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.
Tag: Softwarelaw
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.
“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?
Protection of secrets within the meaning of the German Business Secrets Protection Act: Protection of secrets within the meaning of the German Business Secrets Protection Act is an important aspect of intellectual property that helps companies in Germany to protect their confidential information and business secrets.
In the following, we will explain the meaning of the protection of secrets under the Trade Secrets Act, how it arises and what type of information can be protected.
Posts at our German-language blog on the betrayal of secrets by employees.
Computer gaming has changed considerably in recent years: Where floppy disks and CDs were common in the past, sometimes in combination with obscure-looking copy protection measures (I like to remember the Mix’n’Mojo hub at Monkey Island,which, by the way, is also available online today), not only downloads prevail today, but also completely new gaming cultures that have partly shifted completely to the online realm.
Massively multiplayer online role-playing games (MMORPGs) have heralded a real cultural change in this respect – and also completely new legal issues: Whereas people used to be most concerned about how best to copy games, other desires prevail today. At a time when accounts cost money and virtual goods have a real market value, cheating in games is valued very differently. This is also reflected in current court decisions. Attorney Jens Ferner, active in the field of software law including the legal issues of online games, gives an overview of the legal situation in Germany.
Note: In our law firm by specialist lawyer for IT law Jens Ferner the creative industry is represented in the field of software law – especially game developers and software houses. No activity for consumers / private individuals!
How does the liability situation in the subject complex of IT security, especially for management (managing directors and board of directors), present itself in Germany?
In my presentation on liability in the event of IT security breaches, tailored to management and board members, I address the relevant circumstances: After a presentation of general liability issues, and building on this, specific liability issues for employees & board members will be highlighted, and finally, very briefly, ways of limiting liability will be presented – up to the question of whether it is not a reason for liability if a company does not buy Bitcoin as a precaution. In the following, I present essential parts of the lecture on the liability of the management board in case of IT security breaches.
IT security is the core topic of modern information technology and is increasingly the focus of political developments as well – nevertheless, there is still a lack of a differentiated, binding set of regulations; although there are specifications at the EU level and initial legal regulations at the national level. However, in the area of original problems, especially in the development and use of software or the liability of a company’s board of directors, unclear liability situations immediately arise. In legal practice, IT security as such seems to wither away and boil down to the practical application of sub-areas of the GDPR – but in fact there are immediate liability scenarios.