Time and again you can see that it is believed that free software, especially shareware or freeware, can be packed on your own servers/websites, as it is free of charge. This is nonsense, of course, but it feels very widespread nonsense.

Now the Federal Court of Justice has also dealt with the issue and, with its ruling at the end of last month in favour of Microsoft, has decided that the legal opinion, which is certainly not in doubt among lawyers, is correct.

In the present case, the dispute concerned the free trial version of Office offered by the operator of an internet shop on its own site and via Ebay.

By uploading the trial versions, there is a “public representation” within the meaning of copyright, which would have been permitted only with the consent of Microsoft. The fact that Microsoft also offered the trial version for free download on its own pages does not change that.

The BGH also relies on EU law, since both relevant directives must be taken into account when interpreting German copyright law. What was relevant here was that a new audience was opened up by the dealer. This would only allow a link to the download option at Microsoft – or, of course, an explicit agreement with Microsoft.

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