June 2007

In this edition we look at, amongst other topics, the enforceability of limitation of liability clauses under French law, contrasting approaches to the regulation of online gaming in Belgium and The Netherlands, the application of copyright levies to computer equipment in Germany and two decisions in important IT & E-commerce cases before the UK courts.

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	EC IT and E-commerce Law
Agreement reached on Rome II Graham Smith, London The much-debated Rome II Proposal for a Regulation on the law applicable to non-contractual civil liability now looks set to be formally adopted, following an agreement between the European Parliament and the Council of Ministers on 15 May 2007. Top

Online games of chance to be regulated in Belgium
Laurent Masson, Brussels



Currently in Belgium, gambling on the internet or via mobile phones is prohibited. But as the market for such operations has continued to grow despite this fact, a draft bill is in progress to regulate this market – ensuring consumers are protected and taxation responsibilities fulfilled.

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French Supreme Court strikes out limitation of liability provision from an IT contract where the software publisher breached a material obligation
Sandrine Rambaud, Paris



In a recent decision, the Commercial Chamber of the French Supreme Court held that the breach of a material obligation in an IT contract resulted in the limitation of liability provisions being unenforceable. This is an important case for all parties entering into IT contracts under French law and makes it critical for parties to agree in the contract the list of obligations that should be considered material.

Copyright Protection – Regulatory Authority for Technical Measures rules published
Jeanne Méhaud, Paris



The long-awaited decree setting out the organisational and procedural rules of the Regulatory Authority for Technical Measures (RATM) was issued on 4 April 2007.  The RATM, established under the 2006 French law on Authors' rights and related rights in the digital society, has the power to decide cases where (a) copyright holders are claimed to be using technical means (such as digital rights management) to prevent permitted use of content, including private copying, or (b) the suppliers of technical means of protection are refusing to allow other suppliers access to interoperability information.

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Regional Appeal Court refuses to apply copyright levies to computer printers
Fabian Niemann, Frankfurt



The Regional Appeal Court of Düsseldorf has decided that computer printers cannot be subject to copyright levies under German Law. Although the judgment has been appealed to the Federal Supreme Court and is not yet binding, it is of great importance for the IT industry. For the first time a German court has completely dismissed a copyright levy claim by a collecting society against the IT industry.

German Federal Supreme Court holds online searches of computers illegal
Jan-Peter Ohrtmann, Düsseldorf



The German Federal Supreme Court has ruled that secret online searches of suspects’ computers by the authorities are illegal and cannot be authorised, since current law provides no legal basis for them.

Online intermediaries may have an obligation to monitor content posted by users
Henning Krieg, Frankfurt



Despite heavy criticism from some quarters, the German Federal Supreme Court has reaffirmed its decision from an earlier case that an online intermediary can be obliged under German law to monitor content posted on its platform by users for violation of third party rights.

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Games of chance: a policy change in The Netherlands?
Wienke Zwier, The Hague



The policy on gambling in The Netherlands is restrictive and Dutch law only contains limited possibilities for the offering and promoting of games of chance. Although until recently the Dutch authorities have not actively enforced these limitations, as the popularity of these games increases, particularly over the internet, a possible policy change seems to have taken place and enforcement actions are becoming more of a reality. This raises the question whether Dutch policies are in accordance with the EC Treaty.

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Appeal court upholds computer games copyright decision
Graham Smith, London



The English Court of Appeal has rejected the appeal of Nova Productions against a January 2006 decision dismissing Nova’s claim against Mazooma Games for copyright infringement in high level features of a computer game based on a game of pool.  In the course of his judgment Jacob L.J. made a number of observations that may influence the attitude of the English courts to software copyright infringement cases in the future.

English High Court considers targeting of cross-border online activities
Graham Smith, London



In Dearlove v Combs, decided by the English High Court on 28 February 2007, Kitchin J had to consider whether a defendant’s online activities were targeted at the United Kingdom.  The case is a useful illustration of the factors that an English court is likely to take into account when considering targeting in a trade mark or passing off case. 

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