Fri, Oct. 26, 2018
Recently Translated German Law Source Documents
CK - Washington. The German Law Archive--unaffiliated with the German American Law Journal--circulated an update of its archive on October 25, 2018, listing the following new entries from the Federal Constitutional Court in Karlsruhe:
The archive also added an appendix to the previously published translation of the Road Traffic Regulations. The archive offers a subscription service.
CK - Washington. The German Law Archive--unaffiliated with the German American Law Journal--circulated an update of its archive on October 25, 2018, listing the following new entries from the Federal Constitutional Court in Karlsruhe:
BVerfG 17 January 2017: 2 BvB 1/13, on the application of prohibition of the National Democratic Party.
BVerfG 10 October 2017: 1 BvR 2019/16, on gender identity.
The archive also added an appendix to the previously published translation of the Road Traffic Regulations. The archive offers a subscription service.
PermalinkWed, Aug. 08, 2018
Republishing an Internet Photo Without License
CK - Washington. Under German law, a photographer authorized a travel website to publish one of his photos. A student copied the photo and integrated it into a school paper. The school published the paper with the photo on the internet. The photographer sued the state for damages under copyright law. On August 7, 2018, the European Court of Justice in Luxembourg as the final appeal decided the matter under German law and the E.U. copyright harmonization regulations.
The court found in favor of the plaintiff after the German Federal Supreme Court for Civil Matters in Karlsruhe had referred the matter to it. The fact that the travel website does not restrict visitors will not reduce the right of the copyright owner to control which permissions to attach to his copyrighted work. The republication by the state-run school is unauthorized because every website addresses a new audience. A copyright owner may have a particular audience in mind when granting a license; publication to another audience requires a new license -- at the owner's discretion.
The court distinguished the republication from linking to the original publication. It states that linking is an essential feature of the the world wide web. Linking is a feature that supports the essential purpose in harmony with copyright law, while copying and republishing frustrates that harmony, see (a) Press Release Land Nordrhein-Westfalen / Dirk Renckhoff (b) Application and Decision ECLI:EU:C:2018:634.
CK - Washington. Under German law, a photographer authorized a travel website to publish one of his photos. A student copied the photo and integrated it into a school paper. The school published the paper with the photo on the internet. The photographer sued the state for damages under copyright law. On August 7, 2018, the European Court of Justice in Luxembourg as the final appeal decided the matter under German law and the E.U. copyright harmonization regulations.
The court found in favor of the plaintiff after the German Federal Supreme Court for Civil Matters in Karlsruhe had referred the matter to it. The fact that the travel website does not restrict visitors will not reduce the right of the copyright owner to control which permissions to attach to his copyrighted work. The republication by the state-run school is unauthorized because every website addresses a new audience. A copyright owner may have a particular audience in mind when granting a license; publication to another audience requires a new license -- at the owner's discretion.
The court distinguished the republication from linking to the original publication. It states that linking is an essential feature of the the world wide web. Linking is a feature that supports the essential purpose in harmony with copyright law, while copying and republishing frustrates that harmony, see (a) Press Release Land Nordrhein-Westfalen / Dirk Renckhoff (b) Application and Decision ECLI:EU:C:2018:634.
Sun, Mar. 04, 2018
Invoicing Germany: AirMail or EMail?
CK - Washington. Bills used to be mailed, and airmail would take four days. With the onset of scannable invoices and the increasing acceptability of electronic mail, email became the more efficient mode of transmission. However, some recipients believe scans to be incompatible with tax and accounting requirements and insist on a mailed original invoice. A German court recently held an original unnecessary: An emailed scan is acceptable under the tax rules it usefully cites.
A customer had claimed a right of retention based on the alleged insufficiency of an emailed scan of an invoice, arguing that only the original could render the invoice due and payable. The Aachen District Court disagreed and on January 9, 2018 issued its decision under docket number 41 O 44/17, available in German from the North-Rhine-Westfalia justice portal. The court lists the applicable tax regulations as well as court decisions including a 2017 ruling by the Supreme Court for Tax Matters.
CK - Washington. Bills used to be mailed, and airmail would take four days. With the onset of scannable invoices and the increasing acceptability of electronic mail, email became the more efficient mode of transmission. However, some recipients believe scans to be incompatible with tax and accounting requirements and insist on a mailed original invoice. A German court recently held an original unnecessary: An emailed scan is acceptable under the tax rules it usefully cites.
A customer had claimed a right of retention based on the alleged insufficiency of an emailed scan of an invoice, arguing that only the original could render the invoice due and payable. The Aachen District Court disagreed and on January 9, 2018 issued its decision under docket number 41 O 44/17, available in German from the North-Rhine-Westfalia justice portal. The court lists the applicable tax regulations as well as court decisions including a 2017 ruling by the Supreme Court for Tax Matters.
Sat, Feb. 24, 2018
Recognition of Judgment with Statutory DMCA Damages
CK - Washington. Statutory damages under the Digital Millennium Copyright Act can have a punitive effect, resulting in a denial of recognition in a foreign court where the legal system finds punitive elements incompatible and grossly violative of civil action principles, a German court decided in response to a petition to freeze assets of a German company in favor of a U.S. company that had obtained a default judgment for some $8 million in California under the DMCA.
The Leipzig district court explained on February 19, 2018 in docket number 05 O 3052/17 -- presumably, per defendant's counsel, Marian Härtel, Blizzard Entertainment Inc. v. Bossland GmbH -- that a recognition matter does not allow the German court to replace its judgment with that of the foreign court. It would need to respect the international principles on recognition which include public order/ordre public considerations. In this case, the default judgment lacked any explanation of the assessment of statutory damages; the plaintiff had opted under the DMCA to forego actual damages; the number of alleged violations was a mere estimate; and the total of aggregated damages reached an extreme with punitive character.
The court considered American analyses of compensatory damages law as well as of punitive, exemplary and statutory damages law, concluding that statutory DMCA damages can, and in this case do, contain a degree of punitiveness which bars recognition as an incompatible form of damages. Noting that the U.S. default judgment stated that the damages awarded were not punitive, the court analyzed that statement with a result distinguishing the elements of a punitive nature in Germany from that in the United States.
CK - Washington. Statutory damages under the Digital Millennium Copyright Act can have a punitive effect, resulting in a denial of recognition in a foreign court where the legal system finds punitive elements incompatible and grossly violative of civil action principles, a German court decided in response to a petition to freeze assets of a German company in favor of a U.S. company that had obtained a default judgment for some $8 million in California under the DMCA.
The Leipzig district court explained on February 19, 2018 in docket number 05 O 3052/17 -- presumably, per defendant's counsel, Marian Härtel, Blizzard Entertainment Inc. v. Bossland GmbH -- that a recognition matter does not allow the German court to replace its judgment with that of the foreign court. It would need to respect the international principles on recognition which include public order/ordre public considerations. In this case, the default judgment lacked any explanation of the assessment of statutory damages; the plaintiff had opted under the DMCA to forego actual damages; the number of alleged violations was a mere estimate; and the total of aggregated damages reached an extreme with punitive character.
The court considered American analyses of compensatory damages law as well as of punitive, exemplary and statutory damages law, concluding that statutory DMCA damages can, and in this case do, contain a degree of punitiveness which bars recognition as an incompatible form of damages. Noting that the U.S. default judgment stated that the damages awarded were not punitive, the court analyzed that statement with a result distinguishing the elements of a punitive nature in Germany from that in the United States.
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