Facts
On December 19, 1988, Lobos Informatik AG and Debita AG concluded a license agreement for accounting software. The addendum to this contract stipulated that the software should be installed in object code. However, the software was installed in both object code and source code.
On January 25, 1996, Lobos Informatik AG discovered that Debita AG had modified the program material since May 3, 1993. Lobos Informatik AG then filed a lawsuit with the Cantonal Court of the Canton of Schwyz and demanded the release of the programs stored in the source code as well as the reversal of the changes made since May 4, 1993.
The Cantonal Court dismissed the claim. Thereupon, Lobos Informatik AG filed an appeal and a constitutional complaint with the Federal Supreme Court.
Considerations
The Federal Supreme Court concluded that Debita AG had no right to use and modify the source code based on the license agreement and the addendum. The wording in the addendum that the installation should be in object code strongly limited Debita AG's right to modify as provided for in the license agreement. Debita AG should have recognized this limitation without Lobos Informatik AG having to point it out to them.
The fact that Lobos Informatik AG had installed the source code at Debita AG also did not establish an implied right of use of the source code by Debita AG. Providing the source code would have represented a substantial…