Case law on used software

The European Court of Justice (ECJ), as the highest judicial authority of the European Union, has finally clarified with its ruling and declared the trade in used computer programs fundamentally lawful.

The ECJ also ruled that trade in used software is permitted even if the software is transferred online.

On 17.07.2013, the Federal Court of Justice then fully confirmed the fundamental decision of the European Court of Justice regarding the underlying legal questions.

The ECJ ruling also applies to volume licenses and their splitting. This was confirmed by the Higher Regional Court Frankfurt am Main in a case between Adobe and usedSoft.

In their reasoning, the 13 judges of the Grand Chamber made it clear that the principle of exhaustion applies to every first sale of software. The CJEU even ruled that the second buyer is allowed to download the software again from the manufacturer for licenses transferred online: "Furthermore, the exhaustion of the distribution right extends to the program copy in the version improved and updated by the copyright holder," said the CJEU. In doing so, the court went significantly beyond the conclusions of the CJEU Advocate General of 24 April 2012.

VOLUME LICENSES AND THEIR SPLITTING ALSO LEGALLY

In a later decision by the Higher Regional Court Frankfurt am Main in the case between Adobe and usedSoft, the further consequences of the ECJ ruling were impressively confirmed: The Higher Regional Court Frankfurt ruled that the ECJ judgment also applies to volume license agreements and their splitting. An appeal by Adobe was fully rejected by the Federal Court of Justice on 11.12.2014 (Case No. I ZR 8/13). The judgment of the Higher Regional Court Frankfurt was thus finally confirmed.

• IT-Business: ECJ: Download licenses may be resold
• Financial Times Deutschland: Smart ruling on used 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 permitted
• crn.de: Oracle loses dispute over download software
• ChannelBiz: European Court of Justice rules in favor of UsedSoft
• Online-PC: usedSoft wins: European Court of Justice gives green light for trade in used software
• 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 generally permitted