As I recall, Germany did not ratify the United States Constitution


I remember reading a news report on a court case wherein the defendant claimed protection under the First Amendment of the United States Constitution. An interesting angle, especially since the case was being tried in Germany under German law. I may be wrong, but it is my impression that Germany did not ratify the United States Constitution.

There’s actually a point to this anecdote. Occasionally, when someone notes that Windows doesn’t do one thing or another thing for legal reasons, people will post comments saying something like, “Well, a German court ruled that XYZ is legal, so your reason is bogus.” Or, “The case of P vs. Q established that XYZ does not apply, so that concern is irrelevant.” Or more subtly, “It has been determined that DEF is allowed.” (Whose courts? Whose constitution? Is allowed where?)

You may not realize it, but Microsoft sells software throughout the world, and different parts of the world have different laws. What is legal in one country may not be legal in another, and Windows needs to conform to the intersection of all those laws. (On rare occasions, it will change its behavior based on what country you’re in if that country’s laws are significantly at odds with those of the rest of the world.) Claiming protection under the United States Constitution or citing a U.S. court decision doesn’t carry much weight in front of a German judge.

Comments (37)
  1. oh says:

    Why do business in countries that have laws you don’t like?  You already have the monopoly on Windows and Office, so people will buy and import your products anyway.  Punish the countries you don’t like by not providing any jobs for them, and making their people pay more to import software from outside.

    [This comment completely messes the point of the article. The point of the article is that saying “This is legal under US law” doesn’t give you any legal standing in Germany. Or is your point that if somebody says, “X is legal in Germany (but not in the United States)” that everybody should close up shop United States and move to Germany? -Raymond]
  2. HA HA HA says:

    teh brits use 999 for a emargentcy numbar insteada 911 b ut theyave hadda set up 911 also beacasue people who wach too much u.s. tv dial 911 instead.

  3. Morten Krog says:

    Like in the EU? Do you honestly believe Microsoft would make anywhere near the current revenue without an official presense in any EU country?

    Monoploy or no monopoly. I think that some markets are important enough for Microsoft to make them accomodate local laws.

  4. Matt Green says:

    Kind of like how the vast majority of arguments people use on the Internet are usually riddled with fallacies, and the author is completely unaware of it.

  5. Leo Petr says:

    On the contrary, my dear oh. If you withdraw from a market and are lucky, people will pirate your software with a wink from the authorities. If you are unlucky, the authorities will enforce your copyright and encourage people to switch to Linux and OpenOffice — don’t let people’s loathing of change mask software utility. If you are very unlucky, the authorities will invalidate your copyright and print copies themselves.

    Do not tussle with countries if you are not one yourself.

  6. Carlos says:

    "Why do business in countries that have laws you don’t like?"

    The UK has many laws that I don’t like.  I do business here because it’s where I live.

  7. dave says:

    "Why do business in countries that have laws you don’t like?"

    Because they’d be doing business nowhere?

  8. Steve Loughran says:

    In the UK it is probably illegal to rip CDs; there is no fair use law. We don’t want that bit turned on.

    The EU interop laws often come up in discussion, and they are interesting. They say that you are allowed to do reverse engineering for hardware interop. Not software: hardware. They came from the Amdahl/IBM battles, when IBM owned the wire protocols for disk arrays and the like. It’s a lot harder than you think to use the law to justify the reverse engineering needed to make your middleware server work with COM+.

  9. James Curran says:

    As a side note to "Ha Ha Ha’s" 911 comment, it seems that many people is developing countries get their only lessons in law enforcement and the rights of the accused from watching reruns of old American TV shows, so if they are arrested, they expect/demand the same rights from their (generally dictatorial) government.  As one pundit put it, "’Starsky & Hutch’ may be the greatest motivator of social change in the world"

  10. Wang-Lo says:

    "Claiming protection under the United States Constitution or citing a U.S. court decision doesn’t carry much weight in front of a German judge."

    Seems like only common sense.  I mean the laws of a country extend only to its borders, right?  It’s not like a court off in the Netherlands or someplace could issue an order forcing an American company to change the name of its product line or anything.

    -Wang-Lo.

  11. Ryan says:

    Leo> "If you are very unlucky, the authorities will invalidate your copyright and print copies themselves."

    This has been brought up a million times on Groklaw and gets shot down every time.  Nearly all WTO countries are signatories to the Berne Convention and the TRIPS Agreement; if a country chose to ignore these treaties, they’d promptly be waist-high in trade sanctions — or they’d be ejected from the WTO.

    (Taiwan is the classic case here — they’ve been running into problems with domestic enforcement of copyright, since they only became a WTO country a few years ago.)

  12. James says:

    A corollary is that the German government is not elected by Americans, and so one should not expect it to act in their interests. And vice versa.

    Also, the U.S. State Dept. Web site devotes a lot of words to pointing out that a U.S. embassy does not have the power to impose American law abroad. It’s surprising how many people go to a foreign country without any idea of what’s legal or illegal there.

  13. Kuwanger says:

    I’d just like to chime in with a comment about common law.  While it’s the case that a ruling made in Germany, for example, doesn’t automatically translate to the precedent set being valid in the United States, it is also the case that such a precedent, if based on analogous previous rulings and/or law in the United States, can be used as part of a defense.  As such, many non-lawyers online will often argue that the precedent itself is sufficient basis to assume that a certain situation is legal/illegal as set forth in the precedent.

    Now, obviously, lawyers are more inclined to be trepidous about such comments, especially if they believe it will be taken as legal advice.  And certainly Germany, for example, and the United States clearly have enough laws that are different that it’s not as simple as taking some precedent from Germany and really assuming that the precedent is valid in the United States.  So, I’d agree that it’s invalid to point at the precedent and act like it’s a given that it would stand in court.  At the same time, without arguments to the contrary, precedents do provide at least a valid attempt to guess on what would be the probable outcome of a case.  Obviously, it will be courts that finally decide on just what is valid.

  14. Marcel says:

    Wow, one of the comments was from me. Go me! No, I do see the point in general, but from an engineering standpoint I stand by my opinion. Figuring out the legal side is a job for the lawyers, I’ve heard Microsoft does employ a few ;-)

    Steve Loughran: "The EU interop laws often come up in discussion, and they are interesting. They say that you are allowed to do reverse engineering for hardware interop. Not software: hardware."

    Not sure what you’re talking about, but Council Directive 91/250/EEC seems pretty clear to me (or as clear as legal texts can be to me…):

    "Article 6 Decompilation

    1. The authorization of the rightholder shall not be required where reproduction of the code and translation of its form within the meaning of Article 4 (a) and (b) are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, provided that the following conditions are met:

    […]"

  15. Mike Dimmick says:

    Ofcom (the UK’s communications regulatory office)’s ‘National Telephone Numbering Plan’ document at http://www.ofcom.org.uk/telecoms/ioi/numbers/100806.pdf makes no mention of 911 for emergency calls. Perhaps you were thinking of 112, the European standard emergency call number?

  16. mikefried says:

    Wang-Lo wrote:

    "Seems like only common sense.  I mean the laws of a country extend only to its borders, right?  It’s not like a court off in the Netherlands or someplace could issue an order forcing an American company to change the name of its product line or anything."

    This happens all the time. Say that a company such as Apple has some product like iTunes and sells something like DRM’ed Music to the citizens of a country such as France, and France has some law requiring any company including Apple to do something (say share some DRM secrets with competition) in order to sell a DRM Music product in the country. Any company which violates this law can be fined some amount per infraction.

    If you are an Executive at Apple, this would mean that you have a choice:

    1) Pay a fine to continue violating the law (pass on the fine on to your consumers) or

    2) Share the secret with the competition or

    3) Stop selling Music in France or

    4) Appeal to a court

    All companies selling internationally (not just Apple and Microsoft) have these kinds of problems. Laws are laws. Corporations are not above the laws in any place they do business in. It’s a complicated world we live in.

  17. Norman Diamond says:

    Most days it seems the U.S. didn’t ratify the U.S. constitution either.  Also, living in a country that has a U.S.-written constitution, most days it seems that in every country that has a U.S.-written constitution it’s illegal to obey a U.S.-written constitution.

    Tuesday, August 29, 2006 4:55 PM by James

    > Also, the U.S. State Dept. Web site devotes

    > a lot of words to pointing out that a U.S.

    > embassy does not have the power to impose

    > American law abroad.

    Um, that’s interesting.  Any chance that the U.S. State Dept. might be able to teach this to U.S. courts?  To U.S. Congresses and presidents?

    [This is not a political blog. Please do your sniping somewhere else. -Raymond]
  18. Jayakrishnan K says:

    (On rare occasions, it will change its

    > behavior based on what country you’re in if

    > that country’s laws are significantly at odds

    > with those of the rest of the world.)

    I guess Encarta has many of those rare occasions ;-)

    http://www.theregister.co.uk/1999/06/25/ms_encarta_facts_vary_depending/

    (ducks and runs for cover)

    [Last I checked, Encarta wasn’t part of Windows. -Raymond]
  19. brij says:

    I guess, MS has played it’s part really well at diff. parts of the world to match with their Laws…it’s really difficult anyways to take consideration of all of them…COMEON it’s just an OS…people / country’s bully MS just b’coz MS is an easy target…if a small co. develops an OS in any part of world…they’ll hardly ask him to follow any rule.

  20. WorldDomination says:

    Poor microsoft. It’s hard to control the world. All these governments selected by people are interfering.

    > This is not a political blog

    The topic of this thread is.

    [The topic of this thread is not griping about the current administration. -Raymond]
  21. KJK::Hyperion says:

    "HAHAHA", I think it has more to do with the fact that 911 is the standard emergency number of the GSM network

  22. Nick Lamb says:

    KJK::Hyperion

    GSM specifies 112 as the emergency number, because its the only one recommended by any independent standard (in this case, a standard propagated by the appropriate European standards body in the 1970s) and because it is used in more places than any other. A compliant GSM handset should route ‘112’ to a suitable local emergency service (in most countries a central emergency services call center, in a few, the police) subject only to local legal restrictions (e.g. some jurisdictions require a valid SIM before placing any call no matter if its an emergency)

    The 911 number seems to be selected only in North America and a few odd places where US telcos installed the infrastructure or had undue influence over its design.  Because re-directs are easy to implement and American culture has been exported everywhere it probably works, but is undocumented, in several other countries, but it’s not part of the GSM standard.

  23. Stephen Jones says:

    Actually if the present lot on Capitol Hill got their way some company could go off and patent the first Amendment and then the poor bugger in Germany would be sent to jail for stealing somebody’s intellectual property.

  24. KJK::Hyperion says:

    Nick, you are right. I was 99% sure that my phone (an old Motorola C115) only allowed dialing "911", but it turns out it’s actually "112". Curse my faulty memory

  25. pirate says:

    http://thepiratebay.org/ is a good example for this thread.

  26. Nawak says:

    Well, one of my comments is linked too!

    In defense of what I said, I didn’t want to imply that since a germany court ruled that EULA weren’t binding, they were automatically not binding in my country (I noted, that well, I was in France, not Germany).

    I thought that the german case was still interesting since it may be have been based on laws that have equivalent in other countries, and even on common sense (this item may be less  spread).

    Of course it was badly worded, but I wanted to imply that maybe they were not binding nearly everywhere but were only "tried" in Germany…

  27. Norman Diamond says:

    [The topic of this thread is not griping

    > about the current administration. -Raymond]

    My curiosity about whether the U.S. State Dept. could teach anything to U.S. courts and congresses and presidents also wasn’t griping about the current administration.  Some court cases that I’ve read about predate the internet.

    OK, maybe I should have just asked it this way:

    > As I recall, Germany did not ratify the

    > United States Constitution

    Any chance that Mr. Chen might be able to teach U.S. courts and congresses and presidents?

    (Though seriously, I’d be satisfied if the U.S. State Dept. would be able to accomplish that.)

    [“Any chance that Mr. Chen might be able to teach U.S. courts and congresses and presidents?” You’re telling me that isn’t griping? -Raymond]
  28. Norman Diamond says:

    Wednesday, August 30, 2006 5:07 AM

    > [The topic of this thread is not griping

    > about the current administration. -Raymond]

    Wednesday, August 30, 2006 11:43 PM

    > [“Any chance that Mr. Chen might be able to

    > teach U.S. courts and congresses and

    > presidents?” You’re telling me that isn’t

    > griping? -Raymond]

    You don’t see your previous words

    “about the current administration”?

    Thank you for having enough integrity to leave them up for others to see, at least this far.

    I was/am telling you that most of that particular gripe was about institutions other than the current administration.  You even mentioned that some courts recognize that a country’s domestic laws don’t ordinarily apply to another country.  I pointed out that more courts need to learn the same point.  Then you chucked out your integrity in order to play this word game.

    I am duly offended by your dishonesty in this word game.  Need a better “diff” command?

    1< griping about the current administration

    2< griping

    Here, I’ll help your next word game:

    { The topic of this thread is not griping about the current administration.  “I am duly offended” — you’re telling me this isn’t griping? -Ghost written as a public service }

    [My mistake for assuming you were griping about the current administration. You were just griping about the United States in general. Off-topic in either case. Now we’re just nitpicking over the reason. -Raymond]
  29. God says:

    This thread’s topic: M$ employee gripe about abroad administrations.

    What not to do: Tell M$ employee about US administration.

    [I’m not griping about any administration. I think it makes perfect sense that laws in the United States do not apply to Germany. -Raymond]
  30. kokomo says:

    Somehow these remind me of the speed-of-light argument at

    http://blogs.msdn.com/oldnewthing/archive/2006/05/29/610090.aspx

  31. panama jack says:

    Poor Manuel Noriega, he made the same faulty assumption Mr. Chen makes.

    US "law" applies everywhere, mi amigo.

  32. Hal O'Brien says:

    "I remember reading a news report on a court case wherein the defendant claimed protection under the First Amendment of the United States Constitution. An interesting angle, especially since the case was being tried in Germany under German law. I may be wrong, but it is my impression that Germany did not ratify the United States Constitution."

    No… They had ratified on their behalf (insert "Fawlty Towers" reference here about not mentioning The War) {cough} the German Basic Law.

    The Basic Law’s provisions for freedom of speech and expression are more broad than the US Constitution’s:

    "Article 5 [Freedom of expression]

    (1) Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship."

    So… Ah.  Wait.  You just said "First Amendment."  You didn’t say which clause.  So it might have been the Establishment Clause, or Peaceful Assembly, or something else.

    Still.  The Basic Law, in general, is more sweeping than the US in its liberties.  The Germans generally don’t push it as hard as a random bunch of Americans (and notably, American lawyers) would with the same wording, but…

    Here’s a link to the official English translation:

    http://tinyurl.com/hnla4

  33. Peter Clay says:

    What about the case of Dmitri Sklyarov, who wrote a program that was legal in Russia but "illegal" in the US, and as a result was arrested when he went to LA for a conference?

  34. James says:

    "What about the case of Dmitri Sklyarov, who wrote a program that was legal in Russia but "illegal" in the US, and as a result was arrested when he went to LA for a conference?"

    He wrote it in Russia, but then hosted it on US servers (hence subject to US law). If he’d been hosting child pornography or viruses on a server in the UK, would you object to the UK prosecuting him for it, regardless of Russian law on the matter?

  35. Stephen says:

    Through the Omnibus Anti-Crime Act, the US Congress has asserted worldwide jurisdiction of US law over any offense committed against US citizens or interests.  The FBI is empowered to enter foreign countries illegally and arrest foreign citizens (possibly on their own soil) for violating US laws; such an action is called a "rendition".  They keep under wraps how many times we’ve actually done so, but it does happen.  There’s a fair number of countries out there that are actively hostile to the US, not just annoyed like most US "allies".

    Now, most countries are very cooperative with the State Dept when a US citizen gets involved in something bad overseas.  Just look at Central America, where countries execute thousands of their own people every year but Americans are untouchable by the govt and criminals are punished extremely harshly if they mess with Americans (if the local govt can find them, with the help of the FBI and/or bribes).

    Look also at Aruba’s response to that American girl being kidnapped; there’s no way they respond like that to their own people disappearing, if they react at all.  Why?  Because if they didn’t cooperate, we’d hunt down the people responsible and bring them back without their help, and Aruba would have taken a huge PR hit.

  36. This has further ramifications when you look at web-based services such as Amazon’s S3 distributed storage system, which replicates data among data centres to ensure failsafe redundancy.

    If they decide to install a data centre in the UK (more redundancy, less latency for Europeans), and they happen to replicate your data to that data centre, you are suddenly subject to UK law: for example, you may find yourself threatened with jail if you don’t release your encryption keys.

    This kind of thing is a major problem for many Internet services and may throw us back onto having to use single, local servers for all sorts of purposes. I’ve written this up in more detail at http://cardbox.wordpress.com/2006/08/25/s3-in-business-11/

  37. Amos Houndsbreath says:

    Since one of the comments was a follow up to my ‘solution to the Samba problem’ post –

    http://blogs.msdn.com/oldnewthing/archive/2006/03/31/565878.aspx#566266

    I’d advise Microsoft to make any server signature check user configurable. Set the default to "Automatically determine CIFS level". The user could select "Use CIFS for all servers" or "Use CIFS+(tm) for all servers". Some countries might need a different default from others. If you get it wrong and a court forces you, change the default with Windows Update on machines that are in that locale, or globally if that is impossible.

    Actually, you could also use Windows Update to revoke keys, which leads to some interesting possibilities for bug handling. A buggy server with code in Rom could be handled by having it’s CIFS+ key revoked on updated clients for example, so it would be only accessed in CIFS mode from that point on. Conversely, new server OSs or updated binaries with bug fixes could have their keys sent out to clients so they would be used in CIFS+ mode again.

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