Intellectual Property / Information Technology
III / 2006
Data Protection on the Internet for the protection of data: The customer can
CONTENT declare his/her consent - just as he/she accepts
Data protection law: Consent by Consent by mouse click an offer of sale - with two consecutive mouse
clicks. A particular form or arrangement of the
consent could not be inferred from the Act.
Page 1 A court judgment makes it easier to make
IT contract law: Drafting software alternate use of customer details obtained via
Although the provider must make clear to the
licences to safeguard them against user what this mouse click means for the user, if
insolvency the user has to use a scrollbar or the browser's
The internet is no longer a new medium. A rapid
Page 1 print function in order to read the data protection
roll-out of high-speed internet and a growing
statement in full, then that is sufficient. The court
Design patents: The unregistered acceptance of e-commerce show that users
therefore requires every user to have a certain
Community design know how to deal with the offerings on the
proficiency in dealing with offerings on the web.
worldwide web. For a long time now private
individuals have been spending four and five
Dear readers, The Regional Court of Appeals of Brandenburg
figure sums on the internet without any misun-
made something else clear too: An e-commerce
derstandings usually arising. People know what
The protection of personal data collected via the provider, who sells its product only after the
they are doing.
internet is a subject which companies give hardly customer has consented to the further proces-
any attention to even though most of them have sing of his/her data, is not acting unlawfully. On
Or do they? Lawyers are warning people to be
an internet page and usually also carry out some the contrary: If the provider does not accept the
cautious: Apart from leaving providers with their
sort of e-commerce. In the author's experience order without the requested consent, it thereby
money, do customers really want to leave provi-
only a few companies have any consent wording draws the customer's attention to the necessity
ders with details about their person? Lawyers
on their internet pages which would withstand and the importance of his/her consent and does
refer to data protection law and question the
any inspection by a data protection regulatory so with particularly urgency. Only if the website
admissibility of this voluntary passing on of
authority. In our first article, our data protection contains a unique offer, which potential purcha-
customer details. Sometimes it seems more
specialist, Dr. Markus Höppener, explains how sers cannot obtain from any other provider, does
difficult to control what happens with ones details
you can avoid disputes in this regard. the company have to make its goods or services
than what happens with one's money.
available even without consent.
Our second article deals with drafting contracts
This is due to an Act that is rather vague. It has
on the use of software so that they are safeguar- This court decision does not release companies
always been a basic rule that if a company wis-
ded against insolvency. According to a judgment in any way from their responsibility in dealing
hes to use details about its customers for more
by the Regional Court of Mannheim, users of with customer details. The consent still has to be
than just processing their orders, it requires the
software were in danger of losing their purcha- formulated in a way that is legally correct and the
consent of its customers. However, for the inter-
sed software licences if and when their software website must be clearly arranged. However, a
net, the Act has, for several years, additionally
developer became insolvent if they, for example, reliable company practice for making more far-
prescribed that the customer must give his/her
had also concluded a maintenance agreement. reaching use of customer details can now deve-
consent clearly and knowingly. There is no such
We report on the conditions under which the lop on the basis of this judgment. No data protec-
express requirement for a purchase agreement.
German Federal Supreme Court has put a stop tion declaration on a website has to be formula-
to this. ted so brashly that it is off-putting. The courts
But how does one act clearly and knowingly on
take the view that internet users are not quite
the internet? The Act does not answer this
Finally, our last article should turn your attention than inexperienced.
question. Some data protectionists require that
to a subject which regularly causes trouble in
the declaration of consent must appear more
daily practice: The copying of get-ups such as, Dr. Markus Höppener
prominently on the webpage than the declaration
for example, packaging or designs. What is not E-mail: Markus.Hoeppener@bblaw.com
on the conclusion of the contract. Only this gua-
very well known is that there are indeed legal
rantees that the customer really understands
means of countering this, without having to have
what he/she is consenting to. Only in this way,
recourse to the German Act Against Unfair Com-
they argue, is a customer protected against the IT contract law
petition (Gesetz gegen den unlauteren Wettbe-
"transitoriness of the internet".
Drafting software licences to
The argument regarding the transitoriness of the
With my best regards, safeguard them against insol-
web turns out to be an empty argument. If it
Sven Schlotzhauer, LL.M.
really did follow from this formulation that decla- vency
rations of consent on the web really did have to
comply with stricter requirements, such require-
A judgment by the German Federal Supreme
ments would affect not only the consent to the
BEITEN BURKHARDT Court has, for the first time, shown how soft-
transmission of data but also the contract conc-
Rechtsanwaltsgesellschaft mbH ware licences could be protected against the
Ganghoferstr. 33 clutches of a receiver in the event that the
80339 Munich software developer becomes insolvent.
The Regional Court of Appeals of Brandenburg
did not succumb to this fallacy. It held that the
E-mail:Sven.Schlotzhauer@bblaw.com It is every software user's nightmare: The deve-
same standards applied to the transmission of
loper of software that is vitally important to the
data and to purchase. Whatever seals a purcha-
company becomes insolvent. A receiver realises
se at e.g. Tchibo.de, Conrad.de or the placing of
the remaining assets and says that he is unable
a car in Autoscout24 is therefore also sufficient
Intellectual Propperty / Information Technology
III / 2006
to maintain the software. And to add insult to The German Federal Supreme Court has now does not think of it or wants to save himself the
injury: He terminates the existing contracts and shown how a regulation can be drafted so that it effort and cost involved in a registration.
demands that the software no longer be used. At is safeguarded against insolvency: The software
the latest at this point the question arises: To developer who later became insolvent had ente- In this sort of case competition law sometimes
whom does the "source code" that is all so im- red into a software licence and maintenance help. Thus, for instance, whoever copies a third
portant for maintaining and further developing contract with its licensee, which could be termi- party's product and is thereby misleading about
the software actually belong? And does the nated if continuation of the contract became the origin of his product in a manner that is avoi-
receiver really have the right to subsequently "unreasonable". In this case the user was suppo- dable is acting anti-competitively. However, it is
withdraw the rights of use? sed to receive the source code in its current sometimes difficult to establish the prerequisites
version. The German Federal Supreme Court for anti-competitive copying because, inter alia,
In order to secure access to the source code decided that such a disposition over the source established case law requires that the product
many companies have entered into so-called code that was subject to a condition precedent copied has a "certain amount of recognition".
software escrow agreements. The steadfastness was safeguarded against insolvency if
(i.e. the effectiveness) of these agreements In such cases it can be helpful that under certain
against insolvency has long been a matter of - the software had been created by the time conditions a design patent is created under EU
controversy because - depending on the legal insolvency proceedings were opened and law without requiring any registration. This may
structure - they either amount to what is called sound surprising. However, the copyright in
prejudicial treatment of the creditors within the - the condition occurred thereafter. works that are capable of being protected also
meaning of the German Insolvency Code (Insol- arises without registration.
venzordnung) or a (double) trust agreement in If the source code has already been legally
favour of the software developer and the user, transferred in rem, then the receiver can no The main prerequisites for such an unregistered
the treatment of which in the event of insolvency longer prevent it unilaterally. Community design are:
In software contracts which govern the placing of - The first time the design was made available
For a long time, therefore, it has been doubtful software in escrow one must therefore take care to the public must have been within the EC.
whether - despite an agreement - the user can, that title to the source code is transferred to the As of that day a term of protection of three
in the event of insolvency, enforce any rights to user subject to the condition precedent that the years starts to run.
the surrender of the source code that has been contracts are terminated. At the same time,
placed in escrow. however, the termination clause must be drafted - The design must have "individual character".
neutrally so as to avoid any allegation that the This means that the overall impression it pro-
As if that wasn't enough: The Landgericht (Regi- clause is a clause to circumvent the rules. duces on the user differs from the overall im-
onal Court) Mannheim passed a judgment in pression produced on such a user by another
June 2003 on the question of the termination of If these points are observed when drafting the design. One can, of course, argue tremen-
rights of use (licences) in the event of insolvency, contract it ought - in the worst scenario - to be dously when this is the case in practice. A cer-
which took the whole industry by surprise. A possible not only to continue to use the software tain creative level is however necessary (like
purchase agreement for software licences had but also to have maintenance work carried out with copyrights).
been concluded between the claimant and the on the source code.
then insolvent company. At the same time the - Finally, the claimant must demonstrate to the
purchaser, who was itself a software company, Sven Schlotzhauer court that the imitator presumably knew the
undertook to further develop the software. Even E-mail: Sven.Schlotzhauer@bblaw.com original design. If he succeeds in this, the
the source codes were transferred to the purcha- infringing party has the burden of proving that
ser. Nevertheless the Landgericht Mannheim he designed his design himself independently.
decided that - because of the purchaser's (se- Design patent law
condary) obligation to further develop the soft- If an infringement can be proven, then not only
ware - the agreement was to be considered to Redress when a design is pin- can the manufacture and distribution of the co-
be "a contract which had not yet been fulfilled by pies be stopped, but damages can also be de-
either party", because the obligation to further ched: The unregistered EU de- manded.
develop was directed at the future and was sign
therefore not yet completely fulfilled. With con- Although the unregistered Community design
tracts of this kind the receiver has an option as to Each year quite considerable sums of money was introduced in March 2002 already, it is
whether he wishes to fulfil the contract or not. are invested in designing products or packa- known far too little in practice. Wrongly, in our
ging. This makes it all the more annoying opinion.
From this it followed that - at least whenever a when free riders exploit this investment and
maintenance contract was concluded together use similar designs. The Community design
with a licence agreement - a software transfer promises redress, though it has not yet be- Matthias W. Stecher
agreement that was safeguarded against insol- come well known. E-mail: Matthias.Stecher@bblaw.com
vency was hardly possible. The receiver would
therefore have been able not only to prevent the It often happens in our practice that our clients'
escrow agent from surrendering the source code, product or packaging designs are copied by
he would even have been able to prevent the competitors. Although one can try to protect
user from continuing to use the software - despi- oneself against this by having the design registe-
te the fact that the user had concluded a purcha- red as a design patent from the outset, this is
se agreement for the licences. often not done either because the manufacturer