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Skillssoftwarelizenz-agb

softwarelizenz-agb

Security & auditing

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Updated 10-15 20:08

About this skill

/it-recht:softwarelizenz-agb

Purpose

Software licence terms combine copyright law and standard terms law: they grant rights of use and at the same time restrict them through pre-formulated clauses. This skill examines the effective granting of rights of use, the limits of the exhaustion principle upon resale of used software, and the resilience under standard terms law of transfer, audit and tying clauses.

Inputs

  • Role (licensor / licensee)
  • Licence model (purchase/perpetual licence, rental/subscription, volume/group licence)
  • Distribution channel (physical medium / download)
  • disputed clauses (prohibition of transfer, prohibition of splitting, audit/re-licensing)
  • Facts (first sale in the EU with the consent of the right holder?)

Sub-agent architecture

Three roles work together. A rights-granting agent first examines under Section 31 UrhG which rights of use were effectively granted and to what extent (simple/exclusive, territorial/temporal/substantive), because only the granted scope is binding. An exhaustion agent then assesses under Section 69c UrhG and the UsedSoft case law whether the right of distribution is exhausted and resale is permissible. An standard terms agent finally reviews the restrictive clauses (transfer, splitting, audit clauses) against Sections 305, 307 BGB. Only findings are handed over; the basis remains the specific licence text and the acquisition transaction.

Procedure

1. Granting of rights of use (Section 31 UrhG)

Under Section 31 UrhG, the author may grant simple or exclusive rights of use and may restrict them territorially, temporally and substantively. Unclear scope is, under the purpose-of-transfer doctrine (Section 31(5) UrhG), to be construed narrowly in favour of the author in case of doubt. For computer programs, Sections 69a et seq. UrhG apply in addition.

2. Exhaustion principle and used software (Section 69c UrhG)

Under Section 69c no. 3 sentence 2 UrhG, the right of distribution in a program copy that has been put into circulation in the territory of the EU by way of sale with the consent of the right holder is exhausted. The ECJ has clarified that this also applies to copies sold via download if the first acquisition is for consideration for an unlimited period (ECJ, judgment of 03.07.2012 – C-128/11 — UsedSoft, dejure.org; subsequently BGH, judgment of 17.07.2013 – I ZR 129/08 — UsedSoft II, dejure.org). A precondition of permissible resale is that the first acquirer renders his own copy unusable; a splitting of volume licences is impermissible.

3. Standard terms review of transfer and audit clauses (Sections 305, 307 BGB)

Pre-formulated licence terms are standard terms (Section 305 BGB). In particular, the following fail under Section 307 BGB:

  • complete transferprohibitions that forbid a permissible transfer of a copy after exhaustion — invalid, because they override statutory exhaustion;
  • Audit-clauses that grant the licensor unreasonably broad, at-any-time rights of access and inspection — to be reviewed against the standard of proportionality and data protection;
  • automatic re-licensing at list prices as lump-sum damages without proof to the contrary (Section 309 No. 5 BGB).

Risks

  • Passing onprohibition despite exhaustion having occurred — clause invalid (Section 307 BGB); at the same time antitrust/standard terms risk for the licensor.
  • Audit-clause too broad (at-any-time access, self-incrimination, cost burden) — violation of Section 307 BGB and data protection.
  • Exhaustion misjudged: resale wrongly prohibited or wrongly assumed, although the first sale took place outside the EU or as a mere rental/subscription.
  • Right of use assumed beyond the purpose-transfer doctrine (Section 31(5) UrhG) — only what the contract purpose requires is granted.
  • Splitting of a volume license upon resale — not covered by exhaustion, copyright infringement (Section 97 UrhG).

Output format

SOFTWARELIZENZ-AGB-PRÜFUNG — <Produkt/Lizenz> — <Datum>

I.   Nutzungsrechte (§ 31 UrhG)        [Umfang / Zweckübertragung — eng?]
II.  Lizenzmodell                      [Kauf/Dauer / Miete/Abo]
III. Erschöpfung (§ 69c UrhG)          [eingetreten? EU-Erstverkauf, Entgelt, unbefristet]
     Weiterverkauf zulässig:           [✓ / ❌ — Begründung, UsedSoft]
IV.  AGB-Kontrolle (§§ 305, 307 BGB)
     Weitergabeklausel:                [✓ / ❌ unwirksam]
     Audit-/Nachlizenzklausel:         [✓ / ⚠️ / ❌]

Empfehlung:                            <…>

Sources