Court Rules Google Cache of Website Pages Not Copyright Infringement

The important case, Blake A. Field vs. Google Inc., was recently decided by summary judgment in favor of Google regarding the issue of whether caching of website pages was copyright infringement. The reasoning and interpretation of judicial precedent in the case have wide-reaching applicability and portend the handling of legal issues in suits against Google for its Google Print library digitization project (renamed as Google Book Search), although of course the cases differ factually. We find that the court's reasoning in Field v. Google follows the same lines of logic that we have previously posted to LawPundit, especially regarding the issue of "transformative use" and the precedent in Kelly v. Arriba.

See our postings at:

Google Book Search replaces Google Print Nov. 24, 2005

Transformative Use Justifies GooglePrint Scans of Entire Books as Fair Use Sept. 28, 2005

and chronologically, for more issues:

European Union (EU) Digital Libraries Initiative - i2010: DIGITAL LIBRARIES Oct. 8, 2005

A European Perspective on Author's Guild v. Google Print Oct. 5, 2005

Yahoo Starts Open Content Alliance - A Library and Archive Digitization Project Oct. 4, 2005

Twenty Key Questions for Author's Guild v. Google Oct. 3, 2005

Google and University of Michigan Library Agreement as a .pdf Oct. 3, 2005

Google Print or Library - Who is the "Copier" according to Law? Oct. 1, 2005

A Misunderstanding with Scrivener's Error Sept. 29, 2005

Bloggers re Author's Guild v. Google Print Sept. 29, 2005

Author's Guild v. Google Print (GooglePrint) Sept. 29, 2005

Transformative Use Justifies GooglePrint Scans of Entire Books as Fair Use Sept. 28, 2005

Author's Guild Sues Google for Copyright Infringement - The Author's Guild does NOT represent THIS Author Sept. 26, 2005.

A good analysis of the ruling is found at Out-Law.com, a website of the international law firm, Pinsent Masons. The article also comments on the status of search engines in the UK and links to the UK's E-commerce Regulations (free registration is required to view this Out-Law.com guide).

.eu Domain Registrations top 165,000 in the Sunrise Period

A January 27, 2006 EUobserver.com article by Teresa Küchler reports that over 165,000 applications have been made for .eu domains thus far in the Sunrise Period, with German applications accounting for 34.7 percent of the total, followed by the Netherlands with 15.6 percent and France with 13.4 percent.

The article points out that companies should act quickly to register their trademarks and names.
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Resurrecting the German Economy - The German Money is Overseas

Whenever an economy is doing as poorly as the German economy has been doing, one must ask "Where has the Money Gone?"

We can find part of the answer in the U.S. Department of State 2005 Investment Climate Statement - Germany, where it is written:

"The 2003 total accumulated stock of German direct investment in the United States amounted to USD 177.6 billion (EUR 157 billion), while the stock of U.S. direct investment in Germany amounted to USD 83.1 billion (EUR 74 billion)."

Accordingly, we can see that the money is overseas, or as one can see from the above, in part in the USA. The German problem is not that they have no money, but that they have invested great sums outside of their own country, not just in America but also in China.

Corporations are profiting, but this wealth is not finding its way back to Deutschland. And where there is no money (i.e. no capital), there are no jobs. That is the essence of the German problem.
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European Union EU EUR-Lex Directory of National Legal Sites

National legal web sites of the Member States of the European Union
can be accessed at the EUR-Lex directory of national legal sites

which is indexed by

Category of information

National legal web sites by country

Official Gazettes.

EU Member States - Latvia and Latvian Laws (Likumi)

PULS.LV - Professional statistical system of Latvia has superb, very professionally done pages, which give one a feeling for the sophistication which is being achieved in the internet arena in one of the new EU Member States. Take a look. Especially the opening page is easily understandable (many color graphs) even if you do not speak Latvian.

Clicking on any one of the links at the top of the page takes one to websites ranked by traffic, for example, to likumi (laws), where the top listed site is http://www.likumi.lv/, which has links to Latvian laws, including those relating to the European Union at Latvijas Vēstnesis (Latvian Herald, Ltd), the official journal of Latvia. Latvijas Vēstnesis is a "private company owned by the government (represented by the Ministry of Justice)" and is financed by income from revenues raised by the journal (a most interesting means of public finance, showing what can be done if governments have to be creative to raise needed monies).

As stated at the European Forum of Official Gazettes:

"The publication of legal acts in Latvia is regulated by the Law on Enforcement of Legal Acts. The Latvijas Vestnesis ["Latvian Herald, Ltd"] is the Official Journal of Latvia.

The Publishing House of the Official Journal is a private limited company, 100% owned by the State. The Publishing House is subordinated to the Ministry of Justice. The publication of the journal is published from the sales revenue."
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The Balance of Power - America and Europe

Robert Kagan has an incisive January 15, 2006 article at the Washington Post which everyone, especially in Europe, should read. In Still the Colossus

Kagan writes:

"The striking thing about the present international situation is the degree to which America remains what Bill Clinton once called 'the indispensable nation.' Despite global opinion polls registering broad hostility to George W. Bush's United States, the behavior of governments and political leaders suggests America's position in the world is not all that different from what it was before Sept. 11 and the Iraq war.

The much-anticipated global effort to balance against American hegemony -- which the realists have been anticipating for more than 15 years now -- has simply not occurred. On the contrary, in Europe the idea has all but vanished. European Union defense budgets continue their steady decline, and even the project of creating a common foreign and defense policy has slowed if not stalled. Both trends are primarily the result of internal European politics. But if they really feared American power, Europeans would be taking more urgent steps to strengthen the European Union's hand to check it."
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EURid .eu Domain - WhoIs Page - Cybersquatters

EURid, the European Registry of Internet Domain Names for the .eu domain, now has a WhoIs page (available in all 20 EU languages) at EURid- Domain Status, where domain names can be entered in the searchbox to see if they are available for registration or to find out who has registered a particular domain name.

Here we already see room for improvement at EURid since instead of stating "Please enter a domain name" they have the message "You did not enter a domain name" which is rather a foolish greeting for someone just landing at that page.

If, for example, one enters the term "whois" or "Europa" in the search box, then one is informed that the domain is registered and after entry of the validation text one can click the button "details" to get registration information.

If, for example, one enters the term "hotel" and the validation text one can then click either the "sunrise" or "variants" button. If one clicks "sunrise" then one can view all of the applications filed for the domain hotel.eu (currently 123 applications). One is informed that the status of this domain name is "APPLICATION PENDING".

If one clicks "variants" one gets a list of domain names containing the word "hotel" for which applications have been filed, for example, "airporthotel".

EURid lists only the first 25 variants, so that for the entry "hotel" this currently runs from "51hotels" to "alofthotels" and the rest of the alphabet is missing. This is definitely in need of correction.

If one enters names such as Germany, Deutschland, or Hamburg, one gets a message that the domain name is "RESERVED", but if one enters London there are 5 applications pending for london.eu, and, similarly, 3 applications pending for paris.eu.

How this could happen is a mystery to us since it would seem that the city names of London and Paris would be reserved to the cities.

If one enters well-known trademarks such as Sony or Cocacola one sees several applications.

If our checks are any indicator, many institutions that should be filing for .eu domain names are not doing so in a timely fashion. If this leads to legal trouble down the road, then institutions are themselves at fault, relying on their already established .com or similar domains, rather than filing for a comparable .eu domain.

Other sample searches:

europeancommission.eu is "reserved" but
eucommission.eu is listed as "available"

235 applications have been made for the domain sex.eu

97 applications have been made for the domain travel.eu

54 applications have been made for the domain news.eu

44 applications have been made for the domain sport.eu

28 applications have been made for the domain sports.eu

11 applications have been made for the domain microsoft.eu

11 applications have been made for the domain omega.eu

9 applications have been made for the domain yahoo.eu

7 applications have been made for the domain google.eu

6 applications have been made for the domain time.eu but Time Warner Limited seems to be on the ball and has registered properly and first for this name.

3 applications have been made for the domain cnn.eu

Based on the time stamps of the applications, which in some cases differ only by seconds, the registration process may have given an advantage to faster servers (?) or those located closer to Belgium (?), so we already see some pre-programmed lawsuits in the making over EURid's granting of domain names through the first-come first-served process as regards the earliest applications, all of which of course were intended to be made electronically at the starting gun of the .eu domain registration process, i.e. just as fast as any possible competitor.

Some institutions seem to have made multiple applications to try to ward off this problem and some names seem to have been grabbed in grand style by cybersquatters.

This problem has already been raised in the media, as reported by The Herald in Scotland (Big names grab their domains to thwart the internet squatters), a Dec. 9, 2005 article by James Morgan and Sharon Flaherty (p. 7) where they write:

"Already, Glasgow.eu and Edinburgh.eu have been reserved by a Dutch company, Traffic Web Holding BV, which has filed applications for scores of European cities, including London, Rome and Paris. The Netherlands firm has registered trademarks under the names "Gla&sgow" and "Edin&burgh", apparently trying to exploit what it sees as a loophole in the "prior right" rule."

Indeed, Traffic Web Holding B.V. has apparently filed for at least 805 domains, listed here, a list which includes other firms which have also filed for numerous domains. Of course, these firms are just using entrepreneurial energy to try to take advantage of what may be a loophole in the EURid guidelines. What are their chances of success?

Although there is no clear information available at the moment as to the exact legal basis for their applications, it appears that some of these firms may have filed trademarks for names in the form such as "domain.eu" and are basing their applications on such alleged trademarks. We do not think that they have much chance of being recognized as trademarks for registration purposes if EURid applies the same basic principles outlined in U.S. Patent and Trademark Office (USPTO) Examination Guide NO. 2-99 of September 29, 1999, covering "MARKS COMPOSED, IN WHOLE OR IN PART, OF DOMAIN NAMES", an examination which of course is not binding for .eu domains, but which nevertheless points to the legal principles involved and which the EU will surely apply in a similar manner.

As stated there:

"When a trademark, service mark, collective mark or certification mark is composed, in whole or in part, of a domain name, neither the beginning of the URL (http://www.) nor the TLD [our note, i.e. the .eu part] have any source indicating significance. Instead, those designations are merely devices that every Internet site provider must use as part of its address."

Hence, in the USA:

"If the domain name is "XYZ.COM," the term "XYZ" is a second-level domain and the term "COM" is a TLD."

The same applies to the .eu domain in the European Union. It is a TLD. Based on the principles outlined by the USPTO, it will surely not be permitted to claim a domain in the form "domain.eu" as a mark for domain registry purposes and thus these cybersquatting attempts will surely fail.

A report on domain developments is also found at Anchovy - domain name news from Lovells.

All of these problems with .eu domain registrations were foreseeable and it is hard to understand that the EU has not acted in advance to correct the problem. A simple statement that marks in the form "domain.eu" are unacceptable for registry purposes would solve the problem. Since the .eu domain has just started, obviously no marks of the nature "domain.eu" have yet been established in the market, and they are pure fictions.
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The Future of the European Union and the EU Constitution

One year ago, Nicholas Christian at the Scotsman wrote about the CIA giving a "grim warning on European prospects". Anyone who reads that article today and watches the daily news of economic and demographic calamities or religion-induced crime and riots in the streets of Europe will see that things have deteriorated much worse in Europe in the intervening year than even the CIA had predicted.

HOW DO WE PROCEED WITH THE EU CONSTITUTION?

David Rennie at The Telegraph in "EU constitution is dead, says Dutch minister" and an EU Observer article by Mark Beunderman titled "The Hague says [the EU] constitution is 'dead'", write that there is no hope that the present European Constitution will be ratified - as required - by all Member States. This reflects the fact that voters in France and the Netherlands, both of whose export-dependent economies profit greatly from EU membership, failed to ratify the European Union Constitution in 2005 and gave the EU a setback from which it may never recover, or from which the EU will recover only if ratifying countries take a very hard line. They are currently trying the path of appeasement, which never works.

Here is what we read about what France and the Netherlands gain from the European Union:

"The Dutch economy, strongly geared to exports, has benefited hugely from EU membership. Dutch agricultural and manufacturing goods now reach their European customers much more easily. Three-quarters of Dutch exports go to other EU member states. The Netherlands is the EU's second biggest agricultural exporter after France."

And yet these countries reject the EU Constitution? If France and the Netherlands were not in the EU, to whom would they sell their agricultural products? Not belonging to the EU would be an economic disaster for both nations.

How bad is the ratification situation really? Let us take a look at the EU's own ratification map showing the current state of ratification:



The countries shaded green have already ratified the EU Constitution and already represent a good share of the core of Europe. There is basically only one major problem visible, shown in red on the EU map, and this is France.

Chirac is quoted by the IHT as saying: "Europe is a bit like a car with a broken part". He meant that statement to apply to German-French relations, but it applies equally to French-EU relations. Does the EU need France? a country which may have a Muslim majority in this century if current demographic developments continue? Look at the problems they are bringing to the European Union.

SHOULD ALL EUROPEAN COUNTRIES BE IN THE EU?

It was not very far back historically - in 1871 - that the German princely states were first united under the Iron Chancellor Otto von Bismarck, who was similar to current EU nay-sayers in originally opposing a German unification because he thought it would reduce the power of Prussia. Later, he realized that German unification was essential to oppose other rising powers, a situation which is comparable to the position of the EU in the world today.

Prior to that, in 1849, the weak king Friedrich Wilhelm IV, King of Prussia, had issued a proclamation that he would not accept the crown from the German National Assembly meeting in Frankfurt, because, as he stated, "the Assembly has not the right, without the consent of the German governments, to bestow the crown which they tendered me, and moreover because they offered the crown upon condition that I would accept a constitution which could not be reconciled with the rights of the German states." [emphasis added]

We now have the same constitutional problem on a larger scale in the EU that Germany had in 1849. Nothing has changed in the provinciality of some of the States (here they are the Member States of the EU) and the reasons given for opposition to unification and to a Constitution.

There is a mistaken idea that the European Union should be made up of all European countries - at all costs. We do not share this view. Obviously, one should try to create a large and cohesive EU, but if some countries prefer the old national model, let them go their way, but do not reward them with the benefits the Union provides, if they oppose that Union. Switzerland, e.g., can afford to be far from the madding crowd. Most of the other countries of Europe, however, can not afford this luxury. If the French want to go their own way, let them.

SHOULD THE EUROPEAN COMMISSION BE MOVED?

In a similar vein, there is no longer any reason for major EU institutions to be located in Strasbourg, Luxembourg or Brussels, where French influence in these institutions is far out of proportion to the importance of France to the EU, and many of the tasks conducted by institutions currently in these cities could easily be moved to other equally or even more populous or politically important locations in other countries of the EU Member States.

It might, indeed, be best to adopt the US solution and to create a piece of independent apolitical physical territory somewhere in the geographic middle of Europe to be used for the actual political and institutional center of the Union, a piece of property granted to or purchased by and OWNED by the EU.

Currently, the EU does not own but leases (!) private properties in Brussels, which has led recently to the entire EU translation directorate general being thrown out from their building due to above-market rents demanded by the landlord AXA Belgium, a private bank & insurance company. The EU Commission is not willing to pay these exorbitant rents. This is a hilarity. The EU is being "evicted" from the premises like a common tenant.

Imagine in the United States that President Bush would have to leave the White House or Congress vacate the Capitol Building because some private banking and insurance company owned the property and had decided to "evict" the occupant for not putting up enough cash. This kind of incredible thing is only possible in a European Union which is thought by the EU nay-sayers to have great powers, whereas in fact its powers are few and its position still quite precariously weak, as most sovereign powers are retained by the individual Member States.

We should note in this connection, that the geographic center of the EU is now in Germany at ca. the village of Kleinmaischeid - just NE of Koblenz (Coblenz). That geographic center, previously in Belgium, has moved to Germany due to the Eastern expansion of the EU in 2004 to 25 Member States. Given the fact that the EU leases facilities in Brussels and has no "permanent" standing there in the way that Washington D.C. has in the USA, there is nothing in particular keeping the European Commission in Belgium, and we suggest that the European Commission be moved to a more central European location.

A great place for a new location of the European Commission would be at Fort Ehrenbreitstein (panorama photos here), the largest existing fort in Europe, located on a promontory which overlooks the point at which the Moselle River flows into the River Rhine. This is only about 20 kilometers from the point recently calculated by French geographers to now be the geographic center of Europe. Coincidentally, the nearby archaeological sites of Gönnersdorf and Andernach are among the oldest habitations of humans in Europe (from ca. 13,500 BC).

Fort Ehrenbreitstein (pronounced Aaron-bright-shtein) was destroyed by Napoleon in 1799 when the Rhineland was annexed to France, but was rebuilt in 1816-1826 by the Prussians (the 1911 Encyclopedia wrote: "At the second peace of Paris the French paid 15,000,000 francs to the Prussian government for its restoration").

Fort Ehrenbreitstein overlooking the city of Koblenz is thus a symbol of European unity at a historically embattled border between Germanic and Celtic peoples. Indeed, in our view, the Celtic / Germanic division is still the main problem in the EU. Ehrenbreitstein was first established as a castle for the Romans (castellum apud confluentes "castle of the confluence", a name which befits the EU). After World War I, the fortress Ehrenbreitstein was a headquarters of the Allied occupation forces.

Right across the Rhine River in Koblenz, the statue of William I at the confluence of the Moselle and the Rhine, commemorates the 1871 unification of Germany at a piece of real estate called Deutsches Eck (the German Corner). Again, we have here a figure of unification at this location.

COUNRIES THAT FAIL TO RATIFY THE CONSTITUTION ARE OUT

We think that ratification of the EU Constitution should be made a condition of being a Member State of the EU - and for countries seeking EU admission, ratification of the EU Constitution should be made a condition to membership.

There is nothing in the EU Constitution to fear by honest citizens. Quite the contrary, that Constitution grants unprecedented civil rights to the common man of every EU country. Fears of the Constitution are held by those who are ignorant of its provisions, most of which simply centrally codify laws already in force.

Most of the opposition to the EU Constitution comes from those who oppose the European Union, and that is not a question of the EU Constitution, but rather of nay-sayer politics.

A stronger policy regarding the necessity of ratification would form a much stronger alliance among the countries who have ratified the EU Constitution or who wish to ratify it. A strong alliance of fewer, but committed, countries, is to be preferred to a weak and brittle alliance which includes countries whose populations are eurosceptics, countries increasingly populated by peoples of non-European origin who do not share European values.

Many citizens, not understanding what is at stake here for the future of Europe, prefer a "loose" economic union, which they have already enjoyed for years, not realizing that such a loose union can not possibly compete in the future at the global level. Such a loose Union would be steamrolled by America, by Russia, by China, and/or by the Muslims. Indeed, the USA is still "the indispensable player" while Europe is content to take a much lesser role, which can not be a good strategy for the future. Who will protect Europe when America no longer has the will to do so?

Let those countries unify that understand that an economic, political and militarily united European Union is necessary for long-term survival, and those Member States that do not, let them regain their independence and go out into the world alone and learn their lessons the hard way.

Why let the substantial progress in the growth of the EU and its institutions be halted by the laggards? Grow ... or die. This is a rule of the world.

THE TWIST: WHO THINKS LIKE A EUROPEAN UNION CITIZEN?

The Twist: Are we serious about Ehrenbreitstein, or about throwing France, the Netherlands and maybe even the UK out of the EU? Maybe and maybe not. But these are issues which should be discussed.

But what were your reactions, dear reader, to these suggestions and to what degree were your reactions colored by the country of your own origin?

Would it not be better to make a neutral, objective assessment of what is good for the European Union? Leave your country out of your analysis and then ask, what would I decide for the EU if my country had nothing to do with the EU. What would be best for them? THAT is the right answer.

That in our view is the real issue and that is the major European problem.

Who in Europe thinks in terms of being "a European Union citizen" in the same way that an American thinks of being "an American citizen"? Except for the people who work for the EU in Brussels, perhaps nobody. Everyone thinks like a Frenchman, a Spaniard, a Belgian (depending on whether you are Flemish or a Walloon), a German, a Latvian, an Italian, a Greek, an Austrian, etc.

Similarly, the main reason that many people in Europe do not want Turkey to join the EU is because they rightly fear that people in Turkey think themselves Turks and Muslims first, and in case of EU membership, as European Union citizens second, which would be an intolerable situation. Not the Sharia, but the EU rule of law would have to be the law in Turkey if they were a member of the EU. How is that possibly to work in the long term?

But of course, small-town provinciality abounds everywhere, not just in Turkey. The vote in France against the EU Constitution did not happen because the voter said "I am a European, NO to this Constitution" but rather the voter stated "I am a Frenchman, NON". That is not a very good foundation for a united Europe, at least, not in France.

In Brussels, the EU in our opinion is being run the same way that Paris runs France, which is fine for France. There is a big central power and the rest of the polity is subservient to Paris. But Europe is NOT like France and can not be run this way. Rather, you have to run Europe the way that the USA is governed.

Of course, the federal government in the USA is strong, much stronger than the EU, but in America you make sure that State's rights are respected and you make sure that the populace KNOWS that their particular US State, or, by analogy, Member State, is not being autocratically governed by people in a distant Washington, D.C., or, comparably, in a distant Brussels (or a not so distant Ehrenbreitstein).

What is good for Europe on the whole is also going to be best in the long term for the individual nations and everyone's children's children. What appears selfishly good for an individual country TODAY may not be good for that country TOMORROW in a rapidly changing and more and more globalized world.

But how does one get this message across to the citizens? See here for some thoughts.
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European Law at the European Legal Forum

For literature, cases and materials on specific topics in European Law, take a look at the European Legal Forum.
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Internet Savvy Lacking in Europe? A Question of Viruses

I was just using the TrendMicro free HouseCall anti-virus scan and noted at this page that in the last 30 days TrendMicro had found 5 times as many infected files in Europe as in the USA.

What can the reason for this be? Is Internet savvy lacking in Europe? or are there just more viruses around in the Old World? or are more European users using this free service? and would that be a sign of the more dire EU economic situation?
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What is in store for Europe under Muslim influence

Here is what is in store for Europe under Muslim influence in the future.

The first thing you can strike is free speech.

Read the EU Observer on "Danish muslim prophet cartoon quarrel goes to court".
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The future EU as a US protectorate or Muslim caliphate?

Have you read Mark Steyn's article on the decline of Western Civilization?

Here is another excerpt:

"A decade and a half after victory in the Cold War and end-of-history triumphalism, the "what do you leave behind?" question is more urgent than most of us expected. "The west," as a concept, is dead, and the west, as a matter of demographic fact, is dying."

Consider what Steyn is writing against the absurd circus about to get under way in the United States on the Alito Hearings, where the main complaint against Alito is that he might be too conservative, and that he might be against abortion.

There is little doubt that the Democratic Party in America has a death wish and the same statement can be levelled against the powers that be in the European Union.

Here is what Steyn writes [note that a man and woman to even replace themselves have to have two children at the least - that is the population replacement rate]:

"Scroll way down to the bottom of the Hot One Hundred top breeders and you’ll eventually find the United States, hovering just at replacement rate with 2.07 births per woman. Ireland is 1.87, New Zealand 1.79, Australia 1.76. But Canada’s fertility rate is down to 1.5, well below replacement rate; Germany and Austria are at 1.3, the brink of the death spiral; Russia and Italy are at 1.2; Spain 1.1, about half replacement rate. That’s to say, Spain’s population is halving every generation. By 2050, Italy’s population will have fallen by 22 percent, Bulgaria’s by 36 percent, Estonia’s by 52 percent. In America, demographic trends suggest that the blue states ought to apply for honorary membership of the EU: in the 2004 election, John Kerry won the sixteen with the lowest birth rates; George W. Bush took twenty-five of the twenty-six states with the highest. By 2050, there will be 100 million fewer Europeans, 100 million more Americans—and mostly red-state [Republican] Americans."

Will Europe Cease to Exist in this Century?

What kind of a world are we heading for in the coming years?

It’s the demography, stupid, an article by Mark Steyn at The New Criterion, has a sobering analysis of what human populations will look like down the road, given the current birthrates around the globe.

Steyn's opening salvo is a blockbuster:

"Most people reading this have strong stomachs, so let me lay it out as baldly as I can: Much of what we loosely call the western world will not survive this century, and much of it will effectively disappear within our lifetimes, including many if not most western European countries."

Read that article here.

We do not agree with all of Steyn's conclusions, but we definitely think that he has identified some major problems which will face the world in coming years.

Especially the demographic situation in Europe is a cause for considerable concern.

Read Steyn to find out why.

Hat tip to CaryGEE.
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Germany Raises Postal Rates for Europe

To start off the New Year, the German Post (Deutsche Post) has raised the price for mailing letters from Germany to EU countries by ca. 27% (a monopolistic price increase), and we inquire below as to how this could happen.

See here for a .pdf list of old rates and new rates:
2006 Price List of the German Post (Deutsche Post)

The monopoly on the post in Europe goes back to the days of Thurn and Taxis and not much has changed in the interim.

Although the German Post was allegedly "liberalized" in 1989 (Postreform I) and 1994 (Postreform II), it still possesses a time-limited law-prescribed "exclusive license" (i.e. a monopoly) for the sending of letters up to a certain weight. This exclusive license was first granted to last until the end of 2002 and then was greedily extended by German law (Postreform III) to 2007, pursuant to a rather foolish exception provided for by EU Law:

"Directive" in English: EU Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002 amending Directive 97/67/EC with regard to the further opening to competition of Community postal services

"Richtlinie" in German: (Richtlinie 2002/39/EG des Europäischen Parlaments und des Rates vom 10. Juni 2002 zur Änderung der Richtlinie 97/67/EG im Hinblick auf die weitere Liberalisierung des Marktes für Postdienste in der Gemeinschaft).

(see here for this directive in all EU languages)

Here is our excerpted text of that Directive in English (we snip out a lot of the unnecessary garble and pedantic posturing that is included as a matter of course in European law texts):

"Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002
amending Directive 97/67/EC with regard to the further opening to competition of Community postal services
. . .

Article 1
Directive 97/67/EC is hereby amended as follows:
1. Article 7 shall be replaced by the following: "Article 7

1. To the extent necessary to ensure the maintenance of universal service, Member States may continue to reserve services to universal service provider(s) [LawPundit note: "universal service provider" is a fancy cloaked name for "monopolist"]. Those services shall be limited to the clearance, sorting, transport and delivery of items of domestic correspondence and incoming cross-border correspondence, whether by accelerated delivery or not, within both of the following weight and price limits. The weight limit shall be 100 grams from 1 January 2003 and 50 grams from 1 January 2006. These weight limits shall not apply as from 1 January 2003 if the price is equal to, or more than, three times the public tariff for an item of correspondence in the first weight step of the fastest category, and, as from 1 January 2006, if the price is equal to, or more than, two and a half times this tariff.

In the case of the free postal service for blind and partially sighted persons, exceptions to the weight and price restrictions may be permitted.

To the extent necessary to ensure the provision of universal service, direct mail may continue to be reserved within the same weight and price limits.

To the extent necessary to ensure the provision of universal service, for example when certain sectors of postal activity have already been liberalised or because of the specific characteristics particular to the postal services in a Member State, outgoing cross-border mail may continue to be reserved within the same weight and price limits.

2. Document exchange may not be reserved.

3. The Commission shall finalise a prospective study which will assess, for each Member State, the impact on universal service of the full accomplishment of the postal internal market in 2009. Based on the study's conclusions, the Commission shall submit by 31 December 2006 a report to the European Parliament and the Council accompanied by a proposal confirming, if appropriate, the date of 2009 for the full accomplishment of the postal internal market or determining any other step in the light of the study's conclusions.";

2. the following indents shall be added to Article 12: "- whenever universal service providers apply special tariffs, for example for services for businesses, bulk mailers or consolidators of mail from different customers, they shall apply the principles of transparency and non-discrimination with regard both to the tariffs and to the associated conditions. The tariffs shall take account of the avoided costs, as compared to the standard service covering the complete range of features offered for the clearance, transport, sorting and delivery of individual postal items and, together with the associated conditions, shall apply equally both as between different third parties and as between third parties and universal service providers supplying equivalent services. Any such tariffs shall also be available to private customers who post under similar conditions,

- cross-subsidisation of universal services outside the reserved sector out of revenues from services in the reserved sector shall be prohibited except to the extent to which it is shown to be strictly necessary to fulfil specific universal service obligations imposed in the competitive area; except in Member States where there are no reserved services, rules shall be adopted to this effect by the national regulatory authorities who shall inform the Commission of such measures.";

3. the first and second subparagraphs of Article 19 shall be replaced by the following: "Member States shall ensure that transparent, simple and inexpensive procedures are drawn up for dealing with users' complaints, particularly in cases involving loss, theft, damage or non-compliance with service quality standards (including procedures for determining where responsibility lies in cases where more than one operator is involved).

Member States may provide that this principle is also applied to beneficiaries of services which are:

- outside the scope of the universal service as defined in Article 3, and

- within the scope of the universal service as defined in Article 3, but which are not provided by the universal service provider.

Member States shall adopt measures to ensure that the procedures referred to in the first subparagraph enable disputes to be settled fairly and promptly with provision, where warranted, for a system of reimbursement and/or compensation.";

4. the third subparagraph of Article 22 shall be replaced by the following: "The national regulatory authorities shall have as a particular task ensuring compliance with the obligations arising from this Directive and shall, where appropriate, establish controls and specific procedures to ensure that the reserved services are respected. They may also be charged with ensuring compliance with competition rules in the postal sector."

5. Article 23 shall be replaced by the following: "Article 23
Without prejudice to Article 7, every two years, on the first occasion no later than 31 December 2004, the Commission shall submit a report to the European Parliament and the Council on the application of this Directive, including the appropriate information about developments in the sector, particularly concerning economic, social, employment and technological aspects, as well as about quality of service. The report shall be accompanied where appropriate by proposals to the European Parliament and the Council.";

6. Article 27 shall be replaced by the following: "Article 27
The provisions of this Directive, with the exception of Article 26, shall expire on 31 December 2008 unless otherwise decided in accordance with Article 7(3). The authorisation procedures described in Article 9 shall not be affected by this date."

Article 2

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive no later than 31 December 2002. They shall forthwith inform the Commission thereof.
When Member States adopt these measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2. Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field covered by this Directive.

Article 3

This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.

Article 4

This Directive is addressed to the Member States.

Done at Luxembourg, 10 June 2002.

. . ."

The extension of the exclusive license granted to the Deutsche Post in Germany from 2002 to 2007 was unsuccessfully challenged as unconstitutional in the German Constitutional Court. (See the court's Press Release, and Decision: BVerfG, 1 BvR 1712/01 vom 7.10.2003, Absatz-Nr. (1 - 129), http://www.bverfg.de/entscheidungen/rs20031007_1bvr171201.html.)

The German Justices apparently saw no harm in the extension for another five years of the exclusive monopoly license which was originally granted to the Deutsche Post to cover the interim period - from monopoly to liberalization - under the rationale that such a monopolistic exception was required to guarantee full postal service to the public in the interim period.

The German Constitutional Court was unconvinced by the argument that the intent of the exclusive license was not to protect the public and its right to postal services but rather to reinforce the financial status of the Deutsche Post (which continues to bring in record monopoly profits).

Here is the text of what the German Constitutional Court issued as part of its press release on its judicial decision:

"§ 51 Abs. 1 Satz 1 PostG enthielt eine bis 31. Dezember 2002 befristete gesetzliche Exklusivlizenz für die Deutsche Post AG für die Beförderung von Briefsendungen und adressierten Katalogen bei einem bestimmten Einzelgewicht und Einzelpreis. Diese Befristung wurde im Jahr 2001 durch das Erste Gesetz zur Änderung des Postgesetzes bis zum 31. Dezember 2007 verlängert. Das Zweite Gesetz zur Änderung des Postgesetzes aus dem Jahr 2002 verpflichtet die Deutsche Post AG für den Zeitraum der gesetzlichen Exklusivlizenz zur Erbringung von Universaldienstleistungen. Darunter versteht das Postgesetz ein Mindestangebot an Postdienstleistungen wie insbesondere die Beförderung von Briefsendungen und adressierten Paketen eines bestimmten Maximalgewichts, die flächendeckend in einer bestimmten Qualität und zu einem erschwinglichen Preis erbracht werden. Das Dritte Änderungsgesetz aus dem Jahr 2002 sieht bis zum 31. Dezember 2005 die gesetzliche Exklusivlizenz für Sendungen bei einem Einzelgewicht bis 100 Gramm bei einem bestimmten Einzelpreis vor und reduziert die Exklusivlizenz für die anschließende Zeit bis 31. Dezember 2007 auf Sendungen eines Einzelgewichts bis 50 Gramm bei einem bestimmten Einzelpreis."

The German postal rates which have changed effective January 1, 2006 involve increases as large as 27% for standard letters sent from Germany to other European Union countries. These increases seem contrary to the entire mandate of the liberalization of the German postal service and are also contrary to the idea of a European Union in which postal rates should be equal for all, as they are e.g. among the several States in the USA.

Comments by others to the new postal rates can be read at:

Editor Bill at the Britboard

DDBug at ToytownMunich
.