On 12 November 2014, the German Federal High Court (BGH) ruled that a sales contract for a used car concluded on the internet platform eBay was valid, even though the seller ended the listing early when the buyer’s initial offer of EUR 1 remained the highest bid (BGH VIII ZR 41/14). As the defendant (the seller) subsequently sold the car elsewhere, the BGH granted the plaintiff (the buyer) damages amounting to the lost profit (the value of the car minus the bid of EUR 1). In another decision dated 10 December 2014, the BGH confirmed the aforementioned decision and granted the plaintiff damages after the defendant had ended the eBay listing of a power generator early and had sold it elsewhere (VIII ZR 90/14).
Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/germany-german-federal-high-court-rules-on-two-ebay-offer-listing-cases/
Our global Media, Sport & Entertainment Hub provides insights into various legal and commercial issues impacting on this space.
In this, our first “HUB FOCUS”, we provide an extract, focussing on recent trends in the broadcast media industry in Sweden:
“Video on demand-services have seen immense growth in Sweden recently. Sweden is one of the most competitive markets for subscription-video-on-demand (SVOD) in the world. Sweden was one of Netflix’s first international markets and also where Time Warner chose to launch its pilot project HBO Nordic; the first time HBO has offered its content as a stand-alone online streaming service. According to a report from consultants Mediavision Youtube is by far the most popular streaming site in Sweden, reaching 1.3 million daily viewers in the third quarter of 2014. Youtube represents 25 percent of all web-viewing in Sweden and is not far from what the local TV operators SVT, TV4, MTG and SBS Discovery achieve together online.
In the light of recent successful Swedish games/apps for smart-phones, the creation of TV formats based on famous apps is a trend to look out for in the future.”
Click here to read more about this and sign-up to join our HUB.
Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/hub-focus-recent-tv-trends-in-sweden/
By Alasdair Muller and Patrick Mitchell
The Court of Arbitration for Sport (“CAS”) decision in Dirk de Ridder v International Sailing Federation, recently published in full, has outlined six propositions to ensure that the disciplinary procedures operated by sporting governing bodies adhere to principles of procedural fairness and justice.
Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/cas-decision-addresses-fairness-and-justice-in-sports-disciplinary-cases/
By John Wilks and Catherine Beloff
The CJEU has ruled that database owners whose databases are not protected by copyright or the sui generis database right may rely on contractual terms and conditions to restrict access to and exploitation of their data. As a result, it will be particularly important for owners of online databases that do not qualify for IP protection to obtain advice on how best to protect their data contractually in the countries in which they do business. Businesses who currently scrape data should take a good look at the small print of the terms applying to the websites they are scraping from.
Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/ryanair-scrapes-a-win-but-not-using-ip/
AUSTRALIA: ASIC rules risk management facilities to be used by sporting organisations are financial products
On 28 January 2015, the Australian Securities and Investment Commission (ASIC) rejected a relief application by the issuer of ’risk management facilities’ used by sporting clubs and retailers. The application for Australian Financial Services (AFS) licensing relief was refused on the basis that ASIC viewed the facilities as financial products and so the issuers of the products were not exempt from the need to obtain AFS licences to cover their operations under s 911A of the Corporations Act 2001 (Cth).
ASIC reported that the relevant risk management products were used by sporting clubs to manage liabilities surrounding performance-based payments made to their players, third-party promoters and/or retailers and were particularly important for the management of exposure associated with running incentive schemes that are contingent on the outcome of selected sporting events.
ASIC’s quarterly Relief Applications Report stated that the products were ‘clearly financial products intended to be regulated under the Corporations Act‘ and it was intended that issuers of such products to wholesale clients should hold AFS licences and that costs associated with obtaining the licence (identified by the applicant) were an ‘ordinary cost of compliance’.
For the full text of the ruling, see paragraphs 158-160 here.
Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/australia-asic-rules-risk-management-facilities-to-be-used-by-sporting-organisations-are-financial-products-2/
A British man banned from attending Cricket Australia (CA) matches for allegedly ‘pitchsiding’ at three ‘Big Bash League’ matches held in late December 2014 has indicated that he intends to challenge the legality of the ban.
‘Pitchsiding’ or ‘courtsiding’ is the practice of placing in-play bets at the venues of live sporting matches to exploit the small time delay between play occurring and the information being relayed via TV or online feed to betting agencies (who adjust their odds according). Exploitation of this delay can be extremely profitable especially where agents are located overseas. This is of particular concern to proprietors of sporting events, particularly where it threatens the integrity of gambling surrounding the matches and has the potential to undermine lucrative relationships with media partners who provide feeds to the respective betting agencies.
The man was convicted on 19 January 2015 having pleaded guilty to trespass charges and was cumulatively fined $1200 for also failing to comply with the terms of his entry ticket to one of the matches held at ANZ Stadium. The practice is a not criminal offence in NSW and so organisations and venues are only able to counter this issue by expelling and banning patrons from venues for breaching their terms of entry. These organisations are lobbying for more widespread legislation that replicates legislation in Victoria, which criminalises ‘engaging in conduct that corrupts or would corrupt a betting outcome of event or event contingency’. This legislation was prompted by an unsuccessful prosecution of an instance of ‘courtsiding’ at a 2013 Australian Open tennis match.
Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/australia-courts-not-siding-with-pitchsider/
In November 2014 the Smith Commission published its report detailing heads of agreement on further devolution of powers to the Scottish Parliament. One of its recommendations was that the Copyright Tribunal’s functions should be transferred to a Scottish tribunal.
On 22nd January 2015 the Government published the Command Paper “Scotland in the UK” which, among other things, implemented that recommendation, subject to consultation. There will be no immediate impact on the Copyright Tribunal- the draft legislation only sets out those powers that could be put in place to effect the transfer.
See the Government update here: https://www.gov.uk/government/news/copyright-tribunal-possible-transfer-to-scottish-tribunal
Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/uk-copyright-copyright-tribunals-powers-to-scottish-tribunal/
By Matt Ganas, Frank Ryan and Melissa Reinckens
On January 6, 2015, the Ninth Circuit decided that Electronic Arts Inc.’s (“EA”) unauthorized use of former NFL players’ likeness as avatars in the Madden NFL video game series does not qualify for First Amendment protection. Davis v. Elec. Arts Inc., 2015 BL 1633 (9th Cir. Jan. 06, 2015). It thus affirmed the lower court’s denial of EA’s motion to strike the plaintiffs’ California right of publicity action as a strategic lawsuit against public participation (SLAPP), under California’s anti-SLAPP statute. This outcome is consistent with recent decisions that have also rejected EA’s attempt to overcome athletes’ right of publicity claims related to its simulated virtual reality sports video games on First Amendment grounds. See Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013); Keller v. Elec. Arts Inc., 724 F.3d 1268 (9th Cir. 2013). The Davis ruling is significant in its own right, however, as it addresses EA’s “incidental use” defense not at issue in Keller or Hart.
Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/usa-ninth-circuit-rejects-eas-incidental-use-defense-in-madden-related-right-of-publicity-suit/
By Claire Sng (nee Bailey) and Benjamin Simon
A claim for compensation against Sotheby’s auction house over the sale of a disputed ‘Caravaggio’ painting has been thrown out of the High Court, as reported here.
The Claimant, Mr Thwaytes, brought a breach of contract and professional negligence claim against Sotheby’s. The claim was made after the Claimant’s painting, attributed by Sotheby’s specialists to a ‘follower’ of Caravaggio and sold by Sotheby’s for £42,000,was subsequently attributed to Caravaggio himself and is, according to the judgment “apparently now insured for £10 million“.
Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/uk-media-sothebys-auction-house-wins-high-court-battle-over-caravaggio-painting/
Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/uk-data-proteciton-information-tribunal-rule-on-foia-exemptions-concerning-the-tate-gallery-and-bp/