For The Fifth Time Now, German Court Says Adblocking Is Legal

from the wanna-go-for-six? dept

A few months back we noted that various German publishers, including publishing giant Axel Springer kept suing adblockers, claiming they were illegal... and they kept losing. AdBlock Plus notes that German publishers are now 0 for 5 as yet another legal challenge to ad blocking has been rejected:

We received news late last week that we’d won our fifth straight lawsuit in Germany. This time it was brought by one Germany’s top newspapers, the Süddeutsche Zeitung (think a German version of the New York Times), and it follows victories over Axel Springer, RTL Interactive, ProSieben/Sat1 and Zeit/Handelsblatt. (That’s a veritable who’s who of old guard German publishing btw.)

The setting was Munich this time round, but the outcome was the same as the four times previous: it is indeed legal for users to block ads and our Acceptable Ads initiative is not a detriment for publishers but rather a potential benefit to them.

The judge clearly recognized the issues, noting that there's no contract between users and a site that requires them to view ads, no matter how much publishers may want to pretend that what they refer to as a "social contract" is somehow a legal contract. The court also, rightly, noted that the law is not designed to pump up a business model that is failing, and that it's up to the publishers themselves to create better business models.

Even though we're a publisher who relies on ads for some of our revenue, we've never been shy about recognizing that ad blockers are an essential form of freedom for users, to control what goes into their computers, and an important security tool as well. Would our own lives be easier if ad blockers didn't exist? Perhaps. But, as always, the onus needs to be on us to build business models that work, and not rely on forcing people into doing things they're not comfortable doing.

The sooner more publications realize this, the sooner we can get past the broken system we have of online advertising today.

Filed Under: ad blocking, germany

Turkish Government Summons German Ambassador Because Of A Silly Satirical Video... That's Now Getting More Attention

from the erdowhat? dept

We've written a few times about Turkish President Recep Tayyip Erdogan, who appears to have one of the thinnest skins of any national leader anywhere. He's been filing an average of over 100 lawsuits a month over "insults" to himself. And the latest is that the Turkish Foreign Ministry summoned the German Ambassador Martin Erdmann to explain why a German television station, NDR, broadcast a silly satirical video (gently) mocking Erdogan. You can see that video here (with English subtitles): It's kind of catchy, honestly. But would anyone really be talking about it if Erdogan and the Turkish government hadn't freaked out about it? This is The Streisand Effect in action. A total nothing of a mocking video that very few people would have cared about if Erdogan hadn't turned it into an international incident, which in turn makes the video news. As of this writing the video is quickly approaching a million views, and I imagine it'll end up with quite a bit more than that before long.

And imagine how much more effective it would have been if Erdogan and the Turkish government (a) ignored the video or (b) laughed it off? Instead, in freaking out about it, it only makes people think that it's worth taking seriously.

Filed Under: germany, insulting, martin erdmann, recep tayyip erdogan, satire, streisand effect, thin skin, turkey
Companies: ndr

Top German Judges Tear To Shreds EU's Proposed TAFTA/TTIP Investment Court System

from the wrong-way-forward dept

As Techdirt has repeatedly pointed out, one of the most problematic aspects of the TAFTA/TTIP deal being negotiated between the US and the EU is the inclusion of a corporate sovereignty chapter -- officially known as "investor-state dispute settlement" (ISDS). Techdirt isn't the only one worried about it: no less a person than the EU's Trade Commissioner, Cecilia Malmström, said last year that she "shares" the concerns here. Her response was to draw up the new "ICS" -- "Investor Court System -- as an alternative. US interest in ICS is conspicuous by its absence, but Malmström keeps plugging away at the idea, evidently hoping to defuse European opposition to TTIP by getting rid of old-style corporate sovereignty.

That plan has just received a huge setback in the form of an "Opinion on the establishment of an investment tribunal in TTIP". It comes from the German Magistrates Association, which Wikipedia describes as "the largest professional organization of judges and public prosecutors in Germany." So these are not a bunch of know-nothing hippie activists, but serious establishment figures with a deep knowledge of the law. Here's their basic position on Malmström's ICS, translated from the original German by TNI:

The German Magistrates Association [DRB] rejects the proposal of the European Commission to establish an investment court within the framework of the Transatlantic Trade and Investment Partnership (TTIP). The DRB sees neither a legal basis nor a need for such a court.

The clearly implied assumption in the proposal for an International Investment Court that the courts of the EU Member States fail to grant foreign investors effective judicial protection, lacks factual basis. Should the negotiating partners have identified weaknesses in this area in individual EU Member States, these should be taken up with the national legislature and clearly defined. It would then be up to the legislators and those responsible for the judiciary to provide remedy within the proven system of national and European legal protection. Only in this way can the full legal rights to which any law-seeking party in Germany and the European Union is entitled, be guaranteed. The creation of special courts for certain groups of litigants is the wrong way forward.

The judges then spell out in more detail what they see as the problems with the idea, and they are pretty damning. First, they point out that the ICS would have power over the entire European Union and its member states, and that its decisions would be binding:

The establishment of an ICS would oblige the European Union and the Member States, upon the conclusion of an agreement, to submit to the jurisdiction of an ICS and the application of certain international procedures chosen by the plaintiff.

Presumably, the same would be true of the US and its state governments, which may be why the USTR is not hugely keen on the idea. Not content with undermining the EU's political system, ICS would do the same to the EU's judiciary too:

an ICS would "deprive courts of Member States of their powers in relation to the interpretation and application of European Union law and the Court of its powers to reply, by preliminary ruling, to questions referred by those courts and, consequently, would alter the essential character of the powers which the Treaties confer on the institutions of the European Union and on the Member States and which are indispensable to the preservation of the very nature of European Union law"

The German judges go on to repeat a point many others have made: that there is simply no need for any kind of ISDS or ICS system. Here's why:

The Member States are all constitutional states, which provide and guarantee access to justice in all areas where the state has jurisdiction to all law-seeking parties. It is for the Member States to ensure access to justice for all and to ensure feasible access for foreign investors, by providing the courts with the relevant resources. Hence, the establishment of an ICS is the wrong way to guarantee legal certainty.

Finally, the judges note that one of the claimed advantages of the ICS system over the current corporate sovereignty approach, judicial independence, is illusory:

Neither the proposed procedure for the appointment of judges of the ICS nor their position meet the international requirements for the independence of courts. As such, the ICS emerges not as an international court, but rather as a permanent court of arbitration.

In other words, Malmström is simply re-branding ISDS, and trying to put lipstick on a pig.

This attack from a very unexpected quarter is a really devastating blow for the ICS idea. It will be hard for Malmström to claim with a straight face that, unlike the current corporate sovereignty system, ICS is a real court, with all the protections that ISDS lacks, because a large number of EU experts in this area have just stated unequivocally that it isn't. The judges' opinion makes it even more likely that the US will reject the ICS idea out of hand, not least because it can now simply point to the German Magistrates Association's analysis as proof that ICS doesn't do what Malmström says it does.

That leaves the really interesting question: where does the EU's Trade Commissioner go from here? She can hardly return to the old-style ISDS for TAFTA/TTIP, since she has been busy rubbishing it in order to promote her new ICS idea. Moreover, this latest rejection comes at just the wrong time, since it is widely expected that corporate sovereignty will be one of the main items on the agenda for the next round of TAFTA/TTIP negotiations. Awkward.

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Filed Under: corporate sovereignty, courts, eu, germany, isds, judicial system, tafta, ttip

A Tiny Cell With An Omnipresent Guard, Visitors Just Twice A Day: TAFTA/TTIP's German Transparency Room

from the and-mind-you-behave,-children,-or-you-will-be-punished dept

One of the most problematic aspects of the TAFTA/TTIP negotiations is their lack of transparency. Although the European Commission, to its credit, has made available many of its initial offers and background papers, the key consolidated documents that show what's really happening in the negotiations -- and what deals are being cut -- are reserved for the inner circle. Even national politicians within the EU have been denied access to these, and that has really rankled, particularly in Germany. In an effort to defuse the anger there over this manifestly anti-democratic approach, a special reading room has finally been set up in the German Ministry of Economy. As this report from the non-profit investigative newsroom Correctiv.org makes clear, it's very special:

MPs have to schedule an appointment as the room opens only twice a day for two hours. Before entering the room, they have to leave their mobile phones and any electronic device in a secure locker.

They can read the documents only on a computer screen which is not connected to the Internet. They may take notes but are not allowed to copy any quotes from the consolidated texts.

And if any of the children -- uh, politicians -- are naughty, the US will be very, very cross, and may be forced to withdraw the privileges it has granted:

In the case of unauthorised disclosure of information, the US "may withdraw its consent to the placement of TTIP consolidated texts in any or all of the member states reading rooms”. This means if an MP leaks or quotes any sensitive information, the parliament may be denied access to the documents.

To keep an eye on things, a guard is present at all times in the room, which is very small -- just 35 square meters in all (about 370 square feet). The War on Want site has a picture: It also provides a handy translation of the room's "features":

Starting in the top left corner and moving clockwise, the signs translate as follows: Lockers (for mobile phones etc) -- Reference library (reference works) -- Work stations (maximum 8 people) -- Digital documents (negotiating language: English) -- Supervisor (official of Ministry for Economic Affairs) -- Computer (not networked) -- Confidentiality agreement (must be signed before use).

These may be standard conditions for viewing negotiation documents in the US, but they are likely to be regarded as pretty insulting to German politicians -- not least because all the documents are in English, and it has taken two and half years to achieve even this miserable level of transparency.

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Filed Under: eu commission, germany, tafta, transparency, ttip

YouTube Wins This Round In Germany In The Stupid Neverending War With GEMA Over Streaming Rates

from the copyright-insanity dept

For many, many years, the big German music performance rights organization GEMA has been at war with YouTube over what rates YouTube must pay for any streamed music. It started with GEMA more or less arguing that a stream on YouTube was effectively the same as a purchased download on iTunes, and that it should get $0.17 per stream (yes, per stream). For anyone who understands even basic economics you'd recognize that's not even remotely in the realm of reality. The battle has gone on ever since, and unlike basically every other country in the world GEMA has refused to budge. Because of this YouTube has blocked most major label music from its service in Germany, while GEMA has filed a variety of lawsuits against YouTube in the country arguing that YouTube is somehow responsible for what YouTube users upload.

In the latest round, YouTube scored a victory as a court rightly found that YouTube is a neutral platform and not liable for a user's uploads. According to David Meyer at Fortune:

On Thursday, the higher regional court of Munich rejected GEMA’s claim for damages to the tune of around €1.6 million ($1.75 million). If you’re wondering, that figure represents royalties for 1,000 music videos chosen as examples, at a rate of 0.375 euro cents per view. The court upheld a judgement by the lower regional court in Munich, which said YouTube is just a host for uploaded video.

Meyer also notes that GEMA will likely appeal, so it's not over yet. He also notes, of course, that the rate demanded, while still insane, is at least lower than what GEMA was originally asking for.

Filed Under: copyright, gema, germany, licensing, secondary liability, youtube
Companies: gema, google, youtube

Patents On Presentation Of Information Excluded In EU, But Germany Has Just Granted A Patent On A Graphical User Interface

from the not-promoting-innovation-as-such dept

Software patents are contentious, and nowhere more so than in Europe. Patenting there is governed by the European Patent Convention (EPC). Article 52 of the EPC reads as follows:

(1) European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.

(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

(a) discoveries, scientific theories and mathematical methods;

(b) aesthetic creations;

(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

(d) presentations of information.

Although the exclusion of software seems crystal clear there, the same Article adds the following regrettable rider:

(3) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.

What exactly those two words "as such" mean in this context has been argued over for years. In practical terms, it has led to thousands of software patents being issued thanks to clever framing by lawyers that takes advantage of the "as such" loophole. According to this post on a blog that is called unashamedly "European Software Patents," it seems that German judges have now gone even further, and granted a patent for a graphical user interface. That's surprising, because the same EPC Article 52 explicitly excludes "presentations of information" from patentability. So how did the lawyers get around that? By using the "as such" loophole again. As the blog post explains:

the Federal Court of Justice (FCJ) held that the [EPC's] exclusion is overcome when the presentation of information serves the solution of a technical problem with technical means

Just in case that legalese isn't crystal-clear, here are details of the case considered by the German court. The patent dealt with the display of visual information captured by a swallowable capsule equipped with a camera. Apparently, these cameras produce information too rapidly to be useful for ready examination by the human eye. That problem was solved by showing only a subset of transmitted frames in one window, and different subsets in other windows. The idea is that an expert can scan several of these windows at once, since the images in each are changing relatively slowly.

Germany's Federal Patent Court held this to be a pretty obvious idea (which it is), but the country's Federal Court of Justice reversed that finding, and decided that the idea of breaking up a stream of images into subsets was terribly clever, and definitely eligible for patent protection. It also made a more general statement about the patentability of graphical user interfaces:

Instructions relating to the (visual) presentation of information which do not primarily focus on the conveyance of particular content or its conveyance in a particular layout but on the presentation of image content in a manner that takes into account the physical characteristics of human perception and reception of information and are directed towards making possible, improving or making practical the human perception of the displayed information serve the solution of a technical problem with technical means.

It's one of those how-many-angels-can-dance-on-the-head-of-a-pin distinctions beloved by patent lawyers, but which actually makes no sense. After all, it could be argued that any intelligible, well-designed presentation of information "takes into account the physical characteristics of human perception and reception of information," and therefore is eligible for a patent. The latest decision by the German courts will doubtless lead to the granting of further, similarly-trivial patents, and to companies increasingly nervous about the use of even the simplest graphical user interface in their products for Germany. So how is that encouraging innovation or benefiting the public?

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Filed Under: europe, germany, patents, software patents, ui, ui patents, user interface

German Publishers Still Upset That Google Sends Them Traffic Without Paying Them Too; File Lawsuit

from the your-honor,-how-dare-they-send-us-traffic dept

Oh boy. Remember VG Media? That's the consortium of German news publishers who were so damn angry that Google News sends them all sorts of traffic without also paying them. A year and a half ago, they demanded money from Google. That failed, so they went crying to German regulators who laughed off the request. After there were some concerns that a new "ancillary copyright" right regime in Germany might require payment for posting such snippets, Google properly responded by removing the snippets for those publishers, who totally freaked out and called it blackmail.

Let me repeat that for you, in case you missed it: the publishers insisted that Google's News search was somehow illegal and taking money away from them, and thus they demanded money from Google. When Google responded, instead, by removing the snippets providing summaries to their stories, the publishers claimed it was unfair and blackmail. In short, not only do these German publishers want Google to pay them to send them traffic, they want such payments and traffic to be mandatory.

However, with Google removing the snippets, VG Media granted a "free" license to Google just to get the snippets back into Google News -- even though Google didn't need such a license. Meanwhile, they complained to German competition authorities about this supposed "blackmail" and like the earlier regulators, the German competition authorities told VG Media to go pound sand.

If you thought the situation was over, you underestimated the short-sightedness of VG Media and the German publishers. They've now apparently filed a lawsuit against Google over all this, taking the issue into court. Again: this is all because Google is sending their websites traffic... for free.

Meanwhile, these geniuses at the German publishers might want to actually play out this game strategy a little further. Should they actually win the case, they need to look no further than Spain to see what might happen. Remember, Spain passed a ridiculous law that not only put such a tax on aggregators but made it mandatory. It was clearly nothing more than a "Google tax" for Spanish publishers. Google's response? It pulled out the nuclear option and shut down Google News in Spain.

So even if VG Media and the German publishers "win" this lawsuit, there's a decent chance that they still end up shooting themselves in their collective foot, by pushing away one of the most popular news aggregators that drives a tremendous amount of traffic. It really makes you wonder about the thought process of the folks who run VG Media.

Filed Under: aggregation, ancillary copyright, copyright, germany, google news, google tax, snippets, traffic
Companies: google, vg media

Anne Frank's Diary... And Hitler's Mein Kampf Hit The Public Domain In Europe - Despite Concerns About Both

from the and-off-we-go dept

Anne Frank and Adolf Hitler both died in 1945 -- with Frank's death being caused by Hitler. European law (for now) says that copyright lasts 70 years "after death" of an author, and that means that the published writings of each of those individuals are now in the public domain in Europe -- though there's serious controversy about both. Even though we won't see any new public domain works here in the US for quite some time, over in Europe, at least some works are able to enter the public domain each January 1st.

As we noted a couple months ago, the Anne Frank Foundation (Anne Frank Fonds) has been lying and telling people that Frank's father, Otto Frank, is a co-author of the diary and therefore the copyright doesn't expire until 70 years after his death. Otto Frank, obviously, did quite a lot to get his daughter's diaries published and spread around the world. And for that, people should be thankful. But the attempt to keep the work under copyright is shameful and pure copyfraud, and it tarnishes the image of the Anne Frank Fonds, which has done much good in the world.

And while the Foundation insists that it will fight any plans to release the book, it appears that many are ignoring such threats. French Parliament member Isabelle Attard, who has been vocal in criticizing the copyfraud attempt, has posted a copy of the text in the original Dutch on her personal website. Meanwhile, the Internet Archive appears to have the full text in English, though it actually appears to be a later edited version of the diaries, which is not in the public domain (though the Archive says it's relying on fair use for the posting).

And now we wait to see if the promised legal action follows...

Meanwhile, over in Germany, Hitler's Mein Kampf is available for the first time in decades. As we've discussed in the past, the copyright story on Mein Kampf is somewhat bizarre. The US government seized it after the end of World War II, and then transferred it to the government of Bavaria, who used it to bar all printing of the book in Germany. There had been some panic that making the book available would increase neo-Nazi sentiment in Germany, but it also might better educate the public on the insanity that was Adolf Hitler. As we noted last year, there was also a bizarre instance back in the 1930s when future Senator Alan Cranston tried to publish Mein Kampf in America to show just how batshit crazy Hitler was (an officially published version in the US had been watered down to hide much of the craziness) -- and Hitler and his publisher sued over the publication, helping to get the original Mein Kampf censored in the US.

The new version being released in Germany is (smartly) an annotated version "with thousands of academic notes, [which] will aim to show that Mein Kampf (My Struggle) is incoherent and badly written, rather than powerful or seductive."

Still, German officials claim that they are going to try to "limit public access" to the original text, even though it will be (and, let's face it, already is) widely available on the internet.

Filed Under: adolf hitler, anne frank, copyright, diary of anne frank, europe, germany, mein kampf, public domain
Companies: anne frank fonds

German Parliament Spy Oversight Board Sues German Government Over Data Sharing With NSA

from the uncharted-territory dept

After Edward Snowden's revelations about the extent of spying being carried out around the world by the NSA and its Five Eyes friends, there have been a number of attempts in other countries to find out what has been going on. One of the most thoroughgoing of these is in Germany, where there is a major parliamentary inquiry into NSA activities in that country. As Techdirt reported back in May, a surprising piece of information to emerge from this is that Germany's secret service has been carrying out spying on behalf of the NSA, which sent across various "selectors" -- search terms -- that it wanted investigated in the German spies' surveillance databases.

One group of people particularly shocked to hear this were the German parliamentarians who make up the G10 Commission that must approve spying operations in Germany. A post on Intellectual Property Watch explains why:

The German Foreign Intelligence Services, supported by the government, tapped the German Internet Exchange Point Decix, the largest internet exchange point globally. While the G10 Commission had approved the blanket tapping, they were unaware that some of the tapped data were forwarded to the NSA, the US National Security Agency, based on a list of so-called "selectors" -- names or numbers the NSA sent to their German colleagues.

Understandably annoyed, the G10 Commission demanded to see a complete list of those selectors so that it could check what information had been passed to the NSA, and whether any laws had been broken. The German government said that it would not disclose them. After misleading the oversight body about who would have access to information obtained from the Decix tapping, the German government's refusal to provide the selectors adds insult to injury. So much so, that it has apparently driven the G10 Commission to take unprecedented action: hauling the German government before the country's constitutional court, which decides weighty matters of this kind.

Since this is uncharted territory -- the G10 Commission had to find out whether taking legal action against the government in this way was even possible -- nobody really knows what might come of the move. But at the very least, it's yet another indication of the seismic shifts that are still occurring throughout the world of surveillance as a result of Snowden's unprecedented leaks.

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Filed Under: ed snowden, german parliament, germany, lawsuit, mass surveillance, nsa, oversight, surveillance