Wed, Dec. 24, 2003

Relaxed Employment and Termination Rules Effective Soon

CK - Washington.   Relaxed rules will become effective very soon, Simon's Blawg notes. The Stuttgart Chamber of Commerce provides a useful summary in German.

Companies not older than four years may now conclude temporary employment agreements, for up to four years. The rules on the termination of employees are substantially clearer: There are fixed severance structures for terminated employees who waive their right to challenge a termination in court. In addition, workable criteria apply to the selection of employees for termination based on business developments, and the standard of judicial review of adherence to the criteria is no longer simple negligence. While employees may generally not be required to work more than an average of 48 hours per week over a six month term, new collective bargaining agreements may deviate from this standard.

The effective date of the new employment rules is January 1, 2003. Internationally, they should make the work force in Germany more competitive. The special rules for new ventures should enable international businesses to test the German market for a good number of years without incurring the previously substantial penalties for terminating employees when leaving the market. The severance criteria render the costs of an engagement in Germany greaty more predictable.

Fri, Dec. 19, 2003

Laptop in Jail

CK - Washington.   A Christmas present is what a German law blog calls a ruling by the German Supreme Court BGH: Lawyers may now bring laptops into jail for client conferences as long as the laptop is not stuffed with a network card or other accessories. The order, dated December 15, 2003, occurred in the course of an investigation against a certain I.G., case numbers 2 BGs 315/2003, 2 BJs 11/03-5, involving a terrorist conspiracy.

Mon, Dec. 15, 2003

Termination of Employment Easier

CK - Washington.   The Federal Employment Court in Kassel, the highest German court responsible for industrial relations, recently decided that theft and conversion by an employee of property owned by the employer constitute cause for immediate termination. In another development, the planned tax reduction statute has caused the government to a concession in the area of employment law.

The new employment rules exempt employers with less than 10 employees from the strictest forms of employee protection against the termination of employment contracts. Currently, the exemption covers very small employers with up to five employees. Ten is a more reasonable number in the international experience where a startup should be able to ascertain its future before reaching the new limit.

The BAG decision 2 AZR 36/03 of December 11, 2003, published by Beck, is important because theft and conversion by themselves were not always deemed to constitute cause for termination. Employers were often unable to fire personnel on such grounds. Of particular significance is the court's holding that such conduct constitute cause not only among other factors. In other words, theft and conversion by themselves will constitute cause. The court clarified that other factors may be essential in terms of procedure and timing of the termination, but "other factors" are not to be interpretated as qualifiers of the cause.

Sun, Dec. 14, 2003

New Justices at German Supreme Court

CK - Washington.   Four judges were appointed to the following divisions of the Federal Supreme Court in Karlsruhe:

  • Gabriele Caliebe: II. Civil, chiefly corporate law
  • Jürgen Cieniak: IX. Civil, bankruptcy, enforcement, attorney and tax advisor liability law
  • Dr. Ulrich Herrmann: III. Civil, sovereign and public liability law
  • Hans-Joachim Dose: XII. Civil, family and commercial tenancy law

    The appointments were announced on December 11, 2003. The court known as the BGH is one of several federal supreme fora spread over several cities in the federation. The one in Karlsruhe is generally deemed the most important and is charged with civil and criminal matters. Other supreme courts exist, for instance, for administrative law, employment relations, and tax law. The ultimate supreme court in Germany is the constitutional court, also located in Karlsruhe, the capital of the law in Germany.

  • Sat, Dec. 13, 2003

    Bar Admission Criteria Reviewed

    SW - Washington.   The German Supreme Court (Bundesgerichtshof/BGH) recently clarified the requirements for the admission to the German bar. The court held that a German national residing in the United Kingdom who passed the First but not the Second Legal State Exam in Germany and who is admitted to the practice of law in New York, after addional U.S. law studies, could neither gain admission to the practice of law in Germany nor enjoy the privileges of an established European lawyer. Such a lawyer may, however, practice in Germany using the foreign title; this practice may include the laws of the country that conferred the degree and granted the bar admission as well as a focus on international law.

    The decision resolves a controversy between a German national and regional bar administrators. The plaintiff, the German national, had passed the first, but not the second comprehensive state exam in Germany. In addition, he gained admission to the New York bar after attending a U.S. law school. When the dispute arose, he resided in London and had not been admitted there as a barrister, solicitor or advocate. He applied for admission to the German bar which rejected the application, resulting in this lawsuit.

    The BGH confirmed the rejection because he qualified neither under BRAO (Bundesrechtsanwaltsordnung), the rules governing the admission to practice law based on the standard legal education in Germany, nor under EuRAG (Europäisches Rechtsanwaltsgesetz), the European Union rules controlling the practice of European attorneys in Germany, as follows:

    (1) The plaintiff did not qualify for admission under § 4 BRAO which requires the Referendar and Assessor degrees because he completed only part of the standard education.

    (2) He failed to meet the alternative requirements of sections 11 Abs.1 S.1 EuRAG. While a candidate who establishes an actual and systematic practice as a European attorney in Germany for three consecutive years covering German and European law will be admitted as an attorney in Germany, the plaintiff did not prove such a practice.

    (3) Candidates qualified for the European attorney practice may be admitted under § 16 Abs.1 EuRAG after passing an exam to evaluate the fitness for the practice of German law. The plaintiff's petition failed that test.

    As applied to the instant facts, the court concluded that his admission was lawfully denied. The ruling is important because it clarifies that German nationals may not circumvent the standards for a qualifying legal education in Germany by seeking admission abroad. Whether it will control in the long term remains to be seen. Currently, the two-step system of legal education underlying the ruling is under review and a reform may follow.

    Wed, Dec. 10, 2003

    Germany's New Watchdog, Tougher Than SEC?

    AC - Washington.   This week, German finance minister, Hans Eichel, and attorney general, Brigitte Zypries, presented a bill for a new statute concerning the auditing of financial statements. The act would introduce a so-called "enforcement procedure" to monitor the auditing of financial statements of German businesses.

    Under current law, financial statements of corporations are audited by a CPA and the supervisory board of the corporation. Some cases have illustrated, however, various deficiencies in that process. Thus, to rein in corporate abuse and to restore investor confidence, the new law would create a private organization to ensure the quality of audits. In a first step, the organization would review financial statements of corporations listed on national exchanges, randomly or if an initial investigation suggests wrongdoing. This review is dependent on the consent by the corporation. In the event that an corporation should deny the request for a review by the organization, the Treasury Department may issue an order to compel the audit. In the event that the Treasury Department should question the resulting audit or procedure, it may also directly intervene in the proceedings.

    The new organization will be funded through fees collected from nationally listed corporations. The legislation has been drafted in cooperation with German business organizations.

    Deutsche Bank Held Liable for Kirch Plight

    AC - Washington.   Yesterday, the Munich Court of Appeals decided in Kirch v. Deutsche Bank a controversy arising out of comments by former Deutsche Bank chief Rolf Breuer. Two months before the filing of KirchMedia's petition for bankruptcy Breuer doubted in an interview with Bloomberg TV Kirch Group's creditworthiness. Given the facts, he said, he does not see that the financial markets would provide more funds to the media affiliate, the most important Kirch affiliate. After these statements other banks declined to deal with Kirch.

    The court found Breuer to have violated privacy laws, and confidentiality agreements between Kirch and its lender Deutsche Bank, resulting in the bank's liability, because Breuer had made these statements in his capacity as chairman of the board of Deutsche Bank and not as a private person, as Breuer had alleged. The court, however, overruled the decision of the lower court with respect to Breuer's individual liability and found that he is not personally liable to Kirch.

    The amount of damages have not yet been determined. Reportedly they could exceed one billion Euros. An award of this amount would be a blow against the German bank and support critics of the substantial involvement of banks in German corporations.

    Fri, Dec. 05, 2003

    Supreme Court Disallows Foreclosure into Diplomatic Real Estate

    JN - Recklinghausen.   Real estate owned by a foreign sovereign and used solely for diplomatic purposes enjoys protection under German law. In a recent decision (BGHR 03, 1041), the German Supreme Court in Civil Matters (Bundesgerichtshof - BGH) prevented such property from going into foreclosure. The question whether such real estate is governed by German law or not is a matter of international law, according to Art. 25 Grundgesetz (Constitution - GG) and § 20 Abs. 2 Gerichtsverfassungsgesetz (Constitution of the Courts - GVG). Under the principles of international law adapted into German law, it is not generally undue that a foreign sovereign's property may become subject foreclosure, as the German Constitutional Court (Bundesverfassungsgericht - BVerfG) stated in the matters BVerfGE 46, 342, 388, 392; 64, 1, 23, 40. But there is an international principle according to which property situated in Germany may not be executed into without the express consent of the foreign state, provided the property is being used chiefly for political or diplomatic purposes.

    Because of the obvious difficulties in determining the property's main purpose, international law requires the broad application of this rule. Therefore, any property used for consular or diplomatic missions is inviolable. This includes an embassy's real estate (Art. 22 ff. of the Vienna Convention on Diplomatic Relations; Art. 31 of the Vienna Convention on Consular Relations), the court confirmed.

    Fri, Nov. 28, 2003

    Prosecuting Barbarism and Discrimination

    CK - Washington.   Various NS and discriminatory logos, songs, expressions and other material can trigger criminal prosecution in Germany. In an attempt to clarify the sanctioned items and expressions, a state government agency has published a list. Under the federal constitution of the United States, nearly all of the material listed here would benefit from freedom of expression principles. Unlike the United States which has not comprehensively addressed past and present discriminatory behaviour or the extermination of segments of its population in a criminal context and has limited sanctions primarily to acts defacing or deriding national symbols, Germany and other European nations have moved toward the other extreme of criminally prosecuting the glorification of barbaric or discriminatory systems, attitudes and their symbols.

    Wed, Nov. 26, 2003

    Transatlantic Denial of Service Attacks

    CK - Washington.   An American software product that forms a valuable line of defense against hackers is the reported cause of an unintended denial of service attack in Germany. A Zonelabs auto-update appears to have caused massive damage to ISPs in Germany after it failed to acknowledge a missing DNS server, assumed against more cautious internet design practices the existence of a properly set DNS router and kept pinging by the millions servers for a non-existing or unavailable address.

    Similar incidents, also some involving German software used in the United States, caused distress among network administrators when software buggily pinged servers at high rates or its designers failed to realize that users might modify the software so that it could accidentally or maliciously ping certain targets in a harmful manner. In some cases, demands from were made on the software makers for vast amounts of damages.

    Perhaps there is a need to absolve protective software from product liability claims in the same manner that government procurement rules exempt government-specified products from such claims or Homeland Security exemptions cover goods for the defense against terrorism.

    Fri, Nov. 21, 2003

    Second Bavarian IT-Day

    ZY - Washington.   The Second Bavarian IT Day focused on contracts on the internet under §312 b of the German Civil Code, the new Value-Added Service statute as a response to abuse by so-called dialer software and sniper software, an overview of the amended German Copyright Act, and the new supplemental terms of contracts for securing services from private IT companies. Stephan Meyer provides an English conference report.

    Sun, Nov. 16, 2003

    In Memoriam German American Counsel von Conrad

    FS - Washington.   Transatlantic attorney Gunter von Conrad of Washington, DC died suddenly during a recent visit to Germany, as Hauptstadt::Washington reports. A memorial service arranged by the German Lutheran Church will be held at Pilgrim Lutheran Church in Bethesda, on December 13, 2003.

    Thu, Nov. 13, 2003

    Compulsory Licensing in Germany under EU Law

    SW - Washington.   Since a national court of a member state of the European Union is bound by European law, it has to interpret its national law in conformity with the supreme European law. To assure an accurate interpretation, a national court can make a request to the European Court of Justice (ECJ) to pronounce on the interpretation of European law.

    In a new case, the Frankfurt Civil Court, a court at the district level, asked the ECJ if businesses may prohibit the use of their "infrastructure", in this instance an internally-used software program designed to gather and evaluate data.

    The court provided the following facts to the ECJ: Plaintiff, market survey firm IMS Health GmbH & Co.OHG, filed suit against Defendant, NDC Health GmbH & Co. KG, a firm run by a former CEO of Plaintiff for an alleged infringement of its copyrights.

    Plaintiff had developed a program to gather and evaluate data on regional sales of pharmaceuticals. The program is being used since 1970 by pharmaceutical businesses and constitutes the standard in this industry.

    Defendant intended to start a business and developed a program for the same purpose. Its system failed, however, and Defendant began to use Plaintiff's program to develop a new system with it. Plaintiff then sued Defendant for violation of its copyrights in a German court and requested injunctive relief.

    Based on the facts provided, before the final interpretation of European law is pronounced by the ECJ, an EU advocate general makes a closing statement.

    In this case, the advocate general argued in favor of a permission to use the infrastructure of a competitor under certain conditions to prevent abuse of a monopoly. As guideline when such an abuse in violation of European law is present, he enumerated the following factors:

    (1) The refusal to permit the use of the infrastructure is objectively not justifiable,
    (2) the use of the immaterial good is indispensable for a related, but different market and
    (3) the owner of the good would prevent competition by refusing to license.
    However, the prerequisite for opening the market to compulsory licensing of innovations is that the competitor does not intend to use the license exclusively to imitate or develop similar products with view to the licensor. Rather, the licensee may use the infrastructure only to develop distinguishable products.

    If all these requirements are satisfied, a copyright owner might be obligated to license his innovation.

    In the present case, the German court would have to verify, therefore, which objective Defendant pursues by using Plaintiff's infrastructure.

    In the event that the ECJ shares the view of the advocate general, its decision may have significant consequences if put into practice. Here, at first sight, the consequences might not seem too grave but only an application over time can reveal to what extent this compulsory licensing principle may hurt IP owners. At least, the condition that the innovation being the subject of the compulsory license has to be an industry standard as well as the other restrictions appear to ensure that a core of copyright protection remains untouched.

    Sat, Nov. 08, 2003

    Anti-Spam Directive Effective

    CK - Washington.   Like Australians and soon Americans, EU citizens now enjoy coherent region-wide anti spam rules. The new EU rules of the Privacy Protection Directive 2002/58/EC had to be transposed into national member-country laws by October 31, 2003. A description in English is this official notice and in German this Heise Online update.

    Sat, Nov. 01, 2003

    German Statutes in English

    CK - Washington.   A list German statutes in English translations is at the Carob translation service's website. TransBlawg's blogger and master translator for German-English text recommends the site. With two translation experts endorsing the material, these resouces would appear to be reliable for many purposes.

    Wed, Oct. 29, 2003

    Court Rules on Perfecting NS-Restitution Claims

    WM - Schongau.   According to the highest German court for administrative law, the Conference on Jewish Material Claims against Germany (JCC) must meet certain requirements in order to effectively register restitution claims under the restitution law covering East German property, the Vermögensgesetz.

    This statute grants restitution to victims who suffered financial losses due to acts of nazi-terror within the borders of the former GDR and the Soviet sector of Berlin. Under the Vermögensgesetz, the JCC may claim restitution for deceased Jewish beneficiaries and their successors, who failed to file claims, thereby claiming the restitution of expropriated real property. In order to meet the statutory registration deadline of December 31st, 1992, the organization first made a global registration of claims for any and all properties.

    The court held, however, that claims must identify expropriated real property, its value and former owner(s) by referring to files and documents of authorities, archives, institutions or companies made accessible after the collapse of the GDR. Therefore, the court turned down the request for a global registration of claims. It upheld a subsequent filing that that met the statutory burden, see BVerwG 7 C 62.02 and 8.03, Oct 23, 2003).

    Sun, Oct. 26, 2003

    No Collection of Prepaid Cell Phone User Data

    CK - Washington.   BVerwG 6 C 23.02, a decision of October 22, 2003 by the highest German court for administrative law in Dresden, analyzed here, waives the requirement for sellers of prepaid cell phones to collect customer data. The court held that the agency requiring the collection of user data violated the constitutional right to informational self-determination.

    German criminal investigators are outraged because they consider prepaid phones a common tool for criminals. The decision assures buyers of anonymity and foils their tracing when such phones are used in crimes.

    The argument may lead to a revision of the statute, §90(1) TKG, in a manner compatible with the constitutional mandate of Art. 2 GG which embodies the principle of informational self-determination and, thereby, protects the privacy of individuals.

    Sat, Oct. 25, 2003

    German Perpetuation of Misinformation on American Law

    CK - Washington.   Typical mistake in the German press: discusses a spam conviction in California and refers to some statute, as if there were a federal anti-spam statute.

    This type of reporting will have much of Germany believe that the U.S. now has a precedent and statute. The press usually perpetuates such confusion by omitting corrections or updates.

    For instance, whenever juries deliver astounding verdicts, the German press points to them as examples of American excessiveness, without noting that such verdicts frequently suffer a remittitur. As a result, even 10 years later you hear Germans refer to that verdict as typifying the American legal system, without the benefit of knowing at least foggily what they are talking about and how wrong and embarrassing such statements are.

    As to spam on the federal level, Eva Wagner has an analysis of the current legislative developments, and Zeynep Yilmaz recently reported on a Missouri case.

    Unfortunately, misinformation on the law is a two way street. In the United States, Germans cringe when they hear the matter of factly stated comment that in Germany and the Continent, an accused would be guilty until proven innocent which is about as wrong as confusing motherhood with apple pie.

    A blogged discourse may help on occasion.

    Mon, Oct. 13, 2003

    Valuation of Intellectual Property

    JN - Recklinghausen.   Regardless of dot-com bubbles and internet hypes, Intellectual Property often is one of the most valuable corporate assets. For instance, Business Week estimates the current monetary value of the Coca-Cola brand at US$70.45 billion, representing up to 70% of the total market capitalization of the company. For small and medium enterprises the valuation of IP assets is also important, as the World Intellectual Property Organization (WIPO) points out. Win-win situations in licensing negotiations, M&A or securization require proper knowledge of the true value of a company's assets, including the tangibles and intangibles.

    For example, a company should know the value of its IP before entering into a reasonable licensing agreement. But some 75% of Fortune 500 companies admitted in a recent survey that they do not assign a value to their IP in their annual reports. In large part, this results from their difficulties in valuing intangible assets.

    Several approaches based on common methods of valuating tangible property lend themselves to IP valuations. The income approach considers the income an IP asset could generate through its economic life, for instance by estimating the amount of money the company saves by not having to obtain a license from another party. The market approach compares the value of similar IP as determined by actual sales of intellectual property assets. This approach is more limited because it requires a public market to compare such assets. More recent valuation approaches treat IP, in particular patents, like transactions involving options in capital markets. Similar to options, patents also contain a right, but no obligation, to make use of an innovation in a given period of time. Most option-based valuation methods derive from the Black-Scholes options pricing model.

    In general, these methods apply as well in Germany. However, German accounting regulations do not permit the treatment of intangibles as assets unless the intellectual property has been purchased.

    Sun, Oct. 12, 2003

    Silly German Law with Extraterritorial Effect

    CK - Washington.   The German rules requiring detailed information on web publishers have been abused greatly by cease and desist specialists who send demands to alleged violators and charge them a fee for their service. In one case, a court condoned the practice when a web publisher failed to make the information available with two mouse clicks from the main page. Another court defined the screen resolution which controls where a compliant link to the information should reside. Other courts have addressed the issue of "commercial purpose" as a criterion to subject web sites to the requirement, and the trend there appears to deem commercial any third party advertising banners even if the site does not display any other commercial purpose.

    A recently released Frankfurt decision of March 28, 2003 applies the rules of § 6 of the Tele Data Statute to a Welsh company whose website is directed at readers in Germany. A competitor of the company argued that even if the Welsh company cannot display required German corporate information to identify the publisher, it would still be required to meet the statutory burdens. The Frankfurt court agreed and ordered the company to display its foreign corporate data. The court took into account that the management of the Welsh company operated in Germany.

    With Germany being data protection heaven, the urge to publish easily abused information surprises. The pertinent statutes practically force confidential information into the hands of crackers and identity thieves; and the outrageous cease and desist rules reward blackmailers and snitches, at least when viewed from a foreign perspective.

    The example of this compliant statement lists not only email and other contact information but also tax IDs and other business data. Imagine a mistake, and the German equivalent of ambulance chasers will hound the poor net citizen.

    Wed, Oct. 08, 2003

    Kaplan Case: Is Germany Able to Deal with Radical Asylum Seekers?

    JN - Recklinghausen.   Germany makes another attempt to get rid of the self-proclaimed "Kalif of Cologne". Up to now, Turkish radical Islamist leader Metin Kaplan, convicted on appeal for murder and released from prison after having served a four year sentence, has successfully challenged every attempt by German officials to expel him. Although his immigration status as a legal asylum-seeker has been revoked, German courts continue to prevent Kaplan's deportation.

    As the Cologne Administrative Court Cologne now held, a deportation is unlawful if there is evidence that the deportee might suffer torture or could be subject to a procedure violating the rule of law in his home country. Despite Turkey's latest efforts at complying with human rights, the court disallowed Kaplan's deportation because of the probabalities of future violations. It found sufficient evidence that Kaplan might be criminally convicted on the basis of statements made under torture.

    The case attracts attention in German media because it highlights Germany's inability to deal with asylum seekers who are convicted criminals. German Secretary of the Interior, Otto Schily, even travelled to Turkey to secure official guarantees that Kaplan would enjoy a fair trial. In Turkey, Kaplan is accused of subversive activities. As he frequently stated in his radical speeches, his organization hopes to convert Turkey into a state exclusivley governed by the rules of Islam. After Schily's return from Turkey, his department challenged the case before the Court of Appeals of Münster. The court confirmed that the case, which is said to put the efficacy of German asylum law to the acid test, will be handled speedily and without delay.

    Tue, Oct. 07, 2003

    ECJ: Direct Applicability of WTO Rules in EU Law

    ZY - Washington.   In a surprising development, the European Court of Justice opened the door to legal recourse for business harmed by the European Union's failure to complate with a World Trade Organization mandate. A few days ago, the court found that the direct applicability of WTO rules in EU law may allow new remedies for damages suffered by its citizens for violations by the EU bodies. A new analysis by Werner Berg of Gleiss Lutz explains how the new rulings constitute a potential third prong for a direct WTO effect in EU law.

    By imposing an EU import embargo of hormone-treated cattle and beef from non-EU-Member States, the EU infringed upon several provisions of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). Later, the EU failed to comply with a WTO ruling ordering the EU to terminate the embargo. Traders suffered damages as a result of the embargo. The ECJ dismissed the current cases seeking their redress of grievances but announced the above trend which is favorable for its citizens injured by the EU's failure to comply.

    Dr. Berg, the author of the analysis, is a trade expert who advises international businesses in transatlantic trade disputes, including the Banana War, and the upcoming threats--and preventive planning--from E.U. sanctions for the U.S. tax rebate program held illegal under WTO rules, and recently discussed the EU trends with Bloomberg.

    Thu, Oct. 02, 2003

    Theses, Papers Available for Online Order and Free Patent Site

    CK - Washington. offers theses and papers on various subjects, including law, on its online site, as Handakte WebLAWG points out. WebLAWG also praises a German patent law site.

    Fri, Sep. 26, 2003

    2003 Amendment to German Copyright Law Effective

    TD - Heidelberg.   The German Parliament enacted a statute to address copyright law in the information society--Gesetz zur Regelung des Urheberrechts in der Informationsgesellschaft--as an amendment to the German Copyright Statute. Beyond the revisions of the copyright law, the statute adjusts the Urheberrechtswahrnehmungsgesetz and the Unterlassungsklagengesetz. Both statutes lack a direct counterpart in the United States. The Code of Criminal Procedure (Strafprozessordnung) required a few modifications. The 2003 amendment is now effective and available for download.

    Three changes warrant particular attention. The law places signifcant emphasis on restrictions on copies made of works protected by copyright, such as downloads of music and carbon copies of printed works. This change is somewhat similar to the controversial American Digital Millenium Copyright Act of 1998.

    a) §53: This section restricts copies in the form of digital data or regular hard copies from digital data or regular hard copies from books if the source from which the copies are made is obviously unlawful. The section is intended to prevent pirated copies, principally in the field of music in the MP3 format downloaded from the internet. An unlawful source is any origin of data for which the creator has not granted a use to replay such data. In essence, this section does not modify existing Copyright law but it clarifies that only authorized dulications are lawful.

    b) §95a-d: The legislator added a new regime which prohibites the manipulation or evasion of mechanisms designed to protect against unauthorized copies. The production of copies of any regularly purchased music compact disk for oneself is prohibited if the CD contains an anti-copy feature. Computer programs do not fall under this regime. §69a provides that a single backup copy may be made of software. In addition, the law renders illegal the trade of programs designed to manipulate anti-copy features; even guidance or advice on such defeating measures would be improper.

    c) The remedies in §108 b include the criminal prosecution of violations. The statutes clarifies, however, that a criminal offense committed solely for personal use falls outside of the criminal area. In other words, no go to jail card for the CD ripper who assembles his own CD for the car or party. But such a copy would still expose the offender to a claim for damages under §97 of the civil law regime.

    The revisions to the Copyright Act do not carry a retroactive effect. They do not control copies made in the past. In the future, CD covers will require a statement advising customers whether the data is copy protected or not, so that the customers understand the legal requirements attached to a purchase.

    Thu, Sep. 25, 2003

    Teacher with Headscarf at Public Schools

    EW - Washington.   On September 24, 2003, the German Supreme Court in Karlsruhe decided the case of a muslim whose application for an appointment to the position of a teacher in a public school was denied by the State of Baden-Württemberg. The state based its rejection on the doctrine of neutrality of the state. Fereshta Ludin, a German of Afghan origin, argued that her constitutional right to religious freedom should prevail and insisted on keeping her head covered also in class.

    The highest court in Germany ruled that a muslim teacher enjoys the constituonal right to wear a headscarf in class, deciding its second key case involving neutrality and religion. Thereby, the court put an end to an ongoing discussion on how to solve the conflict between the right to religious freedom and the imperative of neutrality, both codified in the German Constitution. It also ruled, however, that the states may pass new laws banning the practice.

    Tue, Sep. 23, 2003

    Luther: Rattling the Constitutional Cage

    CK - Washington.   The Luther movie coming out nationwide on Friday has me thinking about its legal angles. The film is enthralling. When you see it, the action keeps moving rapidly through decades and locales and lives. There is hardly any time for reflection. You soak in the events, in their historical context, and sort things out later.

    At its core, this movie is about a sometimes crazy, sometimes supremely logical lawyer and cleric who questions even the holiest unquestionable. Almost from the outset, Luther confronts a canon law that has been corrupted by recent political developments within the hierarchy of the Roman Catholic Church and is used as a tool to control the behavior and finances of dumb believers through numerous layers of administration. Questioning amendments to the canon law enacted over the preceding 150 years or so, Luther is found to question Pope Leo although the papacy was not on his radar.

    With that determination, his life unraveles, and so does the empire and the Church. The rules he establishes are not explained in the movie as law per se, but he appears to be laying the foundation for democratic principles and equal justice for all. The Church ends up getting an awfully bad rap, and Luther gains stardom status. Not totally in kilter but, after all, this is a movie--and an action movie at that--, and for many quite interesting.

    Sun, Sep. 21, 2003

    Better Homes' Hitler Copyright Gains Notoriety

    The Better Homes and Gardens copyright in a story about homey Hitler is gaining immortality. LA-Legal and the-crease make certain that nobody will violate that copyright. The explanations of the legal issues and their context are worth reading.

    VW Antitrust Charges Confirmed

    CK - Washington.   FAZ Weekly has a fine report on the E.U. court decision to confirm the antitrust fine imposed on Volkswagen. The anti-competitive charges had been directed also against several other manufacturers. FAZ has the details.

    Sun, Sep. 14, 2003

    Transblawg on Remedies and Jurisdiction

    CK - Washington.   Transblawg publisher Margaret Marks discusses the difficulty many German speakers without US legal training have with the English terms remedies and jurisdiction. Her elucidating analysis is especially useful because it is not limited to the proper terms but also addresses the frequently-found mistakes. The examples extend in their validity beyond the UK jurisdctions to those of the United States.

    Sun, Aug. 31, 2003

    Sports Glory to Adorn Sports Counsel Brzank

    CK - Washington.   The German Supreme Court in Karlsruhe decided in the matter BVerfG, 1 BvR 2108/02, on August 4, 2003 that attorneys with major credits in active sports may advertise their sports accomplishments in their specialized practice.

    Ines Brzank, a former member of the former East German national team and now a sports counsel in private practice, advertised this fact in a brochure. Competing attorney Kay Achtelik found that to constitute a violation of professional ethics but the Supreme Court sided with her.

    The court pointed to Art. 12 (1) of the constitution which permits professionals to publish factual, non-misleading information which demonstrates the professional's life experience even if unrelated to the practice of law. The court went beyond the mere acknowledgement that the constitional rights of the professional may be impermissibly violated by unreasonable restrictions. The court also expressed the view that unrelated information may be an important service to the potential customer or client who looks for the comfort that an expert in his field can provide. It referred the case back to the lower court for further factual analysis.

    Wed, Aug. 13, 2003

    Evolving German Corporate Practice at GALA Capital Area Chapter

    WM - Washington.   Today, Gerhard Wegen, Esq., partner at the Gleiss Lutz lawfirm and law professor at Tübingen University Law School, spoke at the German American Law Association, Capital Area Chapter, Washington D.C. His presentation, The Evolving Nature of Corporate Practice in Germany, focused on the differences in corporate law between Germany and the United States.

    Wegen stressed that German corporate law imposes a strict seat requirement which results in difficulties for cross-border mergers and corporate relocations. Unlike the American corporate governance concept, the continental concept is based on corporate, not capital market law. A securities and exchange commission does not exist in Germany, which has a different tradition of security regulations.

    In the context of the evolving European community law, German corporate governance changed also. In the "Centros" and "Überseering" opinions, the European Court of Justice favored creditor protection by means of disclosure and transparency as opposed to a system of a fixed minimum capital that forms the bedrock of German corporate law .

    Following his instructive presentation, Prof. Dr. Wegen fielded questions from the audience. He pointed out that under German law single shareholders can challenge corporate resolutions, including those for mergers, more freely than in the United States, and some minority shareholders and their attorneys specialize in bringing nuisance suits to extract payments from the corporation before they acquiesce in corporate restructurings. Another interesting aspect is the practical problem of cross-border relocations. They are being opposed by unions afraid of losing the co-determination control granted them by German corporate law.

    Tue, Aug. 12, 2003

    Recognition of U.S. Corporations in Germany

    JG - Washington.   In a new analysis, Augsburg lawyer Susanne Wagner investigates the legal status that U.S.-incorporated companies have in Germany under the Treaty of Friendship, Commerce and Navigation between the United States and Germany. She illustrates the issues by providing an overview of the German international corporate law and explains that the legal status is determined by the law of the jurisdiction where the corporation maintains its headquarters. In that context, the author explores a case currently pending in the German Supreme Court which deals with the recognition of American companies in Germany.

    Thu, Aug. 07, 2003

    Wegen in Washington

    CK - Washington.   Prof. Gerhard Wegen of pan-German powerhouse law firm Gleiss Lutz and Tübingen University Law School will speak at the German American Law Association on Wednesday, August 13, 2003. The presentation to the GALA Capital Area Chapter will focus on the evolving nature of the German corporate practice.

    German Aspects of Taxation at GALA Capital Area Chapter

    CS, JG - Washington.   Today, Dr. Stephan Seltenreich, Esq., of White &Case, Frankfurt, spoke at the German Amerian Law Association, Capital Area Chapter in Washington, about the newest developments in German tax law. Dr. Seltenreich introduced the changes in the Reorganization Tax Act. In the area of corporate taxation he emphasized shareholder taxation on dividends, capital gains taxation, transfer pricing and group taxation. He illustrated the effects and differences through examples, especially as they relate to resident and foreign shareholders, and by comparing German and American issues in transfer pricing. He concluded with the more recent reform proposal, the reforms for lump sum tax on interest and the upcoming tax amnesty which are now being debated in the German parliament. His presentation led to a lively discussion.

    Tue, Jul. 29, 2003

    Compliance with Court Orders to Remove Offensive Internet Content

    CS - Washington.   German attorney Martin Bahr looks at issues of compliance under German law with court orders to remove offensive material from the internet. In his analysis, he examines both technical and legal problems. He advocates a reasonableness standard that does not require the absolute eradication of any trace of the offensive material because that could be technically impossible; and a factual impossibility is excused by the law.

    Bahr begins by describing a München appellate court decision; he turns to a more recent opinion of the Hamburg appellate court; and he concludes by comparing the decisions to more recent technology developments and an internet services statute.

    Generally, infringing the rights of others through the publication of material on the internet may result in an order to remove such material. The München appellate court (November 11, 2002 - Az.: 1 W 1991/02) established a high standard of care for compliance with such an order. For example, merely communicating the order to one`s system administrator and requesting the removal would be insufficient. Beyond such simple steps, an infringer needs to make certain that no remnants of the offensive material will be on the internet, including any archives. The München court also wants the infringer to analyze exhaustively whether the infringement continues (a) on his own site, and (b) elsewhere on the internet, regardless of his technical abilities, in order to eliminate any trace of the infringement.

    Under German law, nobody may be liable only because he has failed to perform an objectively impossible duty (§ 275 German Civil Code). Do technical difficulties quality? In the concrete situation, would an infringer have to comply by reviewing the top five search engines or will he really have to erase that content from any and all websites on the entire internet? The Hamburg appellate court (September 9, 2002 - Az.: 3 W 60/02) explores these aspects. It suggests that the infringer is not required to examine all search engines. Such an order would not be reasonable - there are too many of them. After removing the offensive material completely from his own site, he may rely on the regular updates of search engine databases. The infringer is under no obligation to screen all servers of the internet for any remnants of whether the material is completely removed.

    Bahr notes that the Hamburg decision--one year old by now--may have turned out differently if persistent online archives, such as The WayBack Machine, had existed then. Now, all websites going back to 1996 are stored permanently in such archives and remain available to all. As a result, technical progress contradicts the reasons stated by the Hamburg court: it assumed that the injurious portions of the site would disappear after some period of time because the periodic database updates. This results in the flushing out of any erased content. Therefore, the violated party can be certain that the offensive material will have disappeared.

    A solution to resolve this contradiction might exist in another statute, "Teledienstedatengesetz" (TDG), which addresses telecommunications and internet issues. Bahr discusses them but ultimately concludes that a reasonableness standard should apply and is technically feasible. Email to "The WayBack Machine" is enough to have content purged. Writing an email is something anybody subject to an order of this kind can do.

    Thu, Jul. 24, 2003

    Ticketmaster Masters Thicket of Privacy Laws -- Ticks Off Privacists

    CK - Washington.   Incredibly, Ticketmaster's privacy policy allows sharing of all personal customer information except credit card specifics with whoever they please. This is the upshot of an investigation by Ed Foster, published on his customer protection website.

    The company told Ed that its business partners use it as their agent and want that information and, therefore, Ticketmaster gives it to them -- band, promoter and all. It argues that privacy is effectively dead, although it prefers the term anonymity. If you want privacy, or if you would rather not receive emails from the company and its buddies, Ticketmaster suggests in a note to Ed that you get your tickets elsewhere.

    Oh, and don't bother with the legal thicket masterwork of its so-called privacy policy -- opting out is not an option. Besides, who are you to assure Ticketmaster that you say who you are? With privacy dead, you might just be an imposter.

    Fri, Jul. 18, 2003

    Deep-Linking Legal After German Supreme Court Ruling

    JN - Washington.   Efficiency and usability of the internet celebrate a remarkable victory over copyright and unfair competition claims before the German Federal Supreme Court ("Bundesgerichtshof"). In its ruling of July 17, 2003 (Case No. I ZR 259/00, not yet published), the court held that webpages containing publically accessible news articles may be linked directly (so-called "deep linking" or "web-clipping") while bypassing the entry pages of content providers.

    The plaintiff, a media group that publishes several newspapers and magazines, including "Handelsblatt" and "DM", sued the search engine provider "" for forbearance. After initial success at the trial level ("Landgericht"), plaintiff's case was dismissed on appeal ("Berufungsgericht") which in turn was approved by the Federal Supreme Court.

    The court stated that deep links do not violate copyright laws because the copyright owner has already made the the articles publicly accessible. Because the authors enjoy discretion of whether they, despite the immanent risks of lawful or unlawful use such as reproduction, would post works on the internet, they provided free public access. Therefore, every internet user enjoys access to the work simply by learning the uniform resource locater (URL), the court held. The hyperlink technique abvioates the need to enter the URL manually and merely provides an easier and more convenient way to use the internet.

    The exploitation of the plaintiff's work does not violate unfair competition laws, the court concluded. While a plaintiff may suffer damages as a result of fewer hits on advertisement banners on its website, it may not demand such detours. Whoever uses the internet has to put up with the limitations resulting from the legitimate interests of the public in effient usability of this medium. The funtionality of search engines, therefore, is one of the limitations to be accepted, the court said. The decision is of great practical significance beause search engine market leader just launched a similar service, providing hourly updated links to news articles found on the internet.

    Thu, Jul. 17, 2003

    New European Corporate Form

    EW - Washington.   The European Company Statute (Council Regulation EC No. 2157/01 and Council Directive 2001/86/EC) that constitutes the establishment of a Societas Europaea (SE), a new European form of corporation, will become effective on October 8, 2004. A note by F. Hauswiesner introduces the laws and regulations and certain statutory requirements.

    Tue, Jul. 15, 2003

    Who Owns the Blogged Word?

    CK - Washington.   Discussions erupt about ownership in the blogged word. A blog is a site like this where operators post texts sequentially and third parties attach comments to such texts. The American perspective is here, and a European view is here.

    Conclusion: Pretty inconclusive at this time, but both contributions are food for thought.

    Ownership Rules for the German American Law Journal:   Commenters' words would remain theirs (or their employer's if that should be the case), subject to our edits and deletions, in whole or in part. Common-sensibly, significant editorial changes would be identified, while deletions of comments in toto would end up in a black hole, without credit. So, if you miss your comment, look for your copy and post it elsewhere.

    Fri, Jul. 11, 2003

    German Corporate Governance Code Published

    CK - Washington.   A German government-chartered commission has published its Corporate Governance Code (Deutscher Corporate Governance Kodex). The commission consists of academics and business leaders. The code applies to stock corporations listed on the German stock exchanges. A list of companies that subscribe to the code is published.

    An exemption provision lets companies state that they do not comply with the code. In addition, the code has been drafted with language that enables companies to deviate from the recommended standards. The rationale for such accommodations is that corporations should not be too tightly pressed into definitive structures of governance where industry specific necessities dictate other solutions.

    The commission expects the code to be voluntarily applied by private companies and to review and amend the code annually.

    Petition to Fix MS Windows Browser

    CK - Washington.   An important petition suggests that Microsoft fix its internet browser to properly display PNG images. For instance, the logo above displays a white background in MS's broken windows browser but a transparency in regular browsers. Presumably, without having achieved a near-monopoly in browsers for windows users, MS would have fixed this feature several versions ago as it promised for version 4.

    Sat, Jun. 21, 2003

    Guess your Data's Safe -- Now

    CK - Washington.   The Federal Trade Commission got Guess. Guess got customer data. It promised on its website to keep them "stored in an unreadable, encrypted format at all times." Now Guess got stress.

    The FTC found, however, that Guess interpretated its promise loosely. Such data was accessible to intruders with commonly known techniques in clear text. They found them at least in early 2002.

    As a result of the FTC investigation and an ensuing consent decree, available on the FTP website, Guess will keep tighter wraps on such data. Presumably, consumers can again trust its privacy statements.

    The consent decree has been approved by the FTC commissioners. You can still add your two cents, by contacting the FTC Secretary in DC [i]n re Guess?, Inc., FTC, File No. 022 3260, 6/18/03.

    From the perspective of German, and generally E.U., law, this is a welcome result. Lackadaisical treatment of private data in the United States is a major fear and, to some extent, a hindrance to trade between the two jurisdictions. Good enforement of even minimal standards may help minimize some concerns. Overbroad laws and slamming enforcement in Europe may generate their own sets of problems and certainly have produced frictions and inefficiencies.

    Wed, Jun. 18, 2003

    Bankruptcy and Software Escrow in Vienna

    CK - Washington.   On June 27, 2003, at the Austrian Justice Department, and on June 28, 2003, at the Vienna Business School, a two day conference will discuss international IP bankruptcy issues with an emphasis on software.

    Day 1 begins with the bankruptcy of software licensees and country reports on Germany, Austria and Switzerland. The afternoon looks at the same issues when the licensor is bankrupt and moves into escrow issues.

    Day 2 addresses data protection issues involving software escrow agreements and practice pointers with such contracts.

    Contact Sylke Eich by email for reservations. The German Computer Society DGRI organizes the event.

    Mon, Jun. 16, 2003

    Linux Wins "Battle of Munich"

    JN - Washington.   Despite Microsoft's favorable discounts for its operating systems, the Social-Democrat (SPD) controlled Munich city council decided for Linux. It decreed after a heated battle between the Linux and Microsoft camps that all of the 14,000 computers in the Bavarian capital's public administration are to run Linux in the future.

    The cost of conversion is estimated to reach 30 million Euros, according to media reports. This factor evoked resistance by the Christian Democratic Party (CSU) which favors Microsoft's Windows. As Bavaria's majority party on the state level, the CSU forms the opposition in Munich. It announced a review of the decision, arguing that 10 million Euros could be saved by staying with Windows. The city's vote in favor of Linux was a "waste of tax payer's money", CSU spokesman Robert Brannekämper believes.

    Contracts are to be finalized by early 2004.

    Sun, Jun. 15, 2003

    Schröder on EU Privacy Protection

    CK - Washington.   The Electronic Privacy Information Center has developed a comprehensive overview of the European data retention directive, formally called the Directive on Privacy and Electronic Communications (Directive 2002/58/EC).

    In a related effort, an EU panel chartered to develop guidelines for international data transfers delivered a report on June 3, 2003 for the retention and protection of data collected by corporations under the EU directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Directive 95/46/EC).

    In Washington Internet Daily of June 13, 2003, former EPIC fellow Christian Schröder, is quoted as arguing that the report is an important first step toward self-regulation. He notes severe drawbacks, however, including the fact that its rules are not binding and do not enable non-Europeans to seek legal redress for violations. By contrast, the report encourages corporations to provide European "third party beneficiaries" of corporate rules of conduct to enforce their rights.

    Thu, Jun. 12, 2003

    Copyright goes Public Domain ?

    CK - Washington.   This petition to Congress is great reading for IP freaks and anybody with an interest in conserving very old copyright-protected works.

    The petitioners would like to see mummyfied works preserved and hope that returning them to the public domain will help interested parties do that.

    Obviously, this change would have effects on copyright exploiters that rely on their constitutional right to raise revenue from the works of the dead.

    Sat, Jun. 07, 2003

    Reverse Software Engineering in IEEE Amicus Brief

    CK - Washington.   IEEE-USA filed an amicus curiae brief with the U.S. Supreme Court to defend reverse engineering of software on cert of Bowers v. Baystate Technologies, Inc., 320 F.3d 1317 (Fed. Cir. 2003) from the U.S. Court of Appeals of the Federal Circuit in Washington, DC. Among several arguments supporting the supremacy of federal intellectual property law, the IEEE argues that the recent Bowers decision effectively rewards creativity in crafting license agreements at the expense of the essential tenets of copyright law.

    Reverse engineering issues meet at the junction of federal copyright and other intellectual property law and the laws of the states and the District of Columbia, including their contract laws pertaining to sales and licenses.

    In Bowers, a key is the restriction frequently embodied in shrink-wrap and click-on licenses to forego users' rights to reverse engineer a product. The Federal Circuit's holding can be understood to prohibit even learning by operating software so protected.

    Germany permits reverse engineering under the 1991 E.U. Software Directive (Council Directive 91/250 on the legal protection of computer programs (OJ 1991 L122/42)) -- discussed with reference to U.S. law here -- which has found some support also in the U.S. software business community.
    (Disclaimer in Comments)

    Fri, Jun. 06, 2003

    New Link: is the new quick URL to get here.

    Mon, Jun. 02, 2003

    Copyright Universe Expands - Not?

    CK - Washington.   In Microsoft Risks Copyright Impotence, Washington lawyer John Mitchell argues convincingly that certain Microsoft software licenses constitute a misuse of copyright law and, therefore, have no effect. The same type of license is found for many published works.

    Mitchell analogizes certain MS license terms to attempts by movie moguls to tie duds to hot titles, resulting in unenforceable copyrights.

    Recently, the monopolist attempted to prevent a Linux supporter from demonstrating how to run MS's FoxPro in a windowing environment other than MS's, in violation of MS's license terms.

    Since tie-ins generally are suspicious and have been found so when software was bundled with required hardware and services, and since monopolies such as copyrights and patents are bound to the limits imposed by law, Mitchell's analysis is worth a read, and enjoyable to boot.

    Thu, May. 29, 2003

    Ben Flowe on Iraq Sanctions Liberalization

    If you are touched by export controls, you know of Benjamin Flowe, or you should. Ben has just released an update on the Iraq sanctions and their liberalization. Topics include: AES Will Be Mandatory, with Certification to File Export Documents; Microprocessor Liberalization with NLR Military End-Use Controls; Current Export Legislation; Bush Administration Defense Trade Review; Enforcement Cases; CCL and Other Changes. The thrust of his arguments is:

    First, U.S. forces liberalized the people of Iraq, then the benefits should flow. One clear change is the liberalization of long time economic sanctions and export controls. Ben's new Export Licensing Clients Memorandum describes (1) the current state of liberalization of export controls on Iraq (with more to follow in about a week), plus the following major export control and sanctions changes: (2) increased penalties for false statements on SEDs, mandatory electronic submission of export documents via AES, and upcoming certification requirement for same; (3) liberalization of controls on general purpose microprocessors with unprecedented military end-use/r restrictions on NLR shipments; (4) EAA, Sudan, and Syria legislation; (5) implementation of State-BIS settlement on "space-qualified" items; (6) Bush Administration review of defense trade policy; (7) ITAR USML Review; (8) revisions to ITAR Canadian Exemption; (9) State proliferation sanctions; (10) significant enforcement cases; (11) changes to Unverified List and Best Practices for Transshipments; (12) Commerce Control List revisions for Wassenaar, Missile Technology, Nuclear, and other reasons; (13) effect of General Accounting Office reports on current and future policy; and (14) OFAC unblocking of most assets frozen under the Federal Republic of Yugoslavia Sanctions Programs.

    Request your copy from Ben at 202 293 5555.

    Mon, May. 26, 2003

    Tupperware v. TopParty in German Supreme Court

    MP - Munich. The German Supreme Court (BGH in its decision I ZR 276/00) confirmed on April 10, 2003 a ruling by the Cologne appeals court (OLG Köln) that the mark "LEIFHEIT TopParty" does not infringe on the "Tupperware" trademark.

    Dissenting from the OLG Köln it also decided that "LEIFHEIT TopParty", used for household articles sold in retail stores, does not take unfair advantage of the well-known "Tupper(ware)party" term describing the way "Tupperware" products are being promoted and sold in Germany.

    At first, the BGH doubted any special need to protect the "Tupperparty" name under the laws of unfair competition, since the claimant only used a term developed by the market instead of introducing it to the market itself.

    The crucial point, however, was that the court found no sufficient likelihood of confusion. Especially having regard to the different selling methods of which the average consumer is aware, mere association is not considered sufficient to constitute unfair competition.

    Wed, May. 21, 2003

    Microsoft v. Linux do Battle in Munich

    JN - Washington.   The Munich city council, already on its way to fame as the first municipality in Germany to exclusively use Linux, has been offered a 15% discount by Microsoft on its products. The reigning Social Democrats now favor Windows.

    The sudden change of mind followed a personal visit by Microsoft CEO Steve Ballmer to the Bavarian capital who convinced the council to use Microsoft's products. The discount and the fact that Microsoft's German subsidiary is a big employer in the Munich area apparently wiped out doubts about frequently reported Windows security leaks.

    Ballmer's effort illustrates the global "Trustworthy Computing" campaign, as Microsoft strives to polish its public image and prevent Linux from gaining market share.

    A municipal ruling is expected some time after May 28 when a deadline for a revised Linux quote expires.

    Tue, May. 20, 2003

    German Supreme Court on Sports Law

    JN - Washington.   The German Federal Supreme Court (Bundesgerichtshof in Zivilsachen, case no. VI ZR 321/02) ruled on April 1, 2003 that a contestant in a car race may not seek damages from another participant for an injury sustained in the race.

    With that ruling, the Court followed an earlier decision in a soccer case, where one player had sued another player for injuries suffered as a result of the other's foul play. The court held that all soccer players know the likelihood of injuries even without infraction of any rules. Therefore, claiming damages was a contradictory action, the Court said, because the plaintiff could have found himself in the same situation as the defendant.

    In the new case, the Court extends this logic to all potentially dangerous physical sports where injuries or damages are likely to occur by accident without the violation of rules.

    Mon, May. 12, 2003

    DAJV Releases New Guide

    DAJV, the German American Law Association has released its new edition of USA-Bewerbungsführer für Juristen. The second editon, completely revised, contains "Informationen für eine erfolgreiche Bewerbung in den USA". The price for members is Euro 6.00 and for non-members Euro 9.00.

    Fri, May. 02, 2003

    Religions as Legal Issues

    Marburg Journal of Religion carries an article by Stephen A. Kent of the University of Alberta on "The French and German versus American Debate over 'New Religions', Scientology, and Human Rights. Not a legal issue?
    It seems to have become a big deal with efforts to define religions. And some American organization are raising hell over such German efforts. There is even a drive to sponsor opposing comments to German politicians which arrived in mail boxes around May 1. An overview of German rules on religion is here -- no idea whose bias, if any, is portrayed.

    Wed, Apr. 30, 2003

    AOLs of the World Unite to Fight Spam and Music Labels Shovel out More

    Within the past few days, the major US internet providers, among them AOL and monopolist Microsoft, joined to fight spam, the unwanted commercial email or UCE.
    Now comes RIAA, representing music marketers, from a fresh court loss against peer-to-peer network providers, and decides to generate huge numbers of notices to users of P2P networks, asking them to stop piracy of commercial music of RIAA members.
    Ironically, RIAA appears to use data gathered from the networks and the infrastructure of the networks to disseminate its own version of UCE; or should that read "ab-use"?
    Read Sabine Roettger's article about the California case and look up today's papers about RIAA's action and the reaction of defenders of privacy. Expect more on the legal issues involving RIAA soon, everywhere.

    Protecting Inventive Employees

    The Wall Street Journal on page one reports today on the invention of a German doctor employed by the Mayo Clinic. Can you recall the differences in treatment of employee inventions under American and German law? The clinic is giving him a piece of the action when marketing the patent that cures sinusitis or such. German law would require the clinic as a matter of law to do so. What were the inventor's expectations when he signed up with the clinic? What did the clinic antipate? Does this facet of German employment law have extraterritorial effects, like some others do?

    For a discussion of German extraterritoriality in employment law, see Manfred Stolz's article Grundzüge des Internationalen Arbeitsrechtes und des Internationalen Sozialrechtes im Verhältnis BRD - USA in 3 German American Law Journal 41 (1993).

    Hamburg District Court Orders EA to Stop Sales of Soccer Game

    CK - Washington.   JUVE-Nachrichtenbank reports today of a seemingly crazy order by the Hamburg District Court. Renowned video game maker EA used German star soccer goalie Kahn's likeness, apparently with the permission of a soccer licensing organization.

    Kahn sued and won the argument that the use of his likeness in EA's video game is unauthorized. Who would have thought?!

    First year German law students learn that you will get in trouble, especially if you depict famous horsemen. But should EA have known that?

    Will gamers sneak imports into the country under the radar of the Hamburg court? What if the game remains legal in Ireland and gamers import it under E.U. transborder rules?

    Astrid Jatzkowski provides interesting tidbits at the above JUVE URL.

    Thu, Apr. 24, 2003

    New Rule for Corporate Form in Germany

    JG - Washington.   Jens Nebel explores an amendment in the German Commercial Code which governs corporations. Now, the HGB requires that companies and sole proprietors express their corporate form within their business name. In his overview of the pros and cons of the new rules, the author states the main purpose: Assure a higher level of transparency in commerce.

    Wed, Jan. 01, 2003

    Notes on German Civil Law and Procedure 2003

    Information Technology Law: Second Bavarian IT Day (Stephan Meyer, November 20, 2003)

    E.U. Owes Compensation to Companies for Failure to Comply with WTO Mandate? (Werner Berg, October 6, 2003)

    German Supreme Court Recognizes U.S. Corporations (Susanne Wagner, August 12, 2003)

    New Corporate Form: Societas Europeae (Florian Hauswiesner, July 17, 2003)

    New Corporate Name Requirement Effective April 2003 (Jens Nebel, April 24, 2003)

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