“Hyperlink does Not Constitute a Copyright Infringement”

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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Open Source Software, License Compliance and the OpenChain Working Group

So you set up an open source license compliance program in your company. You educate your employees and you make sure you know how they handle open source software. But what about the software, which is supplied to you? Do you know how your supplier handles open source software? Can you trust that they know what they are doing when it comes to open source license compliance? Continue reading

MFM fee recommendations and the license analogy method

Rightholders are entitled to damages when their photographs are used by third parties who have not been granted the necessary rights of use. Under German copyright law, damages are calculated according to the so-called license analogy method. This method assumes a fictitious license agreement upon reasonable conditions between the rightholder and the infringer. The rightholder then receives monetary compensation amounting to the royalties the parties would have reasonably agreed on. Continue reading

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

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

… 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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The Title of an App Can Be Protected as a Work Title under German Trademark Law – If it Is Not Merely Descriptive

The Higher Regional Court of Cologne (OLG Köln) held in its decision (court ref. 6 U 205/13) dated September 5, 2014 that the title of a mobile app can enjoy protection against similar titles for similar services. However, the claimant who is the operator of a German weather information website that runs under the domain <wetter.de> and an app with identical content also titled <wetter.de> cannot prohibit the use of the title <wetter DE> or <wetter-de> for a similar weather app by the defendant. Continue reading

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

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

Leading Decision on Parents’ Liability for Copyright Violation by File Sharing Children

The German Federal Court of Justice yesterday November 15, 2012 decided on how far parents can be held liable for their children’s illegal use of file sharing via peer-to-peer services and copyright violations resulting from that use. 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

Are WLAN-operators internet access providers?

According to German jurisdiction, WLAN-operators can be held liable for online-infringements on third parties’ rights committed via their connection to the internet. That is, unless the operator duly fulfills his obligation to make sure such infringements cannot and will not be committed via his connection. This also applies to WLANs operated in cafés, bars, hotels and similar places. In all these places, the WLAN operator basically has to check what his customers do online and to oblige them to act according to law. 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

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.

Disguised Advertising in the Wikipedia

Once information is entered into the Internet’s most popular encyclopedia Wikipedia it gains an immense potential of distribution. The high number of users and the easy accessibility in combination with the impression of neutrality an encyclopedia communicates make it highly desirable for companies to be positively depicted in articles about the company itself or its products.

The Higher Regional Court of Munich decided on May 10th, 2012 that positive display of a company’s products in a Wikipedia article that was amended by the director of the company constitutes disguised advertising and thus unfair competition as defined by Section 4 No. 3 UWG (the German Law Against the Unfair Competition). 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