If you’re making derogatory comments about someone, all they have to do is look at your IP address and can simply search it (for free) to discover who you are. Then, you could be staring at a cease and desist letter or a lawsuit complaint. Courts are taking a no-nonsense approach to defamatory statements online with the recent tragedies related to cyber-bullying, so: be nice, not naive. Sharing Content Everything you blog is protected by copyright. Your text, your images, your graphics, your videos – everything. All online content is copyrighted the second it is published. That makes you, or the author, the copyright owner. If someone uses your content without permission, you may ask them to take it down. If someone uses your content commercially (i.e. makes money from an image you published), you have a right to sue for compensation. However, every image and text and video that you pull off the Internet is copyrighted. This means, for example, if you use a Google image without permission of the author, you may be infringing on a copyright. Even if you link a source back to the author, it could still be copyright infringement. Removing copyrighted content will not remove legal liability. So: ask before taking and protect your own work. Links To date, courts have found that permalinks - links that lead readers to an internal page on a website - to web pages constitute neither copyright infringement nor trespass. To be clear, these are NOT source links. No court has enforced a site's terms of use that ban permalinking, so you are safe to use them. Comments Bloggers typically retain the discretion to publish comments on their site. When a person comments on a post, in most instances the commenter gives an implied license for the public display of that comment. This license also covers any subsequent copying of the comment. So: don’t write anything as a comment that you don’t want the whole world to see {and remember, commenting anonymously is not actually anonymous}. Images As I said above, all images online are subject to copyright unless they fall into a category called “Fair Use” in The Copyright Act (see 17 USC § 107). You may or may not be aware of the legal issues for which Pinterest has come under fire; this is why. Images online are, typically, not in the public domain, and believe it or not, you don’t have the right to use any of them without permission. Public domain includes works and documents produced by the federal government or a governmental agency, legal cases, state and federal statutes, quotations from existing works, and facts or ideas from existing works. So: before you use an image that you have not taken or created yourself, ask the copyright owner. Advertising Many blogs involve advertising; ads for companies, other blogs or sites, products, and more. Some blogs offer advertisements for the blog itself. Ads must comply with advertising laws set out by the Federal Trade Commission. The Policy Statement issued by the FTC states that you must have a reasonable basis for your objective claims before you initially disseminate them. Warning: the FTC vigorously enforces the requirement that advertisers must substantiate their express and implied claims, so advertise with caution. Giveaways Tons of bloggers use giveaways to reward their readers and increase traffic flow and followers. Most bloggers don’t realize that giveaways can be classified as an illegal lottery. The Federal Communications Commission (FCC) defines a lottery as “any game, contest or promotion that combines the elements of prize, chance and consideration.” In laymen’s terms, if your blog giveaway has a prize which will be won, winner(s) which will be randomly chosen, and a legal contract element known as “consideration” (paying, tweeting, “liking”, or following to enter the giveaway would qualify), then you are successfully running a lottery which is highly regulated at the federal and state level! Not all lotteries are illegal, but lotteries do come with strict rules, guidelines, and penalties. To avoid being heavily fined by the government, ensure that the giveaway guidelines clearly specify: who can enter, the duration of the giveaway, how the winner will be RANDOMLY chosen, consideration required for entry, and the prize. By Elspeth Crawford It’s so easy to Tweet. All you have to do is find something worth sharing, perhaps an interesting article or a thought about the last place you ate lunch or a picture of your new cat, find a way to express the information in less than 140 characters and hit ‘Tweet’. And then it’s out there, swimming among thousands of other Tweets for anyone on the World Wide Web to see. And according to the New York City Criminal Court, it can be used against you in a court of law. The case at issue, People v. Harris, involves a protester named Malcolm Harris who was involved with the Occupy Wall Street Movement last year. In October of 2011, he and several of his 99-percenter brethren were arrested for disorderly conduct as they attempted to cross the Brooklyn Street Bridge in contradiction of a police order. Now, prosecutors want to subpoena three months worth of Harris’ Tweets in the hopes of divining why he attempted to cross that bridge. Both Harris and the legal team at Twitter have tried to stop the subpoena. In striking them down, Judge Matthew A. Sciarrino, Jr. has pushed the law surrounding the legal status of Tweets in some interesting new directions. To start, Judge Sciarrino held in an April 20 ruling that Harris, who had filed a motion to quash the subpoena requesting his Tweets, did not have standing to make such a request, which is to say that he wasn’t legally allowed to ask that the subpoena be stopped. To back this up, Sciarrino quoted extensively from Twitter’s own Terms of Service, which provide that by posting a Tweet the tweeter grants to Twitter “a worldwide, non-exclusive, royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).” Judge Sciarrino read this and other provisions to mean that “…Tweets the defendant posted were not his.” Instead, the Tweets effectively belong to Twitter to do with them as they wish. In this case, Twitter did not wish to hand the Tweets over to the court. In its own motion to quash the subpoena, Twitter argued that Harris’ Tweets were protected by the Fourth Amendment, which secures the right of the people to be free from “unreasonable searches and seizures.” Sciarrino rejected this argument, saying that the Amendment does not cover Tweets due to their incredibly public nature. He analogized Tweeting to a man yelling something out his window above a crowded street, reasoning that if a passerby were later called to testify as to what the man said, they could do so because the man made it public information by screaming it to anyone who happened to be in earshot. Tweets are public statements, and according to Sciarrino there can be no reasonable expectation of privacy in posting one. If the government wants to get their hands on a Tweet for purposes of a trial, they can. And honestly, a much of this isn’t particularly shocking. Twitter is an inescapably public forum. Tweeting something means you want it to at least be read by your followers and, more likely, by anyone else who happens to be interested in the topic. Every Tweet is published for all round the world to see, so to turn around after posting one and claim that no one’s allowed to look at it seems to run counter to common sense. Sciarrino also goes out of his way to distinguish Tweets, which are public, from private messages and e-mail, which are private and deserving of higher levels of protection. Also, the ruling is pretty well versed on the subject of Twitter and includes some good descriptions of what the service is and what it does, which goes against the conventional wisdom that all judges are technophobes who would prefer to write their rulings with ink and quill if it weren't for those meddlesome young people. Even if some of the decisions here get overturned on appeal, it’s frankly nice to have some clarification on issues which up to this point have remained mainly in the realm of speculation. More and more lawyers are claiming to be “social media specialists” but because the law in that area is so unformed it’s often not clear just what that means. Rulings like this at least provide some clarity. Do you think Tweets should be protected by the Fourth Amendment? Can people expect to maintain control over information they post to the public at large? Let us know in the comments. By Elspeth Crawford Spiders, bots and crawlers: Oh MY! Most everyone who has a website or online social media profile is victim of web scraping, whether they know it or not. What is web scraping? Web scraping is a technique used by web crawlers, or bots, to extract information from websites. Collected information is transformed into structured data that can be stored and analyzed, typically in a database or spreadsheet. This technology drives a substantial amount of business, and many companies’ viability relies on it. However, controversy can arise when commercial companies use scraping software to collect substantial amounts of data from websites for their own profit. When does web scraping violate website’s terms of use? Web scraping is used for many reasons, including price comparisons and targeted advertising. Often websites prohibit scraping through their terms of use. There are two types of terms of use online: clickwrap and browsewrap. Clickwrap terms require the user to click in agreement with the terms of use. Browsewrap terms are simply listed on the website, without requiring any action. Consequently, if the user never saw the terms of use, there was no contract formed because there was no ‘meeting of the minds’. What are legal risks for businesses that use web scraping? Companies using web scraping can be subject to legal risks, but under current law, it is unclear what crawlers can and cannot do. A large risk at issue with web crawlers is the unanswered question behind breaking terms and conditions of websites when scraping information. The law is unclear as to whether that activity amounts to trespass to chattels or breach of contract. Some website owners’ claims have been viable in these situations, so there is a risk. When the scraper uses the scraped information commercially, they will likely be subject to more liability. Additionally, if the scraper collects copyrighted information, its operators could be liable for infringement. Can web scraping give rise to a trespass to chattels action? Trespass to chattels is a tort claim arising when a party has intentionally interfered with another person's lawful possession of movable personal property. Because, traditionally, trespass to chattels has included dispossession of the property by taking it, destroying it, or barring the owner's access to it, it has been argued in the digital age that websites are considered as chattels. In eBay v. Bidder’s Edge, a notable claim involving scraping as “illegal data mining," a California court held that the thousands of queries a day, electronic signals retrieving information from eBay’s system, by Bidder’s Edge were sufficiently tangible to constitute a trespass action. However, eBay had not actually suffered any injury or harm from the trespass. While the court acknowledged this, they stated that eBay was not required to wait until they suffered harm before they sought an injunction. The Supreme Court of California interpreted the eBay decision further in Intel v. Hamidi, stating that showing a risk of future harm substantiated claims of Internet trespass to chattels. Accordingly, to determine if there is a substantial likelihood of future harm, a court should look to the volume or frequency of interferences. Subsequent courts in other jurisdictions have applied this analysis, requiring that the plaintiff demonstrate damage, or substantial risk of future damage, to their computer system. Thus, the degree of protection for online content is not settled, and will depend on the type of access made by the scraper, the amount of information accessed and copied, the degree to which the access adversely affects the site owner’s system, and the types and manner of prohibitions on such activity. Can web scraping give rise to a breach of contract action? In regard to breach of contract claims for violating a site’s terms of service, the United States Court of Appeals for the Second Circuit held in Specht v. Netscape Communications Corp. that terms of use are not enforceable if there is not reasonable notice of the existence of the terms and unambiguous consent to that license. Merely clicking on a button does not show assent to license terms if those terms were not obvious and if it was not explicit to the consumer that clicking meant agreeing to the license. California courts went on to determine in Ticketmaster Corp v. Tickets.com, Inc. that a hyperlink to the terms of use placed in the footer of a web page does not constitute prominent notice of those terms. However, if the terms are prominent, then a user will be held to the terms on inquiry notice. Clickwrap agreements seem to carry more weight, as a Texas state court found grounds of trespass to chattels and breach of contract in American Airlines, Inc. v. Farechase, Inc. The court enforced an 'if you use this site, you agree' terms of service statement on American Airlines websites, and enjoined software company Farechase from accessing and scraping data to redistribute and sell it to travel agents and online travel systems. Can web scraping give rise to a copyright infringement action? Scraping, generally, raises some copyright law issues. Visiting a copyrighted website temporarily for the purpose of extracting factual information and reproducing it does not violate website owner’s copyright. Any factual information that is extracted is protected under fair use in The Copyright Act. However, if the extracted information is a copyrighted work, the scraper may be subject to copyright liability. The Digital Millennium Copyright Act of 1998 was enacted to control and regulate copyright issues in a technological world. Section 1201(a)(1) of the DMCA states “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” This provision speaks to web scraping, particularly when bots avoid measures that website owners make to protect their content. What types of damages have been awarded in previous web scraping cases? Typically, injunctions are the only remedies sought. A plaintiff in a case against a scraper must show substantial harm in order to receive damages. Courts have generally not awarded damages, only injunctions, in cases involving web scraping. It seems that the design and nature of the crawled web sites determines the legal liability, versus the actual activity of the crawler itself. If your business operates scraping technology, be wary of what you crawl! If you operate a website, check out these tips to create an effective user policy. By Elspeth Crawford No one likes it when people spread lies behind their back. If someone has done this to you, you may be entitled to sue that person under the law of defamation. Defamation occurs when someone else says or tells another person a false statement about you that damages your reputation or good name. Defamation comes in a couple of different varieties. Defamation through writing is called “libel.” Spoken defamation is called "slander." Libel Libel is written defamation. It can come in many forms: through a blurb in a newspaper article, a memo circulated around an office, an e-mail, and more. In order to recover against someone who has committed a libel against you, you must show that the written statement was:
Also know that libel is not limited to written statements. Libel also encompasses offensive pictures, caricatures, statutes, and effigies that meet the above requirements. Keep that in mind the next time you make an offensive wood carving. Slander Unlike libel, slander is spoken rather than written. If someone says something offensive and untrue about you to another person and it damages your reputation, you may be able to sue for slander. Slander has the same basic requirements as libel, that is the statement must be defamatory, must be published to at least one other person, and must be said with some degree of fault. In fact, some states don’t have separate laws for libel and slander but treat both the same. Still, there are a few wrinkles that make slander unique.
Defenses If you’re sued for defamation, know that there are some situations in which you are not liable. These situations include:
If you are ever sued for defamation, the best course of action is to consult an attorney, as there are subtleties to using any of these defenses which a lawyer will more readily understand. Damages If you've been defamed, you may be entitled to receive a monetary award to compensate for your damaged reputation or lost business. The process of proving the amount of the award can be difficult and could require extensive negotiations or a trial. If the defamation was particularly reprehensible, you might also collect "punitive damages," which exist to punish people beyond the amount it would take to merely compensate a defamed person for their losses. By Elspeth Crawford Statutes of limitations are laws that set deadlines after which a lawsuit based on specified crimes may not be filed. The point of statutes of limitations is to guard against the corruption of evidence, the decay of memory, and to encourage potential plaintiffs to resolve issues in the courts as quickly and efficiently as possible. Tolling of the Statute of Limitations and Statutes of Repose. Statutes of limitations do not necessarily begin to run directly after the crime in question occurs. There are certain circumstances under which the statute of limitations is tolled until the happening of a later event. These include:
Note, however, that in addition to statutes of limitations some crimes are also governed by statutes of repose, laws which impose cut-off dates much in the manner of statutes of limitations but which are not affected by the Discovery Rule. In our medical malpractice example above, the statute of repose begins to run when the accident occurred, even if the statute of limitation did not start to run until its discovery. When filing a lawsuit, be sure to consult your attorney concerning statutes of limitations, statutes of repose, and how the two interact with each other. Exceptions. There are a few crimes and situations to which statutes of limitations do not apply. These include:
Sample Statutes of Limitations. The lengths of statutes of limitations differ state-by-state and action-by-action. Here is a list of some common ones with accompanying limitations periods: Negligence for personal injury: 1 to 2 years. Breach of oral contract: 2 to 6 years. Breach of written contract: 3 to 6 years. Fraud or mistake: 3 to 6 years from date of discovery. Property damage: 2 to 10 years. Collection of federal income taxes: 10 years. Copyright infringement: 3 years. If you'd like to speak to an attorney regarding the North Carolina Statute of Limitations, contact Adkins Law. Adkins Law is located in Huntersville, North Carolina and primarily serves Mecklenburg County and the Lake Norman area. By Elspeth Crawford It’s happened to all of us. You’re tooling around the internet, checking your mail or reading the news, and you see something, a picture or an article or a Panini recipe or whatever, that piques your interest. Hovering near the item is a tiny blue button labeled ‘Like,’ and by clicking it you announce to 200 or more of your closest Facebook friends that you do, indeed, Like it. This happens every minute of every day, and a federal court in Virginia doesn’t think it counts as protected speech under the First Amendment of the United States Constitution. The case in question, Bland v. Roberts, was brought by a group of employees contesting their termination from the staff of Sheriff B.J. Roberts. Roberts claimed that he fired the employees due to poor performance and because their actions "hindered the harmony and efficiency of the office." One of the employees, Daniel Ray Carter, claims he was fired because he ‘Liked’ the Facebook page of Jim Adams, Robert’s political opponent. Generally, the First Amendment forbids public employers from firing public employees merely because the employees exercised their rights to free speech. The judicial process for determining whether protection applies is a long one. The court has to decide things like whether the employee spoke about a matter of public concern, whether the employee’s interest in making the statement outweighed any opposing governmental interest, and whether the speech was a substantial factor in the termination. In the Bland case, U.S. District Judge Raymond Jackson avoids this analysis entirely by deciding that ‘Liking’ something through Facebook isn’t speech in the first place. Jackson acknowledges that courts have granted First Amendment protection to Facebook posts in the past, but he notes that those cases involved “actual statements,” worded messages that required more than the mere click of a mouse. Merely ‘Liking’ a Facebook page, Jackson reasons, is “insufficient” and “not the kind of substantive statement that has previously warranted constitutional protection.” The ruling is problematic from both a legal and a common sense perspective. Legally, it appears at odds with a large body of Supreme Court precedent that has afforded free speech protection to a wide variety of symbolic acts, including the wearing of black armbands to protest war or the burning of the American flag. Even Jackson acknowledges that something as innocuous as displaying a bumper sticker could count as protected speech. Common sense-wise, the opinion is equally puzzling. When you ‘Like’ something through or on Facebook, you endorse it in a clear, if non-committal, way. Cases like this one, where the plaintiff used a ‘Like’ to express his support for a political candidate, almost seem tailor-made for protection. The ruling has attracted its share of critics, and many agree that the case is ripe for an appeal. UCLA School of Law Professor Eugene Volokh argues on his blog that while a Facebook 'Like' is not a “highly detailed” form of expression, it is still “a means of conveying a message of support for the thing you’re liking” and is therefore due First Amendment protection. Eric Goldman, an Associate Professor at Santa Clara University School of Law, suggests that Judge Jackson’s confusion over the technical issues involved prevented him from making a better-reasoned ruling. Do you think that ‘Liking’ something on Facebook is a form of expression substantial enough to deserve First Amendment protection? Is the judicial system behind the times when it comes to technology? And will rulings like this one make you change the way you use social media? If you’ve received a citation, or were arrested and charged with a misdemeanor in Huntersville NC, you may wonder what options you have and what your journey will be like moving forward. A misdemeanor is one of three types of offenses, and carries a penalty more serious than an infraction, but less serious than a felony. The summons or citation will state what the charges against you are, and the scheduled day and time of your initial court appearance. If you know that you would like to contact a Huntersville criminal defense attorney concerning your charges, you probably want to do so before your initial court hearing (also known as an arraignment). By doing so, your Huntersville lawyer can guide you on your plea and possible penalties before you are before the judge. If you wish to represent yourself, you will need to familiarize yourself with the law and proceedings surrounding the offense with which you’ve been charged. If you wish to be represented by a lawyer but cannot afford one, you will be given the opportunity to apply for a court-appointed lawyer at your initial hearing. If you fail to present yourself at your arraignment, you may be charged with an additional offense known as failure to appear. This is a misdemeanor, and if committed, a court will likely issue a warrant for your arrest. On the day of the arraignment, you should arrive to the courthouse at least 15 minutes early and dress conservatively and professionally. You are often required to check in at the clerk’s office. Before your hearing, you are given a legal rights form which explains your rights before your case is called by the judge. Once your case is called, the judge will tell you what the charges are against you and the possible penalties from those offenses. Then the judge will ask if you need court-appointed legal representation, which are only available is jail time is a possible penalty. If you do want a court-appointed lawyer, you will have to fill out a form and answer questions about your finances to make sure you qualify. Next in the hearing, the judge will ask you if you plead guilty or not guilty. If you do not know which to plead, ask the judge to reschedule your initial appearance so you can talk to a lawyer. If you plead not guilty, it will allow you time to talk to a lawyer before your next appearance and requires the prosecution to prove its case. If you plead guilty, you admit that you committed the charges against you, you give up your right to trial, and you give up your right to remain silent. The judge will then decide your sentence. If you pled not guilty, you have the right to a bench or jury trial. If you choose a bench trial you will only be before a judge and he or she will decide if you are guilty. These typically can take place in an hour or so. In a jury trial, the decision of guilty or not guilty is determined by six members of the community and could last a couple of days. Before any trial, a pretrial conference takes place. Either you or your attorney will receive a notice of the date and time. You must attend the pretrial conference, and also have the opportunity to discuss plea bargaining with the prosecution. Any other issues that need to be resolved are done so at this conference. After either a bench trial or jury trial, the judge will decide the sentence. Sometimes the judge will do so the same day as the trial, but sometimes sentencing may be scheduled for a different day. The judge will ask if there is anything you have to say before he or she decides your penalty. For misdemeanors, penalties include jail (usually only up to one year), driver’s license suspension, fines, court costs, community service, probation, and restitution, which is money paid to the victim to cover costs they incurred. Typically the penalty is effective immediately at the time of sentencing. If you can't appear at the scheduled time, contact your Huntersville defense attorney or the court as soon as possible. If the court is contacted ahead of time and if you have a good reason, the court may reschedule your case. The court requires compelling reasons before it excuses a failure to appear. |
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