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As other people here addressed correctly: That ruling is not final. But it is true, that particularly lower German courts (some names are in the news again and

As other people here addressed correctly: That ruling is not final. But it is true, that particularly lower German courts (some names are in the news again and again) have a long record of decisions that just show one thing: Many German judges have completely not understood computers and the internet. While judges might not needed to in general, they at least should take advice -- possibly by their own grandson? -- before they just make that kind of decisions.

pi-err 13y ago
Judges (continental Europe) apply the law. It's a different tradition than common law. They do interpret it though it leads you so far. My guess is that what those decisions mean is that the law needs a big change, especially on responsibility regime inherited from the Napoleon code.
- mtrimpe 13y ago
  Laws are also usually changed by a lower judge deliberately deciding to interpret a law literally, which will mean it gets passed on to higher courts with the authority to (initiate) changes to the law. Not saying that is the case here though, but in law things are often not directly what they seem.
- PythonicAlpha 13y ago
  It is right, that in continental Europe, there is less freedom to judges interpreting the law. In theory they are bound to the law and have no own judging freedom as in the US. BUT: This is theory. When you see the details of many decisions (I did not look into this one), there is still plenty of freedom to "interpret" the law. Also what they have to do is, analyse the situation to interpret the law. When the analysis is wrong, the decision comes out wrong. In many cases, the analysis just showed up plenty of disregard of computer reality. One example lately happened, when a judge thought, that it would be possible to prohibit the viewing of images without the surrounding html file. Everybody with some knowledge of internet knows, that it is not! Thus the judging came out ridiculous ... it must still be challenged. I don't want to defend German laws of course -- they are oftentimes ridiculous to! But there are just plenty of cases, where no law regarding computer techniques plainly exist. Then judges have to go by common law and interpret it for computer usage ... and there the situation analysis is crucial.
- Zuider 13y ago
  Judges in the common law tradition are also obliged to apply the law as written (whether they like it or not). The expression 'interpret the law', when referring to a judge's duties still holds its original legal meaning and intent of simply reading the law as written. This sense of the word 'interpret' came from a time when literacy was rare, and reading was seen as 'interpreting' mysterious symbols on a parchment. Judges do have legitimate leeway to 'interpret' in the modern sense when it is not clear how the written law applies to a given case, but even then they are expected to do this in good faith: they are expected to make the old law apply to the new situation, not to make new laws (i.e. judicial activism), which is outside of their remit.

pi-err 13y ago

Judges (continental Europe) apply the law. It's a different tradition than common law. They do interpret it though it leads you so far. My guess is that what those decisions mean is that the law needs a big change, especially on responsibility regime inherited from the Napoleon code.

mtrimpe 13y ago
Laws are also usually changed by a lower judge deliberately deciding to interpret a law literally, which will mean it gets passed on to higher courts with the authority to (initiate) changes to the law. Not saying that is the case here though, but in law things are often not directly what they seem.
PythonicAlpha 13y ago
It is right, that in continental Europe, there is less freedom to judges interpreting the law. In theory they are bound to the law and have no own judging freedom as in the US. BUT: This is theory. When you see the details of many decisions (I did not look into this one), there is still plenty of freedom to "interpret" the law. Also what they have to do is, analyse the situation to interpret the law. When the analysis is wrong, the decision comes out wrong. In many cases, the analysis just showed up plenty of disregard of computer reality. One example lately happened, when a judge thought, that it would be possible to prohibit the viewing of images without the surrounding html file. Everybody with some knowledge of internet knows, that it is not! Thus the judging came out ridiculous ... it must still be challenged. I don't want to defend German laws of course -- they are oftentimes ridiculous to! But there are just plenty of cases, where no law regarding computer techniques plainly exist. Then judges have to go by common law and interpret it for computer usage ... and there the situation analysis is crucial.
Zuider 13y ago
Judges in the common law tradition are also obliged to apply the law as written (whether they like it or not). The expression 'interpret the law', when referring to a judge's duties still holds its original legal meaning and intent of simply reading the law as written. This sense of the word 'interpret' came from a time when literacy was rare, and reading was seen as 'interpreting' mysterious symbols on a parchment. Judges do have legitimate leeway to 'interpret' in the modern sense when it is not clear how the written law applies to a given case, but even then they are expected to do this in good faith: they are expected to make the old law apply to the new situation, not to make new laws (i.e. judicial activism), which is outside of their remit.