Forum of IT law concerning the blocking of access to the internet

“The Access Restriction Act: a flash in the pan for election or continuing of the internet regulation in Germany?” was the topic of the Forum on 9th November 2009.

 
Constanze Kurz, Chaos Computer Club, introduced the technical background and Ines Herziger from the State Office of Criminal Investigation described the difficulties the police faces when prosecuting offences concerning child pornography. She also outlined the impact the Act would have on her day-to-day business (“none”). Afterwards, Arnd Hüneke, associate researcher at the Institute for Criminal Law of the Law Faculty, presented the criminological background of prosecution in the context of child pornography and tried to predict the impact that the blocking of access to the internet would have on potential offenders. Finally, Dr. Guido Brinkel, BITKOM, dealt with the legislative procedures that led to the Access Restriction Act and described the difficult position of the internet service providers. The debate was moderated by Dr. Christoph Schnabel, LL.M. who works for the Officer for Data Protection and Freedom of Information in Hamburg.

 

[Constanze Kurz, Ines Herziger, Christoph Schnabel, Arnd Hünecke and Guido Brinkel]

 

During the debate, many participants voiced their disapproval of “symbolic politics” and the inaccuracy of the Act. The question of the current status of the Act could not be solved during the debate. As the new coalition agreement between the governing parties states that the Act will not be executed, there is considerable legal uncertainty among the internet service providers. Whether this situation is legally valid, is more than questionable.

Forum on IT law concerning Used Software

On Monday 23rd November 2009 another "Forum of IT Law" took place at the IRI. This time, the forum concerned "Used Software" meaning trade with pre-owned software licenses. Such legal questions are very topical and there has been some recent judgements in this area. One such case has just been accepted by the German Federal Supreme Court (BGH) for appeal.

 

Benno Barnitzke, who is a fresh graduate of IRI's masters programme EULISP and presented the forum, gave a short introduction to the legal issues. He discussed whether secondary exploitation is mainly a question of exhaustion of copyright and whether this depends on the way the software is distributed. He concluded that for software distributed through a physical medium, the distribution right of the copyright holder is clearly exhausted. Disputes arise when it comes to volume licenses that are distributed with "master media" and later re-bundled by the secondary distributor and with the problem of how to deal with software that is distributed without any physical media by internet download.

 

Dr Reiner Hirschberg, who is CTO and head of license management of UsedSoft AG, presented the views of a secondary distributor and their business model. He explained that his company buys software licenses that are no longer needed by other companies, mainly due to insolvency, dismissals, mergers, and technical or organisational restructuring. UsedSoft's customers can save money not only on the license fees, but also on hardware and training, especially if older software is used that is no longer on sale by the publisher (such as Windows 2000, Office 2003...).

 

Andreas Kammholz, Attorney-at-Law in Berlin, specialist on intellectual property and competition law and mandated by UsedSoft, presented his point of view on the exhaustion of distribution rights in respect to distribution without physical media. He admitted that the wording of § 69c UrhG (German Copyright Act) is unclear and requires the distribution of physical media for exhaustion. He also saw room for analogy as the legislator had not taken distribution by download into consideration and the interests of the first purchaser and the primary distributor/copyright holder were the same, especially considering that exhaustion limits the copyright holders' control over distribution, which is an interest of the first purchaser and also a common interest as merchantability of pre-owned software licenses, is an economic benefit.

 

Dr Andreas Wiebe, Professor and  Chair for intellectual property and e-commerce law at Georg August Universität Goettingen presented his view and took a counter-position. Wiebe argued that, de lege lata, the legislator did consider this form of distribution which was visible in the reasoning of some EC Directives. Furthermore, the interests were not the same as those for physical distribution as the interests of the copyright holder were more in danger.

 

Thomas Feil, who is an Attorney-at-Law in Hannover and a specialist in IT law, clarified the relevance of the issues to the consultation practice of lawyers. He reported that the legal obstacles and uncertainties prevent careful companies from using the business model to sell unused licenses as well as to buy pre-owned licenses. He also stated that major software labels make use of these uncertainties to take legal actions against secondary distributors in order to intimidate them.

 

 

After the presentation, a lively debate with the audience took place. The most frequently occuring issue in this debate was the lack of clear legislation or jurisdiction in this field. It was decided that the legislator should clarify the situation of pre-owned licenses without physical media as soon as possible and come down in favour of one side.

 

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