Steffi Graf Wins Case Vs. Microsoft

scaramush writes: "The AP is reporting that Steffi Graf has won her lawsuit against Microsoft for hosting nude doctored photos of her. Although Microsoft had removed the images when they appeared in June, MS declined to sign a formal agreement that they would not appear again. This is the second loss for MS in this case. Scary precedent."

Comments

This is misleading...

[Raetsel]

This is a case in Germany, under German law, against the German division of Microsoft. From the article:

• "...Steffi Graf won a court case against Microsoft Germany..." (my emphasis)

Frightening though it may be, this isn't about any of the draconian US laws.

The real reason why Microsoft lost...

[Anonymous Coward]

The real reason why Microsoft lost this case is simply their greediness.

The judge actually said this: "In their EULA for the (German) MSN service they grant themselfes all the rights for the contents of their users. Also the user pages are embedded into frames of MSN and look like geniue MSN content. This is why Microsoft Germany is responible for this content." (my translation).

The original Text can be found here: href="http://www.heise.de/newsticker/result.xhtml? url=/newsticker/data/cgl-07.12.01-000/default.shtm l&words=Steffi

So this means it's still safe for ISPs to host their users content as long as you don't want to have all rights to your users content.

It's simply Microsofts fault and their greediness which dug their own grave.

--
Andre

Re:The real reason why Microsoft lost...

[happyclam]

And here's what MSN.com's current "photos" agreement says:

MSN Photos In addition to the warranty and representation set forth in these Terms of Use, by Posting a Submission that contain images, photographs, pictures or that are otherwise graphical in whole or in part ("Pictures"), you warrant and represent that (a) you are the copyright owner of such Picture, or that the copyright owner of such Picture has granted you permission to use such Picture or any content and/or images contained in such Picture consistent with the manner and purpose of your use and as otherwise permitted by these Terms of Use and the MSN Site/Services, (b) you have the rights necessary to grant the licenses and sublicenses described in these Terms of Use, and (c) that each person depicted in such Picture, if any, has provided consent to the use of the Picture as set forth in these Terms of Use, including, by way of example, and not as a limitation, the distribution, public display and reproduction of such Picture. By Posting a Picture, you are granting (a) to all members of your private community (for each such Picture available to members of such private community), (b) to the general public (for each such Picture available anywhere on the MSN Web Site, other than a private community), and/or (c) to any person with whom whom you share Pictures through e-mail using the MSN Site/Services, permission to use your Picture in connection with the use, as permitted by these Terms of Use, of any MSN Site/Service, (including, by way of example, and not as a limitation, downloading, printing and making prints and gift items which include such Picture), and including, without limitation, a non-exclusive, world-wide, royalty-free license to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Picture without having your name attached to such Picture, and the right to sublicense such rights to any supplier of such MSN Site/Service. The licenses granted in the preceding sentences for a Picture will terminate at the time you completely remove such Picture from the MSN Web Site, provided that, such termination shall not affect any licenses granted in connection with such Picture prior to the time you completely remove such Picture. No compensation will be paid with respect to the use of your Picture."

Not only are they conceding that the poster has the liability, but they are granting everyone else in the world the right to edit and re-publish your photo without your consent!

CYA has become a new art form in the Redmond law offices, I guess.

Re:The real reason why Microsoft lost...

[stephanruby]

The following is a babel fish translation, of the german article.

---

Steffi may not take MSN user off

Eddi likes Steffi . And Eddi knows well Photoshop. Thus it produced center this yearly falsified Porno pictures of the German tennis icon Stefanie count and made it available under its MSN.de Community side of the world. The predominantly male part of the spectators had a first-class locker photo little hand vibrating to however not also be content, but could over the function "my photo center" additionally to buy.

A glowing Verehrer of the former tennis queen sent after benefit of such pictures a obszoene Mail to his Idol. This awkward kind of the affection stating encountered however little approval: Steffi.Graf switched its lawyer and within fewer hours was Eddis "Fakes OF of star" history -- at least with MSN. the Microsoft managers threw all found star Pornographen out, refused however the delivery of an omission explanation. Thus those wanted to prevent count by a punishment of 500.000 Marks also in the future that its face on different bodies is abused with MSN.

The regional court Cologne decided now to favour of Steffi.Graf (Az: 28 O 346/01). Since MSN in its general trading conditions the rights to use leaves itself to stopped contents of transfers on from the Usern and Community contents by Frames and Logos to look, as if are ms slopes of offers, must the Microsoft GmbH ensure that itself no naked Steffis more in the Microsoft network raekeln. The Unterschleissheimer daughter of the software company from the USA tried everything, from Rezitationen of its AGBs and referring to non-liability up to the deportation of all debt to the company nut/mother in talking moon or on the InterNet altogether. But the court remained hard, gave Mrs. count Recht and took up the "concrete unlawful act to the prohibition tenor" for the provisional order. Even Microsofts reference that Mrs. count could not make a repetition danger convincing, did not let the court apply. The company already affirmed the repetition danger by its contradiction against the original omission explanation. ( cgl /c't)

Nothing new here.

[RelliK]

AOL has been busted with the same suit, also in Germany. Some AOLuser posted porn on their private web space and AOL was found liable. That case was 2-3 years old. As much as I despise AOL, I think the ruling is ridiculous. There is simply no way an ISP can monitor everything its lusers do.

Well, at least with this ruling Microsoft might be able to buy some polititians to get the law changed. But then I would have expected AOL to do that a long time ago. Any Germans care to comment?

She didn't win the lawsuit

[ehiris]

She won the Gerichtsprozess.

Points missed

[Anonymous Coward]

Sorry, but you missed some points:

1. Microsoft was NOT sued as ISP but as contend provider, because their old terms of use claimed ownership of all pictures etcetera someone posted to their forums.
2. Microsoft made money of those faked naked Picures of Steffi Graf by puting advertisments on the same page
3. Microsoft blured the origin of the contend
4. German Law (BGB) is from 1900, so compared to the much older angelo-saxon law it has less "Bugs" a lawer for a big company could use to get a case dismissed

See for yourself (in german language):
http://www.heise.de/newsticker/search. shtml?T=Stef fi

Um , you sir are wrong

[carlcmc]

Your wife may be a cardiologist, but I am a PA at the Mayo Clinic in the Cardiac Surgery division. The body most certainly can be alive while the brain is dead. The body being alive=oxygenated blood reaching the cells and profusing them allowing the to complete their normal homestatic mechanisms.

And NOOOO, a LVAD will not keep a dead heart alive. As I said, I work in cardiac surgery. A LVAD (left ventricular assist device) or RVAD or BiVAD will only help if the heart is still alive. The key word being ASSIST in "left ventricular assist device".

Now, if you wish to argue the definition of alive, but according the definition that we have used in this discussion, what he said was fairly correct.

Re:"Scary Precedent"? Um, what?

[Darby]

"The photos... appeared last year on the site operated by Microsoft Germany where users could post pictures and texts to share with others".

Microsoft was merely acting as ISP in this case.

This has been said many times in this article, so I'm not picking on you specifically. I just picked this post to respond to.

MS was *not* acting as an ISP in this situation. Do you see where you said "on the site operated by Microsoft". In this situation they were a hosting provider. The picture was posted on some MSN community or similar. No one said that whoever posted the picture used them to dial up to the internet.
Further MS claims in their terms that they own all of the content on the site. So they are the host of the material and further they claim to own it as well. This makes them the publisher. In this case MS's draconian license scheme backfired and they *are* liable. If they had some disclaimer like at the top of this page:

The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.

then they would *not* have been liable. Since they provide the web space *and* they feel that this entitles them to ownership of anything anyone else makes and posts there, they got screwed in this case.

read the court's explanation

[__aawsxp7741]

This ruling does not actually apply to all forums. For instance, Slashdot would not be affected. The court's explanation (google translation) clearly states that the decision was based on the fact that Microsoft has "acquired" the posted information by closely integrating it into their site and, more importantly, by claiming rights to it.