Is double opt-in dead?

Last week, quite a few lawyers were more than surprised when they heard about a recent Higher Regional Court of Munich decision dealing with the question of how to get prior consent from recipients of advertising e-mails (decision of September 27, 2012, docket no. 29 U 1682/12). Before, the matter had seemed to be fairly settled but now new questions arise. Continue reading

How to Sue and Prove that You Have no Basis for Your Claim, or: The Curious Effects of Patent Exhaustion

My colleague Till Jaeger drew my attention to a recent decision of the German Federal Court of Justice (X ZR 33/10) that demonstrates in a rather curious way the effects of patent exhaustion.

In the case at issue the plaintiff was the holder of a process patent for the coding, transfer and decoding of video signals used when producing and playing of DVDs under the MPEG 2 standard. The defendant, a Greek DVD producer had no business relationship with the plaintiff, in particular no license agreement with the plaintiff was in effect. However, the plaintiff suspected that the defendant made use of its patent and decided to test the defendant’s abidance by the law. Continue reading

Today Parliament Hearing on Interoperability, Standards and Open Source

As we reported in July, the German parliament has recently set up a project group on “Interoperability, Standards, Open Source” as part of its Commission of Enquiry (“Enquete-Kommission”) on “Internet and Digital Society”.

Today, the first expert talks are taking place – and our colleague Till Jaeger has the honor of being invited to comment on legal problems of Free and Open Source Software. More information on the hearing can be found here (unfortunately only in German). Till’s preparatory written statement is available here (again only in German). And if you are interested to follow the discussion live, you can find a live stream here.

New court ruling on GEMA and Creative Commons licensing

Yesterday I came across a ruling by the Local Court (Amtsgericht) of Frankfurt/Main on the conflict between GEMA (which stands for: Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte, in English: Society for musical performing and mechanical reproduction rights) and Creative Commons licensing. I think it is a good opportunity to briefly explain a tricky little, but important feature of the German system of the collective management of copyrights: the GEMA-Vermutung (GEMA presumption). Continue reading

My day at FrOSCon: Interesting stuff from DTAG and my talk on “GPLv2 and embedded systems”

A couple of months ago, the organizers of the FrOSCon, one of Germany’s big Open Source developer conferences, asked me if I could present a talk at this year’s edition of the conference. I gladly accepted, and so I spent last Saturday in (West) Germany’s former capital Bonn. I had a tremendous day, even though I could attend just a few of the almost a hundred talks, workshops and seminars. Continue reading

E-Commerce Law Reports with our article on Oracle v. UsedSoft

As a blogger you are always happy to receive feedback from your readers. So I was really pleased when shortly after posting my recent comments about the CJEU’s UsedSoft decision, the E-Commerce Law Reports approached me to ask whether I could write a more detailed article about the case for their August 2012 issue. Recently published, this issue also contains a number of other fascinating contributions by colleagues from around the world on a variety of important topics such as the online collection of consumer data, search engines’ liability for misleading search results, the cloning of games, advertising on Twitter, etc. Check it out: http://www.e-comlaw.com/e-commerce-law-reports/

New leading cases on the destiny of sub-licenses when the main license is terminated

Are sub-licenses affected when the main license they are derived from ceases to exist? Last week, the German Federal Court of Justice (Bundesgerichtshof, BGH) issued two decisions dealing with this question and answered with an unequivocal “No”. No written opinion has been published yet (this usually takes a while) so that we have only the official German press release to rely on. But this press release reveals already a few pretty interesting and important things. Continue reading

German Federal Supreme Court on file hoster responsibility for third party content – “Rapidshare”

The German Federal Supreme Court (BGH) delivered yesterday a decision on file hosters‘ duties regarding copyright infringements committed by their users (more on the general topic of the responsibility for third party content here and here). The written opinion is not published yet, but here is a short summary of the German press release. Continue reading

The ECJ surprises in Oracle v. UsedSoft

Yesterday, the European Court of Justice handed down its ruling in Oracle v. UsedSoft. The court followed largely the Advocate General’s trail (we reported), but at some – crucial – point, it took a different, rather surprising direction which will have considerable impact on the marketing of software (and maybe other copyright-protected works, too). Continue reading

Who May Photograph Your Cow?

Imagine, you own a cow. Someone comes to your farm, takes a photo of your cow, leaves, and a few weeks later you find this photo on some commercial website. Can you do anything against it? Do you have an exclusive right to make and distribute photos of your cow? The Local Court of Cologne decided on this situation two years ago and said: No, taking photographs of someone’s cow does not infringe on any exclusive rights of the cow’s owner, and a photographer may publish photos taken of this cow.

I mention this because a three-week old decision by the District Court of Berlin (Landgericht Berlin) I just read reminded me of this curious case. However, it seems that (absurdly) the Berlin court would have ruled in favor of the cow’s owner. Let’s take a look: Continue reading

License Termination: Thoughts on Scorpio v. Willis and a Pirates Proposal

Recently, the news broke that Village People songwriter Victor Willis (for those who don’t know who he is just one word: YMCA!) had won an important case (see here and here) on the issue of US copyright termination rights (sec. 203 of the Copyright Act). I’ve wanted to write about this topic ever since, but well, there was so much going on in the IP/IT world lately, and, whoops, four weeks have passed like nothing. Anyway, I just came across a proposal of the German Pirates involving the introduction of a license termination mechanism similar to the US approach and thought I’d just shoot out a few observations and thoughts. Continue reading

ifrOSS Suggests Legislation on OSS Licenses and Bankruptcy

A few days ago, our colleagues at the ifrOSS (Institute for Legal Questions on Free and Open Source Software) published a proposal for an amendment to the German Insolvency Act that would better protect the open source licensing model in case the licensor goes bankrupt. Continue reading

Düsseldorf Court on the Use of Trade Marks for Open Source Software

For a while now, lawyers have been struggling with the relationship between (trade mark) protection of software names and Open Source licensing. Last month, the Higher Regional Court of Düsseldorf (Oberlandesgericht Düsseldorf) handed down an important decision that may shed some light on the intriguing issues linked to trademarking Open Source software. We publish this decision (the German original and an English translation) and explain what it is about. Continue reading

Mark Twain, Lord Macauly and the Duration of Copyright

Mike Masnick from Techdirt put out a nice little piece on Mark Twain’s stance on copyright protection and its duration. It seems that the celebrated writer embodied – 100 years ago – both extreme positions that still shape our current discussions on copyright. Quite a fascinating read. And a funny one as well. Just try to imagine how Mr. Samuel L. Clemens appeared before a congressional committee and said the following two sentences: Continue reading

Can APIs Be Copyrighted?

There is a lot of noise (for example, here, here, here, here, and here) out there about this week’s verdict in Oracle v. Google, especially about the following question: Are interfaces protected by copyright? I stumbled across quite a few places (see here, here, and here) where experts pointed to the ECJ’s SAS Institute v. World Programming ruling while discussing this question. According to them, the ECJ clearly stated last week that interfaces enjoy no copyright protection. Is this really what the ECJ said? Continue reading

Schleswig-Holstein Issues First Online Gambling Licenses

We got news on Friday that Schleswig-Holstein (one of sixteen states of Germany) had just issued its first three online gambling licenses (for sports betting). Forty other applications, partly for online sports betting, but also for online poker and casino games, are said to be in the pipeline. So far so good and not overly interesting, but look into the details and the matter becomes more intriguing. Continue reading

More on exhaustion

Just after finishing our recent post on the exhaustion doctrine (ECJ “Usedsoft”), I came across two other news reports touching upon the same issues. The first concerned an ongoing dispute between Microsoft and a German used license trading company . The second pointed to an (unintentionally comical) decision of the Higher Regional Court of Stuttgart (Oberlandesgericht Stuttgart). Continue reading

ECJ Advocate General on Used Software and Used Licenses

Is it legal to sell so-called “used software” when this software has been obtained via download? And what about “used licenses”? These questions have been a hot topic for quite some time now for IT businesses and lawyers – and finally they have been brought to the attention of the European Court of Justice. This week, the Advocate General of the European Court of Justice (ECJ), Mr. Yves Bot, published an opinion dealing with some of the intricate problems of the exhaustion (or “first sale”) doctrine. Continue reading