Liability risks in the use of software – Computer Week

Not only Oracle is known that the license conditions are updated regularly. Other software providers regularly change the fine print. The customers accept these changes usually go grudgingly. In particular, the rules on the use of Oracle software in virtualized IT environments have led in recent times to many discussions. The customer is in a predicament. Of course he could, like any other offer for the change of an existing contract, reject the license change.

The change of a concluded contract always requires that both parties agree to the change. Although a contractor may contract have the right to grant unilaterally modify contractual terms. The other party, the adequacy of these changes but have judicial review and it is regularly a special right to if he does not agree with the amended provisions of the Treaty. In the case of licensing changes this freedom of choice is limited. Because the amended license conditions are often linked to new updates.

If the customer wants to reject the amended terms, he has to live with it, not being able to update its software. In fact, the use of the software is characterized excluded or substantially impaired. Prefer the company at a later date the update carry on the revised license terms, this is often linked to a special payment: the software vendors then calling the hitherto outstanding software maintenance fees total a (Reinstatement Fee)

companies are therefore required, . to confront not only the initial purchase of the software, but also with the updated license terms
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Software Asset Management

companies therefore required to address not only the initial purchase of the software, but also with the updated license terms. In practice, however, is observed more often that companies indeed to accept the fact of a license amendment to the attention, but not consistently check whether the software will continue to be used royalty-compliant. This ostrich-like tactics revenge later than the next license Audit: Many businesses then look at the professionally established software providers towards, without being able to provide information even to a sufficient extent. This applies at least if the customer does not have a well-maintained Software Asset Management (SAM). Companies and software vendors meet in the then forthcoming debate about established sub-licensing is not at eye level. The software vendor takes advantage of this knowledge advantage to drive the compensation payments in the amount.

The company is liable for license infringements

However, liability law, the company is made up of significant risks. The excess of a company which granted rights to use the software, the software provider may require the cessation of the licensing use of the software in accordance with § 97 of the Copyright Act. This claim can be enforced by way of interim relief, which enables software vendors to obtain an enforceable title against a company in a very short time. This allows the software vendors put its customers the proverbial gun to the chest in order to influence the negotiations on an additional payment for the sublicense in his favor. Because the company is the injunction can not immediately comply, without fear of significant impact on the business organization.

The complexity of license conditions is a double-edged sword. For the more complicated are the conditions, the more likely that a company violates these conditions. This may be the software vendor use within the next Lizenzaudits in order to generate payments. However, on the other hand, he faces the ineffectiveness of the license conditions, if they are too complicated and inscrutable. Because the license conditions are classified as Terms within the meaning of §305 BGB. Thus they are subject to the transparency requirement and need to not be invalid, be clear and understandable. This can be seen in license conditions that exceed a perimeter of several A4 pages, thoroughly questioned.

Still, companies are well advised to take the issue of software licenses seriously. In dealing with the software vendors are the current and correct information about the scale and the use of the licensed software worth money. In addition, the information must be for budgets and company valuations are available.

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