MFM fee recommendations and the license analogy method

Posted on February 11, 2016 by Miriam Ballhausen

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 →

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

Posted on January 28, 2013 by Miriam Ballhausen

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 →

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

Posted on November 16, 2012 by Dominik Kirschner

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 →

Are WLAN-operators internet access providers?

Posted on November 6, 2012 by Miriam Ballhausen

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 →

69th German Legal Colloquium

Posted on September 24, 2012 by Miriam Ballhausen

During last week’s 69^th German Legal Colloquium the association’s members discussed – amongst other topics – the future of IT-law in Germany (you can find all the decisions here – in German). Their decisions, along with speeding ticket lawyer located in Long Island on how to fight cyber crime (find criminal defense lawyer based in New Jersey area here), data protection and liability are supposed to initiate legal reforms. In some cases, you hope the legislator won’t feel inclined. Continue reading →

Update: Liability for the child’s copyright infringement

Posted on July 30, 2012 by Miriam Ballhausen

Three weeks after the Higher Regional Court of Cologne (Oberlandesgericht, OLG Köln, decision of 06/04/2012 – 6 W 81/12 – we reported) found parents to be obliged to control what their children are doing online, even if the children are of age, the Regional Court of Hamburg (Landgericht Hamburg, LG Hamburg, decision of 06/21/2012 – 308 O 495/11) now held the parent’s obligation to control their grown children to be “unreasonable”. ”. According to the judges in Hamburg, parents can rely on their grown children knowing what they are doing online and knowing if they are infringing copyrights. Therefore, parents can neither be held responsible for not instructing their grown children how to “behave” online, nor for not checking up on what their children are doing online. The obligation to control children of age is found to contradict the “family’s bonds” in cases where there has not been prior reason to believe the child is infringing third party’s copyrights. In addition, a child of age cannot be expected to respect such parental control.

The abroad service of preliminary injunctions according to German law

Posted on July 24, 2012 by Ansgar Koreng

According to German law the service of judgments and other official documents normally is being done by the court. But since there’s no rule without exception, the service of preliminary injunctions has to be done by the applicant himself. Usually, he has to give it to a bailiff who has to bring it to the opponent. As you might imagine, this requirement could be quite hard to meet if the opponent is abroad. This is why the German civil procedure says that in such cases the court itself has to serve the injunction. But how does it work? Continue reading →

Liability for the spouse’s or child’s copyright infringement

Posted on July 17, 2012 by Miriam Ballhausen

Under German civil law copyright infringements through filesharing can basically be pursued in two ways. On the one hand, it is obviously possible to pursue claims against the person who actually makes the copyrighted material accessible via internet. This person may be the actual perpetrator of the copyright infringement or someone who deliberately aids and abets the perpetrator committing the copyright infringement. On the other hand, right holders can also try to catch any person who – without being the actual infringer/ abettor –contributed to someone else’s copyright infringement in any way. The courts have repeatedly found such third parties responsible for copyright infringements (see, for example, Federal Supreme Court aka Bundesgerichtshof aka BGH, decision of 11/03/2004 – 1 ZR 304/01 and decision of 04/19/2007 – I ZR 35/04). Continue reading →

YouTube v. GEMA Decision by Hamburg District Court

Posted on July 3, 2012 by Julian Hoeppner

After having uploaded quite some posts about how liability for third party Internet content works in German law, and having done so in rather abstract terms (in part, admittedly, for shying away from translating dozens of pages of court decisions) here is a good example of how it works in practice. A colleague from Italy has thankfully posted an English translation of the YouTube v. GEMA decision of the Hamburg District Court of April 20, 2012 on his blog. Continue reading →

Liability for Third Party (Internet) Content under German Law

Posted on June 21, 2012 by Ansgar Koreng

One of the core problems of German Internet law today is the question of whether, and, if yes, under which conditions, Internet providers of all kinds can be held liable for content published by their users (or embedded by them). The issue arises for content communities (think YouTube), Internet forums, blogs (thing embedded content and user comments), wikis, social networking sites (you know who), but poses the same questions for “generic” host providers or sharehosters (I hardly dare write the word). Continue reading →

On Liability and Liability Clauses in German Law

Posted on June 12, 2012 by Julian Hoeppner

When you negotiate agreements between German companies and companies with a – broadly speaking – common law background, especially the U.S., one issue that keeps appearing is the parties’ liability for damages. Groundhog day, if you will.

“Liability” is certainly a difficult legal term to being with, especially as you have to first decide what you are actually talking about when using the word. Continue reading →

No liability for third party content embedded via RSS-feed unless made aware of infringement

Posted on June 5, 2012 by Julia Gebert

With judgment dated 27 March 2012 the German Federal Court of Justice (Bundesgerichtshof, BGH) held that the provider of an information portal who puts news online that may easily be detected as third party content – in this case: RSS-feeds – is generally not required to check the articles with regard to potential rights infringements prior to publishing them.

Once the provider of an information portal has been made aware of an infringement of the personality right by the person affected the provider may be held liable to prevent such infringements in the future.

The reasons of the BGH’s decision dated are now available in German. Continue reading →

Let’s draw a legal picture of framing: may a frame provider be held liable for a copyright infringement?

Posted on April 30, 2012 by Julia Gebert

Framing is a convenient tool for journalists and readers alike. Putting a frame around a wide variety of content makes life easier for many jobs, passions and commercial interests. However, does framing provide any legal pitfalls?

Let’s first draw a picture of framing: What’s framing exactly? Other than setting an ordinary link to content of a third party’s website, in the case of framing the content is integrated via a link (“embedded” – e.g. as an iframe – or “inline link”) onto the very website which is called up. Via this link the third party’s content is displayed without any further click and without change of the URL in the browsers address bar in a so called frame of the same screen window whilst being stored on the third party’s server.

And legally? May a frame provider be held liable for a copright infringement? He may, but not necessarily: The Cologne Court of Appeal (Oberlandesgericht) recently held that a frame provider embedding content in the way described above does not commit a copyright infringement. Continue reading →

Search Engine Liability

Posted on April 4, 2012 by Julian Hoeppner

Now that the Google and its fellow search engines are possibly heading for a new form of liability in the UK, what’s life like for search engine providers in Germany? Well, as usual, it’s complicated.

The question of Google’s responsibility for what one may find when searching for a particular set of terms has been dealt with by a variety of court decisions on appeal court level (our “Oberlandesgerichte”) and even once by the German Supreme Court (Bundesgerichtshof). Interestingly, though, the problem that one would think is the most common problem that people have with the search engine phenomenon has not really been dealt with by the courts. We know that Google is generally allowed to display thumbnails of copyrighted images on its image search site. We have been informed that Google is not liable for the “snippets” that appear as a result of one’s search. But we don’t know what Google is required to do (if anything) when being informed of a clear violation of someone’s, say, protected private sphere committed on the internet and spread through tools like Google’s search engine. Continue reading →

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