Case law on used software
With its ruling, the European Court of Justice (ECJ), as the supreme judicial body of the European Union, has provided definitive clarity and declared the trade in used computer programs to be legal in principle.
The ECJ also ruled that second-hand software trading is also permitted if the software is transferred online.
On 17.07.2013, the BGH then fully confirmed the fundamental decision of the ECJ with regard to the underlying legal issues.
The ECJ ruling also applies to volume licenses and their splitting. This was confirmed by the Frankfurt am Main Higher Regional Court in proceedings between Adobe and usedSoft.
In their reasoning, the 13 judges of the Grand Chamber clearly stated that the principle of exhaustion applies to every first sale of software. The ECJ even ruled that the second purchaser of licenses transferred online may download the software again from the manufacturer: "Moreover, the exhaustion of the distribution right extends to the copy of the program as improved and updated by the copyright holder", the ECJ stated. The Court thus went significantly further than the ECJ Advocate General's opinion of April 24, 2012.
VOLUME LICENSES AND THEIR SPLITTING ALSO LEGAL
In a later ruling by the Higher Regional Court of Frankfurt am Main in proceedings between Adobe and usedSoft, the further consequences of the ECJ ruling were impressively confirmed: Namely, the Higher Regional Court of Frankfurt ruled that the ECJ ruling also applies to volume license agreements and their splitting. An appeal by Adobe was rejected in its entirety by the Federal Court of Justice on December 11, 2014 (case no. I ZR 8/13). The ruling of the Higher Regional Court of Frankfurt was thus confirmed in the last instance.
- IT-Business: ECJ: Download licenses may be resold
- Financial Times Deutschland: Smart judgment on second-hand software
- Spiegel.de: Used software may be resold
- Bild.de: Used licenses may be resold
- WELT ONLINE: ECJ: Software licenses may be resold
- ComputerBild.de: EU Court: Sale of used software licenses is permissible
- crn.de: Oracle loses in dispute over download software
- ChannelBiz: European Court of Justice rules in UsedSoft's favor
- Online PC: usedSoft wins: European Court of Justice gives green light for second-hand software trade
- golem.de: Used software licenses may be resold
- ITReseller.ch: EU declares sale of used software legal
- n-TV.de: Trade in used software - sale is generally permitted
