Germany: Federal Supreme Court Eases the Burden of Proof for Software Producers

In a decision dated 2 May 2002, the Federal Supreme Court decided to apply some less strict criteria to software producers who wanted to prove a breach of their copyright. Previously, a software producer had to prove a "significant likeliness" that his copyright was being breached. In this decision, a lesser degree of likeliness has been held sufficient to be able to gain access to the alleged violator’s source code. The Federal Supreme Court decided for the first time that the burden of proof is subject to an assessment of values. The court’s decision on whether to permit inspection of the alleged violating product will depend in future on an assessment of the likeliness of a breach of copyright, other factors, the burden of bringing additional evidence and the interest of the other party of keeping the information secret. With this decision, the German courts have given the claimant the benefit of a less stringent burden of proof to match the position which already exists in France, Great Britain and Italy. It is still not decided though whether this lower burden of proof also applies to patent law, although the Federal Supreme Court’s reference to the TRIPS might imply such an understanding of S. 819 German Code of Civil Procedure.