Acct 215 Business Law Exam 2
Exclusionary rule (fairness)
any evidence that is obtained in violation of the accused's constitutional rights is automatically excluded at trial
Indemnify
any losses a big corp. because of a product, then the manufacturer must be responsible for some of it. (Walmart and Nike)
Danger invites rescue
just because a 3rd party was negligent does not relieve defendant of liability if he created danger that invited 3rd party rescue
Fraud
knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment
Identity theft
knowingly transfer or use another person's identity without authorization with the intent to commit a crime
General damages
not calculated by a precises model but meant to compensate plaintiff
Contributory negligence
plaintiff contributes fault then he is out of here
Assumption of risk
plaintiff entered the situation knowing the risk (part of the game)
Tort of Negligence
plaintiff is injured because of defendant's breach of a duty of care
Vicarious liability
occurs when 1 person is made liable without personal fault for the bad conduct of someone else
Responsible corporate officer doctrine
officers may also be criminally liable for criminal acts of employees, even if they didn't know about the act, if he or she fails to meet their responsibilities as corporate leaders to ensure compliance with the law
Tortfeasor
one who commits a tort
Slander
oral defamation
Search warrant
order granted by a public authority, such as a judge, that authorizes law enforcement personnel to search particular premises or property
Self defense
person may be justified in using force against another person, but there are limits
Tippee
person who gets the tip, only liable if they knew the information was not public
Tipper
person who gives the tip
Trespass
person without permission enters above or below the surfaces or causes something to enter above or below the surface of another's real property
Libel
written statement of defamation
Intentional tort
wrongful act that was knowingly committed
Unintentional tort
wrongful act that was not knowingly committed
Defamation
wrongfully hurting a person's good reputation by stating an untruth
Blackmail
wrongfully obtaining assets by threat
Extortion
wrongfully using public office to obtain assets from a victim
Statute of limitations
Depends on crimes as well as other factors such as the triggering event. Time after crime is committed where a person can no longer be trialed for their crime
4 Questions to Tort
Did the defendant owe the plaintiff a duty of care? Did the defendant breach that duty? Did the plaintiff suffer a recognizable injury? Was the defendant's breach the factual and proximate cause of the plaintiff's injury?(NEED TO BE BOTH)
Violent crimes
Homicide, rape, assault
Public order crimes
Intoxication and prostitution
Design Patent
covers ornamental features of a product (14 years)
Plant Patent
covers strains of asexually reproducing plants (20 years)
Utility patents
covers the way something works, how the pieces/parts interact (20 years)
US vs Park
*1974 man of national food store chain, charged and convicted of violating the Federal Food, Drug, and Cosmetic Act of 1938, because of food contaminated by rodents *Man stated he had delegated responsibility for sanitation to "dependable subordinates" and that he had no personal involvement in violating criminal statute *Supreme Court held man to responsibility to ensure the sanitary condition of food he stored and shipped. His conviction was affirmed
Intentional infliction of emotional distress
*Behavior has to be outrageous and intentional You have to prove some type of physical pain or suffering
Star athletica vs Varsity Brands
*Case about copyright infringement *Design of cheerleader uniform *Favor of protecting the design
State vs Casey's
*Cashier sells alcohol to minor *Store claims it was cashier's doing *Store held criminally liable through vicarious liability *Supreme court reverses on appeal because conduct wasn't "authorized, requested, or tolerated"
White vs Samsung
*Commercial shows robot with blonde wig turning letters similar to wheel of fortune *Vanna was awarded $403,000 because commercial made it appear like her
Qualitex vs Jacobson Products Co.
*Company started using a color on its products which was very similar to that used by other company *Supreme Court held that a color can be trademarked as customers might identify a product by its color
Fraud
*Defendant made misrepresentation *Defendant knew the deception *Defendant intended to influence plaintiff to act or refrain *Plaintiff justifiably relied on defendant's misrepresentation *Plaintiff was damaged as a result
Different pleas
*Guilty: I did it *Not guilty: I didn't go it *Nolo contendere: I am not saying I did it but I will accepts the consequences
Digital Millennium Copyright Act (DMCA)
*Meant to adapt copyright law to digital technologies *Significant feature is safe harbor provision that protects innocent online service providers from liability for acts of users *File sharing services such as Napster and Grokster were found liable for infringement
Software and copyrights
*Patent protection might be available for the function or process of the software *Copyright protection might be available for source code and object code
Liebeck vs Mcdonalds
*Person injured by coffee which was too hot *Company had notices of extremely hot coffee *Won $600,000 in punitive damages
Copyright infringement
*Plaintiff must show ownership of copyright and unauthorized copying *For willful infringement and enhanced damages plaintiff must show knowledge or reckless disregard by defendant *Remedies available for successful plaintiffs include injunctions and monetary awards
Palsgraf vs Long Island Railroad
*Plaintiff waiting at train station *Fireworks blow up from guy being pushed onto train *Scale falls on plaintiff *Plaintiff lost because the harm was not foreseeable
4th Amendment protections
*Search warrant *Probable cause
6th Amendment protection
*Speedy/public trial *Impartial jury (facing 6 months of prison) *Informed of all charges against you *Confront all witnesses *Production of favorable witnesses *Attorney
Invasion of privacy
1. Publishes information that places plaintiff in a false light 2. Publicly discloses facts about plaintiff that a reasonable person would find objective or embarrassing 3. Uses NIL of plaintiff without permission for commercial 4. Invaded person's home or private paper
Wrongful interference with a contractual relationship
1. Valid enforceable contract must exist between 2 parties 2. Defendant knew the contract expired 3. Defendant intentionally cause either of the 2 parties of the contract to breach the contract 4. Plaintiff was injured
Work for hire
120 years after creation or 95 years after publication whichever is shorter
Assault
Actions intended to make another person fearful of immediate physical harm. (not touching)
Property crimes
Burglary, larceny, arson, forgery
Defamation per se
Common law has 4 false statements which require no proof of damages in order for the plaintiff to recover. 1. Plaintiff is incompetent and/or immoral 2. Plaintiff has a loathsome disease such as leprosy 3. Plaintiff is sexually promiscuous 4. Plaintiff had committed a criminal act
Comparative fault
Ex. Todd hits George, but George was on his phone so each take a hit of the fault. Todd gets 80% fault and George gets 20%.
Negligence defense
Injury must result for damages to be awarded, and plaintiff must prove causation
Right of due process
Minimum you must be given notice and a hearing before you can be deprived of life, liberty, or property
5th Amendment Protection
Protection from double jeopardy Right against self incrimination Right of due process
Model Penal Code
Purpose, knowledge, recklessness, and negligence
Negligence per se
Violating the law, apartment fire. Plaintiff must prove they were owed a duty of care, defendant committed the conduct prohibited, and statute was designed to prevent injury.
Phishing
accessing another's computer or personal information through electronic deception with the intent to use that information to commit a fraud
Receiving stolen goods
act of receiving property that the defendant knew or should have known was stolen with the intent to deprive the real owner of such property
Causation in fact
act or omission caused the damage
Actual authority
acting with direct knowledge and permission of the corporation
International law
agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)
Continuation in part application
allows for new material in the application, not just different claims
Dilution
allows parties to sue when products are not similar even if confusion is unlikely
Dram shop act
allows plaintiff injured by intoxicated tortfeasor to sue the establishment that negligently served too much alcohol to tortfeasor
Continuation application
application with different claims that the 1st patent application filed
Burglary
breaking and entering into the dwelling house of another at nighttime with the intent to commit a felony
Birbery
bribing public officials. Need intent, anything of value can be offered, and crime occurs at the time the bribe is offered
Parody
can be copyrighted but a copyright holder cannot sue the creator of a parody of their work
Stand your ground laws
can use lethal force without retreat if acting in self defense
Castle doctrine
can use lethal force without retreating if attacked in your own home
Double jeopardy
can't be tried for a crime a second time if found "not guilty" the first time
Wrongful interference with a prospective business advantage
can't engage in malicious behavior but only competitive behavior
Miranda vs Arizona
case held that police must advise you of your constitutional rights before subjecting you to custodial interrogation
Keeping the secret
causes of action for disclosure of trade secret
Compensatory damages
compensate plaintiff for loss suffered
Res Ipsa Loquitur
control of a specific company. Ex. Something falls on you at grocery store
Special damages
costs incurred out of pocket
Comparative negligence
court looks at fault of the defendant and compares it to the fault of the plaintiff
Arriangment
court proceeding in which defendant hears charges in court and enters a plea
Theft
crimes involve a defendant either taking the property of another or interfering with their use of it
Actus reus
criminal or guilty act (actual act)
Mens Rea
criminal or guilty mind
Miranda rights
criminal suspect "must be warned prior to any questions that he has the right to remain silent, that anything he says can be used against him in a court, of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desire
Liquidated damages
damages required by state statute and awarded in tort cases
Plea bargaining
defendant and prosecution enter into a deal and the defendant get a more lenient sentence
Initial appearance
defendant appears before judge
Strict liability
defendant engage in severely dangerous activities
Contributory infringement
defendant induces, causes, or materially contributes to infringement (knowledge required)
Criminal trespass
defendant knowingly interferes with another's property rights
Slander of title
defendant makes untrue statement which cause a 3rd party to doubt the plaintiff's ownership of the property
Slander of property
defendant makes untrue statements which decrease the value of plaintiff's property
Vicarious infringement
defendant receives a benefit from infringement and has the liability to control the infringer's conduct (no knowledge requirement)
Public nuisance
defendant's use of property substantially interfere with a group of landowners
Private nuisance
defendant's use of their property interferes the plaintiff's use of their property
Criminal law
defines what a crime is
Cybersquatting
domain name that contains or is very similar to a well known mark
Reasonable care
duty to act with reasonable care towards others based upon a reasonable person standard
Racketeer Influenced and Corrupt Organizations Act (RICO)
enables prosecution of criminal organization bosses for the crimes of their subordinates. The criminal acts are imputed as part of a larger criminal enterprise
Fair use
exception to infringement that considers 4 factors 1. Nature of the use 2. Nature of the copyrighted work 3. Amount and character of portion used 4. Effect of the use on economic value of work
Copyright
exclusive right to exploit certain creative works
Prior art
existing information or concepts which proves the invention is not novel or new
Mistake of law
generally not a defense, citizens are assumed to know the law
Cybercrimes
hacking and phising
Sentencing guidelines
help judge determine the sentence which is imposed
Idea expression dichotomy
if idea cannot be separated from its expression, then no copyright protection
Patent infringement
infringement requires unauthorized making, using, selling, or importing of invention
Scienter
intent to decieve
False Imprisonment
intentional confinement or restraint of another person's activities without justification
Theft of trade secrets
intentional taking, copying, or using another's trade secrets with the knowledge the owner of the trade secret will be injured by such action
Criminal mischief
intentionally causing damage to another's property
Obtaining good by false pretenses
intentionally misrepresenting a material fact to a person in order to persuade another to transfer property
Trespass to personal property
interfering with the use of another's personal property
Involuntary intoxication
intoxication on the part of the defendant was not intentional
Voluntary intoxication
intoxication was brought about by the defendant's intentional acts
Quid quo pro
inventor of a patent has protection, which gives use products (this for that)
Ponzi scheme
investment fraud that involves payments of purported returns to existing investors from funds contributed by new investors
Trade secret
knowledge with economic value that is not generally known or easily ascertainable
Petty offense
least serious kind of criminal offense, such as traffic or building code violation
Patent
legal right to exclude all others from making, using, selling, or importing the invention during the term of the patent
Misdemeanor
lesser crime than a felony, punishable by a fine or incarceration in jail for up to 1 year
Copyright general rule
life of author plus 70 years
Foreign officials
made it a crime to bribe foreign officials to gain a business advantage
Forgery
making or altering a writing with the intent to defraud
Arson
malicious burning of the dwelling of another person
Strict product liability
manufacturers and distributors are held to strict liability for product defects
Punitive damages
meant to punish defendant not necessarily compensate plaintiff
Model penal code test
must prove defendant lacked substantial capacity either to appreciate the criminality of their conduct or to conform their conduct to the requirements of the law as a result of a mental disease
Invitee
must warn of hidden risks and made hazardous situations safe
Licensee
must warn of potentially dangerous situations
Trade name
name a business uses to identify itself
Trademark
name, logo, or other distinguishing characteristics associated with a product (or service if service mark)
Arrest
need a warrant unless there is no time to get one
Self incrimination
need to be read about the Miranda rights
Non obvious patents
no combination of prior art teachings that would be obvious to combine to disclose each and every element of the invention
Battery
no consent to and intentional touching of another person which results in harmful contact or offensive contact (Touching)
Novelty patents
no single teaching from the prior art can disclose each and every element of the invention
Intellectual property
products of a person's creative spirits such as patents, copyrights, trademarks, and trade secrets
Good samaritan protection laws
protect good samaritans against negligence lawsuits
Trade dress
protects aesthetics of a product or packaging if consumers identify mark with a particular owner
Collective mark
protects marks associated with a collective group such as the veterans of foreign wars
Trademark
protects marks associated with products
Service mark
protects marks associated with services
Certification mark
protects marks used to certify goods
International law
protocol allows trademark owners to register their marks at the international level
Conditional
public figures must prove malicious intent on the part of the person making an untrue statement
Entrapment
public official gets the defendant to commit a crime that he or she would not have committed had it not been for overbearing actions of the public officials
Insider trading
purchases or sale of securities on the basis of inside information (Martha Stewart)
Probable cause
reasonable grounds to believe that evidence of a crime is currently located in the place, or on the person to be searched
Apparent authority
reasonable person would have believed that the employee was authorized by the company to act in a certain manner because of representations made by the corporation to a 3rd party
Civil law
relationships between citizens and their government
Negative right
right to legally exclude others from performing certain acts (get off my yard)
Felony
serious crimes that is punishable by death or by imprisonment for more than 1 year
Nominal damages
small amount of damages meant to establish liability
Excuse
society does not condone but determines punishment is less appropriate because of mitigating circumstances
Justification
society generally condones or approves of the act under circumstances
Intervening cause
something that breaks the chain of causation
Mistake of fact
specific intent crimes an honest mistake may negate one of the elements of the offense (walk off with item thinking it was yours)
Immunity
state often wants information from criminals, so the prosecution offers them immunity
Larceny
stealing tangible property with the intent to deprive the owner of the property
Truth
still can't be used maliciously (called defamation by implication)
Trademark infringement
straight infringement occurs when another party is using a confusingly similar mark
Proximate cause
strong enough connection to justify holding the defendant responsible (Foreseeable)
American invents act
switched the US to first to invent patent system to first to file the patent
Robbery
taking property by force, intimidation, or threat of violence with the intent to deprive the owner of the property
Actus Reus and Mens Rea
to be guilty of a crime you need both
Money laundering
transferring illegally obtained money through legitimate people or accounts so that its original source cannot be traced
Embezzlement
type of theft that occurs when fiduciary is lawfully entrusted with personal property of another and then fraudulently takes or uses that property for his or her own gains
Provisional patent application
type of utility patent application which allows protection for 1 year
Hacking
unauthorized access of another's computer with intent to change the settings or access information
Conversion
unlawful taking of another's property
Nuisance
unreasonable interference with property owner's use of the property
Appropriation
use of another person's NIL without their consent for defendant's benefit
Credit card fraud
using credit card information to obtain an unauthorized benefit
Useful patents
very low bar, nearly any commercial utility