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LAW PUNDIT Sunday, January 29, 2006 1/29/2006 11:44:00 PM [Home] [Print]

Success Through Coaching by Phone

Ed Poll, who coaches lawyers by phone and is a management consultant to law firms, has an interesting article at the ABA's Law Practice TODAY titled, Those Who Can, Coach: The Power of Coaching Can Transform Your Life, in which he writes, inter alia:

"Some might feel that seeking the help of a coach is an admission of personal inadequacy. The more logical conclusion is that you should engage a coach from the moment you decide you want to be successful. A coach can help you achieve that success more quickly than you would on your own. In sports, that is proven so many times on a daily basis that it is axiomatic. "

Read more here.

We haven't even talked to Ed but already feel motivated to improve just through a reading of that article. We have no doubt that coaching works. Almost all world champion athletes have coaches. So why not world champion professionals in the legal field? It makes sense.

Link to Law Practice Today originally via Vertretbar (hat tip).
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^Permalink : Andis Kaulins : 1/29/2006 11:44:00 PM

LAW PUNDIT 1/29/2006 01:49:00 PM [Home] [Print]

The Blogosphere Comments on the Google Cache Case Nevada Court Ruling

Deep Links, the EFF Blog
Lessig Blog (many comments)
Lenz Blog
- Nature of the Work
- Google's Great Transformation
- Google as ISP
- Robot Exception
- Iura Novit Curia
BoingBoing
ars technica
IP&Democracy
Slashdot
The Trademark Blog

^Permalink : Andis Kaulins : 1/29/2006 01:49:00 PM

LAW PUNDIT 1/29/2006 01:33:00 PM [Home] [Print]

Google Cache Copyright Infringement Case Summarized at Out-Law.com

A good summary of the Nevada District Court ruling in the
"Google Cache Copyright Infringement Case"
(see our previous LawPundit posting)
is found at Out-Law.com, a website of the international law firm, Pinsent Masons. No registration is required to view this article.

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).
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^Permalink : Andis Kaulins : 1/29/2006 01:33:00 PM

LAW PUNDIT 1/29/2006 01:00:00 PM [Home] [Print]

Germany Leads in .eu Domain Registrations

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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^Permalink : Andis Kaulins : 1/29/2006 01:00:00 PM

LAW PUNDIT Saturday, January 28, 2006 1/28/2006 11:50:00 AM [Home] [Print]

Copyright Infringement and Blake A. Field vs. Google Inc.

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
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^Permalink : Andis Kaulins : 1/28/2006 11:50:00 AM

LAW PUNDIT Thursday, January 26, 2006 1/26/2006 10:59:00 PM [Home] [Print]

What is the Universe? Kas ir Visums?

The Latvian website E-Misterija in a translation by RV entitled Kas ir Visums? presents a small theory that I first published online at my personal website as What is the Universe? It has gotten quite a bit of reaction in Latvia, so you might be interested in the English version.

After all, as Dionne Warwick and Cher have sung, "What's it all about, Alfie?" (words by Hal David and music by Burt Bacharach)

^Permalink : Andis Kaulins : 1/26/2006 10:59:00 PM

LAW PUNDIT Wednesday, January 25, 2006 1/25/2006 01:19:00 AM [Home] [Print]

The French Judicial System and Terrorism

ZenPundit has a short but interesting piece on the French judicial system at Counterterrorism, French-Style.

The question is whether the theory quoted there from Foreign Policy actually mirrors the realities in France today. We do not know.
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^Permalink : Andis Kaulins : 1/25/2006 01:19:00 AM

LAW PUNDIT Sunday, January 22, 2006 1/22/2006 08:06:00 PM [Home] [Print]

Copyrights Copyscape Copysentry

Copyscape has an interesting online copyright service.

Free searches can be made for duplicates of web pages, subject to the limitations found here. Google Web APIs are used for this service by the company, Indigo Stream Technologies, which is not affiliated with Google as such, but does also provide the paid Google Alert clipping service.

They also provide a paid service called Copysentry which monitors the web for copies of pages and sends an immediate alert if copies of materials are found online.
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^Permalink : Andis Kaulins : 1/22/2006 08:06:00 PM

LAW PUNDIT 1/22/2006 06:57:00 PM [Home] [Print]

Free the System - Privacy Mantra - Small but Beautiful

Is simple better?

The Privacy Mantra user's manual states:

"Privacy Mantra will erase and wash away most privacy threats in your machine including, Internet history, cache, cookies, index.dat files, auto-complete forms, search assistant, recent documents, open/save dialogs, run files, Mozilla Firefox, Google Toolbar and more. Privacy Mantra allows the user to easily download the latest database of threats. This reliable cleaner will not only protect your privacy but also free disk space by deleting junk files.
Privacy Mantra is Windows NT/2000/XP/2003 compatible. "

We use this small, simple tool and it seems to speed up our system.

Privacy Mantra
Download (only 0.48KB)

We access it hourly on the task bar and just hit "Clean" (it takes just seconds).
It often seems to "free" the system.

If this tip is useful to you and saves you time and/or money, consider buying our book on the megaliths (right column) and expand your intellectual horizons. And don't forget to send some money to the Privacy Mantra programmer if you use the program. Privacy Mantra is not related to us in any way but we use it.
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^Permalink : Andis Kaulins : 1/22/2006 06:57:00 PM

LAW PUNDIT Friday, January 20, 2006 1/20/2006 01:16:00 AM [Home] [Print]

Where is Germany's Money?

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.

^Permalink : Andis Kaulins : 1/20/2006 01:16:00 AM

LAW PUNDIT Thursday, January 19, 2006 1/19/2006 07:45:00 PM [Home] [Print]

National Legal Sites in the EU - Latvia

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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^Permalink : Andis Kaulins : 1/19/2006 07:45:00 PM

LAW PUNDIT 1/19/2006 07:39:00 PM [Home] [Print]

Law Sites of the European Union (EU) Member States

National legal web sites of 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.
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^Permalink : Andis Kaulins : 1/19/2006 07:39:00 PM

LAW PUNDIT 1/19/2006 05:48:00 PM [Home] [Print]

Cybersquatting of .eu Domains - Apply US principles?

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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^Permalink : Andis Kaulins : 1/19/2006 05:48:00 PM

LAW PUNDIT Sunday, January 15, 2006 1/15/2006 04:32:00 PM [Home] [Print]

America is the Indispensable Nation

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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^Permalink : Andis Kaulins : 1/15/2006 04:32:00 PM

LAW PUNDIT 1/15/2006 12:56:00 AM [Home] [Print]

European Legal Forum on European Law

For materials on specific topics in European Law take a look at the European Legal Forum.
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^Permalink : Andis Kaulins : 1/15/2006 12:56:00 AM

LAW PUNDIT Friday, January 13, 2006 1/13/2006 01:29:00 PM [Home] [Print]

Grim European Union Prospects ?

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:

European Union Ratification Map January 2006

European Union Ratification Map January 2006

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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^Permalink : Andis Kaulins : 1/13/2006 01:29:00 PM

LAW PUNDIT Wednesday, January 11, 2006 1/11/2006 04:09:00 PM [Home] [Print]

Pay-For-Use Pacer/ECF Systems Violate Freedom of Information Principles

As political centrists, we are sometimes on the side of government, and sometimes we are against government. It just depends on the issue.

One of the most ill-conceived ideas in modern legal research comes from the US courts, which require online payment by credit card to access PACER/ECF Systems online, the US courts' electronic database:

"The PACER Service Center is the Federal Judiciary's centralized registration, billing, and technical support center for electronic access to U.S. District, Bankruptcy, and Appellate court records."

As can be read at LawLibTech: Recovering Costs on Pacer/ECF Systems and the comments thereto, this makes practical access cumbersome, problematical and far more difficult than it should be, even to professional librarians, so what about the public?

From a legal point of view, the fact that access to legal documents is unnecessarily cumbersome and monetarily encumbered is a clear violation of Freedom of Information principles. The argument that one is paying for "online access" rather than for "viewing" the documents themselves (which must be free to view) is absurd. You might as well charge a "door charge" at county courthouses. There is no difference. Besides, you pay per page. That's viewing.

From an economic point of view, the requirement of payment probably causes more societal actual costs than benefits, and should be scrapped for that reason alone.

The requirement of payment by credit card and the logging of access also raise clear privacy issues. Freedom of Information principles require that government documents be made public and be easily and freely available to everyone. Permitting access to information was not intended as a means for the government to keep track of what its citizens were reading, what credit cards they had, or anything similar.

In our view, the entire PACER/ECF payment scheme is clearly illegal.

Indeed, we find that the following "clearly chilling" notice with which a user is confronted when accessing a document at PACER/ECF is contrary to the spirit of free information. It is the reverse of "inviting" and is downright unfriendly.

Here is what you get at EDF/PACER if you try to access - as we did - the complaint in the $5 billion patent suit against Google by some company called RTI (Rates Technology Inc. v. Google Inc), another of the farcical blackmail-like patent cases which our inept patent laws are germinating:

"Notice

This is a Restricted Web Site for Official Court Business only. Unauthorized entry is prohibited and subject to prosecution under Title 18 of the U.S. Code. All activities and access attempts are logged.

Instructions
Enter your ECF login and password for electronic filing capabilities. If you do not need filing capabilities, enter your PACER login and password. If you do not have a PACER login, contact the PACER Service Center to establish an account. You may register online at http://pacer.psc.uscourts.gov or call the PACER Service Center at (800) 676-6856 or (210) 301-6440.

An access fee of $.08 per page (rate increase effective January 1st,2005), as approved by the Judicial Conference of the United States, will be assessed for access to this service. All inquiries will be charged to your PACER account. If you do not need filing capabilities, enter your PACER login and password. The Client code is provided to the PACER user as a means of tracking transactions by client. This code can be up to thirty two alphanumeric characters long."

How about, as an alternative suggested text: "Welcome to ECF/PACER, the electronic database website of the federal U.S. Courts. According to Freedom of Information principles, all citizens are entitled to free and easy access to government documents. This website is designed to provide that service for the federal US courts. Thank you for visiting and come again."

^Permalink : Andis Kaulins : 1/11/2006 04:09:00 PM

LAW PUNDIT 1/11/2006 03:08:00 PM [Home] [Print]

Copycense CommuniK™ Series on Copyright

Copycense is a blog of news and commentary about law and technology, particularly copyrights and licensing.

Recent postings by K. Matthew Dames on copyright issues are well worth reading, e.g. the first article of a series of so-called CommuniK™ postings:

"that reviews several ways information professionals can use protected works freely without getting written permission from the copyright owner, signing a license, or working with a third-party publisher representative such as the Copyright Clearance Center. The goal of the series is to arm information professionals with the tools to help them analyze and properly use what federal law describes as “limitations” on the exclusive rights that copyright owners receive."

We have added Copycense to our blawgroll.
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^Permalink : Andis Kaulins : 1/11/2006 03:08:00 PM

LAW PUNDIT 1/11/2006 12:19:00 AM [Home] [Print]

Basic Economics - Tax Cuts and Steak Cuts

We recently received the following lesson in Economics 101 from a reader (author unknown), to which we have coined our own answer as Economics 100.

Basic Economics is not so simple as the "Tax Cuts" analysis below, which makes a critical error in assuming that those particular 10 citizens are at that restaurant eating a steak in the first place. The metaphor fails.

"TAX CUTS - A SIMPLE LESSON IN ECONOMICS

Let's put tax cuts in terms everyone can understand. Suppose that every
day, ten men go out for dinner. The bill for all ten comes to $100. If
they pay their bill the way we pay our taxes, it would go something like
this:
The first four men (the poorest) would pay nothing.
The fifth would pay $1.
The sixth would pay $3.
The seventh $7.
The eighth $12.
The ninth $18.
The tenth man (the richest) would pay $59.

So, that's what they decided to do. The ten men ate dinner in the
restaurant every day and seemed quite happy with the arrangement, until
one day, the owner threw them a curve. "Since you are all such good
customers," he said, "I'm going to reduce the cost of your daily meal by
$20."

So, now dinner for ten only cost $80. The group still wanted to pay
their bill the way we pay our taxes. So, the first four men were
unaffected. They would still eat for free.
But what about the other six, the paying customers? How could they
divvy up the $20 windfall so that everyone would get his "fair share"?

The six men realized that $20 divided by six is $3.33. But if they
subtracted that from everybody's share, then the fifth man and the sixth
man would each end up being "PAID" to eat their meal.

So, the restaurant owner suggested that it would be fair to reduce each
man's bill by roughly the same amount, and he proceeded to work out the
amounts each should pay. And so:
The fifth man, like the first four now paid nothing (100% savings).
The sixth now paid $2 instead of $3 (33% savings).
The seventh now paid $5 instead of $7 (28% savings).
The eighth now paid $9 instead of $12 (25% savings).
The ninth now paid $14 instead of $18 (22% savings).
The tenth now paid $49 instead of $59 (16% savings).

Each of the six was better off than before. And the first four
continued to eat for free. But once outside the restaurant, the men
began to compare their savings.

"I only got a dollar out of the $20," declared the sixth man. He
pointed to the tenth man - "but he got $10!"

"Yeah, that's right," exclaimed the fifth man. "I only saved a dollar,
too. It's unfair that he got ten times more than me!"

"That's true!" shouted the seventh man. "Why should he get $10 back
when I got only $2? The wealthy get all the breaks!"

"Wait a minute," yelled the first four men in unison. "We didn't get
anything at all. The system exploits the poor!"

The nine surrounded the tenth and beat him up.

The next night the tenth man didn't show up for dinner, so the nine sat
down and ate without him. But when it came time to pay the bill, they
discovered something important. They didn't have enough money between
all of them for even half of the bill!

And that, boys and girls, journalists and college professors, is how our
tax system works. The people who pay the highest taxes get the most
benefit from a tax reduction. Tax them too much, attack them for being
wealthy, and they just may not show up at the table anymore."

Here is our "Economics 100" reply:

Economics 100 by Andis Kaulins = "Reality" Economics

1. Citizen 1 never eats out because he can not afford it. He is one of the small percentage of humanity who is averse to paid-for-services work and to earning money. This quite small minority of humans has always existed and often makes up both the "black sheep", the ne'er do wells, as well as the "sensitives" of society, the starving artists, etc., who sometimes, however, also make a contribution to humanity, although many, such as Mozart, for a lack of funds, were buried in pauper's graves, and others, such as Max Planck, had to be cared for by the state in their old age, even though their contribution to humanity was considerable, but was not the kind rewarded by money. We all profit by Mozart, but who pays? and who profits the most? mostly the record companies. Imagine if patents and copyrights and contributions to society were sustainable rights over generations and could accrue interest for families over generations just like cash - the world's accumulation of wealth would look quite different. Citizen 1 has no income and pays no taxes and is not found in restaurants eating with "the tenth man". He is lucky to get by.

2. Citizen 2 is near retirement age and unemployed and never eats out (although he used to) because he can not afford it. Ever since his company (Enron) went down the tubes due to the greed and corruption of management, he has been unable to find work. He would like to pay taxes if he had the income to justify it. 200 employment applications have been returned as "not interested". Citizen 2 receives minimal unemployment benefits and he repairs bicycles to get by, also doing much community service work. Recently he helped to repaint an orphanage near the restaurant "SuperSteak Paradise" where the restaurant visitors had complained that the orphanage was too shabby for the nice neighborhood. Voluntary community work is not remunerated, but plays a great role in keeping societies livable.

3. Citizen 3 never eats out because he is a small farmer/rancher who lives too far from the blessings of the big cities and because he has 6 children to support (2 children per family are required on average to sustain the population and the labor force - the figure in the US at the moment is 2.07). He raises a few beef cattle for the restaurants in the nearest city, including "SuperSteak Paradise", although his own income does not permit him to eat his own beef. But we must ask: "who has become rich as a farmer, providing sustenance for his fellows?" Very few men. Citizen 3 pays taxes commensurate with his earnings - enough to stay in business, but not so much as to put him out of business. He lives on the edge of survival, as many farmers do. But why are farmers not richer than they are? Taxes too high? Hardly. It has to do with prices. Big agribusinesses and middlemen make lots of money, small farmers do not. That's the way the economic system is set up.

4. Citizen 4 never eats out because he is a butcher with a wife and 5 children to feed and a mortgage in the city to pay. He cuts the beef for the restaurants in the city. When did anyone ever get to be rich being a butcher? Yet, it is a job which has to be done. The butcher pays normal taxes and gets by, but does not have enough left over to himself eat at the "SuperSteak Paradise" restaurant, for whom he cuts the steaks. But is this not the strange economic nature of the world? What construction worker lives in a house as good as the houses he builds? What watchmaker can afford the Rolex that he makes? And what worker at Ferrari drives a Ferrari that he assembles? Why does our economic system work this curious way? Taxes too high on the moneyed gentry? Hardly. It has to do with supply and demand - and prices. No matter what the 10th man pays in taxes, he always has enough left over for a Rolex. We are not angry about this, but that's the system. Complaints about taxes from the upper echelons are legion, and yet those making these complaints always have plenty of money. How is that?

5. Citizen 5 never eats out because she is a waitress at the "SuperSteak Paradise" restaurant. She is studying at the nearby university to be a teacher, and by chance, is also giving supplementary language lessons to the children of the owner of the restaurant, for which the pay is minimal, but which is giving her valuable experience. But why is teaching often so poorly paid? Why should a physician, or a lawyer, or an architect, make more? Are taxes the problem? Hardly. It is supply and demand, because we limit the number of people who are physicians and lawyers and architects.

6. Citizen 6 seldom eats out and is a secretary for a law firm in the city. She is married and has 4 children and works to supplement her husband's truck-driving salary (he delivers the steaks to "SuperSteak Paradise"). She hopes that enough money can be saved to put the children through college if they are able. They go out to eat occasionally, but "SuperSteak Paradise" is a bit too pricey for them, even though she in fact typed the incorporation documents for the restaurant's owner, who is a client of the lawyer she works for. Her hours are as long those of the lawyers, and both are less than the hours of the truck drivers, yet the salary levels are greatly divergent. How is this justified?

7. Citizen 7 eats out occasionally, but seldom alone, and almost never in steak restaurants. He is a construction worker whose company helped to build "SuperSteak Paradise". In fact, he helped lay the foundations for the building. Depending on the building market, he has a lot do or very little to do and thus always saves his money for the hard times, which always come. His wife said recently they should go to "SuperSteak Paradise" for a meal, but he looked at his 3 children, and they all went to McDonald's instead, for half the price that the steaks in the restaurant would have cost just for the two of them. You have to make ends meet.

8. Citizen 8 is the architect who designed the "SuperSteak Paradise" restaurant. He eats there all the time and deducts his meals as business expenses, as well-to-do business clients and other VIPs are wined and dined, without cost to them, of course, even though they could afford it. He has made quite a reputation by his "SuperSteak Paradise" design and his architectural practice has flourished ever since.

9. Citizen 9 is the lawyer whose associates drafted the incorporation and franchising documents for the "SuperSteak Paradise" restaurants throughout the country. His leading role in that franchising operation has caused the law firm's clientele to boom in the business sector. Not only does he deduct his frequent meals there as business expenses, but he also deducts the costs of his law firm's meetings there from the firm earnings.

10. Citizen 10 is the owner of the "SuperSteak Paradise" restaurant franchising chain who does not work any longer or harder than any of the above employed persons, but he does understand how the economic system under capitalism works. He has exploited that economic system, which allows large monetary accumulation, to his own financial benefit, making millions of dollars in the process and giving him vast economic freedom, far beyond that of his fellow men. He is pleased that the restaurant is frequented by people of the moneyed class, who are prepared to pay top dollar for good steaks.

Alas, if it were not for the high taxes he has to pay, he would be a happy man.

***

Perhaps we should put a cap on capital accumulation the same way that we put a cap on the salaries of professional athletes in several sports? Would that make sense? Hardly. It is much better for everyone to let everyone earn what they can, but you are forewarned that if you figure out a way to make millions or billions in our economic system, you have to put a good share back into the pot from which that wealth came because what you have left over is still far more than the rest of your fellow humans have at their disposal, with or without taxes.

Wealth accumulation is a "benny" of the economic system, not a natural or even an earned right. No one individual is worth the kind of money that wealthy people have. However, society permits accumulated wealth because it permits economies of scale and also puts money into the hands of people who know how to deal with money wisely, and that is a social benefit.

However, to talk about the "unfairness" of taxation to the moneyed gentry is simply absurd if one does not also talk about the "unfairness" of disproportionate earning. Mozart created more "wealth" than any living financial magnate, yet he did not profit monetarily from that, beause that is not the way the system is set up.

Similarly, many a rich man profits from contributions made by his less wealthy fellow men for which he has paid next to nothing as compared to the benefit granted to him. Just think of the discovery of antibiotics. Antibiotics have saved many a rich man's life - now THAT is a valuable service. We could, for example, as a society, exert a simple charge of 50% of net worth for the saving of a life through antibiotics. Nor would such a charge be too high. It is all a question of the system. When the wealthy complain about taxes, it is OK, why not, it is their right, but they should keep the world in perspective.

If everyone truly had to pay "fair cash" for everything that the world now benefits them with, and for all of the discoveries and advances made by other humans of which we today are the benefactors, every man would be in the red. Don't forget it.
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^Permalink : Andis Kaulins : 1/11/2006 12:19:00 AM

LAW PUNDIT Tuesday, January 10, 2006 1/10/2006 09:14:00 PM [Home] [Print]

Free Speech at an End 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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^Permalink : Andis Kaulins : 1/10/2006 09:14:00 PM

LAW PUNDIT 1/10/2006 07:33:00 PM [Home] [Print]

Is Western Civilization Nearing Its End?

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 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.

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."
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^Permalink : Andis Kaulins : 1/10/2006 07:33:00 PM

LAW PUNDIT 1/10/2006 02:28:00 PM [Home] [Print]

"Truthiness" Word of the Year in 2005 "Podcast" Most Useful

Well, we have said it all along about the humanities, and now it has hit the world in general.

Via email from Bradenton, Florida (thank you) containing snips of articles in The Herald, we discover that The American Dialect Society (ADS) in its 16th annual words of the year vote, has chosen "truthiness" as the Word of the Year 2005, i.e. as the word best reflecting the year 2005. According to the ADS:

"Truthiness refers to the quality of preferring concepts or facts one wishes to be true, rather than concepts or facts known to be true."

It used to be that what we now call "truthiness" was simply "wishful thinking".

That same society also voted "podcast" as "the most useful word" of 2005, with podcast defined as "a digital feed containing audio or video files for downloading to a portable MP3 player. From the brand name MP3 player iPod + broadcast."
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^Permalink : Andis Kaulins : 1/10/2006 02:28:00 PM

LAW PUNDIT Monday, January 09, 2006 1/09/2006 12:16:00 AM [Home] [Print]

What will the World of Tomorrow be Like?

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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^Permalink : Andis Kaulins : 1/09/2006 12:16:00 AM

LAW PUNDIT Saturday, January 07, 2006 1/07/2006 02:28:00 AM [Home] [Print]

The Long Arm of the Law - History and Legal Codes

Law is a pretty "dry" field intellectually, but it has a very rich history which goes back in time far beyond the Bible and the nearly legally precedential Ten Commandments. The Tablets of Ebla and the Code of Hammurabi are good examples of even older known human legal codes.

Indeed, our study of ancient legal sources led to our interest in the history of civilization, which is a raucous academic field historically, populated in the course of its development by all sorts of adventurers and fortune-seekers, especially those in archaeology.

It was not just the 49ers who heeded the call of gold from California, but also many learned "diggers" who sought the gold of the world's ancient cultures all over the globe. The world renown discovery of the Tomb of Tutankhamun (also spelled Tutankhamen, Tutankhamon) by Howard Carter, as financed by Lord Carnarvon, is of course the best example of this quest (a discovery which may be even greater than initially imagined).

The magnetic attraction of ancient cultures - when placed in the proper setting, is shown, for example, by the most famous mystery writer of all time, Agatha Christie, who was married to an archaeologist. Many of her enthralling stories came from this colorful milieu, which even today still captures the imagination of the multitudes.

LawPundit readers might thus be interested to know that our History of Civilization Newsletter, LexiLine, at Yahoo Groups, has four times as many regular readers as LawPundit. Ancient "Gold" still sells.

In any case, the MAIN link between ancient and modern culture is LAW. Those peoples and nations not having the rule of law today are as primitive now as they were thousands of years ago. LAW (and not knowledge or technology or religion) is the difference between uncivilized and civilized peoples. A cell phone or a video camera in the hands of a primitive - even if educated - barbarian does not turn him into a civilized human being. Only respect for the rule of law (which necessarily includes respect for one's fellow humans) has the capacity to lift men beyond the ranks of baboons. When (and if) more men recognize this, the world will be a better place.
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^Permalink : Andis Kaulins : 1/07/2006 02:28:00 AM

LAW PUNDIT Friday, January 06, 2006 1/06/2006 10:33:00 PM [Home] [Print]

Top Ten Tech Trends 2006

Siliconvalley.com has it choice of top ten tech trends for 2006 and its No. 1 selection is WiFi busts city limits, writing:

"Most WiFi networks consist of thousands of transmitters installed on city streetlights. The transmitters pass data to one another and then out to the Internet using radio waves, in a system known as 'mesh networking.' A mesh network is analogous to a fisherman's net laid over a city, where each knot is a transmitter. Anyone within a 250- to 500-foot radius of a transmitter can get on the Internet, provided their computer can send and receive WiFi signals."
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^Permalink : Andis Kaulins : 1/06/2006 10:33:00 PM

LAW PUNDIT 1/06/2006 10:09:00 PM [Home] [Print]

Extreme Tech Top Ten Failed Tech Trends 2005

Extreme Tech has a selection of Top Ten Failed Tech Trends for 2005, by Loyd Case. Here's how it starts out:

"We're guilty of hype.

But so is everyone else who writes about technology. Most of us gravitate to writing about tech because we think it's cool. So we're starry-eyed, hoping that the shiny new technology that's unwrapped for us by the PR departments of tech companies really will be the next killer product. We're dreamers, but we gravitate from one shiny bauble of a dream to the next one, rarely looking back to see which baubles become treasures and what morphs into dross."
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^Permalink : Andis Kaulins : 1/06/2006 10:09:00 PM

LAW PUNDIT Wednesday, January 04, 2006 1/04/2006 12:39:00 AM [Home] [Print]

Germany Raises Postal Rates for EU Mail

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
.

^Permalink : Andis Kaulins : 1/04/2006 12:39:00 AM

LAW PUNDIT Sunday, January 01, 2006 1/01/2006 09:10:00 PM [Home] [Print]

LawPundit Incomparable Predictions for 2006

In looking for Trends, Predictions, Prognostications and Expectations for 2006 we have found:

54 Economists give us Economic Signposts for 2006 at BusinessWeek covering economic growth, corporate profits, unemployment, inflation, crude oil, interest rates

Naked Conversations Predictions for 2006 relating to Blogging

Forbes has a Crystal Ball to rub for Sneak Peak 2006

John Batelle's Searchblog Predictions 2006

The International Herald Tribune, via Richard Bernstein and the New York Times, has Europa: Predictions for 2006, dire and not so dire

Jon Udell's Weblog Predictions for 2006

Jason Calacanis' My Predictions for 2006

Staff writers Jessie Seyfer, Steve Johnson, Dawn Chmielewski, Matt Marshall and Michael Bazeley of the Bay Area Mercury News have compiled the Top 10 tech trends for 2006, resulting in this Slashdot response

PCmag.com has Jim Louderback's article Industry Expert's Predictions for 2006, presenting the prognostications of Mark Anderson, publisher of the Strategic News Service newsletter

Via the IHT we find Conrad de Aenlle of The New York Times and his Investing: Predictions for 2006

Fuzzy Blog has Pundit predictions for 2006. Scott Johnson founded Feedster, to which we are grateful for Law Pundit RSS feeds. We point particularly to his prognosis that "River of News style aggregators will become the norm." See also Nick Bradbury.

Peter Gallagher has A few predictions for 2006 on trade and public policy issues

Russell Shaw of ZDNet has Ten Converging World Predictions for 2006

Andy Budd has Web Design and Development Predictions for 2006

Nancy Weil, IDG News Service, Boston Bureau has Top Predictions for 2006 at ITworld.com

Alex Barnett has Several Predictions for 2006, a collation of predictions

Fitness Trend Predictions for 2006 were issued by the American Council on Exercise

Jeff Pulver has 2006 Predictions for IP Communications Industry

Cellular-News has Top 10 Global Wireless Predictions for 2006

Hypergene MediaBlog has a Sampling of New Media Predictions for 2006

Online Advertising Predictions For 2006 are made by 24/7 Real Media

Om Malik writes on Hey AOL, You Got Googled, a future portent

Cynthia Brumfield (via Malik) writes that Government has discovered future Podcasting

To Prepare for 2006 we have added to our LawPundit Blawgroll:

Adam Smith, Esq. ... an inquiry into the economics of law firms, by Bruce MacEwen, Creator & Host
Bruce has a posting on Great Expectations for 2006 -- If You Have the Talent

To Keep up with 2006 we have added to our LawPundit General Blogroll:

Economic Developments Futures Blog, by Don Iannone, which contains some interesting posts relating to economic expectations for the year 2006.

The LawPundit Top 10 Incomparable Predictions for 2006 are:

1. Many predictions will be made and some will come true, but many will not.
2. No matter what you expect in the coming year, something you do not expect to happen will happen, and something you expect to happen will not happen.
3. The more expectations that you have, the more likely it is that you will be disappointed.
4. The fewer expectations that you have, the more likely it is that you will be pleasantly surprised.
5. Happiness will sometimes be judged by some to be a function of the fulfillment or non-fulfillment of their justifiably or non-justifiably held expectations, rather than by the objective assessment of what is actually happening.
6. Many world issues thought to be important now will be less important tomorrow, as new issues arise.
7. Many forseeable problems will not be foreseen, but will surface nevertheless.
8. Many problems will be solved and many problems will remain unsolved, which will not hinder us from trying to solve them.
9. Of all published predictions for 2006, we expect the accuracy of the LawPundit predictions to be unsurpassed, and this too may turn out not be totally true.
10. No matter how many expectations are fulfilled or not fulfilled in 2006, there will be new expectations in 2007.

And, if we are pardoned a bit of prognostication humor, we have these three extras:
11. Sex will remain a hot topic in 2006.
12. The world will not end in the new year, although Fimoculous disagrees.
(The intervening prognostication has fallen victim to superstition, a common malady, which will surface in the news about world religions daily in the next year).
14. Gross stupidity and cheap vulgarity will continue in 2006 to be mankind's most successful martketable commodity. This is no surprise to a Swift Yahoo. When made aware of the fare served up by Howard Stern and Ali G, scientists will study whether the drop of the average human IQ to below 50 has been caused by television or the internet or both. Other scientists will study whether that Average IQ was ever as high as 50 (Average IQ is defined as 100 - got it? - dat wuz da point). [Note: As additional evidence of the continuous and pervasive drop in man's average IQ, fewer people will buy our book this year than last.]

And of course, to end on a positive note:
15. The world will continue to be as interesting in the coming year as it was in the past year (digg it?), even though not everything will happen as we would like, but sometimes, as sung by The Rolling Stones, you may not always get what you want, but you might get what you need.

That's life, also in 2006.

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^Permalink : Andis Kaulins : 1/01/2006 09:10:00 PM

....LawPundit