Berlin officials pays 4,000 euros in legal costs to SoftwareFair

The State of Berlin must pay around 4,000 euros in legal costs to two representatives of SoftwareFair, who were erroneously accused of copyright infringement by the public prosecutor’s office to the detriment of Microsoft. This is the result of the judgement 246 Js 340/18 of the District Court Tiergarten, which you can find linked HERE. The decision was handed down on 16 June 2023 and has been legally binding since 26 June 2023.

The criminal proceedings, which lasted nine years, were triggered by an article published in 2014 in the computer trade magazine “c’t”, which mentioned SoftwareFair in the same breath as the company “PC Fritz”, which was brought to high profile by the go-getting advertising eccentric Maik Mahlow with celebrities such as Oliver Pocher and Giovanni Zarrella. Under Mahlow’s responsibility, illegal overproductions of Microsoft products were produced and circulated with the help of forged documents. The receipt for Mahlow was a sentence of six years in prison for copyright infringement and commercial fraud.

The “c’t” editors were correct in assuming that something was wrong with Mahlow and the PC Fritzes. Wrong was the assumption that SoftwareFair had anything to do with Mahlow & Co. The article was followed by years of investigations and house searches, during which – also in the offices of SoftwareFair – everything that looked like Microsoft was confiscated.

While the PC Fritz went to court, the “SoftwareFair case” went into the drawer of the investigators after it turned out that there was no connection between the two companies. A suspension of the statute of limitations brought about by the public prosecutor’s office in 2018 stretched the maximum possible duration of the proceedings from five to ten years.

In 2021, the public prosecutor’s office believed to have identified 31 copies among many thousands of seized licence keys for Microsoft products at our company, which we should not have offered on the European market. All information on this was based on hearsay. An internal check at our office showed that all 31 cases were retail and OEM licences that had been sold on the European market for the first time and that had clearly been legally traded by SoftwarFair according to the civil law standards developed by the Federal Court of Justice and the European Court of Justice in the decisions Usedsoft II and Usedsoft III.

In the summer of 2023, 34 witnesses were scheduled to be heard by the district court Tiergarten, which was responsible for the proceedings. Only one of them was actually heard, the IT director of a school.

The witness praised SoftwareFair’s customer service, which he had used in 2015 before successfully installing Microsoft Windows on 30 school computers and activating them with licence keys purchased from SoftwareFair. All 30 computers received updates from Microsoft and ran smoothly until the hardware was retired. The customer was very satisfied.

The prosecution could not do anything with such a statement.

The second witness should have been the IT manager of a police station who had bought Microsoft licences for police computers from SoftwareFair. However, the state of Baden-W├╝rttemberg refused to grant him the necessary permission to testify.

The third witness – from 34 – also did not want to comment. He works as a lawyer for Microsoft and had not received permission from his client to testify. On 15 June 2023, he telephoned the judge and a representative of the public prosecutor’s office. He told the judge that he was not the only one who was not allowed to testify. Nor would any other representative of Microsoft take the stand in the proceedings to clarify the nature of the 31 licences.

It’s nice to be able to just pick and choose in Germany, isn’t it?

Abandoned by Microsoft and the police, the prosecution sought our acquittal. The other 31 witnesses were spared the summons to Berlin.

The case shows how a single misleading media report based on speculation can keep the judiciary busy for nine years due to the lack of its own competences at the responsible investigating authorities. Not only, but also with these proceedings, the state of Berlin has not brought any glory upon itself!