Mon, Dec. 10, 2007

Liability for Related Contracts

CK - Washington.   The owner of a remotely sited house ordered from one company the installation of a power and heat plant, and from another company a heating system that draws on the plant. When the building is not properly heated, the owner refuses payment to the second company and rescinds its contract. The power and heat plant has a much lower output than the owner had been advised to order but had not ordered. In addition, the owner's low demand for electricity from the plant fails to make it generate enough heat even if he had ordered a plant with higher output.

That is the situation facing the German Supreme Court in the matter VII ZR 183/05 which it decided on November 8, 2007. The December 7, 2007-published opinion explains the relative responsibilies and liabilities under §633(2)(1) of the German civil code, Bürgerliches Gesetzbuch. The factual constellation is not particularly unusual. It occurs often when a contract depends on the performance of another and both contracts relate to different parties.

Here, the court remanded the dispute to the Munich court of appeals after defining the relative responsibilities. First, it notes that the contract is not substantially performed when the resulting work fails in the functionality the parties contracted for. Second, a default resulting from a failure in the performance of a related contract is excused when the obligations of examination and disclosure, such as by testing and warning of deficiencies, have been met. Third, the evidentiary burden lies with the party demanding payment for its performance. The court clarifies that the first rule applies also after the revisions to the law of obligations in the German civil code.



Sun, Dec. 09, 2007

Remedy Effectively Waived

CK - Washington.   A criminal defendant can effectively waive all rights to an appeal and is then barred from a review by the Supreme Court in Karlsruhe, that court decided in the matter 2 StR 533/07 on December 6, 2007 in applying §349(I) StPO of the German rules of criminal procedure. In a rape case, the court advised the convicted defendant of the available remedies, handed out a written form with explanations--not available via Google--, and explained the general and special rules for an appeal and further review. The defendant then waived an appeal, Rechtsmittelverzichtserklärung, upon which the judgment became final, the Supreme Court held. The court. Bundesgerichtshof published its November 21, 2007 opinion on Decmeber 7, 2007.



Sat, Dec. 08, 2007

Mouse Roars, Stops Comments

CK - Washington.   In the scheme of Germany justice, the Hamburg District Court is an insignificant court of first instance except that its 24th division, the press chamber, acquired notoriety under its chief judge Buske. Buske is well-known and feared among bloggers in Germany because of the division's extraordinary rulings against free speech under theories of vicarious and contributory liability.

A new momentous decision of the chamber in response to a petition for a TRO has not yet been published but has immediate consequences for bloggers in Germany. Buskeismus calls the division the censorship chamber and published a partial transcript of the November 11, 2007 hearing.

The court confirmed on December 4, 2007 a TRO against a blogger for an illegal third-party comment available on his blog on a Sunday morning before the blogger detected and removed it. The blog-entry and comment relate to a seemingly deceptive, interactive TV show, according to some reports.

According to various reports in Germany, the press chamber's decision requires bloggers to screen comments before publication if a blog entry is likely to trigger illegal comments. The ruling in this civil case will not necessarily stand, in light of a prior decision on a screening requirement for Internet forums. The Hamburg court of appeals reversed it.

Other courts in Germany tend to dismiss the stance of the Buske chamber. Yet, the exposure to bloggers is imminent and means potential irreparable harm. A viable appeal is possible only after the release of the opinion and the press chamber tends to accept jurisdiction in Internet press matters over defendants in all of Germany.

Buskeismus' report reveals some regret on Buske's part that the parties did not settle the dispute. Perhaps he recognizes the value of the comment function in blogs as a legal and effective remedy to enable instant corrections and clarifications of blog entries, thus alleviating burdens on the system of justice.



Royalties on Printers

CK - Washington.   In 2001, the German Supreme Court in Karlsruhe, Bundesgerichtshof, ruled in favor of copyright royalties payable on scanners, and the revised copyright act extends the payment obligation to printing euqipment and other gear suitable for the reproduction of copyright-protected material, see Kochinke, Royalty Societies,, November 25, 2007.

On December 6, 2007, the court concluded that the existing German copyright statute does not create royalty obligations on printers. The court analyzed the current statute--which will be replaced on January 1, 2008--and found no indirect payment obligation in its §54a (I)1 that applies to equipment not designed for copying material.

The court determined that printers by themselves are not copiers; in conjunction with scanners, they could operate as a chain of tools to reproduce protected material. In that case, a reproduction fee is already paid on the scanner and no additional fee would be payable on printers.

The plaintiff, the German royalty society for the written word, VG Wort, considers a constitutional appeal to the Federal Constitutional Court in Karlsruhe. In the matter I ZR 94/05, the court posted a press release, in German, on December 7, 2007 on its website and will soon publish its written opinion.



Fri, Nov. 30, 2007

A Proper Invoice

CK - Washington.   Dear Counsel: Please ensure that we receive a proper invoice. The FDA invoice for its fees is illegal. It does not comply with German and E.U. rules for invoices.

Dear Client: The American government is unlikely to change its invoicing procedures to produce invoices that allow you to deduct the fees from your taxes.

Here is a solution: Use our invoice which incorporates the fees as an expense because we advanced the fee to the government. Our invoice is drafted to meet the requirements of the E.U. and German rules on invoicing.

Also, you may want to check with your tax department. I remember something in those rules about exceptions for invoices from non-E.U. countries.

Unfortunately, I can't help you with the profit you made as a result of the changes in the exchange rates. When we advanced the fee in dollars for you, you thought it would cost X euros. By the time you receive our bill, it will cost you 10% less. I suppose that cost savings could be tax-free. Enjoy!



Sun, Nov. 25, 2007

Royalty Societies

CK - Washington.   Royalty societies in Germany. such as VG Wort for texts, manage various statutory royalties for the exploitation of intellectual property rights. They ensure revenue collection and distribution for authors and inventors. They reduce administrative overhead of, and generally simplify, licensing activities.

At the same time, they burden publishers and manufacturers with accounting and payment obligations. New products and media, from digital printers to flash memory, may not directly involve copyrighted content, such as music or scientific articles. But they are capable of generating and distributing copies of such material and, therefore, affect licensing of intellectual property. Imports of products that have not been subject to royalty collection at the source become cumbersome.

When the second basket of major revisions to Germany copyright law, zweiter Korb, will become effective on January 1, 2008, recent and future technologies should become subject to mandatory participation in the royalty management system administered by the IP royalty societies. A comprehensive, German-language introduction into the legal and business aspects of such societies is available as a PDF download, 6 politik und kultur--Zeitung des Deutschen Kulturrats, 32 (2007).



Sat, Nov. 17, 2007

Immunity for Turkey

CK - Washington.   An appellate court in the social matters branch, Hessisches Landessozialgericht, dismissed a complaint against Turkey or Turkish pension carriers by former Turkish citizens who became Germans, on the basis of sovereign immunity. The November 12, 2007 decision should appear soon on the website of the court. No-nonsense blog Recht und Alltag summarizes press release 39/07, in the matter L 2 AR 7/06.

The substantive issue is whether Turkey may refuse former Turkish citizens pension payments supposedly earned through their contributions to the Turkish social security system. Germany and Turkey differ on the interpretation of a bilateral social security agreement that the two nations concluded in 1964.



Tue, Nov. 13, 2007

Members of the German Bar

CK - Washington.   A complete register of German members of the bar began operations on November 13, 2007 at www.rechtsanwaltsregister.org. While regional bar groups, Rechtsanwaltskammer, operate as the supervisory authorities for attorneys in Germany, the Bundesrechtsanwaltskammer functions at the federal level as an overlord that created the new register.

At first glance, the electronic register operates well, although attorneys dispensed from the requirement of maintaining an office will be shown with an office--the office of the registered agent--which is misleading. The register displays, however, that the dispensation has been approved. The list functions in both German and English.



Sun, Nov. 11, 2007

Enforcing Mediation Pacts

CK - Washington.   By 2009, agreements concluded in mediation for the resultion of disputes will enjoy cross-border recognition and enforcement in the European Union, German attorney general Brigitte Zypries stated on November 9, 2007. A crucial effect is that uniform recognition rules will toll the statute of limitations under various member nations' laws.

Implementing legislation in member states will follow the EU-wide agreement. German law will need minor changes. The new rules complement simplified cross-border rules on the recognition and enforcement of judgments in small claims matters which are scheduled to become effective on January 1, 2009.



Sat, Nov. 10, 2007

New Law Enforcement Rules

CK - Washington.   Against substantial opposition, the federal diet in Berlin passed two statutes to ratify European Union directives regulating wire-tapping and collection of data about communications. In the past, telecommunications companies had been authorized to collect and retain connection data for billing and administrative purposes; now they would be required to collect and retain them for six months--30 months less than had been discussed at the EU level, attorney general Brigitte Zypries notes on November 9, 2007.

In a press release of the same date, she also praises the enhanced scrutiny applied to wire-tapping provisions, searches and seizures as well as privileges in the Code of Criminal Procedure, Strafprozessordung, which apply to journalists, lawyers and physicians and their staff. Many critics see the new rules as more intrusive, however. The new rules permit, in §100a of the Code of Criminal Procedure, StPO, wire-tapping for economic crimes such as corruption and for human rights violations, among others. Wire-tapping would no longer be authorized for lesser crimes such as those punishable with a minimum term of less than five years of imprisonment.



Wed, Nov. 07, 2007

Jail for DA and Lawyer

CK - Washington.   Recently, a Mannheim DA and a Munich attorney have been sentenced to jail for bizarre conduct. The DA received a suspended sentence of eight months for passively neglecting and actively suppressing the prosecution of a criminal case. He suffers from a mental condition, lawblog reports on November 7, 2007. It may have worked in his favor.

On November 6, 2007, Winkelschreiber blog alerts to a full court decision published in the TAZ newspaper on the sentencing to six months in jail of an attorney widely despised for extreme cease-and-desist activities and arrogance. In the matter (276 Ds) 63 Js 6608/06 (58/07), the Tiergarten court in Berlin convicted the lawyer of attempted fraud under sections 263, 22, 23 of the German criminal code.

Following a cease-and-desist demand on the paper because of an unwanted email, the defendant billed TAZ in accordance with the German cost rules for his legal fees and also obtained a court order to enforce his fee claim. The paper paid but armed with the order, the lawyer attached the paper's domain name and initiated action to auction if off.

TAZ managed to rescue its domain name as a result of extraordinary action by its counsel, the court noted. The court did not buy the defendant-lawyer's excuse that his office was chaotic. Because of his priors, the court would not suspend the sentence, and the matter is now under appeal.



Tue, Nov. 06, 2007

Freight from China: IP Liability

CK - Washington.   A freight forwarder is not contributorily liable, under German trademark law, for the violation of trademarks by simply failing to inspect shipped goods for infringement just because they originate in a country known for infringing goods.

Medien, Internet und Recht published the August 15, 2007 appellate decision from the OLG Hamburg court in the matter 5 U 188/06. The court ruled in favor of the freight forwarder also because the packing did not enable the shipper to observe infringing marks on the goods.

The court also held that a petition for a TRO in IP matters must be preceded by a case-and-desist demand unless such action were clearly and objectively futile. Under the German rule of costs--loser pays--, an unfounded petition can be an expensive exercise.



Mon, Oct. 29, 2007

Choice of Courts and Arbitration

CK - Washington.   The Hague Convention on Choice of Court Agreements and Arbitration will be the topic of the luncheon presentation by David P. Stewart of the United States Department of State. The speaker will cover also the proposed revisions to the UNCITRAL arbitration rules. Call the new president of the GALA Capital Area Chapter, Ric Henschel, at Foley & Lardner, LLP in Washington, DC to learn if you can still RSVP.



Sat, Oct. 27, 2007

Trademark As Bait in Adwords

CK - Washington.   The use of competitors' trademarks in meta-tags of web sites and in adword advertising on search engines has led to many court decisions in Germany. The issue is settled for trademarks in meta-tags because the Supreme Court, Bundesgerichtshof, in Karlsruhe ruled such use improper, Impuls, GRUR 2007, 65.

For adword advertising, confusion reigns. A new Cologne decision published by Telemedicus approves of such use because the customer using at search results does not connect the search results with the advertising triggered by the trademark. In other words, such use is no use in terms of German trademark law, the appellate court determined in the matter 6 U 48/07 on August 31, 2007. The last word on the issue may come from the Supreme Court.

In addition to trademark law, the Cologne court also explored whether the adword trigger would constitute a violation of competition law. It states that marketing to customers of competitors is the essence of competition and not per se improper. The use of trademarks in adwords is not unfair nor does it mislead visitors of search engine sites, the court explains.



Fri, Oct. 12, 2007

IP Address Insufficient for Conviction

RM - Washington.   A criminal investigation in Germany produced the IP address of a computer from which a defamation allegedly originated. On August 7, 2007, the Bochum criminal court agreed with the defense that the standard of proof in criminal matters requires more than the identification of a computer.

The court in Germany found the owner of the computer not guilty. It concluded in the matter 35 Ds 4 Js 674/05 that wireless connections cause uncertainty as to whether the defendant or others used the network connection, in addition to the potential for hackers misusing an IP address.

This result is in line with expert opinions--such as internet consultant Zi Mei in his affidavit in the case Atlantic Recording Corporation et al. v. Does 1-25 or The Honeynet Project & Research Alliance and their study Know Your Enemy: Fast-Flux Service Networks--which pull the rug from the naive view that an IP adress is a suitable identifier of computer users.



Mon, Oct. 08, 2007

Police to Police PCs

CK - Washington.   In its press release no. 82/2007, the Supreme Constitutional Court of Germany in Karlsruhe announces the hearing of October 10, 2007 in the matters 1 BvR 370/07 and 1 BvR 595/07 on the constitutionality of the government's use of spy software in private computers.

While agencies in the federal government toy with the idea of such investigative tools, the state of North-Rhine-Westphalia has a statute on the books. The NRW statute amended the state constitution on December 30, 2006 to authorize such spying on citizens.

In non-technical language, the investigative type of software is known in Germany as Trojaner. The press release outlines, in German, the NRW statute, the challenges and the agenda of the Bundesverfassungsgericht panel.



Thu, Oct. 04, 2007

German-American Law Conference

CK - Washington.   After an encouraging and stimulating introduction by Ambassador Scharioth of the German Embassy in Washington, DC and both Ludwig Leyendecker and Georgetown University Law School Dean Alexander Aleinikoff relating German-American law relations back to the many expelled German lawyers who became influential in the United States and Europe since the early 1930s, the first annual meeting of the German-American lawyers group from Germany, DAJV, launched into intensive analyses of comparative German and American legal issues and the introduction into new legal developments in Germany.

The first panel examined global civil procedure by comparing the good and bad in the German and American, mostly federal, judiciary. Justice based on law and procedural justice were interestingly juxtaposed.

The intricacies of current trends in European M&A reminded some of early developments in federal, and sometimes conflicting, state law in the United States when regulating mergers and particularly hostile takeovers. Many of the tax aspects of M&A transactions in German law appeared to have some observing law students' eyes glaze over--but they were not alone in that feeling. The opening panels on October 4, 2007 proved a promising and successful beginning of the conference which has more attendants from Germany than ordinarily travel to the Berlin meetings.



Sat, Sep. 29, 2007

Bargain at Auction Legal

CK - Washington.   On September 28, 2007, the Pforzheim criminal conviction of an online auction buyer of equipment at a price too good to be true has been lifted, various news sites such as Netzeitung report.

The appellate ruling from the Karlruhe court, Landgericht Karlsruhe, is not yet published on its web site but an earlier press release is available. The auction buyer had paid approximately a third of the market price, and the Pforzheim court applied the fencing statute, ruling that the buyer should have known that the equipment was stolen.



Fri, Sep. 28, 2007

Issues in Digital Law

CK - Washington.   Lawgical published a fascinating summary of last week's conference on issues in electronic data processing and the law. The conference in Saarbrücken covered issues ranging from data processing via online transactions to data protection, related to the administration of justice, law practices and government agencies. The sequence of reports from September 23, 2007 backwards includes photos, videos and many useful written summmaries, in German.



Sat, Sep. 22, 2007

Bonn Feds Forego Bounce

CK - Washington.   Fighting spam by ignoring rules: The Federal Agency for Security in Information Technology, BSI, advises government agencies to forego bounce messages which the internet-technology rules for receiving mail servers, RFCs 821 and 2821, require. As a result, mistyped addresses in communications to such agencies will not trigger an error message to the sender.

A Heise investigation explains that the BSI action represents a response to spam. Spammers can fake email addresses and, through the bounce-notification system, can make recipients of spam believe the government would communicate with them when, in fact, the message originates from an unwanted source.

According to Heise, Bonn-based BSI justifies its violation of the SMTP RFCs with the need to fight spam and virus-payloads, to keep government servers from becoming blacklisted on spam-fighting lists, to avoid having the general population confused by spam mails ostensibly originating with the government and to ignore a now-inappropriate standard conceived before the rise of spam.

Some agencies accept mail with mistyped addresses, others simply drop it. Load and performance concerns do not allow all receiving mail servers at government agencies--and anywhere, for that matter--to analyze all incoming mail for improper or dangerous content in real time.

Once real-time analysis is generally feasible and implemented, adherance to generally accepted standards for Internet communications should not be questioned. The BSI-suggested approach may avoid some harm and do some good, but unilateral deviations from technical standards may lead to chaos that threatens all traffic on the network.



Tue, Sep. 11, 2007

Securing Satellite Data

GC - Washington.   September 10, 2007 marked the beginning of a discussion of the proposed Satellite Data Security Statute, SatDGSiG, in the federal diet in Berlin. The bill comes as a result of military and security officials concerned about terrorist groups and others with malicious intentions obtaining satellite data to undermine the country's and international security systems.

However, much of the discussion regarding the proposed bill has turned to better securing legal protection of personal information garnered from satellite images, an issue the bill does not address. Thilo Weichert, director of the Independent National Center for Data Protection Schleswig-Holstein, ULD, and Detlef Walter from the Office of Federal Commissioners for Data Protection are two of the most prominent officials lobbying for greater protection of personal information.

Weichert believes it necessary to create a separate law that protects potentially highly-sensitive data taken from satellites that could infringe upon personal privacy. With approximately 80% of the ground in Germany being privately owned, it would require too great an effort to demand everyone agree to the release of private satellite data. Instead, Weichert proposes a right to deny the publication of private information as well as restrictions on the generally available satellite data from providers such as Google Earth.

Infoterra, a German geodata information provider, is pleased with the legislation as it stands. The bill will help allow the use of components in German satellite systems subject to American export controls. Currently, the United States refuses the export of such parts without a statement of military security, something that the Satellite Data Security Statute could provide. Others believe that the statute is not necessary because the components could also be made in Germany.

Additional Observations - CK
1. Statutory Language:
The SatDGSiG bill is quite restrictive, requiring licensing of geodata distributors, imposing extensive and expensive record-keeping obligations, and complementing the restrictions with harsh civil and criminal sanctions. The bill contains vague and possibly overbroad language.

2. Harmful to Innovation:
Innovation in the important field of mash-ups of geodata will suffer. Well-established companies may be able to comply with the planned statute and future regulations. Innovators in basements and garages will be unable to comply, even with the basic licensing requirements.

3. Extraterritorial Effects:
The bill also has extraterritorial effects. German citizens working abroad may not be involved in systems that may be perfectly legal where they reside if German rules could be affected; the criminal provisions in §30 reach them world-wide. Germans employed by Google Earth in the United States may have to obtain a German license under the insular approach of the statute. As a result, German investment abroad in such technology may also suffer. In addition, licensed users will need to make delicative value judgments on sensitive data, not only with regard to their sensitivity in Germany but also as perceived abroad.

4. Privacy Expectations:
With regard to the objections from data-protection experts, their reported views appear myopic. Geodata includes much more than satellite data. Addressing privacy expectations for a limited range of geodata in a fragmented approach makes little sense. In addition, resolving a fraction of data-protection issues in the context of licensing the collection and distribution of satellite data seems counter-productive where a comprehensive system of data-protection laws exists, as is the case the European Union inclding Germany.



Mon, Sep. 03, 2007

Value Judgment and Defamation

GC - Washington.   In addressing the liability of an internet forum provider, the court of appeals, OLG, in Koblenz, Germany decided July 12, 2007 in the matter 2 U 862/06 that it is within the scope of freedom of expression to criticize a business on internet forums, as long as the criticism is not intended as pure defamation. In addition, there is no duty to screen comments before they appear in the forum.

The latter point comes as a direct contrast to rulings by courts in Hamburg, holding operators of such forums vicariously responsible for third party comments. The Hamburg lower court is adamant about imposing a duty to screen comments before publication, a position greatly at odds with other courts and inviting forum shopping in Germany.

On October 25, 2005, the Constitutional Supreme Court in Karlsruhe had ruled that any expression that could be interpreted as defamation of a person's character could be improper. Prior to its ruling, only one legal interpretation of an expressed opinion was needed to avoid liability. After the ruling, the inverse was adopted; if one interpretation was against the law, the statement was illegal. Under these conditions, any statement that is subject to misinterpretation becomes a potential legal issue.

When a company alleging defamation in a forum took its demand that the forum administrator remove comments to the regional courts in Koblenz, it was refused. Its appeal to the OLG also proved unsuccessful. The complaint was denied on the basis that the comments did not concern factual statements. Rather, they were deemed subjective expressions of opinion and value judgments.

Accordingly, value judgments remain protected forms of free speech under German law. The appellate judges added a caveat to their decision: The decision may not be taken to the Supreme Court in order to resolve conflicts between circuits. This restriction is, however, itself subject to review by the higher court.



Sat, Sep. 01, 2007

Spyware by Statute

CK - Washington.   Proposals by Wolfgang Schäuble, the German Secretary of the Interior, to restate and expand the jurisdiction of the Federal Crime Agency, Bundeskriminalamt, and the Federal Police, Bundespolizei, trigger heated comments on the Internet in Germany. One of the most debated issues is an authorization for the government to inject spyware into computers.

A document published by Chaos Computer Club purports to represent a bill currently circulated among federal agencies that in §20(k) would authorize such activities, including the use of key-logging programs in the surveillance of suspects. The July 11, 2007 document is entitled Draft of a Statute for the Prevention of Dangers of International Terrorism by the Federal Crime Agency, Entwurf eines Gesetzes zur Abwehr von Gefahren des internationalen Terrorismus durch das Bundeskriminalamt. The Lichtenrader Notizen blog links to it.

The lengthy purported bill contains numerous provisions to protect citizen data while permitting agencies to stop, detain, seek identification from, monitor, track, tap, record voice and video of, and question persons. These activities are usually subject to prior court authorization and limited in duration, the planned statute states in various procedural rules that relate to general German criminal law and criminal procedural law.

Art. 5 on page 32 of the draft states that the bill would affect certain constitutional rights: Liberty under Art. 2(2)(2) of the Constitution; mail and communications under Art. 10; inviolability of the residence under Art. 13. The data protection rules mostly require the agencies to delete acquired data quickly.



Thu, Aug. 23, 2007

Law Conference in Washington, DC

CK - Washington.   For 30 years, the association of German and American lawyers in Germany, Deutsch-Amerikanische Juristen-Vereinigung, held its annual meeting and conference on German and American law in Germany.

In 2007, the conference and meeting will take place in Washington, DC. Peter Esser of the Capital Area Chapter of the German American Law Association notified GALA members today of the meeting and the registration deadline of September 1, 2007. Detailed information on the registration and conference program is available at the DAJV website.



Fri, Aug. 17, 2007

New Rules for Quotes and Samples

CC - Washington. The recent amendments to the German copyright statute which were passed by the diet in Berlin in July 2007, Second Statute to Regulate Copyrights in the Information Society, affect what is known in American law as fair use.

The German copyright act, Urhebergesetz, BGBl. 1965 I, 1273, offers no direct equivalent to the American doctrine, but the underlying concept of exceptions to the exclusive right of the owner of a work is the same: Others may cite, sample, or comment on, the work, or use it for teaching and research.

The exceptions in §§ 44a et seq. had been hotly debated during the drafting of the bill. The most important amendment changes § 51 with its rules governing quotes and samples:
Reproduction, dissemination and public performance are authorized to an extent determined by the purpose if of a published work are authorized for the purpose of quotation, provided that such use is justified in its scope by the special purpose. Such permission applies in particular when:

1. Individual works are being incorporated, after their release publication, into an independent scientific work for the description of its content;

2. Passages of a work are being quoted, after its publication, in an independent literary work;

3. Individual segments of a published musical work are being quoted in an independent musical work. [Translation by author.]

The rationale for this change is that precedent had broadened the scope of the term literary work and further expansion was deemed advisable. The change gives statutory support to the Supreme Court's construction that movies qualify as literary works.

The revisions in §51 operate as a general clause which extends to passages from multimedia works. However, the legislator does not intend to broaden the exceptions of §51; rather, the intent is to clarify and adapt the law to newer technologies and to close gaps existing under the old law. Unresolved issues remain, as the legislative history reveals.



Wed, Aug. 15, 2007

Blocking Competitors

CK - Washington   Under German law, the market is the watchdog of competition. Competitors may perform test purchases and obtain information about others in the same line of business. They may send cease-and-desist demands to competitors that violate the competition laws.

Conversely, one competitor may bar another whose nosiness interferes with its business. The Hamburg Court of Appeals ruled on April 18, 2007 in the matter 5 U 190/06 that an online business may block the IP address of an interfering competitor which keeps checking its site for violations, Medien Internet und Recht reported on August 4, 2007 and published the decision.



Sat, Aug. 11, 2007

Key Software Becomes Illegal

.   For some time now, Austrian criminal law has prohibited the possession and use of software programs that enable the interception of data, such as wireless network transmissions. Today, RA Kadelke warns, a German amendment to the criminal code follows suit and proscribes software classified as hacker tools.

Such laws raise complex issues, for instance when standard tools, including the BOSS program suite recommended and published by the German government's IT security agency, Bundesamt für Sicherheit in der Informationstechnik is used by parties to track and prove the unauthorized dissemination of their trade secrets.

Use or possession of the BOSS IT security suite could violate new §202(b) of the Strafgesetzbuch and be punished with two years jail. Even linking to the download link on the government's website for its security suite might be crime in Germany.

The perceptible lack of IT knowledge in German courts and assemblies combined with a generalized fear of technology and an expansive construction of Internet liability may lead to decisions that reduce significantly the permissible use and possession of software in Germany and other European countries. Penetration systems -- indispensible in the defense of IT systems against crackers-- would become the first victims of the new law. Fortunately, the supreme court is quite enlightened and stops excesses in IT matters emanating from the lower courts.



Sat, Aug. 04, 2007

Criminal Purchase at Auction

CK - Washington.   The Pforzheim criminal trial court ruled on June 26, 2007 in a decision now published at Medien Internet und Recht that the fencing statute applies to inexpensive purchases of new goods on the auction platform eBay.

In the matter 8Cs 84 Js 5040/07, the court determined that the buyer paid €671 for new equipment with a street price of €2,137. The Pforzheim court imputed a state of mind that aqcuiesced in the risk of participating in criminal fencing of illegally acquired goods -- a violation of §259(1) of the German Criminal Code.



Fri, Aug. 03, 2007

Legal Guide to IT Projects

CK - Washington.   German law blog author Arne Trautment announced the release of his new book on IT projects under German law: iBusiness Projektvertragsleitfaden. His and the publisher's descriptions introduce a valuable practical guide for negotiating and drafting contracts for IT projects and ancillary documentation. The book comes with downloadable sample contracts for typical situations in Internet, multimedia and general IT projects. Although a legal guide, the book is directed also at management and marketing.



Sun, Jul. 29, 2007

Consular Notification: Deference

CK - Washington.   A thoughtful analysis, Germany and the United States: Exploring a Transatlantic Divide in Search of a Uniform Interpretation of Consular Rights, by Carsten Hoppe lays out the differences between the United States and German courts in the deference and consideration afforded decisions of the International Court of Justice in The Hague in consular notification matters after the LaGrand and Avena cases under Article 36 of the Vienna Convention on Consular Relations.



Sat, Jul. 28, 2007

GPL 2 Enforced

CK - Washington.   One of the major licenses for open-source software caused proprietary VoIP vendor Skype a headache in Munich. Reliable sources in Germany report that the first Munich district court decided against Luxembourg-based Skype on the complaint of GPL enforcer gpl-violations.irg. The currently unpublished decision may be appealed.

Reportedly, Skype incorporated Linux code into a a VoIP telephone made by Spanish manufacturer SMC Networks and failed to provide buyers with a copy of the GPL and sufficient access to the cource code. The plaintiff has had success in enforcing the GPL in Germany. The Munich court appears particularly keen on enforcing licenses.



Sat, Jul. 21, 2007

Register Pre-TRO Motions

CK - Washington.   Defense motions against anticipated petitions for a TRO--an important means to pro-actively protect a potential party from the adverse effects of an imminent injunction obtained ex parte--involve cumbersome preparations.

Under §937(2) of the German Code of Civil Procedure, ZPO, a defendant would identify all courts with potential jurisdiction over a person and a subject matter that are speculative as long as no petition has been filed. Therefore, defense counsel in Germany file their protective pre-TRO motions, Schutzschriften, with all courts of first instance that may exercise subject-matter jurisdiction.

A new central register, Zentrales Schutzschriftenregister, ZRS, eliminates some of that burden. The electronic register, generally known as the EEAR register, enables the deposit of one copy of the motion for use by all potential courts. Its effectiveness is based on the assumption that court and attorneys will review its listings before responding to a petition for a TRO or other injunctive remedy.

The register's general terms indicate that that commitment is not certain. At present, only attorneys located in Germany may register. [Update: ZRS told us that will change.] The deposit fee of 45 Euros appears reasonable. Heise online mentions 20.000 pre-injunction defense motions annually.



Thu, Jul. 12, 2007

HHow to Kill the Internet

CK - Washington.   … Or: Hamburg, again. Courts in Hamburg--city tag for motor vehicles: HH--almost single-handedly manage to kill the Internet in Germany. As observed here before, they publish extravagant rulings defying the statutory language that insulates Internet providers from liability and holding operators of Wifi networks responsible for the acts of third parties that use them.

They hold domain name administrators liable for the content of websites regardless of who has control over the content, except for Google which remains exempt with respect to Usenet messages--but then perhaps not, under a June 15, 2007 decision in the matter 308 O 325/07 which covers the entire spectrum of Usenet relays.

They expect Internet forum operators to screen postings and owners of wireless routers to dam their devices. Wifi devices such as the Netgear Skype phone would be useless in Hamburg, and neighbors helping neighbors with a router failure would be a legal nightmare. Likewise, those courts condemn interactive web sites and any associated technical innovation to a swift death.

Telemedicus published a May 31, 2007 decision from Hamburg, docket number 3 W 110/07, that also bars domain names similar to names held by companies. The case relates to a blog critical of a business. OLG-Hamburg-Watch.com would be verboten if OLG stood for a company, not the court of appeals. Fortunately, that ruling is merely a TRO but it demonstrates a certain mind-set.

Often, other courts in Germany decide quite differently although some Hamburg reasoning has been confirmed by the Supreme Court or applied elsewhere. Overall, the Hamburg courts appear to be the most aggressive in fighting any experimental innovation that is characteristic of the Internet--or conversely, in protecting the old, second millennium order.

Free speech and innovation generally lose out in Hamburg when the protection of marketing or property rights is at issue. Let's hope the judges in HH secretly act as devil's advocates, in order to stimulate the legislators into taking corrective action by clarifying and updating some key statutes to Law 1.1.



Mon, Jul. 09, 2007

What German Law Bloggers Read

CK - Washington.   Many German courts do not publish decisions as quickly as courts do here. Surprisingly, many law bloggers in Germany pull their news and content from TV, magazines and dailies, but not from the often more detailed press releases that courts publish fairly promptly.

There are notable exceptions to this trend, such as LobbyBlog, Berlin Blawg, Recht & Alltag, Markenblog, on trademarks, and Transblawg, on legal translations. Human interest perspectives make up a good deal of content and will help their authors when they are ready for auto-biographies. Others, such as Jurabilis! with its air of sophistication, typify the copy & paste culture.

To help avoid repeatedly pasted content, the indispensible Jurablogs metablog offers German law bloggers its press section. The section indicates that blogging lawyers reference, or parrot, material predominantly from Stern, Spiegel, Frankfurter Allgemeine, Heute, Netzeitung, Süddeutsche, Welt, Tagesschau, Heise, Financial Times and Handelsblatt.

When it comes to American law, law bloggers in Germany often recycle material compiled by journalists, not lawyers, instead of analyzing original sources. Unchallenged, many law blogs perpetuate unverified myths that result from often hastily packaged secondary sources. Building on Goethe's black on white credo in Faust I, 4, 42, they don't merely carry home in comfort material designed to justify screaming headlines, they republish it as truth, or worse, as the law of the United States.



Sun, Jul. 08, 2007

German Copyright Clarified

CK - Washington.   The diet in Berlin passed a set of amendments to the copyright statute which will now go to the states' chamber, Bundesrat. The so-called second basket, Zweiter Korb, is intended to clarify various provisions, such as fair use and corresponding compensation for copyright owners through charges on devices intended for the multiplication of content, use of copyrighted material by libraries, archives and museums as well as acquiescence in tools for digital rights management and sanctions for the unauthorized distribution of works through the Internet.

The Berlin Attorney General issued a press release, in German, to describe several components of the amending act, on July 5, 2007, as well as an 88-page PDF file with a recommendation from the legal committee of the diet to the diet, dated July 4, 2007. The file contains the bill, Zweites Gesetz zur Regelung des Urheberrechts in der Informationsgesellschaft.

In international transactions, the reporting requirements for imports into Germany of media and devices designed for the reproduction of copyrighted content become more important than ever. While the rules relieve freight forwarders from liability, manufacturers and importers face new or expanded obligations.

The legislative history explains other key issues relating to previously unknown technologies and their use. For instance, the committee explains its intent of relieving open access databases such as Wikipedia or collaborative works such as Linux from the writing requirements of the statute of frauds so that users will not need to obtain written permission from authors to use such material.

Another major issue is a new deadline to protect authors in the event that publishers plan to exploit contractually uncontemplated means for distributions which did not exist when the contract was made. Publishers will need to contact authors at their last known address, see p. 76. Under the new German copyright law, they may begin using such methods unless the author objects within three months.

Many provisions of the bill encountered public debate, and the ongoing discussions may lead to changes in the upper house. At present, the final contents of the amending statute are not entirely clear.



Sat, Jul. 07, 2007

Extraterritorial Banking

CK - Washington.   Frequently, Europeans claim excessive extraterritorial effects of American laws but they are guilty of the same approach to regulatory oversight. A July 5, 2007 ruling of the Frankfurt administrative court in the matter 1 E 4366/06 subjects Swiss bankers to German rules, and other European nations may follow. Netzeitung reports, in German, that the Swiss offered financing through the Internet and did business with German customers, and German regulators BaFin, Bundesanstalt für Finanzdienstleistungsaufsicht, in Frankfurt am Main, backed by the European court of justice had the court quash efforts by Swiss Fidium to remain free of German oversight.



Mon, Jul. 02, 2007

Loser Pays Costs

J.G - Washington.  In Germany, legal fees consist of attorney fees for out of court actions and litigation and of court costs. A lawsuit may extend to three instances--trial court, court of appeals and supreme court. At each level, different attorney fees and court costs arise.

According to German statutes, these fees for litigation depend on the amount in dispute, Streitwert. The statute for attorney fees, RVG, and the statute for court costs, GKG, define the various fees for attorneys and courts measured by the amount in dispute.

In all cases, the amount in dispute needs to be defined. In lawsuits for the payment of certain sums of money the amount in dispute is easily ascertained. For a claim for restitution, the violation of a trademark, and in other cases not concerning the payment of specific sums, that can be difficult. In such matters, the amount in dispute is determined by certain principles--such as the value of the object a defendant may have to return.

Plaintiffs must advance court costs. Unlike the American Rule of Costs, German law generally requires the loser to reimburse the winner for court costs and attorney fees up to the statutory limit. Therefore, the potential exposure of each party to litigation extends beyond its own attorney fees and covers also the fees of the opponent as well as court costs. In a settlement, attorney fees and court costs will be split in proportion to the parties' partial wins and losses.

The statutory fees may differ from fees covered by contract. The recovery in litigation of statutory fees may, therefore, be less than the fee paid to counsel under an engagement letter or retainer agreement.



Sun, Jul. 01, 2007

TIN Follows SSN

CK - Washington.   Unlike the United States of America, the Federal Republic of Germany does not have a comprehensive numbering system for every person like the Social Security Number. An existing numbering system for pensions covers only participants in statutory pension plans.

After July 1, 2007, Germany will prepare a system for a tax identification number. That system will be more comprehensive than the pension system. Some time in 2008, every registered resident and newborn will receive a TIN, Steueridentifikationsnummer.

That leaves citizens without residence in Germany unaccounted for. The statutory basis for the TIN system is §139b of the tax code, Abgabenordnung. Like the United States, East Germany used to have an SSN-like system, and a fence on its borders.



Statutory Share for Heirs

CK - Washington.   Under German inheritance law, certain relatives of decedents may receive a statutory share from an estate if a testator excludes them from an inheritance or if they waive the portion of the estate that otherwise falls to them. The provisions on the situation involving waivers is cumbersome.

A bill to reform this aspect of the inheritance provisions in the Civil Code, Bürgerliches Gesetzbuch, is circulating in the German government. For a comparison of existing and proposed law, see a blog article in German, Reform des Pflichtteilsrechts, of June 22, 2007 in Erbrechtsblog.

The basic principle of voiding terms in last wills and testaments that disinherit relatives will remain in place. Other general concepts, such as the fact that there is no estate or administrator of the type known in American law, and the need for certificates of inheritance, would not change.



Sat, Jun. 30, 2007

Notar, Nationality, Discrimination

CK - Washington.   Germany is one of the countries haled into the European Court of Justice for the alleged violation of the non-discrimination principle of Art. 43 of the EC Treaty as it relates to professional services. The specific profession is that of notaries.

In Germany, as in several other countries, notaries are lawyers with a specialization that authorizes them to perform certain substantive legal services. In Germany, notaries perform services in the fields of corporate, real estate and inheritance law, among others. Beyond certifying documents, they may structure some transactions and generate public and private records.

Unlike lawyers in most cases, they may serve several masters in many situations, by advising all of the parties to a transaction, without taking sides by representing the interests of a specific client.

Their obligations include protecting the integrity of public records, similar to a governmental function. For that reason, the role of a German Notar is described by statute as an office, Amt, not as a profession.

The plaintiff is the European Commission. In addition to Germany, the defendants failing to abolish restrictions based on nationality will be Belgium, France, Greece, Austria and Luxembourg. Portugal will be an additional defendant because of its failure to implement the European Directive 78/48 for notaries.



Tue, Jun. 19, 2007

Clear and Simple Law on Web

CK - Washington.   Does the Berlin attorney general violate German accessibility law by publishing unintellegible statutes on government websites? German law incorporates the W3C standards on accessibility. The standard requires clear and simple language.

German law professor Maximilian Herberger examines the issue, in English, on June 19, 2007: Access to Law. Among the exmples for legal gibberish is a quote from Annemarie Huber-Holz of Switzerland who introduce a multi-line title to an E.U. directive. Herberger calls for thinking outside the box. That may include adopting proposals such as citizen-friendly summaries of statutes, pictures or diagrams.

All too friendly is not advisable, however, lest the website programmer run into liability issues as happened in California In re: Jayson Reynoso, docket no. 04-17190, on February 28, 2007, see Kochinke, Software Unzulässig Schlau.



Mon, Jun. 18, 2007

Internet Law in English

CK - Washington.   In Germany, internet law springs from various sources. An important, European Union-aligned statute addresses identification and removal requirements for content providers.

Although in apparent conflict with various constitutional principles, as frequently reported here, the invasive telemedia statute encounters acquiescence instead of protests. Axel Spies has summarized, in English, several aspects of the recent amendments known as TMG for non-European Union content providers in the June 2007 issue of Business Communications Review.

Case law on the TMG has been mixed; for a recent supreme court ruling on contributory liability, takedown notices and provider immunity, see Forum Liability in Supreme Court.



Sat, Jun. 09, 2007

Beer Gate?

CK - Washington.Transblawg reports of an age discrimination case in Germany involving an interpreter at the Hannover Fair. While this is interesting news, the comments lead to more revealing information. We read that Bush poured himself a beer at the G8 meeting and Sarkozy was asked why Bush did not show up the next morning. The news here reported that Bush suffered from an upset stomach while a comment there point to a presidential hangover. Not much wrong with that, except for the clean image righteously portrayed by the administration and a possible cover-up by major media.

Addendum: Googling Bush and Bier at European Google news sites produces numerous reports of Bush pouring and drinking one beer. Much ado about nothing, apparently: He appears to have had Non-alcoholic Heineken, just an indication of a limited selection or bad taste. Some report that he had it flown in for the G8 meeting. That would be an expensive beer. That bit may have no legs. AP: White House counselor Dan Bartlett said Bush likely fell ill with "some sort of bug, probably more viral in nature" and that it appeared unrelated to anything he ate..



Fri, Jun. 08, 2007

Attorneys Sworn In By Bar

CK - Washington.   For 160 years, German attorneys fought for their independence, Berliner Morgenpost reports. For the first time, the bar associations have begun to swear in their members.

Until recent amendments to statutes governing the practice of law--which includes also the lifting of restrictions limiting the admission to various courts--, the courts took their oaths. Except for the supreme court, Bundesgerichtshof in Karlsruhe, attorneys may now practice, with a single admission, before all courts.

In addition, lawyers in Germany may open branch offices. On June 8, 2007, the paper notes that the Berlin bar comprises a mere 11,300 attorneys.



Thu, Jun. 07, 2007

Treaty Violation?

CK - Washington.   The United States allocated $13.3 billion for the Marshall Plan to assist European recovery after WW II. Germany received $1.47 billion from the European Recovery Plan, as the program was officially known.

According to The Economic Miracle's Watering Can in the Atlantic Times of June 2007, Germany established a 150 million German Marshall Fund of the United States to reciprocate. Also, Germany was required to, and did, pay $1.5 billion into a European Recovery Program Special Fund to be used in aid of other countries.

The fund--administered by the Bank for Reconstruction, KfW, in Frankfurt--has grown to $16 billion. Now, the government intends to tap it, with $2.7 billion going to the federal budget, the AT reports. Would that amount to a treaty violation? AT notes a violation of the spirit of the mastermind behind the program, George C. Marshall.



Tue, Jun. 05, 2007

Forum Liability in Supreme Court

CK - Washington.   Conflicting positions by various courts characterized the German legal landscape in the realm of vicarious liability for the publication of libelous statements in forums on the Internet. Is the ISP or operator of a forum liable for others' publications? Or would the shield of the telecommunications law govern and protect the ISP?

The Supreme Court in Karlsruhe held on March 3, 2007 in a ruling published June 5, 2007 that a claim for libel may be brought against both the poster and the operator. In the matter VI ZR 101/06, the court held also that the take-down claim is directed at a future activity and should be governed by the most recent amendments of the telecommunications statute despite the fact that the alleged publications occurred under the former statute.

Like the old statute, the new one does not create new causes of action, the court explained. The cause of action for libel lies in the general statutory provisions of the Civil Code. The telecommunications law provides a filtering function which leads to the plaintiff's take-down claim. Unlike precedent governing libel in live TV shows, where a removal is not possible and a cease and desist order would be futile, a post in an Internet forum survives the moment when it first appears.

Such posts continue to damage victims until their removal from the forum. Like a TV station in the event that it were to rebroadcast an offensive show, an operator--whom the court calls the master of the offerings--must take action to prevent further dissemination of the illegal publication. The plaintiff is not limited to seeking redress from the poster and additionally may hold the provider of the forum responsible for the removal.

Importantly, the ruling is limited to the removal action. The court did not decide other remedies generally available in defamation actions because a damages claim had evaporated in the courts below. Telemedicus blog discusses several cases with forum liability, including a May 31, 2007 ruling from Berlin where a university professor unsuccessfully objected to publications in a student forum. The case is known as the Mainprof.de matter.



Mon, Jun. 04, 2007

Constructive GmbH Bankruptcy

CK - Washington.   It takes a law professor to summarize a complex supreme court decision in a few lines: A German GmbH-style corporation files for bankruptcy in May but is illiquid in January. From January through May, the manager, Geschäftsführer, has the GmbH pay bills of 30K Euros and collect payments on its invoices of 20K Euros, all via an overdrawn bank account.

Is the manager liable to the bankruptcy estate? If so, would that be for 30K, 20K, or 10K, Ulrich Noack asks. The Supreme Court in Karlsruhe decided on 20K under the rules of constructive bankruptcy which governed the entity when its illiquid status begans through the bankruptcy filing.

The Geschäftsführer should have caused the debtors pay into another account. Their payments into the overdrawn account affected adversely the constructive estate in bankruptcy, docket no. II ZR 310/05, March 26, 2007, 10 pages, German.



Sun, Jun. 03, 2007

German Corporate Law Brief

CK - Washington.   A recommendation from Margaret Marks, author of TransBlawg: 87 pages PDF on German Corporate and Financial Law, in English, at Prof. Noack's blogsite. If Margaret calls it excellent, we can endorse it before having reviewed it.

TransBlawg is--for those who don't know it yet--a blog with a focus on legal translations. The primary focus is on German to English translations, with occasional meta-translation and comparative law issues thrown in, as well as perspectives on translation issues involving other languages.



Wed, May. 30, 2007

More Extraterritoriality

LL - Washington.   The German Federal Ministry of Justice prepares to close of a gap in transnational corruption enforcement. On May 30, 2007, the federal cabinet in Berlin decided to amend the corruption provisions of the German Criminal Code.

The amendments would expand criminal jurisdiction over transnational bribery cases that have no commercial effects. The extraterritorial effect would exist regardless of whether the conduct would involve a German official, or a German national who may bribe a foreign official.

Currently, transnational bribery under German law is a criminal offense only when bribes are paid in Europe to a European official or elsewhere with a commercial motive.

In order to comply with international agreements, Germany will also need to outlaw payments to legislators more extensively because the agreements regard legislators as officials.



Sun, May. 27, 2007

Docket Review v. Privacy

CK - Washington.   Based on a pending trademark application, the applicant complained with a cease and desist demand of the improper use of the mark Moon by a third party, but later withdrew the application. In response, the target of the demand sought review of the docket at the trademark office. Over the applicant's objection, the office, and later the Federal Patent Court, granted the application.

The applicant appealed to the Federal Supreme Court, Bundesgerichtshof, arguing that the release of the files would violate privacy rights. On April 10, 2007, the Supreme Court dismissed the appeal, docket number I ZB 15/06.

A generalized privacy concern is insufficient for a protective order. The applicant failed to state and prove a specific interest that it would seek to protect. While privacy in the form of informational self-determination is a constitutional principle, the agency and court accurately evaluated the public interest in preventing abuse in the trademark registration process.



Fri, May. 25, 2007

Overbroad Computer Crime Act

CK - Washington.   In its 100th session, the Berlin diet, Bundestag, passed revisions to the federal criminal code, Strafgesetzbuch, late on May 24, 2007. The amendment includes rules defining additional computer crimes, mostly those commonly referred to as hacking. In implementing European Union directives, the rules address the destruction of media and computer hardware as well the capturing electromagnetic waves which might emanate from computing systems by accident or purpose.

The statute addresses a number of procedures characteristic of cracking. Certain beneficial hacking activities are likely to meet the criteria established by the same rules which rightly worries security experts and the Chaos Computer Club. For example, some security defense tools on the BOSS CD published for general download by the federal government may qualify as prohibited tools. A strong argument can be made that even the mere possession of these government-endorsed tools would be illegal in Austria which has had such laws on the books for some time.



Thu, May. 24, 2007

Limited Liability Company Bill

J.G - Washington.   The German Department of Justice plans to amend the statute on the limited liability company, GmbH. The cabinet approved a bill on May 23, 2007. This would be the most extensive reform since the GmbH-Gesetz came into effect in 1898.

The bill would expedite significantly the forming of a company. The minimum capital would decrease to EUR 10,000. Even a start up without any capital would be possible. In that scenario, the company would retain profits until sufficient capital is accumulated. Until then, shareholders would not receive any distribution of dividends.

Simple setups will not require the often expensive involvement of a Notar. The corporate register may charter the company before other necessary licenses and approvals have been obtained, unlike the current system.

Also, headquarters need no longer remain in Germany or at the registered location. The draft adds transparency, permits acquisition in good faith of company shares, authorizes cash-pooling and revises the grounds for the disqualification of managers.

Attorney General Zypries expressed her belief that the MoMiG draft, which is supposed to become effective in 2008, will enhance protection for creditors, make German limited liability companies more attractive and guarantee their place in the international arena.



Thu, May. 17, 2007

New Sentencing Guidelines

LL - Washington.  The German Department of Justice plans to expand benefits for cooperating witnesses. The Berlin cabinet approved new sentencing guidelines, the department announced on May 27, 2007.

Currently, German courts may reward principal witnesses with reduced penalties for their cooperation only if their testimony advances a conviction from among a set of exclusively defined offenses or if testimony prevents the offense from occurring.

Beneficiary witnesses are required to be involved in an offense of the same category as the one to which their testimony relates. The proposed rules would constitute a significant change. Courts would be able to grant privileges in return for testimony relating to offenses the defendant is not accused of having committed.

In general, the new provisions would apply to a much wider range of offenses including white collar crime that has largely been excluded from that approach. The Berlin Attorney General expressed her hope the Kronzeugenregelung would create a more effective tool for enforcement agencies that will prevent crime and boost investigations.



Wed, May. 16, 2007

Phone, Fax, Cellphone Surveillance

CK - Washington.   Counsel's telephones, telefax and cellphones constitute a sanctuary where surveillance even on anti-terror grounds is disproportionate, the federal Constitutional Supreme Court in Karlsruhe ruled in the matter 2 BvR 2151/06 on April 30, 2007. A press release of May 16, 2007 summarizes facts and the nearly obvious conclusion, in German. Significantly, the court considers the tapping also a violation of the constitutional principle protecting the practice of the legal profession in which attorney-client confidentiality is fundamental.



Criminal Forfeiture for Siemens

LL - Washington.   On May 14, 2007, the Darmstadt district court convicted two former Siemens managers of kickbacks in commerce, embezzlement and assisting bribery in commerce in a yet unpublished verdict. Both managers received sentences, one of two years and the other of nine months, on probation. The court imposed monetary penalties as well.

Somewhat surprising is the outcome for Siemens. The company had not been indicted because corporate entities are not subject to German criminal law. The court ordered Siemens to forfeit 38 million euros to disgorge illicit profits.

That decision is based on §73 of the German Criminal Code. Profit forfeiture in such circumstances is a hotly debated issue in German criminal law. The decision signals an important step toward stricter anti-bribery law enforcement and confirms a trend evident over the past few years. A Siemens press release predicts an appeal of the decision which it considers to have no basis in law or in fact. None of the parties has waived an appeal.



Tue, May. 08, 2007

Hamburg Trips Forum

CK - Washington.   As it has done before, the Hamburg district court showed its disdain for free expression on the Internet on April 27, 2007. The new decision in the matter 324 O 600/06 goes further than its prior rulings and calls comments published in an Internet forum the forum owner's own expressions. The court had previously moved in the direction of attributing such comments to the owner as a matter of vicarious liability. Various legal commenters doubt that the new holding is compatible with the view of the supreme court in Karlsruhe which tends to be well educated and reasoned in technology matters. That court tends toward great deference to the statutory immunity afforded ISPs. Other lower courts approach forum comments with similar deference.



Thu, Apr. 12, 2007

Neither Review Nor Ad: Book

CK - Washington.   What is the purpose of Kochinke, Verhandeln in den USA in Heussen's third edition of Handbuch Vertragsverhandlung und Vertragsmanagement? Mainly bridging the gaps in understanding and communication between Germans and Americans.

Germans may bring their Impressum and Mitbestimmung to America, while an American will expect a German attorney or client to be familiar with certain basics of American law or business--or with the level of involvement of attorneys. Negotiations of contracts by German and American parties are often more complicated than necessary. Internet identification requirements and union co-determination in corporations are just starting points.

As others have observed before, there is a cultural gap that extends to the negotiation of contracts. Dismissing or ridiculing another's attitudes or expectations, or trying to surmount obstacles with Besserwissen--a seemingly arrogant know-it-all or smart-alecky disposition--, will rarely move contracts along. That appears true both in initial negotiations and subsequent contract management.

Therefore, the new U.S. chapter in Heussen's 1434 page book on contract negotiations and contract management--to which I feel privileged to have been invited by Prof. Dr. Benno Heussen to contribute--aims at avoiding some friction by reducing various legal and cultural thresholds in the making, maintaining--and even breaking out--of contracts.

Put differently, Verhandeln in den USA should assist in building a foundation of trust and loyalty. The chapter on contracts in America is intended for Germans doing business in the United States. Some 50 pages with hands-on examples and little abstraction--easy for a transatlantic flight.



Sun, Apr. 08, 2007

Internet Law: Search or Research?

CK - Washington.   Telemedicus is a German blog run by several students at Münster University Law School whose area of concentration is Internet law. Highly regarded Prof. Thomas Hoeren holds the Internet chair. In an April 8, 2007 entry, two Telemedicus contributors publish student papers on the future of the Internet economy.

Both papers appear quite useful, at first glance: Internet Trademark Liability Involving Search Engines and Forums, by Adrian Schneider, and Current Legal Issues in Digital TV: IPTV, Triple Play and Video on Demand as Illustrated by the T-Home Service of Deutsche Telekom, by Simon Möller.

The publication of these German-language papers enriches the legal landscape. Readers would benefit, however, from the publication of grades awarded the papers by the Münster law school, or a school endorsement of some sort. Without an indication of their quality, the publications lose some of their value for third parties. At the same time, the commenting feature of blogs enables a public discussion and evaluation which is useful for expert discourse. Interestingly, the authors almost completely ignore 20th century legal writings.

Are the authors unfamiliar with hands-on research in printed materials and rely only on online searches? Internet law has its roots, after all, in computer law and general law. Print publications have covered the former for more than 30 years, and the latter did not become suddenly researchable around 1997.

Aside from such quality issues, making the Münster research results on German Internet and media law available online is a welcome effort. The students' contributions and courage are commendable.



Sun, Apr. 01, 2007

Attribution Required

CK - Washington.   A press release published on the Internet requires proper attribution when partially copied to another web site, the Hamburg district court decided on January 31, 2007 in a recently published decision available at Medien Internet und Recht.

In the matter 308 O 793/06, an attorney copied portions of a press statement published by another lawyer and integrated them into his own Internet publication. The court ordered the copier to cease and desist based on §97(1)(1) of the Copyright Act, Urheberrechtsgesetz.

A press release can constitute a protected work under §2(1)(1) of the Act. An unauthorized copy can violate the author's copyright. The court found a violation despite the removal of the copy from the website after the author contacted the copier. The matter did not become moot by virtue of the removal because the court recognized a likelihood of recurring violations.

The missing credit is the topic of a more comprehensive discussion, in German, at the Heise website. Heise explains that the copy would have been legal if published as a quote and with proper attribution. Government press releases would not require advance permission under §5(2) of the Act. Company-issued statements would be treated similarly as long as the attribution requirement of §63 of the German Copyright Act is observed.

The Hamburg court often takes positions on Internet matters that are extreme when compared to rulings from other courts. Therefore, decisions from that court are not necessarily reliable indicators of the law in Germany. This copyright holding appears, however, to clarify the law without unusual injections of policy views.



Mon, Mar. 26, 2007

License Not a Trust Issue

CK - Washington.   The antitrust division of the federal supreme court, Bundesgerichtshof, in Karlsruhe released its March 6, 2007 decision in the matter KVR 32/05 relating to the antitrust issues involved in the German license for the National Geographic magazine published by Gruner + Jahr publishers.

The court found the acquisition of a license not to constitute a merger subject to control by the German antitrust authority, Bundeskartellamt. The antitrust law authorizes government control in instances of external growth, such as occasioned by a merger, but not of internal growth as exemplified by a license, the court ruled.

The Bonn agency had stopped the 1999 license deal in 2004. The German publisher had obtained the agency's authorization for a joint venture with a Spanish publisher but had not disclosed the inbound license from National Geographic.

The agency argued that Gruner + Jahr of Hamburg enjoyed a dominating position in the market for the type of magazines that comprises the National Geographic. Significantly, the new licensed German edition of the magazine was able to build on the existing English edition that had been marketed in Germany for some time.



Sat, Mar. 17, 2007

New Heirs, New Shares

CK - Washington.   German law on wills and estates, Erbrecht, may change significantly, Attorney General Brigitte Zypries announced on March 16, 2007. There will be new classes of heirs and new rules on statutory shares for the distribution of estates. Deferred distribution rules will protect major assets such as houses or businesses.

In addition to offspring, parents and siblings, statutorily protected heirs will include those of similar status. The amendments recognize changes in living arrangements such as non-marital partnerships. The basic principle of balancing a testator's right to distribute an estate freely against the mandatory provision of law allocating one-half of the statutory distribution to certain heirs will remain unchanged, but there will be potentially more parties entitled to mandatory shares under the new rules of inheritance.

A slight relaxation of rules that enable a testator to disinherit statutory heirs means that some criminals may no longer claim a mandatory share, Pflichtteil, of an estate. Also, care-giving heirs will receive compensation from the estate for services provided a decedent. Gifts distributed by a decedent within ten years before death will be apportioned over time when their return to the estate is required, Pflichtteilsergänzungsanspruch.

The website of the Berlin Department of Justice does not publish the bill, Referentenentwurf. Instead, it announces that the bill has been sent to affected divisions. The site does not state who sent it or who received it and why it does not publish it. This insulting lack of transparency is typical of the legislative process in Berlin.



EU Company for US Business

CK - Washington.   Haver & Mailänder attorneys Dr. Ulrich Schnelle and Kai Graf von der Recke introduced recent trends in E.U. company law and their effects both on German law and corporate forms suitable for U.S. business investment in Germany, at a March 16, 2007 presentation for the German American Law Association--Capital Area Chapter held at the Representative of German Industry and Trade in Washington, DC.

The two Stuttgart lawyers explained how the European Court of Justice vaporized a core doctrine of German corporate law, the seat doctrine, Sitztheorie. As a result, corporate forms of other national legal systems from the E.U. as well the as the E.U. proper corporate forms such as the Societas Europaea rushed into the market. Now, there is some experience with advantages and disadvantages of such forms.

Complex, tax-driven structures involving third country corporations and tax-treaty networks may occasionally offer U.S. business insulation against some perceived disadvantages, but often, straight U.S.-German corporate links provide greater benefits when taking advantage of the bilateral FNC treaty. The treaty enables U.S. corporations to do business in Germany just like E.U.-based corporations.

The presentation resulted in an exciting discussion ranging from antitrust and tax perspectives to criminal exposure of officers in insolvencies. In addition, the speakers addressed concerns such as employee seats on corporate boards, which is no deterrent to American business, even global firms where co-determination is at its most potentially intrusive.



Thu, Mar. 15, 2007

Contingency Fee Ruling

CK - Washington.   On March 8, 2007, the federal constitutional Supreme Court in Karlruhe rendered a landmark decision loosening the restrictions on contingency fees. Such fees have been legal only in very limited circumstances, usually involving certain claims pursued on behalf of certain foreign clients in limited circumstances. Now, the court opens the door by instructing the legislative to reconsider its restrictions in light of constitutional balancing requirements.

Anthony K. Sebok analyzes the decision in the matter 1 BR 2576/04, see press release 27/2007 of March 7, 2007, in his English-language note How an Important German Constitutional Court Decision May Change the Nature of Law Practice in Germany of March 13, 2007.

Sebok's article also introduces the fairly new system of third party financing of litigation in Germany. After the fall of the Wall and riches to be recovered from East German and Nazi expropriations, contingency fees crept into legal work done on behalf of foreign claimants under the restitution laws. There is good empirical evidence of abusively high contingency fees where a few bad apples among German lawyers and non-lawyers alike believed reports of extravagant American legal fees--whether or not those were legal--and agreed to, or demanded, fees far in excess of 30% to recover expropriated properties. Clearly, a change in the law needs to go with a good bit of education in professional ethics.



Mon, Mar. 12, 2007

Transatlantic Time Shift

CK - Washington.   On Sunday morning, the transatlantic time difference indecreases by an hour. On Monday, 10:00 am at the Supreme Court in Washington, DC will mean 53:00 pm at the Bundesverfassungsgericht in Karlsruhe. In Germany, clocks will shift on March 25, 2007, returning the difference between Washington and Berlin to the standard six hours.



Sat, Mar. 10, 2007

Covert PC Spies and Privacy

CK - Washington.   Plans for covert PC inspections by means of government-sponsored virus programs or spyware do not comply with constitutional standards in Germany, the Supreme Court for Criminal Matters in Karlsruhe had determined in the matter StB 18/06 on January 31, 2007. Some government agencies still press for authorization of such methods because their reliance on §102 et al. of the Code of Criminal Prodedure failed.

At the conference of data commissioners in Erfurt on March 8 and 9, 2007, the independent government watchdogs agreed on a resolution to oppose such practices and their implementation. The resolution has been published in German.

Such activities would excessively intrude into protected privacy and violate privacy expectations. Covert spying by intelligence agencies would be particularly offensive because the law does not authorize such agencies to perform even overt reviews of computers by means of search and seizure rules.

The positions now adopted carry considerable weight because the agencies are in charge of enforcing the German and European data protection statutes at the federal and state levels.

Online spying would discredit the state, cause PC users to omit security-related downloads of updates and render PCs more susceptible to attacks by criminals. In view of such concerns, the officials appeal to federal and state governments as well as legislative assemblies in Germany to discontinue any efforts authorizing such spying.

Examing another privacy issue, Law-Blog alerts to a recent, still partially unpublished series of decisions by the Supreme Court for Civil Matters that will extensively modify the law on publishing photographs of identifiable individuals. The rulings date to March 6, 2007 and relate to the matters VI ZR 13/06, 14/06, 50/06, 51/06, 52/06, 53/06, Arne Trautmann reports in this useful introduction into photo law and press law in Germany.



Sat, Mar. 03, 2007

Jail for Incest Deferred

CK - Washington.   The federal constitutional court in Karlsruhe is to rule on the issue of the criminal prohibition of incest and its compatibility with the constitution.

In a preliminary decision of March 1, 2007, the court decided against granting temporary relief to the convicted defendant. The basis of the decision, described in a press release of March 2, 2007, is the factual issue that the state does not appear to intend to jail the defendant while the matter is pending with the court.

In addition, §§456, 458 of the Code of Criminal Procedure, Strafprozessordnung, would require the defendant to exhaust available remedies with the lower courts in the event that his imprisonment should become imminent, the court declared. The ruling in the matter 2 BvR 392/07 is dated March 1, 2007.



Sat, Feb. 24, 2007

Medical for Pilots

CK - Washington.   A new anti-discrimination law is in effect in Germany, and a recent decision limiting physicians who perform medical exams on pilots seems inconsistent with it. A report in the Recht und Alltag blog notes that an Arnsberg, Germany court upheld a statutory age limit of 68 years, docket number 7 L 25/07, based on the increasing likelihood of mistakes made by older physicians. A comment states that a similar age limit sets 71 years for real estate appraisers.

The February 14, 2007 ruling arrived in a TRO proceeding. Substantively, the decision appears based on constitutional principles--the right to practice one's trade or profession. Since the medical examiners may continue to perform other medical services, their constitutional right to be physicians is not affected by the age limit that relates only to medicals for pilots, the court held according to the report.

Somehow, I can accept that I may not fly aerobatics over the National Mall, and possibly that I should not perform Hammerhead turns at age 95, but a medical from older doctors has never appeared to be an issue from the perspective of a pilot--despite the fact that I want the medical to be as perfect as my pre-flight check of the aircraft. It will be interesting to see whether the anti-discrimination law will factor into the next round in the Arnsberg case.



Thu, Feb. 15, 2007

Guide to German Online Law

CK - Washington.   The intrusive German online statute has been extensively revised in January. Based on the assumption that consumers are idiots, the statute requires numerous burdensome disclosures from active users of the Internet. Except for the Internet-savvy Supreme Court, courts have been racing to construe the old statute as requiring identifying disclosures not only from product and service vendors.

They--and accompanying Internet lore--expand the reach of the statute to submit also non-commercial forums, informational sites and bloggers to its reach. Essentially, they ask that all who present anything on the Internet throw their personal identifying information to the sharks, such as phishers and stalkers.

The revised statute, Telemediengesetz 2007, consolidates and updates various laws. There is speculation that it may lead to even more cease-and-desist actions for even the most minor infractions. A well-known German blogger, Arne Trautmann, Esq. of the Law-Blog, is readying a guide to be published soon as iBusiness TMG-Leitfaden--Das Neue Telemediengesetz 2007. Based on the quality of Trautmann's blog, the handbook should be a valuable resource for any active Internet participant, and a must for vendors targeting consumers in Germany.



Tue, Feb. 13, 2007

Sponsorships Conform with UWG

MM - Washington.   Two competition watchdog groups slammed a brewery for its allegedly uncompetitive sponsorship of a rainforest program, in violation of the German unfair competition statute, UWG, of July 3, 2004, BGBl. I, 1414, as amended. Krombacher brewery had advertised its sponsorship of a campaign to protect the rainforest run by the World Wide Fund of Nature, WWF. Consumers were invited to support the campaign by buying Krombacher beer. The plaintiffs allege that such sponsorship influences consumers by unfair methods. Specifically, the advertisement fails to disclose how and to what extent the brewery would actually protect the environment.

In the matters of Schutzverband gegen Unwesen in der Wirtschaft e.V. and Verein gegen Unwesen in Handel und Gewerbe Köln e.V. v. Krombacher Brauerei, the German Supreme Court in Karlsruhe disagreed. On October 26, 2006, the court ruled that combining product marketing and the advancement of environmental objectives is proper, even when the two are not obviously related.

The court also clarified that the competition statute does not mandate transparency with respect to the specific implementation of the environmental objective. There is no general duty to inform consumers of the benefits of the program.

Ultimately, the court did not render final decisions in the matter I ZR 97/04 but remanded the case to the lower court with instructions. The UWG would require that advertising not unduly impede independent decisions by consumers. Especially, false promises violate the statute. That could be the case when the sponsor would contribute insignificantly to the campaign.

The court of appeals will need to determine whether Krombacher actually performed as promised and lived up to the expectations it raised in its costumers.



Mon, Feb. 12, 2007

Release After 24 Years

CK - Washington.   One of the terrorists who spent 24 years in a maximum security prison is to be set free, the Stuttgart Court of Appeals ruled February 12, 2007 in the matter 5-1 StE 1/83. Brigitte Mohnhaupt is one of several convicted RAF terrorists who killed prominent German figures from the private and public sectors in the 1970s. She will remain on supervised parole. RAF terror actions had tempted the federal government to curtail civil liberties in order to convey a enhanced sense of security.



Sun, Feb. 11, 2007

Paper and ePaper Fees

CK - Washington.   A Cologne court decided that an author earns separate fees for an article published in two formats: a printed paper and an electronic paper made available for download on the Internet. The writer had granted permission for publication in the newspaper, and the Internet publication followed without his written consent.

The court rejected the publisher's argument that the existing authorization covered the subsequent publication because the court considered the second medium entirely different under section 15, 16, 19 of the German Copyright Statute, Urheberrechtsgesetz.

As a result, the second publication was unlicensed and entitled the author to damages which the court measured by reference to the published rates for journalists, Vergütungsentwurf der Deutschen Journalistinnen und Journalisten-Union. The opinion of June 14, 2006 in the matter 137 C 90/05 has been published with a comment, in German, by MIR as document 029-2007.



Thu, Feb. 08, 2007

U.S. Complaint to be Served

CK - Washington.   On January 24, 2007, the federal supreme court for constitutional matters, Bundesverfassungsgericht, in Karlsruhe decided that the service of process of an American complaint would not raise constitutional issues despite an $11 million claim of damages for wrongful termination.

By way of an order, the court refused to consider the matter but outlined its rationale quite helpfully. First, it determined that the amount of the damages is not so outrageous that service under the Hague Convention would trigger issues under the German constitution, Grundgesetz. Further, the resulting submission of the German defendant company to the American discovery process does not constitute a blatant violation of due process. Finally, the American rule of costs is a factor a defendant must accept when it decides to do business within the United States, just as it must then accept decisions of foreign courts.

On February 6, 2007, the court published its press release 14/2007 in the matter 2 BvR 1133/04 which links to the order. The ruling confirms important aspects of the court's Juli 25, 2003 decision, BVerfGE 108, 238, which opened the door to constitutional review in matters involving extreme demands for damages, akin to the stance adopted a few months earlier by the Supreme Court of the United States for awards of excessive punitive damages.



Mon, Feb. 05, 2007

Federal Malware Ruling

CK - Washington.   The federal malware ruling that makes the press today is published at the German Supreme Court web site for the matter StB 18/06, together with its press release 17/2007, both in German.

In essence, the court ruled that secret searches, such as searches of content on computers through spying software, are only permitted, if at all, as carefully guarded exceptions to the general rules of criminal procedure. They require the highest scrutiny. The use of spyware for criminal investigations does not meet any constitutional or statutory test under German law, the Bundesgerichtshof held on January 31, 2007.



Thu, Jan. 25, 2007

IP Reform Reduces Privacy

CK - Washington.   The Berlin government announced a comprehensive package for the reform of IP enforcement on January 24, 2007. The reform translates European Union law into German law.

The bill known as RegE Durchsetzungsrichtlinie strengthens owners of various types of intellectual property rights, such as patents, geographic designations, copyrights, designs and trademarks. It limits legal fees charged copyright violators for cease-and-desist demands to $50 while affording IP owners a new procedural tool to target assumed violators. If an IP address is known, the owner will no longer need to file a criminal complaint to obtain information on an IP address from an Internet provider.

Instead, the reform would enable the IP owner to petition a civil court for an order to have the ISP release the contact information of the person to whom the IP address has been allocated.

Apparently, the government believes the IP allocation system to be a reliable indicator of wrongdoers--a known false assumption which is particularly dangerous with the unbelievable July 26, 2006 ruling of the Hamburg court 308 O 407 / 06 assigning strict liability to owners of WiFi routers.



Mon, Jan. 22, 2007

Diet Targets Privacy

CK - Washington.   On January 18, 2007, the Berlin parliament approved a draft statute, Telemediengesetz, to replace current statutes governing Internet and media activities. Among provisions supposedly beneficial to consumers are rehashed privacy-invasive identification requirements that govern those active on the Internet. The old rules have been interpreted by some to cover not only Internet vendors but anybody who with some frequency publishes on the Internet. From that angle, anonymity is illegal.

The federal legislators claim to enhance privacy protections but that intent is only reflected for those who do not actively use the Internet. Everybody else will be required to publish even more confidential data on the Internet than required under the old law. In addition, data protection in relation to the government would shrink.

Another objective of the ill-conceived statute is a reduction in SPAM. As written, the rules are set to fail when Internet users must release comprehensive information to the sharks. Settings fines for SPAM is more likely to increase abuse in the cease-and-desist business. That will affect good-faith communications by local senders who can be easily sued. The rules do nothing about true SPAM in massive quantities from difficult-to-identify sources.

The Dr. Bahr blog has a number of additional observations, in German, and links to various drafts. Bahr critizes the relaxation of data protection standards and special privileges for owners of copyrights.



Sun, Jan. 21, 2007

German Law Wiki Expands

CK - Washington.   The German law wiki JuraWiki has been operating since 2002. Now, the wiki is well established. In 2007, its maintainers focus on significantly improving the quality of the content and, as a result, doubling use of the law wiki compared to 2006.

A specific new project addresses cease and desist demands targeting wiki content. Currently, JuraWiki offers some 4000 pages of content devoted to the law as well as the legal practice and law school. While useful for lawyers and law students, there is also information for non-lawyers, including detailed information on popular misconceptions in various areas of the law. The wiki offers content in German, French and English.



Mon, Jan. 15, 2007

Access to Data at ISP

CK - Washington.   Piercing the layers of personal data protection in Germany, and much of the European Union, depends on the statute that applies to the origin, type and location of data. Generally, the law of personal information is person-centric. Data belong to the person whom they identify. To protect privacy, access to data is consent-driven unless a statute provides an exception. A Berlin appellate court addressed recently the access by one person to the personal data of another held by the ISP of the target.

The parties looked at the general data protection statute, Bundesdatenschutzgesetz, copyright law and a more specific data protection statute for telecommunication services providers. The court concluded that only the last statute could apply because it controls conclusively access to the personal customer data stored with an ISP. The statute allows the government to pierce the data protection measures for criminal investigations and does not grant others such access.

In examining the copyright statute and the general data protection statute, the court determined that they cannot overcome the limitations of the telecommunications data protection statute. In addition, the principles embodied in the equity-like section 242 of the German Civil Code cannot serve to carve out an exception from the clear legislative intent applied to ISPs, the Kammergericht Court of Appeals held in the matter 10 U 262/05 on September 29, 2006.



Thu, Jan. 11, 2007

Data and Idea Flows

.   While data protection is pretty much settled in Germany and rarely raises to the level of concern that, for instance, phishing and lost laptops cause in the United States, the prosecutorial side of ideas to address data flows raises eyebrows. Project Mikado involves a wholesale search of credit card records that a Halle D.A. imposed on credit card companies.

They complied, some 300 transactions involving a payee in the Philippines were found, and the country is in uproar over its privacy rights. Bloggers are filing criminal complaints against the D.A. with the Halle district court. They rely on press reports according to which the D.A. failed to obtain a warrant. In addition, they consider a search of 20 million accounts illegal on its face. The Halle court ordered the D.A. to show cause.

Meanwhile, Arne Trautmann proposes in his Law-Blog a nifty solution to the criminal problems that could result from the shared use of wireless networks. On July 26, 2006, a Hamburg court had come up with the daft finding, docket number 308 O 407 / 06, that an open WIFI network should render its owner liable for whatever data flow through it, illegal content included. Trautmann offers more than ideas. On January 10, 2007, he published a draft contract, principally addressing the use of shared WLANs in buildings.

The core of his agreement is that all housemates warrant to abide by the law when using the shared system. Much of the draft would not apply to the laws in jurisdictions where the concept of vicarious liability for LAN-sharing has not taken hold. Even in Germany, the concept stands on shaky ground and is typical only of the extremist Hamburg court. With better technical information made available to the courts, it will hopefully fade away.


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