Protection for protection rights: The Federal Court of Justice on safeguard measures for video games

The German Federal Court of Justice (“BGH”, Videospielkonsolen II) has stated that technical safeguard measures for video games fall under the scope of section 95a (3) nr. 3 of the German Copyright Act (“UrhG”), if such measures (in the case decided: Nintendo DS cards for Nintendo DS games consoles) are specifically designed to prevent illegal copies of the games which are played on the consoles.
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Creative Commons and “non-commercial” use of works on websites

In a very recent ruling of 31 October 2014, the Higher Regional Court of Cologne (“OLG”) has further defined the scope of “commercial use” within the meaning of the Creative Commons Licenses de.creativecommons.org. According to the OLG (Az. 6 U 60/14), the use of a picture licensed under the CC-BY-NC 2.0-License to illustrate an article on a radio station’s website is “non-commercial” use within the meaning of the CC-License, even if users pay for the website by paying radio license fees. The OLG further discusses the question, when cutting a picture into shape can be considered as “adaptation” within the meaning of the license.
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Do XING profiles require a masthead?

This past summer, a decision of the Stuttgart Regional Court became known by the name #XINGGATE. In its decision (LG Stuttgart, decision of June 27, 2014 – file number: 11 O 51/14), the court held XING profiles to be independent telemedia, to which § 5 Telemediengesetz, the German Law on Telemedia (TMG) applies, meaning that personal XING profiles have be equipped with a masthead under German law.

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… Until Authorship is Proven

Under German copyright law, injunctive reliefs are subject to the condition of danger of repetition. Such danger is assumed once a copyright infringement occurred, but it is eliminated, if the infringer signs a declaration of discontinuance with a penalty clause (in German “strafbewehrte Unterlassungerklärung”) within the set deadline. The Higher Regional Court of Hamburg (OLG Hamburg, decision of October 16, 2014 – file number: 5 U 39/13) now held that such declaration of discontinuance is insufficient, if it includes a so-called potestative clause, i.e. the declaration is subject to the claimant proving his authorship.

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Copyright Law: The Author’s Right to be Named

According to the district court of Kassel’s decision of June 6th, 2014 (file number: 410 C 3000/13) authors of copyrighted works can exercise their right to decide if and how they want to be named as author of their works through terms and conditions. Continue reading

European data protection law and minors – no legal certainty

The fundamental right to the protection of personal data as enshrined in Art. 8 (1) of the Charter of Fundamental Rights of the European Union (PDF) as well as the right to informational self-determination, derived from Art. 2 (1) and 1(1) of the German Constitution are not exclusive right of adults. Also children’s personal data are protected by these fundamental rights and consequently by the European Data Protection Directive (Directive 95/46/EC) or the respective national laws.

But if it comes to the practical compliance for companies, for example if you want to develop an app for children, European data protection laws currently will leave providers alone with an answer to the question, when a consent by minors might serve as the legal basis for the processing of their data. Continue reading

Court Decision: Companies Allowed to run Fanpages on Facebook

The Administrative Court of Schleswig (Verwaltungsgericht Schleswig) held today in three parallel decisions that companies that run their own fanpages on Facebook are not responsible for the social network’s data collection and processing under German data protection law. Continue reading

Federal Supreme Court: Can a foreign company use a .de-domain?

In the case laid before the Federal Supreme Court (Bundesgerichtshof; BGH) the court primarily had to decide about the liability of the administrative contact of the domain dlg.de. However, in the obiter dictum, the court also held under which circumstances a foreign company is entitled to use a .de-domain. Continue reading

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

7th National IT-Summit in Essen

Last week, several German political leaders, members of the federal administration, academics, IT-businessmen and other members of the German society met in Essen for the 7th National IT-Summit. The summit is an invite-only conference being held once a year by the German Federal Ministry of Economics and Technology. It forms the end and new beginning of an ongoing discussion between the members of the six working groups and several sub-working groups to develop a nation-wide (political) IT-strategy for Germany. Continue reading

On the Intricacies of German Unfair Competition Law

It‘s easy to be a unfair competition law violator in Germany. Just operate an eBay shop or deal on Amazon’s market place and use their default settings when informing your customers on how long it will take to get the goods delivered to their homes. In all seriousness, that is what the Bremen Court of Appeals has effectively decided in a judgment in early October. Continue reading

Monetary Penalties for Data Protection Breaches: ICO vs. German DP Authorities

I have just stumbled upon the Information Commissioner’s Office’s  page that informs the British public on the monetary penalties that the ICO has handed down over the last 1 ½ odd years: 26 penalties of about £ 120,000 on average. Not that that kills any of the public authorities and private companies involved (and nor should it). But it shows that where the ICO believes that a breach is serious enough to warrant a monetary penalty the penalties are not only symbolic but designed to at least sting a bit. Continue reading

“Google Has Few Concerns About the Right to be Forgotten!”

Until last year, the right to be forgotten used to be an idea of Viktor Mayer-Schönberger, an Austrian law professor. He suggested – and probably still suggests – providing a “best before date” for data that is electronically saved. After the expiration of the date, the data would be automatically deleted by the application or computer system. Last year, the idea – or a modification thereof – became part of a draft regulation of the European Commission. Continue reading

Forfeiting a Contractual Penalty by Continuously Storing a Photograph

On September 12th, 2012 the Higher Regional Court of Karlsruhe – 6 U 58/11 – decided on the question, which actions a debtor has to restrain from after he signed a declaration to cease and desist “using a photograph on the internet”. 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.

Copyright Protection for Websites Using Typo3

Every now and then the question arises in court if websites are protected under copyright law. Website technology is progressing and so time and again new aspects have to be considered by the courts. Recently, the Higher Regional Court of Hamburg ruled on a case of alleged plagiarism of a website that was based on the Open Source Content Management System “Typo 3” (OLG Hamburg, decision of February 29, 2012, ref. 5 U 10/10). Continue reading

Update: Cabinet passed Third Proposal for a New Neighboring Right for Press Publishers

In our blog, we have been keeping track of the new neighboring right for press publishers. After staggering in round one and in round two, the amended proposal now knocked out its critics in round three. Did it really? Continue reading

General Data Protection Regulation: Council of the EU’s Amendments to the Commission’s Draft

Last weekend, an amended draft of the Regulation of the European Parliament and the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) was published by the British organization statewatch. The proposed changes regard Articles 1-10, 80 (a), 83 and several recitals. While some of them simply clarify the first draft, others – as for example the definition of the term “personal data” in Article 4 Subsection 1 – will have great effects on data protection in Germany. Continue reading