tag:blogger.com,1999:blog-5574479.post3861845737693576001..comments2024-03-29T09:21:58.696+00:00Comments on The IPKat: Another German decision questions reasonableness of GS Media presumption if generally appliedVerónica RodrÃguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-5574479.post-60526155871630113292017-10-16T16:53:01.055+01:002017-10-16T16:53:01.055+01:00This is somewhat going to the point I made a few m...This is somewhat going to the point I made a few months ago; what constitutes reasonable steps to discharge the presumption embodied within the GS Media decision needs to be sensitive to the nature of the defendant's activities. We cannot be treating passive (read automated) parties in the same way that we treat active parties (i.e. bloggers or content creators.)Adriannoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-58717915347438617952017-10-16T14:20:22.059+01:002017-10-16T14:20:22.059+01:00I totally agree with Andy's comment. The Germa...I totally agree with Andy's comment. The German judges seem to be doing an excellent job. The CJEU's decisions on this point are, to put it plainly, bad. The profit making criterion in particular is extremely poor law.<br /><br />It is now up to the national courts to interpret the CJEU's decisions to make them less bad. They can do this by making their own decisions without making referrals. Referring decisions up to the CJEU is only likely to make the law worse. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-46084621020679519692017-10-16T12:40:44.590+01:002017-10-16T12:40:44.590+01:00"Some aspects of the CJEU judgments discussed...<i>"Some aspects of the CJEU judgments discussed by the German courts are ambiguous and in need of further clarification. One might wonder whether national courts are best placed to carry out such an explanatory task or whether, instead, clarification at the CJEU level might be a better option to avoid inconsistent applications of relevant judgments by national courts."</i><br /><br />Eleonora,<br />I know you have great respect for the CJEU, but I take the opposite view to your final paragraph. The CJEU deals at an almost abstract, detached (dare I say 'academic'?) level with referrals it receives, and its opinions generally lack specificity to the case which underlies the referral - that is not a criticism of the CJEU, but exactly what its function should be.<br /><br />The national courts on the other hand should be enforcing the law in a way which takes into account the specific facts of the individual cases before them, and applying real-world common-sense.<br /><br />In my opinion, the CJEU followed a wrong path way back with <i>Svensson</i>, and have managed to enmesh themselves in ever more rigid 'clarifications' of an issue which the original Directive did not address. They are literally making new law (possibly because they see the futility of asking the Commission to rectify matters!). It is good that the courts in the member states exercise a bit of push back, which the CJEU would do well to acknowledge.Anonymousnoreply@blogger.com