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2010
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Protected Expression in Closed Online Forum
Aug 19, 2010
CK - Washington.   Without fear of disclosure to third parties, users of closed online mailing lists may express and form their opinion in forum exchanges. A German court decided in favor of a forum member whose critical comments a non-member had published and ridiculed outside of the forum.

The Stuttgart district court found in favor of an expectation of legitime privacy which it balanced against the third-party publisher's freedom of speech. The Telemedicus blog published the decision in the matter 17 O 341/09, of May 6, 2010. The court enjoined the publication on the internet of the protected email to the forum.
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Legalistic Hysteria Greets Street View
Aug 16, 2010
CK - Washington.   Google Street View is a simple tool but in Germany, it provides continued, rich summer entertainment. Negative comments from politicians triggered a timid reaction from Google. It suspended the introduction of the service, beefed up on PR and arranged with politicians, data protection agencies and others technical solutions.

Google promises to respond to objections from property owners, municipalities and residents who prefer to remain unviewed or incognito. It will render faces and car tags unrecognizable, similar to how it used to display the Cheney compound on Massachusetts Avenue on its Google Maps service.

Many German lawyers offer assistance to individuals who fear an invasion of privacy or ridicule from neighbors for having had an unkempt lawn the day Google drove down their street. Others organize community opposition. Somber legal analyses clearing Google of violations of the law like Google Street View: Eingriff in Persönlichkeitsrechte und Datenschutz oder unbedenklicher Service? abound yet fail to calm the hysteria.

The second house of the federal legislature. Bundesrat, seeks to have the government and the principal legislative body, Bundestag, pass an anti-Google statute. The planned amendment would address Street View in the federal data protection statute.
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No Crime: Third-Party Wifi Connection
Aug 15, 2010
CK - Washington.   Does connecting to a stranger's WIFI constitute a crime? Courts in Germany law interpreted the law differently. The most recent decision, in the matter 20 Ds-10 Js 1977/08-282/08, found no crime.

As a matter of societal and legal policy, the decision is sensible. As smartphones, laptops, PDAs and other mobile devices roam, they can link up with routers automatically, and routers automatically offer Wifi connections. The court decided the matter, however, on narrow statutory grounds. The Wifi connection can occur without the intent or knowledge of the device's owner.

A trial court in Wuppertal tested various criminal statutes, ranging from data protection to systems invasion. On August 3, 2010, the court concluded that the device does not seek protected data through the WIFI router. The router's provision of an IP address does not constitute an invasion. The data received by the mobile device, such as the router-assigned IP address, does not fall within the scope of identifiable personal data which the law intends to protect.

As to non-criminal liability, the German Supreme Court in Karlsruhe had recently decided that contributory infringement liability may attach to leaving a Wifi router open to public access. That court may have misunderstood in its May 12, 2010 decision long-standing rules that have granted communications providers immunity for the acts of their users.
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Recognition of US Bankruptcy Procedure
Aug 05, 2010
KB - Washington.   The German Supreme Court in Karlsruhe, Bundesgerichtshof, ruled on October 13, 2009 on the recognition of American insolvency proceedings under Chapter 11 of the United States Bankruptcy Code by German courts, in the matter X ZR 79/06. Recent bankruptcies with international effect such as Chrysler and General Motors underscore the significance of the decision which Jessica Schmidt summarized and discussed in the German American Law Association Newsletter, Bonn, 2010, p.54.

The defendant in the case before the high court is a legal entity and an affiliate of a US corporate group with its registered office in the USA. It owns an American patent which the plaintiff successfully invalidated in a German court. The defendant appealed to the Bundesgerichtshof and then filed for Chapter 11 bankruptcy in the United States. The parties disagreed in the German case whether the appellate proceedings were suspended by that filing or could be ignored in Germany.

The recognition in Germany of foreign bankruptcies is codified in § 343 I 1 InsO, the German Insolvency Act. § 343 I 1 InsO requires that foreign insolvency proceedings pursue the same objectives as the German bankruptcy. The objectives need not be congruent but equivalent. The court found Chapter 11 to be equivalent because it was essentially the role model for the German insolvency plan procedure found in §§ 217 InsO et seq. Although Chapter 11 diverges in some procedural aspects from the German system, the differences do not jeopardize a finding of equivalence.

As a result of their recognition under German law, § 352 I 1 InsO extends the stay of American bankruptcies to German legal disputes which, in turn, impact the estate. The automatic stay of § 362 US Bankruptcy Code is not contrary to this principle. Although the automatic stay applies to all proceedings against the debtor, the court found the instant party's role in the trial court to be determinative. With the debtor being the defendant and not the plaintiff in the case before the high court, the rule of automatic stay should apply. The court found the United States procedural system in which the validity of a patent is judged within a patent infringement lawsuit initiated by the debtor to be irrelevant. This conclusion is based on the obligation of the German court to consider German procedure, not the American counterpart.

The plaintiff argued that it is unreasonable for German legal dispute to be suspended by the filing in the United States, because in this case the first initial judgment is enforceable. The court found the instruments provided by the US bankruptcy law to modify or annul the automatic stay to offer sufficient protection, because they give the plaintiff the opportunity to seek a revocation of the suspension. The application of these rules of American law do not violate German public policy, the court explained. Schmidt agrees with the court and does not criticize the opinion in any way. She found the legal certainty which the German court established with its decision to be essential due to the latest bankruptcies of major American corperations with international operations. The recognition of American insolvency proceedings under Chapter 11 of the United States Bankruptcy Code by German courts is, therefore, of high practical relevance.
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Denic to Delete Dishonest Domain
Jul 08, 2010
CK - Washington.   German .de TLD monopoly registrar must delete domain names that obviously violate the rights in names protected by section 12 of the German Civil Code, a landmark ruling of the Frankfurt Court of Appeals dated June 17, 2010 states.

Denic's obligations in civil encorcement proceedings are hotly contested. In the now-decided dispute known as regierung-oberbayern.de, docket number 16 U 239/09, the state of Bavaria claimed that certain domains incorporating the names of districts and the German equivalent of government or administration violated its rights.

The Frankfurt court determined that a judgment against the owner of the domains can be enforced against Denic. By contrast, and in rejecting a wide-spread assumption, a judgment against the registered administrator of the domain name is insufficient for an enforcement action against Denic, the court explained.

The new decision signifcantly calls Denic itself, in its capacity as the registrar of obviously illegal domains, the violator and proper direct defendant. The Bettinger Schneider Schramm law firm of Munich published the decision, in German, on its website.
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Counter Terrorism: Separation of Powers
Jun 07, 2010
GKM - Washington.   The observer of German counter terrorism policies since the 9/11 terrorist attacks in 2001, has seen fundamental changes in the German security architecture on the one hand, and great scepticism towards these changes on the other.

Frank Gadinger, a 2008 Research Fellow at the American Institute for Contemporary German Studies conducted research on the differences between German and American counter terrorism policies. With Dr. Dorle Hellmuth, Assistant Professor at the School of International Service at American University in Washington, D.C., he analyzed these policies in AICGS's recent Policy Report 41. In the context of their analysis, Gadinger and Hellmuth discussed these policies in a seminar titled Finding Security in an Age of Uncertanity: German and American Counterterrorism Policies on June 4, 2010. Gadinger focused on German polices, and outlined major differences, one of them being the Principle of Separation, Trennungsgrundsatz, a principle the German Supreme Court has developed.

This principle says that there must be a strict organizational and functional separation of law enforcement and intelligence agencies. The separation is considered necessary because of the fine-tuning of authorization and limitations: Law enforcement agencies are authorized to conduct actions that have severe effect on constitutional rights, such as the right to arrest someone or the right to use physical force. These authorizations are not only limited to, but also justified by the existence of an imminent danger for legally protected interests or probable cause that a crime has been committed.

Intelligence agencies are authorized, however, to collect information without the threshold of an imminent danger or probable cause. Therefore, they are not authorized to certain invasive actions. Thus, if these agencies were to cooperate too closely with genereal law enforcement agencies, intelligence agencies could access information that has been gathered in the course of police activities which the intelligence agency itself would not have been authorized to conduct. Misuse of power could be one result; an overly powerful intelligence agency the other.

This principle is unknown not only in the USA, but also in other continental European countries. Gadinger commented on the historical background as explained by the heinous experiences of Germany with a secret police, Gestapo, during the Third Reich. But, this principle has softened, as Gadinger demonstrated, in the course of national and international cross-collabaration of such agencies in the past few years.
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King of the Castle
Jun 01, 2010
GKM - Washington   Today, the headline of the German magazine Spiegel proclaims with an allusion to Schloss Bellevue, Berlin residence of Germanys President, that The Castle is Looking for a Boss. Federal president, Bundespräsident, Horst Köhler set political Germany in a state of shock after resigning yesterday from office and hereby leaving Germany without a head of state. Köhler is not the first president to finish his time in office preterm by resigning, but the first to do so with immediate effect.

The German constitution, Grundgesetz, GG, provides exact procedural rules for this situation: Pursuant to Art. 54 IV GG, new elections have to take place within 30 calendar days. In the meantime, the president of the federal council, Bundesrat, will be the acting president of the federation, Art. 57 GG.

Unlike the President of the United States of America, the Bundespräsident serves only as the head of state, but not as head of government. He is not elected by the people -- neither directly nor through electorals -- but by a constitutional organ, an electoral committee called the Bundesversammlung, Art. 54 I GG, whose sole purpose is the election of the federal president. Half of its members are members of the German Parliament, Bundestag. The 16 state parliaments, Landtage, then dispatch an equal numer of delegates. The number of delegates that each state can send to the election is proportional to its population figure.

The number of the members of parliament may vary from term to term. Currently it consists of 622 members, which means that the electoral committee will comprise no more than 1244 electors.

Pursuant to Art. 54 VI GG, a candidate wins the election with an absolute majority. If an absolute majority is not attained, then a second round of voting follows. If an absolute majority is once again not attained, then the candidate with the most votes -- meaning a simple majority -- wins the election. There will be no third round.

The discussion over possible successors has already erupted and it remains to be seen who will be the new Boss in the Schloss.
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Copyright Liability Without Link
May 24, 2010
CK - Washington.   In Berlin and Hamburg, maintaining a copy of a copyrighted work on your server or internet space, such as a map, for personal use will render you liable for a copyright violation.

That is true regardless of the existence of a link on a website to the copied file. As long as a user can enter an address into a browser to access the copy, there is a violation of the copyright, the appellate court in Berlin held on April 24, 2010 in the matter 24 W 40/10.

The Dr. Bahr Rechts-News Archiv blog lists this and other decisions supporting this court's proposition under German copyright law.
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