Kontent i Pravo v. Masterhost Presidium of the Supreme Arbitration Court of the Russian Federation, Judgment of 23 December 2008, Nr. 10962/08 Translation and Comment

This Judgment by the Presidium of the Supreme Arbitration Court of the Russian Federation can be considered as a landmark ruling for Internet Service Provider’s (ISP) liability. The Court stipulates for the first time concise principles under which circumstances an ISP shall be exempt from liability for transmitting copyright infringing content. But due to the legislation on ISP liability in the Russian Federation it depends on the type of information which rules of liability apply to ISP. As far as a violation of intellectual property rights is claimed, the principles given now by the Supreme Arbitration Court are applicable, which basically follow the liability limitations of the so called EU E-Commerce Directive. But, furthermore, preventive measures that are provided in service provider contracts to suppress a violation through the use of services should be taken into account as well. On the other hand, as far as other information is concerned the limitations of the respective Information Law might be applicable which stipulates different liability requirements. This article gives a translation of the Supreme Arbitration Court’s decision as well as a comment on its key rulings with respect to the legal framework and on possible consequences for practice.

Google Images German Federal Court Entscheidung vom 29.04.2010, I ZR 69/08 With an English Introduction

The long-awaited verdict by the German Federal Court of Justice towards Google image search has drawn much attention to the problem of copyright infringement by search engines on the Internet. In the past years the question has arose whether the listing itself in a search engine like Google can be an infringement of copyright. The decision is widely seen as one of the most important of the last years. With significant amount of effort, the German Fede- ral Court tried to balance the interests of the right holders and those of the digital reality.

Hard Court Heroes

Bundesgerichtshof (German Federal Court of Justice) Case I ZR 60/09, Judgement of 28 October 2010 (“Hartplatzhelden”)

Diverse Readings of the Court of Justice Judgments on Copyright Work

EU law’s impact on the meaning of the copyright work for a long time seemed limited to software and databases. But recent judgments of the CJEU (Infopaq, BSA, FootballAssociation [Murphy], Painer) suggest we have entered an era of harmonization of copyright subject-matter, after decades of focus on the scope of exclusive rights and their duration. Unlike before however, it is the Court and not the legislator that takes centre stage in shaping pivotal concepts. This article reviews the different readings and criticisms the recent case law on copyright works evokes in legal doctrine across the EU. It puts them in the wider perspective of the on-goingdevelopment towards uniform law and the role of the preliminary reference procedure in that process.

Spanish Supreme Court Rules in Favour of Google Search Engine... and a Flexible Reading of Copyright Statutes?

On 3 April 2012, the Spanish Supreme Court issued a major ruling in favour of the Google search engine, including its ‘cache copy’ service: Sentencia n.172/2012, of 3 April 2012, Supreme Court, Civil Chamber.* The importance of this ruling lies not so much in the circumstances of the case (the Supreme Court was clearly disgusted by the claimant’s ‘maximalist’ petitum to shut down the whole operation of the search engine), but rather on the court going beyond the text of the Copyright Act into the general principles of the law and case law, and especially on the reading of the three-step test (in Art. 40bis TRLPI) in a positive sense so as to include all these principles. After accepting that none of the limitations listed in the Spanish Copyright statute (TRLPI) exempted the unauthorized use of fragments of the contents of a personal website through the Google search engine and cache copy service, the Supreme Court concluded against infringement, based on the grounds that the three-step test (in Art. 40bis TRLPI) is to be read not only in a negative manner but also in a positive sense so as to take into account that intellectual property – as any other kind of property – is limited in nature and must endure any ius usus inocui (harmless uses by third parties) and must abide to the general principles of the law, such as good faith and prohibition of an abusive exercise of rights (Art. 7 Spanish Civil Code).The ruling is a major success in favour of a flexible interpretation and application of the copyright statutes, especially in the scenarios raised by new technologies and market agents, and in favour of using the three-step test as a key tool to allow for it.

Revisiting cometary bow shock positions

The Rosetta spacecraft will arrive at comet 67P/Churyumov–Gerasimenko in 2014 and will escort the comet along its journey around the Sun. The predicted outgassing rate of the comet and the solar wind properties close to its perihelion at 1.24 AU lead to the expectation that a cometary bow shock will form during the escort phase. Since the forecasts of the subsolar stand off distances differ, this study revisits selected models and presents hybrid simulations of the comet–solar wind interaction region performed with the A.I.K.E.F. code. It is shown that small variations of the solar wind parameters will shift the bow shock position considerably. In addition, a model is presented that reproduces the bow shock distances observed in the hybrid simulations.

The free escape continuum of diffuse ions upstream of the Earth's quasi-parallel bow shock

The Earth's bow shock is very efficient in accelerating ions out of the incident solar wind distribution to high energies (≈ 200 keV/e). Fluxes of energetic ions accelerated at the quasi-parallel bow shock, also known as diffuse ions, are best represented by exponential spectra in energy/charge, which require additional assumptions to be incorporated into these model spectra. One of these assumptions is a so-called "free escape boundary" along the interplanetary magnetic field into the upstream direction. Locations along the IBEX orbit are ideally suited for in situ measurements to investigate the existence of an upstream free escape boundary for bow shock accelerated ions. In this study we use 2 years of ion measurements from the background monitor on the IBEX spacecraft, supported by ACE solar wind observations. The IBEX Background Monitor is sensitive to protons > 14 keV, which includes the energy of the maximum flux for diffuse ions. With increasing distance from the bow shock along the interplanetary magnetic field, the count rates for diffuse ions stay constant for ions streaming away from the bow shock, while count rates for diffuse ions streaming toward the shock gradually decrease from a maximum value to ~1/e at distances of about 10 RE to 14 RE. These observations of a gradual decrease support the transition to a free escape continuum for ions of energy >14 keV at distances from 10 RE to 14 RE from the bow shock.