Ask a Lawyer

Ask a Lawyer: Do Farmers Have the Same Protection as Big Beef?

kenny ching — Thu, 15 Jul 2010 08:30:00 PDT

So let's say you're a local butcher or farmer, and someone dies or gets sick from E.coli or salmonella after eating your food. What happens? Do you have the same legal protection as a huge agricultural company?

Yes. In general, people or businesses that sell food are "strictly liable" for injuries to customers that are caused by their food products. A plaintiff only needs to show the food was defective in order for the food producer to be found liable, and he doesn't need to show any further negligence on the part of the food producer. This applies to restaurants and grocery stores, to the largest agricultural company and the smallest local butcher.

My time in law school and as a practicing attorney has convinced me that, in general, the law is fair. It's no respecter of persons. It doesn't purposefully favor the rich over the poor or the large company over the small local farmer. In fact, the law tends to be protective of the little guy.

The difficulty for the little guy isn't the law itself, but his access to the law. Hiring lawyers is extremely expensive, and a typical joke among lawyers is that they couldn't afford to hire themselves if they had to. Here's a baseball analogy: The problem for the Kansas City Royals isn't that the rules of baseball are unfair. Their problem is that the Yankees and the Red Sox have all the money and sign all the good players. In law, this is what's known as the "access to justice" problem.

So, back to our small local food producer. What should he do? Get insurance, for sure. Perhaps he can join a co-op that will spread the cost of legal services among several small businesses. But if the access to justice problem still seems like a pressing one to you, go to law school, become a public-interest lawyer, and fight the good fight.

Disclaimer: This material is offered only for general informational purposes. It is not offered as and does not constitute legal advice or legal opinions. Although this information is believed to be current, we do not promise or guarantee that the information is correct, complete, or up-to-date. You should not act or rely upon the information in this material without seeking the advice of an attorney.

Ask a Lawyer: Can I Paint My Own Bike Lane?

kenny ching — Thu, 25 Mar 2010 12:30:00 PDT

In this series, we seek (nonbinding, fully disclaimed) legal opinions from practicing lawyer Kenny Ching on matters relating to the world of GOOD. Do you have a question? Leave a comment below or tweet @GOOD with hashtag "goodlawyer."

So you're trying to shrink your carbon footprint by shunning your car and biking everywhere. There’s a thoroughfare near your house that you ride a lot, but the only problem is it doesn’t “technically” have a bike lane. What kind of trouble could you get into if you painted one on your own?

Catastrophic trouble. Never mind property damage and vandalism. You could be responsible—legally, financially, and otherwise—for a car hitting one of your fellow cyclists. You’d likely be found negligent because you should have known (a reasonable person would have) that by painting a bike lane in the street that didn’t really belong there, people would ride their bikes in it. You should have also known, because a reasonable person would have, that cars that regularly drive on that road wouldn’t be expecting bikes cruising down the middle of it as if they owned it. Finally, you should have known that, at some point, this would cause some car to collide with some bike. At that point, because of your breach of your legal duty to act reasonably, you will have caused and be liable for whatever damage occurs. You’ll be extremely lucky if it’s only a wrecked bike or car.

If you want to get a bike lane, do it the right way. Go to your city council and ask to have it made official. If you want to dramatically increase your chances of getting this done, get a bunch of your friends and neighbors to chip in, go to a good law firm, and hire a government affairs attorney who specializes in local government matters. She might even do it pro bono.

Disclaimer: This material is offered only for general informational purposes. It is not offered as and does not constitute legal advice or legal opinions. Although this information is believed to be current, we do not promise or guarantee that the information is correct, complete, or up-to-date. You should not act or rely upon the information in this material without seeking the advice of an attorney.

Ask a Lawyer: What's Fair in Fair Use?

kenny ching — Fri, 12 Feb 2010 06:00:27 PST

In this series, we seek (nonbinding, fully disclaimed) legal opinions from practicing lawyer Kenny Ching on matters relating to the world of GOOD. Do you have a question? Leave a comment below or tweet @GOOD with hashtag "goodlawyer."

So you want to use someone else's work, but you're worried about the correct uses of intellectual property. What is "Fair Use"?

"Fair Use" means that even though something is copyrighted (for example, a book, picture, speech, computer program, or architectural design), you can still legally use it for things like commentary, news reporting, and education. Whether you're engaging in "fair use" or copyright infringement depends on a combination of factors:

How you use the copyrighted material, including whether your use is commercial, nonprofit, or educational: for example, if you want to use an excerpt from Catcher in the Rye to discuss literary theory with your graduate seminar or book club, you're golden. But, if you want to write a prequel to Catcher about Holden Caulfield for your own profit, you're busted. Finally, if your use of the copyrighted material is transformative-creating a parody (remember Jib Jab's ‘This Land is Your Land"?) is the classic example-then you've added sweat equity to the material and not stolen somebody else's flash of genius.

The nature of the copyrighted work: The more fact-based a work is, the more you can fair-use it. The law doesn't want people to be ignorant dummies, and so it doesn't like facts being kept from them by a copyright.

How much of the copyrighted work you use: like cologne and f-bombs, the less you use the better.

Whether your use hurts the monetary value of the copyrighted work. One of the goals of copyright law is to give creative people a financial incentive to make cool stuff. If your use takes away that incentive, for example, by downloading free music without permission, then you're use isn't fair.

What is Creative Commons? Can I use a CC "non-commercial" image on my blog, which runs advertisements?

Creative Commons is the intellectual property soulmate of GOOD. Whereas standard intellectual property law thinks restricting rights is the best, most moral way to get society to produce more cool stuff (by giving people a limited monopoly on what they create so they can cash in), CC thinks that everybody sharing their work for free is the better, more moral way of getting more cool stuff.

Cooperative-minded creators go through CC to allow people to freely and easily obtain a license to use their copyrighted work. The CC licenses have varying restrictions. One common restriction is that you can use the work for any purpose, even your own profit, but you must give attribution to the original creator. You don't have to pay money to the original creator because he gets paid in fame.

Another common CC license requires that your use of the material must be non-commercial. In other words, you can use the copyrighted work unless you're trying to make money off of it. If your blog runs ads for which you get paid, it isn't non-commercial, and you couldn't use a non-commercial CC licensed work there.

Disclaimer: This material is offered only for general informational purposes. It is not offered as and does not constitute legal advice or legal opinions. Although this information is believed to be current, we do not promise or guarantee that the information is correct, complete, or up-to-date. You should not act or rely upon the information in this material without seeking the advice of an attorney.

Illustration by Johana Tran.

Ask a Lawyer: Will Seed Bombing Get You Busted?

kenny ching — Fri, 29 Jan 2010 05:30:06 PST

In this new series, we seek (nonbinding, fully disclaimed) legal opinions from practicing lawyer Kenny Ching on matters relating to the world of GOOD. Do you have a question? Leave a comment below or tweet @GOOD with hashtag "goodlawyer."

So you want to wage peace and seed bomb that abandoned, litter-laden flowerbed on Central Boulevard. But in a disheartening moment of pragmatism, you wonder, "What will happen when the status quo's lawyers get their hands on me?"

You could go to jail: If property is enclosed so as to exclude intruders, by knowingly and without permission entering, you may be committing criminal trespass. Hopping a fence counts, but so does throwing your seed bomb into someone's yard, even if you don't set foot there yourself.

Fortunately, criminal trespass is generally a misdemeanor, not a felony. So even if you get convicted, you can still vote Nader next election or move to Canada if Jeb Bush becomes President.

You could get sued: By voluntarily and intentionally entering another's property without permission (either with your body or with a thing, like a seed bomb), you could be found civilly liable. An argument on your behalf: your garden isn't hurting anything, so there would be no monetary damages. But, you might have to pay for the bulldozer that razes the trees you planted.

Also, you might get sued, not for cash, but to get a court order prohibiting you from further trespassing. If you violate a court order, that's called contempt, and jail is a real possibility.

You could get roughed up: Say a property owner catches you picking cigarette butts out of her yard without permission. She says "get," but you stay. She can now use reasonable force to eject you from her property. She should use as little force as necessary such as "gently laying hands upon you" (which sounds pleasant enough until you realize it's Old English for "bum rush"). She shouldn't severely kick you unless nothing less will do; under almost no circumstances should she kill you.

You could become the new property owner!: Counterintuitively, some guerilla gardening activities (most likely something beyond seed bombing) could be a step toward joining the landed gentry. Adverse possession or its cousin, prescriptive easement, may allow you to become the garden's new owner. This lottery ticket of legal doctrines requires 1.) you must use the land as if you were its actual owner, and gardening it probably counts; 2.) your gardening must be visible for all to see-hoeing in secret won't do; 3.) you must exclude the true owner, so if you lay down grass, the owner can't use it for lawn bowling; 4.) your use has to be "adverse" to the true owner-if he gives you permission to be there, you're not adversely possessing, you're doing yard work for free; and 5.) you must use the property continuously for a time period prescribed by statute, usually five to 10 years.

It's a long shot, but if you meet the criteria, the property is yours. Then we'll see how you like it when long-haired hippies start taking shortcuts across your yard.

Correction: A sentence in this story used to read "Counterintuitively, your illegal activities could be a step toward joining the landed gentry." It was changed because it inaccurately suggested that seed bombing alone could lead to adverse possession.

Disclaimer: This material is offered only for general informational purposes. It is not offered as and does not constitute legal advice or legal opinions. Although this information is believed to be current, we do not promise or guarantee that the information is correct, complete, or up-to-date. You should not act or rely upon the information in this material without seeking the advice of an attorney.

Illustration by Johana Tran.