Wedel Software v. Bauer Media was a Dutch interim-relief case about a licence priced by the number of radio stations. Wedel Software B.V. makes MediaSales, software that radio stations use to schedule and broadcast commercials. Bauer Media AB, a Swedish radio operator, had licensed it for 72 stations (the financial agreement says “72+8 Stations”) and later added 26 more. On 15 February 2019 the Amsterdam preliminary relief judge decided that the extra stations were not covered by the original price, but still refused Wedel’s request to force Bauer to stop or comply.[1]
Background
On 1 December 2014 the parties signed a Financial Agreement and a License Agreement for five years, renewing automatically for five more unless terminated a year ahead. The licence tied authorisation to “the number of media for which the software is used” and to the number of machines, and said that “Higher payment rates also apply when software is used on extra machines and/or for extra media and/or for extra potential audience/reach of these media.” Bauer began adding stations in January 2018 and told Wedel by e-mail. Bauer suspended payment of the CRM module fee in September 2017 and terminated the licence on 22 November 2018. On 5 December 2018 Wedel wrote that Bauer was using the software for 26 more stations than licensed and claimed EUR 687,960 in damage. On 24 January 2019 it threatened to shut down MediaSales for Bauer entirely unless a separate EUR 187,791 CRM fee was paid.[1]
Decision or outcome
- Extra stations were outside the licence. Bauer admitted adding 26 stations. Because the licence tied price to the number of media and said that the price rises for extra media, the judge held that adding stations without costs attached was not covered by the original agreement.[1]
- No implied free permission. Bauer argued that Wedel knew of the additions since January 2018, helped with them technically and never asked for money. The judge rejected this: both parties were professionals who had put their rights in writing, and silence could only be read as agreement to use at “een redelijke meerprijs” (a reasonable extra price).[1]
- No copyright infringement at this stage. Because the licence could imply use for more than 72 stations, infringement was not shown on a preliminary basis.[1]
- Relief refused. A vendor may suspend its own performance or terminate for non-payment, but must act reasonably. Bauer said it earned about EUR 200,000 of advertising a day and could not switch supplier quickly, so a full shutdown would cause disproportionate harm. The judge held that even a partial stop for the 26 stations was acceptable only after Wedel had expressly claimed a reasonable extra price and Bauer had clearly refused. At the hearing it turned out Wedel had named no price, only threatened a full end of service, so no part of the request was granted.[1]
Wedel was ordered to pay Bauer’s costs, set at EUR 6,000 for legal fees plus court fees. The question whether the CRM fee was due was outside this procedure.[1]
Significance for software licensing and SAM practice
The case shows two sides of the same problem. A licence counted by station, site or similar unit is exceeded when units are added without a price, even where the software makes adding them trivial. But a vendor that finds overuse cannot jump straight to a cut-off: the judge expected a stated price and a clear refusal first. The general counting models are described in Concurrent and device licensing.[1]
Lessons learned
- Count the pricing unit, not the installations. Here the unit was the radio station, and the agreement named a number.[1]
- Ask for the price when adding units. Bauer’s e-mail about new stations did not produce permission to use them for free.[1]
- Vendor silence is not a waiver between professionals. The judge read silence as agreement to a reasonable extra price.[1]
- Cut-off threats can backfire. The vendor threatened to stop all service and lost, partly because the customer showed severe harm and had no quick alternative.[1]