Commons:Loriot Signature Background

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Background

As we know, the apparent co-heiress of his estate, the daughter of Vicco von Bülow (“Loriot”), recently obtained a preliminary injunction issued by the regional court (Landgericht) of Berlin against Wikimedia Foundation to the effect that certain stamps depicting various cartoon-like drawings by Loriot as well as graphical reproductions of her father’s specific “Loriot” signature must be removed from Wikipedia. As regards to the stamps, the Court justified its decision by arguing that their publication in Wikipedia constituted a copyright violation. We chose not to challenge that part of the injuction for the reasons stated above. There was some press that opined on the case. See, e.g.,[1], [2] , [3], [4], [5], [6]. In my personal opinion, I found it unfortunate that there was not a decision to share the Loriot heritage publicly and to license freely the images, which, from my point of view, would have been more in line with the Loriot spirit.

That said, our German lawyers have been reviewing and researching the last part of the injuction for a few weeks. Specifically, with respect to the graphical reproduction of the signature, the judges, while ruling out a copyright infringement, came to the preliminary conclusion that such reproduction is a violation of Loriot’s personality rights. In reaching its decision, the court only heard the representations of the estate. We respectfully disagree.

We feel there is no violation of Loriot’s personality rights and, consequently, the estate's request to the court sought an order that violated our community’s right to free speech.

To be sure, according to the long-standing jurisprudence of the German Constitutional Court (Bundesverfassungsgericht), certain personality rights (“Persönlichkeitsrecht) are not a privilege of the living but also of persons who have passed away. However, while the personality rights of living persons are far-reaching and contain certain rights, such as the the limited right to control personal facts and circumstances published by others, the personality right of the deceased is significantly reduced in scope. The children of the deceased have only the right to stop such statements about the parent when the statement is a “personal insult” within the meaning of the German Criminal Code or a severe distortion of the facts (or truth) about the life and personality of the deceased.

In the case of Loriot’s signature, we fail to see how either requirement has been met.

First, the signature as reproduced in Wikipedia is the true signature of Loriot. Therefore, the publication of the signature in no way tells the users of Wikipedia anything untrue or incorrect about Loriot. Further, a person’s signature is not an “intimate” fact (in terms of German personality law). To the contrary, one could argue that the signature is a personal fact that is actually meant to be communicated to the public or at least certain members of it. Either way, given the reduced scope of deceased persons’ personality rights, the reproduction of a signature, save some unusual circumstances, is simply not a violation of law in our opinion. There is no commendable interest in ensuring that the signature of a deceased person is kept secret, and, considering the fact that the typical “Loriot signature” has been known and publicly recognized for decades makes that result even more obvious.

Second, reproducing and publishing the well-known Loriot signature cannot reasonably be interpreted as insulting to anyone. An “insult”, as the word is interpreted under German criminal law, requires that one has communicated degrading words, gestures, or other inappropriate physical expressions or insinuations to the victim (or to a third person about the victim). None of that has been the case here. Reproducing and publishing the Loriot signature is a neutral act, not a degradation of anyone.

Decisions to be made

Given these results, we feel comfortable taking legal action against the injunction as far as it concerns the Loriot signature. Our German attorneys have recommended us to do so.

I am writing here to ask the community its thoughts on whether we should invest in such a lawsuit. I am inclined to do so, and would even raise some technical points about the injunction in general (which I would prefer not to discuss publicly). Please let me know your thoughts, and, if there is not strong opposition from the community, I will authorize the litigation to help protect our right of free expression, which seems quite appropriate given the values of a legacy like Loriot.

Geoffbrigham (talk) 01:28, 23 December 2011 (UTC)

Questions[edit]

Voting[edit]

Please write down what you are actually voting for to avoid confusion. Thank you.

  • Symbol support vote.svg Support: Sounds like we have a good case. I'm in favour of challenging the injunction. — SMUconlaw (talk) 11:57, 23 December 2011 (UTC)
  • support - the legal evaluation is solid, that court made a serious mistake. And this lapse of the court would even get us about 50% of the attorney's fee back. That's certainly worth fighting for. --h-stt !? 13:03, 23 December 2011 (UTC)
  • Symbol support vote.svg Support --Amga (talk) 13:47, 23 December 2011 (UTC)
  • Symbol support vote.svg Support - per "there is no violation of Loriot’s personality rights" Bulwersator (talk) 14:18, 23 December 2011 (UTC)
  • Symbol support vote.svg Support --NobbiP talk 14:54, 23 December 2011 (UTC) as the 1st uploader of the Loriot stamps to commons
  • Symbol support vote.svg Support as already laid out here and here. --AFBorchert (talk) 18:34, 23 December 2011 (UTC)
  • Symbol support vote.svg Support Reasonable explanation. —DerHexer (Talk) 22:52, 23 December 2011 (UTC)
  • Symbol support vote.svg Support Reasonable explanation. --Joergens.mi (talk) 10:36, 24 December 2011 (UTC)
  • Symbol support vote.svg Support it's okay and quite appropriate. alofok* 10:45, 24 December 2011 (UTC)
  • I Symbol support vote.svg Support investing in a lawsuit in the signature matter. I also want to emphasize that I personally very much appreciate that WMF does not consider investing in challenging the "PD or not PD" bit, an obviously hopeless endeavour given the flaws of the district court decision that seem to be all too obvious to everyone except for the Wikipedia community. Donation money should not be wasted on cases nobody in the legal world thinks can be won at all, but, aside from inevitable court confrontations, on issues where we are exploring new legal ground and our attorneys see a reasonable chance to convince a court. This is an essential responsibility towards everybody who donates funds to the project. —Pill (talk) 11:12, 24 December 2011 (UTC)
  • Symbol support vote.svg Support Sounds solid. --Rosenzweig τ 00:14, 25 December 2011 (UTC)
  • Symbol support vote.svg Support --Nicor (talk) 17:57, 26 December 2011 (UTC)
  • Symbol support vote.svg Support --Nightflyer (talk) 22:15, 26 December 2011 (UTC)
  • Symbol support vote.svg Support Regards, PETER WEIS TALK 12:48, 28 December 2011 (UTC)
  • Symbol support vote.svg Support ack Pill. --buecherwuermlein 01:08, 30 December 2011 (UTC)
  • Symbol support vote.svg Support Ack Pill. --Leithian (talk) 11:49, 31 December 2011 (UTC)
  • Symbol support vote.svg Support The injunction should be challenged.
  • Neutral - I don't know if the injunction should be challenged or not, but I don't think it would be successful. Commons respects local laws, and it seems like we would be crossing into that territory. en.wiki could easily host it without any legal or ethical problems because it abides by US law. The rest, not so much. I believe that complex signatures are copyrightable, to be honest. Ottava Rima (talk) 01:53, 3 January 2012 (UTC)
The decision regarding the signature was not based on copyright but the court stated that the publication of the signature would be a violation of personality rights. This is a unique claim, totally alien to German law, and can only be explained by a serious flaw by the court - or they (the lowest order of courts in Germany) just invented a new type of personality rights that had never been called for anywhere in the legal scripture. Challenging it (and winning) would recover about 50% of the legal fees of the original law suit. That sounds like a good deal to me. rgds and a happy new year --h-stt !? 15:37, 4 January 2012 (UTC)

Discussion and other ideas[edit]

Note: Some discussion moved here from User talk:Philippe (WMF).


Hi Geoff, thank you very much for this good wrap up and the details and plans regarding the signature (for which I certainly support the plans). However, probably more interesting to many here are the facts about the stamps: what is your decision here? You know, we have our policy/guideline pages (e.g. Commons:Stamps#Germany) to adjust if they are wrong according to current best knowledge to continue to provide a free media repo. I hope that German stamps are PD - but facts seem to force us to bring us to the opposite conclusion. Thanks for your further comments! Cheers --Saibo (Δ) 02:35, 23 December 2011 (UTC)
Hi Geoff! Thanks for your statement. I agree; the foundation should invest in such a lawsuit. But - as Saibo said; we're much more interested in the injunction concerning the stamps. Could you please describe: how did you come to the decision: "We chose not to challenge that part of the inju(n)ction for the reasons stated above."? Thanks in advance --Sir James (talk) 06:14, 23 December 2011 (UTC)
Geoff, I am glad that you are challenging the injunction at least in regard to the signature and I agree with your reasoning. I regret, however, that you are not going to challenge the injunction regarding the stamps as there are strong indications that they keep their PD status even after the privatisation of the German postal service as they are still issued on behalf of the German government (Ministry of Finance). While this case is surely more complex than that of the signature, it would be surely worth the effort as this ultimately affects all German stamps published since the privatisation, not just those from Loriot. Regards, AFBorchert (talk) 06:19, 23 December 2011 (UTC)
I understand the frustration about the decision not to challenge the injunction on the merits with respect to the stamps for the reasons set out above. Without commenting on this particular case, there are often reasons not to pursue an opinion on the merits because it may result in worse precedent. That said, there may be an opportunity to challenge certain technical aspects of the injunction. As noted above, we are formulating no opinion on German stamps in general since that is an issue for the community to decide. Geoffbrigham (talk) 06:43, 23 December 2011 (UTC)
Well, then. If these are the whole results of the consultations since 8th of October, then for me it's EOD now here. I will be listened to elsewhere, if my german club WMDE will also accept permanently the decision of the Regional Court of Berlin to the brands. Greets --Sir James (talk) 07:39, 23 December 2011 (UTC)
Geoff, thank you for elaborating on the matter. Like AFBorchert, I am grateful that you have come to the conclusion that it would be worth it to take legal action against the injunction as far as it concerns the Loriot signature, and I support your move. I wonder, however, whether the matter of the signature really can be separated in legal terms from the rest of the case. Confining the case to the signature would certainly win the case against Loriots heiress, but it would not bring the extent of certainty in legal terms that we need in the long run. If the Foundation is eligible to publish a German stamp on the web that depicts Loriot's signature this is still a German stamp. So I think you should also take legal action against the opinion that German stamps are no more in the public domain ever since German postal services were privatised. We need to know now what the courts decide in fact in order to run a media repository such as Commons.--Aschmidt (talk) 13:05, 23 December 2011 (UTC)
"... reasons not to pursue an opinion on the merits because it may result in worse precedent." Geoff, why did we wait that long then? You do not want to fight against the court order - so it is valid, right? Then we need to change our rules regarding German stamps and delete quite a big mass. --Saibo (Δ) 15:13, 23 December 2011 (UTC)
Hi Saibo, not quite sure if I understand your point. Would you be willing to challenge the stamp decision even if it turns out that some were right that we may lose legally? Of course, we would argue vigorously on the merits, but, if I understand you correctly, you would like a final decision one way or the other, correct? As some have suggested, there are reasons not to turn a preliminary decision into a final decision, but, as I understand, that is less relevant to the you and the community. Am I reading that correctly. Thanks much. Geoffbrigham (talk) 02:30, 25 December 2011 (UTC)
I cannot speak on behalf of more people than my own (I am too uninvolved in the stamps issue). Thanks for your question. I do not mean that you should go to a court regarding stamps in general - but we need rules (based on legality) here. Our current rules say (AFAIK) that all German stamps are PD. However, as I understand the community discussion (which is now also backed by the einstweilige Verfügung) there is strong evidence (but also some/many/Ididntcount users who think that is irrelevant) that German stamps (at least the new ones) are not PD. So, irrelevant of a "fight" in court or not it would be helpful to know (the position/thoughts) of the lawyers (and or you) who are working on the "stamps in general" case. Sure - a fight at court would bring us probably a bit (not more as it is not a very high court) more relevant answer but I do not think it is useful to go this way.
I ask you to read the community discussion at de:Wikipedia_Diskussion:Bildrechte#Text.C3.A4nderungen_Briefmarken - some users wanted to do a policy change at dewp: German stamps are not longer regarded as "amtliches Werk".
Again: I do not speak on behalf of anybody. Cheers --Saibo (Δ) 03:29, 25 December 2011 (UTC)
Could please someone clean up the inclusion mess here? ;-) If that discussion is not meant to be done here then it would be best to simply place a link here to another page.... --Saibo (Δ) 15:08, 23 December 2011 (UTC) fixed by Philippe (WMF) - thanks! --Saibo (Δ) 22:07, 23 December 2011 (UTC)
The signature issue can be separated from the stamp issue quite easily in court. But, if we decide to challenge the injunction on the signature issue, we may, at the same time in the same procedures, apply for a nullification of the injunction as a whole and thus force the court to decide the stamp issue as well. In that case, we would ask our attorneys to bring to the court’s attention the prevailing community’s view that the stamps fall into the public domain, and we would ask our lawyers to take a strong legal stand on this position. We of course will need to accept any decision from the court (and, if adverse, we may not appeal for cost reasons). A complementary approach is to challenge the injunction on technical grounds (which we do in conjunction with the challenge on the merits). But, with either of these approaches, I want people to clearly understand that we cannot guarantee success. Given the desire from the community to have a decision one way or the other on stamps (without concern that the final decision, which may be adverse, may become a more binding precedent), we can take that approach. Of course, this will cost WMF time and resources, but I'm willing to consider addressing the merits of the stamp issue in court as long as people have proper expectations. I would ask the community to put together a wiki outlining the various legal arguments our attorneys should consider in challenging the stamps issue. Thanks for your feedback, which, as you can see, is influencing my thinking on this. Cheers. Geoffbrigham (talk) 23:57, 23 December 2011 (UTC)
I am far from being an expert on suitable tactics in this field but your approach sounds good to me. I appreciate in particular your intention to work along with the community to collect legal arguments in one of our wikis (I suggest to do this here at Commons). Regards, AFBorchert (talk) 07:23, 24 December 2011 (UTC)
I would only emphasize that there are no guarantees if we include the stamp issue. If we lose the stamp issue but win the signature issue (a possible scenario), the press may report it as a loss (when in fact we would see it as a win). This is where I want to ensure expectations are set. That said, I'm willing to listen to the community consensus on this one.
@AFBorchert. Agreed. I suggest that, for those who are interested, we start laying out the arguments on the stamp issue on this page. People should feel free to contribute in German. We can evaluate the arguments and decide on next steps. I would ask that we try to get this summary of arguments done by January 1 since we will likely move quickly after the new year. Many thanks. Geoffbrigham (talk) 15:36, 24 December 2011 (UTC)
Hi all ... hope everyone is having a happy holiday. If you want us to proceed on the stamps issue, please let me know. To be honest, I'm seeing a mixed reaction in the above threads and polling. If we do want to proceed forward with the stamp issue, I would like to ask people to set out possible legal arguments to support that position (on this page, perhaps). I know a number of people have strong views on this and believe the law supports the position. I want to make sure we consider all the arguments before making a final decision. Many thanks again for the comments to date. Geoffbrigham (talk) 14:37, 27 December 2011 (UTC)

Dear all, the current discussion is mainly lead in English, which is quite an issue for some contributors in German Wikipedia. Inviting people to contribute in German is nice, but won't help without a translation of this page in German. User:Raymond brought this discussion in German Wikipedia on December 23rd (Geoff already commented over there).

A general approach to this situation: Based on the verdict returned by the Landgericht Berlin (regional court of Berlin) we moved to discuss the question of signatures (starting from Loriot's signature, but with an interest in clarifying the situation for signatures in general) within German Wikipedia and on the Commons. After noticing a certain favour for community based decisions on copyright questions we must be aware of the following situation: copyright questions answered within the German Community are following the copyright laws of Germany, Austria and Switzerland (based on the concept of Lex loci protectionis, the most protective copyright law applies). This is the community consensus on how to handle copyright questions in German Wikipedia, which afaik has not proven itself in a legal case so far (correct me if I'm wrong). For further reading see this (German). The Commons on the other hand follow a more complex system: depending on the very situation the uploader has to comply with up to three different copyright laws (see this). If we'd like to upload the signature of Loriot to the Commons (based on the assumption that this is an artwork) we would have to follow the German and U.S. copyright law to do so and maybe another copyright law, given we are not located in the U.S. or Germany.

A particular approach to this situation: Based on the current Commons opinion on signatures which can be found here, uploading Loriot's signature would be perfectly okay from a copyright POV. Based on the high threshold of originality (Schöpfungshöhe) in German copyright law (which is mandatory to achieve work status), this signature is rather unlikely to be considered an artwork. As Geoff wrote, the judges ruled out a copyright infringement - therefore the questions of signatures is not a mere issue related to copyright questions, but to other issues, which are not yet properly specified in Commons:When to use the PD-signature tag, except for the reuse hint. The post mortal personality rights (German), as stated above, are part of the consideration for the Loriot signature case. Looking at the database of the Deutsches Patent und Markengericht (German Patent and Trade Mark Office) we'll notice that Susanne von Bülow registered the Loriot signature as a Wortmarke and as a Wort-/Bildmarke (two kinds of trademarks in German law). Based on the official guideline on non-copyright restrictions, it's perfectly okay use trademarked content as long as it does not violate any copyright. We do have info on the interaction of international copyright law when uploading media files to the Commons, but we don't (afaik) when it comes to the interaction of international personality rights and trademarks (given the assumption the WMF respects local personality rights and trademark laws). Returning to the Loriot signature: in the absence of this information, I'd renounce the upload of Loriot's signature on the Commons for now.

Conclusion: It's almost impossible to aggregate this set of guidelines, policies and the like for the average user, then understand it and apply it to the content he intends to upload. Having the WMF taking legal action in order to defend the position elaborated above for the particular Loriot signature would be great. Still, general legal feedback from either the WMF or the respective chapters is needed to clarify the situation for as many Wikimedia projects as possible. Yes that costs time, money and involves a lot of manpower. The output could be an easy to understand (for non-lawyers that is) guideline on whether to upload a signature or not. Features like the Europeana Public Domain calculator and other automated processes have shown that finding answers to these questions is possible, albeit the final decision depends on the unique circumstances of each and every media file.

Final words: Community consensus can't always answer legal questions. Translation is mandatory to involve the non-English-speakers. Legal feedback from the WMF is also needed for other issues within the Wikimedia projects. Lacking usability prevents people from complying with legal conditions. Uploaders currently have to waste their time for searching instead of finding.

Regards, PETER WEIS TALK 15:13, 28 December 2011 (UTC)

Are there more discussions happening on de projects? If yes, could they be summarized here? Thanks, Nemo 00:17, 3 January 2012 (UTC)
@Nemo, these are the discussions that I'm following.
The way I'm reading this page, we should challenge the injunction on the signature issue (where, without any guarantees, we have a good chance of prevailing). It is unclear to me whether there is a consensus for us to challenge the stamp issue (which, in theory, could result in another negative decision). In the end, we will make the right legal decision, but I would find it useful to hear whether we have a consensus one way or the other on the stamp issue. BTW, all the above comments and polling have been extremely helpful. Thank you for taking the time to share your views. Geoffbrigham (talk) 05:15, 3 January 2012 (UTC)
Geoff, what kind of consensus are you trying to find here? 18 voters doesn't sound too good to me, to be honest. Do you think it's wise to scale this question to the next level (i.e. establishing a poll that is promoted on mailing lists, de:Kurier, en:Signpost, several village pumps, maybe even using the "banner ad" to create awareness). Having consensus amongst 18 voters so far, is consensus amongst a group of people who have found their way here. Yet this might not represent different communities working in different languages and in different projects. It might be harmful to make decisions based on 18 votes (including 17 supports) and argue with people who are against this decision afterwards, since we are unaware if there's a hidden majority against legal action, which we failed to address so far. In a worst case situation this will end similar to the image filter discussion in German Wikipedia: people opposing because they weren't addressed properly in the first place. Your feedback on these considerations would be great. Regards, PETER WEIS TALK 09:07, 3 January 2012 (UTC)
Peter, thanks for your thoughtful comments. I don't think it rises to the level of the image filter, and therefore I would submit that we should not take these types of legal questions to the next level. In the end, we can't make legal decisions by polls, but getting the thoughts of those who are following the discussion can be helpful in my decision on how to proceed, as has been the case here. Also for timing purposes I want to file shortly, so time doesn't permit that next level of engagement. All that said, my original proposal was to challenge the injunction on the signature issue and to challenge the injunction as a whole on technical grounds. Given the feedback from those following the discussion, I feel comfortable with this approach which is logical from a legal stratgy standpoint. I'm less inclined to challenge the stamp issue directly, and my take-away is that we will consult our counsel again on that possibility, but, in the end, I will make the final decision, while weighing the feedback that we have received to date. Given that this is first time we have reached out to this degree for thoughts on legal strategy (which I think is a good practice), the process may not be perfect. But we can refine it as we go along. Does this make sense? Geoffbrigham (talk) 11:00, 3 January 2012 (UTC)
Yes, it does. I think that this discussion supports this way to proceed; as for the stamps, there's obviously the desire to get the decision overturned, but no clear idea about how to do it: that's why I asked about German discussions to know whether they contain more useful points, but if they don't arrive here we can only suppose there are none. Nemo 13:37, 3 January 2012 (UTC)

Nemo, the major discussion on dewiki was http://de.wikipedia.org/wiki/Wikipedia_Diskussion:Bildrechte#Text.C3.A4nderungen_Briefmarken (I was involved). Aside from criticizing the current policy to accept stamps based on the fact that pracically none of a good dozen of legal commentaries available on German copyright law does support the community's view, "Suhadi Sadono" and yours truly objected to relying on the district court ruling on legal grounds we outlined over the course of the discussion (from what I see, all these points have been raised in the literature previously) -- some users agreed, most did not. Those who opposed did apparently not do so based on disagreement with the particular legal issues we raised (in fact, after a very brief exchange in the beginning, I cannot even find any mention of that later) but simply because the district court, to quote one commenter, "obviously had a different view". As far as I am aware, however, there was no serious argumentative exchange regarding the court's reasoning at any point. It is hence no surprise to me that after the huge outcry within the German-language community about the decision to delete the files, the discussion here, despite mutiple prominently-placed pointers to this page on the German-language Wikipedia, did not spur any debate on possible justifications for challenging the court's decision in regard to the status of protection of the stamps. —Pill (talk) 16:32, 3 January 2012 (UTC)

After reading this, would it be better to serve the "Impressum" in English only? BTW, I am really surprised how this court constructed its responsibility. And I suppose that Loriot's daughter's legal representation acted in bad faith just sending an e-Mail instead of contacting the DCMA-office. Also (but that does not matter here) I don't understand her. Usage in Wikipedia does not harm the sale of "Loiriot products". She must have bad advisers is simply unnecessarily aggressive. -- RE rillke questions? 18:21, 12 April 2012 (UTC)

The main interest behind this sentence is an economic one. I don't think that pursuing this interest is "unnecessarily aggressive", especially if noticing that several Wikimedians have done the same by sending written warnings to copyright violators of their work. Nonetheless, a best case solution would have been to get a permission to use the stamps under the terms of a free licence. Providing an English Impressum for a German audience is not really useful. On the one hand, people who are interested in getting the desired information and don't understand English would suffer from this condition and on the other hand future claims by legal advisers of copyright holders are likely to comply with this requirement. As for your comment on the "construction of responsibility": there are numerous decisions by the Federal Court of Justice of Germany answering this question in the same way (for further reading see dejure.org). The issue with Wikipedia is not about embedding them in articles - it's about promoting the files as being part of the public domain and encouring people to reuse them - which they are not, as we have seen in this sentence. Regards, PETER WEIS TALK 22:59, 12 April 2012 (UTC)
“The issue with Wikipedia is not about embedding them in articles - it's about promoting the files as being part of the public domain and encouring people to reuse them” - must have missed this; in this case it would make sense. -- RE rillke questions? 06:01, 13 April 2012 (UTC)

Conclusion[edit]

I would like to thank everyone for their thoughts here, which were helpful in considering the issue.

In light of the above, I have instructed counsel to file an opposition to the Loriot injunction in the coming weeks. Our focus will be on the signature issue, which will serve as our measurement of success. That is, if we win that issue, I will consider our overall efforts to be successful.

As a secondary argument, I have also asked counsel to raise a procedural challenge against the injunction as a whole, which in theory could annul the entire injunction if successful. Success on this issue will depend on how the court views a relatively complex issue on what constitutes proper service in the United States under German law.

Since we will challenge the injunction as a whole, we may also raise a merits argument against the stamps issue (though we have not yet made a final decision). By doing so, we would be only allowing the court to reconsider the issue. That said, as we build expectations here, we should understand that the court may likely reiterate its previous position. The only benefit may be greater clarity of the law (even though we do not receive a favorable position). Although we may decide to raise the stamps issue directly given our decision to challenge the injunction, we are not measuring success based on the court decision on the stamp issue. Geoffbrigham (talk) 11:52, 6 January 2012 (UTC)

Case Status[edit]

On January 26 we filed our opposition, and we just confirmed that the defendant has been given until March 1 to file its response. The court has scheduled a hearing of the case for March 13 at 10 a.m. (CET). Although nothing is certain, the court may decide on that day whether the injunction is lifted or sustained. Geoffbrigham (talk) 16:42, 1 March 2012 (UTC)

Today, March 13, the hearing took place, and the parties intensively discussed their respective positions. The court however did not deliver a ruling as expected, postponing its judgment until March 27. Geoffbrigham (talk) 16:47, 13 March 2012 (UTC)

Thanks, Geoff. Cheers --Sir James (talk) 18:26, 13 March 2012 (UTC)
Indeed. I am curious. Thanks for regularly updating this page. -- RE rillke questions? 21:03, 13 March 2012 (UTC)
Today, March 27, court personnel reported to our counsel that the preliminary injunction was lifted regarding the Loriot signature but was sustained with respect to the stamp issue. For now, we are assuming the court did not accept our argument regarding improper service. Please remember that this is only a preliminary report, subject to our reading the entire judicial opinion, which may not be available until about Friday, March 30. After reviewing the court's final decision, we will decide whether an appeal will be appropriate.
If you review my past comments in the above "Conclusion" section, this preliminary report matches our expectations. ("Our focus will be on the signature issue, which will serve as our measurement of success. That is, if we win that issue, I will consider our overall efforts to be successful.") Once we have analyzed the entire opinion, we will report back to you on the opinion and potential next steps. Thank you again for your help and interest in this matter. Geoffbrigham (talk) 16:40, 27 March 2012 (UTC)
With German counsel, we are continuing to review the court's opinion - which Philippe posted below - to determine the pros and cons of an appeal. Presently, I am not inclined to appeal, since we won the signature issue as we had set out to do. If we did appeal, we would likely appeal on the service issue since we respectfully disagree with the court's reasoning. Of course, if the Loriot estate were to appeal, we would appeal all issues aggressively. We will make our final decision before April 30.
Given our victory on this aspect of the case, the Loriot signature has been reposted with the understanding that the Loriot estate may appeal the decision. In theory, if the estate were to prevail on appeal, we might be asked to remove the signature again.
I have been asked to advise on whether all stamps should be taken down from Commons in light of the part of the decision dealing with stamps and the public domain. I believe that this is a decision for the community, which has an admirable history of determining and applying legal restrictions to content in sophisticated circumstances (especially in Germany). My analysis has been limited to the facts of the Loriot estate case. Although I am not a German lawyer and can only represent WMF, I understand from German counsel that, while stamps may be considered to be in the public domain under German law in certain circumstances, others have argued that the public domain does not extend to copyrighted works contained within the stamps. As previously discussed, the below decision and another German court reached this conclusion. At the same time some stamps may not be subject to copyright protection because they either lack creativity - a prerequisite for copyright protection - or the creator died more than 70 days ago. Of course, as I think nobody would argue, contributors are required to follow applicable law.
Disclaimer: As noted, I am not a German lawyer, and I can only advise WMF, not the community, because of constraints under ethical rules. The above are simply ideas for discussion purposes.
Geoffbrigham (talk) 22:34, 13 April 2012 (UTC)
Thank you, Geoff, for all your efforts to restore Loriot's signature and your flow of status updates in this case. --AFBorchert (talk) 23:20, 13 April 2012 (UTC)
I would also like to thank you for your efforts in the Loriot case. Your German counsels seem to have done a good job. As far as all other stamps on Commons are concerned, I would be against removing them altogether. First of all, as far as I understand the decision, whether a stamp falls under German copyright law or not has to be reviewed in every single case. What holds true for one stamp may be wrong for another. Not all German stamps depict copyright-protected pictures or works of art. And then, if Landgericht Berlin's opinion should prevail, it would only apply to stamps that were issued after the German postal services were privatised. So, all earlier published stamps according to the formerly prevailing opinion remain in the public domain. Finally, Landgericht Berlin is not the highest court to decide on the matter. These are legal problems of fundamental importance which should be pleaded at the Bundesgerichtshof, and possibly also at the Bundesverfassungsgericht to get a decision that really makes clear what a non-profit like us may or may not do in terms of copyright.--Aschmidt (talk) 18:10, 15 April 2012 (UTC)
@"And then, if Landgericht Berlin's opinion should prevail, it would only apply to stamps that were issued after the German postal services were privatised. So, all earlier published stamps according to the formerly prevailing opinion remain in the public domain.": This is not an adequate assessment of the situation. There is no basis for this whatsoever in the judgement, and only marginal mention of that issue in the literature anyway. In fact, it directly contradicts the judgement. The court argues, verbatim: "Dem ist nicht zuzustimmen. Von § 5 Abs. 1 UrhG werden nur Sprachwerke erfasst, nicht aber Werke der bildenden Kunst." (p. 11) That's a completely different type of argument, and it is based on a sui-generis approach to § 5 (1) urhg, which of course holds true regardless of whether the Bundespost is privatized or not. What they say is: "Hey guys, this is not a Sprachwerk. Therefore, it cannot be covered by § 5 (1) UrhG." Period. (That reasoning is, by the way, -- unlike the conclusion itself -- not so obvious, and there are several differing opinions in the literature. The selection of works that the court refers to is fairly selective in this respect.)
@"These are legal problems of fundamental importance which should be pleaded at the Bundesgerichtshof, and possibly also at the Bundesverfassungsgericht." Oh dear.
Pill (talk) 23:42, 15 April 2012 (UTC)
+1 Pill. Regards, PETER WEIS TALK 00:11, 16 April 2012 (UTC)

After discussion with our German counsel, we have decided not to appeal the court's decision for the reasons set out above. As a common procedural step under German process, we will likely file a declaration accepting the court opinion to avoid any subsequent legal action (which in theory could follow an injunctive order). We reached our goal with the court's positive decision on the signature issue. We respectfully disagree with the court's decision on the service issue, but, if appropriate, we are free to raise that issue in future cases. My thoughts on the public domain/stamp issue are set out above. We will aggressively appeal all issues if the Loriot estate were to decide to appeal. Thanks to everyone for their help and suggestions on this case. I really enjoyed working with you on this matter. Geoffbrigham (talk) 17:56, 25 April 2012 (UTC)

Allright; thanks to you, Geoff. --Sir James (talk) 19:56, 25 April 2012 (UTC)

Added the decision[edit]

Hi all,
At Geoff's request, I've posted the Loriot decision here. Philippe (WMF) (talk) 17:08, 12 April 2012 (UTC)