61 posts • joined 3 Jul 2012
Re: WTF are all these comments about
> I'm a supporter of trade unions but I don't believe in these collective pay agreements. They are just
> backwards and de-motivating.
They worked rather well for Germany actually. As an employer, you only had one organization to deal with. Your workers had considerable input into what the union did and so you did not have the result that the union annihilated jobs with unreasonable demands (the public service union was an exception to this of course). You were always free to pay more, specifically to encourage good results.
Nowadays however, the unions in Germany are far too political for their own good and they are perceived as political organizations. Union membership dropped, so did the bargaining power of the unions and they are now a lot more unreasonable. Ms. Nutzenberger spouts nonsense in so far as she claims that there is a legal right to a collective pay arrangement under German law. There is a legal right for the union to go on strike and there is a legal right for the union to offer a collective pay scheme. But Amazon does neither have to take the offer nor to refrain from using non-unionized labour to continue its operations.
Re: Pedants beware!
> That Panzerregenmantel is mine, thanks.
Tents are outside. Please excuse the inconvenience.
Re: Slater doesn't "Own" the photo, because he doesn't and the monkey doesn't
We violently agree. The question is whether Mr. Slater created the photograph and the animal's legal status plays no part in the answer.
From the BBC article (thank you for the link), apparently it was not only an ommission to chase the simian away but he set in motion the develoment that led to the photo, thus he acted with intent. My feeling is it is going to be hard to argue that Mr. Slater did not create the photo in this context.
Re: Slater doesn't "Own" the photo, because he doesn't and the monkey doesn't
> No, I believe that the argument is that Slater never had any rights to the image in the first place, because he was not the creator of the work.
Exactly. The EC copyright directive (2001/29/EG) does not define who the creator is. But in paragraphs 9 and 10 of the preamble, it says the the protection is granted in order to allow authors or performers to continue their creative and artistic work (not quoted verbatim). I read this to be a requirement that the creation is the result of a wilful and intentional act (or ommission) to create a result.
Now from the telegraph article, I understand that while the animal pressed the button, Mr. Slater did not chase it away and left it to proceed for quite some time. To me, this seems to be an intentional ommission that led to a result (the photo). From my point of view, this satifies the requirement but this is strictly a personal opinion and it is debatable where to set the threshold.
"When Google receives a request to de-link, it must consider whether any damage to the person making the request is outweighed by a relevant public interest in keeping the link. In the case of [Merrill Lynch chairman] Sean O'Neal [original here], it's a no-brainer, there's a clear public interest in that information remaining available."
That's an interesting idea but I am unsure it holds up: Google *must* wheigh the individual's rights against the public interest if Google wants to *keep* the link.
The same does not necessarily apply if Google does not want to keep the link. At the moment, it is difficult to imagine where a legal requirement for Google to keep up a link would come from. It cannot be privacy legislation as the personal data processed (and now removed) is the data of the complaining subject, thus the removal happened with the data subject's consent. The publisher can not claim illegal removal of privacy relevant data as the data does not refer to him as a data subject.
So the only legal requirement for Google to keep up a link that comes to my mind is competition law. There, requiring a company to do something is far more constrained than stopping a company from certain actions. Google might have a defence that while Google factually affects the business whose content is no longer accessible, it would otherwise have to screen the content and thus incurr costs for the benefit of this business. I wonder whether Google's "falling over" could really be seen as "illegal".
It is of course an own goal regarding their political lobbying.
Interesting choice of fights
It is interesting that the copyright people still want to fight the legal basis of exhaustion. Exhaustion is not a legal issue but an economic one: nothing prevents the copyright holder from offering his works for rent only. It is just not accepted in the market and the consideration is/would be lower than for a purchase transaction. Fighting exhaustion also has the added economic disadvantage that you have to fight your customers that paid you.
On the other hand, very little is done with regard to "content aggregation", i.e. businesses that chose not to purchase a license from you but that exploit the copyright exceptions. Oh well.
Yes it is: Section 1, subsection 1, third sentence of the German law regarding the national identity card and section 18, subsection 3 of the German law regarding passports. Just because it happens does not mean it is legal: http://www.datenschutzbeauftragter-info.de/nicht-bemerkt-personalausweis-kopieren-verboten/
Re: Reminds me of Ian Banks
@Russell Hancock: No, this is not the basis for continental jurisdictions. According to the preamble of the French constitution for the 5th republic, the Declaration of the Rights of Man and of the Citizen of 1789 is part of the constitution. Art. 4 of the declaration codifies the right of Freedom of Action.
The Germans have it in Art 2, subsection 1 of the Grundgesetz (their constitutional law).
In general, starting with the French revolution, the right of Freedom of Action was seen as a universal human right and adopted in the continental codified laws bit by bit.
Re: @ Radbruch1929
@Tom 13: Thank you, very good point. I did not think this through.
One idea (not fully thought through again) might be to include an interim phase in the process that has to happen quite early in any proceedings. In this phase, it would be determined whether there is a case to answer for the defendant and if there is, the deposit mechanism applies. Otherwise, the deposit is not needed.
The idea does not really solve the issue though as it only serves to mitigate the risk of abuse of the deposit pool by the plaintiff (he may lose the case later) and the risk of the defendant to do a hit and run (he might run just before the "case to answer" verdict).
Re: So let me get this straight
> It should be possible to use an international standard without having to pay a license fee
> determined at the whim of a third-party.
It is not at the "whim". The outsider of the standardization may even sue for lower rates if the rates determined are not "fair and reasonable". As someone above already pointed out, the irony is that you are allowed to enforce a design right regarding the shape of a phone (mistakenly called a "patent") with a cease and desist. But you are not allowed to enforce a "hard" technical patent that happens to be standard essential even though you offered to license and were refused.
There were different approaches to the problem, I liked the one best where the infringer had to submit an offer for a license agreement and to deposit the license fees with a court in order to evade the cease and desist. In case of non-infringement, the money was returned. If there was and infringement and the license proposal was fair and reasonable, the infringer was licensed. Otherwise, the infringer ran the risk of a cease and desist and damages.
Re: I always thought that FRAND .....
@Tom13: As far as I can see, this happens when a patent pool is set up. The FRAND problem you describe occurs in standardization processes in which the required commitment ends with "will license according to fair and reasonable terms" but the criteria are never established. So I agree, but it is not the patent pools in this scenario that generate these problems (there are other questions) but it is the approach to standardization, typically handeled by the the likes of ITU, ETSI etc.
The commission will likely to have to think this through again. The commission limits the owners of patents used in standards to sue for license fees instead of suing for a cease and desist and damages. This may be fine if the infringer is still around to pay these license fees but I assume we are going to see "hit and run" infringements of standard essential patents. Basically, this gives the patent holder nothing for his patent and his participation in the standard, so the patent holders are being actively discouraged to participate in standardization.
And thus the consumer pays the bill.
Re: There is no such thing as 'EU Law'
> There is no such thing as 'EU Law'.
Oh but there is, it is a "regulation". Copyright is just one of those areas that the EU can not regulate directly but where it has to issue a "directive" the member states are not supposed to run afoul of.
> EU copyright law distinguishes between a right to make copies, covered in Article 5(2), and "communication to the public", aka the "making available" right covered in Article 5(3). [...]
Thank you for this idea. I wonder however whether the act of removing the rights management and the production of the copy falls under Article 5(2) of the directive. As the right to make copies in Article 2 is a universally reserved right under the directive, the origin of the original copy (whether it was a copy (-> Articles 2, 5(2)) or a download (-> Articles 3, 5(3)) might not matter.
Then Article 6(4) of the Directive has a provision for private copies (subsection 2). But regardless of whether an exemption might be possible at all, such an exemption would always require a fair compensation for the rights holder anyway (Article 5(2)(b)).
> For example, you can create a parody of a Dan Brown book by scribbling on every other page. Artistically, that's a perfectly valid "parody", and there's nothing Dan Brown or his publisher could do to stop it.
I wonder whether this example is going to meet the test criteria of a parody under the directive. The ECJ has yet to decide "Deckmyn en Vrijheidsfonds", which specifically asks whether a parody has to be original in its own right. Some continental jurisdictions (apparently Germany, Belgium) seem to apply this test.
Re: Merkel plays the Yank bashing card again!
Well let's examine this a bit:
"The woman has no clue on tech, as already demonstrated with her daft insistence on mothballing all the German nuke power stations, just as long as she can score some political points."
A PhD in physics with a thesis regarding nuclear decay (including some quantum mechanics).
"Even if she did manage to create some form of European Great Firewall, it's pointless unless she wants to rip out all the existing telecoms kit across Europe which the NSA and GCHQ have already (allegedly) p0wned."
Germany plans to upgrade its networks, see e.g. here: http://www.telekom.de/netz-der-zukunft and here: http://www.initiatived21.de/portfolio/deutsche-breitbandinitiative/
The networks are not deemed efficient enough for new types of services.
"And what about US companies in Europe that open VPN tunnels back to the US and therefore provide plenty of access pipes for the NSA to stroll in through?"
The idea was not to have a completely separated network. The idea was to have the traffic and the data under European jurisdiction so as to require the service providers to secure them properly against "strolling in".
"Oh, and for all those bleating on about excluding the UK from the EWW (AKA, das Internet fur die Volk) I think you'll find that might run into a few EU hurdles. And as for excluding Brits from working on it, apart from the breach of EU employment law, it would hardly be necessary given the massive levels of corruption endemic in Europe."
Where is this "bleating" going on? At least not in the podcast referred to. Or are you referring to the UK referendum? The general consensus on this in the German press has been that it is preferred that the UK stays ...
"Are there more elections due in Germany?"
No, just the elections for the European parliament. And the German public has been rather less sensitive to the issue. The pirate party tried to bring it up in the general election and did not get much traction because most assumed that data retention laws were in place anyway (the constitutional court revoked these).
Re: Rather a pity.
While I share your sentiment, I hope that they made all the mistakes possible in this mission. Not because I am anti-Chinese but because then they are not going to make them when they are going to send a human taikonaut. And getting more experienced certainly is no reason to be "red faced".
That may apply to (independent) claim 1 and (dependant) claim 2. From (dependedant) claim 3 onwards, the patent is more specific. And the patent addresses prior art in branch prediction under "Operation of the Data Speculation Circuit" and then differentiates its approach from this prior art. A cursory reading of the description and claim 3 (onwards) points to the operation of the prediction table as main differentiatior.
So this can be interesting because the prior art would have to use a prediction table to enable an early collision detection in order to decide what branch to execute.
Re: "You could make a random number generator"
You could also use something like the audio entropy daemon and listen for atmospheric noise.
Re: RAMMING SPEED!!
> When I was in Germany, I was told that if a child runs out in the street and gets hit by a car, it's the
> parent's fault for not training the child to stay out of the street.
Well, then somebody misinformed you. Traffic law is one of the rare areas where German law applies strict liability. You are required to carry insurance and it will cover any costs alloted to you if you did not act negligently. The negligence of the other party will determine how much they get, but as a rule of thumb, traffic is seen as a dangerous activity. Therefore usually the insurance has to pay something. In your example, any child under the age of 8 probably is going to receive full health costs. Please note that these are general remarks and you may not rely on them.
> Then somebody, upon seeing this, jumped in their car, and drove down the road, full bore. Only seven
> or so protestors got their legs run over, and the rest had the sense to get out of the way. I was told that
> no charges were applied to the driver.
Usually charges of attempted manslauter or aggravated assault with a dangerous weapon will apply in your example. Your driving license will be revoked as you are seen to be not fit to drive. You will not be able to claim self defence as access to the road is not a personal right in Germany but you may be able to claim damages (depends on whether the demonstration was legitimately formed). Again, you may not rely on this.
Re: Double edged sword
@Roo: First of all, thank you for your response.
"FRAND appears to be a very flexible term, "reasonable" doesn't not equate to "cheap" or "free" !"
"I think the toughest problem is accurately determining how much the R&D actually cost (not always easy to do if it is the result of an offshoot of a larger piece of work). I would also like to see the duration of the patent tied to the total amount of money that has been claimed in licensing revenue - so the total revenue earned by the patent over it's lifetime would be R&D+Fixed Margin."
This may work for a market that is subject to network effects. Here, the inventor does not only receive the compensation you intend to grant him but he also benefits commercially from his technology being adopted as his technology will be compatible.
However, for a goods industry, this benefit usually does not occur at all or at least not in the same amount. So, only granting a limited compensation to e.g. a metallurgy company limits their ability to free enterprise. Admittedly, the granting of a monopoly limits everybody else's ability to pursue their business but the inventor can claim that they started one part of the market. In essence, it is a question how you grant enough incentives to the inventor.
"Personally I'd rather we were able to share ideas freely without having to worry if we have independently replicated some IP from first principles that happens to be held by a shyster in Texas."
I wonder whether this problem of the non-practising entity can only be resolved by limiting everybody else. You could introduce different levels: If the patent holder offers to sell (and price gauging regulations apply), you should not be able to avoid the monopoly. If he fails to sell, curtail his claims to license fees. That would still leave us with the issue of how to determine these license fees but you then would have access to the technology as you intend.
Re: Double edged sword
> Patents should be FRAND by default, the holder gets paid (hopefully the inventor - but in reality likely to be
> a law firm in all but name), and in return the holder doesn't get to choose how to distort the market.
That is eventually one solution for one market (most likely telecommunications). But you have to realise that patents are also being used in other markets (think pharma, chemistry et al.) and there, you want to grant the monopoly to the inventor so that the inventor can refinance its R&D.
I wonder whether we need different systems for the different markets:
* Telecommunications is driven by technical standards and economic network effects and you want to be able to use the standard. Thus, no cease desist claims for standards only adequate compensation for inventors;
* Goods markets are driven by manufacturing and the products' differentiating factors. Cease and desist claims should be possible so that you can use the monopoly to refinance;
* Service markets are driven by operational quality and you may want to be able to compete in any field/draw on any supplier. No patent protection at all.
It would be interesting to know what Mr. Worstall as the resident economist thinks about the patent system since he apparently did not follow up on his expose on free goods.
Re: Should've used *BSD
I politely disagree with the first bit: E.g. for linux, grsecurity and/or SELinux come to mind as a possibility to harden your systems against attacks that comprise your root account. Of course, this does not mean that anything is "completely safe".
But the idea that attaining root status on a Unix system is akin to hitting the jackpot is no longer generally valid and in fact may constitue a trap in a properly secured system.
Re: Willard wasn't he in Eastenders?
> BTW I claim copyright on 'HARTS' as an acronym for Humanities, Arts and Sports subjects.. to run
> alongside STEM subjects.
Copyright challenged: This is just an abreviation and lacks originality. Of course you can shut me up by granting me and any of my successors and associates a free worldwide license to do with the term whatever we want ...
> In both cases it is the associated skills of iteracy, numeracy, logical thought,criticism,appreciation etc.
> required to understand these subjects that form the basic unit of a rounded education, wrapped in a
> working knowledge of the world and society you live in..
Agreed. Add to that the right to vote in a democracy and you see that driving the STEM subjects from school is going to result in tears. The voter needs to have at least a basic understanding when he votes on energy supply, environmental issues, infrastructure etc.
> Leveson justified his conclusions because - having agreed with Conor Burns MP that yes, press
> abuses were covered by the law, people didn't have easy access to justice.
I think that is the point: There are already statutory sanctions in place. Claimants just do not want to go through with the proceedings in a court because they incur the risk of expenses they can not offset if they lose. So they want an easier way to complain.
This shifts the burden to the press that has to defend. If you lower the threshold too much, you end up with extortionate proceedings.
I wonder if the whole point would not be moot if instead of handing damages to complainants, the right of reply is strengthened. You could still seek damages in ordinary court proceedings and you could defend effectively against being slagged of in public with the right of reply. Extortionate claims would be more difficult under this regime.
I am confused by this story:
a) Canada is a member of the TRIPS agreement and has to have criminal procedures and penalties for copyright piracy on a commercial scale (Article 61 TRIPS). Why does the UK police then address a Canadian DNS provider and threatens to report them to ICANN? A complaint to the relevant prosecutorial counterpart in Canada appears to make more sense if they have a case.
b) The DNS provider does not seem to have free choice between the courses of action "fold, ignore, fight": If they infringe Canadian law, they have to fold. If they do not, I assume they are bound by their contracts and have to fight. "Ignore" would only be an option if they have no reason to fear any equivalent of contributory infringement sanctions or sanctions against aiding in the commission of copyright infringements.
c) What is the author's opinion? It is published under "Comment" but I seem to have missed the part where Mr. Orlowski expresses an opinion.
I believe they are now in north-eastern Poland and north western Russia (Kaliningrad oblast).
Re: *Off Topic Feature Request*
Would sharing a USB-to-serial-converter over WLAN work? Then you might use USB/IP:
There is also a howto for debian here but it is a bit older:
Hope it helps.
Re: Dragooned by Greenery
@Destroy: This is open to more historical analysis but more or less the following happened:
* The green movement in Germany started in force as an antiwar / anti nuclear armament movement. This was in the beginning of the 80's nuclear arms races. Classic German joke at the time: How far are German cities apart? One megaton.
* The antinuclear movement gained momentum because of several nuclear cover ups and highly contagious issues: Nukem in Hanau, reprocessing plant in Bavaria (Wackersdorf) etc.
* In the 90s, measurements for radiation exposure during nuclear transports were covered up.
* There had been several scandals regarding older nuclear plants and the storage facility in Aahaus. One prospective nuclear plant had been planned in an earthquake zone on the Rhine.
In general, it is a vicious circle: Nuclear plants were not shut down due to resistance to the construction of newer plants. These older plants developed problems which were then used as reasons not to build newer and better ones. The nuclear industry did its' share by producing scandals and by being happy to continue to work with the old long depreciated plants, thus increasing profits. Also, many people do not learn enough physics to grasp a basic understanding of nuclear physics.
Good for what?
This is an interesting piece of proposed legislation but what is it supposed to do?
* Attacking infrastructure with the intention to cause harm or damage seems to be already an offence in at least some of the larger member states, mostly in the form of criminal liability even for the attempt;
* The same goes for circumventing secured security measures themselves, which already seems to be criminalized in some member states (and the wording leaves open some questions).
I am confused as I am also missing some regulations regarding cross border regulations if that was the idea behind it all: Sections 12 and 13a of the preamble make this cooperation a prerequisite but Article 14 only requires a single point of contact. No further regulation is provided on what is going to be exchanged with this contact and what is going to be the follow up.
Re: hang on a bloody moment...
Thank you for this observation but I wonder whether the MFN clause plus the agency model are not going to have a different effect: They are never going to ask for a price in retail with another party that is lower than their own price via the Apple store. Thus, regardless of how effective a retailer is, he could never have a rebate (for the number of copies sold) that allows him to undercut the Apple store.
Of course I don't know the clauses in question.
There must be an important point I am missing
Are the 12 billion pound sunk costs? I would expect to see an amortization in terms of train fares if the service operates at a profit.
Your idea is IMHO correct and actually that test apparently had been applied as the German press notice refers to a provision with that test. The reasoning is more or less as follows:
1. The auto complete refers to a person itself and not to a significant mass of people that can not be distinguished from the rest of the population -> Apparently yes in that case.
2. The auto complete contains a derogatory statement of fact that is not demonstrably true or a derogatory comment about a person (not its actions, its stated opinions etc.) -> Apparently yes, statement of fact assumed.
3. There are no mitigating factors (reasoning along the lines that who goes bowling has to bear that other people count the pins, e.g. "singer xyz can not sing") -> None given in the press release.
4. Google is responsible for this statement of fact -> Not in the first instance but when they were notified that there was something according to test 1 through 3, they kept on going and thus they are responsible from that moment onward.
Please note that the consequence according to the press release was only a cease and desist claim, not a damages claim.
So the press release basically states that prior to have knowledge of an infringement of personality rights, Google does not need to filter the auto complete results and they are not even required to exercise a standard of care to find an instance of infringement. Only when they were positively notified of the infringement, they have to act. This does not strike me as overly unfair but thank you for having brought up the point that you first need to run through tests 1 to 3.
I agree with your idea that the right needs to be stringently enforced. Otherwise it is not worth granting it and only a purely moral acknowledgement. As IP rights are (mostly) both moral and commercial rights, not enforcing them properly is just limiting them to another extreme.
But allow me to point to this part of your text:
"This demographic is not so dissimilar to the slightly older "Fifty Quid A Week Bloke", a demographic tagged a few years ago as someone with discretionary spending who loves splurging it at the weekend on CDs and DVD box sets. Someone who places a high value on cultural stuff and has a high willingness to pay. Buying stuff is a way of treating yourself, a bit of retail therapy. Keep this in mind as it will become relevant as we continue."
In short: Copyright holders now need to resort to enforce their rights against their target market. This is different from other IP rights that mostly see enforcement against the holder's competitors although you *can* sue the customers. Suing your customer is however bad for business and is going to provoke some backlash.
That is what seems to have happened with copyright: suing filesharers en masse apparently was not good for the copyright holders' image and erodes acceptance of copyright in general. Would it then not be better to have a more stringent right to be enforced against the large corporate copyright infringers (and small infringers on a more limited scale) than having a very broad right that is not really being enforced at all? Is fighting against filesharers with ever longer lasting copyrights that are difficult to enforce while at the same time civil liberties are thrown overboard worth the effort while not going after the large corporate infringers?
I agree with your assessment that moving the goal posts for "orphaned works" looks problematic. However, the general opposition against a registered copyright needs explaining as it is well accepted to require registration for all the other IP rights. Why not bring this in line and at the same time strengthen enforcement and acceptance?
"The music and film industries made a catastrophic error a few years ago when they began to sue individual file sharers indiscriminately. Evidence of a handful of unlicensed downloads was enough to earn a lawsuit - and in the US system, the threat of punitive damages. It simply made the industries look like bullies, and they later acknowledged the mistake, introducing a graduated response to digital pirating instead. Under such a system, only serial piss-takers earn a counter measure."
So this is essentially a backswing to past excesses? It is an interesting point to ponder whether acceptance of copyrights would be higher if they had not expanded so much in the past.
* the longest protection for any work (with the exception of trademarks that do not expire while used, but they are not really "IP" in that sense)
* were the first to abolish world wide exhaustion so that you can regionalise markets
* have the lowest threshold to be acquired (they come into existence with creation, no registration required)
* are the only IP you can infringe by private use
And apparently they are the most entrenched IP.
I wonder if a more limited protection (20 years, you can use anything you bought in some place in the world, registration required, infringement by private use is limited) that is stringently enforced would result in a larger acceptance.
@bobbles31: Allow me to politely disagree. IMHO, a patent protects a technical idea, expressed in the patent claims and regardless of an actual product. A copyright in the European tradition is a bundle of rights that protects a specific oeuvre *and* in a limited way the idea behind the oeuvre. In literature, the protection extends to both the written text and the plot of the story so that you can not simply rename the protagonist and claim a new story.
So - technical and artistic IP rights are basically comparable and the idea behind the limited duration of technical IP applies very much to artistic IP as well. But they are treated differently and artistic IP is treated much more favorably than technical IP: it lasts longer and its protection is broader (at least in Europe). It is a requirement under patent law for a patent infringement that the infringement has to be a commercial one. Copyright can be violated by anyone.
So, the question is still open: Why discriminate against the technical inventor?
With regard to your house analogy: IMHO, both physical and intellectual property are legal constructs so I agree with your analogy to that extend. The difference is how much of the costs for the creation you carried yourself actually. With a house, you probably paid its market value including all building costs. With IP, you did not compensate all those before you who worked in the field and created the public domain. Your photo relies very much on other peoples work who invented photography and the artistic elements of the design of a good photograph and you did not pay them. Therefore society claims back your contribution after having rewarded you with a period of exclusivity.
@Ken Hagan: I agree with your example but please explain why copyright needs longer protection than patents: It takes billions to invent new pharmaceuticals. Yet they are protected by patents for 30 years at most, 10 of which are spent to gain the necessary permits. The argument here is to encourage further development and that the inventors stood on the shoulders of giants.
Creators of copyrighted works also stand on the shoulders of giants as they are to be seen in the cultural context around them. And having them lose their rights after 20 years as everybody else (only pharma patents sometimes can be expanded to 30 years, it is otherwise 20 years of protection) would encourage them to continue working.
So again: Why do these arguments only work against the technical inventor but not against the artist? If 20 years are enough for technical innovations and after that, we need the rights to expire in order to foster innovation, there is little reason to have 70 years post mortem auctoris for works of art.
Parsley, cress, chives, borage, salad burnet, sorrel, chervil, any of this in season in Spain? You could collect that, chop it up, include a hard boiled mashed egg (not really required though) and have some nice herb sauce for free. All of the above usually grows on meadows but beware dog droppings or the like.
Re: The solution to your chickpea problem (@ Lester)
Interesting, thank you. I was also taught to change the water once during soaking approximately after 6 hours. This should get rid of the unpalatable substances and make soaking more effective.
@PhilipJ: Which device?
This sounds interesting, can you disclose which device you mean? Thank you very much.
Re: Federal trick missed
@AC: Google Germany GmbH is registered in Hamburg. Therefore, Hamburg's ICO seems to have had jurisdiction.
@James 51: A fine per trip was probably impossible as Hamburg's ICO investigated the case under negligence law. A mens rea offence would have been prosecuted by the prosecutor (who investigated but decided there was no case) and would have resulted in criminal liability. German negligence law usually requires several acts (such as several trips) to be tried as one case if the negligence that is the root cause had occured only once but permeated the other acts.
The press release (pdf) is here: http://www.datenschutz-hamburg.de/uploads/media/PressRelease_2013-04-22_Google-Wifi-Scanning.pdf
Re: It's the same with paper
> "Financial records get shredded after 10 years, or so, so why not all other records?"
Because you keep them for different purposes. Financial records are a question of tax law. Now consider product liability: It may be necessary to recall your product because you find a non-random defect very much later. Then you need to know what was affected and what to recall. Depending on your legislation, claims may go back 30 years for example.
Or patent infringement: A patent usually lasts up to 20 years, you may need to have your patent documentation (application etc.) longer than that in order to claim. On the defensive side, claims may last 10 years so you may want to know what you did in those 10 years and also prior to the priority date since you may have a right to pursue your own prior knowledge.
To me, the question of how and what to archive should be answered along the lines of the purpose you retained the information for in the first place. And that may be a hard question to answer that few companies are willing to consider.
Thank you for the analysis and allow me to add one thing: You need a licence in order to operate a nuclear power station in Germany. Initially, that licence was granted for a certain number of years. Then, it was linked to the electricity output. Now, the federal government combined the output limitation with a deadline. It is the latter limitation that may be a problem as it was introduced when the former (output limitation) had not expired yet.
European Patent Office?
"According to the European Patents Office, nobody in Europe currently holds a trademark on Python."
Could this be the "Office for Harmonization in the Internal Market (Trade Marks and Designs)" in Alicante, Spain, eventually? The European Patent Office is in Munich and concerns itself with patents, not trademarks as far as I understand.
Re: Time to lawyer up
You may want to look for European Trademark 010848208. Applicant is POBox Hosting.
That said: It seems to be a composite mark, i.e. it has a word component "PYTHON" and a pictorial component (circle, colour, all caps typeface). It seems to be more targeted to web hosting but contains a claim to computer software.
"A community trademark lasts 10 years and would grant Veber exclusive ownership of the name Python in all European Union member counties.
It would prevent anybody else from using the word “Python” in goods, packaging, services, or in business papers and advertising without Veber’s express consent. Doing so would breach the trademark and entitle Veber to prosecute."
That is not certain yet. First of all, a trademark is only going to give rise to claims for the goods and services it is registered for or for which there is a likelihood of confusion. If the trademark is famous for the applicant (a quite high proportion of the public associates the trademark with the goods and services of the applicant), then it can monopolize a word also for other goods and services.
But does this trademark really go so far as to monopolize "PYTHON" for software? Or does it only protect the specific registered form? We are yet to find out.
Interestingly, there is also EM003098101, which is a word mark.
Re: I'm officially an old fart...
I agree, joe is the first program I install on a new Linux install.
Re: Not about a refund
Yes, that seems to be the idea. Think about first in terms of a car accident: The guilty party pays for the repairs. But you still could not use the car that you invested good money in. Therefore, you are short the possibility to use the car and are awarded damages for that.
Here, the customer invested money in having a DSL line but was not provided the benefits. So he is not only short the fees paid to the ISP but he also lost his economic advantage of using that DSL line and is compensated for that.
This makes sense if you consider that the ISP needed to have acted negligently and that in the alternative, the customer could have claimed higher damages by using for example wireless internet. He would then have received the wireless internet fees minus the fees for the DSL line. This sum seemed to have been higher than the damages now awarded in this case and so the court seemed to have decided that the ISP should not be privileged by the customer's foregoing of the wireless broadband internet access by not having to pay.
Please note that the verdict apparently is not published yet and that all information only comes from the press release and further hearsay.
Not about a refund
This was not about a refund (court press release here: http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=pm&Datum=2013&Sort=3&nr=62927&pos=1&anz=15). "No hay no pay" automatically applies in Germany and can not be removed by T&Cs.
This is what I take from the press release: The court awarded additional damages on top of the refund. The court seemed to be of the opinion that having a DSL line available has a commercial value to a person, much as having available a car and being allowed to drive. Therefore, in addition to a refund, claimant was awarded the costs for a comparable DSL line according to market prices as the ISP failed to provide the line as it was obliged.
Please note that the ISP stopped providing services due to working on its billing infrastructure. While not spelled out in the press release, apparently there was negligence involved.
El Reg's subtitle is a bit over the top as the court did not rule about life and its necessities but who would have thought that.
Re: @Radbruch1929: what I find bizzare
I politely disagree. While I agree that in a criminal law system, the court (judge, jury) determines the sentence, I doubt that in the US, a prosecutor may push for "whatever sentence". A quick glance here:
shows that "pushing for whatever sentence" also in a plea bargaining agreement may be in violation of the prosecutor's guidelines (number 9-27.430 Comments B 1. and 3.). Apparently, this violation is not actionable against the state or the prosecutor (9-27.150) but seems to be a basis for disciplinary action (9-27.130).
So the push for a maximum sentence in this case may be a reason to scrutinize the handling of this case. Please note that I have no understanding of US law.
Re: what I find bizzare
@Oninoshiko: Ah, please excuse me for carrying coals to Newcastle. It was uncalled for.
@Suricou Raven: Thank you for pointing this out, I missed it. I still hope we are going to see a detailed analysis of the proposed sentence. The blog quoted at the end of the article only reviews (yet) the fact of the indictment but perhaps they carry on and provide more detailed information how the prosecution seemingly pushed for a sentence at the top of the given range. The story seems to be there.
Re: what I find bizzare
I do not know about the situation in the US but in domestic violence cases, victims often retract their support for the prosecution and this is a factor in determining whether to press charges (i.e. if the case is in the public interest). So I agree to your (general) understanding why the authorities may prosecute without the victim's consent but should be careful about their determination.
In this case however - if the reporting is right -, the prosecution seems not only to have pushed for prosecution of the case but for maximum sentencing. That is odd: El Reg posted a link to the indictment by grand jury and the criminal law cited was wire fraud, computer fraud and unlawfully obtaining Information from a protected computer. In light that the aggrieved asked for the case to be dropped, it seems to have been a first time offender case and it does not involve actions for personal gain, the alleged push for a high sentence seems to be the oddity to be scrutinized.
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