I’ve actually come to know the lawyers from major law firms as relatively thorough working members of our profession. However, with a letter currently in our possession, the attorneys at FPS have demonstrated that even major firms may wish to tighten the screws a little on their high quality standards when they venture into business sectors solely comprised of bulk businesses.
FPS’ standard letter used to lodge claims for information on copyright infringement for their client BSA|The Software Alliance has been well-known for many years. Content-wise, the writing seems to have changed little over the years. It first points out that one must not use unlicensed software; then follows the reference to the right to information under Section 101a of the Copyright Act (Gesetz über Urheberrecht [UrhG]); and finally comes the rather vague statement that “evidence has recently been received” that the recipient of the letter is using unlicensed software in his business.
Strictly speaking, our colleagues’ approach is just as acceptable as the structure of the letter. Anyone using unlicensed software is committing copyright infringement, which is punishable by law in accordance with Section 106 of the Copyright Act. If such infringement is not committed by an individual at home, but by a company that uses the unlicensed software for commercial purposes, those responsible are subject to a particularly harsh range of penalties pursuant to Section 108a of the Copyright Act, namely imprisonment for up to 5 years. Now, the fact that the software manufacturer would also like to receive compensation for damages and license fees from these companies is completely understandable.
In the case of one of our clients, however, a lot went wrong, which makes me doubt just how thorough our colleagues at FPS are when drawing up their letters:
Our client was addressed in the wrong gender. He was accused of using unlicensed software in his company, though he does not actually own a business. He is a regular employee of a company working in the field of video production. The company specified in the address field is not even the one where our client is employed. Not to mention that this company was contacted without any reference to its legal form, which is a big no no among German attorneys. The fact that our client has received the letter at all is probably only attributable to the hard-working mailman, who endeavored day after day to find a mailbox where he could toss the letter.
Now that the opposition is demanding information as to which software products are used, I have written back that they should first please inform me of exactly WHO should provide this information. The company that doesn’t exist? Our client, an employee of a completely different company? Or maybe his boss?
If the opposition can answer these questions, I will gladly discuss the content of the allegations with my colleagues working at FPS. The software companies represented by them only have the right to information if “the copyright or any other right protected under this Act has been unlawfully violated with reasonable probability” (Section 101a, Paragraph 1 of the Copyright Act). And so far it looks to me as if the evidence provided by the opposition is everything but reliable, making “reasonable probability of copyright infringement” highly unlikely.