18.08.2016 – Are you not protected by Copyright Law from now on if you modify software? – Our statement to the VMware decision of the High Court of Hamburg.
There are questions arising after the recent verdict of the High Court of Hamburg in the case Hellwig ./. VMware whether the average software engineer modifying existing computer programs is left unprotected by Copyright Law. The judges of Hamburg rejected Hellwig’s lawsuit, besides others, with the argument that it was not sufficiently brought forward that Hellwig’s modifications exceed the efforts of an average software engineer.
No clarification of the important questions in Open Source Law
We expected from the High Court of Hamburg to deal in its judgement with important and extremely controversial issues of Open Source Law concerning the GPLv2 and Linux. The core question to be assessed concerned the scope of the copyleft of the GPLv2 and the interaction of components of the operating system of Linux licensed under this strict Open Source license and proprietary program elements which are, in this case, software developments by VMware.
But the outcome was differing extremely: the judges of Hamburg already rejected the lawsuit before the taking of evidences due to a lack of particulars of claim of the claimant’s submissions. Like a thunderbolt! Yet, the Court’s argumentation is not convincing as to our interpretation of law.
Copyright of modified software allegedly only in case of sufficient individuality and complexity
The High Court of Hamburg applies erroneous legal standards regarding the copyright protection of modified software. From the initial point, the High Court already assumes that a software engineer modifying an existing computer program can only claim copyright protection for his modification if it goes beyond the efforts of an average software engineer. Further criterion for the copyright protection of such a modification is that – per the Court – the programming or modification must stand out from a pure workmanlike programming or shows itself a sufficient complexity.
While reading these passages of the judgement one feels inevitably taken back to the computer stone age. In the 70ties and 80ties, computer programs were only protected in case they met the high requirements of copyrighted works, thus they had to show a sufficient level of individuality and reach the threshold of originality. Yet, the European legislator decided to do an about-turn with the introduction of the Computer Program Directive in the year 1991 and reduced the prerequisites for copyright protection of computer programs deliberately below the level of personal intellectual creativity which requires individuality and threshold of originality. Each programming action that is not completely trivial suffices for copyright protection as computer program since then.
The German legislator implemented the European Directive’s requirements in the §§ 69a et seqq. of the German Copyright Act where the reduced protection prerequisites are explicitly legally defined: the determination of the legal eligibility for protection as computer program does not depend on qualitative or aesthetic criteria.
Reduced protection barriers also for modifications of computer programs
These reduced protection barriers must be also applied to modifications of computer programs from a pure logical point of view. However, § 3 German Copyright Act requires for modifications personal intellectual creativity. With interpretation in conformity with the Directive, this level of protection is nevertheless not transferable to computer programs. This fact has apparently been ignored by the High Court either due to gaps in knowledge or listlessness.
The legal literature and the German Supreme Court support the following adverse legal opinion: no special requirement regarding the level of originality applies to modifications; the requirements of the level of originality rather follow those of the underlying type of work. In case there is a broader standard applied to the modified original work and the so-called “small coin” or “small change” is protected, a low degree of individual creativity indeed suffices for a modification pursuant to § 3 German Copyright Act.
Excessive requirements to the particulars of claim concerning the claimant’s submissions of facts
The High Court of Hamburg has beyond that overstretched the requirements of a substantiated submission of facts by the claimant. Pieces of evidence like witnesses and expert reports offered by the claimant were rejected with the Court’s general reference that those serve illegitimate discovery. The submission of the claimant seems to be reasonably substantiated even if we lack the insight of the complete procedural documents.
However, the claimant was in any case able to demonstrate and proof his modifications of components of the Linux kernel. This also applies to parts of the Source Code VMware included in their own software. The High Court just would have had to create a connection to establish – if necessary – a missing but nevertheless presented link. If the judges’ IT-expertise was not sufficient for that, obtaining legal opinions of IT experts would have been necessary to close such a knowledge gap. It is not the claimant’s obligation to submit a complete expert opinion merely to be allowed to request such a report.
Infringement of claimant’s right to be heard
An infringement of the claimant’s right to be heard may come into consideration because the Court was not paying any attention to the offer of evidences submitted by the claimant notwithstanding the – as far as perceptible – profound submission of the claimant. This position is protected as fundamental right pursuant to article 103 of the German Constitution.
We would appreciate if the decision at the stage of appeal is characterized by the unresolved issues concerning the “derivative work” of copyleft effects and not by the lack of technical understanding of IT-Law by overstrained judges.