German Constitutional Court Blocks Napster Suit

djmutex writes "In an urgent ruling, the German Constitutional Court has temporarily blocked the Napster copyright violations class action of several American recording companies and artists against Bertelsmann. The court decided that the German court in Düsseldorf, which was, according to international conventions, required to serve the writ, may not do so until the Constitutional Court has checked that the suit does not violate Bertelsmann's rights granted by the German constitution. Since, according to those agreements, the service is a precondition for both the suit to proceed in the U.S. as well as the later acceptance of the U.S. ruling in Germany, the lawsuit is for now halted. It is unclear when the Constitutional Court will definitely decide, but it is not generally famed for its tempo on final rulings, and it also stated in the press release (in German) that constitutional rights could possibly be violated if "proceedings before state courts are obviously abused to discipline competitors through public media pressure and the risk of a conviction"." Reuters has a summary.

Google trans (sorry no breaks, http trans no work)

[switcha]

The second senate of the Federal Constitutional Court forbade the court submitted damage suit of a group of US of American music author and publishing houses of the complaint guide (BF), American before US, today in the way of the provisional arrangement of the president of the higher regional court Duesseldorf for the duration of six months, at the latest up to a decision over the constitutional complaint, the Bertelsmann AG to let set in Germany. It concerns in the express procedure the following: The plaintiffs of the US-American output procedure state, the BF is in the meanwhile insolvent music exchange stock exchange "Napster" been and to that extent also for possibly copyright infringements committed by the music exchange stock exchange responsible involved. In the complaint procedure introduced as collecting complaint payment of damages at a value of 17 billion US dollar is stressed. The feed of the klageschrift is on the one hand condition for process in US American right, on the other hand one it is after German civil proceedings the condition for the later acknowledgment of the foreign judgement. The president of the higher regional court Duesseldorf granted the feed request of the plaintiffs for feed as responsible "central authority" after that Hague conventions over the feed of judicial and documents out of court abroad (HZUe) positively and issued a feed arrangement. The zustellungsversuch with the BF failed however because of nonacceptance of the document. The BF remained with their thereupon request posed for judicial decision against the feed arrangement before the higher regional court Duesseldorf without success. Hiergegen raised it in the main thing constitutional complaint. It makes an injury of its fundamental rights from art. 12 exp. 1 and art. 14 exp. 1 GG as well as from art. 2 exp. 1 GG valid. For its request for provisional legal protection it refers to the high probability of a forthcoming further zustellungsversuchs. With the feed the impairments of its fundamental right positions would occur and its business concern would negatively affect. From the reasons of the decision follows: 1. The constitutional complaint in the main thing procedure is neither inadmissibly nor obviously unfounded. The domestic legal order is not made fundamental the test yardstick for a feed after the HZUe. Exeptionally a feed request can be rejected however due to the reservation in the HZUe, if the asked state considers the feed suitable to endanger its sovereignty rights or its security. Federal Constitutional Court has decided in this connection already that the grant of legal aid does not hurt the general freedom of action in connection with the constitutional state principle by the feed of a complaint, with which requirements on punishing payment of damages are made valid after US-American right. With the fact however it remained open whether the feed of such a complaint with art. is to be agreed upon 2 exp. 1 GG in connection with the constitutional state principle, if the goal aimed at with the foreign complaint offends obviously against indispensable principles of a liberal constitutional state. If procedures before national courts in an obviously abusive way are used, in order to make with publizistischem pressure and the risk of a condemnation a market participant gefuegig, this German constitutional law could hurt. Clarifying the question, whether this border is exceeded in the available case, remains reserving the main thing procedure. This is more near implemented in the decision in detail. 2. The decision to favour of the BF is issued due to a consequence consideration. If the provisional is issued request in accordance with arrangement, although the constitutional complaint turns out unfoundedly later however than, the feed of the complaint in the way of the legal aid would have only retarded. Irreparable prejudices for the plaintiffs of US of American output procedure do not connect themselves with it recognizably. However if the decree of the provisional arrangement is omit

Time frame

[Baumi]

It is unclear when the Constitutional Court will definitely decide[...]

I'm a German, but since IANAL, my legalese isn't up to scratch, so I might be wrong here, but I think that in the press release it says something about a 6 month time frame:

Der Zweite Senat des Bundesverfassungsgerichts hat heute[...] der Präsidentin des Oberlandesgerichts Düsseldorf für die Dauer von sechs Monaten, längstens bis zu einer Entscheidung über die Verfassungsbeschwerde untersagt, die [...] Schadensersatzklage [..] zustellen zu lassen.

Rough translation:

"The 2nd chamber of the constitutional court today ruled that the president of the Düsseldorf court may not serve the writ for a six month time period, or at the utmost until there's been a decision about the constitutional complaint."

Now there's probably a lot been lost in the translation, but to me this sounds like the court isn't allowed to serve the writ until either the constitutional court has made a decision or 6 months have passed.

But again, IANAL and I may very well have mis-interpreted (and thus mis-translated) that part.

Jens

Re:Well Obviously...

[Wyatt Earp]

Well obviously the difference doesn't lie in the Constitutions of the United States and Germany but in the way the courts handle a situation like this.

In the United States a Corporation has the rights of an individual.

Santa Clara County v. Southern Pacific Railroad
Under the Fourteenth Amendment of the Constitution, corporations are treated as individuals; therefore, their taxes should be assessed at a smaller value, the same way it is done for individual property owners.

This case is often cited in other cases because it stands for the principle that the word person in the Fourteenth Amendment applies to corporations as well as natural persons and both are entitled to the equal protection of the laws under the Constitution.

So in the United States the issue wouldn't be about corporations against the people, but about the rights of an individual to copywritten materials.

If you were to read the description of the situation on the /. front page or in the Economic Times you'd see that it's not so much about the People vs. the Corps but about the fact that in Germany you can't carry about a case in the media and expect that it is still constitutional to proceed with the case, as well as the fact that media pressure and threats of court orders don't fly there.

"The Federal Constitutional Court said it stopped the delivery because it could not rule out that the lawsuit, filed by a group of U.S. music publishers in Manhattan, would violate Bertelsmann's constitutional rights in Germany.

"If lawsuits in (foreign) courts are obviously misused to bend a market player to one's will by way of media pressure and the risk of a court order, this could violate the German constitution," the court said in a statement late on Friday."

Peer to Peer Networks for Legal Music

[MichaelCrawford]

You can avoid getting sued or arrested if you download legal music instead of violating copyright with p2p apps. Many independent and unsigned musicians provide free downloads of their music as a way to promote themselves, for example my friends the Divine Maggees [divinemaggees.com].

There are peer to peer networks for the sharing of legal music. In some cases they use digital signatures to ensure the files are legit. Here's the ones I've found so far:

• Furthur Network [furthurnet.com]
• konspire[2b] [sourceforge.net]
• Monotonik's BitTorrents [gametab.com] - zip files with ~300 MB of MP3s

If you know of any others please let me know [mailto].

Re:Well Obviously...

[Random Walk]

It's not about people or buisinesses, and also not about whether Napster is legal. The press release says: a) The lawsuit may violate essential constitutional principles by seeking to abuse the law to kill a competitor b) If the lawsuit is delayed, nobody will loose anything, but if it proceeds, Bertelsman may suffer from irrecoverable damages. Therefore, it would be inappropriate if the constitutional court would let the lawsuit proceed without deciding on (a) first.

Re:Hmmm.

[Tommy Boomfiger]

Napster may have died, but the program still works. I haven't used it in quite a while now, but there are OpenNap servers which will give the program full utility. The last program I used was called Napigator which allowed the use of other servers.

Like I said, I haven't used it in a while so I don't know how good the servers are anymore. Anyone interested should look at Napigator [napigator.com] for some more info.

What this is about - and what not

[Gorgeus]

To clear up some stuff, this ruling has very little or nothing to do with legality of P2P services. It is about the huge amount of sums companies have to pay others for doing things out of contract. In the US, comps have to pay huge amounts to individuals or other comps as a FINE for what they have been doing which exceeds the damage by far. This is not possible in Germany. You have to proof that there has been a DAMAGE for you, and you have this DAMAGE repaid only. Now, this is what you have to understand to understand the ruling. Below I will roughly translate what our constitutional court said : The country court in Duesseldorf is not allowed to hand in the charge against Bertelmann until further notice. The charge, handed in by Bertelsmann rivals EMI and Universal for 17 Million Dollars MIGHT be against fundamental basics of our justice system. To stop the charge being overhanded, this INTERIM order has been made. The very high amount to get money beyond your damages is not GENERALLY against our constitution. But if trials in front of german courts are misused in an obvious way to gather public attention and press coverage and the risk of being sentenced to make the opponent give in, this might break the german constituion. Wether this has been the case THIS TIME, if to be cleared in the MAIN TRIAL. If this question is answered yes, the charge is not allowed in germany and german courts can't deal with it. Bertelsmann sees itself endangered in it's by the constitution granted rights of possesion and freedom of occupation. Hope this clears it up a bit George

"Interesting"? "Sarcasm" would be more like it.

[gotan]

The american legal system allows to demand ridiculous sums of money, also there's this weird case-law which to my understanding means, that one wrong decision in one court has to be repeated by every other american court, and also that lawyers have to consider not only the given law but any case which might have some remote similarities to the case at hand.

In this case the german court halted the process to decide first if it is constitutional to put a competitor under pressure by demanding the unusually high sums the US-system allows for.

Re:WOW

[thisgooroo]

it might be useful to get the facts straight before spewing nonsense:

1. bertelmann didn't "blatantly create a program for copyright violation". rather, they wanted to convert napster (which existed already) into a service that the pigopolists would consider legit. for that purpose they gave them some financial backing

2. they claim (and apparently they have enough documentation to back that up) that the companies suing now had similar ideas, and they all had discussions about a joint venture for that. that didn't go thrugh because they couldn't agree on how to divvy up the shares. if your attention span is long enough to remember that time, after bertelmann started backing napster there were big announcements of converting napster to a pay service after some software glitches were fixed and the payment software was added

3. based on that, bertelmann claims that the suit is without merit and should be thrown out. they have filed a request for that with the court were the other pigopolists have filed their suit

4. until that request has been ruled on, they consider proceeding with the suit illegal legal harrassment of a competitor, which is illegal under german law.

5. the decision by the german supreme court is to stop delivery of the notice until that is settled, nothing more.

so there is a little bit more to this than your extremely simplistic analysis

Re:WOW

[Alsee]

Mr. College boy was hosting RIAA music on his site.

Technically it is true that he was also hosting a couple of infringing files himself. But that had absolutely nothing to do with what the RIAA attacked him for. They went after him for running a completely content-neutral SEARCH ENGINE.

EFF is a totally useless organization. They protect pirates and vandals [Hamidi]

The EFF is was quite right to defend Hamidi. He was being sued under TRESSPASS STATUTES. Maybe what Hamidi did was wrong - maybe. Perhaps he could/should have been stopped on DIFFERENT legal grounds. But if someone makes harrassing phonecalls to you then you prosecute them hor harrasment. YOU DO NOT PROSECUTE THEM FOR TRESSPEASSING ON YOUR TELEPHONE. In effect that is how they tried to prosecute the Hamidi case.

If the case had been won on those particular legal grounds it would have destroyed the internet as we know it. It would mean that anyone who owns an internet server could convicte you of tresspass for saying anything they don't like if your packets happen to cross their server. If I post on slashdot that "SCO SUCKS" and that packet happens to cross a SCO server on an internet backbone I'm guilty.

Even if we assume Hamidi is a "bad man" and "broke the law", it is still a legal disaster to convict him based on incorrect/bad law. The ends do not justify the means. If they wanted to stop Hamidi then they needed to use different grounds.

-

New online music venture clothed in Napster brand

[despik]

Napster may be long dead, but the name and the ``kitty'' logo of the pioneer online music-swapping program could return to cyberspace before the year is out. Santa Clara-based Roxio Inc., which owns the rights to the Napster name, plans to shelve its current online music service, pressplay, and roll out Napster 2.0 by Christmas, Chris Gorog, Roxio's chairman and chief executive, told The Associated Press. [...]

Check out the full article [bayarea.com]. Yet another competitor to the iTMS.