Mon, Dec. 28, 2009
Changes in German Estate and Probate
CK - Washington. Major changes in estate and probate law become effective on January 1, 2010. German inheritance law forms a book in the five-book civil code, Bürgerliches Gesetzbuch. The Berlin attorney general summarized the key changes in a press release of December 28, 2009.
While the statutory shares of heirs remain largely unchanged, new rules govern the forced statutory shares of disinherited statutory heirs. On the one hand, disinheriting a statutory heir will become easier and the tests clearer, mainly through a test considering crimes. On the other, more persons will benefit, in particular foster and step children.
New rules seek to protect the integrity of assets of an estate. Instead of asset sales necessitated by the old rules requiring buy-out of other heirs, the new rules permit payments to such heirs over time. The amendments apply to standard heirs and disinherited heirs with forced shares. A significant benefit to decedents and care-givers is a provision that encourages care-giving in return for an enhanced inheritance.
In addition, the statute of limitations in German inheritance matters will generally shrink from 30 years to three years. Finally, the recapture of gifts made before death will change to a staggered solution from an all-or-nothing 10-year approach so that a gift made eight years earlier will be recaptured for the computation of distributions at 2/10 of its value at the date of death.
CK - Washington. Major changes in estate and probate law become effective on January 1, 2010. German inheritance law forms a book in the five-book civil code, Bürgerliches Gesetzbuch. The Berlin attorney general summarized the key changes in a press release of December 28, 2009.
While the statutory shares of heirs remain largely unchanged, new rules govern the forced statutory shares of disinherited statutory heirs. On the one hand, disinheriting a statutory heir will become easier and the tests clearer, mainly through a test considering crimes. On the other, more persons will benefit, in particular foster and step children.
New rules seek to protect the integrity of assets of an estate. Instead of asset sales necessitated by the old rules requiring buy-out of other heirs, the new rules permit payments to such heirs over time. The amendments apply to standard heirs and disinherited heirs with forced shares. A significant benefit to decedents and care-givers is a provision that encourages care-giving in return for an enhanced inheritance.
In addition, the statute of limitations in German inheritance matters will generally shrink from 30 years to three years. Finally, the recapture of gifts made before death will change to a staggered solution from an all-or-nothing 10-year approach so that a gift made eight years earlier will be recaptured for the computation of distributions at 2/10 of its value at the date of death.
PermalinkSat, Dec. 26, 2009
Liability of Address User
CK - Washington. Bad news for commercial users of German email addresses: The renters of email address lists can be liable under competition and general spam rules for addressing email to addressees who have not agreed to receive it. The Düsseldorf court of appeals imposes liability upon the corporate entity, and personally upon the management of the corporation, to properly screen rented lists of email addresses before using them. The November 24, 2009 decision and a summary are available, in German, at the Medien Internet und Recht website.
Update: A December 29, 2009 summary, also in German, Rätze, OLG Düsseldorf: Geschäftsführer haftet persönlich für unzulässige E-Mail-Werbung, has more on the personal liability of management and the practicality of screening 360,000 acquired addresses.
CK - Washington. Bad news for commercial users of German email addresses: The renters of email address lists can be liable under competition and general spam rules for addressing email to addressees who have not agreed to receive it. The Düsseldorf court of appeals imposes liability upon the corporate entity, and personally upon the management of the corporation, to properly screen rented lists of email addresses before using them. The November 24, 2009 decision and a summary are available, in German, at the Medien Internet und Recht website.
Update: A December 29, 2009 summary, also in German, Rätze, OLG Düsseldorf: Geschäftsführer haftet persönlich für unzulässige E-Mail-Werbung, has more on the personal liability of management and the practicality of screening 360,000 acquired addresses.
Sun, Nov. 29, 2009
Business Correspondence in Germany
CK - Washington. Even minor rules can seem like major hurdles once you start exploring and compiling every potential issue. Munich lawyer Udo Schwerd exemplifies that with his thoughtful note on required disclosures in business correspondence.
Schwerd assembled statutory rules for various types of entities doing business in Germany. His compilation is so comprehensive that it looks like a road block to doing business in Germany.
The German rules do not, however, cover foreign businesses, and even for a German entity, only a small sum of specific rules apply: Mole hills, not mountains. Most of them are entirely common-sensical and none should cause writer's block.
CK - Washington. Even minor rules can seem like major hurdles once you start exploring and compiling every potential issue. Munich lawyer Udo Schwerd exemplifies that with his thoughtful note on required disclosures in business correspondence.
Schwerd assembled statutory rules for various types of entities doing business in Germany. His compilation is so comprehensive that it looks like a road block to doing business in Germany.
The German rules do not, however, cover foreign businesses, and even for a German entity, only a small sum of specific rules apply: Mole hills, not mountains. Most of them are entirely common-sensical and none should cause writer's block.
Thu, Nov. 26, 2009
Domain Name Violation: Proper Defendant?
CK - Washington. Who is the proper defendant in a domain dispute over a .de domain name? The Frankfurt district court held on November 16, 2009 in the matter 2-21 O 139/09, that the registrant of the domain and the administrative contact listed with the .de domain name are suitable targets.
The matter, commonly known as regierung-mittelfranken.de, involves an owner in Panama who kept changing administrative contacts, reports explain. DENIC, the German registry for the .de cTLD, refused to delist the domain in accordance with a judgment against an admin-C, lost in Frankfurt and has filed an appeal.
The federal supreme court in civil matters, Bundesgerichtshof, has conclusively determined when DENIC is required to honor a decision to delist a domain, and none of the proper approaches involve the admin-C, the registry argues. DENIC's position has long been criticized as improperly defeating final judgments involving .de domains.
CK - Washington. Who is the proper defendant in a domain dispute over a .de domain name? The Frankfurt district court held on November 16, 2009 in the matter 2-21 O 139/09, that the registrant of the domain and the administrative contact listed with the .de domain name are suitable targets.
The matter, commonly known as regierung-mittelfranken.de, involves an owner in Panama who kept changing administrative contacts, reports explain. DENIC, the German registry for the .de cTLD, refused to delist the domain in accordance with a judgment against an admin-C, lost in Frankfurt and has filed an appeal.
The federal supreme court in civil matters, Bundesgerichtshof, has conclusively determined when DENIC is required to honor a decision to delist a domain, and none of the proper approaches involve the admin-C, the registry argues. DENIC's position has long been criticized as improperly defeating final judgments involving .de domains.
Tue, Nov. 17, 2009
A New IP in German Law?
CK - Washington. Germany is approaching the statutory creation of a new intellectual property right, known in German as Leistungsschutzrecht.
The term combines several German words, encompasses elements of legal protection for accomplishments, services and products and is intended primarily to afford print media more control over digital reproduction, principally with respect to links and excerpts on the internet.
Some fear that authors for digital media as well as search engines would be cramped. Presently, no bill exists. Heise Online, the internet news service of a traditional publisher and a valiant defender of internet freedoms, summarizes the current state of the debate on November 17, 2009.
The new federal government in Berlin anticipates introducing such a statute. A major law journal, Kommunikation & Recht is expected to present in its December 2009 issue contrasting perspectives.
CK - Washington. Germany is approaching the statutory creation of a new intellectual property right, known in German as Leistungsschutzrecht.
The term combines several German words, encompasses elements of legal protection for accomplishments, services and products and is intended primarily to afford print media more control over digital reproduction, principally with respect to links and excerpts on the internet.
Some fear that authors for digital media as well as search engines would be cramped. Presently, no bill exists. Heise Online, the internet news service of a traditional publisher and a valiant defender of internet freedoms, summarizes the current state of the debate on November 17, 2009.
The new federal government in Berlin anticipates introducing such a statute. A major law journal, Kommunikation & Recht is expected to present in its December 2009 issue contrasting perspectives.
Mon, Nov. 16, 2009
Language Does not Imply German Jurisdiction
CK • Washington. Just because a website uses the German language, German courts may not necessarily exercize jurisdiction over a site based outside of Germany and not directing its business at customers in Germany, the Munich court of appeals ruled on October 10, 2009 in the matter 29 U 2636/09.
The decision is unavailable on the court's website--only the building is free of barriers, the site proclaims--but has been discussed on the Online & Recht site and the Rechts-News Archiv site on November 17, 2009.
According to these second-hand reports, the case involves a Swiss web site that a German party sued in Germany for trademark infringement. The court determined that the effects of the infringement may point to German jurisdiction. But it required also a nexus of the internet presentation with German consumers whom the infringement would confuse.
The Swiss site used the German language for its German-language customers and offered its wares only in Swiss currency. The language-nexus only is unsufficient for jurisdictional purposes, the court determined.
CK • Washington. Just because a website uses the German language, German courts may not necessarily exercize jurisdiction over a site based outside of Germany and not directing its business at customers in Germany, the Munich court of appeals ruled on October 10, 2009 in the matter 29 U 2636/09.
The decision is unavailable on the court's website--only the building is free of barriers, the site proclaims--but has been discussed on the Online & Recht site and the Rechts-News Archiv site on November 17, 2009.
According to these second-hand reports, the case involves a Swiss web site that a German party sued in Germany for trademark infringement. The court determined that the effects of the infringement may point to German jurisdiction. But it required also a nexus of the internet presentation with German consumers whom the infringement would confuse.
The Swiss site used the German language for its German-language customers and offered its wares only in Swiss currency. The language-nexus only is unsufficient for jurisdictional purposes, the court determined.
Sat, Nov. 14, 2009
Third-Party Images in German Group Blogs
CK • Washington. Who is liable for copyright violations when community blog articles include pictures supplied by a contributing author and owned by a third party? A November 12, 2009 ruling, not yet published, by the German Supreme Court in civil matters, Bundesgerichtshof, renders both the author and the operator of the community blog liable.
Its press release in the matter I ZR 166/07 explains the specific facts that caused the operator of a recipe site to lose the otherwise available insulation from contributory liability under German copyright law. The owner marked all contributions with its logo and identifiers and minimized clues to the authorship of the contributor.
The general terms and conditions for the use of the site attempted to exclude operator liability for copyright violations but failed, the court held, because the operator sought credit for all contributions. The opinion should be published in the near future on the court's website. The recipe sites at issue are www.chefkoch.de and marions.kochbuch.de.
CK • Washington. Who is liable for copyright violations when community blog articles include pictures supplied by a contributing author and owned by a third party? A November 12, 2009 ruling, not yet published, by the German Supreme Court in civil matters, Bundesgerichtshof, renders both the author and the operator of the community blog liable.
Its press release in the matter I ZR 166/07 explains the specific facts that caused the operator of a recipe site to lose the otherwise available insulation from contributory liability under German copyright law. The owner marked all contributions with its logo and identifiers and minimized clues to the authorship of the contributor.
The general terms and conditions for the use of the site attempted to exclude operator liability for copyright violations but failed, the court held, because the operator sought credit for all contributions. The opinion should be published in the near future on the court's website. The recipe sites at issue are www.chefkoch.de and marions.kochbuch.de.
Wed, Nov. 04, 2009
American Bankruptcy Stay in German Court
CK - Washington. German law knows a stay in litigation. An American stay ordered in a bankruptcy case can have an equivalent effect in Germany, the German Supreme Court in Civil Matters, Bundesgerichtshof, ruled in the matter X ZR 79/06 on October 13, 2009. The decision is now available on its website.
CK - Washington. German law knows a stay in litigation. An American stay ordered in a bankruptcy case can have an equivalent effect in Germany, the German Supreme Court in Civil Matters, Bundesgerichtshof, ruled in the matter X ZR 79/06 on October 13, 2009. The decision is now available on its website.
Sun, Nov. 01, 2009
German FOIA Protects Bush Administration
CK - Washington. A German journalist petitioned the German federal transportation ministry, Bundesminister für Verkehr, Bau und Stadtentwicklung, for the release of information on traffic data relating to 20 identified aircraft. The planes were allegedly registered in the United States and used by a secret service from 2001 through 2005 to transfer person between undisclosed locations.
The German federal administrative supreme court, Bundesverwaltungsgericht, approved the rationale of the lower courts while vacating their decisions and remanding the matter on October 29, 2009.
The court agreed in the matter T. v. Federal Republic of Germany, docket number BVerwG 7 C 22.08, with the lower courts and the government that the government may withhold information otherwise releasable under the German freedom of information statute if the disclosure would harm Germany's external relations with other nations. The court published a press release but its written opinion will follow later.
CK - Washington. A German journalist petitioned the German federal transportation ministry, Bundesminister für Verkehr, Bau und Stadtentwicklung, for the release of information on traffic data relating to 20 identified aircraft. The planes were allegedly registered in the United States and used by a secret service from 2001 through 2005 to transfer person between undisclosed locations.
The German federal administrative supreme court, Bundesverwaltungsgericht, approved the rationale of the lower courts while vacating their decisions and remanding the matter on October 29, 2009.
The court agreed in the matter T. v. Federal Republic of Germany, docket number BVerwG 7 C 22.08, with the lower courts and the government that the government may withhold information otherwise releasable under the German freedom of information statute if the disclosure would harm Germany's external relations with other nations. The court published a press release but its written opinion will follow later.
Thu, Oct. 29, 2009
Lawi.sh Covers Two Continents
CK - Washington. Coverage of legal issues in periodicals and blogs with links to commentary in blogs--that is the theme of lawi.sh.
Thanks to its developer, the German law blog scene is one of the best known blog spheres in German-speaking countries. His first creation, Jurablogs, links to participating law blogs from mostly German-speaking countries, although American entries like the German American Law Journal are included.
The new venture lawi.sh promises to move the coverage of legal developments to the next level. Even in its early stage of development, the site connects valuable news sources from English-speaking nations, and separately, from German-speaking countries, and with the dots leading to commentary in blogs and other resources.
CK - Washington. Coverage of legal issues in periodicals and blogs with links to commentary in blogs--that is the theme of lawi.sh.
Thanks to its developer, the German law blog scene is one of the best known blog spheres in German-speaking countries. His first creation, Jurablogs, links to participating law blogs from mostly German-speaking countries, although American entries like the German American Law Journal are included.
The new venture lawi.sh promises to move the coverage of legal developments to the next level. Even in its early stage of development, the site connects valuable news sources from English-speaking nations, and separately, from German-speaking countries, and with the dots leading to commentary in blogs and other resources.
Mon, Oct. 26, 2009
Why Germany Said No
CK - Washington. Dieter Dettke is one of the preeminent scholars on German foreign policy, having served in insightful positions in Germany and the United States. His new book Germany Says "No" published by Johns Hopkins University Press is now available with a special discount, code NAF.
German military action abroad triggers a constitutional balance act even when disregarding the collective psyche and the lasting effects of beneficial brain-washing by the Allied occupiers after Hitler and WWII. Dettke's book on historical perspectives and present-day imbroglios should be recommended reading in Washington and Berlin.
CK - Washington. Dieter Dettke is one of the preeminent scholars on German foreign policy, having served in insightful positions in Germany and the United States. His new book Germany Says "No" published by Johns Hopkins University Press is now available with a special discount, code NAF.
German military action abroad triggers a constitutional balance act even when disregarding the collective psyche and the lasting effects of beneficial brain-washing by the Allied occupiers after Hitler and WWII. Dettke's book on historical perspectives and present-day imbroglios should be recommended reading in Washington and Berlin.
Sun, Oct. 18, 2009
Courts Trigger Domain Name Liberation
CK - Washington. German domain name law experiences a spectacular change. That is the uniform assessment of domain name practitioners in Germany of a new Denic eG policy, effective October 23, 2009.
As the registry for the German .de country level domain, Denic had long refused to register one and two character domain names. It had interpreted its statutory authority to support the refusal. A Frankfurt court ruled against Denic, however, and ordered it to register vw.de. Now that the German supreme court in Karlsruhe rejected Denic's petition for review, the registry changed its rules.
Beginning October 23, 2009, the German domain registry will register within the .de ccTLD, on a first come, first served basis, one and two letter domain names and one and two digit domain names. There will be no sunrise period.
In addition, Denic lifted its policies against the registration of domain names that mirror (a) the German county-based tag system for the registration of motor vehicles, and (b) top level domains.
CK - Washington. German domain name law experiences a spectacular change. That is the uniform assessment of domain name practitioners in Germany of a new Denic eG policy, effective October 23, 2009.
As the registry for the German .de country level domain, Denic had long refused to register one and two character domain names. It had interpreted its statutory authority to support the refusal. A Frankfurt court ruled against Denic, however, and ordered it to register vw.de. Now that the German supreme court in Karlsruhe rejected Denic's petition for review, the registry changed its rules.
Beginning October 23, 2009, the German domain registry will register within the .de ccTLD, on a first come, first served basis, one and two letter domain names and one and two digit domain names. There will be no sunrise period.
In addition, Denic lifted its policies against the registration of domain names that mirror (a) the German county-based tag system for the registration of motor vehicles, and (b) top level domains.
Thu, Oct. 08, 2009
Newly Translated German Statutes
CK - Washington. The German Law Archive is a great source of German statutes translated into English. Today it announced:
CK - Washington. The German Law Archive is a great source of German statutes translated into English. Today it announced:
After a period of inactivity, we have just added new or updated English translations of the following nine German statutes:
Foreign Trade and Payments Act
Administrative Procedure Act
Nationality Act
Passport Act
Residence Act
Asylum Procedure Act
Act on the Reorganisation of Aviation Security Tasks
War Weapons Control Act
War Weapons List
In order to download these translations, please go to the homepage of the German Law Archive at http://www.iuscomp.org/gla
Mon, Oct. 05, 2009
More Burdens on Internet Vendors
CK - Washington. In line with European Union directives, German law has moved internet transactions far from the Caveat Emptor principle. The Supreme Court for Civil Matters, Bundesgerichtshof, in Karlsruhe expanded on consumer protection on September 30, 2009 in a matter involving an attorney who had ordered lamps for shipment to her law firm address.
The case, docket number VIII ZR 7/09, revolved around the issue of whether she would enjoy consumer rights. Section 13 of the Civil Code defines consumers.
The court held that a vendor will be held to consumer standards unless the buyer is clearly not a consumer. Delivery at an office address is not determinative, it held. The court overruled vendor-friendly decisions, discussed in more detail in the shopbetreiber-blog.de blog, that resolved ambiguities against the consumer.
CK - Washington. In line with European Union directives, German law has moved internet transactions far from the Caveat Emptor principle. The Supreme Court for Civil Matters, Bundesgerichtshof, in Karlsruhe expanded on consumer protection on September 30, 2009 in a matter involving an attorney who had ordered lamps for shipment to her law firm address.
The case, docket number VIII ZR 7/09, revolved around the issue of whether she would enjoy consumer rights. Section 13 of the Civil Code defines consumers.
The court held that a vendor will be held to consumer standards unless the buyer is clearly not a consumer. Delivery at an office address is not determinative, it held. The court overruled vendor-friendly decisions, discussed in more detail in the shopbetreiber-blog.de blog, that resolved ambiguities against the consumer.
Thu, Oct. 01, 2009
Satire in Ads Protected
CK - Washington. Against the views of two lower courts, the federal supreme court in Karlsruhe decided that satire in commercials can conform with German fair competition law. Satire may belittle a competing product but the average consumer understands its purpose. As long as the comparison does not confuse the consumer into believing that a product is the subject of ridicule or derision, a mocking comparison remains legal. The court issued a press release on October 1, 2009. The matter involves two dailies, Bild and TAZ.
CK - Washington. Against the views of two lower courts, the federal supreme court in Karlsruhe decided that satire in commercials can conform with German fair competition law. Satire may belittle a competing product but the average consumer understands its purpose. As long as the comparison does not confuse the consumer into believing that a product is the subject of ridicule or derision, a mocking comparison remains legal. The court issued a press release on October 1, 2009. The matter involves two dailies, Bild and TAZ.
Tue, Sep. 29, 2009
Freightforwarder not Liable for IP Infringement
CK • Washington. Under German patent law, specifically section 9 of the patent statute, an abetter may have to cease and desist from patent infringement and may be ordered to destroy infringing products. The federal supreme court decided that the definition of the abetter does not include a freight forwarder. In confirming a similar 1957 ruling, the court on September 17, 2009 ruled in the matter Xa ZR 2/08 in favor of a freight forwarder. Rechtslupe.de discussed the decision in German.
CK • Washington. Under German patent law, specifically section 9 of the patent statute, an abetter may have to cease and desist from patent infringement and may be ordered to destroy infringing products. The federal supreme court decided that the definition of the abetter does not include a freight forwarder. In confirming a similar 1957 ruling, the court on September 17, 2009 ruled in the matter Xa ZR 2/08 in favor of a freight forwarder. Rechtslupe.de discussed the decision in German.
Thu, Sep. 10, 2009
German Amicus Brief re Google Books
CK - Washington. The Berlin Attorney General has published the German government's amicus curiae brief in the Google books settlement matter filed with the United District Court for the Southern District of New York at JurPC.
CK - Washington. The Berlin Attorney General has published the German government's amicus curiae brief in the Google books settlement matter filed with the United District Court for the Southern District of New York at JurPC.
Mon, Sep. 07, 2009
Extradition and Statute of Limitations
CK - Washington. Greece sought the extradion of a person arrested in Germany under an international warrant. Greece had summoned the target for an interview about alleged money laundering and corruption in business matters. Under German law, the statute of limitations prevents an indictment in Germany, although jurisdiction would exist. May Germany extradite the person?
The Constitutional Supreme Court in Karlsruhe decided that it may not. The appellate decision favoring the Greek request is unconstitutional, it holds. The assumed tolling of the statute by way of the Greek summons is not equivalent to the necessary action to toll the German statute, the court ruled on September 4, 2009 in the matter 2 BvR 1826/09.
CK - Washington. Greece sought the extradion of a person arrested in Germany under an international warrant. Greece had summoned the target for an interview about alleged money laundering and corruption in business matters. Under German law, the statute of limitations prevents an indictment in Germany, although jurisdiction would exist. May Germany extradite the person?
The Constitutional Supreme Court in Karlsruhe decided that it may not. The appellate decision favoring the Greek request is unconstitutional, it holds. The assumed tolling of the statute by way of the Greek summons is not equivalent to the necessary action to toll the German statute, the court ruled on September 4, 2009 in the matter 2 BvR 1826/09.
Mon, Aug. 24, 2009
Twitter Law in German Law
CK - Washington. Twitter makes life complicated for German writers and companies. Even government officials got tempted, and into trouble, when reporting instantaneously--instead of letting a modicum of time expire--the result of a presidential election.
The range of legal issues reaches from the difficulty of meeting German and E.U. identification requirements within the Twitter user interface, to unauthorized disclosure of corporate information--causing liability to employees and corporations alike--and to the usual concerns of defamation, impersonation and fraud.
The minefield is so dangerous that even Germany's most serious daily joined the fray of experts warning of dire consequences. The quotes sources in Zu flink getwittert? Das kann schief gehen! include German lawyers familiar to the still fairly small community of IT/IP law twitterers. A representative collection of those is found under following at USAnwalt.
CK - Washington. Twitter makes life complicated for German writers and companies. Even government officials got tempted, and into trouble, when reporting instantaneously--instead of letting a modicum of time expire--the result of a presidential election.
The range of legal issues reaches from the difficulty of meeting German and E.U. identification requirements within the Twitter user interface, to unauthorized disclosure of corporate information--causing liability to employees and corporations alike--and to the usual concerns of defamation, impersonation and fraud.
The minefield is so dangerous that even Germany's most serious daily joined the fray of experts warning of dire consequences. The quotes sources in Zu flink getwittert? Das kann schief gehen! include German lawyers familiar to the still fairly small community of IT/IP law twitterers. A representative collection of those is found under following at USAnwalt.
Sat, Aug. 22, 2009
Liability of Domain Lessor for Content
CK - Washington. Under German law, is the owner and lessor of an Internet domain liable to third parties for content published by the domain lessee on the web site at that domain if the content adversely affects a third party?
The German federal supreme court for civil matters, Bundesgerichtshof, in Karlsruhe says no. The lessor may exercise editorial control and might be liable on a theory of contributory liability derived from §1004 of the German Civil Code, BGB, but is not when the lessee solely controls the site and content.
The court also determined that liability, if any, would derive exclusively from the civil and criminal codes, not the speciality statutes governing German communications and Internet law, such as the Telemediengesetz statute which is silent on the issue. The June 30, 2009 decision in the matter VI ZR 210/08 is republished in Medien Internet und Recht.
CK - Washington. Under German law, is the owner and lessor of an Internet domain liable to third parties for content published by the domain lessee on the web site at that domain if the content adversely affects a third party?
The German federal supreme court for civil matters, Bundesgerichtshof, in Karlsruhe says no. The lessor may exercise editorial control and might be liable on a theory of contributory liability derived from §1004 of the German Civil Code, BGB, but is not when the lessee solely controls the site and content.
The court also determined that liability, if any, would derive exclusively from the civil and criminal codes, not the speciality statutes governing German communications and Internet law, such as the Telemediengesetz statute which is silent on the issue. The June 30, 2009 decision in the matter VI ZR 210/08 is republished in Medien Internet und Recht.
Mon, Aug. 17, 2009
Cell Phone Ban Unconstitutional?
CK - Washington. The German cell phone ban appears unconstitutional and needs to be referred to the Federal Constitutional Court in Karlsruhe, a judge decided in the matter 85 OWi 196/09 on July 8, 2009 at the Gummerbach Amtsgericht court.
At its core, the likely unconstitutionality results from the unequal treatment of various in-vehicle activities. The judge lists amorous entangling, drafting court rulings, shaving, tuning the radio and many others as dangerous yet unregulated while the unquestionably dangerous cell phone use alone has been singled out as an illegal activity.
Hanging an arm out the driver side window or an amputee driving a car with one hand--such disparate phenomena find no reflection in the statute. Its focus is the requirement that drivers maintain two hands available to drive. What they use the hands for, and whether current or future technology allows drivers to drive and operate a cell phone--either as a communications device, as a camera or as a dictaphone--are factors not reflected in the statute.
The judge is serious about the dangers of driving and calling--whether by hand-held or hands-free device--but equally certain about the inequality of the treatment of devices and users in the eyes of the German constitution.
CK - Washington. The German cell phone ban appears unconstitutional and needs to be referred to the Federal Constitutional Court in Karlsruhe, a judge decided in the matter 85 OWi 196/09 on July 8, 2009 at the Gummerbach Amtsgericht court.
At its core, the likely unconstitutionality results from the unequal treatment of various in-vehicle activities. The judge lists amorous entangling, drafting court rulings, shaving, tuning the radio and many others as dangerous yet unregulated while the unquestionably dangerous cell phone use alone has been singled out as an illegal activity.
Hanging an arm out the driver side window or an amputee driving a car with one hand--such disparate phenomena find no reflection in the statute. Its focus is the requirement that drivers maintain two hands available to drive. What they use the hands for, and whether current or future technology allows drivers to drive and operate a cell phone--either as a communications device, as a camera or as a dictaphone--are factors not reflected in the statute.
The judge is serious about the dangers of driving and calling--whether by hand-held or hands-free device--but equally certain about the inequality of the treatment of devices and users in the eyes of the German constitution.
Wed, Aug. 12, 2009
Blogging Judge UnImpressed
CK - Washington. Some E.U. nations know an identification requirement for web site operators. Germany applies it to commercial sites. Courts stretch the circle so that many bloggers assume the so-called Impressum rule includes them.
An anonymously blogging, purported judge believes the constitution exempts him. In addition, he is not seeking more business. A blogging lawyer claims to now have filed a criminal complaint against the John Doe perpetrator a.k.a. Judge Volker Ballmann, seeking his identity and punishment.
And the point is? Increase the volume of visitors to the sites? Generally, the violation of the rules on the identification of operators is a matter for the government to pursue and could lead to a civil fine.
There is also the widely abused practice of civil actions by competitors triggering hefty legal fees which--in the absence of the American Rule--can cripple an alleged offender.
Time will tell if a competing judge will consider himself competitively disadvantaged by Ballmann, the unImpressed colleague.
CK - Washington. Some E.U. nations know an identification requirement for web site operators. Germany applies it to commercial sites. Courts stretch the circle so that many bloggers assume the so-called Impressum rule includes them.
An anonymously blogging, purported judge believes the constitution exempts him. In addition, he is not seeking more business. A blogging lawyer claims to now have filed a criminal complaint against the John Doe perpetrator a.k.a. Judge Volker Ballmann, seeking his identity and punishment.
And the point is? Increase the volume of visitors to the sites? Generally, the violation of the rules on the identification of operators is a matter for the government to pursue and could lead to a civil fine.
There is also the widely abused practice of civil actions by competitors triggering hefty legal fees which--in the absence of the American Rule--can cripple an alleged offender.
Time will tell if a competing judge will consider himself competitively disadvantaged by Ballmann, the unImpressed colleague.
Tue, Aug. 11, 2009
Media Quoting Media: Liability
CK - Washington. A far-reaching decision on the freedom of the media in Germany is coming down the pike if the press release published by the German Federal Constitutional Court on August 11, 2009 is any indication.
The case, docket number 1BvR 134/03, involves a print magazine that published an overview of current third-party media which, in turn, contained unedited excerpts from other periodicals. The plaintiff is mentioned in an original and sued the magazine for damages, on the grounds that the magazine had omitted its own fact-checking and redistributed a false statement.
While the constitutional court in Karlsruhe agreed with the lower courts on the issue of fact-checking, it affirmed in great detail freedom of the press issues with respect to excerpts and the redistribution of op-eds and third-party opinions. In addition, it examined the interplay of the German constitution and European human rights issues.
CK - Washington. A far-reaching decision on the freedom of the media in Germany is coming down the pike if the press release published by the German Federal Constitutional Court on August 11, 2009 is any indication.
The case, docket number 1BvR 134/03, involves a print magazine that published an overview of current third-party media which, in turn, contained unedited excerpts from other periodicals. The plaintiff is mentioned in an original and sued the magazine for damages, on the grounds that the magazine had omitted its own fact-checking and redistributed a false statement.
While the constitutional court in Karlsruhe agreed with the lower courts on the issue of fact-checking, it affirmed in great detail freedom of the press issues with respect to excerpts and the redistribution of op-eds and third-party opinions. In addition, it examined the interplay of the German constitution and European human rights issues.
Sun, Aug. 09, 2009
Call for More Censorship
CK - Washington It is election season in Germany. The new call in Berlin for blocking Internet sites with downloadable movie content may be nothing but a political maneuver. What is worrisome, however, is the fact that it comes from a party speaker shortly after the federal government vowed that its new child pornography statute would be the only Internet blocking statute in Germany. Heise reports on August 9, 2009 that the speaker for the social democrat party--the junior member in the ruling coalition--called for such measures against copyright violations.
CK - Washington It is election season in Germany. The new call in Berlin for blocking Internet sites with downloadable movie content may be nothing but a political maneuver. What is worrisome, however, is the fact that it comes from a party speaker shortly after the federal government vowed that its new child pornography statute would be the only Internet blocking statute in Germany. Heise reports on August 9, 2009 that the speaker for the social democrat party--the junior member in the ruling coalition--called for such measures against copyright violations.
Wed, Aug. 05, 2009
New Rules for Legal Fees
CK - Washington. German statutes govern attorney compensation and procedural rules provide for the recovery of legal fees and costs by the winner in litigation. A new rule clarifies the recovery and allocation of certain pre-litigation fees, which the federal justice department in Berlin explains, in German.
CK - Washington. German statutes govern attorney compensation and procedural rules provide for the recovery of legal fees and costs by the winner in litigation. A new rule clarifies the recovery and allocation of certain pre-litigation fees, which the federal justice department in Berlin explains, in German.
Sun, Jul. 26, 2009
Foreign Trademark Domestically Protected
CK - Washington. Despite the fact that an unregistered trademark is used in Germany, a conflicting mark may be registered with the Patent and Trademark Office in Munich. Nonetheless, such a common law domestic trademark may enjoy some protection. Recently, the office extended such protection to a foreign trademark.
The federal supreme court for patent and trademark matters ruled in the matter 26 W (pat) 32/08 on May 22, 2009 in favor of a Turkish mark whose owner had entered into business negotiations with a prospective German importer. When negotiations broke down, the importer registered the mark in Germany. Later, the Turkish company sought to have the registration expunged.
The court, Bundespatentgericht, upheld the action of the trademark office, Deutsches Patent- und Markenamt, which struck the offending mark from the register on the basis of considerations which resemble equitable factors in American law.
CK - Washington. Despite the fact that an unregistered trademark is used in Germany, a conflicting mark may be registered with the Patent and Trademark Office in Munich. Nonetheless, such a common law domestic trademark may enjoy some protection. Recently, the office extended such protection to a foreign trademark.
The federal supreme court for patent and trademark matters ruled in the matter 26 W (pat) 32/08 on May 22, 2009 in favor of a Turkish mark whose owner had entered into business negotiations with a prospective German importer. When negotiations broke down, the importer registered the mark in Germany. Later, the Turkish company sought to have the registration expunged.
The court, Bundespatentgericht, upheld the action of the trademark office, Deutsches Patent- und Markenamt, which struck the offending mark from the register on the basis of considerations which resemble equitable factors in American law.
Mon, Jul. 13, 2009
Anonymous Grading Approved
AKL - Washington. The German web-page spick-mich.de enables students to anonymously grade their teachers and schools. A teacher evaluated and graded on the site--with a grade of 4.3, 6 being the worst,--sued its operator to have the humiliating information expunged. She considers the web-site a violation of her personality rights protected by the German Constitution.
On June 23, 2009, the Federal Supreme Court for Civil Matters in Karlsruhe denied her petition, docket number VI ZR 196/08. Although the teacher may rightfully assert a violation of her personality rights, the Bundesgerichtshof explains, the constitutional protection for freedom of speech trumps her claim.
Significantly, the court found the protection to apply to an anonymous evaluation on the Internet. The view of the court contrasts sharply with the widely-held belief in Germany that anonymous speech on the Internet is per se illegal.
AKL - Washington. The German web-page spick-mich.de enables students to anonymously grade their teachers and schools. A teacher evaluated and graded on the site--with a grade of 4.3, 6 being the worst,--sued its operator to have the humiliating information expunged. She considers the web-site a violation of her personality rights protected by the German Constitution.
On June 23, 2009, the Federal Supreme Court for Civil Matters in Karlsruhe denied her petition, docket number VI ZR 196/08. Although the teacher may rightfully assert a violation of her personality rights, the Bundesgerichtshof explains, the constitutional protection for freedom of speech trumps her claim.
Significantly, the court found the protection to apply to an anonymous evaluation on the Internet. The view of the court contrasts sharply with the widely-held belief in Germany that anonymous speech on the Internet is per se illegal.
Sat, Jul. 04, 2009
Burden and Relief: German Data Protection
CK - Washington. On July 3, 2009, the federal diet in Berlin passed executive-sponsored data protection and data audit amendments that impact seriously on employers and data services providers, including data merchants and polling companies.
Advertisers working with data merchants will need to disclose their data sources. Use, storage and collection of personally identifiable data will depend even more on consent. Providers of agreements seeking such consent must highlight the terms of consent. Advertising with self-collected customer data will remain legal.
The bill also admonishes data collectors to adhere to principles of sparsity and responsibility. For instance, the use of pseudonyms and anonymization of data will become more important. With less information collected, data protection burdens shrink.
The bill is an almost incomprehensible jumble and some portions seem ripe for challenge in court. The background information from the various parliamentary committees is useful: Text 16/13657 of July 1, 2009, Text 16/12011 of February 18, 2009. The data audit provisions will enable the certification of providers as responsible data handlers, by way of an official seal of approval.
Recent discoveries of questionable data handling practices in Germany caused continuous media attention adverse to employers utilizing background screening facilities and to data management and trading companies. The target du jour is Deutsche Bank for allegedly spying on a board member, by screening and monitoring some activities.
CK - Washington. On July 3, 2009, the federal diet in Berlin passed executive-sponsored data protection and data audit amendments that impact seriously on employers and data services providers, including data merchants and polling companies.
Advertisers working with data merchants will need to disclose their data sources. Use, storage and collection of personally identifiable data will depend even more on consent. Providers of agreements seeking such consent must highlight the terms of consent. Advertising with self-collected customer data will remain legal.
The bill also admonishes data collectors to adhere to principles of sparsity and responsibility. For instance, the use of pseudonyms and anonymization of data will become more important. With less information collected, data protection burdens shrink.
The bill is an almost incomprehensible jumble and some portions seem ripe for challenge in court. The background information from the various parliamentary committees is useful: Text 16/13657 of July 1, 2009, Text 16/12011 of February 18, 2009. The data audit provisions will enable the certification of providers as responsible data handlers, by way of an official seal of approval.
Recent discoveries of questionable data handling practices in Germany caused continuous media attention adverse to employers utilizing background screening facilities and to data management and trading companies. The target du jour is Deutsche Bank for allegedly spying on a board member, by screening and monitoring some activities.
Legal Guide for Web Shops
CK - Washington. Michael Seidlitz refers in Twitter to a brief guide on legal aspects of web shop protection, infringement of copyrights and other rights in photos, text, video and lists. The guide by Sascha Faber provides a useful introduction, in German, to rights and obligations which differ from those in the United States in various respects.
The most important aspect of German infringement law is that the infringed party can claim both correction and statutory legal fees from an infringer. But if the cease and desist demand, Abmahnung, misses mark, the infringer may countersue and collect from the creator of a work that may not meet the minimum requirements of the Copyright Statute or the Statute Against Unfair Competition, as previously discussed in the German American Law Journal.
In the transatlantic war of words and pictures, such incongruency frequently leads to misunderstandings of rights and obligations and occasionally to surprise or regret.
CK - Washington. Michael Seidlitz refers in Twitter to a brief guide on legal aspects of web shop protection, infringement of copyrights and other rights in photos, text, video and lists. The guide by Sascha Faber provides a useful introduction, in German, to rights and obligations which differ from those in the United States in various respects.
The most important aspect of German infringement law is that the infringed party can claim both correction and statutory legal fees from an infringer. But if the cease and desist demand, Abmahnung, misses mark, the infringer may countersue and collect from the creator of a work that may not meet the minimum requirements of the Copyright Statute or the Statute Against Unfair Competition, as previously discussed in the German American Law Journal.
In the transatlantic war of words and pictures, such incongruency frequently leads to misunderstandings of rights and obligations and occasionally to surprise or regret.
Thu, Jul. 02, 2009
Lisbon Injunction in English
CK - Washington. The Federal Constitutional Court in Karlsruhe published an English version of its ruling of June 30, 2009 on the Lisbon treaty dispute, docket number 2 BvR 1259/08. The Bundesverfassungsgericht court held that Germany's instrument of ratification of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007 (Federal Law Gazette 2008 II page 1039) may not be deposited before completing the statutory clarification the court requires.
CK - Washington. The Federal Constitutional Court in Karlsruhe published an English version of its ruling of June 30, 2009 on the Lisbon treaty dispute, docket number 2 BvR 1259/08. The Bundesverfassungsgericht court held that Germany's instrument of ratification of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007 (Federal Law Gazette 2008 II page 1039) may not be deposited before completing the statutory clarification the court requires.
Thu, Jun. 18, 2009
Election Politics: Placebo for Pornography
CK - Washington. In time for the fall election, the majority coalition in the German federal diet passed a coalition-cabinet-proposed bill to draw virtual curtains before websites offering child-pornograhic material.
The June 18, 2009 vote drew a record 130,000 popular petitions in opposition to a rule widely regarded as the first step toward censorship on the Internet, although Germany has long imposed drastically-enforced sanctions against anonymous speech on the Internet and maintains rules crimping freedom of expression through Internet forums and WiFi communications systems.
These sets of rules suppress freedom of speech but are widely not regarded as means of censorship and are usually enforced civilly or administratively, not criminally.
The new law contains provisions with international effect, such as requiring certain ISPs to place barriers on foreign websites with pornographic material and requiring a federal enforcement agency to notify their foreign counterparts. Even before approving a final bill, the government jawboned major ISPs into contracts that coerce them into enforcing similar restrictions.
The law does not require any removal of child-pornographic material from the Internet, and such material will remain accessible by passing through the curtain. Which version of the bill passed the diet is unclear.
Various sources point to a text containing amendments, Entwurf eines Gesetzes zur Bekämpfung der Kinderpornographie in Kommunikationsnetzen, while the diet, Bundestag, lists links leading to blank pages as well as a May 2009 draft.
The final draft is said to contain a sunset provision. The censorship law could become effective shortly before the elections and expire after three years, which would trigger new discussions before the next federal election cycle.
Fortunately, some of the supreme courts, including the Federal Constitutional Court in Karlsruhe, are fairly Internet-savvy. They may rescue the country from steps that expand the growing suppression of free speech in Germany by her legislators, as they have done before, and by overly zealous courts that rely on uninformed perceptions of the Internet and its mechanics.
CK - Washington. In time for the fall election, the majority coalition in the German federal diet passed a coalition-cabinet-proposed bill to draw virtual curtains before websites offering child-pornograhic material.
The June 18, 2009 vote drew a record 130,000 popular petitions in opposition to a rule widely regarded as the first step toward censorship on the Internet, although Germany has long imposed drastically-enforced sanctions against anonymous speech on the Internet and maintains rules crimping freedom of expression through Internet forums and WiFi communications systems.
These sets of rules suppress freedom of speech but are widely not regarded as means of censorship and are usually enforced civilly or administratively, not criminally.
The new law contains provisions with international effect, such as requiring certain ISPs to place barriers on foreign websites with pornographic material and requiring a federal enforcement agency to notify their foreign counterparts. Even before approving a final bill, the government jawboned major ISPs into contracts that coerce them into enforcing similar restrictions.
The law does not require any removal of child-pornographic material from the Internet, and such material will remain accessible by passing through the curtain. Which version of the bill passed the diet is unclear.
Various sources point to a text containing amendments, Entwurf eines Gesetzes zur Bekämpfung der Kinderpornographie in Kommunikationsnetzen, while the diet, Bundestag, lists links leading to blank pages as well as a May 2009 draft.
The final draft is said to contain a sunset provision. The censorship law could become effective shortly before the elections and expire after three years, which would trigger new discussions before the next federal election cycle.
Fortunately, some of the supreme courts, including the Federal Constitutional Court in Karlsruhe, are fairly Internet-savvy. They may rescue the country from steps that expand the growing suppression of free speech in Germany by her legislators, as they have done before, and by overly zealous courts that rely on uninformed perceptions of the Internet and its mechanics.
Sun, Jun. 14, 2009
Free Annotation of Civil Code
CK - Washington. Staudinger is one of the most important annotations of the civil code, Bürgerliches Gesetzbuch, which recently sprouted an offshoot called Eckpfeiler des Zivilrechts. Meant as a short reference work for students--as evidenced by the examensrelevant.de blog, the Corner Stone volume of some 1270 pages attracts also full-fledged lawyers. While its €49/$69 price is quite reasonable, there is also a free downloadable version. The Staudinger to go!-version requires a registration. An excerpt is made available for download without registration. It covers the index and historical introduction into the genesis of the civil code as one of the first federal German statutes.
CK - Washington. Staudinger is one of the most important annotations of the civil code, Bürgerliches Gesetzbuch, which recently sprouted an offshoot called Eckpfeiler des Zivilrechts. Meant as a short reference work for students--as evidenced by the examensrelevant.de blog, the Corner Stone volume of some 1270 pages attracts also full-fledged lawyers. While its €49/$69 price is quite reasonable, there is also a free downloadable version. The Staudinger to go!-version requires a registration. An excerpt is made available for download without registration. It covers the index and historical introduction into the genesis of the civil code as one of the first federal German statutes.
Tue, Jun. 02, 2009
New Holocaust Pensions
CK - Washington. Workers forced by Nazis and occupying German forces into jobs outside of Germany, such as military postal work in Poland and Belarus, can qualify for German pension claims, the top German court for employment matters ruled on June 1, 2009. A Deutsche Welle report contains detailed information which may assist eligible persons now residing outside of the regions where the Nazis operated.
CK - Washington. Workers forced by Nazis and occupying German forces into jobs outside of Germany, such as military postal work in Poland and Belarus, can qualify for German pension claims, the top German court for employment matters ruled on June 1, 2009. A Deutsche Welle report contains detailed information which may assist eligible persons now residing outside of the regions where the Nazis operated.
Mon, Jun. 01, 2009
Broadcasters Cut Net Fare
CK - Washington. German public TV broadcasters begin to delete Internet material a few days after publishing it. Sports shows will disappear after 24 hours. WDR implements its new policy on June 1, 2009 and will immediately delete its database of legal opinions related to its legal advisory program, ARD Ratgeber Recht, while ZDF will phase in its policy through the end of 2009. The broadcasters argue that the state broadcasting compact, Rundfundstaatsvertrag, requires such cuts.
CK - Washington. German public TV broadcasters begin to delete Internet material a few days after publishing it. Sports shows will disappear after 24 hours. WDR implements its new policy on June 1, 2009 and will immediately delete its database of legal opinions related to its legal advisory program, ARD Ratgeber Recht, while ZDF will phase in its policy through the end of 2009. The broadcasters argue that the state broadcasting compact, Rundfundstaatsvertrag, requires such cuts.
Sat, May. 30, 2009
Opel Bankruptcy Precedes GM Bankruptcy
CK - Washington. While IP holders scramble to gather their contracts and open invoices for review by attorneys in light of the imminent GM bankruptcy and for the preservation of their potentially preferred handling in the bankruptcy case under 11 USC §365, while bondholders have until 5 p.m. this afternoon to make up their minds on the offer to lose some or all of their paper, and while union members settle into the reality of the new trust arrangement to preserve health insurance and pension rights, developments in Germany set into more relaxed state after feverish negotiations at the highest levels of corporations and the state and federal governments.
Under an widely published arrangement reached last night, GM subsidiary Opel GmbH will benefit from rescue funds provided in large part by the German federal government and Russian financiers. The arrangement gives majority control to Magna, the Canadian auto-parts maker, of Opel GmbH which also includes British make Vauxhall. To prevent a GM bankruptcy from nixing the deal and sucking German taxpayer funds into the anticipated GM bankruptcy, Opel GmbH will file for bankruptcy, Insolvenz, on Saturday -- two days before the expected GM filing.
Addendum: More recent reports note that the parties tentatively agreed on a trust agreement to avoid an Opel bankruptcy filing.
CK - Washington. While IP holders scramble to gather their contracts and open invoices for review by attorneys in light of the imminent GM bankruptcy and for the preservation of their potentially preferred handling in the bankruptcy case under 11 USC §365, while bondholders have until 5 p.m. this afternoon to make up their minds on the offer to lose some or all of their paper, and while union members settle into the reality of the new trust arrangement to preserve health insurance and pension rights, developments in Germany set into more relaxed state after feverish negotiations at the highest levels of corporations and the state and federal governments.
Under an widely published arrangement reached last night, GM subsidiary Opel GmbH will benefit from rescue funds provided in large part by the German federal government and Russian financiers. The arrangement gives majority control to Magna, the Canadian auto-parts maker, of Opel GmbH which also includes British make Vauxhall. To prevent a GM bankruptcy from nixing the deal and sucking German taxpayer funds into the anticipated GM bankruptcy, Opel GmbH will file for bankruptcy, Insolvenz, on Saturday -- two days before the expected GM filing.
Addendum: More recent reports note that the parties tentatively agreed on a trust agreement to avoid an Opel bankruptcy filing.
Fri, May. 15, 2009
Constitutional Rulings in Germany
CK - Washington. The German Federal Constitutional Court in Karlsruhe recently published the following decisions. Cases are not cited by party names. Instead, German citation rules rely on docket numbers. The court publishes its decisions in German although it releases some press statements in English.
CK - Washington. The German Federal Constitutional Court in Karlsruhe recently published the following decisions. Cases are not cited by party names. Instead, German citation rules rely on docket numbers. The court publishes its decisions in German although it releases some press statements in English.
- 1 BvR 1155/03 dated May 5, 2009:
- 2 BvR 2009/08 dated April 30, 2009:
- 1 BvR 887/09 dated April 22, 2009:
- 1 BvR 256/08 dated April 22, 2009:
- 1 BvR 2310/06 dated April 21, 2009:
- 1 BvR 3478/08 dated April 15, 2009:
- 2 BvR 1496/05 dated April 15, 2009:
- 1 BvR 467/09 dated April 14, 2009.
Thu, May. 07, 2009
New Law Periodical AnwaltSpiegel
CK - Washington. German law publishers German Law Publishers and German newspaper entity FAZ-Institut joined forces today and launched an online periodical with a focus on business law. There is no subscription fee for the new Deutscher AnwaltSpiegel. The topics of the May 7, 2009 issue include various matters in corporate law, bankruptcy law and related fields. The issue contains also information on lawyers and their career moves.
CK - Washington. German law publishers German Law Publishers and German newspaper entity FAZ-Institut joined forces today and launched an online periodical with a focus on business law. There is no subscription fee for the new Deutscher AnwaltSpiegel. The topics of the May 7, 2009 issue include various matters in corporate law, bankruptcy law and related fields. The issue contains also information on lawyers and their career moves.
Wed, Apr. 22, 2009
Statute to Monitor Net and Limit Access
CK - Washington. The federal government has decided to introduce new censorship measures and announced the plans in a press release on April 22, 2009. Interestingly, the bill for Internet embargoes originates from the commerce department, not the attorney general's office. The bill includes administrative measures governing ISPs, provisions requiring the monitoring of Internet use and criminal provisions. In the German parliamentary system, bills approved by the cabinet are likely to find the support of a majority of parliamentarians who support the cabinet. Many voters and technology experts oppose such censorship.
CK - Washington. The federal government has decided to introduce new censorship measures and announced the plans in a press release on April 22, 2009. Interestingly, the bill for Internet embargoes originates from the commerce department, not the attorney general's office. The bill includes administrative measures governing ISPs, provisions requiring the monitoring of Internet use and criminal provisions. In the German parliamentary system, bills approved by the cabinet are likely to find the support of a majority of parliamentarians who support the cabinet. Many voters and technology experts oppose such censorship.
Sun, Apr. 19, 2009
Germany Joins Censoring Nations
CK - Washington. A divisive issue splits German public opinion before the upcoming elections: To censor or not? The third step of censorship--after the ever-expanding identification requirement for Internet participants known as Impressumspflicht and logging requirements for Internet access providers of their customers' activities--targets trafficking in child-pornographic material.
Despite the fact that there is no statutory basis for a censoring obligation, many ISPs in Germany feel pressured by the federal government to apply censorship standards. A public list contains the ISPs who implement new barriers known as Netzsperre.
Internet experts point to the failure of censorship in Australia and elsewhere and complain that the newest expansion of censorship is driven by technically indefensible, populist arguments. They argue that the targeted traffickers use means other than the Web.
CK - Washington. A divisive issue splits German public opinion before the upcoming elections: To censor or not? The third step of censorship--after the ever-expanding identification requirement for Internet participants known as Impressumspflicht and logging requirements for Internet access providers of their customers' activities--targets trafficking in child-pornographic material.
Despite the fact that there is no statutory basis for a censoring obligation, many ISPs in Germany feel pressured by the federal government to apply censorship standards. A public list contains the ISPs who implement new barriers known as Netzsperre.
Internet experts point to the failure of censorship in Australia and elsewhere and complain that the newest expansion of censorship is driven by technically indefensible, populist arguments. They argue that the targeted traffickers use means other than the Web.
Wed, Apr. 15, 2009
German Title Protection, Again
CK - Washington. Last year, foreigners using their degrees awarded abroad as titles in Germany without appropriate conversion became a target of zealous prosecutors. This year it's Germans with foreign degrees.
Last year, the buzz was greater than the cause which was quickly settled. The action against a German lawyer with a Slovak law degree which he abbreviates in German with Dr. resulted in an expensive civil judgment against him.
A court in a western Land determined that he violated the laws of all German states except Bavaria and Berlin. The lawyer's use of the title on his Berlin-based web site caused anti-competitive effects throughout the states that do not follow Bavaria and Berlin.
The February 18, 2009 decision, uncovered by prolific law-twitterer Michael Seidlitz, is from a lower Düsseldorf court in the matter 12 O 284/06 and nicely illustrates the limits of federalism in Germany.
The next issue for the courts is whether foreign authors contributing to books published in Germany need to go through the recognition process and identify their foreign degrees in the German Land-approved way. Make that 16 states and Berlin and hope for a uniform position.
CK - Washington. Last year, foreigners using their degrees awarded abroad as titles in Germany without appropriate conversion became a target of zealous prosecutors. This year it's Germans with foreign degrees.
Last year, the buzz was greater than the cause which was quickly settled. The action against a German lawyer with a Slovak law degree which he abbreviates in German with Dr. resulted in an expensive civil judgment against him.
A court in a western Land determined that he violated the laws of all German states except Bavaria and Berlin. The lawyer's use of the title on his Berlin-based web site caused anti-competitive effects throughout the states that do not follow Bavaria and Berlin.
The February 18, 2009 decision, uncovered by prolific law-twitterer Michael Seidlitz, is from a lower Düsseldorf court in the matter 12 O 284/06 and nicely illustrates the limits of federalism in Germany.
The next issue for the courts is whether foreign authors contributing to books published in Germany need to go through the recognition process and identify their foreign degrees in the German Land-approved way. Make that 16 states and Berlin and hope for a uniform position.
Thu, Apr. 09, 2009
Microsoft Antitrust Fine in English
CK - Washington. The Berlin antitrust agency, Bundeskartellamt, published a press release, in English, explaining the imposition on Microsoft Deutschland GmbH of a €9 million fine on April 8, 2009. Microsoft accepted the penalty which sanctions a price fixing indicent in 2008 for a German version of its office software aggregation.
CK - Washington. The Berlin antitrust agency, Bundeskartellamt, published a press release, in English, explaining the imposition on Microsoft Deutschland GmbH of a €9 million fine on April 8, 2009. Microsoft accepted the penalty which sanctions a price fixing indicent in 2008 for a German version of its office software aggregation.
Sun, Apr. 05, 2009
Abusive Cease and Desist Demands
CK - Washington. The abuse in the German business of cease-and-desist demands has accelerated in recent years. Most egregious is its growth in the music and online auction trades, with some attorneys meshing their professional interests with their clients' economic interests - think champerty and barritry.
A peculiar fiction in German law deems cease-and-desist demands to serve the target's interests, thus triggering a liability of the target for the fees of the attorney authoring the demand.
A new study by Cornelius Renner analyzes the evolution and legal issues in the German-language paper Abmahnung--Blaues Auge oder Beinbruch? published at Humboldt Forum Recht. Among Renner's conclusions is that the courts have the means to prevent abuse, that proof of abuse is hard to come by, and that the courts should be more serious about reducing abuse by recognizing de minimis technical violations of arcane rules.
CK - Washington. The abuse in the German business of cease-and-desist demands has accelerated in recent years. Most egregious is its growth in the music and online auction trades, with some attorneys meshing their professional interests with their clients' economic interests - think champerty and barritry.
A peculiar fiction in German law deems cease-and-desist demands to serve the target's interests, thus triggering a liability of the target for the fees of the attorney authoring the demand.
A new study by Cornelius Renner analyzes the evolution and legal issues in the German-language paper Abmahnung--Blaues Auge oder Beinbruch? published at Humboldt Forum Recht. Among Renner's conclusions is that the courts have the means to prevent abuse, that proof of abuse is hard to come by, and that the courts should be more serious about reducing abuse by recognizing de minimis technical violations of arcane rules.
Sat, Mar. 28, 2009
Nutty Hamburg ISP Precedent Nixed
CK - Washington The bloggers' Hamburg Damocles' Sword has been lifted by a February 4, 2009 appellate ruling published a few days ago. The Hamburg district court had subjected operators of Internet fora to liability for comments left by third parties. The Hamburg Court of Appeals rejected any contributory liability in the matter 5 U 180/07 and confirmed the statutory principles immunizing Internet operators from liability for third-party activities. Screening for the approval of comments is no longer required.
CK - Washington The bloggers' Hamburg Damocles' Sword has been lifted by a February 4, 2009 appellate ruling published a few days ago. The Hamburg district court had subjected operators of Internet fora to liability for comments left by third parties. The Hamburg Court of Appeals rejected any contributory liability in the matter 5 U 180/07 and confirmed the statutory principles immunizing Internet operators from liability for third-party activities. Screening for the approval of comments is no longer required.
Mon, Mar. 16, 2009
Management Pay: Remittitur
CK - Washington. The compensation of management in publicly-held corporations should be reasonable, avoid excess, base bonus payments on achievements and consider long-term performance -- those are the key mandates in a bill approved by the Berlin cabinet.
The government will not define what is appropriate. Instead, in a carrot-and-stick approach, it provides the board of directors with guidance and enhanced authority, such as:
CK - Washington. The compensation of management in publicly-held corporations should be reasonable, avoid excess, base bonus payments on achievements and consider long-term performance -- those are the key mandates in a bill approved by the Berlin cabinet.
The government will not define what is appropriate. Instead, in a carrot-and-stick approach, it provides the board of directors with guidance and enhanced authority, such as:
1. Guidelines will cover salaries and perks, including bonus payments.The Berlin Attorney General published the bill with draft language as a guide for the majority factions in the federal parliament, Bundestag, on March 4, 2009.
2. Stock incentives may be exercized not sooner than four years after their grant.
3. The board receives authority for remittitur; it may reduce compensation despite contractual terms to the contrary.
4. Decisions on compensation must be made by the full board, not just committees, in order to enhance transparency.
5. Board members will become liable to the corporation for irresponsible grants of compensation.
Sat, Mar. 14, 2009
Supreme Court: Fax Receipt, no Refund
CK - Washington. Recently, we listed the German federal supreme courts. Next to the Constitutional Supreme Court, Bundesverfassungsgericht, the court receiving the most attention is the Federal Supreme Court with its civil and criminal divisions, Bundesgerichtshof, abbreviated BGH.
The BGH court released an English-language PDF brochure in 2008 which outlines its organization and jurisdiction. One of the issues currently before the court is the split among appellate courts on the presumption of receipt of telefaxes, an issue Christine Schaller recently discussed in English.
The court provides press information and notes dryly that despite rumors to the contrary it has not decided that overpayments of public broadcasting fees must be refunded.
CK - Washington. Recently, we listed the German federal supreme courts. Next to the Constitutional Supreme Court, Bundesverfassungsgericht, the court receiving the most attention is the Federal Supreme Court with its civil and criminal divisions, Bundesgerichtshof, abbreviated BGH.
The BGH court released an English-language PDF brochure in 2008 which outlines its organization and jurisdiction. One of the issues currently before the court is the split among appellate courts on the presumption of receipt of telefaxes, an issue Christine Schaller recently discussed in English.
The court provides press information and notes dryly that despite rumors to the contrary it has not decided that overpayments of public broadcasting fees must be refunded.
Wed, Mar. 11, 2009
Subsidized Employee Retention
CK - Washington. Dr. Jessica Ohle's overview of the German employee retention system is now available in the articles section of the German American Law Journal.
In hard times, business may appeal to the government for subsidizing laid-off staff that the companies want to retain. The German system is similar in scope to arrangements in other European nations but each systems has its own quirks.
Dr. Ohle -- now practicing as a partner in a Berlin employment and labor law boutique and long ago an intern here in Washington, DC -- describes the details, including allowances for seasonal short time workers, Saisonkurzarbeitergeld in The Reduction of Staff Working Hours: Kurzarbeit in German Law An Alternative to Dismissals:
CK - Washington. Dr. Jessica Ohle's overview of the German employee retention system is now available in the articles section of the German American Law Journal.
In hard times, business may appeal to the government for subsidizing laid-off staff that the companies want to retain. The German system is similar in scope to arrangements in other European nations but each systems has its own quirks.
Dr. Ohle -- now practicing as a partner in a Berlin employment and labor law boutique and long ago an intern here in Washington, DC -- describes the details, including allowances for seasonal short time workers, Saisonkurzarbeitergeld in The Reduction of Staff Working Hours: Kurzarbeit in German Law An Alternative to Dismissals:
In response to the current world-wide financial crisis, the German government has extended this period to 18 months. Several large German employers, including Daimler and BMW, have recently decided to temporarily lay off their employees in accordance with this program. Kurzarbeit permits employers to keep their trained staff on the payroll during economically difficult times because the state allowance eases their burden in terms of the continued salary payments. This program thus enables German companies to retain their trained staff in times when fewer orders are coming in.
Tue, Mar. 10, 2009
PC Monitoring Debate Flares
CK - Washington. The legality of monitoring PCs remains a major topic in German legal and political debate. It flares up now with the discovery of monitoring abroad, presumably through key-logger techniques, by the German intelligence service, BND.
Targets include Iraqi systems, Netzeitung reports, which adds on March 8, 2009 that politicians favor statutory action to override permissive regulations and executive orders.
One year ago, the federal constitutional court had established a new right to PC privacy when it determined that the German constitution protects the confidentiality and integrity of information technology systems in its rulings in BVerfG 1 BvR 370/07 and 1 BvR 595/07.
CK - Washington. The legality of monitoring PCs remains a major topic in German legal and political debate. It flares up now with the discovery of monitoring abroad, presumably through key-logger techniques, by the German intelligence service, BND.
Targets include Iraqi systems, Netzeitung reports, which adds on March 8, 2009 that politicians favor statutory action to override permissive regulations and executive orders.
One year ago, the federal constitutional court had established a new right to PC privacy when it determined that the German constitution protects the confidentiality and integrity of information technology systems in its rulings in BVerfG 1 BvR 370/07 and 1 BvR 595/07.
Sun, Mar. 08, 2009
Taxes Complicate Bailouts
CK - Washington. German enthusiasm for a statutory rescue package for the GM subsidiary, Opel, suffers. Reportedly, questionable profit transfers from Opel to GM resulted in the complete avoidance of profit taxation in Germany. At issue is a €655 million income shift, in the form of patent royalties, that nixed German tax claims.
A similar complication arises in the joint U.S.-Switzerland rescue of UBS bank. As the Washington Post notes, one division of the Treasury department helps finance the rescue, while the tax division manages to infuriate the Swiss with exchange of information demands on American tax cheats. The requests push the Swiss to violate their laws.
CK - Washington. German enthusiasm for a statutory rescue package for the GM subsidiary, Opel, suffers. Reportedly, questionable profit transfers from Opel to GM resulted in the complete avoidance of profit taxation in Germany. At issue is a €655 million income shift, in the form of patent royalties, that nixed German tax claims.
A similar complication arises in the joint U.S.-Switzerland rescue of UBS bank. As the Washington Post notes, one division of the Treasury department helps finance the rescue, while the tax division manages to infuriate the Swiss with exchange of information demands on American tax cheats. The requests push the Swiss to violate their laws.
Sat, Mar. 07, 2009
German Lawyer Temps
CK - Washington. Gaining practical experience in a law firm after law school is the objective of many foreign lawyers who study for a Masters degree in the United States. A few weeks ago, the German American Law Association in Bonn, Germany, published the third edition of its application guide for such positions, USA Bewerbungsführer für Juristen.
Edited by Clemens Kochinke and Stephan Wilske, the completely revised edition includes 20 contributions from experienced German practitioners. They explore the application process and formalities, numerous facets of life in an American firm, business or university, expectations of employers, visa and tax issues as well as the factors influencing the successful transition to a firm in Germany.
CK - Washington. Gaining practical experience in a law firm after law school is the objective of many foreign lawyers who study for a Masters degree in the United States. A few weeks ago, the German American Law Association in Bonn, Germany, published the third edition of its application guide for such positions, USA Bewerbungsführer für Juristen.
Edited by Clemens Kochinke and Stephan Wilske, the completely revised edition includes 20 contributions from experienced German practitioners. They explore the application process and formalities, numerous facets of life in an American firm, business or university, expectations of employers, visa and tax issues as well as the factors influencing the successful transition to a firm in Germany.
Wed, Feb. 25, 2009
Use of Third Party Image
CK - Washington. German courts frequently address the issue of fees payable photographers whose unlicensed photos appear on websites. A photo marketing association provides a well-researched guide to the value of photos that applies in various licensed settings. Courts use the MFM guide to determine compensation owed for unlicensed use, doubling the value whenever the photographer is not identified.
In an appellate ruling of Februar 3, 2009, the Brandenburg Court of Appeals warned against a mechanical application of the MFM data. The single unlicensed use of a copied photo on an auction website by an individual should not be equated with the long-term commercial use by a an authorized manufacturer for advertising, the court held.
In addition, the court addressed the new limitation of a cap on attorneys fee for the representation of copyright owners seeking recourse against violators. It found the 100 Euro cap to apply in an instance where the photographer could have directly communicated with the violator because the facts and the law were plain.
The decision in the matter 6 U 58/08 is available on the MIR site which provides updates, in German, of intellectual property rulings relating to the Internet, also on a subscription basis.[German law, Copyright, Photo, website, auction]
CK - Washington. German courts frequently address the issue of fees payable photographers whose unlicensed photos appear on websites. A photo marketing association provides a well-researched guide to the value of photos that applies in various licensed settings. Courts use the MFM guide to determine compensation owed for unlicensed use, doubling the value whenever the photographer is not identified.
In an appellate ruling of Februar 3, 2009, the Brandenburg Court of Appeals warned against a mechanical application of the MFM data. The single unlicensed use of a copied photo on an auction website by an individual should not be equated with the long-term commercial use by a an authorized manufacturer for advertising, the court held.
In addition, the court addressed the new limitation of a cap on attorneys fee for the representation of copyright owners seeking recourse against violators. It found the 100 Euro cap to apply in an instance where the photographer could have directly communicated with the violator because the facts and the law were plain.
The decision in the matter 6 U 58/08 is available on the MIR site which provides updates, in German, of intellectual property rulings relating to the Internet, also on a subscription basis.
Sat, Jan. 31, 2009
IP Journal in German and English
CK - Washington. Mohr Siebeck publishers in Germany announced a new scholarly IP journal. Beginning in January 2009, the Zeitschrift für Geistiges Eigentum / Intellectual Property Journal will cover German IP developments with particular emphasis on European IP law into which German IP law is now firmly embedded. The ZGE/IPG journal will be written in both German and English.
CK - Washington. Mohr Siebeck publishers in Germany announced a new scholarly IP journal. Beginning in January 2009, the Zeitschrift für Geistiges Eigentum / Intellectual Property Journal will cover German IP developments with particular emphasis on European IP law into which German IP law is now firmly embedded. The ZGE/IPG journal will be written in both German and English.
Mon, Jan. 26, 2009
Governments Fund Lay-Offs
CK - Washington. Today, the Financial Times reports on the use of special governmental funds to support lay-offs. The system assists corporations in France and Germany, among others, with the retention of skilled personnel. In the German American Law Journal, Jessica Ohle, a Berlin attorney and formerly an intern with Berliner, Corcoran & Rowe, LLP in Washington, DC, will soon publish an overview, in English, of the German statute providing for what is called, in German, Kurzarbeit.
CK - Washington. Today, the Financial Times reports on the use of special governmental funds to support lay-offs. The system assists corporations in France and Germany, among others, with the retention of skilled personnel. In the German American Law Journal, Jessica Ohle, a Berlin attorney and formerly an intern with Berliner, Corcoran & Rowe, LLP in Washington, DC, will soon publish an overview, in English, of the German statute providing for what is called, in German, Kurzarbeit.
Fri, Jan. 23, 2009
Anachronistic Reader
CK - Washington. The invisible role of the prosecution did not disturb the audience in a presentation with author and judge Bernhard Schlink of The Reader at the most American movie theater, the AFI Silver in Silver Spring, Maryland on January 22, 2009. After an introduction by German Ambassador Scharioth and the showing, Schlink responded to many questions from the audience until almost midnight--short, precisely and devoid of annoying movie star qualities. That is remarkable considering the nomination of the movie earlier in the day for several industry awards. Lawyers may find shocking how the presiding judge--one of numerous judges on the panel adjudicating a guard from a concentration camp--brushed aside a defense lawyer's interjections, and to a present-day German lawyer that would appear anachronistic but worth seeing.
CK - Washington. The invisible role of the prosecution did not disturb the audience in a presentation with author and judge Bernhard Schlink of The Reader at the most American movie theater, the AFI Silver in Silver Spring, Maryland on January 22, 2009. After an introduction by German Ambassador Scharioth and the showing, Schlink responded to many questions from the audience until almost midnight--short, precisely and devoid of annoying movie star qualities. That is remarkable considering the nomination of the movie earlier in the day for several industry awards. Lawyers may find shocking how the presiding judge--one of numerous judges on the panel adjudicating a guard from a concentration camp--brushed aside a defense lawyer's interjections, and to a present-day German lawyer that would appear anachronistic but worth seeing.
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