In addition to these general exceptions in cases of disproportionate injury, Section 101(2) prescribes that the measures under Section 98 and Section 99 are not applicable at all to works of architecture, nor to separable parts of copies and equipment that may otherwise be lawfully used for reproduction or distribution. This last provision supplements that of Section 98(3) which provides that destruction and delivery are not available if such remedies would be disproportionate and, further, if the effect of the infringement can be eliminated through other measures. Therefore, there are three steps of inquiry: (1) Are non-infringing parts of copies or equipment separable? (2) Are infringing copies or equipment modifiable so that they could be used for non-infringing purposes? (3) Should the infringer be allowed to compensate the plaintiff for his or her acts in money because injunction, destruction, or delivery would result in a disproportionate injury? The latter option, however, is only available where the infringement was neither intentional nor negligent.
According to Section 101a, in a case where copies are unlawfully reproduced or distributed, the claimant may discover information from the infringer concerning the origin and marketing channels of the infringing copies. According to Section 101a(3), the infringement must be obvious and clear if a defendant or another party is to be subject to a preliminary injunction (einstweilige Verfugung) ordering discovery.8)_and_footnotes(n180);.vk n180 The legislators intended such discovery to help copyright owners in their fight against piracy, but it is not easily pursued in cases of online infringement. In this regard, the case law is divided about whether to obligate an Internet-service provider, brought into a civil suit, to reveal details concerning its customers.8)_and_footnotes(n181);.vk n181 Pending changes in the law may moot recourse to criminal procedures to discover such details.8)_and_footnotes(n182);.vk n182
In addition to these general exceptions in cases of disproportionate injury, Section 101(2) prescribes that the measures under Section 98 and Section 99 are not applicable at all to works of architecture, nor to separable parts of copies and equipment that may otherwise be lawfully used for reproduction or distribution. This last provision supplements that of Section 98(3) which provides that destruction and delivery are not available if such remedies would be disproportionate and, further, if the effect of the infringement can be eliminated through other measures. Therefore, there are three steps of inquiry: (1) Are non-infringing parts of copies or equipment separable? (2) Are infringing copies or equipment modifiable so that they could be used for non-infringing purposes? (3) Should the infringer be allowed to compensate the plaintiff for his or her acts in money because injunction, destruction, or delivery would result in a disproportionate injury? The latter option, however, is only available where the infringement was neither intentional nor negligent.
According to Section 101a, in a case where copies are unlawfully reproduced or distributed, the claimant may discover information from the infringer concerning the origin and marketing channels of the infringing copies. According to Section 101a(3), the infringement must be obvious and clear if a defendant or another party is to be subject to a preliminary injunction (einstweilige Verfugung) ordering discovery.8)_and_footnotes(n180);.vk n180 The legislators intended such discovery to help copyright owners in their fight against piracy, but it is not easily pursued in cases of online infringement. In this regard, the case law is divided about whether to obligate an Internet-service provider, brought into a civil suit, to reveal details concerning its customers.8)_and_footnotes(n181);.vk n181 Pending changes in the law may moot recourse to criminal procedures to discover such details.8)_and_footnotes(n182);.vk n182
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