Thursday, January 28, 2010

Maduro´s neutrality condition critisism

As i´ve pointed out last week, i never got the neutrality condition proposed by GA Maduro. As much as our opinions coinceded on the trademark issue, i couldn´t help to disagree with his reasonig on the hosting exemption. General Advocate stated that hosting exemption does not apply to AdWords, because of not meeting essential neutrality condition (which nobody heard of before..). Thanks to IPkat, i could read the Spanish paper named "The liability of service providers in the information society. Reflections about the Opinion of the Advocate General delivered on 22 September 2009 in joined cases C-236 to 238 /08 Google v. Louis Vuitton and others before the ECJ" co-authored by Manuel Lobato and Fidel Porcuna, today (English translation). To my suprise it´s a great criticism on neutrality condition intrepreted by Maduro. Apparently, we do share points of view on the entire case. Basically it says - YES to GA´s trademark opinion (the opinion isn´t analyzed in the paper), NO to GA´s hosting interpretation. ECJ fortunately still does have a time to address this issue properly in both concerning cases (C-236/08 and C-323/09). It´s really important since these two cases in conjunction with another pending C-324/09 (dealing with general duty of care, individual (ad hoc) duty of care and injunction against intermediary), could provide strong interpretation of the scope of recent safe harbours.

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