Thursday, 21 November 2013

Exhaustion of Distribution Rights and Contract Clauses

LG Hamburg 315 O 449/12

The District Court of Hamburg found two clauses in SAP's software licensing terms and conditions invalid. The first clause limits user's right to transfer the software (client-server model). The second clause restricts any use of the software beyond the originally contractually agreed use which would be the case for example if user adds additional clients to it. In both clauses the transfer or additional use is made subject to prior approval by SAP.

The Court held that the software licensing terms constitute a sale of the software copies and that therefore the mandatory principle of exhaustion of distribution rights applies to the sold copies. The first clause would limit user's right to transfer such copies to prior approval by SAP and is therefore invalid. The second clause implies that user can only add more clients to the software by procuring it from SAP and not a third party. This would conflict with one of the intents of the exhaustion principle which is to make a sold copy generally marketable. 

Tuesday, 12 November 2013

Prevention Obligation of File-Sharing Host

BGH I ZR 80/12

The German Federal Court has previously ruled that a file-sharing host is obliged to delete the IP infringing copies uploaded to his platform once he gains knowledge of it, e.g. by being notified of it. The Court now added the obligation for the host to also scan all his data on the platform for other uploaded copies of that particular protected work in questions, e.g. other uploads of the same music song.

IP MoU Between UK And Taiwan


The British Trade & Cultural Office in Taiwan and the Taipei Representative Office in the UK completed the signature of a Memorandum of Understanding (MoU) on Intellectual Property to increase information sharing and create the necessary regulatory environment. (link)

Wednesday, 6 November 2013

US First Sale Doctrine vs EU Exhaution Principles

US District Court, Southern District of New York No.12 Civ. 95 RJS (Capitol Records LLC v ReDigi Inc)

The US District Court of New York found that the second hand digital music platform of ReDigi violated Capitols copyright in the music by allowing users to upload and sell music they had previously downloaded rightfully onto their computer, iPod or other device. The First Sale Doctrine would not apply because it was not the music file on the tangible device that was sold on but a copy of it created in the process of uploading the music to the platform. 

ECJ C 128/11

The European Court of Justice decided recently for the sale of second hand software that the used software did not have to be transferred with the device it was first downloaded onto for the software vendor's distribution right in the software to exhaust but it was sufficient for the second buyer to make a new copy on another tangible device by downloading again from the software vendor's website.

Court Competence, Cross-Border Consumer Transactions and the Internet

ECJ C-218/12

The European Court of Justice holds that if a vendor targets a consumer market in another country for its products via its website than the local court in that other country is competent for litigation between vendor and consumer even if the website itself was not cause of the product transaction undertaken between the two parties.

Broadband Flatrate and Speed Reduction

LG Cologne 26 O 211/13

The Regional Court of Cologne found a clause in Deutsche Telekom's general user terms unenforceable which allowed the provider to reduce the speed of a flat-rate broadband connection once the user had reached the contractually agreed maximum use per time.

Unwanted Recommendation Email via Website

BGH I ZR 208/12

The German Federal Court finds that an email sent via a function on a vendor's website allowing another party to send an email from that website to a third party recommending that website, without the prior consent of the third party, is to be treated like an unwanted advertising email by the vendor.

Violent Threats via Facebook

OLG Hamm 2 UF 254/12

The German regional court of appeal in Hamm decided that also violent threats conveyed via an internet site, here Facebook, justify issuing victim protection orders under the violence protection act.