TAS - Washington. A new bill extending publishers' copyrights passed the Bundesrat, the upper legislative body in Germany, on March 22, 2013. When it becomes effective, search engines and news aggregators may use coyright protected content only to a small, vagely defined extent.
The essay Leistungsschutzrecht for German Print Media -- An Ancillary Copyright Protection by Felix Gebhard examines the new bill. The author describes its background, developments and future impact on business for the English-speaking reader.
FG - Washington. Arbitration has gained significance within the United States and internationally. This form of alternative dispute resolution without public hearing and jury but before expert panels provides numerous advantages, especially in the field of business law and international law.
As a German law student intern in Washington, D.C., Tobias Schäfer has analyzed in his essay Varianten der Arbitration in den USA the various forms of arbitration in American law. His overview can serve as a useful reference for American lawyers wishing to suggest a German-language briefing to their foreign colleagues.
TAS - Washington. The federal constitutional court in Germany, Bundesverfassungsgericht, in Karlsruhe had to decide whether §257c of the Code of Criminal Procedure regulating plea agreements since 2009, would violate constitutional due process as well as the presumption of innocence and other principles.
In its March 19, 2013 decision, docket number BvR 2628/10, the court blessed §257c. Although the application of the statute by courts lacks constitutional guidance, the law itself is constitutional, because it preserves the constitutional rights to an acceptable extent.
All informal plea bargains which do not strictly follow this provision, however, are unconstitutional. In the three cases examined by the court, it identified violations of plea bargaining procedures, such as the right to a fair trial, and reversed the judgments.
CK - Washington. Facebook's name policy applied to German users is governed by Irish, not German, law, an administrative law court ruled on February 14, 2013. A German privacy agency had ordered Facebook to open its name policy to pseudonyms, see Injunction Against Facebook Name Policy.
Facebook obtained temporary relief after informing the court in the state of Schleswig Holstein that its operations are run by an Irish branch that is subject to, and complies with, Irish privacy law.
By contrast, Facebook's German facility is limited to advertising sales and marketing. The court agreed, in the matter 8 B 60/12, 8 B 61/12 recited in a German-language report by the Juris law database service.
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.
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.
CK - 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.
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.
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.
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.