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Re: Which license am I looking for?



On Tuesday 20 January 2009 12:49:28 pm Anthony W. Youngman wrote:
> In message <[🔎] 200901191340.03678.skellogg@gmail.com>, Sean Kellogg 
> <skellogg@gmail.com> writes
> >On Monday 19 January 2009 11:59:13 am Anthony W. Youngman wrote:
> >> In message <[🔎] 200901191101.08985.skellogg@gmail.com>, Sean Kellogg
> >> <skellogg@gmail.com> writes
> >> >Stated a tad more fairly to those who have asked Fancesco to add
> >> >disclaimers... Francesco has a tendency to state opinions a little too
> >> >"matter-of-factly" for some d-l participents, leading those who
> >> >disagree to accuse him of the cardinal sin of "giving legal advice,"
> >> >which is illegal in many jurisdictions (certainly the United States)
> >> >without proper certification. However, I agree with Ben that the
> >> >disclaimers are ludicrous... not because they are unecessary, but
> >> >because they are insufficient. You either are, or are not, giving legal
> >> >advice, and no amount of disclaimers changes that. One cannot say "you
> >> >should phrase your license X, Y, and Z... but this isn't legal advice".
> >> >It is, and if someone where to suffer economic harm by following said
> >> >advice, they would have grounds to bring suit against you for
> >> >malpractice and praciting without a license.
> >>
> >> Are you an American? (I think you are)
> >
> >I am... is this a problem?
> 
> No it's not a problem at all. What IS the problem is that you are 
> telling me I should abide by American law, when I am not American, have 
> only ever ONCE set foot on American soil, and have no desire to do so 
> again.

That's a shame. It's a very lovely country, with lots to see and do. I don't think I've ever been to a country that I could categorically state I would never wish to return. I hesitate to wonder what horrible thing we must have done to earn such hate from you. I hope some day you reconsider and come visit us in all of our many triumphs and failures.

> >> Bearing in mind this mailing list is INTERNATIONAL, and Francesco is
> >> posting from a .it address (and I'm posting from a .uk address), me
> >> certainly and Francesco too I suspect find this attitude somewhat
> >> parochial (and ludicrous).
> >
> >I'm not entirely certain why the fact that the list is international 
> >means anything? The individuals who participate live *somewhere* and 
> >the laws of those somewheres apply. Everyone who participates on this 
> >list subjects themselves, in part, to the laws of those they reply to. 
> >Yes, there are jurisdictional issues, but that's different from the law 
> >itself.
> 
> That's called "extra-territoriality", which is frowned upon in most 
> civilised jurisdictions ...

I honestly don't know what you are talking about here... I do know that Germany, for example, has a universal jurisdiction statute for human rights violations, allowing them to bring suit against anyone, anywhere, for violation of that statute. Of course, you've got a problem with enforcement, but you are still certainly breaking the German law if you commit human rights violations beyond their territory. Is Germany not a civilized jurisdiction?

> >> No offence to you, but it really doesn't go down well when Americans try
> >> to enforce their standards (ludicrous, sensible or otherwise) on foreign
> >> nations and nationals.
> >
> >I am somewhat at a loss... just as Francesco is in Italy, I am in the 
> >United States, and if he were to give me legal advice, he would be in 
> >violation of California statutes. Perhaps violating other country's 
> >laws doesn't bother him... perhaps he can simply declare my laws as 
> >"irrelevant"... but it would not be my advice, as I very much wonder 
> >what the controlling law would be when someone gives advice to another 
> >with knowledge that they are in a jurisdiction that requires a license 
> >even though they don't have one. Certainly if I were to give advice to 
> >someone in Utah, even though I live in California, I could be hauled 
> >into a Utah court... even though the legal practice law in a State law 
> >not a federal one. Even easier, the Utah fellow could sue me in a CA 
> >court under their own laws.
> 
> But surely, in order to do so, you must have broken a Federal statute? 
> Not knowing the American legal system, I find it very odd that you could 
> be sued in Utah, or in California under Utah law, if you've never been 
> anywhere near Utah.

Nope, in the federal system a state can enforce the laws of another state if it so chooses. It's not required to, and in practice, most folks would remove the case to federal jurisdiction. But with federal removal, you've got a Federal Court, applying a state law, against a resident of a different state. Happens all the time.

Now, I didn't do very much international law during law school (I focused on intellectual property... surprise, surprise). But, I seem to recall there are instances where a foreign court applies the laws of another country. Of course, you've got to have the right sort of treaties in place, but it can happen. There is even a famous case of a Japenese company sueing another Japanese company, under U.S. law in a U.S. court. Neither actually *did* anything in the U.S., so the case was eventually thrown out... but it got all the way to the Supreme Court.

This is different than the question of jurisdiction, which is whether or not a California Court could enforce its laws against a foreign national. That has to do with sufficient contacts to establish jurisdiction, and that's where you get into questions like "how often have you been there", "what sort of economic/social ties to you have", etc, etc. 
  
> Mind you, if that's the case, maybe that's why Americans think American 
> law can be enforced outside their own borders, if State law can be 
> enforced outside of a state's borders.

We think it if the treaties between the nations allow for it. I know it has happened in the past, I really can't speak with any authority as to how often that happens and what sorts of law it covers. But in the world of torts (which is what we are talking about), I wouldn't be at all surprise to learn that I can bring a tort suit against a foreign national in their own jurisdiction but under *my* law. Understand the very important distinction between a criminal case and a civil case, such as torts. Different concepts, different policy objectives, different enforcement.

> >Not entirely certain what an Italian court would make of the claim of 
> >violating U.S. laws on the subject. He might get of free; I don't think 
> >it would be pretty. But, by all means, stick your head in the ground 
> >and complain about American parochialism, it's realy no skin off my knees.
> >
> >Incedently, as far as I can tell, the UK doesn't have the same sort of 
> >blanked practice requirement as the United States does, but it does 
> >have some areas of law that require you to certified as one of four 
> >different types of legal professionals. I didn't bother to look it up, 
> >because I don't honestly care -- whatever it is, it's going to be less 
> >strict than the rules I must follow -- but perhaps you might want to 
> >look it up, since you are so certain my suggestion about legal advice 
> >does not apply to you.
> >
> As far as I am aware, UK rules basically forbid TRADING as a 
> professional if you are not professionally qualified. To give a simple 
> example, I can instruct anybody how to drive - in the UK we have 
> something called a "provisional driving licence" which allows people to 
> drive with various restrictions on what they're allowed to do. What I 
> CANNOT do is charge someone for teaching them, unless I'm qualified to 
> do so. With the exception of medicine, I think that's true for pretty 
> much ALL the regulated professions.
> 
> Actually - the requirements for practising law are less strict than 
> that! My mother is a qualified Secretary (that's not a typist - it's a 
> qualification that allows her to practice a (restricted) form of law). 
> Every company MUST have a Company Secretary, who is responsible for 
> keeping the company within the law, and who is legally personally liable 
> for actions of the company. (Technically, they are responsible for 
> proactively keeping the company legal, and can be personally fined or 
> jailed for illegal actions by the company of which they should have made 
> themselves aware.) But for small companies (under about $3M turnover) 
> there is no requirement for them to be qualified in any way shape or 
> form whatsoever. Above that, they must have legal, accountancy or 
> secretarial qualifications.

Could be. I just did some quick research on the topic before my last reply.

> But anyway. I'll give your claims the respect they deserve - and do a 
> "reductio ad absurdam" on them! Do you remember the Dmitry Sklyarov 
> affair? He wrote a cracker for Adobe's software. He wrote it IN RUSSIA, 
> as was REQUIRED by Russian law, and then the Feds arrested him when he 
> went to America, for his actions that were not only legal when and where 
> he did them, but were required by the local law!
> 
> What am I supposed to do, if my local law REQUIRES me to do something to 
> which American sensibilities take offence?

First off, I marched in those protests. I followed the case pretty closely, and I the claims of "required by local law" were dubious at best. But Sklyarov came into U.S. soil and gave a presentation on how to do something and put him in violation of the DMCA. Now, I'm no fan of the DMCA, but this isn't a conversation about the wisdom of the law.
 
> Unfortunately, it's attitudes like yours which result in things like 
> this...
> 
> Dry Roast Peanuts
> Caution! This product may contain nuts!
> 
> And I believe this really has appeared on product packaging !!! But 
> don't expect the typical European to pay much respect to the lunatic 
> American legal system (as an example, how long has the SCOG drama 
> dragged on in the US? They actually tried the same thing in Germany - 
> and within weeks were slapped down by a "put up or shut up" injunction).

Sure is, and so what? People... lots of people... have died from peanuts being in food. So, as a matter of course, we require that food products made in this country disclose whether or not peanuts are in the food, or even made in a facility where other peanut products are produced. This cost manufactures effectively NOTHING to add to the package, and in exchange, we save lives. Seems like a decent trade, and it's made possible by our civil tort system. Pretty neat, if you ask me!

-Sean

-- 
Sean Kellogg
e: skellogg@gmail.com
w: http://blog.probonogeek.org/

Change will not come if we wait for some other person or some other time. 
We are the ones we've been waiting for. 
We are the change that we seek. 


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