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The German GPL Order - Translated
Sunday, July 25 2004 @ 06:51 PM EDT

A volunteer, Jens Maurer, has stepped up to the plate and provided us with a Groklaw translation of the recent Order in Munich validating the GPL. It is not an official court translation. Any errors are Groklaw's, not the court's, and obviously you should not rely on this layman's translation for legal matters. Our translator cautions that he is not a native English speaker, and he is a programmer, not in the legal field. He has provided, in colored text, some commentary to help us understand the judgment, but his comments are so we can follow along, but they are not legal interpretations or comments. You'd need an attorney for that. Our purpose is simply to get an idea of what the court's reasoning was, and I think you'll find that you can definitely grasp the overview. If others out there have contributions to make to refine, correct or supplement, particularly any attorneys, please feel free to do so.

What I find the most interesting is that in Germany too, just as here in the US, evidently a violation of the GPL terminates your rights granted under the license which results in you being guilty of copyright infringement, just as Eben Moglen has explained. Jens also points out something I would not have noticed without his help:

"One important observation is that the court referred to and endorsed a publication by 'Metzger/Jaeger', that very same Jaeger that served as counsel for plaintiff."

Following the translation of the Judgment, Jens has also done a translation of the pertinent German statutes. Again, the above disclaimers apply.

***********************************************

District Court München I
[address]

file number: 21 O 6123/04

IN THE NAME OF THE PEOPLE!

JUDGMENT

In the legal dispute

Harald Welte, [address in Berlin]

- plaintiff -

counsel: Solicitors Jaschinski Biere Brexl [address in Munich] case id 131/04

vs.

S[itecom] Deutschland GmbH, represented by the CEO ... ([handwritten:] corrected by decision dated 9 July 04) [address near Munich]

- defendant -

counsel: Solicitors ...

concerning action for injunction

the 21. civil chamber of the District Court München I, by and through Presiding District Judge Kaess, District Judge Müller and District Judge Rieger, based on the oral argument on 19 May 2004, renders the following

[ Larger courts in Germany such as District Courts are organized in various "chambers". Division is by subject, so there are one or more chambers dealing with murder and other capital crime, one or more dealing with white-collar crime, etc. It is likely that the 21. civil chamber deals with copyright and related "intellectual property" rights exclusively and thus has a high level of knowledge in that area.]

Final Judgment:

["Final" does not mean that there is no possibility of appeal; it just says the District Court is done with the issue.]

I. The preliminary injunction of the District Court München I dated 2 April 2004, file number 21 O 6123/04, is confirmed.

II. The defendant also bears the further costs of the case.

[Germany has a "loser pays it all" system, and the "further" refers to the costs incurred since the preliminary injunction has been issued. The latter already had a "defendant bears costs" statement in it, but that could only cover the costs up to issuing the preliminary injunction.]

Facts:

[The court recites the undisputed facts of the case. What follows appears to be copied from plaintiff's statements, because it has a lot of technical detail in it.]

Plaintiff asks defendant to restrain in connection with the distribution of a so-called open source software.

Plaintiff is a member of the open source project "netfilter/iptables" and as a so-called "maintainer" chiefly responsible for the development of the program. The goal of the project that was founded in mid-1999 by the Australian Paul "Rusty" Russell was to replace the outdated Linux firewall (ipchains) by a modern, future-directed and flexible architecture.

Since 2001, plaintiff is the maintainer of the four-people core team that operates the Internet platform "www.netfilter.org", makes all decisions about future directions of the software architecture, integrates the results of the other developers and issues the software packages.

The software "netfilter/iptables" consists of two components. The "engine", which handles the network packets within the kernel of the Linux operating system, and the configuration program, with which the administrator can set the security policies (so-called packet filter rules). The software "netfilter/iptables" is thus an integral building part of the widespread and economically important operating system GNU/Linux, known under the designation "Linux". Due to its complex tasks, the software "netfilter/iptables" has a significant size, currently 22775 lines of code within the Linux kernel and 32244 lines of code in the configuration program.

On the Internet platform www.netfilter.org, the software "netfilter/iptables" is offered for download in source-code form and made available to members of the team and others for further development.

The software "netfilter/iptables" --- as indicated on the Internet page --- is a Free Software that [can] be used by everybody under the conditions of the GNU General Public License (GPL) (attachment AS 5; AS 2.)

The license conditions provide, among others, for the following:

[What follows in the original are parts of the "unofficial" German translation of the GPL. I've put in the original English GPL wording here.]

1. You may copy and distribute verbatim copies of the Program's source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty; keep intact all the notices that refer to this License and to the absence of any warranty; and give any other recipients of the Program a copy of this License along with the Program. You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee.

2. ...

3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:

a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,

b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,

c) Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.)

4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

Defendant is the German subsidary of the Dutch company [Sitecom] Eurpope [sic].

The companies advertise and distribute through the website www.[sitecom].com networking products such as FireWire adaptors and cables, Bluetooth, USB adaptors, and WLAN routers (attachment AS 7).

The website "www.[sitecom].com" is displayed in German language when it is accessed from the Federal Republic of Germany. On the self-presentation accessible using the menu item "About [Sitecom]" only defendant as a company with address is named.

On the Internet pages, among others, the Wireless Network Broadband Router 100g+ (WL-122) is advertised and the contained firmware offered for download. On the website with the download of the software, there is also a German manual. The software available for download free-of-charge contains the software "netfilter/iptables" in object-code form, among others also the software modules "PPTP helper for connection tracking and NAT" and "IRC helper for connection tracking and NAT" that plaintiff programmed himself in their entirety.

On the website of the company s[itecom], as of 18 May 2004, there was neither a hint to the fact that the firmware also contains software that has been put under the GNU General Public License, nor a reference to the license text of the GPL or the source code of the software "netfilter/iptables".

With letter dated 18 March 2004, plaintiff demanded from defendant to restrain from the GPL violations (attachment AS 10.)

After exchanging additional letters between plaintiff and defendant (and/or their parent company) (attachments AS 10 - 13), when defendant refused to certify their future restraining, plaintiff filed suit on 1 April 2004 and requested issuance of a preliminary injunction.

The court, following the request, issued the following preliminary injunction:

1. Defendant is

forbidden,

under penalty ...

to distribute and/or copy and/or make publicly accessible the software "iptables/netfilter", without pointing to the licensing under the GPL and attaching the license text of the GPL and making the source code of the software "netfilter/iptables" available free of license fees, according to the conditions of the GNU General Public License, Version 2 (GPL).

2. Defendant bears the cost of the court proceedings.

3. The value of the dispute is set to 100000 EUR.

[In Germany, attorney's fees and the cost of litigation before the court are usually dependent on the "value of the dispute".]

Defendant appealed the preliminary injunction with a written motion dated 20 April 2004.

Plaintiff alleges:

The preliminary injuction is to be confirmed.

The demand results from par. 97 section 1 in connection with par. 69c no. 1-4 UrhG.

[UrhG is the abbreviation for Urheberrechtsgesetz, the German copyright law.]

Defendant has infringed on the copyright of plaintiff by offering the software "netfilter/iptables" for download and by advertising its distribution, without adhering to the license conditions of the GPL.

Said actions would only be permissible if defendant had a license grant. Since plaintiff licenses the software "netfilter/iptables" exclusively under the GPL, all use is forbidden unless it is GPL-conforming, because section 4 explicitly states that a violation of the GPL automatically causes a termination of the license grant. Thus, the GPL only provides for a license grant with conditional annulment, in accordance with par. 158 section 2 UrhG.

Since defendant has used the software "netfilter/iptables" in violation of the licensing conditions of the GPL, in particular by not giving a reference to the GPL and making the source code available, defendant has infringed the copyright of plaintiff.

This is independent of the questions whether the licensing conditions of the GPL have been effectively agreed upon between plaintiff and defendant or not. If the GPL were not agreed upon by the parties, defendant would notwithstanding lack the necessary rights to copy, distribute, and make the software "netfilter/iptables" publicly available.

[Here's the heart of the argument: Plaintiff claims that Sitecom doesn't have a valid license to copy and distribute. Sitecom could argue "we've never agreed to the GPL", but that just means that they have only the default rights, which don't include copying and distribution. Otherwise, they must adhere to the GPL, but they don't, so they've lost their rights.]

The distribution without reference to the GPL and without making available the source codes also infringes plaintiff personal rights as an author. Par. 13 UrhG in connection with par. 69a section 4 UrhG.

[Here's a different argument: They don't give credit where credit is due (the netfilter/iptables author), which has a special provision in German copyright law.]

Defendent is passively legitimized. This results from the Internet presentation. Independent of the question in which form defendant is indeed active, they have also interfered with plaintiff's copyright. Because they endorse making plaintiff's software publicly available, they are also responsible for the associated copyright infringement. Defendant is named as responsible on the website.

[This claim addresses the issue whether the German subsidary of Sitecom Europe is even the proper party to sue, because the website is maintained by Sitecom Europe. However, because only the address of Sitecom Germany is given on their German-language website, plaintiff claims they're nevertheless responsible.]

Preliminarily securing the rights of plaintiff in expedited litigation is necessary. In order to realize his demands, plaintiff cannot be referred to the regular procedures. Additional infringement of rights are feared that would irreparably harm plaintiff's interests, in particular regarding acceptance of authorship. Therefore, the copyright interests of plaintiff risk an immediate impairment; a decision in the regular procedures would arrive too late.

[Here is an argument why plaintiff needs a court decision as quickly as possible. I translated ["Hauptsacheverfahren" as "regular procedures", which means the usual court proceedings where lots of time passes.]

Plaintiff moves

to confirm the preliminary injunction dated 2 April 2004.

Defendant moves

to quash the preliminary injunction dated 2 April 2004, file number 21 O 6123/04.

Defendant alleges:

The preliminary injunction is to be quashed, because defendant is not passively legitimized.

The case has no merit. Defendant does not deal with distributing and/or copying and/or making publicly available of the software "netfilter/iptables". Defendant is a pure support company that does not entertain, has not entertained, and will not pursue independent copying and independent making publicly available.

The fact that the entity that distributes, copies, and makes publicly available is not defendant, but the company S[itecom] Europe BV, is known to plaintiff.

[Sitecom argues here that they are not the right party to sue, because they are just providing support, and plaintiff knows that.]

Since it has futher been advised that the website has been changed, it is obvious that the issue should be and will be resolved by the company S[itecom] Europe BV.

Therefore, a reason for the disposition is lacking. Urgency is not established.

[Here, Sitecom says that their parent company, Sitecom Europe BV, will fix the website, so there is no longer any reason to sue them or anybody else. That completes the main arguments of the parties, and now the court adds this reference to the papers before it:]

In completing the facts, refer to all letters exchanged between parties, including attachments and the minutes of the oral argument on 19 May 2004.

Opinion

The preliminary injunction had to be confirmed, because both merits and reason for the disposition are established.

I. The merits for the disposition follows from par. 97, 69a, 8 section 2; 15 UrhG, because plaintiff is at least co-author to the software that is at issue in the dispute, and the usage that the plaintiff [sic, should be defendant] is responsible for is not covered by a license.

A. Being entitled to a disposition pertaining to par. 97 UrhG requires that defendant has not received usage rights for the software.

The court shares the opinion that the conditions GPL (General Public Licen[s]e) cannot be considered a waiver of copyright and authorship rights. To the contrary, conditions of copyright law serve the users to ensure and realize their goals regarding further development and distribution of software (see Dreier/Schulze UrhG par. 69a no. 11).

[This deals with the possibility that putting your software under GPL somehow means you have waived all your rights, i.e. made it public domain. I believe that is not possible in Germany in general, because you cannot actually transfer your copyright, but just grant (whatever broad and exclusive) licenses to it.]

[The citation here refers to a so-called "commentary", a large book that annotates each paragraph of a law, in this case the copyright law, with relevant court decisions and opinions of law people. These commentaries are frequently updated, and attorneys and judges often refer to these commentaries. Remember that Germany is not a common-law country, so other court rulings (except for rulings of the highest courts) do not set a binding precedent.]

Regarding an infringement of rights, two alternatives can be distinguished; first, that defendant has never received rights of use, and second, that the rights of use once received have terminated according to section 4 GPL.

Concerning the first alternative, it is imaginable that no effective agreement has been reached because of invalid general conditions of sale (par. 306 section 2 BGB [Bürgerliches Gesetzbuch = Civil Code]).

The differentiation between the two alternatives is practically impossible due to the way the software is distributed, thus, due to the form of the statement of plaintiff's claims, [the court] needs to determine for the first alternative as well whether the license conditions became part of the effective agreement or would have been able to become part of it, respectively.

Further, the court is of the opinion that the question whether defendant received object-related usage rights has to be decided according to German law (see BGH [Bundesgerichtshof = Federal Court of Justice, the highest civil and penal court in Germany] GRUR 1999, 152 - affaire in casinos.)

Whether this would also apply if the case concerned the question of a pure liability issue, the court need not answer, because it presumes, in accordance with the common opinion, that even a simple usage right is an object-related right (see Schricker, Urheberrecht, 2. ed., before par. 28 ff. no. 49; Dreier/Schulze UrhG par. 31 no. 52).

[More references to commentaries here, plus the funny legal word "object-related right" ("dingliches Recht" in German). I believe it means that the right is a separate entity that can be sold, lent, etc, it's not just some promise of future action between parties. More on that below.] A. The court considers the license conditions as general conditions of sale that are to be checked according to par. 305 ff. BGB.

1. First, the court has no doubts that the general conditions of sale have been effectively included into a potential contract between defendant and plaintiff, according to par. 305 section 2 BGB. On the Internet page, there is a reference to the conditions (attachment AS 2). The conditions are publicly accessible. Even though the German translation may not be official, there are no objections with regards to the official conditions being available in the English language only, given the fact that English is the common language in the computer industry. That is at least applicable if the contractual situation between the authors and a commercial software company is at issue.

The court is of the opinion that number 4 GPL, which provides for an automatic termination of rights upon violation against the provisions in number 2, does not inadequately disadvantage the contract partner of the user.

a) However, number 4 is not a permissible limitation of usage rights according to par. 31 section 1 sentence 2 UrhG.

According to par. 31 section 1 UrhG, usage rights can be limited geographically, temporally, or contents-wise.

According to the jurisdiction of the Federal Court of Justice, an object-related, and not only liability-related, subdivision of the right of redistribution (par. 17 section 1 UrhG) is only possible if there are usual, technically and economically independent and thus clearly delineateable forms of usage, due to the ensuing potential limitation of the fitness for sale of the copyrighted objects (BGH, GRUR 2001, 153-155 OEM version.)

[Here it gets tough. I believe the "OEM version" decision of the Bundesgerichtshof was in a case against Microsoft that looked like this: Alice sold Bob cheap so-called "OEM" versions of software with the provision that the software may only be resold together with hardware. Bob sold that software together with hardware to reseller Charly. Charly, in turn, kept the hardware, but resold the OEM software to end-user Dorothy. Alice sued Charly for copyright infringement, claiming that the provision only to resell the OEM software with hardware was somehow attached to the OEM software license itself, and Charly did not validly redistribute the software. The decision was that Charly did not infringe on Alice's copyright, because the OEM software was not sufficiently different in function or otherwise from the fully-priced software, Alice voluntarily sold some restribution rights to Bob, who sold them to Charly, and Charly did not have contractual relationships with Alice (only Bob did).

The underlying idea is that if you as the copyright holder decide to sell some of your rights (e.g. a non-exclusive right to use), you are not at liberty to limit the right that you sell in a way that would interfere with further resale of the right. You may have contracts with your sales partners, and you can sue them for breach of contract, but you cannot sue a third party that got a valid license from your sales partner for copyright infringement. ]

The regulations in number 2 GPL do not fulfil these preconditions (Metzger/Jäger, Open Source und deutsches Urheberrecht GRUR Int. 99, 839 ff.; Omsels Open Source und das deutsche Vertrags- und Urheberrecht in Festschrift für Hertin; Plaß Open Contents im deutschen Urheberrecht, GRUR 2002, 670 ff.)

b) The literature endeavors legal constructions in order to make the automatic termination of rights that is described in number 2 [GPL] legally effective also on the territory of the Federal Republic of Germany.

The literature suggests to assume only an object-related agreement with conditional annulment, that prescribes an automatic termination in case the licensee does not adhere to the contract duties (in particular Metzger/Jaeger, see above). The argument is that object-related legal transactions are in principle not adverse to conditions.

The court considers this construction compatible with par. 31 section 1 sentence 2 UrhG.

First a remark that the legal effects of a permissible limitation or an automatic termination upon violation of certain contract duties can both lead to the same legal consequences, because there is no ownership of usage rights in both cases and potential dispositions with third parties would be void due to lack of authority.

In principle, there is the danger that the solution with the conditions serves to circumvent the regulations of par. 31 UrhG in no small number of cases.

It is the opinion of the court that from par. 31 UrhG (new edition) does not follow that transfers of copyright-related usage rights with conditional annulment are excluded in general.

The question whether such a condition is legally permissible, i.e. implements a circumvention of par. 31 UrhG or not, is to be decided by reading the contract as a whole. The question is which effects the annulment condition could have on the fitness for sale of the rights or the (further modified) objects that the software has been applied to.

An essential consideration for the limitations on the object-related provisions for the usage rights is to maintain the fitness for sale of the rights, in particular in a multi-level vendor chain, so that not every violation against some duties results in the software being copied and/or distributed by unauthorized parties.

This danger only partially exists in the given contract construction. The conditions expressly state that license grants for third parties are not terminated as long as they accept and comply with the GPL.

The condition can limit the fitness for sale of objects with open source software. Insofar the distributor at the time of the production of copied objects was no longer permitted to do so, for example due to the termination of the rights, the doctrine of first sale cannot apply and the user purchases from a nonauthorized party. The regulations of par. 69 section 1 UrhG do not help the user, because par. 69 d UrhG presumes that the user is the owner of copyright-related usage rights (see Schricker/Loewenheim, Urheberrecht, 2nd ed., par. 69d Rn 4; Plaß, see above.)

As far as I understand, the "Erschöpfungsgrundsatz", which I translated as "doctrine of exhaustion", means that once you have voluntarily and validly sold a particular piece of your rights, for example the license to one copy of your software, you have exhausted your control over that particular piece, and the party that purchased that piece is free to do with it whatever it pleases. Here, you have given away the (non-exclusive) right to make copies, and thus you have exhausted your control over that particular right. However, if the license somehow terminated, there is no valid license grant any more, and thus the argument about no longer having control does not apply.] Since third parties can at any time obtain (or only obtain) the necessary usage rights from the author directly upon acceptance of the GPL, this aspect can be neglected.

In summing up, the consequences of a termination of rights predominantly affect only the contractor of the author, similar to a liability-based limitation, thus the fitness for sale of the rights is only marginally impaired.

Furthermore is to be considered that the effective offer does not expire upon a violation, but the violator can reacquire the rights at any time by acceptance of and compliance with the conditions. Thus, the automatic termination is not particularly severe for the violator (Omsels, see above.)

Since a third party can obtain the usage rights at any time, disregarding the fact that it received them from a nonauthorized party, the fitness for sale of the rights and the objects is only marginally affected by that condition. Further, the consequences of the termination apply mostly to the violator. Thus, the court opines that number 4 GPL does not constitute a circumvention of par. 31 section 1 sentence 2 UrhG.

c) Even if the objections regarding the permissibility of number 4 sentences 2 and 3 GPL applied, that would not cause number 4 sentence 1 GPL to become invalid. The clause would only be partially invalid, with the consequence that a violation of number 4 sentence 1 GPL would only have liability effects. 3. The court has no doubts about the permissibility of the conditions in number 2, 3 GPL.

The licensor is only required to redistribute the software that was made available to him free of charge in a form so that third parties can use the software. In addition, the legislator expressly recognizes the fundamental principle of open source software with the provision in par. 32 section 3 sentence 3 UrhG (see Dreier/Schulze UrhG par. 32 no. 80,81.)

4. Even if one were of the opinion that number 4 GPL or number 3 would not withstand a contents check according to par. 307 BGB as a whole, the court opines that it would be required to analyze in detail whether the contract as a whole would be invalid according to par. 306 section 3 UrhG. If the open development of the software is at risk due to the invalidity of the clause, and thus a fundamental principle of open source is affected, the court believes there are reasons to assume that no effective agreement has been reached, with the consequence that any use of the software is illegal.

B. The court considers the passive legitimation of the defendant to be sufficienly demonstrated.

The software at issue in the dispute can be accessed at the indicated Internet address. In the German version, only the company address of defendant is shown in the section "We about us". From the design, which defendant had to be aware of, it follows that the only named contact in the German-language area is defendant. The court opines that defendant must be considered responsible for all offers.

If the offer on the Internet page were to be considered accountable to the parent company, defendant would still interfere at least contributorily, because defendant supports the distribution of the software.

II. The reason for a disposition is accepted. Plaintiff cannot be burdened to accept the GPL-violating distribution of his software until a decision in the regular procedures. Serious disadvantages for defendant are not demonstranted and are also not discernible.

[The court not only agrees that plaintiff is right, it also agrees that a quick decision is necessary.]

III. The cost decision is based on par. 91 ZPO [Zivilprozeßordnung = rules of civil procedures]

[signature]
[signature]
[signature]

Kaess
Müller
Rieger

Presiding District Judge

District Judge
District Judge


Translation of German Copyright Law

Paragraph 8: Co-Authors

(1) If several people have together created a work, whereas their contributions cannot be separately exploited, then they are co-authors of the work.

(2) The right to publish and to exploit the work belong to the co-authors as a whole; changes of the work are only permissible with the consent of all co-authors. A co-author may not refuse his consent to publication, exploitation, or change in bad faith. Each co-author is authorized to sue for infringement of the collective copyright; however, he can only demand payment to all co-authors.

(3) The revenue from using the work belongs to the co-authors according to their respective share in creating the work, unless the co-authors have agreed upon otherwise.

(4) A co-author can waive his share of the revenues. The waiver must be declared to all other co-authors. With the waiver, the other co-authors receive the share.

Paragraph 13: Recognition of Authorship

The author has the right of recognition of his authorship with regards to the work. He can determine if the work is to be marked with a mark of the author and which mark is to be used.

Paragraph 15: Usage Rights --- General

(1) The author has the exclusive right to exploit his work in tangible form, the right includes in particular

the right to copy
the right to distribute
the right to show in public

(2) The author has furthermore the exclusive right to publicly perform his work in intangible form (right of public performance.) The right of public performance includes in particular

the right of speech, display, and performance
the right of making publicly available
the right to transmit
the right of performance by audio or picture means
the right of performance by radio transmission and of the act of publication

(3) The performance is public if it is intended for a majority of members of the public. A member of the public is anybody who is not personally related to the one exploiting the work or the other people that the work is rendered or made available to.

Paragraph 17 section 1: Right to Distribute

(1) The right to distribute is the right to offer or make available the original or copies of the work to the public.

Paragraph 31 section 1 and 2: Granting Usage Rights

(1) The author can grant others the right to use the work in some or all manners (usage right). The usage right can be granted as a simple or exclusive right and can be limited geographically, temporally, or content-wise.

(2) The simple usage right allows the owner to use the work as permitted, without excluding the use by others.

Paragraph 32: Adequate Compensation

(1) The author is entitled to a contractually agreed upon compensation for granting usage rights and the permission to use the work. If the amount of the compensation is not determined, the adequate compensation is considered agreed upon. If the agreed upon compensation is not adequate, the author can demand consent to change the contract from his contract partner, so that adequate compensation is granted to the author.

(2) A compensation determined according to the common compensation rule (par. 36) is adequate. Otherwise, the compensation is adequate if it is according to what is common in the business considering kind and size of the usage right granted at the time of closing of the contract, particularly considering the duration and time of the use, and considering all circumstances.

(3) A contract partner cannot rely on an agreement that differs from the sections 1 and 2 to the disadvantage of the author. These rules also apply if they are circumvented by other means. However, the author can grant a usage right for everybody free of charge.

Paragraph 69a: Special Provisions for Computer Programs --- Object of Protection

(1) Computer programs in the sense of this law are programs in all forms including the design material.

(2) The protection granted applies to all forms of expression of the computer program. Ideas and principles that an element of a computer program is based on, including the ideas and principles for interfaces, are not protected.

(3) Computer programs are protected if they are individual works in the sense that they are the result of the proper creativity of the author. In order to determine the protection, no other criteria, particularly no qualitative or estetic ones, are to be considered.

(4) For computer programs, the provisions for language works are applicable, as long as this chapter does not provide otherwise.

Paragraph 69c: Acts Requiring Consent

The owner of the rights has the exclusive right to perform or authorize the following acts:

permanent or temporary copying, in part or in total, of a computer program with any means and in any form. Insofar as loading, display, running, transmission, or storing of a computer program requires a copy, those action require the consent of the owner of the rights; the translation, modification, arrangement, or other changes of a computer program and the copying of the resuls. The rights of those that change the program are not affected; any form of distribution of an original or copies of a computer program, including renting. If a copy of a computer program is sold in the European Union with the consent of the owner of the rights, the right of distribution is exhausted with respect to that particular copy, except the right to rent; the wire-based or wire-less public performance of a computer program including making available publicly such that members of the public have access from a location and at a time of their choice.

Paragraph 97 section 1: Entitlement to Restraining and Damages

(1) Anyone who illegally infringes upon the copyright or another right protected by this law can be asked by the party so harmed to remove the infringement, to restrain, if a danger of repetition exists, and to pay damages, if the infringer acted on purpose or by negligence. Instead of damages, the so harmed can demand the revenue that the infringer received by infringing the rights, and a statement what the revenue was.


Translation of German Civil Code

Paragraph 158 section 2: Conditions of Delay and Annulment

...

(2) If a legal action is performed upon a condition of annulment, the effect of the action ends when the condition is fulfilled; at that time, the previous legal situation is re-established.

Paragraph 306: General Conditions of Sale --- Consequences when not Included or Void

(1) If general conditions of sale have in total or partially not become part of the contract or are void, the contract remains otherwise in force.

(2) Insofar as the conditions have not become part of the contract or are void, the contents of the contract is according to the provisions of the law.

(3) The contract is void if keeping with it would cause undue burden on one of the parties of the contract, even considering the changes in section 2.

Paragraph 307: Contents Check

(1) Provisions of general conditions of sale are void, if they inadequately disadvantage the contract partner of the user in bad faith. Bad faith can also ensue if a provision is not clear and intelligible.

(2) In doubt, an inadequate disadvantage is to be assumed if a provision is contrary to fundamental ideas of the provision of the law that it deviates from limits substantial rights and duties that stem from the nature of the contract so that the aim of the contract is in danger

(3) Sections 1 and 2 and paragraphs 308 and 309 only apply to provisions in general conditions of sale that deviate from or amend provisions of the law. Other provisions can be void according to section 1 sentence 2 in connection with section 1 sentence 1.


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