Mon, Dec. 17, 2012

Injunction Against Facebook Name Policy

CK - Washington.   Google Plus' clear-name policy may infuriate users, but Facebook irked the data protection and privacy agency in the German state of Schleswig-Holstein. On December 17, 2012, it announced injunctions against Facebook's Irish and American entities, arguing that its prohibition of screen names violates German law.

In its press release ULD issues orders against Facebook because of mandatory real names, the agency recites, in English, its and Facebook's positions. The press release contains links to the German-language text of the injunctions.

The agency believes that Facebook in Ireland hides the wrongdoing of Facebook USA and should not. Facebook is said to argue that the applicable German law, section 13(6) TMG, violates European directives. Both parties seem bent on a clarification of the applicable rules by German and European courts.

Fri, Nov. 16, 2012

Parents Need not spy on Children

BSS - Washington.   The legal issues arising from sharing of copyright-protected files over the internet pose a constant challenge for the law, and courts have struggled with it for some time. In the context of minors' activities, the German Supreme Court in Civil Matters in Karlsruhe ruled on November 15, 2012 in favor of the parents of a 13 year old boy who in lower court decisions were held responsible for neglecting their duty to supervise the minor and, therefore, held liable for damages to the music industry under §832 of the German Civil Code.

Investigators found file sharing programs called Morpheus and Bearshare on the son's PC and a Bearshare icon on the desktop. Although the parents had installed a firewall and used a security program to prevent the installation of new software, the lower court held the parents liable: They should have conducted monthly inspections of the computer, such as by looking for new icons and installed software.

The Supreme Court, Bundesgerichtshof, developed a more realistic approach and relieved parents from burdensome obligations. Assuming the minor is normally developed and tends to follow rules, parents act with sufficient diligence by advising their child of the illegality of filesharing. Additional duties to monitor online activities arise only with good cause.

Wed, Sep. 26, 2012

Raiding Talent: No Damages

- Washington.   After a failed attempt to buy a running concern out of an bankruptcy estate, a competitor poached the employees of that concern and integrated them into its own, newly formed company. The loser sought 46 million Euros in damages under a theory of violated competition rules.

On September 26, 2012, the Federal Supreme Court for Employment Disputes in Germany confirmed the lower court's ruling in favor of the raider. While the facts demonstrate illegal poaching, they do not support a finding of damages.

The court clarified that §287(1) requires a showing of actual, not just hypothetical damages. Without being offered any measure of damages, a court cannot award them, the Bundesarbeitsgericht in Erfurt ruled in the matter Urteil vom 26. September 2012--10 AZR 370/10-- and issued a press release, in German.

Tue, Sep. 18, 2012

Approval of Eurozone Bailout Fund

AH - Washington.   On September 12, 2012, the German Federal Constitutional Court in Karlsruhe ruled the participation of Germany in the European Stability Mechanism and the Fiscal Compact to be constitutional.

As the last member state of the European Union, Germany has now cleared the way for the implementation of a system of permanent financial help for countries with financial troubles in the eurozone. Since member states representing 90% of capital stock payable to ESM institutions need to ratify the ESM and Germany is about to contribute 27% of the fund, the ratification in Germany is necessary for the ESM to come into effect.

While the ruling in the matter 2 BvR 1390/12 delivers an important pro-European message to bailout skeptics, the Court imposed several conditions on the ratification by Germany. Most importantly, as a binding condition under international law, the German liability may not exceed 190 billion euros without the prior consent of the German parliament.

Sat, Sep. 01, 2012

First Edition in Print

CK - Washington.   The German American Law Journal first appeared in print in September 1991. Co-founded by members of the German American Law Association, Capital Area Chapter, in Washington, DC, the first edition reached more than 100 practitioners in the Washington area. Electronic versions contained internal links through xText. The print edition survived into the late 1990s. The electronic rights were split off early and form the basis of the internet editions using web and blog technologies.

Fri, Aug. 17, 2012

Identification of Uploader in German Law

AM - Washington.   The German Supreme Court in Civil Matters in Karlsruhe ruled on August 10, 2012 in favor of copyright owners such as music distributors whose works could be infringed by the unauthorized dissemination on the internet. The decision affects the issue of rightholders' access to user data via IP addresses.

In the matter I ZB 80/11, the Court determined that a statutory claim afforded rightholders under §101(2)(1)(3) of the German Copyright Act for the disclosure of user data does not require an infringement of copyright on a commercial scale. The commercial nature refers only to the statutory definition for the provision of services. This higher threshold of commercial activity does not apply to the identification of others suspected of infringing activity.

Therefore, internet service providers are bound to disclose to rightsholders the names and addresses of their customers from whose accounts persons upload one or more protected works to an internet file-sharing site, regardless of any commercial scale or commercial purpose sought by the uploader. Otherwise, the Court reasoned, rightsholders could not prosecute infringements on the internet while the objective of the copyright statute is to effectively combat violations of rights on the internet.

Mon, Jul. 16, 2012

Cloud Removed from German Cloud Services

.   The outlook for cloud services in Germany improved with the July 12, 2012 decision by the German Supreme Court in Civil Matters, Bundesgerichtshof, in Karlsruhe when it ruled in favor of a file hosting service on the issue of contributory liability for copyright violations.

The plaintiff, Atari Europe, sued cloud service operator Rapidshare after the defendant had received notice of an infringing Atari work, Alone in the Dark, offered on the service for public, unauthorized download. Rapidshare had removed the work, but Atari soon identified other copies of the work when various third-party links pointed to Rapidshare's hosting servers.

The court determined that the defendant was not an infringer. Based on a case-law theory of contribution rooted in property law, the court found, however, that Rapidshare may have a duty to use reasonable means to prevent copyright violations of which it had been made aware. Such reasonable means may include scanning its offerings as well as well-known link farms that attract copyright violators. The lower court will need to reexamine the facts to assess Rapidshare's potential liability.

The ruling, docket number I ZR 18/11, has not yet been published in written form but the court issued a detailed press release. The decision relieves cloud services from liability for contributory or accessory copyright violations and imposes notification duties on copyright owners while providing cloud services with guidance on reasonable action to protect their immunity.

Fri, Mar. 16, 2012

Restitution of Art Stolen by Nazi Regime

.   The German Supreme Court in Civil Matters in Karlsruhe ruled on March 16, 2012 in favor of returning art stolen by the Gestapo arm of Nazi Germany despite the fact that statutes of limitations had expired and the government had paid compensation.

In addition, a stolen art commission operating under the auspices of the 1998 Washington Conference Principles On Nazi-Confiscated Art had considered the equities in the matter involving art collector Hans Sachs and the formerly East-German custodial art museum now administered by the German Historial Museum and decided against the physical restitution of the art.

The court tends to publish its decisions on the internet with some delay but it has issued a press release in the matter V ZR 279/10, in German. The court found the general principles of property law, under §985 of the German Civil Code, to apply where the original owner could not timely raise its claims because of historical facts and subsequent blocking laws established and administed by the occupational forces in post-war Germany.

The decision is widely applauded as a major step in the development of art restitution under German law and the Washington Conference.

Mon, Mar. 12, 2012

EBook Litigation Moves to Germany

CK - Washington.   Ebook litigation over allegedly unlawful copies moves from the United States to Germany. This development flies in the face of continuing complaints in Germany over the allegedly too expansive exercise of personal jurisdiction by American courts.

In Publishers developing strategies to target e-book pirates, Sheri Qualters reports on March 12, 2012 of the open jurisdictional arms of the German courts that welcome foreign publishers. Ample precedent seeds a fruitful practice area against file hosting services in German law. Qualters notes that jurisdictions outside of the European Union do not match the jurisdictional welcome.

A number of factors combined to make Germany attractive to foes of file-hosters: Politicians do not understand particularly well the technologies involved and set laws which one-sidedly favor copyright buyers and managers while handicapping innovation by German software developers; some courts go far in determining personal jurisdiction in internet matters; and the cost of litigation in Germany is predictable while the loser reimburses the winner -- even outside of the court for successful cease and desist demands.

Wed, Feb. 15, 2012

ACTA - Germany Suspends Accession

FSp - Washington.   The Anti-Counterfeiting Trade Agreement grew out of an initiative by the USA and Japan in order to support owners and marketers of intellectual property to enforce their rights on the internet. The first member nations signed the agreement in late 2011. On January 26, 2012, the European Union and 22 of its 27 member nations joined ACTA.

In Germany, the agreement met harsh criticism of the grant of unconditional authority to the state to bar private internet access, an early warning system for the violation of copyright, releaxed procedural safeguards for criminal prosecutions of minor copyright violations, and obligations imposed on ISPs to disclosure individuals assigned specific IP-addresses. Missing or ambiguously worded criteria in the agreement feed disapproval. For many Germans, ACTA implies censorship, the antitheis of a modern democratic society and its civil liberties, as implemented in the German constitution, Grundgesetz.

In November 2011, Berlin resolved to sign ACTA. But after Slovakia, Poland and the Czech Republic rejected the treaty, the German Ambassador in Japan, already on his way to a signing event, received orders at the last minute to turn back. The Attorney General stated that the delay should not be misunderstood as a definitive no. The suspension should give us time to carry out further discussions.

Tue, Feb. 14, 2012

English in German Indictment

CK - Washington.   The German Supreme Court for Criminal Matters rejected a linguistic challenge to an indictment for conversion, corruption and breach of fiduciary duties. In a multinational business context, the government had offered into evidence untranslated English contracts. The indictment explained the context and effects of the contracts, and some English contracts were offered in translation.

In the matter 1 StR 302/11, the Court confirmed the principle of §184 GVG, the judicial constitutional act, that German is the official language for the legal proceedings. A fair trial is not undermined, however, by the inclusion or reference to original English documents and untranslated reference to locations such as the British Virgin Islands, the court held on November 9, 2011.

The indictment must give the defendant fair warning of the alleged crime and the supporting evidence offered by the government. The requirement is met, the court determined, when the indictment describes the untranslated contracts, and the English-language statements and evidence do not prevent the defendant from understanding the charges.

Wed, Jan. 18, 2012

No to SOPA, no to ACTA

CK - Washington.
No to
No to
No to Hollywood
Yes to Science & Technology

Sun, Jan. 08, 2012

Traffic Enforcement Cameras in Germany

.   55 years ago, German company Telefunken introduced radar equipment for the enforcement of speed limits. Later, traffic enforcement cameras automated the enforcement. The resulting disputes generated a viable market for German attorneys, specialized as Verkehrsanwalt, traffic lawyers. In the United States, a conceptual controversy erupts annually at the beginning of the year, when state assemblies gather to discuss the use of such technology.

After 55 years, the law is largely settled in Germany. In 2010, the Supreme Constitutional Court in Karlsruhe resolved one of the last major issues: Does the automatic taking of an offender's photograph violate the constitutional right to informational self-determination? In the electronic information society, the Bundesverfassungsgericht had discovered, this right represents a subset of personality rights and human dignity protected in articles I and II of the German constitution.

In the matter 2 BvR 759/10, the court recognized that such images affect that protected interest. The state may balance that concern, however, against a statutority defined, overwhelming public interest in safety. The statute authorizing speed cameras, §100h (1)(1) StPO, is constitutional, the court held on July 5, 2010.

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