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Competence through Specialization

Information Technology (IT)

We advise and keep our clients up to date on all IT law and data protection issues and provide guidance at all phases of outsourcing and other IT projects.  Our clients include leading Internet service providers, software companies and electronic marketplace proprietors, as well as agencies of the public sector.  Our clients particularly appreciate our exceptional technical expertise in this area of the law.  Our range of consulting services in this area includes:

IT Contracts

  • Design, negotiation, and supervision of all types of IT contracts, including the provision of software license management support
  • Planning, implementation and support of complex IT projects
  • Comprehensive and competent assistance in all phases of an outsourcing project
  • Design of General Terms and Conditions, especially for Internet service providers, online shops, electronic marketplaces, etc. 

Legal Protection for Software

Computer programs are subject to copyright protection in most cases.  Furthermore, computer programs may be patentable if they result in a “further technical effect”.  The present jurisprudence of the European Patent Office and the German Federal Court of Justice provides favorable protection options for a variety of computer programs.

The protection afforded by the forms of intellectual property varies significantly.  Copyright protection does not extend to the algorithm or design of the program, but only to the form of the concrete expression of the data commands stored in the file.  Thus, the copyright protects the “literary work”, in contrast to the “technical solution”.

Through our specialized technical and legal IT expertise, we support our clients through:

  • Drafting patent applications for computer programs (software patents)
  • Licensing and use of proprietary or open source software
  • Defending the clients’ rights before the civil courts or in ADR proceedings
  • Defending against allegations of unauthorized infringement

Open Source Software

Open Source Software (“OSS”) is becoming increasingly important in the software industry.  An essential feature of OSS is that the source code is freely accessible, modifiable, and used without restriction by prior users or authors.  The remaining utility of OSS depends upon the terms which it is subject.

There are a variety of OSS license models that share certain similarities but which have their unique distinctions.  The most common OSS license (utilized in approximately 60% of all licenses) is the GNU GPL (“General Public License”) which is employed for Linux (kernel).  The characteristic feature of the GNU GPL is the so-called strict “copyleft” clause.  It ensures that modifications and possibly other uses of the software covered by the GNU GPL may only be disclosed to third parties subject to the terms of the GNU GPL (i.e. in particular that the code remain free and open source).  Significantly, software incorporating elements of OSS subject to the GNU GPL will thereby be subject to the same requirements on cost and open source (the so-called “viral effect”). 

 

  • We advise developers and software companies in the use of OSS licenses for their own products.  In particular, we examine with the client whether it would make sense to market software as OSS and in that event advise on which licensing models and areas to do so (a typical example would be to distinguish licenses to general consumers and commercial users through “dual licensing”).
  • We advise developers and software companies as to the extent by which open source software may be utilized and modified without violating the relevant licenses.
  • We also represent the licensor of OSS in enforcing their rights, whether in the form of enforcement of individual clauses (such as the “copyleft” clause), or against impermissible use as provided by the license.