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BGH on connected works and applicability of the SAS Institute decision

In a case represented by me, the I. Civil Senate of the BGH last Thursday commented on the huge problem area of connected works in copyright law and also reached a decision. Accordingly, the decision SAS Institute, ECJ, 02.05.2012 – C-406/10, is not applicable to computer games §69d UrhG is thus probably not applicable to computer games and other related works, even if a reasoning is not yet available. Once a rationale is available, I will address the decision with more details.

In my opinion, the Federal Court of Justice thus impressively demonstrates its lack of technical understanding and also the lack of courage to submit the matter to the ECJ, although it was suggested by our side. The Chairman stated, mutatis mutandis, that the SAS Institute decision would apply to the program component of computer games, but not to the media component. Of course, that makes no sense at all, especially because then the decision would be completely undermined. Not even a Windows 10 has only code components these days and no graphics, sounds or moving images. At least one focus would have to be problematized under certain circumstances, so that it would be worth discussing whether a movie DVD would not fall under §69d UrhG just because a “play” button or similar might have been programmed. The fact that, according to the logic of the BGH, computer games are not primarily computer software, I personally consider to be more than daring.

The Federal Court of Justice thus naturally strengthens the protective rights of authors, but weakens the exceptions and thus the rights of users, the business location of Germany and Europe, and thus actually nullifies the legislative will to be able to create intercompatibility, because nowadays it is simply no longer conceivable to have software that does not have media components.

The ignorance of the BGH even continues in the tenor. The Senate slightly modified the decision of the Dresden Higher Regional Court. Previously, my client was prohibited from copying the software, loading it into RAM and/or displaying it on the screen. The “or” was deleted by the BGH so that the acts must be cumulative and not only alternative. This means that, according to initial considerations, the client will be allowed to use the software in a way in which the product is only displayed on his PC, but not also loaded into RAM on this PC, for example. Watching a video of the program, using it via Teamspeak and the like are probably allowed after that.

Whether this makes sense remains to be seen. We will now consider escalating the evaluation of connected works to the Federal Constitutional Court or the ECJ.

Just in passing, it should be mentioned that another issue that was negotiated last Thursday, namely the use of third-party software, will not be decided until January 12. I will address this in a post on Wednesday.

Marian Härtel

Marian Härtel

Marian Härtel is a lawyer and entrepreneur specializing in copyright law, competition law and IT/IP law, with a focus on games, esports, media and blockchain.

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