Hard Court Heroes

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

Copyright, Interfaces, and a Possible Atlantic Divide

Recent copyright cases on both sides of the Atlantic focused on important interoperability issues. While the decision by the Court of Justice of the European Union in SAS Institute, Inc.v. World Programming Ltd. assessed data formats under the EU Software Directive, the ruling by the Northern District of California Court in Oracle America, Inc. v. Google Inc. dealt with application programming interfaces. The European decision is rightly celebrated as a further important step in the promotion of interoperability in the EU. This article argues that, despite appreciable signs of convergence across the Atlantic, the assessment of application programming interfaces under EU law could still turn out to be quite different, and arguably much less pro-interoperability, than under U.S. law.

Virtues and Perils of Anonymity: Should Intermediaries Bear the Burden?

On October 10, 2013, the Chamber of the European Court of Human Rights (ECtHR) handed down a judgment (Delfi v. Estonia) condoning Estonia for a law which, as interpreted, held a news portal liable for the defamatory comments of its users. Amongst the considerations that led the Court to find no violation of freedom of expression in this particular case were, above all, the inadequacy of the automatic screening system adopted by the website and the users’ option to post their comments anonymously (i.e. without need for prior registration via email), which in the Court’s view rendered the protection conferred to the injured party via direct legal action against the authors of the comments ineffective. Drawing on the implications of this (not yet final) ruling, this paper discusses a few questions that the tension between the risk of wrongful use of information and the right to anonymity generates for the development of Internet communication, and examines the role that intermediary liability legislation can play to manage this tension.

New insights regarding the incidence, presentation and treatment options of aorto-oesophageal fistulation after thoracic endovascular aortic repair: the European Registry of Endovascular Aortic Repair Complications

OBJECTIVES To review the incidence, clinical presentation, definite management and 1-year outcome in patients with aorto-oesophageal fistulation (AOF) following thoracic endovascular aortic repair (TEVAR). METHODS International multicentre registry (European Registry of Endovascular Aortic Repair Complications) between 2001 and 2011 with a total caseload of 2387 TEVAR procedures (17 centres). RESULTS Thirty-six patients with a median age of 69 years (IQR 56-75), 25% females and 9 patients (19%) following previous aortic surgery were identified. The incidence of AOF in the entire cohort after TEVAR in the study period was 1.5%. The primary underlying aortic pathology for TEVAR was atherosclerotic aneurysm formation in 53% of patients and the median time to development of AOF was 90 days (IQR 30-150). Leading clinical symptoms were fever of unknown origin in 29 (81%), haematemesis in 19 (53%) and shock in 8 (22%) patients. Diagnosis could be confirmed via computed tomography in 92% of the cases with the leading sign of a new mediastinal mass in 28 (78%) patients. A conservative approach resulted in a 100% 1-year mortality, and 1-year survival for an oesophageal stenting-only approach was 17%. Survival after isolated oesophagectomy was 43%. The highest 1-year survival rate (46%) could be achieved via an aggressive treatment including radical oesophagectomy and aortic replacement [relative risk increase 1.73 95% confidence interval (CI) 1.03-2.92]. The survival advantage of this aggressive treatment modality could be confirmed in bootstrap analysis (95% CI 1.11-3.33). CONCLUSIONS The development of AOF is a rare but lethal complication after TEVAR, being associated with the need for emergency TEVAR as well as mediastinal haematoma formation. The only durable and successful approach to cure the disease is radical oesophagectomy and extensive aortic reconstruction. These findings may serve as a decision-making tool for physicians treating these complex patients.

Double Standards? Veils and Crucifixes in the European Legal Order

Comparing the treatment of Islamic veils and Christian crucifixes by the European Court of Human Rights, this paper re-examines the charge of “double standards” on the part of this guardian of the European legal order, which is seen as disadvantaging Islam and favoring Christianity. While this is proved partially correct, the paper calls for a more differentiated treatment of the issue. For one, there is a modicum of consistency in the European Court’s decisions, because they are all meant to further “pluralism”. Only, Islam and Christianity fare differently in this respect, as “threat” to and “affirmation” of pluralism, respectively. This distinction hinges on Islam’s compatibility with the liberal-secular order, on which the jury is out. A possible way out of the “pluralism v. pluralism” dilemma, I argue, is signaled in the European Court’s recent decision in Lautsi v. Italy (2011), which pairs a preference for “culturalized” Christianity with robust minority pluralism.