Legal Notice

Case law on used software

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

The ECJ also ruled that the trade in used software is permissible even when the software is transferred online.

On July 17, 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 distribution. This was confirmed by the Higher Regional Court of 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 ECJ even ordered that the second buyer of online transferred licenses may download the software again from the manufacturer: "Furthermore, the exhaustion of the distribution right extends to the program copy in the version improved and updated by the copyright holder," said the ECJ. Thus, the court went well beyond the conclusions of the ECJ Advocate General from April 24, 2012.

VOLUME LICENSES AND THEIR DIVISION ALSO LEGALLY

In a later decision by the Higher Regional Court of Frankfurt am Main in the proceedings between Adobe and usedSoft, the further consequences of the ECJ ruling were impressively confirmed: The Higher Regional Court of Frankfurt ruled that the ECJ ruling is also applicable to volume license agreements and their division. An appeal by Adobe was fully rejected by the Federal Court of Justice on December 11, 2014 (Az. I ZR 8/13). The ruling of the Higher Regional Court of Frankfurt was thus confirmed at the highest instance.