In a dispute about the virtual Domestic authority has the 10th Civil Chamber of the Landgericht Bonn Court ruled that the ban on virtual house does not count. The Wikimedia Germany eV - Society for the Promotion of "free knowledge" - has been trying for some time, with all possible means in particular with their Wikipedia admin rights this landmark decision on the Wikipedia, an encyclopedia for "free knowledge" to embezzle.
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- as always the other way around before: the decision LG Bonn on 10 November 1999 with the trade number 10 O 457/99 here will now be published until all legal . Landgericht Bonn - http://www.lg-bonn.nrw.de/ LG Bonn, Judgement of 10th November 1999 - 10 O 457/99 "Virtual House Rules "
ON BEHALF OF THE PEOPLE
first An application for the injunction is dismissed.
Grounds
An application for an interlocutory injunction is allowed, in particular the courts to local jurisdiction. The jurisdiction derives from § 32 ZPO. It is accepted law that instrumental in tort as well as the acts are committed Erfolgsort is when are realized by the success of admission constituent elements, without which the tort would not be realized (Smid: Musielak, Code of Civil Procedure, 1999, § , 32, para 16).. Here comes the success of the alleged wrongful act by the applicant available - the use of chat software despite the prohibition of use - at the place where you want the the server is playing up with the chat software. This server is not disputed in the district of the forum district court of Bonn.
The request but has no success on the merits. The plaintiff did not claim the alleged disposal of any substantiated argument and substantiated. It cites against the Defendant on her "virtual property", so it is obvious the rules on the ownership in any event be applied accordingly. An injunction against the Defendant pursuant to § 1004 Civil Code of the applicant, however, not available. She has not shown that the Defendant's chat software used illegally, which would have the condition that it would be pronounced by it is prohibited to use law. If the plaintiff believes it can rule as desired by individual users of its chat software, this is incorrect, according to the chamber. You must admit though, that the owners moved in principle to his cause at will and exclude others from the action can. This principle is however subject to the condition that the rights of third parties are not against it (§ 903 BGB). With respect to the entering of buildings, it is recognized that the owner is generally free to decide whom he granted access to his property. It is different however, if it as a business for the general public access to open and expresses its intention to provide services to each customer. He issued in these cases and, waiving an examination in each case an access authority to the extent the visitors, especially by disturbances in the operating procedure, is no reason to exclude him from this power again (BGH NJW 1994, 188 fmwN). From the point of the ban contradictory behavior of the owner of a bond formed at the access authority, which forbids him to exercise his right house at random (Christensen, fact checking in supermarkets and domestic ban, JuS 1996, 873 [874]. Not
different are here:.. The applicant shall provide their offer to use its free IM software to all users of the Internet, special access controls do not take place also little binding conditions are formulated under which the use is permitted. Unless the plaintiff has argued, the user must accept the so-called "Chattiquette" where it concerns "etiquette" is not apparent that it provisions are included for using the service binding . regulate Was thus for the chat software, a general authority to use, should not the plaintiff by the arbitrary exercise of their "virtual property" that the Defendant again . Escape Compared with the express prohibition of use, he could appeal the ban contradictory behavior in accordance with § 242 BGB.
would be different only if the plaintiff would have had grounds for exclusion, such as an interruption of the operation or that the defendant provided the software is not under the above , would have used usual "chatter behavior.
Such reasons, however, has the plaintiff in spite of the mention Decision of Appeal of 05.11.1999 (pages 12 dA) is not submitted or made credible, it has rather limited to the claim that it threatens not quantifiable damage, because addressed various master-chatter of the Defendant unworthy felt. This presentation is shown at a standard rate, mean that it can emerge as a ground for exclusion and therefore irrelevant. It would have required the presentation of concrete facts, which users have felt offended by that statement, so that even one was present for the Defendant unrequitable lecture. But
even if the manager of the applicant available in the oral proceedings on 12.11.1999 has made, either to disputes between the Defendant and another chatter under the pseudonym (... ) come to the chamber can be found in the no reason which would entitle the plaintiff to the exclusion of the Defendant. To damage the operating procedure of the chat would be affected, it has not argued this is not otherwise apparent. It is also - also taking into account of the date for the hearing, presented "Chat live recording", 19.10.1999 (pages 48 fda) - does not appear that the communication behavior of the Defendant outside the "usual chatter behavior moves "and thus granted by the general use of power would no longer covers. In the recording of a verbal confrontation between the Defendant under the pseudonym (...) and (...) is documented. The applicant has provided the probable cause statement that it also conflicts between other users of the chat come is not in dispute. But if it could come between the individual users to disputes, is not clear why precisely the involvement of the Defendant in such, as evidenced by the significantly advanced the recordings also from the other under the nick name (...) active users were a general of the usage right should not represent more muted performance. In that regard, can the applicant have helped to not talk on your success, it was their long-term goal, a certain level of communication to establish itself as the inevitable default. Apart from the fact that this statement is again too general, can the board a "designated Level "that is otherwise in the instant communication available, as presented in part by the applicant available (pages 42 dA), not apparent.
Furthermore, it is not apparent that the use of chat software from another line and was thus not covered under a different IP address to use with a different nickname from the general right of use. The registry is to use anonymous seen all what the user is a must, to choose a nickname and a password. Which computer, below which IP address it then uses to access, he is free and is just one of the features of the global computer network that represents the Internet. n "- comparable to the access selection in a nightclub - for, this is incorrect: it is the user of the chat software available to the applicant - this is known to the court - free to choose any number of nicknames and each freely under attend a pseudonym in the chat. The dial-in with a different nickname is thus also is not a behavior that would not be covered by the general use of power. Had the plaintiff wish to avoid this, it would have been free to organize access to their chat to, such that they Passwords or the nicknames configured not arbitrary, but it would have made for access condition that the user at least give her full respect to his real name and other data to identify and then all the known users access to only allow a pseudonym. This would have her open the possibility of an "undesirable" users will actually - at least in the technical sense - effectively excluded from using the chat software. That they did not choose this path, can not cause the behavior of those who as part of the move from the available options granted to Siemens, in retrospect, be regarded as unlawful.
Finally, contrary to what the applicant provided no evidence that the Defendant against protective legislation within the meaning of § 823 para 2 BGB has failed. Complained of by their "access surreptitiously" where neither the Teleservices Act, which regulates only the responsibility of those who make the content available in Internet, you can still § 265 a StGB - obtaining of benefits - Relevant. The acquisition is part of the chat with a different pseudonym shows no illegal alteration of data, such as defined in Penal Code § § 268 f. dar. Further suitable protection laws are also not evident.
Lag including as a result of the expressed by the applicant available to "virtual house ban" not an objective reason could, according to the Defendant on the other hand, the prohibition of contradictory behavior § ; called 242 BGB. He thus a counter-law was over from the the property rights flowing the available applicant under § 903 BGB. His continued use of the chat software was not illegal, it was that based on Civil Code § 1004 claim must be rejected to grant the injunction.
the costs follows from § 91 para 1 CCP, the decision on provisional enforceability is based on § § 708 No. 11, 711 ZPO.
Claims: 12.500, - €
http://www.jurawelt.com/gerichtsurteile/5156
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