Beschränkung der Verkehrsfähigkeit digitaler Güter durch technische Schutzmaßnahmen

The authorization to use technical protection measures is not limited. There is no general legal prohibition to apply technical protection measures, de lege lata. Nevertheless, within contractual relationships the use of technical protection measures often has to be agreed upon. There are mandatory labeling requirements for technical protection measures established under § 95 d UrhG, Art. 246 par. 1 no. 7, 8 EGBGB which shall affect the customer's decision to buy the contractual item. If the vendor fails to label his products, the customer may trust to its unrestricted functionality. Hence, the object of the contract is not free from material defects pursuant to § 434 par. 1 no. 2 BGB if the vendor uses technical protection measures without labeling his products or without having agreed upon their use. This agreement has to be valid according to constraining law and the law on General Terms and Conditions, especially under §§ 307 et seq. BGB. The ECJ's judgment Oracle./.UsedSoft, might be interpreted to the effect that stipulations are to be regarded as invalid which refer to the use of technical protection measures within the scope of application of the EU Software Directive and do not prevent copyright infringements. According to such an interpretation, a stipulation to use technical protection measures prohibiting the transfer of works in spite of the exhaustion of the distribution right would be invalid. The same applies where the InfoSoc Directive is affected. Indeed, Art. 6 par. 1, 3 of the directive as well as §§ 95 a, 95 b UrhG provide that technical protection measures might be used to waive copyright limitations. However, the legislator's intention only was to prioritize technical protection measures as regards the copyright limitations in §§ 44 a et seq. UrhG, not as regards the principle of exhaustion in § 17 UrhG.