Software assignment and copyright (miss)

Do you ever commission the production of software? Then you think, who pays decides? But do you really “own the copyright” to the software? That was at issue in the lawsuit in which the summary judgment judge in Amsterdam ruled on May 8, 2025. It involved the BVs of NSCale Operations (“NSC”) on one side and ElioVP (“Elio”) and Wolker on the other. NSC is a company with a large data center with a lot of computing power and storage capacity (on hardware). NSC therefore sourced hardware from Elio that optimizes this hatdware into High Performing Computing or HPC called (for AI). And for that hardware, Wolker in turn developed software models. NSC had entered into separate contracts with Elio and Wolker each and claimed the copyright to the software called Paiton from each.

The deal: NSC was allowed to ‘use’ Wolker’s models with the text , for a “2 year royalty free license.” By then the proverbial ‘bell should have rung at NSC’. After all, with copyright, ‘use’ is not ‘ownership’ or being the sole holder (‘owner’) of this intellectual property right.

To overrule this, NSC argued that it had after all ‘directed and supervised’ the software development and therefore would have obtained copyright. This claim was based on the so-called ‘Breugel article’: section 6 Copyright Act: those painting helpers without an employment contract of that painter were under his direction and supervision at the time. Then, according to contemporary copyright law, this would in principle belong to that painter. However, it turned out that NSC was not aware of the Paiton development and that NSC could not provide any evidence that its employees had collaborated on it or that NSC trade secrets had been used in the process. Those defects are certainly extraordinary here.

And software developer Wolker had it pretty easy. She could simply point to her subscription to Google’s Github. There were some 9500 lines of software code stored there from which Paiton besontd. These were marked with digital day stamps and thus showed that Elio and Wolker had already started developing Paiton even before the agreement with NSC was entered into. No “bite” of software could be copyrighted to NSC. Not surprisingly, the judge in summary judgment found that NSC lacked evidence to support its claims. Painful for NSC, but this could have been avoided if the analysis for this court case had been valued differently.

What to do to avoid this? – Have your intellectual property agreements in ICT contracts reviewed in advance. Properly question the other contracting parties about what they have or have not already created in terms of software and what is due to you when collaborating.

Questions

Do you have any questions as a result of this article? If so, please contact one of our attorneys by email, phone or fill out the contact form for a no-obligation initial consultation. We are happy to think along with you.