Posts by Radbruch1929

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

@Drummer Boy:

> "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.

Re: Efficiency

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.

Re: Time to lawyer up

@ShelLuser:

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.

@El Reg:

"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: 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.

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:

http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/27mcrm.htm

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.

Politely disagree: Andrew is concerned that your idea can remain yours so that you can disrupt markets. Tim doubts the ability to disrupt existing markets. So, it really seems to be on different levels.

Have an upvote and a happy new year.

Re: @ John Brown (no body) - Suse?

Actually, there is (specifically: are, there are several regional ones). If you want a name outside the list, according to the apparent regulations you are of course free to prove that the name is a common name someplace in the world and is not denigrating/ridiculous/will harm the child in the future.

Re: Not enforcable anyway?

I politely disagree on a number of points:

* The case Oracle vs. Usedsoft (decision of the European Court of Justive available here: http://curia.europa.eu/juris/liste.jsf?language=en&jur=C,T,F&num=C-128/11&td=ALL) seemed to at least partly refer to a clause in the EULA. The EULA was not thrown out outright, so calling a EULA invalid from the onset may go to far.

* Your approach to assume circular reasoning is interesting, but I wonder whether it fails to take into account that you may modify an agreement by mutual agreement. Thus, you run (and therefore exercise the right to make a copy of) the installer software/the software under an implied contract with a restricted license which then is modified by the EULA.

* Regarding the fairness test of the general terms and conditions, I assume you are right. However, you agreed to those clauses in the first instance so you may be on the heels with this defense.

* Signature is usually not required for concluding an agreement in most of the EC.

* I agree regarding your view on infringements: Most of the time, the infringement does not necessarily depend on the EULA. Oracle vs. Usedsoft may have been the important exception though.

Re: Err

Minor correction for patents in a European context: The inventor needs to be natural person. The applicant - who owns the patent - can be a corporate entity and in most cases is, e.g. Art. 58 of The European Patent Convention.

Re: Judge Birss explained

Article 82 of the Council Regulation (EC) No 6/2002. From the reading of the text and not as advice: If the suit is brought where the infringer sits in the EC, the court may be asked for a verdict for all infringements in the EC by this infringer. If the law suit is brought in a country where there is an infringement (i.e. sale of an infringing device), the court may only be asked for a verdict on this alleged infringement and any infringement in the country of the infringement.

Re: And when the cable breaks?

I don't have anything to say regarding the resentment and cable chopping but the home owner should not be totally defenseless with regard to the land usage. Art 11 of the EC telecommunications directive holds that the rights of way may not be used to discriminate in either direction i.e. against land owner and telecommunications provider. So while the directive allows to use rights of way to lay cable it does not seem to allow for carte blanche for the telecoms or Ms. Miller either.

Re: Union reps and other points

I agree with your assessment that it is not a good idea to get confrontational from the very start. We differ on assumptions though: I understand the situation Dominic describes not as the start (when hopefully correcting the error is first priority) but rather as the "end" where blame is assigned.

So yes, I agree with your points but the way I understand Dominic, this is a preparatory stage for an eventual confrontation. He is going to trap you in lies. This is disguised by an outside location, lack of managers, tea and biscuits and his politeness. But you have already been singled out and Dominic described several reasons why this may be wrong as in the lack of a CVS etc. Hopefully outside help does realize eventual flaws in this selection process. I am not sure I would.

And yes, I have not seen the pointy end myself (yet) but I have seen this situation. It put enormous stress on people. I do not think that I am going to make very good decisions in that situation and outside help should (again: hopefully) prevent me at least from making the worse mistakes (as in telling lies, not spotting obvious defences etc.).