Wednesday, 12 November 2014

Disproportional Prices at Internet Auction Ethical

German Federal Court  BGH VIII ZR 42 / 14

The Federal German Court had to decide whether a price achieved in an Ebay auction was unethical because it differed disproportional from the market value of the auctioned product. The highest bid in the binding auction for the item in question, a car with a starting price of 1 Euro, was 555,55 Euro. The seller therefore decided to end the auction and sell the car instead outside the auction for 4200 Euro to a third person. The buyer in the auction filed with the courts his damage claim for breach of sales contract in the amount of 5249 Euro, equal to the market value of the car.

The Federal Court held that a binding and enforceable sales contract had been undertaken between auction seller and buyer. Particularly it did not find the agreement unethical because of a disproportional auction price. It argued that it is rather the motivation of both participants to an internet auction to achieve a price disproportional to the market value, whether above or below it. 

Tuesday, 11 November 2014

Online Framing and Copyright

European Court of Justice C - 348 / 13

The European Court of Justice had to decide a question put to them by the German Federal Court whether the embedding, within one's own website, of another person's work made available to the public on a third-party website, constitutes communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC even where that other person's work is not thereby communicated to a new public and the communication of the work does not use a specific technical means which differs from that of the original communication. In short, does "Framing" constitute an infringement of copyright.

The Court referred to his previous decisions regarding online hyper links and found that linking does not constitute a "making available to the public" irrespective of which linking technique is used as long as the link leads to a website that is available to the public as a whole. 

Public Procurement and Cyber Essentials Security Requirements

The British government has issued a procurement policy note that suppliers are required to comply with Cyber Essentials security requirements when bidding for central government contracts that involve:

- handling personal information of citizens or government employees such as addresses and bank details or payroll and expenses information,

- supplying informations and communications technology systems and services designed to store or process data at the official level of the Government Protective Marking scheme 

Cyber Essentials is a certification scheme launched by the Department for Business, Innovation & Skills and designed to protect against the most prevalent internet threats.

Injunction Against Online Intermediary of IP Infringement

Cartier and others v BSkyB and others [2014] EWHC 3354 (Ch)

The High Court had to try a case where the holders of trade mark rights sought court orders against internet service providers hosting websites which advertised and promoted counterfeit goods that infringe those trade mark rights. 

Whereas for infringement of copyrights English law expressly authorises the court to grant orders against the non-infringing intermediary it was contentious whether the same applied to infringement of other intellectual property rights.
The issue arose because the legislator did not pass according law in the process of implementing the EU Information Society Directive, in particular its Article 11 as it was thought to be already and sufficiently provided for by English law under section 37 of the Supreme Court Act 1981.
The court therefore found that due to the governments legislative motives and Britain's obligation to implement EU law section 37 of the Supreme Court Act should be interpreted to authorise the court to grant blocking orders against the internet service providers being intermediates to trade mark infringements.