In its ruling of 3 March 2016 (case reference: 8 O 294/15), Bochum Regional Court ruled that the use of free software contrary to the software company’s license obligations constitutes a copyright infringement.

Terms of use of the author

In principle, the author himself is entitled to all rights of use to his work. They can decide on the scope and type of use. However, the use and distribution of a work by another person is subject to certain conditions. The author can specify the conditions under which other persons are also permitted to use the work.

Terms of use for software usage

The definition of the terms of use is extremely important, especially in the context of free software use. Obligations can be imposed if the use and distribution of software is lawful. As a rule, it is stipulated that the manufacturer must be named. In addition, the addition of the license text or source code in particular must be complied with.

If these obligations are not complied with, this behavior constitutes a copyright infringement within the meaning of Section 69c No. 4 UrhG in the opinion of Bochum District Court.

Copyright infringement with open source software

In the opinion of Bochum District Court, this copyright infringement also exists if the software is so-called open source software. This refers to software that may be used free of charge and whose further development is permitted. The free use of such software is only permitted under the license conditions.

Expiration of the license rights

Whether a use is considered unauthorized use is generally determined by the agreements that the author has made about his work. In the case of the Bochum Regional Court, the software company had stipulated in its rules and regulations that a license violation should lead to the automatic expiry of the license rights. This was therefore a “genuine condition” in accordance with Section 158 BGB. The use without the license rights was therefore correctly regarded by Bochum District Court as unauthorized use.

Compensation for damages due to unauthorized use

As a result of the unlawful use, the software company is entitled to claim damages from the user. This claim is not precluded by the fact that authorized use is possible free of charge if the conditions are complied with. Otherwise, the software company would be virtually without rights and would have to tolerate copyright infringements contrary to the will of the legislator.

In the area of open source licenses, too, it is therefore important not to treat warnings lightly.