Sat, 31 Dec 2005
Bremen Court Wins Award
CK - Washington. A Bremen court, Sozialgericht Bremen, won the Anti Search Engine Optimization Award 2005 after gaining the attention of bloggers in Germany through a cease and desist letter from the court to a grocery shop blogger.
Various law blogs consider the demand nonsense. The court speculates that a blogger's reference to the name of the court is an illegal assumption, or usurpation, of its proper name, in violation of §12 of the German Civil Code, Bürgerliches Gesetzbuch.
The grocery blog's entry on the court appears in the Google top ten. Through the search engine, visitors reach its story on a court action. The story page begins with the headline Sozialgericht Bremen. The presiding judge equates the appearance of the entry with a web site that claims to be the official website of the court.
The court has its own website which is accessible only in a most circuitous and cumbersome manner and is styled such that the visitor does not necessarily recognize the arrival at a court site. The general consensus among German law bloggers is that the Sozialgericht Bremen's demand is legally and factually unfounded. §12 BGB does not prohibit the mention of proper names and marks. Limitations on the use of a name or trademark are limited to fraud, deception, anti-competition and such.
In the Bremen court's defense, one should note that it operates as a specialty court and within budgetary constraints that may fail to provide for funding for outside legal advice on basic civil and internet matters.
© German American Law Journal :: Washington USA
CK - Washington. A Bremen court, Sozialgericht Bremen, won the Anti Search Engine Optimization Award 2005 after gaining the attention of bloggers in Germany through a cease and desist letter from the court to a grocery shop blogger.
© German American Law Journal :: Washington USA
Fri, 23 Dec 2005
Rützel, Wegen & Wilske on German Disputes
CK - Washington. The authors of Commercial Dispute Resolution in Germany are highly respected transnational practitioners. Their new book, ISBN 3-406-52169-X, in the C.H. Beck series German Law Accessible shares with English-speaking practitioners, but also Germans desiring to explain their law to foreign counterparts, their intense experience and comprehensive knowledge of the German practice of dispute resolution.
Approximately half of the 473-page softbound volume contains English translations of the pertinent German statutes, such as the rules of civil procedure and arbitration, but also the statute on the recognition and enforcement in Germany of foreign judgments. The legislative materials extend to certain treaties that relate to the subject matter, such as the Hague conventions on service and evidence. What is particularly useful for foreign and German users is the two column approach of the original German and the translated English materials.
In Part 1, the authors introduce the reader to commercial dispute resolution in Germany, beginning with the basics and essentials, such as the court systems, jurisdiction and securing evidence. They move on quickly to particulars of the judicial process in litigation and then turn to arbitration and finally to mediation. Sequentially and methodically, Rützel, Wegen and Wilske guide the reader through the various facets and the turns and tribulations of these procedures.
Useful tables and indices complement the introduction to the German dispute resolution mechanisms and make the new book the most important current addition to--and practical tool in--any lawyer's library that covers transnational litigation, arbitration and mediation with a German nexus. The publisher offers a PDF sample for download.
© German American Law Journal :: Washington USA
CK - Washington. The authors of Commercial Dispute Resolution in Germany are highly respected transnational practitioners. Their new book, ISBN 3-406-52169-X, in the C.H. Beck series German Law Accessible shares with English-speaking practitioners, but also Germans desiring to explain their law to foreign counterparts, their intense experience and comprehensive knowledge of the German practice of dispute resolution.
© German American Law Journal :: Washington USA
Thu, 22 Dec 2005
Heidelberg House
CK - Washington. The Ruperto Carola university in Heidelberg plans to establish a Heidelberg House near Amherst, MA next year, reports the UniSpiegel 5/2005 edition on page 3. The new facility is designed to complement the existing Heidelberg Center for American Studies in Heidelberg.
In addition, the paper announced a new society devoted to legal history, the Heidelberger Rechtshistorische Gesellschaft e.V. at Friedrich-Ebert-Platz, 69117 Heidelberg, almost in the heart of Old Heidelberg. The society is open to legal historians and interested legal practitioners.
© German American Law Journal :: Washington USA
CK - Washington. The Ruperto Carola university in Heidelberg plans to establish a Heidelberg House near Amherst, MA next year, reports the UniSpiegel 5/2005 edition on page 3. The new facility is designed to complement the existing Heidelberg Center for American Studies in Heidelberg.
In addition, the paper announced a new society devoted to legal history, the Heidelberger Rechtshistorische Gesellschaft e.V. at Friedrich-Ebert-Platz, 69117 Heidelberg, almost in the heart of Old Heidelberg. The society is open to legal historians and interested legal practitioners.
© German American Law Journal :: Washington USA
Wed, 21 Dec 2005
Off Topic Mailing List
CK - Washington. Andreas Schwartmann of Cologne announced in the main German law mailing list ANWALT the relocation of the off-topic mailing list Juratalk to the Google System at http://groups.google.com/group/juratalk.
With his announcement, he explains that the list is open to all lawyers interested in discussions on matters beyond the law. Based on the characterization of off-topic topics in ANWALT, such matters can include issues as diverse as technology, restaurants, travel or politics.
© German American Law Journal :: Washington USA
CK - Washington. Andreas Schwartmann of Cologne announced in the main German law mailing list ANWALT the relocation of the off-topic mailing list Juratalk to the Google System at http://groups.google.com/group/juratalk.
© German American Law Journal :: Washington USA
Tue, 20 Dec 2005
Interagency Notification
CK - Washington. Death and inheritance mean a lot of work not only for relatives, administrators and private sector parties, but also for various government agencies. A new rule that according to Handakte blog comes into effect on January 2, 2006, establishes new rules for the notification of such changes among government agencies. The rules also provide for the destruction of such data and for the cooperation of notaries with agencies. The published ruleset relates to the Land of Nordrhein-Westfalen, and similar rules are expected for other Länder.
© German American Law Journal :: Washington USA
CK - Washington. Death and inheritance mean a lot of work not only for relatives, administrators and private sector parties, but also for various government agencies. A new rule that according to Handakte blog comes into effect on January 2, 2006, establishes new rules for the notification of such changes among government agencies. The rules also provide for the destruction of such data and for the cooperation of notaries with agencies. The published ruleset relates to the Land of Nordrhein-Westfalen, and similar rules are expected for other Länder.
© German American Law Journal :: Washington USA
Sun, 11 Dec 2005
Noname Significant Other
CK - Washington. A significant other of no fame may not be named in press reports on the life of a famous person with whom the noname other appears in public, the Frankfurt appellate court decided on July 26, 2005, docket no. 11 U 13/03, as reported on December 9, 2005 in the German LexisNexis legal news section by Peter Abke.
© German American Law Journal :: Washington USA
CK - Washington. A significant other of no fame may not be named in press reports on the life of a famous person with whom the noname other appears in public, the Frankfurt appellate court decided on July 26, 2005, docket no. 11 U 13/03, as reported on December 9, 2005 in the German LexisNexis legal news section by Peter Abke.
© German American Law Journal :: Washington USA
Sat, 10 Dec 2005
Accelerating Criminal Process
CK - Washington. Prosecution and courts must do their utmost to accelerate criminal cases when the accused, whom the law, after all, deems innocent, waits in jail. The acceleration principle covers the entire case, from the indictment through judgment and the continued review in appellate and supreme court proceedings.
The Federal Constitutional Court, Bundesverfassungsgericht, in Karlsruhe affirmed this principle in the matter of N., docket no. BVerfG 2BvR 1964/05, on December 5, 2005.
Art. 2 of the Constitution guarantees the liberty of every person, including one awaiting trial. Courts and prosecution must consider the proportionality of the waiting period in light of various factors, including the significance of the alleged crime, the anticipated punishment, if any, and the complexity of the proceedings. The nature of the crime alone and the anticipated punishment are insufficient yardsticks for the justification of pre-trial detentions, the court held.
Complex proceedings by themselves are also insufficient justifications for the denial of personal liberties. Therefore, mistakes made in scheduling witnesses, for instance, do not need to reach an extreme standard before the court needs to consider releasing an accused from pre-trial detention. The failure to begin trial nine months after an indictment is not compatible with constitutional standards.
While there is no rigid rule for determining how much time may pass between an indictment and the trial, the acceleration principle requires, in the view of the court, that no more than three months pass between the order of acceptance of the indictment and the trial. This may require organizational adjustments within the administration of the criminal courts, and conversely, decisions in favor of the defendant when the criminal courts are administratively or procedurally unable to meet the constitutional standards.
The decision is a slap in the face of certain Düsseldorf courts and the Supreme Criminal Court which had justified the continued detention of an accused during the course of endless pre-trial, trial and review proceedings.
© German American Law Journal :: Washington USA
CK - Washington. Prosecution and courts must do their utmost to accelerate criminal cases when the accused, whom the law, after all, deems innocent, waits in jail. The acceleration principle covers the entire case, from the indictment through judgment and the continued review in appellate and supreme court proceedings.
© German American Law Journal :: Washington USA
Wed, 07 Dec 2005
ra-mueller.de Joins Profession
CK - Washington. Highly regarded domain blogger Peter Müller joined the wonderful legal profession today and will soon populate the ra-mueller.de domain.
© German American Law Journal :: Washington USA
CK - Washington. Highly regarded domain blogger Peter Müller joined the wonderful legal profession today and will soon populate the ra-mueller.de domain.
© German American Law Journal :: Washington USA
Tue, 06 Dec 2005
Chilling Effects
CK - Washington. While ZDNet gives publicity to a Brennan Center for Justice study on the chilling effects from less than clearly defined standards for fair use, German lawyers find their blood chilled today when reading alerts from colleagues whose bank accounts have been accessed with unexpected Paypal deposits and withdrawals.
A small deposit to new users' bank accounts used to be, and perhaps still is, Paypal's method of account verification. Things get troubling if you are not new user and receive a Paypal verification deposit, to be followed by withdrawals.
The European rule requiring website owners to reveal their identity as well as other very personal data or business information, known colloquially in German as Impressumspflicht, helps criminals to a lot of information that they would otherwise have to obtain through cumbersome and potentially risky means. An impressum, the About or FAQ page identifying the owner of a website, creates a fabulous shortcut for all kinds of criminals, from stalkers to finance whizzes.
Add to that the European practice of revealing banking information on stationary, and you create phishers' heaven.
© German American Law Journal :: Washington USA
CK - Washington. While ZDNet gives publicity to a Brennan Center for Justice study on the chilling effects from less than clearly defined standards for fair use, German lawyers find their blood chilled today when reading alerts from colleagues whose bank accounts have been accessed with unexpected Paypal deposits and withdrawals.
Add to that the European practice of revealing banking information on stationary, and you create phishers' heaven.
© German American Law Journal :: Washington USA
Forum and Blog Liability
JN - Essen. Bloggers and other web site operators offering discussion forums may be liable for content posted by visitors pursuant to a new judgment from the Hamburg district court, Landgericht Hamburg, docket no. 324 O 721/05.
As reported by Heise on December 5, 2005, the court confirmed a previously issued preliminary injunction which held that Heise, a well-known German Internet news service, had to stop forum postings by visitors calling for a denial-of-service attack on Universal Boards.
Although Heise removed the infringing postings promptly upon notice, the court held that Heise was liable for the content as it could feasibly screen postings manually or technically for illegal content before its publication.
While the written grounds for the decision have not yet been published, commentors argue that the ruling violates the express standard in §11 of the German teleservices statute, Teledienstgesetz. The statute exempts web site operators from liability when they lack actual knowledge of the infringing content and immediately remove such content upon obtaining knowledge thereof. Others suggest that forums ought to provide the same protections found in chat rooms that automatically filter some content.
© German American Law Journal :: Washington USA
JN - Essen. Bloggers and other web site operators offering discussion forums may be liable for content posted by visitors pursuant to a new judgment from the Hamburg district court, Landgericht Hamburg, docket no. 324 O 721/05.
© German American Law Journal :: Washington USA
Mon, 05 Dec 2005
Utilities' Snowjob
CK - Washington. The trains is no longer run as punctually as they used to, and now German utility customers find something to gripe about. Recent snowfall cut off entire regions from the power grid, and there is concern that utilities have adopted practices commonly seen in America: Minimum maintenance, reliance on limitations on liability, and repair when things break badly.
Unsaddled by the patience that American consumers display after outages, Germany rebels, and lawyers in blogs and elsewhere examine the liability of utilities. The utilities claim force majeure but nobody believes their whitewash.
On December 5, 2005, the Münster district court Steinfurt local court ordered an expert review of the state of the transmission lines in the most affected region as part of an evidentiary proceeding. Meanwhile, the RWE utility set up a 5 million Euro fund to assist in hardship cases. The fund is being administered by representatives from the Borken and Steinfurt counties, two utility representatives and two state level government employees.
© German American Law Journal :: Washington USA
CK - Washington. The trains is no longer run as punctually as they used to, and now German utility customers find something to gripe about. Recent snowfall cut off entire regions from the power grid, and there is concern that utilities have adopted practices commonly seen in America: Minimum maintenance, reliance on limitations on liability, and repair when things break badly.
© German American Law Journal :: Washington USA
Sun, 27 Nov 2005
Composition of German Cabinet
CK - Washington. The Bundesregierung web site in Berlin has an English-language presentation of the members of the new cabinet with links to the officials filling the positions in the various federal departments.
© German American Law Journal :: Washington USA
CK - Washington. The Bundesregierung web site in Berlin has an English-language presentation of the members of the new cabinet with links to the officials filling the positions in the various federal departments.
© German American Law Journal :: Washington USA
Third Party EMail with Ad
CK - Washington. Who, if anybody, should be civilly liable for an EMail that contains a product recommendation from a business website as well as advertising and is triggered by a visitor to a website that offers its visitors to send out recommendations to friends and family but fails to disclose that advertising will be added to the recommendation? On October 25, 2005, the Nürnberg Court of Appeals decided that issue in the matter 3 U 1084/05, published at Affiliate & Recht in German.
The court explained that the mere availability of a product recommendation with a feature to have it sent via EMail by a visitor to a third party, despite lacking consent from the third party, does not violate the unfair competition statute, §7(2)(3) UWG, as long as the operator of the website does not add undisclosed advertising that goes beyond the product recommendation.
Among the issues evaluated by the court is whether the EMail could by-pass spam filters. It found that the fact that the EMail originated from the corporate server did not mislead the recipient and should not be regarded as a design to circumvent spam filters.
The court ordered the company to cease and desist from adding undisclosed advertising to the feature that enables product recommendations, at a penalty of 250,000 Euros for each future violation or imprisonment of the management for up to six months if the penalty were not to be paid, plus costs. Its decision is subject to review by the federal supreme court in Karlsruhe, Bundesgerichtshof.
© German American Law Journal :: Washington USA
CK - Washington. Who, if anybody, should be civilly liable for an EMail that contains a product recommendation from a business website as well as advertising and is triggered by a visitor to a website that offers its visitors to send out recommendations to friends and family but fails to disclose that advertising will be added to the recommendation? On October 25, 2005, the Nürnberg Court of Appeals decided that issue in the matter 3 U 1084/05, published at Affiliate & Recht in German.
© German American Law Journal :: Washington USA
Sat, 26 Nov 2005
Mailorder Spam Liability
CK - Washington. In an alert to a German legal mailing list, Bert Handschumacher notes a new case extending contributory liability for violation of the German anti-spam statute to non-mailers.
On November 22, 2005, the Berlin district court issued an injunction against a reputable mail order company that had established an affiliate program allowing others to link to its web site and earn compensation for click-throughs. Certain spammers used their affiliate credits in unwanted commercial advertisements that they emailed to non-subscribers.
The court orderd the mail order company to cease and desist, at a penalty of 250,000 Euros for future violations, from contributing to further spam sent to the plaintiff in the matter 15 O 710/05, and imposed costs on the defendant under §97 of the Civil Procedure Code. The court found a single email sufficient to trigger the imminent and substantial danger of more spam being generated through the same means, Wiederholungsgefahr per §1004(1) of the Civil Code. A local court in Mettmann, in the matter 21C 161/05, had recently considered a single spam email insufficient, and the Dresden district court had also rejected liability for a single email, in the matter 114 C 2008/05, but those decisions are unknown to have become final and have generated great criticizm.
While those matters involved the direct liability of a sender, the Berlin case is important because it imposes the liability on a contributor, the - likely unintended - enabler of the spam scheme that probably thought itself law-abiding but became a victim of its own success when it offered an irresistable affiliate program. The Berlin decision complements a strict approach to dealing with individual emails. The enforcement of the internet laws to indirect enablers of spam has also extended to domain name administrators who, in all practical experience, are generally the most exposed persons on the internet and the least likely to actively pursue internet crimes.
© German American Law Journal :: Washington USA
CK - Washington. In an alert to a German legal mailing list, Bert Handschumacher notes a new case extending contributory liability for violation of the German anti-spam statute to non-mailers.
© German American Law Journal :: Washington USA
Fri, 25 Nov 2005
Online Statutes in German
CK - Washington. On November 22, 2005, Brigitte Zypries has been confirmed as the Attorney General and will also serve the new government headed by Angela Merkel. One of Zypries' first acts is her announcement that the online service Gesetze-im-Internet.de has expanded to the publication of some 5000 statutes.
© German American Law Journal :: Washington USA
CK - Washington. On November 22, 2005, Brigitte Zypries has been confirmed as the Attorney General and will also serve the new government headed by Angela Merkel. One of Zypries' first acts is her announcement that the online service Gesetze-im-Internet.de has expanded to the publication of some 5000 statutes.
© German American Law Journal :: Washington USA
Sat, 19 Nov 2005
Verdict = Geschworenenspruch
%% Wire Fraud = Straftat per Telefon %% Mail Fraud = Straftat per Post %% handy = praktisch %% et al. = und andere %% District = Bezirk %% Circuit = Bezirk %% Primary = Vorwahl %% charitable = gemeinnützig %% Trial = Prozessabschnitt vor Geschworenen oder Richter %% Verdict = Entscheidung der Geschworenen %% Additur = Erhöhung des Verdikts %% Remittitur = Kappung des Verdikts %% Expert Witness = Sachverständiger, Gutachter %% Product Liability = Produkt - Haftpflicht %% Conspiracy - Verschwörung %% Malice = Böswilligkeit %% Public = Öffentlichkeit %% Defamation = Verleumdung %% Commercial = gewerblich, Werbesendung %% Judicial Assistance = Rechts-, Amtshilfe %% Extradition = Auslieferung %% Convention = Abkommen, Treffen %% Competition = Wettbewerb %% Recovery = Erstattung %% Free Speech = Freie Meinungsäußerung %% Tortious = deliktisch %% Permit = Genehmigung %% Permission = Genehmigung %% contradictory = widersprüchlich %% Competition = Wettbewerb %% Statement = Aussage, Erklärung %% Amendment = Änderung, Verfassungszusatz %% Constitution = Verfassung %% intellectual property = geistiges Eigentum %% constitute = darstellen %% enforceable = durchsetzbar, vollstreckbar %% Shipment = Lieferung %% Brief = Schriftsatz %% Memorandum = Aktenvermerk %% Technical Term = Fachbegriff %% Settlement = Vergleich %% Service of Process = Klagezustellung %% Circuit Court = Berufungsgericht %% Circuit = Berufungsgerichtsbezirk %% License = Nutzungsrecht %% Interest = Zinsen %% Liquidated Damages = Vertragsstrafe %% Attorney = Rechtsanwalt %% Judge = Richter %% Contract = Vertrag %% Dismissal with Prejudice = Rechtskräftige Klagabweisung/-rücknahme %% Complaint = Klage %% Plaintiff = Kläger %% Defendant = Beklagter, Angeklagter %% Guilt = Schuld %% Objection = Einspruch, Einrede %% Defense = Verteidigung, Einrede, Einwendung %% Constitution = Verfassung %% Standing = Aktivlegitimation %% Indemnification = Haftungsfreistellung %% Merger = Verschmelzung %% Assignment = Zession %% Inheritance = Erbschaft %% Estate = (Nachlass-/Konkurs-) Vermögen %% Administratrix = Nachlassverwalterin %% Notary = Beglaubiger %% Enforcement = Durchsetzung, Vollstreckung %% Export controls = Exportkontrollen %% Implementation = Umsetzung %% Penalty = Strafe %% Punitive Damages = Strafschadensersatz %% Damages = Schadensersatz %% Trademark = Marke %% Copyright = Urheberrecht %% Judgment = Urteil %% Decision = Entscheidung %% Determination = Feststellung %% Director = Aufsichtsrat %% Officer = Geschäfts- führungsmitglied %% Recognition = Anerkennung %% Treaty = Abkommen, Übereinkunft %% Bill = Novelle, Gesetzesentwurf, Rechnung %% Invoice = Rechnung %% Committee = Ausschuss %% Section = Paragraf, Abteilung %% Trespass = Haus-, Landfriedensbruch %% Opinion = Urteilsgründe, Meinung %% Prayer = Antrag %% Motion = Antrag %% Dismissal = Abweisung. Rücknahme, Entlassung
© German American Law Journal :: Washington USA
%% Wire Fraud = Straftat per Telefon %% Mail Fraud = Straftat per Post %% handy = praktisch %% et al. = und andere %% District = Bezirk %% Circuit = Bezirk %% Primary = Vorwahl %% charitable = gemeinnützig %% Trial = Prozessabschnitt vor Geschworenen oder Richter %% Verdict = Entscheidung der Geschworenen %% Additur = Erhöhung des Verdikts %% Remittitur = Kappung des Verdikts %% Expert Witness = Sachverständiger, Gutachter %% Product Liability = Produkt - Haftpflicht %% Conspiracy - Verschwörung %% Malice = Böswilligkeit %% Public = Öffentlichkeit %% Defamation = Verleumdung %% Commercial = gewerblich, Werbesendung %% Judicial Assistance = Rechts-, Amtshilfe %% Extradition = Auslieferung %% Convention = Abkommen, Treffen %% Competition = Wettbewerb %% Recovery = Erstattung %% Free Speech = Freie Meinungsäußerung %% Tortious = deliktisch %% Permit = Genehmigung %% Permission = Genehmigung %% contradictory = widersprüchlich %% Competition = Wettbewerb %% Statement = Aussage, Erklärung %% Amendment = Änderung, Verfassungszusatz %% Constitution = Verfassung %% intellectual property = geistiges Eigentum %% constitute = darstellen %% enforceable = durchsetzbar, vollstreckbar %% Shipment = Lieferung %% Brief = Schriftsatz %% Memorandum = Aktenvermerk %% Technical Term = Fachbegriff %% Settlement = Vergleich %% Service of Process = Klagezustellung %% Circuit Court = Berufungsgericht %% Circuit = Berufungsgerichtsbezirk %% License = Nutzungsrecht %% Interest = Zinsen %% Liquidated Damages = Vertragsstrafe %% Attorney = Rechtsanwalt %% Judge = Richter %% Contract = Vertrag %% Dismissal with Prejudice = Rechtskräftige Klagabweisung/-rücknahme %% Complaint = Klage %% Plaintiff = Kläger %% Defendant = Beklagter, Angeklagter %% Guilt = Schuld %% Objection = Einspruch, Einrede %% Defense = Verteidigung, Einrede, Einwendung %% Constitution = Verfassung %% Standing = Aktivlegitimation %% Indemnification = Haftungsfreistellung %% Merger = Verschmelzung %% Assignment = Zession %% Inheritance = Erbschaft %% Estate = (Nachlass-/Konkurs-) Vermögen %% Administratrix = Nachlassverwalterin %% Notary = Beglaubiger %% Enforcement = Durchsetzung, Vollstreckung %% Export controls = Exportkontrollen %% Implementation = Umsetzung %% Penalty = Strafe %% Punitive Damages = Strafschadensersatz %% Damages = Schadensersatz %% Trademark = Marke %% Copyright = Urheberrecht %% Judgment = Urteil %% Decision = Entscheidung %% Determination = Feststellung %% Director = Aufsichtsrat %% Officer = Geschäfts- führungsmitglied %% Recognition = Anerkennung %% Treaty = Abkommen, Übereinkunft %% Bill = Novelle, Gesetzesentwurf, Rechnung %% Invoice = Rechnung %% Committee = Ausschuss %% Section = Paragraf, Abteilung %% Trespass = Haus-, Landfriedensbruch %% Opinion = Urteilsgründe, Meinung %% Prayer = Antrag %% Motion = Antrag %% Dismissal = Abweisung. Rücknahme, Entlassung
© German American Law Journal :: Washington USA
Sun, 13 Nov 2005
Risky Republication
CK - Washington. The Hamburg court of first instance issued a TRO, not a final judgment, against a publishing company prohibiting that company's use of a generic domain name which the court found to improperly convey the notion that it was endorsed by German trade guilds.
Now, the publisher, ID-Medien, itself subject to criticizm, has sent cease and desist orders to two internet sites, muepe.de, a blog specializing in domain news, and Schwerin-NEWS. Muepe had copied and pasted information from the Schwerin site. The Schwerin report was based on information released by the trade guild covering its temporary victory. Schwerin says it published an "article by the [guild]", einen auf Schwerin-NEWS am 7.11.2005 veröffentlichten Artikel der Handwerkskammer Schwerin.
The cease and desist orders claim that ID-Medien had not accepted the TRO and may appeal it. On that basis, ID-Medien argues that the web reports mislead readers by conveying the notion that the guild had won a final judgment. In turn, this impression is claimed to cause ID-Medien irreparable harm in its business.
Muepe added a note to its report to explain the status of the Hamburg ruling. Schwerin-NEWS published the details of the cease and desist order.
This development highlights the risks inherent in the uncommented and unedited republication of information published elsewhere. While copy and paste of excerpts may constitute legal fair use under copyright law and has become a popular technique in German law blogs, the minimalistic effort in populating a blog does expose bloggers to substantial legal exposure.
ID-Medien may be wrong in its claims and cannot realistically expect others to know how it feels about a TRO--other than the typical dissatisfaction of a losing defendant--and what action it might take against it. At the same time, there is now some legal basis on which bloggers may be required to state whether or not a court ruling has become final. See Legal News, Final or Risky on a--possibly non-final--Munich decision suggesting that websites update reports on reversed decisions.
© German American Law Journal :: Washington USA
CK - Washington. The Hamburg court of first instance issued a TRO, not a final judgment, against a publishing company prohibiting that company's use of a generic domain name which the court found to improperly convey the notion that it was endorsed by German trade guilds.
© German American Law Journal :: Washington USA
Sat, 12 Nov 2005
JuraBlogs Tools for German Law
CK - Washington. The German legal metablog engine, JuraBlogs, has achieved important status in the German world of legal blogs. Recently, JuraBlogs developed several search and informational tools which it offers without charge to users of the Firefox and Flock browsers.
JuraBlogs Toolbar is an extension with a search function. Enter a legal term, such as Bundesberufungsgericht, press enter, and Jurablogs will list all articles with that term.
Kontextsuche enables the user to hightlight a word in any text displayed in the browser, right-click to display the menu option for a search of such text in JuraBlogs, and voila: Jurablogs lists the pertinent blog entries.
Finally, the toolbar contains a button for current blog entries listed on JuraBlogs. This function enables the user to by-pass the JuraBlogs site and head directly to the most recent additions listed with JuraBlogs--a somewhat altruistic tool from a website that makes it forego some traffic. Only a site that is worth visiting several times a day can afford to offer such a tool, and JuraBlogs has achieved that prominence.
© German American Law Journal :: Washington USA
CK - Washington. The German legal metablog engine, JuraBlogs, has achieved important status in the German world of legal blogs. Recently, JuraBlogs developed several search and informational tools which it offers without charge to users of the Firefox and Flock browsers.
© German American Law Journal :: Washington USA
Fri, 04 Nov 2005
Legal News: Final or Risky
CK - Washington. Reporting on court decisions can be risky. A German court almost held an owner of a website liable for defamation after a party mentioned in a decision reported on the site succeeded in having the decision amended and then sued the publisher.
Fortunately, the case was dismissed. The court stated that the owner of the site should have been given reasonable time to alert its readers to the change after the appeal. The Bahr blog reports also on two similar cases. The most recent decision is from the Munich court of first instance in the matter 161 C 17453/04 of September 14, 2005.
Disclaimer: The Munich decision may be subject to an appeal and this report may later prove wrong but will not change.
© German American Law Journal :: Washington USA
CK - Washington. Reporting on court decisions can be risky. A German court almost held an owner of a website liable for defamation after a party mentioned in a decision reported on the site succeeded in having the decision amended and then sued the publisher.
© German American Law Journal :: Washington USA
Sat, 29 Oct 2005
Claim to Art and Artful Claims
CK - Washington. On October 24, 2005, the highest German court for civil matters, the Bundesgerichtshof in Karlsruhe, decided on a claim by the owner of a Oskar Schlemmer painting against an heir of the painter. The heir had stated--in a confidential note to a third party that ended up being conveyed to the owner of the painting--his belief that the painting continued to belong to the painter's estate.
The court noted that the owner had purchased the painting at auction in the United States in 1959. There is an unresolved issue as to whether the painting made in 1931 had been improperly taken by the Nazi regime. In any case, both parties agreed that the owner had acquired ownership in the painting, at least through adverse possession under §937 of the civil code, Bürgerliches Gesetzbuch.
The issue for the court was whether the owner could properly claim that the heir cease and desist making a statement that casts a cloud on the title. The court sided with the owner in the matter II ZR 329/03.
A day later, another division of the same court turned down a claim for payment on debentures issued 80 years ago by the city of Dresden. The debenture certificates had become worthless as financial instruments but are generally appreciated as art-like historical artifacts. The court based its decision on the statute of limitations of 30 years and the fact that the East German government had validly reconstituted the political entities which incidentally absolved cities such as Dresden from liabilities such as the then-worthless debentures.
Such bonds cases remind the reader of similar claims discussed periodially in the United States for the redemption of railroad and other bonds issued by long-defunct entities. Filing lawsuits for bonds that expired 50, 100 or 150 years ago raises the issue of an abuse of the legal system and a waste of holders' recources.
That may apply particularly to the warning by counsel in the Dresden case to bring the same matter before an American court, as 123recht.net reports and Handakte mirrors. A similar case being marketed by the German Goldbond Redemption Group, LLC is currently before the United States District Court for the Middle District of Florida.
© German American Law Journal :: Washington USA
CK - Washington. On October 24, 2005, the highest German court for civil matters, the Bundesgerichtshof in Karlsruhe, decided on a claim by the owner of a Oskar Schlemmer painting against an heir of the painter. The heir had stated--in a confidential note to a third party that ended up being conveyed to the owner of the painting--his belief that the painting continued to belong to the painter's estate.
© German American Law Journal :: Washington USA
Wed, 26 Oct 2005
Forum Owner Liable for Visitor Action
CK - Washington. German courts are pushing internet operators ever harder. A June 6, 2005 decision by the Winsen a.d. Luhe court holds the operator of an internet forum responsible for comments by a visitor. The visitor added a fake mug shot that displays a photo of the plaintiff.
Claiming defamation, the plaintiff sent an EMail to the defendant operator, demanding the removal of the mug shot within 24 hours and 17 minutes. When the defendant failed to act, the plaintiff sued. The court granted his motion for an injunction, under §11(2) TDG. Later, the defendant explained his inaction by his personal absence which rendered him unable to react promptly.
The court held that his absence did not excuse his failure. Participants in the Internet must act in Internet time, it noted in the matter of M.K. v. B.R., docket no. 23 C 155/05, reported by JurPC, discussed by Muepe.de, critiqued by Gramespacher and quoted by Handakte.de.
As a result, German forum operators will need to shut down operations when they travel, get stuck in traffic or visit the restroom. After all, the federal Statute on Remote Services, Teledienstgesetz, absolves them from liability only if they act immediately, not merely promptly. That is, according to the statute, upon learning of illegal content. And under the Winsen rule, also when they have no such knowledge.
© German American Law Journal :: Washington USA
CK - Washington. German courts are pushing internet operators ever harder. A June 6, 2005 decision by the Winsen a.d. Luhe court holds the operator of an internet forum responsible for comments by a visitor. The visitor added a fake mug shot that displays a photo of the plaintiff.
© German American Law Journal :: Washington USA
Tue, 25 Oct 2005
EEP: Ltd. Ebb
CK - Washington. The German hoopla over the English corporate form of Limited and its use in Germany appears to ebb. Interest in the form is waning, according to Flensburg tax and insolvency specialists Ehler Ermer & Partner.
The October 2005 issue of the EEP Journal reports a recognition in German corporate minds that meeting mandatory English and German balance sheet requirements and annual notifications to two corporate registers increases costs and efforts substantially while the benefit of minimal capitalization is marginal.
EEP does not advocate an end to the use of the Ltd. in Germany but recommends proper decision-making and planning before implementing such a concept. German business may also want to look at the benefits of American corporations which are simple to establish and maintain and offer very low capitalization requirements.
© German American Law Journal :: Washington USA
CK - Washington. The German hoopla over the English corporate form of Limited and its use in Germany appears to ebb. Interest in the form is waning, according to Flensburg tax and insolvency specialists Ehler Ermer & Partner.
© German American Law Journal :: Washington USA
Sun, 23 Oct 2005
Law Blog Trademarked
CK - Washington. The Markenblog blog reports that on October 21, 2005 the term law blog has been registered by the owner of the popular German blog law blog. The registration does not expressly cover blogs but legal services in class 42 and services including the presentation of creative works in class 41. The German registration should not affect the general use of the generic or descriptive term by others.
© German American Law Journal :: Washington USA
CK - Washington. The Markenblog blog reports that on October 21, 2005 the term law blog has been registered by the owner of the popular German blog law blog. The registration does not expressly cover blogs but legal services in class 42 and services including the presentation of creative works in class 41. The German registration should not affect the general use of the generic or descriptive term by others.
© German American Law Journal :: Washington USA
Wed, 19 Oct 2005
Vigorous Representation
CK - Washington. German defense counsel are outraged over the conviction of, and the penalty imposed today on, a respected colleague who in a crimial matter dared question the integrity of police reports. From discussions in German lawyers' boards, the attorney appears to have understood the document(s) to have been tampered with and the police officer(s) to have misrepresented information on their handling.
The matter is the topic of a special purpose blog, Vier Strafverteidiger, i.e. four defense counsel. The Braunschweig court did not mete out a true criminal punishment. Instead, it chose a warning with the threat of a fine measured by 15 days.
This amount is just below the threshhold for eligibility for an appeal--causing additional outrage. The Lichtenrader Notizen blog explains the appellate issues and the option of going beyond the next higher court for a legal review, Revision, specifically a Sprungrevision.
© German American Law Journal :: Washington USA
CK - Washington. German defense counsel are outraged over the conviction of, and the penalty imposed today on, a respected colleague who in a crimial matter dared question the integrity of police reports. From discussions in German lawyers' boards, the attorney appears to have understood the document(s) to have been tampered with and the police officer(s) to have misrepresented information on their handling.
© German American Law Journal :: Washington USA
Sat, 15 Oct 2005
Hotel Marks in Germany and Spain
CK - Washington. In the matter 33 O 209/03, the Cologne District Court, Landgericht ruled on September 13, 2005 that a German trademark for hotels in Germany is not violated by the same mark used for a hotel in Spain even if the Spanish hotel is listed in the English and German-language fliers and English Internet presentations and works with a German bus operator which advertises in Germany and brings tourists to the Spanish hotel.
In addition to the trademark claim, the court addressed an unfair competition claim raised by the German trademark owner and determined that there is no civil liability under competition law because the customers exist in distinguishable markets which appear not to be in competition with each other.
Without explanation, the Dr. Bahr blog calls the ruling wrong. Bahr is in the northern city of Hamburg. The Hamburg courts tend to favor extreme positions when it comes to the Internet, advocating an extraterritorial approach to German law that other German courts appear to reject.
Since trademarks, like other intellectual property rights, confer legality upon a monopoly, the general rule is that they be constructed restrictively, and the Cologne court seems to properly affirm that rule. Also, the Cologne court respects the territoriality principle of trademark law.
Update: Reading the Bahr comment again, Bahr may not actually disapprove of the Cologne decision. A comma after Zu Unrecht would clarify what he means.
© German American Law Journal :: Washington USA
CK - Washington. In the matter 33 O 209/03, the Cologne District Court, Landgericht ruled on September 13, 2005 that a German trademark for hotels in Germany is not violated by the same mark used for a hotel in Spain even if the Spanish hotel is listed in the English and German-language fliers and English Internet presentations and works with a German bus operator which advertises in Germany and brings tourists to the Spanish hotel.
Update: Reading the Bahr comment again, Bahr may not actually disapprove of the Cologne decision. A comma after Zu Unrecht would clarify what he means.
© German American Law Journal :: Washington USA
Fri, 14 Oct 2005
Scan Checks
CK - Washington. In the German economy, checks assume a minor role because giral transfers have dominated European banking systems for centuries. Still, the management of some 12 million checks per year can be cumbersome and costly.
To ease such burdens, a new law came into effect on October 13, 2005 that permits the electronic processing of checks similar to the Check 21 procedures established in the United States last year. The Berlin Department of Justice published a press release that describes the process and benefits.
© German American Law Journal :: Washington USA
CK - Washington. In the German economy, checks assume a minor role because giral transfers have dominated European banking systems for centuries. Still, the management of some 12 million checks per year can be cumbersome and costly.
© German American Law Journal :: Washington USA
Thu, 13 Oct 2005
Transfer of Software
CK - Washington. A decision on software law by the German Supreme Court in Civil Matters, Bundesgerichtshof, in Karlsruhe is the subject of Arne Trautmann's careful analysis in the Law Blog on October 10, 2005.
The decision of March 3, 2005 in the matter IZR111/02, a/k/a Fash 2000, involves the requirements for a transfer of a copyrightable work and specifically a complex a computer program. The court considers the program of copyrightable quality which is not the standard for all software under German copyright law.
The key issue is whether a program that has been coded by one programmer--and after a transfer to a corporation--has been added to by other programmers, requires the consent of all three programmers for the further transfer from the estate of the then-bankrupt corporation to another party.
The court examined the issues of the rules of construction of contracts and, in particular, of distinguishing a co-authored work from an original work made by its creator and enhanced with modifications and adaptations made by others. Trautmann clarifies the main conclusions of the court.
The transfer of a joint work will require the joint consents of all creators, none of which may be unreasonably refused. By contrast, if there is an original work plus enhancements, the original creator controls the transfer. Whether the programmers of the enhancements have any control depends on their authority to modify the work. These are factual issues which the court sent back to the lower court for examination.
That court will need to determine whether the coders involved after the orginal creation subsumed their contributions to a common overriding development concept, in which case they may be deemed joint authors with the original programmer.
© German American Law Journal :: Washington USA
CK - Washington. A decision on software law by the German Supreme Court in Civil Matters, Bundesgerichtshof, in Karlsruhe is the subject of Arne Trautmann's careful analysis in the Law Blog on October 10, 2005.
© German American Law Journal :: Washington USA
Mon, 10 Oct 2005
Merkel to Manage Coalition
CK - Washington. The Foundation Agreement for the Negotiations of a Coalition by CDU/CSU and SPD of October 10, 2005 gives CDU chief Angela Merkel the principal management role in the new coalition government. Any major changes in the changing the allocation of authority within the government will not depend solely on her but require negotations toward a new consensus. The coalition paper describes the distribution of departments among the parties as follows:
The paper identifies a few substantive understandings, including one on the simplification of the personal income tax system and on a tax holiday for bonus payments on Sunday, night and holiday work. The objectives pursued here are transparency, efficiency and fairness.
© German American Law Journal :: Washington USA
CK - Washington. The Foundation Agreement for the Negotiations of a Coalition by CDU/CSU and SPD of October 10, 2005 gives CDU chief Angela Merkel the principal management role in the new coalition government. Any major changes in the changing the allocation of authority within the government will not depend solely on her but require negotations toward a new consensus. The coalition paper describes the distribution of departments among the parties as follows:
- Chancellor: CDU
- Vice Chancellor: SPD
- Commerce, Technology: CDU/CSU
- Interior: CDU
- Defense: CDU
- Family, Seniors, Women, Youth: CDU
- Education, Research: CDU
- Consumer Protection, Food, Agriculture: CDU
- Foreign Office: SPD
- Finance: SPD
- Justice: SPD
- Economic Cooperation, Development: SPD
- Labor, Social Security: SPD
- Health: SPD
- Transportation, Construction, Housing: SPD
- Environment, Nature Preservation, Reactor Safety: SPD
The paper identifies a few substantive understandings, including one on the simplification of the personal income tax system and on a tax holiday for bonus payments on Sunday, night and holiday work. The objectives pursued here are transparency, efficiency and fairness.
© German American Law Journal :: Washington USA
Sat, 08 Oct 2005
Jurisdictional Discovery
CK - Washington. In the Embassy Law Blog, Thomas Corcoran explains the D.C. Circuit's September 30, 2005 ruling in Robert Lee Beecham et al. v. Socialist People's Libyan Arab Jamahiriya et al., docket number 04-7037, which involves the issue of damages for those killed in the Berlin discotheque bombing--which followed the killing of 35 Libyan seamen in a naval clash with the United States of America and after which then-President Reagan bombed Tripoli, killing another 15--and the sovereign immunity exception claimed by the government of Libya under the Foreign Sovereign Immunities Act.
Libya's appeal of the jurisdictional discovery plan suggested by the district court was ruled premature. As a result, in FSIA cases, sovereign defendants may be ordered to participate in a joint effort to develop a plan for jurisdictional discovery without being able to claim that the order constitutes an undue burden under the FSIA.
© German American Law Journal :: Washington USA
CK - Washington. In the Embassy Law Blog, Thomas Corcoran explains the D.C. Circuit's September 30, 2005 ruling in Robert Lee Beecham et al. v. Socialist People's Libyan Arab Jamahiriya et al., docket number 04-7037, which involves the issue of damages for those killed in the Berlin discotheque bombing--which followed the killing of 35 Libyan seamen in a naval clash with the United States of America and after which then-President Reagan bombed Tripoli, killing another 15--and the sovereign immunity exception claimed by the government of Libya under the Foreign Sovereign Immunities Act.
© German American Law Journal :: Washington USA
Wed, 05 Oct 2005
Court Expands Jurisdiction
CK - Washington. Today, the Cologne Circuit published a press release in the matter 16 U 36/04 explaining its ruling on an interlocutory appeal dated September 12, 2005. The court expands the jurisdiction of German courts and possibly other European courts by permitting domestic parties to sue economically more advantaged foreign parties, such as insurance carriers, domestically.
The dispute involves a car driver's insurance claim against the insurer of a vehicle after an accident outside of Germany. The plaintiff sued the foreign insurer in Germany, and the local court dismissed the complaint for lack of international jurisdiction.
On appeal, the Cologne Court of Appeals construed the EU directive of December 22, 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to mean that the legislator intended to confer international jurisdiction over a foreign insurer in automobile accident matters and to permit the victim to sue a foreign insurer domestically.
The court found additional support in a guideline of May 2005 which it read to strengthen the position of consumers against insurers. The decision is not final. It runs counter to the majority of interpretations of the jurisdictional rules in Germany and may be limited to European defendants.
© German American Law Journal :: Washington USA
CK - Washington. Today, the Cologne Circuit published a press release in the matter 16 U 36/04 explaining its ruling on an interlocutory appeal dated September 12, 2005. The court expands the jurisdiction of German courts and possibly other European courts by permitting domestic parties to sue economically more advantaged foreign parties, such as insurance carriers, domestically.
On appeal, the Cologne Court of Appeals construed the EU directive of December 22, 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to mean that the legislator intended to confer international jurisdiction over a foreign insurer in automobile accident matters and to permit the victim to sue a foreign insurer domestically.
© German American Law Journal :: Washington USA
Tue, 27 Sep 2005
DAJV Newsletter in New Format
CK - Washington. Thanks to Professor Dr. Karsten Otte, we know that the key periodical of the German American Lawyers' Association, Deutsch-Amerikanische Juristen-Vereinigung e.V. will soon appear in a new and improved format.
The DAJV-Newsletter will be published by the major law publisher Verlag Recht und Wirtschaft in Frankfurt/Main.
The Newsletter will continue to publish articles and notes in German and English on subjects of American law and the intersection of German and American law. Although it has long outgrown the newsletter format, the publication will retain its historical name. News contributors should contact Prof. Otte, its editor. Orders should be directed to the publishing house.
© German American Law Journal :: Washington USA
CK - Washington. Thanks to Professor Dr. Karsten Otte, we know that the key periodical of the German American Lawyers' Association, Deutsch-Amerikanische Juristen-Vereinigung e.V. will soon appear in a new and improved format.
© German American Law Journal :: Washington USA
Sat, 24 Sep 2005
American DVD = Pornography
CK - Washington. The Düsseldorf law blog raises the issue of criminal investigations for the import of DVDs from American sources. Such imports can result in a notice of criminal investigation to the buyer. The blog lists the form used by the customs service.
The various comments to the note observe that the German age verification system, AVS, for pornography transactions on the Internet is easily and customarily circumvented by sellers in foreign countries, not only in the United States. They do not use the mandatory AVS for transactions with German buyers. The system intends to protect minors. Some doubt that such a system can ever work because it does not reach all types of delivery, for instance satellite transmissions.
One comment notes that any unrated DVD from abroad will be treated as pornographic and, therefore, result in an illegal import. The rationale is that the customs officer is not the proper authority to determine whether some content constitutes pornography or not. The investigation is directed against the seller, not the buyer but the notice to the buyer is often written in terms that cause buyers to believe they are the targets.
© German American Law Journal :: Washington USA
CK - Washington. The Düsseldorf law blog raises the issue of criminal investigations for the import of DVDs from American sources. Such imports can result in a notice of criminal investigation to the buyer. The blog lists the form used by the customs service.
© German American Law Journal :: Washington USA
Export to UK, Re-Export to Iraq
CK - Washington. A German export control case that resulted in a criminal conviction is the topic of a discussion in the Lichtenrader Notizen blog. A German company equipped Japanese SUVs with reinforced shielding and obtained several export licenses for the U.K. Apparently, the SUVs ended up in Iraq and successfully shielded Britons attacked there.
While the company obtained five export licenses for five vehicles, it exported 15 SUVs. As specially shielded equipment, they were subject to special controls, requiring a license for each vehicle, although the rules changed on July 1, 2005 to allow for a type license that now would cover the entire transaction.
The transaction was valued at 1.8 million Euros, and the criminal conviction requires the company to pay this amount in restitution. The sentence is being appealed.
© German American Law Journal :: Washington USA
CK - Washington. A German export control case that resulted in a criminal conviction is the topic of a discussion in the Lichtenrader Notizen blog. A German company equipped Japanese SUVs with reinforced shielding and obtained several export licenses for the U.K. Apparently, the SUVs ended up in Iraq and successfully shielded Britons attacked there.
While the company obtained five export licenses for five vehicles, it exported 15 SUVs. As specially shielded equipment, they were subject to special controls, requiring a license for each vehicle, although the rules changed on July 1, 2005 to allow for a type license that now would cover the entire transaction.
© German American Law Journal :: Washington USA
Sun, 18 Sep 2005
What now?
CK - Washington. The future of legislative projects in Germany appears clouded, at least within the first two hours of the close of polling stations in all of Germany except Dresden. In German-speaking circles in Washington, skepticism meets declarations of victory by the speakers of all major parties. The Berlin deadlock is painfully obvious.
A mirror of Gore v. Bush seems unlikely. Courts will not have to decide the outcome of this election, except possibly for the effects of the Dresden sideshow which may become decisive. At this time, the parties have no choice but to negotiate terms for working coalitions. There are several possible scenarios, in each of which major politicians will need to swallow their pride in the hope of constructing a working majority.
© German American Law Journal :: Washington USA
CK - Washington. The future of legislative projects in Germany appears clouded, at least within the first two hours of the close of polling stations in all of Germany except Dresden. In German-speaking circles in Washington, skepticism meets declarations of victory by the speakers of all major parties. The Berlin deadlock is painfully obvious.
© German American Law Journal :: Washington USA
Thu, 08 Sep 2005
By-Election in Dresden
MAG - Washington. The 2005 election drama adds another act. The election board of the Free State of Saxony announced on September 8, 2005 that the elections in the electoral district of Dresden have to be cancelled and newly arranged.
By statute, a
by-election needs to meet the requirements of §43
of the federal election code; Bundeswahlgesetz.
The rerun was caused by the sudden death of
Kerstin Lorenz, candidate for
the Nationalistic
Party of Germany, NPD on September 7, 2005. She
died at the age of 43 after suffering a cerebral apoplexy at
a campaign rally on September 5, 2005.
The exact date of the by-election has not yet been set.
There is general agreement, however, that the general federal elections to the diet in Berlin on September 18, 2005 will not produce
a final result. If there should be a narrow
majority after the general election, the electoral district 160 of
Dresden could decide the outcome for the nation.
Authorities are still verifying if it is possible to publish
a preliminary result on September 18. But the final result
of the 2005 elections will have to be postponed at least for several
weeks until the beautiful Saxon city has also
given their approximately 219,000 votes.
© German American Law Journal :: Washington USA
MAG - Washington. The 2005 election drama adds another act. The election board of the Free State of Saxony announced on September 8, 2005 that the elections in the electoral district of Dresden have to be cancelled and newly arranged.
© German American Law Journal :: Washington USA
Fri, 02 Sep 2005
Soldier with Conscience
CK - Washington.In a complex ruling in the matter BVerwG 2WD 12.0-4 of June 21, 2005, the Federal Supreme Court for Administrative Law, Bundesverwaltungsgericht, in Leipzig determined that
(1) the U.S./U.K. war in Iraq violates international law; and
(2) a German soldier's refusal to follow orders to support that war is proper.
The court explained, among other issues, that a soldier's duty to follow orders is not unlimited. The soldier's exercize of conscience deserves respect by the law, while a law that supports an illegal war does not.
The soldier had refused to assist German NATO operations in support of the war which Germany based on NATO statutes that the court considered constitutional.
The just published decision clarifies that the soldier's conscience and the nation's constitution require no balancing because the soldier's decision did not affect the nation's ability to pass constitutional laws.
© German American Law Journal :: Washington USA
CK - Washington.
(1) the U.S./U.K. war in Iraq violates international law; and
(2) a German soldier's refusal to follow orders to support that war is proper.
The soldier had refused to assist German NATO operations in support of the war which Germany based on NATO statutes that the court considered constitutional.
© German American Law Journal :: Washington USA
Nazi Persecution Through the End
CK - Washington.Political persecution by a regime continues until a regime ends its hostile attitude towards the persecuted or is itself ended, the Federal Supreme Court for Administrative Law, Bundesverwaltungsgericht, in Leipzig held on August 25, 2005.
The decision in the matter BVerG 7C19.04 reverses a lower court decision which understood persecution to end, with respect to the statute for the recovery of property lost to the Nazis or sold under pressure of political persecution, when the government returned expropriated property to its owner. In the case at bar, the Nazi government had returned the property in 1934 but kept the pressure on the exile owner who sold the property in 1939.
In the court's view, the action for the recovery of the property may proceed, and the heirs of the original owner may prove their case based on the assumption that persecution of their father continued until the end of the Nazi regime in 1945.
© German American Law Journal :: Washington USA
CK - Washington.
© German American Law Journal :: Washington USA
Thu, 01 Sep 2005
Foreign Assistance: No Thanks
CK - Washington. Information pours in that the United States declines offers of flood assistance from foreign countries.
On the radio, listeners complain that foreign countries show no interest in assisting America. Gradually, some radio stations broadcast corrections to that view.
By tonight, it seems clear that such offers meet resistance. Under NATO/SOFA, GIs from American military bases were free to act in Germany, and they assisted regularly and generously in German floods and other catastrophes. Germany is one of the countries that has offered the United States disaster relief, such as from its Technical Relief Agency, THW. Naturally, Germany is not in the same position as the United States under NATO/SOFA and may not send its troops from its bases in the Southwest to the flood zones, to fly in its search and rescue experts, or to bring THW generators to the South.
Sovereignty and humanitarian aid--a complicated mix.
Update: NBC News just confirms that the Administration has rejected foreign offers of assistance.
© German American Law Journal :: Washington USA
CK - Washington. Information pours in that the United States declines offers of flood assistance from foreign countries.
Update: NBC News just confirms that the Administration has rejected foreign offers of assistance.
© German American Law Journal :: Washington USA
Thu, 25 Aug 2005
Elections in September Approved
MAG - Washington. The German Constitutional Court ruled on August 25, 2005 that President Köhler's decision to dissolve parliament on July 21, 2005 was not unconstitutional, 2 BvE 4/05 and 2 BvE 7/05.
Two members of parliament had complained to the highest court that dissolving parliament and calling for new elections on September 18, 2005 would conflict with Article 68 of the German Constitution and would, therefore, be unconstitutional.
The Constitutional Court, Bundesverfassungsgericht, gave President Köhler's decision the required legitimacy with its ruling. Although the election campaign started in July, the final decision was made by the Court.
© German American Law Journal :: Washington USA
MAG - Washington. The German Constitutional Court ruled on August 25, 2005 that President Köhler's decision to dissolve parliament on July 21, 2005 was not unconstitutional, 2 BvE 4/05 and 2 BvE 7/05.
Two members of parliament had complained to the highest court that dissolving parliament and calling for new elections on September 18, 2005 would conflict with Article 68 of the German Constitution and would, therefore, be unconstitutional.
The Constitutional Court, Bundesverfassungsgericht, gave President Köhler's decision the required legitimacy with its ruling. Although the election campaign started in July, the final decision was made by the Court.
© German American Law Journal :: Washington USA
Mon, 22 Aug 2005
Pleading Jurisdictional Defects
CK - Washington. In a victory for foreign plaintiffs, the eighth civil division of the Federal Supreme Court, Bundesgerichtshof, in Karlsruhe decided on June 1, 2005 that a motion to dismiss for lack of local jurisdiction should be construed to incorporate a motion to dismiss for lack of international jurisdiction.
The decision in the matter VII ZR 256/04, published at recht-in.de involves a contract for payment for goods sold by a German manufacturer to a Belgian distributor. The court found the German conflicts of laws rules and terms of the supply agreement to point to jurisdiction over the Belgian defendant in a German court. The defendant had moved to dismiss the complaint for lack of local jurisdiction and had failed to expressly plead a lack of international jurisdiction.
The Supreme Court examined the applicable EU directives and their transformation in German law as well as the rules of construction for procedural pleadings. It found that the defective pleading was open to interpretation, but not the view that the defendant meant to plead that another German court had jurisdiction over the defendant. Instead, the only possible view is that any German court would lack international jurisdiction. This is the only result that the lower court should have arrived at, the upper court held. Accordingly, the lower court should not have construed the defective pleading as a waiver of the defense of lacking international jurisdiction.
This segment of the ruling would apply also in a German-American setting, although the ultimate outcome of the case was controlled by EU and German law.
The German concept of local jurisdiction is somewhat similar to personal jurisdiction in the United States, but also contains elements of the concept of venue. The concept of international jurisdiction under German law is frequently overlooked.
© German American Law Journal :: Washington USA
CK - Washington. In a victory for foreign plaintiffs, the eighth civil division of the Federal Supreme Court, Bundesgerichtshof, in Karlsruhe decided on June 1, 2005 that a motion to dismiss for lack of local jurisdiction should be construed to incorporate a motion to dismiss for lack of international jurisdiction.
© German American Law Journal :: Washington USA
Sat, 20 Aug 2005
Uniformed Officer no Clown
CK - Washington.Calling a uniformed officer a clown can constitute libel. A passenger demanded to see the ID of a uniformed officer on a train during a random ticket inspection with these words: "Any old clown could ask for my ticket, let me see your ID."
The Tiergarten court in Berlin found the statement libelous and sentenced the rider to a penalty of 225 Euros, the Lichtenrader Notizen blog reports before it extensively reprints the appellate ruling.
The appellate court in Berlin analyzed the libel statute in §185 of the Criminal Code in light of constitutional free speech considerations and the justification rules of §193 of the Criminal Code.
In the matter (4) 1 Ss 93/04 (91/04), the fourth criminal division of the court upheld the lower court on August 12, 2005 because it found the statement to have been made with defamatory intent and a retaliatory motive which were not outweighed by free speech considerations.
The nuisance value of the random check must have been high for the passenger who happened to have no ticket.
© German American Law Journal :: Washington USA
CK - Washington.
© German American Law Journal :: Washington USA
Sat, 13 Aug 2005
Compilation of Internet Law
CK - Washington. A comprehensive compilation of German internet law, widely known as the Hoeren-Skript, after Thomas Hoeren, a law professor in Münster and one of the pre-eminent German technology authors, is now available in its August 2005 edition.
The 492-page compilation is offered as a free download in the PDF file format. In addition to introductions, commentary and annotations, Hoeren presents useful statutory material and sample forms that readers can tailor to their needs.
© German American Law Journal :: Washington USA
CK - Washington. A comprehensive compilation of German internet law, widely known as the Hoeren-Skript, after Thomas Hoeren, a law professor in Münster and one of the pre-eminent German technology authors, is now available in its August 2005 edition.
© German American Law Journal :: Washington USA
Fri, 05 Aug 2005
Sweat of the Brow: HTML
CK - Washington.Converting a client's ads from a text processor file to an HTML file, without more, is sweat of the brow-type work, not a copyrightable work under German copyright law, the Frankfurt Court of Appeals decided in the matter 11U64/04 on March 22, 2005.
On August 4, 2005, Niko Härting made the decision available and added a comment. In particular, he notes that this decision follows a trend among German courts that fail to protect web designs based on works created in other formats, for lack of creativity.
In this matter, the court explored copyright protection and liability under unfair competition law in the context of a web site that advertises employment opportunities for its clients. A competitor had scraped its content after receiving an identical assignment from one of its clients. The client had provided the content for the ads.
The parties argued whether HTML constitutes a programming language that is encompassed by the software protection rules of the copyright act. They also disagreed over the issue of protection afforded the advertisements under the database protection law, in §§87 et seq. of the Copyright Act.
The court confirmed that the creation of a web site based on other content is capable of general copyright protection if its digital production displays the required amount of creativity as per § 2(2) of the copyright statute. The ads at issue represent a technical production process, not a creative one, the court held.
The court ventured further, in order to determine whether special rules protecting software programs might apply. After discussing the view of some courts that HTML code constitutes a software program, the Frankfurt court found HTML to represent a mere communications tool, even as some information is being coded for a web site. It finds the content to represent the creative element, not the code that makes the site happen.
The technical underpinnings of this argument seems implausible: Various technical solutions can create the same content representation on a web site. Clearly, the same is true for software programs in general: We can program in Delphi or Basic, C or Symbian the same perceptible result; nobody would claim that works created in these programming languages would not constitute programs just because the perceived result is identical.
On the unfair competition claim, the court found that the parties created web representations of their clients' work where the web design firms' work was insignificant and not worthy of independent protection. Customers would not be misled, and quality standards are not characteristic for the scraped site. The plaintiff had not presented the court with evidence of special structure, logic, content or graphical representations that went beyond the ordinary. These factors may sway this court in future cases.
© German American Law Journal :: Washington USA
CK - Washington.
© German American Law Journal :: Washington USA
Wed, 03 Aug 2005
Dr. No Title. No Dr. OK
CK - Washington.The German law blog world is abuzz in discussion of an analysis by Dr. Wolfgang Zimmerling entitled Zum Anspruch auf Anrede mit dem Doktorgrad, or The Right to Being Addressed with the Degree of Doctor.
Dr. Zimmerling explains that the academic degree is not part of the name for purposes of §12 of the Civil Code which controls rights relating to names. Rather, Zimmerling notes that the degree is merely academic and not even a title, although the term doctor is colloquially used as, and frequently said to be, a title. §18(2) of the statute on the framework for universities, Hochschulrahmengesetz, HRG, conclusively leads to that result.
Subject to one important exception, a person with that degree may not insist on being addressed as Dr. SoAndSo. The exception follows from a decision by the top German court for employment matters, Bundesarbeitsgericht, which held that employers are required, absent exigent circumstances, to use the degree of an employee in external communications; see MDR 1984, 873 et seq.
Zimmerling's discourse provides relief to all who focus on substance and may confuse matters of form.
© German American Law Journal :: Washington USA
CK - Washington.
© German American Law Journal :: Washington USA
FIFA Wins Trademark Dispute
MAG - Washington. The German federal patent court in Munich ruled on August 3, 2005 that corporate users of its soccer world cup trademark, such as food manufacturer Ferrero--which had lodged a complaint against FIFA, the world body governing soccer championships,--will remain unauthorised to use FIFA's trademarks "WM 2006" and "Fussball WM 2006" in advertising or on their products without FIFA license. In the matters 32 W(pat)237/04 and 238/04, the court thereby ended a long dispute between the FIFA and companies that disputed the registrability of the marks.
© German American Law Journal :: Washington USA
MAG - Washington. The German federal patent court in Munich ruled on August 3, 2005 that corporate users of its soccer world cup trademark, such as food manufacturer Ferrero--which had lodged a complaint against FIFA, the world body governing soccer championships,--will remain unauthorised to use FIFA's trademarks "WM 2006" and "Fussball WM 2006" in advertising or on their products without FIFA license. In the matters 32 W(pat)237/04 and 238/04, the court thereby ended a long dispute between the FIFA and companies that disputed the registrability of the marks.
© German American Law Journal :: Washington USA
Tue, 02 Aug 2005
Possession Vests in Heir
CK - Washington. Johanna Knapp published at recht-in.de a useful overview of the civil code rules that apply to possessory rights of an heir after an inheritance.
Generally, under German law, an heir steps into the shoes of the decedent. Unlike the laws in the United States which provide for probate and possessory rights vested in an executor or administrator, German law transfers possession of the assets of an estate immediately to the heirs.
The specific
CK - Washington. Johanna Knapp published at recht-in.de a useful overview of the civil code rules that apply to possessory rights of an heir after an inheritance.