The Munich Higher Regional Court (20 U 3236/22 e) had the opportunity to comment on the obligations of a provider of standard software on the occasion of the termination without notice of a software and license subscription.
An often underestimated problem is the so-called pseudo self-employment: It can happen that someone is self-employed “on paper” and also behaves like this in everyday life. However, case law and the social security funds in Germany can come to the conclusion that an employment relationship is to be assumed despite self-employment. Objective criteria are used for this – and if the apparently self-employed person is then actually classified as an employee, this has unpleasant consequences: Social security contributions must be paid in arrears, which in Germany can quickly run into six figures! In addition, there is the threat of criminal liability for the involuntary employer and suddenly a monthly remuneration obligation if one does not give proper notice.
When does pseudo self-employment exist? The Federal Social Court (B 12 R 7/15 R) had the opportunity to comment on the criteria for the assumption of pseudo self-employment. Especially in the area of IT law and the widespread use of freelancers here, this is a constant minefield. At the time, the court had ruled that it is a weighty indication of self-employment if the agreed fee is significantly higher than the salary of a comparably employed employee subject to social security contributions and thus allows for self-provision. On this occasion, the court also once again discussed the criteria to be used in the examination of a pseudo-self-employment.
When developing software (“software development”) and using it commercially, some legal aspects have to be considered in order to avoid possible legal problems.
In the last few years of my work, the same issues have emerged time and again, some of which are underestimated and others ignored by software developers. The local IT startup industry suffers from something that is rarely observed in this blatant form abroad: the complete refusal of legal assistance. The idea of budgeting a fixed portion for ongoing legal costs overwhelms many – and ultimately leads to unnecessary additional costs.
Untested software is worthless – as far as the truism goes. Especially in the case of further developments or bug fixes in productive environments, not only is testing indispensable, but in particular one must work with real data.
The classic is a further developed customer support system to which the changeover is to be made. As a rule, initial test runs are carried out here (in extracts) with existing customer data records. But is this permissible under data protection law? This question has been controversial up to now, but has now been answered by the EU Court of Justice – quite satisfactorily – in a rough outline.
The violation of sanctions (“embargo violation”) is punishable by considerable sanctions – and especially in the past months it is by no means such an exotic violation that one should not have it on one’s radar. In recent months, our law firm has been confronted mainly with requests for advice in the area of software and technology goods, where the question of import or export arises via quite tricky detours.
The Higher Regional Court of Frankfurt (“OLG”, 11 U 36/18) has commented on the question of whether a reproduction within the meaning of Section 69c No. 1 UrhG also exists if the use of software by way of cloud computing leads to a (technical) reproduction not on computers in the user’s domain, but on third-party servers that are within the sphere of influence of the authorized user.
This question has not yet been decided by the highest court. Some of the literature is of the opinion that there is no reproduction by the user if the accessing client does not receive a copy in the main memory of his computer or if the program is reproduced exclusively on the server of the service provider.
In general, the loading of a program into the RAM of another computer constitutes a reproduction within the meaning of Section 69c No. 1 of the German Copyright Act (UrhG). The main idea is that this loading of a program into the RAM of a computer enables further use of the program by means of further program copies.
The OLG is now of the opinion that the answer to the question of whether cloud computing constitutes an act of copying relevant under copyright law cannot be made dependent solely on the sphere of influence of the computer on which the copying takes place.
According to Section 69c No. 1 Sentence 2 UrhG, the consent of the copyright holder is always required if the “loading, displaying, running, transferring or storing” of the program requires duplication. The right of reproduction is one of the basic exploitation rights of the author (Sections 15 (1) No. 1, 16 UrhG). The basic consequence of reproduction is that the reproduced work can be used in the same way as the work itself (e.g. viewed, read, listened to ….). It thus enables additional enjoyment of the work.According to Section 69c No. 1 Sentence 2 UrhG, the consent of the copyright holder is always required if the “loading, displaying, running, transferring or storing” of the program requires duplication. The right of reproduction is one of the basic exploitation rights of the author (Sections 15 (1) No. 1, 16 UrhG). The basic consequence of reproduction is that the reproduced work can be used in the same way as the work itself (e.g. viewed, read, listened to ….). It thus enables additional enjoyment of the work.
The ratio of Section 69c No. 1 UrhG must also be seen against this background: The mere “enjoyment of a work” does not constitute an act of use relevant under copyright law, even in the case of computer programs. If a user has lawfully acquired a program and installed it on a stationary basis on his own PC, no copyright is infringed if he allows a third party to work with this program on this PC, nor if he allows a third party to watch a film he has acquired there (the OLG refers in this respect to BGH, I ZR 139/89). The use by the third party only becomes relevant under copyright law if the third party is enabled to make further use of the program by copying it. In the opinion of the OLG, however, this legal purpose applies irrespective of the sphere in which the reproduction required for the additional use takes place.
According to the German Federal Labor Court (2 AZR 17/23), an employee who makes strongly insulting, racist, sexist and violent comments about superiors and other colleagues in a private chat group consisting of seven members can only invoke a justified expectation of confidentiality against extraordinary termination of his employment relationship in exceptional cases.
“Who owns the customer data?” – a question that is not as modern as it seems at first glance. However, it can be seen that the question has become massively more acute in this day and age.
Where once there might have been a customer file on the desk or recorded in a central registry, today there are immediate contacts in personal networks such as LinkedIn and data storage on smartphones. Theoretically, it is conceivable that an employee or subcontractor could end the business relationship overnight – and have access to all important customer data without entering the office again.
A problem that is still underestimated – especially also in terms of criminal law, as our everyday life shows. Because increasingly, employees are confronted with the accusation of having “stolen” customer data.
Posts at our German-language blog on the betrayal of secrets by employees.
Copyright protection of software under German law: According to § 69a para. 3 UrhG a software (“computer programs'”) is protected by copyright in Germany if it represents an individual work to the extent that it is the result of the author’s own intellectual creation. But when exactly does copyright protection of software exist in Germany?
In copyright law, many questions usually revolve around “Stoererhaftung” (Breach of Duty of Care) and less often around perpetration. It is therefore all the more interesting that the Federal Court of Justice (I ZR 88/13) has commented on the question of when one is a perpetrator of a copyright infringement. On this occasion, the BGH also clarifies that pure auxiliaries are excluded as perpetrators on the one hand, but online stores that automatically manage inventories through suppliers are perpetrators on the other hand. The latter in particular is likely to be of interest; discussions on responsibility are not uncommon in this area.