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.


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