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.

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