In local.freenet, you wrote:
>IANAL either, but IMHO proxy caches fall under the provisions of article 1,
>paragraph 5, section 3 of the Information and Communication Services Act,
>available online at http://www.iid.de/rahmen/iukdgebt.html:
>
>(3) Providers shall not be responsible for any third-party content to which
> they only provide access. The automatic and temporary storage of third-
> party content due to user request shall be considered as providing access.
I found some more comments on
http://www.barkemeyer.de/PROVIDEN.html
******
For other providers, liability is only engaged if the following circumstances
apply :
[...]
The access provider is not responsible for external contents, indeed he will
not become a service provider even if the external contents are being
intermediately stored on his server using the 'proxy-cache' procedure
(§§ 5, para 3, MDStV / TDG).
****
However, the next paragraph says that 5.3 is questionably and may be void:
****
As far as the provider's privileged liability merely results from the MDStV,
there is still some legal uncertainty. In the view of part of the critics,
§ 5 para 3 MDStV is contrary to the Constitution because it interferes with
the civil and penal liability of the provider under the German Civil Code
(BGB) and Penal Code (StGB) which belong, however, to the competence of the
Federal State and not of the Länder. This would mean that the privileged
liability position is void and that, as a principle, providers will still
be liable in the future (Koch, CR 1997, 193[198]). One has to wait and see
if the issue will be cleared up by an ammendment of the MDStV and the TDG or
if the Federal Constitutional Court will have to settle the dispute.
****
This point of view can be found in several places (all over Google).
It would be nice if someone from FITUG, Heise, NETLAW whatever could
comment on this. I´ll see if can get some more facts...
--
Volker Stolz * [EMAIL PROTECTED] * PGP + S/MIME
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