Federal Administrative Court asks ECJ: Who is responsible for data processing on Facebook Fanpages?

Posted on April 28, 2016 by Carlo Piltz

With its decision from 25. Februrary 2016, the German Federal Administrative Court referred several interesting data protection questions related to the operation of a Fanpage on Facebook to the European Court of Justice (ECJ) (the whole decision can be accessed here, in German). The case number at the ECJ is C-210/16. Since there does until now not exist an English version of the reference for a preliminary ruling, you will find beneath a rough translation of some of the questions referred.
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“Hyperlink does Not Constitute a Copyright Infringement”

Posted on April 11, 2016 by Miriam Ballhausen

Article 3 (1) of Directive 2001/29/EC on the “harmonisation of certain aspects of copyright and related rights in the information society” legally communicating copyrighted works to the public depends on the copyright holders authorization.

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Will the use of social networks fall outside the scope of future data protection law?

Posted on November 14, 2014 by Carlo Piltz

If private persons use social networking services (e.g. Facebook, Twitter, GooglePlus) in the Internet these days, hardly anyone might think about legal obligations for these users under the current data protection regime. Why should natural, private persons be considered “data controllers” in the sense of Art. 2 (d) of the European data protection directive (95/46/EC), if they share photos or write comments? They are only acting in a private and personal capacity. Well, this view might be true from a factual perspective. But with regard to European data protection law, already in a 2009 opinion (PDF), the Article 29 Working Party (an independent European advisory body on data protection, formed by representatives of European data protection authorities) held that “a high number of contacts could be an indication that the household exception does not apply and therefore that the user would be considered a data controller”. Conclusion: if you share a photo, name etc. with many people on Facebook, you might be a data controller in the eyes of data protection authorities and would therefore have to proof the lawfulness of the respective data processing operation. Continue reading →

(More) certainty ahead: liability of commercial operators of open WLAN networks

Posted on October 10, 2014 by Lina Boecker

Commercial WLAN operators will soon be certain about when and in how far they are liable for violations of third party rights by their users. The District Court in Munich (7 O 14719/12) has stayed the proceedings in a pending litigation and has submitted questions to the European Court of Justice (ECJ).

Inter alia, the court asks the liability privilege regulated in the European e-commerce directive and the German Teleservices Act (“Telemediengesetz” – TMG) is to be interpreted in a way that claims for injunctive relief, damage claims, and claims for the reimbursement of costs for warnings and court proceedings are excluded against the WLAN-operator in general or at least with regard to the first violation of third party rights. According to the respective provisions in the directive and the TMG; access providers are not responsible for the information submitted through their services.

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

Posted on August 17, 2012 by Tim Engelhardt

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/

The ECJ surprises in Oracle v. UsedSoft

Posted on July 4, 2012 by Tim Engelhardt

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 →

Can APIs Be Copyrighted?

Posted on May 10, 2012 by Tim Engelhardt

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 →

Direct Effect of the “Cookie Directive” in Germany?

Posted on May 8, 2012 by Julian Hoeppner

It has been reported that today Mr. Peter Schaar, head of the Federal Commissioner for Data Protection and Freedom of Information, announced at the Data Protection Congress 2012 that is currently held in Berlin that the EU “Cookie Directive” – which has not yet been implemented into German law – has EU law’s “direct effect” (also known as “immediate applicability”), making Art 5 (3) of the Directive directly applicable and effective under German law. He (as reported) added that therefore Art. 5 (3) of the Directive can be applied and enforced by the German data protection authorities in their day to day business. Ooops! Continue reading →

SAS v WPL: No Copyright Protection for Programming Languages

Posted on May 3, 2012 by Julia Gebert

Hooray: On 2 May the ECJ ruled that “neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program and, as such, are not protected by copyright in computer programs.” Continue reading →

ECJ Advocate General on Used Software and Used Licenses

Posted on April 27, 2012 by Tim Engelhardt

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 →

German IT Law

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