Loophole

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A loophole is an ambiguity or inadequacy in a system, such as a law or security, which can be used to circumvent or otherwise avoid the intent, implied or explicitly stated, of the system. Loopholes are searched for and used strategically in a variety of circumstances, including taxes, elections, politics, the criminal justice system, or in breaches of security, or a response to one’s civil liberties.

Loopholes are distinct from ‘lacunae’ (situations where no law exists to address a particular issue), although the two terms are often used interchangeably. In a loophole, the law exists, but can be legally circumvented due to a technical defect.

The term derives from arrow slits, narrow vertical windows from which castle defenders launched arrows from a sheltered position, which were also referred to as ‘loopholes.’ Thus a loophole in a law often contravenes the intent of the law without technically breaking it, much as the small slit window in a castle wall is a small opening in a seemingly impenetrable defensive measure that lets the defender gain the unfair advantage of being able to fire without easily being fired back upon. For example, in some places, one may avoid paying taxes to the jurisdiction by forming a second residence in another location, or a commercial property can be built in a residential zone if it is made also for residential use. In a security system, the one who breaches the system (such as an inmate escaping from prison) exploits the loophole during the breach. Such weaknesses are often studied in advance by the violator, who spends time observing and learning the routine of the system and sometimes conducts surreptitious tests until such a loophole can be found.

Parts of the interiors of U.S.‑bound Ford Transit Connect were stripped immediately upon importation to circumvent the 1963 Chicken Tax, which imposes a 25% tariff on imported light trucks. Ford imports all Transit Connects as ‘passenger vehicles’ with rear windows, rear seats, and rear seat belts. The vehicles are exported from Turkey, arrive in Baltimore, and are converted into ‘light trucks’: rear windows are replaced with metal panels and rear seats removed. The process exploits a loophole in the customs definition of a commercial vehicle. As cargo does not need seats with seat belts or rear windows, the mere presence of those items exempts the vehicle from light truck status. The conversion process costs Ford hundreds of dollars per van, but allows it to save thousands of dollars’ worth of taxes.

Although the sale of untested drugs is illegal in the US and UK, manufacturers have circumvented legislation by labelling products ‘not for human consumption.’ Consumers still buy and use the products as drugs but vendors cannot be prosecuted as they have no control over the consumer after the point of sale. In 2005 Wal-Mart planned a store in Calvert County, Maryland. While a law in the county restricted the size of a retail store to 75,000 square feet, Wal-Mart considered a plan that would dodge this restriction by building two separate smaller stores. Though Wal-Mart later withdrew this controversial plan, the plan highlighted a legal loophole.

YouTube has blocked some copyrighted music from being uploaded; similarly, Limewire shut down for similar reasons concerning music copyright and the free circulation of it online. However, the Nunica Internet Social Alliance was founded as a method to exploit a loophole in YouTube’s song blocking by making promo videos for freely downloadable MP3 albums from Nisa Records which contain the blocked music, but without the blocked music in the promo videos, in which the albums can be found on underground file hosting sites. With the release of Nisa’s YouTube Rejects Volume 3, Nisa Records has also marketed music to a Germany YouTube audience with music that was formerly blocked in Germany.

In eastern Germany during the 19th and early 20th centuries, the authorities pursued an active policy of Germanization. Prussian law required that government permission was obtained before erecting a house, but this provision was often selectively used against ethnic Poles. Under the law, any dwelling place would be considered a house if it stayed in one place for more than 24 hours. In 1904, Michał Drzymała, an ethnic Polish peasant from Grätz (now Grodzisk Wielkopolski), bought a circus caravan and set himself up in it. To get around the rule, each day he moved the caravan a short distance, thereby exploiting the legal loophole and frustrating all attempts to evict him, until in 1909 he was finally granted permission to buy a house. Drzymała has become something of a folk hero in modern-day Poland for his ingenuity.

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